People v. Williams CA1/4 ( 2021 )

Filed 4/16/21 P. v. Williams CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A159918
v.
NICHOLAS EARL WILLIAMS, (Sonoma County
Super. Ct. No. SCR733930)
Defendant and Appellant.
In this appeal, defendant Nicholas Earl Williams argues that the trial
court violated the Eighth Amendment of the United States Constitution and
article I, section 17 of the California Constitution by imposing and staying for
120 days various fines and fees when defendant was put on formal probation,
while simultaneously determining that defendant did not have the present
ability to pay under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
We affirm because defendant does not establish on appeal that the fines and
fees were unconstitutionally excessive, but we find that a limited remand is
appropriate to correct certain errors in the trial court’s sentencing minute
order.
BACKGROUND
Defendant was arrested after an altercation with a 7-Eleven employee.
Per the police report, the employee saw defendant stealing candy, and when
he attempted to prevent defendant from leaving the store, the two got into a
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physical altercation. Defendant punched and kicked the employee, then
grabbed a plastic tray and struck him on the head. Witnesses shut the store
door from the outside and prevented defendant from leaving. When police
arrived, they observed that the employee had a bleeding cut on this head and
a laceration on his hand. After receiving Miranda1 warnings, defendant
informed police that the employee had harassed defendant’s friends at a local
park earlier that day, so he went to the store to steal candy as retribution.
He said, “ ‘I’m from Vallejo and in Vallejo when someone does something
wrong, you take their shit.’ ” Defendant later told the probation officer that
he stole the candy because he was hungry. Defendant was found in
possession of a methamphetamine pipe during a search of his person and was
ultimately placed under arrest. He subsequently admitted to probation that
he had been under the influence of methamphetamine on the night of his
arrest.
On December 17, 2019, the Sonoma County District Attorney filed a
felony complaint charging defendant with one count of felony robbery (Pen.
Code,2 § 211; count 1) and one count of misdemeanor possession of drug
paraphernalia (Health & Saf. Code, § 11364, subd. (a); count 2). Defendant
entered into a negotiated disposition pursuant to section 1192.5 whereby he
agreed to plead no contest to a felony count of assault with force likely to
cause great bodily injury (§ 245, subd. (a)(4)), he would serve 120 days in jail,
and he would be placed on formal probation for 36 months. As part of the
deal, counts 1 and 2 were to be dismissed. The court allowed amendment of
the complaint to charge defendant with count 3, assault with force likely to
1 Miranda v. Arizona (1966) 384 U.S. 436.
2All further statutory references are to the Penal Code unless
otherwise indicated.
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cause great bodily injury (§ 245, subd. (a)(4)), and defendant stipulated that
there was a factual basis for his plea based on the police report and his
counsel’s investigation. Defendant pled no contest to count 3, and the court
referred the matter to probation for a modified presentence report.
On March 5, 2020, the trial court sentenced defendant in accordance
with the negotiated disposition. Defendant received credit for time served
(168 days total), and formal probation for 36 months with normal terms and
conditions, including that he not use drugs and that he seek and maintain
employment or education. The court reserved victim restitution. In its initial
pronouncement of judgment, the court ordered defendant to pay a $40 court
security fee, a $30 criminal conviction fee, a $330 restitution fine, a $330
suspended probation revocation restitution fine, a $917 probation report
preparation fee, a $917 annual fee for probation supervision, and a $71
collection fee, all stayed for 120 days to allow defendant to get a job and
stabilize.
After the court’s initial pronouncement of the fines and fees, defense
counsel stated, “I understand that the type of employment Mr. Williams
engages in is recycling, so under [Dueñas], I think I need to ask the Court to
consider either reducing the fines and fees—because I don’t believe he will
have the—that he has a present ability to pay.” The trial court agreed that
defendant did not have the present ability to pay, but stated that defendant
had more capability than he was showing, there was a huge amount of work
available, and defendant needed to get a job and education. The court told
defendant to think about what he wanted to be doing in five years and asked
probation to work with him to develop a five-year plan; defendant confirmed
to the court that he was willing to discuss this plan with probation. Defense
counsel then inquired, “[I]s the Court not reducing his fines and fees? I—I
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am concerned about his ability.” The court responded, “I’ll stay the report
preparation fee, and I’ll reduce the probation supervision fee to $50 a month.
I’ll stay all fines and fees for 120 days, which I already did.”3 The court
stated that defendant needed to “step up,” he had more ability than he was
showing, he was young and healthy, and he needed to “get going.” Defense
counsel responded, “Thank you.” Defendant timely appealed.
DISCUSSION
I. Excessive Fines
Defendant asks this court to vacate the fines and fees imposed upon
him on the sole basis that the trial court erred under the excessive fines
prohibitions of the state and federal Constitutions4 because the court
erroneously found that, while defendant was presently unable to pay, he had
failed to establish future inability to pay.5
In January 2019, Dueñas held that, to impose court operations fees
(§ 1465.8) and facilities fees (Gov. Code, § 70373), and to impose but not stay
a $300 minimum restitution fine (§ 1202.4, subd. (b)), without holding a
hearing to determine the defendant’s ability to pay the fines and fees, violates
3 The fines and fees at issue total $2,271, excluding the stayed $330
probation revocation restitution fine and $917 probation report preparation
fee.
4 The Eighth Amendment states: “Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
(U.S. Const., 8th Amend.) Article I, section 17 of the California Constitution
states: “Cruel or unusual punishment may not be inflicted or excessive fines
imposed.”
5 Defendant does not contend the trial court erred by denying him an
ability to pay hearing or the opportunity to present evidence on his inability
to pay after a proper request. He does not request that we remand the
matter for an ability to pay hearing, and he makes no claims of statutory
error.
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due process. (Dueñas, supra, 30 Cal.App.5th at pp. 1168–1169, 1172.)6 After
Dueñas, a panel of this Division opted to address constitutional challenges to
fines and fees based on assertions of inability to pay under the Eighth
Amendment and article I, section 17 of the California Constitution. (People v.
Cowan (2020) 47 Cal.App.5th 32, 42, review granted June 17, 2020, S261952
(Cowan).)7 Cowan held that, “[b]ecause ability to pay is an element of the
excessive fines calculus under both the federal and state Constitutions, we
6 Dueñas was an indigent, homeless mother of young children who
could not work because of her cerebral palsy and who was trapped in a cycle
where she could not pay the fees to reinstate a suspended driver’s license; in
connection with misdemeanor convictions for driving with a suspended
license, she incurred additional fines and fees that she could not afford to
pay. (Dueñas, supra, 30 Cal.App.5th at p. 1161.) After pleading no contest to
another misdemeanor charge of driving with a suspended license, she
requested an ability to pay hearing, at which the trial court determined that
she lacked the ability to pay attorney fees (§ 987.8, subd. (b)) and waived
these fees. (Dueñas, at p. 1163.) Nonetheless, the court imposed assessments
(§ 1465.8; Gov. Code, § 70373) and a minimum restitution fine (§ 1202.4,
subd. (b)). (Dueñas, at p. 1163.)
7 Courts have developed different views on when an ability to pay
hearing must be held and what constitutional framework should be used to
analyze inability to pay claims. Several courts have criticized Dueñas and
have held that due process principles do not require determination of a
defendant’s ability to pay before imposing fines, fees, and assessments. (See,
e.g., People v. Pack-Ramirez (2020) 56 Cal.App.5th 851, 860; People v. Hicks
(2019) 40 Cal.App.5th 320, 326–329, review granted Nov. 26, 2019, S258946.)
Like Cowan, other courts have held that constitutional challenges to the
imposition of fines and fees should be based on the excessive fines clauses of
the state and federal Constitutions. (People v. Aviles (2019) 39 Cal.App.5th
1055, 1060.) Still other courts differentiate depending on the fines and fees
at issue. (People v. Kopp (2019) 38 Cal.App.5th 47, 96–98, review granted
Nov. 13, 2019, S257844 [remanding for ability to pay hearing on assessments
on due process grounds but directing that a restitution fine be analyzed
under the Eighth Amendment].) The California Supreme Court may soon
resolve the conflict. (See Kopp.)
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conclude that a sentencing court may not impose court operations or facilities
assessments or restitution fines without giving the defendant, on request, an
opportunity to present evidence and argument why such monetary exactions
exceed his [or her] ability to pay.” (Cowan, at p. 48.)
We agree with Cowan that “[a] suitable framework for analyzing the
constitutionality” of a restitution fine imposed under section 1202.4,
subdivision (b), and assessments under Government Code section 70373 and
section 1465.8 “is the excessive fines prohibition in the Eighth Amendment
and its counterpart under the California Constitution, article I, section 17.”
(Cowan, supra, 47 Cal.App.5th at p. 42.) We also agree with Cowan and
other courts that have concluded that evaluation of ability to pay must
include both a defendant’s present ability to pay and his or her future ability
to pay, and the defendant bears the burden of proof regarding inability to
pay. (Id. at pp. 40, 49.)
Here, however, we need not decide whether defendant met his burden
of establishing his inability to pay because, even if he did, he fails to establish
on appeal that the fines and fees imposed were unconstitutionally excessive.
Four factors are relevant to a constitutional excessive fines analysis: “(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.” (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005)
37 Cal.4th 707, 728 (Lockyer), citing United States v. Bajakajian (1998)
524 U.S. 321, 337–338 and City and County of San Francisco v. Sainez (2000)
77 Cal.App.4th 1302, 1320–1322; Cowan, supra, 47 Cal.App.5th at pp. 47–
48.) Ability to pay is an important factor, and, as Cowan observed, “[I]n cases
involving fines or fees the relative weight to be given ability to pay in the
proportionality calculus is much more important than it is in a forfeiture
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case.” (Cowan, at p. 48, fn. 20.) Nonetheless, Cowan refrained from
embracing a doctrinal development that endorses ability to pay as a
standalone, “constitutional lodestar” in fines and fees cases (People ex rel.
State Air Resources Bd. v. Wilmshurst (1999) 68 Cal.App.4th 1332, 1350),
commenting that this doctrinal development appears to run afoul of Lockyer’s
holding that “ability to pay is but one among several other proportionality
factors under Bajakajian.” (Cowan, at p. 48, fn. 20.)
Defendant does not mention the four relevant factors in his briefing.
Nor does he present any argument for why, when the factors are weighed in
this case where he acted in retribution and committed felony assault with
force likely to cause great bodily injury, the fines and fees imposed on him
must be considered excessive. By not addressing the relevant factors,
defendant falls short of establishing error under the Eighth Amendment and
under article I, section 17 of the California Constitution. (See People v.
Miralrio (2008) 167 Cal.App.4th 448, 452, fn. 4 [an appellate court is not
required to address undeveloped claims or ones inadequately briefed]; In re
S.C. (2006) 138 Cal.App.4th 396, 408 [a judgment is presumed correct on
appeal, and to demonstrate error, appellant must present meaningful legal
analysis supported by citations to authority]; see also U.S. v. Cheeseman
(3d Cir. 2010) 600 F.3d 270, 283 [defendant bears the burden of establishing
a fine is unconstitutionally excessive]; U.S. v. Viloski (2d Cir. 2016) 814 F.3d
104, 109 [same].)
II. Correction of Errors in the Court’s Sentencing Minute Order
Defendant suggests that remand is required to correct the trial court’s
purported error in failing to dismiss counts 1 and 2, but we do not believe
that remand is required for such a correction. This court has the power to
correct clerical errors (People v. Schultz (1965) 238 Cal.App.2d 804, 808), but
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the record sufficiently reflects dismissal of counts 1 and 2. The record shows
that defendant agreed to a plea of no contest to a count of felony assault with
force likely to produce great bodily injury (a nonstrike offense), with a
dismissal of count 1 (robbery, a strike offense) and count 2 (misdemeanor
possession of drug paraphernalia), and the court accepted his plea and issued
findings and orders. An entry appears near the end of the court’s sentencing
order stating, “Cts.__Bal.__ DISMISSED,” with the term “Bal.” in
handwriting. Given these record entries, we interpret the court’s sentencing
minute order as dismissing counts 1 and 2.
Nonetheless, our review of the record establishes the need for a limited
remand so that the trial court may amend its sentencing minute order to
correct other errors.8 First, there are discrepancies between the court’s oral
pronouncement of judgment and entry No. “[10]” in the “Fine and Fee
Section” of the court’s sentencing minute order (which states that the
probation supervision fee is $917 per year of probation, stayed for 120 days),
as well as between the oral pronouncement of judgment and entry No. “[18]”
(which states that all of the fines and fees imposed are payable at $50 a
month after 120 days). After initially setting the probation supervision fee at
$917 per year, the trial court later ordered, “I’ll reduce the probation
supervision fee to $50 a month.” This statement regarding the probation
supervision fee is the only statement by the court at the sentencing hearing
referencing a $50 monthly payment. As the reporter’s transcript prevails
over the minute order (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2;
People v. Sanchez (2019) 38 Cal.App.5th 907, 918–919), the court’s sentencing
minute order must be corrected to specify an annual probation supervision
8 We gave the parties the opportunity to submit supplemental briefing
on these issues. (Gov. Code, § 68081.)
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fee at $50 a month, to delete reference to a probation supervision fee at $917
annually, and to specify that the $50 monthly payment is for the probation
supervision fee only.
Next, defendant suggests that the trial court likely intended to impose
an indefinite stay on the $917 probation report preparation fee, but he states
that the court’s oral pronouncement of judgment on this issue may be
ambiguous. The Attorney General concedes that the trial court intended to
impose an indefinite stay on this fee. The trial court first imposed this $917
fee and stayed it, along with all other fines and fees, for 120 days. Then,
following defense counsel’s request for a fines and fees reduction, the trial
court stated, “I’ll stay the report preparation fee, and I’ll reduce the probation
supervision fee to $50 a month. I’ll stay all fines and fees for 120 days, which
I already did.” We believe that the Attorney General is correct in stating that
the trial court logically must have stayed the probation report preparation fee
indefinitely, as there would be no reason to impose a separate stay on this fee
if it were controlled by the 120-day stay. The sentencing minute order
reflects a $917 probation report preparation fee, stayed for 120 days. Thus,
we shall direct the trial court to amend the sentencing minute order to reflect
that the $917 probation report preparation fee is stayed indefinitely, whereas
all other fines and fees are stayed for 120 days.
Finally, we conclude that a limited remand is also necessary to clarify
the statutory bases for two additional fine and fee entries in the sentencing
minute order. No matter how tedious it may seem, trial courts must recite all
applicable fines, fees, and penalties, including their statutory bases, and
these fines, fees, and penalties must be set out in full in the abstract of
judgment or the order of probation with the statutory basis for each fine or
fee imposed. (People v. High (2004) 119 Cal.App.4th 1192, 1200–1201; People
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v. Eddards (2008) 162 Cal.App.4th 712, 715.) Directly under entry No. “[16],”
the sentencing minute order reflects a $71 “Administration fee,” but the order
does not include a statutory basis for this fee. At the sentencing hearing, the
court stated, “So there’s a $71 fee for collection of the fines,” without
specifying the statutory basis for the fee. Similarly, entry No. “[13],” entitled
“Fine,” reflects a total of $70, and indicates that the court security fee is a
“Fine” included in the entry. The trial court orally imposed a $40 court
security fee and a $30 criminal conviction fee, thus presumably this $70 entry
includes both of these fees. On remand, assuming there is an applicable
statutory basis for the $71 collection fee, we direct the trial court to
separately state each fee, fine, and/or penalty included in the $71 fee and
entry No. “[13]” and the statutory basis or bases therefor. With respect to the
$40 court security fee (§ 1465.8) and the $30 criminal conviction assessment
fee (Gov. Code, § 70373), the court’s amended sentencing minute order should
also clarify that these fees are imposed by separate order and not as
conditions of probation.9 (People v. Kim (2011) 193 Cal.App.4th 836, 842–843
[Gov. Code, § 70373]; People v. Soto (2016) 245 Cal.App.4th 1219, 1237
[§ 1465.8].)
DISPOSITION
The cause is remanded to the trial court for the limited purposes set
forth below. The judgment is otherwise affirmed.
9 The parties agree that these fees should not be imposed as conditions
of probation, and we accept their concession. The Attorney General notes
that the record does not affirmatively establish that the trial court imposed
these two fees as conditions of probation. Nonetheless, as the trial court will
need to issue an amended sentencing minute order, we believe that it is
appropriate for this clarification to be included therein.
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The trial court is to correct the sentencing minute order to specify an
annual probation supervision fee at $50 a month, to delete reference to the
probation supervision fee at $917 annually, and to specify that the $50
monthly payment is for the probation supervision fee only. The trial court is
to correct the sentencing minute order to reflect an indefinite stay of
execution on the $917 probation report preparation fee, and a 120-day stay on
the other fines and fees imposed. The trial court is to correct the sentencing
minute order so that it separately states each fee, fine, and/or penalty
included in entry No. “[13]” and the statutory basis or bases therefor. If it is
satisfied that the $71 fee is supported by statute, the court is to correct the
sentencing minute order to separately state each fee, fine, and/or penalty
included in the $71 “Administration fee” reflected beneath entry No. “[16]” in
the “Fine and Fee Section” of the sentencing minute order and the statutory
basis or bases therefor. If there is no valid statutory basis for the $71 fee, the
trial court is to strike the fee. With respect to the $40 court security fee
(§ 1465.8) and the $30 criminal conviction assessment fee (Gov. Code,
§ 70373), the trial court is to clarify that these fees are imposed separately
and not as conditions of probation. The superior court clerk is ordered to
issue an amended sentencing minute order including the foregoing
corrections.
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BROWN, J.
WE CONCUR:
STREETER, ACTING P. J.
TUCHER, J.
People v. Williams (A159918)
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