People v. Smith CA1/1 ( 2024 )

Filed 10/11/24 P. v. Smith CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 ONE
THE PEOPLE,
Plaintiff and Respondent, A167639
v.
(Mendocino County
ERIK NORTON SMITH,
Super. Ct. Nos. 22CR03052;
Defendant and Appellant. 22CR00800)
Erik Norton Smith pleaded no contest to carjacking and several other
offenses. The trial court placed him on probation for three years, subject to
various terms and conditions. On appeal, he contends the court erred in
denying his application for mental health diversion, in imposing a probation
condition that was unconstitutional, and in imposing $1,100 in fines without
first determining his ability to pay. We remand for reconsideration of the
probation condition, and otherwise affirm.
I. BACKGROUND
A. The Offenses
In March 2022, a police officer saw Smith on the freeway and told him
to stay off it. Two weeks later, the officer again spotted Smith walking on the
freeway. When the officer instructed Smith to come towards him, Smith ran
1
away from him across the freeway lanes. The officer was able to detain
Smith after he fell on the shoulder of the freeway.
Smith was charged with resisting or obstructing a peace officer (Pen.
Code, § 148, subd. (a)(1)) 1; disobeying a lawful order from a peace officer
(Veh. Code, § 2800, subd. (a)); and pedestrian on a freeway (Veh. Code,
§ 21960, subd. (a)).
Approximately eight months later, Smith took the car of a 78-year-old
woman while she was parked behind a store. The woman was sitting in the
car when Smith approached the vehicle, opened the driver’s side door, and
said he needed a ride. She told him no and attempted to close the door.
Smith wedged “a metal object that she [thought] was a bat” between the door
and the door frame to prevent it from closing. He then grabbed the woman’s
arm and pulled her out of the car. He pushed her down to the pavement and
pressed the metal object into her stomach while he got into the car. The
woman grabbed the metal object but he “pulled it so hard [she] lost [her] grip
on it.” He drove away, and the police were called.
One of the responding officers found the woman’s car at an intersection
and identified Smith as the driver. Smith was cooperative and admitted to
taking the woman’s car.
Smith was charged with carjacking (§ 215, subd. (a)) and driving on a
suspended or revoked license (Veh. Code, § 14601.1, subd. (a)).
B. Smith’s Request for Mental Health Diversion
In January 2023, Smith filed an application for mental health diversion
pursuant to section 1001.36,2 which allows for the postponement of
1 Undesignated statutory references are to the Penal Code.
2 After Smith applied for mental health diversion, the Legislature
amended section 1001.36 twice. (Stats. 2023, ch. 236, § 1; Stats. 2023,
ch. 687, §§ 1.1–1.2.) The substantive changes to section 1001.36 are not
2
prosecution so that a defendant can undergo mental health treatment. Smith
asserted that he had been diagnosed with bipolar I disorder and substance
use disorders. He argued that he was responding well to treatment while
incarcerated, had a limited criminal history, and the record showed he did
not use threats or weapons against the victim of his current offenses and was
“cooperative and peaceful upon his arrest.” Therefore, he contended, his
mental disorders were treatable in the community, and he did not pose an
unreasonable threat to public safety.
Smith included a report in support of the application from Dr. Veronica
Sanchez Varela, who conducted a psychological evaluation of Smith. Dr.
Sanchez Varela diagnosed Smith with bipolar I disorder, methamphetamine
use disorder, and alcohol use disorder. She opined that his mental disorders
were a significant factor in the commission of his offenses. She noted Smith’s
long history of untreated mental illness and substance abuse and that he
admitted to “consistent use” of methamphetamine during the past two years.
Dr. Sanchez Varela further opined that Smith’s conditions were
treatable. Smith reported to her that he did not use substances during his
detention and that he started taking psychiatric medication, which Dr.
Sanchez Varela concluded was “likely contributing to improved cognitive,
affective, and behavioral stability and judgment.” She recommended a
“comprehensive approach” to Smith’s mental health treatment that would
include medication management, therapy, and sobriety support. She said
this would mean frequent meetings with a therapist and a psychiatrist and
sobriety support “in the form of a dual diagnosis program and/or sobriety
support groups.” She emphasized the need for such an approach “as [Smith]
relevant to this appeal, and therefore we consider the current version of the
statute.
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would be most vulnerable to substance use relapse if he felt the need to self-
medicate mental illness symptoms that overwhelm him.”
In his application, Smith acknowledged that he did not have the mental
health treatment plan required by section 1001.36, subdivision (f)(1)(A)(i),
claiming that incarcerated individuals are “ ‘blacked out’ ” from Medi-Cal
benefits until they are released. He said his counsel was knowledgeable
about the local agencies that provided mental health services and could
propose a treatment plan based on Dr. Sanchez Varela’s recommendations
and available services. He also said he would agree to be monitored in
behavioral health court on a weekly basis as a term of his diversion.
The trial court held a hearing on Smith’s diversion application in
February 2023. Defense counsel argued that Smith met the eligibility and
suitability requirements for diversion. She further contended that Dr.
Sanchez Varela provided a “general description” of what Smith’s treatment
plan should be and that “we would work on . . . putting the plan that . . . Dr.
Sanchez Varela proposed in place.” She said that if diversion was granted,
they could “start getting his MediCal [sic] turned back on” and get him to one
of three agencies that provided medication management and therapy.
In response, the People contended that Smith had not met all the
requirements for diversion in part because he posed an unreasonable risk of
danger to the public. The People further argued that the defense had not
presented an “inpatient or outpatient program of mental health treatment
[that] will meet the specialized mental health treatment needs of this
defendant,” as required by section 1001.36, subdivision (f)(1)(A)(i). “[T]hey
say trust us, Judge, we’ll get it together later.”
After the parties submitted the matter, the trial court found that Smith
was eligible for diversion because he had a qualifying mental health disorder
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that was a motivating factor in the commission of the offenses, and he would
respond to mental health treatment. The court also concluded that Smith
met the first three statutory criteria for determining whether a defendant is
suitable for pretrial diversion.
Turning to the remaining statutory requirements, the trial court first
noted the absence of any history of mental health treatment for Smith,
stating, “I don’t have anything to rely on in that regard as far as really
gauging whether or not the treatment plan proposed is suitable to meet his
needs.” The court further observed, “[W]e have a plan that is not really in
place. [¶] We have some ideas or suggestions of how best to go about making
sure that [Smith], if released, will have access to housing, treatment, and the
comprehensive plan that is needed in a case such as this.” The court also
considered Smith’s carjacking offense and the vulnerability of his victim in
determining whether he posed an unreasonable risk of danger to the public
safety if treated in the community.
The court ultimately denied Smith’s application for diversion, citing the
“insufficient” treatment plan and the circumstances of his carjacking offense.
C. Plea
Following the trial court’s denial of his diversion application, Smith
pled no contest to all charges in the two cases. The court placed Smith on
probation for three years subject to various terms and conditions, including
that he serve 364 days in the county jail with a credit for time served of 102
days.
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II. DISCUSSION
A. Mental Health Diversion
Smith contends the trial court abused its discretion by denying his
application for mental health diversion. As explained below, any error was
harmless.
1. Legal Standards
Under section 1001.36, a trial court may grant a defendant pretrial
mental health diversion if the defendant has a qualifying mental health
disorder. (People v. Frahs (2020) 9 Cal.5th 618, 626–627.) As defined in the
statute, “pretrial diversion” means “ ‘postponement of prosecution, either
temporarily or permanently, at any point in the judicial process from the
point at which the accused is charged until adjudication, to allow the
defendant to undergo mental health treatment.’ ” (Id. at p. 626, quoting
§ 1001.36, subd. (c).)
Section 1001.36 gives courts discretion to grant pretrial diversion “if
the defendant satisfies the eligibility requirements for pretrial diversion set
forth in subdivision (b)” and the court finds “that the defendant is suitable for
that diversion under the factors set forth in subdivision (c).” (Id., subd. (a).)
Under section 1001.36, subdivision (b), a defendant is eligible for
pretrial diversion if (1) the defendant has been diagnosed with a qualifying
mental disorder; and (2) the defendant’s mental disorder was a significant
factor in the commission of the charged offense.
For any defendant who satisfies the above eligibility requirements, the
court must then find the defendant is suitable for pretrial diversion if all the
following criteria are met: “(1) In the opinion of a qualified mental health
expert, the defendant's symptoms of the mental disorder causing,
contributing to, or motivating the criminal behavior would respond to mental
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health treatment. [¶] (2) The defendant consents to diversion and waives the
defendant's right to a speedy trial . . . . [¶] (3) The defendant agrees to comply
with treatment as a condition of diversion . . . . [¶] (4) The defendant will not
pose an unreasonable risk of danger to public safety, as defined in
Section 1170.18, if treated in the community.” (§ 1001.36, subd. (c)(1)–(4).)
“Even if a defendant otherwise satisfies the six . . . requirements, the
court must also be satisfied that the recommended mental health treatment
program ‘will meet the specialized mental health treatment needs of the
defendant.’ ” (People v. Gerson (2022) 80 Cal.App.5th 1067, 1079; see
§ 1001.36, subd. (f)(1)(A)(i).) “Before approving a proposed treatment
program, the court shall consider the request of the defense, the request of
the prosecution, the needs of the defendant, and the interests of the
community.” (§ 1001.36, subd. (f)(1)(A)(ii).)
We review a trial court’s ruling on a petition for pretrial mental health
diversion for abuse of discretion. (People v. Whitmill (2022) 86 Cal.App.5th
1138, 1147; People v. Moine (2021) 62 Cal.App.5th 440, 448–449 (Moine).) “A
court abuses its discretion when it makes an arbitrary or capricious decision
by applying the wrong legal standard [citations], or bases its decision on
express or implied factual findings that are not supported by substantial
evidence.” (Moine, at p. 449.)
2. Analysis
In ruling on Smith’s application for mental health diversion, the trial
court initially said it was focusing on the fourth suitability requirement—the
defendant will not pose an unreasonable risk of danger to public safety.
(§ 1001.36, subd. (c)(4).) But the court also expressed concerns with the
proposed treatment plan and whether it would meet Smith’s needs. After
considering the plan and the circumstances of Smith’s carjacking offense, the
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court denied diversion “for failure to have a treatment plan that the Court
feels eliminates [Smith’s] danger to the community as well as the seriousness
of the offense in this case.” The court further commented that while it had
granted diversion in other cases involving violence, the treatment plan in this
case was “insufficient for this Court to exercise its discretion, as well as the
nature of the offense, the vulnerability of the particular victim in this case.”
Smith claims the trial court abused its discretion by concluding he was
ineligible for relief because he was too dangerous to be treated in the
community. He contends there was no substantial evidence that he was
likely to commit a “super strike”—such as murder or attempted murder—if
treated in the community. (See Moine, supra, 62 Cal.App.5th at pp. 449, 450
[explaining that § 1001.36’s definition of “unreasonable risk of danger to
public safety” means an unreasonable risk the defendant will commit a super
strike]; § 667, subd. (e)(2)(C)(iv) [listing super strike offenses].) He further
notes that trial courts cannot use their discretion to deny diversion based on
a definition of public safety that differs from that in the statute. (See
Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 895–896.)
The People respond that because Smith, in the commission of his
carjacking offense, “was willing to use a weapon [(i.e., the metal object)]
against a particularly vulnerable victim” to prevent her from interfering with
the carjacking, “it reasonably follows that he would have used a greater level
of violence had she been capable of mounting a greater resistance.” Thus, the
People argue, it was reasonable to conclude that Smith might commit
attempted murder if treated in the community.
Smith’s contention regarding the public safety element is well taken.
In his current offenses, he did not use a weapon. Although he pulled his
victim out of her car and used the metal object to prevent her from getting off
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the ground, he did not inflict any physical injury beyond “some shoulder
pain.” When she grabbed the metal object, he pulled it away and drove from
the scene. While it is possible that Smith will escalate to attempted murder
if treated in the community, there is little in the record to suggest that he is
likely to do so. (See People v. Whitmill, supra, 86 Cal.App.5th at p. 1156 [that
the defendant fired a gun into the air and threatened to kill his girlfriend did
not constitute substantial evidence “support[ing] the trial court’s finding that
[he] posed an unreasonable risk of committing a super strike”]; Moine, supra,
62 Cal.App.5th at pp. 451, 444–445 [the circumstances of the defendant’s
offenses, including that he engaged in a fistfight with a patient in an urgent
care facility and threatened to shoot everyone in a different urgent care
facility a year later, did “not support the trial court’s implied finding that [he]
was likely to commit a super strike offense”].) Notably, Smith has a limited
criminal history, with one violent crime that he committed almost a decade
before his current offenses.
However, even if the court erroneously concluded Smith was not
suitable for diversion, any such error was harmless because there remained
an additional unmet requirement. The court had to be satisfied that “the
recommended inpatient or outpatient program of mental health treatment”
met Smith’s specialized mental health treatment needs. (§ 1001.36,
subd. (f)(1)(A)(i); see People v. Frahs, supra, 9 Cal.5th at p. 627.) “The focus
of this provision is on the program of treatment, providing reasonable
assurance that it will address the defendant’s particular mental health
needs. . . . [A] court might reject diversion if it concluded that the proposed
treatment services did not target or could not effectively address the
defendant’s particular diagnosis.” (Sarmiento v. Superior Court, supra,
98 Cal.App.5th at p. 895.)
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Here, as the People pointed out at the hearing, no specific program—
inpatient or outpatient—was recommended. Much less was a program
recommended that addressed Smith’s specialized needs, which at a minimum
included, according to Dr. Sanchez Varela, frequent meetings with a
therapist and a psychiatrist and sobriety support. The defense acknowledged
only having a “general description of what [Smith’s] plan should be.”
Although defense counsel said there were a few agencies that could provide
Smith medication management and therapy services once he was enrolled in
Medi-Cal, no further details were provided.
Because the trial court could not possibly be satisfied with such a vague
and uncertain treatment plan, the result would be the same in the absence of
any error Smith contends the court committed. Indeed, the court cited the
“insufficien[cy]” of the treatment plan as one basis for denying diversion,
though its reasoning is a bit unclear. (See People v. Watts (2022)
79 Cal.App.5th 830, 837 [insufficiency of case plan may serve as an
independent basis for denying diversion].) Nonetheless, we can infer from
the court’s comments that it found the plan insufficient in large part because
there was no concrete plan for Smith’s mental health treatment. In
discussing Dr. Sanchez Varela’s treatment recommendations, the court
observed that a plan was “not really in place” and that it only had before it
“some ideas or suggestions” for how best to ensure Smith received mental
health treatment if released. Therefore, it is not “ ‘reasonably probable that a
result more favorable’ ” to Smith would have been reached in the absence of
the court’s error.3 (See People v. Hall, supra, 99 Cal.App.5th at pp. 1126–
1127 [standard for prejudice].)
3 Neither party fully briefed this issue.
Smith acknowledges that the
trial court had “reservations that the treatment plan would meet [his] needs,”
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B. Probation Condition
Smith argues that a probation condition requiring him to cooperate
“ ‘with evidence-based practices as directed by [his] probation officer’ ” is
unconstitutionally vague, overbroad, and an impermissible delegation of
judicial authority. As a condition of probation, the trial court checked a
prewritten box for condition no. 44, ordering Smith to “cooperate fully with
evidence-based practices as directed by your Probation Officer, (GEO Reentry
Services, workbooks, GPS monitoring) and remain working constructively
within that program until completion or agreed upon timeframe.” The
problem with this term, Smith contends, is that it does not specify the
“rehabilitative activities” that are necessary, thus giving the probation officer
the kind of unfettered discretion that courts have determined is
unconstitutional. He further argues that the phrase “evidence-based
practices” does not adequately inform him of what is required of him. The
People agree that the condition is vague and suggest that we modify it to
delete the phrase “evidence-based practices.”
The law is clear that “ ‘a probation condition “must be sufficiently
precise for the probationer to know what is required of him, and for the court
to determine whether the condition has been violated,” if it is to withstand a
[constitutional] challenge on the ground of vagueness.’ ” (People v. Mendez
(2013) 221 Cal.App.4th 1167, 1172.)
but contends there was no evidence of his chances of success other than
Dr. Sanchez Varela’s conclusion that he would be responsive to treatment.
As we have explained, the court stated other reasons for why it believed his
treatment plan was insufficient. Because it is Smith’s burden to show the
trial court’s error prejudiced him (People v. Hall (2024) 99 Cal.App.5th 1116,
1126), and because the inadequacy of Smith’s treatment plan was one of the
reasons the court denied diversion, we find it appropriate to address this
issue on appeal.
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Moreover, a court cannot delegate its exercise of discretion to probation
officers. (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1372.) The authority to
“impose and require” reasonable conditions of probation “for the reformation
and rehabilitation of the probationer” rests with the trial court, “as it may
determine are fitting and proper.” (§ 1203.1, subd. (j).) While a “court may
leave to the discretion of the probation officer the specification of the many
details that invariably are necessary to implement the terms of probation,”
“the court’s order cannot be entirely open-ended. It is for the court to
determine the nature of the prohibition placed on a defendant as a condition
of probation.” (People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358–1359.)
Thus, a court may delegate to probation the authority to select a specific
program of the type the court has determined is necessary for the defendant’s
rehabilitation (People v. Penoli (1996) 46 Cal.App.4th 298, 301, 307–308,
disagreed with on another ground by People v. Torres (1997) 52 Cal.App.4th
771, 777–778), but it cannot delegate the authority to determine in the first
instance which conditions are “fitting and proper” to serve the goals of
reformation and rehabilitation. (§ 1203.1, subd. (j).)
“Generally, we review the court’s imposition of a probation condition for
an abuse of discretion. [Citations.] However, we review constitutional
challenges to a probation condition de novo.” (In re Shaun R. (2010)
188 Cal.App.4th 1129, 1143.)
We agree with the parties that the probation condition is
unconstitutionally vague because “evidence-based practices” is a broad term,
and it is not clear whether the condition’s parenthetical list of such practices
is a partial one. Thus, in its present form, the condition could be interpreted
to require Smith to participate in other unidentified, evidence-based
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practices. It therefore does not provide him adequate notice of what is
required of him.
However, instead of modifying the probation condition on appeal, as the
People urge us to do, we will remand the matter to the trial court for
reconsideration. This is because the condition does not specify the type,
subject matter, or purposes of the activities and programs that require
Smith’s participation. The term “workbooks,” for example, is vague and could
encompass various activities across a broad range of subjects. Thus, the
condition appears to leave to the probation officer unfettered discretion to
determine the type and nature of programming that is “fit and proper” for
Smith’s rehabilitation. (§ 1203.1, subd. (j).) As it is unclear from the record
whether the court believed there was some specific issue that should be
addressed by participation in particular programming, we will remand to
allow the court to exercise its discretion. (See People v. Cervantes (1984)
154 Cal.App.3d 353, 361 [setting aside improper probation condition and
remanding to trial court for exercise of discretion], superseded by statute on
other grounds as stated in People v. DiMora (1992) 10 Cal.App.4th 1545,
1549.)
C. Ability to Pay Fines
The probation department recommended that Smith be required to pay
a $1,500 restitution fine (§ 1202.4, subd. (b)), a $1,500 probation revocation
restitution fine (§ 1202.44), a $41 criminal offense fine (§ 1202.5), a $1,556
fine under Vehicle Code section 14601.1, subdivision (a), a security fee of $80
(§ 1465.8, subd. (a)(1)), and a criminal conviction assessment fee of $60 (Gov.
Code, § 70373). At the sentencing hearing, defense counsel asked the trial
court “not to impose . . . the 1556 fine for [Vehicle Code section ]14601. . . .
[¶] . . . . [I]t’s a lot of money for someone who has at this point nowhere to
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live, some significant health problems that might be a barrier to finding a job
immediately, and so I would ask to give—he is indeed indigent, and so I
would ask for some relief on the fees and fines.”
The trial court imposed the statutory minimum of $300 for the
restitution fine, the statutory minimum of $500 under Vehicle Code
section 14601.1, subdivision (a), and a $300 probation revocation restitution
fine, staying the latter, and it struck the security fee, the criminal conviction
assessment fee, and the criminal offense fine “based on an inability to pay.”
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas),
Smith contends the court violated his constitutional rights in imposing the
fines without first determining his ability to pay them. We agree with the
People that Smith forfeited this argument.
Dueñas involved a challenge to the assessments and restitution fine
raised by “an indigent and homeless mother of young children” who was
unable to work because of her cerebral palsy. (Dueñas, supra, 30 Cal.App.5th
at p. 1160.) She lost her driver’s license when she could not pay assessments
for juvenile citations she received as a teenager. (Id. at p. 1161.) She was
then convicted of several misdemeanors for continuing to drive without a
license, and she remained unable to pay off her debt. (Ibid.) In her most
recent case, she was placed on probation and ordered to pay the assessments
and restitution fine within three years. (Id. at p. 1163.) She sought and was
granted a hearing on her ability to pay attorney fees, but the trial court
determined that the assessments were mandatory and that she had not
shown the “ ‘compelling and extraordinary reasons’ ” required by statute to
waive her restitution fine. (Ibid.)
Against this background, Dueñas held that “due process of law requires
[a] trial court to conduct an ability to pay hearing and ascertain a defendant’s
14
present ability to pay before it imposes court facilities and court operations
assessments.” (Dueñas, supra, 30 Cal.App.5th at p. 1164.) It further held
that although “section 1202.4 bars consideration of a defendant’s ability to
pay unless the judge is considering increasing the [fine] over the statutory
minimum, the execution of any restitution fine imposed under this statute
must be stayed unless and until the trial court holds an ability to pay hearing
and concludes that the defendant has the present ability to pay the
restitution fine.” (Ibid.)4
In this case, however, Smith did not ask for an ability to pay hearing,
nor did he assert that he would be unable to pay any fines or fees. Instead,
he urged the court to grant him “some” relief, and he specifically asked the
court not to impose the fine under Vehicle Code section 14601.1 in the
amount recommended by probation. The court granted substantial relief,
striking three of the fines and fees and significantly reducing the remaining
fines from the amounts recommended by probation. That the court struck
some fines and fees based on Smith’s inability to pay does not mean the court
necessarily determined that he could not pay any fines or fees. (See People v.
Douglas (1995) 39 Cal.App.4th 1385, 1397 [noting that “a defendant may lack
the ‘ability to pay’ the costs of court-appointed counsel yet have the ‘ability to
pay’ a restitution fine”].)
On this record, Smith has forfeited his challenge under Dueñas. (See
People v. Lowery (2020) 43 Cal.App.5th 1046, 1053–1054 [defendants
4 The issues of whether a trial court is required to consider a
defendant’s ability to pay before imposing or executing fines, fees, and
assessments and which party bears the burden of proof regarding the
defendant’s ability to pay are pending before our state Supreme Court.
(People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019,
S257844.)
15
forfeited Dueñas challenge where they did not object to the fines and fees
imposed against them and did not request an ability to pay hearing]; People
v. Castellano (2019) 33 Cal.App.5th 485, 490 [“a defendant must in the first
instance contest in the trial court his or her ability to pay”]; People v.
Frandsen (2019) 33 Cal.App.5th 1126, 1154 [“Given that the defendant is in
the best position to know whether he has the ability to pay, it is incumbent
on him to object to the fine and demonstrate why it should not be imposed.”].)
Had his ability to pay the fines actually been an issue, Smith could have
sought an ability to pay hearing and made a record in the trial court. (See
Frandsen, at p. 1154.) Although Smith contends the court already had
evidence before it of his inability to pay, he does not cite any evidence; he
cites only attorney argument.5
Smith contends his claim of error is cognizable on appeal because the
trial court’s imposition of the fines is an error of law. (See In re Sheena K.
(2007) 40 Cal.4th 875, 889, 880–881 [constitutional objection to imposition of
probation condition forfeited unless it presents “ ‘ “pure questions of law that
can be resolved without reference to the particular sentencing record
developed in the trial court” ’ ”].) This contention lacks merit because a
5 In its response brief, the People cite to a Judicial Council form
entitled “Defendant’s Statement of Assets” that Smith submitted to the trial
court. (Capitalization omitted.) The form shows that his take-home pay was
$1,200 every two weeks, that he owns two vehicles, one worth $2,500 and one
worth $1,500, and that he has no debt other than child support arrearages.
In the section regarding child support, the form instructed the defendant to
attach copies of orders and statements, but Smith failed to do so. This
evidence does not establish that Smith had no future ability to pay $1,100 in
fines and, in fact, indicates that he may have had a present ability to pay the
fines. (See People v. Cowan (2020) 47 Cal.App.5th 32, 49 [evaluation of a
defendant’s ability to pay must include his or her future ability to pay],
review granted June 17, 2020, S261952.)
16
defendant’s ability to pay is a factual determination, rather than a pure
question of law. (People v. Frandsen, supra, 33 Cal.App.5th at p. 1153.)
Moreover, the burden rests with the defendant to demonstrate his or her
inability to pay the fines and fees in question. (People v. Castellano, supra,33 Cal.App.5th at p. 490; Frandsen, at p. 1154.)
Nor would there be any merit to an ineffective assistance of counsel
claim based on failure to ask for an ability to pay hearing or object to the
fines imposed. Such claims are viable on appeal “only if (1) the record
affirmatively discloses counsel had no rational tactical purpose for the
challenged act or omission, (2) counsel was asked for a reason and failed to
provide one, or (3) there simply could be no satisfactory explanation. All
other claims of ineffective assistance are more appropriately resolved in a
habeas corpus proceeding.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Here, the record is silent as to why defense counsel raised no objection
to the imposition of the fines based on Smith’s ability to pay. It is possible
that Smith did have the ability to pay some fines and fees and that counsel
therefore had a “rational tactical purpose” in asking for “some” relief. Indeed,
as previously mentioned, the People cite evidence indicating that Smith could
pay the fines imposed against him. Thus, it is inappropriate to decide his
ineffective assistance of counsel claim on direct appeal.
III. DISPOSITION
We reverse and remand with instructions to the trial court to either
strike or modify condition no. 44 in the order of formal probation consistent
with this opinion. In all other respects, the judgment is affirmed.
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LANGHORNE WILSON, J.
WE CONCUR:
HUMES, P. J.
SIGGINS, J.*
A167639
People v. Smith
* Retired Presiding Justice of the Court of Appeal, First Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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