Opinion
C088219
05-18-2020
THE PEOPLE, Plaintiff and Respondent, v. TUNG BAO LUONG, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17FE019953)
Defendant Tung Bao Luong appeals a judgment entered following a jury trial. He challenges a restitution fine, court operations assessments, and court facilities assessments totaling $440, arguing their imposition without consideration of his ability to pay violates due process, equal protection, and the Eighth Amendment prohibition against excessive fines. We disagree and will affirm the judgment.
BACKGROUND
Defendant broke into a dental office with a sledgehammer and damaged an x-ray machine, a dental chair, and other items inside the office. Defendant was charged with second degree burglary (Pen. Code, § 459) and vandalism exceeding $400 (§ 594, subd. (a)), along with an allegation that the damage exceeded $10,000. The jury found defendant guilty of both counts and found true the damage allegation.
Undesignated statutory references are to the Penal Code.
Defendant was sentenced to 250 days in county jail, with 120 days of credit, and five years of formal probation. The court also imposed a court facilities assessment of $60 (Gov. Code § 70373), a court operations assessment of $80 (§ 1465.8), a restitution fine of $300 (§ 1202.4, subd. (b), with an additional $300 fine pending successful completion of probation (§ 1202.44)). He also was ordered to pay restitution to the victim of $112,567.83 (§ 1202.4, subd. (f)). Defendant complied with section 1237.2 by sending a letter to the trial court asking it to strike the fees and fines, on which the court declined to act.
DISCUSSION
I
Fees and Fines under Dueñas
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) and its underlying authority, defendant argues that it was unconstitutional for the trial court to impose $140 in total assessments under section 1465.8 and Government Code section 70373 because he has no ability to pay them. He likewise challenges the $300 restitution fine, arguing imposition of these amounts without consideration of his ability to pay violates equal protection. The People concede the trial court should have determined defendant's ability to pay the court facilities and court operations assessments under Dueñas, but argue such error was harmless on this record. We decline this concession, finding that Dueñas was wrongly decided.
Dueñas held that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under . . . section 1465.8 and Government Code section 70373." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The Dueñas court also held that "although . . .section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Ibid.)
Subsequent published authority has called the reasoning of Dueñas into question. As discussed in People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946 (Hicks), Dueñas is premised on authority involving a right under due process of access to the courts, and a bar against incarceration for an involuntary failure to pay fees or fines. (Hicks, at p. 325.) A postconviction imposition of fees and fines, however, does not interfere in any respect with the right of access to either the trial or appellate court. (Id. at p. 326.) The postconviction imposition of fees and fines also does not result in any additional incarceration, and therefore a liberty interest that due process would protect is not present. (Ibid.) Since the stated bases for the conclusion in Dueñas do not support it, the question is whether due process generally otherwise compels the same result. (Id. at p. 327.) The People have a fundamental interest in punishing criminal conduct, as to which indigency is not a defense (otherwise, defendants with financial means would suffer discrimination). It also would be contrary to the rehabilitative purpose of probation if a court were precluded at the outset from imposing the payment of fees and fines as part of educating a defendant on obligations owed to society. (Id. at pp. 327-328.) "For the reasons set forth above, we conclude that due process does not [generally] speak to this issue and that Dueñas was wrong to conclude otherwise. [Citations.]" (Id. at p. 329; see also People v. Kingston (2019) 41 Cal.App.5th 272, 279 [accord].)
We join those authorities that have concluded that principles of due process do not supply a procedure for objecting to the fines and assessments at issue in Dueñas and in this proceeding based on the present ability to pay. (Hicks, supra, 40 Cal.App.5th at p. 329, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069 (Aviles); People v. Caceres (2019) 39 Cal.App.5th 917, 928.) We likewise hold that the trial court did not violate equal protection in failing to conduct an ability to pay hearing before imposing the $300 restitution fine.
Given the absence of any valid claim under due process or equal protection in connection with the fees and fine imposed, we conclude defendant is not entitled to remand for the trial court to consider his ability to pay.
II
Defendant's Eighth Amendment Challenge
Defendant argues that the trial court's imposition of a $300 restitution fine (§ 1202.4) without consideration of his ability to pay violated the excessive fines clause of the Eighth Amendment to the United States Constitution. We disagree.
Defendant does not challenge the $112,567.83 in restitution to the victim, instead claiming this fine affects his ability to pay the other fines and fees. --------
"The Eighth Amendment prohibits the imposition of excessive fines. The word 'fine,' as used in that provision, has been interpreted to be ' "a payment to a sovereign as punishment for some offense." ' [Citation.]" (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1040 (conc. opn. of Benke, J.).) The determination of whether a fine is excessive for purposes of the Eighth Amendment is based on the factors set forth in United States v. Bajakajian (1998) 524 U.S. 321 (Bajakajian). (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728.)
"The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. [Citations.] . . . [A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." (Bajakajian, supra, 524 U.S. at p. 334.)
"The California Supreme Court has summarized the factors in Bajakajian to determine if a fine is excessive in violation of the Eighth Amendment: '(1) the defendant's culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant's ability to pay. [Citations.]' (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at p. 728; see People v. Gutierrez, supra, 35 Cal.App.5th at p. 1040 (conc. opn. of Benke, J.).) While ability to pay may be part of the proportionality analysis, it is not the only factor. (Bajakajian, supra, 524 U.S. at pp. 337-338.)" (Aviles, supra, 39 Cal.App.5th at p. 1070.) We review the excessiveness of a fine challenged under the Eighth Amendment de novo. (Aviles, at p. 1072.)
Here, we find that the $300 restitution fine imposed is not grossly disproportionate to the level of harm or defendant's culpability. The court imposed the statutory minimum fine in a case where the defendant caused over $100,000 in damage to private property. Accordingly, we conclude that the $300 fine imposed was not excessive under the Eighth Amendment. (See Aviles, supra, 39 Cal.App.5th at p. 1072.)
DISPOSITION
The judgment is affirmed.
KRAUSE, J. I concur: RENNER, J. ROBIE, J., Dissenting.
Defendant believes Dueñas calls into question the imposition of the $300 restitution fine, $300 stayed parole revocation fine, $80 court operations assessment, and $60 court facilities assessment without a determination of his ability to pay. (Maj. opn. ante, at p. 2; People v. Dueñas (2019) 30 Cal.App.5th 1157.) I agree with Dueñas that principles of due process would preclude a trial court from imposing the fines and assessments at issue if a defendant demonstrates he or she is unable to pay them. (Dueñas, at p. 1168.) I do not find the analysis in Hicks to be well-founded or persuasive and believe the majority has it backwards -- it is Hicks that was wrongly decided, not Dueñas. (People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946.) I further do not agree with Aviles that the only proper limit on fees and fines is the constitutional prohibition against excessive fines under the Eighth Amendment to the federal Constitution. (People v. Aviles (2019) 39 Cal.App.5th 1055, 1061, 1067, 1069-1072.)
I believe a limited remand under Dueñas is appropriate to permit a hearing on defendant's ability to pay the challenged fines and assessments because his conviction and sentence are not yet final. (See People v. Castellano (2019) 33 Cal.App.5th 485, 490-491.) I, accordingly, do not reach the merits of defendant's Eighth Amendment argument.
ROBIE, Acting P. J.