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Filed 6/13/24 P. v. Welcome CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Butte)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT CARL WELCOME,

Defendant and Appellant.

C098358

(Super. Ct. No. 21CF04634)

Following a domestic dispute with his ex-wife that led to a police pursuit, 

defendant Robert Carl Welcome pled no contest to assault with a deadly weapon, 

inflicting corporal injury on a spouse or cohabitant, and recklessly evading a pursuing 

peace officer. He admitted a prior strike conviction, which the trial court declined to 

dismiss, and received nine years four months in state prison. 

On appeal, defendant challenges various financial obligations imposed at 

sentencing based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the Eighth

Amendment’s prohibition against excessive fines, and equal protection. To the extent any 
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of these issues are deemed forfeited, defendant argues his counsel was ineffective for 

failing to raise the objections below.

We conclude defendant has forfeited his appellate contentions regarding the 

challenged fees and fines, and that he cannot establish ineffective assistance of counsel 

on this record. We therefore affirm.

I. BACKGROUND

In September 2021, defendant’s ex-wife called Paradise police to report that 

defendant had assaulted her and was trying to ram her in an orange dump truck after she 

fled in her car.1 Responding officers saw an orange dump truck chasing another car and 

attempted to stop it. Defendant was driving the dump truck at an excessive rate of speed, 

crossed lanes of traffic unsafely, and drove into two ditches and hit a power pole. 

Defendant refused to stop, and officers eventually terminated the chase for safety reasons. 

His ex-wife later told the officers that before the chase, defendant had hit her during an 

argument, causing bruising and swelling on her face and cutting her eye and mouth; he 

also threatened to kill her. Defendant was subsequently apprehended. 

In March 2022, defendant was charged in Butte County case No. 21CF04634 with 

assault with a deadly weapon, a vehicle (Pen. Code, § 245, subd. (a)(1)—count 1),2

criminal threats (§ 422, subd. (a)—count 2), corporal injury of a spouse or cohabitant 

(§ 273.5, subd. (a)—count 3), false imprisonment by violence (§ 236—count 4), and two 

counts of fleeing a pursuing peace officer’s motor vehicle while driving recklessly (Veh. 

Code, § 2800.2, subd. (a)—counts 5 & 6). For counts 1 through 3, it was alleged that 

defendant had five prior serious felony convictions. (§ 667, subd. (a)(1).) For all counts 

it was alleged that defendant had five prior violent or serious felony strike convictions 

1 This brief factual background is based on the probation report, which the parties 

stipulated to as the factual basis for defendant’s plea. 

2 Further unspecified section references are to the Penal Code.
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(§§ 667, subds. (b)-(j), 1170.12) and that he had been released on bail or on his own 

recognizance in Santa Clara County case Nos. C2108524 and C2106558 when he 

committed the present offenses. (§ 12022.1.) 

In December 2022, defendant pled no contest to count 1 (assault with a deadly 

weapon), count 3 (corporal injury), and count 5 (recklessly fleeing a pursuing peace 

officer), and admitted one prior strike conviction in exchange for dismissal of the 

remaining charges and allegations with a Harvey3 waiver. Defendant admitted the 

aggravating factors that he was armed with or used a weapon during the offense and that 

he engaged in violent conduct that indicated a serious danger to society. The parties 

agreed to the preliminary hearing transcript and the probation report as the factual basis 

for the plea. 

The trial court denied defendant’s Romero4 motion to strike the prior strike 

conviction, and sentenced him to an aggregate determinate term of nine years four 

months in prison, including the midterm of three years for the assault offense, doubled to 

six years for the strike prior, a consecutive term of one year (one third the midterm) for 

the corporal injury offense, doubled for the strike, and a consecutive eight months (one 

third the midterm) for the reckless fleeing conviction, doubled for the strike prior. The 

trial court imposed a $300 restitution fine (§ 1202.4), a $300 parole revocation restitution 

fine (§ 1202.45), suspended unless parole was revoked, a $250 domestic violence 

program fee (§ 1463.27), a $90 criminal conviction assessment (Gov. Code, § 70373), 

and a $120 court operations assessment (§ 1465.8). The court awarded credits (§ 4019) 

3 People v. Harvey (1979) 25 Cal.3d 754.

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 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
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and granted a 10-year postjudgment criminal protection order. (§ 136.2.) Defendant 

timely appealed without a certificate of probable cause.5 

II. DISCUSSION

Defendant contends the trial court abused its discretion and violated his 

constitutional rights by imposing mandatory assessments and a restitution fine without 

determining his ability to pay. He relies primarily on Dueñas, supra, 30 Cal.App.5th 

1157, arguing the trial court failed to find he had the ability to pay the court operations 

and criminal conviction assessments before imposing them, and that the assessments 

must be stayed pending an ability to pay hearing. Defendant further asserts the restitution 

fine violates the Eighth Amendment’s prohibition against excessive fines, and that 

imposing the restitution fine without considering his ability to pay violates equal 

protection. 

In Dueñas, the court reversed an order imposing the court operations and the 

criminal conviction assessments (§ 1465.8; Gov. Code, § 70373) after concluding that it 

was “fundamentally unfair” and violated due process under the federal and California 

Constitutions to impose the assessments without determining a defendant’s ability to pay. 

(Dueñas, supra, 30 Cal.App.5th at p. 1168.) Dueñas also concluded that the execution of 

a restitution fine under section 1202.4 “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.”6 (Dueñas, supra, at p. 1164.)

5 While defendant’s appeal was pending, defense counsel submitted a letter to the trial 

court pursuant to section 1237.2 requesting that the court stay the assessments and 

restitution fine pending an ability to pay hearing. The trial court declined to act on the 

request. 

6 Courts are split on whether Dueñas was correctly decided, and the Supreme Court is 

set to resolve the issue after granting review in People v. Kopp (2019) 38 Cal.App.5th 47, 

95-96, review granted Nov. 13, 2019, S257844, on the following issue: “Must a court 
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Defendant, however, concedes that he did not raise these objections below at the 

sentencing hearing. The lack of a specific objection on these precise grounds, the People 

argue, forfeits the claims of error on appeal. We agree with the People.

In general, a defendant who fails to request an ability to pay hearing based on 

Dueñas in the trial court forfeits the issue on appeal. (See e.g., People v. Greeley (2021) 

70 Cal.App.5th 609, 624 [failure to request ability to pay hearing during sentencing, 

which occurred several months after Dueñas was decided, forfeited Dueñas issue].) The 

same principle applies to defendant’s constitutional excessive fines and equal protection 

claims. (See e.g., People v. McCullough (2013) 56 Cal.4th 589, 592-593 [constitutional 

challenge to booking fee forfeited]; People v. Torres (2019) 39 Cal.App.5th 849, 860 & 

fn. 4 [excessive fines claim forfeited in absence of timely objection].) “ ‘ “[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.” ’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 880-881.)

In this case, defendant did not request an ability to pay hearing or otherwise cite 

Dueñas (even though it was decided four years earlier), the Eighth Amendment’s 

excessive fines clause, or equal protection during the sentencing hearing when discussing 

fees and fines. While defense counsel did raise a concern regarding the $9,900 restitution 

fine recommended by probation, once the trial court indicated that it intended to impose 

only the minimum $300 restitution fine, defense counsel submitted on the issue without 

further objection. Defendant has therefore forfeited his appellate challenges to the fees 

and fines.

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?” (See People v. Kopp, 2019 Cal. LEXIS 8371.)
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Anticipating forfeiture, defendant argues that his trial counsel was ineffective for 

failing to request an ability to pay hearing below or otherwise object to the fees and fines 

on constitutional grounds. To establish a claim for ineffective assistance of counsel, 

defendant must show his counsel’s performance was deficient and that he suffered 

prejudice as a result. (People v. Mickel (2016) 2 Cal.5th 181, 198 (Mickel); Strickland v. 

Washington (1984) 466 U.S. 668, 687-692.) To demonstrate prejudice, defendant must 

show a reasonable probability that, but for counsel’s deficient performance, the outcome 

of the proceeding would have been different. (Mickel, supra, at p. 198.) We presume 

that “counsel’s actions fall within the broad range of reasonableness, and [we] afford 

‘great deference to counsel’s tactical decisions.’ ” (Ibid.) 

As our Supreme Court has observed, “certain practical constraints make it more 

difficult to address ineffective assistance claims on direct appeal rather than in the context 

of a habeas corpus proceeding.” (Mickel, supra, 2 Cal.5th at p. 198.) This is because 

“[t]he record on appeal may not explain why counsel chose to act as he or she did. Under 

those circumstances, a reviewing court has no basis on which to determine whether 

counsel had a legitimate reason for making a particular decision, or whether counsel’s 

actions or failure to take certain actions were objectively unreasonable.” (Ibid.) Thus, 

we will reverse only if there is affirmative evidence that counsel had no rational tactical 

purpose for an act or omission. (Ibid.; People v. Mendoza Tello (1997) 15 Cal.4th 264, 

266 [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’ ”].) A defendant, therefore, bears a difficult burden when 

asserting an ineffective assistance claim on direct appeal. (Mickel, supra, at p. 198.) 

Defendant has not met this heavy burden here. While the record is silent as to 

counsel’s reasons, if any, for failing to request an ability to pay hearing or object to the 
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minimum fees and fines, it does disclose a tactical reason for not objecting based on 

inability to pay grounds. 

Notably, when denying defendant’s Romero motion prior to sentencing, the trial 

court specifically commented that defendant was employed prior to being arrested for the 

current offenses. Defense counsel reasonably could have determined that the trial court 

was unlikely to find an inability to pay given defendant’s past employment as well as his 

future ability to pay the fines and fees. (See e.g., People v. Kramis (2012) 

209 Cal.App.4th 346, 350 [a trial court may consider a defendant’s future earning 

capacity when determining inability to pay]; People v. Frye (1994) 21 Cal.App.4th 1483, 

1487 [“trial court is not limited to a consideration of a defendant’s present financial 

circumstances; rather, the court may consider the future financial prospects of a 

defendant” when imposing fees and fines].) 

Because the record discloses a tactical reason for counsel omitting an ability to 

pay objection, defendant cannot establish ineffective assistance of counsel.

III. DISPOSITION

The judgment is affirmed.

/S/

 

RENNER, J.

We concur:

/S/

 

HULL, Acting P. J.

/S/

 

ROBIE, J.