People v. Withers CA2/7 ( 2021 )

Filed 4/16/21 P. v. Withers CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B305542
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA064165)
v.
THORTON DAVID WITHERS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Allen J. Webster, Jr., Judge. Affirmed.
Paul Stubb Jr., under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
Thorton David Withers appeals from a postjudgment order
denying his motion to vacate the restitution and parole
revocation fines imposed when he was sentenced as a third strike
offender following his conviction for aggravated assault in 2002.
No arguable issues were identified by Withers’s appointed
appellate counsel after his review of the record. We also have
identified no arguable issues after our own independent review of
the record and analysis of the contentions presented by Withers
in a supplemental brief. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Withers was convicted following a jury trial of assault with
a firearm (Pen. Code, § 245, subd. (a)(2))1 with a true finding he
had personally used a firearm when committing the offense
(§ 12202.5). In a bifurcated proceeding the trial court found true
the allegations Withers had suffered two prior convictions for
serious or violent felonies within the meaning of the three strikes
law (§§ 667, subds. (b)-(i), 1170.12). Withers was sentenced as a
third strike offender to an aggregate indeterminate state prison
term of 30 years to life. As part of his sentence Withers was
ordered to pay a restitution fine of $5,000 pursuant to former
section 1202.4, subdivision (b). A parole revocation fine of $5,000
was imposed and stayed (former § 1202.45). We affirmed the
judgment on appeal. (People v. Withers (Nov. 19, 2003, B162764)
[nonpub. opn.].)
On March 2, 2020 Withers filed a motion to vacate the
restitution and parole revocation fines pursuant to our decision in
People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Withers
argued, “Petitioner is indigent and has an aggregate sentence of
1 Statutory references are to this code.
2
30 years to life indeterminate term, the imposition of the
assessments without the ability to pay finding violated his right
to due process.” In support of his contention he lacked the ability
to pay, Withers submitted a one-page Inmate Statement Report
dated February 10, 2020 indicating he had worked one day in
November 2019 and one day in December 2019; he received $25
for each day worked; and $3,027.31 remained due on his
restitution fine.2 The superior court summarily denied the
motion on March 3, 2020. Withers filed a timely notice of appeal.
DISCUSSION
In accord with the procedures described in People v. Cole
(2020) 52 Cal.App.5th 1023, review granted October 14, 2020,
S264278, we appointed counsel to represent Withers on appeal.
After reviewing the record, appointed counsel filed a brief raising
no issues. Appointed counsel advised Withers on August 17,
2020 that he may personally submit any contentions or issues he
wanted the court to consider.
2 “Prison wages range from $12 to $56 per month, depending
on the prisoner’s skill level.” (People v. Aviles (2019)
39 Cal.App.5th 1055, 1076; see Cal. Code Regs., tit. 15, § 3041.2,
subd. (a)(1).) The state is permitted to garnish a portion of those
wages to satisfy the restitution fine. (§ 2085.5, subds. (a), (e);
Cal. Code Regs., tit. 15, § 3097, subd. (f) [“[T]he department shall
deduct 50 percent or the balance owing, whichever is less, from
the inmate’s wages and trust account deposits regardless of the
source of such income subject to the exemptions enumerated in
subsection (j). In addition, an administrative fee of 10 percent of
the deduction shall be deducted to reimburse the department for
its administrative costs, for a maximum deduction of
55 percent”].)
3
On September 18, 2020 we received a 16-page typed
supplemental brief from Withers. Citing this court’s opinions in
Dueñas, supra, 30 Cal.App.5th 1157 and People v. Castellano
(2019) 33 Cal.App.5th 485 (Castellano), Withers asserts the
superior court erred in denying his motion to vacate the
restitution and parole revocation fines, arguing he had properly
raised the issue of his ability to pay by filing a motion in the
superior court and had produced evidence showing his actual
inability to pay the fines. Withers has forfeited this argument.
In Dueñas this court concluded, “[T]he assessment
provisions of Government Code section 70373 and Penal Code
section 1465.8, if imposed without a determination that the
defendant is able to pay, are . . . fundamentally unfair; imposing
these assessments upon indigent defendants without a
determination that they have the present ability to pay violates
due process under both the United States Constitution and the
California Constitution.” (Dueñas, supra, 30 Cal.App.5th at
p. 1168; accord, People v. Belloso (2019) 42 Cal.App.5th 647, 654-
655, review granted Mar. 11, 2020, S259755.) A restitution fine
under section 1202.4, subdivision (b), however, “is intended to be,
and is recognized as, additional punishment for a crime.”
(Dueñas, at p. 1169; accord, Belloso, at p. 655.) Although
section 1202.4, subdivision (c), expressly provides a defendant’s
inability to pay a restitution fine may not be considered a
“compelling and extraordinary reason” not to impose the
statutory minimum fine, the court may consider the defendant’s
ability to pay if the court imposes a restitution fine above the
minimum amount. (Id., subd. (d) [“[i]n setting the amount of the
[restitution] fine . . . in excess of the minimum fine,” the court
“shall consider any relevant factors, including, but not limited to,
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the defendant's inability to pay”]; see Dueñas, at p. 1170, fn. 6 [“a
trial court may . . . consider a defendant’s ability to pay if the
court is considering imposing a restitution fine in excess of the
statutory minimum amount”]; see also People v. Miracle (2018)
6 Cal.5th 318, 356.)
In Castellano, decided two months after Dueñas, we
clarified that, in the absence of evidence of the defendant’s
inability to pay, the People are not required to establish the
defendant has the means to pay before the court imposes the
fines, fees and assessments required by statute. “[A] defendant
must in the first instance contest in the trial court his or her
ability to pay the fines, fees and assessments to be imposed and
at a hearing present evidence of his or her inability to pay the
amounts contemplated by the trial court.” (Castellano, supra,
33 Cal.App.5th at p. 490; accord, People v. Montes (2021)
59 Cal.App.5th 1107, 1121 [“he will bear the burden of both
demonstrating a harm of constitutional magnitude and making a
record regarding his alleged inability to pay the restitution fine
and court assessments”]; People v. Santos (2019) 38 Cal.App.5th
923, 934 [“it is the defendant’s burden to demonstrate an
inability to pay, not the prosecution's burden to show the
defendant can pay”]; see Dueñas, supra, 30 Cal.App.5th at
pp. 1168-1169.) If the trial court determines, after considering
the relevant factors, a defendant is unable to pay, then the fees
and assessments cannot be imposed; and execution of any
restitution fine imposed must be stayed until such time as the
People can show that the defendant’s ability to pay has been
restored. (Castellano, at p. 490; Dueñas, at pp. 1168-1169, 1172.)3
3 In People v. Kopp (2019) 38 Cal.App.5th 47, review granted
November 13, 2019, S257844, the Supreme Court has directed
5
At the time Withers was sentenced in 2002, former
section 1202.4, subdivision (c), provided, “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 two-hundred-dollar
($200) . . . minimum.” (See also former section 1202.4,
subdivision (d) [“[i]n setting the amount of the fine pursuant to
subdivision (b) in excess of the two-hundred-dollar ($200) or one-
hundred-dollar ($100) minimum [for misdemeanors], the court
shall consider any relevant factors including, but not limited to,
the defendant’s inability to pay”].)
Here, because the $5,000 restitution fine exceeded the
statutory minimum, Withers had the opportunity to object based
on his inability to pay. By failing to object, Withers forfeited the
argument the court violated his rights by imposing the fine
without considering his ability to pay. (See People v. Miracle,
supra, 6 Cal.5th at p. 356 [“[b]ecause [the] defendant did not
object to the [restitution] fine at his sentencing hearing, he has
forfeited his challenge”]; People v. Avila (2009) 46 Cal.4th 680,
729 [“in not adducing evidence of his inability to pay” a $10,000
restitution fine, the defendant “forfeited the argument”]; People v.
Smith (2020) 46 Cal.App.5th 375, 395 [“a defendant forfeits a
challenge to the trial court’s imposition of a restitution fine above
the parties to brief the following issues: “Must a court consider a
defendant’s ability to pay before imposing or executing fines, fees,
and assessments? If so, which party bears the burden of proof
regarding defendant’s inability to pay?”
6
the statutory minimum for failing to consider his or her ability to
pay if the defendant did not object in the trial court”]; People v.
Gutierrez (2019) 35 Cal.App.5th 1027, 1033 [defendant “forfeited
any ability-to-pay argument regarding the restitution fine by
failing to object”].)4
Because no cognizable legal issues have been raised by
Withers’s appellate counsel or by Withers or identified in our
independent review of the record, the order denying the
postjudgment motions is affirmed. (See People v. Cole, supra,
52 Cal.App.5th at pp. 1039-1040, review granted; see also People
v. Serrano (2012) 211 Cal.App.4th 496, 503; see generally People
v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende (1979)
25 Cal.3d 436, 441-442.)
DISPOSITION
The postjudgment order is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
4 Former section 1202.45 in 2002, like section 1202.45,
subdivision (a), today, provides that the parole revocation fine
shall be assessed in the same amount as the restitution fine
pursuant to section 1202.4, subdivision (b). Accordingly,
Withers’s forfeiture of his challenge to the restitution fine also
forfeits any challenge to the parole revocation fine.
7