Filed 7/28/26 P. v. Lucio CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G065643
v. (Super. Ct. No. 24CF2220)
CHRISTIAN LUCIO, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Bryan F. Clavecilla, Judge. Affirmed in part, reversed in part, and remanded
with directions.
Russell S. Babcock, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General,
Christopher P. Beesley and Cobi S. Furdek, Deputy Attorneys General, for
Plaintiff and Respondent.
At the time of sentencing for two separate criminal cases, the
trial court imposed on Christian Lucio fines and ancillary costs in the case at
issue in this appeal. Lucio contends the matter must be reversed and
remanded for a new hearing because the court did not consider the challenges
permitted by our Supreme Court’s recent decision in People v. Kopp (2025)
19 Cal.5th 1 (Kopp). The Attorney General agrees, as do we. While decided
after Lucio’s sentencing, Kopp allows challenges based on the excessive fines
and equal protection clauses of the federal or state Constitutions.
Accordingly, we remand solely as to the fines and ancillary costs ordered in
this case on appeal. On remand, the court is directed to consider Lucio’s
challenges to fines and ancillary costs consistent with the decision in Kopp. In
all other respects, the judgment is affirmed.
PROCEDURAL BACKGROUND
The facts of the underlying criminal action are largely irrelevant
on appeal. It is enough to explain that in the case on appeal (No. 24CF2220;
Case 1), a jury found Lucio guilty of possession of a firearm by a felon,
possession of ammunition by a prohibited person, petty theft, and obstructing
or delaying a peace officer. Thereafter, in a second case, People v. Garcia
(Super. Ct. Orange County, 2023, No. 23CF0504) (Case 2), and based on the
verdict in Case 1, the trial court determined Lucio was in violation of his
probation.
The sentencing hearing covered both Case 1 and Case 2. In Case
1, which is at issue, the trial court imposed the following fines and ancillary
costs: (1) court operations assessments, pursuant to Penal Code section
1465.8; (2) conviction assessments, pursuant to Government Code section
70373; and (3) a $900 mandatory restitution fine, pursuant to Penal Code
section 1202.4, subdivision (b). In Case 2, the court also imposed a $300
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mandatory restitution fine, pursuant to Penal Code section 1202.4,
subdivision (b), a $900 parole revocation fine, pursuant to Penal Code section
1202.45, as well as additional court operations and conviction assessments
pursuant to Penal Code section 1465.8 and Government Code section 70373,
respectively.1 Although both parties discuss these additional fines and
ancillary costs from Case 2 in their respective briefs, Lucio only appealed
Case 1 and did not appeal Case 2. Accordingly, the additional monies ordered
in Case 2 are not at issue, and we do not address them here.
At the sentencing hearing, Lucio made a motion pursuant to
People v. Dueñas (2019) 30 Cal.App.5th 1157, 1164 to suspend all fines and
ancillary costs, which was denied by the trial court. In denying Lucio’s
motion, the trial court stated, “[G]iven that he is going to be serving time in
state prison, he will be earning something there.”
DISCUSSION
Lucio argues the trial court erred in denying his motion to
suspend all fines and ancillary costs without a determination of his ability to
pay and whether the restitution fines were constitutionally excessive. The
Attorney General concedes the court should permit Lucio the opportunity to
make these arguments and the case should be remanded to allow him to do
so. Lucio also argues we should direct the court not to consider future prison
wages when determining Lucio’s ability to pay.
Kopp addresses the proper means by which a criminal defendant
may challenge the various court ordered payments imposed at criminal
1 “Statutory language authorizing payment of ancillary costs is
not always employed consistently. A provision may variously refer to them as
‘fines,’ ‘fees,’ ‘assessments,’ or ‘costs.’” (Kopp, supra, 19 Cal.5th at p. 12.)
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sentencings. Those payments “fall into three broad categories: fines, ancillary
costs, and victim restitution.” (Kopp, supra, 19 Cal.5th at p. 11.)
As to fines, such as restitution and parole revocation payments
under Penal Code sections 1202.4 and 1202.45, Kopp disapproves Dueñas and
does “not find a due process requirement to hold an ability to pay hearing
before imposing every punitive fine.” (Kopp, supra, 19 Cal.5th at p. 23 &
fn. 17). Instead, Kopp clarifies, an “excessive fines analysis,” which includes
consideration of ability to pay, “is the proper vehicle to challenge punitive
fines” under either the federal or state Constitutions. (Kopp, at p. 23.) As to
ancillary costs, under Penal Code section 1465.8 and Government Code
section 70373, Kopp explains an equal protection analysis is appropriate and
holds, “[E]qual protection principles require a court, upon request, to consider
a defendant’s inability to pay before imposing a court operations assessment.”
(Kopp, supra, 19 Cal.5th at p. 30.)
Although Kopp was decided after sentencing, both Lucio and the
Attorney General agree the trial court did not engage in the required
excessive fine or equal protection analyses. Both permit a challenge based on
inability to pay. Consequently, the parties agree, remand is necessary. We
reverse and remand for further proceedings consistent with Kopp.
In addition, Lucio relies on the concurring opinion in Kopp to ask
us to direct the trial court not to consider the possibility of future prison
wages on remand. Because of the agreed upon need for remand, the Attorney
General argues this issue is moot. In light of our remand to the court to
address the fines and ancillary costs, we agree.
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DISPOSITION
The judgment is reversed as to the fines and ancillary costs
imposed in Case 1. The matter is remanded with directions the trial court
hold a hearing as to the imposition of fines and ancillary costs consistent with
the decision in Kopp, supra, 19 Cal.5th 1. In all other respects, the judgment
is affirmed.
MOTOIKE, P. J.
WE CONCUR:
GOODING, J.
SCHWARM, J.*
*Judge of the Orange County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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