People v. Hart CA2/2 ( 2021 )

Filed 4/1/21 P. v. Hart CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B301418
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA109696)
v.
JUSTIN HART,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Judith L. Meyer, Judge. Affirmed as modified.
Maggie Shrout, 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, Paul M. Roadarmel, Jr., and Allison H. Chung,
Deputy Attorneys General, for Plaintiff and Respondent.
******
INTRODUCTION
Justin Hart (defendant) argues that the trial court violated
his constitutional rights by imposing the minimum amount of
fines and fees, which total $380. There was no constitutional
violation. Further, the trial court erred in not imposing an
additional $70 in mandatory fees, and we order the trial court to
correct this error. In all other respects, the judgment is affirmed.
FACTS AND PROCEDURAL BACKGROUND
While purporting to sell a motorcycle over Craigslist,
defendant met with Rafael Durnat (Durnat). Durnat gave
defendant $7,500 in cash, and defendant left him the bike. Less
than two weeks later, defendant retrieved the bike from Durnat’s
parking garage and sold it to Del Amo Motorsports in Long Beach
for another $7,500.
The People charged defendant with (1) grand theft (Pen.
Code, § 487, subd. (a)),1 and (2) first degree residential burglary
(§ 459).
In July 2019, defendant and the People entered into a plea
bargain. Pursuant to that bargain, defendant pled no contest to
grand theft and second degree residential burglary, was placed
on three years of formal probation, and was ordered to pay $7,500
in direct victim restitution to Del Amo Motorsports (which had
allowed Durnat to keep the bike). The trial court also imposed a
$300 restitution fine (§ 1202.4, subd. (b)), a $40 court operations
assessment (§ 1465.8, subd. (a)(1)), a $30 criminal conviction
1 All further statutory references are to the Penal Code
unless otherwise indicated.
The People later added a charge of obtaining money by
false pretenses (§ 532, subd. (a)), but the charge was dismissed as
part of a plea bargain.
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assessment (Gov. Code, § 70373, subd. (a)(1)), and a $10 crime
prevention fine applicable to grand theft convictions (§ 1202.5).
At sentencing, the prosecutor asked that the agreed-upon
restitution be paid in six months; defendant said it would take
him “about 14 months to pay it back”; and the trial court gave
defendant 12 months to pay it in full. Defendant said nothing
about his inability to pay the mandatory fines or fees.
Defendant filed this timely appeal.
DISCUSSION
I. Challenge to Mandatory Fines and Fees
Defendant argues that the $380 in mandatory fines and
assessments imposed by the trial court (1) are unconstitutional
under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), and
(2) constitute cruel and unusual punishment. We reject his
arguments for two reasons.2
First, defendant has forfeited any objection to these fines
and assessments. He was sentenced nearly six months after
Dueñas was decided, yet never objected to the court that he had
the inability to pay those fines and assessments or that the fines
and fees constituted cruel and unusual punishment. This
constitutes a forfeiture. (People v. Frandsen (2019) 33
Cal.App.5th 1126, 1153-1154 [so holding]; see generally People v.
2 In light of these reasons, and the uncertainty of whether
section 1237.2 applies to constitutional challenges to the
imposition of fines and assessments (People v. Hall (2019) 39
Cal.App.5th 502, 504-505 [suggesting that section 1237.2 may not
apply to challenges to fines and assessments that “implicate [a]
defendant’s constitutional rights”]), we do not consider the
People’s argument that defendant’s entire appeal is barred by
section 1237.2 due to his failure to object to the imposition of
those fines and fees before the trial court.
3
Speight (2014) 227 Cal.App.4th 1229, 1248-1249 [party’s failure
to object based on a five-week-old case constitutes a forfeiture].)
Second, defendant’s arguments lack merit. His due
process-based argument is based entirely on Dueñas, and we
have rejected Dueñas’s reasoning. (See People v. Hicks (2019) 40
Cal.App.5th 320, review granted Nov. 26, 2019, S258946.) Even
if our Supreme Court upholds Dueñas, defendant’s Dueñas-based
objection still fails because he “points to no evidence in the record
supporting his inability to pay.” (People v. Gamache (2010) 48
Cal.4th 347, 409.) Indeed, the record indicates that defendant
can pay the $380 in mandatory fines and assessments (and, for
that matter, the $450 he actually owes) by the time he completes
his three years of probation because he stipulated to pay $7,500
in direct victim restitution and represented to the court he could
pay it in 14 months: If defendant, by his own admission, has the
ability to pay $7,500 in the first 14 months of his probation, there
is no reason to believe he could not pay an additional $450 in the
remaining 22 months. Defendant’s cruel and unusual-based
argument also lacks merit. Whether a fine or assessment
imposed in a criminal case constitutes cruel and unusual
punishment turns on whether it is “grossly disproportional to the
gravity of [the] defendant’s offense.” (United States v. Bajakajian
(1998) 524 U.S. 321, 334 (Bajakajian), superseded by statute on
other grounds as stated in United States v. Jose (2007) 499 F.3d
105, 110.) Factors relevant to gross disproportionality include
“(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.]”
(People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37
Cal.4th 707, 728.) Under this standard, a defendant’s ability to
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pay is a factor, not the only factor. (Bajakajian, at pp. 337-338.)
Applying these factors, we conclude that the minimum monetary
obligations totaling $450 are not grossly disproportionate to his
crimes of committing burglary and the theft of $7,500.
II. Correction of Abstract of Judgment
Because defendant entered pleas to two counts, the trial
court was required to impose a $40 court operations assessment
and a $30 criminal conviction assessment as to each count.
(§ 1465.8, subd. (a)(1); Gov. Code, § 70373, subd. (a)(1).) The trial
court erred here because it only imposed each of those
assessments once, not twice. We may correct a trial court’s
failure to impose a mandatory fee on appeal. (People v.
Castellanos (2009) 175 Cal.App.4th 1524, 1530.) Accordingly, we
order the clerk of the superior court to prepare an amended
abstract of judgment that reflects a total of $450 in fines and
assessments. (People v. Chan (2005) 128 Cal.App.4th 408, 425-
426.)
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DISPOSITION
The abstract of judgment is modified as follows: a $30
criminal conviction assessment pursuant to Government Code
section 70373, subdivision (a)(1) should be imposed for each
count, for a total of $60; and a $40 court security fee pursuant to
section 1465.8, subdivision (a)(1) should be imposed for each
count, for a total of $80. The trial court is ordered to prepare and
forward a certified copy of the modified abstract of judgment to
the California Department of Corrections and Rehabilitation. As
modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST
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