People v. Aviles (2019) 39 Cal.App.5th 1055 Subsequent history: Petition for review and request for depublication denied 12/11/2019. Remittitur issued.
Aviles was convicted of the attempted premeditated murders of two police officers with a gun use enhancements found true (Pen. Code, §§ 664/187, 12022.53, subd. (d)). In 2016, he was sentenced to an aggregate term of 80 years to life in prison, and ordered to pay a $10,000 restitution fine (Pen. Code, § 1202.4, subd. (b)), $120 in court operations assessments (Pen. Code, § 1465.8), and $90 in court facilities fees (Gov. Code, § 70373). The court also imposed fines, fees, and assessments for a separate case. The court denied the public defender’s request for reimbursement of attorney fees in the amount of $50,000, finding that Aviles did not have the ability to pay in light of his life sentence in prison. On appeal, Aviles relied on Dueñas and argued the trial court violated his due process and equal protection rights by imposing the fines, fees, and assessments without conducting a hearing to determine whether he had the ability to pay those amounts.

Holdings/Reasoning:

• Dueñas was wrongly decided to the extent it relied on a due process analysis to evaluate the Aviles’ constitutional challenge to the imposition of fines, fees, and assessments based on inability to pay (agreeing with Justice Benke’s concurring opinion in People v. Gutierrez (2019) 35 Cal.App.5th 1027). People v. Castellano (2019) 33 Cal.App.5th 485 incorrectly extended Dueñas’s due process analysis to cases where a defendant is sentenced to prison and ordered to pay such amounts.
• A constitutional challenge to the imposition of fines, fees, and assessments based on inability to pay should instead be based on the excessive fines clause of the Eighth Amendment, not the due process clause. Such a challenge should address whether the fines, fees, and assessments are grossly disproportional to the gravity of defendant’s offense and thus excessive. (See Timbs v. Indiana (2019)__U.S.__[139 S. Ct. 682] for the factors to determine if a fine is excessive.) Here, the fines, fees, and assessments were not excessive under the Eighth Amendment.
• Even if Dueñas applied to this case, Aviles’ fines and fees challenge was forfeited because he did not raise an ability to pay objection when the trial court imposed a $10,000 restitution fine, even though he had a statutory basis to do so under section 1202.4, subdivision (c). (Citing People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464.)
• The sentencing court’s finding that Aviles lacked the ability to reimburse the county for his public defender was correct under Penal Code section 987.8 since he was sentenced to state prison. (See Pen. Code, § 987.8, subd. (g)(2)(b) [defendant sentenced to prison or to county jail for a period longer than 364 days shall be determined not to have a reasonably discernible future financial ability to reimburse the costs defense].) However, the court’s finding does not provide a factual basis to overcome Aviles’ failure to object to the imposition of the fines and fees since he received notice of these amounts in the probation report.
• Even if Dueñas applied, any error was harmless. The court inferred from the record that Aviles has the ability to pay the fines and fees imposed upon him from probable future wages, including prison wages.