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Filed 9/13/24 P. v. Wilson CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent,

v. D ARRYEAL WOODROW WILSON , Defendant and Appellant. A 168533

( Napa County Super. Ct. No. 2 3 CR00 09 43 )

Darryeal Woodrow Wilson pleaded no contest to failure to provide information as a transient sex offender ( Pen. Code , § 290.011 , subd. (d)) 1 with a prior felony under the Three Strikes law ( § 667 , subds. (b)

– (i)) and was sentenced accordingly

. He claims the trial court erred by failing to dismiss his prior strike , under section 1385, subdivision (c) , and to determine his ability to pay before imposing certain fees and fines. These claims are forfeited , and they fail all the same

. Wilson’s related claims that his trial
counsel rendered ineffective assistance are unavailing

. We affirm the judgment.

1 Unless otherwise stated, all statutory citations herein are to the Penal Code.2 FACT U AL AND PROCEDURAL BACKGROUND In 2003, a jury convicted Wilson of four counts of committing lewd acts
with his six

- year
- old niece ( § 288 , subd. (a))

. He was sentenced to 14 years in prison

. Following several appeals, we affirmed the judgment. Later , Wilson

was twice convicted of failure to re gister as a sex offender ( §§ 290.018 , subd. (b) , 290.011, subd. (a) ) ; we affirmed

. In 202 2 , Wilson was unhoused , or transient

. ( § 290.011 , subd. (g).) He failed to provide current information about where he slept and spent his
time , as transient sex offenders must do. ( § 290.011 , subd. (d) .) The People charged Wilson with felony failure to provide information ( ibid. ) and alleged
h is 2003 conviction was a prior strike ( § 667 , subds. (b)

– (i))

. Per an agreement with the People, Wilson pleaded no contest to the failure to provide information charge and admitted the strike allegation. He
asked the trial court to dismiss the prior strike pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 , which the court declined to do

. The
trial court sentenced Wilson to two years and eight months in prison and imposed fines and fees totaling $370.
DISCUSSION
I. Section 1385, Subdivision (c).
Wilson claims the trial court erroneously failed to consider whether to dismiss his strike per section 1385, subdivision (c) , which requires a court to dismiss “an enhancement” if it furthers justice, “afford[ing] great weight” to specified mitigating circumstances. ( § 1385 , subd. (c) (1), (2).) Wilson forfeited this argument by failing to seek dismissal under section 1385, subdivision (c) during sentencing

. ( See People v. Scott (1994)
9 Cal.4th 331, 356 [complaints about trial court’s exercise of s entencing
discretion cannot be raised for the first time on appeal].) Wilson argues the3

trial court had a mandatory duty to consider such dismissal and grant it if
warranted . However, case law holds the court maintains discretion in this regard and the issue may be forfeited . ( People v. Coleman (2024) 98 Cal.App.5th 709, 723

– 724 , fn. 8 .) Wilson’s argument also fails on the merits. I n People v. Burke (2023) 89 Cal.App.5th 237 , 242

– 244 , and People v. Tilley (2023) 92 Cal.App.5th 772 , 776, fn. 2 , the Court of Appeal for the Third Appellate District determined section 1385, subdivision (c) does not apply to prior strikes because the T hree
S trikes law is an alternative sentencing scheme, not an enhancement. This
division held the same in People v. Olay (2023) 98 Cal.App.5th 60 , 64

– 69 ( Olay )

. Wilson contends Burke and Tilley were wrongly decided and do not address the arguments raised in his appellate brief. However, Olay does address Wilson’s arguments, both with regard to legislative history ( Olay, supra , 98 Cal.App. 5th at pp. 67

– 69) and with regard to statutory language addressing prior juvenile adjudications and initiative statutes ( Olay , at pp. 66

– 68, fns. 7

– 8) . We find no reason to part with Olay on any of these points.
Because section 1385, subdivision (c) does not apply to prior strikes, Wilson’s counsel did not provide ineffective assistance by failing to raise this provision

. (See People v. Price (1991) 1 Cal.4th 324, 386

– 387 [failure to make
an unmeritorious or futile motion does not constitute ineffective assistance of counsel].)
II. Ability to Pay Fines and Fees

. Wilson claims the trial court violated his right to due process under the United States and California Constitutions by imposing $370 in fines and
fees under Penal Code sections 1202.4 and 1465.8 and Government Code4

section 70373 without determining he wa s able to pay. He relies on People v.
Due ñ as (2019) 30 Cal.App.5th 1157, 1164 ( Due ñ as ) , which held due process requires an ability to pay hearing before such fines and assessments are imposed

. Wilson forfeited this argument. “Once case law exists holding that a hearing on ability to pay is constitutionally required when requested, a defendant who does not object or ask for a hearing forfeits the claim of error.” ( People v. Evers (2023) 97 Cal.App.5th 551, 556.) Wilson was sentenced in
2023 , years after Dueñas was decided. He concedes he did not raise his asserted inability to pay at sentencing

. Wilson relies on inapposite authorities to argue against forfeiture

. Contrary to Wi l son’s argument, his claim self

- evidently depends on factual findings concerning his ability to pay and may thus be forfeited. ( See In re
Sheena K. (2007) 40 Cal.4th 875, 887 .) We agree with Evers and other
authorities that find forfeiture in this context. (See People v. Ramirez (2023) 98 Cal.App.5th 175, 224

– 225 [collecting cases ] .) Finally, Wilson contends his trial counsel provided ineffective assistance by failing to object to the fines and fees based on his claimed inability to pay. For such a claim to succeed on direct appeal, the record

must “ affirmatively demonstrate [] trial counsel had no rational tactical

purpose ” for the challenged omission. ( People v. Ramirez
, supra , 98 Cal.App.5th at p. 226.) That showing is not made where “ counsel may have
had access to information about defendant ’ s financial status ” that would
doom an objection based on inability to pay . ( Ibid. ) Here, the record is contrary to Wilson’s position: His probation report reflects he has “an extensive prior employment history” and is currently “a pensioner and collects social security benefits.” Given this evidence and the “rather modest5

financial burden” the challenged fines and fees present ( People v. Johnson (2019) 35 Cal.App.5th 134, 139

– 140 ) , it was rational for Wilson’s counsel not to seek an ability to pay hearing

. DISPOSITION The judgment is affirmed.

Jackson, P. J.

WE CONCUR:
Burns, J. Chou, J.

A168533/ People v. Darryeal Woodrow Wilson