People v. Hudson CA3

Filed 3/23/22 P. v. Hudson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C094015

Plaintiff and Respondent, (Super. Ct. No. 18FE021294)

v.

TYREE HUDSON,

Defendant and Appellant.

Defendant Tyree Hudson pleaded no contest to transporting methamphetamine and was sentenced to four years in county jail after a violation of probation; the court also imposed a restitution fine. On appeal, defendant contends pursuant to the holding in People v. Dueñas (2019) 30 Cal.App.5th 1157, the restitution fine must be stayed pending an ability to pay hearing. Finding defendant forfeited this argument, we affirm.

1

BACKGROUND On November 29, 2018, defendant pleaded no contest to transporting methamphetamine (Health and Saf. Code, § 11379, subd. (a)).1 The trial court sentenced defendant to a four-year county jail sentence but suspended execution and placed defendant on five years of formal probation. The court also imposed but stayed a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)),2 a $300 probation revocation fine (§ 1202.44), a $40 court security fee (§ 1465.8), and a $30 court facility fee (Gov. Code, § 70373). On March 2, 2021, after two previous probation violations, the trial court found defendant violated his probation again. On April 23, 2021, the trial court executed the four-year county jail sentence, reinstated the restitution and probation revocation fines, but waived all other fines for an inability to pay. Defendant timely appealed. In August 2021, defendant filed a letter under section 1237.2 with the trial court requesting it stay the restitution fine; the court declined to do so. DISCUSSION Relying on People v. Dueñas, supra, 30 Cal.App.5th 1157, defendant argues the $300 restitution fine must be stayed pending an ability to pay hearing, otherwise it violates the prohibition against excessive fines and violates equal protection. He asserts ineffective assistance of counsel if we find he forfeited this argument. Defendant forfeited his challenge to the restitution fine because the sentencing hearing was held over two years after Dueñas was decided; there was thus authority for requesting an ability to pay hearing at the time of the sentencing hearing, and defendant