People v. Moss CA4/2

Filed 10/29/20 P. v. Moss CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E072267

v. (Super.Ct.No. BAF1800564)

NICHOLAS RICHIE WAYNE MOSS, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John M. Davis, Judge.

Affirmed as modified.

Christopher Nalls, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison V.

Acosta and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and

Respondent.

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 Defendant and appellant Nicholas Richie Wayne Moss approached Henry S.1 and

Mary M. at their apartment complex while they were waiting outside for a friend.

Defendant asked to speak with Henry and they walked together toward the carports at the

apartment complex. Defendant fell behind and then reached around Henry, stabbing him

in the abdomen. Defendant lifted his arm to strike again and Henry put up his hands to

defend himself. Henry was cut across both hands. Henry had to be treated for laceration

of his liver and had permanent damage to one of his fingers.

Defendant was convicted of assault with a deadly weapon and he was found to

have suffered prior convictions.

Defendant claims on appeal that (1) the trial court erred by refusing to grant a

continuance so that he could file a People v. Superior Court (Romero) (1996) 13 Cal.4th

497 (Romero) motion to dismiss his prior convictions; (2) his one-year sentence

enhancements imposed pursuant to Penal Code section 667.5, subdivision (b),2 for having

served prior prison terms must be stricken in accordance with Senate Bill No. 136; (3) the

trial court erred by imposing the great bodily injury enhancement and prior serious felony

enhancements concurrently rather than imposing or striking the enhancements; and

(4) the fines and fees imposed by the trial court must be reversed because the trial court

did not determine whether he had an ability to pay the fines or fees, in violation of his

due process rights.

1We refer to the victim and his girlfriend by their first names to preserve their
anonymity. (Cal. Rules of Court, rule 8.90(b).) No disrespect is intended.

2 All further statutory references are to the Penal Code unless otherwise indicated.

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 FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

Defendant represented himself at trial. Defendant was found guilty of assault with

a deadly weapon (§ 245, subd. (a)(1)) and the jury found true the enhancement that he

caused great bodily injury (§ 12022.7, subd. (a)). After waiving his right to a jury trial on

the priors, in a bifurcated proceeding the trial court found that defendant had suffered two

prior serious and/or violent felony convictions (§ 667, subds. (c), (e)(2)(A), 1170.12,

subd. (c)(2)(a)); two prior serious felony convictions (§ 667, subd. (a)); and served two

prior prison terms (§ 667.5, subd. (b)). Defendant was sentenced to a third-strike

sentence of 25 years to life.3

B. FACTUAL HISTORY

1. PEOPLE’S CASE IN CHIEF

On August 26, 2018, at approximately 12:30 p.m., Henry was in front of an

apartment complex in Hemet waiting for a friend to pick him up. His girlfriend, Mary,

was waiting with him. They both were standing under a carport in the shade. Mary had

seen defendant around the apartment complex before that day but they were not friends.

Defendant was recognizable because of the tattoos on his face. Henry observed

defendant ride up on a bicycle and stop at a nearby pole. He pulled out a knife and

appeared to be sharpening it on the pole.

3The trial court additionally imposed fines and fees, which will be discussed in
more detail, post.

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 About 30 minutes later, defendant approached them on foot and asked if he could

speak with Henry alone. Henry and defendant walked toward another carport. Initially,

they walked side-by-side to the carport. Defendant fell behind Henry and put his arm

around him. Defendant had a knife in his hand and stabbed Henry in the abdomen.

Henry turned around to face defendant. Defendant then stabbed at him again. Henry put

up his hands to defend himself and defendant cut him across both hands.

Henry tried to chase after defendant but was unable to catch him because Henry

was losing a lot of blood. Mary did not see the stabbing because Henry and defendant

had walked behind a car. She heard someone yell, “Cuz is tripping.” She then saw

Henry coming back to her and he was bleeding from his chest and hands. Defendant ran

away. Henry was weak and fell down. Mary tried to stop the bleeding. A man at the

apartment complex took them to the hospital.

Hemet Police Officer Brian Stehli responded to the apartment complex where he

observed a pool of blood in the parking lot. Officer Stehli went to the hospital. Henry

told Officer Stehli that the person who stabbed him had either 38 or 35 tattooed under his

eye. Henry indicated the assailant was either Hispanic or Black. Officer Stehli had met

defendant and knew that he had a distinctive tattoo of “3CE” on his face and that his

brother lived in the apartment complex where the stabbing occurred. Officer Stehli

prepared a photographic lineup containing defendant’s photograph. He showed Henry

the six-pack photographic lineup and Henry identified defendant. Mary also identified

defendant from the six-pack photographic lineup.

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 Henry could not move one of his fingers since he had been stabbed because a

tendon was cut. He had a laceration to his liver from defendant stabbing him in the

abdomen; it was a significant injury. He was in the hospital for five or six days. He

required extensive physical therapy.

Defendant was arrested approximately three hours after the stabbing in an area one

mile from the apartment complex. Defendant had a pocket knife. Defendant denied that

he was involved in the stabbing. He claimed he was sleeping at the time of the incident.

Officer Stehli had the knife and defendant’s hands swabbed for DNA.

Hemet Police Officer Bryan Cunningham responded to the stabbing. When he

arrived, he was directed to two men who had been seen walking away from the area of

the stabbing. One of them had a knife. The man claimed he obtained the knife from a

man with tattoos on his face who gave him the knife and then ran off. The knife was

swabbed for DNA. Neither of the two men had face tattoos. The swabs from the two

knives recovered in the case were not sent to the department of justice for DNA analysis.

2. DEFENSE

Defendant testified on his own behalf. In April 2018, defendant was addicted to

drugs and was homeless. On April 26, 2018, he had been sleeping in a stairwell and then

went to a restaurant to use the restroom. He was walking to the apartment complex

where his brother lived, where the stabbing occurred, when a police officer stopped him.

The police officer accused him of being under the influence. Defendant was placed in a

police car and taken to the police station. At that point, he was accused of the stabbing

that occurred at the apartment complex. Defendant denied that he committed the

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stabbing. Defendant did not know Henry or Mary. Defendant admitted to having prior

convictions of felony grand theft in 2008; robbery in 2009; first degree burglary in 2012;

and attempted vehicle theft in 2017.

DISCUSSION

A. REFUSAL TO GRANT CONTINUANCE TO FILE ROMERO MOTION

Defendant contends the trial court abused its discretion by refusing to grant a

continuance so he could file a Romero motion to dismiss his prior strike convictions.

Denial of the continuance deprived defendant of his Sixth Amendment right to defend

himself.

1. ADDITIONAL FACTUAL BACKGROUND

After the jury entered its verdict on November 15, 2018, the trial court advised

defendant regarding sentencing. “Mr. Moss, you have a right to be sentenced within 20

days of the time that we have the trial on your priors. And some people like to have a

few days to have their investigator put together a package about you that you might want

to present as to why you shouldn’t get a long sentence or something like that, or for you

to be able to get together in your mind or in writing or whatever why you think that a

long sentence wouldn’t be appropriate. [¶] So generally what people do—but it’s your

choice—is that they waive time for sentencing for six weeks while the probation

department is getting together a recommendation. It takes them about six weeks. You

don’t have to do that. It’s up to you.” The trial court advised defendant the priors trial

would occur the following Monday and defendant would have to decide if he wanted to

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continue sentencing “in order to be able to put together, . . . , an argument or something

that you want your investigator to present at the actual sentencing.”

The court trial on the prior convictions was conducted on November 19, 2018.

The prior convictions were found true. The trial court advised defendant that the

probation department would be generating its report over the following 20 days. The trial

court wanted to extend the period to 30 days if defendant would waive time for

sentencing. Defendant responded to any proposed increase over the 20 days by stating,

“Well, I kind of want to get this over with.” He did not want to waive time. The parties

agreed to an extension to December 19, 2018. The trial court advised defendant that he

could prepare something on his own behalf.

On December 19, 2018, the trial court advised defendant that he should have

counsel for sentencing but defendant wanted to continue to represent himself. The

prosecutor also advised the trial court that defendant had another pending felony case for

vehicle burglary. He also had a pending misdemeanor case and probation violations.

The prosecutor requested a continuance and defendant agreed to waive time until January

4, 2019.

The sentencing occurred on January 4, 2019. The trial court noted that defendant

had an extensive criminal history and that he was only 26 years old. Defendant

responded that he was innocent and was not the assailant. Further, the crime involved

was only an assault. The trial court noted that the reason that he was facing a life

sentence was because of his extensive criminal history. Defendant responded that most

of his criminal history was from when he was a juvenile.

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 The prosecutor responded, “You honor, based on the facts of this case and the

allegations and the two strike priors with no Romero pending, the Court has to impose 25

to life.” The prosecutor stated, “His record does not indicate somebody who should be

given any sort of break in this case. He’s been in and out of prison, violations of parole,

committing crimes since he was a juvenile. He hasn’t learned from that. This is a 25-to-

life case.”

Defendant responded, “If I filed a Romero, would I get less? Because you said

there was no Romero pending.” The trial court asked defendant if he had filed a Romero

motion. Defendant stated, “No, I didn’t know that I should. I believe I was innocent. So

I didn’t see the need. Romero means that you have [to] admit guilt. You have to admit to

something. I fought the case all the way through.”

The following exchange occurred:

“The Court: Well, the Romero motion basically is to have one of the prior strikes

stricken. Not the present case. But it has to do with—

“Defendant Moss: On the seven-year-case—on the seven-year case, I did get the

Romero act. And they struck the previous act, so they—so I only had one.

“The Court: Well, the information that is contained in the system is that you

might have gotten a disposition that did not count both of them. But it didn’t make it go

away. If you had never completed another crime, fine—

“Defendant Moss: Yeah, that’s what my lawyer told me. If you ever got another

strike, you would only have two, versus three.

“The Court: That’s not what’s indicated by the records.

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 “Defendant Moss: Yeah.

“The Court: So I have not received a Romero motion.

“Defendant Moss: Should I file one? Could I still file one?”

The trial court informed defendant that it could not advise him whether to file a

Romero motion and that it was the day for sentencing. The trial court advised defendant

that he should have filed the Romero motion “quite a while ago.” The prosecutor

objected to any continuance in order for defendant to file a Romero motion. The

prosecutor also argued that even if defendant were allowed to file a Romero motion that it

would be an abuse of the trial court’s discretion to grant the motion because he “falls

directly inside the three strikes law.”

The trial court noted “Well it’s hard to make that determination for the Court until

I’ve heard both sides. I understand what you’re saying from your standpoint, but the—

you know, before the Court could make that kind of a decision, I’d have to hear from

everybody. But I’m going to find that it is untimely too—we’re here for sentencing for

the second time.” The trial court noted that it had “bent over backwards” for the

defendant in order to convince him to get an attorney for sentencing. The trial court

concluded, “And I would say that as the defendant stated, he has a criminal history that

goes back to his very young age. And has continued without stop. I don’t see any period

of time where there was a break, except when he was in custody. And the crimes have

been—some of them serious. Some of them not serious. But basically no significant

time without criminality. So anyway—anything further from either side?” Neither party

had any further argument.

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 2. ANALYSIS

A continuance in a criminal case may be granted only for good cause. (§ 1050,

subd. (e).) Section 1050, subdivision (b) provides, “To continue any hearing in a

criminal proceeding, including the trial, (1) a written notice shall be filed and served on

all parties to the proceeding at least two court days before the hearing sought to be

continued, together with affidavits or declarations detailing specific facts showing that a

continuance is necessary.” A party can make an oral request for a continuance. (§ 1050,

subd. (c).) “When a party makes a motion for a continuance without complying with the

requirements of subdivision (b), the court shall hold a hearing on whether there is good

cause for the failure to comply with those requirements. At the conclusion of the hearing,

the court shall make a finding whether good cause has been shown.” (§ 1050, subd. (d).)

“Whether good cause exists is a question for the trial court’s discretion.

[Citation.] . . . While a showing of good cause requires that both counsel and the

defendant demonstrate they have prepared for trial with due diligence [citation], the trial

court may not exercise its discretion ‘so as to deprive the defendant or his attorney of a

reasonable opportunity to prepare.’ ” (People v. Doolin (2009) 45 Cal.4th 390, 450.)

“Absent a showing of an abuse of discretion and prejudice, the trial court’s denial does

not warrant reversal.” (Doolin, at p. 450; see also People v. Mungia (2008) 44 Cal.4th

1101, 1118.) “In reviewing the decision to deny a continuance, ‘[o]ne factor to consider

is whether a continuance would be useful.’ ” (Mungia, at p. 1118.)

Here, the trial court denied the continuance because it found that defendant had

ample time to file the Romero motion before the sentencing hearing. It was clear that

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defendant was aware that he could file such motion. Defendant noted that in his prior

case, there had been a Romero motion. In addition, the trial court had advised defendant

that he could use the time before sentencing to meet with his investigator to prepare

something to argue that he should not be subject to a lengthy prison sentence. It was

clear that defendant prepared nothing, despite being given time to do so. Defendant, in

propria persona, was held to the same standard as counsel. “Self-represented defendants

are ‘held to the same standard of knowledge of law and procedure as is an attorney.’ ”

(People v. Frederickson (2020) 8 Cal.5th 963, 1000.) The trial court did not abuse its

discretion by denying defendant’s request for more time to file a Romero motion, as he

had ample time to file the motion.

Further, defendant was not deprived of his right to present a defense in violation of

his Sixth Amendment rights. Defendant was given ample opportunity to file a Romero

motion and chose not to do so. The trial court would have entertained such a motion if it

had been timely filed. The court was willing to extend the time for defendant to prepare

for sentencing but defendant told the trial court he just wanted “to get this over with.”

Defendant’s Sixth Amendment rights were not violated.

Even had the trial court entertained defendant’s Romero motion, there is no

reasonable probability that defendant would have received a more favorable outcome.

(People v. Mungia, supra, 44 Cal.4th at p. 1118-1119.) “[I]n ruling whether to strike or

vacate a prior serious and/or violent felony conviction allegation or finding under the

Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to Penal Code

section 1385(a), or in reviewing such a ruling, the court in question must consider

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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.)

As noted by the trial court, defendant had an extensive criminal record despite

being only 26 years old. At the time of sentencing, defendant had pending felony and

misdemeanor cases. He was also facing probation violations. Defendant began

committing crimes in 2000, when he was only 10 years old. He committed numerous

theft and drug offenses as a juvenile. He committed a robbery offense in 2009 and was

found unfit for juvenile court; he was sentenced to state prison for two years. Once he

attained adulthood, he continued to commit offenses including a burglary, for which he

was sentenced to seven years in prison. Once released, he violated his probation on

numerous occasions and continued to commit crimes.

The trial court did not abuse its discretion or violate defendant’s right to defend

himself by finding there was no good cause to grant the continuance. Defendant had two

months during which to file the Romero motion and the record supports that he

intentionally decided not to file the motion. Moreover, even if the trial court granted a

continuance to defendant in order for him to file a Romero motion, it is not clear from the

record that defendant would have actually filed such motion based on his comments to

the trial court. Finally, defendant clearly fell within the spirit of the Three Strikes law

and it is not reasonably probable he would have received a more favorable outcome had

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he been given the opportunity to file the Romero motion. (People v. Williams, supra, 17

Cal.4th at p. 161.) Defendant has failed to show that the trial court abused its discretion

by denying a continuance or that he was deprived of his right to present a defense.

B. SECTION 667.5, SUBDIVISION (B), PRIORS

Defendant contends this court should strike the two section 667.5, subdivision (b),

enhancements imposed for his prior prison terms. The People concede that they must be

stricken.

On October 8, 2019, Senate Bill No. 136 was signed into law and became

effective on January 1, 2020. Senate Bill No. 136 modifies section 667.5, subdivision

(b), to eliminate the one-year sentences for prior prison terms served unless the prior

prison term involves a conviction of a sexually violent offense (which is not involved

here). Senate Bill No. 136 applies retroactively to those defendants whose cases are not

yet final. (People v. Cruz (2020) 46 Cal.App.5th 715, 738-739; People v. Lopez (2019)

42 Cal.App.5th 337, 341-342.) Defendant’s case is not yet final, and as conceded by the

People, the two section 667.5, subdivision (b), enhancements for his two prior prison

sentences should be stricken. We will direct the trial court to strike the prior prison

terms imposed pursuant to section 667.5, subdivision (b).

C. STRIKE ENHANCEMENTS ORDERED TO RUN CONCURRENT

Defendant contends the trial court improperly imposed concurrent sentences on

the great bodily injury enhancement found true pursuant to section 12022.7, subdivision

(a); the two prior serious felony convictions found true pursuant to section 667,

subdivision (a); and the two, one-year enhancements imposed for having served two prior

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prison terms found true pursuant to 667.5, subdivision (b). Defendant contends that the

trial court could only strike or impose the enhancements consecutively. This court should

strike the enhancements as the trial court clearly did not intend to impose these

enhancements. We have already struck the two, one-year enhancements imposed

pursuant to section 667.5, subdivision (b). The People agree that the sentences on the

remaining enhancements could not be ordered to run concurrently and that this court can

strike the sentence on the enhancements as it was clear that the trial court did not intend

to impose the enhancements; remand would be a waste of judicial resources.

At the time of sentencing, the prosecutor agreed that a 25-years-to-life sentence

was appropriate in the case. The prosecutor recommended staying the sentences on the

enhancements. The trial court believed that 25-years-to-life was a sufficient sentence

even though the probation department had recommended imposing 13 years on the

enhancements. The trial court ordered the 13 years to run concurrent to the 25-years-to-

life sentence.

Section 12022.7, subdivision (a), provides, “Any person who personally inflicts

great bodily injury on any person other than an accomplice in the commission of a felony

or attempted felony shall be punished by an additional and consecutive term of

imprisonment in the state prison for three years.” A trial court has the discretion to strike

the enhancement or additional punishment for an enhancement pursuant to section 1385,

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subdivision (b)(1).4 (People v. Jones (2007) 157 Cal.App.4th 1373, 1378-1383; People

v. Rivas (2004) 119 Cal.App.4th 565, 571.) If the trial court chooses to impose the

sentence on the enhancement, it must impose a consecutive sentence. (§ 1170.1, subd.

(d).)

At the time that defendant was sentenced on January 4, 2019, Senate Bill No. 1393

had been effective for four days. (Sen. Bill No. 1393 (2017-2018 Reg. Sess.).) The bill

amended sections 667, subdivision (a)(1), and 1385, subdivision (b), to allow a court to

exercise its discretion to strike or to dismiss a serious felony prior for sentencing

purposes. (People v. Alexander (2020) 45 Cal.App.5th 341, 344.) Prior to the

amendment, the trial court did not have the discretion to strike a section 667, subdivision

(a)(1), enhancement. As such, the trial court had the discretion to strike the section 667,

subdivision (a)(1), priors at the time of sentencing but not run them concurrent to the

imposed sentence. (§ 1170.1, subd. (d).)

When there is an error in sentencing, “Remand is required unless ‘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.

[Citation.] In reviewing whether the trial court made such an unequivocal indication, we

consider the trial court’s statements and sentencing decisions.” (People v. Franks (2019)

4 Section 1385, subdivision (b)(1), provides, “If the court has the authority
pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead
strike the additional punishment for that enhancement in the furtherance of justice.”

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35 Cal.App.5th 883, 892.) Conversely, if the trial court clearly indicates it would have

stricken the enhancements, remand is not required.

Here, the trial court expressed that a 25-years-to-life sentence was the appropriate

sentence. It did not agree with the probation report that an additional 13-year determinate

term should be imposed on the enhancements.

The trial court could have imposed the enhancements but decided that it did not

want to sentence defendant to the additional 13 years. It then improperly sentenced

defendant concurrently on these enhancements. As conceded by the People, this court

should strike the sentence on the great bodily injury enhancement and the serious prior

felony enhancements pursuant to section 1385.

D. ABILITY TO PAY

Defendant claims, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157

(Dueñas), that the trial court violated his federal constitutional right to due process by

imposing the restitution fine and fees without determining if he had the ability to pay.

Defendant contends this court must reverse the imposition of the fines and fees. The

People contend defendant has forfeited any objection to the restitution fine; the restitution

fine is a form of punishment and it is properly examined under the excessive fines clause

of the Eighth Amendment not requiring an ability to pay determination; and any

conceivable error was harmless beyond a reasonable doubt. The California Supreme

Court will ultimately decide these issues as it has granted review in People v. Kopp,

review granted on November 13, 2019, S257844, but we conclude remand is not

necessary.

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 In the probation report, it was recommended that the trial court impose a $10,000

restitution fine pursuant to Penal Code section 1202.4, subdivision (b); a $10,000 parole

revocation fine which would be stayed pursuant to Penal Code section 1202.45; a

booking fee of $514.58 pursuant to Government Code section 29550; a criminal

conviction assessment fee of $30 pursuant to Government Code section 70373; the yet-

to-be-determined cost of the presentence report pursuant to Penal Code section 1203.1b;

a court operations assessment fee in the amount of $40 pursuant to Penal Code section

1465.8, subdivision (a)(1); and $1,500 for presentence incarceration costs pursuant to

Penal Code section 1203.1c. The trial court imposed these fines and fees at sentencing

and made no determination as to defendant’s ability to pay.

On January 8, 2019, after sentencing in this case, the Court of Appeal issued its

opinion in Dueñas, supra, 30 Cal.App.5th 1157. In Dueñas, the defendant was a

probationer who suffered from cerebral palsy, was indigent, homeless, and the mother of

young children. She requested and received a full hearing on her ability to pay the court

facilities fee, court operations fee, and the mandatory minimum restitution fine. Despite

her clear inability to pay these fees and fine, the trial court mandatorily imposed them.

(Id. at pp. 1162-1163.)

The Court of Appeal held that the trial court violated defendant’s right to due

process under both the United States and California Constitutions by imposing court

operations and facilities assessments pursuant to Government Code section 70373 and

Penal Code section 1465.8, without making a determination as to the defendant’s ability

to pay even though such determination was not required by the statute. (Dueñas, supra,

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30 Cal.App.5th at p. 1168.) Further, the court concluded that although the imposition of

restitution fines pursuant to Penal Code section 1202.4, subdivision (b), is punishment,

unlike the above fees, it raises similar constitutional concerns, and therefore, the Duenas

court held that while the trial court must impose the minimum restitution fine even if the

defendant demonstrates an inability to pay, “the court must stay the execution of the fine

until and unless the People demonstrate that the defendant has the ability to pay the fine.”

(Dueñas, at p. 1172.)

1. WAIVER

We first address the booking fee imposed pursuant to Government Code section

29550. Government Code sections 29550 and 29550.2 permit judicial consideration of

the defendant’s ability to pay. As such, it differs from the fines and fees discussed in

Dueñas. The California Supreme Court has already determined that the failure to

challenge the imposition of a booking fee at sentencing forfeits the claim on appeal.

(People v. McCullough (2013) 56 Cal.4th 589, 592-593, 598.) Defendant has forfeited

any objection to the imposition of the booking fee due to the trial court’s failure to

determine his ability to pay.

In addition, defendant relies on Duenas to contend that the presentence report fee

(an amount that has not been determined) imposed pursuant to section 1203.1b should

have not been imposed without first determining his ability to pay the fees. These also

differ from the fees discussed in Dueñas as they already have a requirement that a

determination must be made as to the defendant’s ability to pay the fees. Defendant has

also waived any objection to these fees. The California Supreme Court has repeatedly

18
found that the failure to object to these fees forfeits the argument of an inability to pay on

appeal. (People v. Aguilar (2015) 60 Cal.4th 862, 866; People v. Trujillo (2015) 60

Cal.4th 850, 857-858.)5

Defendant also states that the section 1203.1c incarceration costs should be

stricken based on his inability to pay. We note that such fee could not be imposed

because defendant was sentenced to state prison. Section 1203.1c provides in relevant

part that if “a defendant is convicted of an offense and is ordered to serve a period of

confinement in a county jail, city jail, or other local detention facility as a term of

probation or a conditional sentence,” the court may order the defendant to pay “the

reasonable costs of such incarceration, including incarceration pending disposition of the

case.” Since defendant was sentenced to state prison, section 1203.1c does not apply.

Despite defendant not raising the issue that the imposition of the fee was unauthorized,

we can strike the fee for the first time on appeal. (People v. Smith (2001) 24 Cal.4th 849,

854 [reviewing courts can strike unauthorized sentence at any time].)

Further, defendant has waived any objection to the restitution fine imposed. The

restitution fine imposed was in the amount of $10,000. This court has already concluded

that prior to Dueñas, the trial court in imposing a restitution fine above the minimum

5 It appears defendant is not without recourse to have these amounts reduced.
Section 1203.1b, subdivision (f), provides, “At any time during the pendency of the
judgment rendered according to the terms of this section, a defendant against whom a
judgment has been rendered may petition the probation officer for a review of the
defendant’s financial ability to pay or the rendering court to modify or vacate its previous
judgment on the grounds of a change of circumstances with regard to defendant’s ability
to pay the judgment.”

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statutory amount ($300) already had the obligation to determine the defendant’s ability to

pay the enhanced restitution fine. The defendant’s failure to object to the imposition of a

restitution fine in excess of the statutory minimum waives the issue of ability to pay on

appeal. (People v. Taylor (2019) 43 Cal.App.5th 390, 399-400) Defendant has waived

his claims of a violation of due process on the restitution fine, the presentence

incarceration fee, the booking fee and any fee imposed for the presentence report.

2. COURT FACILITY AND OPERATION FEES

As for the remaining fees, Government Code section 70373 and Penal Code

section 1465.8, subdivision (a)(1), do not include language regarding the defendant’s

ability to pay the fees. We need not determine whether Dueñas was properly decided as

to these fees imposed. Even if Dueñas applies to this case, the record supports defendant

has the ability to pay based on his prison wages, rendering any conceivable constitutional

error harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18,

24; People v. Jones (2019) 36 Cal.App.5th 1028, 1035 [defendant has ability to pay

assessments and fines though prison wages].) “Prison wages range from $12 to $56 per

month, depending on the prisoner’s skill level.” (People v. Aviles (2019) 39 Cal.App.5th

1055, 1076.) “The state may garnish between 20 and 50 percent of those wages to pay

the section 1202.4, subdivision (b) restitution fine.” (Ibid.) Defendant, who has received

a sentence of 25 years to life, can earn wages in prison to pay the $70 of fees imposed

even if half of his wages would go to paying the restitution fine. Defendant was 26 years

old and there was no evidence that he was incapable of working in prison. We find that

even if Dueñas was properly decided, any conceivable constitutional error was harmless.

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 DISPOSITION

The trial court is directed to strike the two one-year enhancements pursuant to

section 667.5, subdivision (b); the two prior serious felony conviction enhancements

pursuant to 667, subdivision (a)(1); and the incarceration fee pursuant to section 1203.1c.

The concurrent sentence on the section 12022.7, subdivision (a), enhancement must also

be stricken. The trial court is ordered to prepare an amended abstract of judgment and to

forward it to the appropriate prison authorities. As so modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER
Acting P. J.

We concur:

CODRINGTON
J.

MENETREZ
J.

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