People v. Thomas CA3 ( 2021 )

Filed 11/22/21 P. v. Thomas 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C092743
Plaintiff and Respondent, (Super. Ct. No. 19FE019347)
v.
PHILLIP ANTONIO THOMAS,
Defendant and Appellant.
Defendant Phillip Antonio Thomas pleaded no contest to lewd and lascivious
conduct with a child under the age of 14 years and admitted a prior strike conviction.
The court sentenced defendant to 17 years in prison and ordered him to pay statutory
fines, fees, and assessments. Defendant contends the court violated his constitutional
right to due process by imposing fines and fees without first inquiring into his ability to
pay, pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). He also
contends the $300 restitution fine was excessive under the Eighth Amendment and
violated due process and equal protection. We affirm the judgment.
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BACKGROUND
Defendant grabbed an 11-year-old girl by the arm inside a store and tried to bring
her outside before being stopped by the girl’s grandmother. He later admitted he
intended to sexually assault the girl.
Defendant was charged with lewd and lascivious conduct with a child under the
age of 14 years (Pen. Code, § 288, subd. (a)), 1 attempted kidnapping for the purpose of
violating section 288 (§§ 664, 207, subd. (b)), and indecent exposure (§ 314). It was also
alleged that defendant had been convicted of two serious and violent felonies under
sections 667, subdivision (e)(2) and 1170.12, subdivision (c)(2), and one of these was
also a prior serious felony under section 667, subdivision (a).
Defendant pleaded no contest to the charge of lewd and lascivious conduct with a
child under the age of 14 years and admitted one prior strike conviction.
On August 26, 2020, the trial court sentenced defendant to the middle term of six
years, doubled for the prior strike, and an additional five years for the prior conviction
under section 667, subdivision (a), for a total of 17 years. The court also imposed a $300
restitution fine (§ 1202.4), a stayed $300 parole revocation restitution fine (§ 1202.45), a
$40 court operations assessment (§ 1465.8), and a $30 criminal conviction assessment
(Gov. Code, § 70373).
On September 14, 2020, defendant appealed.
On October 26, 2020, defendant’s counsel filed a request with the trial court under
section 1237.2 to reconsider the fines and fees imposed. The trial court denied the
request.
1 Undesignated statutory references are to the Penal Code.
2
DISCUSSION
Defendant argues that the trial court’s imposition of the restitution fine,
corresponding parole revocation fine, and the court operations and conviction
assessments violated his constitutional rights because the trial court did not determine his
ability to pay before imposing them. Defendant also contends the restitution fine violates
the Eighth Amendment’s prohibition against excessive fines. He asks this court for a stay
so the trial court can conduct a hearing on his ability to pay each of these fines and
assessments.
Defendant’s argument relies primarily on Dueñas, supra, 30 Cal.App.5th 1157,
which held “due process of law requires the trial court to conduct an ability to pay
hearing and ascertain a defendant’s present ability to pay before it imposes court facilities
and court operations assessments under . . . section 1465.8 and Government Code section
70373.” (Dueñas, at p. 1164.) The Dueñas court also held “that although . . . section
1202.4 bars consideration of a defendant’s ability to pay unless the judge is considering
increasing the fee over the statutory minimum, the 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.” (Ibid.)
The Attorney General responds by arguing this claim is forfeited by defendant’s
failure to raise the issue of his ability to pay in the trial court. Assuming, without
deciding, defendant’s challenges to these restitution fines and assessments have not been
forfeited,2 we conclude Dueñas was wrongly decided and therefore reject defendant’s
claim on that basis.
2 We decline to decide whether there was any forfeiture; even if there were, because
defendant also now raises an ineffective assistance claim, we would exercise our
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I
Imposition of Mandatory Assessments
We first address defendant’s arguments regarding the trial court’s imposition of
the mandatory court operations assessment and conviction assessment violated his
constitutional rights without an ability to pay hearing. 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.
(Kopp, at pp. 95-96.)
In the meantime, we join 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 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 mandatory assessments.
II
Prohibition on Excessive Fines
We also reject defendant’s Eighth Amendment argument. “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.” ’ ” (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1040 (Gutierrez) (conc.
discretion to address the issue on the merits. (See People v. Riel (2000) 22 Cal.4th 1153,
1192.)
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opn. of Benke, J.).) 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 [141 L.Ed.2d 314] (Bajakajian). (See People ex rel. Lockyer v. R.J.
Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728-729 [applying Eighth Amendment
analysis to both defendant’s federal and state excessive fines claims].)
“ ‘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.’ (Bajakajian, supra, 524 U.S. at p. 334.)
“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.]’
(People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at p. 728; see
Gutierrez, supra, 35 Cal.App.5th at p. 1040 (conc. opn. of Benke, J.).) While ability to
pay may be part of the proportionality analysis, it is not the only factor. (Bajakajian,
supra, 524 U.S. at pp. 337-338.)” (Aviles, supra, 39 Cal.App.5th at p. 1070.) We review
the excessiveness of a fine challenged under the Eighth Amendment de novo. (Aviles, at
p. 1072.)
Here, we conclude the $300 restitution fine imposed for lewd and lascivious
conduct with a child under 14 years old is not grossly disproportional to the level of harm
and defendant’s culpability in this matter. Defendant attempted to kidnap a child and
then admitted he had intended to sexually assault her. At the sentencing hearing, the
victim’s mother testified that the child now “fears going places” and is scared “that
somebody may try to abduct her again.” Under these circumstances, the $300 restitution
fine imposed in this case is not excessive under the Eighth Amendment.
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III
Equal Protection
Finally, we also reject defendant’s challenge of the $300 restitution fine as
violating equal protection without consideration of his ability to pay.
As noted in Aviles, supra, 39 Cal.App.5th 1055, “Dueñas’s due process and equal
protection analysis was improperly based on a series of cases that addressed the concern
‘that due process and equal protection guaranteed an indigent criminal defendant a free
transcript of trial proceedings in order to provide that defendant with access to a court of
review, where he [or she] would receive an adequate and effective examination of his
criminal conviction. [Citation.]’ (Gutierrez, supra, 35 Cal.App.5th at p. 1039 (conc.
opn. of Benke, J.).) Dueñas’s reliance on certain statutes was also incorrect because
‘these statutes instead ensure that all people, without regard to economic status, have
equal access to our justice system.’ (Ibid.) The fine and assessments imposed on the
probationer in Dueñas did not raise ‘an issue of access to our courts or justice system’ or
satisfy ‘the traditional due process definition of a taking of life, liberty or property.’
(Ibid.) ‘[There is] no general due process and equal protection authority which requires a
court to conduct a preassessment present ability-to-pay hearing before imposing any fine
or fee on a defendant, as Dueñas seems to conclude.’ ” (Aviles, at pp. 1068-1069, italics
omitted.) We agree and conclude the trial court did not violate equal protection in not
conducting an ability to pay hearing prior to imposing the $300 restitution fine.
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DISPOSITION
The judgment is affirmed.
/s/
Hoch, J.
We concur:
/s/
Raye, P. J.
/s/
Murray, J.
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