People v. Fuentes CA5

Filed 5/7/21 P. v. Fuentes 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F081168 Plaintiff and Respondent, (Super. Ct. No. F20900409) v.

YOLANDA FUENTES, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Heather Mardel Jones, Judge. James Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

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

INTRODUCTION Based on an incident that occurred in Fresno County in January 2020, defendant Yolanda Fuentes was charged with one count of felony child abuse, in violation of Penal Code section 273a, subdivision (a).1, 2 On March 19, 2020, in exchange for reduction of the charge to a misdemeanor, defendant pleaded no contest. The trial court suspended imposition of sentence and placed defendant on formal probation for four years. The court also imposed, over defendant’s objection based on inability to pay, the minimum restitution fine of $150 under section 1202.4, subdivision (b)(1); a probation revocation restitution fine of $150 under section 1202.44, suspended; a court operations assessment of $40 under section 1465.8, subdivision (a)(1); and a court facilities assessment of $30 under Government Code section 70373, subdivision (a)(1). The court’s order included a $50 payment plan fee, bringing the total amount of fines, fees, and assessments to $270. On appeal and in reliance on the Court of Appeal’s decision in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant seeks an order striking the fines, fees, and assessments imposed given her inability to pay them. She also seeks an order striking the unexplained $100 “component restitution fine.” The People dispute defendant’s entitlement to any relief. They argue that the restitution fine is not unconstitutionally excessive and does not violate due process, that any error in imposing the nonpunitive court assessments is harmless; and that the total fines, fees, and assessments amount of $270 is set forth in the record. We reject defendant’s claim of error entitling her to have $100 stricken from the fines, fees, and court assessments imposed. We also conclude that imposition of the $150 restitution fine does not violate the excessive fines clause and although we do not agree