People v. Perez CA4/2

Filed 8/28/20 P. v. Perez CA4/2
See Concurring and Dissenting Opinion

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E071544

v. (Super.Ct.No. INF1700473)

ARTHUR PEREZ, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Alfonso Fernandez,

Judge. Affirmed in part, reversed in part, and remanded with instructions.

Robert F. Somers, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,

Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff

and Respondent.

1
 Defendant and appellant Arthur Perez was sentenced to 40 years to life after being
1
convicted of carjacking (Pen. Code, § 215, subd. (a), count 1), assault with a deadly

weapon (§ 245, subd. (a)(1), count 2), and criminal threats (§ 422, count 3), as well as

firearms and recidivism based enhancements. In this appeal, Perez argues (1) his waiver

of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) was not knowing

and intelligent; (2) the trial testimony of the victim was involuntary and coerced; (3)

remand is required so that the court can exercise its new discretion under Senate Bill No.

1393 (2017-2018 Reg. Sess.) (Sen. Bill 1393); (4) the trial court abused its discretion by

denying his motion to dismiss at least one of his strike enhancements pursuant to People

v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero); (5) an enhancement under

section 667.5, subdivision (b) should have been stricken instead of stayed; (6) the trial

court erred under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) by imposing

various fines and fees without determining if he had the ability to pay them; and (7) the

sentencing minute order and abstract of judgment require correction because they do not

accurately reflect the oral pronouncement of judgment.

We find that Perez’s waiver of his Miranda rights was knowing and intelligent,

that the victim’s trial testimony was not coerced, and that the trial court did not abuse its

discretion in denying Perez’s Romero motion. We agree with Perez, however, that his

sentence should be vacated and the matter remanded for the trial court (1) to exercise its

new discretion under Sen. Bill 1393; (2) to strike the section 667.5, subd. (b)

1
Further undesignated statutory references are to the Penal Code.

2
enhancement; (3) to consider the parties’ arguments and evidence regarding Perez’s

ability to pay any imposed fines and fees; and (4) to resentence Perez, ensuring that the

new sentencing minute order and abstract of judgment accurately reflect the oral

pronouncement of judgment.

I. BACKGROUND

The victim testified that in March 2017, he was homeless and living in his car.

One morning, he was resting in his vehicle at a carwash in Indio when Perez, someone

whom he had known for years, approached him. Perez asked for a ride to a nearby

casino. The victim said that he had no gas in the car, but if Perez would give him three

dollars, he would give him a ride. Perez refused, pulled out a knife, held it to the victim’s

throat through the car window, and demanded that the victim either “get out or bleed

out.” The victim exited the car. Perez got in the car and drove off. The victim called

police, providing a detailed description of both Perez and the car, and later picked Perez

out of a photographic lineup.

Perez was taken into custody about five hours after the carjacking, when a police

officer spotted him walking down a street. Perez told the officer he had just come from a

particular casino. The victim’s car was found shortly thereafter, parked at the casino.

Surveillance footage showed Perez exiting the victim’s car, along with a female

companion, and Perez’s fingerprints were found on the car door.

3
 Perez waived his Miranda rights and admitted to stealing the car and driving to the

casino. He admitted using a knife during the carjacking, and he admitted to telling the

victim “you gonna bleed out and you need to get out.”

A jury found Perez guilty on all three counts. As to count 1, the jury found true an

allegation, pursuant to section 12022, subdivision (b)(2), that Perez had personally used a

deadly or dangerous weapon. The trial court found true allegations that Perez had two

strike priors (§§ 667, subds. (b)-(i), 1170.12), two serious felony priors (§ 667, subd. (a)),

and that he had been convicted of a felony, but failed to remain free from prison for five

years (§ 667.5, subd. (b)). The trial court imposed a sentence of 40 years to life,

consisting of 27 years to life on count 1—triple the upper term, pursuant to section 667,

subdivision (e)(2)(A)(i)—plus three years for the section 122022, subdivision (b)(2)

enhancement of count 1 and 10 years for the two section 667, subdivision (a)(1)

enhancements. The court imposed stayed sentences for the remaining counts and

enhancements. The trial court also imposed various fines and fees, including a restitution

fine of $5000 (§ 1202.4, subd. (b)), a suspended parole revocation fine of $5000 (§

1202.45), a court operations assessment fee of $120 (§ 1465.8, subd. (a)(1)), a conviction

assessment fee of $90 (Gov. Code, § 70373), a booking fee of $514.58 (Gov. Code, §§

29550, 29550.1), and a probation report fee in an amount not to exceed $1091 (§

1203.1b).

4
 II. DISCUSSION

A. Miranda Waiver

Perez argues that his waiver of his Miranda rights was not knowing and

intelligent, asserting that he “was not coherent enough to understand the consequences of

waiving vital constitutional rights or to understand that he was waiving constitutional

rights.” We are not persuaded.

“In reviewing a trial court’s Miranda ruling, we accept the court’s resolution of

disputed facts and inferences and its evaluations of credibility, if supported by substantial

evidence, and we independently determine, from the undisputed facts and facts properly

found by the trial court, whether the challenged statement was illegally obtained.”

(People v. Bacon (2010) 50 Cal.4th 1082, 1105.) “Ultimately, the question becomes

whether the Miranda waiver is shown by a preponderance of the evidence to be

voluntary, knowing and intelligent under the totality of the circumstances surrounding the

interrogation.” (People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 219 (Sauceda).)

“The waiver must be ‘voluntary in the sense that it was the product of a free and

deliberate choice rather than intimidation, coercion, or deception’ [citation], and knowing

in the sense that it was ‘made with a full awareness of both the nature of the right being

abandoned and the consequences of the decision to abandon it.’” (Ibid.)

“Intoxication alone does not render a confession involuntary.” (People v.

Debouver (2016) 1 Cal.App.5th 972, 978.) “Our Supreme Court ‘has repeatedly rejected

claims of incapacity or incompetence to waive Miranda rights premised upon voluntary

5
intoxication or ingestion of drugs, where . . . there is nothing in the record to indicate that

the defendant did not understand his rights and the questions posed to him.’” (Ibid.)

The People argue that Perez forfeited any claim that his Miranda waiver was not

knowing and intelligent. This argument is without merit. In its motions in limine, the

prosecution sought permission to introduce Perez’s statement to police. In Perez’s

motions in limine, he sought to exclude the same statement, including on the basis that

“there was no indication that Defendant’s statement was knowing and voluntary and that

there may be reason to believe that Defendant was either high on drugs or intoxicated

thus vitiating the element of consent.” The trial court, presented with these competing

motions in limine, ruled in favor of the prosecution. Perez adequately preserved the issue

for our review.

On the merits, however, Perez’s claim fails. Before asking Perez any substantive

questions, the detective who interviewed him read him his Miranda rights, and Perez

acknowledged those rights with simple, affirmative verbal responses. Perez’s lengthy

criminal history also suggests that he was well familiar with law enforcement and his

Miranda rights. (See People v. Debouver, supra, 1 Cal.App.5th, at p. 978.) As well, the

detective who interviewed Perez was the law enforcement officer who first made contact

with Perez as he was walking down the street, away from the casino, immediately prior to

his arrest. The detective observed that Perez had shown no “obvious symptoms of being

under the influence” of drugs or alcohol. The detective rejected defense counsel’s

6
suggestion during cross-examination that Perez seemed “kind of out of it” during the

interview.

Many of Perez’s responses to questions regarding the events in question were

straightforward, demonstrating no difficulty in understanding the questions, and no lack

of ability to respond coherently. For example, Perez initially denied knowing anyone

with the victim’s name, but when reminded that the victim drove a black Honda, Perez

said: “Oh him. I—I took it . . . .” When the detective asked “Did you take it this

morning,” Perez responded: “Yeah I think I took it last night.” The detective asked

where Perez took the car; he stated “At the car wash.” Perez acknowledged that he had

used a knife when taking the car with a one word answer: “Yeah.” Consistent with the

victim’s report to police, Perez denied having a gun, explaining: “No gun . . . I don’t like

guns.”

Perez points to some aspects of the record that might support the conclusion that

he was impaired during the interview with the detective. He mumbled and slouched at

times, and he gave some answers that the detective aptly described as “kind of off the

wall.” For example, Perez seemed to express surprise or confusion that the person who

accompanied him to the casino was female, in the absence of any apparent ambiguity

about her gender. Some of Perez’s other answers to the detective’s questions were

7
 2
simply bizarre. Although the detective did not believe Perez was under the influence

during the interview, he also did not perform any tests to confirm that belief.

Nevertheless, at most, Perez has demonstrated that there was some evidence of

intoxication or other impairment. He has not demonstrated that the record compelled the

trial court to conclude that he was so impaired that the waiver of his rights was

ineffective. We therefore find no error in the trial court’s ruling that Perez’s waiver of

his Miranda rights was voluntary, knowing, and intelligent.

2
For example, the interview included the following exchange, after the detective
asked why Perez would carjack someone he had known since high school:

“PEREZ: Because he’s lying to me. And if he’s like true friend he shouldn’t say
something like ‘Hey dude, like, you’re a guinea pig ‘cause they think you’re Hitler,’ or
something, you know what I’m sayin’?

“[Detective]: Yeah

“PEREZ: But come on. Is this okay to go all, I’ll go along with you guys and – and I’ll
probably dominate the whole world and be president or be God, or something but . . .

“[Detective]: Mm-hm

“PEREZ: . . . no don’t be fuckin’ with me though because every fuckin’ – it’s, like,
messin’ with me too much that I start to feel too way deep in there I wasn’t happy.

“[Detective]: Yes.

“PEREZ: And I don’t wanna see him no more.”

8
B. Victim’s Testimony

Perez claims that his trial was fundamentally unfair because the prosecution’s

main witness, the victim, was coerced into testifying. This claim fails because there is no

evidence that the witness’s testimony was coerced.

“A defendant may assert a violation of his or her own right to due process of the

law and a fair trial based upon third party witness coercion . . . if the defendant can

establish that trial evidence was coerced or rendered unreliable by prior coercion and that

the admission of this evidence would deprive the defendant of a fair trial.” (People v.

Williams (2010) 49 Cal.4th 405, 452-453.) “The burden rests upon the defendant to

demonstrate how the earlier coercion ‘directly impaired the free and voluntary nature of

the anticipated testimony in the trial itself.’” (Id. at p. 453) Trial testimony can be

excluded only if the defendant establishes the unreliability of that testimony. (Ibid.)

Here, Perez fails to carry his burden of demonstrating that the victim’s testimony

was coerced. In response to a series of leading questions posed by defense counsel, the

victim seemed for a moment to testify that he had been threatened with three years in jail
3
if he failed to testify against Perez. After further questioning, however, it was

3
The passage in question is the following:

“[Defense counsel]: Sir, at any point during your conversations with either the district
attorney, cops, jail staff, whatever else, isn’t it true that you were threatened that if you
failed to testify you’d be looking at three more years of potential time in prison? Isn’t
that true?

“[Victim]: If I failed? When did they tell me that?

9
determined that the purported threat was not a threat at all, but rather advice by the

victim’s own appointed counsel that if he lied during his trial testimony, he could be

“looking at three more years.” The victim clarified that in fact no one from the district

attorney’s office or the police had ever threatened him that he could be punished if he did

not testify.

We conclude that the record does not support Perez’s claim that the victim’s trial

testimony was coerced.

C. Sen. Bill 1393

Perez contends that the matter should be remanded for the trial court to exercise its

new discretion to strike one or more of the two section 667, subdivision (a) enhancements

imposed as part of his sentence. The People argue that the trial court clearly indicated its

intention to impose the maximum possible sentence, so remand is unnecessary. We

conclude that remand is the better approach here.

Effective January 1, 2019, Sen. Bill 1393 amended sections 667, subdivision (a),

and 1385, subdivision (b), to allow a court, in its discretion, to strike or dismiss a prior

serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.) Under

the versions of these statutes in effect when the trial court sentenced Perez, the court was

required to impose a five-year consecutive term for “any person convicted of a serious

felony” (former § 667, subd. (a)), and the court had no discretion “to strike any prior

“[Defense counsel]: I’m wondering sir, isn’t it true that you were threatened with three
more potential years in custody if you failed to testify?

“[Victim]: I’m not sure. I think so.”

10
conviction of a serious felony for purposes of enhancement of a sentence under Section

667” (former § 1385, subd. (b)).

The People concede, and we agree, that the changes to the law enacted by Sen.

Bill 1393 apply to judgments, like the one in this case, which were not final on January 1,

2019, when Sen. Bill 1393 went into effect. (See People v. Garcia (2018) 28

Cal.App.5th 961, 973.) Nevertheless, “[w]e are not required to remand to allow the court

to exercise its discretion if ‘the record shows that the trial court clearly indicated when it

originally sentenced the defendant that it would not in any event have stricken [the]

enhancement’ even if it had the discretion.” (People v. Jones (2019) 32 Cal.App.5th 267,

272-273.) “The trial court need not have specifically stated at sentencing it would not

strike the enhancement if it had the discretion to do so. Rather, we review the trial

court’s statements and sentencing decisions to infer what its intent would have been.”

(Id. at p. 273)

Here, the trial court imposed the maximum sentence available given Perez’s

conviction offenses and their enhancements, reciting numerous factors it found in

aggravation, and finding none in mitigation. As discussed below, the court’s comments

on its denial of Perez’s Romero motion also give no indication that it would have been

inclined to give Perez anything less than the maximum sentence available. Further, in

denying Perez’s request that the fines and fees imposed be stricken or stayed, the court

commented “I’m not inclined to give him any benefits of the system at this time . . . .”

11
 Nevertheless, as discussed below, the matter must in any case be remanded for

another reason. There is therefore no substantial waste of judicial resources in allowing

the trial court to consider the matter in the first instance, and it is appropriate for us to

refrain from even informed speculation about what the trial court might have done, had

Sen. Bill 1393 been in effect at the time of sentencing. We express no opinion regarding

how the trial court should exercise its new discretion.

D. Romero Motion

Perez contends that the trial court abused its discretion by denying his Romero

motion. We find no abuse of discretion.

A trial court may dismiss a prior strike conviction under section 1385 “in

furtherance of justice.” (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530.) In

considering whether to do so, the trial court “must consider whether, in light of the nature

and circumstances of his present felonies and prior serious and/or violent felony

convictions, and the particulars of his background, character, and prospects, the

defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence

should be treated as though he had not previously been convicted of one or more serious

and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)

There is a “‘strong presumption that any sentence that conforms to [the sentencing norms

established by the three strikes law] is both rational and proper.’” (In re Large (2007) 41

Cal.4th 538, 550.)

12
 We review the denial of a Romero motion for abuse of discretion. (Williams,

supra, 17 Cal.4th at p. 162.) “‘Under that standard an appellant who seeks reversal must

demonstrate that the trial court’s decision was irrational or arbitrary. It is not enough to

show that reasonable people might disagree about whether to strike one or more of [the]

prior convictions. Where the record demonstrates that the trial court balanced the

relevant facts and reached an impartial decision in conformity with the spirit of the law,

we shall affirm the trial court’s ruling, even if we might have ruled differently in the first

instance.’” (People v. Romero (2002) 99 Cal.App.4th 1418, 1434.) “Because the

circumstances must be ‘extraordinary . . . by which a career criminal can be deemed to

fall outside the spirit of the very scheme within which he squarely falls once he commits

a strike as part of a long and continuous criminal record, the continuation of which the

law was meant to attack’ [citation], the circumstances where no reasonable people could

disagree that the criminal falls outside the spirit of the three strikes scheme must be even

more extraordinary.” (People v. Carmony (2004) 33 Cal.4th 367, 378.)

No such extraordinary circumstances exist here. The trial court noted for the

record that it had considered the arguments of both Perez and the prosecution, and

explained its reasoning for denying the Romero motion at some length. Although the

victim here was not injured, Perez’s current convictions are for crimes of violence. His

criminal history, dating back more than two decades, includes multiple previous crimes

of violence. When released from incarceration, Perez has generally failed to remain law

abiding for any extended period of time, violating his parole, probation, or drug diversion

13
program on many occasions. The trial court’s evaluation of Perez’s character (“[I]t looks

like . . . he really doesn’t have any respect for other people”) and prospects (“His

prospects, based on his history of committing crime, violating probation and parole, and

continuing substance abuse, [do] not look good”) was reasonable. Even if, as Perez

argues, the record could have supported a different conclusion, the trial court’s decision

to deny Perez’s Romero motion was neither irrational or arbitrary, and therefore was not

an abuse of discretion.

E. Section 667.5, Subdivision (b) Enhancement

Perez’s sentence includes a stayed one-year enhancement pursuant to section

667.5, subdivision (b). The same conviction that serves as the basis for this

enhancement, however, also is the basis for a section 667, subdivision (a)(1)

enhancement that was imposed, and not stayed. Although the information originally

showed the two alleged enhancements to be based on offenses with different conviction

dates (but the same case number), that typographical error was corrected on the

prosecution’s motion. The parties agree that the section 667.5, subdivision (b)

enhancement should have been stricken on that basis, rather than stayed. The parties are

correct. (See People v. Perez (2011) 195 Cal.App.4th 801, 805)

In addition, in supplemental briefing, the parties have agreed that the same

enhancement also must be stricken on a different basis. The recently passed Senate Bill

No. 136 (2019-2020 Reg. Sess.) amended section 667.5, subdivision (b) to limit its prior

prison term enhancement to only prior prison terms for certain sexually violent offenses,

14
rendering it inapplicable to Perez. (§ 667.5, subd. (b).) Again, the parties are correct.

(See People v. Jennings (2019) 42 Cal.App.5th 664, 681-682.)

We therefore order the section 667.5, subdivision (b) enhancement stricken.

F. Dueñas Error

Perez argues that the trial court erred under Dueñas, supra, 30 Cal.App.5th at

p. 1157 by imposing various fines and fees without determining if he had the ability to

pay them. We agree.

In Dueñas, supra, 30 Cal.App.5th at p. 1157, decided while this appeal was

pending, the Court of Appeal held that it violates due process under the federal and state

Constitutions to impose the court operations and facilities fees without first determining

the convicted defendant’s ability to pay them. (Id. at pp. 1168-1169.) In addition, “to

avoid serious constitutional questions” raised by the statutory restitution scheme, the

Dueñas court decided execution of the mandatory restitution fine must be stayed unless

the trial court determines that the defendant has the ability to pay it. (Id. at p. 1172.)

Later cases have held that, at the ability to pay hearing, the defendant bears the burden of

showing his or her inability to pay, and the court “must consider all relevant factors,”

including “potential prison pay during the period of incarceration to be served by the

defendant.” (People v. Castellano (2019) 33 Cal.App.5th 485, 490 [remanding for an

ability to pay hearing]; accord People v. Santos (2019) 38 Cal.App.5th 923, 934 [on

remand, defendant must show inability to pay, and court may consider potential prison

15
pay]; People v. Kopp (2019) 38 Cal.App.5th 47, 96 (Kopp), review granted Nov. 13,

2019, S257844 [same].)

Since Dueñas, some courts have criticized its conclusions or its reasoning. (E.g.

People v. Hicks (2019) 40 Cal.App.5th 320, 322, 327-329, review granted Nov. 26, 2019,

S258946 [holding that Dueñas was wrongly decided]; People v. Cowan (2020) 47

Cal.App.5th 32, (Cowan) [disagreeing in part with Dueñas’s reasoning, holding proper

framework for analyzing ability to pay is Eighth Amendment’s prohibition against

excessive fines]; Kopp, supra, 38 Cal.App.5th at pp. 96-97 [applying Dueñas’s due

process analysis to fees, but holding Eighth Amendment analysis should apply to

restitution fine].) The California Supreme Court will likely resolve this split in authority,

having granted review in Kopp to decide whether courts must “consider a defendant’s

ability to pay before imposing or executing fines, fees, and assessments” and if so,

“which party bears the burden of proof regarding defendant’s inability to pay.” (Kopp,

review granted Nov. 13, 2019, S257844.)

The People argue, and the concurring and dissenting opinion agrees, that Perez

forfeited the issue. Not so. During sentencing, defense counsel expressly objected to the

imposition of fines and fees in spite of Perez’s inability to pay, stating: “Relative to the

restitution fine, the [parole revocation fine], any other fines—oh, the booking fee,

obviously, Your Honor, my client has no ability to pay. I’d ask the Court to consider

16
striking those or suspending those.”4 The trial court rejected the request, explaining:

“I’m not inclined to give him any benefits of the system at this time, although we both

know that if he has no ability to pay and he’s going to be gone for a substantial period of

time, they may try to collect it, but I’m not sure how effective that will be.” We

understand that trial court’s comments to mean that it declined Perez’s request to

consider his ability to pay, and that it was not ruling one way or the other as to whether

he lacked the ability to pay.

Neither the People, nor the concurring or dissenting opinion, have offered any

authority or reasoned argument as to why Perez should have been required to specify

whether his objection to the fines and fees was grounded in due process, the Eighth

Amendment, or some other basis to preserve the issue for our review. Particularly given

that Perez did not have the benefit of Dueñas and its progeny at the time of sentencing,

we find his more general objection to be adequate.

The People also argue that any Dueñas error should be considered harmless

beyond a reasonable doubt. We disagree. Often, courts have held such errors to be

harmless with respect to fines in the hundreds of dollars, particularly when the defendant

is facing a lengthy term of imprisonment, during which prison work and other sources of

funds may be available. (E.g., People v. Jones (2019) 36 Cal.App.5th 1028, 1034-1035.)

Here, however, the total fines and fees imposed amount to thousands of dollars.

4Even before Dueñas, ability to pay could be considered as a factor in
determining a restitution fine and parole revocation fine where, as here, the amount
imposed was above the minimum. (§ 1202.4, subd. (c).)

17
Moreover, the trial court expressed skepticism that it would be possible to collect the

amounts imposed on Perez, despite the length of his imprisonment, if he did not already

have the ability to pay them. On these facts, we do not find the Dueñas error harmless.

The matter must be remanded for the trial court to consider the parties’ evidence

and argument regarding Perez’s ability to pay the fines and fees imposed as part of his

sentence.

G. Probation Report Fee

The trial court ordered that Perez pay for the cost of preparing the “presentence

probation report” in an amount up to $1091. Such a fee is authorized under section

1203.1b. The minute order of the sentencing hearing and the abstract of judgment

incorrectly list this fee, in an amount not to exceed $1091, as being pursuant to section

1203.1c. Section 1203.1c deals with fees to cover the costs of incarceration ordered “as a

term of probation or a conditional sentence,” and does not apply to Perez. As Perez

correctly notes, the trial court’s oral pronouncement of judgment is controlling. (See,

e.g., People v. Harrison (2005) 35 Cal.4th 208, 226.) On remand, a new minute order

and abstract of judgment will be generated when Perez is resentenced. We trust that the

trial court will ensure these documents accurately reflect any fines and fees that are

imposed over Perez’s objections regarding ability to pay.

III. DISPOSITION

Perez’s convictions are affirmed. His sentence is vacated. The matter is

remanded to the trial court to resentence Perez. In doing so, the trial court is directed to

18
(1) exercise its discretion under sections 667, subdivision (a)(1) and 1385, as amended by

Sen. Bill 1393; (2) strike the enhancement previously imposed and stayed under former

section 667.5, subdivision (b); and (3) consider the parties’ arguments and evidence

regarding Perez’s inability to pay any imposed fines and fees.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL
J.
I concur:

FIELDS
J.

19
[People v. Perez, E071544]

RAMIREZ, P.J., Concurring and Dissenting

I concur with the majority in all respects save one: As to the issue relating to the

challenge to the imposition of the $5000 restitution fine, I would find the issue forfeited

due to the defendant’s failure to object in the trial court.

The majority remands the imposition of the restitution fine for an ability-to-pay

hearing because the court’s failure to conduct such a hearing violates due process, relying

on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), over the People’s argument

that the issue was forfeited. I respectfully disagree because Dueñas addressed the

mandatory minimum restitution fine and did not change the law respecting imposition of

restitution fines in excess of the statutory minimum.

It is true that since 1992 an ability-to-pay hearing is required where the court

imposes a restitution fine exceeding the statutory minimum and the defendant objects. (§

1202.4, subd. (c)5; In re Enrique Z. (1994) 30 Cal.App.4th 464, 468-469.) For this

reason, “even before Dueñas a defendant had every incentive to object to imposition of a

maximum restitution fine based on inability to pay because governing law as reflected in

the statute (§ 1202.4, subd[s]. (c) [& (d)]) expressly permitted such a challenge.” (People

v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033, citing People v. Frandsen (2019) 33

Cal.App.5th 1126, 1154 [holding it is defendant’s obligation to object]; see also, People

v. Miracle (2018) 6 Cal.5th 318, 356; People v. Jenkins (2019) 40 Cal.App.5th 30, 40.)

5 All further statutory references are to the Penal Code unless otherwise indicated.
1
 As a consequence, it has long been held that if a defendant fails to object to the

restitution fine in the trial court, the issue is forfeited. (People v. Miracle, supra, 6

Cal.5th at p. 356; People v. Jenkins, supra, 40 Cal.App.5th at p. 40; People v. Frandsen,

supra, 33 Cal.App.5th at p. 1153.) This is not new. (See People v. Avila (2009) 46

Cal.4th 680, 729 [discussing the legislative history of section 1202.4].)

And the forfeiture rule extends to due process claims. “[A] right may be lost not

only by waiver but also by forfeiture, that is, the failure to assert the right in timely

fashion.” (People v. Barnum (2003) 29 Cal.4th 1210, 1224, citing Yakus v. United States

(1944) 321 U.S. 414, 444 [88 L. Ed. 834, 64 S. Ct. 660] [stating that “[n]o procedural

principle is more familiar . . . than that a . . . right,” even a “constitutional right,” “may be

forfeited”]; accord, United States v. Olano (1993) 507 U.S. 725, 731 [123 L. Ed. 2d 508,

113 S. Ct. 1770]; People v. Collins (2001) 26 Cal.4th 297, 305, fn. 2; People v. Simon

(2001) 25 Cal.4th 1082, 1097, fn. 9.)6

In my opinion, defendant has forfeited any objection to the imposition of the

restitution fine and the parole revocation restitution fine by failing to object at the

sentencing hearing. (People v. Gamache (2010) 48 Cal.4th 347, 409; People v. Jenkins,

supra, 40 Cal.App.5th at p. 40; People v. Forshay (1995) 39 Cal.App.4th 686, 689;

People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469.)

6 Relief from forfeiture is permitted where certain fundamental constitutional
rights have been violated (People v. Vera (1997) 15 Cal.4th 269, 276, 278.), or where the
issue involves a pure question of law. (See In re Sheena K. (2007) 40 Cal.4th 875, 884-
885.) A defendant’s inability to pay necessarily involves a question of fact.
2
I would affirm the imposition of the restitution fine.
RAMIREZ
P. J.

3