People v. Lowery ( 2020 )

Filed 1/2/20
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F076484
Plaintiff and Respondent,
(Super. Ct. Nos. 16CR-02612A,
v. 16CR-02612B)
GREGORY LAMAR LOWERY et al.,
OPINION
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Merced County. Jeanne
Schechter, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant Gregory Lamar Lowery.
John Steinberg, under appointment by the Court of Appeal for Defendant and
Appellant Bryan Joseph Green.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Catherine
Chatman, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts I, II and IV of the Discussion.
INTRODUCTION
On April 11, 2016, appellants Gregory Lamar Lowery and Bryan Joseph Green
robbed three separate businesses in the area of Merced, California. They were both
armed with firearms, and four victims had guns pointed at them during the various
robberies. A jury convicted both appellants of four counts of second degree robbery
(Pen. Code, § 211;1 counts 1-4) and for being felons in possession of a firearm
(§ 29800, subd. (a)(1); count 5). The jury found true alleged firearm enhancements
(§ 12022.53, subd. (b)). The trial court found true that Green had suffered a prior
serious felony conviction.
Lowery received an aggregate prison term of 24 years eight months. This
consisted of an upper term of five years in count 2 (second degree robbery), along with
a 10-year firearm enhancement (§ 12022.53, subd. (b)). Consecutive one-third terms
were imposed for the three other robbery convictions (counts 1, 3-4), along with
respective firearm enhancements in counts 3 and 4.2 The court imposed a concurrent
middle term of two years for being a felon in possession (count 5). The court imposed a
restitution fine of $6,900 (§ 1202.4, subd. (b)(1)); a parole revocation restitution fine of
$6,900 (§ 1202.45, subd. (a), which was stayed pending successful completion of
parole); a court operations assessment of $200 (§ 1465.8, subd. (a)(1)); and a criminal
conviction assessment of $150 (Gov. Code, § 70373, subd. (a)(1)). The court did not
ascertain Lowery’s ability to pay these fees, fines and assessments prior to imposing
them.3
1 All future statutory references are to the Penal Code unless otherwise noted.
2 A firearm enhancement was not alleged against Lowery in count 1.
3 A restitution fine (§ 1202.4, subd. (b)(1)) represents punishment. (People v.
Hanson (2000) 23 Cal. 4th 355, 361–363.) In contrast, a court operations assessment
(§ 1465.8, subd. (a)(1)) and a criminal conviction assessment (Gov. Code, § 70373,
subd. (a)(1)) are not considered punishment. (People v. Alford (2007) 42 Cal. 4th 749,
2.
Green received an aggregate prison term of 41 years. This consisted of an upper
term of five years in count 1 (second degree robbery), doubled because of a strike prior,
along with a 10-year firearm enhancement (§ 12022.53, subd. (b)). A five-year
enhancement was imposed in count 1 under section 667, subdivision (a)(1).
Consecutive one-third terms were imposed for the three other robbery convictions,
along with their respective firearm enhancements. The court imposed a concurrent
middle term of two years for being a felon in possession (count 5). The court imposed a
restitution fine of $10,000 (§ 1202.4, subd. (b)(1)); a parole revocation restitution fine
of $10,000 (§ 1202.45, subd. (a), which was stayed pending successful completion of
parole); a court operations assessment of $200 (§ 1465.8, subd. (a)(1)); and a criminal
conviction assessment of $150 (Gov. Code, § 70373, subd. (a)(1)). The court did not
ascertain Green’s ability to pay these fees, fines and assessments prior to imposing
them.4
Appellants contend this matter must be remanded so the sentencing court may
exercise its discretion to strike or dismiss their respective firearm enhancements
pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620). Green
further asserts remand is required for the court to exercise its discretion to strike his
five-year sentence enhancement (§ 667, subd. (a)(1)) pursuant to Senate Bill No. 1393
(2017-2018 Reg. Sess.) (Senate Bill 1393). We conclude a remand is not warranted for
either of these issues. Based on the sentencing record, it is abundantly clear the court
would not have exercised its discretion to strike or dismiss any of these enhancements.
757 [§ 1465.8]; People v. Knightbent (2010) 186 Cal. App. 4th 1105, 1112 [Gov. Code,
§ 70373].)
4 Pursuant to section 1202.4, subdivision (f), the court ordered appellants to pay
restitution of $9,450 to three victims. The court reserved jurisdiction as to two
remaining victims. This obligation was ordered “joint and several.” In section IV,
below, we order correction of the abstracts of judgment to properly reflect the victim
restitution imposed in this matter.
3.
The parties dispute whether or not the court properly imposed the various fees,
fines and assessments against appellants. Appellants rely primarily on People v.
Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). In the published portion of this opinion,
we find that appellants have forfeited this claim. In any event, Dueñas is
distinguishable from the present matter, and appellants’ respective constitutional rights
were not violated. We also conclude that any presumed constitutional error was
harmless.
Finally, a clerical error appears in the respective abstracts of judgment. We order
them amended to reflect the direct victim restitution of $9,450. (§ 1202.4, subd. (f).)
We otherwise affirm appellants’ respective judgments.
BACKGROUND
Because the issues raised on appeal relate to sentencing, we provide only a
general summary of the trial facts supporting the convictions.
I. The Armed Robberies.
On April 11, 2016, appellants entered three separate businesses, and they robbed
four victims. Surveillance video at each location captured significant portions of
appellants’ robberies. Those videos were played for the jury. At trial, appellants did
not present any evidence.
A. The first robbery.
The first robbery occurred at a market in Merced. Lowery grabbed an envelope
containing about $200 to $300, which had been under a counter. He ran from the
business. The owner’s son, B.K., pursued him. Outside the business, B.K. caught
Lowery, and he grabbed the envelope back. They began to scuffle. B.K. and Lowery
ended up on the ground. Green approached and put a gun to B.K.’s head. B.K.
relinquished the money, and appellants each kicked B.K.’s head before fleeing. At trial,
B.K. identified appellants as the robbers.
4.
B. The second robbery.
Shortly after robbing B.K., appellants entered a liquor store in Merced. Several
customers were present. The store’s owner, K.S., was behind the counter. Green went
behind the counter and he put a gun to K.S.’s head. A cash drawer was already open.
Green asked for “extra money” and threatened to kill K.S. K.S. opened another drawer.
Green, who kept his gun pointed at K.S.’s head, took money from both drawers.
Lowery also displayed a firearm. He directed the customers to sit on the floor. At one
point, Lowery reached over the counter and also removed cash from a drawer.
Appellants exited the liquor store without further incident.
In addition to taking cash from the registers, appellants took personal items
belonging to K.S., such as his driver’s license, his wife’s identification card, and various
debit and credit cards. Later that same day, a clerk working at a local gas station found
these personal items discarded on the ground near a dumpster outside.
C. The final robbery.
Later that same day, appellants entered a convenience store in Winton,
California. Green went behind a counter where two clerks, G.S. and her son J.S., were
working. Green pointed a gun at J.S. He demanded money, threatening he would
shoot. Lowery displayed his own firearm and directed customers to sit down. Lowery
also went behind the counter and demanded the cash registers to be opened. Once the
registers were open, appellants took about $10,000. They left without further incident.
At trial, G.S. identified Lowery as one of the two robbers.
After appellants left, J.S. discovered a bullet on the floor away from the cash
registers. At trial, he told the jury that, during this robbery, one of the suspects had
“racked” a handgun.
II. Appellants Purchase Two Used Vehicles.
After the three robberies, and later on the same day, Green purchased a used
Saab from a dealership in Merced. At the same time, both Lowery and Green also
5.
purchased a used Jaguar from the same dealer. They paid in cash for both vehicles. In
court, the dealer identified appellants as the two individuals who purchased those
vehicles.
III. Lowery Confesses To Robbing B.K. From The First Business.
Law enforcement quickly identified appellants as the suspects. A detective
reviewed video at the gas station where the personal items belonging to K.S. had been
discovered. In the video, the detective saw a white Buick Skylark enter the parking lot
and two subjects exit the vehicle. One subject “dumped” some “items in the garbage.”
The other subject walked into the store. The second subject wore a T-shirt that read,
“ ‘I’m on one.’ ” According to K.S., the victim in the second robbery, one of the
suspects had worn that same T-shirt. Another detective, who was familiar with
appellants, recognized them in the gas station video. Lowery was taken into custody
and he was interviewed. He admitted taking the envelope of cash from the counter of
the first market. He denied any involvement in the other two robberies. He admitted
that, when the first robbery occurred, he was wearing a T-shirt which said, “I’m on
one.”
On April 12, 2016, law enforcement searched Green’s residence. They
recovered two different types of ammunition. A “white over gray Buick Skylark” was
parked in the driveway. This vehicle was registered to Green.
DISCUSSION
I. Remand Is Not Warranted For The Trial Court To Exercise Its Sentencing
Discretion Under Senate Bill 620.
At the time of sentencing in this matter, the trial court was required to impose
additional prison terms for the firearm enhancements found true under
section 12022.53. (Former § 12022.53, subd. (d).) On October 11, 2017, however, the
 See footnote, ante, page 1.
6.
Governor approved Senate Bill 620, which amended, in part, section 12022.53. A trial
court now has discretion to strike or dismiss these firearm enhancements. (§ 12022.53,
subd. (h).)
The parties agree, as do we, that these amendments apply retroactively to
appellants because their cases are not yet final. (People v. Woods (2018) 19
Cal.App.5th 1080, 1090.) The parties, however, disagree whether remand is
appropriate. Respondent asserts that a remand would serve no purpose. According to
respondent, no reasonable court would exercise its discretion to strike appellants’
respective firearm enhancements. (See People v. Gutierrez (1996) 48 Cal. App. 4th
1894, 1896.) To support its position, respondent focuses on appellants’ criminal
conduct in this matter and the court’s comments at sentencing. We agree with
respondent that, based on this sentencing record, remand is not warranted.
Remand is necessary when the record shows the trial court proceeds with
sentencing on the erroneous assumption it lacks discretion. (People v. Brown (2007)
147 Cal. App. 4th 1213, 1228.) If, however, the record shows the sentencing court
“would not have exercised its discretion even if it believed it could do so, then remand
would be an idle act and is not required.” (People v. McDaniels (2018) 22 Cal.App.5th
420, 425 (McDaniels).) Certain factors may be germane in assessing whether a trial
court is likely to exercise its sentencing discretion in the defendant’s favor. Those
factors are: (1) the egregious nature of the defendant’s crimes; (2) the defendant’s
recidivism; and (3) the fact that consecutive sentences were imposed. (Id. at p. 427.)
However, these factors alone cannot establish what the court’s discretionary decision
would have been. (Ibid.) If the court imposes the maximum sentence permitted, a
remand would be an idle act because the record contains a clear indication the court
would not exercise its discretion in the defendant’s favor. (Ibid.)
During sentencing, Lowery’s trial counsel asked the court to impose a middle
term for the robbery conviction representing the base term. The court, however,
7.
declined that sentencing option. The court stated that Lowery’s actions involved “a
threat of great bodily harm or a high degree of viciousness.” Lowery “engaged in
violent conduct indicating a serious danger to society.” The court noted that Lowery’s
“prior convictions are of increasing seriousness.”5 The court said it looked “hard” for
factors in mitigation for Lowery, but it could not find any. The court recognized that
Lowery’s and Green’s behaviors differed because it was Green who “went behind the
counter and put the guns to the heads of the clerks.” However, the court noted that,
although Lowery was not as aggressive, he was still holding people at gunpoint. The
court stated that, even if it had discretion to not sentence the firearm enhancements
consecutively, it would still impose them consecutively. As to Lowery, the court
designated count 2 (second degree robbery) as the principal term, and it imposed an
aggravated sentence of five years. The court said an aggravated sentence was
appropriate based on the facts of the case. The court imposed consecutive sentences for
the remaining three convictions of second degree robbery (counts 1, 3-4).6
Regarding Green, his trial counsel sought concurrent sentences for the four
robbery convictions. He asserted that section 654 should be used for the convictions in
counts 3 and 4 because they involved a single incident with two victims. Green’s
counsel also requested a middle term for the robbery conviction representing the base
term. He argued a concurrent sentence from the prior serious felony enhancement was
warranted, along with a concurrent term for the possession of a firearm conviction
5 Lowery had a prior 2010 felony conviction for carrying a loaded firearm
(§ 12031, subd. (a)(1)) and a 2004 felony conviction for vehicle theft (Veh. Code,
§ 10851, subd. (a)). Among other misdemeanor convictions, he had a 2013
misdemeanor conviction for willful cruelty to a child (§ 273a, subd. (b)), and a 2004
misdemeanor conviction for the manufacture, sale, or possession of a dangerous weapon
(§ 12020, subd. (a)(1)). He was generally given jail sentences and probation for these
various felony and misdemeanor convictions.
6 In count 5, felon in possession of a firearm (§ 29800, subd. (a)(1)), the court
imposed a concurrent middle term of two years.
8.
(count 5). In contrast, the prosecutor argued for the upper term and consecutive
sentences.
The court “found the same aggravating factors” as it had for Lowery.7 The court
commented that Green’s behavior had been “appalling” and “terrifying” for the victims.
The court noted that Green had pointed the gun directly at two victims, and “your
behavior is just off the charts here, as far as the Court’s concerned.” The court could
not find any factors in mitigation. The court designated count 1 (second degree
robbery) as the principal term, and it imposed an aggravated sentence of five years. The
court stated an aggravated sentence was appropriate in this situation. The court imposed
consecutive sentences for the remaining three convictions of second degree robbery
(counts 2-4).8 The court commented that it did not have discretion to impose a
concurrent enhancement for Green’s prior serious felony conviction (§ 667, subd.
(a)(1)). However, the court stated that, even if it had such discretion, it would not
impose a concurrent enhancement.
This record reveals a clear indication that the trial court would not have struck or
dismissed appellants’ respective firearm enhancements even if it had such discretion.
For both appellants, the court imposed an upper term sentence for second degree
robbery, and it imposed additional consecutive sentences. The court commented on the
egregious nature of appellants’ actions and their recidivism. (See McDaniels, supra, 22
Cal.App.5th at p. 427.) When sentencing Lowery, the court stated that, even if it had
7 Green had a prior 2007 felony conviction for robbery (§ 211), and a 2012 felony
conviction for possession of concentrated cannabis (Health & Saf. Code, § 11357, subd.
(a)). He also had two misdemeanor convictions in 2007 for driving without a license
(Veh. Code, § 12500, subd. (a)). In 2012, Green’s probation was revoked and he was
sentenced to three months in prison.
8 In count 5, felon in possession of a firearm (§ 29800, subd. (a)(1)), the court
imposed a concurrent middle term of two years, which was doubled because of his prior
strike.
9.
discretion to not sentence the firearm enhancements consecutively, it would still impose
them consecutively. When sentencing Green, the court stated that, even if it had
discretion to impose a concurrent enhancement for his prior serious felony conviction
(§ 667, subd. (a)(1)), it would not do so.
Based on this sentencing record, remand would be an idle act and it is not
required.9 (See People v. Gutierrez, supra, 48 Cal.App.4th at p. 1896 [denying remand
after sentencing court indicated it would not have exercised its discretion to strike a
Three Strikes prior even if it had believed it could have done so]; McDaniels, supra, 22
Cal.App.5th at p. 427.) Accordingly, we deny appellants’ respective requests for
remand for the court to exercise its discretion under Senate Bill 620.
II. Remand Is Not Warranted For The Trial Court To Exercise Its Sentencing
Discretion Under Senate Bill 1393.
At the time of Green’s sentencing in this matter, the trial court was required to
impose an additional five-year prison term based on his prior serious felony conviction.
(Former § 667, subd. (a)(1).) On September 20, 2018, however, the Governor signed
Senate Bill 1393, which amended sections 667 and 1385 to provide sentencing courts
with discretion to strike or dismiss this enhancement.
We agree with the parties that this amendment applies retroactively to Green.
(People v. Sexton (2019) 37 Cal.App.5th 457, 473.) The parties, however, disagree
whether remand is warranted. We agree with respondent that a remand would serve no
purpose.
9 In light of the court’s comments and other sentencing choices, our conclusion is
not altered by the fact that, in count 5, the court imposed concurrent terms for
appellants’ respective convictions of being a felon in possession of a firearm (§ 29800,
subd. (a)(1)).
 See footnote, ante, page 1.
10.
We have already set forth above the relevant portions of the sentencing record.
The court made it abundantly clear that, even if it had discretion, it would not order
Green’s five-year sentence enhancement (§ 667, subd. (a)(1)) to run concurrently.
Based on that comment alone, it is overwhelmingly apparent that the court would not
strike or dismiss this enhancement. In any event, the court found no factors in
mitigation and stated that Green’s behavior had been “appalling” and “terrifying” for
the victims. The court noted that Green had pointed the gun directly at two victims, and
“your behavior is just off the charts here, as far as the Court’s concerned.” The court
imposed an aggravated sentence against him, and it ordered additional consecutive
sentences.
Based on this sentencing record, the trial court gave a clear indication it would
not have exercised its discretion to strike or dismiss this enhancement even if it had the
discretion to do so. As such, remand would be an idle act and is not required.10 (See
People v. Gutierrez, supra, 48 Cal.App.4th at p. 1896 [denying remand after sentencing
court indicated it would not have exercised its discretion to strike a Three Strikes prior
even if it had believed it could have done so]; McDaniels, supra, 22 Cal.App.5th at
p. 427.) Accordingly, we deny Green’s request for remand for the court to exercise its
discretion following Senate Bill 1393.
III. Appellants Have Forfeited Their Claims Under Dueñas; In Any Event,
Dueñas Is Distinguishable From The Present Matter; The Trial Court Did
Not Violate Appellants’ Constitutional Rights; And Any Presumed Error Is
Harmless.
Appellants challenge the imposition of the assessments imposed against them
under section 1465.8, subdivision (a)(1), and Government Code section 70373,
subdivision (a)(1). They also challenge the restitution fines imposed against them under
10 In light of the court’s comments and other sentencing choices, our conclusion is
not altered by the fact that, in count 5, the court imposed a concurrent term for Green’s
conviction of being a felon in possession of a firearm (§ 29800, subd. (a)(1)).
11.
section 1202.4, subdivision (b)(1). Their claims are based primarily on Dueñas, supra,
30 Cal.App.5th 1157. They assert that Dueñas controls, they did not forfeit this issue,
and remand is required for the lower court to conduct further proceedings.
In Dueñas, the defendant was an indigent, homeless mother of two, who
subsisted on public aid while suffering from cerebral palsy. She had dropped out of
high school because of her illness, and she was unemployed. (Dueñas, supra, 30
Cal.App.5th at pp. 1160–1161.) As a teenager, the defendant’s driver’s license was
suspended when she could not pay some citations. (Id. at p. 1161.) She then was
convicted of a series of misdemeanor offenses for driving with a suspended license, and
in each case, she was given the choice to pay mandatory fees and fines, which she
lacked the means to do, or go to jail. (Ibid.) She served jail time in the first three of
these cases, but still faced outstanding debt, which increased with each conviction.
(Ibid.)
After her fourth conviction of driving with a suspended license, the defendant
was placed on probation and again ordered to pay mandatory fees and fines. The court
imposed a $30 criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)); a
$40 court operations assessment (§ 1465.8, subd. (a)(1)); and a minimum $150
restitution fine (§ 1202.4, subd. (b)(1)).11 The court also imposed and stayed a
probation revocation restitution fine (§ 1202.44). (Dueñas, supra, 30 Cal.App.5th at
pp. 1161–1162.) The defendant challenged the fees and fines imposed under sections
1202.4 and 1465.8, and Government Code section 70373. (Dueñas, at p. 1164.) The
trial court rejected her constitutional arguments that due process and equal protection
required the court to consider her ability to pay these fines and assessments. (Id. at
p. 1163.) On appeal, however, the Dueñas court determined that the defendant’s due
11 The minimum restitution fine for a misdemeanor is $150. The minimum
restitution fine for a felony is $300. (§ 1202.4, subd. (b)(1).)
12.
process rights had been infringed. According to Dueñas, an ability to pay hearing was
required so the defendant’s “present ability to pay” could be determined before
assessments were levied for a court operations assessment (§ 1465.8, subd. (a)(1)) and a
criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)).12 (Dueñas, at
p. 1164.) The Dueñas court also concluded that the minimum restitution fine of $150
(§ 1202.4, subd. (b)(1)) had to be stayed. The appellate court reached that conclusion
despite section 1202.4 barring consideration of a defendant’s ability to pay unless the
judge is considering a fine over the statutory minimum. (§ 1202.4, subd. (c).) Dueñas
held that “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, at p. 1164.)
We find appellants’ assertions based on Dueñas unavailing. As an initial matter,
appellants have forfeited these claims. In any event, Dueñas is distinguishable from the
present matter, and appellants’ respective constitutional rights were not violated.
Finally, any presumed constitutional error is harmless beyond any reasonable doubt.
A. Appellants have forfeited the Dueñas-related claims.
Section 1202.4, subdivision (b)(1), requires a court to impose a restitution fine in
an amount not less than $300 and not more than $10,000 in every case where a person is
convicted of a felony unless it finds compelling and extraordinary reasons not to do so.
Section 1202.4, subdivision (c), specifies a defendant’s inability to pay is not a
compelling and extraordinary reason to refuse to impose the fine, but inability to pay
“may be considered only in increasing the amount of the restitution fine in excess of the
minimum fine [of $300].” While the defendant bears the burden of demonstrating his or
her inability to pay, a separate hearing for the restitution fine is not required. (§ 1202.4,
12 Nothing in these statutes authorizes a trial court to consider a defendant’s ability
to pay.
13.
subd. (d).) “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.” (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154.)
Here, and unlike the defendant in Dueñas, appellants did not object to the fees,
fines and assessments imposed against them. Appellants also did not request a hearing
regarding their ability to pay. Contrasting the present circumstances with Dueñas,
where the court imposed the minimum restitution fine, appellants had such fines
imposed which were far above the minimum of $300. (§ 1202.4, subd. (b)(1).) In fact,
Green had the maximum restitution fine imposed of $10,000, while Lowery’s restitution
fine was $6,900.
We disagree with appellants’ assertions that Dueñas represents a newly
announced rule of law, or that this issue raises a pure question of constitutional law that
involves no factual dispute. To the contrary, appellants had a statutory right, and were
obligated, to object to the imposition of the restitution fines above the $300 minimum.
(§ 1202.4, subd. (c) [inability to pay may be considered when the restitution fine is
increased above the minimum].) A factual determination was required regarding their
alleged inability to pay. (See People v. Frandsen, supra, 33 Cal.App.5th at p. 1153.)
Thus, such objections would not have been futile under governing law when appellants
were sentenced. (Id. at p. 1154.) We stand by the traditional rule that a party must raise
an issue in the trial court if they would like appellate review. (Id. at p. 1155.)
We reach the same conclusion with respect to the remaining assessments and
fees. Because appellants failed to object to the restitution fines, which were well above
the minimum amount, we likewise reject any assertion they may now complain that the
trial court imposed a court operations assessment of $200 (§ 1465.8, subd. (a)(1)); and a
criminal conviction assessment of $150 (Gov. Code, § 70373, subd. (a)(1)). (See
People v. Jenkins (2019) 40 Cal.App.5th 30, 40–41; People v. Gutierrez (2019) 35
Cal.App.5th 1027, 1033 [finding forfeiture of Dueñas-related claims].)
14.
Based on this record, appellants have forfeited their Dueñas-related claims. (See,
e.g., People v. Avila (2009) 46 Cal. 4th 680, 729 [defendant forfeited issue by failing to
object to imposition of restitution fine based on inability to pay]; see also People v.
Jenkins, supra, 40 Cal.App.5th at pp. 40–41 [Dueñas error forfeited]; People v. Aviles
(2019) 39 Cal.App.5th 1055, 1073 (Aviles) [same]; People v. Torres (2019) 39
Cal.App.5th 849, 860 [same]; People v. Gutierrez, supra, 35 Cal.App.5th at p. 1033
[same]; People v. Frandsen, supra, 33 Cal.App.5th at p. 1154 [same]; People v.
Bipialaka (2019) 34 Cal.App.5th 455, 464 [same].)
B. Dueñas is distinguishable from the present matter.
According to the Dueñas court, the defendant lost her driver’s license because
she was too poor to pay her juvenile citations. She continued to offend because the
aggregating criminal conviction assessments and fines prevented her from recovering
her license. The Dueñas court described this as “cascading consequences” stemming
from “a series of criminal proceedings driven by, and contributing to, [the defendant’s]
poverty.” (Dueñas, supra, 30 Cal.App.5th at pp. 1163–1164.)
Even if appellants have not forfeited these claims, we reject appellants’
assertions that Dueñas applies to them. In contrast to Dueñas, appellants’ incarcerations
were not a consequence of prior criminal assessments and fines. Appellants were not
caught in an unfair cycle, and they could have avoided the present convictions
regardless of their financial circumstances. Dueñas is distinguishable and it has no
application in this matter. (See People v. Caceres (2019) 39 Cal.App.5th 917, 928–929
[declining to apply Dueñas’s “broad holding” beyond its unique facts]; People v.
Johnson (2019) 35 Cal.App.5th 134, 138 [“Dueñas is distinguishable.”].)
C. The court did not violate appellants’ constitutional rights.
Even if forfeiture did not occur, we reject any argument that the trial court
violated appellants’ constitutional rights. The Dueñas defendant presented compelling
15.
evidence that the imposed assessments resulted in ongoing unintended punitive
consequences. The Dueñas court determined that these unintended consequences were
“fundamentally unfair” for an indigent defendant under principles of due process.13
(Dueñas, supra, 30 Cal.App.5th at p. 1168.) The Dueñas court noted that the imposed
financial obligations were also potentially unconstitutional under the excessive fines
clause of the Eighth Amendment. However, Dueñas stated that “[t]he due process and
excessive fines analyses are sufficiently similar that the California Supreme Court has
observed that ‘[i]t makes no difference whether we examine the issue as an excessive
fine or a violation of due process.’ [Citation.]” (Dueñas, supra, at p. 1171, fn. 8.)
Both People v. Hicks (2019) 40 Cal.App.5th 320, review granted September 14,
2019, S258946 (Hicks) and this court’s opinion in Aviles, supra, 39 Cal.App.5th 1055,
have strongly criticized Dueñas’s analysis. (Hicks, supra, 40 Cal.App.5th at p. 322,
review granted; Aviles, supra, 39 Cal.App.5th at pp. 1059–1060.) We agree with those
criticisms. (See also People v. Kingston (2019) 41 Cal.App.5th 272, 279 [finding Hicks
to be “better reasoned” than Dueñas]; People v. Caceres, supra, 39 Cal.App.5th at
p. 928 [“In light of our concerns with the due process analysis in Dueñas, we decline to
apply its broad holding requiring trial courts in all cases to determine a defendant’s
ability to pay before imposing court assessments or restitution fines.”].)
This court in Aviles held that, in contrast to a due process challenge, the
“ ‘excessive fines’ ” clause in the Eighth Amendment to the United States Constitution
was a more appropriate avenue for an indigent defendant to challenge the imposition of
13 Dueñas’s conclusion in this regard has been criticized. It has been noted that
“Dueñas did not involve the right to access the courts, the defendant’s liberty interests,
or any other fundamental right.” (People v. Santos (2019) 38 Cal.App.5th 923, 938 (dis.
opn. of Elia, J.).) It has also been stated that the imposition of fees, fines and
assessments does not satisfy “the traditional due process definition of a taking of life,
liberty or property.” (People v. Gutierrez, supra, 35 Cal.App.5th at p. 1039 (conc. opn.
of Benke, Acting P.J.).)
16.
fees, fines and assessments. (Aviles, supra, 39 Cal.App.5th at p. 1069.) Under its facts,
Aviles found no constitutional violation for the imposition of assessments and fines
imposed on a felon who, after fleeing from officers, shot and wounded two of them.
(Id. at pp. 1059–1060.) Aviles also concluded that any presumed error was harmless
because the felon had the ability to earn money while in prison. (Id. at pp. 1075–1077.)
The Hicks court held that, in contrast to Dueñas’s application of due process, a
due process violation must be based on a fundamental right, such as denying a
defendant access to the courts or incarcerating an indigent defendant for nonpayment.
Hicks concluded that Dueñas’s analysis was flawed because it expanded due process in
a manner that grants criminal defendants a right not conferred by precedent; that is, an
ability to pay hearing before assessments are imposed. (Hicks, supra, 40 Cal.App.5th at
pp. 325–326, review granted.) Under its facts, Hicks rejected a due process challenge to
the imposition of fines and assessments on a felon who, while under the influence of a
stimulant, resisted arrest. (Id. at pp. 323, 329–330.)
1. Appellants’ due process rights were not violated.
In this matter, the fees, fines and assessments imposed against appellants do not
implicate the traditional concerns of fundamental fairness. Appellants were not denied
access to the courts or prohibited from presenting a defense. (See Griffin v. Illinois
(1956) 351 U.S. 12, 18–20 [due process and equal protection require a state to provide
criminal defendants with a free transcript for use on appeal]; People v. Kingston, supra,
41 Cal.App.5th at p. 281; Hicks, supra, 40 Cal.App.5th at p. 326, review granted.)
Appellants were not incarcerated because they were unable to pay prior fees, fines or
assessments. (See Bearden v. Georgia (1983) 461 U.S. 660, 672–673 (Bearden)
[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]; People v.
17.
Kingston, supra, 41 Cal.App.5th at p. 281; Hicks, supra, 40 Cal.App.5th at p. 326,
review granted.)
The unique concerns addressed in Dueñas are lacking here. Nothing establishes
or even reasonably suggests that appellants face ongoing unintended punitive
consequences. Appellants do not establish how they suffered a violation of a
fundamental liberty interest. Because unintended consequences are not present, it was
not fundamentally unfair for the court to impose the fees, fines and assessments in this
matter without first determining appellants’ ability to pay.14 As such, the trial court did
not violate appellants’ due process rights, and this claim fails.15 (See People v.
Kingston, supra, 41 Cal.App.5th at p. 282; Hicks, supra, 40 Cal.App.5th at p. 329,
review granted.)
2. The fees, fines and assessments were not grossly
disproportionate under the Eighth Amendment.
Green asserts that imposition of the fees, fines and assessments imposed against
him violated the excessive fines clause of the Eighth Amendment. We find Green’s
excessive fines challenge unpersuasive.16
14 We note that the court was permitted to impose fines upon appellants following
their convictions. (See, e.g., Bearden, supra, 461 U.S. at p. 669 [a state has a
fundamental interest in “appropriately punishing persons—rich and poor—who violate
its criminal laws” and poverty does not immunize a defendant from punishment].)
15 Respondent concedes that due process is violated when an indigent defendant is
imprisoned for failure to pay a punitive fine “because the fundamental right to liberty is
implicated.” Respondent urges us to resolve this due process challenge using a rational
basis (as opposed to strict scrutiny) analysis. We need not fully respond to respondent’s
position in this regard or articulate the appropriate standard of review for a due process
challenge in this situation. To the contrary, appellants’ due process claims are based
primarily on Dueñas, which neither articulated what fundamental liberty interest was at
stake nor set forth a standard of review.
16 Although only Green raises a challenge under the excessive fines clause, we
apply the same analysis to Lowery because they are similarly situated.
18.
“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.” (United States 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. [Citations.]’ [Citations.]” (Aviles, supra, 39 Cal.App.5th at
p. 1070.) While ability to pay may be part of the proportionality analysis, it is not the
only factor. (Bajakajian, supra, 524 U.S. 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.)
Here, appellants threatened multiple victims with firearms while robbing three
businesses. We must give deference to the Legislature’s determination regarding the
appropriate punishment. (Bajakajian, supra, 524 U.S. at p. 336.) When the relevant
factors are examined, it is abundantly clear that the fees, fines and assessments imposed
against them were not “grossly disproportional” under these circumstances. (Id. at
p. 334; see also Aviles, supra, 39 Cal.App.5th at p. 1072; People v. Gutierrez, supra, 35
Cal.App.5th at pp. 1040–1041 (conc. opn. of Benke, Acting P.J.).) As such, we reject
any assertion that the excessive fines clause of the Eighth Amendment was violated.
19.
3. Appellants’ rights to equal protection under the law were not
violated.
Green contends that imposition of the assessments and fines under Government
Code section 70373 and Penal Code sections 1202.4, 1202.45 and 1465.8 violated his
rights to equal protection. He relies primarily on Dueñas for this claim. We find
Green’s equal protection claim unpersuasive.17 We have already concluded that
Dueñas is distinguishable from the present matter and we will not apply it here. In any
event, Dueñas based its holding on due process grounds, and not on equal protection.
(Dueñas, supra, 30 Cal.App.5th at p. 1168, fn. 4.) Four opinions are instructive in
resolving an equal protection challenge.
First, in Williams v. Illinois (1970) 399 U.S. 235 (Williams), the United States
Supreme Court invalidated on equal protection grounds a facially neutral statute that
authorized imprisonment for an indigent’s failure to pay fines. (Id. at pp. 241–242.)
Second, in Tate v. Short (1971) 401 U.S. 395 (Tate), the United States Supreme
Court expanded upon Williams. The Tate court held that equal protection was violated
when an indigent defendant was committed to a “municipal prison farm” because he
could not pay accumulated fines of $425 based on nine convictions for traffic offenses.
(Tate at pp. 396–397.) The high court noted that the defendant “was subjected to
imprisonment solely because of his indigency.” (Id. at p. 398.) Important to the issue
before us, the Tate court commented that a state has a “valid interest in enforcing
payment of fines.” (Id. at p. 399.) According to Tate, a state “is not powerless to
enforce judgments against those financially unable to pay a fine; indeed, a different
result would amount to inverse discrimination since it would enable an indigent to avoid
both the fine and imprisonment for nonpayment whereas other defendants must always
suffer one or the other conviction.” (Ibid.) The high court stated that “ ‘numerous
17 Although only Green raises a challenge under equal protection, we apply the
same analysis to Lowery because they are similarly situated.
20.
alternatives’ ” existed for a state to avoid “imprisoning an indigent beyond the statutory
maximum for involuntary nonpayment of a fine or court costs.” (Ibid.) However, those
alternatives were left for the states to explore. (Id. at p. 400.)
Third, in In re Antazo (1970) 3 Cal. 3d 100, the California Supreme Court held
that an indigent defendant could not be imprisoned for failure to pay a fine. Otherwise a
violation of equal protection would occur based on wealth. (Id. at pp. 103–104.)
Importantly, our high court noted that imposing a fine and penalty assessment on an
indigent offender did not by itself necessarily constitute a violation of equal protection.
Apart from imprisonment, alternatives exist that could permit an indigent offender to be
fined. (Id. at p. 116.)
Finally, in Bearden, supra, 461 U.S. 660, the United States Supreme Court held
that a court may not revoke probation for an indigent defendant’s inability to pay a fine
and restitution, absent evidence and findings that the defendant was responsible for the
failure or that alternative forms of punishment were inadequate. Otherwise, the
“deprivation would be contrary to the fundamental fairness required by the Fourteenth
Amendment.” (Id. at pp. 672–673.) The high court, however, reiterated that a state is
not powerless to enforce judgments against those financially unable to pay a fine. (Id.
at pp. 671–672.) Bearden also noted that, when a defendant’s indigency is involved,
due process provides a better analytic framework than equal protection because “a
defendant’s level of financial resources is a point on a spectrum rather than a
classification.” (Id. at p. 666, fn. 8.) In the same footnote, Bearden stated that “[t]he
more appropriate question is whether consideration of a defendant’s financial
background in setting or resetting a sentence is so arbitrary or unfair as to be a denial of
due process.” (Ibid.)
In light of Williams, Tate, In re Antazo and Bearden, it is clear that appellants
were not denied equal protection. They were not incarcerated because of their alleged
poverty. Appellants do not articulate how a fundamental liberty interest was implicated.
21.
Thus, the trial court was permitted to impose a fine or penalty on them so long as
alternatives to imprisonment are offered for purposes of repayment. (In re Antazo,
supra, 3 Cal.3d at p. 116.)
Based on this record, we reject Green’s assertion that the court imposed an
unauthorized sentence. Appellants failed to bring this issue to the attention of the trial
court. (See People v. Avila, supra, 46 Cal.4th at p. 729 [rejecting assertion that
imposition of a fine represented an unauthorized sentence because the defendant failed
to object].) In any event, the court’s respective orders did not violate appellants’
constitutional rights. Accordingly, appellants’ claims are without merit. However, as
we discuss below, we can also declare that any presumed error is harmless.
D. Any presumed constitutional violation is harmless.
When sentenced in this matter, Lowery18 was approximately 32 years old and
Green19 was approximately 28 years old. Nothing from this record suggests that they
suffer from any physical or mental limitations.
Unlike the Dueñas defendant who was placed on probation and subjected to a
recurring cycle of debt, appellants were sentenced to relatively lengthy determinate
prison terms following their multiple convictions for armed robbery. Nothing in this
record suggests they might be unable to work, or that they might be ineligible for prison
work assignments. As such, we can infer that they will have the opportunity to earn
prison wages and they can start paying these financial obligations. (Aviles, supra, 39
18 According to the probation report, Lowery was married but currently separated.
He has a total of six children, two of whom are in common with his spouse. All of his
children are minors. The report indicates he “is a music artist and CEO of his own
music record label.… He manages eleven people and that is his form of employment.
He did not indicate how much he is earning from this business.”
19 According to the probation report, Green is not married and he is childless. He
“was not working prior to his arrest. He was attending Merced College, studying to
become an automotive mechanic. He obtained financial aid and was receiving up to
$1,500 per semester.”
22.
Cal.App.5th at p. 1076; People v. Hennessey (1995) 37 Cal. App. 4th 1830, 1837 [ability
to pay includes a defendant’s prison wages].)
“Prison wages range from $12 to $56 per month, depending on the prisoner’s
skill level.” (Aviles, supra, 39 Cal.App.5th at p. 1076, citing Cal. Code Regs., tit. 15,
§ 3041.2; Cal. Dept. of Corrections & Rehabilitation, Adult Institutions Operations
Manual (2019), art. 12 (Inmate Pay), §§ 51120.1, 51120.6, pp. 354–356.) “The state
may garnish between 20 and 50 percent of those wages to pay the section 1202.4,
subdivision (b) restitution fine.” (Aviles, supra, at p. 1076, citing § 2085.5, subds. (a),
(c); People v. Ellis (2019) 31 Cal.App.5th 1090, 1094.) It is illogical to conclude that
appellants will not have an ability to begin paying at least some of the imposed fees,
fines and assessments while they are incarcerated.
Based on this record, appellants’ circumstances are vastly different from the
probationer in Dueñas. While it may take them considerable time to pay the amounts
imposed against them, it is clear they can make payments from either prison wages or
monetary gifts from family and friends during their lengthy prison sentences. (Aviles,
supra, 39 Cal.App.5th at p. 1077.) Thus, even assuming a constitutional violation
occurred, any alleged error is harmless beyond a reasonable doubt. (Chapman v.
California (1967) 386 U.S. 18, 24; People v. Johnson, supra, 35 Cal.App.5th at
pp. 139–140.) Therefore, this claim is without merit and remand is unnecessary.
IV. The Abstracts Of Judgment Contain Clerical Errors.
During sentencing, the court ordered appellants to pay total victim restitution of
$9,450 to three victims (§ 1202.4, subd. (f)). The court reserved jurisdiction as to two
remaining victims. This obligation was ordered “joint and several.”
Lowery’s abstract of judgment incorrectly lists this restitution amount as $9,000.
Green’s abstract of judgment fails to list this obligation.
 See footnote, ante, page 1.
23.
An appellate court may correct clerical errors appearing in abstracts of judgment
either on its own motion or upon application of the parties. (People v. Mitchell (2001)
26 Cal. 4th 181, 185.) “An abstract of judgment is not the judgment of conviction; it
does not control if different from the trial court’s oral judgment and may not add to or
modify the judgment it purports to digest or summarize. [Citation.]” (Ibid.)
We direct the trial court to cause appellants’ abstracts of judgment to be amended
to reflect the ordered victim restitution of $9,450. (§ 1202.4, subd. (f).) The abstracts
shall reflect that the respective obligations are “joint and several” to each other. The
court shall have the amended abstracts forwarded to the appropriate authorities.
DISPOSITION
The trial court shall cause appellants’ respective abstracts of judgment to reflect
the ordered victim restitution of $9,450. (§ 1202.4, subd. (f).) Appellants’ abstracts
shall reflect that their respective obligations are “joint and several” to each other. The
court shall have the amended abstracts forwarded to the appropriate authorities. In all
other respects, appellants’ judgments are affirmed.
____________________
LEVY, J.
WE CONCUR:
_____________________
HILL, P.J.
_____________________
POOCHIGIAN, J.
24.