People v. Dearing CA3

Filed 8/27/21 P. v. Dearing 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
----
THE PEOPLE, C092010
Plaintiff and Respondent, (Super. Ct. No. 19CF06518)
v.
SHAWN BRIAN DEARING,
Defendant and Appellant.
On February 26, 2020, defendant Shawn Brian Dearing pleaded no contest to
reckless evading a police officer. (Veh. Code, § 2800.2, subd. (a).)
On May 13, 2020, consistent with the terms of his plea agreement, the trial court
sentenced defendant to three years in state prison, awarded him 441 days of custody
credit, and ordered him to pay “the mandatory fines and fees.” Those fees included a
$300 restitution fine (Pen. Code, § 1202.4), a $300 parole revocation fine (suspended)
(Pen. Code, § 1202.45), a $40 court operations assessment (Pen. Code, § 1465.8), and a
$30 conviction assessment (Gov. Code, § 70373). On July 21, 2020, appellate counsel
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filed a letter pursuant to Penal Code section 1237.2 requesting that the trial court stay the
fines and fees pending an ability to pay hearing. The trial court denied the request on
July 30, 2020, noting that this court has “consistently rejected” People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas).
Invoking Dueñas, supra, 30 Cal.App.5th 1157, defendant argues the trial court
violated constitutional principles by imposing costs despite finding an inability to pay,
and without holding a hearing to determine defendant’s ability to pay. He argues the fees
imposed should be stayed unless and until the prosecution proves he has the present
ability to pay those costs.
The People argue defendant has forfeited this argument on appeal, because he did
not object to the trial court’s imposition of costs. Defendant attempts to circumvent
forfeiture by arguing trial counsel was ineffective for failing to raise the issue in the trial
court.
We need not resolve the questions of forfeiture and effective assistance of counsel,
because we conclude this claim lacks merit.
Defendant’s claim hinges on the Dueñas analysis finding due process principles
mandate an ability to pay hearing before imposing fines and fees. We are not persuaded
this analysis is correct. Our Supreme Court is now poised to resolve this question, having
granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted
November 13, 2019, S257844, which agreed with the court’s conclusion in Dueñas that
due process requires the trial court to conduct an ability to pay hearing and ascertain a
defendant’s ability to pay before it imposes court facilities and court operations
assessments under Penal Code section 1465.8 and Government Code section 70373, but
not restitution fines under Penal Code section 1202.4. (Kopp, supra, at pp. 95-96.)
In the meantime, we join 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 fees at issue in Dueñas and in this proceeding. (People v. Cota
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(2020) 45 Cal.App.5th 786, 794-795; People v. Kingston (2019) 41 Cal.App.5th 272,
279; People v. Hicks (2019) 40 Cal.App.5th 320, 329, review granted Nov. 26, 2019,
S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Caceres (2019)
39 Cal.App.5th 917, 928.)
Nor do we find merit in defendant’s Eighth Amendment claim that the fines and
fees imposed were grossly disproportional to reckless evading a police officer or
defendant’s culpability in that offense. (People v. Aviles, supra, 39 Cal.App.5th at
pp. 1069-1072) Or his claim that equal protection was violated. (Id. at pp. 1068-1069
[“ ‘[There is] no general due process and equal protection authority which requires a
court to conduct a preassessment present ability-to-pay hearing before imposing any fine
or fee on a defendant, as Dueñas seems to conclude,’ ” italics omitted].)
DISPOSITION
The judgment is affirmed.
/s/
RAYE, P. J.
I concur:
/s/
MURRAY, J.
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MAURO, J., Dissenting.
I dissent. In People v. Dueñas (2019) 30 Cal.App.5th 1157, the court held it is
improper to impose certain fines or assessments without determining defendant’s ability
to pay. (Id. at pp. 1168, 1172.) Although some courts have subsequently criticized
Dueñas’s legal analysis (see, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, review
granted Nov. 26, 2019, S258946), Dueñas remains citable precedent. Until the California
Supreme Court has had an opportunity to resolve the current split in authority, I believe it
is appropriate in certain cases to remand the matter to give the trial court an opportunity
to consider defendant’s ability to pay.
Here, because the trial court denied defendant’s request to stay the fines and
assessments pending an ability to pay hearing, I would remand the matter and direct
the trial court to assess defendant’s ability to pay the imposed fines and assessments.
/s/
MAURO, J.
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