People v. Wagner CA5

Filed 5/5/21 P. v. Wagner CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT

THE PEOPLE,
F078806
Plaintiff and Respondent,
(Tuolumne Super. Ct.
v. Nos. CRF52076 & CRF53372)

ZACKARIAH RYAN WAGNER,
OPINION
Defendant and Appellant.

THE COURT*
APPEAL from a judgment of the Superior Court of Tuolumne County. James A.
Boscoe, Judge.
Paul Stubb, Jr., under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D.
Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

* Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
 INTRODUCTION
Appellant and defendant Zackariah Ryan Wagner was convicted after a jury trial
of multiple felony and misdemeanor counts arising out of a series of domestic violence
incidents and violations of a protective order. He was placed on probation and ordered to
pay restitution fines and other fees and assessments. On appeal, he contends the court
improperly ordered him to pay the restitution fines and other fees in violation of his
constitutional rights as set forth in People v. Dueñas (2019) 30 Cal.App.5th 1157
(Dueñas). We affirm.
FACTS
Defendant and the confidential victim (C.V.) became involved in a romantic
relationship in 2014, and they were parents of one child. C.V. also had an older child
with another man, with whom she shared custody.
In September 2016, C.V. purchased a house in Tuolumne County. Defendant’s
house was about a minute’s drive away from C.V.’s house. C.V. testified defendant did
not permanently move into her house, but he kept things there and frequently stayed
overnight. C.V. testified that in October 2016, their relationship was “off and on” and
“very rocky.”
Defendant hits C.V. (count 1)
On October 9, 2016, defendant was at C.V.’s house. Their child was one year old.
C.V. asked defendant to do a chore in the house for her. Defendant wanted to take a nap
instead, and they started arguing. C.V. repeatedly told defendant to leave. Defendant hit
her in the face with his open hand and ripped out her earring. When C.V. tried to get
away, defendant hit her with a shoe and threw her against the wall. C.V. hit defendant
with her fist every time he got close to her and inflicted a black eye on him. Defendant
opened the door, threw some of his possessions outside, and left.

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 C.V. testified she suffered a black eye, bruises on her body, and a broken bone in
her finger that required surgery. C.V. admitted she suffered the broken bone when she hit
defendant.
Defendant later apologized for the incident. C.V. and defendant continued living
together for one more month. C.V. did not immediately contact law enforcement about
this incident.
Defendant breaks down the door (count 2)
On November 22, 2016, C.V. invited defendant to her house to see their child.
During the visit, defendant asked why he could not see the child more or by himself.
C.V. said he was not safe, and she did not trust him; they started arguing. C.V. asked him
to leave, and he complied. After she closed the door, defendant realized he forgot his cell
phone in the house. He yelled at C.V. to open the door and threatened to break in.
C.V. told defendant that she would return his cell phone if he stood in the
driveway by his car, and defendant agreed. She tossed the cell phone out of the house,
and quickly closed and locked the door. The cell phone broke when she threw it on the
ground.
Defendant got angry because the cell phone was broken. He punched the front
door and kicked it open. He called C.V. a “f[**]king bitch” and said that was what she
deserved, and he left.
C.V. called 911, and deputies responded to the house and saw the damaged front
door. C.V. also told the deputies that defendant assaulted her the prior month, and
admitted she broke her hand when she punched defendant.
A deputy reached defendant by telephone that night. He admitted he kicked in the
door at C.V.’s house and said he lost his cool.

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Defendant’s first arrest and the protective order
It was stipulated to the jury that on December 19, 2016, defendant was charged
with inflicting a corporal injury (§ 273.5) with a great bodily injury enhancement
(§ 12022.7, subd. (e)), and misdemeanor vandalism (§ 594, subd. (a)).
On March 7, 2017, defendant was arrested on a warrant.
On the morning of March 10, 2017, defendant made his first appearance in court
for the criminal charges. He was personally served in court with a criminal protective
order that prohibited personal, electronic, telephonic, or written contact with C.V.,
coming within 100 yards of C.V., and ordered him to stay away from C.V.’s vehicle,
residence, and place of employment. The order provided for “peaceful contact with the
protected persons named above as an exception to the no-contact or stay-away provisions
… only for the safe exchange of children and court-ordered visitation as stated in the ….”
The remainder of that provision was left blank.
At trial, C.V. testified the child visitation provision was left blank because she did
not have a custody agreement with defendant about their child, and she expected
defendant to “stay away from me completely.”
Defendant’s violations of the protective order (counts 3, 5 through 8)
Later, on March 10, and also on March 17, 2017, C.V. received text messages
from defendant that were not about their child. She described the messages as “his
intimidating rants of anger.” C.V. reported the messages to law enforcement.
A deputy contacted defendant; defendant said he knew about the protective order
but thought he could send text messages about visitation.
Both defendant and C.V. had their own Facebook pages and previously
communicated with each other on the site. On March 25, 2017, defendant posted a
message on C.V.’s Facebook page that said, “ ‘Lies, all lies, can’t believe I had a child
with someone so selfish and mean. I want to see my kid, been a month and two days
already. Bullshit.’ ”

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 On the same day, defendant parked his truck in front of C.V.’s house, and she took
photographs of his truck. When he drove away, defendant held a book that belonged to
her father out of the truck’s window and yelled, “ ‘I guess you’re not f[**k]ing getting
this back.’ ” C.V. had previously asked defendant to return the book and other items.
She reported this incident to law enforcement.
On or about March 28, 2017, the family law court issued an order that prohibited
visitation between defendant and their child and granted sole custody to C.V. The order
was filed in response to C.V.’s motion for a civil protective order and custody.
Defendant never filed for custody of their child or sought an order for visitation.
On April 1, 2017, C.V. met defendant at a park so he could play with their child.
She thought it would be safe to see him in a public place. During the visit, defendant
asked about someone at her house, and C.V. said it was none of his business. Defendant
got angry, called C.V. a “f[**]king whore,” and asked who she was sleeping with. C.V.
told defendant to leave immediately. C.V. did not report this incident to law enforcement
when it occurred. Later, on April 1, 2017, defendant sent her text messages that were not
about their child.
On April 2, 2017, C.V. reported the previous day’s text messages to law
enforcement. A deputy contacted defendant about the text messages, and defendant
admitted he sent them. The deputy ordered defendant not to contact her anymore, and
defendant agreed.
On April 5, 2017, C.V. was at work and received several calls from a restricted
number. When she finally answered the call, defendant was on the line, and he was
“[t]hreatening and angry, cussing.” C.V. put the call on speakerphone so that a coworker
could hear, and the coworker also recognized defendant’s voice. C.V. reported this
incident because defendant called her work phone.
On April 6, 2017, C.V. was driving out of a restaurant’s parking lot when
defendant pulled in front of her and blocked her car from leaving for about two minutes.

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C.V. finally backed up so she could drive out from another exit. Defendant turned
around, drove toward C.V.’s car, and passed her while going in the opposite direction.
C.V. testified defendant gave her a “threatening” look. C.V. reported this incident
because she was scared.
A deputy spoke to defendant about this incident, and defendant said he was at the
restaurant to get something to eat, and claimed C.V. yelled at him to stop stalking her.
The deputy advised defendant that he could not have any contact with C.V., and
defendant said he understood.
On April 15, 2017, C.V. was at her house with a male friend, who had parked on
the street. C.V. received several calls from a blocked number, but she did not answer.
C.V. testified she had never received a call from a blocked number prior to the restraining
order being issued.
At approximately 11:10 p.m., C.V. heard a truck idling outside, and then heard
defendant’s voice yell, “ ‘F[**]king whore.’ ” C.V. looked outside and saw defendant
drive away in his truck. Defendant turned around and again drove by her house and
yelled the same curse. C.V. took a video of the incident on her cell phone.
C.V. called the sheriff’s department, and deputies responded to her house. While
they were there, C.V. received another call from a blocked number.1
Resisting arrest (count 4)
Around midnight on April 16, 2017, Tuolumne County Sheriff’s Deputy Zanini
contacted defendant at his residence about the incident that had just occurred at C.V.’s
house. Defendant denied calling C.V. or driving past her house. As the conversation
continued, defendant raised his voice and became agitated; he said he was angry.

1In counts 5 and 6, defendant was charged with violating the protective order on
April 15, 2017, based on parking outside her house and yelling at her, and making the
phone calls. The jury found him guilty of count 5 and not guilty of count 6.

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 Defendant eventually admitted that he called C.V. Deputy Zanini advised
defendant that he had violated the protective order and was going to be arrested.
Defendant ran away and ignored orders to stop. Zanini chased him for about 50 yards,
and then caught up and tackled him.
Deputy Zanini arrested defendant and found him in possession of a cell phone.
Defendant consented to Zanini’s review of the call history. The phone showed it had
made eight calls to C.V.’s number prior to midnight and one after midnight. Defendant’s
cell phone was set so his number was blocked when he made the calls.
On April 16, 2017, defendant was booked into jail and released a few hours later.

Stalking (count 9) and additional violations of the protective order (counts 10, 12
through 14)
On April 19, 2017, C.V. reported to the sheriff’s department that eggs were
thrown onto her car. C.V. did not feel safe, so C.V. and her children stayed at her
mother’s house.
C.V. testified that between April 17 and 19, 2017, she received multiple calls from
a blocked number on both her personal cell phone and work phone. When she answered
her work phone, she recognized defendant’s voice; he cursed her and accused her of
being with other men. She answered her personal phone a few times, recognized
defendant’s voice, and hung up.
On April 19, 2017, C.V. was driving from her mother’s house to work. She saw
defendant parked on the side of the road. Defendant pulled into a shopping center’s
parking lot, and C.V. followed him. She told him to leave her alone and stop following
her. Defendant laughed and said she was lucky that he did not kill her. As defendant
drove away, he made a motion of sliding his finger across his neck. C.V. was afraid
defendant was going to kill her and reported this incident to law enforcement.
On April 25, 2017, C.V. was at work, and in an office with an interior window that
faced a hallway. Defendant suddenly appeared at the window. Defendant taped a letter

7.
to the window, shook his head, and walked away. C.V. alerted a coworker, who also saw
defendant walk away. C.V. reported the incident to law enforcement and gave them the
letter, which was in defendant’s handwriting. When she reported the incident, she was
crying and afraid.2
On April 29, 2017, C.V. was leaving her house when defendant arrived in his
truck. Defendant yelled that he could not believe that she would not let him see their
child. C.V. reported the incident to law enforcement.3
Defendant’s second arrest
On May 21, 2017, C.V. was driving away from her house when defendant drove
by. C.V. drove in the other direction to avoid him, but defendant turned around and
followed her. C.V. drove into a parking lot because it was a public place. She filmed
defendant’s truck on her cell phone and called law enforcement, and defendant left.
Deputy Poel responded to the scene and took C.V.’s report. As they were talking,
defendant drove by the area. Deputy Lockhart responded to Poel’s dispatch, saw
defendant’s vehicle, and tried to catch up with him. Lockhart testified defendant
accelerated when he saw his patrol car. Lockhart accelerated to 65 miles per hour and
caught up with defendant after about one mile; defendant pulled over.
Deputy Lockhart advised defendant he had violated the protective order.
Defendant was “angry, agitated, and belligerent and refused to cooperate initially.”
Defendant said he knew about the restraining order, and it was a coincidence he was
driving on the same street as C.V. Defendant said it was “bullshit” that he had to adjust
his life because C.V. had a restraining order; he did not understand why he could not go

2In closing argument, the prosecutor stated the note said that “[defendant] loves
her, how he can’t live without her, and then at the end, he says, goodbye, my time here is
done.”
3Defendant was found not guilty of count 11, violating a court order, which was
based on the incident of April 29, 2017.

8.
wherever he wanted “just because she was going there, too;” and he blamed C.V. for
getting in his way during the incident.
Deputy Lockhart arrested defendant for violating the protective order. Defendant
“remained belligerent and was less than polite in speaking with me.” Defendant said
C.V. constantly called and harassed him, and that is why she called the police. Lockhart
asked defendant if he had reported this alleged harassment. Defendant said no, that the
sheriff’s department would not do anything for him, and it was “ridiculous that he had to
adjust his life just because she had the restraining order in place.”
Defendant was booked into jail but released later that day.
Additional violations of the protective order (counts 13 & 14)
On May 23, 2017, C.V. received more calls at work from a blocked number. She
answered and recognized defendant’s voice. Defendant yelled, “ ‘You f[**]king bitch, I
can’t believe you won’t let me see my kid.’ ” C.V. hung up and reported the incident to
law enforcement.
On the same day, Deputy Lockhart met with C.V. and described her as “terrified.”
C.V. said she was afraid to go to work or anywhere in the community because “of the
constant fear that she would run into him somewhere,” and he would harm her.
On June 5, 2017, C.V. again received a blocked call at work. She answered it and
recognized defendant’s voice. Defendant said, “ ‘Just to let you know I f[**]king hate
you.’ ” C.V. hung up and reported the incident to law enforcement.
As a result of defendant’s conduct during these incidents, C.V. changed her cell
phone number and purchased security cameras, motion lights, and metal screen doors, to
try and feel safe in her home. She still did not feel safe from defendant, however, and
testified she ultimately moved out of her house because she was worried about what he
might do to her. C.V. testified she lost custody of her older child “for a time” because
that child’s father learned of defendant’s conduct and believed his child was in danger.

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 DEFENDANT’S TRIAL TESTIMONY
Defendant testified that he was living with C.V. when the October 9, 2016,
incident took place. After the argument about the nap, C.V. told him to get out, and he
refused. She became angry and repeatedly hit defendant with her closed fist. In self-
defense, he struck her with his open hand and a shoe, and he left after a few minutes.
Defendant admitted he kicked down C.V.’s door after she threw the cell phone out
of her house, during the November 22, 2016, incident.
Defendant knew the criminal protective order existed, and insisted he never
followed C.V. around. Defendant also knew on March 29, 2017, that the family court
had issued an order the prior day that prohibited any visitation with his child.
Defendant denied trying to block C.V. from leaving the parking lot during the
April 6, 2017, incident. He denied threatening C.V. during the April 19, 2017, incident,
and testified that C.V. followed him, and he told her to leave him alone.
Defendant testified that he did not threaten C.V. during the incident when he met
C.V. and their child at the park; he was just happy to see his child.
Defendant denied following or harassing C.V. while the protective order was in
place. Defendant admitted that he called and sent text messages to C.V. at certain times
while the protective order existed, but claimed he did that because of their child.
Defendant admitted he called C.V. nine times from a blocked number on August 15 and
16, 2017, and lied to the deputy about it.
Defendant also admitted that he was angry when he saw a vehicle parked in front
of C.V.’s house, presumed a man was there, and yelled that he wanted to see his child.
He did not recall calling C.V. an “f’ing whore.” Defendant admitted he ran away when
Deputy Zanini tried to arrest him. Defendant denied that he called C.V.’s work phone,
but admitted he appeared outside C.V.’s office and posted the note on her window, and
that he posted the comments on C.V.’s Facebook page.

10.
 PROCEDURAL BACKGROUND
On September 27, 2018, an information was filed against defendant that was
consolidated for purposes of trial and alleged 14 counts from four separate case numbers.
In case No. CRF52076, defendant was charged with count 1, infliction of corporal
injury to the parent of his child on or about October 9, 2016 (§ 273.5, subd. (a)), with an
enhancement for the infliction of great bodily injury (§ 12022.7, subd. (e)); and count 2,
misdemeanor vandalism on or about November 22, 2016 (§ 594, subd. (a)).
In case No. CRM52911, defendant was charged with count 3, misdemeanor
disobeying a court order in case No. CRF52076 on March 17, 2017 (§ 166, subd. (a)(4)).
In case No. CRM53144, defendant was charged with count 4, misdemeanor
obstructing a peace officer, Deputy Zanini, on April 16, 2017 (§ 148, subd. (a)(1)), and
counts 5 through 8, misdemeanor disobeying a court order in case No. CRF52076 on,
respectively, April 15, April 15, April 5, and April 1, 2017.
In case No. CRF53372, defendant was charged with count 9, felony stalking while
subject to a temporary restraining order, or about or between April 19 and June 5, 2017
(§ 646.9, subd. (b)), with an on-bail enhancement (§ 12022.1); and counts 10 through14,
misdemeanor disobeying a court order in case No. CRF52076, on or about, respectively,
April 25, April 29, May 21, May 23, and June 23, 2017.
Convictions
On October 5, 2018, the jury found defendant guilty of all counts with the
following exceptions: it found defendant was not guilty of counts 6 and 11, disobeying a
court order, and found the great bodily injury enhancement alleged for count 1, infliction
of corporal injury, was not true. The court found the on-bail enhancement true for
count 9, stalking.
SENTENCING HEARING
On November 20, 2018, the trial court conducted the sentencing hearing. The
court stated it agreed with the probation report’s recommendation for probation.

11.
 The prosecutor objected to placing defendant on probation because he was not a
good candidate and a prison term was more appropriate. While this was defendant’s first
felony case, “he’s come out the gate swinging” and inflicted “nearly a year of terror” on
C.V. He repeatedly ignored the court order and committed acts of violence against her.
The prosecutor further argued defendant did not take responsibility for his actions, he did
not show remorse, and he claimed to be the victim when he talked to the probation
officer. Defendant had “terrorized” C.V. and “destroyed” her sense of security. The
prosecutor reminded the court that C.V. had requested a full protective order.
The court stated defendant’s conduct was egregious, it was disappointed that he
never took responsibility for his actions,4 the jury did not believe his version, and
acknowledged that domestic violence victims “really never get over the impact of this.”
The court wanted to give defendant another chance, however, because he had “no record”
and deserved a chance on probation.5 The court warned defendant that he would go to
prison if he violated probation. The prosecutor stated the maximum possible term would
be seven years. The court advised defendant that he had “a lot hanging over your head”
because it would impose an aggravated term if he violated probation and “came back
with a similar situation.”
The court advised defense counsel that there were several pages in the probation
report that outlined the statutory fees and assessments and asked if defendant waived a

4In his statement to the probation officer, defendant reasserted much of his trial
testimony, and claimed C.V. fabricated her claims that he violated the protective order
and he only contacted C.V. about visitation issues.
5 While defendant did not have any prior felony convictions or prison terms, he
was placed on probation for prior misdemeanor convictions for violations of Vehicle
Code sections 23152, subdivision (a) and 14601.5, subdivision (a) in 2000; Vehicle Code
section 23152, subdivision (a) and section 1320, subdivision (a) in 2000; and Vehicle
Code sections 14601., subdivision 1(a) and 40508, subdivision (a) in 2016.

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formal reading of these amounts. Defense counsel said he had gone over the amounts
with defendant and waived reading the specific amounts into the record.
However, defense counsel objected to the large amount recommended for victim
restitution, and requested a hearing because he had not seen any evidence to support the
amount requested.6 The prosecutor said he had the supporting paperwork and would
provide copies to defense counsel. The court said it would defer addressing victim
restitution.
Case No. CRF53372
Based on defendant’s convictions in count 9, stalking, and counts 10, 12, 13, and
14, disobeying a court order, the court suspended imposition of sentence for five years
and placed defendant on probation subject to certain terms and conditions, including drug
and alcohol testing, cooperating with the probation officer for psychological or
psychiatric/alcohol and/or drug treatment, completion of a 52-week domestic violence
counseling program, plus six months in jail.
The court imposed a restitution fine of $300 (§ 1202.4, subd. (b)), suspended the
probation termination fine of $300 (§ 1202.44), and reserved ruling on victim restitution.
The court also imposed a total of $2,690 in fines, fees, and assessments based on
the following amounts imposed as to, respectively, each of counts 9, 10, 12, 13, and 14,
as itemized in the probation report:7
(1) Base fines of $200 for count 9, and $100 for each of counts 10, 12 through 14;
(2) State penalty assessments of $200 for count 9, and $100 for each of counts 10,
12 through 14 (§ 1464; 100 percent of the base fine);

6 The probation report recommended total victim restitution of $37,732.87 and
stated that C.V. had presented receipts for $37,212.87 for medical costs, physical therapy,
and the costs to add security systems to her house; plus $520 for moving expenses.
7 The court stated it was imposing the fines and fees recommended for this case as
stated in the probation report, which listed a total amount of $2,690 in case
No. CRF53372. At the sentencing hearing, the court misstated this amount as $2,609.

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 (3) County penalty assessments of $140 for count 9, and $70 for each of counts
10, 12 through 14 (Gov. Code, § 76000; 70 percent of the base fine);
(4) State surcharges of $40 for count 9, and $20 for each of counts 10, 12 through
14 (§ 1465.7; 20 percent of the base fine);
(5) Court construction penalties of $100 for count 9, and $50 for each of counts
10, 12 through 14 (Gov. Code, § 70372; 50 percent of the base fine);
(6) DNA fund penalties of $100 for count 9, and $50 for each of counts 10, 12
through 14 (Gov. Code, §§ 76104.6, 76104.7; 50 percent of the base fine);
(7) Court operations assessment of $40 for each of counts 9 through 10, 12
through 14 (§ 1465.8); and
(8) Criminal conviction assessments of $30 for each of counts 9 through 10, 12
through 14 (Gov. Code, § 70373).
The court further imposed $50 per month for probation supervision services
(§ 1203.1b); and a criminal justice administration fee of $183 (Gov. Code, § 29550,
subds. (b), (c), § 29550.2).
Case No. CRF52076
Based on defendant’s conviction for count 1, felony infliction of corporal injury,
and count 2, misdemeanor vandalism, the court suspended imposition of sentence for five
years and placed defendant on probation subject to the same certain terms and conditions,
including a consecutive term of six months in jail.
The court imposed a restitution fine of $300 (§ 1202.4, subd. (b)), suspended the
probation termination fine of $300 (§ 1202.44), and reserved ruling on victim restitution.
The court also imposed a total of $1,810 in fines, fees, and assessments based on
the following amounts imposed as to, respectively, counts 1 and 2:
(1) Base fines of $200 and $100;
(2) State penalty assessments of $200 and $100 (§ 1464; 100 percent of the base
fine);

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 (3) County penalty assessments of $140 and $70 (Gov. Code, § 76000; 70 percent
of the base fine);
(4) State surcharges of $40 and $20 (§ 1465.7; 20 percent of the base fine);
(5) Court construction penalties of $100 and $50 (Gov. Code, § 70372; 50 percent
of the base fine);
(6) DNA fund penalties of $100 and $50 (Gov. Code, §§ 76104.6, 76104.7; 50
percent of the base fine);
(7) Court operations assessment of $40 for each count (§ 1465.8);
(8) Criminal conviction assessments of $30 for each count (Gov. Code, § 70373);
and
(9) A domestic violence funds fee of $500 for count 1 only (§ 1203.097,
subd. (a)(5)).
The court further imposed a $578.75 fee for preparation of the presentence report;
$50 per month for probation supervision services (§1203.1b); and a criminal justice
administration fee of $183 (Gov. Code, § 29550, subds. (b), (c), § 29550.2).
Finally, the court imposed a 10-year protective order that prohibited contact with
C.V. and the child; the order would expire in 2028. The court stated that it would modify
the order if the family court granted defendant visitation or joint custody of the child.
Victim restitution
After the court placed defendant on probation, the prosecutor stated C.V. was
present and could establish the foundation for the victim restitution amounts
recommended in the probation report. The court agreed.
In response to the prosecutor’s questions, C.V. testified she presented receipts and
other documents to the prosecutor’s office to support her request for victim restitution,
identified the documents, and that she also received payments from the victim’s
compensation board. The court set a hearing on the victim restitution issue.

15.
 On January 18, 2019, defendant filed notices of appeal in case Nos. CRF52076
and CRF53372.
Victim restitution order
On March 6, 2019, the court filed an order that stated the parties stipulated that
defendant would pay $12,478.43 to C.V. in direct victim restitution, plus $2,957.10 to the
Victim Compensation and Government Claim Board to reimburse amounts already paid
to C.V. (§ 1202.4, subd. (f)).
Section 1237.2 motion
On or about November 15, 2019, defendant filed a motion in the trial court,
pursuant to section 1237.2, for an order to vacate the restitution fines and other fees
imposed because the court failed to find he had the ability to pay those amounts as
required by Dueñas.
On or about December 3, 2019, the court denied the motion.
DISCUSSION
Defendant contends that the restitution fines, and other fees and assessments, must
be stricken because the court violated his due process rights when it imposed these
amounts, as set forth in Dueñas. Defendant asserts this case is similar to Dueñas because
he was placed on probation, he was ordered to pay a large amount of fines and fees, the
court never determined whether he had the ability to pay, and there was evidence he was
unemployed and had no income. Defendant asserts the matter must be remanded for an
ability to pay hearing.
A. Forfeiture
As we will explain below, Dueñas held that “due process of law requires the trial
court to conduct an ability to pay hearing and ascertain a defendant’s present ability to

16.
pay” before it imposes any fines or fees. (Dueñas, supra, 30 Cal.App.5th at pp. 1164,
1167.)8
However, we begin with defendant’s argument that, even though defense counsel
did not object to the court’s imposition of the restitution fines, fees, and assessments, he
did not forfeit review of these issues because the sentencing hearing occurred prior to the
decision in Dueñas, and the ruling could not have been anticipated.
While Dueñas was not decided at the time of the sentencing hearing, we agree
defendant did not forfeit review of this issue but for a different reason. Section 1202.4,
subdivisions (c) and (d) only permits a party to raise an ability to pay objection when the
court imposes a restitution fine above the statutory minimum amount of $300. In this
case, the court imposed the statutory minimum restitution fines of $300 for each case
pursuant to section 1202.4, subdivision (b). Under the governing law at the time of the
sentencing hearing, defendant lacked statutory authority to object to the minimum
restitution fines, and also to the other fees and assessments. (Cf. People v. Frandsen
(2019) 33 Cal.App.5th 1126, 1153–1154.)9

8The California Supreme Court is currently considering whether trial courts must
consider a defendant’s ability to pay before imposing or executing fines, fees, and
assessments; and if so, which party bears the applicable burden of proof. (See People v.
Kopp (2019) 38 Cal.App.5th 47, 94–98, review granted Nov. 13, 2019, S257844.)
9 Defendant further argues he did not forfeit review since he filed a post-judgment
motion with the trial court pursuant to section 1237.2 after Dueñas was decided.
However, section 1237.2 requires the defendant to first seek relief with the trial court in
certain situations in order to perfect an appeal. The compliance with section 1237.2 does
not otherwise excuse a defendant’s failure to object at the sentencing hearing. (See, e.g.,
People v.Torres (2020) 44 Cal.App.5th 1081, 1087, 1088; People v. Hall (2019) 39
Cal.App.5th 502, 505.)
Given our conclusion that defendant did not forfeit review, we need not reach
defendant’s alternative claim that defense counsel was prejudicially ineffective for failing
to object.

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B. Victim Restitution
We note that while defendant lacked statutory authority to object to the restitution
fines, fees, and assessments, defense counsel exercised the statutory ability to request a
hearing on the proposed order for over $37,000 in victim restitution, as recommended in
the probation report. (See § 1202.4, subd. (f).) In response to defendant’s objection, the
court heard C.V.’s testimony that she presented certain receipts to the prosecutor’s office
for various expenses, and the prosecutor stated he would provide those documents to the
defense. The court then set a date for an evidentiary hearing on victim restitution.
According to the record, however, the parties ultimately stipulated that defendant
would pay $12,478.43 to C.V. in direct victim restitution, plus $2,957.10 to the Victim
Compensation and Government Claim Board to reimburse amounts already paid to C.V.
(§ 1202.4, subd. (f)).
To the extent it might be raised, we reject any argument that an ability to pay
objection applies to the court’s order to pay direct victim restitution to C.V. and
reimburse the victim restitution fund. Even if we agreed with the rule announced in
Dueñas, it appears settled that it does not apply to victim restitution orders. (People v.
Pack-Ramirez (2020) 56 Cal.App.5th 851, 859; People v. Abrahamian (2020) 45
Cal.App.5th 314, 338; People v. Evans (2019) 39 Cal.App.5th 771, 777; People v. Allen
(2019) 41 Cal.App.5th 312, 326.) In addition, the court’s order stated the parties
stipulated to the amounts ordered for victim restitution, and defendant’s agreement
forfeited any challenge to the amount of the victim restitution order. (People v. Anderson
(2010) 50 Cal.4th 19, 26, fn. 6; People v. Brasure (2008) 42 Cal.4th 1037, 1075; People
v. Mays (2017) 15 Cal.App.5th 1232, 1237.)
C. Dueñas
Defendant argues the court improperly imposed the restitution fines, fees, and
assessments as conditions of his probation in violation of his due process rights because it
failed to conduct a hearing on his ability to pay.

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 In Dueñas, the defendant was an indigent, homeless mother of two, who subsisted
on public aid while suffering from cerebral palsy. She had dropped out of high school
because of her illness, and she was unemployed. (Dueñas, supra, 30 Cal.App.5th at
pp. 1160–1161.) As a teenager, the defendant’s driver's license was suspended when she
could not pay some citations. (Id. at p. 1161.) She then was convicted of a series of
misdemeanor offenses for driving with a suspended license, and in each case, she was
given the choice to pay mandatory fees and fines, which she lacked the means to do, or
go to jail. (Ibid.) She served jail time in the first three of these cases, but still faced
outstanding debt, which increased with each conviction. (Ibid.)
After her fourth conviction of driving with a suspended license, the defendant was
placed on probation and again ordered to pay mandatory fees and fines. The court
imposed a $30 court conviction assessment (Gov. Code, § 70373, subd. (a)(1)); a $40
court operations assessment (§ 1465.8, subd. (a)(1)); and the minimum restitution fine of
$150 for a misdemeanor (§ 1202.4, subd. (b)(1)). The court also imposed and stayed a
probation revocation restitution fine (§ 1202.44). (Dueñas, supra, 30 Cal.App.5th at
pp. 1161–1162.) The defendant challenged the fees and fines imposed under sections
1202.4 and 1465.8 and Government Code section 70373. (Dueñas, at p. 1164.) The trial
court rejected her constitutional arguments that due process and equal protection required
the court to consider her ability to pay these fines and assessments. (Id. at p. 1163.)
Dueñas held the defendant’s due process rights had been infringed and that an
ability to pay hearing was required so the defendant’s “present ability to pay” could be
determined before assessments were levied for a court operations assessment (§ 1465.8,
subd. (a)(1)) and a criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)).
(Dueñas, supra, 30 Cal.App.5th at p. 1164.) Dueñas also held that the minimum
restitution fine of $150 for the misdemeanor conviction (§ 1202.4, subd. (b)(1)) had to be
stayed. Dueñas reached these conclusions even though section 1202.4 barred
consideration of a defendant’s ability to pay unless the judge was considering a fine over

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the statutory minimum. (§ 1202.4, subd. (c).) Dueñas held that “execution of any
restitution fine imposed under this statute must be stayed unless and until the trial court
holds an ability to pay hearing and concludes that the defendant has the present ability to
pay the restitution fine.” (Dueñas, at p. 1164.)
We disagree with the holding in Dueñas and find the matter need not be remanded
for further findings. As explained in People v. Aviles (2019) 39 Cal.App.5th 1055
(Aviles), we believe Dueñas was wrongly decided and an Eighth Amendment analysis is
more appropriate to determine whether restitution fines, fees, and assessments in a
particular case are grossly disproportionate and thus excessive. (Aviles, at pp. 1068–
1072.) Under that standard, the fines and fees imposed in this case are not grossly
disproportionate to defendant’s level of culpability and the harm he inflicted, and thus not
excessive under the Eighth Amendment. (Aviles, at p. 1072.)
Defendant acknowledges this court’s opinion in Aviles but argues we must
reconsider the ruling because it was wrongly decided. We decline to reconsider Aviles in
the absence of further guidance on this issue by the California Supreme Court.
Even if we agreed with Dueñas, defendant’s reliance on that case is misplaced
because it is distinguishable from the present matter. The defendant in Dueñas lost her
driver’s license because she was too poor to pay her juvenile citations. She continued to
offend because the aggregating criminal conviction assessments and fines prevented her
from recovering her license. Dueñas described this as “cascading consequences”
stemming from “a series of criminal proceedings driven by, and contributing to, [the
defendant’s] poverty.” (Dueñas, supra, 30 Cal.App.5th at pp. 1163–1164.)
In contrast to Dueñas, defendant’s multiple felony and misdemeanor convictions
in this case for the infliction of corporal injury, vandalism, resisting arrest, and stalking,
and eight separate convictions for violating the protective order, and his resulting
probationary status, were not a product of any court’s prior imposition of criminal
assessments and fines. Defendant was not caught in an unfair cycle of incarceration, and

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he could have avoided the present convictions regardless of his financial circumstances.
Dueñas is thus distinguishable and it has no application in this matter. (See People v.
Caceres (2019) 39 Cal.App.5th 917, 928–929 [declining to apply Dueñas’s “broad
holding” beyond its unique facts]; People v. Johnson (2019) 35 Cal.App.5th 134, 138
[“Dueñas is distinguishable”].)
D. The Court Did Not Violate Defendant’s Constitutional Rights
We further find that even if Dueñas applied to this case, the trial court did not
violate defendant’s constitutional rights. The probationer in Dueñas presented
compelling evidence that the imposed assessments resulted in ongoing unintended
punitive consequences against her. Dueñas determined that these unintended
consequences were “fundamentally unfair” for an indigent defendant under principles of
due process. (Dueñas, supra, 30 Cal.App.5th at p. 1168.)
Dueñas noted the imposed financial obligations were also potentially
unconstitutional under the excessive fines clause of the Eighth Amendment. However,
Dueñas stated that “[t]he due process and excessive fines analyses are sufficiently similar
that the California Supreme Court has observed that ‘[i]t makes no difference whether we
examine the issue as an excessive fine or a violation of due process.’ [Citation.]”
(Dueñas, supra, at p. 1171, fn. 8.)
The due process analysis in Dueñas was criticized in Aviles, supra, 39 Cal.App.5th
at pp. 1059–1060 and People v. Hicks (2019) 40 Cal.App.5th 320, 322, review granted
November 26, 2019, S258946 (Hicks). (See also People v. Kingston (2019) 41
Cal.App.5th 272, 279 (Kingston) [finding Hicks to be “better reasoned” than Dueñas];
People v. Caceres, supra, 39 Cal.App.5th at p. 928 [“In light of our concerns with the due
process analysis in Dueñas, we decline to apply its broad holding requiring trial courts in
all cases to determine a defendant's ability to pay before imposing court assessments or
restitution fines.”].)

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 As we explained in Aviles, the “ ‘excessive fines’ ” clause in the Eighth
Amendment to the United States Constitution was more appropriate than a due process
argument for an indigent defendant to challenge the imposition of fees, fines and
assessments. (Aviles, supra, 39 Cal.App.5th at p. 1069.) Aviles found no constitutional
violation for the imposition of assessments and fines imposed on a felon who, after
fleeing from officers, shot and wounded two of them. (Id. at pp. 1059–1060.) Aviles also
concluded that any presumed error was harmless because the felon had the ability to earn
money while in prison. (Id. at pp. 1075–1077.)
Hicks held that, in contrast to Dueñas’s due process analysis, a due process
violation must be based on a fundamental right, such as denying a defendant access to the
courts or incarcerating an indigent defendant for nonpayment. Hicks concluded that
Dueñas’s analysis was flawed because it expanded due process in a manner that grants
criminal defendants a right not conferred by precedent; that is, an ability to pay hearing
before assessments are imposed. (Hicks, supra, 40 Cal.App.5th at pp. 325–326.) Hicks
rejected a due process challenge to the imposition of fines and assessments on a felon
who, while under the influence of a stimulant, resisted arrest. (Id. at pp. 323, 329–330.)
We similarly reject any claim that the trial court violated due process. The fines
and fees imposed in this case do not implicate the traditional concerns of fundamental
fairness. Defendant was not denied access to the courts or prohibited from presenting a
defense. (See Griffin v. Illinois (1956) 351 U.S. 12, 18–20 [due process and equal
protection require a state to provide criminal defendants with a free transcript for use on
appeal]; Kingston, supra, 41 Cal.App.5th at p. 281; Hicks, supra, 40 Cal.App.5th at
p. 326.) Defendant was not incarcerated because he was unable to pay prior fees, fines or
assessments. (See Bearden v. Georgia (1983) 461 U.S. 660, 672–673 [fundamental
fairness is violated if a state does not consider alternatives to imprisonment if a
probationer in good faith cannot pay a fine or restitution]; Kingston, supra, 41
Cal.App.5th at p. 281; Hicks, supra, 40 Cal.App.5th at p. 326.)

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 The instant case does not present the unique concerns that existed in Dueñas.
There is no evidence to establish or even reasonably suggest that defendant faces ongoing
unintended punitive consequences. Defendant points to the statements in the probation
report that he was unemployed and had no income. However, the probation report also
stated defendant was 42 years old at the time of the sentencing hearing, he was employed
as a grocery store clerk from 1992 to 1997, as a clerk at another grocery store from 1997
to 1999; a powder coater for a company from 2002 to 2007, and delivered newspapers
from 2015 to March 2017. While defendant signed a statement of assets that said he was
unemployed and had no income, he also told the probation officer that “[u]pon
completion of any time imposed, … he planned on farming on his mother’s property.”
Defendant does not establish how he suffered a violation of a fundamental liberty
interest. Since unintended consequences are not present, it was not fundamentally unfair
for the court to impose the fees, fines and assessments in this matter without first
determining defendant’s ability to pay. As such, the trial court did not violate
defendant’s due process rights. (See Kingston, supra, 41 Cal.App.5th at p. 282; Hicks,
supra, 40 Cal.App.5th at p. 329.) As we have already noted, the fines and fees imposed
in this case are not grossly disproportionate to defendant's level of culpability and thus
not excessive under the Eighth Amendment. (Aviles, supra, 39 Cal.App.5th at p. 1072.)
Based on this record, we conclude the court's order did not violate defendant's
constitutional rights.
DISPOSITION
The judgment is affirmed.

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