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Filed 8/2/21 P. v. Espinoza CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Butte)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMON CHARLES ESPINOZA, SR.,

Defendant and Appellant. C091874

(Super. Ct. No. 19CF06285)

Defendant Jamon Charles Espinoza, Sr.
, pleaded guilty to corporal injury to a spouse and making criminal threats . On appeal, relying on People v. Dueñas (2019)

30 Cal. App.5th 1157 ( Dueñas ), he asserts court

- imposed fines and fees should be
stricken because he has no ability to pay them. We affirm.2 BACKGROUND Defendant pleaded guilty to corporal injury to a spouse (Pen. Code, § 273.5, subd.
(a) ) 1 and making criminal threats ( § 422, subd. (a))

. The trial court sentenced defendant to an aggregate term of four years eight months in state prison. Regarding costs, the court found defendant had no ability to pay the d omestic

v iolence p rogram f

ee and waived the p resentence i nvestigation r eport f ee. The court,
however, did impose a $300 restitution fine ( § 1202.4, subd. (b)), a $300 parole
revocation fine ( § 1202.45; stayed), an $80 court operations assessment ( § 1465.8), and a $60 conviction assessme nt (Gov. Code, § 70373) . D efense counsel “ ask[ed] the [c]ourt

to strike all fines and fees based on inability to pay

. ” The trial court responded: “ The [c]ourt is going to deny that request. I did impose only the mandatory minimum fines. I

struck as mu ch as I, as I could besides that.” The abstract of judgment reflects imposition of the statutory mandatory minimum costs. Defendant timely appealed. After filing his notice of appeal, defendant sent a letter to the trial court, again telling the court h e lacked the ability to pay any fines and fees. Relying on Due ñ as ,
supra , 30 Cal. App.5th 1157, he asked the trial court to strike the fines and fees imposed. The court denied his request.

DISCUSSION On appeal, defendant once again invokes Dueñas
, supra , 30 Cal. App.5th 1157, contending the trial court violated due process principles and the Eight Amendment
prohibition against excessive fines by imposing costs it believed were mandatory, and

1 Undesignated statutory references are to the Penal Code.3

therefore, the matter should be remanded for a determination of his ability to pay the costs. We disagree.

Dueñas
, supra , 30 Cal. App.5th 1157, held that due process requires the trial court to stay execution of restitution fines, as well as court operation and conv iction assessments, until it has determined the defendant has the present ability to pay. ( Id . at

pp. 1172

- 1173.) On appeal, defendant argues that Dueñas applies to his case

. The People disagree.
We join the courts concluding Dueñas was wrongly decided . ( People v. Pack

Ramirez (2020) 56 Cal. App.5th 851, 860; People v. Cota (2020) 45 Cal. App.5th 786,

794

- 795; People v. Kingston (2019) 41 Cal. App.5th 272, 279; People v. Hicks (2019)

40 Cal. App.5th 320 , 329 , review granted Nov. 26, 2019, S258946; People v . Aviles
(2019) 39 Cal. App.5th 1055
, 1061

- 1069 ; People v. Caceres (2019) 39 Cal. App.5th 917,

923

- 929.) We therefore reject defendant’s contentions based on Dueñas

. As for defendant’s Eighth Amendment claims, it appears he relies solely on

Dueñas , but to the extent he does not, we reject that contention as well. As this court recently noted: “ ‘The Eighth Amendment prohibits the imposition of excessive fines. The word “fine,” as used in that provision, has been interpret ed to be “ ‘a payment to a sovereign as punishment for some offense.’ ” ’ [Citation.] [¶] ‘The touchstone of the
constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some re lationship 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.] To determine wheth er a fine is excessive in violation of the Eighth
Amendment, we consider: ‘(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.’ [Ci tation

. ] Accordingly, although ability to pay is part of the proportionality analysis, it is not the only factor.” ( People v. Pack

- Ramirez

, supra ,4

56 Cal. App.5th at pp. 860

- 861.) On this record, we cannot conclude the fines imposed were grossly dispropo rtionate to the gravity of the offense. ( Ibid .)

DISPOSITION The judgment is affirmed.

/s/ RAYE, P. J.

We concur:

/s/ HOCH, J.

/s/ KRAUSE, J.