People v. Martinez CA2/6 ( 2021 )

Filed 3/15/21 P. v. Martinez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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. B307311
(Super. Ct. No. 2020015525)
Plaintiff and Respondent, (Ventura County)
v.
JONATHAN PETER
MARTINEZ,
Defendant and Appellant.
Jonathan Peter Martinez appeals a judgment following his
conviction for second degree robbery. (Pen. Code, § 211.)1 The
trial court sentenced him to an aggregate prison term of two
years. It also imposed a $300 restitution fine. (§ 1202.4.)
We conclude Martinez has not shown that the trial court
erred by imposing the $300 restitution fine. (§ 1202.4.) We
affirm.
1 All statutory references are to the Penal Code.
FACTS
On May 30, 2020, Juan Munoz rode his bicycle to a donut
shop. He went into the shop and he “secured” the bicycle “with a
lock.”
When Munoz came out of the shop, he confronted Martinez
who was on Munoz’s bicycle and attempting to ride away.
Martinez told Munoz to take the lock off his bicycle. Munoz
refused.
Martinez then pulled out a “black firearm.” He told Munoz
to remove the lock from his bicycle. Munoz complied. Martinez
took the bicycle and road away on Munoz’s bicycle. Munoz
contacted the police.
Pursuant to a negotiated plea agreement, Martinez pled
guilty to second degree robbery. In that written plea agreement,
he acknowledged, among other things, that he “will be ordered to
pay a restitution fine of not less than $300 and not more than
$10,000.” In sentencing, the trial court imposed the lowest
possible restitution fine of $300.
At the sentencing hearing, Martinez’s counsel did not
request an evidentiary hearing on Martinez’s ability to pay fines,
and counsel did not introduce any evidence on that issue.
DISCUSSION
Validity of the $300 Fine
Martinez contends the trial court erred in imposing a $300
restitution fine. Relying on People v. Dueñas (2019) 30
Cal.App.5th 1157, he claims the court did not consider his ability
to pay the fine before it was imposed, and consequently it must
be set aside. He claims his counsel raised this issue in the trial
court.
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In Dueñas, the court held that imposing fines on
defendants who lack the ability to pay violates due process.
(People v. Dueñas, supra, 30 Cal.App.5th at p. 1168.) Courts
following Dueñas have held the defendant must have “the
opportunity to request a hearing on his ability to pay.” (People v.
Santos (2019) 38 Cal.App.5th 923, 934-935, italics added.)
Here Martinez had that opportunity. His counsel asked the
trial court not to impose the fine based on his inability to pay.
But counsel did not request an evidentiary hearing on ability to
pay. She did not present evidence, present a declaration, or make
a specific offer of proof regarding Martinez’s current financial
condition.
The People contend Martinez does not have grounds to
object to the fine because: 1) he failed to present evidence of his
inability to pay, and 2) he did not take advantage of his adequate
opportunity to make a factual record in the trial court to show
reversible error on appeal. We agree.
The defendant is “obligated to create a record showing his
inability to pay.” (People v. Aviles (2019) 39 Cal.App.5th 1055,
1074.) Because Martinez is in the best position to know his own
financial condition, he has the burden to show why a fine should
not be imposed. (People v. Frandsen (2019) 33 Cal.App.5th 1126,
1154.) He has not met his burden. His trial counsel only
presented a very short oral argument. Martinez consequently did
not preserve a factual record in the trial court to support his
factual claims on appeal. (Ibid.; see also People v. Santos, supra,
38 Cal.App.5th at p. 934 [“it is the defendant’s burden to
demonstrate an inability to pay, not the prosecution’s burden to
show the defendant can pay, as the Dueñas decision might be
read to suggest”].)
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Martinez notes that the trial court indicated that the $300
restitution fine was mandatory. But the court was apparently
referring to section 1202.4, subdivision (b)(1), which sets forth a
mandatory minimum fine of $300. Martinez suggests the court’s
finding was error because the court has the constitutional
authority to waive this fee based on inability to pay
notwithstanding the statutory figure. But Martinez’s trial
counsel did not make a constitutional argument supported by
facts in the record to show that this $300 statutory fine was
unconstitutional. Moreover, even had Martinez shown that the
court made an incorrect statement of law, that would not require
reversal of an otherwise valid order. (People v. Zapien (1993) 4
Cal.4th 929, 976 [“ ‘a ruling or decision, itself correct in law, will
not be disturbed on appeal merely because given for a wrong
reason’ ”].)
Here there is no showing in this record that the trial court
ever prevented Martinez’s counsel from presenting evidence
about Martinez’s inability to pay to make a record for an appeal.
Nor did the court prevent his counsel from raising a
constitutional argument with evidentiary support. Instead, his
counsel made only a very brief claim of inability to pay, and then
essentially invited the court to decide the factual issues based on
that inadequate factual record. A party may be precluded from
claiming error where that party invited the trial court to rule
based on an inadequate factual record, and then claims error on
appeal involving an issue that requires factual findings. (People
v. Russell (2010) 50 Cal.4th 1228, 1250; In re G.P. (2014) 227
Cal.App.4th 1180, 1193, 1196 [invited error doctrine barred claim
on appeal].)
4
Martinez claims the $300 fine is unconstitutional. But the
$300 fine the trial court imposed was not high; it was the lowest
minimum statutory fine. Martinez has not shown that a $300
fine is unconstitutional as being “grossly disproportional” when
compared to the gravity of his felony offense. (United States v.
Bajakajian (1998) 524 U.S. 321, 334 [141 L.Ed.2d 314, 329];
People v. Aviles, supra, 39 Cal.App.5th at p. 1070.) For due
process purposes, his claim fails because he was “not denied
access to the courts or prohibited from presenting a defense.”
(People v. Lowery (2020) 43 Cal.App.5th 1046, 1056.)
Martinez contends the probation report shows that he was
unemployed and it did not list his assets. He claims this means
he lacked the ability to pay.
But “ ‘ “[a]bility to pay does not necessarily require existing
employment or cash on hand.” ’ ” (People v. Aviles, supra, 39
Cal.App.5th at p. 1076.) The court may consider the defendant’s
ability to pay in the future. (Ibid.) This may include the
defendant’s “ability to earn prison wages.” (People v. Santos,
supra, 38 Cal.App.5th at p. 934.) These fines may be paid in
installments. Martinez was sentenced to a state prison term. At
the time of sentencing, he was 21 years of age. He told the
probation department that “his physical health is ‘great.’ ”
Martinez made no showing in the trial court that he has any
physical disability that prevents him from working. (People v.
Frye (1994) 21 Cal.App.4th 1483, 1487 [“If defendant was
ineligible for prison work assignment, it was incumbent upon him
to alert the court to any such disability”].) As stated in Aviles,
“We can infer defendant in this case has the ability to pay the
fines and fees imposed upon him from probable future wages,
including prison wages.” (Aviles, at p. 1076; People v. Gentry
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(1994) 28 Cal.App.4th 1374, 1377 [“Appellant can satisfy the
remainder of the debt either through what is left of his prison
wages or through future employment”].)
Martinez, as a felon sentenced to a prison term, “is not
similarly situated to the misdemeanor probationer in Dueñas.”
(People v. Johnson (2019) 35 Cal.App.5th 134, 139.) Even had he
shown error, the error is harmless considering the low amount of
this fine. (Id. at pp. 139-140 [the claim that a prisoner could not
pay a fine from prison wages was not meritorious].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
PERREN, J.
TANGEMAN, J.
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Rocky J. Baio, Judge
Superior Court County of Ventura
______________________________
Richard Lennon, 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, Scott A. Taryle and Rene Judkiewicz, Deputy
Attorneys General, for Plaintiff and Respondent.
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