People v. Palaita CA1/4

Filed 12/15/20 P. v. Palaita 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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, A157840
v. (Del Norte County
FONOTELE PALAITA, Super. Ct. Nos. CRF 19-9124,
CRF 19-9168)
Defendant and Appellant.
Fonotele Palaita filed this appeal after pleading guilty to weapon
possession charges pursuant to a negotiated disposition. He contends the
trial court committed constitutional error by requiring him to pay restitution
fines without conducting an ability-to-pay hearing in accordance with People
v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We affirm the judgment.
BACKGROUND
On May 14, 2019, Palaita pled guilty to two counts of being a felon in
possession of a firearm (Pen. Code, § 29800, subd. (a)(1)) and one felony count
of carrying a concealed dirk or dagger (§ 21310).1 These pleas were part of a
negotiated disposition of two pending cases, which contemplated that other
charges would be dismissed, Palaita would be sentenced to probation, and if
1 Statutory references are to the Penal Code except as otherwise noted.
1
probation was not successful, his maximum term would be four years and
four months in prison. Palaita agreed that if he failed to appear for
sentencing, his guilty pleas would remain in effect, but the court would “not
be bound by any sentence bargain.”
As part of his plea bargain, Palaita executed a felony plea declaration
in which he acknowledged, among other things, that in entering guilty pleas
he could receive penalties and consequences in addition to incarceration.
Relevant here, Palaita acknowledged that for each offense the court could
impose “[a] fine up to $10,000.00 plus penalty assessment.”
Palaita failed to appear for sentencing and was subsequently arrested.
On June 13, 2019, he was sentenced to an aggregate term of three years in
prison. In each of his cases, Palaita was also ordered to pay the following
fines and fees: a $300 restitution fund fine (§ 1202.4, subd. (b)); a $300 parole
revocation fine, which was stayed (§ 1202.45); a $40 court operations fee for
each conviction (§ 1465.8); and a $30 conviction assessment for each
conviction (Gov. Code, § 70373).
On July 12, 2019, Palaita filed a notice of appeal, which states that his
appeal is based on his “sentence or other matters occurring after the plea
that do not affect the validity of [his] plea[s].”
On January 6, 2020, Palaita’s appellate counsel sent a letter to the
sentencing judge, requesting that the court exercise its retained jurisdiction
under section 1237.2 to stay Palaita’s restitution fines and court fees “until
such time as the prosecution proves [he] has a current ability to pay them.”
The court denied this request May 4, 2020, noting that the law was unsettled
and that Palaita had not made an objection at his sentencing hearing.2
2Section 1237.2 provides that “[a]n appeal may not be taken . . . on the
ground of an error in the imposition or calculation of fines, penalty
2
DISCUSSION
Palaita contends he was denied his constitutional right to a hearing
regarding his ability to pay fines and fees at sentencing, citing Dueñas,
supra, 30 Cal.App.5th 1157. Arguing that a certificate of probable cause is
not required to assert this error, Palaita requests that we remand the matter
for a trial court hearing regarding his ability to pay restitution fines in the
two cases covered by his negotiated plea agreement.
The People argue that Palaita was required to obtain a certificate of
probable cause (§ 1237.5), and that his failure to do so precludes this court
from reaching the merits of his appeal (People v. Mendez (1999) 19 Cal.4th
1084). The People reason that, because Palaita agreed to pay a fine of up to
$10,000 per count, any challenge to the imposition of fines or fees is an attack
on the validity of his plea. The record shows that Palaita acknowledged that
imposition of substantial fines was a potential consequence of entering guilty
pleas to the crimes in this case, but we find no clear indication that Palaita
affirmatively agreed to pay those fines as part of his plea bargain. In any
event, we conclude that the appeal is foreclosed for a different reason.
Palaita forfeited his Dueñas claim by failing to object to his restitution
fines when they were imposed. (See People v. McCullough (2013) 56 Cal.4th
589, 596–597; People v. Nelson (2011) 51 Cal.4th 198, 227; People v. Avila
(2009) 46 Cal.4th 680, 729.) In Dueñas, the misdemeanant disputed her
ability to pay either a restitution fine or court fees, requested an ability-to-
assessments, surcharges, fees, or costs unless the defendant first presents the
claim in the trial court at the time of sentencing, or if the error is not
discovered until after sentencing, the defendant first makes a motion for
correction in the trial court, which may be made informally in writing . . . .”
We grant Palaita’s motion to augment the record with documents showing
the court denied his post-judgment motion to stay his fines and fees.
3
pay hearing, and produced evidence putting her inability to pay at issue.
(Dueñas supra, 30 Cal.App.5th at pp. 1162–1163.) Here, Palaita did not
contend that he lacked the ability to pay his restitution fines or challenge his
fines and fees on any other ground.
Palaita contends an objection was not required to preserve his Dueñas
claim because he did not have a statutory right to object to the statutory
minimum restitution fines that were imposed at his sentencing hearing.
Citing this court’s decision in People v. Johnson (2019) 35 Cal.App.5th 134,
Palaita argues his claim is cognizable because a “non-frivolous” objection to
the fines was “not apparent at the time of sentencing.” Johnson is inapposite
because the defendant in that case was sentenced before Dueñas was decided.
(Johnson, at pp. 137–138.) When Palaita was sentenced, Dueñas was
authority for a due process challenge to statutory minimum restitution fines
and he forfeited that challenge by failing to assert it.
Palaita attempts to salvage his appeal by limiting his objection to the
parole revocation restitution fines imposed under section 1202.45. However,
he fails to articulate a coherent reason why this type of fine would be subject
to review despite the fact that he did not object at sentencing. We also note
that Palaita’s appellate counsel did not even mention the parole revocation
restitution fines in his post-judgment motion requesting that the trial court
correct alleged sentencing errors pursuant to section 1237.2. This is not
surprising because Palaita’s substantive theory is that Dueñas requires
courts to stay restitution fines until the prosecution shows a defendant’s
ability to pay them. In his appellate briefs, Palaita loses sight of the fact that
his parole revocation restitution fines were stayed and thus would not violate
Dueñas even if his claim was cognizable on appeal.
4
DISPOSITION
The judgment is affirmed.
TUCHER, J.
WE CONCUR:
STREETER, Acting P. J.
BROWN, J.
People v. Palaita (A157840)
5