People v. Fuentes CA5

Filed 5/7/21 P. v. Fuentes CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081168
Plaintiff and Respondent,
(Super. Ct. No. F20900409)
v.
YOLANDA FUENTES, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Heather
Mardel Jones, Judge.
James Bisnow, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and
William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
INTRODUCTION
Based on an incident that occurred in Fresno County in January 2020, defendant
Yolanda Fuentes was charged with one count of felony child abuse, in violation of Penal
Code section 273a, subdivision (a).1, 2 On March 19, 2020, in exchange for reduction of
the charge to a misdemeanor, defendant pleaded no contest. The trial court suspended
imposition of sentence and placed defendant on formal probation for four years. The
court also imposed, over defendant’s objection based on inability to pay, the minimum
restitution fine of $150 under section 1202.4, subdivision (b)(1); a probation revocation
restitution fine of $150 under section 1202.44, suspended; a court operations assessment
of $40 under section 1465.8, subdivision (a)(1); and a court facilities assessment of $30
under Government Code section 70373, subdivision (a)(1). The court’s order included a
$50 payment plan fee, bringing the total amount of fines, fees, and assessments to $270.
On appeal and in reliance on the Court of Appeal’s decision in People v. Dueñas
(2019) 30 Cal.App.5th 1157 (Dueñas), defendant seeks an order striking the fines, fees,
and assessments imposed given her inability to pay them. She also seeks an order
striking the unexplained $100 “component restitution fine.” The People dispute
defendant’s entitlement to any relief. They argue that the restitution fine is not
unconstitutionally excessive and does not violate due process, that any error in imposing
the nonpunitive court assessments is harmless; and that the total fines, fees, and
assessments amount of $270 is set forth in the record.
We reject defendant’s claim of error entitling her to have $100 stricken from the
fines, fees, and court assessments imposed. We also conclude that imposition of the $150
restitution fine does not violate the excessive fines clause and although we do not agree
1 All further statutory references are to the Penal Code unless otherwise noted.
2 The facts underlying defendant’s crimes are not relevant to the issues raised on appeal
and therefore, we do not summarize them.
2.
that Dueñas was correctly decided, even if we assume error, it is “harmless beyond a
reasonable doubt.” (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)
Therefore, we affirm the judgment.
DISCUSSION
Defense counsel objected to the imposition of fines and court assessments based
on defendant’s inability to pay. The trial court stated that the fines and court assessments
could not be suspended, but noted it did not impose the $250 crime prevention fee under
section 1463.27, subdivision (a), or the $500 probation fee for domestic violence offenses
under section 1203.097, subdivision (a). Relying on Dueñas, defendant now claims the
trial court erred and requests the fines and assessments be stricken. She also requests we
strike the “$100 component restitution fine” imposed without explanation.
Turing first to defendant’s second argument, the trial court orally imposed fines,
fees, and court assessments totaling $270, and placed defendant on a payment plan of $35
per month. The minute order reflects the following breakdown: a $150 restitution fine, a
court security fee of $40, a conviction fee of $30, and a $50 payment plan fee, totaling
$270. While we agree the court appears to have misspoken in part when it referred to a
“$100 component restitution fine,” the court’s oral pronouncement of $270 in total,
which included the minimum restitution fine of $150 and all penalty assessments and
fees, was clear. The specific breakdown was then set forth in the accompanying minute
order. Under these circumstances, defendant fails to show error either requiring
correction or entitling her to an order striking $100 from the fines, fees, and assessments
imposed. (People v. Thompson (2016) 1 Cal.5th 1043, 1097, fn. 11 [“On appeal, we
assume a judgment is correct and the defendant bears the burden of demonstrating
otherwise.”].)
With respect to the merits of defendant’s constitutional claim, Dueñas held that
“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 any fines or fees.
3.
(Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1167.) We disagree with the holding in
Dueñas and find the matter need not be remanded for further findings. As explained in
People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles), we believe Dueñas was wrongly
decided and an Eighth Amendment analysis is more appropriate to determine whether
restitution fines, fees, and assessments in a particular case are grossly disproportionate
and thus excessive. (Aviles, supra, at pp. 1067–1072.) Under that standard, the fines,
fees and assessments imposed in this case, which amount to less than $300, are not
grossly disproportionate to defendant’s level of culpability and the harm she inflicted,
and thus not excessive under the Eighth Amendment. (Aviles, supra, at p. 1072; accord,
People v. Lowery (2020) 43 Cal.App.5th 1046, 1057–1058 (Lowery).)
Even assuming arguendo that we agreed with Dueñas, we would still reject
defendant’s constitutional claims and find that because defendant has the ability to pay
the fines, fees, and assessments imposed in this case, any error “was harmless beyond a
reasonable doubt.” (Chapman, supra, 386 U.S. at p. 24; accord, Lowery, supra, 43
Cal.App.5th at pp. 1060–1061; Aviles, supra, 39 Cal.App.5th at pp. 1075–1077; People v.
Jones (2019) 36 Cal.App.5th 1028, 1035.) “‘“Ability to pay does not necessarily require
existing employment or cash on hand.” [Citation.] “[I]n determining whether a
defendant has the ability to pay a restitution fine, the court is not limited to considering a
defendant’s present ability but may consider a defendant’s ability to pay in the future.”’”
(Aviles, supra, at p. 1076.)
We can infer from the instant record that defendant had the ability to pay the
restitution fine, fees, and assessments mandated for her misdemeanor conviction from
probable future wages. (Lowery, supra, 43 Cal.App.5th at pp. 1060–1061; Aviles, supra,
39 Cal.App.5th at pp. 1076–1077; People v. Douglas (1995) 39 Cal.App.4th 1385, 1397;
People v. Ellis (2019) 31 Cal.App.5th 1090, 1094.) While the record reflects defendant
was not employed at the time of sentencing, she lived with a family member prior to her
arrest and planned to return to that residence, indicating stable housing; she was only 49
4.
years old; there was no indication she had any physical or mental limitations; the total
amount owed was less than $300; and she was only required to pay $35 per month,
beginning three months after her release from custody to allow, in the words of the trial
court, defendant “some time to get [her] feet underneath [her].” (See, e.g., People v.
Potts (2019) 6 Cal.5th 1012, 1056–1057; People v. Lewis (2009) 46 Cal.4th 1255, 1321;
People v. DeFrance (2008) 167 Cal.App.4th 486, 505.) While it may take defendant
time to pay the $270 imposed in this case, these circumstances do not suggest that
defendant is unable to pay $35 per month. (Lowery, at pp. 1060–1061; Aviles, supra, at
pp. 1076–1077.) Notably, defendant had the opportunity to make a contrary record
pursuant to Dueñas, but did not do so. (People v. Montes (2021) 59 Cal.App.5th 1107,
1122 [“‘[T]he evaluation of ability to pay must include future ability to pay,’ and
‘defendant bears the burden of proof on that issue.’”].)
DISPOSITION
The judgment is affirmed.
5.