People v. Gonzalez CA4/1 ( 2024 )

Filed 10/18/24 P. v. Gonzalez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D082785
Plaintiff and Respondent,
v. (Super. Ct. No. SCE412529)
TOMAS GONZALEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Selena D. Epley, Judge. Affirmed.
Richard Jay Moller, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Eric A. Swenson and Monique Myers, Deputy Attorneys General, for Plaintiff
and Respondent.
I. INTRODUCTION
Tomas Gonzalez appeals from his four-count child molestation
conviction, challenging only the trial court’s imposition of a $10,000
restitution fine. Finding his claim unsupported, we affirm.
II. BACKGROUND
After appellant repeatedly molested his minor stepdaughter, a jury
convicted him of four counts of lewd acts upon a child under 14 (Pen. Code,1
§ 288, subd. (a)). The jury also found that Gonzalez had substantial sexual
conduct with the victim in one of the counts.
The trial court sentenced Gonzalez to prison for 12 years and imposed
various fines and assessments, including a $10,000 restitution fine (§ 1202.4,
subd. (b)).2 Gonzalez’s private trial counsel requested that the trial court
stay or not impose any fines or fees because Gonzalez was indigent and did
not pay for his legal services. Acknowledging that Gonzalez was not working,
the court referenced Gonzalez’s ability to post a $400,000 bail bond and
denied the request. The current appeal followed.
III. DISCUSSION
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas),
Gonzalez argues the trial court erred in imposing the $10,000 restitution fine.
1 All undesignated statutory references are to the Penal Code.
2 The court also imposed a $10,000 suspended probation revocation
restitution fine (§ 1202.45), a $160 court operations assessment (§ 1465.8), a
$120 criminal conviction assessment (Gov. Code, § 70373), a $300 sex
offender registration fine (§ 290.3), and victim restitution in an amount to be
determined (§ 1202.4, subd. (f)).
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He claims the fine is not supported by substantial evidence because he is
indigent, he did not pay for his private trial counsel, and his anticipated
prison wages are insufficient to pay the fine. Gonzalez further contends that
his posting of bail, by itself, does not establish his ability to pay the
restitution fine.
A. Restitution Fines and Dueñas
When a defendant is convicted of a felony, the court shall impose a
restitution fine between $300 and $10,000 unless there are compelling and
extraordinary reasons for not doing so. (§ 1202.4, subd. (b), (b)(1).) “The
restitution fine shall be set at the discretion of the court and commensurate
with the seriousness of the offense.” (§ 1202.4, subd. (b)(1).)
Dueñas held that criminal defendants have a due process right to an
ability to pay hearing before fines and fees are imposed. (Dueñas, supra,30 Cal.App.5th at pp. 1166–1172.) As for restitution fines like the one
Gonzalez challenges, the court held the fine should be imposed as required
under section 1202.4, subdivision (b), but stayed unless the People
demonstrate that the defendant has the present ability to pay the fine.3
(Dueñas, at pp. 1164, 1172.)
B. This Court’s Interpretation of Dueñas
In People v. Kopp (2019) 38 Cal.App.5th 47, 96, review granted
November 13, 2019, S257844 (Kopp), we disagreed with Dueñas to the extent
it suggests the People have the burden to prove that a defendant can pay a
fine. Instead, we held, “It is the defendant who bears the burden of proving
3 Dueñas also addressed other fines; namely, court facilities and
operations assessments (§ 1465.8; Gov. Code, § 70373). (Dueñas, at
pp. 1164–1169.) Because Gonzalez only challenges his restitution fine, we
likewise limit our analysis to that issue.
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an inability to pay.” (Ibid.) We further noted a trial court is not limited to
looking at a defendant’s present ability to pay, but also considers a
defendant’s future wages. (Ibid.)
We also disagreed with Dueñas’s due process approach to restitution
fines. (Kopp, supra, 38 Cal.App.5th at p. 96.) We determined “there is no due
process requirement that the court hold an ability to pay hearing before
imposing a punitive fine and only impose the fine if it determines the
defendant can afford to pay it.” (Id. at pp. 96–97.) “[B]ecause these fines are
intended to punish defendants,” we held “a defendant should challenge such
fines under the excessive fines clause of the Eighth Amendment of the federal
Constitution,” as well as the similar provision in article I, section 17 of the
California Constitution. (Kopp, at p. 96.)
Using an Eighth Amendment analysis, the court assesses whether the
fine is “ ‘grossly disproportional to the gravity of a defendant’s offense’ and
thus ‘excessive.’ ” (People v. Aviles (2019) 39 Cal.App.5th 1055, 1061.) In
making that determination, the defendant’s ability to pay is only one of four
factors to consider. (Kopp, supra, 38 Cal.App.5th at pp. 97–98.) The other
three are “(1) the defendant’s culpability; (2) the relationship between the
harm and the penalty; [and] (3) the penalties imposed in similar statutes.”
(Id. at p. 97.)
The California Supreme Court is currently considering Kopp. The
questions that court will answer are: “Must a court consider a defendant’s
ability to pay before imposing or executing fines, fees, and assessments? If
so, which party bears the burden of proof regarding defendant’s inability to
pay?” (People v. Kopp (2019) 254 Cal.Rptr.3d 637.) Our Supreme Court has
also granted review in related cases, including People v. Cowan (2020)
47 Cal.App.5th 32, review granted June 17, 2020, S261952, which similarly
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applied the Eighth Amendment to evaluate fines and fees, and People v.
Hicks (2019) 40 Cal.App.5th 320, review granted November 26, 2019,
S258946, which rejected Dueñas’s due process analysis.4
C. Standard of Review
“ ‘ “We review de novo whether a fine is constitutionally excessive and
therefore violates the Eighth Amendment’s Excessive Fines Clause.” ’ ” (Lent
v. California Coastal Com. (2021) 62 Cal.App.5th 812, 856.) However, “[w]e
review the ‘underlying factual findings . . . for substantial evidence, viewing
the record in the light most favorable to the ruling.’ ” (Id. at p. 857.) Those
factual findings “ ‘ “must be accepted unless clearly erroneous.” ’ ” (Ibid.)
D. Analysis
Gonzalez’s $10,000 restitution fine is punitive. (See Kopp, supra,38 Cal.App.5th at p. 96.) Accordingly, we analyze the fine’s propriety under
the Eighth Amendment to the United States Constitution and its state
constitutional counterpart. (Kopp, at p. 96.)
In his opening brief, Gonzalez offers no argument or authority to show
that his restitution fine violated the Eighth Amendment. In failing to file a
reply brief, Gonzalez also did not respond to the People’s contention that the
fine was not excessive under the applicable Eighth Amendment analysis.
Gonzalez merely challenges his restitution fine under Dueñas and his ability
to pay. This challenge fails because we disagree with Dueñas, and Gonzalez’s
ability to pay is only one of four factors we must consider in assessing the
fine’s validity. We interpret this as Gonzalez conceding that the other three
factors we consider under the Eighth Amendment analysis support the
4 We subsequently agreed with Hicks in People v. Cota (2020)
45 Cal.App.5th 786, 795.
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restitution fine. (See, e.g., Holden v. City of San Diego (2019) 43 Cal.App.5th
404, 418 [“ ‘Issues do not have a life of their own: if they are not raised or
supported by [substantive] argument or citation to authority, we consider the
issues waived.’ ”].) Indeed, both Gonzalez’s culpability and the harm he
caused are significant because he repeatedly molested his minor
stepdaughter. Nor are we aware of any other “penalties imposed in similar
statutes” that would make Gonzalez’s fine excessive by comparison. (Kopp,
supra, 38 Cal.App.5th at p. 97.) A $10,000 fine is therefore not grossly
disproportionate under these circumstances.
We also find unpersuasive Gonzalez’s assertion of inability to pay. His
claim of insufficient prison wages is not convincing because the court may
also consider his ability “ ‘to earn money after his release from custody.’ ”
(People v. Aviles, supra, 39 Cal.App.5th at p. 1076.) Pursuant to Gonzalez’s
sentencing statement in mitigation, he will have reasonable earning potential
upon his release. He previously “ran a skateboard company and worked as a
foreman at a low voltage company,” “he plans to build off of his bachelor’s
degree in Entrepreneurship . . . by studying Accounting or Business
Marketing,” and he is focused on “starting a professional career.” Further,
Gonzalez’s inability to pay for defense counsel is not decisive because
Gonzalez may yet gather resources over time to pay his fines and fees. (See
Aviles, at pp. 1075–1076 [“ ‘[a] defendant may lack the “ability to pay” the
costs of court-appointed counsel yet have the “ability to pay” a restitution
fine’ or other fees imposed by the trial court”].) Finally, as noted by the trial
court, Gonzalez was able to post a $400,000 bail bond, indicating he had
financial resources prior to his incarceration. On this record, Gonzalez did
not carry his burden of establishing inability to pay the restitution fine.
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We find Gonzalez’s challenge to the restitution fine lacks merit. We
therefore affirm the judgment.
IV. DISPOSITION
The judgment is affirmed.
RUBIN, J.
WE CONCUR:
McCONNELL, P. J.
O’ROURKE, J.
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