People v. Wibberley CA3

Filed 9/2/20 P. v. Wibberley CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Nevada) ----

THE PEOPLE, C090065

Plaintiff and Respondent, (Super. Ct. No. F18-000049)

v.

GARRETT BRYAN WIBBERLEY,

Defendant and Appellant.

Defendant Garrett Bryan Wibberley appeals a judgment entered following a plea. He challenges a restitution fine, court operations assessments, and court facilities assessments, arguing their imposition without consideration of his ability to pay violates due process, equal protection, and the Eighth Amendment prohibition against excessive fines. We disagree and will affirm the judgment. BACKGROUND Defendant sexually abused his girlfriend’s young daughter four to five times over two years by, among other acts, touching her vagina and touching her foot and hand

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while he masturbated. He was charged with continuous sexual abuse of a child under 14 (Pen. Code, § 288.5, subd. (a)),1 and six counts of a lewd act upon a child under 14 (§ 288, subd. (a)). Defendant pleaded guilty to continuous sexual abuse. As stipulated in the plea agreement, the court sentenced defendant to the upper term of 16 years and dismissed the remaining counts. The court also imposed a $300 restitution fine (§ 1202.4, subd. (b)), a corresponding $300 parole revocation restitution fine (§ 1202.45), a $40 court operations assessment (§ 1465.8, subd. (a)(1)), and a $30 court facilities assessment (Gov. Code, § 70373). DISCUSSION Defendant argues on appeal that the trial court violated his right to due process, equal protection, and the federal and state constitutional prohibitions against excessive fines by imposing fines, fees, and assessments without holding a hearing to determine his ability to pay them. These arguments rely primarily on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which 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 court facilities and court operations assessments under [ ] section 1465.8 and Government Code section 70373.” (Id. at p. 1164.) The Dueñas court also held that “although [ ] section 1202.4 bars consideration of a defendant’s ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine.” (Ibid.)