Filed 8/21/20 P. v. Alvarado CA2/3
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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

                      SECOND APPELLATE DISTRICT

                                  DIVISION THREE

THE PEOPLE,                                                         B299695

        Plaintiff and Respondent,                                   (Los Angeles County
                                                                    Super. Ct. No. BA430049)
        v.

KEVIN ALVARADO,

        Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of Los
Angeles County, Craig J. Mitchell, Judge. Affirmed.
      Myra Sun, under appointment by the Court of Appeal, for
Defendant and Appellant.
      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Chung L. Mar, Deputy
Attorneys General, for Plaintiff and Respondent.
                 _________________________
      Defendant and appellant Kevin Alvarado pled no contest to
second degree murder in 2019. The trial court sentenced him to a
term of 15 years to life in prison, and, over his objection, imposed
various fines and fees. Alvarado contends that under People v.
Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the trial court’s
inquiry into his ability to pay did not satisfy the requirements of
due process; its denial of his request to stay the fees and fines
was an abuse of discretion; and the matter must be remanded for
an adequate ability-to-pay hearing. We disagree, and affirm the
judgment.
                 PROCEDURAL BACKGROUND1
      In September 2014, 17-year-old Alvarado shot and killed
Bryan Rubio. While in custody between 2017 and 2019, Alvarado
was charged with four unrelated counts of custodial possession of
a weapon (Pen. Code, § 4502, subd. (a))2 and one count of making
criminal threats (§ 422).3 He also was found in possession of
“pruno,” a prisoner-made alcoholic beverage.
      On April 4, 2019, Alvarado pled no contest to second degree
murder. (§ 187, subd. (a).) The court advised that it was
required to impose a restitution fine, a suspended parole
revocation restitution fine, a court security fee, and a conviction
fine. Alvarado stated that he understood. Defense counsel stated

1
      Because the evidence underlying Alvarado’s crime is not
relevant to the issue presented on appeal, we do not discuss it
here.
2
     All further undesignated statutory references are to the
Penal Code.
3
     In 2017, Alvarado was convicted by a jury of one of the
weapons possession charges, and sentenced to two years in jail.




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Alvarado lacked the ability to pay, and he would address the
issue at sentencing. The court responded, “I’m sure what he
receives in state prison will in part satisfy this.”
       Sentencing transpired on May 16, 2019. In accordance
with the negotiated plea, the court sentenced Alvarado to 15
years to life on the murder charge.4 Regarding the Dueñas issue,
defense counsel argued that the fines and fees should be stayed
because Alvarado did not have the ability to pay, given that he
had been in custody for five years. The trial court responded:
“The court is mindful that during his term in state prison, he will
be paid a de minimis amount, but nonetheless, something for his
labor. I am disinclined to waive.” Accordingly, the court imposed
a restitution fine of $300 (§ 1202.4); a suspended parole
revocation restitution fine in the same amount (§ 1202.45); a $40
court operations assessment (§ 1465.8, subd. (a)(1)); and a $30
criminal conviction assessment (Gov. Code, § 70373). It did not
order direct victim restitution. At Alvarado’s request, it issued a
certificate of probable cause on the question of imposition of the
fines and fees.
       Alvarado timely filed a notice of appeal.


4
      At the sentencing hearing, the custodial weapon possession
charge in case number BA465948 was amended to allege
possession of a dirk or dagger in violation of section 21310, and
Alvarado pled guilty to that offense. The court ordered sentence
on that offense to run concurrently with the sentence on the
murder charge. In case no. BA465948, it imposed a $300
restitution fine, a suspended parole revocation restitution fine in
the same amount, a $40 court security fee, and a $30 felony
conviction assessment. The other custodial charges were
dismissed either prior to or at the sentencing hearing.




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                            DISCUSSION
       Alvarado is not entitled to a further hearing on his ability to
pay fines and assessments
       Dueñas held due process requires that a trial court conduct
an ability-to-pay hearing and ascertain a defendant’s ability to
pay before imposing assessments under section 1465.8 and
Government Code section 70373, and before executing a
restitution fine under section 1202.4. (Dueñas, supra, 30
Cal.App.5th at p. 1164.) Relying on Dueñas, Alvarado contends
that the court here did not conduct a constitutionally adequate
hearing into his ability to pay. Therefore, he avers, the court
abused its discretion by failing to stay imposition of the fees and
fines, and the matter must be remanded for a further ability-to-
pay hearing. We reject his claim for several reasons.
       First, we agree with other courts that have concluded
Dueñas was wrongly decided. (See People v. Hicks (2019) 40
Cal.App.5th 320, 327–329, review granted Nov. 26, 2019,
S258946; People v. Cota (2020) 45 Cal.App.5th 786, 794–795;
People v. Petri (2020) 45 Cal.App.5th 82, 90–92; People v.
Adams (2020) 44 Cal.App.5th 828, 831; People v. Kingston (2019)
41 Cal.App.5th 272, 279–280; People v. Aviles (2019) 39
Cal.App.5th 1055, 1060, 1067–1069.) Our Supreme Court is
currently reviewing whether a trial court must consider a
defendant’s ability to pay before imposing or executing fines, fees,
or assessments, and, if so, which party bears the burden of proof
on the question. (People v. Kopp (2019) 38 Cal.App.5th 47, review
granted Nov. 13, 2019, S257844.) Pending further guidance from
our Supreme Court on the issue, we agree with the courts that
have rejected Dueñas.




                                  4
       Second, Dueñas is distinguishable from the instant
matter. Dueñas was the disabled, unemployed, often homeless
mother of two young children, who subsisted on public aid. When
she was a teenager, her driver’s license was suspended because
she was unable to pay juvenile citations. She was then convicted
of a series of misdemeanor offenses for driving with a suspended
license, and was given the choice of paying fees and fines or going
to jail. (Dueñas, supra, 30 Cal.App.5th at pp. 1160–1161.)
Dueñas’s case thus stemmed from “a series of criminal
proceedings driven by, and contributing to,” her poverty. (Id. at
p. 1164.) The situation in which Alvarado has put himself does
not implicate the same due process concerns at issue in the
factually unique Dueñas case. Alvarado, unlike Dueñas, does not
face incarceration because of an inability to pay assessments and
fines. He is in prison because he committed murder. Even if he
does not pay the assessments and fines, there is no indication he
will suffer the cascading and potentially devastating
consequences Dueñas faced. (See People v. Caceres (2019) 39
Cal.App.5th 917, 926–927 [concluding that “the due process
analysis in Dueñas does not justify extending its holding beyond”
the “extreme facts” presented therein]; People v. Adams, supra,
44 Cal.App.5th at p. 832; People v. Lowery (2020) 43 Cal.App.5th
1046, 1054–1055; People v. Johnson (2019) 35 Cal.App.5th 134,
138–139.)
       Third, even if we were to conclude that an ability-to-pay
hearing was required, there was no due process violation or
abuse of discretion here. A trial court abuses its discretion only if
its decision is arbitrary, whimsical, or capricious, such that no
reasonable person could agree with it. (People v. Carmony (2004)
33 Cal.4th 367, 376–377; People v. Williams (2018) 19




                                  5
Cal.App.5th 1057, 1062; People v. Downey (2000) 82 Cal.App.4th
899, 909–910.) Here, the trial court did consider Alvarado’s
ability to pay. It considered and rejected Alvarado’s conclusory
assertion that he lacked the ability to pay, reasoning that he
would earn a “de minimis amount” for his labor in prison. This
finding was not arbitrary, capricious, or unreasonable. Courts
have repeatedly held that, when determining ability to pay, a
defendant’s potential prison wages may be taken into account.
(See People v. Aviles, supra, 39 Cal.App.5th at p. 1076; People v.
Johnson, supra, 35 Cal.App.5th at pp. 139–140; People v. Jones
(2019) 36 Cal.App.5th 1028, 1035; People v. Cervantes (2020) 46
Cal.App.5th 213, 229; People v. Lowery, supra, 43 Cal.App.5th at
pp. 1060–1061; see People v. Hennessey (1995) 37 Cal.App.4th
1830, 1837 [ability to obtain prison wages is properly considered
in an ability-to-pay calculus].) Alvarado has been sentenced to a
lengthy term. In this case, the court imposed a total of $370 in
fines and fees, and the same amount in the unrelated dirk or
dagger case, No. BA465948. Nothing in the record indicates he is
unable to work, or would be unable to pay these fines and fees
during the duration of his prison term. It was therefore
reasonable for the court to conclude Alvarado would likely be able
to make payments during his incarceration.
       Alvarado argues that he is unlikely to be able to obtain
paid employment in the prison system. He points out that paid
prison work is a privilege, and is assigned based on, among other
things, an inmate’s education and skill level, abilities,
dependability, behavior, and relationships with staff and other
inmates. (See Cal. Code Regs., tit. 15, §§ 3040, subd. (k), 3041.1,
8004.1) He is a “regrettably poor candidate for paid employment”
in the prison, he insists, because of his youth, his lack of work




                                 6
experience, and the absence of any showing he completed high
school. If he is deemed to need further education, his educational
activities will be unpaid and will precede paid employment.
Moreover, his possession of weapons and “pruno,” and his “rocky”
relationships with other inmates, decreases the likelihood he will
succeed in obtaining a prison job. And, the fact the number of
inmates vying for positions outstrips the number of available jobs
further decreases his chances.
       But even assuming the accuracy of the assertion that he
may not immediately become employed in prison, none of this
information was presented to the trial court, which cannot be
faulted for failing to consider information and arguments not
presented to it. Alvarado did not offer, or attempt to offer,
evidence that he has sought, but was unable to obtain, prison
employment, or that he would be forever precluded from a paid
assignment. Nor did he present any other information bearing on
his ability to pay, except his counsel’s conclusory assertion that
he could not do so because he had been in custody for five years.
Under these circumstances, the trial court did not abuse its
discretion and Alvarado’s due process rights were not violated.5




5
     In light of our conclusions, we do not address the parties’
arguments regarding the excessive fines clause.




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                       DISPOSITION
     The judgment is affirmed.

    NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS




                                EDMON, P. J.


We concur:




              EGERTON, J.




              DHANIDINA, J.




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