People v. Pacheco CA6 ( 2022 )

Filed 8/26/22 P. v. Pacheco 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, H047843
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 213441)
v.
ROBERT PACHECO,
Defendant and Appellant.
THE COURT 1
Defendant Robert Pacheco appeals from the judgment imposed after he pleaded no
contest to participating in a criminal street gang (Pen. Code, § 186.22, subd. (a)),2
conspiracy to sell methamphetamine (§ 182, subd. (a)(1) and Health & Saf. Code,
§ 11379), second degree robbery (§§ 211-212.5, subd. (c)), and possession of an assault
weapon (§ 30605, subd. (a)). On appeal Pacheco contends that the trial court erred in not
striking certain assessments and that his counsel provided ineffective assistance of
counsel. For the reasons set forth below, we affirm.
1 Before Greenwood, P. J., Grover, J. and Wilson, J.
2 Future undesignated statutory references are to the Penal Code.
I. PROCEDURAL BACKGROUND3
After Pacheco pleaded no contest in accordance with the negotiated disposition,
the court sentenced him to 19 years in prison. At sentencing, the trial court ordered
Pacheco to pay a $280 restitution fine (§ 1202.4, subd. (b)(2)),4 a $280 suspended parole
revocation fine (§ 1202.45), a $160 court operations assessment (§ 1465.8), and a $120
criminal conviction assessment (Gov. Code, § 70373). The court stated at the sentencing
hearing that it had considered Pacheco’s “ability to earn while in prison” in imposing the
penalties, fines, and assessments. The court then asked whether either party had anything
further to add, to which Pacheco’s counsel replied, “No, just that Mr. Pacheco was
appointed counsel and he was indigent.” Pacheco’s counsel did not request a ruling on
Pacheco’s ability to pay the assessments based on People v. Dueñas (2019) 30
Cal.App.5th 1157 (Dueñas).5 Pacheco timely appealed.
While the appeal was pending, Pacheco’s appellate counsel filed a motion in the
trial court requesting that the court strike the operations assessment and criminal
conviction assessment pursuant to Dueñas. Appellate counsel argued that the court
should strike the assessments because a prisoner is not guaranteed employment within the
California prison system, and if employed, the rate of pay is very low, such that it would
take Pacheco many years to pay the assessments imposed at his sentencing.
The trial court denied the motion to strike the assessments. In its order, the court
stated that Pacheco had not shown that the sentencing court did not consider his ability to
pay the assessments. The court further noted that Pacheco had not shown an inability to
work while incarcerated, but instead contended only that it would take him years to pay
the challenged assessments.
3 We have omitted the facts of the offense because they are not relevant to the
analysis and disposition of this appeal.
4 Pacheco waived his right to appeal the restitution fine.
5 The decision in Dueñas was issued approximately one year before Pacheco’s
sentencing.
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II. DISCUSSION
Pacheco contends that the post-judgment court abused its discretion in denying his
motion to strike the court operations and criminal conviction assessments. In the
alternative, he argues that his attorney’s failure to request that the court strike the
assessments under Dueñas at sentencing constituted a denial of his right to effective
assistance of counsel under the Sixth and Fourteenth Amendments. The Attorney
General argues that the court acted within its discretion in considering Pacheco’s
potential prison wages and that Pacheco’s ineffective assistance claim fails because he
cannot show that counsel’s deficient performance, if any, caused him prejudice.
In Dueñas, the court held that a trial court must conduct a hearing and ascertain an
ability to pay before requiring a defendant to pay assessments under section 1465.8 and
Government Code section 70373, or a restitution fine under section 1202.4. (Dueñas,
supra, 30 Cal.App.5th at p. 1164.) Assuming without deciding that Dueñas was correctly
decided, we conclude that the trial court did not abuse its discretion in denying Pacheco’s
post-appeal motion to strike the assessments.6 We review a trial court’s determination
that a defendant has the ability to pay fines and fees imposed at sentencing for abuse of
discretion. (See People v. Lewis (2009) 46 Cal.4th 1255, 1321.) A trial court does not
abuse its discretion unless its decision is so irrational or arbitrary that no reasonable
person could agree with it. (People v. Carmony (2004) 33 Cal.4th 367, 377.)
A court may consider the wages a defendant could earn in prison in determining
an ability to pay under Dueñas. (People v. Oliver (2020) 54 Cal.App.5th 1084, 1101.)
Moreover, just because it may take many years to earn the amount owed in fees and fines
with prison wages does not mean a defendant lacks the ability to pay under Dueñas.
(People v. Aviles (2019) 39 Cal.App.5th 1055, 1077.) Therefore, finding that Pacheco
6The issues decided in Dueñas are currently under review in the California
Supreme Court in People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13,
2019, S257844.
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had the ability to pay the assessment based on potential prison wages was not an abuse of
discretion.
Pacheco’s ineffective assistance of counsel claim also fails. To establish
ineffective assistance of counsel, a defendant must show that: (1) counsel’s performance
fell below an objective standard of reasonableness under prevailing professional norms;
and (2) the deficient performance prejudiced the defendant. (Strickland v. Washington
(1984) 466 U.S. 668, 687 (Strickland).) To meet the Strickland standard for prejudice, a
defendant must show that there is a reasonable probability that, but for counsel’s deficient
performance, the result of the proceeding would have been different. (Id. at p. 694.)
Pacheco has not shown that there is a reasonable probability that, had trial counsel
requested the court to make an an ability-to-pay finding under Dueñas, it would not have
imposed the assessments. First, the court did address Pacheco’s ability to pay the
imposed assessments, and found he would be able to pay based on prison wages.
Pacheco cannot show that raising the issue separately under the Dueñas framework
would have changed the court’s reasoning or conclusion.
Second, substantial evidence supported the court’s determination at the sentencing
hearing that Pacheco would be able to pay the $280 in assessments with wages he could
earn during the lengthy prison term imposed in this case. (See People v. Johnson (2019)
35 Cal.App.5th 134, 139-140 [failure to challenge fees under Dueñas is harmless where
defendant can earn the $370 in fees owed during his eight-year prison term].) Because
Pacheco has not shown that he was prejudiced by trial counsel’s failure to raise the
Dueñas issue, he cannot show that he was denied effective assistance of counsel.
III. DISPOSITION
The judgment is affirmed.
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