People v. Clark CA3

Filed 6/28/21 P. v. Clark CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C091805

Plaintiff and Respondent, (Super. Ct. No. 19CF03953)

v.

DILLION AUSTIN CLARK,

Defendant and Appellant.

Defendant Dillion Austin Clark pled no contest to distributing or showing pornography to a minor. (Pen. Code, § 288.2, subd. (a)(2).)1 The trial court sentenced defendant to the upper term of three years in prison and imposed various fines, fees, and assessments. Defendant now challenges the trial court’s imposition of those monetary obligations, while the People counter that defendant forfeited his claims on appeal. Without reaching the merits, we concur with the People that defendant forfeited his ability to pay arguments.

1 Undesignated statutory references are to the Penal Code.

1

I. BACKGROUND After defendant pled no contest to distributing or showing pornography to a minor, the trial court sentenced defendant and ordered defendant to pay fines and fees as follows: “The Court is ordering the mandatory fines and fees: The $300 [r]estitution [f]ine pursuant to [section] 1202.4[, subdivision ](b); the $300 [r]estitution [f]ine suspended pursuant to [section] 1202.45. The Court will find no ability to pay the [p]re- [s]entence [i]nvestigation [r]eport. The Court is imposing the fine pursuant to [section] 290.3 of the Penal Code in the amount of $500, plus all the surcharge penalty assessments including the $40 [c]ourt [o]perations [a]ssessment fee pursuant to [section] 1465.8 and the $30 [c]onviction [a]ssessment fee pursuant to [section] 70373 of the Government Code.” The total fines and fees imposed was $2,020. Defendant did not object to the court’s imposition of monetary obligations at sentencing. Several months later, pursuant to section 1237.2, defendant sought relief through a letter to the trial court on June 25, 2020, and again on August 7, 2020. The trial court denied his requests on July 30, 2020, and September 29, 2020. II. DISCUSSION Defendant challenges the trial court’s imposition of the sex offender fine on the grounds that the trial court’s statement at sentencing indicated it held an erroneous belief that the fine was mandatory. He further contends, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, that the trial court violated his constitutional rights when it imposed fines and fees without first holding a hearing on his ability to pay. We conclude defendant’s claims are forfeited. Imposition of the sex offender fine is contingent upon defendant’s ability to pay.2 Failing to contest the ability to pay in the trial court forfeits the contention that the