Filed 12/10/20 P. v. Barnes CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B299398
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA075220)
v.
REGINALD BARNES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Daviann L. Mitchell, Judge. Affirmed.
Gloria C. Cohen, 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, Deputy Attorney General, and
Nancy Lii Ladner, Deputy Attorney General, for Plaintiff and
Respondent.
******
Reginald Barnes (defendant) appeals the trial court’s
finding that he had the ability to pay a $300 restitution fine (Pen.
Code, § 1202.4, subd. (b))1 if given 18 months to do so.
Substantial evidence supports this finding, so we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
In late November 2018, defendant drove his car through a
stop sign and crashed into a bank. He was under the influence.
At that time, defendant had three convictions for driving
under the influence (DUI) (Veh. Code, § 23152) based on conduct
in 2009, in July 2017, and in October 2017.
II. Procedural Background
The People charged defendant with driving under the
influence within 10 years of having three prior DUIs, which is a
felony (Veh. Code, §§ 23152, subd. (f), 23550).2
In May 2019, defendant pled no contest to this count and
admitted his prior DUI convictions. Pursuant to the parties’ plea
agreement, the trial court imposed a time-served sentence (of 336
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 The People also charged defendant with three
misdemeanor offenses involving driving on a suspended license,
and further alleged that defendant’s 2013 conviction for assault
with a deadly weapon (§ 245, subd. (a)(1)) constituted a “strike”
under our Three Strikes Law (§§ 1170.12, subds. (a)-(d), 667,
subds. (b)-(j)) and that defendant had served three prior prison
terms (§ 667.5, subd. (b)), but those charges and further
allegations were dismissed as part of defendant’s plea agreement.
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days in county jail) and the standard fines and fees—namely, a
$300 restitution fine (§ 1202.4, subd. (b)), a $40 court operations
assessment (§ 1465.8, subd. (a)(1)), a $30 criminal conviction
assessment (Gov. Code, § 70373), a $100 alcohol and drug
program fine (Veh. Code, § 23649), and a $50 alcohol abuse and
prevention assessment (id., § 23645).
In July 2019, the trial court held a hearing regarding the
defendant’s ability to pay those fines and assessments pursuant
to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Prior
to the hearing, defendant submitted a cash flow statement
indicating monthly income of $931.72 (comprised entirely of
Supplemental Security Income), and monthly expenses of $950
(comprised of $650 for renting a room, $225 for food, $50 for a cell
phone, and $25 for clothing and laundry). At the hearing,
defendant stated that he also “pay[s]” $120 “for life insurance,”
although he did not say how often this payment was made. The
trial court questioned the veracity of defendant’s cash flow
statement, noting that defendant’s ability to pay for gas and auto
insurance meant that he likely had additional sources of income
not reported in the statement. Defendant told the financial
evaluator to whom he had submitted his cash flow statement that
his mother helped him pay for his cell phone. The court
nevertheless recognized that the full amount of fines and
assessments was beyond defendant’s means. Accordingly, the
court struck all of the fines and assessments except the $300
restitution fine, and then set the due date for that fine 18 months
out. In light of the undisclosed additional income, the court
found that defendant would have the ability to pay “a small
amount each month,” which for the fine as due would come to
$16.67 per month.
3
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in finding that
he had the ability to put aside $16.67 per month in order to pay
the $300 restitution fine in 18 months. We reject this argument
for two reasons.
First, a defendant’s inability to pay is not grounds to vacate
or stay the restitution fine, contrary to the trial court’s
suggestion. By statute, a restitution fine set at the $300
minimum is mandatory absent “compelling and extraordinary
reasons.” (§ 1202.4, subds. (b), (d).) One’s inability to pay is not,
by itself, such a reason. (Ibid. [ability to pay is relevant to
imposition of a fine above the minimum].) To justify its
departure from this statutory mandate, the trial court relied
upon Dueñas, supra, 30 Cal.App.5th 1157, which held that due
process requires an ability to pay hearing before any fine or
assessment may be imposed. (Id., at pp. 1164, 1167.) Because we
have previously expressed our disagreement with Dueñas’s
holding (People v. Hicks (2019) 40 Cal.App.5th 320, 322, review
granted Nov. 26, 2019, S258946), the imposition of the $300 fine
in accordance with the terms of the statute was proper.3
Second, even if we accept Dueñas as good law, the trial
court did not err in requiring defendant to pay the $300
restitution fine within 18 months because substantial evidence
supported the court’s finding that he had the ability to do so.
(E.g., People v. Corrales (2013) 213 Cal.App.4th 696, 702
3 Although the trial court’s striking of the assessments under
section 1465.8, subd. (a)(1) and Government Code section 70373
was also improper if Dueñas is not good law, the People have not
cross-appealed the court’s order doing so.
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[reviewing ability to pay finding for substantial evidence].)
Although Dueñas purported to require the People to prove a
defendant’s “present ability to pay” (Dueñas, supra, 30
Cal.App.5th at p. 1173, italics added), subsequent decisions
interpreting Dueñas have construed its mandate to require the
defendant to prove his inability to pay after considering both
present assets and the ability to earn money in the future (e.g.,
People v. Son (2020) 49 Cal.App.5th 565, 591-592; People v.
Cowan (2020) 47 Cal.App.5th 32, 49-50; see generally People v.
Staley (1992) 10 Cal.App.4th 782, 785 [“Ability to pay does not
necessarily require existing employment or cash on hand”];
accord, § 1202.4, subd. (d) [defining “ability to pay” as “includ[ing]
. . . future earning capacity”]).
Applying this standard, the question then becomes: Does
substantial evidence support the trial court’s finding that
defendant could pay $16.67 per month for the next 18 months?
We conclude the answer is “yes.” The court found that
defendant’s cash flow statement was not entirely accurate
because it did not account for expenses such as gas and auto
insurance that, as a practical matter and as a law-abiding citizen,
respectively, defendant necessarily incurred. (See Webb v.
Special Electric Co., Inc. (2016) 63 Cal.4th 167, 191 [presumption
that people obey the law is appropriate].) It was also inaccurate
because it did not reflect additional help he was receiving from
his mother to pay his monthly expenses. Based on these findings,
the court reasonably inferred that the additional income
defendant had at his disposal and the money he previously spent
on those undisclosed expenses could be diverted to cover the very
modest $16.67 monthly amount the court imposed.
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Defendant asserts that he has met his burden to prove his
inability to pay because he has neither the present assets nor the
ability to earn enough to pay the $300 fine over 18 months.
First, defendant argues that the financial report
establishes his lack of present assets, but, as discussed above, the
court had reason to doubt the veracity of defendant’s financial
report. A trial court is entrusted to make such credibility
findings, and we are not allowed to revisit them. (People v.
Brown (2014) 59 Cal.4th 86, 106.) This is particularly so where,
as here, the credibility findings are grounded in reasonable
inferences. Defendant cites the trial court’s findings that
defendant was “indigent” and did “not have the ability to pay,”
but these findings are consistent with the court’s order to pay the
$300 restitution fine in 18 months. The court’s finding of
“indigence” does not categorically preclude imposition of all fines
and assessments; after all, Dueñas held that “indigent”
defendants found to have an ability to pay fines and assessments
still had to pay them. (Dueñas, supra, 30 Cal.App.5th at pp.
1172-1173.) And the court’s finding that defendant did not have
the ability to pay the full amount of $550 in fines and
assessments now did not mean that defendant did not have the
ability to pay a reduced total of $300 in 18 months’ time.
Second, defendant argues that his advanced age and poor
health preclude him from rejoining the work force to increase his
income, but this is irrelevant because substantial evidence
supported the court’s finding that defendant’s current income was
sufficient. Relatedly, defendant asserts, the trial court’s ruling
regarding his ability to earn more (or to cut his expenses) is
wholly speculative because the court, at the ability to pay
hearing, expressed its “hope” that defendant will “get some
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supplemental income,” and that he “will get appropriate” (that is,
cheaper) rent-controlled housing. While “[s]peculation is not
substantial evidence” (People v. Ramon (2009) 175 Cal.App.4th
843, 851), the court’s “hope[s]” that defendant’s financial
condition might improve does not undercut its finding that he has
the ability to pay the restitution fine under his current financial
condition.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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