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People v. Keene

California Court of Appeals, Fourth District, First Division

December 20, 2019

The PEOPLE, Plaintiff and Respondent,
v.
Donald G. KEENE, Defendant and Appellant.

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

         COUNSEL

         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.

          OPINION

         HUFFMAN, J.

Page 862

          [256 Cal.Rptr.3d 900] 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.

Page 863

          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, 242 Cal.Rptr.3d 268 (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 ...


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