Filed 9/2/20 P. v. Wibberley CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Nevada)
----
THE PEOPLE, C090065
Plaintiff and Respondent, (Super. Ct. No. F18-000049)
v.
GARRETT BRYAN WIBBERLEY,
Defendant and Appellant.
Defendant Garrett Bryan Wibberley appeals a judgment entered following a plea.
He challenges a restitution fine, court operations assessments, and court facilities
assessments, 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 sexually abused his girlfriend’s young daughter four to five times over
two years by, among other acts, touching her vagina and touching her foot and hand
1
while he masturbated. He was charged with continuous sexual abuse of a child under 14
(Pen. Code, § 288.5, subd. (a)),1 and six counts of a lewd act upon a child under 14
(§ 288, subd. (a)). Defendant pleaded guilty to continuous sexual abuse. As stipulated in
the plea agreement, the court sentenced defendant to the upper term of 16 years and
dismissed the remaining counts. The court also imposed a $300 restitution fine
(§ 1202.4, subd. (b)), a corresponding $300 parole revocation restitution fine (§ 1202.45),
a $40 court operations assessment (§ 1465.8, subd. (a)(1)), and a $30 court facilities
assessment (Gov. Code, § 70373).
DISCUSSION
Defendant argues on appeal that the trial court violated his right to due process,
equal protection, and the federal and state constitutional prohibitions against excessive
fines by imposing fines, fees, and assessments without holding a hearing to determine his
ability to pay them. These arguments rely primarily on People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas), which 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.” (Id. 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.)
1 Undesignated statutory references are to the Penal Code.
2
Defendant requests that we stay the challenged fines, fees, and assessments and
remand for an ability to pay hearing. He also asserts that he suffered ineffective
assistance of counsel if these issues are found forfeited.
The People argue defendant forfeited his Dueñas claim by failing to object or even
express any concern about inability to pay in the trial court months after Dueñas was
decided. The People further argue defendant’s restitution fines are constitutional.
A. Dueñas was incorrectly decided
Regardless of whether defendant forfeited the issue, we are not persuaded the
analysis employed in Dueñas 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 operations and court
facilities assessments under section 1465.8 and Government Code section 70373. (Kopp,
at pp. 95-96 (review granted Nov. 13, 2019, S257844).)
In the meantime, we join the courts that have concluded that Dueñas was wrongly
decided. (See, e.g., People v. Kingston (2019) 41 Cal.App.5th 272; People v. Hicks
(2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946 (Hicks); People v.
Aviles (2019) 39 Cal.App.5th 1055 (Aviles); People v. Caceres (2019) 39 Cal.App.5th
917, 923-929 (Caceres).) In support of its hybrid due process/equal protection rationale,
Dueñas relies on authorities in which courts have held it is unconstitutional to punish an
indigent defendant or impede his access to the courts, solely on the basis of his poverty.
(Dueñas, supra, 30 Cal.App.5th at pp. 1165-1168, citing In re Antazo (1970) 3 Cal.3d
100, 103 [invalidating practice of requiring convicted defendants to serve jail time if they
were unable to pay a fine or assessment], and Griffin v. Illinois (1956) 351 U.S. 12, 16-
17, 19-20 [100 L.Ed. 891, 897-898, 899] [striking down a state practice of granting
appellate review only to convicted criminal defendants who could afford a trial
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transcript].) As many courts have subsequently noted, the line of cases cited in Dueñas
relating to an indigent defendant’s right of access to the courts are inapplicable because
the imposition of the challenged fines and assessments did not affect the ability of the
defendant in Dueñas to present a defense at trial or to challenge the trial court’s rulings
on appeal. (Hicks, at p. 326, review granted Nov. 26, 2019, S258946; Kingston, at
pp. 279-280; Aviles, at pp. 1068-1069; Caceres, at p. 927; see People v. Gutierrez (2019)
35 Cal.App.5th 1027, 1038-1039 (Gutierrez) (conc. opn. of Benke, J.).)
Similarly, the authorities cited in Dueñas prohibiting incarceration for indigence
alone are also inapplicable. (Hicks, supra, 40 Cal.App.5th at p. 326, review granted Nov.
26, 2019, S258946; Caceres, supra, 39 Cal.App.5th at p. 927.) Defendant faces at most a
civil judgment should he be unable to pay. We disagree that any resulting negative
consequences from a civil judgment constitute punishment rising to the level of a due
process violation. (See Caceres, at p. 927 [“Dueñas cites no authority for the proposition
that [the negative consequences from a civil judgment] constitute ‘punishment’ rising to
the level of a due process violation”]; see also Gutierrez, supra, 35 Cal.App.5th at
p. 1039 (conc. opn. of Benke, J.) [fines and fees imposed in Dueñas did not “satisf[y] the
traditional due process definition of a taking of life, liberty or property”].)
B. Analysis under the Eighth Amendment
Defendant also asserts the restitution fine violates the Eighth Amendment’s
prohibition against excessive fines. To the extent imposing potentially unpayable fees or
fines on indigent defendants raises constitutional concerns, we agree that such challenges
are properly analyzed under the Eighth Amendment’s excessive fines clause, which limits
the government’s power to extract cash payments as punishment for an offense. (Aviles,
supra, 39 Cal.App.5th at pp. 1071-1072.)
“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.] . . .
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[A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional
to the gravity of a defendant’s offense.” (United States v. Bajakajian (1998) 524 U.S.
321, 334 [141 L.Ed.2d 314, 329].) 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.” (People ex rel. Lockyer v. R.J. Reynolds
Tobacco Co. (2005) 37 Cal.4th 707, 728; Gutierrez, supra, 35 Cal.App.5th at pp. 1040-
1041 (conc. opn. of Benke, J.).) Accordingly, although ability to pay may be part of the
proportionality analysis, it is not the only factor. (Bajakajian, at pp. 337-338.) We
review de novo whether a fine is excessive under the Eighth Amendment. (Id. at p. 336,
fn. 10.)
We conclude the $300 restitution fine is not grossly disproportionate to
defendant’s level of culpability and the harm he caused, based on his conviction for
continuous sexual abuse of a child under 14 years of age. Under the circumstances, this
amount is not excessive under the Eighth Amendment.
DISPOSITION
The judgment is affirmed.
KRAUSE , J.
We concur:
HOCH , Acting P. J.
RENNER , J.
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