If Ability to Pay Objection Not Made, Is it Waived?

After being released from prison in 2018, William Evers worked briefly in 2020, but then was otherwise unemployed.

In 2021, he was living in a tent in the Mendocino County forest and obtaining food, alcohol, firearms and other items from occupied and unoccupied residences nearby.

In May of 2021, two Mendocino County Sheriff’s Deputy officers responded to a report that Evers had broken into a residence. Upon encountering Evers, one officer chased him on foot and Evers shot at or near the officer and escaped. However, he was later apprehended and charged with attempted murder of a police officer, grand theft of a firearm, two counts of vandalism and fifteen counts of burglary, along with special circumstance allegations.

Pursuant to a plea agreement, Judge Keith Faulder added an assault on a police officer with a firearm count (Penal Code § 245(b)) and dismissed the remaining counts. Mr. Evers then pleaded guilty to the one count and admitted two prior strikes – and agreed to a sentence of 25 years to life in prison.

The judge then ordered the statutory maximum restitution fine of $10,000 under Penal Code § 1202.45(a). Evers’ attorney argued that the fines should be reduced to $6,000 according to a statutory formula. The judge then refused to reduce the fine, commenting that Evers will be able to earn money while in prison and the crime was very serious, mentioning the circumstances of the crimes, the economic gain to Evers [i.e., in the burglaries for food, alcohol, firearms and ammunition], the extent of loss to others, and the number of victims supported the maximum fine.

It merits mention that Evers’ counsel never made an ability to pay objection at the sentencing hearing although the judge’s comments in imposing the fine suggested he had considered Evers’ ability to pay by stating that he would have work he could do in prison to pay the restitution and time enough to do so.

In November and December 20022, Evers’ appellate counsel sent two informal letter motions to the trial court, asking the court to (1) strike the 15 percent administrative fee applied to the two direct victim restitution orders; and (2) reduce the restitution fines to the statutory minimum of $300 and stay enforcement until there is a showing of ability to pay.

Among other things, Evers’ appellate counsel also argued that the many practical limitations on work in prison and the amount of victim restitution ordered meant that Evers may never have the ability to make any payments against the restitution fines.

Counsel cited section 1237.2 as requiring the filing of the informal motions in the trial court prior to appeal. The trial court did not act on the motions.

On appeal to the First Appellate District, Evers’ counsel continued to challenge the fees and fines imposed at sentencing. First, he argued that the 15 percent administrative fee is not statutorily authorized. Second, he argues that the court’s imposition of the two $10,000 restitution fines violated his constitutional rights to be free of excessive fines and due process and equal protection, at least without consideration of his ability to pay them.

The First Appellate District agreed that the 15 percent administrative fee was improper, as the statutory subdivision pursuant to which it was imposed (Penal Code § 1203.1(l) had been repealed at the time of sentencing.

As to the restitution fine, the appellate court explained that filing a “letter motion” under Penal Code § 1237.2 did not preserve the issue for appeal. The appellate court clarified Penal Code § 1237.2’s use, explaining that this section creates an alternative pathway to correct certain sentencing errors without resorting to appeal. People v. Clark (2021) 67 Cal. App. 4th 248, 255 – 256.

The Legislature created this pathway “’to conserve judicial resources and [allow litigants to] efficiently present claims in a single forum.’” Id., at 256; cf. People v. Fares (1993) 16 Cal. App. 4th 954, 957 [“We are disturbed that this attempt at a minor correction of a sentence error has required the formal appellate process”]. Because the purpose of the rule it to avoid unnecessary expenditure of appellate resources, it “only applies in cases where the erroneous imposition or calculation of fines, penalty assessments, surcharges, fees, or costs are the sole issue on appeal.” § 1237.2; see Clark, at p. 256.

Section 1237.2 requires a “motion for correction” only when “the error is not discovered until after sentencing.”

Turning to Evers’ case, the appellate court bluntly stated, “This does not appear to be the situation here. There was no indication that Evers’ counsel was unaware of Dueñas and similar cases prior to the sentencing hearing. In fact, when the judge stated that it was taking into account Evers’ ability to pay, Evers’ counsel did not challenge the court’s reasoning, request a hearing on his ability to pay, or argue that the amount was unconstitutional.

Therefore, by not objecting on this ground, he forfeits the claim of error. People v. Greeley (2021) 70 Cal. App. 5th 609, 624; cf.; People v. Leon (2020) 8 Cal. 5th 831, 854. To preserve an issue on appeal, an objection must be timely. See, e.g., Keener v. Jeid-Wen, Inc. (2009) 46 Cal. 4th 247, 264.