Filed 8/28/20 P. v. Peniaranda-Balderas CA3
Opinion following transfer from Supreme Court
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                         (Butte)
                                                            ----




 THE PEOPLE,                                                                                   C087085

                    Plaintiff and Respondent,                                     (Super. Ct. No. 17CF06046)

           v.                                                                     OPINION ON TRANSFER

 ARTHUR KEITH PENIARANDA-BALDERAS,

                    Defendant and Appellant.




         Appointed counsel for defendant Arthur Keith Peniaranda-Balderas filed an
opening brief setting forth the facts of the case and asking this court to review the record
and determine whether there are any arguable issues on appeal. (People v. Wende (1979)
25 Cal.3d 436.) We shall conditionally reverse the judgment and remand for further
proceedings under Penal Code section 1001.36; unless otherwise stated, statutory section


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references that follow are to the Penal Code. In all other respects, we shall affirm the
judgment.

                           FACTS AND PROCEDURAL HISTORY
       We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
       Defendant entered the victims’ home through an unlocked door while they were
asleep inside. He stole the victims’ keys and electronics and then used the keys to steal
their car. He was later stopped by law enforcement for his erratic driving and claimed he
stole the car because he needed money.
       The People charged defendant with first degree burglary, alleging people were
present at the time of the burglary. (§§ 459, 667.5, subd. (c).) The People also alleged
defendant was previously convicted of two strike offenses. (§§ 667, subd. (d), 1170.12,
subd. (b).) Defendant pleaded no contest to burglary, admitted a person was present
during the burglary, and admitted to a prior strike conviction.
       In exchange for defendant’s plea, the People moved the court to strike the
allegation that defendant was convicted of a second strike offense. The court granted the
People’s motion. The trial court subsequently sentenced defendant to the upper term of
six years in state prison, doubled for the prior strike offense. (§ 461, subd. (a) [first
degree burglary punishable by two, four, or six years in state prison].)
       The court also resentenced defendant for his conviction in Tehama County
Superior Court case No. 17CR001625: two years for receiving stolen property (§ 496d,
subd. (a)), and two additional years for enhancement allegations under section 667.5,
subdivision (b). The court ordered those to be served concurrent to defendant’s 12-year
prison sentence in the current case.
       The court then ordered defendant to pay the following fines and fees: a $300
restitution fine (§ 1202.4); a $300 parole revocation fine, which was stayed (§ 1202.45); a


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discretionary section 672 fine totaling $200; a $40 court surcharge (§ 1465.7); a $100
construction fund fee (Gov. Code, § 70372, subd. (a)); a state penalty assessment totaling
$200 (§ 1464); a DNA identification fee totaling $20 (Gov. Code, § 76104.6); a $140
county penalty assessment (§ Gov. Code, § 76000); a theft fine totaling $39 (§ 1202.5); a
court operations assessment of $40 (§ 1465.8); a conviction assessment totaling $30
(Gov. Code, § 70373); and victim restitution in an amount to be determined later. The
trial court also re-imposed those fines and fees previously imposed in case No.
17CR001625.
       Defendant timely appealed; he did not obtain a certificate of probable cause.

                                       DISCUSSION
       Appointed counsel filed an opening brief that sets forth the facts of the case and
asks us to determine whether there are any arguable issues on appeal. (People v. Wende,
supra, 25 Cal.3d 436.) Counsel advised defendant of the right to file a supplemental brief
within 30 days of the date the People filed their opening brief. More than 30 days
elapsed, and we received no communication from defendant. We examined the entire
record and found no arguable error that would result in a disposition more favorable to
defendant. We filed our earlier opinion accordingly.
       Defendant then petitioned for rehearing and asked to submit supplemental briefing
on the issues recently addressed in People v. Dueñas (2019) 30 Cal.App.5th 1157
(Dueñas), and those raised by the amendments to section 1001.36 and mental health
diversion programs. We granted defendant’s petition.
       On, March 24, 2020, we filed our opinion on rehearing, affirming the judgment.
The Supreme Court subsequently granted defendant’s petition for review, directed us to
vacate our decision on rehearing, and further directed us to reconsider defendant’s section
1001.36 claims in light of its recent decision in People v. Frahs (2020) 9 Cal.5th 618
(Frahs). We reconsider those claims here.


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                                                I

                                        Fines and Fees

       In his supplemental brief, defendant claims that pursuant to the holding in Dueñas,
supra, 30 Cal.App.5th at pages 1168, 1172, the portion of the trial court order directing
defendant to pay fines and fees should be stayed pending a hearing on his ability to pay.
       In Dueñas, after numerous citations and convictions related to driving without a
license resulted in significant fines and fees the defendant could not pay, Dueñas
requested a hearing to determine her ability to pay those costs. (Dueñas, supra,
30 Cal.App.5th at pp. 1160-1163.) Following the statutory language, the trial court ruled
that the assessments were mandatory and that Dueñas had not shown the “ ‘compelling
and extraordinary reasons’ ” required to waive the restitution fine. (Id. at p. 1163.)
       The Court of Appeal reversed, holding that due process prohibits a trial court from
imposing court assessments under section 1465.8 and Government Code section 70373,
and requires the trial court to stay execution of any restitution fines, until it ascertains the
defendant’s ability to pay those assessments and fines. (Dueñas, supra, 30 Cal.App.5th
at p. 1164.) To support this conclusion, Dueñas relied on two lines of due process
precedent. First, it cited authorities addressing access to courts and waiving court costs
for indigent civil litigants. Second, it relied on due process and equal protection
authorities that prohibit incarceration based on a defendant’s indigence and inability to
pay a fine or fee. (Id. at pp. 1165-1166, 1168.) The court also concluded that imposing
costs on indigent defendants “blamelessly” unable to pay them transformed a “funding
mechanism for the courts into additional punishment.” (Id. at p. 1168.)
       The appellate court in People v. Hicks (2019) 40 Cal.App.5th 320 (Hicks), review
granted November 26, 2019, S258946, rejected Dueñas’s reasoning, under both lines of
due process authority. Although review has been granted in Hicks, we may still consider
it as persuasive authority. (Cal. Rules of Court, rule 8.1115(e)(1).)


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       Hicks first observed that imposition of fees after a determination of guilt, does not
deny a criminal defendant’s access to the courts, and does not interfere with a defendant’s
right to present a defense or challenge a trial court’s rulings on appeal. (Hicks, supra,
40 Cal.App.5th at p. 326, review granted.) Second, Hicks noted imposition of fees,
without more, does not result in incarceration for nonpayment of fines and fees due to
indigence; thus, it does not infringe on that fundamental liberty interest. (Ibid., review
granted.)
       Hicks went on to conclude that Dueñas’s expansion of these due process
“foundational pillars” was an incorrect interpretation of due process foundations because
it was inconsistent with the principles announced by our Supreme Court and the United
States Supreme Court, that imposition of fines and assessments on indigent defendants is
not prohibited because the State has a fundamental interest in punishing those who
violate the criminal law, and not conferring immunity for such punishment on indigent
defendants. (Hicks, supra, 40 Cal.App.5th at pp. 327-328, review granted.) In addition,
Dueñas’s ruling was inconsistent with the purposes and operation of probation by
relieving an indigent defendant of any duty to make an effort to repay their debt to
society, and giving defendants a significant period of time in which to repay these
financial obligations. (Ibid., review granted.)
       We find the reasoning in Hicks well-founded and persuasive and reject the holding
in Dueñas. We thus conclude the imposition of fines, fees, and assessments on an
indigent defendant does not violate due process and there is no requirement the trial court
conduct an ability to pay hearing prior to imposing these fines, fees, and assessments.

                                             II

                   Mental Health Diversion Program, Section 1001.36

       On March 1, 2018, defendant pleaded no contest to first degree burglary in
violation of section 459 and admitted an allegation that there was a person or persons


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present in the building which he burglarized. He also admitted he had been convicted of
a felony that qualified as a strike within the meaning of sections 667, subdivision (d) and
1170.12, subdivision (b). On March 29, 2018, the trial court sentenced defendant
according to the terms of his plea agreement.
       In his supplemental brief, defendant also contends he should have the benefit of
section 1001.36 effective June 27, 2018. Defendant asks us to remand the matter so the
trial court can determine whether he is eligible for “pretrial diversion” due to a specified
mental disorder under the recently enacted section 1001.36, which he argues is
retroactive as to all cases not yet final. Our Supreme Court recently resolved a conflict in
the opinions of the Courts of Appeal as to whether a defendant could have the benefit of
“pretrial diversion,” as set forth in section 1001.36, post-trial and has decided this issue in
defendant’s favor. (Frahs, supra, 9 Cal.5th 618.) Following Frahs as we must, we will
conditionally reverse the judgment here with directions for the trial court to consider
defendant’s eligibility for mental health diversion under section 1001.36. We express no
view as to whether defendant will be able to show eligibility on remand or whether the
trial court should exercise its discretion to grant diversion if it finds defendant eligible.
                                        DISPOSITION
       The judgment is conditionally reversed. The matter is remanded to the trial court
with directions to hold a diversion eligibility hearing under section 1001.36. If the trial
court finds defendant eligible under that statute, the court may grant diversion. If
defendant then satisfactorily performs in diversion, the trial court shall dismiss the
charges. (§ 1001.36, subd. (e).) If, however, the trial court does not grant diversion, or
the court grants diversion but defendant fails to satisfactorily complete it (§ 1001.36,




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subd. (d)), then the court shall reinstate defendant’s convictions and conduct further
sentencing proceedings as appropriate. In all other respects, the judgment is affirmed.




                                                 HULL, J.



We concur:




BLEASE, Acting P. J.




DUARTE, J.




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