Filed 5/19/21 P. v. Player 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,

Plaintiff and Respondent,

v.

DAVID PLAYER,

Defendant and Appellant.

 H047887

 (Monterey County

 Super. Ct. No. 18CR006065)

Defendant David Player appeals after a jury convicted him of two counts of 

possession of a weapon while in custody. (Pen. Code, § 4502, subd. (a).1) The jury 

found true allegations that defendant had three prior convictions that qualified as 

“strikes.” (§ 1170.12.) 

The trial court sentenced defendant to an aggregate prison sentence of 50 years to 

life, to be served consecutively to the life terms that defendant was already serving. The 

trial court ordered defendant to pay a $10,000 restitution fine (§ 1202.4, subd. (b)) and

imposed but suspended a $10,000 parole revocation restitution fine (§ 1202.45, 

subd. (a)).

Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant 

contends the trial court erroneously imposed the $10,0000 restitution fine and the 

suspended $10,000 parole revocation fine without finding he had the ability to pay. 

1 Unspecified section references are to the Penal Code.
2

Defendant contends this court should reduce those fines to the $300 statutory minimum 

or stay the fines until the People demonstrate he has an ability to pay. 

As we explain below, we find defendant has failed to show he is entitled to 

reduction of the fines based on Dueñas. Therefore, we will affirm the judgment.

I. BACKGROUND

A. Defendant’s Prior Prison Sentences

In 2000, defendant was sentenced to an indeterminate life term, consecutive to a 

17-year determinate term, for convictions of attempted first degree murder (§ 664, 187, 

subd. (a)), attempted voluntary manslaughter (§ 664, 192, subd. (a)), second degree 

robbery (§ 211), and exhibiting a firearm in the presence of a peace officer (§ 417, 

subd. (c)), with firearm use enhancements (former § 12022.5, subd. (a)(1), § 12022.53, 

subd. (b)). 

In 2007, defendant was sentenced to an indeterminate term of “life without 

possibility of parole for 27 years, plus 5 years” for convictions of assault by a life inmate 

on a correctional officer (§ 4500) and possession of a weapon while in custody (§ 4502, 

subd. (a)). The trial court specified that the sentence was to be served consecutively to 

the sentence defendant was already serving.

B. Defendant’s Current Convictions and Sentence

The facts underlying defendant’s current convictions are not relevant to the issue 

defendant raises on appeal. Briefly, on two occasions, defendant was found in possession 

of an inmate-manufactured weapon while he was an inmate at Salinas Valley State 

Prison. First, on April 17, 2018, defendant had a “stabbing weapon” in the waistband 

area of his pants. The weapon had a sharpened metal end and a melted plastic handle, 

with a rubber band for grip. Second, on October 1, 2018, after defendant fought with 

another inmate, defendant retrieved a weapon from the ground and tried to throw it over a 

wall. The weapon had a metal end and a cloth handle. 
3

A jury found defendant guilty of two counts of possession of a weapon while in 

custody (§ 4502, subd. (a)) and found true three “strike” allegations (§ 1170.12). 

At defendant’s sentencing hearing, held in February 2020, the trial court imposed

an aggregate prison sentence of 50 years to life, comprised of two consecutive terms of 

25 years to life. The trial court specified that the current sentence was to be served 

consecutively to the life terms that defendant was already serving. The trial court ordered 

defendant to pay a $10,000 restitution fine (§ 1202.4, subd. (b)) and imposed but 

suspended a $10,000 parole revocation restitution fine (§ 1202.45, subd. (a)).

Defendant’s trial counsel asked the trial court to “reconsider” its imposition of 

“the maximum fines and fees,” noting that defendant was “in custody . . . serving a 

lengthy sentence with limited prospects at a level four prison where there’s not a lot of 

opportunity for work.” Defendant’s trial counsel requested the trial court impose “the 

minimum [restitution] fine[] of $300.” The trial court declined to reduce the fines.

II. DISCUSSION

A. The Dueñas Case

The defendant in Dueñas was indigent, homeless, and unemployed due to a 

disability. Her driver’s license was suspended because she was unable to pay for 

citations she had received in the past. She was convicted of driving with a suspended 

license, placed on misdemeanor probation, and ordered to pay a $150 restitution fine, a 

$40 court facility fee, and a $30 court operations assessment. (Dueñas, supra, 30 

Cal.App.5th at p. 1162.) The trial court found that the latter two fees were mandatory 

and that the restitution fine could only be waived if there were “ ‘compelling and 

extraordinary reasons’ ” as defined by section 1202.4, subdivision (c), which excludes 

“inability to pay” as a basis for waiver. (Dueñas, supra, at p. 1163.) 

Dueñas found it unconstitutional to “us[e] the criminal process to collect” fines 

and fees that the defendant could not pay due to her poverty. (Dueñas, supra, 30 

Cal.App.5th at p. 1160.) The court held “that due process of law requires the trial court 
4

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” and “that although Penal Code 

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.” (Dueñas, supra, at p. 1164.)

The Dueñas court noted that the court facility fee and the court operations 

assessment were intended to generate funds for courts rather than to be “punitive.” 

(Dueñas, supra, 30 Cal.App.5th at p. 1165.) However, that revenue goal is not furthered 

by imposing such fees on people who are unable to pay. (Id. at p. 1167.) Moreover, a 

person who cannot pay court fees can face additional consequences, such as collections 

actions, which the court described as “additional punishment” that, if imposed without a 

finding of ability to pay, would be “fundamentally unfair.” (Id. at p. 1168.)

The restitution fine, in contrast, is intended to be “additional punishment for a 

crime.” (Dueñas, supra, 30 Cal.App.5th at p. 1169.) However, imposition of even a 

minimum fine on an indigent defendant can result in disparate treatment of indigent and 

wealthy probationers, because someone who can pay off the restitution fine and fulfills 

all the other obligations of probation can often obtain dismissal of the charges pursuant to 

section 1203.4. (See Dueñas, supra, at p. 1170.) 

B. Post-Dueñas Cases

Courts of Appeal have not agreed whether Dueñas was correctly decided, and the 

issue is pending before the California Supreme Court in People v. Kopp (2019) 38 

Cal.App.5th 47, S257844, review granted November 13, 2019. Members of this court 

have reached different conclusions on the issue. (See People v. Adams (2020) 44 

Cal.App.5th 828, 831 [maj. opn.]; id. at pp. 832-833 [dis. opn. of Premo, J.]; People v. 
5

Petri (2020) 45 Cal.App.5th 82, 91-92 [maj. opn.]; id. at p. 95 [dis. opn. of Premo, J.]; 

People v. Santos (2019) 38 Cal.App.5th 923, 933 [maj. opn.]; id. at p. 935 [dis. opn. of 

Elia, J.] (Santos).)

Some courts have held that instead of a due process analysis, a defendant’s 

constitutional challenge to the imposition of fees and fines “should be raised under the 

Eighth Amendment to the United States Constitution to determine whether the fines, fees, 

and assessments are ‘grossly disproportional to the gravity of a defendant’s offense’ and 

thus ‘excessive.’ ” (People v. Aviles (2019) 39 Cal.App.5th 1055, 1061 (Aviles); see also 

People v. Cowan (2020) 47 Cal.App.5th 32, 42, review granted Jun. 17, 2020, S261952.)2

Some courts have found Dueñas inapplicable or distinguishable because the 

defendants’ criminal convictions did not result from their inability to pay prior fines and 

fees. (E.g., People v. Lowery (2020) 43 Cal.App.5th 1046, 1054-1055; People v. Caceres 

(2019) 39 Cal.App.5th 917, 928.) And some courts have found that even if a trial court is 

required to hold an ability to pay hearing, failure to do so is harmless if the record 

demonstrates that the defendant would be able to earn sufficient prison wages such that 

he or she could not have established an inability to pay. (See People v. Johnson (2019) 

35 Cal.App.5th 134, 139-140; People v. Jones (2019) 36 Cal.App.5th 1028, 1035

(Jones).)

C. Arguments and Analysis

Defendant contends the record contains no substantial evidence of his ability to 

pay the $10,000 restitution fine. Defendant acknowledges that, as a life prisoner as 

opposed to a probationer, he does not face the prospect of further incarceration or 

extension of his probation if he is unable to pay his fees and fines. However, he argues, 

2

In the present case, the Attorney General takes the position that defendant’s 

challenge should be reviewed under the Eighth Amendment rather than under the due 

process clause. The Attorney General argues that the $10,000 restitution fine was not 

grossly disproportionate to the gravity of defendant’s offenses. 
6

he does face the prospect of having his prison wages garnished, which could impact his 

ability to buy items from the prison canteen. Defendant contends that a wealthier

prisoner would not face such a “hardship.” 

Defendant’s argument stretches Dueñas well beyond its holding. Dueñas did not 

hold that fines and fees must be imposed in a manner that ensures all defendants have an 

equal financial burden, or that fines and fees may not result in any financial hardship to a 

defendant. Rather, Dueñas held that it is unfair to impose fines and fees that effectively 

result in further penal consequences to a person who has no ability to pay. A defendant’s 

diminished ability to purchase items from the prison canteen is not a further penal 

consequence within the rationale of Dueñas.

Even if we assume that Dueñas was correctly decided and that its rationale is 

applicable to the present case, substantial evidence supports the trial court’s implied 

finding that defendant had the ability to pay the $10,000 restitution fine.

Substantial evidence is “evidence which is reasonable, credible, and of solid 

value.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) In conducting a substantial 

evidence review, “ ‘a reviewing court “presumes in support of the judgment the existence 

of every fact the trier could reasonably deduce from the evidence.” ’ ” (People v. 

McCurdy (2014) 59 Cal.4th 1063, 1104.)

Defendant, who was 38 years old at the time of sentencing, will be serving a very 

lengthy prison term, and nothing in the record indicates he could not work to earn prison 

wages. In fact, defendant’s trial counsel implicitly conceded that defendant had the 

physical ability to work when he noted that defendant’s job opportunities could be 

limited due to the classification of his prison.

“Wages in California prisons currently range from $12 to $56 a month. 

[Citations.] And half of any wages earned (along with half of any deposits made into [a 

defendant’s] trust account) are deducted to pay any outstanding restitution fine.” (Jones,

supra, 36 Cal.App.5th at p. 1035; see People v. Hennessey (1995) 37 Cal.App.4th 1830, 
7

1837 [“defendant’s ability to obtain prison wages” is properly considered when 

determining whether ability to pay]; Santos, supra, 38 Cal.App.5th at p. 934 [same].) 

While asserting that his ability to work in prison will depend on the availability of 

jobs, defendant acknowledges that he could earn up to $14.80 per week. At that rate, 

defendant would earn $769.60 per year. With half of those wages being deducted, he

would be able to pay the $10,000 restitution fine in about 26 years. Even at a lower rate 

of pay, defendant could pay the $10,000 restitution fine during his sentence of 50 years to 

life. (See Aviles, supra, 39 Cal.App.5th at pp. 1062, 1076 [defendant sentenced to a 

prison term of 82 years to life had the ability to pay $10,600 in restitution fines, $160 in 

court operations assessments, and $120 in court facilities funding assessments].) On this 

record, the trial court could reasonably conclude that “[w]hile it may take defendant some 

time to pay the amounts imposed in this case” (Aviles, at p. 1077), defendant failed to 

carry his burden to “present evidence of his . . . inability to pay” (People v. Castellano

(2019) 33 Cal.App.5th 485, 490).

III. DISPOSITION

The judgment is affirmed.
Cogliati, J.*

WE CONCUR:

Greenwood, P.J.

Danner, J.

People v. Player

H047887

*

Judge of the Santa Cruz County Superior Court assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.