California Court of Appeal Nov 30, 2020 No. E072096Unpublished
Filed 11/30/20 P. v. Jennings CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E072096
v. (Super.Ct.Nos. BAF1800824, BAF1701010 & SWF 1707303) JOSHUA JENNINGS, OPINION Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Chad W. Firetag, Judge.
Affirmed with directions.
Erica Gambale, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Alana
Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
1
INTRODUCTION
A jury found defendant and appellant Joshua Jennings guilty of inflicting corporal
injury upon a spouse (Pen. Code,1 § 273.5, subd. (a), count 1), making criminal threats
(§ 422, count 2), dissuading a witness by threat of force or violence (§ 136.1, subd. (c)(1),
count 3), and violating a protective or stay-away court order (§ 166, subd. (c)(4), count
(Gov. Code, § 70373), and a $300 restitution fine (Pen. Code, § 1202.4). Relying on the
3 The court orally ordered defendant to pay $130 for the court operation fee. However, the court appears to have misspoke since section 1465.8 requires an assessment of $40 for each criminal conviction. (§ 1465.8, subd. (a)(1).) Defendant had four convictions; thus, the court was required to impose a total of $160. We note that the minute order and abstract of judgment reflect the imposition of $160. Thus, no correction to the record is necessary. 12
recent appellate decision in Dueñas, supra, 30 Cal.App.5th 1157, defendant argues that
the imposition of the fine and assessments without a hearing establishing his ability to
pay violated his due process rights. (We will call this Dueñas error.) He notes the court
found he did not have the ability to pay the fines and fees in the two probation violation
cases, when defense counsel suggested the prosecution had the burden to prove he had
the ability to pay under Dueñas. Thus, defendant requests this court to reverse the order
in the instant case imposing the assessments and stay the restitution fine, pending a
hearing regarding his ability to pay. We conclude that remand is not necessary.
No remand is necessary since any Dueñas error was harmless. Dueñas, supra, 30
Cal.App.5th 1157, involved a homeless probationer who suffered from cerebral palsy and
was unable to work. She was married with two young children, and her family received
public assistance. (Id., at pp. 1160-1161.) Her driver’s license was suspended when she
could not pay some juvenile citations as a teenager. (Id. at p. 1161.) “She was then
convicted of a series of misdemeanor offenses for driving with a suspended license, and
in each case was given the impossible choice whether to ‘pay[]’ mandatory fees and
fines—which she could not do, because of her poverty—or go to jail. [Citation.] After
serving jail time in the first three of these cases, she still faced outstanding debt, which
mounted with each conviction.” (People v. Johnson (2019) 35 Cal.App.5th 134, 138
(Johnson).) Upon her fourth conviction for driving with a suspended license, Dueñas
was placed on probation and again ordered to pay mandatory fees and fines. (Dueñas,
supra, 30 Cal.App.5th at pp. 1161-1162.) She asked the court to set a hearing to
determine her ability to pay the attorney fees and court fees she had been assessed. (Id. at
13
p. 1162.) The court held an ability to pay hearing and concluded that she lacked the
ability to pay the attorney fees, and it waived them “on the basis of her indigence.” (Id.
at p. 1163.) However, the court stated that the $30 court facilities assessment (Govt.
Code, § 70373) and $40 court operations assessment (Pen. Code, § 1465.8) “were both
mandatory regardless of Dueñas’s inability to pay them.” (Dueñas, at p. 1163.)
Dueñas appealed and argued that “laws imposing fines and fees on people too
poor to pay punish the poor for their poverty.” (Dueñas, supra, 30 Cal.App.5th at
p. 1164.) The appellate court agreed, concluding that due process “requires the trial court
to conduct an ability to pay hearing and ascertain a defendant’s present ability to pay
before it imposes court facilities and court operations assessments under Penal Code
section 1465.8 and Government Code section 70373.” (Ibid.) The court also held that
“although Penal Code section 1202.4 bars consideration of a defendant’s ability to pay
unless the judge is considering increasing the fee over the statutory minimum, the
execution of any restitution fine imposed under this statute must be stayed unless and
until the trial court holds an ability to pay hearing and concludes that the defendant has
the present ability to pay the restitution fine.” (Ibid.)
We first note that the facts in the instant case bear no similarity to the unique
factual circumstances presented in Dueñas. The Dueñas court observed that the record in
that case “illustrate[d] the cascading consequences of imposing fines and assessments
that a defendant cannot pay.” (Dueñas, supra, 30 Cal.App.5th at p. 1163.) It also noted
that the case did not “ ‘stem from one case for which she’s not capable of paying the fines
14
and fees,’ but from a series of criminal proceedings driven by, and contributing to,
Dueñas’s poverty.” (Id. at p. 1164.) There were no such similar circumstances here.
Furthermore, any error in failing to conduct an ability to pay hearing was
harmless. “A ‘ “very limited class” ’ of federal constitutional errors are ‘subject to per se
reversal’; all others are ‘amenable to harmless error analysis.’ [Citations.] Dueñas did
not address whether Dueñas error requires an automatic reversal.” (People v. Jones
(2019) 36 Cal.App.5th 1028, 1035.) “We therefore consider whether the error here was
harmless beyond a reasonable doubt.” (Ibid.; see Chapman v. California (1967) 386 U.S.
18, 24.)
The record here shows that defendant began working as a security officer when he
was 18 years old, after graduating from high school, and that he became a certified
security officer after training at an academy in 2007. In 2017, he worked as a security
officer and earned $11.00 per hour. He reported other income as $200 per month from “
‘stealing and selling’ various items.” Although “[t]hese are hardly indications of wealth
. . . there is enough evidence in the . . . record to conclude that the total amount involved
here did not saddle [defendant] with a financial burden anything like the inescapable,
Moreover, not only does the record show defendant had some past income-earning
capacity, he will have the ability to earn prison wages while incarcerated. (See People v.
Hennessey (1995) 37 Cal.App.4th 1830 [ability to pay includes a defendant’s ability to
obtain prison wages]; see also Johnson, supra, 35 Cal.App.5th at p. 139; Jones, supra, 36
15
Cal.App.5th at p. 1035.) He was sentenced to an aggregate term of 14 years in prison.
Even if, for some reason, defendant does not earn enough in prison wages, there is no
reason to believe he will not be able to earn enough to pay whatever sum is then left. In
other words, on this record, the idea that defendant cannot afford to pay the $580 in
ordered fines and fees is untenable.
In sum, “even if we were to assume [defendant] is correct that he suffered a due
process violation when the court imposed this rather modest financial burden on him
without taking his ability to pay into account” (Johnson, supra, 35 Cal.App.5th at
pp. 139-140), there is no reason to doubt defendant has, or will have, the ability to pay
the $580. Accordingly, on this record, we conclude the Dueñas error was harmless.
(Jones, supra, 36 Cal.App.5th at p. 1035; see Johnson, at pp. 139-140.)
DISPOSITION
The matter is remanded for the limited purpose of allowing the trial court the
opportunity to exercise its discretion whether to impose a consecutive or concurrent
sentence on count 3, under Penal Code section 1170.15. In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J. We concur:
CODRINGTON Acting P. J. SLOUGH J.
16
AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court erroneously believed it lacked discretion to impose a concurrent sentence for a witness dissuasion conviction under Penal Code section 1170.15, necessitating a remand for resentencing. The court otherwise affirmed the judgment, finding no error in the application of Penal Code section 654 or the imposition of fines and fees.
Issues
Whether the trial court erred in believing it was required to impose a consecutive sentence for a witness dissuasion conviction under Penal Code section 1170.15.
Whether the trial court erred by failing to stay the sentence for witness dissuasion under Penal Code section 654.
Whether the imposition of fines and fees without an ability-to-pay hearing violated the defendant's due process rights under People v. Dueñas.
Disposition. Remanded for resentencing; otherwise affirmed.
Quotations verified verbatim against the opinion
“The court stated its understanding of section 1170.15 was that it required imposition of a consecutive sentence on count 3.”
“The Woodworth court held that “the plain language of section 1170.15 does not mandate consecutive sentences.””
“The court properly declined to apply section 654 to the sentence on count 3.”