People v. Tyler CA2/6

Filed 3/15/21 P. v. Tyler CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B302924
(Super. Ct. No.
Plaintiff and Respondent, F000368216001)
(San Luis Obispo County)
v.
RICHARD SHELDON
TYLER,
Defendant and Appellant.
Richard Tyler appeals from the order after judgment
denying his motion to set aside and dismiss the conviction. (Pen.
Code,1 § 1203.4.) He contends the trial court erred in denying
relief based on his failure to pay court-ordered fines and fees
without determining his ability to pay.2 We affirm.
1 All
subsequent undesignated statutory references
are to the Penal Code.
2 Tyler
also appeals from the denial of his motion to
reduce the charge to a misdemeanor. (§ 17, subd. (b).) He has
FACTUAL AND PROCEDURAL BACKGROUND
In 2005, a jury found Tyler guilty of possession of
methamphetamine for sale and found true an allegation that it
was in crystalline form. (Health & Saf. Code, § 11378; Pen. Code,
§ 1170.74.) The trial court placed Tyler on supervised probation
for three years with terms and conditions including that he serve
365 days in county jail and pay various fines and fees: $200
restitution to the state restitution fund (§ 1202.4, subd. (f)), a
$200 restitution fine (§ 1202.4, subd. (b)(1)), a $200 probation
revocation fine stayed pending successful completion of probation
(§ 1202.44), a $300 statutory penalty (Gov. Code, § 76104.6, subd.
(a)), a $50 criminal laboratory fee (Health & Saf. Code, § 11372.5)
and a $20 court security fee (§ 1465.8, subd. (a)(1)). In addition,
he was ordered to reimburse the county, in the form of a civil
judgment, for various fees: a $45 processing fee, $520 for a pre-
sentence investigation and report, a $40 monthly probation
monitoring fee, an $85 adult probation intake fee, and a $55
chemical testing fee. (§ 1203.1b.) We affirmed the judgment in
2006. (People v. Tyler (Sept. 28, 2006, B189006) [nonpub. opn.].)
In 2007 and 2008, Tyler admitted four violations of
probation. For three of the violations, he received additional jail
time of 10 days, 20 days (concurrent to a new criminal case and
another case), and 90 days (concurrent to another case),
respectively. In 2010, he paid $632 toward his obligations.
In 2019, Tyler moved to set aside the conviction and
dismiss the charges. (§ 1203.4.) He asserted that the ends of
justice would be served because he had no criminal charges since
2008, he moved to Ventura County, and the conviction “has made
abandoned the issue by not providing argument or citation of
authority. (In re S.C. (2006) 138 Cal.App.4th 396, 408.)
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it difficult for [him] to find adequate housing” and “has limited
his employment opportunities.”
The probation department reported that Tyler
sustained no new arrests or adjudications but failed to meet his
financial obligations. His outstanding balance of $3,002 was sent
for collection to the Franchise Tax Board. Based on Tyler’s
failure to pay the fines and fees and his violations of probation,
the trial court denied the motion to set aside and dismiss the
conviction.
DISCUSSION
Section 1203.4 authorizes the court to set aside a
conviction and dismiss the case after completion of probation.
The defendant “shall thereafter be released from all penalties
and disabilities resulting from the offense,” with enumerated
exceptions. (§ 1203.4, subd. (a)(1).)
The court may grant section 1203.4 relief when: “[1]
a defendant has fulfilled the conditions of probation for the entire
period of probation, or [2] has been discharged prior to the
termination of the period of probation, or [3] in any other case in
which a court, in its discretion and the interests of justice,
determines that a defendant should be granted the relief
available under this section.” (§ 1203.4, subd. (a)(1).) The court
is required to grant relief in the first two situations if the
statutory conditions are met. Relief in the third situation is
discretionary. (People v. McLernon (2009) 174 Cal.App.4th 569,
574-576.) We review for abuse of discretion.
Tyler did not “fulfill[] the conditions of probation for
the entire period of probation” because he violated probation four
times. Nor was probation terminated early. In denying the
section 1203.4 motion, the trial court relied not only on the
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failure to pay fines and fees, but also on Tyler’s four violations of
probation. (See People v. McLernon, supra, 174 Cal.App.4th at
pp. 576-577.) The record does not disclose the nature of the
violations but reflects that they coincided with the filing of new
criminal cases and in three instances were serious enough to
warrant additional jail time.
Tyler contends that pursuant to People v. Dueñas
(2019) 30 Cal.App.5th 1157 (Dueñas), the trial court’s reliance on
his unpaid fines and fees, without determination of his ability to
pay, violated his state and federal right to due process. Dueñas
discusses the effect of indigency on section 1203.4 relief.
(Dueñas, at pp. 1170-1171.) It reasons that a probationer unable
to pay a restitution fine is barred from mandatory relief based on
compliance with probation conditions and is limited to seeking
discretionary relief in the interest of justice. (See People v.
Covington (2000) 82 Cal.App.4th 1263 [failure to pay restitution
barred mandatory dismissal].) But as Tyler concedes, his
violations of probation disqualify him from mandatory relief.
Moreover, the record does not show that Tyler’s
situation is comparable to that of Dueñas. There, the defendant
was unemployed, homeless, and suffered from cerebral palsy.
She lived on public benefits, which were inadequate to provide
“basic necessities for her family.” (Dueñas, supra, 30 Cal.App.5th
at pp. 1160-1161.) She was trapped in “an ever-expanding . . .
cycle” of convictions for driving on a suspended license and
inability to pay fees for those convictions, which led to further
license suspensions. (Id. at pp. 1161, 1163.) In contrast here,
Tyler was self-employed at the time of sentencing as a tile-setter.
His motion was based on general statements that it was “difficult
. . . to find adequate housing” and he had “limited . . .
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employment opportunities.”
The court did not abuse its discretion in considering
Tyler’s failure to pay. Abuse of discretion is not found “‘“unless
the trial court exercised its discretion in an arbitrary, capricious,
or patently absurd manner that results in a manifest miscarriage
of justice.”’ [Citation.]” (People v. Jones (2013) 57 Cal.4th 899,
924.) In the 14 years since Tyler’s conviction, he made only one
payment, which was after termination of probation. He made no
showing that he was unable to make additional payments. The
fact that he was represented by court-appointed counsel does not
establish that he was unable to pay fines or fees. (People v.
Douglas (1995) 39 Cal.App.4th 1385, 1397 [defendant unable to
pay for court-appointed counsel may have ability to pay
restitution fine]; People v. Vournazos (1988) 198 Cal.App.3d 948,
958 [defendant qualified for court-appointed counsel but had
ability to pay restitution].) There was no error.
In any event, Tyler forfeited the issue because he did
not make this claim in the trial court and did not offer evidence of
his inability to pay. (People v. Trujillo (2015) 60 Cal.4th 850, 856
[inability to pay probation fees].) Because the hearing in the trial
court occurred after Dueñas, asserting inability to pay would not
“‘have been “futile or wholly unsupported by substantive law then
in existence.”’” (People v. Taylor (2019) 43 Cal.App.5th 390, 399.)
Tyler argues that he did not forfeit the issue of ability
to pay because it involves a fundamental right. He relies on
People v. Mills (1978) 81 Cal.App.3d 171, 175, which allows
appellate consideration of an issue not raised in the trial court if
it “presents only a question of law arising from facts which are
undisputed.” But the factual basis for the argument is missing
here because there is no evidence of inability to pay.
5
Nor can we conclude that failure to raise the issue
constituted ineffective assistance of counsel. Because the record
contains no evidence that Tyler was unable to pay the fines and
fees, he has not demonstrated a reasonable probability of a more
favorable outcome as a “‘“demonstrable reality,” not simply
speculation.’” (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
DISPOSITION
The order (denying reduction to a misdemeanor and
denying dismissal) is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
YEGAN, Acting P. J.
PERREN, J.
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Jacquelyn H. Duffy, Judge
Superior Court County of San Luis Obispo
______________________________
Richard B. Lennon and Michael Tetreault, under
appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Noah P. Hill and Kathy S.
Pomerantz, Deputy Attorneys General, for Plaintiff and
Respondent.