Filed 4/29/16 P. v. Lozano CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

PETER LOZANO,

Defendant and Appellant.

 B266357

 (Los Angeles County

 Super. Ct. No. KA108404)

APPEAL from a judgment of the Superior Court of Los Angeles County. Wade 

Olson, Judge. Affirmed.

______

California Appellate Project, Jonathan Steiner, Executive Director, and Jennifer 

Hansen, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and 

Nathan Guttman, Deputy Attorneys General, for Plaintiff and Respondent.

______
2

An information charged defendant Peter Lozano with one count of second 

degree robbery and alleged certain recidivism enhancements, including a strike prior. 

(Pen. Code, §§ 211;

1

667, subds. (a) & (b)-(i); 1170.12; 667.5, subds. (a)(1) & (b).) 

Pursuant to a plea bargain, defendant pleaded no contest to the robbery count and 

admitted the strike prior, and the court sentenced him to four years in prison. The court 

also imposed certain fines and assessments, including a crime prevention program fine in 

the amount of $10 pursuant to section 1202.5, to which the court added $29 in penalty 

assessments and $2 surcharge (section 1202.5 fine).2 The court made no express finding 

as to defendant’s ability to pay the section 1202.5 fine, and defendant did not object to 

any of the fines or assessments.

On appeal, defendant contends that the court erred by failing to consider 

defendant’s financial situation before imposing the section 1202.5 fine and, if he forfeited 

this argument by failing to raise it below, he was thereby deprived of the effective 

assistance of counsel. We conclude that the first argument has been forfeited and that 

defendant has failed to establish that his attorney was constitutionally deficient.

DISCUSSION

Section 1202.5 provides that when a defendant is convicted of robbery and other 

enumerated offenses, “the court shall order the defendant to pay a fine of ten dollars 

($10) in addition to any other penalty or fine imposed. If the court determines that the 

defendant has the ability to pay all or part of the fine, the court shall set the amount to 

be reimbursed and order the defendant to pay that sum to the county in the manner in 

which the court believes reasonable and compatible with the defendant’s financial ability. 

In making a determination of whether a defendant has the ability to pay, the court shall 

 

1 All subsequent statutory references are to the Penal Code unless otherwise 

indicated. 

2 As defendant notes, although the record of the sentencing hearing indicates a $41 

section 1202.5 fine, the abstract of judgment states that the fine is $39. Defense counsel 

expressly waived the recitation of statutes upon which the court based the $29 in penalty 

assessments.
3

take into account the amount of any other fine imposed upon the defendant and any 

amount the defendant has been ordered to pay in restitution.” (§ 1202.5, subd. (a).) 

Initially, we reject the Attorney General’s suggestion that the trial court need 

not determine whether the defendant has the ability to pay the fine even if the defendant 

raises the issue in that court. According to the Attorney General, although the first 

sentence of the statute imposes a mandatory duty to impose the fine, the use of the 

conditional word “[i]f” in the second sentence means that the court is permitted, but not 

required, to consider a defendant’s ability to pay it. We disagree and construe the “if”

clause to mean that the court can determine either that the defendant has the ability to pay 

the fine or does not have the ability to pay the fine; not that it may decline to determine 

the matter at all. (See People v. Castellanos (2009) 175 Cal.App.4th 1524, 1531 [under 

section 1202.5, “the trial court must decide whether to impose” the full fine, a lesser 

amount, or none at all].) So construed, the failure to make a determination of the 

defendant’s ability to pay is error.

“ ‘Ordinarily, a criminal defendant who does not challenge an assertedly erroneous 

ruling of the trial court in that court has forfeited his or her right to raise the claim on 

appeal.’ [Citation.]” (People v. McCullough (2013) 56 Cal.4th 589, 593 (McCullough).) 

This forfeiture rule applies to sentencing issues when, as a result of the defendant’s 

failure to object, alleged factual errors were not raised or developed in the record. 

(Id. at p. 594.)

In People v. Crittle (2007) 154 Cal.App.4th 368, the court made no finding of the 

defendant’s ability to pay the section 1202.5 fine and the record included no evidence of 

his ability to pay it. The Court of Appeal held that the defendant forfeited any claim of 

error by failing to object to the ruling below. (Id. at p. 371.) Crittle relied on People v. 

Gibson (1994) 27 Cal.App.4th 1466, which applied the forfeiture rule where the 

defendant failed to object to $2,200 in restitution fines based on his inability to pay. 

The Gibson court explained: “[T]he need for orderly and efficient administration of the 

law—i.e., considerations of judicial economy—demand that defendant’s failure to object 

in the trial court to imposition of the restitution fine should preclude him from contesting 
4

the fine on appeal. [Citations.] . . . Requiring the defendant to object to the fine in 

the sentencing court if he or she believes it is invalid places no undue burden on the 

defendant and ensures that the sentencing court will have an opportunity to correct any 

mistake that might exist, thereby obviating the need for an appeal. Conversely, allowing 

the defendant to belatedly challenge a restitution fine in the absence of an objection in the 

sentencing court results in the undue consumption of scarce judicial resources and an 

unjustifiable expenditure of taxpayer monies. It requires, in almost all cases, the 

appointment of counsel for the defendant at taxpayers’ expense and the expenditure of 

time and resources by the Attorney General to respond to alleged errors which could have 

been corrected in the trial court had an objection been made. Moreover, it adds to the 

already burgeoning caseloads of appellate courts and unnecessarily requires the costly 

depletion of appellate court resources to address purported errors which could have been 

rectified in the trial court had an objection been made. This needless consumption of 

resources and taxpayer dollars is unacceptable, particularly since it greatly exceeds the 

amount of the fine at issue. Statewide, taxpayers are spending hundreds of thousands of 

dollars on challenges to relatively minuscule restitution fines.” (Id. at p. 1469; see also 

People v. Knightbent (2010) 186 Cal.App.4th 1105, 1112 [where the defendant did not 

raise her ability to pay a $34 section 1202.5 fine, “neither justice nor common sense 

justifies further expense to conduct a hearing on defendant’s ability to pay, absent any 

indication that she lacks the ability to pay”].) 

After Crittle, our Supreme Court applied the forfeiture rule in two cases where 

the defendant failed to object to fees and fines imposed at the sentencing hearing: 

McCullough, supra, 56 Cal.4th 589 and People v. Trujillo (2015) 60 Cal.4th 850 

(Trujillo). In McCullough, the defendant failed to object to the imposition of a $270.17

booking fee, which the court could impose “ ‘[i]f the person has the ability to pay.’ ” 

(McCullough, supra, at p. 592, quoting Gov. Code, § 29550.2, subd. (a).)3 The court 

 

3 Government Code section 29550.2, subdivision (a) provides: “Any person booked 

into a county jail pursuant to any arrest . . . is subject to a criminal justice administration 

fee for administration costs incurred in conjunction with the arresting and booking if the 
5

stated that, “because a court’s imposition of a booking fee is confined to factual 

determinations, a defendant who fails to challenge the sufficiency of the evidence 

at the proceeding when the fee is imposed may not raise the challenge on appeal.”

(McCullough, supra, at p. 597.) This is true even though “the People [have] the burden 

of proving a defendant’s ability to pay a booking fee.” (Id. at p. 598.) The court 

observed that the rationale for forfeiture is “particularly strong” where the fee is 

“de minimis and [the Legislature] has interposed no procedural safeguards or guidelines 

for its imposition.” (Id. at p. 599.) 

The McCullough court left open the question whether its holding applied to other 

fees and fines where the statute provided “procedural requirements or guidelines for 

the ability-to-pay determination.” (McCullough, supra, 56 Cal.4th at p. 598.) Among 

examples of such statutes, the court referred to Health and Safety Code section 11372.7, 

which imposes a “drug program fee if it ‘is reasonable and compatible with the person’s 

financial ability,’ including the financial impact of ‘any fine imposed upon that person 

and any amount that person has been ordered to pay in restitution.’ ” (Id. at p. 599, 

quoting Health & Saf. Code, § 11372.7, subd. (b).) As a result, there remained a question 

after McCullough whether the forfeiture rule applied to fines imposed under Health and 

Safety Code section 11372.7. Because the pertinent language in that statute is also used 

in section 1202.5, the same question existed as to fines imposed under section 1202.5. 

In Trujillo, the Supreme Court addressed the question it left open in McCullough. 

The defendant in Trujillo made no objection when the trial court imposed a presentence 

 

person is convicted of any criminal offense relating to the arrest and booking. The fee 

which the county is entitled to recover pursuant to this subdivision shall not exceed 

the actual administrative costs, . . . incurred in booking or otherwise processing arrested 

persons. If the person has the ability to pay, a judgment of conviction shall contain 

an order for payment of the amount of the criminal justice administration fee by the 

convicted person, and execution shall be issued on the order in the same manner as a 

judgment in a civil action, but the order shall not be enforceable by contempt. The court 

shall, as a condition of probation, order the convicted person to reimburse the county for 

the criminal justice administration fee.”
6

investigation fee and a probation supervision fee pursuant to section 1203.1b. (Trujillo, 

supra, 60 Cal.4th at pp. 854-855.) Under that statute, the trial court must order the 

defendant to appear before a probation officer, who then determines the defendant’s 

ability to pay all or a portion of the costs of probation supervision and the preparation of 

a presentence report. In making that determination, the probation officer must take into 

account any amount the defendant is ordered to pay in fines, assessments, and restitution. 

The probation officer must also inform the defendant that he or she is entitled to counsel 

and a hearing to determine the defendant’s ability to pay. The defendant can waive 

that hearing “ ‘by a knowing and intelligent waiver.’ ” (Id. at p. 855, quoting § 1203.1b, 

subd. (a).) If, as in Trujillo, the defendant does not waive the hearing, the court must 

schedule a hearing and determine the amount of the reasonable costs the defendant has 

the ability to pay. (Trujillo, supra, 60 Cal.4th at p. 855.) 

At the sentencing hearing in Trujillo, the trial court imposed the challenged fees 

based on the probation officer’s report without any objection by the defendant. (Trujillo, 

supra, 60 Cal.4th at p. 855.) On appeal, the defendant argued that the court erred by 

failing to determine her ability to pay. (Id. at p. 854.) She asserted that McCullough

did not apply because section 1203.1b includes procedural safeguards not present in the 

booking fee statute at issue in McCullough. (Id. at p. 858.) The Trujillo court rejected 

this argument, holding that the forfeiture rule applied even though the statute includes 

“procedural safeguards . . . such as the right to counsel and to present evidence and 

argument.” (Ibid.) Because “ ‘counsel is charged with understanding, advocating, and 

clarifying permissible sentencing choices at the hearing’ ” and “ ‘[r]outine defects . . . are 

easily prevented and corrected if called to the court’s attention,’ ” it “is appropriate” “to 

place the burden on the defendant to assert noncompliance with section 1203.1b in the 

trial court as a prerequisite to challenging the imposition of probation costs on appeal.” 

(Trujillo, supra, 60 Cal.4th at p. 858.) 

Although neither McCullough nor Trujillo addressed section 1202.5, together 

they support the application of the forfeiture rule here. Defendant’s section 1202.5 

fine—a total of $41—is significantly less than the booking fee the McCullough court 
7

described as “de minimus.” (McCullough, supra, 56 Cal.4th at p. 599) To the extent that 

section 1202.5 includes “guidelines” concerning the ability to pay that arguably place 

the statute beyond the reach of McCullough’s holding, the statute is well within the 

broader scope of Trujillo, which applied the forfeiture rule to a statute with “procedural 

safeguards” greater than section 1202.5. Moreover, all the reasons cited by McCullough, 

Trujillo, and Gibson for the forfeiture rule—fairness to the trial court, encouraging parties 

to bring errors to the attention of the trial court for prompt correction, development of 

a record, and judicial economy—support the application of the rule here. If defendant 

believed he did not have the ability to pay the de minimus section 1202.5 fine, he could 

have raised it at the sentencing hearing, which would have prompted the trial court to 

receive evidence and make the required finding. If the court then found that defendant 

was not able to pay the fine, this appeal would have been unnecessary. If, on the other 

hand, the court found that defendant did have the ability to pay and imposed the fine, 

we would have a record for evaluating the correctness of the ruling. By failing to 

raise the issue below, the defendant has prevented the court from correcting any error, 

deprived us of a proper record, and impeded the “orderly and efficient administration of 

the law.” (See Gibson, supra, 27 Cal.App.4th at p. 1469.) It is thus appropriate to apply 

the forfeiture rule in this case. 

Defendant argues that Trujillo is distinguishable because section 1203.1b allows a 

defendant to obtain in the trial court posthearing review of the ability to pay. Indeed, as 

the Trujillo court observed, a defendant who fails to raise the ability to pay issue at the 

sentencing hearing “is not wholly without recourse” because the statute permits the trial 

court to hold additional hearings during the probationary period to review the defendant’s 

ability to pay based on “ ‘a change of circumstances.’ ” (Trujillo, supra, 60 Cal.4th 

at pp. 860-861; see also People v. Aguilar (2015) 60 Cal.4th 862, 868.) Although the 

Trujillo court pointed to this aspect of section 1203.1b for further support, it does not 

appear from the opinion that it is essential to the court’s holding, and it does not alter 

our conclusion. 
8

We also reject defendant’s argument that his counsel’s failure to assert an 

objection to the section 1202.5 fine deprived him of his constitutional right to the 

effective assistance of counsel. To establish a claim of ineffective assistance, the 

defendant must show that his counsel’s performance “fell below an objective standard 

of reasonableness” evaluated “under prevailing professional norms.” (Strickland v. 

Washington (1984) 466 U.S. 668, 688; accord, People v. Ledesma (1987) 43 Cal.3d 

171, 216 (Ledesma).) If defendant establishes that counsel’s performance was deficient, 

he is entitled to relief only if he also establishes that he was prejudiced by counsel’s 

dereliction. (Strickland v. Washington, supra, 466 U.S. at pp. 691-692; accord, Ledesma, 

supra, 43 Cal.3d at p. 217.) In order to show prejudice, “[t]he defendant must show that 

there is a reasonable probability that, but for counsel’s unprofessional errors, the result 

of the proceeding would have been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” (Strickland v. Washington, supra, 

at p. 694.) The defendant bears the burden of proof on these issues by a preponderance 

of the evidence. (Ledesma, supra, at p. 218.)

“[W]hen the reasons for counsel’s actions are not readily apparent in the record, 

we will not assume constitutionally inadequate representation and reverse a conviction 

unless the appellate record discloses ‘ “no conceivable tactical purpose” ’ for counsel’s 

act or omission.” (People v. Lewis (2001) 25 Cal.4th 610, 674-675.) Here, the record 

does not indicate why defendant’s counsel failed to object to the imposition of the 

section 1202.5 fine. It is possible, however, that counsel was silent because she had 

knowledge that defendant had the ability to pay the fine and that any hearing on the 

issue would have established that fact. (See People v. Price (1991) 1 Cal.4th 324, 387

[counsel does not render ineffective assistance by failing to make motions or objections 

that counsel reasonably determines would be futile].) Alternatively, counsel might well 

have thought it unwise to raise so trivial an issue. Moreover, because defendant has not 

established that he did not have the ability to pay the fine, he has not shown that the 

result of the proceeding would have been different if counsel asserted an objection. 

We therefore reject his ineffective assistance claim. 
9

DISPOSITION

The judgment is affirmed. 

ROTHSCHILD, P. J.

We concur:

JOHNSON, J.

LUI, J.