Filed 12/3/21 P. v. Ham CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO
THE PEOPLE, B312245
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA062771)
v.
ROBERT CARL HAM,
Defendant and Appellant.
THE COURT:
In 2015, Robert Carl Ham (appellant) was convicted in a
jury trial of five counts of committing a lewd act with a child
under age 14 (Pen. Code, § 288, subd. (a); counts 1 and 3-6),1 one
count of continuous sexual abuse of a child under age 14 (§ 288.5,
subd. (a); count 2), one count of committing a forcible lewd act
with a child under age 14 (§ 288, subd. (b)(1); count 7), one count
1 All further statutory references are to the Penal Code
unless otherwise indicated.
of rape by means of force, violence, duress, menace, or fear of
bodily injury (§ 261, subd. (a)(2); count 8), one count of furnishing
marijuana to a minor under age 14 (Health & Saf. Code, § 11361,
subd. (a); count 10), and one count of committing a lewd act with
a child who is 14 or 15 years old when the perpetrator is at least
10 years older (§ 288, subd. (c)(1); count 11). The jury found true
allegations that appellant committed an offense specified in
section 667.61, subdivision (c) against more than one victim for
purposes of section 667.61, subdivisions (b) and (e)(4). On counts
1 through 8, the trial court sentenced appellant to state prison for
eight consecutive terms of 15 years to life. However, the sentence
on count 7 was stayed pursuant to section 654. Regarding count
10, the trial court sentenced appellant to a consecutive
determinate term of five years. As to count 11, the trial court
sentenced appellant to a consecutive determinate term of eight
months.
The parties stipulated that appellant would pay $3,288 to
C.B. The trial court advised him that he had the right to a
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restitution hearing to determine the amount owed. He waived
that right and verbally agreed to pay $3,288 as already
stipulated. On the heels of that, the trial court informed
appellant that he was ordered to pay a restitution fund fine of
$10,000,3 $400 in court security fees, $300 in criminal conviction
2 C.B. was a witness for the prosecution. She was not a
victim of appellant’s crimes. (See People v. Ham (Jan. 10, 2017,
B267322) [nonpub. opn.] (Ham).)
3 Section 1202.4, subdivision (b)(1) provides that a
restitution fine “shall be set at the discretion of the court and
commensurate with the seriousness of the offense. If the person
is convicted of a felony, the fine shall not be less than three
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fees, and a $200 sex offender fine. He was advised of his right to
appeal from the judgment.
Appellant filed an appeal in which he raised a variety of
challenges but did not challenge any of the fines or fees. We
affirmed the judgment in Ham.
On March 8, 2021, appellant filed a petition for writ of
habeas corpus and argued that the trial court violated his
Fourteenth Amendment right to Due Process because he was not
afforded a restitution hearing in accordance with section 1202.4,
subdivision (f)(1) to contest the restitution and fines imposed on
him. In addition, he argued that he received ineffective
assistance of counsel during sentencing because his attorney
stipulated to restitution in the amount of $3,288 to C.B., and
because he failed to argue that appellant lacked the ability to pay
the restitution or fines.
The trial court denied the petition. It noted that the
appellant had been advised of his right to a restitution hearing,
and that he gave up that right. Further, the trial court stated:
“In addition, [appellant’s] claim of error is in part based on the
faulty premise that, before imposing sentence, the [trial court]
failed to consider his ability to pay. In fact, because the
sentencing judge impose[d] a restitution fine above the statutory
minimum, the statutory scheme expressly permitted the judge to
take [appellant’s] ability to pay into account in setting the fine.
(See § 1202.4, subd. (c).) Because, in imposing [a] victim
restitution fund fine, the trial court is not limited to a
consideration of a defendant’s present ability to pay, but also may
hundred dollars ($300) and not more than ten thousand dollars
($10,000).”
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consider a defendant’s ability to pay in the future [citation],
including [appellant’s] ability to obtain prison wages [citation],
the restitution order appears appropriate based on the nature of
the crimes committed and the indeterminate sentence imposed.
[Citation.]”
The trial court’s order was not appealable. (See People v.
Torres (2020) 44 Cal.App.5th 1081, 1083 (Torres) [denial of a
motion to reduce a restitution fine based on inability to pay not
appealable because it was filed after the conclusion of defendant’s
direct appeal]; People v. Garrett (1998) 67 Cal.App.4th 1419,
1421–1422 [denial of a habeas petition not appealable; when a
habeas petition is denied, the remedy is to file an original habeas
petition in the Court of Appeal].)
As a reviewing court, we have the discretion to treat an
appeal as an original habeas petition. (People v. Segura (2008) 44
Cal.4th 921, 928, fn. 4.) The question is whether we should
exercise that discretion here.
Habeas is a “‘proper remedy in this state to collaterally
attack a judgment of conviction which has been obtained in
violation of fundamental constitutional rights. [Citations.]’” (In
re Harris (1993) 5 Cal.4th 813, 825.) A habeas petition is timely
only if it was filed within a reasonable time. (Robinson v. Lewis
(2020) 9 Cal.5th 883, 892.)
In the letter brief that appellant filed in the Court of
Appeal,4 he argues: (1) his rights were violated based on People
v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) because the trial
court did not inquire as to whether he had the ability to pay; and
(2) his claim was not forfeited because Dueñas was an
unforeseeable change in the law.
4 Appointed counsel filed a no merit brief.
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Given that Dueñas was decided almost three years ago and
appellant is only raising the issue now, we conclude that his
habeas petition is not timely. Moreover, Dueñas was wrongly
decided because due process does not require a trial court to
determine ability to pay before imposing fines on a defendant.
(People v. Hicks (2019) 40 Cal.App.5th 320, 322, 329, review
granted Nov. 26, 2019, S258946.) Thus, appellant’s Dueñas
based due process arguments lack merit. In any event, appellant
was advised of his right to a restitution hearing and he waived
that right. This is not the case in which the judgment was
obtained in violation of appellant’s fundamental constitutional
rights.
We conclude that this is not an appropriate case to treat
appellant’s appeal as an original petition for writ of habeas
corpus. Because the order denying appellant’s petition for writ of
habeas corpus in the trial court was not appealable on multiple
grounds, this appeal must be dismissed. (Torres, supra, 44
Cal.App.5th at pp. 1083–1084.)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________________________________________
LUI, P. J. ASHMANN-GERST, J. CHAVEZ, J.
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People v. Ham CA2/2
Combined Opinion