Filed 8/10/21 P. v. Cloyd 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Shasta)
----
THE PEOPLE, C092424
Plaintiff and Respondent, (Super. Ct. No. 20F2904)
v.
DESMOND THOMAS CLOYD,
Defendant and Appellant.
Defendant Desmond Thomas Cloyd pleaded no contest to corporal injury on a
cohabitant/child’s parent and resisting a peace officer. After placing defendant on a term
of probation, the court imposed the mandatory minimum restitution fine and court
operations and conviction assessments. On appeal, defendant argues the imposition of
the assessments without a hearing on his ability to pay them violates his constitutional
rights, and the imposition of the restitution fine without an ability to pay hearing violates
equal protection principles and the constitutional prohibition on excessive fines. We
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reject defendant’s contentions, but will modify the judgment to dismiss the balance of the
charging document and affirm the judgment, as modified.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant choked the victim, with whom he had a romantic relationship and child,
until she was nearly unconscious. When police officers attempted to arrest defendant, he
fled. The prosecution charged defendant with assault with force likely to cause great
bodily injury (Pen. Code, § 245, subd. (a)(4)—count 1),1 corporal injury to a
cohabitant/child’s parent (§ 273.5, subd. (a)—count 2), resisting an officer (§ 148, subd.
(a)(1)—count 3), child endangerment (§ 273a, subd. (b)—count 4), and two counts of
violating a protective order (§ 273.6, subd. (a)—counts 5 & 6). Defendant pleaded no
contest to the corporal injury to a cohabitant/child’s parent and resisting an officer counts.
As part of the agreement, all other counts were to be dismissed.
The trial court suspended imposition of sentence and placed defendant on a three-
year term of probation, which included service of up to 180 days in county jail. The
court imposed various fines, fees, and assessments, including a $300 restitution fine, a
stayed $300 probation revocation fine, a $40 court operations assessment, and a $30
criminal conviction assessment. Defendant did not object to the imposition of these
amounts.
DISCUSSION
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), and its
underlying authorities, defendant challenges the $300 restitution fine, $40 court
operations assessment, and $30 criminal conviction assessment, arguing the trial court
violated his constitutional rights when it imposed the amounts without first assessing his
ability to pay them. In particular, defendant argues Dueñas requires the two assessments
1 Undesignated statutory references are to the Penal Code.
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to be stayed, and equal protection principles and the constitutional prohibition on
excessive fines require the same for the restitution fine.
The People argue defendant forfeited his claims because he did not raise the issue
of his ability to pay in the trial court. Assuming without deciding defendant’s challenges
to these fines and assessments were not forfeited, we conclude Dueñas was wrongly
decided and therefore reject defendant’s claims on that basis.
Drawing on principles of due process Dueñas 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.” (Dueñas, supra, 30
Cal.App.5th 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.)
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 facilities and court operations assessments under section
1465.8 and Government Code section 70373, but not restitution fines under section
1202.4. (Kopp, at pp. 95-96.)
In the meantime, we join several other courts in concluding 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.
Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320,
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329, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th
1055, 1069 (Aviles); People v. Caceres (2019) 39 Cal.App.5th 917, 928.) Having done
so, we reject defendant’s Dueñas challenge to the mandatory assessments.
As to the restitution fine, we similarly agree with cases concluding equal
protection principles do not require an ability to pay hearing. As explained in Aviles,
“Dueñas’s due process and equal protection analysis was improperly based on a series of
cases that addressed the concern ‘that due process and equal protection guaranteed an
indigent criminal defendant a free transcript of trial proceedings in order to provide that
defendant with access to a court of review, where he [or she] would receive an adequate
and effective examination of his criminal conviction. [Citation.]’ [Citation.] Dueñas’s
reliance on certain statutes was also incorrect because ‘these statutes instead ensure that
all people, without regard to economic status, have equal access to our justice system.’
[Citation.] The fine and assessments imposed on the probationer in Dueñas did not raise
‘an issue of access to our courts or justice system’ or satisfy ‘the traditional due process
definition of a taking of life, liberty or property.’ [Citation.] ‘[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.’ ” (Aviles, supra, 39 Cal.App.5th at pp. 1068-1069, italics omitted.)
As to the federal and state constitutional prohibitions on excessive fines, we are
not persuaded by defendant’s claim that imposing the restitution fine without considering
his ability to pay violated the excessive fines clauses of the federal and state
Constitutions.
“The Eighth Amendment prohibits the imposition of excessive fines. The word
‘fine,’ as used in that provision, has been interpreted to be ‘ “a payment to a sovereign as
punishment for some offense.” ’ ” (People v. Gutierrez (2019) 35 Cal.App.5th 1027,
1040 (conc. opn. of Benke, J.).) The determination of whether a fine is excessive for
purposes of the Eighth Amendment is based on the factors set forth in United States v.
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Bajakajian (1998) 524 U.S. 321 [141 L.Ed.2d 314] (Bajakajian). (People ex rel. Lockyer
v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728.)
“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.]”
(Bajakajian, supra, 524 U.S. at p. 334.) “[A] punitive forfeiture violates the Excessive
Fines Clause if it is grossly disproportional to the gravity of a defendant’s offense.”
(Ibid.)
The California Supreme Court has summarized the factors in Bajakajian to
determine if a fine is excessive in violation of the Eighth Amendment: “(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., supra, 37 Cal.4th at p. 728; see People v.
Gutierrez, supra, 35 Cal.App.5th at pp. 1040-1041 (conc. opn. of Benke, J.).) “While
ability to pay may be part of the proportionality analysis, it is not the only factor.”
(Aviles, supra, 39 Cal.App.5th at p. 1070, citing Bajakajian, supra, 524 U.S. at pp. 337-
338.) We review the excessiveness of a fine challenged under the Eighth Amendment de
novo. (Aviles, at p. 1072.)
Here, the $300 restitution fine imposed in defendant’s case was not grossly
disproportionate to the level of harm and defendant’s culpability in the offense.
Defendant choked the mother of his child until she was nearly unconscious while she was
changing their baby’s diaper, and only stopped when one of her two other children yelled
at defendant to stop. It was not grossly disproportionate to impose the statutory
minimum restitution fine for such conduct. Accordingly, the $300 restitution fine
imposed in this case is not excessive under the Eighth Amendment.
Finally, we note that the terms of the parties’ plea agreement required the
dismissal of counts 1, 4, 5, and 6 after defendant pleaded to counts 2 and 3. The court did
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not orally dismiss these counts, although dismissal is noted in the court’s minute order.
We will modify the judgment to dismiss the counts. (§ 1260; see People v. Mancheno
(1982) 32 Cal.3d 855, 860-861.)
DISPOSITION
The judgment is modified to dismiss the balance of the charging document. As
modified, the judgment is affirmed.
/s/
BLEASE, Acting P. J.
We concur:
/s/
MURRAY, J.
/s/
RENNER, J.
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