People v. Bonge CA3

Filed 5/2/22 P. v. Bonge CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C094489

Plaintiff and Respondent, (Super. Ct. No. 21CF00640)

v.

MICHAEL LEE BONGE,

Defendant and Appellant.

Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, 1164, defendant Michael Lee Bonge contends he received ineffective assistance of counsel because his trial counsel did not raise an ability to pay objection to the trial court’s imposition of fines and fees. We conclude defendant has failed to carry his burden in establishing ineffective assistance of counsel and affirm the judgment.

FACTS AND HISTORY OF THE PROCEEDINGS The facts underlying defendant’s conviction are irrelevant to our disposition, so are not recounted in detail. Suffice it to say that defendant pleaded guilty to two counts of lewd acts upon a child under the age of 14. (Pen. Code, § 288, subd. (a).) The trial

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court sentenced him to 10 years in state prison. Before imposing the fines and fees, the trial court asked defendant’s trial counsel: “The restitution fine, the recommended amount is $6,000. Do you wish to be heard on that, [counsel]?” Defendant’s trial counsel responded: “No, Your Honor.” The trial court then imposed a $6,000 state restitution fine (Pen. Code, § 1202.4, subd. (b)), imposed and stayed a $6,000 parole revocation fine (Pen. Code, § 1202.45), imposed a $2,340 sex offender fine (Pen. Code, § 290.3), an $80 court operations assessment fee (Pen. Code, § 1465.8), and a $60 criminal conviction assessment fee (Gov. Code, § 70373) on defendant. Defendant timely appealed.

DISCUSSION On appeal, defendant contends he received ineffective assistance of counsel because his trial counsel failed to make an ability to pay objection to the trial court’s imposition of fines and fees. In the record, we find no affirmative showing of deficient performance by counsel and affirm the judgment. The burden of proving ineffective assistance of counsel is on the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687.) To establish constitutionally inadequate representation, the defendant must show that (1) counsel’s performance was deficient; and (2) the deficient performance prejudiced the defense. (Ibid.) We defer to trial counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel. (People v. Weaver (2001) 26 Cal.4th 876, 925.) On direct appeal, “competency is presumed unless the record affirmatively excludes a rational basis for the trial attorney’s choice.” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1260.) “If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation.” (People v. Gray (2005) 37 Cal.4th 168,