People v. Jimenez CA5

P
Filed 5/5/21 P. v. Jimenez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT


 THE PEOPLE,
                                                                                             F079434
             Plaintiff and Respondent,
                                                                          (Fresno Super. Ct. Nos. F19901401
                    v.                                                              & F19901201)

 DAVID ISSAC JIMENEZ,
                                                                                          OPINION
             Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Wayne R.
Ellison, Judge. (Retired Judge of the Fresno Sup. Ct. assigned by the Chief Justice
pursuant to article VI, § 6 of the Cal. Const.)
         Rachel Varnell, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Michael A. Canzoneri, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-


         *   Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
                                        INTRODUCTION
          Appellant and defendant David Issac Jimenez was sentenced to prison in two
cases, ordered to pay restitution fines, fees, and assessments, and his defense attorney did
not object. On appeal, defendant argues his trial attorney was prejudicially ineffective for
failing to object to the court’s imposition of the fines and fees based on his inability to
pay, as set forth in People v. Dueñas (2019) 

30 Cal. App. 5th 1157

(Dueñas). We affirm.
                                             FACTS1
Case No. F19901401
          On August 28, 2018, the victim’s home in Fresno was burglarized and two key
fobs to her vehicle were taken.
          On August 30, 2018, the victim reported that her 2015 Acura had been stolen from
her home in Fresno, it was valued at approximately $30,000, and the key fobs had been
taken in the prior burglary.
          On August 31, 2018, officers recovered the stolen vehicle. There were no
occupants, and the vehicle was not damaged.
          Defendant’s fingerprints were found on the driver’s door and window, and a
warrant was issued for his arrest.
Case No. F19901201
          In January 2019, a resident reported to the police department that his home had
been burglarized. The home had been tented for fumigation, and someone cut open the
tent, entered the house, and stole a Sony PlayStation 4, valued at approximately $1,000,
and miscellaneous jewelry valued at approximately $1,000.
          Defendant’s fingerprints were found on the bathroom window that was determined
to be the point of entry into the house, and another arrest warrant was issued.


          1   The facts are from the summary of the police reports contained in the probation
report.


                                                 2.
Defendant’s arrest
       On February 9, 2019, defendant was located and arrested, and booked into jail in
case No. F19901201.
       On February 28, 2019, defendant was arrested in case No. F19901201.
The charges
       On February 20, 2019, a complaint was filed in case No. F19901201, charging
defendant with count 1, first degree residential burglary (Pen. Code, §§ 459, 460,
subd. (a)),2 with four prior prison term enhancements (§ 667.5, subd. (b)).
       On February 26, 2019, appellant was charged in case No. F19901401 with felony
receiving stolen property, a motor vehicle (§ 496d, subd. (a)), with two prior convictions
for vehicle theft (Veh. Code, §10851) and theft (§496d) within the meaning of
section 666.5, and five prior prison term enhancements (§ 667.5, subd. (b)).
Plea proceedings
       On April 26, 2019, defendant entered into a negotiated disposition and pleaded no
contest to first degree residential burglary in case No. F19901201 and no contest to
felony receiving stolen property in case No. F19901401, for a maximum possible
sentence of six years for both cases.
       The court granted the prosecution’s motion to dismiss the remaining allegations
with waivers pursuant to People v. Harvey (1979) 

25 Cal. 3d 754

. As to two unrelated
cases, the parties agreed that a pending case against defendant would be dismissed and
that an uncharged case would not be filed.3



       2   All further statutory citations are to the Penal Code unless otherwise indicated.
       3 Defendant’s signed change-of-plea forms stated he was entering pleas in both
cases pursuant to People v. West (1970) 

3 Cal. 3d 595

. A West plea is “a plea of nolo
contendere, not admitting a factual basis for the plea.” (In re Alvernaz (1992) 

2 Cal. 4th
924

, 932.) At the plea hearing, however, the parties stipulated there was a factual basis
for the pleas based on the police reports.


                                               3.
Sentencing hearing
       On May 24, 2019, the court denied probation and sentenced defendant to an
aggregate term of four years eight months in prison, based on the midterm of four years
for residential burglary plus a consecutive midterm of eight months (one-third the
midterm) for receiving stolen property.
       In each case, the court imposed a restitution fine of $1,500 (§ 1202.4, subd. (b))
and suspended the parole revocation fine in the same amount. (§ 1202.45.) The court
ordered victim restitution subject to proof. (§ 1202.4, subd. (f).) Also, as to each case,
the court imposed a $40 court security fee (§ 1465.8) and a $30 court security fee (Govt.
Code, § 70373.) Defendant did not object to the fines and fees.
       On June 10, 2019, defendant filed timely notices of appeal in both cases.
Section 1237.2
       On September 11, 2019, appellate counsel filed a letter with the trial court
pursuant to section 1237.2 and requested to stay the restitution fines and reverse the fees
and assessments imposed in both cases, because he lacked the ability to pay those
amounts based on Dueñas.
       On September 18, 2019, the trial court denied the request.
                                       DISCUSSION
       Defendant argues his defense attorney was prejudicially ineffective for failing to
raise an ability to pay objection to the court’s imposition of the restitution fines and fees
based on the Dueñas case, which was decided in January 2019, four months before the
sentencing hearing was held in this case. 

(Dueñas, supra

, 

30 Cal. App. 5th 1157

.)
Defendant asserts counsel should have been aware of Dueñas, and his failure to object
cannot be considered any type of tactical decision.
       Defendant further argues counsel’s failure to object was prejudicial based on
information in the probation report that defendant was unemployed, he had no source of
income, counsel was appointed to represent him because he was indigent, and he was

                                              4.
being sentenced to prison and asserts there was a “significant chance” the court would
have stayed the restitution fines and reversed the fees.
       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 any
fines or fees. 

(Dueñas, supra

, 30 Cal.App.5th at pp. 1164, 1167.)4
       We disagree with the holding in Dueñas. As explained in People v. Aviles (2019)

39 Cal. App. 5th 1055

(Aviles), we believe Dueñas was wrongly decided and an Eighth
Amendment analysis is more appropriate to determine whether restitution fines, fees, and
assessments in a particular case are grossly disproportionate and thus excessive. (Aviles,
at pp. 1068–1072.) Under that standard, the fines and fees imposed in this case are not
grossly disproportionate to defendant’s level of culpability and thus not excessive under
the Eighth Amendment. (Aviles, at p. 1072.)
       As to defendant’s ineffective assistance claim, “[t]o show ineffective assistance,
defendant must show that ‘counsel’s performance was deficient, and that the defendant
was prejudiced, that is, there is a reasonable probability the outcome would have been
different were it not for the deficient performance.’ [Citations.] ‘A reasonable
probability is a probability sufficient to undermine confidence in the outcome.’ ” (People
v. Woodruff (2018) 

5 Cal. 5th 697

, 761–762.)5
       Even if we agreed with Dueñas, defense counsel’s failure to object was not
prejudicial because defendant has the ability to pay the fines, fees, and assessments over

       4The California Supreme Court is currently considering whether trial courts must
consider a defendant’s ability to pay before imposing or executing fines, fees, and
assessments; and if so, which party bears the applicable burden of proof. (See People v.
Kopp (2019) 

38 Cal. App. 5th 47

, 94–98, review granted Nov. 13, 2019, S257844.)
       5 We note that even if trial counsel was unaware of the Dueñas ruling, he had the
statutory right to object to the $1,500 restitution fines imposed in both cases because the
amounts exceeded the statutory minimum, and also could have used the same motion to
object to the fees and assessments. 

(Aviles, supra

, 39 Cal.App.5th at pp. 1073–1074;
People v. Frandsen (2019) 

33 Cal. App. 5th 1126

, 1154.)

                                             5.
the course of his prison sentence. 

(Aviles, supra

, 39 Cal.App.5th at pp. 1075–1077.)
“ ‘ “Ability to pay does not necessarily require existing employment or cash on hand.”
[Citation.] “[I]n determining whether a defendant has the ability to pay a restitution fine,
the court is not limited to considering a defendant’s present ability but may consider a
defendant’s ability to pay in the future.” [Citation.] This include[s] the defendant’s
ability to obtain prison wages and to earn money after his release from custody.
[Citation.]’ [Citations.]” 

(Aviles, supra

, 39 Cal.App.5th at p. 1076.)
       We can infer from the instant record that defendant has the ability to pay the
aggregate amount of fines and fees from probable future wages, including prison wages.

(Aviles, supra

, 39 Cal.App.5th at p. 1076; People v. Ellis (2019) 

31 Cal. App. 5th 1090

,
1094; People v. Douglas (1995) 

39 Cal. App. 4th 1385

, 1397.) In addition, there is
nothing in the record to show that defendant would be unable to satisfy the fine and fees
imposed by the court while serving his prison term, even if he fails to obtain a prison job.
While it may take defendant some time to pay the amounts imposed in this case, that
circumstance does not support his inability to make payments on these amounts from
either prison wages or monetary gifts from family and friends during his prison sentence.
(See, e.g., People v. Potts (2019) 

6 Cal. 5th 1012

, 1055–1057; People v. Lewis (2009) 

46
Cal. 4th 1255

, 1321; People v. DeFrance (2008) 

167 Cal. App. 4th 486

, 505.)
       We thus conclude that based on the record before this court, defendant has the
ability to pay the fines and fees, and counsel’s failure to object was not prejudicial.
                                      DISPOSITION
       The judgment is affirmed.




                                              6.

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