People v. Aviles

• Decision Date: 13 September 2019
• Docket Number: F073846
• Citation: 39 Cal.App.5th 1055,252 Cal.Rptr.3d 727
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Luis Arrellanes AVILES, Defendant and Appellant.

39 Cal.App.5th 1055

252 Cal.Rptr.3d 727

The PEOPLE, Plaintiff and Respondent,

v.Luis Arrellanes AVILES, Defendant and Appellant.

F073846

Court of Appeal, Fifth District, California.

Filed September 13, 2019

POOCHIGIAN, Acting P.J.

INTRODUCTION

Appellant/defendant Luis Arrellanes Aviles led officers on a foot pursuit through houses, garages, and backyards in a residential neighborhood. An officer found defendant hiding inside a bedroom closet of a residence and ordered him to surrender; the officer did not realize that defendant was in possession of a firearm. Instead of complying with the officer's orders to surrender, defendant fired multiple gunshots and wounded two officers. One officer was shot four times, and the second officer was shot once. The other officers at the scene returned fire, and defendant finally surrendered after being wounded.

Defendant was charged and convicted of counts 1 and 2, the attempted premeditated murders of the two police officers (Pen. Code, §§ 664/187, subd. (a))¹ with firearm enhancements (§ 12022.53, subd. (d)); and count 3, possession of a firearm by a felon (§ 29800, subd. (a)(1)). Defendant was sentenced to an aggregate term of 80 years to life in state prison, plus a consecutive term of two years for his plea in a separate case for assault with a deadly weapon – a cutting instrument – by means of force likely to produce great bodily injury. (§ 245, subd. (a)(1)).

We affirm defendant's convictions in counts 1, 2, and 3 and the jury's findings on the firearm enhancements.

In the published portion of this opinion, we address defendant's reliance on People v. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268 (Dueñas ) to argue that the trial court violated his constitutional rights to due process and equal protection by ordering him to pay certain fines, fees, and assessments without finding he had the ability to pay those amounts. We find Dueñas was wrongly decided, and that a constitutional challenge to the imposition of fines, fees, and assessments should be based on the Excessive Fines Clause of the Eighth Amendment instead of the due process rationale utilized in Dueñas.

We will remand the matter for the trial court to address specific sentencing issues as set forth in the unpublished portion of this opinion, and otherwise affirm defendant's convictions, the firearm enhancements, and the fines, fees, and assessments imposed.

FACTS ^**

THE PROSECUTION'S GANG EVIDENCE ^***

DEFENSE EVIDENCE ^†

REBUTTAL EVIDENCE ^††

PROCEDURAL HISTORY ^†††

DISCUSSION

I.-V.^*†

VI. The Court's Imposition of Restitution Fines, Fees, and Assessments

Defendant argues the court violated his constitutional rights to due process and equal protection because it ordered him to pay restitution fines, fees, and assessments without conducting a hearing to determine whether he had the ability to pay those amounts. Defendant did not object to the court's orders but argues he has not forfeited review because any objection would have been futile under the statutory and case law at that time, and the issue raises a pure legal question. Defendant requests this court remand the matter for the trial court to conduct a hearing on his ability to pay so that it can either strike or stay the amounts previously imposed.

Defendant's due process arguments are based on People v. Dueñas, supra , 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268, that was decided after his sentencing hearing was held and while this appeal was pending. We disagree with Dueñas's due process analysis and find a defendant's constitutional challenge to the court's imposition of such amounts should be raised under the Eighth Amendment to the United States Constitution to determine whether the fines, fees, and assessments are "grossly disproportional to the gravity of a defendant's offense" and thus "excessive." ( United States v. Bajakajian (1998) 524 U.S. 321, 334, 118 S.Ct. 2028, 141 L.Ed.2d 314 (Bajakajian ), superseded on other grounds as explained in U.S. v. Jose (1st Cir.P.R. 2007) 499 F.3d 105, 110.)

We also find that, to the extent defendant attempts to rely on Dueñas , he forfeited review of his ability to pay argument by failing to object when the sentencing court imposed restitution fines above the statutory minimum, and any error is harmless beyond a reasonable doubt because the record shows he has the ability to pay the amounts ordered in this case.

A. The Sentencing Hearing

We begin with the sentencing hearing that was held in May 2016, before Dueñas was decided.

The court found multiple aggravating factors, no mitigating factors, and sentenced defendant to an aggregate term of 80 years to life for two counts of attempted murder with firearm enhancements, and one count of possession of a firearm by a felon. The court followed the probation report's recommendation and imposed the maximum statutory restitution fine of $10,000 (§ 1202.4, subd. (b))¹⁹ , and imposed and stayed the parole revocation fine of $10,000 (§ 1202.45). The court also imposed the court operations assessment of $120 (§ 1465.8)²⁰ and the court facilities funding assessment of $90 ( Gov. Code, § 70373 ).²¹

The court also sentenced defendant to a consecutive lower term of two years for assault with a deadly weapon; the conviction was based on defendant's assault on his cellmate during the pendency of his trial. The court again followed the probation report's recommendation and imposed a restitution fine of $600, an amount above the statutory minimum, and imposed and stayed the parole revocation fine of $600. The court also imposed a $40 court operations assessment (§ 1465.8); and a $30 court facilities funding assessment ( Gov. Code, § 70373 ).

Defendant was thus ordered to pay a total of $10,600 in restitution fines, $160 in court operations assessments, and $120 in court facilities funding assessments. The court did not order any victim restitution. Defense counsel objected to the court's findings on aggravating and mitigating factors but did not object to the court's imposition of any of the fines, fees, and assessments.

The court stated the public defender's office had requested reimbursement of attorney fees in the amount of $50,000. The court denied the request because "[i]n light of the life sentence that [defendant] has been sentenced to, I'm gonna [sic ] find no ability [to pay]."²²

B. Dueñas, Castellano, and Frandsen

In Dueñas , supra , 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268, an impoverished defendant had been repeatedly convicted of driving with a suspended license. She lacked the financial means to pay multiple fees imposed for her previous citations and clear her record to obtain a valid license. She remained liable for court fees and the debts were sent to collection agencies. ( Id. at pp. 1160–1161, 242 Cal.Rptr.3d 268.) The court subsequently placed the defendant on probation on condition of serving 30 days and paying a $300 fine and offered to convert the fine into an additional nine days in jail. Her attorney agreed because she did not have the ability to pay. The court also ordered her to pay a restitution fine of $150, the statutory minimum for a misdemeanor; $30 for the court facilities assessment ( Gov. Code, § 70373 ); and $40 for the court operations assessment (§ 1465.8). It did not impose victim restitution. ( Dueñas , supra , 30 Cal.App.5th at pp. 1162, 1169, 242 Cal.Rptr.3d 268.)

After the court imposed the fees and fines, it granted the defendant's motion for a hearing on her ability to pay the attorney fees she had previously been assessed with under section 987.8, subdivision (b), and also to challenge the other fines and fees. ( Dueñas , supra , 30 Cal.App.5th at pp. 1162–1163, 242 Cal.Rptr.3d 268.) The defendant introduced uncontested evidence about her indigence. The court determined she lacked the ability to pay the previously-ordered attorney fees and waived them. The court found the assessments imposed under section 1465.8 and Government Code section 70373 were mandatory regardless of her inability to pay. The court further found she failed to show the " ‘compelling and extraordinary reasons’ " required by section 1202.4, subdivision (c) to justify waiving the minimum $150 restitution fine. ( Dueñas , supra , at p. 1163, 242 Cal.Rptr.3d 268.) The court rejected defendant's argument that due process and equal protection required it to determine her ability to pay the fees and fines or strike the orders. (Ibid. )

Dueñas held the trial court's imposition of these amounts without finding the defendant had the ability to pay, and "using the criminal process to collect a fine she cannot pay is unconstitutional" because "the only reason [the defendant] cannot pay the fine and fees is her poverty." ( Dueñas , supra , 30 Cal.App.5th at p. 1160, 242 Cal.Rptr.3d 268.)

"We conclude that due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under ... section 1465.8 and Government Code section 70373. We also hold that although ... section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." ( Id. at p. 1164, 242 Cal.Rptr.3d 268, italics added.)

In reviewing the fees and assessments, Dueñas found that section 1465.8 and Government Code section 70373 were not enacted with the intent to be punitive in nature, but they had been "parts of more comprehensive legislation intended to raise funds for California courts." ( Dueñas , supra , 30 Cal.App.5th at p. 1165, 242 Cal.Rptr.3d 268.) The Legislature had provided "fee waivers for indigent litigants at the trial and appellate court levels that excuse them from...