![]() We are satisfied that the doctrine of forfeiture should be applied in this case. Frandsen, supra, 33 Cal.App.5th at pages 1153-1154, and will apply it here. We agree with the court's holding and reasoning in People v. The concept of forfeiture for failure to raise ability to pay fines, fees or assessments is well established in our caselaw prior to Dueñas. We also rejected the idea that ability to pay was focused solely on the present ability at the time of sentencing. We held the burden of proof was on the defendant to show inability to pay the amounts assessed. In particular, we agreed that a defendant has a right to a hearing on ability to pay, where it is 3 requested by the defense. ![]() Kopp (2019) 38 Cal.App.5th 47, 95-97, review granted, November 13, 2019, S257844, we expressed some of our disagreement with the Dueñas opinion. Since the Dueñas opinion, various courts have adopted its approach, and others, including this court, have not endorsed the Dueñas court's reasoning. ![]() The vast extension of due process by the Dueñas opinion certainly presents a different approach to the issue but does not amount to a wholly new concept that might justify abandonment of well-established forfeiture principles. Forfeiture can be applied when the issue is raised for the first time on appeal. The court reasoned that ability to pay fines and other costs have long been litigated in the courts. 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. Other courts, including this court have disagreed with Dueñas on these key principles. Further, the court found that the burden to prove "present" ability to pay was on the prosecution. 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. 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. We will reject his contentions and affirm. 2 issue to be forfeited for failure to timely raise it, trial counsel was ineffective. He also contends that if we find the 1 All further statutory references are to the Penal Code unless otherwise specified. He contends the imposition of fines, fees and assessments without first holding a hearing on his present ability to pay denied him due process. 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. ![]() (b)) and $224 in other fees and assessments. The court also imposed a $1500 restitution fine (§ 1202.4, subd. 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. At the sentencing hearing, Keene's motion to withdraw his guilty plea was denied. Thereafter, Keene failed to appear for sentencing and was ultimately arrested on a bench warrant. During the pendency of his sentencing hearing, Keene was released on his own recognizance. The court indicated it would strike the strike prior at sentencing. He also admitted a strike prior (§ 667, subds. Keene pleaded guilty to one count of failure to register as a sex offender (Pen. Since the appellant does not challenge his conviction or any other part of his sentence we will affirm the judgment. We will find the issue has been forfeited by failure to raise it at the sentencing hearing. 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. Ragland and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent. Garland, Assistant Attorney General, Charles C. Xavier Becerra, Attorney General, Julie L. Rachel Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Affirmed as modified and remanded with directions. ![]() APPEAL from a judgment of the Superior Court of San Diego County, Polly H. Filed 12/20/19 CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D074871 Plaintiff and Respondent, v. ![]()
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |