Filed 2/11/21 P. v. Wells CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080461
Plaintiff and Respondent,
(Super. Ct. No. F14903226)
v.
JAMES CARTER WELLS, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Arlan L.
Harrell, Judge.
Rachel Varnell, 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, Amanda D. Cary and Lewis A.
Martinez, Deputy Attorneys General, for Plaintiff and Appellant.
-ooOoo-
*Before Detjen, Acting P.J., Peña, J. and Meehan, J.
INTRODUCTION
A jury convicted defendant James Carter Wells in 2014 of corporal injury to a
spouse (Pen. Code, § 273.5, subd. (a)), assault with a deadly weapon (§ 245, subd.
(a)(1)), and misdemeanor vandalism (§ 594, subd. (a)(2)). The court found true
allegations defendant had suffered two prior serious felony convictions (§ 667, subd. (a))
in addition to other enhancement allegations.
Defendant appealed the judgment and our court remanded the matter to the trial
court to conduct a resentencing hearing to consider whether to strike defendant’s prior
serious felony enhancements in light of the passage of Senate Bill No. 1393 (2017–2018
Reg. Sess.) (Senate Bill 1393). At resentencing in 2019, the trial court reimposed a
$4,500 state restitution fine (Pen. Code, § 1202.4, subd. (b)), a $120 court security fee
(id., § 1465.8), and a $90 criminal conviction assessment (Gov. Code, § 70373). Defense
counsel did not object to the imposition of the fines and fees. Defendant now asserts his
counsel provided ineffective assistance during the resentencing hearing by failing to
request an ability to pay hearing in light of People v. Dueñas (2019) 30 Cal.App.5th 1157
(Duenas).
We affirm the judgment.
FACTUAL BACKGROUND
Defendant and D.B. (the victim) were in a long-term romantic relationship. On
April 6, 2014, they had an argument. According to the victim, defendant choked her and
warned her not to “disrespect his house.” When the victim left defendant’s house in her
car, defendant threw a brick into the driver’s side window, shattering the glass.
A jury convicted defendant of corporal injury to a spouse (Pen. Code, § 273.5,
subd. (a)), assault with a deadly weapon (§ 245, subd. (a)(1)), and misdemeanor
vandalism (§ 594, subd. (a)(2)) in connection with the incident. Following a bifurcated
trial, the court found true allegations defendant personally used a deadly and dangerous
weapon, a brick, in connection with the incident (§ 12022, subd. (b)(1)), that he had
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suffered a prior strike conviction (§§ 667, subds. (b)–(i)), 1170.12, subds. (a)–(d)) and
two prior serious felony convictions (§ 667, subd. (a)), and that he had served a prior
prison term (§ 667.5, subd. (b)). Based on the verdicts, the court sentenced defendant to
15 years in prison. The sentence included consecutive five-year enhancements for each
prior serious felony conviction and a one-year enhancement for the prior prison term.
Defendant appealed the judgment, and, in an unpublished opinion, our court
affirmed in part, reversed in part, and remanded for resentencing for the court to exercise
its newfound discretion pursuant to Senate Bill 1393. (See People v. Wells (July 16,
2019, F070212.) At the resentencing hearing in December 2019, the court reimposed a
$4,500 state restitution fine (Pen. Code, § 1202.4, subd. (b)), a $120 court security fee
(id., § 1465.8), and a $90 criminal conviction assessment (Gov. Code, § 70373). Defense
counsel did not object to the imposition of the fines and fees.
Defendant filed the instant appeal in our court on December 16, 2019. On
February 14, 2020, his appellate counsel sent a letter to the trial court requesting the court
stay the imposed $4,500 state restitution fine and require the People to establish
defendant had the ability to pay it. Counsel further asked the court to reverse the
imposition of the court security fee and the criminal conviction assessment pursuant to
Dueñas, supra, 30 Cal.App.5th 1157. She attached documentation from the California
Correctional Health Care Services verifying defendant has a permanent disability
affecting his mobility, impairing his balance, and limiting his ability to lift more than 19
pounds. The documentation reports defendant’s orthopedic condition as follows: “Bone
disease of spine, Severe orthopedic conditions of hips, knees, ankles, feet, or upper
extremity.” Counsel further explained, though the probation report states defendant
worked in custom engraving, defendant reported to her he had worked as a mechanic his
whole life. Counsel continued, “Regardless, [defendant’s] disability will prevent him
from working both while incarcerated and once he is released.” The appellate record
does not reflect the court has ruled on defendant’s request.
3.
DISCUSSION
In his sole issue, defendant argues his counsel was ineffective in failing to request
an ability to pay hearing at the resentencing hearing.
1. Relevant Procedural History
The probation report referenced by the court at the initial sentencing hearing
provides defendant reported he is “not in the best of health.” The report further states,
“[D]efendant indicated that he suffers from a bad heart, three blown discs in his back,
high blood pressure, and various ailments from having had a stroke, such as being numb
on the left side of his body. He stated that he is prescribed and takes, 13 different types
of medications for his heart, high blood pressure medication, and Tylenol for his back.”
At the initial sentencing hearing, the court acknowledged and considered defendant’s
health before sentencing defendant and imposing the fees and fine that were later
reimposed and which he now challenges.
2. Standard of Review
A defendant claiming ineffective assistance of counsel must satisfy the two-part
test of Strickland v. Washington requiring a showing of counsel’s deficient performance
and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687.) As to deficient
performance, a defendant “must show that counsel’s representation fell below an
objective standard of reasonableness” measured against “prevailing professional norms.”
(Id. at p. 688.) In evaluating trial counsel’s actions, “a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” (Id. at p. 689; see People v. Dennis (1998) 17 Cal.4th 468, 541.) Thus, a
defendant must overcome the presumption that the challenged action might be considered
sound trial strategy under the circumstances. (Strickland, supra, at p. 689; People v.
Dennis, supra, at p. 541.) “Reasonableness must be assessed through the likely
perspective of counsel at the time.” (People v. Ochoa (1998) 19 Cal.4th 353, 445.)
4.
The prejudice prong requires a defendant to establish that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” (Strickland v. Washington, supra, 466 U.S. at p. 694.) “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” (Ibid.)
3. Applicable Law
In Dueñas, the defendant lost her driver’s license because she was financially
unable to pay her juvenile citations. (Dueñas, supra, 30 Cal.App.5th at p. 1161.) She
continued to reoffend for driving with a suspended license because the aggregating
criminal conviction assessments and fines prevented her from recovering her license.
(Ibid.) The Dueñas court described this as “cascading consequences” stemming from “a
series of criminal proceedings driven by, and contributing to, [the defendant’s] poverty.”
(Dueñas, at pp. 1163–1164.) The Dueñas court concluded the defendant faced ongoing
unintended punitive consequences because of her inability to pay. (Id. at p. 1168.)
Dueñas determined those unintended consequences were “fundamentally unfair” for an
indigent defendant under principles of due process. (Ibid.) Dueñas held 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 any fines or fees. (Dueñas, at p.
1164; see id. at p. 1167.)
4. Analysis
Defendant contends his trial counsel was deficient in failing to object to the fines
and fees imposed at the resentencing hearing because Duenas had issued months prior
and, accordingly, defense counsel should have been aware an objection to the fines and
fees was appropriate and necessary. He argues the failure to object could not have been a
tactical decision; rather, there was no satisfactory explanation for it. He contends a more
favorable verdict was reasonably possible if his counsel had objected. In support,
5.
defendant asserts he is 56 years old and serving a 14-year sentence. He notes the
probation report, prepared in 2014, reflected he suffered from a bad heart, three “blown
discs” in his back, high blood pressure, and various ailments after suffering a stroke; thus,
“it does not appear [he] could work while incarcerated.” He argues the record does not
suggest he has any special work skills, and it could take him over 32 years to pay the
fines and fees imposed at the prison wage rate. On this basis, he seeks remand for the
court to stay the $4,500 restitution fine pending an ability to pay hearing and to strike the
$120 court security fee and $90 criminal conviction fee. The People respond the issue is
not properly before our court because, pursuant to Penal Code section 1237.2, defendant
raised his complaint in a written letter to the trial court, which the trial court has not yet
ruled upon. They argue the purpose of section 1237.2 would be frustrated if our court
issued a ruling before the trial court issues its ruling. They further contend any alleged
ineffective assistance was cured by defendant’s letter to the trial court. They also assert
defendant does not argue the imposed fines and fees were improper, thereby forfeiting
that argument. Finally, they assert counsel was not ineffective for failing to challenge the
fines and fees. In support, the People argue defendant did not show an inability to pay
the nonpunitive assessments in the trial court and he had no constitutional right to an
ability to pay hearing for the restitution fine. Additionally, they contend the fine was not
unconstitutionally excessive. Finally, they argue the lack of a request for an ability to
pay hearing regarding the nonpunitive assessments (the court security fee and criminal
conviction assessment) was harmless because nothing in the record establishes defendant
“did not have the present ability to pay the relatively small fines.” In his reply, defendant
asserts section 1237.2 only requires him to make a motion in the trial court, but there is
no requirement the trial court must rule on the motion.
Penal Code section 1237.2 provides that “[a]n appeal may not be taken by the
defendant from a judgment of conviction on the ground of an error in the imposition or
calculation of fines, penalty assessments, surcharges, fees, or costs unless the defendant
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first presents the claim in the trial court at the time of sentencing, or if the error is not
discovered until after sentencing, the defendant first makes a motion for correction in the
trial court, which may be made informally in writing. The trial court retains jurisdiction
after a notice of appeal has been filed to correct any error in the imposition or calculation
of fines, penalty assessments, surcharges, fees, or costs upon the defendant’s request for
correction.” The section “only applies in cases where[, as here,] the erroneous imposition
or calculation of fines, penalty assessments, surcharges, fees, or costs are the sole issue
on appeal.” (Ibid.) “‘“‘As in any case involving statutory interpretation, our fundamental
task … is to determine the Legislature’s intent so as to effectuate the law’s purpose.
[Citation.]’”’” (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.) “‘“‘We begin by
examining the statute’s words, giving them a plain and commonsense meaning.’”’
[Citation.]” (Ibid.) “We must follow the statute’s plain meaning, if such appears, unless
doing so would lead to absurd results the Legislature could not have intended.
[Citations.]” (People v. Birkett (1999) 21 Cal.4th 226, 231.)
First, we agree with defendant that he has complied with the plain language of
Penal Code section 1237.2 by submitting a letter raising his challenge to the imposed fine
and fees below. We further note the plain language of section 1237.2 does not expressly
require a defendant to secure a ruling on his or her motion for correction before
proceeding with an appeal. However, we conclude defendant’s claim fails on its merits.
“‘If the record on appeal sheds no light on why counsel acted or failed to act in the
manner challenged, an appellate claim of ineffective assistance of counsel must be
rejected unless counsel was asked for an explanation and failed to provide one, or there
simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more
appropriately raised in a petition for writ of habeas corpus.’” (People v. Gray (2005) 37
Cal.4th 168, 207.) “‘Failure to object rarely constitutes constitutionally ineffective legal
representation.’” (Ibid.)
7.
Here, the record does not indicate why defendant’s counsel failed to object to the
imposition of the fees and restitution fine. It is possible defendant’s attorney could have
known defendant had the ability to pay the fine and fees and concluded that an objection
would have been futile. Indeed, the probation report lists defendant’s “Current Net
Income” as $50,000 yearly. Defendant does not assert this representation is incorrect
either on appeal or in his counsel’s letter to the trial court. (See People v. Gutierrez
(2019) 35 Cal.App.5th 1027, 1033 [understandable for counsel not to object to imposed
fines and fees in light of defendant’s lengthy employment history]; accord, People v.
Ochoa, supra, 19 Cal.4th at p. 463 [“Representation does not become deficient for failing
to make meritless objections”].) Thus, defendant fails to meet his burden to affirmatively
show error on the record before us, and his claim must fail. (See People v. Gamache
(2010) 48 Cal.4th 347, 378; accord, People v. Mendoza Tello (1997) 15 Cal.4th 264, 266
[claim of ineffective assistance of counsel must be rejected if “‘“the record on appeal
sheds no light on why counsel acted or failed to act in the manner challenged[,] … unless
counsel was asked for an explanation and failed to provide one, or unless there simply
could be no satisfactory explanation”’”].)
Furthermore, even if we were to assume a reasonably diligent advocate would
have objected to the imposition of the restitution fine and challenged fees, defendant fails
to establish counsel’s omission resulted in prejudice. Here, defense counsel sought a
continuance during the initial sentencing hearing to gather additional medical documents
evidencing defendant’s physical condition. The court noted it would take the probation
report’s discussion about defendant’s health issues as “accurate” and it did not know
whether seeing medical reports would make any difference when defendant’s condition
was made clear in the probation report. Defense counsel acknowledged she wanted to
make sure the court was aware of defendant’s poor health and to take it into consideration
when sentencing defendant. Before sentencing defendant, the court acknowledged it
must consider defendant’s health issues, but it noted defendant “had these same health
8.
issues at the very time that he followed [the victim] out of the home, picked up a brick,
threw it at her car, not once, but twice ….” The court then proceeded to sentence
defendant and impose the fine and fees it later reimposed and which defendant now
challenges.
This record reflects defense counsel emphasized defendant’s health issues in
seeking leniency at sentencing and the court was aware of defendant’s poor health when
it initially sentenced defendant and imposed the same fine and fees. Accordingly, we
cannot conclude it is reasonably probable a more favorable result was likely if defense
counsel had objected to the imposed fine and fees on this basis. Additionally, given the
representation in the probation report that defendant’s “Current Net Income” was $50,000
yearly, which he does not challenge, we also cannot conclude on the record before us that
it is reasonably probable the court would have amended the restitution fine if defense
counsel had requested an inability to pay hearing. Thus, we cannot conclude defendant
has established ineffective assistance of counsel on the record before us. (See People v.
Hart (1999) 20 Cal.4th 546, 624 [to establish ineffective assistance of counsel “‘prejudice
must be affirmatively proved’”].)
We reject defendant’s sole contention.
DISPOSITION
We affirm the judgment.
9.