California Court of Appeals, Fourth District, First Division
from a judgment of the Superior Court of San Diego County No.
SCD273634, Polly H. Shamoon, Judge. Affirmed as modified and
remanded with directions.
Ferguson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Becerra, Attorney General, Julie L. Garland, Assistant
Attorney General, Charles C. Ragland and Alana Cohen Butler,
Deputy Attorneys General, for Plaintiff and Respondent.
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.
G. Keene pleaded guilty to one count of failure to register
as a sex offender (Pen. Code,  §§ 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
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.
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.
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.
Dueñas Issue Has Been Forfeited
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.
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 ...