Filed 6/8/21 P. v. Thompson CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE, C090913
Plaintiff and Respondent, (Super. Ct. No. F-2013-3824)
v.
EARL JAMES THOMPSON,
Defendant and Appellant.
The trial court sentenced defendant Earl James Thompson to 10 years in state
prison, awarded victim restitution in the amount of $2,007,582.10, and imposed various
fines and fees. On appeal, defendant argues the trial court: (1) imposed victim restitution
without substantial evidence; (2) should have stayed the sentences on two of his perjury
counts under Penal Code section 6541; and (3) failed to conduct an ability to pay hearing
1 Undesignated statutory references are to the Penal Code.
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on the fines and fees, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157. We will
reverse a portion of the restitution order, stay the sentences for three of defendant’s
perjury convictions, and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant’s contractor’s license was revoked and he later engaged in a scheme
with codefendants Valery Thompson and James Russell to form a contracting business,
Russell Thompson Construction (Russell/Thompson), and bid on public works projects.
Although his license had been revoked, defendant oversaw operations at
Russell/Thompson, signed documents on its behalf, and served as its designated payroll
officer.
In 2009, Brown Construction received a contract to be a general contractor
managing the construction of dormitory housing. Brown Construction signed a contract
with a company called 84 Lumber to supervise the framing work for the project, and 84
Lumber entered into a contract with Russell/Thompson to perform the work. The value
of the contract between 84 Lumber and Russell/Thompson was $1,536,380. In the
contract, defendant agreed to pay the legally required prevailing wage rate to his
employees, which included amounts paid for fringe benefits such as health benefits or
pension, and training fee payments to the state for apprenticeship programs.
Russell/Thompson worked on the project from September 2009 to February 2010,
when it was removed by Brown Construction. While working on the project, defendant
misclassified employees to pay them less than the required prevailing wage. He signed
and submitted certified payroll records to the Department of Industrial Relations
misclassifying the employees and falsely verifying he paid prevailing wage rates.
Defendant did not pay for fringe benefits or training fees for his employees. Defendant
also underreported employee wages to the State Compensation Insurance Fund to obtain
lower workers’ compensation insurance premiums.
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The Department of Industrial Relations received complaints about
Russell/Thompson and began an investigation. Ultimately, the department issued a civil
wage and penalty assessment against Russell/Thompson, 84 Lumber, and Brown
Construction for approximately $1.3 million. The parties settled the assessment for
$726,063.24, which was paid by 84 Lumber.
The prosecution charged defendant with conspiracy to defraud (§ 182,
subd. (a)(4); count 1); receipt of a portion of wages of a workman (Lab. Code, § 1778;
count 2); grand theft (§ 487, subd. (a); counts 3 & 4); false and fraudulent statements for
the purpose of reducing the cost of workers’ compensation insurance (Ins. Code, § 11880,
subd. (a); count 5); perjury (§ 118, subd. (a); counts 6 through 26); and contracting
without a license (Bus. & Prof. Code, § 7028, subd. (a); count 27). The information also
alleged enhancements for losses exceeding $200,000 and $1,300,000 (former § 12022.6,
subd. (a)(2)-(3)), an aggravated white collar crime enhancement for taking more than
$500,000 (§ 186.11, subd. (a)(1)-(2)), and alleged the statute of limitations was tolled for
various counts. Defendant pleaded no contest to all counts without admitting the
enhancements. The parties agreed to a bench trial on the enhancements, sentencing, and
the amount of restitution.
A. Trial Testimony
At trial, the prosecution introduced testimony from Amie Bergin, a deputy labor
commissioner for the Labor Commissioner’s Office. Bergin testified she investigated
defendant’s involvement in the Russell/Thompson construction project after her office
received a complaint from one of his employees. She interviewed defendant’s employees
and reviewed payroll reports he had submitted to the Department of Industrial Relations.
She determined defendant had misclassified his employees as laborers, rather than
carpenters, even though the employees were doing carpentry work, and was paying them
a correspondingly lower rate than was required.
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To determine how much defendant owed in employee wages, Bergin calculated
what should have been paid based on the appropriate prevailing wage rate. She then
obtained bank records reflecting payments that had been made to employees and credited
those amounts to defendant. She also interviewed defendant’s employees to determine
whether they had ever been paid in cash and gave defendant credit for those amounts, as
well. Ultimately, she concluded the employees were underpaid by $633,199.55.
Defendant was not paying the appropriate prevailing wage rate, did not pay
overtime or make training fund contributions, and filed inaccurate payroll records.
Bergin explained that prevailing wage contracts required employers to make
contributions into a state apprenticeship program to provide for the training of future
skilled laborers, but that defendant had not made the required training fee payments. She
explained that the fees were paid to a state fund, not to the employees themselves. She
calculated defendant should have paid $13,570.69 in training fees based on the number of
hours worked on the project. Employers are also required to pay fringe benefits, or
“benefits outside of the hourly rate that are paid to the benefit of the worker; health and
welfare, pension, vacation.” Defendant had not made any fringe benefit payments.
Bergin also noted the value of the contract between Russell/Thompson and 84
Lumber was $1.12 million for framing labor, $370,000 for panels, and $46,380 for siding
labor, or $1,536,380 in total.
Three former Russell/Thompson employees who had worked on the project
testified to the pay they had received, which was below the prevailing wage rates to
which they were entitled. Two of the employees testified they sometimes received
payment in cash. All three employees testified they later received payments from the
state for backpay. John Berg, a foreman on the project, similarly testified that employees
sometimes received cash payments, which were approved by defendant.
Kathryn McGuire, the vice president of operations at Brown Construction,
testified Russell/Thompson was removed from the project because Russell/Thompson
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was not paying its employees correctly and was falling behind schedule on the project.
Brown Construction removed 84 Lumber from the project and paid the last week of
wages for Russell/Thompson’s employees after Russell/Thompson was removed. Brown
Construction also paid claims from Russell/Thompson suppliers. In total, Brown
Construction paid $233,610 to cover Russell/Thompson expenses.
Jerri Shaul, an investigator at the State Compensation Insurance Fund, testified
Russell/Thompson owed an additional $355,011.33 to the fund based on defendant’s
underreporting of wages.
B. Restitution Hearing
In briefing, the prosecution requested restitution in five different categories:
$359,011.43 to the State Compensation Insurance Fund for underpayment of worker’s
compensation insurance premiums, $13,570.69 for the failure to contribute to the state
training fund, $633,199.55 for unpaid wages owed to defendant’s employees, $1,536,380
for the fraudulent procurement of the contract with 84 Lumber, and $233,610.47 to
Brown Construction for payments Brown Construction was required to make to
Russell/Thompson’s employees and suppliers. Defendant argued there should be no
restitution, asserting the employees had been paid everything they were promised and had
only complained about his employment practices because they had been promised
money. Defendant also blamed 84 Lumber and Brown Construction for the employee
misclassifications.
Before it announced its decision, the court explained it had reviewed the
documents and exhibits submitted during trial, as well as the preliminary hearing
transcript and briefs submitted by the parties. The parties submitted on the briefing and
did not offer additional argument. The court found the statute of limitations tolling
enhancements under section 803, subdivisions (b) and (d) true, but found the
enhancements under section 803, subdivision (c) not true. The court found not true the
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enhancements for losses exceeding $200,000 and $1,300,000, as well as the aggravated
white collar crime enhancement.
The trial court further ordered restitution, stating: “With regard to restitution, I do
find that [defendant] was the person in control of Russell Thompson and Associates, and
I do find that he is responsible to pay restitution, which the Court will order. Restitution
is ordered in the following amounts: [¶] To [the] State [Compensation Insurance] Fund,
the Court orders $359,011.43; restitution for employee wages, $633,199.55; restitution
for training fees, $13,570.69. Restitution under the contract with 84 Lumber, I have
reduced that amount to $768,190. I find that 84 Lumber has some culpability and
responsibility; it is not blameless in this entire fiasco. [¶] Restitution for the Brown
payments to employees of Russell Thompson and the suppliers to finish the job,
$233,610.47. The total restitution, when I add these numbers up, is $2,007,582.10.”
Defense counsel did not object to the court’s order.
C. Sentencing
At the sentencing hearing, the court sentenced defendant to a total aggregate
sentence of 10 years, composed as follows: five years for false and fraudulent statements
for the purpose of reducing the cost of worker’s compensation insurance (count 5);
consecutive terms of eight months each for conspiracy to defraud (count 1), receipt of
portion of wages of a workman (count 2), and grand theft (count 4); and consecutive
terms of one year each for perjury counts 9, 25, and 26. The court imposed a concurrent
term of 180 days for contracting without a license (count 27).
The court imposed a three-year sentence for grand theft (count 3) and stayed
execution of the sentence under section 654. The court further imposed a four-year
sentence for each remaining perjury count (counts 6 through 8 & counts 10 through 24)
and stayed execution of the sentences under section 654. The court imposed a restitution
fine of $300 (§ 1202.4, subd. (b)), along with a restitution collection fee of $30 and a
parole revocation fine of $300 (§ 1202.45), which it suspended pending parole
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revocation. Finally, the court imposed a court operations assessment of $40 per
conviction (§ 1465.8) and a court facilities assessment of $30 per conviction (Gov. Code,
§ 70373). Defense counsel did not object to the restitution fine or assessments or
otherwise raise defendant’s ability to pay them.
DISCUSSION
I
Victim Restitution
Defendant contends the trial court abused its discretion when it awarded restitution
as to training fees, employee wages, and contract restitution.2 For each category,
defendant argues the court did not sufficiently identify the victim to whom restitution was
owed when it rendered its order, as required by section 1202.4, subdivision (f)(3).
Defendant also challenges the calculations used to reach the employee wage and contract
restitution figures.
The People argue defendant forfeited any argument concerning victim restitution
because defense counsel did not object, either when the court rendered the restitution
award or later at the sentencing hearing. Defendant responds that he submitted briefing
contesting the amount of restitution, which the trial court considered in issuing its order.
Defendant did not, however, ever challenge the adequacy of the trial court’s identification
of victims in the restitution order. Such an objection, if raised at the restitution hearing,
could have easily been resolved by the trial court. (People v. Scott (1994) 9 Cal.4th 331,
351-353; id. at p. 353 [“Routine defects in the court’s statement of reasons are easily
prevented and corrected if called to the court’s attention.”].) While defendant did not
forfeit his arguments concerning the amount of the restitution, his challenge to the court’s
2 Defendant limits his appeal to these three categories of restitution and does not
challenge the restitution awards to Brown Construction or the State Compensation
Insurance Fund.
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identification of the victims is waived. (People v. Anderson (2010) 50 Cal.4th 19, 26,
fn. 6; People v. Gonzalez (2003) 31 Cal.4th 745, 755; People v. Valtakis (2003)
105 Cal.App.4th 1066, 1071-1072.)
Even were defendant’s argument not forfeited, the victim for each category is
readily ascertainable from the record. Restitution for “employee wages” is intended to
compensate employees for backpay, “[r]estitution under the contract with 84 Lumber” is
intended to compensate 84 Lumber, and restitution for failure to make training fee
contributions is intended to compensate for missing payments to the state training fund,
which was established by testimony at the restitution trial. Each of these entities qualifies
as a “victim” who could receive restitution. (§ 1202.4, subd. (k).)
With respect to the employee wage and contract restitution awards, defendant
further contends the trial court erred in calculating the amounts awarded. Defendant
argues the court did not account for amounts paid to employees in cash for the employee
wage award. Defendant also claims the court arbitrarily calculated the damages for the
contract restitution award and the award was not founded on any actual economic loss.
We disagree as to the employee wage award, but agree with respect to the contract
restitution award.
“[I]n every case in which a victim has suffered economic loss as a result of the
defendant’s conduct, the court shall require that the defendant make restitution to the
victim or victims in an amount established by court order, based on the amount of loss
claimed by the victim or victims or any other showing to the court.” (§ 1202.4, subd. (f).)
The restitution order “shall be of a dollar amount that is sufficient to fully reimburse the
victim or victims for every determined economic loss incurred as the result of the
defendant’s criminal conduct.” (§ 1202.4, subd. (f)(3).) “[D]irect victims of crime have
a statutory right to restitution on the full amount of their losses without regard to the full
or partial recoupment from other sources (except the state Restitution Fund).” (People v.
Baker (2005) 126 Cal.App.4th 463, 468.)
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At a victim restitution hearing, the People may make a prima facie case for
restitution based on the victim’s testimony or on some other claim or statement as to the
amount of his or her economic loss. (People v. Millard (2009) 175 Cal.App.4th 7, 26.)
Once the People have made a prima facie case for restitution, “ ‘the burden shifts to the
defendant to demonstrate that the amount of the loss is other than that claimed by the
victim.’ ” (Ibid.; see People v. Giordano (2007) 42 Cal.4th 644, 664 (Giordano).) The
standard of proof at the hearing is preponderance of the evidence. (Millard, at p. 26.)
We review the trial court’s restitution order for abuse of discretion. (Giordano,
supra, 42 Cal.4th at p. 663.) We presume the judgment correct, and to set it aside an
appellant must affirmatively show error. (Id. at p. 666.) “No abuse of . . . discretion
occurs as long as the determination of economic loss is reasonable, producing a
nonarbitrary result.” (Id. at p. 665.) If the court used a rational method of determining
the victim’s loss, so that the order is not arbitrary or capricious, we will uphold the order.
(Ibid.; People v. Garcia (2011) 194 Cal.App.4th 612, 617.) “ ‘ “If the circumstances
reasonably justify the [trial court’s] findings,” the judgment may not be overturned when
the circumstances might also reasonably support a contrary finding. [Citation.] We do
not reweigh or reinterpret the evidence; rather, we determine whether there is sufficient
evidence to support the inference drawn by the trier of fact. [Citation.]’ ” (People v.
Millard, supra, 175 Cal.App.4th at p. 26.)
The court awarded $633,199.55 in restitution to defendant’s employees for
employee wages that should have been paid. The award was based on expert testimony
by Amie Bergin, a deputy labor commissioner for the Labor Commissioner’s Office, who
investigated employee complaints into defendant’s business. She reached the figure by
determining what should have been paid, based on the duties the employees had been
performing and the hours worked. Then, using defendant’s bank records, she credited
defendant with the amounts that had actually been paid to employees. Finally, she
interviewed employees to determine whether they had been paid in cash and credited
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those amounts as well. Contrary to defendant’s assertion that Bergin assumed all cash
payments were going directly to defendant, rather than his employees, Bergin explained
she gave Russell/Thompson credit for cash payments: “I gave the contractor credit for
the copies of checks that I received. . . . And where the workers told me that they were
paid in cash, I gave them credit for that as well.” Sufficient evidence supported the
employee wage award.
As to the contract restitution award, the contract between Russell/Thompson and
84 Lumber was admitted into evidence, and showed 84 Lumber agreed to pay
Russell/Thompson $1,536,380. The trial court then concluded an award for the full value
of the contract was not justified and awarded only half of its value, saying “84 Lumber
has some culpability and responsibility” and “is not blameless in this entire fiasco.”
In People v. Petronella (2013) 218 Cal.App.4th 945, the appellate court
considered whether victim restitution could be reduced based on the victim’s failure to
exercise due diligence in its conduct. In Petronella, the defendant was convicted of
multiple counts of making false and fraudulent statements to obtain favorable workers’
compensation insurance premiums. (Id. at p. 950.) The prosecution sought victim
restitution for the State Compensation Insurance Fund, and the trial court reduced the
requested award, finding the State Compensation Insurance Fund “contributed to the
amount of its loss of premiums by failing to cancel defendant’s policy . . . when it first
discovered the possibility defendant was intentionally underreporting his payroll.” (Id. at
p. 971.) Reviewing cases applying comparative fault principles to victim restitution
awards, the appellate court concluded a victim restitution award may be reduced based on
comparative fault where an offense “required only proof of criminal negligence.” (Ibid.)
But, “ ‘ “a party who commits intentional misconduct should not be entitled to escape
responsibility for damages based upon the negligence of the victim.” ’ ” (Ibid.) Thus, it
was not permissible to consider the victim’s negligence as “a relevant factor in
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determining its right to or the amount of restitution” because the defendant was charged
with intentional fraud. (Ibid.)
Here, defendant was convicted of grand theft with respect to the 84 Lumber
contract, which requires fraudulent intent, rather than merely criminal negligence.
(People v. Smith (2009) 179 Cal.App.4th 986, 1004.) Whether 84 Lumber’s own actions
contributed to its damages was thus a factor that could not be used to reduce the
restitution award. Because the trial court relied on this factor to calculate the victim
restitution award, the trial court “abused its discretion by not ‘employ[ing] a method that
is rationally designed to determine the . . . . victim’s economic loss.’ (People v.
Giordano, supra, 42 Cal.4th at pp. 663-664.)” (People v. Petronella, supra,
218 Cal.App.4th at p. 973.) We conclude this portion of the restitution order must be
reversed and will remand the matter for further proceedings.
II
Section 654
Defendant argues the sentences for perjury counts 25 and 26 should have been
stayed under section 654. In particular, defendant claims the trial court implicitly
determined that perjury counts 9 through 26 all had the “same objective” when it stayed
counts 10 through 24 but imposed a consecutive sentence for count 9. Each of the counts
implicated substantially identical actions: the submission of false certified payroll
records to the Department of Industrial Relations. Thus, the argument goes, “there is no
meaningful distinction between [defendant’s] actions in counts 10 through 24,” and the
sentence for counts 25 and 26 should be stayed, as well. We agree the sentences for
counts 25 and 26 must be stayed, but conclude count 9 should have been stayed, as well,
because of the other counts for which defendant was sentenced.
“Section 654 . . . ‘ “precludes multiple punishment for a single act or for a course
of conduct comprising indivisible acts. ‘Whether a course of criminal conduct is
divisible . . . depends on the intent and objective of the actor.’ [Citations.] ‘[I]f all the
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offenses were merely incidental to, or were the means of accomplishing or facilitating
one objective, defendant may be found to have harbored a single intent and therefore may
be punished only once.’ [Citation.]” [Citation.]’ . . . [¶] Whether section 654 applies in
a given case is a question of fact for the trial court, which is vested with broad latitude in
making its determination.” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) If the
trial court does not stay a sentence pursuant to section 654, and offers no factual basis for
its decision, we presume the court found that the defendant harbored a separate intent and
objective for each offense. (Jones, at p. 1147.) “We review the trial court’s findings ‘in
a light most favorable to the respondent and presume in support of the order the existence
of every fact the trier could reasonably deduce from the evidence. [Citation.]’ ” (People
v. Green (1996) 50 Cal.App.4th 1076, 1085.)
Here, the trial court imposed a consecutive sentence for count 2 (receipt of portion
of wages of a worker), which was based on defendant’s scheme to avoid paying his
employees the prevailing wage and other benefits. Count 2 encompassed a series of
actions over time; the prosecution alleged it occurred over the life of the project, rather
than charging separate counts for each paycheck defendant underpaid his employees. As
part of the scheme, defendant systematically misclassified his employees to pay them
lower prevailing wage rates.
These misclassifications were accomplished using certified payroll records. Each
payroll record included an affidavit stating employees were paid the prevailing wage,
which defendant signed under penalty of perjury, and assigned each employee to a
classification. The perjury counts at issue--counts 9 through 26--were each tied to the
dates defendant signed the affidavits. Each act of perjury effectuated defendant’s overall
wage theft scheme by misclassifying employees; the payroll records were simply the
means by which defendant accomplished the misclassifications. The objective in signing
each affidavit was thus indistinguishable from defendant’s overall goal of diverting
employee wages to himself. The trial court’s implicit finding that counts 9, 25, and 26
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involved separate intents and objectives by defendant is thus unsupported by substantial
evidence.
The People argue People v. Williams (1980) 106 Cal.App.3d 15, in which an
appellate court declined to stay sentences for 13 counts of perjury and 10 counts of
welfare fraud, compels a different result. There, however, each of the counts was
“dealing with separate claims and individuals,” unlike the present case, where each of the
perjury counts formed one part of a greater sequence of conduct for which defendant was
punished in a separate count. (Id. at p. 20.) Because the perjury counts were incidental
to the conduct for which defendant was punished in count 2, we conclude counts 9, 25,
and 26 must be stayed.
III
Ability to Pay
Relying on People v. Dueñas, supra, 30 Cal.App.5th 1157, defendant argues the
trial court violated his due process rights when it imposed a $300 restitution fine, a
suspended $300 parole revocation fine, a $1,080 court operations assessment, and a $810
court facilities assessment without making findings of his ability to pay. Defendant
acknowledges he did not object to the imposition of the fines and fees at sentencing, but
urges us to reach the issue for a variety of reasons. We decline to do so.
The trial court sentenced defendant on November 13, 2019. Even though Dueñas
was published before defendant’s sentencing hearing, defendant did not claim an inability
to pay. He therefore forfeited his argument. (See People v. Trujillo (2015) 60 Cal.4th
850, 858-859 [the constitutional nature of the defendant’s claim regarding her ability to
pay did not justify a deviation from the forfeiture rule]; People v. Nelson (2011)
51 Cal.4th 198, 227 [ability to pay restitution fine is forfeited by failure to object at the
sentencing hearing]; People v. Avila (2009) 46 Cal.4th 680, 729 [forfeiture rule applies to
defendant’s claim that restitution fine amounted to an unauthorized sentence based on his
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inability to pay]; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 [failure to object
to maximum restitution fine on ground of inability to pay forfeits Dueñas issue].)
Defendant argues his claim is not forfeited because the trial court did not
understand it had the discretion to strike or reduce his fines and fees, and “[w]here . . . . a
sentence choice is based on an erroneous understanding of the law, the matter must be
remanded for an informed determination.” (People v. Downey (2000) 82 Cal.App.4th
899, 912.) Nothing in the record supports defendant’s contention the trial court
misunderstood the law or the scope of its sentencing discretion and “we cannot presume
error where the record does not establish on its face that the trial court misunderstood the
scope of that discretion.” (People v. Gutierrez (2009) 174 Cal.App.4th 515, 527.) And,
defendant’s contention his claim was not forfeited because it implicates important
constitutional rights is unsupported by binding case law, which establishes that
sentencing-related fees and fines do not fall within the category of rights exempted from
the forfeiture rule. (People v. Trujillo, supra, 60 Cal.4th at pp. 858-859.)
Defendant contends his failure to object in the trial court does not forfeit his
challenge because the imposition of fines and fees exceeded the jurisdiction of the trial
court, resulting in an unauthorized sentence. (See People v. Scott, supra, 9 Cal.4th 331,
354 [sentence is “ ‘unauthorized’ where it could not lawfully be imposed under any
circumstance in the particular case”].) An “ ‘ “unauthorized sentence” ’ ” may be
corrected on appeal absent an objection because it presents pure questions of law
independent of any factual issues. (People v. Smith (2001) 24 Cal.4th 849, 852.) Here,
the question of whether fines and fees may be imposed requires a factual determination
about defendant’s ability to pay. Therefore, the imposed fines and fees do not result in an
unauthorized sentence that may be corrected on appeal without an objection in the trial
court.
Anticipating our conclusion that he forfeited his claim, defendant contends his trial
counsel was constitutionally ineffective for failing to object to the imposition of the fines
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and fees without a hearing on his ability to pay. A claim of ineffective assistance of
counsel requires defendant to show by a preponderance of the evidence that (1) counsel’s
performance fell below the objective standard of prevailing professional norms, and (2)
defendant was prejudiced by counsel’s failing. (Strickland v. Washington (1984)
466 U.S. 668, 688-695 [80 L.Ed.2d 674].) On direct appeal, a conviction will be reversed
for ineffective assistance “only if (1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was asked for a
reason and failed to provide one, or (3) there simply could be no satisfactory explanation.
All other claims of ineffective assistance are more appropriately resolved in a habeas
corpus proceeding.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Here, the record is silent as to why defense counsel raised no Dueñas objection.
Counsel focused on securing probation for defendant or, alternatively, a lower prison
sentence. He also highlighted defendant’s family life, including defendant’s teenage
daughter, and contrasted defendant’s treatment with the more lenient treatment of other
parties involved in the housing project. Counsel may have believed focusing on these
issues would provide more meaningful assistance to defendant than arguing for a
reduction in the assessed fines and fees. The court had also heard testimony that
defendant had recently been constructing a “multimillion dollar apartment complex” and
had, at one point, purchased an airplane. Defense counsel may have determined that,
given this testimony, a claim that defendant could not pay the statutory minimum
restitution fine would lack credibility and undermine his other arguments. We cannot
conclude defense counsel provided ineffective assistance based on his failure to object.
DISPOSITION
The sentences on counts 9, 25, and 26 are stayed under section 654. The
restitution order is reversed to the extent it awarded contract restitution to 84 Lumber and
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the matter is remanded to the trial court for further proceedings consistent with this
opinion. In all other respects, the judgment is affirmed.
/s/
HOCH, J.
We concur:
/s/
MAURO, Acting P. J.
/s/
DUARTE, J.
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