People v. Martinez CA4/3

Filed 12/28/20 P. v. Martinez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G057456
v. (Super. Ct. No. 15CF2794)
ANTHONY RAYMOND MARTINEZ, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Maria D.
Hernandez, Judge. Affirmed as modified.
Cynthia M. Jones, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and
Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Based on a conviction for five counts of sex crimes against a minor, the
trial court sentenced appellant Anthony Raymond Martinez to serve 15 years to life in
prison and ordered him to pay assessment fees, a restitution fine, and a sex offender fine.
Martinez contends the court imposed the fees and restitution fine in violation of his
constitutional rights under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) and
also abused its statutory discretion on the sex offender fine. We conclude Martinez
forfeited his challenge to the court’s imposition of fines and fees. Even if not forfeited,
any conceivable error was harmless. We will modify the judgment to reflect the correct
statutory amount for the sex offender fine. As modified, we affirm the judgment.
I
FACTS AND PROCEDURAL HISTORY
In October 2018, a jury convicted Martinez of one count of oral copulation
with a child 10 years or younger (Pen. Code, § 288.7, subd. (b); count 1; all further
statutory references are to this code unless otherwise indicated) and four counts of lewd
acts on a child under 14 years of age (§ 288, subd. (a); counts 2 through 5). On March 8,
2019, the trial court imposed an aggregate sentence of 15 years to life in prison. The
court denied Martinez’s request to stay or strike the imposition of fees and fines and
1
ordered Martinez to pay assessment fees totaling $350 (§ 1465.8; Gov. Code, § 70373),
a restitution fine of $300 (§ 1202.4), and a sex offender fine in the amount of $200.
(§ 290.3.)
II
DISCUSSION
Martinez contends the trial court erred in concluding it lacked the discretion
to strike the sex offender fine imposed under section 290.3. He also asserts the court
operations and criminal assessment fees violated his right to due process because he
1
The total fees are comprised of a $40 court operation assessment fee and a $30 criminal
conviction assessment fee for each count.
2
lacked the ability to pay. Finally, Martinez argues the court erred in failing to stay
execution on the restitution fine until the state establishes his ability to pay. None of
these arguments require us to strike the fines and fees imposed or to remand for
resentencing.
Sex Offender Fine
During the pronouncement of sentence, the trial court followed the
recommendation in the probation report to find Martinez lacked the ability to pay
probation costs, declaring “[t]he court will bear the responsibility for the probation and
court costs.” Martinez’s attorney then asked the court to stay or strike the fines and fees
“in the interest of justice” because he did not have “any viable source of income.” The
court responded, “I would like to do so, [counsel], but these are fees and fines that I
cannot. They’re mandatory fees. [¶] And, you know, even I will tell you, I am actually
imposing the minimal fees and fines on this, [counsel]. And so even if the court had the
discretion, and I don’t believe I do, the court is going to impose those minimum fines and
fees.”
Martinez correctly notes the trial court mistakenly believed it lacked the
discretion to strike the sex offender fine when a defendant does not have the ability to
pay. Section 290.3, subdivision (a), provides in relevant part: “Every person who is
convicted of any offense specified . . . shall . . . be punished by a fine of three hundred
dollars ($300) upon the first conviction or a fine of five hundred dollars ($500) upon the
second and each subsequent conviction, unless the court determines that the defendant
does not have the ability to pay the fine.” The plain language of the statute grants a court
the discretion to strike the fine if it determines a defendant lacks the ability to pay.
Martinez argues we must strike the section 290.3 fine because the trial
court found he “lacked an ability to pay any [non]mandatory fine.” Alternatively, he
3
asserts we must remand for an ability to pay hearing if we conclude the court never made
an ability to pay finding. We decline to follow either course.
Martinez reads too much into the trial court’s decision to follow the
probation report’s recommendation not to impose fees for the costs of preparing the
probation report. An ability to pay determination considers a defendant’s present and
future ability to pay. (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [ability to
pay includes a defendant’s ability to earn prison wages].) The probation report
considered Martinez’s future ability to obtain income when it recommended the court
impose a $4,000 restitution fine and retain jurisdiction over Martinez for a future
restitution order when the victim’s “losses may be determined,” per section 1202.46. A
recommendation for a $4,000 restitution fine and the retention of jurisdiction for a future
restitution order is inconsistent with a finding Martinez lacked the ability to pay in the
future. It is apparent the court understood the probation report’s recommendation not to
impose probation costs meant only that Martinez lacked the present ability to meet that
obligation.
Nor do we see any basis to remand for the trial court to hold an ability to
pay hearing. It was Martinez’s burden to ask the court for a hearing to determine whether
he had the ability to pay the section 290.3 fine. (People v. McMahan (1992)
3 Cal.App.4th 740, 749 [section 290.3 does not require court to hold ability to pay
hearing “‘unless’” defendant makes that request]; People v. Castellano (2019)
33 Cal.App.5th 485, 490 [defendant must “present evidence of his or her inability to pay
amount contemplated by the trial court”].) Martinez failed to ask for an ability to pay
hearing and therefore forfeited the issue.
Martinez argues the trial court’s statement that it “would like to” strike the
fees and fines shows it would have done so if it understood it had the discretion to strike.
But this interpretation fails to account for the court’s statement it would impose the
minimum fees and fines “even if the court had the discretion.” It would waste judicial
4
resources and serve no useful purpose to remand where the record shows the court
“‘“would not have exercised its discretion even if it believed it could do so.”’” (People v.
McDaniels (2018) 22 Cal.App.5th 420, 425.) We view the court’s statement it would like
to strike the fines and fees as a personal preference that must yield to the proper exercise
of discretion since Martinez offered no evidence on his future inability to pay.
Consequently, we conclude no basis exists to remand the matter for an ability to pay
hearing.
The parties agree the $200 amount ordered under section 290.3 was
unauthorized. We agree with the Attorney General’s request that we modify the
judgment to reflect the statutorily specified amount of $300. (People v. Barnwell (2007)
41 Cal.4th 1038, 1048, fn. 7.)
Restitution Fine
Martinez challenges the trial court’s failure to stay execution of the
restitution fine under Dueñas. That decision was decided two month before Martinez
was sentenced. Accordingly, Martinez’s failure to request a hearing below forfeits his
appellate challenge to the restitution fine. The forfeiture analysis described in our
discussion of the sex offender fine also applies here. Even if there was no forfeiture, no
basis for resentencing exists because the court would not have exercised its discretion to
strike the fine.
Assessment Fees
Martinez contends the trial court violated his due process rights as
articulated in Dueñas, supra, 30 Cal.App.5th 1157. There the appellate court held due
process requires a trial court to determine whether a defendant has the ability to pay
assessment fees if the defendant requests the court to conduct an ability to pay hearing.
(Id. at pp. 1163, 1167.) As discussed above, Martinez forfeited the issue.
5
Even if there was no forfeiture, we would reject Martinez’s arguments. We
agree with the Attorney General that although “imposing [non]punitive fees without
considering [Martinez’s] ability to pay [] implicate[d] due process, any such error was []
harmless in this case, given the evidence of [Martinez’s] future earning capacity.” Trial
courts must consider whether a defendant will earn enough in prison wages or income
while on probation. (See People v. Kopp (2019) 38 Cal.App.5th 47, 96, review granted
Nov. 13, 2019, S257844 (Kopp) [“court should not limit itself to considering only
whether [defendants] have the ability to pay at the time of the sentencing hearing”].)
The record shows, when sentenced, Martinez was a healthy 28-year-old
who played basketball and handball. There is no evidence Martinez had any physical or
mental impairment that would prevent him from working. Thus, we assume Martinez
will earn the minimum monthly prison wage.
The record also shows garnishment of Martinez’s prison wages would meet
the total imposed fees by no later than his sixth year in prison, when he will be 34 years
old. (See People v. Aviles (2019) 39 Cal.App.5th 1055, 1076 [noting state may garnish
between 20 and 50 percent of prison wages, which range from $12 to $56 per month, to
pay restitution fine].) Martinez’s reliance on People v. Taylor (2019) 43 Cal.App.5th 390does not persuade us to ignore this factual inference in the record. In Taylor, the
appellate court concluded “[it could not] say that potential prison work foreclose[d] a
meritorious inability to pay argument,” given the defendant was 70 years old, would need
13 years to settle $840 in fees, and the court knew nothing about whether the defendant
could work until then. (Id. at p. 402.) As noted, the record shows Martinez has the
ability to pay the fees by earning prison wages. Given Martinez’s sentence of 15 years to
life, even if Martinez had not forfeited the issue, we would conclude any conceivable
error in imposing the assessment fees without a formal ability-to-pay hearing would be
harmless error.
6
III
DISPOSITION
The judgment is modified (§ 1260) to reflect a $300 fine under section
290.3. The trial court is ordered to prepare an amended abstract of judgment and forward
a certified copy to the Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.
ARONSON, J.
WE CONCUR:
MOORE, ACTING P. J.
IKOLA, J.
7