People v. Cloyd CA3

Filed 8/10/21 P. v. Cloyd CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta) ----

THE PEOPLE, C092424

Plaintiff and Respondent, (Super. Ct. No. 20F2904)

v.

DESMOND THOMAS CLOYD,

Defendant and Appellant.

Defendant Desmond Thomas Cloyd pleaded no contest to corporal injury on a cohabitant/child’s parent and resisting a peace officer. After placing defendant on a term of probation, the court imposed the mandatory minimum restitution fine and court operations and conviction assessments. On appeal, defendant argues the imposition of the assessments without a hearing on his ability to pay them violates his constitutional rights, and the imposition of the restitution fine without an ability to pay hearing violates equal protection principles and the constitutional prohibition on excessive fines. We

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reject defendant’s contentions, but will modify the judgment to dismiss the balance of the charging document and affirm the judgment, as modified. FACTUAL AND PROCEDURAL BACKGROUND Defendant choked the victim, with whom he had a romantic relationship and child, until she was nearly unconscious. When police officers attempted to arrest defendant, he fled. The prosecution charged defendant with assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)—count 1),1 corporal injury to a cohabitant/child’s parent (§ 273.5, subd. (a)—count 2), resisting an officer (§ 148, subd. (a)(1)—count 3), child endangerment (§ 273a, subd. (b)—count 4), and two counts of violating a protective order (§ 273.6, subd. (a)—counts 5 & 6). Defendant pleaded no contest to the corporal injury to a cohabitant/child’s parent and resisting an officer counts. As part of the agreement, all other counts were to be dismissed. The trial court suspended imposition of sentence and placed defendant on a three- year term of probation, which included service of up to 180 days in county jail. The court imposed various fines, fees, and assessments, including a $300 restitution fine, a stayed $300 probation revocation fine, a $40 court operations assessment, and a $30 criminal conviction assessment. Defendant did not object to the imposition of these amounts. DISCUSSION Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), and its underlying authorities, defendant challenges the $300 restitution fine, $40 court operations assessment, and $30 criminal conviction assessment, arguing the trial court violated his constitutional rights when it imposed the amounts without first assessing his ability to pay them. In particular, defendant argues Dueñas requires the two assessments