Filed 8/20/20 P. v. Harper CA2/6
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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

                          SECOND APPELLATE DISTRICT

                                           DIVISION SIX


 THE PEOPLE,                                                    2d Crim. No. B302033
                                                             (Super. Ct. Nos. 18CR8466,
      Plaintiff and Respondent,                                      19CR04163)
                                                               (Santa Barbara County)
 v.

 RAMON MARQUEZ
 HARPER,

      Defendant and Appellant.



      Appellant Ramon Marquez Harper pled no contest to one
count of robbery (Pen. Code, § 211)1 in case number 18CR08466
and two counts of inflicting corporal injury on a spouse or
cohabitant (§ 273.5, subd. (a)), in case number 19CR04163. He
also admitted to having one prior strike conviction. The trial
court imposed an agreed-upon sentence of 8 years in state prison
and ordered appellant to pay restitution fines totaling $600
(§1202.4) and parole revocation fines in the same amount.

          1   All further statutory references are to the Penal Code.
(§1202.45.) Appellant contends the trial court erred when it
refused to stay the restitution fines based on his inability to pay.
(See, e.g., People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).)
We affirm.
                                FACTS
       The facts of appellant’s substantive offenses are not
relevant here, because he challenges only imposition of the
restitution fines. Briefly, appellant and a co-defendant used a
large kitchen knife to rob the guests at a house party in Santa
Barbara. In a separate incident, appellant struck his girlfriend
in the mouth, causing injury. He later pinched and twisted the
skin of his girlfriend’s leg, causing her to bleed.
       At the sentencing hearing, the trial court imposed the
agreed upon sentence of eight years. It imposed various fines and
assessments, a restitution fine of $300 in each case (§1202.4) and
a parole revocation restitution fine of $300 in each case.
(§1202.45.)
       Appellant’s trial counsel stated, “I would just make the
application of People v. Duenas as it relates to any and all fines
and fees the Court assesses under that case and others that
follow.” (Italics added.) The prosecutor argued “Dueñas is no
longer binding on this Court. There’s a case that came down that
specifically disagreed with Dueñas. You look under an 8th
Amendment analysis under cruel and unusual for the fines.”
(Italics added.) The trial court replied, “As to the fine, the Court
has reduced it to the minimum $300 [§]1202.45 fine in each case.”
                             DISCUSSION
       Relying on Dueñas, supra, 30 Cal.App.5th 1157, appellant
contends the trial court erred when it declined to stay the
restitution fine entirely, because he is indigent. He asserts that,




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during his 8-year prison sentence, his prison wages, if any, will
not be enough to pay the fines and that he has no other assets
from which to satisfy the debt. Respondent contends imposition
of the restitution fines did not violate due process or the Eighth
Amendment prohibition against excessive fines.
       Our Supreme Court is in the process of deciding whether
due process imposes that requirement or whether restitution
fines are more properly reviewed under the excessive fines clause
of the Eighth Amendment. (People v. Kopp (2019) 38 Cal.App.5th
47, review granted Nov. 13, 2019, S257844; see also People v.
Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019,
S258946.)
       Resolving this case, however, does not require us to reach
either of these thorny constitutional questions because Dueñas is
distinguishable. The appellant in Dueñas, committed a
misdemeanor and was on probation. She was also indigent,
homeless, unemployed, disabled by cerebral palsy, primarily
responsible for the care of her two young children and unable to
work. (People v. Johnson (2019) 35 Cal.App.5th 134, 138
(Johnson); Duenas, supra, 30 Cal.App.5th at p. 1160.) Appellant,
by contrast, was sentenced to state prison after committing three
felonies. He is 22 years old and does not have child care
responsibilities. Appellant is a high school graduate who has
worked in construction. There is no indication that he is
homeless, has a physical disability or chronic illness, or that he
suffers from serious mental illness or substance abuse. Appellant
will have the ability to earn wages while in prison and after his
release.
       In short, nothing in the record supports the claim that he
will never be able to pay the $600 in restitution fines assessed




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against him. Any due process violation arising from the court’s
failure to consider appellant’s ability to pay the restitution fines
was thus harmless beyond a reasonable doubt. (People v. Jones
(2019) 36 Cal.App.5th1028, 1035; Johnson, supra, 35 Cal.App.5th
at pp. 139-140, citing Chapman v. California (1967) 386 U.S. 18,
24.)
                           DISPOSITION
      The judgment is affirmed.
      NOT TO BE PUBLISHED.



                                     YEGAN, Acting P. J.


We concur:


             PERREN, J.


             TANGEMAN, J.




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                    Von N. Deroian, Judge

            Superior Court County of Santa Barbara

                ______________________________


      Richard Lennon, Executive Director, under appointment by
the Court of Appeal for Defendant and Appellant.

      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Michael R. Johnsen, Supervising
Deputy Attorney General, Yun K. Lee, Deputy Attorney General,
for Plaintiff and Respondent.
