Opinion
No. C084505.
03-24-2021
THE PEOPLE, Plaintiff and Respondent, v. TANYA MARIE CUMMINGS, Defendant and Appellant.
[Modification of opinion (61 Cal.App.5th 603; ___ Cal.Rptr.3d ___), upon denial of rehearing.]
THE COURT.—Appellant filed a petition for rehearing with this court. It is now ordered that the partially published opinion filed herein on March 3, 2021, be modified as follows:
1. On page 1 [61 Cal.App.5th 603, advance report, *fn.], where the footnote reads, "Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of Part II" will now read:
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of parts II and III, and the concurring and dissenting opinion.
2. On page 2 [61 Cal.App.5th 606, advance report, 2d par., last line], second paragraph which begins with "Defendant appeals," add to the end of the paragraph: ", and in supplemental briefing (3) based on People v. Dueñas (2019) 30 Cal.App.5th 1157 , the imposition of the various assessments imposed by the trial court without an ability to pay determination was unconstitutional," so the paragraph will now read:
Defendant appeals, contending that (1) attempted DUI, even with two prior felony DUI convictions, is a misdemeanor under the plain terms of section 23550.5 (2) the trial court erred by ordering her to pay for the cost of her court appointed counsel without a finding of ability to pay or a showing of the actual costs incurred, and in supplemental briefing (3) based on People v. Dueñas (2019) 30 Cal.App.5th 1157 , the imposition of
the various assessments imposed by the trial court without an ability to pay determination was unconstitutional.
3. On page 12 [61 Cal.App.5th 613, advance report, in the unpublished portion of the opinion], in the third paragraph that begins with "Relying on People v. Aguilar (2015) 60 Cal.4th 862 [182 Cal.Rptr.3d 137, 340 P.3d 366]" add the short citation (Aguilar).
4. On page 12 [61 Cal.App.5th 613, advance report, in the unpublished portion of the opinion], in the citation that reads "see also People v. Trujillo (2015) 60 Cal.4th 850, 858 [182 Cal.Rptr.3d 143, 340 P.3d 371]," add the short citation (Trujillo).
5. On page 14 [61 Cal.App.5th 613, advance report, in the unpublished portion of the opinion], before the heading "DISPOSITION" add the heading "III. Dueñas" and insert the following language with quotes, citations and footnote to begin with number 6, so it reads:
III. Dueñas
At sentencing, the trial court imposed a $300 restitution fine (Pen. Code, § 1202.4), a $300 probation revocation restitution fine stayed (Pen. Code, § 1202.44), $40 court security fee (Pen. Code, § 1465.8), $30 conviction assessment fee (Gov. Code, § 70373), a $46 monthly probation supervision cost (Pen. Code, § 1203.1b), a $25 urinalysis testing fee, a $390 fine (Veh. Code, § 23550.5) and a $50 fine (Veh. Code, § 23645) plus penalty assessments. In addition, as noted, the court ordered defendant to pay $1525 attorney fees. Relying on Dueñas, supra, 30 Cal.App.5th 1157, defendant asserts in supplemental briefing that the imposition of these assessments without a finding of ability to pay was unconstitutional.
The court applied seven days credit for time served to the $390 Vehicle Code section 23550.5 fine.
As for the cost of attorney fees, we already concluded defendant forfeited her objection to that assessment. (Aguilar, supra, 60 Cal.4th 866.) We conclude the same as to the costs of probation. (Ibid.; Trujillo, supra, 60 Cal.4th at pp. 856, 857-858.)
As for defendant's Dueñas claims as to all the assessments, we join the courts concluding Dueñas was wrongly decided and hold that defendant was not entitled to an ability to pay hearing for any of the assessments. (People v. Pack-Ramirez (2020) 56 Cal.App.5th 851, 860 (Pack-Ramirez); 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 , review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055 ; People v. Caceres (2019) 39 Cal.App.5th 917, 923-929 .) We therefore reject defendant's contentions based on Dueñas.
As for defendant's Eighth Amendment claims, it appears she relies solely on Dueñas, but to the extent she does not, we reject that contention as well. As this court recently noted: "`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.] [¶] "`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.' [Citation.] To determine whether a fine is excessive in violation of the Eighth Amendment, we consider: `(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.' [Citation] Accordingly, although ability to pay is part of the proportionality analysis, it is not the only factor.'" (Pack-Ramirez, supra, 56 Cal.App.5th at pp. 860-861.) Here, we cannot conclude on this record that the punitive fines imposed were grossly disproportionate to the gravity of the offense. (Ibid.)
On page 14 [61 Cal.App.5th 613, advance report, following the Dispostition], add the Concurring and Dissenting opinion, which is unpublished:
ROBIE, J., Concurring and Dissenting.
I concur in all parts of the Discussion except part III addressing defendant Tanya Marie Cummings's Dueñas argument. (People v. Dueñas (2019) 30 Cal.App.5th 1157 .) As to part III, I concur and dissent. I concur in the majority's conclusion that defendant's challenge to the attorney fees award and costs of probation are forfeited. (People v. Aguilar (2015) 60 Cal.4th 862 [182 Cal.Rptr.3d 137, 340 P.3d 366]; People v. Trujillo (2015) 60 Cal.4th 850 [182 Cal.Rptr.3d 143, 340 P.3d 371].) I dissent to the majority's conclusion that Dueñas was wrongly decided. I do not find the analysis in the cases relied upon by the majority to be well-founded or persuasive. I agree with Dueñas that principles of due process would preclude a trial court from imposing assessments, fines, and fees if a defendant demonstrates he or she is unable to pay them, unless a defendant has forfeited such a challenge in the trial court. (Dueñas, at p. 1168.) In that regard, I believe a limited remand under Dueñas
is appropriate to permit a hearing on the nonforfeited assessments, fees, and/or fines because defendant's conviction and sentence are not yet final. (See People v. Castellano (2019) 33 Cal.App.5th 485, 490-491 .)