People v. Thomas CA3

Filed 11/22/21 P. v. Thomas CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C092743

Plaintiff and Respondent, (Super. Ct. No. 19FE019347)

v.

PHILLIP ANTONIO THOMAS,

Defendant and Appellant.

Defendant Phillip Antonio Thomas pleaded no contest to lewd and lascivious conduct with a child under the age of 14 years and admitted a prior strike conviction. The court sentenced defendant to 17 years in prison and ordered him to pay statutory fines, fees, and assessments. Defendant contends the court violated his constitutional right to due process by imposing fines and fees without first inquiring into his ability to pay, pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). He also contends the $300 restitution fine was excessive under the Eighth Amendment and violated due process and equal protection. We affirm the judgment.

1

BACKGROUND Defendant grabbed an 11-year-old girl by the arm inside a store and tried to bring her outside before being stopped by the girl’s grandmother. He later admitted he intended to sexually assault the girl. Defendant was charged with lewd and lascivious conduct with a child under the age of 14 years (Pen. Code, § 288, subd. (a)), 1 attempted kidnapping for the purpose of violating section 288 (§§ 664, 207, subd. (b)), and indecent exposure (§ 314). It was also alleged that defendant had been convicted of two serious and violent felonies under sections 667, subdivision (e)(2) and 1170.12, subdivision (c)(2), and one of these was also a prior serious felony under section 667, subdivision (a). Defendant pleaded no contest to the charge of lewd and lascivious conduct with a child under the age of 14 years and admitted one prior strike conviction. On August 26, 2020, the trial court sentenced defendant to the middle term of six years, doubled for the prior strike, and an additional five years for the prior conviction under section 667, subdivision (a), for a total of 17 years. The court also imposed a $300 restitution fine (§ 1202.4), a stayed $300 parole revocation restitution fine (§ 1202.45), a $40 court operations assessment (§ 1465.8), and a $30 criminal conviction assessment (Gov. Code, § 70373). On September 14, 2020, defendant appealed. On October 26, 2020, defendant’s counsel filed a request with the trial court under section 1237.2 to reconsider the fines and fees imposed. The trial court denied the request.