Filed 5/12/21 P. v. Williams 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079526
Plaintiff and Respondent,
(Kern Super. Ct. No. SF018186B)
v.
RANDEE WILLIAMS, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Brian M.
McNamara, Judge.
Jonathan D. Roberts, under appointment by the Court of Appeal, for Defendant
and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
INTRODUCTION
Appellant and defendant Randee Williams, a state prison inmate, was sentenced to
the second strike term of four years after assaulting another inmate. On appeal, his
appellate counsel filed a brief that summarizes the facts with citations to the record, raises
no issues, and asks this court to independently review the record. (People v. Wende
(1979) 25 Cal.3d 436 (Wende).) In response to our request, defendant filed additional
briefing on the potential application of People v. Dueñas (2019) 30 Cal.App.5th 1157
(Dueñas) to the restitution fine and fees imposed in this case. We affirm.
FACTS
Around 8:13 a.m. on February 1, 2014, Correctional Officer Angel Mata was on
duty at the special housing unit for inmates with physical and mental disabilities at
Wasco State Prison, as the inmates were released from the morning meal. As inmate
Powell walked to his cell, inmate Espritt swung his wooden cane at Powell and hit him
on the head. Powell turned around and grabbed Espritt’s cane, and the two men fought
over it.
Defendant was sitting about 15 feet away from the two men. As they fought over
the cane, defendant got up, ran towards them, and punched Powell from behind on the
right side of his head. Defendant hit Powell multiple times with a closed fist. Powell
tried to defend himself and dropped the cane. He swung back and hit defendant and
Espritt. Defendant and Espritt kept hitting Powell in the head and torso. Inmate Poke
arrived in his wheelchair and started to hit Powell in the torso with both hands.
Officer Mata ordered all the inmates to get down when the fight began, but they
ignored the order. After Mata repeated the order several times, the inmates eventually
complied, backed away from each other, and got down. Powell was bleeding from his
right eyebrow. Powell was advised by medical personnel that he should get sutures to
close the wound, that was approximately 1.4 inches long, but he declined. The entire
incident lasted about a minute and a half.
2.
PROCEDURAL BACKGROUND
On February 10, 2016, an amended information was filed that charged Espritt with
count 1, assault with a deadly weapon on Powell while in state prison (Pen. Code,
§ 4501).1 In count 2, defendant, Espritt, and Poke were charged with assault by means of
force likely to produce great bodily injury on Powell while in state prison (ibid.). As to
defendant, it was alleged that he personally inflicted great bodily injury (§ 12022.7), and
had five prior strike convictions, three prior serious felony enhancements, and three prior
prison term enhancements.
Plea
On April 24, 2019, defendant pleaded no contest to count 2, assault by means of
force likely to produce great bodily injury on Powell while in state prison, as a nonstrike
offense. He admitted four prior strike convictions with the understanding that the court
would strike three of the strikes at the sentencing hearing and impose a second strike
term. The court granted the People’s motion to dismiss the remaining allegations.
Sentence
On May 22, 2019, the court conducted the sentencing hearing and dismissed three
prior strike convictions pursuant to section 1385 and People v. Superior Court (Romero)
(1996) 13 Cal.4th 497. The court imposed the lower term of two years, doubled to four
years as the second strike term, to run fully consecutive to the term he was already
serving in Los Angeles Superior Court case No. BA400718.
The court imposed the minimum restitution fine of $300 (§ 1202.4, subd. (b)) and
suspended the parole revocation fine of $300 (§ 1202.45). It also imposed a court
security fee of $40 fee (§ 1465.8), and a criminal conviction assessment of $30 (Gov.
Code, § 70373).
On June 24, 2019, defendant filed a timely notice of appeal.
1 All further statutory references are to the Penal Code unless otherwise stated.
3.
DISCUSSION
As noted above, defendant’s counsel filed a Wende brief with this court. The brief
also included the declaration of appellate counsel indicating that appellant was advised he
could file his own brief with this court. By letter on April 3, 2020, we invited defendant
to submit additional briefing. To date, he has not done so.
After independent review of the record, we requested further briefing from the
parties on the potential application of Dueñas to this case. Defendant argues the
judgment must be vacated and the matter remanded for the trial court to conduct a
hearing as to whether he has the ability to pay the restitution fine and fees. The Attorney
General has not filed a responsive brief.
Section 1237.2
While this case was pending on appeal, appellate counsel wrote to the trial court
and requested an order to stay the restitution fines, and for the other fees to be stricken,
pursuant to Dueñas. The superior court did not respond to the letter.
“Section 1237.2 requires a defendant to first file a motion for correction in the trial
court before appealing ‘the imposition or calculation of fines, penalty assessments,
surcharges, fees, or costs.’ This section, however, applies only to cases where the issues
of ‘fines, penalty assessments, surcharges, fees, or costs are the sole issue on appeal.’
(§ 1237.2) Thus, when a defendant raises at least one other issue on appeal, he or she
need not first file a motion in the trial court to correct the imposition or calculation of
penalty assessments or fines. Instead, he or she can include those claims with the other
contentions raised in the appeal.” (People v. Jordan (2018) 21 Cal.App.5th 1136, 1140–
1141.)
Assuming the trial court did not act on defendant’s request, we have the ability to
consider his claim since section 1237.2 merely requires that the defendant “first present[]
the claim in the trial court,” and he complied with the statute. (See, e.g., People v. Hall
(2019) 39 Cal.App.5th 502, 504.)
4.
Dueñas
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, supra, 30 Cal.App.5th at pp. 1164, 1167.)2
We disagree with the holding in Dueñas and find the matter need not be remanded
on this issue. As explained in People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles), we
believe Dueñas was wrongly decided and an Eighth Amendment analysis is more
appropriate to determine whether restitution fines, fees, and assessments in a particular
case are grossly disproportionate and thus excessive. (Aviles, at pp. 1068–1072.) Under
that standard, the fines and fees imposed in this case are not grossly disproportionate to
defendant’s level of culpability and thus not excessive under the Eighth Amendment.
(Aviles, at p. 1072.)
Next, to the extent Dueñas applies to this case, the court imposed the minimum
restitution fine of $300, and defendant lacked the statutory authority to object under the
governing law at the time of his sentencing hearing and has not forfeited review of the
issue. (Cf. People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153–1154.)3
In any event, even if we agreed with Dueñas, we would still reject defendant’s
constitutional claims and find any error arising from the court’s failure to make an ability
to pay finding was harmless since defendant has the ability to pay the fines and fees
imposed in this case. (Chapman v. California (1967) 386 U.S. 18, 24; Aviles, supra, 39
2The California Supreme Court is currently considering whether trial courts must
consider a defendant’s ability to pay before imposing or executing fines, fees, and
assessments; and if so, which party bears the applicable burden of proof. (See People v.
Kopp (2019) 38 Cal.App.5th 47, 94–98, review granted Nov. 13, 2019, S257844.)
3 Having found defendant did not forfeit review of this issue, we need not reach
his alternate argument that defense counsel was prejudicially ineffective for failing to
object to the restitution fine and fees at the sentencing hearing.
5.
Cal.App.5th at pp. 1075–1077; People v. Jones (2019) 36 Cal.App.5th 1028, 1030–
1031.)
“ ‘ “Ability to pay does not necessarily require existing employment or cash on
hand.” [Citation.] “[I]n determining whether a defendant has the ability to pay a
restitution fine, the court is not limited to considering a defendant’s present ability but
may consider a defendant’s ability to pay in the future.” [Citation.] This include[s] the
defendant’s ability to obtain prison wages and to earn money after his release from
custody. [Citation.]’ [Citations.]” (Aviles, supra, 39 Cal.App.5th at p. 1076.)
We can infer from the instant record that defendant has the ability to pay the
aggregate amount of fines and fees from probable future wages, including prison wages.
(Aviles, supra, 39 Cal.App.5th at p. 1076; People v. Ellis (2019) 31 Cal.App.5th 1090,
1094; People v. Douglas (1995) 39 Cal.App.4th 1385, 1397.) There is nothing in the
record to show that defendant would be unable to satisfy the fine and fees imposed by the
court while serving his prison term, even if he fails to obtain a prison job. While it may
take defendant some time to pay the amounts imposed in this case, that circumstance
does not support his inability to make payments on these amounts from either prison
wages or monetary gifts from family and friends during her prison sentence. (See, e.g.,
People v. Potts (2019) 6 Cal.5th 1012, 1055–1057; People v. Lewis (2009) 46 Cal.4th
1255, 1321; People v. DeFrance (2008) 167 Cal.App.4th 486, 505.)
Defendant argues the record implies his inability to pay since he was represented
by appointed counsel at trial. Section 987.8 provides that a court may order a defendant
to reimburse the government for the costs of court-appointed counsel if the defendant has
the ability to repay such amount. (§ 987.8, subds. (b), (c)(1).) “[T]here is ‘a presumption
under the statute that a defendant sentenced to prison does not have the ability to
reimburse defense costs.’ [Citation.] To rebut this presumption, there must be ‘unusual
circumstances.’ [Citation.] And the court ‘must make an express finding of unusual
6.
circumstances before ordering a state prisoner to reimburse his or her attorney.’
[Citations.]” (People v. Rodriguez (2019) 34 Cal.App.5th 641, 646.)
Section 987.8 carries a specific statutory presumption that a defendant sentenced
to more than one year in prison or county jail does not have the ability to reimburse
defense costs. Such a statutory presumption does not apply to whether he had the ability
to pay the statutorily mandated restitution fine and fees. (§ 987.8, subd. (g)(2)(B); Aviles,
supra, 39 Cal.App.5th at pp. 1074–1075; People v. Rodriguez, supra, 34 Cal.App.5th at
p. 646.)
DISPOSITION
The judgment is affirmed.
7.