People v. Splettstoesser CA5 ( 2021 )

Filed 3/5/21 P. v. Splettstoesser CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078416
Plaintiff and Respondent,
(Fresno Super. Ct. No. F18904298)
v.
PARRISH DON SPLETTSTOESSER, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B.
Conklin, Judge.
J. Edward Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D.
Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
INTRODUCTION
Appellant and defendant Parrish Don Splettstoesser pleaded no contest to one
count of residential burglary and admitted a firearm enhancement. He was sentenced to a
stipulated term of 12 years. The court also imposed a restitution fine plus fees and
assessments.
On appeal, defendant argues the court improperly ordered him to pay the fines,
fees, and assessments without determining his ability to pay such amounts based on
People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We affirm.
FACTS1
On March 23, 2018, defendant arrived at the residence of S.H. and T.V. and
knocked on the door. S.H. had known defendant and his family for a long time. S.H.
answered and defendant immediately confronted him, demanding to know where
defendant’s guitars were. Defendant hit S.H. with an “ax handle.”
S.H. said he did not have defendant’s guitars and said he would bring out his own
guitars to show him. Defendant pulled out a .44-caliber revolver and said they would
look around together. Defendant walked S.H. into the living room where T.V. was
sitting. S.H. tried to reach for his shotgun that was propped against the wall. Defendant
warned that he would shoot S.H. if he flinched, and S.H. took his hand off the shotgun.
Defendant pointed his gun at T.V.’s head. Defendant repeatedly told them that “if you
call the cops, you’re dead” and “I’ll be back to kill you.”
Defendant escorted S.H. around the house at gunpoint to look for his guitars, and
then went outside to look in a shed. Defendant realized that his guitars were not there,
got upset, and walked away.
1 The following facts are from the preliminary hearing transcript.
2.
PROCEDURAL BACKGROUND
On July 17, 2018, an information was filed in the Superior Court of Fresno County
charging defendant with count 1, first degree burglary (Pen. Code, §§ 459, 460,
subd. (a));2 counts 2 and 3, attempted first degree robbery (§§ 211, 664); counts 4 and 5,
criminal threats (§ 422); counts 6 and 7, dissuading a witness by force or threat (§ 136.1,
subd. (c)(1)); count 8, assault with a deadly weapon (§ 245, subd. (a)(1)); count 9,
kidnapping (§ 207, subd. (a)); counts 10 and 11, false imprisonment by violence (§ 236);
counts 12 through 15, possession of a firearm by a felon (§ 29800, subd. (a)(1)); and
count 16, possession of ammunition by a felon (§ 30305, subd. (a)(1)).
As to count 1 through 11, it was alleged defendant personally used a firearm in the
commission of the offenses (§§ 12022.5, subd. (a), 12022.53, subd. (b)), and as to
count 1, that a person other than an accomplice was present during the commission of the
burglary (§ 667.5, subd. (c)(21)).
Plea
On September 24, 2018, defendant’s trial began with evidentiary motions. The
court granted the People’s motion to dismiss counts 2 and 3.
On September 25, 2018, the court began voir dire. After a recess, the parties
advised the court that defendant had agreed to enter a plea to count 1 for a stipulated term
of 12 years. The parties also stipulated to the preliminary hearing and the police reports
for the factual basis.
Defendant pleaded no contest to count 1, first degree burglary, and admitted the
personal use enhancement. Defendant acknowledged he could be required to pay a fine
of up to $10,000.
The court granted the People’s motion to dismiss the remaining charges and
allegations, while reserving the right to comment and request restitution.
2 All further statutory citations are to the Penal Code unless otherwise indicated.
3.
Sentencing
On October 29, 2018, the court sentenced defendant to the lower term of two years
for count 1, with an additional 10-year term for the personal use enhancement, for a total
of 12 years in prison consistent with the stipulated term.
The court imposed a restitution fine of $1,000 (§ 1202.4) and suspended the
$1,000 parole revocation fine (§ 1202.45). It also imposed a $30 criminal conviction
assessment fee (Gov. Code, § 70373) and a court security fee of $40 (§ 1465.8).
Defendant did not object to the restitution fines and fees but requested a hearing as
to the request for victim restitution of $4,675. The court set the matter for a further
hearing.
On or about November 13, 2018, appellant filed a notice of appeal, and defendant
received a certificate of probable cause.
On January 28, 2019, the court conducted the requested hearing on victim
restitution, and imposed the amount requested of $4,675 based on the victim’s request for
reimbursement for staying at a hotel for nearly one month after the burglary because of
fear of defendant (§ 1202.4, subd. (f)).
Supplemental Motion
On September 5, 2019, defendant filed a motion in the trial court to strike the fines
and assessments imposed against him or, alternatively, hold a hearing to determine his
ability to pay fines and assessments under Dueñas.
On September 30, 2019, the court denied the motion, finding that defendant
waived the ability to pay issue by failing to raise it at the sentencing hearing. The court
further found that even if he did not waive the issue, there was no reasonable likelihood
he would prevail on the issue because the restitution fine was $1,000; defendant told the
4.
probation officer he had been earning $800 per day as a heavy construction contractor;
and he would also be able to pay the fine from prison wages.3
The court rejected defendant’s claim that the restitution fine was excessive in
violation of the Eighth Amendment based on the holding in People v. Aviles (2019) 39
Cal.App.5th 1055 (Aviles), and held the aggregate amount imposed was not grossly
disproportionate to defendant’s level of culpability and infliction of harm.
DISCUSSION
Defendant argues that as in Dueñas, the court in this case violated his due process
rights because it imposed the restitution fine and the fees and assessments without
determining his ability to pay, he is indigent, and the amounts must be stricken and
vacated unless the People prove his ability to pay. Defendant further argues he did not
forfeit review of this issue because he lacked any statutory authority to object to the fines
and fees at the time of the sentencing hearing, and Dueñas created a new constitutional
basis to object to the court’s order that could not have been anticipated.
Dueñas held that “due process of law requires the trial court to conduct an ability
to pay hearing and ascertain a defendant’s present ability to pay” before it imposes any
fines or fees. (Dueñas, supra, 30 Cal.App.5th at p. 1164.)4
We disagree with the holding in Dueñas and find the matter need not be remanded
on this issue. As explained in Aviles, we believe Dueñas was wrongly decided and an
Eighth Amendment analysis is more appropriate to determine whether restitution fines,
fees, and assessments in a particular case are grossly disproportionate and thus excessive.
Under that standard, the fines and fees imposed in this case are not grossly
3According to the probation report, defendant said he had been self-employed as a
heavy construction contractor for 30 years and earned $800 per day.
4The California Supreme Court is currently considering whether trial courts must
consider a defendant’s ability to pay before imposing or executing fines, fees, and
assessments; and if so, which party bears the applicable burden of proof. (See People v.
Kopp (2019) 38 Cal.App.5th 47, 94–98, review granted Nov. 13, 2019, S257844.)
5.
disproportionate to defendant’s level of culpability and the harm he inflicted, and thus not
excessive under the Eighth Amendment. (Aviles, supra, 39 Cal.App.5th at pp. 1068–
1072.)
Defendant acknowledges Aviles but argues it was wrongly decided. We disagree
pending a future ruling from the California Supreme Court.
Defendant next asserts that Aviles placed a heavy burden to anticipate an ability to
pay objection prior to Dueñas being decided or risk forfeiture of this issue on appeal.
Defendant argues he did not forfeit review of the Dueñas issues because the case had not
yet been decided at the time of his sentencing hearing, defense counsel could not have
anticipated it, and any objection would have been futile at the time.
Aside from the discussion in Aviles, however, defendant had the statutory ability
to raise an ability to pay objection at the time of his sentencing hearing. When the court
imposes a restitution fine greater than the $300 statutory minimum amount, “[s]ection
1202.4 expressly contemplates an objection based on inability to pay,” and defendant’s
failure to object results in forfeiture of the issue. (People v. Frandsen (2019) 33
Cal.App.5th 1126, 1153 (Frandsen); Aviles, supra, 39 Cal.App.5th at p. 1073.) Such a
forfeiture rule has been consistently followed. (People v. Trujillo (2015) 60 Cal.4th 850,
853–854; People v. Nelson (2011) 51 Cal.4th 198, 227; People v. Gamache (2010) 48
Cal.4th 347, 409.)
In this case, the court ordered defendant to pay a restitution fine of $1,000 under
section 1202.4, subdivision (b), an amount greater than the statutory minimum fine.
Defendant had the statutory right to object to the $1,000 restitution fine and demonstrate
his alleged inability to pay. Such an objection “would not have been futile under
governing law at the time of his sentencing hearing,” and his failure to do so has forfeited
the issue. (Frandsen, supra, 33 Cal.App.5th at p. 1154; People v. Lowery (2020) 43
6.
Cal.App.5th 1046, 1048; Aviles, supra, 39 Cal.App.5th at pp. 1073–1074; People v.
Gutierrez (2019) 35 Cal.App.5th 1027, 1032–1033.)5
In addition, any objections to the assessments imposed under section 1465.8 and
Government Code section 70373 would not have been futile. “Although both statutory
provisions mandate the assessments be imposed, nothing in the record of the sentencing
hearing indicates that [the defendant] was foreclosed from making the same request that
the defendant in Dueñas made in the face of those same mandatory assessments. [The
defendant] plainly could have made a record had his ability to pay actually been an issue.
Indeed, [he] was obligated to create a record showing his inability to pay the …
restitution fine, which would have served to also address his ability to pay the
assessments.” (Frandsen, supra, 33 Cal.App.5th at p. 1154; Aviles, supra, 39
Cal.App.5th at p. 1074.)
Even if we agreed with Dueñas, we would still reject defendant’s constitutional
claims and find any error arising from the court’s failure to make an ability to pay finding
was harmless beyond a reasonable doubt since defendant has the ability to pay the fines
and fees imposed in this case. (Chapman v. California (1967) 386 U.S. 18, 24; People v.
Jones (2019) 36 Cal.App.5th 1028, 1030–1031; Aviles, supra, 39 Cal.App.5th at
pp. 1075–1077.)
“ ‘ “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
5 Defendant’s postjudgment motion does not excuse his failure to object to the
restitution fine at the sentencing hearing. Defendant’s motion was required to perfect
appellate review and comply with section 1237.2, which states that “ ‘[a]n appeal may
not be taken by the defendant from a judgment of conviction on the ground of an error in
the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs
unless the defendant first presents the claim in the trial court at the time of sentencing, or
if the error is not discovered until after sentencing, the defendant first makes a motion for
correction in the trial court, which may be made informally in writing….’ ” (People v.
Torres (2020) 44 Cal.App.5th 1081, 1087, 1088; People v. Hall (2019) 39 Cal.App.5th
502, 504.)
7.
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 and to earn money after his release from
custody. [Citation.]’ [Citations.]” (Aviles, supra, 39 Cal.App.5th at p. 1076.)
We can infer from the instant record that defendant has the ability to pay the
aggregate amount of fines and fees from probable future wages, including prison wages.
(Aviles, supra, 39 Cal.App.5th at p. 1076; People v. Ellis (2019) 31 Cal.App.5th 1090,
1094; People v. Douglas (1995) 39 Cal.App.4th 1385, 1397.)
Defendant argues his circumstances have dramatically changed since he was
arrested and convicted in this case, and it is uncertain whether he will be able to obtain
the same employment upon his release from prison, or if will be able to obtain a prison
job. We believe People v. Potts (2019) 6 Cal.5th 1012 (Potts) is persuasive on this point.
The trial court in Potts ordered a defendant convicted of capital murder to pay the
statutory maximum restitution fine of $10,000, partially based on the probation officer’s
erroneous statement that a condemned inmate would be assigned a job in prison. At the
time of the hearing, the applicable restitution statute permitted the court to consider the
defendant’s inability to pay but the defendant did not object. (Id. at p. 1055.) The
defendant filed a postjudgment motion for the court to reduce the fine because of the
court’s mistake and his inability to pay and argued his own source of income in prison
was limited to small financial gifts from family and friends. The court denied the motion
and found that seizing even a small part of the defendant’s income was a minimal burden
considering the incredible loss he inflicted to the victim’s family. (Id. at pp. 1055–1056.)
Potts held the trial court abused its discretion when it imposed the fee based on the
erroneous belief that a defendant sentenced to death would be permitted to work.
However, Potts held the error was harmless beyond a reasonable doubt based on the
court’s findings when it denied the postjudgment motion to modify the fine. (Potts,
supra, 6 Cal.5th at pp. 1055, 1056.) Potts explained that the defendant’s alleged inability
8.
to pay because he lacked a prison job would be “blunted by the fact that he would retain
at least some of the money sent to him” by family and friends. (Id. at p. 1056.) The trial
court was “permitted to conclude that the monetary burden the restitution fine imposed
on defendant was outweighed by other considerations,” such as the seriousness and
gravity of the offense, and the circumstances of its commission. (Id. at pp. 1056–1057.)
There is nothing in the record to show that defendant would be unable to satisfy
the fine and fees imposed by the court while serving his prison term, even if he fails to
obtain a prison job. While it may take defendant some time to pay the amounts imposed
in this case, that circumstance does not support his inability to make payments on these
amounts from either prison wages or monetary gifts from family and friends during his
prison sentence. (See, e.g., People v. Lewis (2009) 46 Cal.4th 1255, 1321; People v.
DeFrance (2008) 167 Cal.App.4th 486, 505.)
Finally, defendant argues the record suggests his inability to pay because he was
represented by appointed counsel, and the trial court did not find that he had the ability to
repay the costs of representation under section 987.8. However, section 987.8 carries a
specific statutory presumption that a defendant sentenced to more than one year in prison
does not have the ability to reimburse defense costs. Such a presumption does not apply
to whether he had the ability to pay the statutorily mandated restitution fine and fees.
(§ 987.8, subd. (g)(2)(B); Aviles, supra, 39 Cal.App.5th at pp. 1074–1075; People v.
Rodriguez (2019) 34 Cal.App.5th 641, 646.)
DISPOSITION
The judgment is affirmed
9.