People v. Jackson CA3

Filed 5/5/21 P. v. Jackson CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Tehama)
----
THE PEOPLE, C086434
Plaintiff and Respondent, (Super. Ct. No. 16CR638)
v.
MALACHI MICAH JACKSON,
Defendant and Appellant.
Sentenced to a stipulated eight-year state prison term pursuant to a plea agreement,
defendant Malachi Micah Jackson contends his plea was involuntary for two reasons:
(1) because the trial court denied his request for a continuance to obtain an expert’s
report, he was compelled to forgo an arguably valid claim of self-defense (which required
the report to substantiate it), and (2) his attorney misadvised him he was facing a life
sentence if he went to trial. The Attorney General responds: (1) the appeal should be
dismissed for lack of appellate jurisdiction, (2) the trial court’s denial of a continuance
was within its discretion because defense counsel was not diligent in preparing for trial,
1
and (3) defendant’s plea should not be set aside because he cannot establish prejudice or
ineffective assistance of counsel.
Observing that defendant did not challenge the order denying a continuance by
petitioning for a writ, and did not move to withdraw his plea when trial counsel obtained
the expert’s report before sentencing, we requested supplemental briefing from the parties
on whether defendant’s claim of error was forfeited. We later granted defendant leave to
file a supplemental brief in which he challenged the trial court’s imposition of
assessments under Penal Code section 1465.8 and Government Code section 70373
without consideration of his ability to pay, and asserted the imposition of the Penal Code
section 1202.4 fine without consideration of his ability to pay violated the Eighth
Amendment prohibition against excessive fines as well as California and federal
constitutional provisions on equal protection.
Having considered the parties’ original and supplemental briefs, we now conclude
we have jurisdiction to decide defendant’s appeal, but defendant’s assorted claims are
without merit. We therefore affirm defendant’s conviction and sentence.
FACTUAL AND PROCEDURAL BACKGROUND
The charges and the underlying facts
An information filed January 26, 2017, after the preliminary hearing, charged
defendant with attempted murder (count I; Pen. Code, §§ 664/187, subd. (a))1, mayhem
(count II; § 203), and assault with a deadly weapon, a knife (count III; § 245, subd.
(a)(1)). As to all counts, the information alleged defendant personally and intentionally
inflicted great bodily injury (GBI) (§ 12022.7, subd. (a)). The information also alleged
all counts were serious and violent felonies (§§ 667.5, subd. (c), 1192.7, subd. (c)).2
1 Undesignated statutory references are to the Penal Code.
2 The original complaint also alleged a prior strike, but the information does not.
2
The information stated that the sentencing range on count I was five, seven, or
nine years; on count II, two, four, or eight years; and on count III, two, three, or four
years. The GBI enhancements, if found true, would add three years on each count. The
strike allegations, if found true, would double the total sentence.
The testimony at the preliminary hearing indicated that on the night of October 21,
2016, Red Bluff police officers found the victim on the ground, bleeding heavily and with
apparently life-threatening injuries. He said his roommate (defendant) had texted him to
get him to come out of his bedroom, then stabbed him with an open folding knife after
charging him from three feet away. According to the victim, he was unarmed. He fought
back, but when he saw that his lip was hanging off his face he ran outside to get help. He
was hospitalized and surgery was performed on him. The surgeon said the victim had
suffered five stab wounds and two lacerations.3
According to the police report, defendant told the police the victim struck first and
then pinned him down, so he grabbed a knife and stabbed the victim to get the victim off
him. However, the victim described defendant as the aggressor, telling a story consistent
with the evidence at the preliminary hearing.
The surgeon enumerated the victim’s wounds as a stab wound to his temple
penetrating into the skull, a laceration to his lower lip that almost severed the lip from his
face, a stab wound to his jaw penetrating into the jawbone, a stab wound to his left chest
cavity injuring the left lung, a stab wound to the left side of his abdomen, a stab wound
that entered his upper chest cavity and penetrated downward into his abdominal cavity
through the diaphragm, narrowly missing the liver, and a laceration to the inside of his
3 At the close of the preliminary hearing, the prosecutor asked the trial court to take
judicial notice of medical records, which were under seal. After the parties stipulated the
records could be used for evidentiary purposes even though unsealed, the court ordered
them unsealed and provided to both counsel. The records were unsealed on June 12,
2017, and the defense received them at that time.
3
right wrist. The surgeon thought defendant could not have inflicted those wounds while
pinned under the victim.
Procedural history before the entry of plea
On or around February 21, 2017, Kenneth Miller of the Public Defender’s Office
was appointed to represent defendant.
On April 10, 2017, attorney Erin O’Toole-McNally (McNally) substituted in as
defense counsel.
On April 28, 2017, McNally filed an ex parte request to hire Julie LaHorgue as a
private investigator.
On May 3, 2017, the trial court denied the ex parte request because defendant had
not submitted a financial declaration of indigency.
On June 7, 2017, McNally moved to compel discovery of the victim’s medical
records. McNally asserted that during informal discovery, the district attorney’s office
stated they had received the medical records and they should be lodged in the court’s file.
The prosecutor had proposed addressing the medical records issue at the final pretrial
conference (calendared for July 3, 2017), but this would not allow McNally sufficient
time to prepare for trial. According to McNally’s supporting declaration, a local rule in
Tehama County required defendants either to enter a plea or to confirm for trial at the
final pretrial conference, and McNally did not believe the court would allow further
pretrial conferences at this stage. McNally also asserted that, if convicted, defendant
could receive a life sentence.4
4 McNally did not attach a copy of the alleged local rule, and appellate counsel has not
done so. The Attorney General represents that he could not locate such a rule, “but does
not dispute that the record and the arguments of counsel suggest that it is the practice in
Tehama County Superior Court.”
4
On June 12, 2017, the trial court granted the motion. The minute order states that
the medical records are unsealed.
On July 3, 2017, McNally reapplied for the appointment of LaHorgue and
submitted a financial declaration from defendant. McNally asserted that none of
defendant’s prior attorneys had conducted any investigation, a number of witness
statements needed to be taken, and LaHorgue was requested because McNally had
worked with her for a number of years. McNally also asserted defendant faced a
maximum exposure of life in prison if convicted of attempted murder.
On July 20, 2017, the trial court again denied the request for appointment of a
private investigator, finding defendant had still not shown indigency.
On September 7, 2017, McNally moved in camera for the appointment of Thomas
Resk, M.D., at public expense as a forensic pathologist. McNally’s supporting
declaration stated that Dr. Resk would need to review the victim’s medical records,
photographs of injuries of defendant and the victim, and discovery in the case, to offer an
expert opinion whether the injuries to both men were consistent with defendant’s self-
defense claim.
On September 22, 2017, the trial court granted the motion to appoint Dr. Resk.
On November 3, 2017, McNally filed a motion to continue the final settlement
conference and jury trial, calendared for hearing on November 17, 2017. Her supporting
declaration averred:
When she substituted into the case on March 31, 2017, she found that defendant’s
prior attorneys had not done any investigation. There were no medical records in the file
5
for the victim. Defendant’s charges included a prior strike, and he faced a potential life
sentence.5
Counsel tried twice to obtain the medical records informally. The district
attorney’s office responded that it had already provided all discovery to the defense, and
the records were in the court’s file pursuant to a subpoena duces tecum. Finally, counsel
filed a motion to compel, which was heard on June 12, 2017, and granted. Counsel
received 843 pages of medical records. It took some time to review these and to decide
on further action as to investigation and an expert witness.
When counsel requested the appointment of LaHorgue as a private investigator,
she thought an application for indigent defense services was unnecessary because
defendant was previously represented by the public defender. She had worked with
LaHorgue previously and did not know who the public defender’s investigator was.
Once defendant’s family obtained funding to hire LaHorgue, they worked to locate a
forensic pathologist before seeking funding for his appointment because they wanted to
present him with as much information as possible.
Immediately after the trial court granted the motion for funding for a forensic
expert, counsel contacted a forensic pathologist and provided documents to him.
However, he had indicated he could not furnish a report before the final pretrial
conference. Although his initial impression was that the material he had seen was
consistent with defendant’s self-defense claim, he was still reviewing documents and had
requested supplemental information, without which he could not offer an opinion or
prepare a report. Counsel and her investigator were working diligently to gather and
forward the requested documents.
5 As mentioned above, although a prior strike was charged in the original complaint, it
was no longer charged in the information, which was filed well before McNally
substituted into the case.
6
Until counsel had completed her investigation and consulted her expert, she could
not competently advise defendant on the risks and benefits of accepting an offer or going
to trial. Her investigation should be concluded soon. Counsel requested a rescheduling
of the final pretrial conference to December with trial dates in January 2018.
When counsel appeared at the final pretrial conference, she raised the concerns
detailed above.6 The prosecution presented three offers, which could expose defendant to
either one or two strikes, and a maximum prison term on initial sentencing of anywhere
between 10 and 12 years. It would be malpractice to advise defendant whether to accept
any of these offers before receiving the expert’s report. The delay in obtaining the
medical records, which should have been discovered to the defense at the outset, had
made it impossible for counsel to competently advise her client so that he could make an
informed decision at a final pretrial conference. Furthermore, to force the matter into
trial when counsel would have less than a month to receive and consider the expert’s
report would deprive defendant of effective assistance of counsel at trial. Motions in
limine were due November 17, though counsel had not completed her investigation or
received the expert’s report. Rescheduling the matter for a final pretrial conference in
late December and trial dates in January 2018 would give counsel the time to properly
represent defendant.
The pretrial conference of November 17, 2017, and defendant’s entry of plea
On the morning of November 17, 2017, the trial court stated that this was the final
pretrial conference, and even if the court were to grant a continuance it would not
continue the pretrial conference; therefore, this was the last day to reach a stipulated
agreement. The court noted it had read McNally’s declaration and asked if she had
anything further to argue; she said no.
6 McNally did not give the date of this conference, and there is no transcript of such a
conference in the record.
7
The prosecutor pointed out that the defense had not said when the expert’s report
would be done and said he could not understand why the expert needed four months to do
it.
McNally said it would be done by the end of the month “if the People cooperate
with discovery requests.” She did not have “the emergency responder records,”
“ambulance records,” or defendant’s pre-booking hospital records.
The prosecutor asserted that McNally could have requested those documents on
her own at any point. The trial court agreed. McNally replied that the HIPAA (Health
Insurance Portability and Accountability Act) laws would make it extremely difficult for
her to obtain such records by subpoena. The prosecutor responded that she could easily
get her client’s consent to obtain his jail records, and the subpoena duces tecum was just
as available to her as to the People.
The trial court ruled:
“As to the request for continuance, Ms. [] McNally was retained March 31st of
this year. Even if . . . well, the medical records were unsealed on June 12th of this year
and it wasn’t until September 7th, three months later[,] that the motion for the expert was
filed and the expert fees were allowed on September 22nd, which is an additional two
months, and now you are talking about records that could have been subpoenaed from the
very beginning. [¶] I am not going to continue it for further pretrial conference. If you
want to try to negotiate a resolution today you can, that is totally up to you, but this is
your last opportunity to do that. After today, it will simply be, if there is a resolution, an
open plea with no stipulated sentence. [¶] Nonetheless, the People are, I guess,
concerned about the content of the counsel’s declaration and the possibility of an
appellate issue, have agreed or are not opposing the continuance. [¶] I will continue the
matter for a setting in January. This will be the last continuance.”
That afternoon, the parties returned to court. Defendant entered a plea of no
contest to count II (mayhem) for a stipulated eight-year upper term, with the remaining
8
counts and allegations dismissed on motion of the People. Sentencing was scheduled for
January 4, 2018.
The expert’s report
On December 22, 2017, Dr. Resk filed his report, which McNally asked the trial
court to make part of the record at sentencing. The report, dated December 15, 2017,
stated that Dr. Resk had reviewed defendant’s booking sheet, the police report, videos
and photographs of defendant in custody, videos of the victim, and the victim’s hospital
records. Based on those materials, Dr. Resk opined: “None of the [victim]’s stab
wounds were directed to [his] center of mass, i.e. his heart area, which in my forensic
autopsy experience of over 5800 autopsies including many homicidal stab wound
victims, indicates more of a flailing attempt by the knife-holder as a possible defensive
tactic by a smaller person with a knife fighting a physically more imposing, larger person
without a knife. In [the] hospital [the victim] had no classic defensive sharp force
wounds to his hands, forearms, lower extremities or feet. The flailing knife attack does
not reflect in my opinion any advanced planning on the part of [defendant]. Indeed,
[defendant] may have been attempting to evade blunt force traumatic injuries which he
sustained subsequently[,] documented in body photographs of [defendant] by the Red
Bluff Police Department on the night of the incident as well as several days later after
contusions had time to fully develop. Numerous blunt force traumatic injuries to
[defendant] are evident upon my review of these photographs, including [injuries to both
arms, back/shoulders/scapula, abdomen/chest, head, and scrotum]. [¶] All of these red-
blue abrasions and contusions evident in the photographs are recent and synchronous in
occurrence without any evidence of yellow-brown discoloration or aging to these blunt
force traumatic injuries. [¶] In summary, based on my forensic pathology training and
over 40 years practicing as an American Board of Pathology board-certified Forensic
Pathologist, I can find no persuasive evidence to support a pre-planned malicious attack
9
by [defendant] on [the victim]. I hold these opinions to a reasonable degree of medical
and scientific certainty.”
Sentencing
On January 4, 2018, the trial court imposed the stipulated sentence, to which both
counsel submitted. The court stated that it had read and considered the expert’s report, as
well as the probation report and “the report filed by [McNally] on December 22nd,”
(which is not in the record).
Notice of appeal
On January 25, 2018, defendant filed a notice of appeal and a request for
certificate of probable cause. As grounds for the request, McNally recapitulated the
arguments from her motion for continuance and added: “The judge told counsel he
would grant a continuance, but would not allow any further negotiations to resolve the
case because this was the final pre-trial. Counsel made a record that she could not
competently advise the defendant of the benefits and risks of an offer vs[.] trial due to not
having the expert’s evaluation of the case.” The trial court granted a certificate of
probable cause.
DISCUSSION
I
The appeal is properly before us
The Attorney General contends we should dismiss the appeal because it is taken
from a nonappealable order, namely the order denying (in part) defendant’s request for a
continuance. (See People v. Kaanehe (1977) 19 Cal.3d 1, 9 [denial of request to continue
trial already underway nonappealable].) The Attorney General acknowledges that the
trial court issued a certificate of probable cause, but asserts that a certificate of probable
10
cause cannot make a noncognizable issue cognizable on appeal. (Cf. People v. Hoffard
(1995) 10 Cal.4th 1170, 1178.)7 We are not persuaded.
Section 1237.5 authorizes appeals from pleas based on “reasonable constitutional,
jurisdictional, or other grounds going to the legality of the proceedings,” if the appellant
obtains a certificate of probable cause. Trial counsel’s application for the certificate
stated “grounds going to the legality of the proceedings”: defendant was coerced into
entering his plea when the trial court prevented him from ascertaining whether he had a
viable defense before deciding if he would go to trial and risk a much longer sentence on
conviction. Defendant did not appeal from the order denying the continuance; he
appealed from the imposition of sentence pursuant to an allegedly involuntary plea. His
appeal comes squarely within section 1237.5.
II
Defendant’s failure to move to withdraw his plea after he received the expert’s report
forfeits his claim of error
Having found that we have jurisdiction to hear the appeal, we must decide whether
defendant may challenge his sentence even though he did not move to withdraw his plea
when he received the expert’s report well before the date of sentencing. We conclude
that his failure to do so forfeits his attack on the sentence. We also conclude that
defendant cannot show this failure resulted from ineffective assistance of counsel.
An appellate court will not generally consider claims of error that could have been
raised in the trial court, but were not. (People v. Turner (2002) 96 Cal.App.4th 1409,
1412 (Turner).) Under section 1018, a defendant may move to withdraw his or her plea
7 Defendant failed to address this contention in his reply brief. In the Attorney General’s
supplemental brief, he states that he is withdrawing this argument, but without explaining
whether he no longer thinks it valid. We therefore choose to address the argument for the
guidance of the parties.
11
“at any time before judgment.” (Turner, supra, at p. 1412.) Therefore, if the defendant
knew before judgment that he or she could show the plea was involuntary, but did not
raise that claim by a motion to withdraw the plea, the claim is forfeited on appeal. (Id. at
pp. 1412-1413; see People v. Marsh (1984) 36 Cal.3d 134, 140; People v. Pinon (1973)
35 Cal.App.3d 120, 125-126; People v. Barajas (1972) 26 Cal.App.3d 932, 937.)
Here, defendant sought a continuance on the ground that counsel could not
properly advise defendant on the risks and benefits of going to trial until she had the
expert’s report in hand, because she could not know until then whether a self-defense
theory at trial would be viable. When the continuance was denied, counsel evidently
advised defendant to enter a plea because it assured him of a lower sentence than he
would be likely to obtain after conviction at trial. But when the expert’s report,
supporting counsel’s self-defense theory, came in over a week before the date of
sentencing, defendant did not move to withdraw his plea—even though the facts which
supposedly made the plea involuntary (counsel’s uncertainty whether a self-defense claim
could be supported) no longer existed, and the new facts gave ample grounds to withdraw
the plea. Under these circumstances, the Turner forfeiture rule applies.
In defendant’s supplemental opening brief, he does not cite any authority showing
why his failure to withdraw his plea before judgment does not forfeit his appellate claim
of error. He asserts instead that the expert’s report “merely formalized what trial counsel
had already been advised prior to the plea,” based on counsel’s statement in her motion
for continuance that Dr. Resk’s “ ‘initial impressions’ ” were consistent with a self-
defense claim. This is a departure from the position asserted in his opening brief, where
defendant wrote: “The trial court’s apparent impatience with [defendant’s] counsel was a
‘myopic insistence upon expeditiousness in the face of a justifiable request for delay,’
which insistence, but for a mere few more weeks to obtain a highly relevant report,
forced [defendant] to plead to a crime for which, as the expert’s report later
12
demonstrated--and which [in]fact counsel had already suggested to the trial court--he had
a viable defense of self defense.”
Faced with an argument that his appellate claim might be forfeited based on the
failure to seek withdrawal of his plea, defendant writes: “[T]he report ‘merely formalized
what trial counsel had already been advised prior to the plea.’ ” Defendant’s argument in
his supplemental brief thus defeats the argument presented in the opening brief.
If counsel thought her preliminary discussions with Dr. Resk were enough to show
the self-defense theory was viable, she would have had no reason to seek a continuance.
She could have advised defendant on the date of the last pretrial conference to reject the
prosecution’s offers and rely on self-defense at trial. For counsel instead to seek a
continuance, representing to the trial court that she did not have confidence in her theory
of trial when she actually did, would have been bad-faith conduct, though we will not
presume absent evidence that counsel acted in bad faith.
In defendant’s supplemental reply brief, he attempts to distinguish Turner and
other case law cited by the Attorney General on the facts. This effort is in vain. Even if
Case A can be distinguished from Case B on the facts, Case A may still state the rule of
law that controls in Case B. For the reasons already given, Turner and the decisions it
cites do so here.
As a fallback argument, defendant asserts trial counsel was ineffective. However,
his only basis for this claim is unsupported by the record.
In defendant’s original and supplemental briefing, he asserts “it is apparent from
the record” that counsel wrongly led him to believe he was facing a life sentence if he
went to trial—a claim that is strictly incorrect. While the record discloses counsel on
earlier occasions represented to the trial court, incorrectly, that defendant was facing a
life sentence, there is nothing in the appellate record that discloses the advice counsel
gave defendant during discussions on November 17 when defendant agreed to a
stipulated disposition. We know nothing of counsel’s advice to defendant, defendant’s
13
understanding of that advice, or how the advice provided affected his decision making
regarding the plea. Perhaps these facts could be ferreted out in a habeas corpus
proceeding, but an adequate predicate is not established for such a claim in this appellate
proceeding.
We cannot conclude counsel was ineffective in failing to move to withdraw
defendant’s plea because defendant cannot show prejudice from being sentenced
according to the plea. The eight-year sentence he received under the plea was
significantly less than any possible sentence after conviction at trial, and notwithstanding
Dr. Resk’s report, the substance of which was already known to his counsel, we cannot
find on this record a reasonable likelihood that his self-defense claim would have
prevailed.
Defendant’s claims of error are thus not supported by the record.
III
Imposition of fines and fees
At sentencing the trial court imposed a $40 court operations fee (§ 1465.8), a $30
criminal conviction fee (Gov. Code, § 70373), and a $2,400 restitution fine (§ 1202.4).
Based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), and other authorities,
defendant asserts that fees and fines cannot be imposed without a determination of a
defendant’s ability to pay. As no such determination was made in his case, he argues the
exactions must be stayed and the case remanded for a hearing on his ability to pay.
In Dueñas, supra, 30 Cal.App.5th 1157, an indigent and homeless mother of
young children was trapped in a cycle where she could not pay the fees to reinstate a
suspended driver’s license and incurred additional fees and fines associated with
misdemeanor convictions for driving with a suspended license that she could not afford
to pay. (Id. at p. 1161.) After pleading no contest to another misdemeanor charge of
driving with a suspended license, Dueñas requested that the trial court conduct an ability
14
to pay hearing, at which the court determined that she lacked the ability to pay attorney
fees for representation by a public defender (§ 987.8, subd. (b)) and waived these fees.
(Dueñas, supra, at p. 1163.) Nonetheless, the court imposed assessments and a minimum
restitution fine. (Ibid.)
On appeal, the court held “the 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.)
As for the restitution fine under section 1202.4, the statute prohibits a trial court
from considering a defendant’s ability to pay unless the fine exceeds the statutory
minimum amount. (§ 1202.4, subds. (b)(1), (c).) The court in Dueñas held that the
statute violates due process. (Dueñas, supra, 30 Cal.App.5th at p. 1171.)
We are not unsympathetic with the plight of the indigent who, like Dueñas, find
themselves trapped in a set of unfortunate circumstances created by the imposition of
fines and fees they cannot afford to pay. Though the seeds of their predicament were
sowed by their own misconduct, it may nonetheless seem unfair that those with money
can avail themselves of opportunities and avoid consequences that the poor cannot. But
as much as we might sympathize with their plight, the constitutionality of a fine or fee
does not rest on whether the imposition seems unfair. As pointed out in People v. Hicks
(2019) 40 Cal.App.5th 320, review granted November 26, 2019, S258946, the
Constitution has been held to bar the imposition of financial exactions on the
impecunious only when to do so “would otherwise preclude criminal and civil litigants
from prosecuting or defending lawsuits or from having an appellate court review the
propriety of any judgment,” or when the failure to pay would result in the incarceration of
persons lacking the ability to pay. (Hicks, at p. 325.)
15
We agree with Hick’s explication of the constitutional principles on which Dueñas
relies and therefore disagree with the Dueñas holding. The imposition of fees and fines
in this case does not compromise defendant’s constitutional right of access to the courts
nor will it result in any additional incarceration, and thus no liberty interest protected by
due process is implicated.
The Dueñas holding was based on due process. In addition to the due process
holding of Dueñas, defendant also asserts the $2,400 restitution fine is excessive under
the Eighth Amendment and article 1, section 17 of the California Constitution and
violates his right to equal protection of the law in the absence of a finding that he has the
ability to pay the fine.
A fine is excessive for purposes of the Eighth Amendment if it “is grossly
disproportional to the gravity of the defendant’s offense.” (United States v. Bajakajian
(1998) 524 U.S. 321, 337-338 [141 L.Ed.2d 314].) We do not find the $2,400 fine
imposed on defendant is disproportionate to defendant’s conduct in inflicting a stab
wound to his victim’s temple, penetrating into the skull, a laceration to his victim’s lower
lip that almost severed the lip from his face, a stab wound to his jaw penetrating into the
jawbone, a stab wound to his left chest cavity injuring the left lung, a stab wound to the
left side of his abdomen, a stab wound that entered his upper chest cavity and penetrated
downward into his abdominal cavity through the diaphragm, narrowly missing the liver,
and a laceration to the inside of his right wrist.
Defendant’s equal protection argument was made and rejected in People v. Glenn
(1985) 164 Cal.App.3d 736, 739-740. Apart from the Dueñas decision, which we reject,
defendant cites no other authority in support of his argument.
16
DISPOSITION
The judgment is affirmed.
/s/
RAYE, P. J.
I concur:
/s/
DUARTE, J.
17
ROBIE, J., Concurring and Dissenting.
I concur in all parts of the Discussion except the majority’s “Imposition of Fines
and Fees” analysis in part III. I conclude defendant forfeited his challenge to the general
restitution fine because our Supreme Court has already determined an objection
necessary to challenge the imposition of the fine in excess of the mandatory minimum.
(People v. Nelson (2011) 51 Cal.4th 198, 227.)
As to the court operations fee and criminal conviction fee, I agree with Dueñas
that principles of due process would preclude a trial court from imposing such fees if the
defendant demonstrates he or she is unable to pay them. (People v. Dueñas (2019) 30
Cal.App.5th 1157, 1168.) As stated in Castellano, however, a trial court is required to
determine a defendant’s ability to pay only if the defendant raises the issue, and the
defendant bears the burden of proving an inability to pay. (People v. Castellano (2019)
33 Cal.App.5th 485, 490.) In the absence of authority invalidating the challenged fees on
inability to pay at the time the trial court imposed them, defendant could not have
reasonably been expected to challenge the trial court’s imposition thereof. (People v.
Welch (1993) 5 Cal.4th 228, 237 [“[r]eviewing courts have traditionally excused parties
for failing to raise an issue at trial where an objection would have been futile or wholly
unsupported by substantive law then in existence”].) As such, because defendant’s
conviction and sentence are not yet final, I believe a limited remand under Dueñas is
appropriate to permit a hearing on defendant’s ability to pay the court operations fee and
criminal conviction fee. (See Castellano, at pp. 490-491.)
/s/
ROBIE, J.
1