Opinion
C082384
04-02-2020
THE PEOPLE, Plaintiff and Respondent, v. DUSTI ROSE BYERS, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15NCR10433)
During a family dispute, defendant Dusti Rose Byers shot her father in the back, killing him. The bullet then exited his front and struck her sister in the head, instantly killing her as well. Defendant pleaded guilty to two counts of voluntary manslaughter and admitted that she personally used a firearm for each count. (Pen. Code, §§ 192, subd. (a), 12022.5, subd. (a).) The court sentenced her to an aggregate term of 23 years four months, and imposed various fees and fines.
Undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.
Defendant argues: (1) the court failed to state adequate reasons for imposing each of the prison terms it chose; (2) the court erred in imposing a $20,000 restitution fine; (3) her counsel was constitutionally ineffective for failing to object to the lack of reasons for the court's discretionary sentencing choices; (4) her counsel was constitutionally ineffective for failing to object to the amount of the restitution fine because the trial court had found she had no ability to pay for other lesser costs and would have likely reduced the fine had counsel timely objected; and (5) the imposition of the maximum restitution fine violated her rights to due process and freedom from excessive fines under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
We conclude the $20,000 restitution fine was unauthorized and the fine should be reduced to the maximum amount of $10,000. We further conclude defendant forfeited her appellate challenges to the trial court's failure to state reasons for each of the court's discretionary sentencing choices by failing to object. We also conclude that she has failed to show prejudice from the lack of objections, and we reject her ineffective assistance of counsel claims on that basis. Because we conclude Dueñas was wrongly decided, we reject her ability to pay challenge to the maximum restitution fine imposed. We also reject defendant's constitutional excessive fines challenge to the restitution fine.
We modify the judgment to reduce the restitution fine to $10,000 and impose the mandatory court facilities assessment and court operations assessment the trial court failed to impose. We otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Originally charged with two counts of murder (§ 187; counts 1 & 2), defendant later pleaded guilty to two counts of voluntary manslaughter for killing her father and her sister (§ 192, subd. (a); counts 3 & 4), which were added to the information for purpose of the negotiated resolution. She also admitted that she personally used a firearm in the offenses (§ 12022.5, subd. (a)). In addition to the prosecutor's brief factual summary at the plea colloquy, defendant set forth a factual basis in the plea form and the parties otherwise stipulated to the police reports as the factual basis for the plea. The parties also stipulated that the death of defendant's sister was based on a transferred intent theory.
According to the police reports as summarized in the probation report, defendant was with her father and sister, her sister's boyfriend, and another female in a small trailer. Her father and her sister's boyfriend were arguing. At one point, her father put a gun to the boyfriend's head and threatened to shoot him. He thereafter threw the gun on the bed and continued arguing. Defendant's teenage sister stepped between the two men. Defendant picked up the gun from the bed and shot her father in the back. The bullet exited his front and struck her sister in the head. Both her father and her sister died from their gunshot wounds.
At sentencing, the prosecutor, without contradiction by the defense, told the court about the nature of the argument. According to the prosecutor, the father was mad at the boyfriend because he had left defendant's teenage sister at a crowded local park after a Fourth of July fireworks show.
After shooting her father and her sister, defendant turned the gun on herself. Although she shot herself in the head, she did not die. When she came out of surgery, defendant confessed that she had shot her father in the back and that the bullet went through his body and hit her sister. Later, defendant told law enforcement that she shot herself because she was sad about her boyfriend, but she did not elaborate.
Defendant told the police and the probation department that at the time of the shooting, she was under the influence of methamphetamine, and the trial court so found. She had been a chronic drug user throughout much of her life. She later claimed that her father had molested her, although the allegations were never substantiated.
The probation report listed four circumstances in aggravation: (1) the crime involved great violence, or acts involving a high degree of cruelty, viciousness, or callousness; (2) the victims were particularly vulnerable; (3) defendant took advantage of a position of trust when committing the offense; and (4) defendant engaged in violent conduct, indicating a serious danger to society. It identified defendant's insignificant prior criminal record as the sole mitigating circumstance. To justify consecutive sentences, the probation report asserted that the crimes and their objectives were independent of each other even though they admittedly involved the same act of violence. It also noted that defendant was under the influence of methamphetamine when she committed the offenses and that defendant was sorry for her actions. However, the report further noted that "defendant indicated that she has a question as to whether someone else was responsible for the instant offense because the police didn't do enough investigation into the case." The report also noted that defendant appeared more concerned about when she would be transferred to prison so that she could marry her boyfriend than about her culpability in the crimes.
Defendant's only prior conviction was for petty theft in 2014.
The probation report recommended an aggregate term of 33 years four months, which included the upper terms for each manslaughter conviction, a full consecutive term for the firearm enhancement attached to count 3, and one-third the midterm of 16 months for the count 4 firearm enhancement. The report also recommended a $20,000 restitution fine pursuant to section 1202.4, subdivision (b) and the same amount for the parole revocation restitution fine pursuant to section 1202.45.
The probation report recommendation on the restitution fine reads as follows: "$20,000 Restitution Fine. (1202.4(b) PC) ($300-10,000)." Similar language was used regarding the parole revocation restitution fine.
Defendant filed a statement in mitigation, emphasizing her childhood and abusive parents, her lack of criminal history and her drug addiction, and that her father was the first to introduce the gun during the verbal altercation by pointing it at her sister's boyfriend. Defendant asked the court to consider additional mitigating factors not addressed in the probation report, including that the victim was an initiator or provoker of the incident, the crime was the result of unusual circumstances since her father provoked the violence, and that she was repeatedly abused by her father. Defendant further emphasized that she suffered from a disability that reduced her culpability, that she voluntarily acknowledged her guilt early during the proceedings, and that she would have been an excellent candidate for probation if she had not been presumptively ineligible given the offenses.
The statement in mitigation does not state the nature of defendant's disability.
At the sentencing hearing, the court indicated it had read and considered the probation reports, as well as defendant's written mitigation statement. The trial court then summarized the facts related to the shooting, defendant's troubled childhood and minimal criminal history, her long history of drug abuse and her use of methamphetamine prior to the offenses. The court also referenced defendant's self-reported but unsubstantiated claims that her father had sexually abused her, specifically noting that after reviewing the matter, it could not find any evidence corroborating her sexual abuse claims.
The court described the sentencing triads available for the offenses, as well as for the firearm allegations. The prosecutor recommended a 27-year sentence, and the court acknowledged it would have to find aggravating factors in order to impose such a sentence. Defense counsel advocated for low term sentences on all counts and enhancements, recommending a total of 10 years four months. The court then allowed the parties to argue for their respective statements in aggravation and mitigation.
The prosecutor argued that the trial court had "wide latitude" in whether to impose the maximum sentence, concurrent sentences or a consecutive one-third the midterm sentence. The prosecutor specifically noted that the court could give a full consecutive sentence under section 1170.16 or concurrent sentence on the second voluntary manslaughter conviction. The prosecutor argued that the trial court should impose the upper term on the count involving the father (count 3) as the victim and the upper term for the firearm enhancement. But for the count involving the sister as the victim (count 4), the prosecutor argued that the court should sentence defendant to a consecutive low-term sentence of three years with a low term sentence of three years for the firearm enhancement on that count, for an aggregate term on 27 years.
Section 1170.16 provides: "In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of subdivision (a) of Section 192, whether or not the offenses were committed during a single transaction."
To justify this recommended sentence, the prosecutor highlighted the degree of violence involved, noting that defendant shot her father in the back and that the bullet hit her sister in the eye, killing her instantly. The shooting took place in close quarters and when the shot was fired, defendant was about a foot away from her father and her sister was less than a foot in front of her father. As for aggravating circumstances, the prosecutor argued that the crime involved great violence and "the worst type of bodily injury you could have," "loss of life of two people -- her father and her sister." As an additional aggravating circumstance, the prosecutor argued the fact that defendant used a firearm, the result of which was the likely death of someone.
In the prosecutor's view, none of the purported mitigation factors warranted a lower sentence. Defendant had chosen to take illegal drugs and drop out of school, and no evidence showed she had been sexually molested by her father. In fact, the prosecutor's office and police department conducted an investigation as to this claim. The prosecutor asserted, "[w]e tracked down every lead that we could." They did not locate any inappropriate pictures, movies, text messages, or other evidence of improper sexual contact. There were no rumors in the community, even checking with law enforcement confidential informants. The prosecutor blamed defendant's mother for the fabrication of this story, noting that she encouraged defendant to say she had been abused in telephone calls to defendant in jail.
Defendant's mother also addressed the court at the sentencing hearing and claimed there had been sexual allegations and that "all of Glenn County knows it." The mother also said defendant was innocent, that defendant did not shoot the victims, and that she would prove it.
Defense counsel, on the other hand, argued that: defendant was deeply remorseful for the killings as evidenced by her attempt to kill herself afterwards; her father was the first to brandish the weapon during the dispute; and her father appeared to be "advancing" on her sister over whom she was very protective. Defendant also took responsibility early, and whether or not the sexual allegations against her father were accurate, she believed them to be true. Counsel noted that he had identified the factors the court needed to consider under the Rules of Court to impose low term sentences. He argued that defendant would be a person who would benefit from probation if she were not ineligible and urged the court to impose the low term on both counts.
After hearing argument and before imposing sentence, the court commented that while the events were certainly tragic, the tragedy did not excuse defendant's culpability. Agreeing with the prosecution, the court found there was no reason to shoot anyone when defendant picked up the gun and shot her father and her sister. The court found defendant's drug abuse did not excuse her actions, nor did her unsubstantiated sexual abuse claims.
The court sentenced defendant without further discussing aggravating or mitigating factors or otherwise reciting specific reasons for each of its discretionary sentencing choices. The court imposed an aggregate term of 23 years 4 months, calculated as follows: count 3 - voluntary manslaughter of her father, the midterm of six years and the upper term of 10 years for the firearm enhancement; count 4 - voluntary manslaughter of her sister, a full consecutive midterm sentence pursuant to section 1170.16 of six years and a consecutive term of 16 months (one-third the midterm), for the firearm enhancement. Defendant was ordered to pay, among other things, a $20,000 restitution fine and a parole revocation fine in the same amount was suspended pending successful completion of parole. The court found, however, that defendant did not have the ability to repay the county the probation report fee, booking fees, or attorney's fees. The court failed to impose a court facilities assessment (Gov. Code, § 70373) and a court operations assessments (§ 1465.8).
DISCUSSION
I. Prison Sentences
A. Defendant's Contentions
Defendant contends the court erred by not stating reasons for imposing: (1) the upper term for the count 3 firearm enhancement; (2) a full midterm for count 4 under the harsher penalty provisions of section 1170.16 rather than one-third the midterm under section 1170.1; (3) the midterm for count 3; and (4) a consecutive rather than concurrent sentence on count 4.
B. Forfeiture
A trial court generally has broad discretion to tailor a sentence to a particular case. (People v. Scott (1994) 9 Cal.4th 331, 349 (Scott).) Discretionary choices include the decision to impose the lower or upper term instead of the middle term and to impose consecutive rather than concurrent sentences. (Ibid.; see also § 1170, subd. (b); Cal. Rules of Court, rules 4.420(a) & 4.425.) Under section 1170.16, a trial court has discretion to choose between two applicable but alternative sentencing schemes, such as the standard one-third the middle term formula under section 1170.1, or a "full, separate, and consecutive term" for voluntary manslaughter convictions. (§§ 1170.1, subd. (a), 1170.16 & 192, subd. (a).) When making discretionary sentencing choices, the trial court is required to state its reason for each discretionary choice. (§ 1170, subd. (c); Rule of Court, rule 4.420(e).) This is true even when the court imposes a midterm sentence. (People v. Sandoval (2007) 41 Cal.4th 825, 847.)
Undesignated rule references are to the California Rules of Court in effect at the time of the charged offenses.
Defendant concedes she did not object to any of the court's sentencing choices she now challenges on appeal. It is well-settled that "[a] party in a criminal case may not, on appeal, raise 'claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' if the party did not object to the sentence at trial." (People v. Gonzalez (2003) 31 Cal.4th 745, 751 (Gonzalez).) "The rule applies to 'cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons. . . .' " (Ibid., italics added.)
Defendant seeks to avoid the forfeiture rule by arguing that the trial court did not "clearly apprise[]" the parties of the intended sentence and the reasons for its discretionary choices. But this does not excuse forfeiture. Indeed, this circumstance presented yet another ground upon which to object. Moreover, a fair reading of the record belies defendant's argument.
When agreeing to plead guilty, defendant understood the prosecutor would recommend 27 years in prison but that the recommendation was not binding on the court.
The probation report itself recommended an aggregate term of 33 years four months. The report also recommended a $20,000 restitution fine. Our Supreme Court has recognized that, " '[a]s a practical matter, both sides often know before the hearing what sentence is likely to be imposed and the reasons therefor. Such information is contained in the probation report, which is required in every felony case and generally provided to the court and parties before sentencing.' " (Gonzalez, supra, 31 Cal.4th at p. 751; Scott, supra, 9 Cal.4th at pp. 350-351.) Here, this is particularly true given the fact that the parties negotiated a resolution for pleas to voluntary manslaughter instead of the two 25-years-to-life sentences to which defendant was exposed on the murder charges.
The parties, moreover, had ample opportunity to influence the court's sentencing choices, both before and during the sentencing hearing. Defendant filed a statement in mitigation arguing for the lower term on all counts and enhancements. The court allowed both parties to argue for their respective sentencing recommendations. The trial court did not arbitrarily impose a sentence without considering the aggravating and mitigating factors in the case, nor did it cut off counsel's opportunity to object to any proposed sentence. (Cf., People v. Dorsey (1996) 50 Cal.App.4th 1216, 1224 [trial court placed the defendant on probation in the interest of justice even though he was presumptively ineligible and then immediately declared a recess without hearing from either party did not provide a meaningful opportunity to object].) Based on the record, defendant cannot claim she was not "apprised" of the potential sentence.
Defendant acknowledges the trial court could have imposed the upper term for the count 3 firearm enhancement and a full midterm for the count 4 manslaughter conviction, and that it had the authority to run her multiple sentences consecutively rather than concurrently. Her only quarrel is that the court did not adequately state its reasons for the discretionary sentencing choices it made. In other words, she argues the sentences, though otherwise permitted by law, were imposed in a procedurally flawed manner. Those types of claims are deemed forfeited for failure to object and call those flaws to the attention of the trial court when they could be corrected. (Scott, supra, 9 Cal.4th at p. 354.)
Based on defendant's interpretation of a single statement made by the court after the prosecutor sought to clarify a mathematical error in calculating the sentence for count 3 and the attached enhancement, she asserts the court imposed the upper term on the personal use enhancement because she used a firearm to kill her father, which she contends is an improper dual use of facts. We disagree with defendant's characterization of the court's statement, however. The court merely explained that it meant to say 10 years rather than six years for the enhancement because it found the enhancement was "an aggravated circumstance." Thus, while the court found an "aggravated circumstance" justified the upper enhancement term, it did not specify precisely what aggravating factor it was relying upon. In any event, the failure to object on double counting or dual use grounds forfeits the claim on appeal. (Gonzales, supra, 31 Cal.4th at p. 756.)
Because it is undisputed that defendant did not object at the sentencing hearing, she cannot challenge on appeal the court's discretionary sentencing choices concerning the terms of imprisonment.
II. Restitution Fines
A. Ability to Pay Contention Forfeiture
The forfeiture rule applies equally to the imposition of restitution fines without an ability to pay finding. In People v. Gibson (1994) 27 Cal.App.4th 1466, this court concluded that the defendant had forfeited his right to object to a restitution fine on the ground that he did not have an ability to pay the fine because he failed to object in the trial court. (Gibson, at p. 1468.) The panel emphasized that "because the appropriateness of a restitution fine is fact-specific, as a matter of fairness to the People, a defendant should not be permitted to contest for the first time on appeal the sufficiency of the record to support his ability to pay the fine." (Ibid.)
B. Amount of the Restitution Fine
As noted, defendant also contends the court erred in imposing a $20,000 restitution fine. The forfeiture doctrine does not apply to the amount of the fine here, which exceeds the maximum amount permitted by statute. This is an unauthorized sentence that may be corrected at any time. (People v. Turrin (2009) 176 Cal.App.4th 1200, 1205 [recognizing that the unauthorized sentence exception is a narrow exception to the forfeiture or waiver doctrine]; § 1202.4, subd. (b)(1) ["If the person is convicted of a felony, the [restitution] fine shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000)"].) " '[T]he maximum [restitution] fine that may be imposed in a criminal prosecution is $10,000 "regardless of the number of victims or counts involved." [Citation.]' " (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534.) And a court may only impose one restitution fine per case, so it is error to impose the fine as to each count. (People v. Sencion (2012) 211 Cal.App.4th 480, 483.)
We shall reduce the restitution fine to the statutory maximum of $10,000.
III. Ineffective Assistance of Counsel
A. Defendant's Contentions
Defendant argues that her trial counsel was constitutionally ineffective for failing to object when the court did not state reasons for the various sentencing terms it imposed. She raises a similar claim regarding the maximum restitution fine imposed by the court to which her counsel admittedly did not object.
B. Applicable Legal Principles
To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692 [80 L.Ed.2d 674, 693-694, 696] (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-218 (Ledesma).) " 'Surmounting Strickland's high bar is never an easy task.' " (Harrington v. Richter (2011) 562 U.S. 86, 105 [178 L.Ed.2d 624, 642] (Richter), quoting Padilla v. Kentucky (2010) 559 U.S. 356, 371 [176 L.Ed.2d 284, 297].)
To establish prejudice, "[i]t is not enough 'to show that the errors had some conceivable effect on the outcome of the proceeding.' " (Richter, supra, 562 U.S. at p. 104.) To show prejudice, defendant must show a reasonable probability that he would have received a more favorable result had counsel's performance not been deficient. (Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d 171, at pp. 217-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694; accord, Ledesma, at p. 218.) The likelihood of a different result must be substantial, not just conceivable. (Richter, at p. 112.)
"If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." (Strickland, supra, 466 U.S. at p. 697.) We follow that course here.
C. Prison Terms
Given the facts underlying the offenses, the detailed probation report that identified aggravating and mitigating factors, defendant's statement in mitigation, the extensive arguments of counsel during the sentencing hearing, and the trial court's comments at sentencing, we conclude defendant cannot show a reasonable probability that a more favorable outcome would have resulted had counsel objected to the court's sentencing choices.
When a trial court is required to select a term from a sentencing triad (Cal. Rules of Court, rule 4.420(a)), "only a single aggravating factor is required to impose the upper term." (People v. Osband (1996) 13 Cal.4th 622, 728 (Osband).) The same is true for the choice to impose a consecutive sentence. (Ibid.) Here, there were more aggravating factors than needed for each of the sentencing choices the court made.
The probation report listed several aggravating factors, including that the crime involved acts disclosing a high degree of cruelty, viciousness, or callousness, and that the victims were particularly vulnerable. (Cal. Rules of Court, rule 4.421(a)(1), (3), (11) & (b)(1).) The report also listed three other factors: that defendant was under the influence of methamphetamine when she committed the offenses, that she was sorry for her actions but also expressed doubt as to whether she was responsible for the deaths, and that she appeared more concerned about when she would be transferred to prison so that she could marry her boyfriend than about her culpability in the crimes.
The trial court noted several factors in aggravation, although it did not specifically identify which of the aggravating factors upon which it relied to impose the prison terms or consecutive sentences. However, it did expressly state that there was no reason to pick up the gun and no reason to shoot anyone. That circumstance is a factor reasonably related to the sentencing choice and properly considered under Rules 4.408 and 4.420(b). Also, the evidence established that defendant fired the weapon in an enclosed space with four other people in close proximity thereby putting multiple people at risk from her dangerous conduct, another circumstance reasonably related to the sentencing choice. Either of these factors, the factor that the crime involved acts disclosing a high degree of cruelty, viciousness, or callousness or the factor that a victim was particularly vulnerable (father shot in the back) would justify imposition of the upper term for the firearm enhancement and the middle term for count 3. Any of the remaining factors were sufficient to support a full midterm sentence for count 4 under section 1170.16 rather than a one-third the midterm under section 1170.1. Additionally, the fact that there were multiple victims justified imposing either the upper term or a consecutive sentences. (People v. Calhoun (2007) 40 Cal.4th 398, 408 ["There is no persuasive reason why the trial court should not be allowed to consider the fact of multiple victims as a basis for imposing either the upper term or a consecutive sentence, although it cannot do both"]; People v. Leon (2010) 181 Cal.App.4th 452, 468 ["A trial court has discretion to impose consecutive sentences where . . . a single act has resulted in crimes against multiple victims"; consecutive sentence for attempted murder proper for count involving one of the occupants in a car at which defendant discharged a firearm]; People v. Valenzuela (1995) 40 Cal.App.4th 358, 365 [consecutive sentences properly imposed on two counts of vehicular manslaughter based on a single act of driving while under the influence and colliding into a car, killing two occupants].)
Rule 4.408(a) provides: "The listing of factors in these rules for making discretionary sentencing decisions is not exhaustive and does not prohibit a trial judge from using additional criteria reasonably related to the decision being made. Any such additional criteria must be stated on the record by the sentencing judge." (Italics added.) Rule 4.420(b) provides: "In exercising his or her discretion in selecting one of the three authorized terms of imprisonment referred to in section 1170(b), the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. The relevant circumstances may be obtained from the case record, the probation officer's report, other reports and statements properly received, statements in aggravation or mitigation, and any evidence introduced at the sentencing hearing." (Italics added.)
The trial court expressly rejected defendant's arguments in mitigation. Given the presence of multiple aggravating factors, and the uncompelling mitigating factors, it is not reasonably probable that the court would have sentenced defendant differently had her counsel objected to the lack of a statement of reasons. On this record, we discern no reasonable probability that the court would not have chosen to recite each of the separate aggravating factors we have referenced to support its discretionary sentencing choices. (Osband, supra, 13 Cal.4th at p. 729 [court's error in relying on same factor to impose upper term and consecutive term was harmless where the court could have selected disparate facts from among the multiple factors recited to justify imposing both a consecutive sentence and the upper term].) Resentencing here is not required. (Ibid.)
D. Restitution Fine
We also conclude that defendant cannot show prejudice from her counsel's failure to object to the maximum restitution fine imposed under section 1202.4. That is, she cannot show a reasonable probability that the court would have reduced the fine below the maximum amount even though it later stated she was unable to repay lesser court costs.
Under section 1202.4, a trial court must impose a restitution fine for each felony conviction unless there are compelling and extraordinary reasons for not imposing a fine and the court states those reasons on the record. (§ 1202.4, subd. (b).) The amount of the fine is at the court's discretion and should commensurate with the seriousness of the offense. (§ 1202.4, subd. (b)(1).) The fine may not be less than $300 or more than $10,000. (Ibid.) "In setting a felony restitution fine, the court may determine the amount of the fine as the product of the minimum fine . . . multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted." (§ 1202.4, subd. (b)(2).)
Inability to pay is but one factor the court may consider when setting the amount of the restitution fine under section 1202.4. (§ 1202.4, subd. (d).) Other factors include: "the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the crime." (Ibid.) And, when deciding the amount of the fine to be imposed, the trial court may properly consider aggravating and mitigating factors considered when imposing a prison term. (See, e.g., People v. Gangemi (1993) 13 Cal.App.4th 1790, 1798-1799.)
Here, the record shows the court was aware that defendant's ability to pay was limited but that it also considered the seriousness and gravity of the offenses, the circumstances surrounding their commission, and the number of victims before imposing the maximum restitution fine. As the court recognized, defendant killed two of her family members by shooting her father in the back after voluntarily consuming drugs just hours before the incident. As noted, the court rejected the factors defendant proffered in mitigation.
After imposing the restitution fine, moreover, the court immediately found defendant was unable to pay the county back for various litigation costs. The juxtaposition of the court's statements shows it was well aware of imposing the maximum fine despite defendant's inability to pay for lesser costs. Indeed, it was reasonable for the court to conclude that defendant did not have the ability to pay the lesser fines in light of her obligation to pay the more important fine to the state restitution fund.
Given the nature and severity of the underlying crimes, we conclude it is not reasonably probable that the court would have imposed a lesser restitution fine had defendant's counsel interposed an objection. We therefore reject defendant's ineffective assistance of counsel claim as to the restitution fine for lack of prejudice.
IV. Dueñas
In supplemental briefing, defendant contends the court violated her right to due process and the federal and state constitutional prohibitions on excessive fines by imposing the maximum restitution fine without holding a hearing to determine her ability to pay. This argument relies primarily on Dueñas, supra, 30 Cal.App.5th 1157, which held that due process requires the trial court to stay execution of restitution fines, as well as court operation and conviction assessments, until it has held a hearing and determined the defendant has the present ability to pay. (Id. at p. 1164.) The People argue defendant forfeited her claims by failing to object on constitutional grounds below.
Turning first to defendant's due process claim, we are not persuaded that the Dueñas analysis was correct. We join the courts that have concluded Dueñas was wrongly decided and hold 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 here. (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.)
Our Supreme Court granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 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.)
Defendant's excessive fines claim fares no better (assuming without deciding that defendant can raise the issue here). To the extent defendant argues that imposing the restitution fine without considering her ability to pay violated the excessive fines clauses of the federal and state constitutions, we disagree. (U.S. Const., 8th Amend; Cal. Const., art. I, § 17; People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 731 [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 (People v. Bajakajian (1997) 524 U.S. 321 (Bajakajian); People ex rel. Lockyer v. 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.]' (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at p. 728; see 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. (Aviles, at p. 1072.)
Here, we conclude the $10,000 restitution fine imposed for shooting and killing her father and her sister is not grossly disproportional to the level of harm defendant caused and her culpability. It was not grossly disproportionate to impose the statutory maximum restitution fine given defendant's violently assaultive conduct that resulted in the death of two people. Accordingly, the $10,000 restitution fines imposed here is not excessive under the Eighth Amendment or the equivalent provision of the California Constitution.
Notably, calculating the restitution fine using the statutory formula in section 1202.4, subdivision (b), which is the minimum $300 fine multiplied by the number of years defendant was sentenced to prison (23) multiplied by the number of felony convictions (2), results in a fine of $13,800 that actually exceeds the statutory maximum. (§ 1202.4, subd. (b)(2).)
V. Court Operations and Court Facilities Assessments
We note that the trial court failed to impose the $40 court operations assessment (§ 1465.8) and the $30 court facilities assessment (Gov. Code, § 70373) for each of defendant's two convictions. These assessments are mandatory. (People v. Woods (2010) 191 Cal.App.4th 269, 272-273.) We shall modify the judgment accordingly.
DISPOSITION
The judgment is modified to impose a $10,000 restitution fine under section 1202.4, a $10,000 parole revocation restitution fine under section 1202.45, the latter of which is stayed unless parole is revoked, a $60 court facilities assessment under Government Code section 70373, and an $80 court operations assessment under section 1465.8.
As so modified, the judgment is affirmed.
/s/_________
MURRAY, J. We concur: /s/_________
RAYE, P. J. /s/_________
HOCH, J.