People v. Dudzinsky CA4/2 ( 2021 )

Filed 1/27/21 P. v. Dudzinsky 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E074800
v. (Super.Ct.No. FVI1501345)
MICHAEL WALTER DUDZINSKY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Debra Harris,
Judge. Affirmed with directions.
Jill M. Klein, 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, Arlene A. Sedival and Randall D.
Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
This is the second appeal arising from defendant and appellant Michael Walter
Dudzinsky’s 2017 conviction on one count of assault with a deadly weapon, as well as
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recidivism-based enhancements of that count. In this opinion, we affirm the judgment
and direct the trial court to correct a clerical error in the abstract of judgment.
Our previous, nonpublished opinion rejected several of Dudzinsky’s challenges to
the conviction, but conditionally reversed the judgment and remanded for the trial court
to consider mental health diversion under the newly-enacted Penal Code1 section 1001.36
and, if necessary, to exercise its new discretion to strike or dismiss a prior serious felony
conviction for sentencing purposes pursuant to Senate Bill No. 1393 (2017-2018 Reg.
Sess.). (People v. Dudzinsky (Apr. 11, 2019, E069417 [nonpub. opn.].)
On remand, the trial court declined to order mental health diversion because
Dudzinsky indicated that he did not wish to participate. (See § 1001.36, subd. (b)(1)
[listing division criteria including that the defendant “consents to diversion” and “agrees
to comply with treatment”].) The court reinstated Dudzinsky’s previous sentence of 25
years to life on the assault conviction, but exercised its discretion to strike two prior
serious felony enhancements, eliminating a previously imposed 10-year term. The court
reinstated all previously imposed fines and fees, all of which were the statutory minimum
amounts. These included a $40 court operations fee pursuant to section 1465.8, a $30
court construction fee pursuant to Government Code section 70373, a $300 restitution
fine pursuant to section 1202.4, and a stayed $300 parole revocation fine pursuant to
section 1202.45.
1
Further undesignated statutory references are to the Penal Code.
2
In reimposing the fines and fees, the trial court and defense counsel engaged in the
following colloquy. The court stated: “All fines that were imposed will remain the same.
I did take into consideration that the defendant was an indigent, and I believe I imposed
the minimum fines.” Defense counsel asked: “Your Honor, would the Court consider a
stay on the restitution fine for Mr. Dudzinsky due to the lengthy sentence that he’ll be
facing?” The court responded: “I believe I imposed the minimum restitution fine for
him. I have to get my thoughts back together.” After dealing with other sentencing
issues, the court returned to the restitution fine: “Let’s make sure that the Court did
impose the minimum restitution fines before. If not, that is my intention because I would
have to make a financial finding otherwise.” Defense counsel raised no further objection,
stating only: “Thank you, your Honor.”
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Dudzinsky
contends that the trial court erred by reimposing the fines and fees without first
determining he has the ability to pay them. Dudzinsky did not preserve this argument for
review. Dudzinsky was resentenced in February 2020, more than a year after Dueñas
was issued. Nevertheless, he raised no objection at all to the reimposition of the court
construction fee, court operations fee, or parole revocation fine. He requested that the
court stay the restitution fine, but he did not request an opportunity to present additional
evidence regarding his ability to pay, and he did not invoke ability to pay as the reason
for the proposed stay.
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Moreover, even if we presume Dudzinsky did not forfeit his arguments, or if we
exercise our discretion to reach their merits, our review starts from the presumption that
the trial court’s order was correct and that in making it the court knew the law and
followed it. (People v. Giordano (2007) 42 Cal.4th 644, 666 [“On appeal, we presume
that a judgment or order of the trial court is correct, ‘“[a]ll intendments and presumptions
are indulged to support it on matters as to which the record is silent, and error must be
affirmatively shown.”’”].) Viewed from this deferential perspective, the court’s
comment that its “intention” was to impose the minimum restitution fine “because I
would have to make a financial finding otherwise” does not necessarily mean it never
considered Dudzinsky’s ability to pay. Rather, the comment could mean that if the court
were to order something other than the minimum restitution fine, it would have to have
some basis for revisiting its earlier implicit finding that he could pay the minimum
restitution fine (and the other order fines and fees) during his lengthy period of custody;
the court would have to consider again whether Dudzinsky had the ability to pay, even
though no new evidence or meaningful argument was presented, such as some reason
why Dudzinsky would not be able to pay out of prison earnings. Taken in isolation, the
court’s comments could support Dudzinsky’s claim that the court never considered
ability to pay. But, in context, Dudzinsky’s own failure to press an argument about his
ability fostered the lack of clarity. In such circumstances, we must draw all reasonable
inferences in favor of upholding the judgment.
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Though Dudzinsky was “indigent,” it was within the bounds of reason to conclude
that he nevertheless had the ability to pay the imposed fines and fees, which totaled only
$370 (excluding the stayed parole revocation fine). Dudzinsky was 63 years old and had
no assets at the time of sentencing, but there is nothing in the record compelling the
conclusion that he will be unable to earn wages sufficient to cover this statutory
2
minimum amount while serving his sentence of 25 years to life. (See People v. Valles
(2020) 49 Cal.App.5th 156, 164 [“As defendant will be serving a lengthy prison sentence
and the amount of the fees is small, it is appropriate for the court to consider the wages
that he may earn in prison.”) At no point did Dudzinsky request an opportunity to submit
additional evidence demonstrating that he would not be able to work in prison or
otherwise obtain the necessary funds, nor did he even expressly argue that to be the case
based on evidence already in the record. The trial court therefore reasonably, albeit
implicitly, concluded that Dudzinsky did not meet his burden of establishing his inability
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to pay. (See People v. Jones (2019) 36 Cal.App.5th 1028, 1035.)
In short, Dudzinsky forfeited his claim of Dueñas error. Even on the merits, he
has not demonstrated that the trial court failed to consider his ability to pay the reimposed
2
As discussed in our previous opinion, there is reason to believe that Dudzinsky
has serious mental health issues. (People v. Dudzinsky, supra, E069417.) It is not
apparent from the record, however, that these issues or other health problems would
preclude him from working while imprisoned.
3
The questions of 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” are before our Supreme Court
in People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.
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fines and fees, or that the record compelled the conclusion that he lacked the ability to
pay them.
Dudzinsky more persuasively argues that there is an error in the new abstract of
judgment issued after his resentencing. The trial court exercised its discretion to strike
the two serious felony prior enhancements that had previously been imposed. The trial
court correctly deleted reference to those enhancements in the new abstract of judgment.
Nevertheless, an extraneous “10,” representing the 10-year term previously imposed for
the now stricken enhancements, remains in the “total” column of section 3, the section for
recidivism based enhancements. As the People concede, this clerical error should be
corrected.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of
judgment by deleting the extraneous “10” in the “total” column of section 3. The court is
further directed to forward a copy of the amended abstract of judgment to the Department
of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J.
We concur:
McKINSTER
Acting P. J.
MILLER
J.
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