Filed 11/18/21 P. v. Molina CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B310561
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. BA369149)
v.
ERIK ORLANDO MOLINA,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Robert J. Perry, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
Appellant Erik Molina filed a post-judgment motion in the
trial court seeking to vacate the restitution fines imposed,
asserting that the court failed to consider his ability to pay them.
The trial court denied appellant’s motion, and he timely
appealed. His court-appointed counsel filed an opening brief
raising no issues and invoking People v. Serrano (2012) 211
Cal.App.4th 496 (Serrano). Appellant filed a supplemental brief.
Following Serrano, supra, 211 Cal.App.4th at p. 503, we consider
only the issues raised by appellant in his supplemental brief. We
conclude that appellant has not established reversible error and
therefore affirm.
BACKGROUND
In 2013, a jury convicted appellant of one count of second
degree murder (Pen. Code, § 187, subd. (a), count one)1 and one
count of manslaughter (§ 192, subd. (a), count two). The jury
acquitted appellant of a third count of attempted murder (§§ 664,
187, subd. (a), count three). The jury found true the allegations
that appellant personally and intentionally discharged a firearm
which proximately caused great bodily injury and death
(§ 12022.5, subd. (d), count one), and that he committed the
manslaughter to benefit a gang (§ 186.22, subd. (b)(1)(c), count
two). The court also found appellant had suffered one prior
serious or violent “strike” conviction (§§ 1170.12, subds. (a)-(d),
667, subds. (b)–(i)) that also qualified as a prior serious felony
conviction (§ 667, subd. (a)(1). On November 13, 2013, the court
sentenced appellant to a prison term of 60 years to life plus 20
1. All
further statutory references are to the Penal Code
unless otherwise indicated.
2
years as follows: 15 years to life on count one, doubled for the
prior strike, plus 25 years to life for the firearm enhancement,
plus a five-year enhancement for the prior serious felony
conviction pursuant to section 667, subdivision (a)(1); and the
upper term of 11 years on count two, doubled for the prior strike,
to run consecutively to count one. The court also imposed $80 in
court security assessments (§ 1465.8, subd. (a)(1), $60 in criminal
convictions assessments (Gov. Code § 70373), a $280 restitution
fine (§1202.4, subd. (b)), a $280 parole restitution fine (§ 1202.45,
stayed), and $17,700.74 in victim restitution, plus ten percent
interest from the day of sentencing (§ 1202.4, subd. (f)). We
affirmed the judgment in our prior unpublished decision, People
v. Molina (Aug. 17, 2015, B253056) [nonpub.opn.].
In December 2020, appellant filed a petition for writ of
habeas corpus and a motion for modification of his sentence.2 In
both his petition and motion, appellant challenged the imposition
of the restitution fine and victim restitution. As relevant here, he
argued that this restitution should be reversed because he was
indigent and the court failed to consider his ability to pay. The
trial court denied appellant’s petition. The court found his claim
“clearly untimely and wholly lacking in merit,” rejecting
appellant’s reliance on People v. Dueñas (2019) 30 Cal.App.5th
1157 (Dueñas) as a “much criticized opinion and not persuasive
authority.” Appellant appealed.
2. It appears from the limited record before us that
appellant filed his habeas petition and motion for modification
together, and the court and parties treated them as a single
filing.
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Appellant’s appointed counsel filed a brief raising no issues
and invoking Serrano, supra, 211 Cal.App.4th 496. Under
Serrano, when appointed counsel raises no issue in an appeal
from a post-judgment proceeding following a first appeal as of
right, an appellate court need not independently review the
record and may dismiss the appeal if the appellant fails to file a
supplemental brief. (Serrano, supra, 211 Cal.App.4th at pp. 498,
503.) We directed counsel to send the record and a copy of the
brief to appellant, and notified appellant of his right to respond
within 30 days. Appellant filed a supplemental letter brief in
response.
DISCUSSION
In his supplemental letter brief, appellant argues that the
court erroneously imposed a restitution fine and victim
restitution without assessing his ability to pay, citing Dueñas,
supra, 30 Cal.App.5th 1157. We disagree.
“Dueñas held that it violates due process under the federal
and state Constitutions to impose . . . court operations and
facilities fees without first determining the convicted defendant’s
ability to pay them. [Citation.] In addition, ‘to avoid serious
constitutional questions’ raised by the statutory restitution
scheme, [Dueñas held that] the [trial] court must stay execution
of the mandatory restitution fine unless the court determines
that the defendant has the ability to pay it.” (People v. Taylor
(2019) 43 Cal.App.5th 390, 397 (Taylor).)3
“Since Dueñas, some courts have criticized Dueñas’s due
3.
process analysis and have declined to follow it. . . . [¶] The
California Supreme Court will resolve the split in authority,
having granted review of the issues presented by Dueñas in
[People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov.
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Here, the trial court imposed a $280 restitution fine (at the
time the statutory minimum) pursuant to section 1202.4,
subdivision (b). Assuming the court erred, the error was
harmless beyond a reasonable doubt. (People v. Aviles (2019) 39
Cal.App.5th 1055, 1075, citing Chapman v. California (1967) 386
U.S. 18, 24; People v. Johnson (2019) 35 Cal.App.5th 134, 139–
140.) Even under Dueñas, fines and fees are properly imposed if
the defendant has the ability to pay them.
“‘“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.’” (People v. Aviles, supra, 39 Cal.App.5th at p. 1076.) We
can infer that appellant has the ability to pay the fines and fees
imposed upon him from his probable future wages, including his
prison wages. (Ibid.) “Prison wages range from $12 to $56 per
month, depending on the prisoner's skill level. [Citations.]”
(Ibid.) The state is permitted to garnish a portion of those wages,
as well as trust account deposits, to satisfy the restitution fine.
(Ibid.; see § 2085.5, subd. (a).) Appellant is serving a sentence of
60 years to life plus 20 years in prison, which will give him ample
time to earn sufficient funds to pay the $280 restitution fine. Any
13, 2019, S257844]. The [Supreme] [C]ourt will decide
whether courts must ‘consider a defendant’s ability to pay
before imposing or executing fines, fees, and assessments,’ and
if so, ‘which party bears the burden of proof regarding
defendant’s inability to pay.’” (Taylor, supra, 43 Cal.App.5th
at p. 398.)
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error in the court’s failure to provide him an ability-to-pay
hearing accordingly is harmless.
We also reject appellant’s attempt to apply Dueñas to the
court’s imposition of $ 17,700.74 in victim restitution pursuant to
section 1202.4, subdivision (f). Section 1202.4 expressly states
that the court may not consider a defendant’s ability to pay in
determining the amount of restitution to be paid to victims
pursuant to subdivision (f). (§ 1202.4, subd. (g) [“A defendant’s
inability to pay shall not be a consideration in determining the
amount of a restitution order.”].) The Dueñas court expressly
declined to address direct victim compensation imposed under
section 1202.4, subdivision (f). (Dueñas, supra, 30 Cal.App.5th at
p. 1169 [“Payment of direct victim restitution goes directly to
victims and compensates them for economic losses they have
suffered because of the defendant’s crime.”].) Appellant cites no
case that extends the reasoning in Dueñas to victim restitution
payments under section 1202.4, subdivision (f). We agree with
our sister courts that these payments are “fundamentally
different” than the fines and assessments at issue in Dueñas, and
therefore find the case inapplicable to the amount imposed under
section 1202.4, subdivision (f). (People v. Evans (2019) 39
Cal.App.5th 771, 776-777 [“the purposes of the assessments and
fine considered in Dueñas are different from the primary purpose
of victim restitution”]; see also People v. Abrahamian (2020) 45
Cal.App.5th 314, 338; People v. Pack-Ramirez (2020) 56
Cal.App.5th 851, 859.)
Appellant also contends that the victim restitution amount
constitutes cruel and unusual punishment, arguing that he would
not be able to earn enough in prison to pay even the 10 percent
interest imposed. Appellant failed to raise this argument in his
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first appeal and has not shown that he was unable to do so.
Thus, he has forfeited his right to raise this issue now. (See
People v. Senior (1995) 33 Cal.App.4th 531, 538 [“where a
criminal defendant could have raised an issue in a prior appeal,
the appellate court need not entertain the issue in a subsequent
appeal absent a showing of justification for the delay”]; see also
People v. Jordan (2018) 21 Cal.App.5th 1136, 1145 [“The state’s
interests in finality of judgments and protection of judicial
resources prohibit this type of piecemeal litigation.”].)
Lastly, appellant argues that his court fees, costs, and fines
“are suppose[d] to be vacated” based on the recent passage of
Assembly Bill 1869. Assembly Bill 1869 amended the Penal Code
by adding the following section: “1465.9. (a) On and after July 1,
2021, the balance of any court-imposed costs pursuant to Section
987.4, subdivision (a) of Section 987.5, Sections 987.8, 1203,
1203.1e, 1203.016, 1203.018, 1203.1b, 1208.2, 1210.15, 3010.8,
4024.2, and 6266, as those sections read on June 30, 2021, shall
be unenforceable and uncollectible and any portion of a judgment
imposing those costs shall be vacated.” (Stats. 2020, ch. 92, § 62,
italics added.) Appellant has not identified any costs, fines, or
fees imposed on him that are covered under this section.
In sum, appellant fails to raise any arguable contention
that the superior court erred in denying him relief. (See People v.
Hertz (1980) 103 Cal.App.3d 770, 780 [appellant has affirmative
duty to show error].)
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DISPOSITION
The superior court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J.
CURREY, J.
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