Filed 10/12/23 P. v. Moore CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

LAMARR MOORE,

Defendant and Appellant.

 B322489

 (Los Angeles County

 Super. Ct. No. MA078625)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Kathleen Blanchard, Judge. Affirmed as modified.

Aaron J. Schechter, under appointment by the Court of Appeal, for 

Defendant and Appellant.

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

Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Wyatt 

E. Bloomfield, Supervising Deputy Attorney General, and Nicholas J. 

Webster, Deputy Attorney General, for Plaintiff and Respondent.
2

INTRODUCTION

A jury convicted defendant Lamarr Moore of attempted murder, three 

counts of assault, and other firearm-related offenses. Defendant asserts 

multiple sentencing errors on appeal. He contends the trial court erred in: 

(1) imposing the upper term on one of his firearm enhancements (Pen. Code, 

§ 1170, subd. (b));

1 (2) failing to dismiss all but one firearm enhancement 

(§ 1385, subd. (c)(2)(B)); (3) miscalculating his presentence credits; and 

(4) imposing two assessments and a restitution fine without determining 

defendant’s ability to pay. 

We conclude that defendant forfeited any claim of error based on the 

trial court’s imposition of the upper term as well as the court’s failure to 

assess defendant’s ability to pay. We further conclude the court was not 

required to dismiss all but one enhancement under section 1385, subdivision 

(c)(2)(B). We accept the Attorney General’s concession that the presentence 

credits were miscalculated but reject defendant’s assertion the court erred in 

applying all of his conduct credits to his 364-day county jail term in count 1. 

We therefore modify the judgment but otherwise affirm. 

PROCEDURAL BACKGROUND

We provide only the facts relevant to the issues raised on appeal. 

In June 2022, a jury found defendant guilty of exhibiting a concealed 

firearm in public (§ 417, subd. (a)(2)(A), count 1), four counts of felon in 

possession of a firearm (§ 29800, subd. (a)(1), counts 2 and 7 through 9), 

attempted murder (§§ 664/187, subd. (a), count 3), three counts of assault 

with a firearm (§ 245, subd. (a)(2), counts 4 through 6), and unlawful 

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

stated. 
3

possession of ammunition (§ 30305, subd. (a)(1), count 10). As to counts 3 

through 6, the jury found true the allegation that defendant personally used 

a firearm (§ 12022.5, subd. (a)). Prior to trial, defendant admitted he had a 

prior felony conviction for carrying a concealed firearm (§ 25400, subd. (a)(2)) 

for purposes of the felon in possession of a firearm charge. 

At the sentencing hearing in July 2022, the trial court noted both 

parties had stipulated that the court could use the probation officer’s report 

for purposes of sentencing. The court acknowledged the “newly amended 

Penal Code section 1170[, subdivision] (b)(2),” and explained that it was “now 

limited to imposing a sentence that does not exceed the middle term, except 

when circumstances in aggravation have been admitted by the defendant, 

proven to the jury or to the court.” However, “the court can look at the 

defendant’s criminal history.” 

The court then sentenced defendant to an aggregate term of 27 years 

and 4 months in state prison. As relevant here, the court designated count 3 

(attempted murder) as the base term and sentenced defendant to the 

midterm of 7 years plus the upper term of 10 years for the firearm 

enhancement. The court explained that the upper term on the firearm 

enhancement was imposed based on its finding the following two factors in 

aggravation: “[t]he defendant has engaged in violent conduct that indicates a 

serious danger to society” (Cal. Rules of Court, rule 4.421(b)(1));2 and “[t]he 

defendant’s prior convictions as an adult or sustained petitions in juvenile 

delinquency proceedings are numerous or of increasing seriousness” (Cal. 

Rules of Court, rule 4.421(b)(2)). 

2 The trial court indicated it was relying on California Rules of Court, 

rules 4.421(b)(2), (b)(3). However, it is clear from the record (and to the 

parties) that the court intended to reference rules 4.421(b)(1) and (b)(2). 
4

The court granted defendant 541 days of presentence credits, which 

included 470 days of actual credits and 71 days of conduct credit. The court 

then applied all 71 days of conduct credit and 293 days of actual credit to 

satisfy the 364-day sentence he was to serve in county jail in count 1. After 

the credit for time served, the court indicated “there will be a . . . total of 165 

days of credit” remaining. The court imposed $400 in court operations 

assessments, $300 in conviction assessments, and a $500 restitution fine. 

Defendant filed a timely notice of appeal. 

DISCUSSION

1. Imposition of the Upper Term 

Defendant contends that we must vacate the sentence and remand the 

matter because he did not admit, and the jury did not find true beyond a 

reasonable doubt, the facts underlying the circumstances in aggravation that 

the trial court relied upon in imposing the upper term for the firearm 

enhancement in count 3. We agree with the Attorney General that the issue 

is forfeited. 

A. Senate Bill No. 567

In late 2021, Senate Bill No. 567 was signed into law, amending the 

determinate sentencing scheme in section 1170, subdivision (b). Prior to the 

bill’s passage, section 1170, subdivision (b), permitted sentencing courts to 

impose determinate sentences comprised of either the lower, middle, or upper 

terms. Sentencing courts had broad discretion to impose any of the three 

terms and could make factual findings regarding aggravating or mitigating 

circumstances as described in California Rules of Court, rules 4.421 and 

4.423.
5

On January 1, 2022, under the newly amended law, the middle term 

was deemed the presumptive term of imprisonment. (§ 1170, subd. (b)(1).) 

Following the enactment of Senate Bill No. 567, sentencing courts may only 

impose the upper term sentence where there are circumstances in 

aggravation that justify imposition of a term of imprisonment exceeding the 

middle term, and the facts underlying all of the aggravating circumstances 

have been stipulated to by the defendant or are found true beyond a 

reasonable doubt by a jury or a trial court. (§ 1170, subds. (b)(1), (2).) As an 

exception to the general rule, a trial court is permitted to rely upon a certified 

record of conviction to determine prior criminality for purposes of sentencing 

without submitting the prior conviction to a jury. (§ 1170, subd. (b)(3).) 

B. Forfeiture 

“[T]he right to challenge a criminal sentence on appeal is not 

unrestricted. In order to encourage prompt detection and correction of error, 

and to reduce the number of unnecessary appellate claims, reviewing courts 

have required parties to raise certain issues at the time of sentencing. In 

such cases, lack of a timely and meaningful objection forfeits or waives the 

claim.” (People v. Scott (1994) 9 Cal.4th 331, 351, italics omitted.) The 

forfeiture doctrine applies to “claims involving the trial court’s failure to 

properly make . . . its discretionary sentencing choices.” (Id. at p. 353; accord, 

People v. Scott (2015) 61 Cal.4th 363, 406.) For the forfeiture doctrine to 

apply, the trial court must give the parties a meaningful opportunity to object 

or seek clarification of potential errors in a sentence. (People v. Gonzalez

(2003) 31 Cal.4th 745, 752.)

Here, defendant was sentenced in July 2022 after Senate Bill No. 567’s 

effective date. (Stats. 2021, ch. 731, eff. Jan. 1. 2022.) At sentencing, the 
6

parties and the trial court were aware of the newly amended section 1170. 

Defendant did not object to the court’s reliance on two aggravating factors 

(Cal. Rules of Court, rule 4.421(b)(1), (2)) to impose the upper term.

In a footnote, defendant resists this conclusion by contending the issue 

is preserved for appellate review because his substantial rights are at stake, 

citing section 1259. In In re Seaton (2004) 34 Cal.4th 193, 198, our Supreme 

Court held: “Penal Code section 1259, provides: ‘Upon an appeal taken by 

the defendant, the appellate court may . . . review any question of law 

involved in any ruling, order, instruction, or thing whatsoever said or done at 

the trial or prior to or after judgment, which thing was said or done after 

objection made in and considered by the lower court, and which affected the 

substantial rights of the defendant.’ (Italics added.) Thus, as a general rule, 

‘the failure to object to errors committed at trial relieves the reviewing court 

of the obligation to consider those errors on appeal.’ [Citations.] This applies 

to claims based on statutory violations, as well as claims based on violations 

of fundamental constitutional rights. [Citations.]” (Id. at pp. 197–198.) 

Accordingly, defendant’s contention is forfeited on appeal. 

2. Section 1385, subdivision (c)(2)(B)

In 2021, the Legislature enacted Senate Bill No. 81 (2021-2022 Reg. 

Sess.) (Stats. 2021, ch. 721, § 1), amending section 1385 to set forth factors 

that the trial court must consider when determining whether to exercise its 

discretion to strike enhancements from a sentence in the interest of justice. 

(People v. Sek (2022) 74 Cal.App.5th 657, 674.) Defendant contends that the 

newly added subdivision (c)(2)(B) of section 1385 mandates dismissal of all 

but one of his firearm enhancements. 
7

Section 1385, subdivision (c), now provides in relevant part: “(1) 

Notwithstanding any other law, the court shall dismiss an enhancement if it 

is in the furtherance of justice to do so, except if dismissal of that 

enhancement is prohibited by any initiative statute. [¶] (2) In exercising its 

discretion under this subdivision, the court shall consider and afford great 

weight to evidence offered by the defendant to prove that any of the 

mitigating circumstances in subparagraphs (A) to (I) are present. Proof of 

the presence of one or more of these circumstances weighs greatly in favor of 

dismissing the enhancement, unless the court finds that dismissal of the 

enhancement would endanger public safety.” The mitigating circumstance 

relevant here provides, “Multiple enhancements are alleged in a single case.

In this instance, all enhancements beyond a single enhancement shall be 

dismissed.” (§ 1385, subd. (c)(2)(B).)

Defendant argues use of the word “shall” in section 1385, subdivision 

(c)(2)(B), required the trial court to dismiss all but one of his firearm

enhancements, and the court erred in failing to do so. California courts have 

consistently rejected this same argument in interpreting the “‘shall be 

dismissed’” language of subdivision (c)(2)(B) and the similarly worded 

subdivision (c)(2)(C)3 of amended section 1385. (See People v. Mendoza (2023) 

88 Cal.App.5th 287, 294–297 [rejecting appellant’s assertion that under subd.

(c)(2)(C), dismissal is required where an enhancement would result in a 

prison sentence of over 20 years]; People v. Anderson (2023) 88 Cal.App.5th 

233, 239–241 (Anderson) [concluding the use of the word “shall” in subd.

(c)(2)(B) and (C) is permissive, not mandatory], review granted Apr. 19, 2023, 

3 Subdivision (c)(2)(C) of section 1385 states: “The application of an 

enhancement could result in a sentence of over 20 years. In this instance, the 

enhancement shall be dismissed.” (Italics added.) 
8

S278786; People v. Lipscomb (2022) 87 Cal.App.5th 9, 15–21 [rejecting 

appellant’s contention the court was required to strike an enhancement 

under subd. (c)(2)(C)]; People v. Walker (2022) 86 Cal.App.5th 386, 396–398

(Walker) [explaining that if the court were to interpret subd. (c)(2)(B) and (C) 

as mandatory, then the existence of the mitigating factors therein “would not 

‘weigh greatly’ in favor of dismissal—it would weigh dispositively”], review 

granted Mar. 22, 2023, S278309.)4

We agree with our colleagues and adopt the reasoning in these cases. 

Therefore, we reject defendant’s assertion that the trial court was required to 

dismiss all but one firearm enhancement under subdivision (c)(2)(B) of 

section 1385. The dismissal of an enhancement where “[m]ultiple 

enhancements are alleged in a single case” (§ 1385, subd. (c)(2)(B)) is not 

required if “dismissal of the enhancement would endanger public safety” (Id. 

subd. (c)(2)). 

3. Presentence Credit 

The trial court awarded 541 days of presentence credits, which 

consisted of 470 days of actual credit plus 71 days of conduct credit. 

Defendant contends, and the Attorney General agrees, this award of 

presentence credits miscalculates the actual credit he should have received 

for the days he spent in custody. (§ 2900.5, subd. (a).) Based on the record, 

4 In Walker, the Supreme Court granted review on a different issue:

“Does the amendment to Penal Code section 1385, subdivision (c) that 

requires trial courts to ‘afford great weight’ to enumerated mitigating 

circumstances (Stats. 2021, ch. 721) create a rebuttable presumption in favor 

of dismissing an enhancement unless the trial court finds dismissal would 

endanger public safety?” The petition for review in Anderson was 

subsequently granted, and the matter was deferred pending consideration 

and disposition of the issue presented in Walker.
9

we agree with the parties that defendant was entitled to 472 days of actual 

credit. He served two periods in custody from March 24, 2020 to March 25, 

2020, and then from April 6, 2021 to July 19, 2022, the date of the sentencing 

hearing. Likewise, the conduct credits must be adjusted to reflect 15 percent 

of the modified actual credits. (§ 2933.1, subd. (c).) Thus, defendant was

entitled to 70 days of conduct credit. (See People v. Ramos (1996) 50 

Cal.App.4th 810, 816–817 [determining that in applying the 15 percent 

credit, the court should round the credit to the nearest whole number that 

does not exceed 15 percent].) 

Defendant does not dispute the trial court properly applied 364 

presentence credits to the 364-day sentence in county jail in count 1. After 

applying these presentence credits to count 1, the parties agree defendant 

has 178 presentencing credits remaining (not 165 as indicated by the court). 

However, defendant disagrees with the ratio of actual credits and conduct

credits used for his 364-day sentence. It appears from the abstract of 

judgement that the trial court applied all of defendant’s conduct credits and 

then satisfied the remainder of the 364 days with actual credits. Citing 

section 2933.1, defendant argues that the court should have applied 

defendant’s presentence credits to count 1 at a ratio of 75 percent actual 

credits and 15 percent conduct credits. We disagree. 

Section 2933.1 provides, in pertinent part, “any person who is convicted 

of a [violent] felony offense . . . shall accrue no more than 15 percent of 

worktime credit.” (§ 2933.1, subd. (a), italics added.) This subdivision 

dictates how conduct credits are accrued, not how such credits are applied to 

a sentence. Defendant cites no authority to the contrary. Moreover, 

defendant readily admits in reply and at oral argument that the court’s 
10

allocation of the presentence credits has not prejudiced him in any way. (See 

Cal. Const., art. VI, § 13.)

Therefore, we modify the judgment to reflect 178 days of presentence 

credit remaining, which consists of only actual credits. 

4. Assessments and Restitution Fine

At sentencing, the trial court ordered defendant to pay $400 in court 

operations assessments, $300 in conviction assessments, and a $500 

restitution fine. Defense counsel did not object to the imposition of these 

sums or request a hearing on defendant’s ability to pay them, and the court 

did not inquire into or make a finding on defendant’s ability to pay these 

assessments and fines. 

Citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), decided 

several years before his sentencing hearing, defendant argues that the trial 

court violated his right to due process by imposing these financial obligations 

without first finding he had the ability to pay them. In Dueñas, the court 

held that “due process of law requires the trial court to conduct an inability 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.) It also 

held that “although Penal Code section 1202.4 bars consideration of a 

defendant’s ability to pay unless the judge is considering increasing the fee 

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 
11

ability to pay hearing and concludes that the defendant has the present 

ability to pay the restitution fine.” (Ibid.)5

The absence of a timely objection on ability to pay grounds forfeits 

defendant’s challenge to the restitution fine and assessments. (People v. 

Flowers (2022) 81 Cal.App.5th 680, 687, review granted on other grounds on 

Oct. 12, 2022, S276237; People v. Frandsen (2019) 33 Cal.App.5th 1126, 

1153–1154; People v. Greeley (2021) 70 Cal.App.5th 609, 624.) Dueñas was 

decided nearly three years before defendant’s sentencing hearing in July 

2022. Defendant was thus on notice for over two years of the decision in 

Dueñas and, therefore, his challenge to the assessments and restitution fine 

is forfeited.

To avoid forfeiture, defendant contends the trial court failed to exercise 

its discretion by holding a hearing. However, the defendant bears the burden 

of raising this issue in the first instance. (People v. Castellano (2019) 33 

Cal.App.5th 485, 490.) Defendant then contends the failure to assess his 

ability to pay means that the resulting imposition of assessments and 

restitution fine constitutes an “unauthorized sentence” that can be attacked 

at any time. We disagree. (People v. Torres (2020) 44 Cal.App.5th 1081, 1085 

[imposition of fines and assessments without an ability-to-pay finding is not 

an “unauthorized sentence”]; People v. Avila (2009) 46 Cal.4th 680, 729 

[same].) Moreover, defendant’s attempt to frame this issue as a 

constitutional one does not preserve it for appeal. (People v. McCullough 

5 Our Supreme Court is poised to resolve a split in authority regarding 

whether Dueñas was correctly decided, having granted review in People v. 

Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844, 

on the following issues: “Must a court consider a defendant’s ability to pay 

before imposing or executing fines, fees, and assessments? If so, which party 

bears the burden of proof regarding defendant’s inability to pay?” 
12

(2013) 56 Cal.4th 589, 592–593 [forfeiture principles apply to constitutional 

claims]; see also In re Sheena K. (2007) 40 Cal.4th 875, 880–881 [“‘“[n]o 

procedural principle is more familiar to this Court than that a constitutional 

right,” or a right of any other sort, “may be forfeited in criminal as well as 

civil cases by the failure to make timely assertion of the right before a 

tribunal having jurisdiction to determine it”’”].)

Defendant’s ineffective assistance of counsel claim is equally 

unavailing. The record is silent as to counsel’s reasons, if any, for failing to 

object. If “‘“the record on appeal sheds no light on why counsel acted or failed 

to act in the manner challenged[,] . . . unless counsel was asked for an 

explanation and failed to provide one, or unless there simply could be no 

satisfactory explanation,” the claim on appeal must be rejected.’” (People v. 

Mendoza Tello (1997) 15 Cal.4th 264, 266; People v. Caro (2019) 7 Cal.5th 

463, 488.) Because the record does not affirmatively exclude a rational basis 

for counsel’s omission, defendant fails to establish ineffective assistance of 

counsel. (See People v. Mickel (2016) 2 Cal.5th 181, 198.) 

In support of his alleged inability to pay, defendant points out he was 

indigent and appointed counsel at trial and on appeal. However, the fact that 

a defendant is represented by appointed counsel does not automatically 

establish his inability to pay fines or assessments. (See e.g., People v. 

Douglas (1995) 39 Cal.App.4th 1385, 1397 [noting defendant may lack the 

ability to pay the costs of court-appointed counsel yet have the ability to pay 

a restitution fine]; see also People v. Vournazos (1988) 198 Cal.App.3d 948, 

958 [record supported finding of defendant’s ability to pay $2,180 in 

restitution despite being indigent enough to qualify for court-appointed 

counsel and inability to post bail].)
13

DISPOSITION

The judgment is modified to reflect that defendant has 178 days of

presentence credit, and specifically 178 days of actual credit. As modified, 

the judgment is affirmed. The superior court clerk is directed to prepare a 

minute order and amended abstract of judgment to reflect the modification 

and to forward a copy of the amended abstract of judgment to the California 

Department of Corrections and Rehabilitation. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZUKIN, J.

WE CONCUR:

COLLINS, Acting P. J. MORI, J.