Filed 2/1/21 P. v. Kimberling 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
----
THE PEOPLE, C091748
Plaintiff and Respondent, (Super. Ct. No. 19CF05631)
v.
MICHAEL DENNIS KIMBERLING,
Defendant and Appellant.
Defendant Michael Dennis Kimberling timely appeals his judgment of conviction,
arguing that the trial court’s imposition of certain fines and fees without a determination
of his ability to pay them violates People v. Dueñas (2019) 30 Cal.App.5th 1157
(Dueñas), the Eighth Amendment, and equal protection. We agree with the People that
defendant has forfeited these claims by failing to assert his inability to pay in the trial
court. We further find that defendant has not established that his counsel was ineffective
in failing to raise this argument. Accordingly, we affirm.
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BACKGROUND
The People’s October 31, 2019 first amended felony complaint charged defendant
with driving under the influence of alcohol (DUI) within 10 years of a felony DUI or
vehicular manslaughter (Veh. Code, § 23152, subd. (a); count 1);1 driving with a blood-
alcohol content of 0.08 percent or more within 10 years of a felony DUI or vehicular
manslaughter (§ 23152, subd. (b); count 2); and hit and run resulting in property damage
(§ 20002, subd. (a); count 3). As to counts 1 and 2, the amended complaint alleged
defendant had suffered two prior convictions in 2014 for driving with a blood-alcohol
content of 0.08 percent or higher (§ 23152, subd. (b)) and one conviction in 2015 for DUI
(§ 23152, subd. (a)).
On January 15, 2020, defendant resolved the case by pleading no contest to count
1 and admitting the three prior convictions. In exchange, the court dismissed the two
remaining counts with a Harvey2 waiver. The stipulated factual basis for his plea was
taken from the probation report, which relayed that on August 5, 2019, in the early
evening, defendant rear ended one victim’s car at a red light. Defendant appeared
intoxicated and apologized. He then fled and rear ended another vehicle also stopped at a
red light. Authorities responded to the scene, and defendant was transported for medical
attention because of his injuries and unresponsiveness to questions. Later testing
determined defendant had a blood-alcohol content of 0.34 percent.
On March 11, 2020, the trial court denied defendant’s request for probation and
sentenced him to the midterm of two years. The court imposed a $300 restitution fine
(Pen. Code, § 1202.4, subd. (b)), a $300 suspended parole revocation restitution fine
(Pen. Code, § 1202.45), and a DUI fine (§ 23540) of $1,951 (inclusive of penalty
1 Undesignated statutory references are to the Vehicle Code.
2 People v. Harvey (1979) 25 Cal.3d 754.
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assessments and the challenged mandatory $30 criminal conviction assessment (Gov.
Code, § 70373) and $40 court operations assessment (Pen. Code, § 1465.8)). The court
elected not to impose the recommended presentence investigation fee. Defendant timely
appealed.
DISCUSSION
I
Defendant challenges the court’s imposition of a $300 restitution fine (Pen. Code,
§ 1202.4, subd. (b)), a $30 criminal conviction assessment (Gov. Code, § 70373), and a
$40 court operations assessment (Pen. Code, § 1465.8) without an ability to pay
determination.3 In compliance with Penal Code section 1237.2, defendant first sought
relief in the trial court on June 6, 2020, which denied his request on June 19, 2020.
Without reaching the merits, we concur with the People that defendant had forfeited his
ability to pay arguments.
That a defendant must first object and demonstrate his inability to pay amounts
imposed at sentencing is a longstanding and well-recognized rule. (See, e.g., People v.
Nelson (2011) 51 Cal.4th 198, 227 [defendant’s claim that the court erroneously failed to
consider ability to pay a $10,000 restitution fine is forfeited by the failure to object];
People v. Gamache (2010) 48 Cal.4th 347, 409 [challenge to $10,000 restitution fine
forfeited by failure to object to alleged inadequate consideration of defendant’s ability to
3 The parties mistakenly assert that the trial court failed to impose the $30 criminal
conviction assessment (Gov. Code, § 70373) and the $40 court operations assessment
(Pen. Code, § 1465.8) at sentencing, requiring they be stricken from court documents. In
actuality, while the trial court does not separately list the $30 and $40 assessments at the
sentencing hearing, it is clear they were part of the $1,951 orally imposed by the court.
The minute order following sentencing lists these amounts as “inc.” and the abstract of
judgment lists the total for the DUI fine as $1,881, which becomes $1,951 when the
missing $70 in assessments is included. This is consistent with the breakdown from
defendant’s probation report, which lists every amount leading to the $1,951 total.
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pay]; People v. Avila (2009) 46 Cal.4th 680, 729 [rejecting argument that defendant was
exempted from forfeiture because his restitution fine amounted to an unauthorized
sentence based upon his inability to pay]; see also People v. Lowery (2020) 43
Cal.App.5th 1046, 1053-1054 [failure to exercise statutory right to object on ability to
pay for fine imposed over statutory minimum forfeited that objection]; People v.
Gutierrez (2019) 35 Cal.App.5th 1027, 1033 [defendant’s failure to challenge restitution
fine was a classic example of circumstance appropriate for forfeiture rule].)
Further, that the court imposed the minimum mandatory fines and fees does not
forgive defendant’s forfeiture. Defendant was sentenced on March 11, 2020, over a year
after issuance of the Dueñas decision. (Dueñas, supra, 30 Cal.App.5th 1157 [decided
Jan. 8, 2019].) Therefore, his failure to raise Dueñas at sentencing forfeits his Dueñas
arguments by operation of normal rules of appellate review. (People v. Scott (1994) 9
Cal.4th 331, 351-354 [to preserve a sentencing issue for appellate review, the defendant
must raise it in the trial court].)
That defendant’s ability to pay claims are constitutional in character does not alter
the application of the forfeiture doctrine. (See People v. Trujillo (2015) 60 Cal.4th 850,
859 [constitutional exception to forfeiture rule did not apply to claim concerning failure
to obtain express waiver of an ability to pay hearing]; In re Sheena K. (2007) 40 Cal.4th
875, 880-881 [noting longstanding rule that a constitutional right may be forfeited in
criminal proceedings by “ ‘ “failure to make timely assertion of the right before a tribunal
having jurisdiction to determine it.” ’ ”].)
Nor has defendant established that his counsel was ineffective for failing to object.
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, 687-688, 693-694 [80 L.Ed.2d 674, 693-
694, 697-698]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) To show prejudice,
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defendant must show a reasonable probability that he would have received a more
favorable result had counsel’s performance not been deficient. (Strickland, supra, at pp.
693-694; Ledesma, supra, at pp. 217-218.) “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” (Strickland, supra, at p. 694; accord,
Ledesma, supra, at p. 218.)
Defendant cannot show his counsel was ineffective because we find his arguments
to be without merit. (People v. Kipp (1998) 18 Cal.4th 349, 377 [failure to assert a
meritless position does not demonstrate ineffective assistance of counsel].) Defendant’s
appeal hinges on the analysis in Dueñas finding an ability to pay hearing is required
before imposing fines and fees, and we are not persuaded that this analysis 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 assessment fees under Penal Code section
1465.8 and Government Code section 70373, but not restitution fines under Penal Code
section 1202.4. (Kopp, supra, at pp. 95-96.)
In the meantime, we join several other courts in concluding that 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 in Dueñas and in this proceeding. (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, 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.)
Nor do we find merit in defendant’s Eighth Amendment claim that the fines and
fees imposed were grossly disproportional to DUI within 10 years of a felony DUI or
defendant’s culpability in those offenses (People v. Aviles, supra, 39 Cal.App.5th at pp.
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1069-1072) or his claim that equal protection was violated. (Id. at pp. 1068-1069
[“ ‘[There is] no general due process and equal protection authority which requires a
court to conduct a preassessment present ability-to-pay hearing before imposing any fine
or fee on a defendant, as Dueñas seems to conclude,’ ” italics omitted].)
DISPOSITION
The trial court is directed to correct an omission in the January 15, 2020 minute
order, in which the box indicating that counts 2 and 3 were dismissed “[w]ith a Harvey
Waiver” was not checked. The judgment is otherwise affirmed.
KRAUSE , J.
We concur:
RAYE , P. J.
RENNER , J.
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