People v. Foster CA5

California Court of Appeal Nov 17, 2021 No. F080925Unpublished

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Holding. The court affirmed the judgment, holding that the trial court's imposition of restitution fines and fees without an ability-to-pay hearing was not unconstitutional and that any failure by trial counsel to object was not prejudicial.

Issues

Whether the trial court violated due process by imposing restitution fines and fees without determining the defendant's ability to pay.
Whether trial counsel provided ineffective assistance by failing to object to the imposition of fines and fees.

Disposition. affirmed

Quotations verified verbatim against the opinion

“As explained in Aviles, we believe Dueñas was wrongly decided and an Eighth Amendment analysis is more appropriate to determine whether restitution fines, fees, and assessments in a particular case are grossly disproportionate”

“Even if counsel was ineffective for failing to object, any error under Dueñas is necessarily harmless and not prejudicial because defendant has the ability to pay the fines, fees, and assessments over the course of his prison sentence.”

Filed 11/17/21 P. v. Foster CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F080925 Plaintiff and Respondent, (Merced Super. Ct. v. Nos. 19CR-02043, 19CR-02054)

SAMUEL JASON FOSTER, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Merced County. David W. Moranda, Judge. Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P. J., Poochigian, J. and Detjen, J.

INTRODUCTION Appellant and defendant Samuel Jason Foster pleaded no contest to robbery and admitted a deadly weapon enhancement and was sentenced to four years in prison. On appeal, he argues the court improperly imposed a restitution fine and other fees without finding he had the ability to pay those amounts in violation of his constitutional right to due process, based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). As an alternative argument, he asserts that his trial attorney was prejudicially ineffective for failing to raise the issue. We affirm. FACTUAL AND PROCEDURAL BACKGROUND Case No. 19CR-02043 On April 19, 2019, a complaint was filed in the Superior Court of Merced County case No. 19CR-02043, charging defendant with committing the following offenses on January 10, 2019: count 1, felony second degree robbery (Pen. Code, § 211);1 and count 2, misdemeanor exhibiting a deadly weapon, a misdemeanor (§ 417, subd. (a)(1)). As to count 1, it was alleged defendant personally used a deadly and dangerous weapon, a knife (§ 12022, subd. (b)(1)) and had five prior prison term enhancements (§ 667.5, subd. (b)). Case No. 19CR-02054 On the same day, a complaint was filed in case No. 19CR-02054 that charged defendant with committing three felony offenses on March 7, 2019: count 1, possession of multiple persons identifying information, committed against 15 victims (§ 530.5, subd. (c)(3)); count 2, identity theft (§ 530.5, subd. (a)); and counts 3 and 4, possession of a completed check exceeding $950 in value, specifically two checks for $3,700 (§§ 475, subd. (c), 473, subd. (a)); and five prior prison term enhancements.

People v. Foster CA5

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