People v. Monroy CA2/6 ( 2020 )

Filed 11/17/20 P. v. Monroy CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B301691
(Super. Ct. No. 18CR06432)
Plaintiff and Respondent, (Santa Barbara County)
v.
ERIC BERTO MONROY,
Defendant and Appellant.
Eric Berto Monroy appeals from the judgment after
he pled guilty to second degree murder and admitted a gang
allegation. (Pen. Code,1 §§ 187, subd. (a); 186.22, subd. (b)(1).)
The trial court sentenced him to 15 years to life in state prison.
Monroy contends the trial court erred when it
imposed a $10,000 restitution fine (§ 1202.4, subd. (b)), a $40
court operations assessment (§ 1465.8), and a $30 conviction
1 Further unspecified statutory references are to the Penal
Code.
assessment (Gov. Code, § 70373) without evidence of his ability to
pay. We affirm.
FACTUAL AND PROCEDURAL HISTORY
In January 2010, Monroy participated in the shooting
of another person in order to gain favor with a gang. After
pleading guilty to murder and admitting a gang allegation, the
trial court sentenced him to 15 years to life in state prison.
At sentencing, Monroy objected to the imposition of
fines and fees, including a $10,000 restitution fine (§ 1202.4,
subd. (b)(1)), pursuant to People v. Dueñas (2019) 30 Cal. App. 5th
1157 (Dueñas).2 He said he was represented by court-appointed
counsel, and had “no job, no future ability to have a job since he’s
pled to a murder conviction and will be serving a life sentence.”
The trial court imposed the maximum restitution fine
(§ 1202.4, subd. (b)). The court stated: “Considering the length of
the incarceration, the fact that he can earn wages in prison, I am
going to find that fine is also proportionate to the crime that was
committed.” The court also ordered a $10,000 parole revocation
restitution fine, which was suspended pending successful
completion of parole (§ 1202.45), $8,601.85 in victim restitution
payable to the California Victim Compensation Board (§ 1202.4,
subd. (f)), an additional $2,200 in victim restitution payable to
the victim’s family,3 a $40 court operations assessment (§ 1465.8),
and a $30 conviction assessment (Gov. Code, § 70373).
2Monroy did not forfeit the challenge to the court
operations and the conviction assessments. The record reflects
he objected to “any fines or fees pursuant to [Dueñas].”
3 Monroy’s co-defendants were jointly and severally liable
for both of the restitution awards.
2
DISCUSSION
Monroy contends the trial court violated his due
process rights when it imposed the fines and fees because there
was no evidence of his ability to pay them. He contends the
restitution fine should be stayed until the prosecution shows he
has the ability to pay and the court operations and the conviction
assessments should be stricken. We disagree.
Dueñas, supra, 30 Cal.App.5th at p. 1164, held that
due process requires a trial court to conduct a hearing to
“ascertain a defendant’s present ability to pay” before imposing a
court operations assessment (§ 1465.8), a conviction assessment
(Gov. Code, § 70373), or restitution fine (§ 1202.4). The facts of
Dueñas were unique and unlike the facts here. Dueñas was
convicted of driving on a suspended license, based at least in part
on her financial inability to pay previously imposed fines or fees
required to reinstate her license. She and her husband were
homeless, unemployed, and unable to provide even basic
necessities for themselves and their children. (Dueñas, at pp.
1160-1161.) The fines and fees in her case contributed to an ever-
expanding cycle of criminal consequences due to her poverty. (Id.
at p. 1163.)
There is nothing in the record to suggest Monroy had
a history of an inability to pay court fines and fees, or that he had
or would suffer further criminal consequences due to his poverty.
The record reflects that Monroy had three jobs before his arrest
and had a net monthly income of $300 after expenses. And
unlike Dueñas, here the court determined Monroy’s ability to pay
the restitution fine and fees before imposing them. The court
found that because Monroy can earn wages during his lengthy
prison sentence, he had the ability to pay.
3
The court must impose a restitution fine “[i]n every
case where a person is convicted of a crime . . . unless it finds
compelling and extraordinary reasons for not doing so and states
those reasons on the record.” (§ 1202.4, subd. (b).) The minimum
restitution fine for a felony is $300 and the maximum is $10,000.
(§ 1202.4, subd. (b)(1).)
“The restitution fine shall be set at the discretion of
the court and commensurate with the seriousness of the offense.”
(§ 1202.4, subd. (b)(1).) In ordering a fine in excess of the $300
minimum, “the court shall consider any relevant factors,
including, but not limited to, the defendant’s inability to pay, the
seriousness and gravity of the offense and the circumstances of
its commission . . . . Consideration of a defendant’s inability to
pay may include [their] future earning capacity. A defendant
shall bear the burden of demonstrating [their] inability to pay.
Express findings by the court as to the factors bearing on the
amount of the fine shall not be required. A separate hearing for
the fine shall not be required.” (§ 1202.4, subd. (d).)
Monroy did not meet his statutory burden to show his
inability to pay the $10,000 restitution fine. (§ 1202.4, subd. (d).)
He stated that he had a court-appointed counsel, did not have a
job, and would not have a future job based on his conviction. But
qualifying for court-appointed counsel alone does not establish an
inability to pay fines and fees. (See People v. Douglas (1995) 39
Cal. App. 4th 1385, 1397 [a defendant may lack the ability to pay
the costs of court-appointed counsel yet have the ability to pay a
restitution fine]; see also People v. Castellano (2019) 33
Cal. App. 5th 485, fn. 5 (Castellano) [whether a defendant was
represented by court-appointed counsel is one of several factors to
consider when determining an ability to pay].) In contrast,
4
Monroy did not present evidence or assert he was unable to work
and earn wages during his prison sentence, or that he would not
be able to obtain employment after his release.
The trial court properly acted within its discretion in
setting the restitution fine. It considered Monroy’s ability to earn
money in prison. (People v. Aviles (2019) 39 Cal. App. 5th 1055,
1076; Castellano, supra, 33 Cal.App.5th at p. 490.) Prison wages
currently range from $12 to $56 per month. (Cal. Code. Regs., tit.
15, § 3041.2; Aviles, at p. 1076.) The state may garnish up to 50
percent of those wages to pay a restitution fine. (§ 2085.5, subds.
(a), (c).) Nothing in the record suggests that Monroy, who was 27
years old at the time of sentencing, would be unable to work in
prison. Given Monroy’s 15 years-to-life sentence, his prison
wages could pay the $40 court operations assessment, the $30
conviction assessment, and a substantial amount, or all, of the
restitution fine.
Furthermore, inability to pay a restitution fine above
the statutory minimum does not automatically invalidate it.
(People v. Potts (2019) 6 Cal. 5th 1012, 1056.) Inability to pay is
but “a factor for the court to consider in setting the amount of a
restitution fine, alongside ‘any relevant factors.’” (Id. at p. 1056;
People v. Kramis (2012) 209 Cal. App. 4th 346, 350.) In setting the
restitution fine here, the trial court properly exercised its
discretion after it considered Monroy’s ability to pay.4
4 The Attorney General contends the challenge to the
restitution fine is better addressed under the excessive fines
prohibition of the Eighth Amendment. (See People v. Kopp (2019)
38 Cal. App. 5th 47, 96, review granted Nov. 13, 2019, S257844.)
But Monroy does not raise an excessive fines challenge on appeal,
and in light of our affirmance, we need not resolve the Eighth
Amendment question.
5
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
6
Gustavo E. Lavayen, Judge
Superior Court County of Santa Barbara
______________________________
Richard B. Lennon and Suzan E. Hier, under
appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, David E. Madeo and Kathy S.
Pomerantz, Deputy Attorneys General, for Plaintiff and
Respondent.