People v. Rodas CA3 ( 2023 )

Filed 6/13/23 P. v. Rodas 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C096504
Plaintiff and Respondent, (Super. Ct. No. 17FE021142)
v.
ALVARO RODAS,
Defendant and Appellant.
Defendant Alvaro Rodas’s sole argument on appeal is that the trial court erred in
imposing certain fines and fees without complying with People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas). Defendant’s argument fails for three reasons. First,
defendant has forfeited this issue by failing to raise Dueñas below. Second, the trial
court implicitly determined defendant’s ability to pay when it imposed a $10,000
restitution fine. Finally, defendant’s Dueñas argument fails because we disagree with
that decision. Accordingly, we will affirm.
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FACTS AND HISTORY OF THE PROCEEDINGS
The People’s amended information charged defendant with 36 counts of child sex
abuse, possession of child pornography, and other crimes. On June 28, 2021, defendant
resolved this matter by entering conditional pleas of no contest to 11 specified counts,
admitting the multiple victim allegations, and waiving his appellate rights; in exchange,
defendant would receive a stipulated aggregate term of 130 years to life, and the
remaining counts would be dismissed. The stipulated factual basis for defendant’s pleas
was both the preliminary hearing transcript, as well as the facts as set forth by the People
at the plea hearing, which are not recounted here given the limited scope of defendant’s
appellate arguments.
On June 17, 2022, the trial court denied defendant’s motion to withdraw his plea.
The court then sentenced him in accordance with the plea agreement to an aggregate term
of 130 years to life, and the remaining counts were dismissed. As to the fines and fees,
defendant acknowledged the mandatory nature of the restitution fine, but requested
reduction to the statutory minimum. Defendant also requested minimization or waiver of
the remaining fines and fees “to the greatest extent possible,” arguing he would not have
a source of funds because of his incarceration. He did not raise Dueñas or suggest that
imposition of the mandatory fines and fees would violate the constitution. Thereafter, the
trial court imposed a $10,000 restitution fine (Pen. Code § 1202.4) (undesignated
statutory references are to the Penal Code), a matching, stayed $10,000 parole revocation
restitution fine (§ 1202.45), a $440 court operations assessment fee ($40 times 11)
(§ 1465.8), and a $330 court facility fee ($30 times 11) (Gov. Code, § 70373). The court
waived “[a]ny and all other fines and fees.” Defendant did not object to the fines and
fees portion of the court’s decision, but indicated he would appeal the denial of his
motion to withdraw his plea.
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Defendant timely appealed and received a certificate of probable case. Appellate
briefing in this case concluded on March 23, 2023.
DISCUSSION
Defendant complains the trial court’s failure to determine his ability to pay the
fines and fees imposed violates Dueñas requiring this court vacate the fees and stay the
restitution fine imposed unless and until the People prove defendant is able to pay them.
Defendant’s failure to raise Dueñas in the trial court has forfeited this issue on appeal.
(People v. Scott (1994) 9 Cal.4th 331, 351-354 [to preserve a sentencing issue for
appellate review the defendant must raise it in the trial court].)
Further, even if we were to address the merits of defendant’s arguments, they fail.
The trial court implicitly determined defendant’s ability to pay when it imposed a
$10,000 restitution fine over defendant’s request to minimize fines and fees, while
waiving the discretionary ones. (§ 1202.4, subds. (c), (d).) Having determined defendant
was able to pay the $10,000 restitution fine, we do not believe the trial court would have
determined defendant was unable to pay the court operations and court facility fees
imposed.
Finally, regarding the Dueñas decision itself, 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, 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.
(Id. at pp. 95-96.)
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 the fines and assessments at issue in this proceeding. (People v.
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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.) Accordingly, defendant’s claim on appeal fails.
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J.
I concur:
RENNER, J.
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MESIWALA, J., Dissenting.
I respectfully dissent. Dueñas was correctly decided. Under Dueñas, fines, fees,
and assessments cannot be imposed on an indigent defendant, or must be stayed in the
case of a mandatory restitution fine under Penal Code section 1202.4, 1 unless there is a
determination that the defendant has the ability to pay. (People v. Dueñas (2019) 30
Cal.App.5th 1157, 1168, 1172.) A trial court must make that determination when the
defendant contests ability to pay. (People v. Castellano (2019) 33 Cal.App.5th 485, 490.)
Here, defendant requested “that the fines and fees be minimized to the greatest
extent possible, as [he] will be incarcerated, and he will not have, really, a source of
funds.” Under Dueñas, this request was sufficient to contest defendant’s ability to pay
and to require the court to “conduct an ability to pay hearing and ascertain . . .
defendant’s ability to pay before it impose[d]” the fees, fines, and assessments. (People
v. Kopp (2019) 38 Cal.App.5th 47, 95 [agreeing with Dueñas as to this requirement].)
Without requiring any showing of ability to pay or lack thereof, the trial court imposed
the maximum restitution fine of $10,000 (§ 1202.4), a stayed parole revocation fine in the
same amount (§ 1202.45), a $440 court operation assessment (§ 1465.8), and a $330
court facility fee (Gov. Code, § 70373). The court waived all other fines and fees. The
court erred by not conducting the inquiry that Dueñas demands. And such an inquiry and
finding cannot be implied because there is no evidence of ability to pay.
On appeal, the People must show that error was harmless beyond a reasonable
doubt. (People v. Taylor (2019) 43 Cal.App.5th 390, 403.) The People have not met this
burden. According to the record, defendant was 50 years old at the time of sentencing,
was sentenced to 130 years to life in prison, and his employment status, income sources,
and psychological and mental health are unknown. In the trial court, the People did not
1 Undesignated statutory references are to the Penal Code.
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point to any evidence in the record and argue that defendant would be able to work in
prison, nor was defendant given an opportunity to rebut such evidence and arguments.
For these reasons, I would vacate the fines, fees, and assessments above and
remand for the trial court to determine defendant’s ability to pay based on evidence and
arguments of the parties.
MESIWALA, J.
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