People v. Dusharm CA3

Filed 10/20/20 P. v. Dusharm CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yuba) ----

THE PEOPLE, C091518

Plaintiff and Respondent, (Super. Ct. No. CRF19-02303-02) v.

RAINYSKIES JACK DUSHARM,

Defendant and Appellant.

After defendant Rainyskies Jack Dusharm pleaded no contest to making a criminal threat, the trial court sentenced him to six years in state prison and imposed an $1,800 restitution fine, as well as court operations and facilities assessments. Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant argues the fine and assessments should have been stayed pending a hearing on his ability to pay. We will affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND Defendant got into an argument with the victim, a man he passed while walking down the street. During the argument, defendant drew a gun and said he was going to

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shoot the victim. Defendant also pointed his gun at the victim’s mother, who tried to intervene. Sheriff’s deputies later found defendant at a bar. When they searched the vehicle in which he had arrived, they found the gun defendant had pointed at the victim. Defendant pleaded no contest to one count of making a criminal threat (Pen. Code, § 422, subd. (a))1 and admitted an allegation that he personally used a firearm in committing the offense (§ 12022.5, subd. (a)). At sentencing, defense counsel asked the court to reduce the restitution fine recommended in the probation report based on defendant’s indigency. The court sentenced defendant to six years in state prison. The court also imposed a restitution fine of $1,800 (§ 1202.4, subd. (b)), with an additional $1,800 parole revocation restitution fine, which was suspended pending revocation of parole (§ 1202.45). The court noted defendant would have “a limited ability to pay while in the Department of Corrections” because he would be “earning wages while in the Department of Corrections.” The court also imposed a $40 court operations assessment (§ 1465.8) and $30 court facilities assessment (Gov. Code, § 70373). DISCUSSION Relying on Dueñas, supra, 30 Cal.App.5th 1157 and its underlying authority, defendant challenges the $1,800 restitution fine, $40 court operations assessment, and $30 court facilities assessment, arguing the trial court erred when it failed to hold a hearing to determine defendant’s ability to pay. The People respond that defendant has forfeited any objection, argue the restitution fine should be analyzed under the excessive fines clause of the Eighth Amendment to the United States Constitution, and assert that any error with respect to the other two assessments is harmless. Regardless of whether defendant forfeited the issue, we are not persuaded that the analysis used in Dueñas is correct.