Opinion
A156980
03-20-2020
THE PEOPLE, Plaintiff and Respondent, v. RICHARD AVILA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Case No. 18-SF-004069-A)
Defendant Richard Avila entered a no contest plea to one count of violating Penal Code section 460, subdivision (b) and admitted that he had suffered a prior strike pursuant to section 667, subdivision (d) and section 1170.12, subdivision (b). He was sentenced to a total term of 32 months, representing the low term of 16 months, doubled due to the prior strike. His counsel filed an opening brief asking that this court conduct an independent review of the record for arguable issues—i.e., those that are not frivolous, as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel also informed defendant that he had the right to file a supplemental brief on his own behalf, but defendant declined to do so. We conclude there are no meritorious issues and affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated. --------
I. BACKGROUND
Shortly after 2:00 a.m. on April 10, 2018, defendant was apprehended by Sheriff's deputies in possession of property stolen from the Twice as Nice store located in Half Moon Bay. His DNA matched that found on the outside of the window at the entry point to the store, and the tread of his shoes was similar to a shoeprint found in the same area. Avila entered a no contest plea to a single count of violating section 460, subdivision (b) and admitted that he had suffered prior strike conviction. After denying defendant's motion to strike his prior strike pursuant to People v. Superior Court (1996) 13 Cal.4th 497 (Romero), the court imposed a sentence of 32 months, with total credits of 166 days (consisting of 68 days of actual time in custody, 68 days "good time" credits, and 30 days of program credits for time defendant spent in treatment while out of custody). The court also imposed a minimum restitution fine in the amount of $300, a $40 court operations assessment, and a $30 criminal conviction assessment. (§§ 1202.4, subd. (b); 1465.8; Gov. Code, § 70373.)
II. DISCUSSION
Defendant's counsel filed a Wende brief, requesting that we independently review the record to determine whether it contains any arguable issues for appeal. Our review establishes that there are no meritorious issues to be argued.
The defendant was properly advised before entering his no contest plea and admitting his prior strike conviction. He understood there was "not a guarantee" the court would grant his Romero motion. The court provided ample reason for denying the motion, including defendant's numerous probation and parole violations, his parole agent's comment that his performance on parole was "horrible," and the fact that he had been caught trying to falsify a drug test while awaiting sentencing. The court did not abuse its discretion in declining to strike the strike and sentencing defendant to the low term, doubled. (People v. Carmony (2004) 33 Cal.4th 367, 373-374, 378-379.)
Courts have reached differing conclusions as to the constitutionality of the restitution fine and assessments that were imposed on defendant without a determination of his ability to pay. (Cf. People v. Dueñas (2019) 30 Cal.App.5th 1157, 1173 (Dueñas) [imposition of minimum restitution fine and court operations and criminal conviction assessments without assessing defendant's ability to pay violates due process] with People v. Hicks (2019) 40 Cal.App.5th 320 ["Dueñas does more than go beyond its foundations; it announces a principle inconsistent with them"]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069 ["we reject Dueñas's due process analysis . . . Such a challenge should be based instead on the prohibition against 'excessive fines' contained in the Eighth Amendment"].) We need not add to the jurisprudence on this issue, as even if the court erred in imposing the fine and assessments without conducting an ability-to-pay hearing, any error was harmless in light of the fact that defendant will be able to earn wages to meet his financial obligations while serving his 32-month term. (People v. Johnson (2019) 35 Cal.App.5th 134, 139-140.) In this regard, we also note that the record demonstrates that defendant moved a bookshelf, climbed through a window into the store and then ran from multiple law enforcement officers, indicating that he is able-bodied and capable of work.
Having examined the record to ensure that defendant receives effective appellate review, we find no basis for reversal of the conviction. (Wende, supra, 25 Cal.3d 436.)
III. DISPOSITION
The judgment is affirmed.
/s/_________
BROWN, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
STREETER, J.