Monday, April 27, 2020
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Court of Appeal:
Lawyer Wasn’t Incompetent Based on Failure to Seek Ability-to-Pay Hearing
By a MetNews Staff Writer
A defendant did not have incompetent counsel based on a failure to request a hearing on his ability to pay $380 in fines and fees where the accused was employed and owned an automobile, the Court of Appeal for this district has held, disputing the proposition that prejudice appeared from the fact that the man had a court-provided lawyer.
Justice Maria E. Stratton of Div. Eight wrote the opinion, filed Thursday and not certified for publication. It affirms an order by Los Angeles Superior Court Judge Joseph A. Brandolino.
Appellant Samuel Mandefro, who was convicted by a jury on two counts of second degree robbery, contended that his lawyer had to have been incompetent because at the time of sentencing, the Court of Appeal’s 2019 opinion in People v. Dueñas had been issued and was binding on the trial court.
That Jan. 8, 2019 opinion, handed down by this district’s Div. Seven, has been followed by some courts of appeal, and repudiated by others, with its holding that a convicted defendant is entitled to an ability-to-pay hearing now being before the California Supreme Court, in the case of People v. Kopp.
Div. Eight has not taken a stance on whether Dueñas was correctly decided, but has held that if a protest to the imposition of fines and fees was not voiced in the trial court, the issue cannot be raised on appeal. (Presiding Justice Tricia Bigelow, in a brief concurring opinion last Nov. 27, did disagree with Dueñas.)
Not Convinced
In response to Mandefro’s incompetence-of-counsel argument, Stratton wrote:
“We are not convinced. Qualifying for free representation in a criminal prosecution is not enough to show a defendant cannot afford the minimal fines and fees imposed here. Being unable to afford legal fees for representation in a jury trial involving two counts of robbery does not beg the conclusion Mandefro is unable to pay $380 in fines and fees.”
The defendant in Dueñas was indigent, she pointed out, while Mandefro isn’t, declaring:
“Nothing in the record indicates Mandefro cannot afford the $380 in fines, fees, and assessments imposed upon him. To the contrary, Mandefro was an employed, healthy young man at the time of his offense. He owned a car. Unlike Dueñas, Mandefro did not allege then, and does not allege now, facts showing he had a history of being unable to pay debts, lacked savings or sellable assets, or needed to devote any of his income to child care.
“Accordingly, we cannot conclude Mandefro’s defense counsel was deficient for failing to request an ability-to-pay hearing. The satisfactory explanation for not making such a request is that counsel may well have known that appellant had the ability to pay the fines and fees.”
Prejudice Not Shown
She added:
“Furthermore, even if we did conclude Mandefro’s counsel should have requested a hearing, Mandefro cannot establish prejudice. This alone is sufficient to deny Mandefro’s claim….[W]e cannot say these fines and fees would not have been imposed even if the trial court had conducted an ability-to-pay hearing.”
The case is People v. Mandefro, B297156.
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