Filed 10/8/20; Certified for Publication 10/29/20 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(El Dorado)
----
THE PEOPLE, C089368
Plaintiff and Respondent, (Super. Ct. No. P18CRF0390)
v.
REFFIGLIA LORRAINE PACK-RAMIREZ,
Defendant and Appellant.
Defendant Reffiglia Lorraine Pack-Ramirez pled no contest to a felony count of
identifying information theft with a prior. (Pen. Code, § 530.5, subd. (c)(2).)1 The court
sentenced defendant to the upper term of 3 years in county jail. The court also ordered
her to pay a $600 restitution fine under section 1202.4, subdivision (b); a $619.86 victim
restitution payment under section 1202.4, subdivision (f); a $40 court operations
assessment under section 1465.8; a $30 court facilities assessment under Government
1 Undesignated statutory references are to the Penal Code.
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Code section 70373; and a $109.50 fee for the cost of preparing the probation report
under section 1203.1b.
On appeal, defendant contends we should conditionally reverse the judgment and
remand for a hearing on her eligibility for primary caregiver diversion under newly
enacted section 1001.83. She also alleges the court violated her right to due process by
imposing the above-mentioned amounts without first determining her ability to pay them.
We will affirm the judgment but direct the court to correct the abstract of judgment and
sentencing minute order to reflect a $600 restitution fine under section 1202.4,
subdivision (b).
I. DISCUSSION
A. Pretrial Diversion for Primary Caregivers
Section 1001.83 went into effect on January 1, 2020, during the pendency of this
appeal. It provides, in part, that “[t]he presiding judge of the superior court, or a judge
designated by the presiding judge, in consultation with the presiding juvenile court judge
and criminal court judges, and together with the prosecuting entity and the public
defender or the contracted criminal defense office that provides the services of a public
defender, may agree in writing to establish and conduct a pretrial diversion program for
primary caregivers, pursuant to the provisions of this chapter, wherein criminal
proceedings are suspended without a plea of guilty for a period of not less than 6 months
and not more than 24 months.” (§ 1001.83, subd. (a).) The diversion program may
include components such as parenting classes, counseling, mental health services, and
drug and alcohol treatment. (Id., subd. (b).)
Pretrial diversion under section 1001.83 is not automatically granted to individuals
who meet all of its requirements: “On an accusatory pleading alleging the commission of
a misdemeanor or felony offense, the court may, after considering the positions of the
defense and prosecution, grant pretrial diversion to a defendant pursuant to this section if
the defendant meets all of the following requirements:
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“(1) The defendant is a custodial parent or legal guardian of a minor child under
18 years of age, presently resides in the same household as that child, presently provides
care or financial support for that minor child either alone or with the assistance of other
household members, and the defendant’s absence in the child’s life would be detrimental
to the child.
“(2) The defendant has been advised of and waived the right to a speedy trial and a
speedy preliminary hearing.
“(3) The defendant has been informed of and agrees to comply with the
requirements of the program.
“(4) The court is satisfied that the defendant will not pose an unreasonable risk of
danger to public safety, as defined in Section 1170.18, or to the minor child in their
custody, if allowed to remain in the community. The court may consider the positions of
the prosecuting entity and defense counsel, the defendant’s violence and criminal history,
the recency of the defendant’s criminal history, the defendant’s history of behavior
towards minors, the risk of the dependent minor’s exposure to or involvement in criminal
activity, the current charged offense, child welfare history involving the defendant, and
any other factors that the court deems appropriate.
“(5) The defendant is not being placed into a diversion program, pursuant to this
section, for any serious felony as described in Section 1192.7 or 1192.8 or violent felony
as described in subdivision (c) of Section 667.5.
“(6) The defendant is not being placed into a diversion program pursuant to this
section for a crime alleged to have been committed against a person for whom the
defendant is the primary caregiver.” (§ 1001.83, subd. (d).)
If the defendant is subsequently convicted of a felony or an offense “that reflects a
propensity for violence,” or otherwise performs unsatisfactorily in the assigned program,
the court may reinstate criminal proceedings. (§ 1001.83, subd. (f).) “If the defendant
has performed satisfactorily in diversion, at the end of the period of diversion, the court
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shall dismiss the defendant’s criminal charges that were the subject of the criminal
proceedings at the time of the initial diversion.” (Id., subd. (g).) Further, use of the
records of the arrest shall be limited. (Id., subd. (h).)
1. A Certificate of Probable Cause Was Not Required
The People argue we should dismiss this portion of defendant’s appeal because
she did not seek or obtain a certificate of probable cause under section 1237.5. We
disagree. “[S]ection 1237.5 admits of this exception: The defendant may take an appeal
without a statement of certificate grounds or a certificate of probable cause if he does so
solely on noncertificate grounds, which go to postplea matters not challenging his plea’s
validity . . . .” (People v. Mendez (1999) 19 Cal.4th 1084, 1096.)
Our Supreme Court recently held that a defendant who had entered into a plea
agreement for a specified term that included a prior serious felony enhancement was not
required to obtain a certificate of probable cause to claim on appeal that a new law
permitting the trial court to strike the enhancement in furtherance of justice applied to
him retroactively. (People v. Stamps (2020) 9 Cal.5th 685, 692.) The People contend
this line of authority is inapplicable because this “is not a sentencing case, and
[defendant] seeks the complete reversal and vacation of her conviction. This aspect of
her case necessarily implicates the validity of her plea.” While defendant’s claim
certainly has implications for her plea, we disagree that it implicates the validity of her
plea. As our Supreme Court explained in Stamps, the defendant’s “appellate claim does
not constitute an attack on the validity of his plea because the claim does not challenge
his plea as defective when made.” (Id. at p. 696.) Nonetheless, as in Stamps, we must
now address the merits of defendant’s retroactivity claim and the proper remedy. (Id. at
p. 698.)
2. Retroactivity
Defendant contends we should conditionally reverse and remand for a hearing on
her eligibility for primary caregiver diversion under section 1001.83. “Defendant’s
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argument relies on the principle articulated in In re Estrada (1965) 63 Cal.2d 740
(Estrada): ‘[A]n amendatory statute lessening punishment is presumed to apply in all
cases not yet reduced to final judgment as of the amendatory statute’s effective date’
[citation], unless the enacting body ‘clearly signals its intent to make the amendment
prospective, by the inclusion of either an express saving clause or its equivalent’
[citations].” (People v. DeHoyos (2018) 4 Cal.5th 594, 600.)
Since the completion of briefing, our Supreme Court decided in People v. Frahs
(2020) 9 Cal.5th 618 (Frahs) that section 1001.36, which creates a pretrial diversion
program for certain defendants with mental health disorders, applied retroactively to
cases in which the judgment was not yet final. (Frahs, supra, at p. 624.) The court’s
conclusion was based on the fact that section 1001.36 offers a potentially ameliorative
benefit for a class of individuals “by offering an opportunity for diversion and ultimately
the dismissal of charges,” (Frahs, supra, at p. 624) the statute does not contain an express
savings clause that limits the program to prospective-only application, and the Legislature
did not clearly signal its intent to overcome the “Estrada inference” that it applies
retroactively to all cases not yet final on appeal (id. at pp. 631-632). Section 1001.83
offers a similar potentially ameliorative benefit for a class of individuals and also lacks an
express savings clause. As to whether the Legislature clearly signaled its intent to
overcome the Estrada inference, the People’s arguments in this appeal are like those
raised in Frahs. The People contend the language and structure of the primary caregiver
diversion statute indicates the Legislature did not intend it to apply to an individual, such
as defendant, who has already pled guilty. Specifically, the People observe section
1001.83 creates a procedure for pretrial diversion and sets forth procedures that operate
accordingly. However, in Frahs, our Supreme Court explained that “in providing
instructions regarding how its provisions are meant to operate generally, section 1001.36
does not rebut the Estrada inference of ameliorative retroactivity.” (Frahs, supra, at p.
634.) Further, “[t]he potential logistical problems identified by the People in providing
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defendants with a diversion eligibility hearing after conviction . . . do not provide a
sufficient basis to deny defendants the benefit of a hearing altogether.” (Id. at p. 636.)
The retroactive application of the statute in this case is, however, merely theoretical
because its provisions do not appear to have been utilized by El Dorado County.
3. Remand Not Required
We will not remand for a hearing on defendant’s eligibility for primary caregiver
diversion where to do so would be an idle act. (See People v. Jefferson (2019) 38
Cal.App.5th 399, 409 [conditional remand for mental health diversion eligibility hearing
not required where trial court’s comments clearly indicated it would not find defendant
eligible].) As the People note, there is no evidence El Dorado County has created a
primary caregiver diversion program under section 1001.83, and defendant does not
suggest otherwise. Rather, she counters that, regardless, section 1001.83, subdivision (c)
authorizes placement in existing programs. We disagree.
“ ‘Our fundamental task in interpreting a statute is to determine the Legislature’s
intent so as to effectuate the law’s purpose. We first examine the statutory language,
giving it a plain and commonsense meaning. We do not examine that language in
isolation, but in the context of the statutory framework as a whole in order to determine
its scope and purpose and to harmonize the various parts of the enactment.’ ” (Bruns v.
E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 724.) Section 1001.83 begins by
providing discretion for the creation of a pretrial diversion program for primary
caregivers upon the written agreement of “[t]he presiding judge of the superior court, or a
judge designated by the presiding judge, in consultation with the presiding juvenile court
judge and criminal court judges, and together with the prosecuting entity and the public
defender or the contracted criminal defense office that provides the services of a public
6
defender.”2 (§ 1001.83, subd. (a).) Subdivision (b) provides that “[t]he program
described in this section may include, but not be limited to” various specified components
including parenting classes, counseling, mental health services, and drug and alcohol
treatment. Subdivision (c), upon which defendant relies, states that “[t]he defendant may
be referred to supportive services and classes in already existing diversion programs and
county outpatient services.” Read in context, subdivision (c) does not authorize diversion
of primary caregivers into existing programs where there is no agreement for pretrial
diversion as specified in subdivision (a). Thus, a conditional remand for a hearing on
defendant’s eligibility for a program that does not exist would be an idle act.3
Accordingly, we must decline defendant’s request for a conditional reversal.
B. Ability to Pay
At sentencing, the trial court ordered defendant to pay a $600 restitution fine under
section 1202.4, subdivision (b); a $619.86 victim restitution payment under section
1202.4, subdivision (f); a $40 court operations assessment under section 1465.8; a $30
court facilities assessment under Government Code section 70373; and a $109.50 fee for
the cost of preparing the probation report under section 1203.1b. The minutes and the
abstract of judgment reflect a $300 restitution fine under section 1202.4, subdivision (b),
but the oral pronouncement of judgment controls over the minutes and abstract of
judgment. (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) As such, we will order
2 Section 1001.36, in contrast, contains no such provision.
3 The People describe defendant’s claim of eligibility as “barely colorable” based on the
record before us and argue the record supports the conclusion that the superior court
would not have granted pretrial diversion even if it had been available. Defendant
contends the record does not clearly establish her ineligibility nor does it clearly indicate
the court would have refused diversion based on the statutory considerations. In light of
our conclusion, we need not resolve this dispute or decide what evidence must be in the
record to warrant a conditional remand under section 1001.83.
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the trial court to correct the minutes and abstract of judgment. On appeal, defendant
argues the court violated her right to due process by imposing these amounts without first
determining her ability to pay them. The People state that “it does not appear on this
record that [defendant] had much, if any, ability to pay the fines and fees imposed. But it
is unclear from the record whether she has the ability to work in some fashion and earn
wages, notwithstanding her receipt of SSI benefits.”4 The People concede that a hearing
on defendant’s ability to pay is warranted on this record. We do not accept the People’s
concession.
Defendant’s argument relies primarily on People v. Dueñas (2019) 30 Cal.App.5th
1157 (Dueñas). The Dueñas court held “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.” (Id. at p. 1164.) The Dueñas court also held “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.” (Ibid., italics added.)
Dueñas did not involve a restitution fine above the statutory minimum under
section 1202.4, subdivision (b), a victim restitution payment under section 1202.4,
subdivision (f), or the cost of preparing a probation report pursuant to section 1203.1b, all
4 The probation report indicated defendant said she has never held formal employment,
but she hoped to continue her education and possibly attend cosmetology school. Her
counsel argued at sentencing, “I think we have a cycle of drug use, theft. It does seem to
be a cycle of poverty. I mean, we don’t have anything that shows she is a—some sort of
sophisticated dealer of identifying information. If she were, she probably wouldn’t have
her products in a couple of trash bags in a beat up car . . . .”
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of which were imposed by the trial court here. The principles articulated in Dueñas have
not been extended to a victim restitution payment under section 1202.4, subdivision (f).
(See People v. Abrahamian (2020) 45 Cal.App.5th 314, 338 [“Dueñas does not apply to
victim restitution under section 1202.4, subdivision (f)”]; People v. Evans (2019) 39
Cal.App.5th 771, 777 [“Based on the significant differences in purpose and effect
between victim restitution and the moneys at issue in Dueñas, we decline to extend the
rule of Dueñas to victim restitution”].) As to the restitution fine, section 1202.4 allows
consideration of a defendant’s ability to pay when determining whether to increase the
restitution fine above the statutory minimum of $300. (§ 1202.4, subd. (c).) Similarly,
section 1203.1b sets forth specific procedures for determining a defendant’s ability to pay
for all or part of a probation report fee.5 Thus, defendant could have objected to these
fees and fines based on inability to pay but failed to do so, and our Supreme Court has
previously explained that this failure forfeits an appellate challenge based on the ability
to pay. (People v. Trujillo (2015) 60 Cal.4th 850, 859; People v. Nelson (2011) 51
Cal.4th 198, 227; People v. Avila (2009) 46 Cal.4th 680, 729.) Defendant contends that
if we conclude she forfeited her claim on appeal, her trial counsel’s failure to object was
ineffective assistance. We do not conclude any part of her claim is forfeited, but we do
observe that Dueñas does not appear to be fully supportive of it. Regardless, we are not
persuaded that the analysis used in Dueñas is correct.
Our Supreme Court is now poised to resolve this question, having granted review
in People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844,
which agreed with the court’s conclusion in Dueñas that due process requires the trial
court to conduct an ability to pay hearing and ascertain a defendant’s ability to pay before
it imposes court facilities and court operations assessments under section 1465.8 and
5 As to this fee, the trial court did expressly find defendant had an ability to pay.
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Government Code section 70373, but not restitution fines under section 1202.4. (Kopp,
supra, at pp. 95-96.)
In the meantime, we join those authorities that have concluded the principles of
due process do not require determination of a defendant’s present ability to pay before
imposing the fines and assessments discussed in Dueñas. (People v. Kingston (2019) 41
Cal.App.5th 272, 279-282; People v. Hicks (2019) 40 Cal.App.5th 320, 326-329, rev.
granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1068-
1069; People v. Caceres (2019) 39 Cal.App.5th 917, 928.) Defendant’s claim pursuant to
Dueñas is without merit.
Defendant argues that remand for a further hearing is necessary even if we view
the question as arising under the state and federal constitutional provisions barring
excessive fines. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) We disagree.
“The Eighth Amendment prohibits the imposition of excessive fines. The word
‘fine,’ as used in that provision, has been interpreted to be ‘ “a payment to a sovereign as
punishment for some offense.” ’ ” (People v. Gutierrez (2019) 35 Cal.App.5th 1027,
1040 (conc. opn. of Benke, J.).)
“The touchstone of the constitutional inquiry under the Excessive Fines Clause is
the principle of proportionality: The amount of the forfeiture must bear some
relationship to the gravity of the offense that it is designed to punish.” (United States v.
Bajakajian (1998) 524 U.S. 321, 334, superseded on other grounds as explained in
United States v. Toro-Barboza (9th Cir. 2012) 673 F.3d 1136, 1154.) “[A] punitive
forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity
of a defendant’s offense.” (Ibid.) To determine whether a fine is excessive in violation
of the Eighth Amendment, we consider: “(1) the defendant’s culpability; (2) the
relationship between the harm and the penalty; (3) the penalties imposed in similar
statutes; and (4) the defendant’s ability to pay.” (People ex rel. Lockyer v. R.J. Reynolds
Tobacco Co. (2005) 37 Cal.4th 707, 728.) Accordingly, although ability to pay is part of
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the proportionality analysis, it is not the only factor. Defendant argues she did not
commit a serious or violent felony, and contends the record shows she lacks the ability to
pay the fines and fees. We cannot conclude on this record that the fines imposed were
grossly disproportionate to the gravity of the identity theft offense. Furthermore, we
disagree with the suggestion that the Eighth Amendment requires a determination of
ability to pay before the imposition of any fee, fine, or victim restitution or authorizes a
remand to revisit the fees, fines, and victim restitution imposed in this case.
III. DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of
judgment and sentencing minute order to reflect a $600 restitution fine under section
1202.4, subdivision (b). The court shall forward a certified copy of the corrected abstract
of judgment to the Department of Corrections and Rehabilitation.
/S/
RENNER, J.
I concur:
/S/
HOCH, Acting P. J.
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Krause, J., Concurring.
I join the opinion and its result, with one exception. I find it unnecessary on this
record to reach the issue, addressed in part I.A.2 of the opinion, of whether Penal Code
section 1001.83 is retroactive.
/S/
KRAUSE, J.
1
Filed 10/29/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(El Dorado)
----
THE PEOPLE, C089368
Plaintiff and Respondent, (Super. Ct. No. P18CRF0390)
v. ORDER CERTIFYING
OPINION FOR
REFFIGLIA LORRAINE PACK-RAMIREZ, PUBLICATION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of El Dorado County, Kenneth J.
Melikian, Judge. Affirmed.
C. Athena Roussos, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill, Nirav K.
Desai, Deputy Attorneys General, for Plaintiff and Respondent.
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THE COURT:
The opinion in the above-entitled matter filed October 8, 2020, was not certified
for publication in the Official Reports. For good cause it appears now that the opinion
should be published in the Official Reports and it is so ordered.
FOR THE COURT:
/S/
_________________________
HOCH, Acting P. J.
/S/
________________________
RENNER, J.
/S/
KRAUSE, J.
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