Opinion
C089008
08-03-2020
THE PEOPLE, Plaintiff and Respondent, v. EDWIN LB HORACE, JR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18CF02625)
Defendant Edwin LB Horace, Jr. argues the trial court did not conduct an ability to pay hearing before imposing various fines and fees. He argues he suffered ineffective assistance of counsel because his counsel failed to object to the fees under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which found such fees improper without first discerning a defendant's ability to pay. We conclude defendant's reliance on Dueñas is without merit and reject his ineffective assistance of counsel claim.
I. BACKGROUND
Defendant threw a bag of urine through his cell door hitting jail staff. Defendant was charged with battery by gassing with allegations that he had served two prior prison terms. He pled guilty to the battery charge and the prior prison allegations were dismissed.
The court sentenced defendant to the upper term of four years and imposed the following fines and fees: $30 court facilities assessment (Gov. Code, § 70373), $40 court operations assessment (Pen. Code, § 1465.8), $300 restitution fine (§ 1202.4, subd. (b)), and a stayed $300 parole revocation fine (§ 1202.45). Defendant requested the trial court stay the fines and fees pending an ability to pay hearing under section 1237.2. The trial court denied this request.
Undesignated statutory references are to the Penal Code.
II. DISCUSSION
Relying on Dueñas, defendant argues the court facilities and court operations assessments must be stayed pending an ability to pay determination. He also contends imposition of restitution under section 1202.4 without an ability to pay hearing violates due process and equal protection as well as constitutional guarantees against excessive fines. Defendant lastly asserts forfeiture is improper because he suffered ineffective assistance of counsel when his trial counsel failed to object to the imposed fines and fees under Dueñas. We affirm the judgment disagreeing with Dueñas and finding no constitutional violations.
We need not decide whether defendant forfeited his 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.)
Defendant's appeal hinges on the analysis in Dueñas finding an ability to pay hearing is required before imposing fines and fees, and we are not persuaded that 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 section 1465.8 and Government Code section 70373, but not restitution fines under 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 and equal protection do not require determination of a defendant's present ability to pay before imposing the 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. 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.) Defendant's claim pursuant to Dueñas is without merit, invalidating his ineffective assistance of counsel claim on this issue.
Likewise, so far as defendant argues that imposing the restitution fine without considering his ability to pay violated the excessive fines clauses of the federal and state Constitutions (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17), we disagree. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 731 (R.J. Reynolds Tobacco Co.) [after examining the relevant considerations, a reviewing court can decide for itself whether a fine or penalty is unconstitutionally excessive].)
"The Eighth Amendment prohibits the imposition of excessive fines. The word 'fine,' as used in that provision, has been interpreted to be ' "a payment to a sovereign as punishment for some offense." ' " (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1040 (conc. opn. of Benke, J.).) The determination of whether a fine is excessive for purposes of the Eighth Amendment is based on the factors set forth in United States v. Bajakajian (1998) 524 U.S. 321 (Bajakajian). (R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at pp. 728-729 [applying Eighth Amendment analysis to both defendant's federal and state excessive fines claims].)
"The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. [Citations.] . . . [A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." (Bajakajian, supra, 524 U.S. at p. 334.)
"The California Supreme Court has summarized the factors in Bajakajian to determine if a fine is excessive in violation of the Eighth Amendment: '(1) the defendant's culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant's ability to pay. [Citations.]' ([R.J. Reynolds Tobacco Co.], supra, 37 Cal.4th at p. 728; see [People v. ]Gutierrez, supra, 35 Cal.App.5th at p. 1040 (conc. opn. of Benke, J.).) While ability to pay may be part of the proportionality analysis, it is not the only factor. (Bajakajian, supra, 524 U.S. at pp. 337-338.)" (People v. Aviles, supra, 39 Cal.App.5th at p. 1070.) We review the excessiveness of a fine challenged under the Eighth Amendment de novo. (Ibid.)
Here, we find the minimum $300 restitution fine imposed for battery by gassing, committed while in jail against a jail employee, is not grossly disproportional to the level of harm and defendant's culpability in this matter. The first three Bajakajian factors all weigh in favor of the restitution fine imposed by the court. Accordingly, the restitution fine imposed here is not excessive under the Eighth Amendment or the equivalent provision of the California Constitution.
Defendant's arguments are unpersuasive and he did not suffer from ineffective assistance of counsel.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
HULL, Acting P. J. /S/_________
HOCH, J.