People v. Dearing CA3

Filed 8/27/21 P. v. Dearing CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C092010

Plaintiff and Respondent, (Super. Ct. No. 19CF06518)

v.

SHAWN BRIAN DEARING,

Defendant and Appellant.

On February 26, 2020, defendant Shawn Brian Dearing pleaded no contest to reckless evading a police officer. (Veh. Code, § 2800.2, subd. (a).) On May 13, 2020, consistent with the terms of his plea agreement, the trial court sentenced defendant to three years in state prison, awarded him 441 days of custody credit, and ordered him to pay “the mandatory fines and fees.” Those fees included a $300 restitution fine (Pen. Code, § 1202.4), a $300 parole revocation fine (suspended) (Pen. Code, § 1202.45), a $40 court operations assessment (Pen. Code, § 1465.8), and a $30 conviction assessment (Gov. Code, § 70373). On July 21, 2020, appellate counsel

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filed a letter pursuant to Penal Code section 1237.2 requesting that the trial court stay the fines and fees pending an ability to pay hearing. The trial court denied the request on July 30, 2020, noting that this court has “consistently rejected” People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Invoking Dueñas, supra, 30 Cal.App.5th 1157, defendant argues the trial court violated constitutional principles by imposing costs despite finding an inability to pay, and without holding a hearing to determine defendant’s ability to pay. He argues the fees imposed should be stayed unless and until the prosecution proves he has the present ability to pay those costs. The People argue defendant has forfeited this argument on appeal, because he did not object to the trial court’s imposition of costs. Defendant attempts to circumvent forfeiture by arguing trial counsel was ineffective for failing to raise the issue in the trial court. We need not resolve the questions of forfeiture and effective assistance of counsel, because we conclude this claim lacks merit. Defendant’s claim hinges on the Dueñas analysis finding due process principles mandate an ability to pay hearing before imposing fines and fees. We are not persuaded this analysis is correct. Our Supreme Court is now poised to resolve this question, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844, which agreed with the court’s conclusion in Dueñas that due process requires the trial court to conduct an ability to pay hearing and ascertain a defendant’s ability to pay before it imposes court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373, but not restitution fines under Penal Code section 1202.4. (Kopp, supra, at pp. 95-96.) In the meantime, we join several other courts in concluding that the principles of due process do not require determination of a defendant’s present ability to pay before imposing the fines and fees at issue in Dueñas and in this proceeding. (People v. Cota