People v. Kimberling CA3

Filed 2/1/21 P. v. Kimberling CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C091748

Plaintiff and Respondent, (Super. Ct. No. 19CF05631)

v.

MICHAEL DENNIS KIMBERLING,

Defendant and Appellant.

Defendant Michael Dennis Kimberling timely appeals his judgment of conviction, arguing that the trial court’s imposition of certain fines and fees without a determination of his ability to pay them violates People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the Eighth Amendment, and equal protection. We agree with the People that defendant has forfeited these claims by failing to assert his inability to pay in the trial court. We further find that defendant has not established that his counsel was ineffective in failing to raise this argument. Accordingly, we affirm.

1

BACKGROUND The People’s October 31, 2019 first amended felony complaint charged defendant with driving under the influence of alcohol (DUI) within 10 years of a felony DUI or vehicular manslaughter (Veh. Code, § 23152, subd. (a); count 1);1 driving with a blood- alcohol content of 0.08 percent or more within 10 years of a felony DUI or vehicular manslaughter (§ 23152, subd. (b); count 2); and hit and run resulting in property damage (§ 20002, subd. (a); count 3). As to counts 1 and 2, the amended complaint alleged defendant had suffered two prior convictions in 2014 for driving with a blood-alcohol content of 0.08 percent or higher (§ 23152, subd. (b)) and one conviction in 2015 for DUI (§ 23152, subd. (a)). On January 15, 2020, defendant resolved the case by pleading no contest to count 1 and admitting the three prior convictions. In exchange, the court dismissed the two remaining counts with a Harvey2 waiver. The stipulated factual basis for his plea was taken from the probation report, which relayed that on August 5, 2019, in the early evening, defendant rear ended one victim’s car at a red light. Defendant appeared intoxicated and apologized. He then fled and rear ended another vehicle also stopped at a red light. Authorities responded to the scene, and defendant was transported for medical attention because of his injuries and unresponsiveness to questions. Later testing determined defendant had a blood-alcohol content of 0.34 percent. On March 11, 2020, the trial court denied defendant’s request for probation and sentenced him to the midterm of two years. The court imposed a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)), a $300 suspended parole revocation restitution fine (Pen. Code, § 1202.45), and a DUI fine (§ 23540) of $1,951 (inclusive of penalty