People v. Moreno CA4/1

Filed 2/4/22 P. v. Moreno CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079142
Plaintiff and Respondent,
v. (Super. Ct. No. SCD283472)
MARIO MORENO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Jeffrey Fraser, Judge. Affirmed as modified.
Ava R. Stralla, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C.
Ragland, Donald W. Ostertag and James H. Flaherty III, Deputy Attorneys
General, for Plaintiff and Respondent.
INTRODUCTION
Mario Moreno pled guilty to three counts of forcible lewd act on a child
(Pen. Code,1 § 288, subd. (b)(1)). Pursuant to the plea agreement, the trial
court sentenced him to serve 28 years in state prison and imposed certain
fines and fees. On appeal, he does not challenge the conviction or prison
sentence. Instead, he contends the trial court committed reversible error
because it misunderstood the scope of its discretion when imposing a
restitution fine pursuant to section 1202.4, subdivision (b)(2). He further
contends the criminal justice administrative fee ordered pursuant to now-
repealed Government Code section 29550.1 and administrative fees related to
the collection of the restitution fine imposed pursuant to recently-repealed
section 1202.4, subdivision (l), and section 2085.5 must be stricken. We find
no abuse of discretion in the imposition of the restitution fine, but modify the
judgment to strike any balance of the criminal justice administrative fee that
remained unpaid as of July 1, 2021 and any balance of the challenged
administrative fees that remained unpaid as of January 1, 2022. We affirm
the judgment as modified in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
Moreno was charged with two counts of unlawful sexual penetration of
a child under the age of 10 (§ 288.7, subd. (b)), four counts of forcible lewd act
upon a child under the age of 14 (§ 288, subd. (b)(1)), and six counts of lewd
act upon a child under the age of 14 (§ 288, subd. (a)). In April 2021, Moreno
pled guilty to three counts of forcible lewd act in exchange for a prison
sentence of 28 years and a dismissal of the remaining charges.
1 All further statutory references are to the Penal Code unless otherwise
specified.
2
Moreno entered the following factual basis for his plea: “On three
separate occasions, I willfully and unlawfully touched the body of [Jane Doe],
a minor who was between the ages of 5 and 8 years old, with the intent of
arousing, appealing to and gratifying my lust, passions and sexual desires. I
committed said acts by use of force. [Jane Doe] is the child of a woman with
whom I had a dating relationship, and I knew that she had a minor child at
the time that our dating relationship began. On 9/24/04 I suffered a juvenile
true finding for PC288(a) and the child [Janice Doe] was 7 years old at the
time of the offense.”
At the sentencing hearing in June 2021, the trial court imposed the
agreed-upon 28-year prison sentence. It imposed the maximum restitution
fine of $10,000 (§ 1202.4, subd. (b)) and related administrative fees pursuant
to sections 1202.4, subd. (l) and 2085.5; a stayed $10,000 parole revocation
restitution fine (§§ 1202.44, 1202.45); a $120 court operations assessment (§
1465.8); a $154 criminal justice administrative fee (former Gov. Code, § 29550
et seq.); a $90 criminal conviction assessment (Gov. Code, § 70373); and a
$500 sex offender registration fee (§ 290.3).
Before the court imposed the fines and fees, defense counsel asked the
court to reduce the restitution fine to the minimum of $300 under section
1202.4, subdivision (b), arguing that: “I’m asking the Court to order the
minimum restitution fine of $300. Right now it is set at $10,000 pursuant to
Penal Code 1202.4(b). It is my position that that is an objective section of the
Penal Code which does allow for the minimum on a felony of $300 multiplied
by the number of years that a person is getting in prison for a maximum of
10,000. So given that Mr. Moreno is going to prison for 28 years, that is why
it has maxed out at 10,000. [¶] The Court -- as I’m sure the Court is aware,
Mr. Moreno is not going to be making much in prison. While he will have a
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job, it’s going to be limited given the nature of the charges and what yard
he’ll be able to be placed in and what programs and jobs he’ll be able to
participate in. So I’m asking the Court to reduce that to $300 as I think that
will still take a significant amount of time for him to pay off.”
The trial court imposed the maximum restitution fine of $10,000.
Defense counsel asked the court again if it “would . . . consider reducing the
restitution fine at all?” The court responded: “I think -- they have a
statutory formula they do with that. I don’t like those fines. I wish they
would waive them because I really don’t think that there’s -- there’s a
practical aspect to them, but the legislature has decided this.”
Defense counsel argued that, notwithstanding the statutory formula,
the court had the discretion to impose “anything in between the lowest of 300
and the maximum of 10,000.” Counsel argued that given the length of his
prison sentence and low prison wages that “it’s just going to be a humongous
burden for [Moreno] over the next 28 years” to pay the $10,000 fine. Counsel
stated: “I would just ask the Court to take that into consideration and reduce
the amount.” In response, the court said: “Well, I have.” (Italics added.)
The trial court went on to state: “And, again, I’m not the one that
makes this particular formula. It’s the legislature. I don’t personally like it.
I don’t think they should have it. Most fines and fees are in that category.
Your client is not all alone, especially given a lengthy prison term, that his
ability to pay -- he really doesn’t have one. But the legislature’s thought of all
this, and they don’t care. [¶] So my thing is do what you’ve been doing or the
defense bar has been doing and go to the state legislature and have this thing
changed just like they have with probation costs and attorney’s fees and some
of the other fines and fees. I mean, what’s happened is that we -- every year
it seems either the legislature or the bureaucracy comes up with new fines
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and fees, most of which will never be paid, which is crazy.” The trial court
then “decline[d]” Moreno’s request to reduce the restitution fine.
DISCUSSION
I.
The Trial Court Did Not Abuse Its Discretion by
Imposing the Maximum Restitution Fine
“In reviewing a trial court’s restitution order, we will not overturn its
decision unless it constitutes an abuse of discretion.” (People v. Fortune
(2005) 129 Cal.App.4th 790, 794.) A trial court’s misunderstanding of the
scope of its discretion may be grounds for reversal. (People v. Deloza (1998)
18 Cal.4th 585, 600 [finding remand appropriate where “the trial court
misunderstood the scope of its discretion to impose concurrent sentences . . .
and erroneously believed consecutive sentences were mandatory”]; Barriga v.
99 Cents Only Stores LLC (2020) 51 Cal.App.5th 299, 334 [“ ‘If the record
affirmatively shows the trial court misunderstood the proper scope of its
discretion, remand to the trial court is required to permit that court to
exercise informed discretion with awareness of the full scope of its discretion
and applicable law.’ ”].)
Moreno contends the trial court committed reversible error because it
“misunderstood the scope of its . . . discretion when it declined [his] request to
reduce the restitution fine based on a misinterpretation of section 1202.4,
subdivision (b)(2)’s suggested [statutory] formula.” 2
2 Section 1202.4 sets forth the parameters governing restitution fines. It
mandates that, absent “compelling and extraordinary reasons,” a restitution
fine must be imposed in all cases where a person is convicted of a crime.
(§ 1202.4, subd. (b).) The amount of the fine is set at the discretion of the
court so long as the fine is “commensurate with the seriousness of the
offense”; is at least $300 for a felony conviction, or $150 for a misdemeanor;
and is no more than $10,000 for a felony conviction, or $1,000 for a
5
Under the applicable standard of review and appellate principles, we
begin with the presumption “that the trial court . . . kn[ew] and applied the
correct statutory and case law in the exercise of its official duties.” (People v.
Mack (1986) 178 Cal.App.3d 1026, 1032.) Here, that presumption is
buttressed by the record. In response to defense counsel’s explicit request
that the court take “into consideration” discretionary factors it argued
warranted a reduced restitution fine⎯that is, the “humongous burden” on
Moreno to pay the restitution fine due to the length of his prison sentence
and low prison wages⎯the trial court said: “Well, I have.”
Moreno argues, however, that the trial court’s other
comments⎯including, “I’m not the one that makes this particular formula.
It’s the legislature.”⎯evidence its mistaken belief that the amount calculated
by the formula was mandatory. We are not persuaded. After affirmatively
stating that it had considered the discretionary factors raised by Moreno, the
court expressed its dislike for some of the fines and fees required by the
Legislature and its belief that many are never paid, and it acknowledged that
low prison wages is a factor common to all California prisoners, including
Moreno. However, the court stated, “the legislature’s thought of all this, and
they don’t care.”
Reading the entirety of the trial court’s comments, it is apparent that
while it had some concerns with the imposition of restitution fines in the first
instance, the court understood it was still required to impose the restitution
misdemeanor. (§ 1202.4, subd. (b)(1).) To assist the court in setting a felony
restitution fine, the Legislature has suggested a formula that a court “may”
use. (§ 1202.4, subd. (b)(2).) The formula determines “the amount of the fine
as the product of the minimum fine pursuant to paragraph (1) multiplied by
the number of years of imprisonment the defendant is ordered to serve,
multiplied by the number of felony counts of which the defendant is
convicted.” (Ibid.)
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fines considering the factors set forth in the statute. And the court did that.
Rather than demonstrate a misunderstanding as to the scope of its discretion
under the statute, the court’s comments reflect that it was attuned to the
issues arising from the imposition of fines and fees on indigent persons. The
court’s statement encouraging the defense bar to continue to address these
overarching issues through legislative action demonstrates it clearly had a
strong understanding of the full picture.
Finally, we further note the court imposed the maximum fine pursuant
to section 1202.4, subdivision (b), as recommended by the probation
department. The record confirms the court arrived at this amount by
utilizing the statutory formula. (§ 1202.4, subd. (b)(2).) The amount
calculated by the formula would actually be $25,200,3 but because a
restitution fine may not exceed $10,000, the trial court imposed the
maximum fine permitted by statute. (§ 1202.4, subd. (b)(1).) The court
expressly acknowledged that it did consider Moreno’s inability to pay when it
imposed the maximum fine, which is but merely one of several factors that a
court shall consider in setting the fine.4 (§ 1202.4, subd. (d).) The statute
also requires the court to consider the severity of the charges. (See § 1202.4,
subd. (b)(1) [the amount of the fine must be “commensurate with the
seriousness of the offense”].)
Here, the charges were significant, even after several counts were
dismissed pursuant to the plea. Moreno pled guilty to three counts of forcible
lewd act on a child under the age of 10, and explicitly admitted to the use of
3 This is the product of $300 (the minimum fine), 28 (the number of years
imposed), and 3 (the number of felony counts to which Moreno plead guilty).
4 Moreno has not raised any contention of error under People v. Dueñas
(2019) 30 Cal.App.5th 1157.
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force. He also admitted the allegation that he previously committed a lewd
act on a child who was 7. Thus, even where a court determines that a
defendant is unable to pay, it may still impose the maximum restitution fine
on account of, for example, the seriousness and gravity of the offense, the
circumstances of its commission, and the psychological harm suffered by the
victim. (§ 1202.4, subd. (d).) As required by statute, the court’s imposition of
the maximum $10,000 restitution fine was “commensurate with the
seriousness” of Moreno’s crimes. (§ 1202.4, subd. (b)(1).)
For these reasons, we are satisfied that the trial court did not
misunderstand the scope of its discretion by imposing the maximum
restitution fine.
II.
Any Unpaid Balance as of July 1, 2021 of the Criminal Justice Administrative
Fee Shall Be Vacated
At the time that Moreno was sentenced, courts were required to order
any convicted person who was arrested by a local arresting agency to pay a
criminal justice administrative fee as a condition of probation. (Former Gov.
Code, § 29550.1, subd. (a).) Accordingly, the trial court imposed a criminal
justice administrative fee of $154. Two weeks later, and while Moreno’s
appeal was pending, Assembly Bill No. 1869 (2019–2020 Reg. Sess.)
(Assembly Bill No. 1869) was signed into law. It repealed the statute
mandating imposition of a criminal justice administrative fee as of July 1,
2021. (Stats. 2020, ch. 92, § 24 [Gov. Code, § 29550.1 “shall remain in effect
only until July 1, 2021, and as of that date is repealed, unless a later enacted
statute that is enacted before July 1, 2021, deletes or extends that date.”].)
Assembly Bill No. 1869 also added section 6111 to the Government Code,
effective July 1, 2021. (Id., § 11.) That provision provides, “On and after July
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1, 2021, the unpaid balance of any court-imposed costs pursuant to
Section 27712, subdivision (c) or (f) of Section 29550, and Sections 29550.1,
29550.2, and 29550.3, as those sections read on June 30, 2021, is
unenforceable and uncollectible and any portion of a judgment imposing
those costs shall be vacated.” (Gov. Code, § 6111, subd. (a).)
Because Assembly Bill No. 1869 became effective during the pendency
of his appeal, Moreno contends it rendered the $154 criminal justice
administrative fee “unenforceable and uncollectible, and the portion of the
judgment imposing this fee must be vacated.” Elsewhere, he requests that
we order vacated “the portion of the judgment ordering collection of any
unpaid debt related to that fee.” (Italics added.) The People agree “these fees
must be stricken.”
We do not agree with Moreno or the People that Government Code
section 6111 mandates that the fee be stricken in its entirety. As we
explained in People v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 953 (Lopez-
Vinck), “By specifying the precise date on which the costs that have been
imposed on defendants pursuant to ‘Section 29550, and Sections 29550.1,
29550.2, and 29550.3,’ become unenforceable and uncollectible, the
Legislature made clear that any amounts paid prior to that time need not be
vacated, regardless of whether the sentence of the person on whom the costs
were imposed is final.” In other words, the repeal of Government Code
section 29550.1 does not operate to entitle a defendant to a disposition
striking the imposition of the $154 criminal justice administrative fee, or to a
vacatur of the fee in its entirety. Where Government Code section 6111
states that “any portion of a judgment imposing those costs shall be vacated,”
we have “conclude[d] that the statutory scheme supports interpreting the
phrase ‘those costs’ as referring only to that portion of fee imposed by the
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court that remains unpaid as of July 1, 2021.” (Gov. Code, § 6111, subd. (a);
Lopez-Vinck, at pp. 953–954.) Thus, Moreno is entitled to have only that
portion of the $154 fee that remained unpaid as of July 1, 2021 vacated from
the judgment. We will modify the judgment accordingly.
III.
Any Outstanding Portion of the Restitution Fine’s
Administrative Fees Shall be Vacated
Moreno also asks us to strike the administrative fees imposed in
connection with the $10,000 restitution fine, pursuant to section 1202.4,
subdivision (l) and section 2085.5 because of changes in the law following the
Governor’s signing of Assembly Bill No. 177 (2021–2022 Reg. Sess.)
(Assembly Bill No. 177) on September 23, 2021.5 The People agree that any
unpaid balance of the administrative fee imposed pursuant to section 1202.4,
subdivision (l) should be vacated. The People do not address any
administrative fees imposed pursuant to section 2085.5.
Prior to the enactment of Assembly Bill No. 177, sections 1202.4,
subdivision (l), and 2085.5 permitted the collection of various administrative
fees associated with the collection of a restitution fine. When Moreno was
sentenced, section 1202.4, subdivision (l) permitted a county’s board of
supervisors to impose, at its discretion, “a fee to cover the actual
administrative cost of collecting the restitution fine, not to exceed 10 percent
5 After briefing was completed in this case, Moreno moved to file a
supplemental opening brief to address these administrative fees. Appellant’s
counsel claims she was unaware of the effect of Assembly Bill No. 177 until
she attended a seminar last month. We granted Moreno’s motion and
directed the People to file a supplemental response. We have considered the
supplemental briefing addressing the effect of Assembly Bill No. 177 in this
case.
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of the amount ordered to be paid, to be added to the restitution fine and
included in the order of the court, the proceeds of which shall be deposited in
the general fund of the county.” As noted, the trial court imposed a $10,000
restitution fine plus an administrative fee not to exceed 10% pursuant to
section 1202.4, subdivision (l)—an amount equal to $1,000.
Further, the trial court ordered that the $10,000 restitution fine and
the $1,000 administrative fee were to be collected forthwith pursuant to
section 2085.5, which provided for deduction of restitution fines from a
prisoner’s wages and the collection of restitution from parolees. (Former
§ 2085.5, subds. (a)−(c).) Prior to Assembly Bill No. 177, section 2085.5
permitted the agency housing the prisoner to separately collect an
administrative fee “to cover the actual administrative cost of collection,”
which was to be deposited “in a special deposit account for reimbursing
administrative and support costs of the department or agency’s restitution
program.” (Former § 2085.5, subds. (e)–(f), (i).)
In enacting Assembly Bill No. 177, the Legislature sought “to eliminate
the range of administrative fees that agencies and courts are authorized to
impose to fund elements of the criminal legal system and to eliminate all
outstanding debt incurred as a result of the imposition of administrative
fees.” (Stats. 2021, ch. 257, § 2.) It did so by amending section 1465.9, in
part, to read: “On and after January 1, 2022 the balance of any court-
imposed costs pursuant to Section 1001.15, 1001.16, 1001.90, 1202.4, 1203.1,
1203.1ab, 1203.1c, 1203.1m, 1203.4a, 1203.9, 1205, 1214.5, 2085.5, 2085.6, or
2085.7, as those sections read on December 31, 2021, shall be unenforceable
and uncollectible and any portion of a judgment imposing those costs shall be
vacated.” (Stats. 2021, ch. 257, § 35; Pen. Code, § 1465.9, subd. (b).)
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Relevant here, Assembly Bill No. 177 repeals and then re-enacts
section 1202.4, eliminating former subdivision (l), which authorized a
county’s board of supervisors to impose an administrative fee to cover the
costs of collecting the restitution fine. Assembly Bill No. 177 also repealed
the administrative fees imposed pursuant to section 2085.5 for persons
incarcerated in state prisons or county jails to cover the administrative cost of
collections. By its plain language, Assembly Bill No. 177 renders the balance
of these administrative fees that remained on or after January 1, 2022
unenforceable and uncollectible. As we have concluded with the criminal
justice administrative fee, Moreno is entitled to have any portion of the
administrative fees imposed pursuant to former sections 1202.4, subdivision
(l), and 2085.5 that remained unpaid as of January 1, 2022 vacated from the
judgment. (See Lopez-Vinck, supra, 68 Cal.App.5th at pp. 953–954.)
DISPOSITION
Any portion of the $154 criminal justice administrative fee imposed
pursuant to former Government Code section 29550.1 that remains unpaid as
of July 1, 2021 and any administrative fees imposed pursuant to former
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sections 1202.4, subdivision (l), and 2085.5 that remain unpaid as of January
1, 2022 are vacated. The judgment as modified is affirmed in all other
respects.
DO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
GUERRERO, J.
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