People v. Hopkins CA3 ( 2021 )

Filed 5/24/21 P. v. Hopkins CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C092027
Plaintiff and Respondent, (Super. Ct. Nos. 19CF02691,
19CF02339)
v.
JOHN DOUGLAS HOPKINS,
Defendant and Appellant.
Defendant John Douglas Hopkins pleaded guilty to failure to appear on his own
recognizance and first degree burglary, and he admitted an out-of-custody enhancement.
On appeal, he relies on People v. Dueñas (2019) 30 Cal.App.5th 1157 to contend the trial
court violated his constitutional rights to due process and equal protection and to be free
from excessive fines by imposing various fees, fines, and assessments without first
determining his ability to pay. To the extent he failed to object to the financial
obligations when imposed, he argues his counsel was constitutionally ineffective.
1
We reject the Dueñas challenge and derivative ineffective assistance claim and
affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In case No. 19CF02339 (No. 2339), defendant’s probation officer reported that
defendant failed to appear for a court hearing in another pending criminal case, and a
bench warrant was issued for his arrest. Defendant was charged with failure to appear on
his own recognizance (Pen. Code, § 1320, subd. (b)),1 and it was alleged that he was out
of custody within the meaning of section 12022.1 at the time of the offense.
In case No. 19CF02691 (No. 2691), the probation officer reported that defendant
walked near the window of a residence, proceeded to the front porch, and attempted to
open the front door of the home. Approximately one month later, he entered another
residence and attempted to remove several electronic items. He was charged with first
degree burglary (§ 459; count 1) and misdemeanor prowling (§ 647, subd. (h); count 2).
As to count 1, it was further alleged that defendant was out of custody within the
meaning of section 12022.1 at the time of the offense and that he had served a prior
prison term within the meaning of section 667.5, subdivision (b).
Defendant pleaded guilty to failure to appear on his own recognizance in No. 2339
and to first degree burglary in No. 2691, and he admitted the section 12022.1 allegation
in No. 2691. In exchange, the remaining charges and allegations were dismissed, and
defendant faced a maximum term of eight years eight months in state prison. On May 27,
2020, the trial court sentenced him to an aggregate term of six years eight months in state
prison. The court imposed fees, fines, and assessments without objection, and awarded
defendant custody and conduct credits.
Defendant timely appealed.
1 Further undesignated statutory references are to the Penal Code.
2
DISCUSSION
For each case, the trial court imposed various fines, fees, and assessments at
sentencing that included a $300 restitution fine (§ 1202.4, subd. (b)), a $300 parole
revocation restitution fine, suspended unless parole was revoked (§ 1202.45), a $30 court
facilities assessment (Gov. Code, § 70373), a $40 court operations assessment (§ 1465.8),
and a $10 theft fine plus penalties in No. 2691 (§ 1202.5).
Relying primarily on People v. Dueñas, supra, 30 Cal.App.5th 1157, defendant
argues the imposition of these fees, fines, and assessments without an ability to pay
hearing violated his rights to due process and equal protection as well as the Eighth
Amendment prohibition against excessive fines. Alternatively, he contends his counsel
was ineffective for failing to object on ability to pay grounds. The People contend
defendant forfeited his Dueñas challenge, and that he cannot show prejudice from his
counsel’s failure to object below.
Regardless of whether defendant forfeited the issue,2 we are not persuaded that
Dueñas was correctly decided. Our Supreme Court is now poised to resolve this
question, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review
granted November 13, 2019, S257844, which agreed with the court’s conclusion in
Dueñas that due process requires the trial court to conduct an ability to pay hearing and
ascertain a defendant’s ability to pay before it imposes court facilities and court
operations assessments under section 1465.8 and Government Code section 70373, but
found, contrary to Dueñas, that the same did not apply for restitution fines under section
1202.4. (Kopp, at pp. 95-96.)
2 We need not reach the issue of forfeiture; because defendant raises an ineffective
assistance claim, we would exercise our discretion to address the issue on the merits even
if the issue were forfeited. (See People v. Riel (2000) 22 Cal.4th 1153, 1192.)
3
In the meantime, we join those authorities that have concluded the principles of
due process do not require a determination of a defendant’s present ability to pay before
imposing the fines and assessments at issue in Dueñas and in this proceeding. (People v.
Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320,
329, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th
1055, 1069 (Aviles); People v. Caceres (2019) 39 Cal.App.5th 917, 928.)
Having done so, we reject defendant’s Dueñas challenge to the above-referenced
fines, fees, and assessments and the derivative claim of ineffective assistance of counsel.
(People v. Kipp (1998) 18 Cal.4th 349, 377 [failure to assert a meritless defense does not
demonstrate ineffective assistance of counsel].)
To the extent imposing potentially unpayable fees or fines on indigent defendants
raises constitutional concerns, we agree with the reasoning in People v. Kopp,
38 Cal.App.5th at pages 96-97 that such challenges are properly analyzed under the
excessive fines clause, which limits the government’s power to extract payments as
punishment for an offense. (Aviles, supra, 39 Cal.App.5th at p. 1069.) But we disagree
that defendant’s restitution fines in each case of the minimum $300 are excessive.
“ ‘The Eighth Amendment prohibits the imposition of excessive fines. The word
“fine,” as used in that provision, has been interpreted to be “ ‘a payment to a sovereign as
punishment for some offense.’ ” [Citation.]’ [Citation.] The determination of whether a
fine is excessive for purposes of the Eighth Amendment is based on the factors set forth
in [United States v. Bajakajian (1998) 524 U.S. 321]. [Citation.]
“ ‘The touchstone of the constitutional inquiry under the Excessive Fines Clause is
the principle of proportionality: The amount of the forfeiture must bear some
relationship to the gravity of the offense that it is designed to punish. [Citations.] . . . [A]
punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to
the gravity of a defendant’s offense.’ [Citation.]
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“The California Supreme Court has summarized the factors in Bajakajian to
determine if a fine is excessive in violation of the Eighth Amendment: ‘(1) the
defendant’s culpability; (2) the relationship between the harm and the penalty; (3) the
penalties imposed in similar statutes; and (4) the defendant’s ability to pay. [Citations.]’
[Citations.] While ability to pay may be part of the proportionality analysis, it is not the
only factor. [Citation.]” (Aviles, supra, 39 Cal.App.5th at p. 1070.)
We review the excessiveness of a fine challenged under the Eighth Amendment de
novo. (Aviles, supra, 39 Cal.App.5th at p. 1072.) Having done so here, we find the $300
restitution fines imposed here are not grossly disproportional to the gravity of defendant’s
crimes or culpability. (See United States v. Bajakajian, supra, 524 U.S. 321; People ex
rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728; Aviles, at p. 1072.)
Further, ability to pay alone is not dispositive to an excessive fines analysis. (Aviles, at p.
1070.) This challenge fails.
DISPOSITION
The judgment is affirmed.
/s/
Duarte, J.
We concur:
/s/
Murray, Acting P. J.
/s/
Krause, J.
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