People v. Hall CA3 ( 2022 )

Filed 10/21/22 P. v. Hall 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(San Joaquin)
----
THE PEOPLE, C095477
Plaintiff and Respondent, (Super. Ct. No.
STKCRFER20210003576)
v.
ALICE MARIE HALL,
Defendant and Appellant.
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant
Alice Marie Hall appeals the imposition of assessments and fines without an ability to
pay hearing. Recognizing her trial counsel did not object to these assessments and fines,
defendant further contends she 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
Dueñas and in this proceeding. Thus, we reject her argument and, with that, we
necessarily reject her ineffective assistance of counsel claim. We strike the unpaid
balance of the 10 percent collection “[s]urcharge” fee no longer enforceable and
otherwise affirm the judgment.
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FACTS AND HISTORY OF THE PROCEEDINGS
On October 16, 2020, defendant stole a vehicle valued more than $950. Defendant
was charged with grand theft (Pen. Code, § 487, subd. (a); statutory section citations that
follow are found in the Penal Code unless otherwise stated), uttering a fictitious check
(§ 476), unlawful driving or taking a vehicle (Veh. Code, § 10851, subd. (a)), and
receiving stolen property (§ 496d, subd. (a)).
On October 4, 2021, defendant pleaded no contest to unlawfully taking a vehicle.
The remaining counts were dismissed. That same day, the trial court suspended
imposition of sentence and placed defendant on two years of informal probation with 120
days in jail. The trial court also stated, “the fine is $400,” in addition to “a $300
probation revocation fine, which is stayed.” The minute order for the hearing showed the
$400 fine was comprised of a $300 restitution fine (§ 1202.40), a $40 security fee
(§ 1465.8), a $30 convictions assessment (Gov. Code, § 70373), and a $30 “[s]urcharge”
(§ 1202.4, subd. (l)). The trial court asked defendant whether she could pay the $400 fine
within two months or if she needed payments. Defendant responded, “I can pay that as
soon as I get out.” Defendant timely appealed.
Defendant’s appellate counsel filed a request with the trial court to stay the fines
and fees, which the trial court denied on June 14, 2022.
DISCUSSION
I
Challenged Fines and Fees
Defendant contends the trial court’s imposition of assessments and fines without
first determining her ability to pay violated her constitutional rights and the assessments
and fines must be stayed pending an ability to pay hearing. To the extent defendant
forfeited her challenge to the fees and fines by failing to raise the issue in the trial court,
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defendant argues her 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. (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 her 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.)
II
Restitution Surcharge
Though not addressed by defendant, the $30 “[s]urcharge” fee imposed under
section 1202.4, subdivision (l), is no longer enforceable. While this appeal was pending,
the Legislature reduced or eliminated many criminal fees. Relevant here, Assembly Bill
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No. 177 (2021-2022 Reg. Sess.), operative January 1, 2022, repealed section 1202.4 and
reenacted it without subdivision (l), which had permitted counties to “impose a fee to
cover the actual administrative cost of collecting the restitution fine, not to exceed 10
percent of the amount ordered to be paid.” (Stats. 2021, ch. 257, § 20; former § 1202.4,
subd. (l).) Under this legislation, the balance of court-imposed costs pursuant to
section 1202.4 “shall be unenforceable and uncollectible” on or after January 1, 2022.
(Stats. 2021, ch. 257, § 35; § 1465.9, subd. (b).) Hence, the balance of this fee must be
vacated.
DISPOSITION
We strike the unpaid balance of the 10 percent collection fee, as of January 1,
2022, which had been imposed under former section 1202.4, subdivision (l). The
superior court is directed to amend the minute order/probation order to reflect this
modification. The judgment is otherwise affirmed.
HULL, Acting P. J.
We concur:
DUARTE, J.
KRAUSE, J.
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