People v. Perry CA5

California Court of Appeal Aug 28, 2020 No. F077768Unpublished

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Holding. The court held that the trial court did not violate the defendant's due process rights by imposing restitution fines and fees without an ability-to-pay hearing, as the case is distinguishable from People v. Dueñas.

Issues

Whether the trial court violated the defendant's due process rights by failing to conduct an ability-to-pay hearing before imposing restitution fines and fees.
Whether the imposition of fines and fees without an ability-to-pay hearing constitutes an excessive fine under the Eighth Amendment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We find defendant’s reliance on Dueñas is misplaced because it is distinguishable from the present matter and defendant’s constitutional rights have not been violated.”

“We similarly reject any claim that the trial court violated due process. The fines and fees imposed in this case do not implicate the traditional concerns of fundamental fairness.”

Filed 8/28/20 P. v. Perry 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F077768 Plaintiff and Respondent, (Stanislaus Super. Ct. No. 4005601) v.

DENNIS PERRY, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Stanislaus County. Linda A. McFadden, Judge. Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Cavan M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Poochigian, J. and Detjen, J.

INTRODUCTION Appellant/defendant Dennis Perry argues the court improperly ordered him to pay a restitution fine and other fees in violation of his due process rights pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We affirm. FACTS1 Around 5:00 p.m. on October 26, 2017, Angelina’s Restaurant in Tulare was open for business when the security cameras showed defendant entered the building through the employee/delivery entrance in the alley. Defendant walked in and opened the door to the back office, which was not open to the public. He went into the office, turned on the lights, and closed the door. Defendant shuffled papers and looked around the desk. He then opened the door and peered into the hallway. He went back into the office, again closed the door, looked in a cabinet, and tried to open the safe but failed. Eduardo Loetz, the restaurant’s owner and general manager, arrived at the business and headed to his back office. As he walked into the office, the door swung open, and defendant emerged and walked past him. Loetz did not know defendant and asked what he was doing in his office. Defendant said he was looking for boxes. Loetz told defendant he was going to call the police and told him to wait. Defendant did not want to wait but stayed in the doorway until the police arrived. Loetz testified there was a computer and other electronics in the office, and the safe contained several thousands of dollars in cash, but defendant did not take anything. PROCEDURAL HISTORY On December 19, 2017, an information was filed that charged defendant with second degree commercial burglary. (Pen. Code, § 459.)2

People v. Perry CA5

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