People v. Keene

          APPEAL from a judgment of the Superior Court of San Diego County No. SCD273634, Polly H. Shamoon, Judge. Affirmed as modified and remanded with directions.

          Rachel Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.

          HUFFMAN, J.

         In this case the appellant seeks, for the first time on appeal, to challenge the court's imposition of various fines, fees and assessments as part of the sentence. We will find the issue has been forfeited by failure to raise it at the sentencing hearing. Since the appellant does not challenge his conviction or any other part of his sentence we will affirm the judgment.

         PROCEDURAL BACKGROUND

         Donald G. Keene pleaded guilty to one count of failure to register as a sex offender (Pen. Code, ^[1] §§ 290.012, 290.018, subd. (b)). He also admitted a strike prior (§ 667, subds. (b)-(i)) and a prison prior (§ 667.5, subd. (b)). The court indicated it would strike the strike prior at sentencing.

         During the pendency of his sentencing hearing, Keene was released on his own recognizance. Thereafter, Keene failed to appear for sentencing and was ultimately arrested on a bench warrant.

         At the sentencing hearing, Keene's motion to withdraw his guilty plea was denied. The court struck the "strike" prior and sentenced Keene to the middle term of two years for the offense plus one year for the prison prior. The court also imposed a $1500 restitution fine (§ 1202.4, subd. (b)) and $224 in other fees and assessments. Keene did not object to the fines, fees or assessments; nor did he request a hearing on his ability to pay any of the imposed amounts.

         Keene appeals relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). He contends the imposition of fines, fees and assessments without first holding a hearing on his present ability to pay denied him due process. He also contends that if we find the issue to be forfeited for failure to timely raise it, trial counsel was ineffective. We will reject his contentions and affirm.

         DISCUSSION

         A. The Dueñas Issue Has Been Forfeited

         At the core of the Dueñas opinion is its holding that imposition of fines, fees or assessments without a hearing on ability to pay denies due process. It was that court's view it was the trial court's duty to hold a hearing and thus failure to seek a hearing did not result in forfeiture. Further, the court found that the burden to prove "present" ability to pay was on the prosecution. Other courts, including this court have disagreed with Dueñas on these key principles.

         In People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155, the court disagreed with Dueñas and held the issue of ability to pay was subject to forfeiture. The court reasoned that ability to pay fines and other costs have long been litigated in the courts. Forfeiture can be applied when the issue is raised for the first time on appeal. The vast extension of due process by the Dueñas opinion certainly presents a different approach to ...