1

Filed 4/28/20

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ANGEL MARIE ASHBEY,

Defendant and Appellant.

C083291

(Super. Ct. No. P13CRF0444)

APPEAL from a judgment of the Superior Court of El Dorado County, Kenneth J. 

Melikian, Judge. Affirmed as modified.

Valerie G. Wass, 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, Senior Assistant Attorney General, Carlos A. Martinez, 

Darren K. Indermil, Supervising Deputy Attorneys General, Kari Ricci Mueller, Deputy 

Attorney General, for Plaintiff and Respondent.

*

 Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is 

certified for publication with the exception of parts II through VI of the Discussion and 

the concurring and dissenting opinion.
2

Defendant Angel Maria Ashbey briefly lived with two others in a secluded house 

in a forested area. Toward the end of her stay, Ashbey struck one of her roommates in 

the head with a pipe until he lost consciousness, poured gasoline over him, and threw 

several lit matches in his direction—though none caught fire. After her roommate 

managed to escape, she set several fires in the house and four more on the forested land 

around the house. A jury convicted Ashbey of attempted voluntary manslaughter, arson 

of a structure, and four arsons of forest land. The jury also found true several 

enhancements relating to these offenses. The trial court sentenced Ashbey to a total of 19 

years in prison.

Ashbey raises various issues on appeal. She contends (1) she should have been 

convicted of only one arson of forest land, not four, because she set the several fires on 

only one parcel of land; (2) even if her four arson convictions were proper, she should 

have received concurrent, not consecutive, sentences for the four arsons of forest land; 

(3) the court wrongly instructed the jury about attempted voluntary manslaughter and the 

right to self-defense; (4) the court wrongly modified one of the jury’s verdict forms, 

which initially referred to the nonexistent crime of “attempted involuntary

manslaughter,” to refer to “attempted voluntary manslaughter”; (5) the abstract of 

judgment mistakenly refers to each of the four arsons of forest land as an arson of a 

structure; (6) the abstract of judgment mistakenly lists the relevant court assessments; and 

(7) the court violated her due process rights by ordering her to pay criminal fees and fines 

without first finding she had the ability to pay them.

We agree the abstract of judgment should be modified for the reasons Ashbey 

alleges. In all other respects, we affirm the judgment. We address whether Ashbey was 

properly convicted of four counts of arson of forest land in the published portion of our

opinion, and we address the remaining issues in the unpublished portion of our opinion.
3

BACKGROUND

Factual Background

Ashbey is a former deputy sheriff and correctional officer who, for about a year, 

lived in the home of her former boyfriend, Doug Bennett, in El Dorado County.

In late July of 2013, Ashbey met Timothy Maston and Melissa DeLong, Maston’s 

caretaker, at a barbeque hosted by a mutual friend.1 Both Maston and DeLong were then 

looking for a new place to live and, at Ashbey’s suggestion, they considered joining 

Ashbey at Bennett’s home—a two-story house set on a large tract of over five acres in a 

grassy and forested area.

Maston and DeLong met Bennett a few days after about the home. Bennett, who 

was living in Redwood City at the time, showed Maston and DeLong the home and 

shortly after agreed the two could stay there. But he informed them that Ashbey could 

not, as the two had recently broken up. After he left, however, Ashbey returned to the 

house and told Maston and DeLong that she “didn’t care what he sa[id]”; she “had more 

right there than him.” And so she continued to live at Bennett’s house, now with Maston,

DeLong, and DeLong’s dog staying there too.

After a few days at the house, DeLong purchased a cake, gifts, and balloons on 

learning it was Ashbey’s birthday. She then went into her bedroom to set up what she 

had purchased to surprise Ashbey, but as she was doing so, Ashbey attempted to enter her 

bedroom. After DeLong managed to block her from entering, Ashbey began yelling that 

DeLong was trying to hide something from her. A few minutes later, DeLong opened the 

door to show her she was only trying to hide the birthday surprise. But Ashbey said 

nothing, walked out, and slammed the door on her way out.

1 Maston at the time suffered from various complications from his diabetes, 

including kidney disease, poor eyesight, and according to DeLong, difficulty walking.
4

Because of Ashbey’s behavior, which made DeLong “feel really uncomfortable,” 

DeLong prepared to leave the house the following day. To that end, she began packing 

Maston’s and her belongings into their car. But after talking with Bennett over the 

phone, who assured her that Ashbey would leave, DeLong decided to stay at the house a 

little longer.

Later that same day, Ashbey called DeLong and apologized for her earlier 

behavior. She then asked DeLong to pick her up. DeLong agreed, drove to Ashbey’s 

location, and then brought her back to the house. Shortly after, DeLong helped Maston 

into the bedroom to lay down because he was not feeling well, and then set out for the 

grocery store to pick up dinner for her, Ashbey, and Maston.

But on returning home no more than an hour later, DeLong found the house and 

surrounding area in flames. She asked a neighbor to call 911 and, after entering the 

home, found her dog inside a burning room. But she could find neither Maston nor 

Ashbey. 

Emergency responders arrived shortly after and attempted to extinguish the house 

fire and several vegetation fires on the property. One of the responders later found 

Maston, his face bloodied “like he’d been hit,” downhill from the house. Maston was 

afterward taken to the hospital where he remained for the next two weeks. According to 

hospital records, he suffered a frontal sinus fracture, a nasal fracture, a clavicle fracture, a 

small hemorrhage in part of his brain, and complex lacerations on his forehead and nose. 

He later received surgery for his injuries to close his wounds, remove small bone 

fragments, and repair a large bone fragment that had become dislodged.2

2 According to the parties’ stipulation, Maston had amphetamine in his system at the 

time he was admitted to the hospital, and admitted using methamphetamine about twice a 

month.
5

At the hospital, Maston told a detective that Ashbey had caused his injuries. 

According to Maston, he had told Ashbey he planned to have a cigarette, and asked if she 

cared to smoke too. After she said no, he started heading outside. But before he made it 

outside, Ashbey struck him in the back of the head with a PVC pipe with a “big steel 

knuckle” attached at the end, causing him to fall to the floor.3 She then struck him again 

in the head while he was on the ground, causing Maston to, he believes, briefly lose 

consciousness. The next thing he remembered he was outside on the pavement. While 

he lay on the pavement struggling to move, woozy from the blows to his head, Ashbey 

poured gasoline on him and threw several lit matches in his direction. But none of the 

matches reached him. Maston eventually managed to escape Ashbey and hid behind a 

door in the house. After hiding there for a period of time, he headed back outside and 

saw Ashbey lighting a fire near the driveway to the house. He then headed toward the 

back of the house but, on his way over, fell and rolled down a slope away from the home. 

After he came to a stop, he hid behind a bush until DeLong returned from the grocery 

store.

Two other detectives later sought to speak with Ashbey about these events, but she 

proved difficult to locate. A few days after the fire, still having not found her, the 

detectives obtained a search warrant and traced her phone to the home of one of Ashbey’s 

friends in Grass Valley. But at the time the detectives arrived, the friend said Ashbey had 

left 30 minutes before, though he agreed to notify the detectives if he saw her again. 

Four days after, the detectives received an anonymous tip noting that Ashbey was again 

at the friend’s house in Grass Valley and would soon be leaving in a silver car. 

Following the tip, the detectives visited the area and shortly after found a car matching 

3 The detective found a PVC pipe matching Maston’s description in the house, 

describing it as a PVC pipe with a metal valve screwed on the end.
6

the description provided. In the driver’s seat of the car was the same friend who earlier 

agreed to notify the detectives the next time he saw Ashbey. After asking the driver

whether anyone else was in the car and not receiving a response, the detectives searched 

the car and found Ashbey hiding under clothing in the backseat. They arrested her at that 

time. 

Ashbey afterward denied setting the fires and gave conflicting explanations about 

Maston’s injuries. At first, she claimed she never hit Maston with a PVC pipe and never 

poured gasoline on him. She asserted instead that Maston had pushed her to the floor

following an argument, and that they then physically fought—but not with a PVC pipe. 

But later on, she conceded she hit Maston in the head with the PVC pipe with the metal 

valve attached at its end, though she maintained that Maston had pushed her first. She 

added that she hit him in the head again with the pipe only after he kept coming after her. 

After hitting him this second time, she further alleged, she threw a rock at Maston as he 

continued to chase her, Maston hit her below the knee with the same PVC pipe she had 

used, and she then threw a cup of gasoline and unlit matches at Maston to prevent him 

from chasing her further. She also discussed the fires but denied setting them. In her 

account, she ran to a trail near the house after the fight with Maston, fell asleep on the 

ground shortly after, and then awoke surrounded by smoke.

4

 

Two firefighter investigators later attempted to determine the cause of the fires. 

One focused on the house. He found the fire had been started in two areas—the front 

door and the master bedroom—and had been deliberately started and accelerated by the 

use of gasoline. Another investigator inspected the outdoor fires. He ultimately 

4

In support of Ashbey’s version of the events, one of Ashbey’s friends said she had 

seen Ashbey’s injuries and taken photographs of them two days after the fires. But the 

alleged photographs were never offered in evidence. 
7

identified four separate outdoor fires that, in his opinion, were not caused by one another 

but rather were started separately by arson. All four of the outdoor fires were adjacent to 

the home’s driveway. Three of the fires were on the downhill side of the driveway and 

were contained to small areas, with two burning one-tenth of an acre and one burning 

one-hundredth of an acre. The fourth fire, which was on the uphill side of the driveway,

burned 9.6 acres before being put out.

Procedural Background

Ashbey was charged with attempted first degree murder of Maston (Pen. Code,5

§ 664/187, subd. (a)—count 1), arson of an inhabited structure (§ 451, subd. (b)—

count 2), and four arsons of “a structure or forest” (§ 451, subd. (c)—counts 3-6) for the 

four fires set around Bennett’s house. She was also charged with several enhancements. 

The information alleged, for count 1, that her attempted murder of Maston involved the 

use of a deadly weapon (§ 12022, subd. (b)(1)) and personal infliction of great bodily 

injury (§ 12022.7, subd. (a)). It alleged, for count 2, that Ashbey set fire to the house 

using “a device designed to accelerate the fire or delay ignition.” (§ 451.1, subd. (a)(5).) 

And it alleged, for the remaining arson counts, that her attempt to set fire to “a structure 

or forest” resulted in a firefighter suffering great bodily injury.6 (§ 451.1, subd. (a)(2).)

A jury afterward found Ashbey not guilty of attempted murder. But it found her 

guilty of the lesser-included offense of attempted voluntary manslaughter and of the five 

5 Undesignated statutory references are to the Penal Code.

6

In the course of fighting the fires, one firefighter was struck in the head by a 

falling branch and suffered concussion-like symptoms as a result.
8

arson counts.7 It also found true the allegations that Ashbey used a deadly weapon, 

personally inflicted great bodily injury, and caused a firefighter to suffer great bodily 

injury.

The trial court sentenced Ashbey to state prison for a total of 19 years, consisting 

of six years for the first of the four arsons of a forest, five years for the enhancement

based on the firefighter’s injury, one year for the attempted voluntary manslaughter, four 

months for the deadly-weapon enhancement on the attempted manslaughter count, one 

year for the great bodily injury enhancement on the attempted manslaughter count, one 

year eight months for the house arson, and one year four months each for the remaining 

three arson counts.

Ashbey timely appealed.

DISCUSSION

I

Ashbey’s Four Arson Convictions for the Four Forest Land Fires

Ashbey first contends she “was improperly convicted of three of the four counts of 

arson of a forest because setting fire to four areas of the same parcel of forest land at the 

same time constitutes only a single arson offense.” We disagree.

A. Background Law

To address Ashbey’s contentions, we must determine “ ‘[t]he proper unit of 

prosecution’ ” for section 451. (People v. Wilson (2015) 234 Cal.App.4th 193, 199

(Wilson).) In particular, we must determine whether an arsonist who, in quick 

7 The verdict form initially referred to “attempted involuntary manslaughter,” but 

the trial court, after conferring with counsel, changed the form to refer instead to 

“attempted voluntary manslaughter.”
9

succession, sets several distinct fires to a “forest land” has committed one or several 

offenses under section 451.

These types of “unit of prosecution” questions, though not common, can arise in a 

variety of contexts. Suppose, for example, a defendant fires two shots at a rival. Two 

attempted murders? Or suppose a defendant punches another three times in one fight. 

Three batteries? Should we count the offenses by each individual act (three punches) or 

the course of conduct (one fight)? The resolution of these and similar questions turns on 

the particular statute and facts at issue. Some statutes, for example, authorize multiple 

convictions for similar acts committed during a single course of conduct. (Wilson, supra,

234 Cal.App.4th at p. 200.) Other statutes do not, allowing only a single conviction for a 

wrongful course of conduct. (Id. at pp. 200-201.) Our task here is to determine which of 

these two approaches best fits section 451. 

To that end, we consider first the California Supreme Court’s decisions that have 

touched on “unit of prosecution” questions. We start with those decisions that have 

treated several unlawful acts committed on a single occasion as only one offense. Take 

People v. Ortega (1998) 19 Cal.4th 686 (Ortega), overruled on another ground in People 

v. Reed (2006) 38 Cal.4th 1224. The court there found a defendant who steals multiple 

items during the course of an “ ‘indivisible transaction’ ” involving a single victim has

“ ‘commit[ed] only one robbery or theft notwithstanding the number of items he steals.’ 

[Citation.]” (Id. at p. 699.) Similarly, in People v. Bailey (1961) 55 Cal.2d 514, the court 

found a defendant who commits “a series of wrongful acts [of theft] . . . pursuant to one 

intention, one general impulse, and one plan” may be convicted of only one offense. (Id. 

at p. 519; but see People v. Whitmer (2014) 59 Cal.4th 733, 741 [if a defendant’s 

wrongful acts are sufficiently “separate and distinct,” they may still be treated as separate 

offenses “even if committed pursuant to a single overarching scheme”].)

In other contexts, however, the court has reached the opposite conclusion—

holding that several identical unlawful acts committed on a single occasion may warrant
10

a separate conviction for each act. Consider, for example, the court’s decision in People 

v. Harrison (1989) 48 Cal.3d 321 (Harrison). The defendant there broke into a woman’s 

apartment and then forcibly inserted his finger into her vagina three separate times during 

a brief sexual assault. (Id. at pp. 325-326.) After each of the first two penetrations, the

woman was able to pull away. (Id. at p. 325.) But each time the defendant overpowered 

her and reinserted his finger. (Ibid.) After he did so for a third time, the woman 

managed to trick the defendant into releasing her—at which point, “she scrambled into 

the bathroom” and locked the door. (Ibid.) Based on these three forced penetrations, the 

defendant was charged with and convicted of three counts of violating section 289, 

subdivision (a), which “proscribe[s] certain ‘penetration[s], however slight, of the genital 

or anal openings of another person’ by ‘any foreign object, substance, instrument, or 

device.’ ” (Harrison, at p. 324.) 

On appeal, the defendant contended that multiple digital penetrations during a 

brief continuous assault constitute only a single violation of section 289. (Harrison, 

supra, 48 Cal.3d at pp. 326-327.) But the Court of Appeal disagreed, and the California 

Supreme Court later affirmed in a decision that counted offenses in terms of acts, not 

intentions or courses of conduct. According to the court, because the defendant caused a 

proscribed penetration three separate times, with all elements of the offense satisfied each 

time, that was enough to find three separate “completed” violations of section 289. 

(Harrison, at p. 329.) And the court found that true even though these acts were 

committed against the same person during a single brief encounter. (Id. at p. 324.)

Several years later, in People v. Scott (1994) 9 Cal.4th 331 (Scott), the court again 

found several unlawful sexual acts committed on a single occasion warranted several 

convictions. Scott involved a defendant who was convicted of 14 counts of committing 

lewd acts against a minor—all in violation of one statute, section 288. (Scott, at p. 339.) 

Two of these convictions related to two types of lewd acts committed during a single 

encounter. (Id. at p. 340.) Two more convictions concerned two additional lewd acts 
11

from another encounter. (Ibid.) On appeal, the defendant contended the four convictions 

for these two encounters should be reduced to two, reasoning that the two separate lewd 

acts committed on those occasions were part of one “indivisible” course of conduct. 

(Ibid.) The Court of Appeal agreed (ibid.), but the California Supreme Court later 

reversed. It found the defendant’s contention that all lewd acts committed in each 

“indivisible” encounter were one violation was “inconsistent with the general manner in 

which statutory violations are calculated under the scheme.” (Id. at pp. 344-345.) “The 

relevant analysis,” the court wrote, “appears in Harrison.” (Id. at p. 345.) The court 

then, relying on Harrison, concluded that “[e]ach individual act that meets the 

requirements of section 288 can result in a ‘new and separate’ statutory violation.” (Id. at

pp. 346-347.) “[A] more lenient rule of conviction,” the court added, “should not apply 

simply because more than one lewd act occurs on a single occasion.” (Id. at p. 347.) 

As a final example, in People v. Gayle (1927) 202 Cal. 159 (Gayle), the court once 

more found that several unlawful acts—this time, several acts of forgery—committed on 

a single occasion warranted several convictions. The defendant there was a real estate 

agent who falsified the sale of three properties. (Id. at pp. 161-162.) For each of the 

properties, the defendant falsified a sales contract and a check from the purported buyer. 

(Ibid.) He was afterward charged and convicted of six counts of forgery—one count for 

each contract and check. (Id. at p. 162.) On appeal, the defendant contended he could “at 

most . . . be charged with three offenses and not with six,” because he had only falsified 

materials for the sale of three properties. (Ibid.) But the California Supreme Court 

disagreed, reasoning that “the false making and forging of . . . separate instruments,

although done at the same time, are separate and distinct offenses.” (Id. at pp. 162-163.) 

Thus, although the defendant may only have intended to falsify the sale of three separate 

properties, his six acts to facilitate those three objectives, even though “done at the same 

time,” determined the appropriate number of offenses. (Ibid.; see also Wilkoff v. Superior 

Court (1985) 38 Cal.3d 345, 349 [“a charge of multiple counts of violating a statute is 
12

appropriate only where the actus reus prohibited by the statute—the gravamen of the 

offense—has been committed more than once”], superseded by statute on other grounds 

as stated in People v. Arndt (1999) 76 Cal.App.4th 387, 393-394; 1 Witkin, Cal. Crim. 

Law (4th ed. 2012) Elements, § 30, p. 304 [“Normally each separate act, whether 

violating one or more than one statute, will give rise to a separate offense. And if the 

necessary separateness is found, it makes no difference that the identical statute is 

violated with the same victim.”].) 

B. Analysis

With that background, we now turn to the case before us, beginning with the 

relevant statutory text. Under section 451, as relevant here, “[a] person is guilty of arson 

when he or she willfully and maliciously sets fire to or burns or causes to be burned . . .

any . . . forest land,” which includes “any brush covered land, cut-over land, forest, 

grasslands, or woods.” (§ 450, subd. (b) [defining “Forest land”].) According to a 

longstanding interpretation of arson, “ ‘the burning of any part, however small, completes 

the offense.’ ” (People v. Haggerty (1873) 46 Cal. 354, 355; People v. Lee (1994) 24 

Cal.App.4th 1773, 1776.)8

The crime of arson, in this last respect, is similar to the statute considered in 

Harrison. The court there considered a statute, section 289, that is violated “simply by 

causing a proscribed ‘penetration, however slight.’ ” (Harrison, supra, 48 Cal.3d at p.

328.) And here we have a statute that, similarly, is violated simply by causing “ ‘the 

burning of any part, however small.’ ” (People v. Haggerty, supra, 46 Cal. at p. 355, 

italics added.) 

8 However, the statute also makes clear, by enhancing the penalty for an arson

pursuant to section 451, that the Legislature has decided that the “proximate[] caus[ing] 

[of] multiple structures to burn [is but a] single violation of Section 451.” (§ 451.1, subd. 

(a)(4).)
13

Because Harrison’s holding turned largely on section 289’s “however slight” 

language, we find this similarity significant. Harrison’s reasoning, again, was based on 

the “plain meaning” of the statute before it. (Harrison, supra, 48 Cal.3d at p. 327.) The 

court there considered a statute, section 289, that “made clear that the crime [of forcible 

sexual penetration] is committed simply by causing a proscribed ‘penetration, however 

slight.’ ” (Harrison, at p. 328.) From this language, the court “conclude[d] that, 

assuming all other elements of the offense are present, a violation is complete the 

moment such ‘penetration’ occurs.” (Ibid.) And from that conclusion, the court then 

found “[i]t follows logically that a new and separate violation of section 289 is 

‘completed’ each time a new and separate ‘penetration, however slight’ occurs”—even 

when one proscribed penetration occurs immediately after another. (Harrison, at p. 329.) 

Considering the parallels between arson’s “however small” language and section 

289’s “however slight” language, we find Harrison’s reasoning dictates the result here, 

leaving our task only to replace the word “penetration” with the word “burning.” 

Adopting Harrison’s words, the crime of arson “is committed simply by causing a 

proscribed ‘[burning], however slight.’ ” (Harrison, supra, 48 Cal.3d at p. 328.) “From 

this language, we can only conclude that, assuming all other elements of the offense are 

present, a violation is complete the moment such ‘[burning]’ occurs.” (Ibid., but see fn.

8, ante.) And from that conclusion, “[i]t follows logically that a new and separate

violation of section [451] is ‘completed’ each time a new and separate ‘[burning], 

however slight’ occurs.” (Harrison, at p. 329.) Turning then to the facts here, because 

Ashbey set fire to and burned forest land four separate times—each time meeting the 

elements of section 451, which she does not deny—we conclude that she “completed” 

four separate violations of section 451.

In an attempt to overcome Harrison and similar cases, Ashbey advances several 

arguments. But we find none persuasive.
14

First, she notes several courts have found a defendant guilty of only one count of 

arson, even though the defendant set more than one fire. But that only reflects the 

prosecutors’ charging decisions in those several cases. In each of her cited cases, the 

prosecution appears to have charged the defendant with only one count of arson. (People 

v. Hole (1983) 139 Cal.App.3d 431, 433; People v. Boyd (1978) 86 Cal.App.3d 54, 59; 

People v. Adams (1953) 119 Cal.App.2d 445, 446; People v. Burrows (1953) 119 

Cal.App.2d 766, 766; People v. Hays (1950) 101 Cal.App.2d 305, 306 (Hays).)9 None of 

these courts thus considered the question before us. We also find it significant that none 

of Ashbey’s cited cases concerned forest land; instead, they all concerned the burning of 

specific objects, either buildings or cars. (Hole, at p. 433; Boyd, at p. 57; Adams, at 

p. 446; Burrows, at p. 766; Hays, at p. 307.)

Second, Ashbey contends “[a] single crime cannot be fragmented into more than 

one offense.” That is true. (People v. Rouser (1997) 59 Cal.App.4th 1065, 1073

(Rouser).) But she never persuasively explains why her setting of several distinct fires 

involves only a single crime. In her effort to do so, she argues there “is only one crime of 

arson for each . . . forest land set ablaze,” “[r]egardless of the number of points of origin.” 

But that logic cannot be squared with Harrison. On similar logic, the defendant in 

Harrison should only have been convicted of one offense, for, to use Ashbey’s reasoning, 

there “is only one crime of [forcible sexual penetration] for each [victim],” “[r]egardless 

of the number of [penetrations].” But that type of reasoning did not carry the day in 

9 Ashbey also cites People v. Lee, supra, 24 Cal.App.4th 1773, but the defendant 

there did not even set multiple fires through successive acts. She instead committed only 

one act: she threw a firebomb into a house. (Id. at p. 1775.) That one act then resulted 

in several small fires on a carpet and a curtain. (Ibid.) For this one act, the prosecution in 

Lee charged the defendant with one act of arson. (Ibid.) 
15

Harrison, supra, 48 Cal.3d at page 334, and we see no reason to treat this case 

differently. 

Rather than discuss Harrison in any meaningful way, Ashbey instead cites as 

counterpoints Rouser, supra, 59 Cal.App.4th 1065, People v. Coyle (2009) 178 

Cal.App.4th 209, People v. Ryan (2006) 138 Cal.App.4th 360 (Ryan), and Ortega, supra,

19 Cal.4th 686. But each of these cases is readily distinguishable. 

To begin, two of these cases concerned defendants who were charged with 

multiple crimes for one act. The defendant in Rouser was convicted of three drug 

offenses for possessing, at one time, three different controlled substances. (Rouser, 

supra, 59 Cal.App.4th at pp. 1067, 1073.) And the defendant in Coyle was convicted of 

three counts of murder for killing one person. (Coyle, 178 Cal.App.4th at p. 211.) We 

would appreciate the relevance of these cases had Ashbey similarly suffered multiple 

convictions for one illegal act—for example, if she had set one fire that burned multiple 

buildings and had then been convicted of one count of arson for each building burned. 

(See fn. 8, ante; see also People v. Shiga (2019) 34 Cal.App.5th 466, 481 [arsonist who 

set fire to one structure could not be convicted of two counts of arson merely because the 

fire spread to another structure].) But that is not the case before us. Ashbey did not set 

one outdoor fire; she set four distinct outdoor fires. 

Ashbey’s next cited case, Ryan, is similarly unhelpful. The court in Ryan found a 

defendant could not sustain multiple forgery convictions for one check that she 

fraudulently signed and then attempted to use on one occasion. (Ryan, supra, 138 

Cal.App.4th at pp. 363-364, 371.) But notably, courts have long found a defendant could

suffer multiple forgery convictions for fraudulently signing multiple checks, even if the 

defendant signed those checks at the same time. (Gayle, supra, 202 Cal. at pp. 162-163; 

People v. Neder (1971) 16 Cal.App.3d 846, 852.) And as Gayle shows, that is true even 

when the defendant fraudulently signs multiple documents, at the same time, in 

furtherance of a single objective. (Gayle, at pp. 162-163.) 
16

Ashbey’s last cited case, Ortega, also offers her no support. The defendant there 

had stolen another’s wallet, pager, and car in one “ ‘indivisible transaction.’ ” (Ortega, 

supra, 19 Cal.4th at pp. 690, 699.) The prosecution then charged these takings as two 

separate offenses—grand theft for the taking of the car, and robbery for the taking of the 

wallet and pager. (Ibid.) The defendant was later convicted on both counts. (Id. at 

p. 691.) The California Supreme Court, however, reversed, concluding the defendant 

should only have been convicted of one theft or one robbery, notwithstanding the number 

of stolen items. (Id. at p. 699.) That conclusion, of course, was fully consistent with the 

court’s other theft cases. (See People v. Bailey, supra, 55 Cal.2d at p. 519 [a defendant 

who commits “a series of wrongful acts [of theft] . . . pursuant to one intention, one 

general impulse, and one plan” may only be convicted of one offense].) But again, we 

find Harrison, Scott, and similar cases, not the high court’s theft cases, supply the 

relevant standard for considering whether Ashbey committed one or several arsons of a 

forest.

Finally, Ashbey contends affirmance would result in absurd results. In particular, 

she contends a defendant who lights four fires that burn separately could be convicted of 

four arsons, but a defendant who lights four fires that merge could be convicted of only a 

single arson. But we fail to see the logic in her argument. A defendant who sets four 

fires that merge into one very well could be convicted of four arsons. Suppose, for 

example, a defendant sets four houses on fire and these separate fires ultimately merge 

into one. That defendant could not claim she at most committed one arson simply 

because the four separate fires eventually merged. Ashbey provides no explanation for 

her contrary view. 

Accepting Ashbey’s view, moreover, would threaten absurd results of its own. 

Taking her position would mean that once an arsonist has set one fire in a forest, she may 

then, without further consequence, set as many additional fires as she likes to the same 

forest. This potential result is particularly troubling considering section 450’s broad 
17

definition of “Forest land.” “Forest land” includes, for example, “woods” and a “forest.” 

(§ 450, subd. (b).) And so, under Ashbey’s reading of section 451, a defendant who 

successively sets multiple fires miles apart across a vast forest could be convicted of only 

one arson. We cannot accept that narrow reading of section 451. To do so, in our view, 

would inappropriately reward those defendants with the “ ‘greater criminal ambition.’ ” 

(Harrison, supra, 48 Cal.3d at pp. 335-336 [discussing sentencing].)10

II

The Court’s Imposition of Consecutive Sentences for the Arson Counts

Ashbey next asserts that, even if she was properly convicted of four counts of 

arson of forest land, she should have received concurrent, not consecutive, sentences for 

these four convictions. She reasons the trial court offered no legitimate reason in support 

of its decision to impose consecutive sentences. We disagree. 

We begin with the rules governing the trial court’s sentencing decision. A judge 

generally must provide its reasons for “[i]mposing consecutive sentences.” (Cal. Rules of 

Court, rule 4.406(b)(5).) To satisfy this requirement, “the judge must state in simple 

language the primary factor or factors that support the exercise of discretion.” (Id., rule 

4.406(a).) Before doing so, judges must consider certain sentencing factors—namely, 

those listed in California Rules of Court, rule 4.42511—but they may rely on any 

10 Although we find Ashbey was properly convicted of these four arsons, our holding 

is limited to the circumstances of this case.

11 Rule 4.425 lists three specific factors relevant to concurrent or consecutive 

sentencing—namely, whether (1) “[t]he crimes and their objectives were predominantly 

independent of each other,” (2) [t]he crimes involved separate acts of violence or threats 

of violence,” and (3) “[t]he crimes were committed at different times or separate places, 

rather than being committed so closely in time and place as to indicate a single period of 

aberrant behavior.” The rule adds that other “circumstances in aggravation or mitigation 

may be considered . . ., except: [¶] (1) A fact used to impose the upper term; [¶] (2) A 

fact used to otherwise enhance the defendant’s sentence in prison or county jail under 
18

“additional criteria reasonably related to the decision being made,” as long as these 

additional criteria are “stated on the record.” (Id., rule 4.408(a).)

Consistent with these requirements, the trial court below “state[d] in simple 

language the primary factor or factors that support[ed] the exercise of discretion.” (Cal. 

Rules of Court, rule 4.406(a).) In particular, the court stated that “[t]he evidence is clear 

that these were four separately set grass fires. Each of them had a separate and distinct 

possibility of getting out of control and doing more damage than they did, because of the 

quick response of the fire department. Each of them was lit separately, each of them was 

lit in a different place, each of them could have gotten into a much more serious 

condition than occurred, so the Court will treat them as four separate fires.” The court

thus, in finding consecutive sentencing appropriate, found it particularly significant that 

Ashbey had created a separate and distinct threat with each additional fire she set. For 

that reason, and within the scope of its discretion, it concluded she was more culpable 

than had she set only one fire. 

Ashbey, however, ignores the court’s stated reasons for imposing consecutive 

sentences. Although she contends the court offered no legitimate reason in support of its 

decision to impose consecutive sentences, she never explains why the court’s offered 

reason was inadequate. She instead attempts to relitigate sentencing, offering several 

considerations that, in her view, support a more lenient sentence. But it is not our role to 

independently decide sentencing matters that are within the trial court’s discretion. 

(People v. Jordan (1986) 42 Cal.3d 308, 317.) Our review is for abuse of discretion, not 

de novo. And Ashbey has failed to show how the trial court abused its discretion in 

deciding to impose consecutive sentences. (See People v. Giminez (1975) 14 Cal.3d 68, 

72 [“[I]n the absence of a clear showing that its sentencing decision was arbitrary or 

section 1170[, subdivision] (h); and [¶] (3) A fact that is an element of the crime may not 

be used to impose consecutive sentences.”
19

irrational, a trial court should be presumed to have acted to achieve legitimate sentencing

objectives and, accordingly, its discretionary determination to impose consecutive

sentences ought not be set aside on review.”].)

III

Ashbey’s Conviction for Attempted Voluntary Manslaughter

Ashbey next contends her conviction for attempted voluntary manslaughter must 

be reduced to attempted involuntary manslaughter—a crime that does not even exist. She 

offers two reasons in support. Her first argument focuses on the verdict form for the 

attempted manslaughter conviction. Her second concerns the jury instructions for 

attempted manslaughter. We find neither persuasive. 

A. The Verdict Forms for Attempted Manslaughter

We consider first her argument concerning the verdict forms for the attempted 

manslaughter conviction. 

The prosecution charged Ashbey, in count 1, with attempted murder. The court 

instructed the jury on that offense, along with three lesser included offenses: 

(1) attempted voluntary manslaughter—heat of passion (§§ 21a, 192, 664), (2) attempted 

voluntary manslaughter—imperfect self-defense (§§ 21a, 192, 664), and (3) assault with 

a deadly weapon or force likely to produce great bodily injury (§§ 240, 245, subd. (a)). 

The court also provided the jury with verdict forms for murder and the three lesser 

included offenses. But the two verdict forms for attempted manslaughter mistakenly 

mislabeled the relevant offense. Both mistakenly referred to attempted involuntary

manslaughter, rather than attempted voluntary manslaughter. 

The court noticed the error shortly after the jury first came back with its initial

verdict. Because of the error in the verdict forms, the jury found Ashbey guilty of 

“ATTEMPTED INVOLUNTARY MANSLAUGHTER—HEAT OF PASSION.” 

Discussing the matter with the parties, the court offered to bring the jury back for further 

deliberations on the count, but counsel for both parties found it unnecessary. The 
20

prosecution reasoned the jury was “properly instructed on the appropriate lesser included 

offense of attempted voluntary manslaughter, so I don’t think there’s any legal 

significance to the two letters in front of voluntary. Defense counsel agreed. 

The prosecution also noted a separate issue requiring further jury deliberation: the 

jury had issued a verdict on one of the lesser included offenses for attempted murder 

without first finding Ashbey not guilty of attempted murder. Agreeing with the 

prosecution, the court directed the jury to deliberate further on the charges. After further 

deliberations, the jury found Ashbey not guilty of attempted murder. It then again found 

her guilty of “ATTEMPTED INVOLUNTARY MANSLAUGHTER—HEAT OF 

PASSION.” 

The court afterward conferred with counsel about modifying the verdict form for 

attempted involuntary manslaughter to refer instead to attempted voluntary manslaughter. 

Counsel for both parties agreed. The court then crossed out the “in” in “involuntary” and 

initialed and dated the modification. The court also later corrected the Penal Code 

citation in the verdict form to reflect the change, changing the reference from section 192, 

subdivision (b), to section 192, subdivision (a).

Although Ashbey’s trial counsel expressly consented to these changes, Ashbey 

now contends her conviction “must be reduced to conform with the jury’s verdict finding 

her guilty of attempted involuntary manslaughter.” She reasons that, because of the 

mislabeled verdict form, “it is not clear whether the jury intended to convict appellant of 

attempted voluntary manslaughter.” We disagree. 

To begin, we find her claim forfeited. “[T]he general rule in both civil and 

criminal cases is that an objection to a defective verdict must be made before the jury is 

discharged.” (People v. Anzalone (2013) 56 Cal.4th 545, 550; see also People v. Jones

(2003) 29 Cal.4th 1229, 1259 [in failing to object at trial, defendant forfeited his claim to 

a verdict form that allegedly “was fatally ambiguous”]; People v. Bolin (1998) 18 Cal.4th 

297, 330 (Bolin) [in failing to object at trial, defendant forfeited his objection to a verdict 
21

form that allegedly referenced the wrong Penal Code section].) This “requirement of an 

objection is premised upon the idea that a party should not sit on his or her hands, but 

instead must speak up and provide the court with an opportunity to address the alleged 

error at a time when it might be fixed.” (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 

266, 265 [discussing “the basis for requiring objections” to “asserted imperfections in the 

polling of a jury concerning its verdict” and “other equally important procedural matters 

at trial”].) 

As the Attorney General notes, Ashbey “did not merely ‘sit on her hands’ at trial”; 

rather, through her defense counsel, she “affirmatively stipulated to the court’s changes to 

the verdict form that she now challenges.” After the court first recognized the defect in 

the two attempted manslaughter verdict forms, both the prosecution and defense counsel 

found no “legal significance” to the forms’ references to attempted involuntary 

manslaughter, rather than attempted voluntary manslaughter. And later, after the court 

proposed crossing out the “in” in involuntary after the jury rendered a verdict, both the 

prosecution and defense counsel consented. We find, for this reason, that Ashbey 

forfeited her objection to the verdict forms. 

But even if the issue were not forfeited, we would still find no prejudicial error. 

“[T]echnical defects in a verdict may be disregarded if the jury’s intent to convict 

of a specified offense within the charges is unmistakably clear, and the accused’s 

substantial rights suffered no prejudice.” (People v. Webster (1991) 54 Cal.3d 411, 447; 

see also People v. Paul (1998) 18 Cal.4th 698, 707 [“the form of the verdict generally is 

immaterial, so long as the intention of the jury to convict clearly may be seen”].)

On that principle, courts have disregarded defects in verdicts similar to that here. 

In Bolin, supra, 18 Cal.4th 297, for example, the court “discern[ed] no possibility of 

prejudice” in a verdict form that cited Penal Code section 192.1, rather than section 192, 

subdivision 1—an error the court characterized as “technical at worst.” (Bolin, at p. 331.) 

In People v. Camacho (2009) 171 Cal.App.4th 1269, similarly, the court “disregarded” a 
22

“clerical error” in a verdict form that misstated the relevant crime, mistakenly listing the 

crime of carjacking rather than second degree robbery. (Id. at p. 1272.) Reviewing the 

jury instructions, the information, and the prosecution’s opening argument, the court 

wrote it “ha[d] no difficulty in determining the jury intended to find defendant guilty of 

second degree robbery.” (Id. at p. 1273.) And in People v. Trotter (1992) 7 Cal.App.4th 

363, the court disregarded a “clerical error” in a verdict form that mistakenly stated the 

defendant “ ‘was armed with a firearm,’ ” rather than that he “personally used a firearm,” 

during the commission of the relevant offenses. (Id. at p. 369.) Considering the jury 

instructions, the information, and the parties’ arguments, the court concluded the jury in 

fact intended to find that the defendant “personally used a firearm,” not merely that he 

“was armed with a firearm.” (Id. at pp. 369-370; see also People v. Jones, supra, 29 

Cal.4th at p. 1259 [reviewing arguably ambiguous verdict form and finding the jury’s 

intent “unmistakably clear” in light of the jury instructions, the prosecutor’s arguments, 

and the jury’s later verdict in the penalty phase of the trial].)

We reach a similar conclusion here. The trial court provided the jury with two sets 

of oral instructions on attempted manslaughter—one for “heat of passion” and one for 

“imperfect self-defense”; two sets of written instructions on attempted manslaughter—

again, one for “heat of passion” and one for “imperfect self-defense”; and two verdict 

forms for attempted manslaughter—and once again, one for “heat of passion” and one for 

“imperfect self-defense.” In Ashbey’s view, the jury might have believed that the only 

two verdict forms it received on attempted manslaughter—which again, mistakenly 

referred to attempted involuntary manslaughter—somehow concerned offenses different 

from those described in the instructions it received on attempted manslaughter. But we 

find differently. Viewing the record as a whole, we find the jury’s unmistakably clear 

intent was to convict Ashbey of attempted voluntary manslaughter—the only type of 

manslaughter on which the jury was instructed—rather than the nonexistent crime of 
23

attempted involuntary manslaughter. (See People v. Johnson (1996) 51 Cal.App.4th 

1329, 1332 [“there is no such crime as attempted involuntary manslaughter”].) 

B. The Jury Instructions for Attempted Manslaughter

We consider next Ashbey’s contentions concerning the jury instructions for 

attempted manslaughter. 

Attempted voluntary manslaughter (heat of passion) and attempted voluntary 

manslaughter (imperfect self-defense) are both lesser-included offenses of attempted 

murder. The jury instructions for both provide that “[a]n attempted killing that would 

otherwise be attempted murder is reduced to attempted voluntary manslaughter” under 

certain circumstances. (CALCRIM Nos. 603 & 604.) Under CALCRIM No. 603, the 

attempted murder is reduced to attempted voluntary manslaughter if the defendant

attempted to kill someone because of a sudden quarrel or in the heat of passion. And 

under CALCRIM No. 604, as relevant here, the attempted murder is reduced to attempted 

voluntary manslaughter if the defendant attempted to kill a person because she acted in 

imperfect self-defense. 

Both instructions place on the prosecution the burden of disproving the 

circumstances that would reduce the attempted murder charge to attempted voluntary 

manslaughter. The final paragraph of CALCRIM No. 603, for example, states: “The 

People have the burden of proving beyond a reasonable doubt that the defendant 

attempted to kill someone and was not acting as a result of a sudden quarrel or in the heat 

of passion. If the People have not met this burden, you must find the defendant not guilty 

of attempted murder.” And the final paragraph of CALCRIM No. 604, similarly, states: 

“The People have the burden of proving beyond a reasonable doubt that the defendant 

was not acting in imperfect self-defense. If the People have not met this burden, you 

must find the defendant not guilty of attempted murder.” The import of these instructions 

is that if the prosecution fails to disprove “imperfect self-defense” or “heat of passion,” 
24

then the jury cannot find the defendant guilty of attempted murder; at most it may find 

the defendant guilty of attempted voluntary manslaughter.

The trial court, however, found it proper to modify the final two words of both 

jury instructions, replacing the words “attempted murder” with “attempted voluntary 

manslaughter.” As modified, the final sentence of both instructions provided: “If the 

People have not met this burden, you must find the defendant not guilty of attempted 

voluntary manslaughter.” (Italics added.) Both parties’ counsel agreed with the changes 

at trial. But on appeal, both now recognize the error in the modifications. And in 

Ashbey’s view, these erroneous modifications were prejudicial. 

Although we agree the court erred, we find Ashbey suffered no harm as a result. 

If read literally and considered in isolation, the mistaken modifications to the jury 

instructions could only have helped Ashbey. Under the standard instructions, if the 

prosecution failed to disprove “imperfect self-defense” or “heat of passion,” then the jury 

could not find her guilty of attempted murder. But as modified, if the prosecution failed 

to disprove “imperfect self-defense” or “heat of passion,” then the jury arguably could 

not even find her guilty of attempted voluntary manslaughter. The mistaken instructions 

thus offered Ashbey a potential windfall, and we do not see how she could have been

prejudiced as a result. That is reason enough to reject Ashbey’s contention. (See People 

v. Carrasco (2014) 59 Cal.4th 924, 969 [defendant not prejudiced by “erroneous 

instruction could only have benefitted him”].) 

In any event, considering the instructions as a whole, we do not find the jury was 

misled by the court’s modifications. (See People v. Chavez (1985) 39 Cal.3d 823, 830

[in reviewing alleged error in jury instructions, courts look to the instructions as a 

whole].) True, because of the court’s changes, one sentence in the two instructions for 

attempted manslaughter suggested the jury could not convict Ashbey of attempted 

voluntary manslaughter if she was found to have acted in “imperfect self-defense” or 

“heat of passion.” But the rest of the instructions for attempted manslaughter clarified 
25

that this was not so. Both explained that the jury could in fact convict her of “attempted 

voluntary manslaughter” for “[a]n attempted killing that would otherwise be attempted 

murder” if she acted in “imperfect self-defense” or in a “heat of passion.” (CALCRIM 

Nos. 603 & 604.) Considering the instructions as a whole, as we must, we do not find the 

jury was misled. 

IV

The Court’s Instructions on the Right to Self-Defense

Ashbey next alleges that the trial court, in instructing the jury using CALCRIM 

No. 3472, misstated the law of self-defense. CALCRIM No. 3472 provides: “A person 

does not have the right to self-defense if he or she provokes a fight or quarrel with the 

intent to create an excuse to use force.” In Ashbey’s view, that instruction may be 

appropriate in some cases, but it was inappropriate here. She reasons the instruction 

should have been modified, per People v. Ramirez (2015) 233 Cal.App.4th 940, to clarify 

that a person who provokes a fight with nondeadly force may still act in self-defense 

when the opponent escalates to deadly force. We reject her claim. 

We begin with some background principles. CALCRIM No. 3472 reflects the 

well-established rule that “ ‘ “the ordinary self-defense doctrine—applicable when a 

defendant reasonably believes that his safety is endangered—may not be invoked by a 

defendant who, through his own wrongful conduct (e.g., the initiation of a physical attack

or the commission of a felony), has created circumstances under which his adversary’s 

attack or pursuit is legally justified.” ’ ” (People v. Enraca (2012) 53 Cal.4th 735, 761

[discussing the similar jury instruction in CALJIC No. 5.55, which provides that “[t]he 

right of self-defense is not available to a person who seeks a quarrel with the intent to 

create a real or apparent necessity of exercising self-defense”].) 

But although the instruction “is generally a correct statement of law,” it “might 

require modification in the rare case in which a defendant intended to provoke only a 

nondeadly confrontation and the victim responds with deadly force.” (People v. Eulian
26

(2016) 247 Cal.App.4th 1324, 1334 (Eulian).) In that event, the trial court may need to 

clarify that although the defendant may have started “a nondeadly quarrel,” she has not 

forfeited altogether her right to defend her life. (See People v. Ramirez, supra, 233 

Cal.App.4th at p. 943.)

According to Ashbey, this is one of those “rare case[s] in which a defendant 

intended to provoke only a nondeadly confrontation and the victim respond[ed] with 

deadly force.” (Eulian, supra, 247 Cal.App.4th at p. 1334.) And so, she maintains, the 

trial court needed to modify CALCRIM No. 3472 to correctly state her right to selfdefense. We disagree. Even accepting Ashbey’s testimony regarding the facts, she still 

has not shown that she only “intended to provoke only a nondeadly confrontation and the 

victim respond[ed] with deadly force.” (Eulian, at p. 1334.) In her telling, Maston 

pushed her and caused her to fall down and hit her head on the floor, she then twice hit 

him in the face with a PVC pipe and threw a rock at him as he gave chase, and Maston 

afterward hit her below the knee with the same PVC pipe. Maston, in sum, at one point 

pushed her and at another point hit her below the knee with a PVC pipe. Even on her 

own version of the facts, then, she has not presented evidence sufficiently substantial to 

show Maston ever acted with deadly force. (See People v. Flannel (1979) 25 Cal.3d 668, 

684, fn. 12 [not “any evidence” is sufficient to warrant a jury instruction; a party instead 

must present “evidence substantial enough to merit” the requested instruction], 

superseded on other grounds by statute as stated in In re Christian S. (1994) 7 Cal.4th 

768, 776-777.) We thus find no merit to her contention that the trial court needed to 

clarify that a person who provokes a fight with nondeadly force may still act in selfdefense when the opponent escalates to deadly force. 

V

Errors in the Abstract of Judgment

In her last claim in her opening brief, Ashbey contends the abstract of judgment 

mistakenly describes counts 3 through 6—which concerned her four counts for “arson of 
27

a forest”—as “arson[s] of a structure.” In her supplemental brief, she adds that the 

abstract of judgment also mistakenly lists the relevant court assessments. We agree on 

both issues.

Turning first to the labeling of the offenses, the jury instructions and verdict forms 

show Ashbey was charged with and convicted of four counts of “arson of a forest.” But 

as Ashbey notes, the abstract of judgment mistakenly refers to each as involving the 

“arson of a structure.”

The abstract of judgment also, as Ashbey contends, wrongly lists the relevant 

court assessments. In particular, it mistakenly swaps section 1465.8—which imposes one 

type of assessment—with Government Code section 70373—which imposes another. 

The former section imposes a $40 assessment per criminal conviction to help fund “court 

operations” (§ 1465.8, subd. (a)(1)), and the latter imposes a $30 assessment per criminal 

conviction to help fund “court facilities” (Gov. Code, § 70373, subd. (a)(1)). Because 

Ashbey had six convictions, the abstract should have shown a $240 court operations 

assessment under section 1465.8 and a $180 court facilities assessment under 

Government Code section 70373. But swapping the two statutes, the abstract instead 

shows a $240 court facilities assessment under Government Code section 70373 and a 

$180 court operations assessment under section 1465.8. 

To correct these two errors, we remand to the trial court to prepare an amended 

abstract of judgment.

VI

Fees and Fines

Finally, in a supplemental brief, Ashbey contends the trial court violated her due 

process rights by ordering her to pay criminal fees and fines without first finding she had 

the ability to pay them. We reject the claim.

Ashbey’s argument relies on the Second District Court of Appeal’s recent decision 

in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). The court there considered 
28

whether the due process clauses of the state and federal Constitutions limited a trial 

court’s ability to impose assessments and fines on indigent defendants. It found they did. 

According to the court, “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 court 

facilities and court operations assessments under Penal Code section 1465.8 and 

Government Code section 70373.” (Id. at p. 1164.) And, the court went on, “although 

Penal Code section 1202.4 bars consideration of a defendant’s ability to pay unless the 

judge is considering increasing the [fine] over the statutory minimum, the execution of 

any restitution fine imposed under this statute must be stayed unless and until the trial 

court holds an ability to pay hearing and concludes that the defendant has the present 

ability to pay the restitution fine.” (Ibid.) 

Relying on Dueñas, Ashbey contends the trial court here violated her due process 

rights in imposing fees and fines without first considering her ability to pay. As she 

notes, in addition to sentencing her to prison for a term of 19 years, the trial court ordered 

her to pay various fees and fines: a $240 court assessment fee ($40 per count—

§ 1465.8), a $180 criminal conviction assessment fee ($30 per count—Gov. Code, 

§ 70373), and a $5,400 restitution fine (§ 1202.4, subd. (b)).12 But the court never held a 

hearing to determine if Ashbey could pay these amounts, and, relying on Dueñas, Ashbey 

now takes issue with the court’s failure to do so. 

Although Ashbey’s argument might be a valid one were we to follow Dueñas, we 

find, like many other courts, that Dueñas was wrongly decided. Most prominent of those 

that reject Dueñas is People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 

12 Again, as mentioned in part V of the Discussion, the abstract of judgment 

mistakenly refers to assessments under section 1465.8 when it should instead reference 

Government Code section 70373, and vice versa. 
29

2019, S258946 (Hicks)—and it is a decision we find better reasoned than Dueñas.

13

 The 

court there found “Dueñas wove together two distinct strands of due process precedent” 

to reach its holding. (Id. at p. 325.) The first, the court explained, concerned a line of 

precedent involving “a due process-based right of access to the courts.” (Ibid.; see 

Dueñas, supra, 30 Cal.App.5th at p. 1166.) And the second, the court went on, 

concerned case precedent involving “a due process-based bar to incarceration based on 

the failure to pay criminal penalties when that failure is due to a criminal defendant’s 

indigence rather than contumaciousness.” (Hicks, at p. 325; see Dueñas, at p. 1167.) But 

the court found neither of these “two strands of due process precedent . . . dictate 

Dueñas’s rule.” (Hicks, at p. 326.) Imposing fees and fines on indigent defendants, the 

court concluded, neither deprives these defendants of access to the courts nor results, by

itself, in their “incarceration for nonpayment due to indigence.” (Ibid.) 

Worse, the Hicks court continued, “Dueñas does more than go beyond its 

foundations; it announces a principle inconsistent with them.” (Hicks, supra, 40 

Cal.App.5th at p. 327.) It offered in support, among other cases, Bearden v. Georgia

(1983) 461 U.S. 660 (Bearden)—one of the cases Dueñas relied on. The Supreme Court 

there, the Hicks court noted, never suggested that a defendant’s poverty should immunize 

the defendant from monetary punishment; it instead suggested the opposite, stating: “The 

State . . . has a fundamental interest in appropriately punishing persons—rich and poor—

who violate its criminal laws. A defendant’s poverty in no way immunizes him from 

punishment.” (Bearden, at p. 669; Hicks, supra, 40 Cal.App.5th at p. 327; see also 

Williams v. Illinois (1970) 399 U.S. 235, 244 [“[t]he State is not powerless to enforce 

judgments against those financially unable to pay a fine; indeed, a different result would 

13 We may consider, as persuasive authority, the cases that have been granted review 

by our Supreme Court. (Cal. Rules of Court, rule 8.1115(e)(1).)
30

amount to inverse discrimination”].) Finally, the Hicks court found, “Dueñas is 

inconsistent with the purposes and operation of probation,” including the purpose of 

ensuring that defendants repay their debts to society. (Hicks, at p. 327.) For all these 

reasons, the court in Hicks “conclude[d] that due process does not speak to [the 

imposition of fees and fines] and that Dueñas was wrong to conclude otherwise.” (Id. at 

p. 329.)

We too, for the reasons stated in Hicks, find Dueñas was wrongly decided. And 

because Ashbey’s contention here is premised on our accepting Dueñas, we thus reject 

her due-process challenge to the imposed fees and fines.14 

DISPOSITION

We remand with directions to the trial court to prepare an amended abstract of 

judgment in accordance with part V of this opinion. After doing so, the trial court must 

forward a certified copy of the corrected abstract of judgment to the Department of 

Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

 /s/

BLEASE, Acting P. J.

I concur:

 /s/

HOCH, J.

14 Because we find Ashbey’s argument under Dueñas fails on the merits, we need 

not consider the Attorney General’s forfeiture argument.
1

Mauro, J., Concurring and Dissenting.

I fully concur in the majority opinion except for part VI of the Discussion, 

pertaining to fines and assessments. As to that portion of the opinion, I dissent.

In People v. Dueñas (2019) 30 Cal.App.5th 1157, the court held it is improper to 

impose certain fines or assessments without determining defendant’s ability to pay. (Id. 

at pp. 1168, 1172.) Although some courts have subsequently criticized Dueñas’s legal 

analysis (see, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 

2019, S258946), Dueñas remains citable precedent. Until the California Supreme Court 

has had an opportunity to resolve the current split in authority, I would remand the matter 

to give the trial court an opportunity to consider defendant’s ability to pay the imposed 

assessments. But as for the restitution fine and parole revocation fine imposed by the 

trial court, I would conclude defendant forfeited the challenge to those fines because they 

were imposed above the minimum and defendant had an opportunity to object to them in 

the trial court but did not.

 /s/

MAURO, J.