Filed 4/27/21 P. v. Cabanayan 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

VILLA JEAN CABANAYAN,

Defendant and Appellant.

 H046630

 (Santa Clara County

 Super. Ct. No. C1475185)

Defendant Villa Jean Cabanayan pleaded no contest to arson of an inhabited

structure and admitted to using an accelerant in exchange for a state prison sentence of no 

longer than six years. The trial court sentenced defendant to a six-year term and imposed 

various fines and fees. On appeal, defendant contends that the trial court violated her 

constitutional rights by imposing the fines and fees without first determining that she had 

the ability to pay them. We shall affirm.

I. BACKGROUND

A. Factual Summary

We take the facts from the probation report.

Defendant and her teenaged son rented rooms in a single family home in Santa 

Clara. The landlord and another renter also lived in the home. In January 2014, the 

landlord decided to sell the home. When defendant saw a for sale sign in front of the 

house, she became upset. A few days later, in the early morning hours of January 31, 

2014, the house was destroyed by fire.
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Defendant’s son was staying at his aunt’s house the night of the fire and was not 

home. The landlord and the second renter were home sleeping when the fire started. The 

second renter awoke to a commotion. She looked out in the hallway and saw defendant 

running up the stairs with the bottom portion of her legs on fire. The second renter 

helped defendant extinguish the fire on her legs and all three women escaped the house. 

Defendant suffered burns that required hospitalization and skin grafts; the other women 

were unharmed.

Investigators determined that the fire was intentionally set in the garage and spread 

to the house. The County Crime Lab detected the presence of gasoline on the clothing 

defendant was wearing at the time of the fire.

B. Procedural History

The Santa Clara County District Attorney charged defendant with arson of an 

inhabited structure (Pen. Code, § 451, subd. (b))1and alleged that she used an accelerant 

within the meaning section 451.1, subdivision (a)(5). Defendant pleaded no contest to 

arson of an inhabited structure and admitted the use of an accelerant allegation on 

July 23, 2018. In exchange, the trial court gave an indicated sentence of no more than 

six years in state prison.

On December 17, 2018, the trial court imposed a six-year state prison sentence—

the low term of three years on count 1 plus the low term of three years on the 

enhancement. The court also imposed a $300 restitution fine (§ 1202.4, subd. (b)(2)) 

with an additional $300 parole revocation fine, which was suspended pending successful 

completion of parole (§ 1202.45); a $40 court operations assessment fee (§ 1465.8); a $30 

court facilities assessment fee (Gov. Code, § 70373); and a $129.75 criminal justice 

administration fee.

Defendant timely appealed.

1 All further statutory references are to the Penal Code unless otherwise indicated.
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II. DISCUSSION

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

contends the trial court violated her due process rights by imposing the restitution fine, 

court operations assessment fee, and court facilities assessment fee without first 

determining her ability to pay them. Alternatively, she argues that the restitution fine 

violates state and federal constitutional prohibitions on excessive fines.

A. Dueñas-Based Due Process Claim

In Dueñas, Division 7 of the Second Appellate District held that due process 

requires the trial court (1) to conduct a hearing to ascertain a defendant’s ability to pay 

before it imposes a court operations assessment or a court facilities assessment and (2) to 

stay execution of any restitution fine (§ 1202.4) unless and until it holds an ability-to-pay 

hearing and concludes that the defendant has the ability to pay the restitution fine.

The Dueñas court noted that “ ‘[c]riminal justice debt and associated collection 

practices can damage credit, interfere with a defendant’s commitments, such as child 

support obligations, restrict employment opportunities and otherwise impede reentry and 

rehabilitation.’ ” (Dueñas, supra, 30 Cal.App.5th at p. 1168.) In view of “[t]hese 

additional, potentially devastating consequences suffered only by indigent persons,”

Dueñas concluded that Government Code section 70373 and section 1465.8, 

subdivision (a)(1) effectively impose “additional punishment for a criminal conviction for 

those unable to pay.” (Dueñas, supra, at p. 1168.) Based on that conclusion, the court 

reasoned that imposing these assessments without a determination that the defendant has 

the ability to pay them is “fundamentally unfair” and “violates due process under both the 

United States Constitution and the California Constitution. (U.S. Const. 14th Amend.; 

Cal. Const., art. I, § 7.)” (Ibid., fn. omitted.)

As to the restitution fine, the Dueñas court’s conclusion that section 1202.4 

“punishes indigent defendants in a way that it does not punish wealthy defendants” 

apparently is limited to cases in which probation is granted. (Dueñas, supra, 30 
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Cal.App.5th at p. 1170.) In that circumstance, payment of the restitution fine must be 

made a condition of probation. (§ 1202.4, subd. (m).) Dueñas noted that those 

probationers who “successfully fulfill[ ] the conditions of probation for the entire period 

of probation [generally have] an absolute statutory right to have the charges against 

[them] dismissed. ([§] 1203.4, subd. (a)(1).)” (Dueñas, supra, at p. 1170.) Indigent 

probationers, who cannot pay the restitution fine and thus cannot fulfill the conditions of 

their probation, are denied that right solely by reason of their poverty, Dueñas reasons. 

(Id. at pp. 1170-1171.)

Some courts have disagreed with Dueñas’s due process analysis or have limited 

the case to its facts. (See People v. Hicks (2019) 40 Cal.App.5th 320, 329 [declining to 

follow Dueñas]; People v. Kingston (2019) 41 Cal.App.5th 272, 279 [same]; People v.

Aviles (2019) 39 Cal.App.5th 1055, 1069 (Aviles) [same]; (People v. Caceres (2019) 39 

Cal.App.5th 917, 926-927 [declining to extend Dueñas beyond “[its] extreme facts”];

People v. Allen (2019) 41 Cal.App.5th 312, 326 [expressing agreement with “the 

reasoning of the numerous courts that have rejected Dueñas’s due process analysis”].) 

Panels of this court have reached conflicting conclusions as to whether Dueñas was 

correctly decided. (See, e.g., People v. Santos (2019) 38 Cal.App.5th 923, 927 (Santos)

[following Dueñas]; id. at pp. 935-939 (dis. opn. of Elia, J.); People v. Adams (2020) 44 

Cal.App.5th 828, 832 (Adams) [concluding that “Dueñas was wrongly decided”]; id. at 

pp. 832-833 (dis. opn. of Premo, J.); People v. Petri (2020) 45 Cal.App.5th 82, 90 (Petri)

[finding that Dueñas was not “persuasive”]; id. at p. 95 (dis. opn. of Premo, J.).) The 

issue of whether a court must consider a defendant’s ability to pay before imposing or 

executing fines, fees, and assessments is pending before the California Supreme Court in

People v. Kopp (2019) 38 Cal.App.5th 47, 96, review granted November 13, 2019, 

S257844 (Kopp).

Defendant did not object in the trial court to the imposition of the fines and fees 

now at issue. Because her sentencing hearing took place before Dueñas was decided, we 
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excuse the failure to object on due process grounds rather than finding the issue forfeited. 

(See People v. Castellano (2019) 33 Cal.App.5th 485, 489 [finding no forfeiture, 

reasoning Dueñas announced a new “constitutional principle that could not reasonably 

have been anticipated at the time of trial”]; People v. Johnson (2019) 35 Cal.App.5th 134, 

138 [where minimum restitution fine was imposed, declining to find forfeiture, reasoning 

that Dueñas, while “grounded in long-standing due process principles and precedent,” 

was not “predictable [such that it] should have been anticipated”]; Santos, supra, 

38 Cal.App.5th at pp. 932-933 [declining to find forfeiture].)

However, we reject defendant’s due process claim on the merits because we 

remain convinced that Dueñas was wrongly decided for the reasons articulated in Santos, 

supra, 38 Cal.App.5th at pp. 935-939 (dis. opn. of Elia, J.); Adams, supra, 44 

Cal.App.5th at p. 832; and Petri, supra, 45 Cal.App.5th at p. 90. Accordingly, we 

decline to strike the court facilities assessment and court operations assessment or to stay 

the restitution fine.

B. Excessive Fines Claim

Alternatively, defendant argues that the restitution fine violates the federal and 

state constitutional prohibitions against excessive fines. The Attorney General agrees 

that the restitution fine is properly analyzed under those provisions, but maintains that the 

$300 fine passes constitutional muster.

The Eighth Amendment to the United States Constitution states: “Excessive bail 

shall not be required, nor excessive fines imposed, nor cruel and unusual punishments 

inflicted.” In Timbs v. Indiana (2019) 139 S.Ct. 682, 686 (Timbs), the United States 

Supreme Court held that the excessive fines clause is “an ‘incorporated’ protection 

applicable to the States . . . .” Article I, section 17, of the California Constitution 

prohibits “cruel or unusual punishment” and “excessive fines.”

“ ‘The touchstone of the constitutional inquiry under the Excessive Fines Clause is 

the principle of proportionality: The amount of the forfeiture must bear some 
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relationship to the gravity of the offense that it is designed to punish. [Citations.]

[A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional 

to the gravity of a defendant’s offense.’ [Citation.]” (Aviles, supra, 39 Cal.App.5th at 

p. 1070.) In United States v. Bajakajian (1998) 524 U.S. 321, “the United States 

Supreme Court announced an excessiveness test that has been recognized by California 

courts as applicable to both the federal and state excessive fines clauses.” (People v.

Cowan (2020) 47 Cal.App.5th 32, 45 (Cowan).) In People ex rel. Lockyer v. R.J.

Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728 (Lockyer), our supreme court wrote 

that, in Bajakajian, the United States Supreme Court “set out four considerations [for 

determining whether a fine is excessive]: (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.” In fact, “only the first three [of those 

factors] were at issue in Bajakajian. For the fourth factor—ability to pay—the Lockyer

court relied not only on Bajakajian, but also on [a] Court of Appeal decision,” which in 

turn relied on a federal circuit case taking a “more expansive view that ability to pay is 

relevant to excessiveness under Bajakajian.” (Cowan, supra, at pp. 47-48.)

Some of our fellow Courts of Appeal have held that ability-to-pay challenges to 

punitive fines, including restitution fines, are better analyzed under the federal and state 

constitutional prohibitions against excessive fines. (See, e.g., Kopp, supra, 38 

Cal.App.5th at p. 96, review granted [restitution fines]; Cowan, supra, 47 Cal.App.5th at 

p. 48 [concluding that “ability to pay is an element of the excessive fines calculus under 

both the federal and state Constitutions, [such that] that a sentencing court may not 

impose court operations or facilities assessments or restitution fines without giving the 

defendant, on request, an opportunity to present evidence and argument why such 

monetary exactions exceed his ability to pay”]; Aviles, supra, 39 Cal.App.5th at pp. 1071-

1072 [addressing challenges to restitution fines and other assessments under the Eight 

Amendment and finding them not to be unconstitutionally excessive].)
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For two independent reasons, we conclude that defendant’s excessive fines claim 

has been forfeited. First, defendant failed to raise an excessive fines objection in the trial 

court to preserve her claim. (See People v. McCullough (2013) 56 Cal.4th 589, 592-593

[constitutional challenge to booking fee forfeited].) Such an objection was necessary 

because there has been no unforeseeable change in the law governing excessive fines

claims. While the United States Supreme Court did not hold that the excessive fines

clause was applicable to the states until after defendant’s sentencing (Timbs, supra, 139 

S.Ct. at p. 687), California courts have long entertained challenges to fines under article I, 

section 17 of the state constitution. (See, e.g., Lockyer, supra, 37 Cal.4th at p. 728.) 

Second, defendant fails to support her bare assertion that the $300 restitution fine is 

unconstitutionally excessive with any legal analysis. She does not, for example, explain 

why the fine is grossly disproportional to the gravity of her offense or analyze the factors 

set forth in Lockyer. Accordingly, we treat the excessive fines claim as forfeited. 

(People v. Stanley (1995) 10 Cal.4th 764, 793; People v. Nunez and Satele (2013) 57 

Cal.4th 1, 51.)

III. DISPOSITION

The judgment is affirmed.
_________________________________

ELIA, ACTING P.J.

WE CONCUR:

_______________________________

BAMATTRE-MANOUKIAN, J.

_______________________________

GROVER, J.

People v. Cabanayan

H046630