People v. McGinnis CA1/4 ( 2022 )

Filed 7/11/22 P. v. McGinnis CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A157603, A159573
v.
MARCUS GEROY McGINNIS, (Napa County
Super. Ct. No. 18CR003734)
Defendant and Appellant.
In these consolidated appeals, defendant and appellant Marcus Geroy
McGinnis argues the trial court violated his constitutional rights under
People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) when it imposed a
$300 restitution fine (Pen. Code,1 § 1202.4, subd. (b)), a $40 court security fee
(§ 1465.8), and a $30 criminal conviction assessment fee (Gov. Code, § 70373),
without making a finding on his ability to pay. The People contend: 1)
defendant’s appeal is moot because the trial court already determined his
ability to pay at the sentencing hearing; and 2) defendant forfeited his claim
by failing to object to the fines and fees imposed at the sentencing hearing.
On the merits, the People contend the restitution fine imposed was
constitutional under both the Eighth Amendment and due process principles,
and any error was harmless. We affirm.
1 All further undesignated statutory references are to the Penal Code.
1
BACKGROUND2
The Underlying Offense
On November 18, 2018, defendant walked into a Target store, filled a
shopping basket with items, and walked out. A security guard observed
defendant leave the store without paying for the items. The security guard
stopped defendant outside of the store, brought him back inside, and called
the police. After determining defendant was on two separate grants of
probation, the responding officers arrested defendant.
The Napa County District Attorney filed an information charging
defendant with petty theft with priors (§ 666, subd. (b)). The information also
alleged four prior theft convictions, a prior strike conviction (§ 667,
subds. (b)–(i)), and a prison prior (§ 667.5, subd. (b)).
On March 13, 2019, defendant pleaded no contest to one count of petty
theft with a prior (§ 666, subd. (b)) and admitted the four prior theft
convictions and the prior strike conviction. The trial court struck the prison
prior.
Sentencing and First Appeal (Case No. A157603)
Defense counsel submitted a sentencing memorandum, noting
defendant had obtained his GED in 2007. Defendant had completed several
courses through Coastline Community College, which included five business
classes, and classes in astronomy, history, and health. Defense counsel also
submitted a statement of assets on defendant’s behalf, in which defendant
said he was transient and unemployed. He listed food stamps and his “mom”
as his only sources of income. He had no assets. Defendant listed “student
loans” and “fines and restitution” as debts. Attached to the sentencing
Because defendant pled guilty, the factual background is taken from
2
the probation department’s felony presentence report.
2
memorandum were letters from defendant’s family seeking leniency and
advising the court of the strong familial support defendant has in Lake
County. Defendant’s sister wrote that “when clean headed,” defendant is a
“hardworking and loving man.” Defendant’s sister also thought that with the
appropriate drug treatment program, defendant could “succeed and move on
to become a productive and contributing member of society.”
The presentence report filed by the probation department noted
defendant’s numerous prior convictions, which included a 2003 conviction for
unlawful intercourse with a minor. (§ 261.5, subd. (d).) Defendant reported
that he had been previously employed with “My Eye For Detail, Taco Bell,
Oventi Bar and Bakery and the Napa Valley Wine Train.” Defendant had no
known medical condition, other than Hepatitis C. Defendant reported that he
suffers from “bipolar, anxiety and post traumatic stress disorder.” The
probation department recommended that probation be denied and that
defendant be ordered to pay a $40 court security fee (§ 1465.8), a $182 jail
booking fee (set by Napa County); a $300 criminal conviction assessment fee
(Gov. Code, § 70373), a $560 presentence report fee (§ 1203.1b), a $300
restitution fine (§ 1202.4), and a suspended $300 parole revocation fine.
On May 29, 2019, the trial court sentenced defendant to 32 months in
state prison. The court awarded defendant 158 days credit for actual time
served and 158 days for conduct credit, for a total of 316 days of presentence
custody credits. The court imposed the mandatory $40 court security fee
(§ 1465.8); the $30 criminal conviction assessment fee (Gov. Code, § 70373);
the minimum $300 restitution fine (§ 1202.4); and suspended the parole
revocation restitution fine (§ 1202.45). The court waived all other fees,
assessments, including $600 in attorney fees.
3
On June 20, 2019, defendant filed a timely notice of appeal (case
No. A157603), challenging the imposition of the fines and fees.
Motion to Vacate and Second Appeal (Case No. A159573)
On September 17, 2019, defense counsel filed a “Motion to Vacate Court
Operations Assessments and Conviction Assessments and to Stay Execution
of Restitution Fines pursuant to [Dueñas].” In opposition, the prosecutor
argued the Dueñas holding was not settled law, the extreme circumstances in
that case were distinguishable from defendant’s case, defendant forfeited his
claim by not objecting to the amounts imposed at sentencing, defendant’s
fines and fees were not “excessive” under an Eighth Amendment analysis,
and the court already analyzed defendant’s ability to pay by reviewing his
statement of assets at the sentencing hearing.
At the initial hearing held on November 7, 2019, the following colloquy
occurred:
“[DISTRICT ATTORNEY]: I ordered the transcript of the sentencing
hearing, and I received it just this week on Tuesday, but there is a
discrepancy between what was delivered to me and what the Minute Order
says. The Minute Order indicates that there was a financial hearing done by
the Court and that wasn’t part of the transcript that was provided. . . .
“THE COURT: Well, there was a financial hearing in the sense that
[deputy public defender] Ms. Hendry provided and the defendant provided me
with a statement of assets, and I considered the statement of assets in making
the determination to waive certain fines and fees. [¶] And I think what we’re
talking about right now are essentially what has always been, statutorily at
least, mandatory minimum fines and fees, that being the [$]40 and [$]30 and
the [$300] restitution fine. So from my perspective, I conducted a financial
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hearing because I waived – I waived attorney fees; I waived some of the other
fees as well.” (Italics added.)
As to defendant’s physical condition, the court stated: “My recollection
is that there is nothing about his physical condition that would prevent him
from working in prison. I waived the vast majority of the fines and fees we’re
talking about.” (Italics added.)
After hearing from defense counsel and the prosecutor, the court
continued the matter to December 10, 2019.
At the continued hearing on December 10, 2019, the trial court opened
with the following: “This is a motion to vacate the court operations
assessments. [¶] Maybe I think that we probably should sort of back up and
make sure the record is clear. As you both know the sentencing was on May
29th. And in that matter there was a Romero motion. Ultimately there was a
state prison commitment that this court issued. And I’ll note that the
Statement of Assets is part of the court file, and it’s my custom and habit as it
was in this particular case, to consider that Statement of Assets as part of my
decision about whether or not to waive any fines or fees. And the fact that the
Statement of Assets is in the file I know I reviewed it. And I -- actually I also
know that Miss Hendry always submits Statements of Assets for her clients
when they’re being sentenced. Not every defense lawyer does, but I know she
does very regularly. [¶] I can also see that I waived the Booking fee, the Pre-
sentence report fee, the attorney’s fees. The only fees I imposed were the $70
which was the $40 Court Security Fee, $30 Conviction Assessment, along
with the $300 restitution fine. Then, of course, I ordered restitution in an
amount to be determined. And I imposed those fees as I have. [¶] And I
always -- I always felt directed by the statutes that said these were not
waivable. And subsequently we’ve had a number of cases from the Court of
5
Appeals. The one that’s most well-known is the Duenas case which decided
that basically there was due process violation by not considering a
defendant’s ability to pay. At least in that case as the People point out in
their brief Duenas is a pretty unusual set of facts involving a defendant who
had definite physical health issues, was unemployed, and was not really
employable. . . . [¶] . . . [¶] So we are on now for, I just want to lay that sort of
ground work because really what we’re talking about is a motion now by the
defense to go a step further and waive both the $70 fine and the $300
restitution fine.” (Italics added.)
Defense counsel argued that although some courts have disapproved of,
or disagreed with the Dueñas case, the trial court should vacate the fees and
stay the fine because defendant “presented an extreme set of facts” like
Dueñas did. Defense counsel explained that defendant has a long history of
indigency, homelessness, and drug addiction. Also, since being sentenced,
defendant had developed some significant health issues due to an infection in
his jaw that required surgery. When the trial court asked defense counsel if
she had medical documentation, counsel said she would subpoena the
records. The trial court stated that if defendant’s medical issues were as she
described, then “that may get us closer to the Duenas situation.” (Italics
added.)
The trial court continued the matter to January 3, 2020, in order to
give defense counsel the opportunity to obtain defendant’s medical
documentation. At the January 3 hearing, defense counsel emphasized that
since defendant’s sentencing, defendant had received intensive medical
treatment stemming from complications he had with a tooth extraction.
Defense counsel stated that she had obtained the medical records which
showed that defendant had had a tooth extraction while in prison and a
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subsequent tooth infection required him to undergo jaw surgery. Defense
counsel stated that she had been unable to obtain the medical records from
the most recent facility in Stockton because that facility indicated that it did
not have any records for defendant.
The prosecutor asked the court to affirm its prior imposition of fines
and fees since defendant’s medical issues had arisen post-sentencing. Defense
counsel responded that although defendant did not have the medical issues at
the time of sentencing, there was evidence at that time to show that
defendant would not have the ability to find work due to the section 290 sex
offender registration requirement and his 20-year addiction to drugs and
alcohol.
The trial court denied the motion, explaining: “In Duenas, the
defendant was suffering from cerebral palsy and had medical issues that
persuaded the Appellate Court to basically apply [a] due process analysis to
the remaining fines and fees, which by way at least statutorily, those fees,
the $40 Court Security fee, $130 Criminal Conviction Assessment, and $300
Restitution Fine are not waivable statutorily. And there are cases that
disagree with Duenas . . . appl[ying] the due process analysis to those
particular fines and fees.” (Italics added.)
On February 14, 2020, defendant filed a second appeal (case
No. A159573), challenging the denial of his Dueñas motion. The appeals in
case Nos. A157603 and A159573 were subsequently consolidated for purposes
of briefing, oral argument, and decision.
DISCUSSION
Defendant contends the court operations and conviction assessments
should be vacated, and the execution of the restitution fine stayed, unless and
until the prosecution proves that defendant has the ability to pay. The People
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argue defendant’s claim is moot since the trial court considered his ability to
pay when it considered his statement of assets at the time of sentencing. The
People alternately assert that defendant has forfeited this claim because
sentencing in this case took place five months after Dueñas was decided, but
he lodged no objection to the fines and fees imposed. On the merits, the
People argue the restitution fine should be analyzed under the excessive fines
clause of the Eighth Amendment and contend the amount was not
constitutionally excessive. And, even if analyzed under a due process
analysis, the restitution fine was constitutionally imposed. Finally, the
People contend any error in imposing the criminal conviction assessment and
court security fee is harmless beyond a reasonable doubt.
1. Dueñas
In Dueñas, the court, relying on the principle that “a state may not
inflict punishment on indigent convicted criminal defendants solely on the
basis of their poverty,” held “due process of law requires [a] trial court
to . . . ascertain a defendant’s present ability to pay before it imposes” fines
and assessments. (Duenas, supra, 30 Cal.App.5th at pp. 1166, 1164.) The
facts presented in Dueñas were unusually compelling. Defendant, an
unemployed, homeless woman with cerebral palsy, supported her two
children while living on public aid. (Id. at pp. 1160–1161.) She lost her
driver’s license because she could not afford to pay her juvenile citations,
then acquired three misdemeanor convictions for driving without a license
because the accumulating criminal assessments and fines prevented her from
recovering her license. (Id. at p. 1161.) “Key to the [Dueñas] holding was its
concern for ‘the cascading consequences of imposing fines and assessments
that a defendant cannot pay,’ which ‘[t]he record in this matter [Dueñas]
8
illustrates.’ ” (People v. Caceres (2019) 39 Cal.App.5th 917, 924 (Caceres),
citing Dueñas, supra, 30 Cal.App.5th at p. 1163.)
2. Defendant Did Not Forfeit His Dueñas Claim
Under ordinary rules of appellate procedure, the failure to object to the
imposition of fees in the trial court forfeits the issue on appeal. (See People v.
Lowery (2020) 43 Cal.App.5th 1046, 1054 [noting the “traditional rule that a
party must raise an issue in the trial court if they would like appellate
review”]; see also People v. Aguilar (2015) 60 Cal.4th 862, 864 [“the appellate
forfeiture rule applies to challenges to fees imposed at sentencing”].) After
Dueñas was issued in January 2019, appellate courts have reiterated the
requirement that a defendant must challenge the imposition of fines and fees
in the trial court on grounds of inability to pay in order to preserve the issue
on appeal. (See People v. Cowan (2020) 47 Cal.App.5th 32, 50, review granted
June 17, 2020, S261952 [“upon proper objection, the court must hold a
hearing at which defendant will have an opportunity to bear his burden of
proof on the issue of ability to pay” (italics added)]; People v. Kopp (2019)
38 Cal.App.5th 47, 95, review granted Nov. 13, 2019, S257844 [agreeing with
Dueñas to the extent it holds that “due process ‘requires the trial court to
conduct an ability to pay hearing and ascertain a defendant’s ability to pay
before it imposes court facilities and court operations assessments . . .’ if the
defendant requests such a hearing” (italics added)]; People v. Frandsen (2019)
33 Cal.App.5th 1126, 1154 [“Given that the defendant is in the best position
to know whether he has the ability to pay, it is incumbent on him to object to
the fine and demonstrate why it should not be imposed.”].)
Sentencing in this case took place in May 2019, five months after
Dueñas was decided. Given that Dueñas was already on the books by the time
defendant was sentenced, the ordinary waiver rules apply to his first appeal
9
in case No. A157603. (See, e.g., People v. Aguilar, supra, 60 Cal.4th at p. 864
[failure to object to trial court fees precludes the defendant’s appellate
challenge]; People v. Trujillo (2015) 60 Cal.4th 850, 858–860 [failure to object
to fees because of defendant’s inability to pay forfeits the challenge]; People v.
McCullough (2013) 56 Cal.4th 589, 590–591 [failure to object to sufficiency of
evidence supporting a booking fee forfeits the issue on appeal]; People v.
Nelson (2011) 51 Cal.4th 198, 227 [failure to object to $10,000 restitution fine
on inability to pay grounds forfeits the challenge]; People v. Avila (2009)
46 Cal.4th 680, 729 [failure to assert that court must consider an inability to
pay when imposing more than the statutory minimum and failure to adduce
evidence of an inability to pay forfeits the challenge].)
However, as noted, after filing his notice of appeal in case No. A157603,
defendant filed his Dueñas motion pursuant to section 1237.2 3 in the trial
court, which the court considered and denied. Defendant contends, and the
People do not appear to claim otherwise, that the trial court had jurisdiction
pursuant to section 1237.2 to hear the motion notwithstanding the pending
appeal. Thus, having raised his claim in the trial court, we conclude
defendant has preserved his Dueñas claim for appellate review.
3 Section 1237.2 provides: “An appeal may not be taken by the
defendant from a judgment of conviction on the ground of an error in the
imposition or calculation of fines, penalty assessments, surcharges, fees, or
costs unless the defendant first presents the claim in the trial court at the
time of sentencing, or if the error is not discovered until after sentencing, the
defendant first makes a motion for correction in the trial court, which may be
made informally in writing. The trial court retains jurisdiction after a notice
of appeal has been filed to correct any error in the imposition or calculation of
fines, penalty assessments, surcharges, fees, or costs upon the defendant's
request for correction. This section only applies in cases where the erroneous
imposition or calculation of fines, penalty assessments, surcharges, fees, or
costs are the sole issue on appeal.”
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3. The Court Did Not Violate Defendant’s Constitutional Rights
Constitutional challenges after Dueñas were considered by this
Division, opting to address constitutional challenges to fines and fees based
on assertions of inability to pay under the Eighth Amendment and article I,
section 17 of the California Constitution. (People v. Cowan,
supra, 47 Cal.App.5th at p. 42; see Caceres, supra, 39 Cal.App.5th at pp. 923,
926 [Dueñas due process analysis did “not justify extending its holding
beyond those facts”]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1060
(Aviles) [Dueñas wrongly decided; constitutional challenge to imposition of
fines, fees, and assessments should be based on excessive fines clause of
Eighth Amendment]; People v. Hicks (2019) 40 Cal.App.5th 320, 325–329
(Hicks), review granted Nov. 26, 2019, S258946 [Dueñas wrong to conclude
due process considerations may bar assessments, fines, and fees; such costs
and fines do not deny criminal defendants access to courts]; People v. Kopp,
supra, 38 Cal.App.5th at pp. 95–97 [rejecting Dueñas analysis with respect to
restitution fines, which should be analyzed under excessive fines clause, but
following Dueñas as to court fees and assessments].) ) However, as we
explain, on this record, whether analyzed as a due process issue or an
excessive fine issue, defendant’s claim fails on the merits.4
A. Due Process
Relying on Dueñas, defendant argues the trial court violated his due
process rights when it imposed fines and fees without an ability to pay
hearing. We are not persuaded.
Defendant was not denied access to the courts or prohibited from
presenting a defense. (See Griffin v. Illinois (1956) 351 U.S. 12, 18–20 [due
4Similarly, we need not and do not address the People’s contention that
defendant’s appeal is moot.
11
process and equal protection require a state to provide criminal defendants
with a free transcript for use on appeal]; People v. Kingston (2019)
41 Cal.App.5th 272, 281; Hicks, supra, 40 Cal.App.5th at p. 326.) Defendant
was not incarcerated because he was unable to pay prior fees, fines or
assessments. (See Bearden v. Georgia (1983) 461 U.S. 660, 672–673
[fundamental fairness is violated if a state does not consider alternatives to
imprisonment if a probationer in good faith cannot pay a fine or restitution];
Kingston, at pp. 281; Hicks, at p. 326.)
More importantly, the record reflects the trial court did consider
defendant’s ability to pay at the time of sentencing and again by way of the
section 1237.2 motion, which the court considered and denied. Prior to
imposing the challenged fines and fees, the trial court had reviewed
defendant’s sentencing memorandum and statement of assets, which
provided information regarding defendant’s work history, education, living
situation, as well as his debts and lack of financial resources beyond public
assistance for food and help from his mother. The trial court also had
reviewed the probation department’s presentencing report, which
recommended that defendant be ordered to pay a $40 court security fee
(§ 1465.8), a $182 jail booking fee (set by Napa County); a $30 criminal
conviction assessment fee (Gov. Code, § 70373), a $560 presentence report fee
(§ 1203.1b), a $300 restitution fine (§ 1202.4), and a suspended $300 parole
revocation fine. The trial court, however, waived the booking and presentence
report fees, as well as attorney fees in the amount of $600. Accordingly, by
waiving various fines and fees, the trial court impliedly considered
defendant’s ability to pay prior to imposing the disputed fines and fees.
Although the trial court’s unilateral consideration of defendant’s
inability to pay fines and fees at sentencing does not perfectly substitute for
12
an actual hearing, the trial court subsequently considered the issue at no less
than three hearings. At the initial hearing held on November 7, 2019, the
court expressly stated it had considered defendant’s “statement of assets in
making the determination to waive certain fines and fees.” As to defendant’s
physical condition, the court stated: “My recollection is that there is nothing
about his physical condition that would prevent him from working in prison. I
waived the vast majority of the fines and fees we’re talking about.”
At the next hearing held on December 10, 2019, the court reiterated
that it had reviewed the statement of assets, noting that it was the court’s
“custom and habit . . . to consider that Statement of Assets as part of [its]
decision about whether or not to waive any fines or fees.” After defense
counsel advised the court that defendant had developed some significant
health issues due to an infection in his jaw that required surgery, the court
continued the matter to allow defense counsel the opportunity to obtain
defendant’s medical records.
At the continued hearing on January 3, 2020, defense counsel advised
the court she had received medical records documenting defendant’s tooth
extraction and resulting complications that required surgery. Defense
counsel, however, did not have any records regarding defendant’s subsequent
treatment because the hospital she had subpoenaed indicated it did not have
any records for defendant. Counsel represented that defendant “continues to
have medical issues that require intensive treatment,” but the most recent
facility in Stockton had not responded to her subpoena. Counsel added that
that “if the court wants that information, then I am going to have to ask for a
continuance, maybe one more week, to follow up with them . . . .” Counsel
further represented that although defendant was not suffering from these
medical issues at the time of sentencing, other factors were present that the
13
court could rely on to determine defendant “won’t have the ability to find
work, and [he] should not be required to pay those fines and fees.” Those
factors included defendant’s “290 registration, and his 20-year addiction to
drugs and alcohol.”
In denying the motion, the trial court explained that it found
defendant’s case presented a “distinguishable situation when compared to
Duenas.” (Italics added.) The court addressed the varying approaches to the
fines and fees there at issue. The court noted that it was not prepared to
change the May 29 order under which the fines and fees would remain in
effect. Although the trial court failed to explain whether its order was made
pursuant to an ability to pay analysis, or otherwise, what is clear is that
defendant was given the opportunity to appear and present evidence
regarding his inability to pay, which the court considered and ultimately
rejected.
B. Excessive Fines Clause
Defendant asserts that imposition of the fees, fines and assessments
imposed against him violated the excessive fines clause of the Eighth
Amendment.
“The touchstone of the constitutional inquiry under the Excessive Fines
Clause is the principle of proportionality: The amount of the forfeiture must
bear some relationship to the gravity of the offense that it is designed to
punish.” (U.S. v. Bajakajian (1998) 524 U.S. 321, 334 (Bajakajian).) “The
California Supreme Court has summarized the factors in Bajakajian to
determine if a fine is excessive in violation of the Eighth Amendment: ‘(1) the
defendant’s culpability; (2) the relationship between the harm and the
penalty; (3) the penalties imposed in similar statutes; and (4) the defendant’s
ability to pay.’ ” (Aviles, supra, 39 Cal.App.5th at p. 1070.) While ability to
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pay may be part of the proportionality analysis, it is not the only factor.
(Bajakajian, at pp. 337–338.)
According to Bajakajian, two considerations are particularly relevant
in deriving a constitutional excessiveness standard. First, “judgments about
the appropriate punishment for an offense belong in the first instance to the
legislature.” (Bajakajian, supra, 524 U.S. at p. 336.) Second, “any judicial
determination regarding the gravity of a particular criminal offense will be
inherently imprecise. Both of these principles counsel against requiring strict
proportionality between the amount of a punitive forfeiture and the gravity
of a criminal offense, and we therefore adopt the standard of gross
disproportionality articulated in our Cruel and Unusual Punishments Clause
precedents.” (Ibid.)
In the instant case, defendant filled up a shopping basket and then
brazenly walked out of the store without paying for the items. Although the
loss to the store was de minimis ($192.79), it does not change the nature of
the underlying theft. Defendant’s charges, allegations and plea agreement
reflected not only his underlying conduct, but also the seriousness of his
criminal history. Under the terms of the plea agreement, the court imposed
the low term, plus his strike prior; the court subsequently waived the bulk of
the fines, fees, and attorney fees. The fines and fees imposed in this case,
which amount to $370, are not grossly disproportionate to defendant’s
culpability. (Aviles, supra, 39 Cal.App.5th at p. 1070.)
4. Any Constitutional Violation Was Harmless
Finally, on the facts of this case, any potential error was harmless
beyond a reasonable doubt. (People v. Jones (2019) 36 Cal.App.5th 1028,
1035.)
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Defendant claims that he is “manifestly unable” to pay the fees and
restitution fine because he “lacks any significant job history; has no assets;
has debts; has a lengthy history of incarceration, drug addiction, and
homelessness; and is a registered sex offender.” Additionally, he asserts the
“severity of his physical condition”—an “infection resulting the removal of
some of his jawbone; six weeks of intravenous antibiotics to treat the
remaining infection; and additional surgery to remove more jawbone and
replace it with a metal plate”—further limits his ability to pay the fines and
fees imposed. Defendant, however, fails to establish how this “condition”
hinders his ability to work either in prison or upon release.
“ ‘Ability to pay does not necessarily require existing employment or
cash on hand.’ [Citation.] ‘[I]n determining whether a defendant has the
ability to pay a restitution fine, the court is not limited to considering a
defendant’s present ability but may consider a defendant’s ability to pay in
the future.’ [Citation.] This include[s] the defendant’s ability to obtain prison
wages and to earn money after his release from custody.” (People v.
Hennessey (1995) 37 Cal.App.4th 1830, 1837; see People v. Staley (1992)
10 Cal.App.4th 782, 783 [when the trial court considers ability to pay fines or
fees, its determination may be made based on the person’s ability to earn
where he or she has no physical, mental or emotional impediment which
precludes the person from finding and maintaining employment once his or
her sentence is completed].)
Defendant was 40 years old at the time of sentencing and had no
known dependents. Although he may not have had a “significant”
employment record, he has held several jobs in the past and has a high school
equivalency diploma. He has taken numerous college classes, including five
business classes. The record does show that prior to his arrest, defendant was
16
homeless and received a food allowance benefit. He also has a lengthy history
of drug addiction. However, he has a strong family support system.
Defendant’s sister described him as “hardworking” when “clean headed.” She
believed that, with an appropriate drug treatment program, defendant could
“become a productive and contributing member of society.”
Thus, unlike in Dueñas, there is evidence from which it can be inferred
that defendant has the capacity to pay the minimal fine and fees imposed by
the court. (See Aviles, supra, 39 Cal.App.5th at p. 1076 [court “can infer
defendant . . . has the ability to pay the fines and fees imposed upon him from
probable future wages”]; People v. Johnson (2019) 35 Cal.App.5th 134, 139–
140 [any Dueñas error was harmless given long prison term and no evidence
of inability to work].)
Accordingly, the record indicates the total amount of the restitution
and other fines and assessments will not constitute a financial burden or
hardship anything like the debt imposed in Dueñas. In short, any error was
harmless.
DISPOSITION
The judgment is affirmed.
NADLER, J.
WE CONCUR:
POLLAK, P. J.
BROWN, J.
People v. McGinnis (A159573)

Judge of the Superior Court of California, County of Sonoma, assigned
by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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