Filed 1/12/21 P. v. Taylor CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE OF THE STATE B304844
OF CALIFORNIA,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. KA122140)
v.
REGINALD LEON TAYLOR,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, David C. Brougham, Judge. Affirmed.
Richard B. Lennon, 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, Assistant
Attorney General, Stephanie C. Brenan and Toni R. Johns
Estaville, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant appeals from his conviction for carrying a dirk or
dagger following a no contest plea, arguing that the trial court
erred under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas)
by refusing to stay the $300 minimum restitution fine and vacate
$70 in assessments. He argues that the court’s ability to pay
finding was unsupported. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Defendant attempted to steal two sets of headphones from a
Target store. When officers detained him, they discovered a knife
in his pocket. In an information, the People charged defendant
with one count of carrying a concealed dirk or dagger and one
misdemeanor count of shoplifting. The information alleged
defendant suffered multiple prior convictions for serious and/or
violent felonies within the meaning of the Three Strikes Law.
Pursuant to a plea agreement, defendant pled no contest to
carrying a concealed dirk or dagger and admitted to a single
“strike.” The court sentenced defendant to 32 months (16 months,
doubled for the strike). At the hearing, defense counsel objected to
the imposition of fines and fees. Counsel stated: “If I could just
indicate to the court that [defendant] is indigent and has no
permanent residence. I’d ask the court to consider waiving any
fines and fees, restitution. There was no loss. There is no
restitution.”
The court responded: “Well, I’ll note under recent case law
the amount of time he has in state prison I think is sufficient time
to pay the $370. So thank you.” The court ordered defendant to pay
a $300 parole restitution revocation fine (Pen. Code, § 1202.4(b)),
$40 court operations assessment fee (Pen. Code, § 1465.8), and $30
court facilities assessment fee (Gov. Code, § 70373).
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Defendant appealed.
DISCUSSION
Defendant argues that, under Dueñas, supra, 30 Cal.App.5th
1157, the trial court violated his federal constitutional rights by
imposing the $370 in fines and assessments based on its finding
that defendant has the ability to pay them with future prison
wages.
In Dueñas, 30 Cal.App.5th 1157 the court held: “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 Penal Code
section 1465.8 and Government Code section 70373.” (Id. at
p. 1164.) It also held that the execution of a restitution fine 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.) When the defendant contests his
ability to pay, the trial court “must consider all relevant factors in
determining whether the defendant is able to pay the fines, fees
and assessments to be imposed. Those factors may include, but are
not limited to, potential prison pay during the period of
incarceration to be served by the defendant.” (People v. Castellano
(2019) 33 Cal.App.5th 485, 490.)
Defendant argues that he lacked the ability to pay because he
“is fifty-six years old, indigent and homeless.” He asserts “the court
had no information that [defendant] could work or earn money or
whether or when [he] had been gainfully employed. He has a
lengthy record of theft and drug offenses indicating a long-standing
drug addiction problem.”
Here, the trial court found that defendant could pay the fine
and assessments using the prison wages he would accumulate
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during his 32-month sentence. The inmate minimum wage in
California prisons is $0.08 per hour and $12 per month, and the
maximum pay is $0.37 and $56 per month. (Cal. Dept. of
Corrections and Rehabilitation, Operations Manual (Jan. 1, 2020)
§ 51120.6.) Given this range of pay, the court reasonably found
that, during his incarceration, defendant may be able to pay off the
fines and assessments of $370.
Defendant nonetheless argues that “while the fact that
prisoners can earn wages may help support a finding of a potential
future ability to pay something, there was no basis for finding that
[defendant] would have such earning capacity given the limited
availability of jobs in prison and the paltry sums paid for the jobs to
be had or that upon his release he would be in a position to earn
sufficient income.” We observe defendant did not argue or produce
evidence at the hearing that there was limited availability of prison
jobs or that defendant could not obtain one. Based on the record
before us, the trial court reasonably found defendant had the
ability to pay the fine and fees.
DISPOSITION
The judgment is affirmed.
RUBIN, P.J.
WE CONCUR:
MOOR, J.
KIM, J.
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