1

Filed 1/31/24

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and 

Respondent,

v.

LAMONT ALEXANDER 

DEAN,

Defendant and 

Appellant.

 A166863

 (Mendocino County

Super. Ct. Nos. 

SCUKCRCR202036556-1, 

SCUKCRCR202037103-1)

Lamont Dean was convicted of assault with intent to 

commit rape (Pen. Code,1 § 220, subd. (a)(1)) and one prior strike 

allegation (§§ 667, subds. (b)–(i), 1170.12), as well as a separate 

offense of bringing drugs into a jail (§ 4573.6, subd. (a)). The trial 

court sentenced him to 13 years in prison and imposed various 

fines and fees. We reversed and remanded for resentencing due 

to an intervening change in the sentencing law. (People v. Dean

(June 29, 2022, A162706) [nonpub. opn.] (Dean).) On remand, 

the trial court sentenced Dean to a total of nine years in prison 

and imposed various fines and fees. Dean again appeals, raising 

* Pursuant to California Rules of Court, rules 8.1105(b) and 

8.1110, this opinion is certified for publication with the exception 

of parts II–IV of the Discussion section, post.

1 Undesignated statutory references are to the Penal Code.
2

challenges to the trial court’s calculation of his custody credits, 

imposition of fines despite his indigency, refusal to set aside his 

admission to the strike allegation at his trial for lack of the 

required admonitions, and denial of his motion under People v. 

Marsden (1970) 2 Cal.3d 118. The Attorney General concedes 

error on the first three issues. We need not address Dean’s 

Marsden argument because we agree with the parties that Dean’s 

first three arguments require reversal and remand for further 

proceedings.

BACKGROUND

The details of Dean’s offenses are set forth in Dean and are 

irrelevant here, so we need not repeat them. The background 

relevant to this appeal begins with the pretrial settlement 

discussions. Before trial, the prosecutor made a plea bargain 

offer of the low term for the assault charge, doubled, and 

dismissal of the drug charge. Dean’s counsel told the court that 

Dean had rejected the offer.

Two weeks later, before beginning voir dire, the trial court 

asked Dean whether he was willing to stipulate to the allegation 

that he had previously been convicted of assault with a deadly 

weapon.2 The court told Dean, “First thing we need to address is 

the strike that’s alleged in the information. [¶] Mr. Dean, as you 

know, you have a right to have a jury trial or a court trial on the 

truth of that allegation. The strike would only be significant in 

terms of the consequence today or in this trial if the jury finds 

2 We grant Dean’s request for judicial notice of the record in 

Dean. 
3

you guilty of a felony. It enhances the sentence. I know you and 

your attorney have talked about that.” The court then asked, 

“With the understanding you have a right to a jury trial or a 

court trial on the strike, is it your intention to admit the truth of 

that strike and give up your right to have a jury or court trial on 

that?” Dean replied, “Stipulated.” Dean’s counsel then affirmed 

to the trial court that he was joining in Dean’s waiver of both a 

jury trial and a court trial.

The trial court continued, “Mr. Dean, with your rights in 

mind, having talked with your attorney, I need you to tell me if 

you admit or deny that you suffered a conviction for assault with 

a deadly weapon, violation of Penal Code section 245(a) in Solano 

County in November of 1999. [¶] Do you admit that that is true, 

sir?” Dean replied, “Yes, your Honor.” Dean’s counsel again 

joined in the waiver and admission.

After the jury found Dean guilty as charged, the trial court 

sentenced Dean to the upper term of six years on the assault 

conviction. The court then doubled it based on the strike that 

Dean had admitted, for a total of 12 years. The court also 

sentenced Dean to one consecutive year for a later offense of 

smuggling fentanyl into the jail. Dean’s total sentence was 

therefore 13 years. The court calculated 176 days of actual time 

served and 26 days of credit pursuant to section 2933.1, for total 

credits of 202 days. The court also imposed various fines and

fees.

Dean appealed, arguing he was entitled to the retroactive 

application of an intervening amendment to section 1170. We 
4

agreed and remanded to the trial court for a complete 

resentencing. Dean had also argued that the imposition of fines 

and fees without a hearing to determine his ability to pay them 

was unconstitutional and that the statutory authority for one of 

the fines had been repealed. We declined to address those 

arguments because the trial court could consider the fines anew 

on resentencing.

In the resentencing hearing on remand, Dean asked the 

trial court to impose the low term and to strike all fines and fees 

because he was indigent. The court announced its intention to 

impose the middle term of four years, doubled to eight years 

because of the strike allegation, with an extra year for the drug 

charge, for a total of nine years.

Dean personally objected, arguing, among other things, 

that his prior conviction did not qualify as a strike. The trial 

court disagreed and said that the hearing was not to challenge 

the validity of the strike. It viewed our opinion as stating that 

the strike finding remained and the only purpose for the 

resentencing hearing was to decide between the middle and 

upper terms on the assault conviction.

Dean then told the trial court that when he admitted the 

strike, he thought it was going to be dismissed or stricken. He 

said he would never have admitted the strike had he known it 

would double his sentence. The trial court repeated that this 

issue was not before it. The court continued the hearing for an 

updated calculation of Dean’s custody credits. The court said it 
5

wanted some argument at the continued hearing about whether 

it had discretion to stay the $300 fine under section 290.3.

At the continued hearing, Dean began by making a 

Marsden motion. In a closed hearing, Dean raised various 

complaints against his counsel, including that his counsel had not 

challenged the validity of the prior strike. Dean reiterated that 

he would never have admitted the strike had he known it would 

double his sentence.

Dean’s counsel said the admission of the strike was a 

tactical choice. He also stated that the only remaining matter 

was the re-calculation of his credits, so that any communication 

difficulties were no longer significant.

The trial court found Dean’s counsel had not fallen below a 

standard of professional representation and could continue to 

represent him because the only issue remaining concerned Dean’s 

credits against his sentence. The trial court therefore denied 

Dean’s motion.

Back in open court, the trial court confirmed that Dean’s 

prior conviction constituted a strike. The court then sentenced 

Dean to the middle term of four years, doubled to eight years, 

with a consecutive year for the drug conviction. In both the 

assault and drug cases the trial court stayed the $40 court 

security fees and $30 criminal conviction assessments. The court 

imposed the statutory minimum fines of $300 under section 

1202.4. The court also imposed and stayed $300 parole 

revocation fines. In the assault case, the court imposed a $300 
6

fine under section 290.3. The court struck the $412 probation 

report fee in the assault case.

The trial court then said Dean had earned 761 days actual 

credit with an additional 114 days pursuant to section 2933.1, for 

total credits of 875 days.

DISCUSSION

I. Calculation of additional credits

Dean first argues that, upon resentencing, the trial court 

should have updated only the calculation of actual time he served 

in prison and should not have updated the calculation of conduct 

credits for his time in prison. The Attorney General agrees. We 

are not bound by the Attorney General’s concession of error. 

(People v. Alvarado (1982) 133 Cal.App.3d 1003, 1021.) But after 

conducting our own independent investigation, we agree that the 

trial court erred by using the time Dean served in prison to 

update the calculation of Dean’s conduct credits.

In People v. Buckhalter (2001) 26 Cal.4th 20, 30–31 

(Buckhalter), the Supreme Court reviewed the separate and 

independent conduct credit schemes for presentence custody in 

jail (§ 4019) and postsentence imprisonment (§ 2930 et seq.). It 

concluded from these statutes that when a defendant’s case is 

remanded to the trial court for resentencing, the trial court has a 

duty to update the calculation all actual time served, whether 

before or after sentencing and in jail or prison. (Buckhalter, at 

p. 29.) But the defendant cannot earn additional good behavior 

credits under the presentencing credit scheme for time confined 

in the jail pending resentencing, because such good behavior 
7

credits are available only to defendants before an initial 

sentencing.3 (Ibid.) Instead, the defendant’s term-shortening 

credits during resentencing must be calculated exclusively under 

the postsentence scheme, which gives the Director of Corrections 

the authority to establish and administer procedures for accrual 

and forfeiture of credits for time in work or other programs in 

prison. (Id. at pp. 29–31.)

At the original sentencing, the trial court calculated that 

Dean was entitled to 26 days of additional credit for his time in 

jail, which reflected a 15 percent cap on presentence or 

postsentence conduct credit under section 2933.1 for defendants 

convicted of a felony listed in section 667.5, subdivision (c), like 

Dean. At the resentencing, the trial court updated that 

calculation and said Dean had earned 114 days of additional 

credit, again based on the 15 percent cap in section 2933.1. Dean 

argues the trial courts for many years have customarily updated 

conduct credit allegations in this manner, based on a misreading 

of Buckhalter as requiring the trial court to recalculate both the 

actual time served and conduct credits when resentencing. In 

reality, Buckhalter said only that resentencing courts must 

recalculate actual time served. Dean argues that this customary 

approach, while erroneous, used to be a harmless overreach 

because trial courts calculated the conduct credits for the 

postsentence period using the same statutes — sections 2931 to 

3 The California Supreme Court later reached the same 

conclusion when a defendant’s conviction is reversed on appeal 

and when a trial court recalls a defendant’s sentence. (People v. 

Johnson (2004) 32 Cal.4th 260, 263.)
8

2933.6 — that the California Department of Corrections and 

Rehabilitation (CDCR) would have.

But in November 2016, the voters enacted article I, section 

32 of the California Constitution, the Public Safety and 

Rehabilitation Act of 2016, subdivision (a)(2) of which states, 

“The Department of Corrections and Rehabilitation shall have 

authority to award credits earned for good behavior and approved 

rehabilitative or educational achievements.” Subdivision (b) of 

the same provision requires the CDCR to adopt regulations to 

carry out this authority. (Cal. Const., art. I, § 32, subd. (b) 

(Public Safety and Rehabilitation Act of 2016).) Dean contends 

this provision repealed section 2933.1 to the extent that it capped 

postsentence conduct credits for defendants like Dean. He 

contends he is eligible for more worktime credits under the 

CDCR’s new regulations enacted pursuant to its new 

constitutional authority. (See Cal. Code Regs., tit. 15, §§ 3043–

3043.6.) According to Dean, the trial court’s calculation of 

additional conduct credits for the postsentence period pursuant to 

the 15 percent cap in section 2933.1 was therefore incorrect and 

deprived him of term-shortening credits.

Dean appears to be correct that the Public Safety and 

Rehabilitation Act of 2016 effectively repealed sections 2933.1 as 

to postsentence worktime credits. However, we need not 

conclusively answer that question. Even if section 2933.1 

remains in force, the trial court still erred under Buckhalter by 

calculating additional credits for Dean’s postsentence 

imprisonment, as the Attorney General concedes. Buckhalter
9

only required a trial court resentencing a defendant to 

recalculate “all actual time” the defendant has served. 

(Buckhalter, supra, 26 Cal.4th at p. 29, italics omitted.) The 

CDCR is responsible for calculating a defendant’s postsentence 

credits. (Id. at pp. 29–30.)

If this were the only problem with Dean’s new sentence, we 

would simply order the abstract of judgment corrected by stating 

his actual time credits, including his time in prison, and 

reverting back to the initial calculation of 26 days of additional 

presentence conduct credits. The CDCR would then be free to 

determine any additional credits Dean may have earned after his 

initial sentence beyond his actual time served. However, because 

we are remanding to correct the other errors discussed below, we 

will instruct the trial court to calculate Dean’s credits in line with 

these principles when it resentences him on remand.

II. Fines and fees

Dean next argues that the trial court abused its discretion 

by imposing a $300 fine under section 290.3 and $300 restitution 

fines under section 1202.4 because he cannot pay them. Dean 

argues that the trial court imposed these fines only because it 

believed they were mandatory and that this was error. Dean 

argues that section 290.3 allows a court to refrain from imposing 

the fine under that section if the defendant cannot pay it and 

that People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) 

allows trial courts to stay any fine if a defendant cannot pay it.

“In a nutshell, Dueñas, supra, 30 Cal.App.5th at pages 

1168–1169, held that a sentencing court violated the due process 
10

rights of a defendant who committed her acts out of poverty when 

it imposed certain mandatory fees and fines that lack a statutory 

exception without first making a finding the unemployed 

defendant (who suffered from cerebral palsy) had the ability to 

pay while she was on probation.” (People v. Oliver (2020) 

54 Cal.App.5th 1084, 1100.) Several decisions have disagreed 

with Dueñas, and the California Supreme Court is currently 

considering the issue. (E.g., People v. Hicks (2019) 

40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946; 

People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 

2019, S257844.)4 In the absence of any guidance from our 

Supreme Court, we adhere to the view expressed in this 

Division’s decision in People v. Cowan (2020) 47 Cal.App.5th 32, 

review granted June 17, 2020, S261952 (Cowan) that 

constitutional challenges to fines or fees based on a claim that a 

defendant cannot pay them should be evaluated under the Eighth 

Amendment and article I, section 17 of the California 

Constitution. (Cowan, at p. 42; see Estate of Sapp (2019) 

36 Cal.App.5th 86, 109, fn. 9 [“Absent a compelling reason, the 

Courts of Appeal are normally loath to overrule prior decisions 

from another panel of the same undivided district or from the 

same division”].) Four factors are relevant to that type of 

evaluation: “ ‘(1) the defendant’s culpability; (2) the relationship 

between the harm and the penalty; (3) the penalties imposed in 

4 We deny as unnecessary Dean’s request for judicial notice 

of the Solicitor General’s answering brief on the merits in People 

v. Kopp, supra, S257844.
11

similar statutes; and (4) the defendant’s ability to pay.’ ” (Cowan, 

at p. 47.) A defendant bears the burden of proof regarding his or 

her ability to pay. (Id. at p. 49.)

The Attorney General notes that Dean challenged all fines 

and fees in the trial court. However, the parties never actually 

argued the issue. The Attorney General suggests that this, 

combined with Dean’s claims of indigency in the trial court and 

indications in the original probation report that Dean may have 

disability or worker’s compensation income, warrants remanding 

to the trial court for an inquiry into Dean’s ability to pay the 

fines.5 Dean originally asked us to strike the section 290.3 fine 

and stay the restitution fines, but in his reply brief he agrees 

with the Attorney General that remand is appropriate if we 

remand for resentencing because of the other errors.

We agree with the parties that remand for a hearing on 

Dean’s ability to pay the fines is necessary. The court indicated it 

might stay the section 290.3 fine if allowed, and the statute does 

plainly so allow. (§ 290.3, subd. (a) [individuals convicted of 

listed offenses shall be punished by $300 fine “unless the court 

determines that the defendant does not have the ability to pay 

the fine”].) It is not clear why this was not brought to the trial 

court’s attention. The trial court’s imposition of this fine cannot 

5 The Attorney General suggests that Dean may have 

forfeited the fines issue by failing to pursue it below. But the 

Attorney General chooses not to urge forfeiture and addresses the 

issue on the merits, to forestall a claim of ineffective assistance of 

counsel. We will likewise address the issue in the interests of 

judicial economy, to avoid the need for separate habeas corpus 

proceedings. (People v. Butler (2003) 31 Cal.4th 1119, 1128.)
12

be considered an exercise of its informed discretion when the trial 

court was not aware that it had the discretion to stay it. (People 

v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8 [trial courts cannot 

exercise informed discretion when imposing sentence if they are 

unaware of the scope of their discretionary powers].) The trial 

court appears to have credited Dean’s claims that he could not 

pay any fines, since it stayed the $30 criminal conviction 

assessment and $40 court security fee. The trial court may have 

been willing to stay the section 290.3 fine as well, and to strike 

all remaining fines on constitutional grounds. However, because 

the parties never addressed the issue directly, the prosecutor did 

not have the opportunity to argue that Dean might have 

alternative sources of income. Nor did the parties address the 

other three factors under Cowan. (Cowan, supra, 47 Cal.App.5th 

at p. 47.) On remand, the parties may raise these issues again 

with the trial court.

III. Stipulation to strike allegation

Dean contends the trial court erred by doubling his 

sentence during the resentencing because his admission of the 

strike allegation before his jury trial was invalid. The Attorney 

General agrees that Dean’s admission of the strike was flawed, as 

do we.

The California Supreme Court’s precedents “ ‘require, 

before a court accepts an accused’s admission that he has 

suffered prior felony convictions, express and specific 

admonitions as to the constitutional rights waived by an 

admission.’ ” (People v. Cross (2015) 61 Cal.4th 164, 170 (Cross).) 
13

Those rights are “the privilege against compulsory selfincrimination, the right to trial by jury, and the right to confront 

one’s accusers.” (Ibid.) “[A] defendant must also be advised of 

‘the full penal effect of a finding of the truth of an allegation of 

prior convictions.’ [Citation.] . . . [A]n accused, before admitting a 

prior conviction allegation, must be advised of the precise 

increase in the prison term that might be imposed, the effect on 

parole eligibility, and the possibility of being adjudged a habitual 

criminal.” (Id. at pp. 170–171.) However, a violation of these 

requirements is not reversible “ ‘if the record affirmatively shows 

that [the admission] is voluntary and intelligent under the 

totality of the circumstances.’ ” (Id. at p. 179; see also People v. 

Farwell (2018) 5 Cal.5th 295, 303–304 [“totality of the

circumstances test applies in all circumstances where the court

fails, either partially or completely, to advise and take waivers of

the defendant’s trial rights before accepting a guilty plea” (italics 

omitted)].)

Dean’s prior strike doubled the punishment for his assault 

offense, so he was entitled to the proper admonitions. (§§ 667, 

subds. (b)–(i), 1170.12; Cross, supra, 61 Cal.4th at p. 175

[admonitions required before a stipulation that exposes 

defendant to additional punishment, whether by enhancement or 

alternative sentencing scheme].) Before Dean admitted the 

strike, the trial court told Dean only that by admitting the strike, 

he would give up his right to a jury or bench trial on the 

allegation and that the strike would enhance his sentence. The 

court did not mention the privilege against self-incrimination or 
14

the right to confront his accusers, nor did it tell him “ ‘the precise 

increase in the prison term that might be imposed’ ” as a result of 

the admission. (Cross, at p. 171.) This was error.

This error requires us to set aside the finding on the strike 

allegation because Dean and the Attorney General are correct 

that the record does not affirmatively show that Dean’s

admission of the allegation was voluntary and intelligent under 

the circumstances. (Cross, supra, 61 Cal.4th at p. 179.) When 

making this determination, we must consider the entire record, 

not just the plea colloquy, and also Dean’s previous experience in 

the criminal justice system. (Id. at pp. 179–180.)

Before admitting the strike, Dean rejected an offer from the 

prosecutor of the “low term doubled,” which would have meant a 

four-year prison sentence. (§ 220, subd. (a)(1) [punishment for 

assault with intent to commit rape is two, four, or six years].) 

However, we cannot say affirmatively that this, together with the 

trial court’s “enhances” remark, means that Dean understood the 

full sentencing ramifications of his admission of the strike and 

intelligently chose to admit it anyway. There is no indication 

that Dean’s counsel told Dean that the prosecutor’s offer of four 

years was the result of a doubling of the low term. Dean could 

have simply rejected the plea offer because he was unwilling to 

agree to a four-year prison term, without learning of the 

calculation that led to that result. Additionally, neither the plea 

offer nor the trial court’s “enhances” remark informed Dean of the 

arithmetic that doubling the low term would yield four years, but 
15

doubling the middle term would yield eight years and doubling 

the upper term would yield 12 years.

There is also no indication that Dean was advised that he 

was waiving his rights against self-incrimination and to confront 

his accusers. Dean might have learned of these rights in his jury 

trial for the charge underlying the strike allegation, but that 

conviction occurred more than twenty years earlier. (See People 

v. Dean (Oct. 30, 2001, A091496) [nonpub. opn.].) The record 

suggests Dean faced other charges in the interim, but since the 

record does not contain any details of those proceedings, they tell 

us nothing about Dean’s understanding of his rights.

The trial court stated that it knew Dean had talked with 

his attorney about the admission. (See Cross, supra, 61 Cal.4th

at p. 180 [record did not show stipulation was knowing and 

voluntary in part because trial court did not ask whether 

defendant had discussed stipulation with counsel].) But the trial 

court did not explain the basis for this knowledge, nor did it give 

any indication that Dean had specifically discussed with his 

counsel the penal consequences of the plea or the waiver of his 

self-incrimination and confrontation rights. Dean’s counsel gave 

no indication he had explained such issues to Dean when he 

joined Dean’s waiver of the right to trial on the admission. In 

Dean’s Marsden hearing, Dean asserted directly that he did not 

understand the impact of the admission and would not have 

admitted the strike had he known the penal consequences. In 

response, his counsel said only that the admission was a tactical 
16

choice. Dean’s counsel still did not say that he had explained the 

penal consequences to Dean in advance of the admission.

The trial court refused to consider this issue in the 

resentencing hearing because it viewed our prior opinion as 

establishing the validity of the strike. We declared the strike 

allegation irrelevant to our holding there, so we did not directly 

declare the strike allegation valid. But we did affirm the 

judgment in all respects other than the need for resentencing set 

out in the opinion, so the trial court’s interpretation of our 

opinion is understandable. Nonetheless, we will not find Dean’s 

challenge to be forfeited. Because Dean did not raise this issue in 

his first appeal and we did not consider it, there are no concerns 

here about giving Dean multiple bites at the apple. In fact, as 

Dean notes, we are in a better position to consider the issue in 

this appeal than the prior one, since we can consider the record of 

the Marsden hearing that further supports Dean’s position that 

his counsel did not explain the consequences of the strike 

admission.

Moreover, considering the issue here serves the interests of 

judicial economy. (People v. Butler, supra, 31 Cal.4th at p. 1128.) 

The Attorney General does not dispute that reversal is 

warranted, so refusing to consider the issue now would require 

Dean to file a habeas corpus petition alleging ineffective 

assistance of counsel, to which the Attorney General would 

presumably accede. This would multiply the proceedings without 

changing the substantive result. In the interest of avoiding such 

wasteful effort, we deem it prudent to grant Dean’s challenge 
17

here, notwithstanding Dean. We also note that the Supreme 

Court has held that a defendant cannot forfeit an argument that 

an admission of a sentence-prolonging admission was not 

knowing and voluntary, given that the required admonitions 

serve a prophylactic constitutional purpose. (Cross, supra, 

61 Cal.4th at pp. 171–173.)

IV. Marsden motion

Dean finally argues that the trial court erred when it 

denied his Marsden motion. The trial court denied the motion in 

part because it found that Dean’s counsel could still represent 

Dean at that point in the resentencing proceedings, when the 

only remaining issue concerned the number of credits to which 

Dean was entitled. Because we are remanding for further 

proceedings, this aspect of the trial court’s rationale for denying 

Dean’s motion no longer holds. Accordingly, if Dean renews his 

Marsden motion on remand, the trial court should consider again 

whether Dean’s trial court counsel adequately represented him 

and whether he and Dean have an irreconcilable conflict that 

would substantially impair Dean’s right to assistance of counsel. 

(People v. Smith (2003) 30 Cal.4th 581, 604 [standard for 

Marsden motions].)

DISPOSITION

The true finding on the strike allegation is set aside. The 

matter is remanded for further proceedings not inconsistent with 

this opinion. In all other respects, the judgment is affirmed.

BROWN, P. J.
18

WE CONCUR:

GOLDMAN, J.

SMILEY, J.

People v. Dean (A166863)

 Judge of the Superior Court of California, County of 

Alameda, assigned by the Chief Justice pursuant to article VI, 

section 6 of the California Constitution.
Trial Court: Mendocino County Superior Court

Trial Judge: Hon. Keith Faulder

Counsel: Meredith Fahn, under appointment by the 

Court of Appeal, for Defendant and Appellant.

 

Rob Bonta, Attorney General, Lance E. Winters 

and Jeffrey M. Laurence, Assistant Attorneys 

General, Catherine A. Rivlin, Gregg E. 

Zywicke, Deputy Attorneys General for 

Plaintiff and Respondent.