Filed 10/26/20 P. v. Quiroga CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

GONZALO QUIROGA,

Defendant and Appellant.

F077916

(Super. Ct. No. BF171595A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. John R. 

Brownlee, Judge.

Jacquelyn Larson, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief 

Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Daniel B. 

Bernstein, Kathleen A. McKenna, Darren K. Indermill and F. Matt Chen, Deputy 

Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

Defendant Gonzalo Quiroga was arrested after an undercover detective observed 

him getting into and driving away in a van reported stolen a week earlier. Defendant was 

charged with one count of unlawfully driving or taking a vehicle (Veh. Code, § 10851, 

subd. (a); count 1), one count of receiving a stolen vehicle (Pen. Code, § 496d, subd. (a); 

count 2),

1 one misdemeanor count of possession of burglary tools (§ 466; count 3), two 

misdemeanor counts of driving on a suspended license (Veh. Code, §§ 14601.2, subd. (a), 

14601.1, subd. (a); counts 4 & 5), and one misdemeanor count of driving without a valid 

license (Veh. Code, § 12500, subd. (a); count 6). Defendant pled no contest to counts 4 

through 6, and a jury convicted him in count 1 of taking a vehicle and in count 3 of 

possessing burglary tools.2 In a bifurcated proceeding, the trial court found that 

defendant suffered one prior serious or violent felony conviction within the meaning of 

the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), and served two 

prior prison terms (§ 667.5, former subd. (b)).

The trial court sentenced defendant on count 1 to the middle term of two years, 

doubled to four under the Three Strikes law, plus an additional two years for the two 

prior prison term enhancements, for a total determinate term of six years in prison. On 

counts 3 and 4, the court sentenced defendant to concurrent terms of 180 days in jail; and 

on counts 5 and 6, the court imposed concurrent terms of 180 days in jail, stayed under 

section 654. Relevant to defendant’s claims, the trial court imposed a restitution fine of 

$300 under section 1202.4, subdivision (b)(1); a parole revocation restitution fine of $300 

under section 1202.45, subdivision (a), stayed; a total court operations assessment of 

$200 under section 1465.8; and a total court facilities assessment of $150 under 

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

2 The jury did not return a verdict on count 2, consistent with its determination that 

defendant took the vehicle. (People v. Bullard (2020) 9 Cal.5th 94, 102–103; People v. Ceja

(2010) 49 Cal.4th 1, 4–5.)
3.

Government Code section 70373. Pursuant to section 1202.4, subdivision (f), the court 

ordered restitution in the amount of $2,763 to the victim for tools stolen from the van.

Defendant claims that the trial court abused its discretion by ordering restitution in 

the absence of sufficient evidence that he was responsible for the victim’s loss. He also 

claims that pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the court 

erred in imposing fines and assessments without determining his ability to pay. In 

supplemental briefing, defendant requests that we strike the two 1-year prior prison term 

enhancements in accordance with Senate Bill No. 136, which amended section 667.5, 

subdivision (b), effective January 1, 2020. (Stats. 2019, ch. 590, § 1, pp. 1–4 (Senate Bill 

No. 136).)

The People concede that the prior prison term enhancements must be stricken 

under Senate Bill No. 136, but they otherwise dispute defendant’s entitlement to any 

relief.

We agree with the parties that defendant is entitled to relief from the prior prison 

term enhancements under Senate Bill No. 136. Therefore, we strike the two 1-year prior 

prison term enhancements imposed by the trial court and remand the matter under the full 

resentencing rule, which renders defendant’s claim of error under Dueñas moot. (People 

v. Buycks (2018) 5 Cal.5th 857, 893, 896, fn. 15; People v. Lopez (2019) 42 Cal.App.5th 

337, 342.) We otherwise affirm the judgment.

FACTUAL SUMMARY

In February 2018, Adolph G. parked his 2014 Ford “[S]uper [D]uty” van, which 

he used for his work as a general contractor, in front of his house in Selma. The next 

morning, the van was missing and Adolph’s wife reported the theft to the Selma Police 

Department. One week later, Detective Coleman, who was assigned to the Bakersfield 

Police Department’s Auto Theft Task Force, located the unoccupied van parked on a 

residential street in Kern County and placed it under surveillance. Approximately one 

hour later, defendant and another man entered the van, and defendant drove away. 
4.

Coleman followed them and after defendant parked on another residential street to let his 

passenger out, Coleman detained defendant and arrested him.

Defendant told Coleman he pulled over because he knew he was being followed. 

He had three shaved keys in his pocket but said he found them in the van. Defendant also 

said he borrowed the van from a friend before asking, “‘Is it about the van?’” After 

Coleman responded yes, defendant said he knew the van was stolen because the ignition 

was so messed up he could start it with his finger. Defendant then asked if Coleman 

would let him go if he gave up his friend, but he declined to discuss his friend further 

after Coleman would not make any guarantees.

Adolph testified that he did not know defendant and did not give him permission 

to drive the van. Adolph purchased the van in 2017 for $29,000 and he estimated it was 

worth $25,000 at the time it was stolen. When the van was recovered, the driver’s side 

door lock was damaged, the ignition was hollowed out, and the steering column was 

damaged. Further, Adolph stated that the ladder rack, mirrors and radio were missing;

the dashboard was beat up; a tire was damaged; and the side of the van was scratched up.

DISCUSSION

I. Restitution Order

A. Background

Subject to exceptions not relevant here, section 1202.4, subdivision (f), provides 

that “in every case in which a victim has suffered economic loss as a result of the 

defendant’s conduct, the court shall require that the defendant make restitution to the 

victim or victims in an amount established by court order, based on the amount of loss 

claimed by the victim or victims or any other showing to the court....” Restitution “shall 

be of a dollar amount that is sufficient to fully reimburse the victim or victims for every 

determined economic loss incurred as the result of the defendant’s criminal conduct, 

including, but not limited to ... [¶] ... [f]ull or partial payment for the value of stolen or 

damaged property. The value of stolen or damaged property shall be the replacement 
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cost of like property, or the actual cost of repairing the property when repair is possible.” 

(Id., subd. (f)(3)(A).) In this case, the trial court ordered defendant to pay restitution in 

the amount of $2,763 for tools that were stolen from Adolph’s van.

Relying on People v. Scroggins (1987) 191 Cal.App.3d 502, defendant claims that 

the trial court’s restitution order was erroneous because “there was insufficient evidence 

that [defendant] had any knowledge of or was the legal cause of the missing tools.” 

Defendant also claims that the court “appeared to improperly order the restitution ... to 

compensate for the damage to the stolen van ....” The People disagree. For the reasons 

set forth below, we reject defendant’s claim and affirm the trial court’s restitution order.

B. Standard of Review

“[W]e review the trial court’s restitution order for abuse of discretion. [Citations.] 

The abuse of discretion standard is ‘deferential,’ but it ‘is not empty.’ [Citation.] ‘[I]t 

asks in substance whether the ruling in question “falls outside the bounds of reason”

under the applicable law and the relevant facts [citations].’” (People v. Giordano (2007) 

42 Cal.4th 644, 663, fn. omitted; accord, People v. Grundfor (2019) 39 Cal.App.5th 22, 

27.) “[W]e presume that a judgment or order of the trial court is correct, ‘“[a]ll 

intendments and presumptions are indulged to support it on matters as to which the 

record is silent, and error must be affirmatively shown.”’” (People v. Giordano, supra, at 

p. 666; accord, People v. Grundfor, supra, at p. 27.)

C. Analysis

1. Theft Conviction on Count 1

The linchpin in defendant’s claim that there is insufficient evidence linking him to 

the stolen tools is his contention that the jury convicted him of posttheft driving rather 

than theft of the van. This assertion does not find support in the record, however. 

Defendant was charged with driving or taking the van and the jury was instructed as 

such, but it returned a verdict specifically convicting defendant “of stealing a motor 

vehicle.” Moreover, the jury was instructed that they must consider count 1 first and if 
6.

they convicted defendant of vehicle theft, they must return the verdict form unsigned for 

count 2, receiving a stolen vehicle. Consistent with their finding that defendant stole the 

vehicle, the jury did not return a verdict on count 2.3

Defendant does not advance a claim that his conviction is unsupported by 

substantial evidence or raise any other claim pertaining to trial error.4 We acknowledge 

the evidence of posttheft driving is stronger than the evidence of theft, but it is well 

established that “[w]hile the mere possession of stolen property is not alone sufficient to 

sustain a conviction of grand theft [citation], such possession plus ‘slight corroborative 

evidence of other inculpatory circumstances’ will suffice.” (People v. Wissenfeld (1951) 

36 Cal.2d 758, 763; accord, People v. Anderson (2007) 152 Cal.App.4th 919, 948–949; 

People v. Clifton (1985) 171 Cal.App.3d 195, 199–200; People v. Miles (1969) 272 

Cal.App.2d 212, 218.) Here, defendant was in possession of the stolen vehicle, he 

admitted he knew it was stolen, he had shaved keys in his pocket, he claimed he 

borrowed it from a friend he declined to identify and he stated he knew how to start the 

vehicle with just his finger, which evidenced his familiarity with the means by which the 

van was stolen. The fact that the vehicle was stolen a week earlier in a different city is 

not dispositive of the matter, but, in any event, the verdict form returned by the jury 

specified theft and, consistent with a finding of theft, the jury did not return a verdict for 

receiving stolen property. (People v. Wissenfeld, supra, at p. 764 [evidence sufficient to 

3 Under the law, defendant could have been convicted of both posttheft driving in count 1

and receiving stolen property in count 2, but in light of “the common law rule forbidding dual 

convictions for both stealing and receiving the same property[,]” it would have been improper to 

convict him of both taking the vehicle and receiving the stolen vehicle. (People v. Bullard, 

supra, 9 Cal.5th at pp. 102–103; accord, People v. Ceja, supra, 49 Cal.4th at pp. 4–5.)

4 “‘[E]very brief should contain a legal argument with citation of authorities on the points 

made. If none is furnished on a particular point, the court may treat it as waived, and pass it 

without consideration. [Citations.]’” (People v. Stanley (1995) 10 Cal.4th 764, 793; accord, 

People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363–364.)
7.

support theft conviction where the defendant was in possession of a vehicle stolen 

25 days earlier].)

2. No Error

Our rejection of defendant’s argument that he was convicted of posttheft driving is 

fatal to his claim that there is insufficient evidence linking him to the theft of the tools 

from the van and his reliance on People v. Scroggins is of no assistance. (People v. 

Scroggins, supra, 191 Cal.App.3d at p. 506 [concluding restitution order based on 

burglary losses had no relationship to conviction for receiving stolen property].) “‘[T]he 

court’s discretion in setting the amount of restitution is broad, and it may use any rational 

method of fixing the amount of restitution as long as it is reasonably calculated to make 

the victim whole. [Citations.]’” (People v. Millard (2009) 175 Cal.App.4th 7, 26, 

quoting People v. Baker (2005) 126 Cal.App.4th 463, 470.) The victim was a general 

contractor who used his van exclusively for work and he submitted evidence supporting 

his claimed loss for tools that were stolen from the van. Under these circumstances, the 

trial court did not abuse its discretion in ordering restitution in the amount of $2,763 and 

we reject defendant’s claim to the contrary.5 (People v. Millard, supra, at p. 26; accord, 

People v. Baker, supra, at p. 470.)

5 Defendant also argues, “[N]either the trial court nor the prosecutor appeared to believe 

that it was established by a preponderance of the evidence that [defendant’s] conduct resulted in 

the tools being stolen[,]” but they “appeared to maintain that some restitution was necessary 

based on the damage to the van.” We need not decide whether this is a persuasive 

characterization of the record, because even if we accept it for the sake of argument, “‘“a ruling 

or decision, itself correct in law, will not be disturbed on appeal merely because given for a 

wrong reason. If right upon any theory of the law applicable to the case, it must be sustained 

regardless of the considerations which may have moved the trial court to its conclusion.” 

[Citation.]’” (People v. Zapien (1993) 4 Cal.4th 929, 976.) Here, defendant was convicted of 

vehicle theft, the parties do not dispute either the fact that tools were stolen from the van or the 

amount claimed by the victim, and the restitution order was limited to the amount sought by the 

victim for his missing tools. (People v. Millard, supra, 175 Cal.App.4th at p. 26; accord, People 

v. Baker, supra, 126 Cal.App.4th at p. 470.)
8.

II. Dueñas Claim

As previously stated, the trial court imposed a restitution fine of $300 under 

section 1202.4, subdivision (b)(1); a parole revocation restitution fine of $300 under 

section 1202.45, subdivision (a), stayed; a total court operations assessment of $200 

under section 1465.8; and a total court facilities assessment of $150 under Government 

Code section 70373. Relying on the Court of Appeal’s decision in Dueñas, defendant 

claims he is entitled to relief from the fines and assessments imposed by the trial court 

until and unless the People prove he has the ability to pay them.

Citing due process and equal protection principles, the court held in Dueñas that 

assessments pursuant to Government Code section 70373 and Penal Code section 1465.8 

may be “imposed only on those with the means to pay them[]” (Dueñas, supra, 30 

Cal.App.5th at pp. 1168–1169), and “that although the trial court is required by Penal 

Code section 1202.4 to impose a restitution fine, the court must stay the execution of the 

fine until and unless the People demonstrate that the defendant has the ability to pay the 

fine[]” (id. at p. 1172). Courts of Appeal have subsequently split regarding if and under 

what circumstances the constitutional concerns underpinning Dueñas apply. (E.g., 

People v. Son (2020) 49 Cal.App.5th 565, 592–596 & fn. 20 [restitution fines are punitive 

and imposition without ability-to-pay hearing does not implicate right of access to courts 

or violate substantive due process or equal protection rights, but limited remand 

appropriate to allow the defendant an opportunity to show inability to pay court 

assessments and to raise 8th Amend. excessive fines clause argument regarding 

restitution fine];6 People v. Cowan (2020) 47 Cal.App.5th 32, 42–49, review granted 

6 The analysis of the defendant’s Dueñas-based challenge to the imposition of the fines and 

court assessments was authored by Justice Smith. (Son, supra, 49 Cal.App.5th at pp. 592–598.) 

While Justice Snauffer concurred in the disposition, he did not join in or express an opinion on 

whether, in all cases, restitution fines are punitive in nature and not subject to an ability-to-pay 

challenge. (Id. at pp. 598–599 (conc. opn. of Snauffer, J.).) Justice Franson dissented on the 

grounds that the defendant’s constitutional rights were not violated and any error was harmless. 

(Id. at p. 599 (dis. opn. of Franson, J.).)
9.

June 17, 2020, S261952 [concluding challenge to fines and fees should be analyzed under 

excessive fines clause of federal and state Constitutions, under which ability to pay is a 

factor, and remanding matter for ability-to-pay hearing]; People v. Lowery (2020) 43 

Cal.App.5th 1046, 1053–1061 [finding Dueñas claim forfeited as to restitution fine, 

assessments and fees where court imposed restitution fine above the statutory minimum, 

but also concluding Dueñas factually distinguishable; the defendants failed to show a 

violation under due process, equal protection or excessive fines clause; and any error 

harmless given ability to earn wages in prison]; People v. Belloso (2019) 42 Cal.App.5th 

647, 662–663, review granted Mar. 11, 2020, S259755 [following Dueñas]; People v. 

Allen (2019) 41 Cal.App.5th 312, 325–330 [rejecting the defendant’s Dueñas-based due 

process and equal protection claims]; People v. Hicks (2019) 40 Cal.App.5th 320, 326–

329, review granted Nov. 26, 2019, S258946 [rejecting Dueñas’s due process analysis]; 

People v. Aviles (2019) 39 Cal.App.5th 1055, 1061 [disagreeing with Dueñas’s due 

process analysis and concluding constitutional challenge to fines, fees and assessments 

should be made under the 8th Amend.’s excessive fines clause]; People v. Kopp (2019) 

38 Cal.App.5th 47, 95–96, review granted Nov. 13, 2019, S257844 [following Dueñas as 

to assessments, but not restitution fines] (Kopp); People v. Castellano (2019) 33 

Cal.App.5th 485, 489–490 [extending Dueñas holding to claim raised by a defendant 

serving a sentence following felony conviction].)

The California Supreme Court is now poised to address issues raised by Dueñas, 

having granted review in Kopp, a case in which the Court of Appeal found that as to 

assessments, the defendants were entitled to remand for an ability-to-pay hearing under 

Dueñas, but they bore the burden of demonstrating their inability to pay. (Kopp, supra, 

38 Cal.App.5th at p. 96, review granted.) With respect to fines, the Kopp court declined 

to follow Dueñas’s due process approach and concluded that a constitutional challenge to 

a punitive fine must be raised under the excessive fines clause of the Eighth Amendment 

of the federal Constitution and article I, section 7 of the California Constitution. (Kopp, 
10.

supra, at pp. 96–98, review granted.) The California Supreme Court limited review in 

Kopp to whether courts must consider a defendant’s ability to pay in imposing fines, fees 

and assessments; and, if so, which party bears the burden of proof. The court has 

deferred briefing in Cowan, Belloso and Hicks pending its decision in Kopp.

In this case, we need not reach the merits of defendant’s Dueñas claim. Our 

resolution of defendant’s claim for relief under Senate Bill No. 136, discussed next, 

requires remand under the full resentencing rule and therefore, defendant may, if he so 

chooses, raise this issue in the trial court in the first instance.

III. Senate Bill No. 136

Finally, as previously set forth, the trial court imposed two 1-year prior prison 

term enhancements. (§ 667.5, former subd. (b).) In supplemental briefing, defendant 

requests that the enhancements be stricken in light of Senate Bill No. 136, which 

amended section 667.5, subdivision (b), effective January 1, 2020. The People concede 

defendant is entitled to the relief he seeks.

Pursuant to section 667.5, subdivision (a), and subject to an exception not relevant 

here, trial courts are required to impose a three-year sentence for each prior, separate 

prison term served by the defendant for a violent felony where the current offense is also 

a violent felony, as defined in subdivision (c) of the statute. For other felonies, pursuant 

to former subdivision (b), and subject to exceptions not relevant here, trial courts are 

required to impose an additional one-year term for each prior, separate prison term or 

county jail felony term. As amended by Senate Bill No. 136, subdivision (b) of 

section 667.5 limits imposition of the additional one-year term to each prior, separate 

prison term served for a conviction of a sexually violent offense as defined in Welfare 

and Institutions Code section 6600, subdivision (b).

In accordance with the California Supreme Court’s decision in In re Estrada

(1965) 63 Cal.2d 740, 744, “‘“[a]n amendatory statute lessening punishment is presumed 

to apply in all cases not yet reduced to final judgment as of the amendatory statute’s 
11.

effective date” [citation], unless the enacting body “clearly signals its intent to make the 

amendment prospective, by the inclusion of either an express saving clause or its 

equivalent” [citations].’” (People v. Lara (2019) 6 Cal.5th 1128, 1134, quoting People v. 

DeHoyos (2018) 4 Cal.5th 594, 600; accord, People v. Frahs (2020) 9 Cal.5th 618, 634

([“[I]n order to rebut Estrada’s inference of retroactivity concerning ameliorative 

statutes, the Legislature must ‘demonstrate its intention with sufficient clarity that a 

reviewing court can discern and effectuate it.’”].) The parties agree that Senate Bill 

No. 136 is retroactive under Estrada and, therefore, the amendment to section 667.5, 

subdivision (b), applies in this case.

The parties also agree that defendant’s prior felony convictions for assault with a 

deadly weapon or instrument other than a firearm under section 245, subdivision (a)(1), 

and for receiving a stolen vehicle under section 496d, subdivision (a), are not qualifying 

offenses under section 667.5, subdivision (b), as amended. We accept the People’s 

concessions on aforementioned points and order the two 1-year prior prison term 

enhancements stricken.

The trial court imposed the middle term of two years on count 1 for violation of 

Vehicle Code section 10851, subdivision (a). Because the court exercised discretion in 

selecting the middle term, remand for resentencing is appropriate. (People v. Buycks, 

supra, 5 Cal.5th at pp. 893, 896, fn. 15; People v. Lopez, supra, 42 Cal.App.5th at 

p. 342.)

DISPOSITION

Pursuant to Senate Bill No. 136, the two 1-year prior prison term enhancements 

imposed under section 667.5, former subdivision (b), are stricken and this matter is 

remanded for resentencing. Following resentencing, the trial court shall forward the 
12.

amended abstract of judgment to the appropriate authorities. Except as modified, the 

judgment is affirmed.

MEEHAN, J.

WE CONCUR:

HILL, P.J.

SMITH, J.