         Filed 8/24/20 P. v. Lane CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT


 THE PEOPLE,                                                         H046646, H047774
                                                                    (Santa Clara County
             Plaintiff and Respondent,                               Super. Ct. No. C1802812)

             v.

 DWANE LEE LANE,

             Defendant and Appellant.



         Appellant Dwane Lee Lane appeals the imposition of fines and fees by the trial
court in his criminal case without holding a hearing on his ability to pay them. For the
reasons set forth below, we affirm the judgment.
                        I. FACTS AND PROCEDURAL BACKGROUND
         The facts of Lane’s offense are irrelevant to the issues in this appeal. On October
10, 2018, Lane was charged by complaint with criminal threats (Pen. Code, § 422).1 On
November 13, 2018, he pleaded no contest to the charge. On December 20, 2018, the
trial court suspended imposition of sentence and placed Lane on formal probation for




         1
             Unspecified statutory references are to the Penal Code.
three years, subject to a variety of terms and conditions, including that he serve 120 days
in the county jail.2
       Regarding the fines, fees, and assessments, the trial court imposed a $330
restitution fine (§ 1202.4, subd. (b)), a suspended $300 probation revocation restitution
fine (§ 1202.44); a $30 criminal conviction assessment (Gov. Code, § 70373), a $40 court
operations assessment (§ 1465.8), a $129.75 criminal justice administration fee (Gov.
Code, §§ 29550, 29550.1, 29550.2), and a probation supervision fee of $25 per month
(§ 1203.1b). Lane did not object to any of these fines or fees or request a hearing on his
ability to pay them. Lane sought and received from the trial court a certificate of
probable cause to appeal the judgment, which the trial court signed on January 22, 2019.
He filed the notice of appeal in February 2019, and this court assigned it docket No.
H046646.
       Lane was alleged to have violated his probation by committing a new crime (a
violation of section 594) on July 9, 2019; by not reporting to probation; and by failing to
provide proof of education, vocational training or employment. Lane was arraigned on
the violation of probation on July 18, 2019. The proceedings on Lane’s alleged
violations of probation continued for several months; he was released from custody on
August 16, 2019.
       In November 2019, Lane filed a request in the trial court (in the form of a letter
written by Lane’s appellate counsel in docket No. H046646) requesting, pursuant to
section 1237.2 and People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), that the trial
court conduct a hearing at which Lane could present evidence of his inability to pay the
fines and fees imposed at the December 20, 2018 sentencing. The letter written by


       2
         Immediately prior to his sentencing, Lane sought to withdraw his plea on the
basis that he regretted having pleaded no contest to a “strike” offense. The trial court
denied Lane’s motion to withdraw his plea. Lane does not appeal the trial court’s order.

                                                 2
appellate counsel did not provide any details about the evidence Lane intended to present
at such a hearing.
       On January 10, 2020, the trial court conducted a hearing on Lane’s request. Lane
himself, who apparently was in bench warrant status in another case, was not present.3 In
response to the request with respect to the fines and fees imposed at sentencing, the trial
court stated “The request for Duenas [sic] is denied, as I don’t think—it’s criticized, and I
don’t think it’s good law.” The trial court also found “there was evidence of continued
employment or long-term employment in the Pretrial Services report for the defendant’s
arrest, so I believe the record does contain an adequate finding of ability to pay by [the
judge who presided over Lane’s sentencing],[4] when the fines and fees were set at the
minimum level.”
       Lane timely appealed the trial court’s January 10, 2020 postjudgment order. This
court assigned docket No. H047774 to this notice of appeal and ordered both docket Nos.
H046646 and H047774 to be considered together for briefing, argument, and disposition.
                                    II. DISCUSSION
       On appeal, Lane argues that the trial court’s imposition of the restitution fine, the
criminal conviction assessment, and the court security and criminal justice administration
fees without a hearing to determine his ability to pay violated his due process rights.5
Alternatively, he contends that the imposition of these fines and fees without a
“meaningful inquiry” into his ability to pay violated the excessive fines clause of the state
and federal constitutions.

       3
         Lane’s counsel noted that Lane had not been notified of the court date. The trial
court replied, “true, but we understand that he’s on bench warrant status for another case
that he’s picked up, so it’s likely that he just might not have been able to come to court,
even if he’s notified.”
       4
         The judge who had originally sentenced Lane was on leave, and the matter had
been reassigned for decision on Lane’s Dueñas request.
       5
         Lane does not challenge on appeal the imposition of the suspended $300
probation revocation restitution fine or the probation supervision fee.
                                                 3
       Lane’s due process argument relies on Dueñas and cases following its reasoning,
including People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019,
S257844 (Kopp). “In January 2019, Dueñas held that ‘due process of law requires [a]
trial court to . . . ascertain a defendant’s present ability to pay before it imposes’ (1) ‘court
facilities and court operations assessments’ (under Pen. Code § 1465.8 and Gov. Code,
§ 70373, respectively), or (2) a restitution fine (under Pen. Code, § 1202.4).” (People v.
Hicks (2019) 40 Cal.App.5th 320, 325, review granted Nov. 26, 2019, S258946.) Panels
of this court and other Courts of Appeal have reached differing conclusions on whether
Dueñas was correctly decided. (See, e.g., Hicks, at pp. 325–329; People v. Santos (2019)
38 Cal.App.5th 923, 933–934 (Santos); People v. Adams (2020) 44 Cal.App.5th 828,
831–832, review den. Apr. 15, 2020, S261092 (Adams); People v. Petri (2020) 45
Cal.App.5th 82, 92.) Moreover, the issue is pending before the California Supreme
Court. (Kopp, supra, 38 Cal.App.5th 47.)6
       For the reasons stated in Adams, supra, 44 Cal.App.5th at pp. 831–832, we
conclude Dueñas was wrongly decided. We also decide Lane’s case is distinguishable on
its facts from the extreme hardships suffered by the defendant in Dueñas. (See Dueñas,
supra, 30 Cal.App.5th, at pp. 1160–1161.) We therefore reject Lane’s argument that his
due process rights were violated by the trial court’s imposition of the minimum fines and
fees required by statute without holding a hearing on his ability to pay them.
       In the alternative, Lane argues that imposition of the fines and fees without a
“meaningful inquiry into [his] ability to pay” violated the excessive fines clauses of the
federal and state constitutions. The Attorney General agrees that the excessive fines
clause provides “the proper analytic framework” for the imposition of fines and fees on


       6
         In particular, the issues pending before the California Supreme Court in Kopp
are: “(1) Must a court consider a defendant’s ability to pay before imposing or executing
fines, fees, and assessments? (2) If so, which party bears the burden of proof regarding
the defendant’s inability to pay?”
                                                   4
criminal defendants. In People v. Cowan (2020) 47 Cal.App.5th 32, review granted, June
17, 2020, S261952, the First District Court of Appeal held that the excessive fines clauses
of the federal and state constitutions dictate that “a sentencing court may not impose
court operations or facilities assessments or restitution fines without giving the defendant,
on request, an opportunity to present evidence and argument why such monetary
exactions exceed his ability to pay.” (Id. at p. 48.)
       While we have doubts whether either of these clauses supports the sweeping
proposition articulated by the court in Cowan, we need not reach that question in this
case. Under the facts here, we conclude that any error by the trial court under the
excessive fines clause in failing to hold an evidentiary hearing on Lane’s request for an
ability-to-pay hearing was harmless beyond a reasonable doubt. (See People v. Jones
(2019) 36 Cal.App.5th 1028, 1035.)
       At sentencing, the trial court imposed the minimum amount of fines and fees
under the relevant statutes—totaling $529.75. Lane was 55 years old when he was
sentenced and was placed on three years of probation. The only evidence in the record
about Lane’s ability to earn money was that he had worked for the past three years as a
parking attendant.7 Lane’s counsel who requested from the trial court the postsentencing
Dueñas hearing did not include any additional facts supporting Lane’s inability to pay
that he intended to establish at such a hearing. Lane himself did not appear for the
hearing.
       Lane has presented no evidence of any kind—even by proffer—that was not
before the trial court at his sentencing hearing that showed he was unable to pay the fines



       7
        Although on appeal Lane argues that this information was “unverified,” this
information was apparently provided by Lane himself. In any event, nothing in the
record on appeal indicates Lane proffered any evidence to the trial court that the
information was incorrect. While on appeal Lane contends that this employment was
only “seasonal,” there is no basis in the record for this assertion.
                                                  5
and fees imposed. For these reasons, Lane has not persuaded us that any reversible error
occurred in the trial court’s decision not to hold a hearing on his ability to pay them.
                                   III. DISPOSITION
       The judgment is affirmed.




                                                  6
                           ______________________________________
                                      Danner, J.




I CONCUR:




____________________________________
Grover, J.




H046646, H047774
People v. Lane
       Greenwood, P.J., Concurring and Dissenting:
       I write separately because I continue to be persuaded by the reasoning in People v.
Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), and agree that the trial court violates a
defendant’s federal constitutional right to due process by imposing fines and fees without
first assessing that individual’s ability to pay them. (See People v. Santos (2019) 38
Cal.App.5th 923 (Santos).) As a result, I dissent from the majority’s analysis of Dueñas.
       However, where the court conducts a hearing regarding a defendant’s ability to
pay fines and fees, the burden is on the defendant to demonstrate the inability to pay
them. (People v. Castellano (2019) 33 Cal.App.5th 485, 490; Santos, supra, 38
Cal.App.5th at p. 934.) Here, appellant did not appear at the hearing his attorney had
requested under Dueñas to modify the previously imposed fines and fees, apparently
because he was on bench warrant status. While the trial court made clear its
disagreement with the Dueñas opinion, information in the Pretrial Services Report
evidenced appellant’s self-reported three years of previous continuous employment.
Appellant’s counsel proffered no evidence demonstrating that appellant could not pay the
minimum fines and fees. Under these circumstances, I concur with the majority that
there is no error compelling reversal here, and the judgment should be affirmed.




                                                1
                       _____________________________
                   `   Greenwood, P.J.




People v. Lane
H046646, H047774
