Filed 8/12/21 P. v. Suarez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

FERNANDO SUAREZ,

Defendant and Appellant.

 D078003

 (Super. Ct. No. SCE388713)

APPEAL from a judgment of the Superior Court of San Diego County, 

Robert Amador, Judge. Affirmed as modified.

Michael C. Sampson, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Steve 

Oetting and Warren J. Williams, Deputy Attorneys General for Plaintiff and 

Respondent. 
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INTRODUCTION

Fernando Suarez appeals from a judgment of conviction following a 

guilty plea. Suarez asserts the trial court abused its discretion by finding he 

had the ability to pay a $10,000 restitution fine, and his trial counsel was 

ineffective for failing to object to the trial court’s ruling. Suarez also asks us 

to direct the trial court to vacate a $154 criminal justice administration fee 

imposed under the recently repealed Government Code section 29550.1. We 

conclude the trial court did not abuse its discretion by imposing the 

restitution fee and Suarez has not met his burden to establish trial counsel 

was ineffective. We further conclude any unpaid portion of the criminal 

justice administration fee is unenforceable and uncollectable as of July 1, 

2021. Accordingly, we vacate that portion of the judgment and affirm the 

judgment as modified.

FACTUAL AND PROCEDURAL BACKGROUND

Suarez shot at a couple walking on the street, four to six times, from 

the backseat of a car, and also shot at a man walking his dog later that same 

morning. In a negotiated plea agreement, Suarez pled guilty to three counts 

of assault with a firearm (Pen. Code,1 § 245, subd. (a)(2)), admitted an 

allegation that he used a firearm as to each count (§ 12022.5, subd. (a)), and 

admitted a strike prior (§§ 667, subds. (b)−(i), 668, & 1170.12). He agreed to 

a stipulated prison sentence of 26 years and 8 months.

The trial court imposed the stipulated sentence at a hearing on August 

14, 2020. The court also imposed a restitution fine of $10,000 (§ 1202.4, subd.

(b)(1)), a stayed parole revocation restitution fine of $10,000 (§ 1202.45), and

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

specified. 
3

several other fees, including a $154 criminal justice administration fee (Gov.

Code, § 29550.1). Suarez’s trial counsel requested to be heard on the 

restitution fine and asked if the court would be “inclined to either stay or 

lower it[.]” Defense counsel asserted that Suarez was “going to be 

incarcerated for a very long period of time,” his father was on disability, and 

his family did not have the ability to pay the fine on his behalf. Counsel 

therefore asked the court “to stay or to delete” the fine pursuant to People v.

Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). The trial court responded: 

“It’s a statutory fine and it’s not his parent’s ability to pay. It’s his 

responsibility. He’s in for a long time and it’s prison earnings. That’s the 

court order.” 

DISCUSSION

I.

The Trial Court Did Not Abuse its Discretion

in Imposing the Restitution Fine

Suarez asserts the trial court abused its discretion in determining he 

had the ability to pay the restitution fine because it did not consider any 

ability to pay factors other than his ability to earn prison wages. He argues

prison wages are neither guaranteed nor sufficient to pay the $10,000 fine 

the court imposed. Suarez requests that we order the trial court to stay the 

restitution fine under Dueñas or, alternatively, remand the matter with 

directions that the trial court “re-determine the amount of the restitution fine 

in light of [his] ability to pay.” We decline to do so because we find no abuse 

of discretion.

Section 1202.4 authorizes the trial court to impose a restitution fine of 

any amount between $300 and $10,000 in felony cases, and allows the court 

to consider a defendant’s ability to pay only when considering whether to 
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impose a fine greater than the statutory minimum. (§ 1202.4, subd. (b)(1).) 

The court generally has discretion to determine the exact amount to impose.

(People v. Lewis (2009) 46 Cal.4th 1255, 1321 (Lewis).) 

The Court of Appeal in Dueñas, however, held that due process 

requires the trial court to hold an ability to pay hearing before imposing 

fines, fees, or assessments and that the burden to prove ability to pay is on 

the prosecution. (Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1172.) The 

court further held that execution of any restitution fine imposed under 

section 1202.4, subdivision (b), must be stayed “until and unless” the trial 

court holds an ability to pay hearing and the People demonstrate that the

defendant has the ability to pay the restitution fine. (Ibid.) But “[o]ther 

courts, including this court, have disagreed with Dueñas on these key 

principles.” (People v. Keene (2019) 43 Cal.App.5th 861, 863; see, e.g., People 

v. Cota (2020) 45 Cal.App.5th 786, 795; People v. Allen (2019) 41 Cal.App.5th 

312, 326 [“[W]e would adopt the reasoning of the numerous courts that have 

rejected Dueñas’s due process analysis.”]; People v. Hicks (2019) 

40 Cal.App.5th 320, 326, review granted Nov. 26, 2019, S258946; People v. 

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

S257844.) The California Supreme Court is currently considering the 

viability of Dueñas as it pertains to whether a trial court must consider a 

criminal defendant’s ability to pay assessed fines and fees, and if so, which 

party bears the burden of proof. (Kopp, supra, 38 Cal.App.5th 47, review 

granted Nov. 13, 2019, S257844.) 

We need not delve into the broader issues of Dueñas, though, to address 

the issue before us in this case. It was clear, even before Dueñas, that 

challenges to the imposition of a maximum restitution fine based on the 

inability to pay were expressly permitted by the statute. (§ 1202.4, subd. (d); 
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People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033; Lewis, supra, 46 

Cal.4th at p. 1321.) Section 1202.4, subdivision (d) provides, in relevant part: 

“In setting the amount of the fine pursuant to subdivision (b) in excess of the

minimum fine pursuant to paragraph (1) of subdivision (b), the court shall 

consider any relevant factors, including, but not limited to, the defendant's 

inability to pay[.]” The statute also makes clear that “[a] defendant shall 

bear the burden of demonstrating his or her inability to pay.” (§ 1202.4, 

subd. (d).) In cases since Dueñas, courts have clarified “it is [the defendant’s]

burden to make a record below as to their ability to pay these [fines, fees, 

and] assessments.” (Kopp, supra, 38 Cal.App.5th at p. 96; People v. Santos 

(2019) 38 Cal.App.5th 923, 934 (Santos) [“it is the defendant's burden to 

demonstrate an inability to pay, not the prosecution's burden to show the 

defendant can pay, as the Dueñas decision might be read to suggest]; People 

v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 [“Given that the defendant is

in the best position to know whether he has the ability to pay, it is incumbent 

on him to object to the fine and demonstrate why it should not be imposed.”].) 

Further, although the trial court determines whether the defendant 

has the “ ‘present ability to pay,’ ” the court may consider any relevant 

factors, including defendant’s “housing status, mental illness or disability, 

receipt of government benefits, and realistic ability to earn prison wages or 

obtain employment.” (Santos, supra 38 Cal.App.5th at p. 934.) Where the 

trial court determines a defendant does have the ability to pay a restitution 

fine, we review the determination for an abuse of discretion. (Lewis, supra, 

46 Cal.4th at p. 1321; People v. Potts (2019) 6 Cal.5th 1012, 1057.) 

As an initial matter, it was Suarez’s burden to raise any factors 

relevant to his ability to pay, and the only factor he raised beyond his own 

incarceration was his family’s inability to pay on his behalf. (§ 1202.4, subd. 
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(d); Kopp, supra, 38 Cal.App.5th at p. 96.) As the trial court noted, the 

relevant question is whether Suarez, and not his family, had the ability to 

pay the fine. Because Suarez did not raise any issues regarding his own 

ability to work or earn wages in prison, the trial court correctly concluded he 

could earn wages in prison and did have the ability to pay the fine. (See 

Kopp, supra, 38 Cal.App.5th at p. 96; Santos, supra, 38 Cal.App.5th at p. 934

[discussing the relevant factors to be considered, including prison wages].) 

Suarez contends the trial court could not reasonably conclude he had a

“ ‘realistic ability to earn prison wages’ ” sufficient to pay the restitution fine 

because paid prison work is not guaranteed and the jobs that are available 

typically pay very low wages. (See Santos, supra, 38 Cal.App.5th at p. 934

[listing “realistic ability to earn prison wages” among factors for court to 

consider].) Not so. It is well settled that the trial court can consider the 

ability to earn prison wages, even if those wages are low, as well as the 

ability to earn additional wages after incarceration. (See People v. Hennessey

(1995) 37 Cal.App.4th 1830, 1837 (Hennessey) [court may consider 

defendant’s ability to pay in the future, including “defendant's ability to 

obtain prison wages and to earn money after his release from custody”]; 

People v. DeFrance (2008) 167 Cal.App.4th 486, 505 [defendant did not show 

inability to pay $10,000 restitution fine simply because prison wages would 

make it difficult, it would take a long time, and the fine might never be paid]; 

People v. Ramirez (1995) 39 Cal.App.4th 1369, 1377 [a trial court may 

consider the defendant's future ability to pay, including his ability to earn 

wages while in prison].) While there may be no guarantee Suarez will receive 

a wage-paying job in prison, Suarez has not raised any specific impediment to 
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his ability to do so and, instead, the record suggests he is young and able 

bodied.2 

Moreover, even if Suarez is not able to pay the entire $10,000 while in 

prison, he can continue to pay any remaining amount after his release. (See 

Hennessey, supra, 37 Cal.App.4th at p. 1837.) Although the trial court did 

not specifically reference Suarez’s ability to earn wages after his release, it

remains a relevant factor that we may consider on appeal. (See People v. 

Zapien (1993) 4 Cal.4th 929, 976 [“ ‘ “No rule of decision is better or more 

firmly established by authority, nor one resting upon a sounder basis of 

reason and propriety, than that a ruling or decision, itself correct in law, will 

not be disturbed on appeal merely because given for a wrong reason.” ’ ”]; 

People v. Brooks (2017) 3 Cal.5th 1, 39.) Suarez contends his future earnings 

are speculative but, as with prison wages, he has not raised any specific 

reason he will not be able to earn wages after his release. 

Finally, Suarez points out that a defendant’s future income is only 

relevant in determining whether they have the ability to pay attorney fees if 

it is “ ‘reasonably discernible’ ” the income will be collected in the near future, 

and argues a similar analysis should apply here. Section 987.8 defines ability 

to pay specifically in the context of attorney fees and indicates the 

determination is based on the defendant’s present financial condition and 

“[t]he likelihood that the defendant shall be able to obtain employment 

within a six-month period from the date of the hearing.” (§ 987.8, subds. (b),

(g)(2).) There is no such provision in section 1202.4 and, to the contrary, 

courts have recognized a defendant may have the ability to pay a restitution 

2 Suarez was 20 years old at the time of sentencing. He is now 22 years 

old.
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fine from prison wages even if they do not have the ability to pay attorney

fees pursuant to section 987.8. (See People v. Rodriguez (2019) 34 

Cal.App.5th 641, 649, citing People v. Douglas (1995) 39 Cal.App.4th 1385, 

1397.) 

We therefore conclude the trial court did not abuse its discretion in 

determining Suarez had the ability to pay the $10,000 restitution fee. 

II.

Suarez’s Counsel Did Not Provide Ineffective Assistance of Counsel

Suarez next contends his trial attorney provided ineffective assistance 

of counsel by not objecting further to the trial court’s ruling that he had the 

ability to pay the restitution fee based on his ability to earn prison wages. 

To prove ineffective assistance of counsel, Suarez must show his 

attorney performed below the standard of reasonableness under prevailing 

professional norms and that there is a reasonable probability the result

would have been more favorable to him but for that substandard 

performance. (Strickland v. Washington (1984) 466 U.S. 668, 686−688 

(Strickland); People v. Mayfield (1993) 5 Cal.4th 142, 199.) “Ineffective 

assistance of counsel claims are rarely cognizable on appeal,” as we give 

deference to trial counsel’s tactical choices and the record rarely provides 

information regarding trial counsel’s strategy. (People v. Silvey (1997) 58 

Cal.App.4th 1320, 1329; Strickland supra, at pp. 690−691; People v. Wilson

(1992) 3 Cal.4th 926, 936.) Where the record is silent as to counsel’s 

motivation, the court must reject an ineffective assistance of counsel claim 

“unless counsel was asked for and failed to provide a satisfactory explanation, 

or there simply can be no satisfactory explanation.” (People v. Scott (1997) 15 

Cal.4th 1188, 1212.)
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Here, Suarez’s counsel raised the inability to pay issue and the court 

considered it, but concluded Suarez did have the ability to pay the $10,000 

restitution fine. As we have already concluded, the trial court did not abuse 

its discretion by making that determination, and there is no reasonable 

probability that the result would have been more favorable to Suarez had his 

counsel pushed the issue further. To the contrary, counsel likely understood 

from the court’s statement, “[t]hat’s the court order,” that the court was not 

willing to entertain additional argument on the issue. Moreover, it does not 

appear from the record, and Suarez does not contend on appeal, that there 

were any additional relevant facts or arguments regarding Suarez’s ability to 

pay that trial counsel could have raised.

We give deference to trial counsel’s decision not to argue the issue 

further, and conclude Suarez has not met his burden to prove ineffective 

assistance of trial counsel. 

III.

The Criminal Justice Administration Fee is No Longer Enforceable

Suarez asks us to direct the trial court to vacate the $154 criminal 

justice administration fee imposed pursuant to Government Code section 

29550.1.

In 2020, the Legislature passed Assembly Bill No. 1869 (2019-2020 

Reg. Sess.) (AB 1869) to “eliminate the range of administrative fees that 

agencies and courts are authorized to impose to fund elements of the criminal 

legal system.” (Assem. Bill No. 1869 (2019-2020 Reg. Sess.) § 2, eff. Sept. 18, 

2020, operative July 1, 2021.) Among other provisions, AB 1869 added 

Government Code section 6111. (Id. at § 11.) Government Code section 6111 

became effective on July 1, 2021. It provides that “the unpaid balance of any 

court-imposed costs pursuant to Section 27712, subdivision (c) or (f) of Section 
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29550, and Sections 29550.1, 29550.2, and 29550.3, as those sections read on 

June 30, 2021, is unenforceable and uncollectible and any portion of a 

judgment imposing those costs shall be vacated.” (Gov. Code, § 6111, subd. 

(a).)

In his opening brief on appeal, filed before July 1, Suarez asserted AB 

1869 should be applied retroactively to vacate the criminal justice 

administration fee in this case. However, while the appeal was pending, 

Government Code section 6111 became effective. Pursuant to the plain 

language of the newly enacted statute, the unpaid balance of the criminal 

justice administration fee is unenforceable and uncollectible, and the portion 

of the judgment imposing such costs must be vacated. (Gov. Code, § 6111, 

subd. (a).) As we have found no error with respect to Suarez’s other 

arguments and affirm the judgment otherwise, this case requires no further 

action by the trial court. Accordingly, we will exercise our authority to 

modify the judgment as mandated by the new law. (See People v. Good

(1963) 223 Cal.App.2d 298, 302 [“[A]n appellate court is authorized to modify 

the findings of fact, conclusions of law, order, and judgment to the end that 

the matter may be disposed of without further proceedings in the trial 

court.”].)
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DISPOSITION

Any portion of the $154 criminal justice administration fee imposed

pursuant to Government Code section 29550.1 unpaid as of July 1, 2021 is 

vacated. The judgment as modified is affirmed. 

DO, J.

WE CONCUR:

McCONNELL, P. J.

GUERRERO, J.