Opinion
C089690
05-01-2020
THE PEOPLE, Plaintiff and Respondent, v. DEVON JEROME MCBRIDE, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12F05600)
Defendant Devon Jerome McBride argues the trial court did not conduct an ability to pay hearing before imposing various fines and fees at his resentencing after remand from his first appeal. He argues he suffered ineffective assistance of counsel because his counsel failed to object to the fees under then recently decided People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which found such fees improper without first discerning a defendant's ability to pay. We conclude defendant's reliance on Dueñas is without merit and reject his ineffective assistance of counsel claim.
I. BACKGROUND
Defendant and a codefendant "assaulted the victim with firearms and took his car. A jury convicted both defendants of robbery and assault with a firearm and convicted [defendant] of recklessly evading a peace officer." (People v. McBride (Mar. 29, 2018, C076802) [nonpub. opn.] at p. 1 (McBride).) Defendant was sentenced to 16 years in state prison. (Id. at p. 5.) In his original appeal, defendant argued: (1) the trial court erred by not staying the sentence for assault with a firearm under Penal Code section 654; (2) the evidence was insufficient to convict him of assault with a firearm, (3) he was entitled to two additional days of presentence custody credit, and (4) remand was necessary for the trial court to consider its new discretion to strike enhancements imposed under sections 12022.5 and 12022.53. (McBride, supra, at pp. 1-2.) We determined only his last two arguments had merit and concluded "the sentence is vacated and the cause is remanded to the trial court for the purpose of allowing the court [to] exercise its discretion whether to strike or dismiss the enhancements imposed under sections 12022.5 and 12022.53. Upon doing so, the court shall modify [defendant's] presentence custody credits consistent with this opinion and resentence him accordingly." (Id. at p. 18.)
On our own motion, we take judicial notice of this prior decision. (Evid. Code, § 452, subd. (d).)
Undesignated statutory references are to the Penal Code.
On remand, the trial court believed our decision in McBride required it to resentence defendant regardless of whether it exercised its enhancement discretion. Still, after the court reexamined defendant's background, crimes, and prison behavior, it declined to exercise its discretion to strike the enhancements. The court resentenced defendant to the same prison sentence of 16 years and imposed the same fines and fees, composed of: $90 court facilities assessment (Gov. Code, § 70373), $120 court operations assessment (§ 1465.8), $10 crime prevention program fee (§ 1202.5), $2,000 restitution fine (§ 1202.4, subd. (b)), and a stayed $2,000 parole revocation fine (§ 1202.45).
Defendant timely appealed.
II. DISCUSSION
Defendant argues he suffered ineffective assistance of counsel because his counsel failed to object at resentencing to the reimposed fines and fees under Dueñas, which was decided three months before the resentencing hearing. He also contends imposition of restitution under section 1202.4 without an ability to pay hearing violates constitutional guarantees against excessive fines. The People contend the trial court had no authority to alter the fees because our remand in McBride was limited to considering only the enhancements, but in any case, defendant either forfeited his arguments or any error was harmless. Defendant replies that our remand required full resentencing, including a reconsideration of fines and fees. We affirm the judgment disagreeing with Dueñas and finding no constitutional violations.
We need not decide the scope of remand issue nor whether defendant forfeited his ability to pay argument because this argument is without merit. Failure to assert a meritless position does not demonstrate ineffective assistance of counsel. (People v. Kipp (1998) 18 Cal.4th 349, 377.)
Defendant's appeal hinges on the analysis in Dueñas finding an ability to pay hearing is required before imposing fines and fees, and we are not persuaded that this analysis is correct. Our Supreme Court is now poised to resolve this question, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844, which agreed with the court's conclusion in Dueñas that due process requires the trial court to conduct an ability to pay hearing and ascertain a defendant's ability to pay before it imposes court facilities and court operations assessments under section 1465.8 and Government Code section 70373, but not restitution fines under section 1202.4. (Kopp, supra, at pp. 95-96, rev. granted.)
In the meantime, we join several other courts in concluding that the principles of due process do not require determination of a defendant's present ability to pay before imposing the fines and assessments at issue in Dueñas and in this proceeding. (People v. Cota (2020) 45 Cal.App.5th 786, 794-795; People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, 329, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Caceres (2019) 39 Cal.App.5th 917, 928.) Defendant's claim pursuant to Dueñas is without merit, invalidating his ineffective assistance of counsel claim on this issue.
Likewise, so far as defendant argues that imposing the restitution fine without considering his ability to pay violated the excessive fines clauses of the federal and state Constitutions (U.S. Const., Amend. VIII; Cal. Const., art. I, § 17), we disagree. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 731 (R.J. Reynolds Tobacco Co.) [after examining the relevant considerations, a reviewing court can decide for itself whether a fine or penalty is unconstitutionally excessive].)
"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." ' " (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). (R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at pp. 728-729 [applying Eighth Amendment analysis to both defendant's federal and state excessive fines claims].)
"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.]' ([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.)" (People v. Aviles, supra, 39 Cal.App.5th at p. 1070.) We review the excessiveness of a fine challenged under the Eighth Amendment de novo. (Ibid.)
Here, we find the $2,000 restitution fine imposed for robbery, assault with a firearm, and recklessly evading a peace officer is not grossly disproportional to the level of harm and defendant's culpability in this matter. It was not grossly disproportionate to impose this fine considering defendant's violent conduct and numerous crimes. The first three Bajakajian factors all weigh in favor of the restitution fine imposed by the court. Accordingly, the restitution fine imposed here is not excessive under the Eighth Amendment or the equivalent provision of the California Constitution.
Defendant's arguments being meritless, he did not suffer from ineffective assistance of counsel.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. I concur: /S/_________
KRAUSE, J. ROBIE, J., Concurring.
Defendant believes Dueñas calls into question the imposition of the $2,000 restitution fine, the $2,000 stayed parole revocation fine, the $120 court operations assessment, the $10 crime prevention program fee, and the $90 court facility fee without a determination of his ability to pay. (Citing People v. Dueñas (2019) 30 Cal.App.5th 1157.) He acknowledges his resentencing hearing occurred more than three months after Dueñas was decided and asserts his trial counsel was ineffective for failing to request an ability-to-pay hearing. I concur in the result because I disagree with the majority's conclusion that Dueñas was wrongly decided. I believe Dueñas is good law.
I conclude defendant forfeited his challenge to the restitution fines because our Supreme Court has already determined an objection necessary to challenge the imposition of those fines in excess of the mandatory minimum. (People v. Nelson (2011) 51 Cal.4th 198, 227.) Defendant further forfeited his challenge to the remaining fees and assessment because the resentencing hearing was held after Dueñas was decided; there was thus authority for requesting an ability-to-pay hearing at the time of the resentencing hearing and defendant failed to do so. (Cf. People v. Castellano (2019) 33 Cal.App.5th 485, 489.)
To establish ineffective assistance of counsel, "the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (People v. Mai (2013) 57 Cal.4th 986, 1009.) On direct appeal, a judgment will be reversed for ineffective assistance "only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (Ibid.)
Defendant points to nothing in the record as to why defense counsel failed to object to the imposition of the fines, fees, and assessment; and, the record does not affirmatively disclose that counsel had no tactical purpose for doing so. Perhaps counsel had a reason to conclude defendant could pay the sums. Defendant's prejudice analysis moreover does not show a reasonable probability that the outcome would have been different had his counsel objected. Defendant merely relies on being "found eligible for appointed counsel at trial and on appeal" and his assertion that "[a]s a prisoner, his earning opportunity is limited." This does not meet defendant's burden of showing resulting prejudice.
For these reasons, I agree the judgment should be affirmed.
/S/_________
Robie, Acting P. J.