People v. Whitfield CA3

Filed 7/30/21 P. v. Whitfield CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C091571

Plaintiff and Respondent, (Super. Ct. No. 19CF06496)

v.

GEORGE WAYNE WHITFIELD,

Defendant and Appellant.

Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant George Wayne Whitfield appeals the imposition of fines and fees without an ability to pay hearing. Recognizing trial counsel did not object to the imposition of these fines and fees, despite the fact that sentencing occurred after the publication of Dueñas, defendant also contends the failure to object was ineffective assistance of counsel. We conclude his counsel was not constitutionally ineffective and affirm the judgment.

1

FACTUAL AND PROCEDURAL HISTORY Defendant pleaded no contest to failure to appear (Pen. Code, § 1320, subd. (b))1 in Butte County Superior Court case No. 19CF06496 and admitted to violating a restraining order (§ 273.6) in Butte County Superior Court case No. 19CM03452. The trial court sentenced defendant to the upper term of three years in county jail. The trial court further imposed a $300 restitution fine (§ 1202.4, subd. (b)), a $40 court operations assessment (§ 1465.8), and a $30 conviction assessment (Gov. Code, § 70373). Defendant’s counsel did not object and did not request an ability to pay hearing. Pursuant to section 1237.2, defendant moved for the trial court to either hold an ability to pay hearing or to strike or stay the fines and fees. 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 Penal Code section 1465.8 and Government Code section 70373.” (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The Dueñas court also held that “although Penal Code 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 the present ability to pay the restitution fine.” (Ibid.) The trial court denied the request. DISCUSSION Defendant contends that the trial court implicitly found that defendant had the ability to pay his fines and fees when it denied his section 1237.2 motion and argues that this finding was not supported by substantial evidence, as required by Dueñas. To the