People v. Lynch CA3

Filed 4/12/21 P. v. Lynch CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C091922

Plaintiff and Respondent, (Super. Ct. No. 19CF07688)

v.

DANIEL JORDANALLEN LYNCH,

Defendant and Appellant.

Defendant Daniel Jordanallen Lynch 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 conclude 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. FACTUAL AND PROCEDURAL HISTORY The underlying facts of this case are not relevant to this appeal. It suffices to say that defendant broke into a home where his former girlfriend was staying, found a man in

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the residence, and punched the man in the face, knocking him unconscious. When his former girlfriend tried to intervene, defendant punched her in the face as well. These events occurred in the presence of a minor child. Defendant pleaded no contest to battery with serious bodily injury (Pen. Code, § 243, subd. (d))1 and misdemeanor battery of a spouse or cohabitant (§ 243, subd. (e)(1)). The trial court sentenced defendant to the upper term of four years in state prison for battery with serious bodily injury, and one year concurrent for misdemeanor battery. The trial court further ordered defendant to pay a $300 restitution fine (§ 1202.4, subd. (b)), a (suspended) $300 parole revocation restitution fine (§ 1202.45), an $80 court operations assessment (§ 1465.8), and a $60 criminal conviction assessment (Gov. Code, § 70373). The trial court declined to impose the presentence investigation report fee or the public defender fee, finding no ability to pay under section 987.8, subdivision (g)(2)(B). Defense counsel did not object to the imposition of the fines or fees. After filing this appeal, defendant wrote a letter to the trial court, asking it to stay the fines and assessments pursuant to section 1237.2. Defendant’s argument relied on 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.” (Dueñas, supra, 30 Cal.App.5th 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