Filed 5/21/21 P. v. Delte CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H047463
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1903541)
v.
PAUL JOAQUINE DELTE,
Defendant and Appellant.
MEMORANDUM OPINION
We resolve this case by memorandum opinion pursuant to California Standards of
Judicial Administration, Title 8, Standard 8.1. (See also People v. Garcia (2002)
97 Cal.App.4th 847, 853–855.)
Defendant Paul Joaquine Delte pleaded no contest to possessing metal knuckles
(Pen. Code, § 21810) in 2019, and admitting a prior prison term allegation (Pen. Code,
§ 667.5, subd. (b)). (Details of the offense are not in the record because defendant
waived a full probation report.) Imposition of sentence was suspended and defendant
was placed on formal probation for three years. The trial court imposed a $300
restitution fine with what appears to be an authorized 10 percent collection fee (Pen.
Code, § 1202.4, subd. (b), (l)); a suspended $300 probation revocation fine (Pen. Code,
§ 1202.44); a court operations assessment of $40 (Pen. Code, § 1465.8, subd. (a)(1)); a
court facilities assessment of $30 (Gov. Code, § 70373); and a criminal justice
administration fee of $129.75 to the arresting agency (Gov. Code, §§ 29550–29550.3).
Defense counsel asked the trial court to “stay any fines and fees pursuant to the
Duenas decision” at the hearing where defendant was placed on probation. (People v.
Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).) Counsel noted at the time that defendant
lived paycheck to paycheck, had been unemployed for three weeks, had other financial
obligations including child support, and that the weather reduced prospects for
construction work. The trial court denied the request, stating “I’m not going to do that as
long as he’s employed. ... He’s got three years to pay those fines and fees, and it’s not
all that much.”
Defendant’s appeal challenges the fines and fees under two federal constitutional
theories: due process as discussed in Dueñas, and the excessive fines clause of the
Eighth Amendment to the United States Constitution.
The trial court implicitly found that defendant had the ability to pay the statutory
minimum fines and fees imposed. Though defense counsel stated defendant had been
unemployed for three weeks and that construction business was slow due to the weather,
there was no indication defendant would not find new employment. The court also
observed that defendant would have three years to pay the fines and fees. We therefore
need not decide the constitutional issue addressed in Dueñas, which we note is pending
before the California Supreme Court in People v. Kopp, review granted November 13,
2019, S257844, and is the subject of conflicting views among the appellate courts and
within this very court.
As to the Eighth Amendment argument, defendant did not object on that basis in
the trial court and has therefore forfeited the issue. (See People v. McCullough (2013)
56 Cal.4th 589, 592–593 [constitutional challenge to booking fee forfeited]; People v.
Baker (2018) 20 Cal.App.5th 711, 720 [Eighth Amendment challenge to sentence
forfeited].) Even if the Eighth Amendment challenge had been preserved, we find the
trial court’s imposition of the statutory minimum fines was not grossly disproportionate
to the gravity of defendant’s offense, considering the relevant factors including ability to
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pay. (People v. Aviles (2019) 39 Cal.App.5th 1055, 1070 [factors to determine if a fine is
excessive in violation of the Eighth Amendment are “ ‘(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.’ ”].)
DISPOSITION
The order granting probation is affirmed.
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____________________________________
Grover, J.
WE CONCUR:
____________________________
Greenwood, P. J.
____________________________
Danner, J.
H047463 - The People v. Delte