People v. Moreno CA1/2 ( 2022 )

Filed 8/25/22 P. v. Moreno CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 TWO
THE PEOPLE,
Plaintiff and Respondent,
A164098
v.
DAVID MORENO, (Alameda County
Super. Ct. No. 19CR009196)
Defendant and Appellant.
David Moreno appeals from a judgment after he pleaded no contest to
two counts of sodomy by force or fear with a child under the age of 14 (Pen.
Code, § 286, subd. (c)(2)(B))1 and was sentenced to 20 years in prison.
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Moreno’s
sole contention on appeal is that the trial court erred and abused its
discretion when it imposed a $5,000 restitution fine after denying his request
for a hearing on his ability to pay it. Relying on cases criticizing Dueñas, the
People say, in effect, an ability-to-pay hearing on the fine was not mandated.
We hold under the circumstances here the trial court should not have
imposed the fine without allowing Moreno, upon his request, to present
evidence and argument on his ability to pay. We therefore remand for the
trial court to hold an ability-to-pay hearing and otherwise affirm.
1 Undesignated statutory references are to the Penal Code.
1
BACKGROUND
On September 23, 2020, Moreno was charged by information with two
counts of sexual intercourse or sodomy with a child under the age of 10
(§ 288.7, subd. (a)) (counts 1 and 2); two counts of oral copulation or sexual
penetration of a child under the age of 10 (§ 288.7, subd. (b)) (counts 3 and 4);
oral copulation of a child under the age of 14 and more than 10 years younger
than Moreno (§ former 288a, subd. (c)(1)) (count 5); sodomy with a child
under the age of 14 and more than 10 years younger than Moreno (§ 286,
subd. (c)(1)) (count 6); and sending harmful material to a minor with sexual
intent (§ 288.2, subd. (a)(2)) (count 7). The information alleged as
enhancements that counts 1 through 6 were one of several offenses involving
the same victim on separate occasions (§ 667.6, subds. (c) & (d)).
On August 19, 2021, Moreno entered into a negotiated plea bargain
under which he pleaded no contest to two counts of sodomy by force or fear
with a child under the age of 14 (§ 286, subd. (c)(2)(B)), charges that were
reasonably related to counts 1 and 2. The remaining counts and
enhancements were dismissed.
On November 1, the trial court sentenced Moreno to 20 years in prison.
It also ordered Moreno to pay a $5,000 restitution fine (§ 1202.4, subd. (b)); a
$5,000 parole revocation restitution fine, stayed pending successful
completion of parole (§ 1202.45); an $80 court operations assessment
(§ 1465.8); a $60 criminal conviction assessment (§ Gov. Code, § 70373); and a
$500 sexual offender fine (§ 290.3).
According to the presentencing probation report, Moreno was then 61
years old. Prior to his arrest in June 2019, he was self-employed as a house
painter for ten years, earning around $60,000 annually. In the 30 years
before that, Moreno worked various construction jobs. The probation report
2
attached letters from Moreno’s daughter and former wife stating Moreno
regularly sent money to family in Guatemala whenever he had extra money
to give. Moreno, however, reported he had a $200 monthly car payment and
owed $25,000 in medical bills. As to Moreno’s health, Moreno had been
infected with COVID-19 on three occasions, with the most recent incident
occurring in the month before sentencing. Moreno continued to experience
lingering COVID-19 symptoms, including headaches, fatigue, bone and nerve
pain, and lack of focus.
At sentencing, defense counsel cited Moreno’s indigence and requested
that the court impose the statutory minimum restitution amount of $300
(§ 1202.4, subd. (b)(1)). If the court were inclined to impose a greater
amount, counsel stated, “I would ask . . . the Court [to] give us an ability to
pay hearing under Dueñas.”
The court responded as follows: “The Court is not persuaded by the
Dueñas case. [¶] . . . [¶] I don’t know if you are entitled to it. Can you give
me some authority? I understand your position on Dueñas, I’m not going to
follow Dueñas, I don’t think Dueñas provides for that. I don’t have cases
subject to Dueñas that provides for that. [¶] So, if you want to pursue that I
think that you can, but I’m not inclined to give you a date today for that, I
don’t believe that that applies.”
DISCUSSION
Moreno argues “the trial court erred and abused its discretion by
denying [his] request for a hearing on his ability to pay” before imposing the
$5,000 restitution fine. Moreno therefore asks us to reverse the restitution
order and remand the matter to allow the court to hold an ability-to-pay
hearing.
Dueñas and Subsequent Cases
Moreno’s arguments are fundamentally premised on Dueñas, supra,
3
30 Cal.App.5th 1157, whose facts are now well known. Velia Dueñas was a
homeless, indigent mother of two who suffered from cerebral palsy, and who
subsisted primarily on public aid. She was on her fourth conviction for
driving with a suspended license, against a background of being unable to
pay previous court-ordered assessments that had led to more jail time and
license suspensions. Dueñas was placed on probation and again ordered to
pay various mandatory fees and assessments. She requested a hearing to
determine her ability to pay the fees, and the court concluded it had no
discretion to waive the assessments or the fees. (Id. at pp. 1162–1163.)
The Court of Appeal reversed, concluding that “due process of law
requires the trial court to conduct an ability to pay hearing and ascertain a
defendant’s present ability to pay before it imposes court facilities and court
operations assessments under Penal Code section 1465.8 and Government
Code section 70373.” The Court of Appeal also held that, although the trial
court is required by Penal Code section 1202.4 to impose a restitution fine,
“the execution of any restitution fine imposed under this statute must be
stayed unless and until the trial court holds an ability to pay hearing and
concludes that the defendant has the present ability to pay the restitution
fine.” (Dueñas, supra, 30 Cal.App.5th at p. 1164.)
Dueñas has spawned a plethora of cases, some of which have held that
Dueñas was wrongly decided, in part or in whole. One of those cases is
People v. Kopp (2019) 38 Cal.App.5th 47, 95–97 (Kopp), review granted
November 13, 2019, S257844, which rejected Dueñas’s analysis with respect
to restitution fines, but followed it as to court fees and assessments.
The Supreme Court granted review in Kopp, supra, 38 Cal.App.5th
47 to resolve the following issues: “Must a court consider a defendant’s
ability to pay before imposing or executing fines, fees, and assessments? If
4
so, which party bears the burden of proof regarding defendant’s inability to
pay?”2
Contentions on Appeal
As noted, Moreno, invoking Dueñas, argues the trial court erred and
abused its discretion in denying his request for an ability-to-pay hearing
before it imposed the $5,000 restitution fine.
In the introduction of their respondent’s brief, the People assert the
following: “Relying on [Dueñas], [Moreno] argues that the trial court abused
its discretion by ordering him to pay fines and assessments without first
conducting a hearing to determine whether he had the ability to pay.
Although [Moreno] was entitled to a hearing upon his request, any error in
denying his request was harmless beyond a reasonable doubt in light of
evidence that he was able to pay the ordered fines and assessments.” This
assertion is repeated several times in headings and earlier portions of the
People’s brief.
Despite what appears to be a concession to Dueñas error as to all of the
fines and assessments imposed in this case, the People’s substantive
2 As quoted above, in response to Moreno’s request for an ability-to-pay
hearing, the trial court commented that it was “not persuaded by the Dueñas
case” and it did not “know if [Moreno was] entitled to [a hearing].” We note it
is fundamental that a court of appeal decision must be followed by all trial
courts, regardless of which appellate district rendered the opinion and
whether a trial court believes the court of appeal case was wrongly decided.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455–456;
Cuccia v. Superior Court (2007) 153 Cal.App.4th 347, 353–354.) However,
such a rule “has no application where there is more than one appellate court
decision, and such appellate decisions are in conflict. In such a situation, the
[trial court] can and must make a choice between the conflicting decisions.”
(Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 456.)
Consistent with this, the trial court appears to have sided with the courts
rejecting Dueñas.
5
discussion of the issues later in their brief reveals they are not making such a
broad concession after all—rendering their arguments somewhat confusing.
It turns out the People actually dispute the merits of Moreno’s assertion that
he was entitled under Dueñas to an ability-to-pay hearing with respect to his
restitution fine, and in fact concede a due process error only with respect to
the court operations and criminal conviction assessments.
Specifically, the People argue first that the Eighth Amendment’s
excessive fines clause, not the due process analysis articulated in Dueñas, is
the “proper analytic framework” within which we should evaluate the
restitution fine. In so arguing, the People implicitly ask us to reject Dueñas
at least with respect to the restitution fine. Second, the $5,000 restitution
fine, the People maintain, was not unconstitutionally excessive. Third, the
People argue that “[e]ven if analyzed under due process principles,” the
restitution fine was proper. Lastly, the People appear to concede a due
process violation in the imposition of the court operations and criminal
conviction assessments without inquiry into Moreno’s ability to pay but argue
the error was harmless beyond a reasonable doubt because the record
indicates Moreno was able to pay the assessments.3
We address the People’s contentions as they are presented in the
substantive legal argument section of their brief, starting from Section C., 1,
on page 15. We further note that although the People tackle the court
operations and conviction assessments in addition to the restitution fine,
Moreno’s briefing addresses only the restitution fine. We thus confine our
analysis to the restitution fine. (Cf. People v. Santos (2019) 38 Cal.App.5th
923, 929 [where defendant raised only court operations and criminal
3The People state they “do[ ] not seek to uphold the imposition of these
assessments on those who have no ability to pay.”
6
assessments in briefs, issue was limited to whether trial court had to
determine ability to pay those assessments under Dueñas].)
A Remand on Ability to Pay Is Appropriate
Citing Kopp, supra, 38 Cal.App.5th 47, the People argue the propriety
of the restitution fine is to be evaluated not under Dueñas’s due process
analysis, but by compliance with the Eighth Amendment’s prohibition on
excessive fines. In Kopp, the Court of Appeal explained: “We disagree that
[the Dueñas] approach should apply to all punitive fines [such as restitution
fines] in the first instance. Instead, because these fines are intended to
punish defendants, we agree with the People that a defendant should
challenge such fines under the excessive fines clause of the Eighth
Amendment of the federal Constitution and article I, section 17 of the
California Constitution. Put differently, there is no due process requirement
that the court hold an ability to pay hearing before imposing a punitive fine
and only impose the fine if it determines the defendant can afford to pay it.”
(Kopp, at pp. 96–97, fn. omitted.)
The Kopp court went on to discuss the Eighth Amendment’s prohibition
of excessive fines, concluding with the following four considerations,
identified by the United States Supreme Court and adopted by the California
Supreme Court, for analyzing whether a fine is unconstitutionally
disproportionate: “(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.” (Kopp, supra, 38 Cal.App.5th
at p. 97, citing United States v. Bajakajian (1998) 524 U.S. 321, 337–338
(Bajakajian); People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005)
37 Cal.4th 707, 728 (Lockyer); see People v. Cowan (2020) 47 Cal.App.5th 32,
47–48, review granted June 17, 2020, S261952 [concluding that “ability to
pay is an element of the excessive fines calculus under both the federal and
7
state Constitutions . . .”].) Although the Kopp defendants did not raise an
Eighth Amendment challenge to the restitution fines below, the court ordered
that on remand, the defendants, if they wished, could challenge the fines
upon a consideration of all four relevant factors. (Kopp, at p. 98, fn. 25.)
In light of the above, it is apparent Moreno was entitled to the hearing
he requested whether Dueñas or Kopp applies: the former requires such a
hearing (Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1172); the latter holds
that a defendant’s ability to pay is a factor that must be considered along
with the other three Bajakajian factors in determining whether a fine is
proportionate to the circumstances or is excessive. (See Kopp, supra,
38 Cal.App.5th at p. 97, citing Bajakajian, supra, 524 U.S. at pp. 337–338;
Lockyer, supra, 37 Cal.4th at p. 728.) Indeed, as noted by the California
Supreme Court in its analysis of the constitutionality of a civil penalty, “It
makes no difference whether we examine the issue as an excessive fine or a
violation of due process” because the penalty was “subject both to the state
and the federal constitutional bans on excessive fines as well as state and
federal provisions barring violations of due process.” (Lockyer, at p. 728.)
Finally, we disagree with the People that the record establishes beyond
a reasonable doubt that Moreno was able to pay the $5,000 restitution fine.
Given that Moreno was denied an opportunity to present evidence on ability
to pay, and the court failed to consider that issue altogether, the record is too
poorly developed for us to resolve it here in the first instance. For example,
while the People note Moreno previously earned $60,000 in his last job, he
stopped working when he was arrested in June 2019, over two years before
he was sentenced. Also, the People acknowledge that Moreno had a $200
monthly car payment and owed $25,000 in medical bills. We therefore do not
know whether Moreno has any remaining savings or assets. We also do not
8
know Moreno’s potential to earn wages while in prison. (See People v.
Castellano (2019) 33 Cal.App.5th 485, 490–491 [court may consider a
prisoner’s potential prison pay in determining ability to pay]; see also
People v. Taylor (2019) 43 Cal.App.5th 390, 402 [“ ‘[E]very able-bodied’
prisoner is required to work”], citing § 2700; Cal. Code Regs., tit. 15, § 3040,
subd. (a).) While the People assert Moreno “was able-bodied and capable of
performing some form of prison vocational work,” Moreno was 61 years old
when convicted and is now 62. The record also indicates Moreno had COVID-
19 on three occasions, and he continued to experience lingering symptoms as
of the sentencing hearing. Thus, while it may be that Moreno’s health
problems will not prevent him from working in prison, we are reluctant to
rely on such supposition to resolve a factual issue Moreno had no opportunity
to dispute.
In short, because the federal and California constitutions oblige a court
to consider ability to pay in determining whether a fine is excessive or
deprives a defendant of due process—a consideration the trial court here
declined to address—the court must consider that factual issue in the first
instance.4 Accordingly, we remand the matter for the trial court to consider
Moreno’s evidence and argument on ability to pay.
DISPOSITION
The order that Moreno pay a $5,000 restitution fine is vacated, and the
matter is remanded for a hearing on ability to pay. In all other respects, the
4 Further, we note the trial court imposed a restitution fine greater
than the statutory minimum of $300. (§ 1202.4, subd. (b)(1).) We remind the
court that the statute governing restitution fines provides that “[i]n setting
the amount of the fine pursuant to subdivision (b) in excess of the minimum
fine pursuant to paragraph (1) of subdivision (b), the court shall consider any
relevant factors, including, but not limited to, the defendant’s inability to
pay . . . .” (§ 1202.4, subd. (d), italics added.)
9
judgment is affirmed.
10
_________________________
Richman, Acting P. J.
We concur:
_________________________
Stewart, J.
_________________________
Mayfield, J. *
People v. Moreno (A164098)
*Judge of the Mendocino Superior Court, Judge Cindee Mayfield, sitting as
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
11