People v. Bronson CA2/6 ( 2021 )

Filed 1/27/21 P. v. Bronson 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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. B302855
(Super. Ct. No. 19F-02628)
Plaintiff and Respondent, (San Luis Obispo County)
v.
ROBERT TROY BRONSON,
Defendant and Appellant.
Robert Troy Bronson appeals the trial court’s denial of his
motion to delete or permanently stay a $10,000 restitution fine
imposed pursuant to Penal Code section 1202.4.1 We affirm the
denial of the motion.
FACTS
Bronson pled no contest to continuous sexual abuse of a
child (Pen. Code, § 288.5, subd. (a)) and a lewd act on a child
(§ 288, subd. (a)). Bronson sexually abused a child.
1 All statutory references are to the Penal Code.
The trial court sentenced Bronson to 18 years in state
prison and, in addition to other fines and fees, imposed a $10,000
restitution fine. (§ 1202.4.) Bronson subsequently filed a motion
seeking to delete or permanently stay the restitution fine. The
motion was based on his claim that he lacked the ability to pay
the fine. The trial court denied the motion.
DISCUSSION
Section 1202.4, subdivision (a)(3)(A) requires the trial court
to impose a restitution fine on a person convicted of a crime. The
amount of the fine is set at the discretion of the trial court and
commensurate with the seriousness of the offense. (Id., subd.
(b)(1).) The fine for a person convicted of a felony must be not
less than $300 and not more than $10,000. (Ibid.) The court may
determine the amount of the fine as the product of the minimum
fine multiplied by the number of years of imprisonment
multiplied by the number of felony counts of which the defendant
is convicted. (Id., subd. (b)(2).) Inability to pay “may be
considered” only in increasing the amount of the fine above the
minimum. (Id., subd. (c).)
Bronson relies on People v. Dueñas (2019) 30 Cal.App.5th
1157. In Dueñas, the Court of Appeal held that the imposition of
criminal fines and fees without a hearing and a determination of
the defendant’s ability to pay violates due process. The court
recognized that section 1202.4, subdivision (c) prohibits the trial
court from considering the defendant’s ability to pay the
minimum restitution fine. The court held that the trial court
must “stay the execution of the fine until and unless the People
demonstrate that the defendant has the present ability to pay the
fine.” (Dueñas, at p. 1172.)
2
Courts of Appeal have criticized Dueñas. They assert that
due process is not implicated because the imposition of fines and
fees does not deny criminal defendants access to the courts and
does not, without more, result in incarceration for nonpayment.
(See People v. Petri (2020) 45 Cal.App.5th 82, 91.) Under these
cases, the proper framework for analysis is the excessive fines
clause of the Eighth Amendment. (People v. Aviles (2019) 39
Cal.App.5th 1055, 1069-1072.) A court considers four factors in
determining whether a fine is constitutionally excessive: (1) the
defendant’s culpability; (2) the relationship between the harm
and the penalty; (3) the penalties imposed by similar statutes;
and (4) the defendant’s ability to pay. (Id. at p. 1070.)
We are persuaded that the cases applying an Eighth
Amendment analysis are correct.2 Bronson is complaining that
the restitution fine is excessive in light of his income or lack
thereof. Where a particular constitutional amendment provides
an explicit textual source of constitutional protection, that
amendment, not the more generalized notion of due process, must
be the guide for analyzing the claims. (Graham v. Connor (1989)
490 U.S. 386, 395 [104 L.Ed.2d 443, 454-455] [claim of excessive
use of force by police during an investigatory stop must be
analyzed under Fourth Amendment, not due process].) Here the
Eighth Amendment provides an explicit textual source of
constitutional protection for Bronson’s claim.
Moreover, Dueñas makes the defendant’s ability to pay the
sole factor in determining the reasonableness of the fine. Due
process is not so rigid. (See People v. Ramirez (1979) 25 Cal.3d
2 The question is currently pending in our Supreme Court.
(People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov.
26, 2019, No. S258946.)
3
260, 268 [due process is flexible].) Even under a general due
process analysis, there is no reason why ability to pay should be
the sole factor. The trial court should be able to consider the
same factors it considers under an Eighth Amendment analysis.
Applying the Eighth Amendment excessive fine analysis:
(1) As to the defendant’s culpability, Bronson continuously raped
and molested a child. Short of premeditated murder, it is hard to
get more culpable than that. (2) The harm Bronson did is
incalculable. A $10,000 penalty is not excessive; it is too little.
As the trial court judge stated, considering the facts of the case,
“I’m not sure that there is a fine in the State of California that
would run afoul of the Eighth Amendment.” (3) The parties
point to similar statutes with which to compare the penalty. (4)
The final element is the defendant’s ability to pay.
Bronson admits that he can earn money in prison. He
complains, however, that he can earn very little and the state will
take half as payment on the restitution fine plus an
administrative fee. But given the egregious nature of his offense
and the continuing harm to his victim, it is not an excessive
amount.
The judgment (order) is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J. TANGEMAN, J.
4
TANGEMAN, J., Concurring:
I agree with the result but not the reasoning of the majority
opinion. It is unnecessary to criticize our colleagues’ opinion in
People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) to affirm
the judgment. More fundamentally, the majority ignores the
“‘cardinal principle of judicial restraint—if it is not necessary to
decide more, it is necessary not to decide more.’ [Citation.]”
(People v. Contreras (2018) 4 Cal.5th 349, 381.)
Penal Code section 1202.4, subdivision (d) provides that “[a]
defendant shall bear the burden of demonstrating his or her
inability to pay.” Bronson did not satisfy this requirement. In
moving to delete or stay the restitution fine, Bronson supported
his argument by referencing the probation report. But that
report, written when he had been in custody for almost four
months, stated only that he “reported no sources of income,
outstanding debt or financial obligations.” It also noted that he
was 38 years old and had been previously employed. This
showing was plainly insufficient to meet his burden.
At a subsequent hearing, defense counsel attached to his
motion an unsworn letter from Bronson stating merely that he
was in prison, had no money, and was unemployed. In the
absence of a greater showing, the trial court did not err in
declining to delete or stay the fine.
Bronson relies on Dueñas, supra, 30 Cal.App.5th 1157. In
Dueñas, our colleagues in Division Seven held that the imposition
of criminal fines and fees without a hearing and a determination
of the defendant’s ability to pay violated her right to due process.
(Dueñas, at pp. 1168-1169.) In Dueñas, the evidence showed that
the defendant had cerebral palsy and “because of her illness she
dropped out of high school and does not have a job.” (Id. at p.
1160.) She was a homeless mother of two children whose family
relied on public benefits “but she cannot afford basic necessities
for her family.” (Id. at p. 1161.) She owned only her clothing and
a cell phone which was “frequently disconnected because she
cannot afford the $40 per month payment.” (Ibid.) Dueñas had
her license suspended because she was unable to pay $1,088 for
three juvenile citations. She continued to drive and spent 141
days in jail because she was unable to pay the fines. In 2015, she
pled no contest to yet another misdemeanor charge of driving on
a suspended license and was sentenced to a $300 fine and
summary probation. Unable to pay the fine, she spent another
nine days in jail.
Unlike the factual scenario of Dueñas, Bronson has not
shown that he is disabled, homeless, unable to work or support
himself and his dependents when out of custody, or lacks any
assets whatsoever. Dueñas is plainly inapposite. There was no
error.
NOT TO BE PUBLISHED.
TANGEMAN, J.
2
Timothy S. Covello, Judge
Superior Court County of San Luis Obispo
______________________________
, Richard Lennon, 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, Assistant
Attorney General, Steven D. Matthews and J. Michael Lehmann,
Deputy Attorneys General, for Plaintiff and Respondent.