People v. Cabrera CA3

Filed 7/12/21 P. v. Cabrera CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Lassen) ----

THE PEOPLE, C091432

Plaintiff and Respondent, (Super. Ct. No. CH037003)

v.

ESTEBAN CABRERA,

Defendant and Appellant.

After defendant Esteban Cabrera pleaded guilty to assault by means likely to produce great bodily injury, the trial court sentenced him to 11 years in state prison and imposed a $300 restitution fine. Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) and its companion cases, defendant argues the imposition of the fine violated his due process rights because there was insufficient evidence of his ability to pay. We will modify the judgment to impose two mandatory fees and otherwise affirm.

1

BACKGROUND Defendant pleaded guilty to one count of assault by means likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(4).)1 He admitted allegations that he personally inflicted great bodily injury when committing the offense (§ 12022.7, subd. (a)) and that he had a prior strike conviction for voluntary manslaughter (§§ 192, subd. (a), 186.22, subd. (b)(1)(C)). At sentencing, defense counsel, citing Dueñas, supra, 30 Cal.App.5th 1157, asked the court to reduce the restitution fine based on defendant’s indigency, and made an offer of proof that defendant was currently serving a life sentence in prison and had no prospects of obtaining a job that would allow him to pay any fine. The prosecution did not offer any evidence of defendant’s ability to pay the fine, saying “I’m not sure it’s my burden.” The court denied defendant’s request, saying: “Thank you with [sic] agreeing that the burden still lies with the defendant in these proceedings. As relates to this issue, there’s a multitude of issues. Dueñas dealt with an individual that was not incarcerated. There’s new decisions have been [sic] determined that once again indigency is their health care, their medical, the housing, clothing, food is all being taken care of, they are not indigent. “Most recent case law had indicated that they can have the ability at the Department of Corrections to earn anywhere between 12 and $15 per month. There are jobs available in the Department of Corrections. [¶] In addition, the Court has not received a client trust fund that is certified to show what the balance in that account has been for the last six months and as it is required, that it shall be imposed at $300, the Court shall impose the item, the request to stay the matter is denied.” The court sentenced defendant to 11 years in state prison. The court also imposed a restitution fine of $300 (§ 1202.4, subd. (b)), with an additional $300 parole revocation