Filed 1/26/21 P. v. Lara CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ADALBERTO CARILLO LARA,

Defendant and Appellant.

F078337

(Super. Ct. No. 17CMS-0637)

OPINION

APPEAL from a judgment of the Superior Court of Kings County. Donna L. 

Tarter, Judge.

Audrey R. Chavez, 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, Catherine Chatman and Harry 

Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

Defendant Adalberto Carillo Lara was under the influence of alcohol when he ran 

a stop sign at a speed of approximately 70 miles per hour and hit another vehicle, killing 

all three occupants. 

A jury convicted defendant on three counts of second degree murder (Pen. Code, 

§ 187, subd. (a);1 counts 1-3), three counts of gross vehicular manslaughter while 

intoxicated (§ 191.5, subd. (a); counts 4-6), driving under the influence of alcohol and 

causing bodily injury (Veh. Code, § 23153, subd. (a); count 7), and driving with a bloodalcohol content of 0.08 percent or higher and causing bodily injury (Veh. Code, § 23153, 

subd. (b); count 8). As to counts 7 and 8 the jury found defendant had proximately 

caused bodily injury or death (Veh. Code, § 23558), and that his blood-alcohol 

concentration was 0.15 percent or more (Veh. Code, § 23578), and defendant admitted he 

had suffered a prior conviction for driving under the influence within the previous 10

years (Veh. Code, §§ 23152, subd. (b), 23560). He was sentenced to an aggregate term 

of 45 years to life and was ordered to pay a $10,000 restitution fine (§ 1202.4, subd. (b)), 

as well as other fines, fees, and assessments. 

On appeal, he contends there was insufficient evidence of malice to support his 

convictions for second degree murder, and that the fines, fees, and assessments imposed 

by the trial court violate his right to due process because he is unable to pay. 

We find the evidence sufficient to support the convictions. We reject defendant’s 

challenge to the fines, fees, and assessments on various grounds. However, we remand 

for the trial court to correct the sentencing minute order and the abstract of judgment to 

accurately reflect the court’s oral pronouncement of judgment. In all other respects, we 

affirm. 

1 Subsequent statutory references are to the Penal Code, unless otherwise indicated.
3.

FACTS

Defendant sold washing machines and dryers at a “flea market.” On March 27, 

2017, Marcos C.,2 who sold fruits and vegetables in a nearby stall, saw defendant drink 

between one and three Budweiser or Miller beers sometime between 8:30 a.m. and 3:30 

p.m. Around 3:30 p.m., defendant gave Marcos a ride home to Hanford. Defendant told 

Marcos he was going to a friend’s house to build a fence. 

Around 4:00 p.m., defendant arrived at the home of his friend Jose M. in Hanford. 

He assisted Jose with building a fence and remained there for approximately three and a 

half hours. During that time, defendant and Jose each drank two or three 12-ounce 

Budweiser beers.3 Defendant left in his truck at approximately 7:30 p.m. or 8:00 p.m. to 

drive home to Tulare. 

At about 8:30 p.m., defendant was traveling eastbound on Idaho Avenue in his 

Chevrolet pickup truck when he collided with a silver Chevrolet Equinox at the 

intersection of Idaho Avenue and Highway 43. Several other drivers saw the collision or 

its aftermath, and testified to what they saw. 

Anthony S. was driving northbound on Highway 43 with a female passenger when 

he saw defendant’s truck, which was heading east, run the stop sign at the intersection of 

Idaho Avenue and Highway 43 at a speed of approximately 75 to 80 miles per hour.4 

2 Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their 

first names. No disrespect is intended. 

3 At trial, California Highway Patrol (CHP) Officer Lawson testified that, in July 

2017, Julio S. came to the Hanford CHP office and indicated he wished to share 

information regarding the collision. Julio told Lawson that he saw defendant drink two 

or three Budweiser beers at the flea market around noon on the day of the collision. Julio 

reported that he later saw defendant working on a fence with Jose, and saw defendant 

drink two more beers and a glass of clear liquid around 4:30 p.m. At trial, Julio did not 

recall these prior statements and denied seeing defendant that day. 

4 As explained below, there were stop signs on Idaho Avenue in both directions, and 

no stop on Highway 43. 
4.

Defendant’s truck hit the middle of an SUV (sport utility vehicle) that was traveling 

southbound on Highway 43 and knocked it into a field. Both cars flipped and debris 

went everywhere. Defendant’s truck landed on its wheels, while the SUV landed upside 

down. Anthony pulled over and he and his passenger checked on both vehicles. 

Defendant was unresponsive in his truck and appeared to be passed out. His vehicle 

smelled of alcohol. He had a grimace on his face as if from pain. In the SUV, Anthony 

saw a man, woman, and child. The air bags inside the vehicle had deployed. He heard 

someone groaning but could not tell who it was. He tried to open the doors but was 

unable to do so. He spoke with another witness who had arrived after him and had called 

911. At that point, Anthony “freaked out and left.” The following month, he was 

contacted by CHP officers. 

Kevin S. was driving northbound on Highway 43 when he saw a vehicle driving 

eastbound on Idaho Avenue at a speed in excess of 65 miles per hour. He grew 

concerned the vehicle would go through the stop sign at the intersection with 

Highway 43. There was a car in front of Kevin, and Kevin crossed over the center 

divider into the southbound lane to determine whether there were any cars further ahead

on Highway 43. As he did so, the car that had been traveling east on Idaho Avenue failed 

to stop at the stop sign and “the impact happened.” The car in front of Kevin pulled over 

and the occupants attended to the vehicles involved in the collision. Kevin pulled over 

and remained in his car. From there, he saw one person in the driver’s seat of the truck. 

At some point before emergency personnel arrived, the individuals who had been 

traveling in the vehicle in front of Kevin left. After emergency personnel arrived, Kevin 

saw the driver of the truck standing next to the truck, staring at the other vehicle. Kevin 

gave a CHP officer the vehicle license plate information for the vehicle that left the 

scene. 

Brian B. was pulled over facing northbound on Highway 43, about three quarters 

of a mile from the intersection with Idaho Avenue, when he saw a vehicle heading 
5.

eastbound on Idaho Avenue at approximately 70 to 80 miles per hour and thought, 

“[T]hat car is hauling butt.” He then saw headlights “all over the place” and knew there 

had been an accident. He pulled up to the scene and saw someone already on the phone. 

He saw defendant inside the truck and thought he was deceased because there was blood 

coming out of his ears. Brian could not see inside the other vehicle due to the airbags. 

He screamed, “Hello, how many people are in here,” but received no response. He then 

saw defendant crawl out of the truck through the windshield or side window. 

Officer Lawson arrived on scene at approximately 8:40 p.m. Defendant was 

kneeling by the driver side door of his truck, which had extensive front end damage. 

Lawson smelled alcohol on him immediately. Defendant’s speech was slow and slurred, 

and his eyes were red and watery. Lawson asked defendant if he had consumed any 

alcoholic beverages and defendant said no. 

The Equinox was overturned on its roof and had rollover damage to the entire 

vehicle, with a majority of the damage to the right side. The driver of the vehicle, Kristen 

W., appeared to be alive. She was groaning as fire personnel attempted to extricate her 

from the car. The front seat passenger, Alfonso W., and the rear seat passenger, 

Kyan W., appeared to be deceased. Alfonso and Kyan were pronounced deceased shortly 

thereafter and Kristen was transported by helicopter to the hospital but did not survive. 

All three died of blunt force trauma. Kyan, who was 13 years old, had “a very large 

laceration on the left forehead . . . [and] multiple skull fractures,” as well as blood in his 

chest cavity that likely resulted from a torn aorta, and a fractured right femur. Alfonso, 

who was 55 years old, suffered a basilar skull fracture and also had blood in his chest 

cavity. Kristen, who was 44, had blood in her chest cavity, swelling around her eye 

indicative of a fractured orbital wall, and multiple contusions throughout her body. 

At the scene of the collision, Lawson observed that defendant was unsteady on his 

feet, walked in a side to side manner, and stumbled twice as he walked to an ambulance.

Lawson asked again whether defendant had consumed alcohol and defendant said he had 
6.

one beer. When Lawson asked again, defendant said he had two beers at noon. 

Defendant shook his head “no” when asked if he knew how the accident happened. 

Lawson administered field sobriety tests to defendant. On the horizontal gaze 

nystagmus test, defendant’s eyes immediately jerked involuntarily, which would typically 

indicate a blood-alcohol concentration above 0.08 percent. Lawson administered a 

preliminary alcohol screening test, which detected the presence of alcohol. Defendant 

refused to cooperate in the administration of a second test. Lawson formed the opinion 

that defendant “had been operating a vehicle while being under the influence of an 

alcoholic beverage” with a blood-alcohol concentration above 0.08 percent. 

Defendant was transported to the hospital by ambulance. A blood sample was 

taken from defendant at the hospital at 10:49 p.m. on March 27, 2017.

Jessica Winn, a senior criminalist with the California Department of Justice 

Bureau of Forensic Services, analyzed the sample of defendant’s blood that was drawn at 

10:49 p.m., and determined it showed a blood-alcohol content of 0.17 percent. She 

opined that a person with a blood-alcohol concentration between 0.01 and 0.06 percent 

will begin to experience mental impairment, including decreased attention to tasks such 

as driving, decreased judgment, decreased inhibitions, and altered perception of distance, 

speed, and time. Winn explained that a person with a blood-alcohol concentration above 

0.06 percent would also begin to experience physical impairment, including altered 

balance, coordination, vision, hearing, speech, and reaction time. Winn further opined 

that a person with a blood-alcohol concentration of 0.17 percent would experience all of 

these mental impairments, and some, if not all, of these physical impairments. In Winn’s 

opinion, a person with a blood-alcohol content of 0.17 percent is “too impaired to safely 

operate a motor vehicle.” Winn opined that a person with a 0.17 percent blood-alcohol 

content at 10:49 p.m. would have had a 0.21 or 0.22 percent blood-alcohol content at 

8:30 p.m. Such a person may have impaired judgment and increased confidence and, 

based thereon, may not be able to understand whether it is safe for him or her to drive. 
7.

CHP Officer Machado investigated the collision and testified at trial regarding his 

findings. He noted Highway 43 had two lanes of travel, one northbound and one 

southbound, with no traffic controls. Idaho Avenue also had two lanes of travel, one 

eastbound and one westbound, with traffic in both directions controlled by stop signs. 

Stop signs were actually present and unobstructed in both directions on Idaho Avenue at 

the intersection. Additionally, there was a yellow “stop ahead” sign in the eastbound lane 

of Idaho Avenue, approximately 500 feet before the intersection, and the words “stop”

and “ahead” were written in the eastbound lane. The intersection had a faded limit line at 

the intersection and only part of the word “stop” remained on the pavement. Machado 

opined that the Equinox was traveling 54 miles per hour when it was struck on its right 

side by the truck, which was traveling approximately 70 miles per hour, and that the 

driver of the truck caused the collision. 

Outside the presence of the jury, defendant admitted the prior conviction 

allegation (Veh. Code, § 23560) to counts 7 and 8, in that he was convicted on 

August 31, 2016, of driving with a blood-alcohol content greater than 0.08 percent (id.,

§ 23152, subd. (b)) in Kings County Superior Court case No. 16CM-2266. Before the 

jury, the People introduced evidence that defendant pled no contest to that offense on that 

date. The People also presented evidence that defendant initialed the following 

advisement in his change of plea form, and that the advisement was read to him in 

Spanish by a qualified interpreter:

“I understand that being under the influence of alcohol or drugs, or both, 

impairs my ability to safely operate a motor vehicle, and it is extremely 

dangerous to human life to drive while under the influence of alcohol or 

drugs, or both. If I continue to drive while under the influence of alcohol or

drugs, or both, and as a result of my driving, someone is killed, I can be 

charged with murder.” 
8.

Furthermore, the People presented evidence that the court reiterated this potential 

consequence during defendant’s plea colloquy, and that defendant indicated he 

understood. 

The People also presented evidence that defendant was required, as a condition of 

his probation for his prior offense, to complete a nine-month driving under the influence 

of alcohol (DUI) program, to attend four Alcoholics Anonymous (AA) meetings per 

week, and to present in court weekly to demonstrate compliance with the AA meeting 

requirement. Defendant signed a contract with the DUI program and began attending on 

September 12, 2016.5 One of the objectives of the program was to educate participants 

about the effects of alcohol and other drugs and their impact on the individual, family, 

and community, including teaching people not to drink and drive. 

The DUI program required that defendant complete seven educational classes, 22 

group sessions, and 19 individual counseling sessions. Defendant completed all seven

educational classes, which discussed “what drinking and driving could cause,” including 

accidents and death. Defendant completed 11 of the 22 group sessions, and eight of the 

19 individual counseling sessions. On February 15, 2017, defendant was declared out of 

compliance because he exceeded the number of sessions he was allowed to miss. The 

parties stipulated that defendant appeared in court, on the following dates, to show proof 

of his attendance in four AA meetings per week: September 7, 14, 21, and 29, 2016;

October 12 and 19, 2016; November 11, 2016; December 14, 2016; January 25, 2017;

and March 23, 2017. 

The parties stipulated that, on March 27, 2017, defendant weighed 165 pounds, 

was five feet nine inches tall, and was 42 years old. 

Defendant did not present any evidence or testify at trial. 

5 The contract defendant signed was in Spanish. An English language version of the 

contract was also entered into evidence. 
9.

DISCUSSION

I. Evidence of Implied Malice

Defendant contends the evidence of implied malice was insufficient to support a 

conviction for second degree murder. We disagree.

“The test for evaluating a sufficiency of evidence claim is deferential: ‘whether, 

on the entire record, a rational trier of fact could find the defendant guilty beyond a 

reasonable doubt.’ [Citation.] We must ‘view the evidence in the light most favorable to 

the People’ and ‘presume in support of the judgment the existence of every fact the trier 

could reasonably deduce from the evidence.’ [Citation.] We must also ‘accept logical 

inferences that the jury might have drawn from the circumstantial evidence.’ ” (People v. 

Flores (2020) 9 Cal.5th 371, 411.)

To support a finding of implied malice, the evidence must establish that the

defendant deliberately committed an act, the natural consequences of which were 

dangerous to life, with knowledge of its danger to life and a conscious disregard of that 

danger. (People v. Watson (1981) 30 Cal.3d 290, 300 (Watson).) “Phrased in everyday

language, the state of mind of a person who acts with conscious disregard for life is, ‘I 

know my conduct is dangerous to others, but I don’t care if someone is hurt or killed.’ ” 

(People v. Olivas (1985) 172 Cal.App.3d 984, 987-988 (Olivas).) A finding of implied 

malice requires that the defendant actually appreciated the risk involved. (Watson, supra,

at pp. 296-297.) 

Watson is the leading case on vehicular murder involving implied malice. 

(Watson, supra, 30 Cal.3d 290.) There, the defendant drove to a bar and consumed 

“large quantities of beer.” After leaving the bar, he drove through a red light and 

narrowly avoided a collision with another car. He then drove away at high speed, 

accelerating to 84 miles per hour before suddenly braking and skidding into an 

intersection where he collided with another car, killing two people. The defendant’s 

blood-alcohol level one-half hour after the collision was 0.23 percent. An information 
10.

charged him with two counts of second degree murder, but the trial court dismissed the 

murder counts. (Id. at pp. 293-294.)

On the People’s appeal, our Supreme Court reversed the dismissal, holding there 

was sufficient evidence to uphold the second degree murder counts in the information. 

(Watson, supra, 30 Cal.3d at p. 301.) The court cited to the following evidence as 

sufficient to support a finding that the defendant acted with conscious disregard for life: 

the defendant’s blood-alcohol level was sufficient to find him legally intoxicated; he 

drove to the establishment where he was drinking knowing that he had to drive later; he 

was presumed to be aware of the hazards of driving while intoxicated; he drove at high 

speeds on city streets, creating a great risk of harm or death; and he was aware of the risk, 

as shown by the near collision and his belated attempt to brake before the fatal collision. 

(Id. at pp. 300-301.) 

Since Watson, appellate courts have upheld numerous murder convictions in cases 

where defendants have caused death while driving under the influence of alcohol. (E.g.,

People v. Wolfe (2018) 20 Cal.App.5th 673, 679, 680, 683 (Wolfe) [driver had bloodalcohol level of 0.34 percent, was aware of dangers of drinking and driving and had 

previously used a taxi service, drank with intention of driving home, and continued 

driving her damaged vehicle after hitting a pedestrian]; People v. Autry (1995) 37 

Cal.App.4th 351, 358-359 (Autry) [driver had a blood-alcohol level of 0.22 percent, was 

warned of the dangers of drinking and driving, drank and drove throughout the day, had 

three near misses, and continued driving over protests of his passengers]; People v. 

Murray (1990) 225 Cal.App.3d 734, 746-747 [driving wrong way on a freeway with a 

blood-alcohol level between 0.18 and 0.23 percent]; People v. McCarnes (1986) 179 

Cal.App.3d 525, 533 [crossing into oncoming traffic on two-lane highway with a bloodalcohol level of 0.27 percent]; Olivas, supra, 172 Cal.App.3d at p. 989 [extremely 

dangerous driving while under influence of PCP and “negligible” amount of alcohol].) 

These cases have generally relied on some or all the factors that were present in Watson:
11.

“(1) blood-alcohol level above the .08 percent legal limit; (2) a predrinking intent to 

drive; (3) knowledge of the hazards of driving while intoxicated; and (4) highly 

dangerous driving.” (Autry, supra, at p. 358.)

Considering these factors here, there was substantial evidence to support a finding 

of implied malice. There is no question defendant was intoxicated beyond the legal limit. 

His blood-alcohol concentration approximately two hours after the collision was 0.17 

percent, and an expert opined it may have been as high as 0.22 percent at the time of the 

collision. Additionally, defendant had a predrinking intent to drive, inasmuch as he 

consumed several alcoholic beverages at the flea market before driving himself to Jose’s 

home and drinking more.6 

Defendant also drove above the speed limit7 and through a well-marked stop sign 

without braking, conduct that is highly dangerous. A reasonable juror could conclude 

defendant was subjectively aware of the risk of this conduct. (People v. Moore (2010) 

187 Cal.App.4th 937, 941 [“Whether [the defendant] was subjectively aware of the risk is 

best answered by the question: how could he not be? It takes no leap of logic for the jury 

to conclude that because anyone would be aware of the risk, [the defendant] was aware of 

the risk.”].) 

Lastly, and significantly, defendant had knowledge of the hazards of driving while 

intoxicated, including the risk of killing someone and being charged with murder. 

(People v. David (1991) 230 Cal.App.3d 1109, 1115 [“Prior convictions and exposure to 

6 Defendant argues there was no evidence he had a preexisting intent to drink at any 

of the locations he went to on the date of the incident. However the relevant question is 

whether defendant had a predrinking intent to drive, not a preexisting intent to drink. 

(Autry, supra, 37 Cal.App.4th at p. 358.) Defendant drank alcohol, then drove himself to 

Jose’s house, where he drank more before attempting to drive home. The inescapable 

inference is that he drank alcohol, despite knowing he would drive later. (Watson, supra,

30 Cal.3d at pp. 300-301.) 

7 Lawson testified that the speed limit on both Highway 43 and Idaho Avenue was 

55 miles per hour. 
12.

mandatory educational programs are admissible to show the accused’s awareness of the 

life threatening risks of driving under the influence.”].) A reasonable juror could 

conclude that the foregoing factors, taken together, evidence defendant acted with 

conscious disregard for the danger defendant posed to the lives of others on the roadway. 

Defendant nonetheless presents several reasons he believes the evidence of his 

guilt is insubstantial. He points to evidence that he once slept on a trailer on Jose’s 

property, and asserts he may have intended to do so on the night in question, but instead 

chose to drive because he was too highly intoxicated to realize his driving was unsafe. 

Somewhat contrarily, he contends he did not drink an excessive amount of alcohol, 

despite his having an extremely elevated blood-alcohol concentration. He also claims 

there was no evidence the alcohol education programming he received following his prior 

arrest was conducted in Spanish, and that there was no evidence he had caused prior 

accidents or exhibited reckless driving before running the stop sign. 

Certainly, the jury could have considered the above factors in determining whether 

defendant acted with implied malice. However, considering the evidence in the light 

most favorable to the judgment, as we are required to do (People v. Hatch (2000) 22 

Cal.4th 260, 272), we have no difficultly concluding the evidence was sufficient to 

support a finding of implied malice. 

II. Fines, Fees, and Assessments

Although he did not object below, defendant contends the fines, fees, and 

assessments imposed by the trial court violate his right to due process under the Fifth, 

Eighth, and Fourteenth Amendments to the United States Constitution and article I, 

section 15 of the California Constitution because he is unable to pay. He contends the 

matter must be remanded for the trial court to conduct a hearing on his ability to pay, and 

to reset fines and fees in an amount that would not be burdensome in light of his 

indigency. In support, defendant relies on People v. Dueñas (2019) 30 Cal.App.5th 1157 

(Dueñas), and Timbs v. Indiana (2019) 586 U.S. ___ [139 S.Ct. 682] (Timbs), both of 
13.

which were decided after his sentencing hearing. To the extent his arguments are 

forfeited, defendant alleges ineffective assistance of counsel.

A. Additional Factual Background

Because defendant did not argue in the trial court that he was unable to pay, the 

record regarding his financial circumstances is not developed. However, the probation 

officer’s report notes that defendant had six children between the ages of six and 16 years 

old, made approximately $900 per month as an appliance repair person, and earned 

supplemental income in an undisclosed amount selling used appliances. Additionally, as 

defendant points out, he was represented by appointed counsel at trial. 

The trial court imposed a $10,000 restitution fine (§ 1202.4, subd. (b)); a $10,000 

parole revocation fine, stayed pending successful completion of parole (§ 1202.45); a 

$240 court facilities assessment (Gov. Code, § 70373); and a $320 court operations 

assessment (§ 1465.8). Victim restitution was reserved. 

The court also orally imposed a $390 penalty fine without citing to the statutory 

basis for the fine or the count on which it was imposed,8 a $390 state penalty assessment 

(§ 1464), a $78 state surcharge (§ 1465.7, subd. (a)), a $2309 county penalty assessment 

(Gov. Code, § 76000), a $195 court construction penalty assessment (Gov. Code, 

§ 70372), a $4 Emergency Medical Air Transport Act penalty assessment (Gov. Code,

§ 76000.10, subd. (c)(1)), a $39 DNA funding penalty assessment (Gov. Code, 

§ 76104.6), a $156 DNA funding penalty assessment (Gov. Code, § 76104.7), a $100 

alcohol assessment program assessment (Veh. Code, § 23649), a $50 alcohol abuse and 

prevention assessment (Veh. Code, § 23645), and a $10 DMV notification assessment 

8

It appears the fine may have been imposed pursuant to a Vehicle Code section 

23560 enhancement to either count 7 or 8, which mandates imposition of a fine of not 

less than $390. However, sentence on both counts was stayed. 

9 This amount appears to be in error. The statutory county penalty assessment on a 

$390 fine is $273. (Gov. Code, § 76000, subd. (a)(1).) 
14.

(Veh. Code, § 40508.6, subd. (b)). Neither the fine nor the assessments appear in the 

court’s minute order or abstract of judgment.10 

The court is required to delineate all fines, fees, and assessments imposed on each 

count, and the statutory basis for each, in the abstract of judgment and the sentencing 

minute order. (People v. Hamed (2013) 221 Cal.App.4th 928, 937-941; People v. High 

(2004) 119 Cal.App.4th 1192, 1200.) The failure to do so may interfere with the 

Department of Corrections and Rehabilitation’s “statutory duty to collect and forward 

deductions from prisoner wages to the appropriate agency.” (High, at p. 1200.)

Furthermore, to the extent any punitive fines or assessments were imposed in relation to a

count that was stayed, those fines and assessments must also be stayed. (People v. 

Sharret (2011) 191 Cal.App.4th 859, 869-870.) Here, the court’s failure to reduce the 

fine and assessments to writing leaves uncertain the statutory basis for the $390 fine and 

whether that fine and the related assessments are, or must be, stayed. Additionally, the 

omission has resulted in a numerical discrepancy between the oral pronouncement of 

judgment and the sentencing minute order with regard to the sum total financial burden 

imposed on defendant. We will remand for the court to correct the sentencing minute 

order and the abstract of judgment to accurately reflect the fines, fees, and assessments 

imposed by the court.

This error does not materially affect our analysis of defendant’s constitutional 

challenge to the fines, fees, and assessments. 

10 The court’s minute order lists a fine of “$0” on each count, a “Criminal Violation 

Distribution” of $70 on each of counts 1 through 6, a “1st DUI Distribution” of $1,695 on 

count 7, and a “1st DUI Distribution” of $70 on count 8. The sum total of restitution, 

“Criminal Violation Distribution[s],” and “1st DUI Distribution[s]” listed in the minute 

order is $12,185, while the sum total of fines, fees, and assessments orally imposed by 

the court is $12,202. There is no discernable explanation for the discrepancy. 
15.

B. Dueñas

Dueñas held that “due process of law requires the trial court to conduct an ability 

to pay hearing and ascertain a defendant’s present ability to pay” before it imposes any 

fines or fees. (Dueñas, supra, 30 Cal.App.5th at p. 1164; see id. at p. 1167.) This court 

has rejected that contention. (People v. Aviles (2019) 39 Cal.App.5th 1055, 1069 (Aviles) 

[Dueñas “incorrectly relied upon a due process analysis to examine . . . constitutional 

objections to the [trial] court’s imposition of . . . fines, fees, and assessments . . . .”]; 

accord, People v. Lowery (2020) 43 Cal.App.5th 1046, 1056-1057 [due process not 

violated when defendants are not denied access to the courts, are not prohibited from 

presenting a defense, are not incarcerated due to an inability to pay prior fees, fines or 

assessments, do not face ongoing unintended punitive consequences, and do not suffer a 

violation of a fundamental liberty interest].) 

Other courts have declined to extend the holding of Dueñas beyond the unique

facts of that case, which involved an indigent, homeless, mother of two who subsisted on 

public aid while suffering from cerebral palsy (Dueñas, supra, 30 Cal.App.5th at 

pp. 1160-1161), and who accumulated repeated criminal conviction assessments and 

fines in a series of “cascading consequences” stemming from “criminal proceedings 

driven by, and contributing to, [the defendant’s] poverty” (id. at pp. 1163-1164). (See 

People v. Caceres (2019) 39 Cal.App.5th 917, 928-929 [declining to apply Dueñas’s 

“broad holding” beyond its unique facts]; People v. Johnson (2019) 35 Cal.App.5th 134, 

138 [distinguishing Dueñas on its facts].)

Here, we need not consider defendant’s Dueñas-based challenge because 

defendant has forfeited the issue. The court ordered defendant to pay the maximum 

restitution fine of $10,000. (§ 1202.4, subd. (b)(1).) When the court imposes a 

restitution fine greater than the $300 statutory minimum, “[s]ection 1202.4 expressly 

contemplates an objection based on inability to pay.” (People v. Frandsen (2019) 33 

Cal.App.5th 1126, 1153 (Frandsen); accord, Aviles, supra, 39 Cal.App.5th at p. 1073.) 
16.

While Dueñas had not been decided at the time of defendant’s sentencing hearing, 

defendant had the statutory right to object to the $10,000 restitution fine and to 

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; accord, 

Aviles, at pp. 1073-1074; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 

(Gutierrez) [“[E]ven before Dueñas a defendant had every incentive to object to

imposition of a maximum restitution fine based on inability to pay because governing law 

as reflected in the statute [citation] expressly permitted such a challenge.”].) Similarly, 

the court had a statutory duty to determine whether defendant had the ability to pay the 

$100 alcohol assessment program assessment (Veh. Code, § 23649, subd. (b)), and the 

$50 alcohol abuse and prevention assessment (id., § 23645, subd. (c)), and we presume 

that it did so. Defendant’s failure to object in the trial court forfeits his challenge to these 

fines and assessments. 

The remaining fines, fees, and assessments are mandatory, and defendant lacked 

the statutory right to object based on ability to pay. Nonetheless, he forfeited the right to 

object to these assessments as a practical matter. Having chosen not to object to the 

$10,000 restitution fine or the $150 in alcohol-related assessments based on inability to 

pay, “he surely would not complain on similar grounds” regarding less than $2,000 in 

additional assessments. (Gutierrez, supra, 35 Cal.App.5th at p. 1033.) Furthermore, 

although the fees and assessments were mandatory, nothing in the record of the 

sentencing hearing indicates that defendant was foreclosed from challenging these 

assessments in the trial court in the first instance. (Aviles, supra, 39 Cal.App.5th at 

p. 1074; Frandsen, supra, 33 Cal.App.5th at p. 1154.) “[D]efendant plainly could have 

made a record had his ability to pay actually been an issue. Indeed, [he] was obligated to 

create a record showing his inability to pay the . . . restitution fine, which would have 

served to also address his ability to pay the assessments.” (Frandsen, at p. 1154; accord,

Aviles, at p. 1074.)
17.

Defendant asserts that, if we find forfeiture, his trial counsel was ineffective for 

failing to object to the imposition of fines and fees based on an inability to pay. 

Defendant bears the burden of demonstrating ineffective assistance of counsel. (People 

v. Mickel (2016) 2 Cal.5th 181, 198.) “ ‘[A] defendant claiming a violation of the federal 

constitutional right to effective assistance of counsel must satisfy a two-pronged 

showing: that counsel’s performance was deficient, and that the defendant was 

prejudiced, that is, there is a reasonable probability the outcome would have been 

different were it not for the deficient performance.’ [Citation.] Rarely is ineffective 

assistance of counsel established on appeal since the record usually sheds no light on 

counsel’s reasons for action or inaction.” (People v. Woodruff (2018) 5 Cal.5th 697, 

736.) In determining whether counsel’s performance was deficient, we consider whether 

“ ‘ “ ‘counsel’s representation fell below an objective standard of reasonableness under 

prevailing professional norms.’ ” ’ ” (People v. Johnson (2016) 62 Cal.4th 600, 653.) 

Reversal is permitted “ ‘only if (1) the record affirmatively discloses counsel had no 

rational tactical purpose for the challenged act or omission, (2) counsel was asked for a 

reason and failed to provide one, or (3) there simply could be no satisfactory 

explanation.’ ” (People v. Arredondo (2019) 8 Cal.5th 694, 711.) 

We cannot say trial counsel had no conceivable tactical purpose for not requesting 

an ability to pay hearing. The record reflects defendant was 44 years old at the time of 

sentencing and was employed and had a side business earning an undetermined amount at 

the time he committed the offenses. It is conceivable counsel concluded defendant would 

have been able to pay his fines and fees over time. (Aviles, supra, 39 Cal.App.5th at 

pp. 1075-1077.) The record does not affirmatively exclude a rational basis for trial 

counsel’s choice. Defendant has failed to establish ineffective assistance of counsel.

Finally, even if defendant did not forfeit the issue, any error under Dueñas is

necessarily harmless since defendant has the ability to make payment on the fines, fees, 

and assessments over the course of his long prison sentence. (Aviles, supra, 39 
18.

Cal.App.5th at pp. 1075-1077.) “While it may take defendant some time to pay the 

amounts imposed in this case, that circumstance does not support his inability to make 

payments on these amounts from either prison wages or monetary gifts from family and 

friends during his lengthy prison sentence.” (Id. at p. 1077.) As defendant points out, it 

is possible he will not extinguish his debt while incarcerated. However, his prior 

employment history suggests he will be able to continue making payments on any 

remaining debt if and when he is released. 

C. Timbs

The Eighth Amendment to the United States Constitution states: “Excessive bail 

shall not be required, nor excessive fines imposed, nor cruel and unusual punishments 

inflicted.”11 Timbs held that the Eighth Amendment’s “excessive fines” clause was 

incorporated into the Fourteenth Amendment’s due process clause, and therefore applies 

to the states. (Timbs, supra, 139 S.Ct. at pp. 686-687.) We agree with defendant’s 

implicit argument that an Eighth Amendment analysis is appropriate to determine 

whether punitive fines, fees, and assessments in a particular case are excessive. (Aviles, 

supra, 39 Cal.App.5th at pp. 1069-1071.) 

“We may review de novo whether a fine is excessive under the Eighth 

Amendment.” (Aviles, supra, 39 Cal.App.5th at p. 1072.) “The touchstone of the 

constitutional inquiry under the Excessive Fines Clause is the principle of 

proportionality: The amount of the forfeiture must bear some relationship to the gravity 

of the offense that it is designed to punish. [Citations.] . . . [A] punitive forfeiture 

violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a 

defendant’s offense.” (United States v. Bajakajian (1998) 524 U.S. 321, 334; accord, 

11 Article I, section 17 of the California Constitution similarly provides: “Cruel or 

unusual punishment may not be inflicted or excessive fines imposed.” Defendant does 

not cite article I, section 17 in his briefing. 
19.

People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728

(Lockyer); see Timbs, supra, 139 S.Ct. at pp. 688-689.) 

Federal circuit courts are divided on the question of whether ability to pay is 

relevant to the excessive fines analysis. (E.g., U.S. v. Viloski (2d Cir. 2016) 814 F.3d 

104, 111 [ability to pay is relevant to the proportionality inquiry]; U.S. v. Levesque (1st 

Cir. 2008) 546 F.3d 78, 83-85 [ability to pay should be considered, in addition to 

proportionality inquiry]; U.S. v. Dubose (9th Cir. 1998) 146 F.3d 1141, 1145-1146

[ability to pay has no bearing on analysis].) The United States Supreme Court has left 

this question open (see Timbs, supra, 139 S.Ct. at p. 688), but has noted the Eighth 

Amendment’s historical roots in prohibitions against monetary penalties that are “ ‘so 

large as to deprive [the defendant] of his livelihood’ ” (Timbs, at p. 688). This history has 

been interpreted to prohibit fines that are “ruinous,” or that affect the defendant’s “future 

ability to earn a living.” (Levesque, at pp. 84-85; accord, Viloski, at p. 111.) Meanwhile, 

our Supreme Court has concluded that ability to pay is relevant, and that the following 

should be considered in determining whether a fine is excessive for purposes of the 

Eighth Amendment: “(1) the defendant’s culpability; (2) the relationship between the 

harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the 

defendant’s ability to pay.” (Lockyer, supra, 37 Cal.4th at p. 728.) 

Here, defendant does not argue that approximately $12,000 in fines, fees, and 

assessments are grossly disproportionate in light of his culpability and the harm he 

caused in driving with an elevated blood-alcohol level and murdering a family of three. 

And, the record does not suggest these monetary penalties are ruinous or are so large as 

to deprive him of his livelihood. (Timbs, supra, 139 S.Ct. at p. 688.) Accordingly, the 

fines, fees, and assessments are not excessive under the Eighth Amendment.

DISPOSITION

The matter is remanded for the court to correct the sentencing minute order and 

the abstract of judgment to accurately reflect the fines, fees, and assessments imposed by 
20.

the trial court. The court shall forward a copy of the corrected abstract of judgment to the 

appropriate authorities. In all other respects, the judgment is affirmed. 

DETJEN, J.

WE CONCUR:

HILL, P.J.

SNAUFFER, J.