Filed 8/28/20 P. v. Perry CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT


 THE PEOPLE,
                                                                                             F077768
             Plaintiff and Respondent,
                                                                          (Stanislaus Super. Ct. No. 4005601)
                    v.

 DENNIS PERRY,                                                                            OPINION
             Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Stanislaus County. Linda A.
McFadden, Judge.
         Kendall Dawson Wasley, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Cavan
M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




         *   Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
                                      INTRODUCTION
       Appellant/defendant Dennis Perry argues the court improperly ordered him to pay
a restitution fine and other fees in violation of his due process rights pursuant to People v.
Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We affirm.
                                           FACTS1
       Around 5:00 p.m. on October 26, 2017, Angelina’s Restaurant in Tulare was open
for business when the security cameras showed defendant entered the building through
the employee/delivery entrance in the alley. Defendant walked in and opened the door to
the back office, which was not open to the public. He went into the office, turned on the
lights, and closed the door. Defendant shuffled papers and looked around the desk. He
then opened the door and peered into the hallway. He went back into the office, again
closed the door, looked in a cabinet, and tried to open the safe but failed.
       Eduardo Loetz, the restaurant’s owner and general manager, arrived at the
business and headed to his back office. As he walked into the office, the door swung
open, and defendant emerged and walked past him. Loetz did not know defendant and
asked what he was doing in his office. Defendant said he was looking for boxes. Loetz
told defendant he was going to call the police and told him to wait. Defendant did not
want to wait but stayed in the doorway until the police arrived.
       Loetz testified there was a computer and other electronics in the office, and the
safe contained several thousands of dollars in cash, but defendant did not take anything.
                                 PROCEDURAL HISTORY
       On December 19, 2017, an information was filed that charged defendant with
second degree commercial burglary. (Pen. Code, § 459.)2


       1 The facts are from the preliminary hearing transcript, which the parties stipulated
to as the factual basis for defendant’s plea.
       2   All further statutory citations are to the Penal Code unless otherwise indicated.


                                               2.
       On May 30, 2018, defendant pleaded no contest. Defendant waived time, and the
court placed him on formal felony probation for 36 months, subject to certain terms and
conditions, including staying 10 yards away from Angelina’s Restaurant. The court also
ordered him to serve 180 days in jail, but suspended execution of the term.
       The court imposed a restitution fine of $300 (§ 1202.4) and stayed the probation
revocation fine of $300 (§ 1202.44). It also imposed a $40 court security fee (§ 1465.8)
and a $30 criminal conviction assessment fee (Gov. Code, § 70373).
       On July 10, 2018, appellant filed a notice of appeal. On July 24, 2018, the court
granted defendant’s request for a certificate of probable cause.
Postjudgment motion
       On February 7, 2019, appellate counsel sent a letter to the superior court pursuant
to section 1237.2, and requested the court vacate the restitution fine and fees. Appellate
counsel asserted the court improperly imposed the restitution fine and fees without
determining whether he had the ability to pay these amounts in violation of his due
process rights as stated in Dueñas.
                                      DISCUSSION
       Defendant contends the court’s imposition of the restitution fine of $300, and the
other assessments and fees, violated his due process rights pursuant to Dueñas because
the court failed to conduct a hearing to determine if he had the ability to pay these
amounts. Defendant cites to the declaration he filed in support of his request for
appointment of trial counsel, and asserts he was indigent, had limited financial means,
and relied on food stamps, and the matter must be remanded for the People to prove he
had the ability to pay.3


       3The California Supreme Court is currently considering whether trial courts must
consider a defendant’s ability to pay before imposing or executing fines, fees, and
assessments; and if so, which party bears the applicable burden of proof. (See People v.
Kopp (2019) 38 Cal.App.5th 47, 94–98, review granted Nov. 13, 2019, S257844.)


                                             3.
I.     Forfeiture
       We first note that, contrary to the People’s argument, defendant did not forfeit
review of this issue. Section 1202.4, subdivisions (c) and (d) only permit a party to raise
an ability to pay objection when the court imposes a restitution fine above the statutory
minimum. In this case, the court imposed the statutory minimum restitution fine of $300
pursuant to section 1202.4, subdivision (b). Under the governing law at the time of the
plea and sentencing hearing, defendant could not object to that restitution fine and the
other fees. (Cf. People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153–1154.)
       We further note that after the notice of appeal was filed, and while this case was
pending on appeal, appellate counsel wrote to the trial court pursuant to section 1237.2
and requested an order to stay the restitution fine and for the other fees to be stricken
under Dueñas. Section 1237.2 states: “An appeal may not be taken by the defendant
from a judgment of conviction on the ground of an error in the imposition or calculation
of fines, penalty assessments, surcharges, fees, or costs unless the defendant first presents
the claim in the trial court at the time of sentencing, or if the error is not discovered until
after sentencing, the defendant first makes a motion for correction in the trial court,
which may be made informally in writing. The trial court retains jurisdiction after a
notice of appeal has been filed to correct any error in the imposition or calculation of
fines, penalty assessments, surcharges, fees, or costs upon the defendant's request for
correction. This section only applies in cases where the erroneous imposition or
calculation of fines, penalty assessments, surcharges, fees, or costs are the sole issue on
appeal.” (Italics added.)
       The record does not clarify whether the court responded to appellate counsel’s
letter, but we assume the court did not grant the request since defendant has pursued the
Dueñas issue on appeal. Assuming the trial court did not act on defendant’s request, we
may address this issue because section 1237.2 only requires that the defendant “first



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make[] a motion for correction in the trial court” after sentencing, and he complied with
the statute.
II.    Dueñas
       In Dueñas, the defendant was an indigent, homeless mother of two, who subsisted
on public aid while suffering from cerebral palsy. She had dropped out of high school
because of her illness, and she was unemployed. (Dueñas, supra, 30 Cal.App.5th at
pp. 1160–1161.) As a teenager, the defendant’s driver’s license was suspended when she
could not pay some citations. (Id. at p. 1161.) She then was convicted of a series of
misdemeanor offenses for driving with a suspended license, and in each case, she was
given the choice to pay mandatory fees and fines, which she lacked the means to do, or
go to jail. (Ibid.) She served jail time in the first three of these cases, but still faced
outstanding debt, which increased with each conviction. (Ibid.)
       After her fourth conviction of driving with a suspended license, the defendant was
placed on probation and again ordered to pay mandatory fees and fines. The court
imposed a $30 court conviction assessment (Gov. Code, § 70373, subd. (a)(1)); a $40
court operations assessment (§ 1465.8, subd. (a)(1)); and the minimum restitution fine of
$150 for a misdemeanor (§ 1202.4, subd. (b)(1)). The court also imposed and stayed a
probation revocation restitution fine (§ 1202.44). (Dueñas, supra, 30 Cal.App.5th at
pp. 1161–1162.) The defendant challenged the fees and fines imposed under sections
1202.4 and 1465.8, and Government Code section 70373. (Dueñas, at p. 1164.) The
court rejected her constitutional arguments that due process and equal protection required
the court to consider her ability to pay these fines and assessments. (Id. at p. 1163.)
       Dueñas held the defendant’s due process rights had been infringed and that an
ability to pay hearing was required so the defendant’s “present ability to pay” could be
determined before assessments were levied for a court operations assessment (§ 1465.8,
subd. (a)(1)) and a criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)).
(Dueñas, at p. 1164.) Dueñas also held that the minimum restitution fine of $150

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(§ 1202.4, subd. (b)(1)) had to be stayed. Dueñas reached these conclusions even though
section 1202.4 barred consideration of a defendant’s ability to pay unless the judge was
considering a fine over the statutory minimum. (§ 1202.4, subd. (c).) Dueñas held that
“execution of any restitution fine imposed under this statute must be stayed unless and
until the trial court holds an ability to pay hearing and concludes that the defendant has
the present ability to pay the restitution fine.” (Dueñas, at p. 1164.)
       We find defendant’s reliance on Dueñas is misplaced because it is distinguishable
from the present matter and defendant’s constitutional rights have not been violated. The
defendant in Dueñas lost her driver’s license because she was too poor to pay her
juvenile citations. She continued to offend because the aggregating criminal conviction
assessments and fines prevented her from recovering her license. Dueñas described this
as “cascading consequences” stemming from “a series of criminal proceedings driven by,
and contributing to, [the defendant’s] poverty.” (Dueñas, supra, 30 Cal.App.5th at
pp. 1163–1164.)
       In contrast to Dueñas, defendant’s conviction for second degree burglary and his
resulting probationary status were not a product of the court’s prior imposition of
criminal assessments and fines. Defendant was not caught in an unfair cycle of
incarceration, and he could have avoided the present conviction regardless of his
financial circumstances. Dueñas is thus distinguishable and it has no application in this
matter. (See People v. Caceres (2019) 39 Cal.App.5th 917, 928–929 [declining to apply
Dueñas’s “broad holding” beyond its unique facts]; People v. Johnson (2019) 35
Cal.App.5th 134, 138 [“Dueñas is distinguishable.”].)
III.   The Court did not Violate Defendant’s Due Process Rights
       Even if Dueñas applied to this case, we reject any argument that the trial court
violated defendant's constitutional rights. The probationer in Dueñas presented
compelling evidence that the imposed assessments resulted in ongoing unintended
punitive consequences against her. Dueñas determined that these unintended

                                              6.
consequences were “fundamentally unfair” for an indigent defendant under principles of
due process. (Dueñas, supra, 30 Cal.App.5th at p. 1168.)
       Dueñas noted the imposed financial obligations were also potentially
unconstitutional under the excessive fines clause of the Eighth Amendment. However,
Dueñas stated that “[t]he due process and excessive fines analyses are sufficiently similar
that the California Supreme Court has observed that ‘[i]t makes no difference whether we
examine the issue as an excessive fine or a violation of due process.’ [Citation.]”
(Dueñas, supra, at p. 1171, fn. 8.)
       The analysis in Dueñas was strongly criticized by this court in People v. Aviles
(2019) 39 Cal.App.5th 1055, 1059–1060 (Aviles) and also in People v. Hicks (2019) 40
Cal.App.5th 320, 322, review granted November 26, 2019, S258946 (Hicks). (See also
People v. Kingston (2019) 41 Cal.App.5th 272, 279 (Kingston) [finding Hicks to be
“better reasoned” than Dueñas]; People v. Caceres, supra, 39 Cal.App.5th at p. 928 [“In
light of our concerns with the due process analysis in Dueñas, we decline to apply its
broad holding requiring trial courts in all cases to determine a defendant’s ability to pay
before imposing court assessments or restitution fines.”].)
       As we explained in Aviles, the “ ‘excessive fines’ ” clause in the Eighth
Amendment to the United States Constitution was more appropriate than a due process
argument for an indigent defendant to challenge the imposition of fees, fines and
assessments. (Aviles, supra, 39 Cal.App.5th at p. 1069.) Aviles found no constitutional
violation for the imposition of assessments and fines imposed on a felon who, after
fleeing from officers, shot and wounded two of them. (Id. at pp. 1059–1060.) Aviles also
concluded that any presumed error was harmless because the felon had the ability to earn
money while in prison. (Id. at pp. 1075–1077.)
       Hicks held that, in contrast to Dueñas’s due process analysis, a due process
violation must be based on a fundamental right, such as denying a defendant access to the
courts or incarcerating an indigent defendant for nonpayment. Hicks concluded that

                                             7.
Dueñas’s analysis was flawed because it expanded due process in a manner that grants
criminal defendants a right not conferred by precedent; that is, an ability to pay hearing
before assessments are imposed. (Hicks, supra, 40 Cal.App.5th at pp. 325–326.) Hicks
rejected a due process challenge to the imposition of fines and assessments on a felon
who, while under the influence of a stimulant, resisted arrest. (Id. at pp. 323, 329–330.)
       We similarly reject any claim that the trial court violated due process. The fines
and fees imposed in this case do not implicate the traditional concerns of fundamental
fairness. Defendant was not denied access to the courts or prohibited from presenting a
defense. (See Griffin v. Illinois (1956) 351 U.S. 12, 18–20 [due process and equal
protection require a state to provide criminal defendants with a free transcript for use on
appeal]; Kingston, supra, 41 Cal.App.5th at p. 281; Hicks, supra, 40 Cal.App.5th at
p. 326.) Defendant was not incarcerated because he was unable to pay prior fees, fines or
assessments. (See Bearden v. Georgia (1983) 461 U.S. 660, 672–673 [fundamental
fairness is violated if a state does not consider alternatives to imprisonment if a
probationer in good faith cannot pay a fine or restitution]; Kingston, supra, 41
Cal.App.5th at p. 281; Hicks, supra, 40 Cal.App.5th at p. 326.)
       The instant case does not present the unique concerns that existed in Dueñas.
There is no evidence to establish or even reasonably suggest that defendant faces ongoing
unintended punitive consequences. Defendant does not establish how he suffered a
violation of a fundamental liberty interest. Since unintended consequences are not
present, it was not fundamentally unfair for the court to impose the fees, fines and
assessments in this matter without first determining defendant’s ability to pay. As such,
the trial court did not violate defendant’s due process rights. (See Kingston, supra, 41
Cal.App.5th at p. 282; Hicks, supra, 40 Cal.App.5th at p. 329.)
       Finally, we find the fines and fees imposed in this case are not grossly
disproportionate to defendant’s level of culpability and thus not excessive under the
Eighth Amendment. (Aviles, supra, 39 Cal.App.5th at p. 1072.)

                                              8.
       Based on this record, we conclude the court’s order did not violate defendant’s
constitutional rights.
                                    DISPOSITION
       The judgment is affirmed.




                                            9.
