Filed 12/3/21 P. v. Ham CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT CARL HAM,

Defendant and Appellant.

 B312245

 (Los Angeles County

 Super. Ct. No. MA062771)

THE COURT:

In 2015, Robert Carl Ham (appellant) was convicted in a 

jury trial of five counts of committing a lewd act with a child 

under age 14 (Pen. Code, § 288, subd. (a); counts 1 and 3-6),1 one 

count of continuous sexual abuse of a child under age 14 (§ 288.5, 

subd. (a); count 2), one count of committing a forcible lewd act 

with a child under age 14 (§ 288, subd. (b)(1); count 7), one count 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.
2

of rape by means of force, violence, duress, menace, or fear of 

bodily injury (§ 261, subd. (a)(2); count 8), one count of furnishing 

marijuana to a minor under age 14 (Health & Saf. Code, § 11361, 

subd. (a); count 10), and one count of committing a lewd act with 

a child who is 14 or 15 years old when the perpetrator is at least 

10 years older (§ 288, subd. (c)(1); count 11). The jury found true 

allegations that appellant committed an offense specified in 

section 667.61, subdivision (c) against more than one victim for 

purposes of section 667.61, subdivisions (b) and (e)(4). On counts 

1 through 8, the trial court sentenced appellant to state prison for 

eight consecutive terms of 15 years to life. However, the sentence 

on count 7 was stayed pursuant to section 654. Regarding count 

10, the trial court sentenced appellant to a consecutive 

determinate term of five years. As to count 11, the trial court 

sentenced appellant to a consecutive determinate term of eight 

months.

The parties stipulated that appellant would pay $3,288 to 

C.B.2 The trial court advised him that he had the right to a 

restitution hearing to determine the amount owed. He waived 

that right and verbally agreed to pay $3,288 as already 

stipulated. On the heels of that, the trial court informed

appellant that he was ordered to pay a restitution fund fine of 

$10,000,3 $400 in court security fees, $300 in criminal conviction 

2 C.B. was a witness for the prosecution. She was not a 

victim of appellant’s crimes. (See People v. Ham (Jan. 10, 2017, 

B267322) [nonpub. opn.] (Ham).)

3 Section 1202.4, subdivision (b)(1) provides that a 

restitution fine “shall be set at the discretion of the court and 

commensurate with the seriousness of the offense. If the person 

is convicted of a felony, the fine shall not be less than three 
3

fees, and a $200 sex offender fine. He was advised of his right to 

appeal from the judgment.

Appellant filed an appeal in which he raised a variety of 

challenges but did not challenge any of the fines or fees. We 

affirmed the judgment in Ham.

On March 8, 2021, appellant filed a petition for writ of 

habeas corpus and argued that the trial court violated his 

Fourteenth Amendment right to Due Process because he was not 

afforded a restitution hearing in accordance with section 1202.4, 

subdivision (f)(1) to contest the restitution and fines imposed on 

him. In addition, he argued that he received ineffective 

assistance of counsel during sentencing because his attorney 

stipulated to restitution in the amount of $3,288 to C.B., and 

because he failed to argue that appellant lacked the ability to pay 

the restitution or fines.

The trial court denied the petition. It noted that the 

appellant had been advised of his right to a restitution hearing, 

and that he gave up that right. Further, the trial court stated: 

“In addition, [appellant’s] claim of error is in part based on the 

faulty premise that, before imposing sentence, the [trial court] 

failed to consider his ability to pay. In fact, because the 

sentencing judge impose[d] a restitution fine above the statutory 

minimum, the statutory scheme expressly permitted the judge to 

take [appellant’s] ability to pay into account in setting the fine. 

(See § 1202.4, subd. (c).) Because, in imposing [a] victim 

restitution fund fine, the trial court is not limited to a 

consideration of a defendant’s present ability to pay, but also may 

hundred dollars ($300) and not more than ten thousand dollars 

($10,000).”
4

consider a defendant’s ability to pay in the future [citation],

including [appellant’s] ability to obtain prison wages [citation], 

the restitution order appears appropriate based on the nature of 

the crimes committed and the indeterminate sentence imposed. 

[Citation.]”

The trial court’s order was not appealable. (See People v. 

Torres (2020) 44 Cal.App.5th 1081, 1083 (Torres) [denial of a 

motion to reduce a restitution fine based on inability to pay not 

appealable because it was filed after the conclusion of defendant’s 

direct appeal]; People v. Garrett (1998) 67 Cal.App.4th 1419, 

1421–1422 [denial of a habeas petition not appealable; when a 

habeas petition is denied, the remedy is to file an original habeas 

petition in the Court of Appeal].)

As a reviewing court, we have the discretion to treat an 

appeal as an original habeas petition. (People v. Segura (2008) 44 

Cal.4th 921, 928, fn. 4.) The question is whether we should 

exercise that discretion here. 

Habeas is a “‘proper remedy in this state to collaterally 

attack a judgment of conviction which has been obtained in 

violation of fundamental constitutional rights. [Citations.]’” (In 

re Harris (1993) 5 Cal.4th 813, 825.) A habeas petition is timely 

only if it was filed within a reasonable time. (Robinson v. Lewis 

(2020) 9 Cal.5th 883, 892.) 

In the letter brief that appellant filed in the Court of 

Appeal,4 he argues: (1) his rights were violated based on People 

v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) because the trial 

court did not inquire as to whether he had the ability to pay; and 

(2) his claim was not forfeited because Dueñas was an 

unforeseeable change in the law. 

4 Appointed counsel filed a no merit brief.
5

Given that Dueñas was decided almost three years ago and 

appellant is only raising the issue now, we conclude that his 

habeas petition is not timely. Moreover, Dueñas was wrongly 

decided because due process does not require a trial court to 

determine ability to pay before imposing fines on a defendant. 

(People v. Hicks (2019) 40 Cal.App.5th 320, 322, 329, review 

granted Nov. 26, 2019, S258946.) Thus, appellant’s Dueñas

based due process arguments lack merit. In any event, appellant 

was advised of his right to a restitution hearing and he waived 

that right. This is not the case in which the judgment was 

obtained in violation of appellant’s fundamental constitutional 

rights.

We conclude that this is not an appropriate case to treat 

appellant’s appeal as an original petition for writ of habeas 

corpus. Because the order denying appellant’s petition for writ of 

habeas corpus in the trial court was not appealable on multiple 

grounds, this appeal must be dismissed. (Torres, supra, 44 

Cal.App.5th at pp. 1083–1084.)

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________________________________________

LUI, P. J. ASHMANN-GERST, J. CHAVEZ, J.