People v. Poindexter CA4/1 ( 2020 )

Filed 11/5/20 P. v. Poindexter CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076179
Plaintiff and Respondent,
v.
(Super. Ct. No. SCE387798)
DANTE POINDEXTER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Robert O. Amador, Judge. Affirmed.
Charles R. Khoury, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C.
Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant Dante Poindexter admitted that during a group beating of a
minor, he (Poindexter) repeatedly hit the victim with a handgun. As part of a
plea bargain, Poindexter pleaded guilty to one count of assault with a deadly
weapon (Pen. Code, § 245, subd. (a)(1))1 and admitted that he personally used
a firearm in the commission of the assault (§ 12022.5, subd. (a)), which he
committed for the benefit of, or in association with, a criminal street gang
(§ 186.22, subd. (b)(1)). In exchange, the prosecution agreed to a seven-year
“lid” and to dismiss a remaining charge of carrying a concealed firearm in a
vehicle (§24500, subd. (a)(1)). The trial court sentenced Poindexter to seven
years and ordered him to pay a $2,100 restitution fine and $224 in other
assessments.
Shortly after he was sentenced, Poindexter filed a petition to recall his
sentence and be resentenced, asserting his punishment was disproportionate
to the punishments other judges subsequently imposed on his accomplices.
The trial court denied the petition.
Poindexter raises two challenges on appeal. First, he contends the trial
court erred by denying his recall petition. Because the trial court was not
required to ensure that Poindexter’s sentence was proportionate to his
accomplices’ sentences, this contention lacks merit. Moreover, Poindexter
has not shown that the trial court erred in determining his sentence was, in
fact, proportionate.
Second, Poindexter contends the trial court’s imposition of monetary
assessments without first determining his ability to pay them violated his
due process rights as enunciated in People v. Dueñas (2019) 30 Cal.App.5th
1157 (Dueñas). We conclude Poindexter forfeited this challenge by failing to
raise it at sentencing, which occurred five months after Dueñas was decided.
Further, in light of evidence in the record indicating Poindexter’s ability to
1 Further undesignated statutory references are to the Penal Code.
2
pay, he has not established this forfeiture resulted from ineffective legal
representation.
Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
The Assault
Between approximately 9:30 and 10:30 p.m. on November 11, 2018, 19-
year-old Poindexter and about nine companions went to a large house party
in Lakeside. Poindexter and three of his companions—Diego Andrade,
Marquis Harris, and Kelvin Wilkerson—became involved in a two-part fight
that led to the charges at issue here. The first part of the fight was captured
on cellphone video (which we have viewed); the second part was not.
The first part of the fight arose about 10 minutes after Poindexter’s
group arrived, when the hostess announced the party was over and began
asking guests to leave. Andrade “got up in her face and tried to swing at
her,” but Sebastian B. (a minor) intervened and placed himself between the
two. Sebastian turned away from Andrade to move the hostess away, and
“was assaulted by [Poindexter’s] group.”
After the first part of the fight, Poindexter’s group left, and Sebastian
washed blood from his face.
The second part of the fight began a few minutes later when Poindexter
and Andrade returned carrying handguns, which they used to hit Sebastian
in the head. Sebastian fell to the ground and Poindexter’s group punched
and kicked him in his head and face. Once the beating stopped, Andrade
fired one round into the ceiling, and the group dispersed.
2 The parties base their factual summaries, in part, on the probation
report. We will do the same.
3
Sebastian and several witnesses reported hearing the group yell
apparent gang references during the assault. Poindexter, Andrade, and
Harris (but not Wilkerson) were members or associates of a criminal street
gang called “48 mob.”
Police did not identify Poindexter and his companions as suspects in
the Lakeside assault until about one month later while investigating another
crime in El Cajon. Poindexter initially told police he never carried firearms,
“he only carried ‘knives and fist packers.’ ”3 But when police showed him the
cellphone video of the assault, he “identified himself in the video ‘pistol
whipping’ the victim several times.” Poindexter later acknowledged in his
probation interview that he was “at the party and participat[ed] in beating
the victim by striking him repeatedly with a pistol.” He further confirmed in
his initialed and signed change-of-plea form that he “assaulted Sebastian B.
with [a] deadly weapon” and “hit [him] with [a] firearm.”
Charges
Poindexter, Andrade, and Harris were jointly charged by complaint
with assault with a deadly weapon (§ 245, subd. (a)(1)), with firearm and
gang enhancement allegations (§§ 12022.5, subd. (a), 186.22, subd. (b)(1));
and carrying a concealed firearm in a vehicle (§ 24500, subd. (a)(1)).
Wilkerson was charged in a separate case with assault.
Disposition and Sentencing
Andrade
It is unclear from the record whether or how Andrade’s charges were
resolved. Poindexter has not raised this as an issue in the appeal.
3 Poindexter “described a fist packer as something hard that he puts into
his hand and squeezes . . . , so when he hits somebody, it causes greater
injury.”
4
Harris
Harris entered into a plea bargain that addressed his charges in this
case and an unrelated robbery case. In this case, Harris agreed to plead
guilty to the assault charge and to admit the firearm and gang enhancement
allegations, in exchange for a 365-day local sentence, a four-year suspended
prison sentence, and dismissal of the remaining charge (concealed firearm in
a vehicle).
In the other case, Harris agreed to plead guilty to robbery and to admit
a gang enhancement allegation, in exchange for a consecutive 365-day local
sentence, a three-year suspended prison sentence, and dismissal of the
balance of charges (unspecified in the record).
Harris admitted two strike offenses as part of his plea bargain.
Judge Lamborn accepted Harris’s plea in both cases.
Wilkerson
It is unclear from the record whether Wilkerson pleaded guilty or was
convicted after a trial. In any event, the record indicates Judge Thompson
sentenced Wilkerson to four years in prison for three separate assaults, one of
which was the assault against Sebastian.
Poindexter
Poindexter entered into a plea bargain under which he pleaded guilty
to the assault charge and admitted the enhancement allegations, in exchange
for dismissal of the remaining charge and a seven-year lid on any custodial
sentence. It appears from the record that Poindexter was unaware of
Harris’s or Wilkerson’s sentences throughout the change-of-plea and
sentencing processes. Judge Amador accepted Poindexter’s plea and presided
over his sentencing.
5
The probation officer recommended that Poindexter serve 12 years in
prison, and pay a $3,600 restitution fine and $224 in other assessments.4
Poindexter argued in a mitigation statement that the court should grant
probation because he had a supportive family, no criminal record, and an
expert psychologist who evaluated him opined he was amenable to
treatment.5 Poindexter did not address the recommended fine or
assessments. The prosecution argued in its sentencing statement that the
court should impose the full seven-year lid based on the circumstances of the
offense and Poindexter’s continuing dedication to his gang.6
4 There is a discrepancy in the probation officer’s report. In the section
addressing Poindexter’s eligibility and suitability for probation, the probation
officer recommends that the court deny probation and sentence Poindexter to
five years in prison. However, in the section containing the probation officer’s
overall recommendation, he recommends that the trial court deny probation
and sentence Poindexter to 12 years in prison. The overall recommendation
is supported by a detailed “Term Recommendation Breakdown by Count”
(bolding and underlining omitted) that again recommends a “total prison
term [of] 12 years” (bolding and capitalization omitted). The probation officer
most likely intended to convey his more detailed overall recommendation of
12 years.
5 Poindexter has moved to augment the appellate record to include a
psychological evaluation prepared by Raymond Murphy, Ph.D., which was
appended to Poindexter’s mitigation statement and considered by the trial
court. We grant Poindexter’s motion to augment.
6 The prosecution submitted (1) excerpts from letters Poindexter wrote
from jail saying he “won’t snitch” and “48 Foe Lyfe”; and (2) photographs from
Poindexter’s phone showing him flashing gang signs, and holding guns and
drugs.
6
Before pronouncing sentence, the trial court watched the cellphone
video of the first part of the assault.7 The court found it significant that
Poindexter had identified himself in the video pistol-whipping the victim,
despite having earlier denied ever carrying a firearm. Based on Poindexter’s
use of a weapon to inflict serious injuries on a minor victim during a
coordinated beating by several armed adult gang members, the trial court
denied probation and sentenced Poindexter to seven years in prison.8 The
court told Poindexter, “Your attorney did an excellent job of negotiating the
case when you consider you are on video committing this crime that looks at
easily much more time than this. 24 years. They could have [gone] to trial
on this case, and you would be convicted without much question in regards to
it.”
The court also ordered Poindexter to pay a $2,100 restitution fine
(§ 1202.4, subd. (b)) and a corresponding, stayed parole-revocation fine
(§ 1202.45); a $40 court operations assessment (§ 1465.8); a $30 criminal
7 The trial court stated it had viewed the cellphone video but that it was
not in the court’s file. The court therefore directed the prosecutor to “make a
disk of that and provide it to the court because the court had that and would
consider that as part of the record of this.” At the petition hearing, the court
confirmed the prosecutor had provided the court a disk containing the
cellphone video. Poindexter provided us with a copy of the disk, accompanied
by a declaration from his trial counsel establishing the disk’s chain of
custody.
8 The sentence consisted of the four-year upper term on the assault
conviction, plus the three-year lower term on the firearm enhancement. The
court stayed a 10-year gang enhancement.
7
conviction assessment (Gov. Code, § 70373);9 and a $154 criminal justice
administration fee (Gov. Code, § 29550 et seq.). Poindexter did not object.
The trial court denied Poindexter’s subsequent petition to recall his
sentence and be resentenced, which we discuss in part I, post.
DISCUSSION
I. No Error in Denying the Recall Petition
Poindexter contends the trial court erred by denying his recall petition
because his sentence was disproportionate to his accomplices’ sentences. This
contention is without merit.
A. Background
About two weeks after he was sentenced, Poindexter filed a petition to
recall his sentence and be resentenced. He argued this relief was warranted
because he had only just learned of Harris’s sentence, which Poindexter
maintained rendered his own seven-year sentence disproportionate.
The prosecution opposed Poindexter’s petition, arguing (1) the disparity
in Poindexter’s and Harris’s sentences was warranted because Poindexter
and Andrade were direct perpetrators, whereas Harris was merely an aider
and abettor; (2) Poindexter bragged to Harris in text messages about
9 Although trial courts are required to impose a $30 criminal conviction
assessment (Gov. Code, § 70373, subd. (a)(1)), the reporter’s transcript
indicates the trial court imposed a $50 assessment. However, both the
sentencing minutes and the abstract of judgment reflect the correct $30
assessment. “Under the circumstances, we will deem the minute order and
abstract of judgment to prevail over the reporter’s transcript. [Citations.]
The erroneous statement in the reporter’s transcript is of no effect.” (People
v. Cleveland (2004) 32 Cal.4th 704, 768; see People v. Thompson (2009) 180
Cal.App.4th 974, 977-978; People v. Smith (1983) 33 Cal.3d 596, 599 [the
general presumption that the oral pronouncement controls discrepancies is
not “a mechanical rule”].)
8
numerous “easy robberies” Poindexter had arranged for Harris and his
friends; and (3) Poindexter remained dedicated to his street gang.
Before the hearing on his petition, Poindexter filed a supplemental
brief attaching documents showing his progress while in custody. In
addition, to rebut the prosecution’s assertion that Poindexter and Andrade
were the primary assailants, Poindexter’s counsel provided a written
summary of what he considered to be key excerpts from an audio-recorded
interview of Sebastian (the victim) by the prosecutor. He did not submit the
recording, itself.
Counsel portrayed Sebastian’s description of his assailants’ conduct as
follows: Andrade punched Sebastian and hit the back of his head with a
snub-nose revolver 10 to 15 times. Poindexter verbally backed-up Andrade,
engaged in mutual shoving, went to hit Sebastian with a fist, but was “throw-
grabbed” onto a couch.10 A third assailant, presumably Harris, was
“throwing hands with Sebastian.” Finally, Wilkerson “punched Sebastian in
[the] forehead,” leaving a scar.
Poindexter also argued in the supplement—based on a mistaken
understanding of the facts—that his sentence was disproportionate in light of
the fact Wilkerson had never been charged for his role in the assault.11
At the outset of the hearing on the petition, Poindexter’s counsel
informed the court he had since learned that Wilkerson had, in fact, been
10 Despite this attempt to downplay Poindexter’s role, counsel
acknowledged in the supplement that the cellphone video “captures
[Poindexter] springing back into action (after having been throw-grabbed by
Sebastian onto the couch)” and “using his right arm and fist to attack
Sebastian.”
11 It appears Poindexter’s misunderstanding arose from a statement in
the probation report that Wilkerson had not been charged.
9
charged and sentenced. Counsel proceeded to argue that Wilkerson’s four-
year sentence for three assaults was further evidence that Poindexter’s seven-
year sentence for one assault was disproportionate.
Turning to Harris’s role, Poindexter’s counsel argued “the statement of
facts in the Harris plea” undermined the prosecution’s claim that he was
merely an aider and abettor.12 But Poindexter’s counsel acknowledged he
had watched the partial video of the assault and did not “see someone who
looks like Harris physically contacting Sebastian.”
Defense counsel attempted to further minimize Poindexter’s role in the
assault by referring to the excerpts from Sebastian’s interview that counsel
had summarized in his supplemental briefing.13
The prosecutor responded that Wilkerson’s sentence was
distinguishable because he was not a 48 mob member—he was just a guy
12 Harris’s change-of-plea form states the following factual basis for his
plea: “Committed an assault with a deadly weapon where a gun was used.
Done for the benefit of a criminal street gang.”
13 Poindexter’s appellate counsel asserted at oral argument that the trial
court had received and considered the audio recording of the interview. He
subsequently clarified that he “misspoke” during oral argument, but that the
recording’s “contents were read into the record.” The appellate record does
not support this assertion. First, the declaration from Poindexter’s trial
counsel establishing the chain of custody for the cellphone video (see fn. 7,
ante), also addressed the audio-recorded interview. In that declaration,
counsel confirmed that he merely “partially summarized” in the
supplemental brief “the relevant portions” of the audio-recorded interview
(there was no video), which he then “referred to in open court at the hearing.”
Second, the reporter’s transcript of the petition hearing confirms that counsel
merely referred to the excerpts he had previously summarized in his
supplemental brief. Because the audio recording of the interview was neither
submitted to the trial court nor “read into the record,” we have not considered
it in resolving this appeal.
10
“who apparently likes to beat people up, and jumped in with all these other
48 [mob] guys in the initial attack.” The prosecutor also reminded the court
about the second part of the assault (not captured on video) during which
Sebastian “received the vast majority of his [injuries], which included . . .
staples and stitches and . . . four everlasting scars.”
As between Poindexter and Harris, the prosecutor emphasized
Poindexter’s role as “the heavy” who was “tutoring” Harris and bragging
about numerous robberies. The prosecutor also pointed out that Harris’s plea
deal admitted two strike priors (thereby exposing him to 25 to life for a future
strike offense) and included a seven-year suspended sentence (which would
result in him serving, at most, five years).
The prosecutor emphasized Poindexter’s and Andrade’s roles in the
assault put them “in a completely different boat than the other” assailants.
The court acknowledged “there has to be fairness in sentencing,
generally.” And based on its review of the cellphone video, materials
pertaining to Poindexter’s sentencing (which the court “recall[ed] . . .
vividly”), and Harris’s case file, the trial court concluded Poindexter’s
sentence was fair.
The court observed “there are so many parameters” to consider when
comparing codefendants’ sentences and “deciding what’s fair and what’s not
fair.” Different defendants may have played different roles in committing the
offense, and their sentences may be structured differently. For example,
although Poindexter was sentenced to an immediate seven-year term, the
court noted Harris “receive[d] two strikes, and it’s you pay me now, or you
pay me later.”
The court stated it was “satisfied that when [it] did the sentencing that
[it] evaluated all of the appropriate rules of court, that [Poindexter] was not
11
deserving of probation, and that the sentence was appropriate,” particularly
in light of the exposure he faced. “The court took into consideration
[Poindexter’s] lack of a prior record, his youth. And the court did not feel,
despite what he had to say [in written submissions to the court], that he was
remorseful.”
Accordingly, the trial court declined to recall Poindexter’s sentence and
resentence him.
B. Legal Principles
In 1976, the Legislature enacted section 1170, subdivision (d) “as part
of the Determinate Sentencing Act.” (Dix v. Superior Court (1991) 53 Cal.3d
442, 455 (Dix).) Section 1170, subdivision (d)(1) (hereafter, section
1170(d)(1)) authorizes a sentencing court to recall a sentence on its own
motion, within 120 days, “for any reason rationally related to lawful
sentencing.” (Dix, at p. 456; § 1170(d)(1).)14 Although section 1170(d)(1) does
14 Section 1170(d)(1) states: “When a defendant subject to this section or
subdivision (b) of Section 1168 has been sentenced to be imprisoned in the
state prison or a county jail pursuant to subdivision (h) and has been
committed to the custody of the secretary or the county correctional
administrator, the court may, within 120 days of the date of commitment on
its own motion, or at any time upon the recommendation of the secretary or
the Board of Parole Hearings in the case of state prison inmates, the county
correctional administrator in the case of county jail inmates, or the district
attorney of the county in which the defendant was sentenced, recall the
sentence and commitment previously ordered and resentence the defendant
in the same manner as if they had not previously been sentenced, provided
the new sentence, if any, is no greater than the initial sentence. The court
resentencing under this subdivision shall apply the sentencing rules of the
Judicial Council so as to eliminate disparity of sentences and to promote
uniformity of sentencing. The court resentencing under this paragraph may
reduce a defendant’s term of imprisonment and modify the judgment,
including a judgment entered after a plea agreement, if it is in the interest of
justice. The court may consider postconviction factors, including, but not
12
not expressly grant defendants the right to move the court to recall a
sentence, the courts have recognized that defendants may “ ‘ “invite the court
to exercise its power” ’ ” to recall and resentence. (Loper, supra, 60 Cal.4th at
p. 1167, italics added; cf. People v. Kim (2012) 212 Cal.App.4th 117, 121, fn. 4
[although “a defendant is not entitled to move for dismissal” of a strike prior
under section 1385, the defendant “may . . . ‘ “invite the court to exercise its
power,” ’ ” italics added].)
Notwithstanding the statute’s stated goals of “eliminat[ing] disparity of
sentences and . . . promot[ing] uniformity of sentences” (§ 1170(d)(1)), it does
not require that sentencing courts conduct a disparate sentence review.
Rather, the statutory language refers to the Legislature’s enactment of “[t]he
entire Determinate Sentencing Act,” which provided uniformity “by
introducing a scheme of fixed prison terms ‘in proportion to the seriousness of
the offense as determined by the Legislature’ ” and by directing the Judicial
Council to adopt guidelines for trial courts’ use at sentencing. (Dix, supra, 53
Cal.3d at pp. 456-457; see § 1170.3 [“The Judicial Council shall seek to
promote uniformity in sentencing under Section 1170 by [¶] . . . providing
limited to, the inmate’s disciplinary record and record of rehabilitation while
incarcerated, evidence that reflects whether age, time served, and diminished
physical condition, if any, have reduced the inmate’s risk for future violence,
and evidence that reflects that circumstances have changed since the
inmate’s original sentencing so that the inmate’s continued incarceration is
no longer in the interest of justice. Credit shall be given for time served.”
(§ 1170(d)(1); see People v. Loper (2015) 60 Cal.4th 1155, 1160, fn. 2 (Loper)
[“Read in context, reference to ‘the secretary’ means the Secretary of the
[California Department of Corrections and Rehabilitation.”].)
13
criteria for the consideration of the trial judge at the time of
sentencing . . . .”].)15
Thus, so long as a defendant’s punishment is proportionate to his or her
individual culpability (intracase proportionality), it need not be proportionate
to the punishments imposed in other similar cases or on codefendants in the
same case (intercase proportionality). (See People v. Bryant, Smith and
Wheeler (2014) 60 Cal.4th 335, 384, 469 (Bryant); People v. Hoyt (2020) 8
Cal.5th 892, 955 (Hoyt); People v. Ramos (1997) 15 Cal.4th 1133, 1182
(Ramos) [intercase proportionality is inapplicable regardless of “whether the
comparison involves sentences for other, similar crimes or sentences of
codefendants”]; People v. Gurule (2002) 28 Cal.4th 557, 663 (Gurule) [“ ‘We
have consistently rejected the contention that intercase proportionality
review is required’ [citation], even as to codefendants [citations].”]; Weddle,
supra, 1 Cal.App.4th at pp. 1195-1196 & fn. 3.)
Although section 1170 no longer requires that sentencing courts ensure
intercase proportionality, nothing precludes a sentencing court from
considering intercase proportionality when exercising its sentencing
discretion.
A trial court's decision whether to recall a sentence “necessarily
involves the exercise of discretion.” (Portillo v. Superior Court (1992)
10 Cal.App.4th 1829, 1833; see Dix, supra, 53 Cal.3d at p. 459 [“the court
15 Section 1170 used to require that the Board of Prison Terms—not the
trial court—conduct a disparate sentence review. (See § 1170, former subd.
(f)(1); People v. Martin (1986) 42 Cal.3d 437, 441; People v. Weddle (1991)
1 Cal.App.4th 1190, 1198, fn. 7 (Weddle).) However, the Legislature
eliminated this requirement in 1992. (Stats. 1992, ch. 695, § 10; see Williams
v. Calderon (C.D.Cal. 1998) 48 F.Supp.2d 979, 1030, fn. 13; People v. Boyette
(2002) 29 Cal.4th 381, 466, fn. 22).
14
may recall and resentence on its own initiative, but need not do so”].) We
review the decision for abuse of discretion. (People v. Pritchett (1993) 20
Cal.App.4th 190, 195.)
C. Analysis
The trial court did not abuse its discretion in declining to recall
Poindexter’s sentence and resentence him. As in the trial court, the only
justification Poindexter invokes on appeal is his assertion that his sentence is
disproportionate to the sentences his accomplices received from other judges.
The law is clear, however, that no such intercase proportionality is required.
(See Bryant, supra, 60 Cal.4th at p. 469; Hoyt, supra, 8 Cal.5th at p. 955;
Ramos, supra, 15 Cal.4th at p. 1182; Gurule, supra, 28 Cal.4th at p. 663;
Weddle, supra, 1 Cal.App.4th at pp. 1195-1196 & fn. 3.)
Moreover, even though the trial court was not required to conduct an
intercase proportionality review, the court did so here with respect to Harris’s
and Wilkerson’s sentences (Andrade had not yet been sentenced). We find no
abuse of discretion in the trial court’s determination.
First, as to Harris’s sentence, the trial court properly recognized that
although Harris’s plea bargain included a shorter initial custodial term than
Poindexter’s, it also included a significant suspended prison sentence and
subjected Harris to a third-strike sentence for a future strike offense (“you
pay me now, or you pay me later”). And although Harris and Poindexter
pleaded guilty to the same offense and admitted the same enhancement
allegations, the record supports that they may have had differing degrees of
culpability. For example, Poindexter and Andrade—but not Harris—
initiated the second part of the assault on Sebastian by returning to the
house with handguns they then used to pistol-whip the victim.
15
Second, the apparent disparity between Poindexter’s and Wilkerson’s
sentences is easily explained by the fact that Poindexter faced significantly
more exposure—20 years more—because he admittedly used a firearm during
the commission of a gang-related assault. (§§ 12022.5, subd. (a)), 186.22,
subd. (b).)
In sum, we find no abuse of discretion in the trial court’s effort to
ensure “fairness in sentencing, generally.” The court thoroughly reviewed
the record, vividly recalled the initial sentencing, and was satisfied it had
considered the relevant sentencing factors articulated by the rules of court.
Thus, the trial court complied with section 1170(d)(1).
II. Poindexter Forfeited His Dueñas Challenge
Poindexter contends the trial court’s imposition of $2,324 in fines, fees,
and assessments without first determining his ability to pay them violated
his due process rights as enunciated in Dueñas, supra, 30 Cal.App.5th
1157.16 The Attorney General counters that Poindexter forfeited this
challenge by failing to raise it at the sentencing hearing, which occurred five
months after Dueñas was decided. Poindexter acknowledges he was
sentenced post-Dueñas, but maintains he has not forfeited the challenge
because his trial counsel’s failure to raise the issue constituted ineffective
assistance. We conclude Poindexter forfeited this challenge and has not met
his burden of showing the forfeiture resulted from ineffective assistance.
16 In Dueñas, supra, 30 Cal.App.5th 1157, the Court of Appeal for the
Second District, Division Seven, held that imposing assessments and a fine
on an indigent defendant violated due process-based rights that ensure
access to the courts and bar incarceration based on nonpayment of fines due
to indigence. (Id. at pp. 1167-1168, 1172.) The issues raised in Dueñas are
currently before the California Supreme Court. (See People v. Kopp (2019) 38
Cal.App.5th 47, review granted Nov. 13, 2019, No. S257844.)
16
A. Forfeiture
Poindexter forfeited this challenge for two reasons. First, although
courts are split over whether a defendant’s failure to assert a due process
challenge to monetary assessments at sentencing forfeits the issue for appeal,
the courts that have declined to find a forfeiture have generally done so on
the grounds the Dueñas decision “represent[ed] an unforeseen significant
shift in the pertinent law that trial counsel could not have anticipated, thus
excusing the failure to raise the issue.” (See People v. Santos (2019) 38
Cal.App.5th 923, 931.) Here, however, Poindexter was sentenced five months
after Dueñas was filed. Accordingly, he had no reason not to expressly invoke
Dueñas as the basis for an inability-to-pay challenge.
Second, wholly apart from Dueñas, the statute that authorized the
$2,100 restitution fine—which comprises about 90 percent of the $2,324
Poindexter challenges on appeal—expressly authorized the trial court to
consider his inability to pay. Specifically, by imposing a $2,100 restitution
fine under section 1202.4, subdivision (b), the trial court exceeded the $300
minimum fine, thereby authorizing the court to “consider[]” Poindexter’s
“[i]nability to pay.” (§ 1202.4, subd. (c).)17 By statute, Poindexter bore “the
burden of demonstrating his . . . inability to pay.” (§ 1202.4, subd. (d).) “The
statute thus impliedly presumes a defendant has the ability to pay and
expressly places the burden on a defendant to prove lack of ability.” (People
v. Romero (1996) 43 Cal.App.4th 440, 449.)
17 Section 1202.4, subdivision (c) states in part: “The court shall impose
the restitution fine unless it finds compelling and extraordinary reasons for
not doing so and states those reasons on the record. A defendant's inability
to pay shall not be considered a compelling and extraordinary reason not to
impose a restitution fine. Inability to pay may be considered only in
increasing the amount of the restitution fine in excess of the minimum
fine . . . .” (Italics added.)
17
Poindexter’s silence during sentencing in the face of a $2,100 fine he
could have challenged on inability-to-pay grounds “is a classic example of the
application of the forfeiture doctrine relied upon by the California Supreme
Court in numerous criminal sentencing cases decided well before Dueñas.”
(People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033; see People v. Nelson
(2011) 51 Cal.4th 198, 227 [applying the forfeiture rule to an unpreserved
ability-to-pay challenge to a restitution fine].) And because Poindexter failed
to object at sentencing to the $2,100 restitution fine on ability-to-pay
grounds, he has forfeited the issue on appeal as to the remaining $224 in
challenged assessments. (See Gutierrez, at p. 1033 [“As a practical matter, if
[the defendant] chose not to object to a $10,000 restitution fine based on an
inability to pay, he surely would not complain on similar grounds regarding
an additional $1,300 in fees.”].)
B. Ineffective Assistance of Counsel
Poindexter has not met his burden of showing that his forfeiture of this
challenge resulted from ineffective assistance of counsel. To establish this,
Poindexter must show both that (1) his counsel’s performance was deficient
because it fell below an objective standard of reasonableness under prevailing
professional norms, and (2) the alleged deficiency was prejudicial in that it is
reasonably probable he would have obtained a more favorable outcome
absent the deficiency. (Strickland v. Washington (1984) 466 U.S. 668, 687-
688; see People v. Bell (2019) 7 Cal.5th 70, 125.) He has not established
either prong.
Poindexter has not cited any evidence in the record indicating he is or
will be unable to pay the monetary assessments. Thus, he has not shown
that his counsel deficiently overlooked a meritorious challenge. (See People v.
Ochoa (1998) 19 Cal.4th 353, 432 [“Counsel did not perform deficiently for
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failing to make what would have been a meritless request.”]; People v. Torrez
(1995) 31 Cal.App.4th 1084, 1091 [“A defense counsel is not required to make
futile motions or to indulge in idle acts to appear competent.”].)
Additionally, although Poindexter suggests in his briefing that his trial
counsel could have had no rational, tactical reason for failing to raise the
issue, Poindexter also acknowledges his counsel “put all his energy into”
attempting to keep Poindexter out of prison. Such tactical decisions rarely
constitute deficient performance. (See People v. Arredondo (2019) 8 Cal.5th
694, 711.)
Nor has Poindexter shown that he would have obtained a more
favorable outcome had his counsel raised an inability-to-pay challenge.
Indeed, the record contains plenty of evidence suggesting the contrary is true.
Poindexter lived with his mother and her fiancé, was financially supported by
his parents, denied any psychological problems, and had a successful work
history before his arrest.18 Moreover, he will likely have the opportunity to
earn money during the seven years he is incarcerated. (See People v.
Johnson (2019) 35 Cal.App.5th 134, 139 [“going forward we know [the
defendant] will have the ability to earn prison wages over a sustained
period”].)
In short, Poindexter has not established either ineffective assistance of
counsel prong. (See People v. Lewis (1990) 50 Cal.3d 262, 289 [neither prong
satisfied where ineffectiveness claim was “supported by nothing more than
bald assertions that counsel should have” acted differently].)
18 Although the record indicates Poindexter left a “dish trainer” job at a
restaurant “after developing a drug problem,” the record also shows he later
obtained a dishwashing job while visiting his grandmother in Washington
and was “told . . . he is welcome to come back anytime.”
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DISPOSITION
Affirmed.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
DATO, J.
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