People v. Cowan

• Decision Date: 27 March 2020
• Docket Number: A156253
• Citation: 260 Cal.Rptr.3d 505,47 Cal.App.5th 32
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ron COWAN, Defendant and Appellant.

47 Cal.App.5th 32

260 Cal.Rptr.3d 505

The PEOPLE, Plaintiff and Respondent,

v.Ron COWAN, Defendant and Appellant.

A156253

Court of Appeal, First District, Division 4, California.

Filed March 27, 2020

Certified for Partial Publication.^*

Counsel for Appellant: Theresa Osterman Stevenson, by appointment of the First District Court of Appeal, under the First District Appellate Project

Counsel for Respondent: Xavier Becerra, Attorney General, Jeffrey M. Laurence, Sr. Asst. Attorney General, René A. Chacón, Supervising Deputy Attorney General, Bruce Ortega, Deputy Attorney General

STREETER, J.

Ron Cowan appeals from a final judgment and sentence entered after a guilty plea, preceded by the denial of a motion to suppress evidence. The grounds for appeal are three-fold. First, Cowan argues that his detention in a traffic stop prior to his arrest violated the Fourth Amendment for lack of reasonable suspicion to detain. Second, Cowan challenges as an abuse of discretion a 16-month jail term imposed upon him as part of a grant of probation—a so-called "hammer," to which he consented as part of his plea—for his failures to appear at sentencing and at a probation interview appointment. Third, Cowan attacks the court operations and court facilities assessments and the minimum restitution fine imposed on him over his inability-to-pay objection under People v. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268 ( Dueñas ).

In the unpublished portion of this opinion, we reject Cowan’s argument that he was detained in violation of the Fourth Amendment. We also reverse the 16-month jail sentence, not because imposing it as a hammer was an abuse of discretion, but because imposing a jail term that exceeds 12 months as a condition of probation is an unauthorized sentence under Penal Code section 19.2. In the published portion of the opinion, we conclude the trial court erred in overruling Cowan’s inability-to-pay objection. On the ability-to-pay issue, we hold that, upon proper objection, a sentencing court must allow a defendant facing imposition of a minimum restitution fine or court operations and court facilities assessments to present evidence and argument why these financial exactions exceed his ability to pay.

We ground our ability-to-pay holding on an excessive fines analysis under the Eighth Amendment and under article I, section 17 of the California Constitution, rather than the due process analysis Dueñas rests upon. While we ultimately reach a result similar to that in Dueñas, we order a disposition that is different in some respects from that ordered by the Dueñas panel. We shall direct that, upon remand, Cowan has the burden of proving inability to pay; that assessment of Cowan’s ability to pay shall include not only present ability to pay but whether he has any reasonable prospect of paying in the future; and that, should the court find the restitution fine to be excessive, the appropriate disposition is to decline to impose it, not to stay it.

I. BACKGROUND

On April 14, 2018, at about 6:10 p.m., San Francisco Police Sergeant James O’Malley was on patrol in the area of Polk and Grove Streets when he was approached by a woman, identified as "Arie," who said she believed two white males were breaking into a car nearby. Sergeant O’Malley went to the location of the reported break-in and found an empty parking space where glass shards were on the ground. On the way, a second witness, identified as James Scott, said he saw one of the suspects, a man wearing a yellow jacket with dread-style hair, use what appeared to be a cell phone to break the left rear passenger window of a "newer" "white" car that looked "similar to a Nissan Ultima [sic ]" and reach into it. Scott then saw a second man, who was nearby, eventually get in the car with the first man, at which point they drove off together. The second man had long hair.

After driving in the vicinity of Market Street and Civic Center looking for the stolen car, 39 minutes after leaving the scene of the break-in Sergeant O’Malley drove off to respond to a call from dispatch about a matter near Larch Way and Eddy Street. While en route to that area, on westbound Eddy Street at the intersection of Gough Street, Sergeant O’Malley saw a white Ford Fusion waiting there with a missing or rolled down left rear passenger window and a bicycle lying across the back seat. The driver of the Fusion had "kind of a dreadlocks style" hair, the passenger had long hair, and both were white.

Sergeant O’Malley then decided to do an investigative stop and made a U-turn. At that point, the Fusion accelerated quickly, squealing its tires, but was forced to stop in the midst of a traffic jam. Sergeant O’Malley and multiple other officers who had been called in for backup converged on the car in heavy traffic. Neither man in the car was wearing a yellow jacket. Cowan, the driver of the car, was placed in handcuffs at the scene, and then taken to a cold show where he was identified by Scott as one of the two suspects who drove off in the burgled car.

Cowan filed a motion to suppress, arguing lack of reasonable suspicion to detain him in the traffic stop on Eddy Street. The motion was denied. After pleading guilty to second degree auto burglary ( Pen. Code, § 459 ), Cowan, pending preparation of the probation report and sentencing, agreed to a 16-month hammer (i.e., imposition of a 16-month term in county jail if he failed to appear for his sentencing hearing or to his probation department interview). He failed to appear at both sentencing and his probation interview. At a continued sentencing hearing, the court rejected Cowan’s excuses for these failures to appear—he claimed he was late to court because he had trouble finding a place to stow his backpack, and that he left a voicemail with the probation department asking to reschedule—and then sentenced Cowan to three years’ formal probation, subject to the 16-month hammer. The court also imposed a $300 restitution fine ( Pen. Code, § 1202.4 ), a $40 court operations assessment ( Pen. Code, § 1465.8 ), and a $30 court facilities assessment ( Gov. Code, § 70373 ).

Appealing from the judgment of conviction and the sentence, Cowan argues that: (1) the court erroneously denied his pre-plea motion to suppress because his detention 39 minutes after and eight to ten blocks from the scene of the break-in based on nothing more than that he was a white man with dread-style hair, driving a white car, is not enough to justify a detention under Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 ( Terry ); (2) the court abused its discretion in imposing the 16-month hammer because there is no substantial evidence that Cowan’s failures to show up to the sentencing hearing and to his probation department appointment were willful; and (3) we should either strike the restitution fine and the assessments or stay them under Dueñas . We reject the first argument, but find merit to the second and third.

II.-III.^**

IV. ASSESSMENTS AND RESTITUTION FINE

Cowan argues that, under Dueñas , supra , 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268, the trial court violated his federal and state rights to due process by imposing the $70 in assessments and the $300 restitution fine—both of which are statutory minimums for such assessments and fines—without determining his ability to pay. At sentencing, Cowan’s counsel stated that Cowan "has no ability to pay. So most, if not all, of these fines and penalties should not be assessed because he has no ability to pay." The Attorney General acknowledges that an objection on Dueñas grounds was made, that as a result the forfeiture doctrine is not applicable, and that Cowan’s attack on the restitution fine and the assessments is cognizable on appeal. We must therefore address the merits of this issue.

A. People v. Dueñas

After little more than a year on the books, the facts and the issues at stake in Dueñas are by now well known, but they bear repeating as background before we proceed further. The case involved a homeless probationer, Velia Dueñas, who suffered from cerebral palsy

and was unable to work. ( Dueñas , supra , 30 Cal.App.5th at p. 1160.) Ms. Dueñas’s driver’s license was suspended when she could not pay some juvenile citations she received as a teenager. ( Id . at p. 1161, 242 Cal.Rptr.3d 268.) She was then convicted of a series of misdemeanor offenses for driving with a suspended license, and in each case was given the impossible choice whether to "pay" mandatory fees and fines—which she could not do because of her poverty—or go to jail. ( Ibid . ) And after serving jail time in the first three of these cases, she still faced outstanding debt, which mounted with each conviction. ( Ibid . )

Upon her fourth conviction for driving with a suspended license, Ms. Dueñas was placed on probation and again ordered to pay mandatory assessments and fines. ( Dueñas , supra , 30 Cal.App.5th at pp. 1161–1162, 242 Cal.Rptr.3d 268.) In an effort to put a stop to these spiraling fees and fines, Ms. Dueñas objected, on due process and equal protection grounds, to a $40 Penal Code section 1465.8 court operations assessment, a $30 Government Code section 70373 court facilities assessment, and a $150 Penal Code section 1202.4 restitution fine. ( Dueñas , supra , at pp. 1163–1164, 242 Cal.Rptr.3d 268.) The core of her theory was that these statutes unconstitutionally "use the criminal law, which is centrally concerned with identifying and punishing only blameworthy decisions, to punish the blameless failure to pay by a person who cannot pay because of her poverty. The laws, moreover, are irrational: They raise no money because people who cannot pay do not pay." ( Id . at p. 1164, 242 Cal.Rptr.3d 268.) As one sociological study put it, the laws’ function is akin to "[d]rawing [b]lood from [s]tones."²

A Second District, Division Seven panel agreed. The panel held that Government Code section 70373 and Penal Code section 1465.8 —which are silent on...