Filed 10/20/20 P. v. Mays CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B301827
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA477941)
v.
RODNEY MAYS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mildred Escobedo, Judge. Affirmed.
Linda L. Gordon, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle and Viet H. Nguyen,
Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant Rodney Mays appeals from a
judgment of conviction following a no contest plea. Defendant
argues the trial court’s imposition of a $40 court operations
assessment (Pen. Code,1 § 1465.8), a $30 court facilities
assessment (Gov. Code, § 70373), and a $300 restitution fine
(§ 1202.4, subd. (b)), without determining whether he had the
ability to pay said assessments and fine, violated his right to due
process under the federal and California constitutions.
Defendant cites in support People v. Dueñas (2019) 30
Cal.App.5th 1157 (Dueñas).2 We affirm.
II. BACKGROUND
On October 15, 2019, defendant, pursuant to a plea
agreement, pleaded no contest to violating Vehicle Code section
10851, subdivision (a), driving or taking a vehicle without
consent. The trial court imposed a sentence of two years and
dismissed the remaining count of the information. The trial court
also imposed a $40 court operations assessment, a $30 court
facilities assessment, a $300 restitution fine, and a $300 parole
1 Further statutory references are to the Penal Code unless
otherwise indicated.
2 There is a split of authority regarding Dueñas and whether
it was correctly decided. (See People v. Belloso (2019) 42
Cal.App.5th 647, 649, review granted Mar. 11, 2020, S259755.)
Our Supreme Court has granted review in People v. Kopp (2019)
38 Cal.App.5th 47, review granted November 13, 2019, S257844,
to resolve this issue.
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revocation fine (§ 1202.45), which was stayed unless parole was
revoked.
At the sentencing hearing, defense counsel requested that
the trial court waive fines and fees, stating: “Your Honor, he is
indigent at this time, obviously serving time in custody. He was
out of custody for a matter of days before he picked up this case.
He’s been incarcerated for a period of time previously. He doesn’t
have income.”
The trial court responded: “I am not inclined to do that.
He’s an able-bodied individual, and [the] Court does believe that
he is able to pay those fees and assessments once he’s out and
about and ready to start working.”
Citing Dueñas, supra, 30 Cal.App.5th 1157, defense counsel
argued that the trial court was required to assess defendant’s
“present ability [to pay], not [his] future ability . . . .” The court
disagreed and stated that it was “choosing not to apply [Dueñas].”
III. DISCUSSION
Defendant, citing Dueñas, supra, 30 Cal.App.5th 1157,
contends that the trial court erred in assessing the restitution
fine and assessments without first conducting a hearing on his
present ability to pay, and that we must therefore reverse the
order imposing the assessments and fine. We disagree.
As an initial matter, we note that several courts have
questioned the reasoning of Dueñas, supra, 30 Cal.App.5th 1157.
(See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, 326, review
granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39
Cal.App.5th 1055, 1061.) Our Supreme Court will ultimately
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decide this issue. For purposes of this appeal, we will assume
that Dueñas was correctly decided.
Contrary to defendant’s assertion, the trial court in this
case did assess defendant’s ability to pay. The court considered
defense counsel’s argument that the assessments and the
restitution fine should be waived and rejected it, finding that
defendant could pay because he was “an able-bodied individual.”
Substantial evidence supports this conclusion, as defendant’s
probation report indicates that he was employed as a warehouse
worker.
Defendant contends that the trial court was obligated to
“make a determination that he had the present ability to pay” the
fine and assessments (italics added). We disagree. (See People v.
Castellano (2019) 33 Cal.App.5th 485, 490 [relevant factors
regarding ability to pay “may include, but are not limited to,
potential prison pay during the period of incarceration to be
served by the defendant” (italics added)].) We find no error.
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IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J.
We concur:
RUBIN, P. J.
MOOR, J.
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