Filed 8/25/20 P. v. Pardo CA1/4
                  NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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

                                      FIRST APPELLATE DISTRICT

                                                  DIVISION FOUR


 THE PEOPLE,
             Plaintiff and Respondent,
                                                                   A158927
 v.
 DARIC PARDO,                                                      (Mendocino County
                                                                   Super. Ct. No.
             Defendant and Appellant.
                                                                   SCUKCRCR1932373)



         Defendant Daric Pardo pled no contest to unlawful possession of a
weapon in jail, pursuant to Penal Code1 section 4574, subdivision (a). His
six-year sentence included two one-year enhancements under Penal Code
section 667.5, subdivision (b) because he had served two prior prison terms.
Defendant argues that under People v. Dueñas (2018) 30 Cal.App.5th 1157
(Dueñas) and the Eighth Amendment, this case must be remanded for the
trial court to determine his ability to pay certain fines and fees. Defendant
also asserts that recent amendments to section 667.5, subdivision (b) apply
retroactively and that both one-year enhancements must therefore be
stricken from his sentence; the People agree. We agree that the



       All further statutory references are to the Penal Code unless
         1

otherwise specified.

                                                               1
enhancements should be stricken, but on this record, we reject defendant’s
contention regarding the fines and fees.
                               BACKGROUND
      Defendant was arrested for “being under the influence of a controlled
substance” and placed on a parole hold. While in jail, defendant ripped out a
phone cord and used the phone’s handset receiver to smash a window; he
later damaged the housing of a security camera. While defendant was still in
custody, authorities found a homemade “shank” in his possession. Defendant
pled no contest to unlawfully possessing a weapon in jail and admitted two
prior prison term allegations in exchange for a six-year prison sentence and
the dismissal of one count of felony vandalism and a prior strike allegation.
      The pre-sentencing probation report recommended an $1,800
restitution fine under section 1202.4(b). Responding to the recommendation,
counsel stated defendant would be “presumptively unable to pay on these
fines” and asked the court to “strike or suspend as many [fines and fees] in
the court’s discretion.” The trial court said it would “reduce” the restitution
fine to the $300 minimum, to which counsel replied, “Thank you, your
Honor.” The trial court sentenced defendant to the six-year stipulated
sentence and ordered him to pay a $40 court assessment fee pursuant to
section 1465.8, a $30 criminal assessment fee pursuant to Government Code
section 70373, and a $300 restitution fine pursuant to section 1202.4,
subdivision (b).




                                        2
                                 DISCUSSION
I.   The Trial Court Did Not Violate Defendant’s Constitutional
     Rights by Imposing Fines and Fees Without Conducting an
     Ability to Pay Hearing.
      Defendant contends the trial court erred by not conducting an ability to
pay hearing before imposing fines and fees. Defendant provides two
frameworks in support of this contention: under the due process clause as
analyzed in Dueñas and under the Eighth Amendment excessive fines clause,
which another panel of this Division discussed at length in People v. Cowan,
47 Cal.App.5th 32 (Cowan). While we agree that Cowan provides the proper
framework, it does not aid defendant.
     A. Dueñas
       Dueñas involved a defendant who was convicted of driving on a
suspended license and sentenced to probation. (Dueñas, supra,
30 Cal.App.5th 1157, 1160.) At sentencing, the court-imposed facilities and
court operations fees under Government Code section 70373 and section
1465.8 and a $150 restitution fine under section 1202.4. (Id. at p. 1162.)
Dueñas stated she was unable to pay the fines and requested a hearing on
her ability to pay. (Ibid.) The court granted the hearing, but ultimately
rejected Dueñas’s arguments that the due process and equal protection
clauses required the court to consider her ability to pay these fines and
assessments. (Id. at p. 1163.)
       On appeal, the court held that due process requires a trial court to
conduct a hearing to determine a defendant’s ability to pay assessments
under section 1465.8 and Government Code section 70373. (Dueñas, supra,
30 Cal.App.5th at p. 1164.) The court further held that restitution fines




                                        3
under section 1202.4 must be imposed but stayed unless and until the People
prove that a defendant can pay the fine. (Id. at pp. 1164, 1172.)
   B. Cowan
      This Division discussed Dueñas and similar cases in Cowan, supra,
47 Cal.App.5th 32. Although Cowan did not state that Dueñas was wrongly
decided, it held that the excessive fines prohibition of the Eighth Amendment
and its counterpart under the California Constitution, article I, section 17,
rather than the due process analysis in Dueñas, provides the proper
framework for analyzing the constitutionality of restitution fines and
assessments. (Id. at p. 42.) Most importantly for purposes of our analysis,
the court held that “upon proper objection, a sentencing court must allow a
defendant facing imposition of a minimum restitution fine or court operations
and court facilities assessments to present evidence and argument why these
financial exactions exceed his ability to pay.” (Id. at p. 34, italics added.) The
court also held that the defendant has the burden of proving an inability to
pay and that assessment of that ability to pay shall include both defendant’s
present and future earning ability. (Id. at p. 35.)
   C. Analysis
      While defendant asserts that the imposition of fines and fees without
an ability to pay hearing was unconstitutional under Dueñas and Cowan, his
argument fails under both frameworks because he did not request an ability
to pay hearing, he failed to object to the court’s imposition of the fines and
fees he now challenges, and he failed to provide any evidence that he was
unable to pay.
      At sentencing, defendant claimed only that he was “presumptively
unable to pay on these fines and fees” recommended in the probation report
and asked the court to “strike or suspend as many in the court’s discretion.”



                                        4
The court granted defendant’s request, explaining that it would “reduce” the
probation report’s recommended $1,800 restitution fine to the statutory
minimum of $300, to which defendant replied only, “Thank you, [y]our
Honor.” Defendant made no objection to the restitution fine of $300 or the
other assessments, which are the basis of this appeal. Furthermore,
defendant neither requested an ability to pay hearing nor did he provide any
evidence or offer of proof as to his claimed inability to pay beyond the
conclusory statement that he was “presumptively unable to pay” the fine
recommended by the probation department. It is only “upon proper objection”
that a trial court must provide a defendant with an ability to pay hearing.
(Cowan, supra, 47 Cal.App.5th at p. 34.) Because there was no such objection
here, the trial court did not err in failing to conduct an ability to pay hearing
before imposing the challenged restitution fine and other fees.
      Moreover, even if the trial court erred in not conducting an ability to
pay hearing, any error was harmless under People v. Johnson, 35 Cal.App.5th
134 (Johnson). In Johnson, the trial court imposed the same fines and fees as
in the instant case. (Id. at p. 137 [“At sentencing, the court imposed a $300
restitution fine (§ 1202.4, subd. (b)), a $40 court security fee (§ 1465.8), and a
$30 criminal conviction assessment (Gov. Code, § 70373)”].) As here, the trial
court did not conduct an ability to pay hearing. (Johnson, at p. 140.) The
court held that while the trial court erred in imposing the fines and fees
without considering Johnson’s ability to pay, that error was harmless. (Ibid.)
The court reasoned that the record demonstrated that Johnson had earning
ability prior to his arrest and the ability to earn prison wages during his
eight-year term, and the court noted that the $370 in fines and fees was a
“rather modest financial burden.” (Id. at pp. 139–140.) Therefore, even if




                                         5
there was a due process violation, “the error [was] harmless beyond a
reasonable doubt.” (Id. at 140.)
      Although the record in the instant case does not describe defendant’s
past earning ability, it does show that defendant was able to rip a phone cord
out of the wall and use the phone to smash a window and a security camera
housing. Thus, it is reasonable to infer that defendant is able-bodied and has
the capacity for future earnings. Moreover, defendant will be serving a four-
year sentence during which he will likely be eligible to earn prison wages to
pay off the “rather modest financial burden” the court imposed on him.
(Johnson, supra, 35 Cal.App.5th at p. at 140.) Currently, monthly wages in
California prisons range from $12 to $56, and half of any wages earned are
deducted to pay any outstanding restitution fines. (Cal. Code Regs., tit. 15,
§ 3041.2, subd. (a)(1); § 2085.5, subd. (a).) Even assuming defendant earns no
more than the $12 per month minimum—and there is no reason to assume he
would earn only the minimum—he would earn nearly $300 during the time
he will likely serve in prison with custody credits under section 4019. He
would thus have a balance of less than $100 after completion of his sentence,
and he would have little to no remaining balance if he earns more than the
minimum monthly wage. Accordingly, even if defendant were correct that
the court erred by not addressing his ability to pay before imposing $370 in
fines and fees, that error was harmless beyond a reasonable doubt. (Ibid.)
II.   The Prior Prison Term Enhancements Should be Stricken
      Pursuant to Section 667.5, Subdivision (b).
      We agree with defendant and the People that amended section 667.5,
subdivision (b) applies retroactively to non-final judgments under In re
Estrada (1965) 63 Cal.2d 740, 742. Under section 667.5, subdivision (b) as
amended, one-year enhancements are limited to individuals who have served



                                       6
a sentence for a sexually violent offense. (§ 667.5, subd. (b) [“the court shall
impose a one-year term for each prior separate prison term for a sexually
violent offense as defined in subdivision (b) of Section 6600 of the Welfare
and Institutions Code”].) Defendant’s prior prison terms for arson and second
degree burglary were not sexually violent offenses. Thus, both one-year
enhancements should be stricken. (People v. Matthews (2020) 47 Cal.App.5th
857, 864–865.)
                                DISPOSITION
       The trial court is ordered to strike the two one-year enhancements
imposed pursuant to section 667.5, subdivision (b). The trial court shall
prepare an amended abstract of judgment and shall forward a copy to the
appropriate authorities. The judgment is otherwise affirmed.




                                            _________________________
                                            BROWN, J.


WE CONCUR:


_________________________
POLLAK, P. J.


_________________________
STREETER, J.




People v. Pardo (A158927)


                                        7
