People v. Brokenbrough CA3

Filed 11/4/21 P. v. Brokenbrough CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Yuba) ----

THE PEOPLE, C093552

Plaintiff and Respondent, (Super. Ct. Nos. CRF202706, CRF202251, CRF202710 ) v.

JORDAN LEON BROKENBROUGH,

Defendant and Appellant.

In a global resolution of three cases, defendant Jordan Leon Brokenbrough pled guilty to several charges and admitted several associated enhancements. The trial court sentenced defendant to eight years and eight months in prison and imposed restitution fines and assessments. This appeal pertains solely to the fines and assessments imposed. Defendant argues the trial court violated his right to due process by imposing the fines and assessments without first determining he had the ability to pay them. (Citing People v. Dueñas (2019) 30 Cal.App.5th 1157.) In defendant’s view, when his appointed counsel asked the trial court to “ ‘waive any court costs, fines, and fees that the Court is allowed to by law due to [defendant’s] being represented by the Public Defender’s Office,’ ” the trial court had an obligation to hold a hearing and should not have “speculat[ed] he could pay the obligation out of prison wages.”

1

Defendant asks us to vacate the assessments “because they were imposed on an indigent defendant” (capitalization omitted), and stay execution of the restitution fines until a hearing is held to determine if he has the ability to pay them. We affirm but order the trial court to correct the abstract of judgment as to the amount of the assessments imposed to conform to the oral pronouncement. DISCUSSION1 At sentencing, defense counsel asked the trial court to “waive any court costs, fines, and fees that the Court is allowed to by law due to [defendant’s] being represented by the Public Defender’s Office.” The trial court nonetheless orally imposed a $300 restitution fine and $300 stayed parole revocation fine in each of the three cases, a $160 court operations assessment, and a $120 court facilities assessment. The trial court noted defendant “does have the ability to earn wages to a certain extent in the Department of Corrections.” Defendant said nothing in response. Defendant’s argument that the trial court violated his due process rights because it imposed the fine and assessments “without a determination that [he] was able to pay them” is confusing. (Bolding and capitalization omitted.) Although the trial court did not make an express finding of ability to pay, the trial court noted defendant “does have the ability to earn wages to a certain extent in the Department of Corrections.” The trial court further impliedly determined defendant has the ability to pay the fines and assessments imposed because the court imposed the fines and assessments after defense counsel asked the court to “waive any court costs, fines, and fees . . . .” (See People v. Avila (2009) 46 Cal.4th 680, 729 [express findings by court as to ability to pay not required].) The trial court thus did make an ability to pay determination; it simply was not the determination defendant wanted.