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Filed 8/28/20 P. v. Peniaranda-Balderas CA3

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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.

ARTHUR KEITH PENIARANDA-BALDERAS,

Defendant and Appellant.

C087085

(Super. Ct. No. 17CF06046)

OPINION ON TRANSFER

Appointed counsel for defendant Arthur Keith Peniaranda-Balderas filed an 

opening brief setting forth the facts of the case and asking this court to review the record 

and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 

25 Cal.3d 436.) We shall conditionally reverse the judgment and remand for further 

proceedings under Penal Code section 1001.36; unless otherwise stated, statutory section 
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references that follow are to the Penal Code. In all other respects, we shall affirm the 

judgment.

FACTS AND PROCEDURAL HISTORY

We provide the following brief description of the facts and procedural history of 

the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

Defendant entered the victims’ home through an unlocked door while they were 

asleep inside. He stole the victims’ keys and electronics and then used the keys to steal 

their car. He was later stopped by law enforcement for his erratic driving and claimed he 

stole the car because he needed money. 

The People charged defendant with first degree burglary, alleging people were 

present at the time of the burglary. (§§ 459, 667.5, subd. (c).) The People also alleged 

defendant was previously convicted of two strike offenses. (§§ 667, subd. (d), 1170.12, 

subd. (b).) Defendant pleaded no contest to burglary, admitted a person was present 

during the burglary, and admitted to a prior strike conviction. 

In exchange for defendant’s plea, the People moved the court to strike the 

allegation that defendant was convicted of a second strike offense. The court granted the 

People’s motion. The trial court subsequently sentenced defendant to the upper term of 

six years in state prison, doubled for the prior strike offense. (§ 461, subd. (a) [first 

degree burglary punishable by two, four, or six years in state prison].) 

The court also resentenced defendant for his conviction in Tehama County 

Superior Court case No. 17CR001625: two years for receiving stolen property (§ 496d, 

subd. (a)), and two additional years for enhancement allegations under section 667.5, 

subdivision (b). The court ordered those to be served concurrent to defendant’s 12-year 

prison sentence in the current case. 

The court then ordered defendant to pay the following fines and fees: a $300 

restitution fine (§ 1202.4); a $300 parole revocation fine, which was stayed (§ 1202.45); a 
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discretionary section 672 fine totaling $200; a $40 court surcharge (§ 1465.7); a $100 

construction fund fee (Gov. Code, § 70372, subd. (a)); a state penalty assessment totaling 

$200 (§ 1464); a DNA identification fee totaling $20 (Gov. Code, § 76104.6); a $140 

county penalty assessment (§ Gov. Code, § 76000); a theft fine totaling $39 (§ 1202.5); a 

court operations assessment of $40 (§ 1465.8); a conviction assessment totaling $30 

(Gov. Code, § 70373); and victim restitution in an amount to be determined later. The 

trial court also re-imposed those fines and fees previously imposed in case No. 

17CR001625.

Defendant timely appealed; he did not obtain a certificate of probable cause.

DISCUSSION

Appointed counsel filed an opening brief that sets forth the facts of the case and 

asks us to determine whether there are any arguable issues on appeal. (People v. Wende, 

supra, 25 Cal.3d 436.) Counsel advised defendant of the right to file a supplemental brief 

within 30 days of the date the People filed their opening brief. More than 30 days 

elapsed, and we received no communication from defendant. We examined the entire 

record and found no arguable error that would result in a disposition more favorable to 

defendant. We filed our earlier opinion accordingly. 

Defendant then petitioned for rehearing and asked to submit supplemental briefing 

on the issues recently addressed in People v. Dueñas (2019) 30 Cal.App.5th 1157 

(Dueñas), and those raised by the amendments to section 1001.36 and mental health 

diversion programs. We granted defendant’s petition. 

On, March 24, 2020, we filed our opinion on rehearing, affirming the judgment. 

The Supreme Court subsequently granted defendant’s petition for review, directed us to 

vacate our decision on rehearing, and further directed us to reconsider defendant’s section 

1001.36 claims in light of its recent decision in People v. Frahs (2020) 9 Cal.5th 618

(Frahs). We reconsider those claims here.
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I

Fines and Fees

In his supplemental brief, defendant claims that pursuant to the holding in Dueñas, 

supra, 30 Cal.App.5th at pages 1168, 1172, the portion of the trial court order directing 

defendant to pay fines and fees should be stayed pending a hearing on his ability to pay. 

In Dueñas, after numerous citations and convictions related to driving without a 

license resulted in significant fines and fees the defendant could not pay, Dueñas 

requested a hearing to determine her ability to pay those costs. (Dueñas, supra, 

30 Cal.App.5th at pp. 1160-1163.) Following the statutory language, the trial court ruled 

that the assessments were mandatory and that Dueñas had not shown the “ ‘compelling 

and extraordinary reasons’ ” required to waive the restitution fine. (Id. at p. 1163.)

The Court of Appeal reversed, holding that due process prohibits a trial court from 

imposing court assessments under section 1465.8 and Government Code section 70373, 

and requires the trial court to stay execution of any restitution fines, until it ascertains the 

defendant’s ability to pay those assessments and fines. (Dueñas, supra, 30 Cal.App.5th 

at p. 1164.) To support this conclusion, Dueñas relied on two lines of due process 

precedent. First, it cited authorities addressing access to courts and waiving court costs 

for indigent civil litigants. Second, it relied on due process and equal protection 

authorities that prohibit incarceration based on a defendant’s indigence and inability to 

pay a fine or fee. (Id. at pp. 1165-1166, 1168.) The court also concluded that imposing 

costs on indigent defendants “blamelessly” unable to pay them transformed a “funding 

mechanism for the courts into additional punishment.” (Id. at p. 1168.) 

The appellate court in People v. Hicks (2019) 40 Cal.App.5th 320 (Hicks), review 

granted November 26, 2019, S258946, rejected Dueñas’s reasoning, under both lines of 

due process authority. Although review has been granted in Hicks, we may still consider 

it as persuasive authority. (Cal. Rules of Court, rule 8.1115(e)(1).) 
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Hicks first observed that imposition of fees after a determination of guilt, does not 

deny a criminal defendant’s access to the courts, and does not interfere with a defendant’s 

right to present a defense or challenge a trial court’s rulings on appeal. (Hicks, supra,

40 Cal.App.5th at p. 326, review granted.) Second, Hicks noted imposition of fees, 

without more, does not result in incarceration for nonpayment of fines and fees due to 

indigence; thus, it does not infringe on that fundamental liberty interest. (Ibid., review 

granted.) 

Hicks went on to conclude that Dueñas’s expansion of these due process 

“foundational pillars” was an incorrect interpretation of due process foundations because 

it was inconsistent with the principles announced by our Supreme Court and the United 

States Supreme Court, that imposition of fines and assessments on indigent defendants is 

not prohibited because the State has a fundamental interest in punishing those who 

violate the criminal law, and not conferring immunity for such punishment on indigent 

defendants. (Hicks, supra, 40 Cal.App.5th at pp. 327-328, review granted.) In addition, 

Dueñas’s ruling was inconsistent with the purposes and operation of probation by 

relieving an indigent defendant of any duty to make an effort to repay their debt to 

society, and giving defendants a significant period of time in which to repay these 

financial obligations. (Ibid., review granted.)

We find the reasoning in Hicks well-founded and persuasive and reject the holding 

in Dueñas. We thus conclude the imposition of fines, fees, and assessments on an 

indigent defendant does not violate due process and there is no requirement the trial court 

conduct an ability to pay hearing prior to imposing these fines, fees, and assessments. 

II

Mental Health Diversion Program, Section 1001.36

On March 1, 2018, defendant pleaded no contest to first degree burglary in 

violation of section 459 and admitted an allegation that there was a person or persons 
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present in the building which he burglarized. He also admitted he had been convicted of 

a felony that qualified as a strike within the meaning of sections 667, subdivision (d) and 

1170.12, subdivision (b). On March 29, 2018, the trial court sentenced defendant

according to the terms of his plea agreement. 

In his supplemental brief, defendant also contends he should have the benefit of 

section 1001.36 effective June 27, 2018. Defendant asks us to remand the matter so the 

trial court can determine whether he is eligible for “pretrial diversion” due to a specified 

mental disorder under the recently enacted section 1001.36, which he argues is 

retroactive as to all cases not yet final. Our Supreme Court recently resolved a conflict in 

the opinions of the Courts of Appeal as to whether a defendant could have the benefit of 

“pretrial diversion,” as set forth in section 1001.36, post-trial and has decided this issue in 

defendant’s favor. (Frahs, supra, 9 Cal.5th 618.) Following Frahs as we must, we will

conditionally reverse the judgment here with directions for the trial court to consider 

defendant’s eligibility for mental health diversion under section 1001.36. We express no 

view as to whether defendant will be able to show eligibility on remand or whether the 

trial court should exercise its discretion to grant diversion if it finds defendant eligible. 

DISPOSITION

The judgment is conditionally reversed. The matter is remanded to the trial court 

with directions to hold a diversion eligibility hearing under section 1001.36. If the trial 

court finds defendant eligible under that statute, the court may grant diversion. If 

defendant then satisfactorily performs in diversion, the trial court shall dismiss the 

charges. (§ 1001.36, subd. (e).) If, however, the trial court does not grant diversion, or 

the court grants diversion but defendant fails to satisfactorily complete it (§ 1001.36, 
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subd. (d)), then the court shall reinstate defendant’s convictions and conduct further 

sentencing proceedings as appropriate. In all other respects, the judgment is affirmed. 

 

HULL, J.

We concur:

 

BLEASE, Acting P. J.

 

DUARTE, J.