Justice John L. Segal Says Defendant, by Not Objecting to Fine, Fee, Forfeited Contention
By a MetNews Staff Writer
Div. Seven of this district’s Court of Appeal—which last year spawned the controversial decision in People v. Dueñas holding that a criminal defendant has a due-process right to a hearing on the ability to pay fines and fees—yesterday rejected an attempted murderer’s contention that the monetary obligations placed on him at his pre-Dueñas sentencing are invalid.
Justice John Segal wrote the opinion, which was not certified for publication. It affirms a judgment by Los Angeles Superior Court Judge Shannon Knight which includes a $10,000 restitution fine and a $20 court operations assessment, imposed on Sean Patrick Delaney as part of a 2018 resentencing.
Delaney was originally sentenced on Sept. 15, 2005, pursuant to a plea bargain. The charges stemmed from his racially motivated knife attacks on two African American men on Feb. 17, 2014, in separate bars.
His prison term was set at 25 years eight months, and the $10,000 fine and $20 fee were assessed, with no objection by him.
The Department of Corrections and Rehabilitation in August 2018 advised the Superior Court that there was a miscalculation in connection with an enhancement, resulting an unauthorized sentence. Delaney, presently incarcerated in a Kern County facility, came before Knight—who was not the initial sentencing judge—for resentencing.
She explained to the defendant:
“You’re getting the same 25 years eight months, because that’s what everybody agreed to, but it needs to be calculated a little bit differently from how we did it.”
Before reimposing the fine and fee, Knight asked Delaney’s counsel, “Do you wish to be heard with regard to fees?” The response was: “No, Your Honor.”
Delaney has now appealed the 2018 judgment on the ground that he did not receive a hearing on his ability to pay, invoking the Jan. 8, 2019 opinion by then-Justice Laurie Zelon (now retired) in Dueñas.
Div. Seven, in its March 26, 2019 opinion by Presiding Justice Dennis Perluss in People v. Castellano, held that the appellant could derive a benefit from Dueñas although he had not objected at the time of his sentencing to a fine and imposition of a cost, explaining that Dueñas was based on “a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial.” However, Segal said in yesterday’s opinion that, under the circumstances, Delaney is not entitled to an ability-to-pay hearing.
“The $10,000 restitution fine the trial court imposed in September 2005 and imposed again in October 2018 far exceeded the statutory minimum (at the time) of $200. By failing both times to object to the $10,000 restitution fine and to present evidence he did not have the ability to pay it, Delaney twice forfeited the argument the trial court erred in imposing the fine without considering his ability to pay.”
Segal went on to say:
“[B]y failing to object to the $10,000 restitution fine, which was 500 times greater than the $20 court operations assessment, Delaney left no doubt he would not have challenged or argued he did not have the ability to pay the $20 assessment, even if Dueñas had been the law in 2005 or 2018.”
The case is People v. Delaney, B294147.
Some opinions—including that of the Fifth District in People v. Aviles, decided Sept. 13, 2019, and that of the Sixth District in People v. Adams, handed down last Jan. 29—have declared that “Dueñas was wrongly decided.” Other courts have followed it.
The California Supreme Court has granted review in People v. Kopp. On July 31, 2019, Div. One of the Fourth District Court of Appeal said in the majority opinion in that case, by Justice Richard D. Huffman, that “we do not follow the court’s approach to restitution fines in Dueñas.”
The high court limited the issues it would consider in Kopp to these:
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