People v. Maiden CA2/4 ( 2022 )

Filed 8/12/22 P. v. Maiden CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B313407
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA148039)
v.
DESHAWN MAIDEN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael Shultz, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Michael C. Keller and Amanda
V. Lopez, Deputy Attorneys General, for Plaintiff and
Respondent.
____________________________________________
INTRODUCTION
In the proceedings below, the trial court imposed on
appellant Deshawn Maiden $700 in restitution fines and
$560 in fees. On appeal, appellant contends the court erred
in failing to stay the fines and in imposing the fees because
the court had no basis to find he could pay them. We
conclude that appellant forfeited this argument by failing to
present evidence below of his alleged inability to pay, and
that in any case, the trial court was justified in finding
appellant could pay from his prison wages. We therefore
affirm.
STATEMENT OF RELEVANT FACTS
In January 2020, appellant was charged by
information with one count of murder; the information
alleged that appellant committed the murder with a firearm
and for the benefit of, at the direction of, and in association
with a gang. In June 2021, as part of a plea agreement in
which the murder count would be dismissed, appellant pled
no contest to voluntary manslaughter, which was added to
the information, and admitted to using a firearm while
committing the offense.
2
Finding it was required to resentence appellant on a
previous case in which he had pled no contest to seven felony
robbery counts, the court sentenced appellant to a total of 36
years and 4 months in prison for both cases, but noted he
was entitled to a total credit of 2,402 days. Appellant was
also ordered to pay $700 in restitution fines, $320 in court
operations assessments, and $240 in criminal conviction
assessments. Appellant stipulated that he should be
required to pay $5,205 to the victim’s mother and $5,000 to
the victim compensation board.1
Appellant’s counsel requested that the court “suspend
not the actual restitution but the fees because he is indigent
and pursuant to People vs. Dueñas, he doesn’t have the
ability to pay those. He has been in custody since at least
2015. So I am requesting the court find he doesn’t have the
ability to pay for that especially because there will be a large
amount of restitution to be paid in this case which will be
taken out of his prison earnings.” Appellant presented no
evidence of his indigency. The court denied the request,
finding appellant “does earn money in prison” and “will be
able to earn and pay off the restitution fine.” Appellant
timely appealed.
1 While appellant stipulated to the amount payable to the
victim’s mother, his counsel refused to do so without seeing
documentation supporting the amount. The record is silent on
whether counsel stipulated at a later time.
3
DISCUSSION
Appellant contends the court erred in failing to stay
the $700 in restitution fines and in imposing the $560 in fees
because the court lacked a basis to find he could pay them.
We conclude appellant forfeited this argument by failing to
present evidence of his indigency.
In People v. Dueñas (2019) 30 Cal.App.5th 1157, our
colleagues in Division Seven found unconstitutional a court’s
imposition of fines and fees on an indigent and homeless
mother who was guilty of driving with a suspended license
and who lacked the ability to pay. (Id. at 1160.) Dueñas did
not specify who bore the burden of proving the defendant’s
ability to pay. Two months later, in People v. Castellano
(2019) 33 Cal.App.5th 485, the same court held that the
defendant bore the burden. (Id. at 490 [“a defendant must in
the first instance contest in the trial court his or her ability
to pay the fines, fees and assessments to be imposed and at a
hearing present evidence of his or her inability to pay the
amounts contemplated by the trial court”].) Other courts
have agreed. (See, e.g., People v. Kopp (2019) 38 Cal.App.5th
47, 96, review granted Nov. 13, 2019, S257844 [“it is
Appellants’ burden to make a record below as to their ability
to pay these assessments”]; People v. Cowan (2020) 47
Cal.App.5th 32, 49, review granted Jun. 17, 2020, S261952
[defendant bears burden of proof to demonstrate inability to
pay].) Assuming, without deciding, that People v. Dueñas
4
was correctly decided, we agree that it is the defendant who
bears the burden of proof.2
While appellant’s counsel asserted he was indigent, no
evidence was presented to support the contention.
Accordingly, appellant forfeited any challenge to his
sentence premised on his inability to pay. (See People v.
Avila (2009) 46 Cal.4th 680, 729 [defendant forfeited
argument trial court erred in imposing fine without
considering ability to pay by failing to adduce evidence of
inability].)
Moreover, were we to consider appellant’s argument,
we would reject it. Appellant’s counsel implied that
appellant was earning wages in prison by pointing out that
court-ordered restitution would be deducted from appellant’s
“prison earnings.” “‘“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. Aviles (2019) 39
2 We recognize that our Supreme Court is currently
reviewing both issues. (People v. Kopp, supra, Supreme Court
Mins. Nov. 13, 2019 [“The issues to be briefed and argued are
limited to the following: Must a court consider a defendant’s
ability to pay before imposing or executing fines, fees, and
assessments? If so, which party bears the burden of proof
regarding defendant’s inability to pay?”].)
5
Cal.App.5th 1055, 1076.) Appellant was a 26-year-old man
with no identified infirmities precluding him from earning
wages while imprisoned and thereafter. The trial court did
not err in inferring appellant’s ability to pay from his
probable future wages, including his prison earnings. (See
ibid.)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
COLLINS, J.
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