Opinion
F077037
02-10-2020
THE PEOPLE, Plaintiff and Respondent, v. FRANK LUNA, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Catherine Chatman and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF331329)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T. Montejano, Judge. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Catherine Chatman and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted appellant Frank Luna of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)/count 1) and found true an allegation that the assault was a serious felony because Luna personally used a dangerous and deadly weapon, a knife (§ 1192.7, subd. (c)(23)). In a bifurcated proceeding, the trial court found true that Luna had two prior serious or violent felony convictions within the meaning of the "Three Strikes" law (§ 667, subds. (b)-(i)), and the court found true the prior prison term allegations (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code, unless otherwise indicated.
The prosecutor presented evidence that Luna lunged at his brother with a knife. The jury, however, acquitted Luna of a count of assault with a deadly weapon involving his brother (count 2) and of attempted second degree robbery (§§ 664 & 211/count 3).
Luna's two prior strike convictions were based on his two 1999 convictions for second degree robbery, each of which also included a great bodily injury enhancement under section 12022.7.
Section 667.5, subdivision (b), was amended, effective January 1, 2020, to limit imposition of the additional one-year prior prison term enhancement to convictions for sexually violent offenses as defined in Welfare and Institutions Code section 6600, subdivision (b). (Sen. Bill No. 136 (2019-2020 Reg. Sess.) ch. 590, § 1.) Luna did not serve a prior prison term for an offense that qualifies under the statute as amended, but the enhancements were not imposed in this case.
The court sentenced Luna to an indeterminate term of 25 years to life in prison for assault with a deadly weapon, plus an additional consecutive term of 10 years for the two prior serious felony conviction enhancements under section 667, subdivision (a)(1). Relevant to this appeal, the court imposed a restitution fine of $8,000 (§ 1202.4, subd. (b)); imposed and stayed the parole revocation fine (§ 1202.45); imposed a $40 court operations fee (§ 1465.8); and imposed a $30 criminal conviction assessment fee (Gov. Code, § 70373). Defendant did not object to the orders on the fines and fees.
On appeal, Luna contends: (1) the court abused its discretion when it denied his Romero motion; (2) the court erred in not taking a personal waiver of his right to a jury trial on the fact of the prior conviction allegations; (3) the matter must be remanded for the court to consider whether to exercise its discretion to strike his prior serious felony conviction enhancements under section 667, subdivision (a)(1), as amended by Senate Bill No. 1393 (2017-2018 Reg. Sess.); and (4) remand is required for the trial court to determine his ability to pay fines and fees in light of People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We reject Luna's first two contentions but as to the third, we agree this matter must be remanded so that the trial court may determine whether or not to strike his prior serious felony conviction enhancements. In light of our conclusion in this regard, we need not reach Luna's Dueñas claim, as he may request relief from the trial court in the first instance on remand. (People v. Castellano (2019) 33 Cal.App.5th 485, 489-490 (Castellano).)
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
FACTS
On October 31, 2015, in the afternoon, M.M., who was then 17 years old, was at Luna's house in Farmersville when Luna argued with his brother. M.M. then walked across the street to a park and spoke with his girlfriend on a cell phone. As he spoke on the phone, Luna approached him, thinking M.M. was talking on Luna's phone to Luna's girlfriend. After telling M.M. to give him the phone or he would kill him, Luna made a "flicking forward motion" with a pocket knife he held in his hand. With the blade open, Luna lunged at M.M.'s chest, coming within five inches of striking him. M.M. moved back and Luna got on his bicycle and rode away. As he left, Luna said, "I'll catch you slipping," which M.M. understood to mean that Luna would kill him. The following day, Luna was arrested after M.M. identified him as his assailant.
On January 22, 2018, the jury rendered its verdict. The following day, the court found the prior strike conviction allegations and the prior prison term allegations true.
On February 8, 2018, defense counsel filed a Romero motion asking the court to strike Luna's two prior strike convictions.
Luna's Probation Report and Sentencing
Luna was 47 years old when he committed the underlying offense. His probation report indicated he had a lengthy record that began in 1984 when, as a juvenile, he was adjudicated of selling marijuana on a school campus, a felony. As an adult, from 1988 through 2015, he suffered nine felony convictions—including the two 1999 robbery convictions underlying the strike allegations and serious felony enhancements—and nine misdemeanor convictions. Luna served six separate prison terms. He also violated his parole five times and his postrelease community supervision twice, including once by committing the underlying offense in this matter.
On February 13, 2018, defense counsel argued in favor of Luna's Romero motion that although Luna was charged with three offenses that were strikes, he was convicted of only one strike offense and the prosecutor had previously offered a more lenient resolution for a plea to the count of which he was convicted. The prosecutor responded that Luna had rejected the previous offer and that there were insufficient factors for the court to strike Luna's prior strike conviction given the facts and circumstances and his criminal history.
In denying the motion, the court stated:
"[W]hat I am very familiar with is the circumstances of this particular case, the court having the opportunity to hear the trial in this particular case, and the fact that in this particular case, there was a conviction for a crime of violence, and so the court does not find that any of the considerations which the court can consider in this particular case apply to this particular case.
"I know that the victim in this case thinks highly of Mr. Luna and wishes that Mr. Luna not serve a lengthy prison sentence, and I know that the family also—Mr. Luna's family also has similar feelings, but in the interests of justice, the court finds that it is appropriate for the strike[s] to remain in this matter, and I'm gonna deny the motion."
After also denying the defense's motion to reduce Luna's assault conviction to a misdemeanor, the court struck Luna's three prior prison term enhancements and sentenced him to an indeterminate term of 25 years to life on his assault conviction and two five-year terms for the prior serious felony conviction enhancements.
The court did not impose the fourth prior prison term enhancement because the underlying convictions were used to impose serious felony enhancements. (People v. Jones (1993) 5 Cal.4th 1142, 1152 [only the greatest enhancement may be imposed when an enhancement for a prison term and a serious felony enhancement are based on the same conviction].)
DISCUSSION
The Romero Motion
Luna contends that he suffered from poverty all his life, he was no longer involved with gangs, his prior strike convictions were relatively remote, and several aspects of his conduct indicate that when he assaulted M.M. he was suffering from a mental condition that significantly reduced his culpability for the offense. He further contends the prosecutor's early offer of a more lenient sentence in exchange for a plea to the assault count he was convicted of indicates the prosecutor did not truly believe his current offense merited a Three Strikes sentence, the court did not give sufficient weight to the victim's desire for leniency, and even if the court struck one strike, he could still receive a substantial sentence. Luna also cites People v. Bishop (1997) 56 Cal.App.4th 1245 (Bishop), a case where the striking of two prior felony convictions in the interest of justice was affirmed on appeal, to contend he "is not among 'the worst,' even with his rather extensive criminal record." Thus, according to Luna, the court abused its discretion by not striking at least one of his strike convictions. We disagree.
"The 'Three Strikes' law prescribes increased punishment for a person who is convicted of a felony after having been previously convicted of specified offenses." (People v. Murphy (2001) 25 Cal.4th 136, 139.) Section 1385, subdivision (a) gives the trial court the discretion to strike an allegation that a defendant has previously been convicted of a felony if the dismissal is in the furtherance of justice. (Romero, supra, 13 Cal.4th at p. 508.) "[T]he order striking such allegations ... embodies the court's determination that, ' "in the interest of justice" [the] defendant should not be required to undergo a statutorily increased penalty which would follow from judicial determination of [the alleged] fact.' " (Ibid.)
"[T]he Three Strikes law was devised for the 'revolving door' career criminal, and was expressly intended 'to ensure longer prison sentences ... for those who commit a felony' as long as they were previously convicted of at least one strike." (People v. Strong (2001) 87 Cal.App.4th 328, 331-332, fn. omitted.) Our Supreme Court has declared the purpose of the Three Strikes law is to punish recidivism, and it focuses on the status of a defendant as a repeat felon. (People v. Murphy, supra, 25 Cal.4th at p. 155.)
In deciding whether to strike a prior conviction, "the court in question must consider whether, in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
We review a trial court's determination to dismiss or strike a prior conviction allegation under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) Two fundamental precepts guide our appellate review. First, the appealing party bears the burden " ' "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." ' " (Id. at pp. 376-377.) "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." (Id. at p. 377.)
Luna had a lengthy record that began in 1984, including a felony juvenile adjudication, nine felony convictions, and nine misdemeanor convictions; and his two 1999 robbery convictions each included an infliction of great bodily injury enhancement (§ 12022.7). Luna served six prior prison terms. He also violated his parole several times and his postrelease community supervision two times, including once by committing the underlying offense. His current offense was a serious felony because he personally used a knife to commit the assault (§ 1192.7, subd. (c)(23)) and during the assault he threatened to kill the victim twice and he attempted to stab him in the chest. Further, although Luna suffered from substance abuse, may have had mental health issues and suffered from lifelong poverty, his lengthy record and current offense demonstrated that he had been unwilling or unable to effectively deal with these circumstances and that he continued to represent a danger to the community by committing violent offenses. Thus, the record amply supports the court's decision not to strike either or both of his prior strike convictions.
Moreover, although Luna's prior strike convictions were based on two 1999 robbery convictions, the record supports the court's finding that they were not remote because Luna had since committed numerous offenses and served several prison terms. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813 [20-year-old conviction not too remote for Three Strikes sentencing purposes where defendant had not led a " 'legally blameless life' "].) Additionally, none of the other alleged mitigating circumstances Luna cites compel a conclusion that the court acted arbitrarily in refusing to strike any of his prior strike convictions and, as noted above, we may not substitute our judgment for that of the trial court. (Carmony, supra, 33 Cal.4th at p. 377.)
Bishop does not assist Luna. Unlike the present case, which involves an assault with a deadly weapon conviction that included threats to kill the victim, Bishop involved only a conviction for petty theft with a prior theft conviction (former § 666) based on the theft of six videocassettes from a store. (Bishop, supra, 56 Cal.App.4th at pp. 1247-1248.) Further, as the appellate court in People v. Romero (2002) 99 Cal.App.4th 1418 astutely observed,
"A comparison of the cases is of little assistance to the defendant upon appeal. The Bishop holding does not establish that had the trial court denied Bishop's motion such a decision would have been arbitrary or irrational. [Citation.] Rather, the holding only establishes that the trial court did not abuse its discretion in striking the two prior felony convictions. [Citation.] [¶] ... A comparison only demonstrates that reasonable people might disagree." (People v. Romero, supra, at p. 1434.)
Thus, we conclude that the trial court did not abuse its discretion when it denied Luna's Romero motion.
The Waiver of Luna's Right to a Jury Trial on the Fact of Prior Conviction Allegations
While the jury deliberated, the prosecutor asked the court if Luna had decided whether to waive a jury trial with respect to the prior conviction allegations. Defense counsel stated that Luna wanted to waive his right to a jury trial on those allegations. The court then asked defense counsel to check with Luna. After doing so, defense counsel told the court that Luna waived his right to a jury trial on the prior conviction allegations.
Luna now claims that because the trial court did not obtain an express, personal waiver of his right to a jury trial on the fact of the prior conviction allegations, the court failed to obtain a knowing, voluntary and intelligent waiver. Luna characterizes the error as one of constitutional magnitude requiring reversal per se. (See People v. Blackburn (2015) 61 Cal.4th 1113, 1133-1134 [invalid waiver of right to jury trial on determination of guilt requires reversal].) We are unpersuaded by Luna's contention that his waiver of a jury trial on the fact of his prior convictions had to be express and personal.
The parties do not raise the issue of forfeiture. The California Supreme Court has held that " 'the deprivation of the statutory right to jury trial on the prior [conviction] allegations does not implicate the state or federal constitutional right to jury trial. Absent an objection to the discharge of the jury or commencement of court trial, defendant is precluded from asserting on appeal a claim of ineffectual waiver of the statutory right to jury trial of prior [conviction] allegations.' " (People v. Grimes (2016) 1 Cal.5th 698, 738, quoting People v. Vera (1997) 15 Cal.4th 269, 278 (Vera); see People v. Gallardo (2017) 4 Cal.5th 120, 127 (Gallardo).) Because we reject Luna's claim on its merits, however, we need not determine whether to apply the forfeiture doctrine.
Under California law, "[a] defendant ... [has] a statutory right to a jury trial on 'the question of whether or not the defendant has suffered the prior conviction'—though not 'whether the defendant is the person who has suffered the prior conviction.' " (Gallardo, supra, 4 Cal.5th at p. 125, quoting § 1025, subds. (b) & (c); accord, People v. Epps (2001) 25 Cal.4th 19, 29.) "When the defendant seeks to bifurcate the determination of the truth of the prior conviction allegation from determination of the defendant's guilt of the charged crimes, ... only the statutory right to jury trial is implicated in the trial of the sentencing allegations. Since there is no constitutional right to have the jury determine the truth of a prior conviction allegation [citation], it follows that the failure to obtain an express, personal waiver of the right to jury trial of prior conviction allegations does not constitute a violation of the state constitutional mandate." (Vera, supra, 15 Cal.4th at p. 277; accord, People v. Cross (2015) 61 Cal.4th 164, 172-173; French, supra, 43 Cal.4th at pp. 46-47; People v. Thomas (2001) 91 Cal.App.4th 212, 223.)
The right to a jury trial for prior convictions derives from section 1025, subdivision (b), which provides: "[T]he question of whether or not the defendant has suffered the prior conviction shall be tried by the jury that tries the issue upon the plea of not guilty, or in the case of a plea of guilty or nolo contendere, by a jury impaneled for that purpose, or by the court if a jury is waived." "The trial court's role is limited to determining the facts that were necessarily found in the course of entering the conviction. To do more is to engage in 'judicial factfinding that goes far beyond the recognition of a prior conviction.' " (Gallardo, supra, 4 Cal.5th at p. 134, quoting Descamps v. United States (2013) 570 U.S. 254, 269.) Luna does not claim that the trial court strayed beyond determining the fact of his prior convictions.
The California Supreme Court decided Vera, supra, 15 Cal.4th 269 several years before the United States Supreme Court issued its opinion in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), and in French, the California Supreme Court recognized that Apprendi abrogated Vera in part. (People v. French (2008) 43 Cal.4th 36, 47 (French) ["Although we held in Vera that the defendant had forfeited his statutory right to a jury trial on prior-prison-term allegations by failing to object, we clearly implied that an express waiver would have been required if the right to a jury trial on those allegations had been based upon the state or federal Constitution."].) More recently, the California Supreme Court disapproved its decision in People v. McGee (2006) 38 Cal.4th 682 in light of Apprendi and the decisions that followed, explaining, "While a sentencing court is permitted to identify those facts that were already necessarily found by a prior jury in rendering a guilty verdict or admitted by the defendant in entering a guilty plea, the court may not rely on its own independent review of record evidence to determine what conduct 'realistically' led to the defendant's conviction." (Gallardo, supra, 4 Cal.5th at p. 124.) As previously noted, Luna does not claim that the trial court went beyond finding the fact of the prior convictions. (Id. at p. 123.)
Luna's bare assertion that his federal and state constitutional rights were violated by the court's failure to obtain an express waiver of his right to a jury trial on the fact of his prior convictions is both undeveloped and unsupported by the authorities cited. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363-364.) Luna relies on cases that involve not waiver of a jury trial in favor of a bench trial on the fact of a prior conviction, but waiver in the context of determining guilt, admitting prior conviction allegations and cross-examining witnesses. (E.g., United States v. Ruiz (2002) 536 U.S. 622, 628-629 [pleading guilty to charges]; Schneckloth v. Bustamonte (1973) 412 U.S. 218, 237 [jury trial right in context of determining guilt]; Brookhart v. Janis (1966) 384 U.S. 1, 4 [right to cross-examine witnesses]; People v. Mosby (2004) 33 Cal.4th 353, 359-360 [admission of prior conviction allegation]; People v. Lloyd (2015) 236 Cal.App.4th 49, 52-53, 56-60 [admission of prior conviction allegations]; People v. Traugott (2010) 184 Cal.App.4th 492, 500 [waiver of trial by 12-person jury on guilt]; People v. Dixon (2007) 153 Cal.App.4th 985, 990 [waiver of jury trial on guilt]; People v. Smith (2003) 110 Cal.App.4th 492, 500 [waiver of jury trial on guilt].) Thus, those cases are not authority for the proposition Luna advances on appeal. Luna neither claims that the court trial itself was unfair (People v. Cross, supra, 61 Cal.4th at pp. 172-173), nor claims that the court crossed the line into impermissible factfinding with respect to the prior conviction allegations (Gallardo, supra, 4 Cal.5th at pp. 124-125). Therefore, we conclude that Luna's waiver of his right to a jury trial on the prior conviction allegations was valid. (French, supra, 43 Cal.4th at pp. 46-47; Vera, supra, 15 Cal.4th at p. 277.)
Prior Serious Felony Conviction Enhancements
Luna contends he is entitled to the benefit of recent amendments to sections 667 and 1385, which allow trial courts to strike prior serious felony conviction enhancements, and that remand is necessary to allow the court to exercise its discretion whether to strike his serious felony enhancements. Respondent concedes the amendments to these sections apply retroactively to Luna and that the matter should be remanded for the court to consider whether to exercise its discretion pursuant to these sections.
On September 30, 2018, the Governor signed Senate Bill No. 1393, which amends sections 667, subdivision (a), and 1385, subdivision (b), effective January 1, 2019, to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1, 2.) There is no indication in the amendment to sections 667, subdivision (a), or 1385, subdivision (b), that these amendments were to operate only prospectively. Thus, Luna is entitled to the benefit of these recent amendments. (People v. Brown (2012) 54 Cal.4th 314, 323; In re Estrada (1965) 63 Cal.2d 740, 745.)
"Remand is required unless the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so. [Citation.] Without such a clear indication of a trial court's intent, remand is required when the trial court is unaware of its sentencing choices." (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110; accord, People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) Since there is no clear indication of the trial court's intent, we agree with the parties that the matter should be remanded to the trial court to allow it to consider exercising its discretion pursuant to sections 667, subdivision (a) and 1385, subdivision (b) whether to strike his prior serious felony conviction enhancements.
The Dueñas Issue
Finally, in the Dueñas case, the Court of Appeal, citing due process and equal protection principles, held that the assessments under Government Code sections 70373 and 1465.8 may be "imposed only on those with the means to pay them" (Dueñas, supra, 30 Cal.App.5th at pp. 1168-1169), and "that although the trial court is required by Penal Code section 1202.4 to impose a restitution fine, the court must stay the execution of the fine until and unless the People demonstrate that the defendant has the ability to pay" (id. at p. 1172; accord, Castellano, supra, 33 Cal.App.5th at pp. 489-490 [following Dueñas but clarifying that "a defendant must in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court"]; contra, People v. Allen (2019) 41 Cal.App.5th 312, 325-330 [rejecting the defendant's Dueñas-based due process claim and her equal protection claim]; People v. Hicks (2019) 40 Cal.App.5th 320, 326-329, review granted Nov. 26, 2019, S258946 [rejecting Dueñas's due process analysis]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1061 [disagreeing with Dueñas's due process analysis and concluding constitutional challenge to fines, fees and assessments should be made under the Eighth Amendment's excessive fines clause]). Relying on the holding in Dueñas, Luna claims this matter must be remanded for the trial court to determine his ability to pay the fees and fines imposed against him.
As a threshold matter, the parties disagree whether Luna's failure to object in the trial court forfeits his claim on appeal, and we observe that because the trial court imposed a restitution fine that exceeded the statutory minimum, Luna had a statutory right to object based on his inability to pay. (§ 1202.4, subd. (d); People v. Lowery (Jan. 2, 2020, F076484) ___ Cal.App.5th ___ [2020 Cal.App. Lexis 1, *11-13] [applying forfeiture doctrine to fines and fees where trial court imposed restitution fine above minimum statutory amount]; People v. Aviles, supra, 39 Cal.App.5th at pp. 1073-1074 [same]; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1032-1033 [same]; cf. People v. Taylor (2019) 43 Cal.App.5th 390, 399-401 [applying forfeiture doctrine to $10,000 restitution fine given statutory right to object but declining to apply it to court operations and facilities fees where there was no statutory right to object and Dueñas constituted an unforeseen change in the law].) Luna contends that the forfeiture doctrine should not be applied to bar his claim because the Dueñas decision marked an unforeseen change in the law and to the extent we disagree, that his trial counsel was ineffective in failing to object.
We acknowledge our dissenting colleague's position that Luna's Dueñas claim should be evaluated under the excessive fines clause of the Eighth Amendment; that the fines, fees and assessments imposed are not excessive within the meaning of the Eighth Amendment; and that, assuming Dueñas applies, any error is harmless. (Aviles, supra, 39 Cal.App.5th at pp. 1069-1072, 1075-1077.) However, we conclude it unnecessary to reach Luna's Dueñas claim given remand of this matter under Senate Bill No. 1393. To the extent Luna believes Dueñas entitles him to any relief, he may request such relief in the trial court in the first instance. (Castellano, supra, 33 Cal.App.5th at pp. 489-490, fn. omitted.)
DISPOSITION
The matter is remanded to the trial court to exercise its discretion under sections 667, subdivision (a), and 1385, subdivision (b), as amended by Senate Bill No. 1393 and, if appropriate following exercise of that discretion, to resentence Luna accordingly. The judgment is otherwise affirmed.
/s/_________
MEEHAN, J. I CONCUR: /s/_________
SMITH, J. POOCHIGIAN, Acting P.J., concurring and dissenting.
I concur with the majority opinion with the exception of respectfully dissenting to the disposition that on remand, defendant may raise objections to the court's imposition of fines, fees, and enhancements based on People v. Dueñas (2019) 30 Cal.App.5th 1157.
As explained in People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles), I believe Dueñas was wrongly decided and that an Eighth Amendment analysis is more appropriate to determine whether restitution fines, fees, and assessments in a particular case are grossly disproportionate and thus excessive. (Aviles, at pp. 1068-1072.) Under that standard, I would find the fines and fees imposed in this case are not grossly disproportionate to defendant's level of culpability and the harm he inflicted, and thus not excessive under the Eighth Amendment. (Aviles, at p. 1072.)
Even if Dueñas applied to this case, I agree with the majority that defendant has forfeited any challenge to his alleged inability to pay the fines, fees, and assessments. When the court imposes a restitution fine greater than the statutory minimum amount of $300, "[s]ection 1202.4 expressly contemplates an objection based on inability to pay." (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153 (Frandsen); Aviles, supra, 39 Cal.App.5th at p. 1073.) While Dueñas had not been decided at the time of defendant's sentencing hearing, defendant had the statutory right to object to the $8,000 restitution fine and demonstrate his inability to pay, and such an objection "would not have been futile under governing law at the time of his sentencing hearing." (Frandsen, at p. 1154; Aviles, at pp. 1073-1074.) In addition, similar objections to the assessments imposed under section 1465.8 and Government Code section 70373 would not have been futile if defendant had made the appropriate record. (Frandsen, at p. 1154; Aviles, at p. 1074.)
Aside from forfeiture, I would find any error under Dueñas is necessarily harmless since defendant has the ability to pay the fines, fees, and assessments over the course of his long prison sentence. (Aviles, supra, 39 Cal.App.5th at pp. 1075-1077.)
Finally, while the matter must be remanded for the court to exercise its discretion on the sentencing issues, I would find defendant forfeited review of the court's imposition of the fines, fees, and assessments by failing to object, and any error in the court's failure to conduct a hearing on his ability to pay is harmless, so that he should not be able to raise these objections on remand. (Aviles, supra, 39 Cal.App.5th at p. 1077.)
/s/_________
POOCHIGIAN, Acting P.J.