People v. Hughes CA5

Filed 6/7/21 P. v. Hughes 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F078960
Plaintiff and Appellant,
(Super. Ct. No. VCF372194)
v.

BRIAN KEITH HUGHES, OPINION
Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Tulare County. Bret R.
Alldredge, Judge.
Tim Ward, Tulare County District Attorney, Dan Underwood, Chief Deputy
District Attorney, Dave Alavezos, Assistant District Attorney, Cindy Underwood and
Adam Clare, Deputy District Attorneys, for Plaintiff and Appellant.
David W. Beaudreau, under appointment by the Court of Appeal, for Defendant
and Respondent.
-ooOoo-
 INTRODUCTION
Defendant and respondent Brian Keith Hughes entered an open plea of guilty to
assault with a deadly weapon. (Pen. Code,1 § 245, subd. (a)(1).) In addition, Hughes
admitted he had suffered a prior qualifying conviction under the Three Strikes law
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), a prior serious felony conviction (§ 667,
subd. (a)), and one prior prison term (§ 667.5, subd. (b)). In conformity with its indicated
sentence, the trial court imposed a sentence of four years in state prison, but inadvertently
failed to address the prior serious felony enhancement allegation. Following sentencing,
the court struck the enhancement allegation.
The People raise the following issues on appeal: (1) the trial court imposed an
unlawful sentence by dismissing the prior serious felony enhancement allegation without
contemporaneously providing a statement of reasons for doing so; (2) the court abused its
discretion by dismissing the enhancement allegation; and (3) the trial court imposed an
unlawful sentence by failing to impose mandatory fines, fees, and assessments. We
affirm.
PROCEDURAL HISTORY
On October 24, 2018, the Tulare County District Attorney’s Office filed a criminal
complaint charging Hughes with assault with a deadly weapon, a knife (§ 245, subd.
(a)(1).) The complaint further alleged Hughes had suffered a prior strike (§§ 667, subds.
(b)-(i), 1170.12, subds. (a)-(d)), a prior serious felony conviction (§ 667, subd. (a)(1)),
and he had served a prior prison term (§ 667.5, subd. (b)).
On October 24, 2018, Hughes was arraigned on the complaint.

1 All further undefined statutory citations are to the Penal Code unless otherwise
indicated.

2.
 On January 14, 2019, Hughes entered a plea of guilty to the felony complaint and
admitted the enhancement allegations. The court had indicated a prison sentence of four
years based on the lower term of two years for the assault with a deadly weapon (§ 245,
subd. (a)(1)), doubled for Hughes’s prior strike. The court acknowledged it would arrive
at this sentence by striking the five-year prior serious felony enhancement and the prior
prison term enhancement. The People objected. The court postponed sentencing pending
the preparation of a report by the probation department.
On February 13, 2019, the court sentenced Hughes to a prison term of four years.
The court did not strike or impose the prior serious felony enhancement. Relying upon
People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the court also declined to
impose the mandatory fines and assessments.
On March 6, 2019, the People filed a timely notice of appeal.
On March 14, 2019, the People filed an amended notice of appeal.
On June 4, 2019 (June 4th), the People placed the instant case on calendar in the
trial court. The People advised the court that, at sentencing, the court had failed to
address the prior serious felony enhancement, although it was clear the court had
intended to strike the enhancement. The court struck the enhancement over the People’s
objection.
FACTUAL HISTORY
On October 21, 2018, Hughes attacked J.S. by pushing him and stabbing him with
a knife. J.S. was attempting to deliver food to a residence. Hughes was on probation at
the time of the offense. He had also recently completed an eight-year prison term for the
commission of assault with a deadly weapon with great bodily injury.

3.
 DISCUSSION

I. The Trial Court’s Failure to Provide a Statement of Reasons for Striking the
Prior Serious Felony Enhancement
According to the People, pursuant to section 1385, the trial court was required to
provide a statement of reasons for striking the prior serious felony enhancement at
sentencing or at the June 4th postsentencing hearing. Hughes contends the trial court
properly struck the enhancement and had provided a statement of reasons supporting its
decision at the change of plea hearing.
The record shows the trial court provided a statement of reasons supporting its
intention to strike the prior serious felony enhancement at the change of plea hearing.
When the court subsequently struck the enhancement, it merely acted in conformity with
its stated intention as the court relied upon its previously stated rationale. We therefore
reject the People’s assertion that the court failed to comply with the requirements of
section 1385.
A. Background
On January 14, 2019, at the change of plea hearing, the trial court offered an
indicated sentence of four years. To arrive at this sentence, defense counsel explained
“the Court would need to strike the 667(a) enhancement.” The People objected. The
People acknowledged Hughes’s prior conviction had occurred in 2008, but the prior
conviction was for a violent offense and the current offense was based upon “a violent
crime with a weapon.”
Ostensibly referencing Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill
No. 1393), the court acknowledged it had “newly granted jurisdiction” to strike or impose
the prior serious felony enhancement. The court stated it was prepared to strike the
“nickel prior,” explaining the five-year enhancement was based upon the same facts as
those underlying the strike allegation. The court explained while it was not prepared to

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strike Hughes’s prior strike, it was prepared “to strike the nickel given the facts that [it
had] been made aware of.”
For purposes of clarifying the record, defense counsel stated the parties had a
discussion in chambers regarding counsel’s request to strike the prior serious felony
enhancement. According to defense counsel, the nature of the victim’s injuries and
Hughes’s status as a “CVRC client” also supported striking the enhancement.2
Following Hughes’s waiver of his constitutional rights and the court’s acceptance
of his guilty plea, the court stated, it “will strike and not impose either the nickel prior or
the prior prison allegation.” The case was referred to the probation department.
On February 13, 2019, at sentencing, the court pronounced judgment as follows:

“[THE COURT]: In this case, Mr. Hughes’[s] application for
probation is denied.

“In Count 1, he is committed to state prison for the low term
of two years doubled to four years pursuant to Section
1170.12(c)(1), with credit for 115 days spent in custody awaiting
sentence, plus 57 days good conduct and 57 days work time credit,
for a total of 229 days.

“He’s advised he may be placed on parole for a period not to
exceed three years, and may be subject to return to prison for one
year for violation of parole.

“In the absence of any evidence proffered by the People he
has the ability to pay, the Court declines to impose a restitution fine
pursuant to Section 1202.4, as well as the parole revocation
restitution fine. [¶ ]…[¶ ]

“The Court declines to impose an operations assessment and
conviction assessment, again, pursuant to the authority in the case of
People versus Duenas.”

2 “CVRC” refers to Central Valley Regional Center in Visalia, which assists
mentally disabled individuals.

5.
 Although the transcript from the sentencing hearing does not reference the prior
serious felony conviction or the prior prison term enhancement, the minute order from the
hearing includes a handwritten notation stating, “Punishment Pursuant to PC 667.5(b) –
Stricken.” Thus, the court had stricken the prior prison term enhancement allegation.
On June 4, 2019, the People placed the matter on calendar. At the hearing—which
occurred after the People filed their notice of appeal—the parties stipulated it was the
court’s clear intent to strike the “nickel prior.” Insofar as the court had failed to do so, it
stated it was prepared to do so at the time of the hearing. The court commented that it did
not “remember the case at all,” and asked whether the strike had been imposed but the
nickel prior had not been imposed. The prosecutor confirmed the court’s understanding
was correct.
The court asked whether it had articulated a rationale for intending to strike the
nickel prior. The People confirmed the court had done so “at the change of plea [hearing
but] … not at the sentencing.”
The court responded as follows:

“[THE COURT]: Okay. So the Court notes that the People have appealed the
ruling and so apparently there’s no need for me to make any findings, but it needs
to be clear that it was the intent, at the time of sentencing, to strike the nickel prior,
and I’ve got to assume, … that was over the People’s objection.”
The People responded affirmatively. Neither the People nor defense counsel
requested clarification regarding the court’s statement of reasons for striking the
enhancement. The minute order from the hearing states, “Court strikes PC 667(a)(1) over
the People’s objection.”
B. Relevant Legal Principles
Prior to January 1, 2019, sentencing courts were required to impose a five-year
consecutive term for “[a]ny person convicted of a serious felony who previously has been

6.
convicted of a serious felony” (former § 667, subd. (a)(1)), and the court had no
discretion “to strike any prior conviction of a serious felony for purposes of enhancement
of a sentence under Section 667” (former § 1385, subd. (b)). (See People v.
Williams (1987) 196 Cal.App.3d 1157, 1160 [former § 1385 “remove[d] from the trial
court all discretion to strike the prior felony convictions, thus rendering imposition of a
five-year enhancement for each such prior conviction a certainty”].) However, following
the passage and subsequent enactment of Senate Bill No. 1393, the Legislature ended the
statutory prohibition against using section 1385 to strike prior serious felony
enhancements under section 667, subdivision (a). (Stats. 2018, ch. 1013, §§ 1-2.)
If a sentencing court exercises its discretion to strike a prior serious felony
enhancement, the trial court must state its reasons for dismissal “orally on the record.”
(§ 1385, subd. (a).) And, if requested by either party or when the proceedings are not
being reported by a court reporter, “[t]he court shall also set forth the reasons in an order
entered upon the minutes.” (Ibid.) This mandate is not subject to forfeiture because it
inures to the benefit of the public by ensuring that a clear record is developed, which
promotes judicial accountability. (People v. Contreras (2009) 177 Cal.App.4th 1296,
1304 [the requirement “ ‘assur[es] that a court through neglect or abuse of discretion has
not misused the “great power” of dismissal’ ”].) As a result, if the trial court fails to
provide reasons supporting a section 1385 dismissal order, the sentence is unauthorized,
and reversal is required. This is so even in the absence of a timely objection by the
parties.
C. Analysis

1. The Court Did Not Strike the Enhancement at the Change of
Plea Hearing or at Sentencing
Hughes contends the court struck the enhancement at the change of plea hearing
after stating its reasons on the record. The record belies his assertion.

7.
 Although the trial court had clearly intended to strike the prior serious felony
conviction, it inadvertently failed to do so at sentencing. The court discussed its intention
to do so at the change of plea hearing, it offered several reasons supporting its decision,
but it declined to proceed immediately to sentencing, explaining it wanted a report from
the probation department. At sentencing, the court sentenced Hughes to a prison term of
two years, doubled to four years based upon his prior strike conviction (§§ 667, subds.
(b)-(i), 1170.12, subds. (a)-(d)). Neither the reporter’s transcript from the sentencing
hearing nor the minute order reference the five-year prior serious felony enhancement.
Following the sentencing hearing, the court acknowledged it had intended to strike
the enhancement, but that it had previously failed to do so. The minute order from the
June 4th hearing includes a handwritten notation stating, “Court strikes PC 667(a)(1) over
the People’s objection.” Thus, contrary to Hughes’s assertion, the trial court did not
strike the prior serious felony enhancement at the change of plea hearing, nor did it do so
at the time of sentencing. The record shows the court had announced its intent to strike
the enhancement, but it had unintentionally failed to address the enhancement at
sentencing. The court did not actually strike the prior serious felony enhancement until
June 4th, at the postsentencing hearing.

2. The Trial Court Properly Corrected its Sentencing Error
In part 1, we concluded the record showed the court did not strike the prior serious
felony enhancement until June 4, 2019, after Hughes had been sentenced. The People
contend the court’s failure to provide a statement of reasons for striking the enhancement
at the time of sentencing or the June 4th hearing necessitates reversal of his conviction.
We disagree.
The record supports the conclusion that the trial court had clearly intended to
strike the enhancement, and it provided a statement of reasons announcing its intention at

8.
the change of plea hearing. The error here is therefore more closely analogous to a
clerical error than a judicial error. A clerical error is correctible at any time. “It is well
established that a sentence which is the result of clerical error (in the sense of
inadvertence, though committed by the judge) may be corrected at any time, by the trial
court or the reviewing court.” (People v. Menius (1994) 25 Cal.App.4th 1290, 1294-
1295.)
Here, the trial court merely corrected a sentencing error when it struck the prior
serious felony enhancement.3 At the hearing, the People acknowledged that the court had
provided a statement of reasons for striking the enhancement at the change of plea
hearing. The court relied upon its previously articulated statement of reasons in striking
the enhancement on June 4th. Thus, this is not a case where the trial court failed to
exercise its sentencing discretion or failed to provide any rationale for exercising its
discretion. Rather, the court merely failed to execute both acts at the same time.
Under the circumstances, remanding this matter back to the trial court merely to
adhere to ritualistic form would be a fruitless endeavor. (See People v. Blessing (1979)
94 Cal.App.3d 835, 839 [declining to order remand where the record did not foreclose
appellate review of the trial court’s sentencing decision].) The sentence imposed was
based upon the trial court’s indicated sentence of four years in state prison. The court
had clearly intended to strike the enhancement and had acted in conformity with its stated
intention when it struck the enhancement at the June 4th hearing. Thus, the record in this
case does not support the conclusion that the trial court, on remand, will impose the
enhancement. Moreover, upon the record before us, this court is not foreclosed from

3 We acknowledge the People’s suggestion that the June 4th order may be a “legal
nullity” because the court may not have retained jurisdiction to correct its sentencing
error once the People filed their notice of appeal. Because we agree with their conclusion
that the error was ultimately correctible, we need not address the People’s discussion of
People v. Nelms (2008) 165 Cal.App.4th 1465.

9.
determining whether the trial court’s act of striking the prior serious felony enhancement
was an abuse of discretion.
The People assert People v. Bonetta (2009) 46 Cal.4th 143 (Bonetta) supports the
conclusion that the trial court’s error here resulted in the imposition of an unauthorized
sentence. Bonetta is factually distinguishable from the instant case.
In Bonetta, our Supreme Court held it was reversible error for the trial court not to
enter its reasons for a dismissal upon the minutes, although the reasons for the dismissal
were apparent from the transcript of the sentencing hearing. (Bonetta, supra, 46 Cal.4th
at pp. 148-153.) At the time of the defendant’s sentencing hearing, former section 1385
required the trial court to state its reasons for a dismissal upon the record and in the
minute order.4 The court held reference to the reporter’s transcript was insufficient to
cure the court’s failure to set forth the reasons for the dismissal upon the minutes, as the
requirement that the reasons be set forth in the minutes was mandatory. (Bonnetta,
supra, at p. 149.) According to the court, “[t]he cases have long held a dismissal without
a written statement of reasons is invalid and of no effect regardless of the reviewing
court’s belief that the reasons for the dismissal can be discerned from other portions of
the record.” (Ibid.)
The defendant asserted the prosecution had forfeited their right to challenge the
error by failing to object in the trial court. The Bonetta court rejected that argument,
explaining, “because a minute order is entered by the court only after the hearing, the

4 Following Bonnetta, the Legislature amended section 1385 so that it no longer
requires the sentencing court’s reasons for dismissal to be entered upon the minutes. (See
People v. Jones (2016) 246 Cal.App.4th 92, 96.) Subdivision (a) of section 1385 requires
the court state its reasons for dismissal “orally on the record.” The court is only required
to set forth the reasons for a dismissal in the minute order “if requested by either party or
in any case in which the proceedings are not being recorded electronically or reported by
a court reporter.” (§ 1385, subd. (a).)

10.
district attorney cannot easily ensure that it is entered or detect its absence.” (Bonetta,
supra, 46 Cal.4th at p. 152.) The court further declined to find forfeiture because the
requirement inures to the benefit of the public “by assuring that a court through neglect or
abuse of discretion has not misused the ‘great power’ of dismissal.” (Id. at pp. 152-153.)
Here, as distinguished from Bonetta, the record supports the conclusion the trial
court complied with section 1385. At the June 4th hearing, the People acknowledged the
trial court had provided a statement of reasons supporting dismissal of the prior serious
felony enhancement at the change of plea hearing. Relying upon the People’s assertion
that its rationale had been previously stated, the court concluded that no findings would
have to be made and it struck the enhancement.
Unlike the deficient minute order in Bonetta, the People here had ample
opportunity to request the court restate its rationale for striking the enhancement. Indeed,
the People placed the instant case on calendar for a hearing on June 4th to address the
court’s failure to strike the prior serious felony enhancement. It would not have been the
least bit burdensome for the People to raise an issue concerning the trial court’s statement
of reasons at this hearing. Because the People declined to do so, we presume the trial
court’s statement of reasons provided at the change of plea hearing was sufficient.
Although we conclude reversal is not required here, we emphasize that if a trial
court exercises its statutory authority under section 1385, to strike an enhancement, an
explicit statement of reasons should be issued contemporaneously with the trial court’s
act. This promotes judicial accountability by ensuring a clear record is developed for
appellate review. Absent a clear record, we will not sift through the transcripts to cobble
together a statement of reasons explaining the court’s decision. Such an endeavor would
only invite speculation on our part.

11.
II. The Trial Court Acted Within its Discretion in Dismissing the Prior Serious
Felony Enhancement
The People further contend the trial court abused its discretion by dismissing the
prior serious felony enhancement. We disagree.
A. Standard of Review
“ ‘ “[A] court’s discretionary decision to dismiss or to strike a sentencing
allegation under section 1385 is” reviewable for abuse of discretion.’ ” (People v.
Pearson (2019) 38 Cal.App.5th 112, 116, citing People v. Carmony (2004) 33 Cal.4th
367, 373; accord, People v. Shaw (2020) 56 Cal.App.5th 582, 587.) Our review is guided
by two fundamental principles. “ ‘First, “ ‘[t]he burden is on the party attacking the
sentence to clearly show that the sentencing decision was irrational or arbitrary.
[Citation.] In the absence of such a showing, the trial court is presumed to have acted to
achieve legitimate sentencing objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review.’ ” [Citation.] Second, a “ ‘decision
will not be reversed merely because reasonable people might disagree. “An appellate
tribunal is neither authorized nor warranted in substituting its judgment for the judgment
of the trial judge.” ’ ” [Citation.] Taken together, these precepts establish that a trial
court does not abuse its discretion unless its decision is so irrational or arbitrary that no
reasonable person could agree with it.’ ” (Pearson, at p. 116.)
B. Analysis
The record demonstrates the court considered relevant factors in determining
whether to strike or impose the prior serious felony enhancement allegation and
concluded striking the enhancement allegation was warranted in the “furtherance of
justice.” (§ 1385.) The court considered the following factors: First, the prior serious
felony enhancement and the strike allegation were based upon the same prior conviction.

12.
Second, the nature of the injuries Hughes inflicted upon the victim, and the facts of the
case. Third, Hughes was a “CVRC” client.
The People assert Hughes’s lengthy criminal history, his violent conduct, and the
fact that he had only recently been released from prison at the time of the instant offense
support the conclusion that “the interests of justice did not favor striking the prior serious
felony [enhancement].”
At sentencing, the trial court stated it had reviewed and considered the probation
officer’s report. Although the report was not made part of the record on appeal, we can
reasonably infer Hughes’s prior criminal history was detailed in the report. We therefore
presume the trial court considered Hughes’s criminal history in exercising its discretion
to strike the enhancement, but nonetheless determined the enhancement should be
stricken in the interests of justice. Nothing upon this record demonstrates the court’s
sentencing decision was irrational or arbitrary. (Pearson, supra, 38 Cal.App.5th at p.
116.)
The People further contend the trial court’s comments made in support of striking
the prior serious felony enhancement evince a misunderstanding of the distinction
between the purpose and application of the Three Strikes law and the five-year
enhancement allegation. Neither the People’s argument nor our independent review of
the record persuades us the trial court misunderstood the scope of its sentencing
discretion, or that the court struck the prior serious felony enhancement “solely because
of personal antipathy to the law.” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th
968, 981.) We conclude the People’s argument is without merit.

III. Sentencing Court’s Failure to Impose Fines and Fees
Finally, the People assert the trial court’s failure to impose mandatory fines and
assessments resulted in an unlawful sentence. Hughes concedes the trial court

13.
improperly charged the People with proving he had the ability to pay the fines and
assessments, but he argues the error did not result in an unauthorized sentence, nor did it
prejudice the People.
With respect to the restitution fines, we conclude the People’s failure to object
resulted in waiver of their claim that the court erred in failing to impose the fines.
Although the restitution fine is generally mandated by statute, a trial court may decline
to impose the fine if it “finds compelling and extraordinary reasons for not doing so and
states those reasons on the record.” (§ 1202.4, subd. (b).)5 As a result, the Supreme
Court has characterized the imposition of a restitution fine as a “discretionary sentencing
choice” subject to the rule of waiver. (People v. Tillman (2000) 22 Cal.4th 300, 303
(Tillman). Thus, any challenge to the restitution fine and the matching parole revocation
fine is waived based on the People’s failure to object below. (Id. at pp. 302-303.)
Regarding the assessments, Dueñas, supra, 30 Cal.App.5th 1157, has clarified the
assessments are no longer mandatory per se because a court must decline to impose
assessments where a defendant lacks the ability to pay. (Id. at pp. 1164, 1168.) This
court has agreed with Dueñas on this point. In People v. Son (2020) 49 Cal.App.5th 565,
we held, “the Constitution prohibits imposition of the court operations and court facilities
assessments on those who are unable to pay.” (Id. at pp. 590-591.)6 Thus, to the extent

5 Although “[a] defendant’s inability to pay shall not be considered a compelling
and extraordinary reason not to impose a restitution fine,” (§ 1202.4, subd. (c)), at least
one appellate court has held this provision is unconstitutional as applied. (See People v.
Cowan (2020) 47 Cal.App.5th 32, 50, review granted June 17, 2020, S261952 [where a
restitution fine is deemed “excessive” under the federal and state Constitutions, the ruling
prohibits imposition of the fine, even if it is stayed].)
6 The question of whether a court 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 the defendant’s ability to pay, is currently pending review

14.
the People failed to object to the trial court’s failure to impose such assessments, the issue
is also deemed waived.
A. Background
Following imposition of Hughes’s prison term, the court stated the following:

“In the absence of any evidence proffered by the People he has the
ability to pay, the Court declines to impose a restitution fine pursuant to
Section 1202.4, as well as the parole revocation restitution fine.

“Any and all restitution to the victim J.S. as well as the Victim’s
Compensation Claims Board in Sacramento shall remain open. [¶ ]…[¶ ]

“The Court declines to impose an operations assessment and
conviction assessment, again, pursuant to the authority in the case of People
versus Duenas.”
B. Waiver
Hughes asserts the People’s failure to object to the trial court’s ruling declining to
impose required fines and assessments is waived. Additionally, according to Hughes, the
People failed to raise this issue in their notice of appeal, which forecloses appellate
review of this issue. We conclude the People’s failure to object resulted in waiver of
their claim on appeal. Consequently, we need not address Hughes’s argument that the
People’s notice of appeal forecloses appellate review of this issue.
Hughes contends Tillman, supra, 22 Cal.4th 300, is instructive. In Tillman, the
trial court failed to impose a restitution fine under section 1202.4, subdivision (b) and did
not state reasons for not imposing the fine. The section 1202.4 restitution fine is
mandatory unless the trial court finds compelling and extraordinary reasons for not doing
so and states those reasons on the record. The matching restitution fine under section

before the California Supreme Court. (People v. Kopp (2019) 38 Cal.App.5th 47, review
granted Nov. 13, 2019, S257844.)

15.
1202.45 is also mandatory when the sentence imposed includes a term of parole. This
fine is suspended until parole is revoked. (Tillman, at pp. 301-302, fn.1.)
In Tillman, the Court of Appeal modified the judgment by adding a restitution fine
under section 1202.4, subdivision (b), and a matching parole revocation restitution fine
under section 1202.45 in the same amount. Our Supreme Court reversed, holding the
People’s failure to object below resulted in waiver of the issue on appeal. (Tillman,
supra, 22 Cal.4th at p. 303.) The court reasoned, “ ‘[a]lthough the court is required to
impose sentence in a lawful manner, counsel is charged with understanding, advocating,
and clarifying permissible sentencing choices at the hearing. Routine defects in the
court’s statement of reasons are easily prevented and corrected if called to the court’s
attention. As in other waiver cases, we hope to reduce the number of errors committed in
the first instance and preserve the judicial resources otherwise used to correct them.’ ”
(Ibid., quoting People v. Scott (1994) 9 Cal.4th 331, 353.)
The People argue Tillman is inapplicable because it involved the trial court’s
failure to impose a restitution fine under 1202.4, subdivision (b), without stating its
reasons for doing so. However, we are persuaded the instant case presents a stronger
claim for applying waiver than the circumstances present in Tillman. Here, the trial court
did state a reason for declining to impose fines and assessments; it concluded Hughes
lacked the ability to pay them. Insofar as the trial court may have applied Dueñas in an
erroneous manner, the issue could have been easily addressed had the People timely
objected. There is no reason to treat the People’s failure to challenge the trial court’s
sentencing error here any differently than in Tillman.
The People contend because Dueñas was binding upon the trial court at the time of
Hughes’s sentencing hearing, any objection would have been futile. Although the trial
court was bound to follow Dueñas, the People’s principal argument is that the trial court
misapplied Dueñas. The trial court placed the burden of showing Hughes had the ability

16.
to pay upon the People, and the court held an ability to pay hearing although Hughes
failed to contest his ability to pay court fines and assessments. Plainly, it would not have
been futile for the People to object on this basis.7
DISPOSITION
The judgment of conviction is affirmed.

SMITH, Acting P.J.
WE CONCUR:

SNAUFFER, J.

DE SANTOS, J.

7 The parties observe this court has expressly disagreed with the holding in Dueñas.
(See People v. Son, supra, 49 Cal.App.5th 565.) The trial court is not constrained to
follow a decision by this court merely because the lower court falls within our appellate
jurisdiction. As a practical matter, where there are competing decisions among the
appellate courts, a trial court may follow the authority it finds to be the most persuasive.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450, 455-456 [Although
divided into divisions, the appellate courts are, in reality, one court of appeal. Thus, a
trial court must pick between conflicting appellate decisions].)

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