People v. Brooks CA3 ( 2022 )

Filed 5/2/22 P. v. Brooks 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Yuba)
----
THE PEOPLE, C094450
Plaintiff and Respondent, (Super. Ct. No. CRF2100970)
v.
WILLIAM LEE BROOKS, JR.,
Defendant and Appellant.
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, defendant William Lee
Brooks, Jr. appeals the imposition of assessments and fines without an ability to pay
hearing. Recognizing his trial counsel did not object to these assessments and fines,
defendant further contends he received ineffective assistance of counsel.
The principles of due process do not require a determination of a defendant’s
present ability to pay before the imposition of the fines and assessments at issue in
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Dueñas and in this proceeding. Thus, we reject his argument and, with that, we
necessarily reject his ineffective assistance of counsel claim. We affirm the judgment.
FACTS AND HISTORY OF THE PROCEEDINGS
The facts underlying defendant’s convictions are irrelevant to our decision on
appeal and are therefore not recounted in detail. Suffice it to say defendant burglarized
his ex-girlfriend’s motel room and assaulted police officers who attempted to apprehend
him. He pleaded no contest to one count of first degree burglary (Penal Code, § 459 –
statutory section citations that follow are to the Penal Code) and three counts of felony
resisting a peace officer (§ 69). He also admitted he had sustained a prior strike
conviction (§ 667, subd. (d)).
At the sentencing hearing, defendant’s trial counsel requested “a reduced
restitution fine given [defendant’s] indigent status.” The trial court then sentenced
defendant to a total term of 12 years in state prison. It also imposed a $300 restitution
fine (§ 1202.4, subd. (b)), imposed and suspended a $300 parole revocation restitution
fine (§ 1202.45), imposed a $40 additional burglary fine (§ 1202.5), a $40 court
operations assessment (§ 1465.8), and a $30 criminal convictions assessment (Gov. Code,
§ 70373). Defendant’s trial counsel did not object to the fees and fines imposed.
Defendant timely appealed.
Defendant later made a motion for a stay of the fines and assessments pursuant to
section 1237.2 pending an ability to pay hearing. The trial court denied the request on the
ground that defendant had waived the objection.
DISCUSSION
Defendant contends the trial court’s imposition of assessments and fines without
first determining his ability to pay violated his constitutional rights and the assessments
and fines must be stayed pending an ability to pay hearing. To the extent defendant
forfeited his challenge to the fees and fines by failing to raise the issue in the trial court,
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defendant argues his trial counsel’s failure to object constituted ineffective assistance of
counsel.
Defendant’s claim hinges on the Dueñas analysis finding due process principles
mandate an ability to pay hearing before imposing fines and assessments. (People v.
Dueñas, supra, 30 Cal.App.5th at p. 1164.) As defendant notes, the Courts of Appeal are
split as to whether Dueñas was correctly decided. Our Supreme Court must resolve this
question, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47, 95-96,
review granted November 13, 2019, S257844, which concluded due process requires the
trial court to conduct an ability to pay hearing before imposing assessments but not
restitution fines.
In the meantime, we join the court in People v. Hicks (2019) 40 Cal.App.5th 320,
review granted November 26, 2019, S258946, and several other courts in concluding that
the principles of due process do not require determination of a defendant’s present ability
to pay before imposing fines and assessments at issue in Dueñas and in this proceeding.
(People v. Cota (2020) 45 Cal.App.5th 786, 794-795; People v. Kingston (2019)
41 Cal.App.5th 272, 279; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v.
Caceres (2019) 39 Cal.App.5th 917, 928.)
We therefore need not decide whether defendant forfeited his ability to pay
argument because this argument is without merit. Failure to assert a meritless position
does not demonstrate ineffective assistance of counsel. (People v. Kipp (1998) 18 Cal.4th
349, 377.)
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DISPOSITION
The judgment is affirmed.
HULL, Acting P. J.
We concur:
DUARTE, J.
EARL, J.
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