Opinion
A156847
06-16-2020
THE PEOPLE, Plaintiff and Respondent, v. ERIC S. BUENAFE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR327587)
Eric S. Buenafe appeals after he pled no contest to one count of corporal injury against a cohabitant (Pen. Code, § 273.5, subd. (a)) and was sentenced to a three-year prison term. Buenafe asserts the trial court violated his constitutional right to due process by imposing a restitution fine and assessments without holding a hearing on his ability to pay. We affirm.
Undesignated statutory references are to the Penal Code. --------
BACKGROUND
A.
Buenafe and his girlfriend, Sandra A., argued at their home. When Sandra threatened to call the police and told Buenafe "it was over," Buenafe poked Sandra in the chest with his finger and shoved her face with his forearm. Buenafe then grabbed Sandra's left hand, in which she held her phone. Buenafe latched onto one of her fingers and twisted while she fell to the ground. Buenafe then poured a can of beer on Sandra's head, and she responded by throwing a can in his direction. Next, Buenafe punched Sandra in the mouth, splitting her lip. Sandra believed her finger was broken and continued to wear a brace two weeks later.
B.
The Solano County District Attorney charged Buenafe with one felony count of corporal injury to a cohabitant (§ 273.5, subd. (a)). It was further alleged that he personally inflicted great bodily injury (§ 12022.7, subd. (e)) on Sandra.
Buenafe pled no contest to the corporal injury charge in exchange for the People striking the enhancement allegation. Pursuant to a negotiated disposition, the trial court sentenced Buenafe to state prison for the middle term of three years. Over Buenafe's objection that he was unable to pay, the court imposed a $300 restitution fine (§ 1202.4, subd. (b)(1)), a $40 court operations assessment (§ 1465.8, subd. (a)(1)), and a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)). The probation report indicated Buenafe was unemployed and had been homeless before he moved in with his mother. Buenafe also owed child support and stated he had no income or assets beyond $54 in cash.
DISCUSSION
Citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Buenafe contends the trial court violated his constitutional due process rights when it imposed the restitution fine and assessments, over his objection, without first determining his ability to pay.
Dueñas held that due process requires a trial court to determine a defendant's present ability to pay before imposing restitution fines and assessments. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The Dueñas court relied on the principles that a state may not impose punishment on an indigent defendant, or impair their access to the courts, solely because of their poverty. (Id. at pp. 1165-1168.)
The facts presented in Dueñas were unusually compelling. Dueñas, an unemployed, homeless woman with cerebral palsy, supported her two children while living on public aid. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Dueñas lost her driver's license because she could not afford to pay her juvenile citations, then acquired three misdemeanor convictions for driving without a license because the accumulating criminal assessments and fines prevented her from recovering her license. (Id. at p. 1161.) At sentencing on the final misdemeanor conviction, the trial court placed Dueñas on probation, conditioned on her serving 30 days in jail and paying a $300 fine. Dueñas accepted the trial court's offer to impose nine more days in jail as an alternative to the fine but could not avoid a $30 court facilities assessment (Gov. Code, § 70373), a $40 court operations assessment (Pen. Code, § 1465.8), and a $150 restitution fine (Pen. Code, § 1202.4). (Dueñas, supra, 30 Cal.App.5th at pp. 1161-1163.)
"Key to the [Dueñas] holding was its concern for 'the cascading consequences of imposing fines and assessments that a defendant cannot pay,' which '[t]he record in [Dueñas] illustrates.' [Citation.] The court noted that Dueñas's case ' "does [not] stem from one case for which she's not capable of paying the fines and fees," but from a series of criminal proceedings driven by, and contributing to, Dueñas's poverty.' " (People v. Caceres (2019) 39 Cal.App.5th 917, 924 (Caceres), citing Dueñas, supra, 30 Cal.App.5th at p. 1163-1164.)
Buenafe fails to acknowledge that many courts have declined to follow Dueñas. (See, e.g., People v. Petri (2020) 45 Cal.App.5th 82, 87; People v. Adams (2020) 44 Cal.App.5th 828, 831-832; People v. Hicks (2019) 40 Cal.App.5th 320, 325-327, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1061, 1067-1068; Caceres, supra, 39 Cal.App.5th at pp. 923, 926-929.) The California Supreme Court may soon resolve the conflict. (See People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844).)
In the meantime, we agree with those courts that have concluded that Dueñas, although possibly correct on its facts, incorrectly stated a broader rule that, as a matter of constitutional due process, an ability to pay hearing is required before imposition of fines or assessments. (See, e.g., People v. Aviles, supra, 39 Cal.App.5th at pp. 1067-1068; Caceres, supra, 39 Cal.App.5th at p. 928; see also People v. Kopp, supra, 38 Cal.App.5th at p. 96, review granted.) The domestic violence Buenafe perpetrated is "not a crime either 'driven by' poverty or likely to 'contribut[e] to' that poverty such that an offender is trapped in a 'cycle of repeated violations and escalating debt.' " (Caceres, supra, at p. 928.) And, absent unusual circumstances, a defendant's inability to pay a minimum restitution fine and assessments does not impair their access to the courts or subject them to imprisonment. (See People v. Petri, supra, 45 Cal.App.5th at pp. 91-92; People v. Hicks, supra, 40 Cal.App.5th at pp. 326, 329 [imposition of fines and assessments "without more, does not result in incarceration for nonpayment"], review granted; Caceres, supra, 39 Cal.App.5th at p. 927 ["[f]ees imposed after a case is completed, and judgment entered . . . do not deprive defendants of access to justice"]; People v. Torres (2019) 39 Cal.App.5th 849, 860, fn. 4.)
The People contend the challenge to the restitution fine is better addressed under the excessive fines prohibition of the Eighth Amendment. (See People v. Hanson (2000) 23 Cal.4th 355, 361-363; People v. Cowan (2020) 47 Cal.App.5th 32, 48; People v. Aviles, supra, 39 Cal.App.5th at pp. 1069-1072; People v. Kopp, supra, 38 Cal.App.5th at pp. 96-97, review granted.) We need not resolve the Eighth Amendment question because Buenafe does not raise an excessive fines challenge in his opening or reply briefs on appeal. We consider this a concession that the amount in dispute here is not constitutionally disproportionate to his offense. (See United States v. Bajakajian (1997) 524 U.S. 321, 334, 337-338; People v. Petri, supra, 45 Cal.App.5th at p. 87.)
Imposition of the minimum restitution fine and $70 in assessments did not violate Buenafe's right to due process. We need not address the parties' additional arguments.
DISPOSITION
The judgment is affirmed.
/s/_________
BURNS, J. We concur: /s/_________
SIMONS, ACTING P.J. /s/_________
NEEDHAM, J.