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Filed 10/29/20 P. v. Davila CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

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 This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ALBERT DAVILA, JR.,

Defendant and Appellant.

 A157826

 (Solano County

 Super. Ct. No. VCR232169)

Appellant Albert Davila, Jr., was on October 18, 2018, charged by the 

Solano County District Attorney with a single count of evading a pursuing 

peace officer in willful disregard of public safety. (Veh. Code, § 2800.2, 

subd. (a).) (Section 2800.2, subd. (a).) After a one-day trial, a jury found him 

guilty. At sentencing on July 9, 2019, the court suspended imposition of 

sentence and placed him on formal felony probation with the condition, 

among others, that he serve 210 days in county jail. 

This timely appeal advances two claims: (1) the court’s conclusion that 

section 2800.2, subdivision (a) eliminated judicial discretion to impose a jail 

term of less than 180 days misinterpreted the statute, and the failure to 

consider imposition of a lesser term constituted a denial of due process

requiring remand for resentencing; and (2) the court’s failure to consider 

appellant’s ability to pay before imposing restitution, fines, and other fees 
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also requires that the case be remanded to enable the court to make that 

inquiry.

For the reasons set forth below, we shall find it unnecessary to 

determine whether the court misinterpreted section 2800.2, subdivision (a) 

because, even if it did, it was harmless. We shall also find that, in the 

circumstances of this case, the court’s failure to inquire into appellant’s 

ability to pay before imposing various fines and fees was not prejudicial error.

FACTS AND PROCEEDINGS BELOW

The People’s Evidence

On Monday, May 12, 2018, about 7:00 p.m., Vallejo Police Officers 

Travis Aspergren and Ken Jackson saw a gray, pickup truck “spinning 

donuts” on Pomona Street in a residential neighborhood of North Vallejo. 

The truck was several blocks away from the officers, who noticed parked 

vehicles on both sides of the street near the truck and children playing on the 

nearby sidewalk. Officer Aspergren described “donuts” as “when a car stays 

in one place and drives around in a circle, causing skid marks and smoke.” 

After observing this activity, Officer Aspergren activated his patrol car’s 

emergency lights and drove toward the truck while Officer Jackson notified 

dispatch about what was happening. 

Concerned about public safety, the officers intended to conduct a traffic 

enforcement stop. After it stopped spinning, the truck proceeded toward the 

oncoming patrol car, eastbound on Whitney toward Pomona Street. When

the driver of the truck saw the officers, he turned onto Pomona without 

signaling or slowing down. The officers followed the truck, which was then 

travelling at 40 to 50 miles per hour in a 25 miles-per-hour residential zone. 

At the intersection of Pomona and Stanford Streets the truck turned right 

onto Stanford without halting at a stop sign. The truck ran through another 
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stop sign at Stanford and Mini Streets, where children were playing in the 

street and pedestrians were on the sidewalks. 

At the intersection of Stanford and Corcoran Streets, the driver tried to 

turn right into Corcoran but was unable to complete the turn because the 

vehicle was moving too fast. Instead, the driver drove onto the lawn and 

within five feet of the house at 156 Stanford Street. The driver then put the 

truck into reverse and crossed Stanford before crashing into two parked cars 

and a tree. When the driver, appellant, alighted from the vehicle, Officers 

Aspergren and Jackson approached him with guns drawn, ordered him to the 

ground, and handcuffed him. In the truck, the officers found an open bottle of 

vodka. The owner of 156 Stanford Street found damage from the truck in the 

front of her house, as well as cracked drywall inside the home. 

The Defense Evidence

Appellant, the sole defense witness, testified that on the day of the 

incident he attended a family barbecue. After leaving the event and on the 

way to a McDonald’s, he stopped at a stop sign at the intersection of Mini and 

Whitney Streets. While there, “a couple of people from the neighborhood that 

were local . . . told me my car was old and it couldn’t do donuts and 

everything.” Deciding to show them wrong, appellant performed some 

donuts. Seeing some of the neighborhood people smile, appellant drove to the 

smaller intersection at Stanford and Corcoran, thinking it was “more of a 

challenge.” He tried to slow down as he approached the intersection but his 

brakes failed and he drove onto the lawn of a house. As he backed up, the 

engine unexpectedly “accelerated extremely fast,” and he tried but was 

unable to use the handbrake to avoid hitting parked cars. 

Appellant testified he had not seen officers Aspergren and Jackson 

until after he hit the parked cars and thought they were there to help, not 
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arrest him. He didn’t see the officers earlier because he was distracted by the 

smoke and noise from his donuts. Appellant testified, “I couldn’t intend to 

evade them if I didn’t see them.” 

DISCUSSION

As earlier noted, appellant makes two claims—that the trial court 

erred in (1) interpreting section 2800.2, subdivision (a) as depriving it of 

discretion to impose a jail term of less than 180 days, and (2) failing to 

consider appellant’s ability to pay before imposing restitution, fines, and 

other fees—and we address them in turn.

I.

Section 2800.2, subdivision (a) provides as follows:

“If a person flees or attempts to elude a pursuing peace officer in 

violation of Section 2800.1 and the pursued vehicle is driven in a willful or 

wanton disregard for the safety of persons or property, the person driving the 

vehicle, upon conviction, shall be punished by imprisonment in the state 

prison, or by confinement in the county jail for not less than six months nor 

more than one year. The court may also impose a fine of not less than one 

thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or 

may impose both that imprisonment or confinement and fine.” (Italics 

added.)

The offense section 2800.2, subdivision (a) refers to is an “alternative 

felony/misdemeanor, commonly referred to as a “wobbler” (People v. Statum

(2002) 28 Cal.4th 682, 685); that is, the offense “is deemed a felony unless 

charged as a misdemeanor by the People or reduced to a misdemeanor by the 

sentencing court under Penal Code section 17, subdivision (b).” (Id. at 

p. 685.) In this case, the People did not charge the offense as a misdemeanor 

and the court did not reduce it to the lower offense.
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The probation department recommended appellant be granted 

probation and deferred to the court whether it should include a jail sentence. 

At the sentencing hearing, the court observed that even if it granted 

probation the plain language of section 2800.2, subdivision (a) required a jail 

term between six months and one year as a condition of probation. 

Disagreeing, defense counsel argued that the statute does not explicitly 

mandate punishment “by imprisonment in the state prison, or by 

confinement in the county jail for not less than six months . . .” where, as 

here, the person is granted probation. Counsel urged the court to impose a 

jail term less than six months.

After appellant waived arraignment, the court observed that though it 

agreed with the People that a low term was possible, it was nevertheless also 

“willing to afford [appellant] the opportunity of formal probation.” The court 

expressed its determinations as follows:

“So I will suspend the imposition of judgment and sentence, place him 

on formal probation for three years. I’m going to sentence him to—and by the 

way, the law under 2800.2 says the following if a person is convicted of this, 

‘Shall be punished in state prison or in county jail for not less than six 

months, no more than a year. Shall be punished by imprisonment in state 

prison or confinement in county jail for not less than six months, no more 

than a year. 

“I will take that on its face for what I think that means. I’m going to 

sentence him to 210 days today. I’m coming off of the People’s request for a

year because, again, despite the recklessness of this, it was somewhat of a 

short pursuit.

“And, again, doing donuts in the street where there is kids playing is 

extremely reckless, and then losing control of his vehicle and damaging 
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property in the community, again, is extremely dangerous. So, I’m going to 

come off the one year and come down to 210 days.

“I’m going to give him credit for two plus two against that.[1] He will 

serve that [sentence] forthwith. I will order a 300-dollar fine pursuant to 

1202.4. 300-dollar fine pursuant to 1202.44. That will be stayed. 300-dollar 

probation fee. 40-dollar security surcharge. A 30-dollar criminal conviction 

fee.

“He will pay restitution to the victims as determined by Probation. We 

will retain jurisdiction for any restitution disputes. He will provide financial 

information as requested by Probation. Report to Probation for a financial 

evaluation as to his ability to pay these costs.” 

Appellant argues that the provisions of section 2800.2, subdivision (a) 

relating to custody “only provides that the convicted defendant ‘shall be 

punished by imprisonment in the state prison, or by confinement in the 

county jail for not less than six months nor more than one year.’ It says 

nothing about the length of any imprisonment which is a term of probation.” 

According to appellant, “[t]he alternative sentencing language in section 

2800.2, subdivision (a), places no restriction on the court’s authorization to 

sentence a misdemeanor and impose a county jail term. Such language refers 

only to imposition of sentence and does not impose any limitations on the 

court’s discretion to impose jail time as a term of probation, when the court 

suspends imposition of sentence and grants probation. When the court chose 

to grant formal felony probation to appellant, it could have elected to require 

any county jail term up to one year or none at all. No jail time is mandated 

as a condition of probation for violation of Vehicle Code section 2800.2, 

1 That is, the court awarded appellant four days of credit pursuant to 

Penal Code section 4019. 
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subdivision (a). The court had broad discretion and could have considered 

granting misdemeanor probation with no jail time.”

Appellant maintains that because the court “did not understand the 

true scope of its sentencing power,” we should remand the case and “advis[e]

the court that it is not required to impose a minimum jail term when it orders 

probation.” 

We find it unnecessary to address appellant’s theory regarding the 

scope of the court’s sentencing authority. As the Attorney General points out, 

not only has appellant already served the 210-day jail sentence imposed by 

the court but, as we shall explain, it is implausible appellant would have 

received a lesser sentence absent the alleged error, even if prejudice is 

measured by the high standard prescribed in Chapman v. California (1976) 

386 U.S. 18 (Chapman). 

As appellant recognizes, courts may not “ ‘ “declare principles or rules 

of laws which cannot affect the matter in issue in the case before it” ’ ” and 

“ ‘ “[a] case becomes moot when a court ruling can have no practical impact or 

cannot provide the parties with effective relief.” ’ ” (In re Arroyo (2019) 37 

Cal.App.5th 727, 732.) While appellant has not finished serving his felony 

sentence of three years on probation, we can and do take judicial notice of the 

fact that more than 210 days have passed since July 9, 2019, when the court 

ordered him to “forthwith” begin serving that period in county jail as a 

condition of felony probation. As courts have frequently held, when

“ ‘pending an appeal from the judgment of a lower court, and without any 

fault of the defendant, an event occurs which renders it impossible for [the

reviewing] court, if it should decide the case in favor of plaintiff, to grant him 

any effectual relief whatever, the court will not proceed to a formal judgment, 
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but will dismiss the appeal. [Citations.]” [Citations,]’ ” (In re Sodersten

(2007) 146 Cal.App.4th 1163, 1217.)

The Attorney General acknowledges several exceptions to this rule, as 

where the defendant has served his sentence but could suffer adverse 

collateral consequences in the future as a result of either the sentence or the 

conviction, citing as an example, People v. Ellison (2003) 111 Cal.App.4th

1360, 1368–1369. However, the Attorney General maintains no such 

exception applies here because the only adverse consequences appellant will 

suffer results from the conviction by a jury of felony evasion of a peace officer. 

Appellant does not quarrel with the Attorney General’s argument 

because he does not rely on the exception the Attorney General addresses or 

any other established exception to the mootness rule. Appellant argues 

instead that the case is not genuinely moot. According to appellant, reversal 

and remand have a “practical impact” that is “positive.” This is so, he says in 

his reply brief, because the “Full Resentencing Rule” announced by the 

Supreme Court in People v. Buycks (2018) 5 Cal.5th 857, gives the trial court 

authority, following recall of a sentence, to “modify every aspect of the 

sentence, and not just the portion subject to recall.” (Id. at p. 893.) Thus, 

appellant argues, “[w]ith a clear understanding of the correct sentencing 

parameters, Buycks leaves open the possibility that given appellant’s positive 

compliance on probation and with an updated probation report, the court 

could reduce the conviction to a misdemeanor and resentence appellant to a 

misdemeanor under [Penal Code] section 17, subdivision (b).” 

Appellant’s contention—that this appeal is not moot because the

alleged error is prejudicial—is untenable.

First, nothing in the record indicates either that appellant has 

demonstrated “positive compliance” on probation or that an updated post 
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remand sentencing report would be so favorable to appellant that it would 

induce the court to reduce appellant’s offense from a felony to a 

misdemeanor. Furthermore, the trial judge’s explanation for requiring 

appellant to serve 210 days in jail provide no reason to think he would reduce 

appellant’s offense from a felony to a misdemeanor if now provided the 

opportunity. As noted in the probation department’s report to the court, 

appellant’s “record of criminal conduct, as both an adult and a juvenile, 

indicates a pattern of criminal conduct, which appears to be escalating.” As 

an adult, appellant already has two prior misdemeanor convictions for “hit 

and run and wet and reckless” driving offenses, and his conduct in this case 

indicates he was not chastened by the punishment he received for the prior 

driving offenses. 

We ordinarily review sentencing error for prejudice under the standard

prescribed in People v. Watson (1956) 46 Cal.2d 818, 836, which is whether it 

is reasonably probable the defendant would have received a more favorable 

ruling absent the error. Appellant maintains that the higher standard 

prescribed in Chapman, supra, 386 U.S. at pages 23–24—that the error be 

harmless beyond a reasonable doubt—applies here because the alleged 

sentencing error violated his due process right under the Fourteenth 

Amendment.

The trial court’s stated agreement with the reasonableness of the term 

proposed by the People due to the recklessness of appellant’s conduct that 

endangered the lives of children and caused property damage, the 

thoughtfulness of the court’s explanation of the sentence it imposed, and 

appellant’s prior violations of the Vehicle Code indicate the court considered

the 210-day jail term somewhat lenient, which hardly suggests it would likely 

reduce the felony offense of which appellant was convicted by a jury to a 
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misdemeanor if given the opportunity. This conclusion is reinforced by the 

fact that the court declined to impose a 180-day jail term it believed it could 

have imposed. The sentencing error, if any, would be harmless under both 

the Chapman and Watson tests.

Thus, we turn to the remaining issue, whether it was error for the court 

to impose restitution, fines, and other fees on appellant without first 

investigating his ability to pay.

II.

At the end of the sentencing hearing, the court ordered appellant to pay 

a $300 restitution fine, which was the statutory minimum (Pen. Code, 

§ 1202.4), as well as a $40 court operations fee (Pen. Code, § 1465.8), a $350 

probation administration fee (Pen. Code, § 1203.1, subd. (b)), and a $30 

criminal conviction assessment. (Gov. Code, § 70373.) The court made no 

inquiry into appellant’s ability to pay prior to imposing these fines and fees.

Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), 

appellant maintains that the fines and other assessments just described were 

imposed unconstitutionally. Dueñas held that due process requires a trial 

court to conduct a hearing to ascertain a defendant’s ability to pay before 

imposing court facilities and court operations assessments under Penal Code 

section 1465.8 and Government Code section 70373. (Dueñas, at p. 1164.) 

Dueñas further held that restitution fines under Penal Code section 1202.4 

must be imposed and stayed unless and until the People demonstrate that a 

defendant has the ability to pay the fine. (Dueñas, at pp. 1172–1173.) 

Courts after Dueñas have reached different conclusions on the issue of 

forfeiture. (Cf. People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153–1155 

[finding forfeiture, as “Dueñas applied law that was old, not new”] 

with People v. Castellano (2019) 33 Cal.App.5th 485, 489 [declining to find 
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forfeiture for “a newly announced constitutional principle that could not 

reasonably have been anticipated at the time of trial”]; People v. Johnson 

(2019) 35 Cal.App.5th 134, 138 [noting while Dueñas was founded on 

longstanding constitutional principles, the statutes at issue “were routinely 

applied for so many years without successful challenge [citation], [court was] 

hard pressed to say its holding was predictable and should have been 

anticipated”].)2

On the merits, Dueñas has been criticized by some but by no means all 

Courts of Appeal. (See, e.g., People v. Caceres (2019) 39 Cal.App.5th 917, 923, 

926, review den. Jan. 2, 2020 [Dueñas due process analysis did “not justify 

extending its holding beyond those facts”]; People v. Aviles (2019) 39 

Cal.App.5th 1055, 1060, review den. Dec. 11, 2019 [Dueñas wrongly decided; 

constitutional challenge to imposition of fines, fees, and assessments should 

be based on excessive fines clause of Eighth Amendment]; People v. Hicks

(2019) 40 Cal.App.5th 320, 325–329, review granted Nov. 26, 2019, S258946 

[Dueñas wrong to conclude due process considerations may bar assessments, 

fines, and fees; such costs and fines do not deny criminal defendants access to 

courts]; People v. Kopp (2019) 38 Cal.App.5th 47, 95–97, review granted Nov. 

13, 2019, S257844 [rejecting Dueñas analysis with respect to restitution 

fines, which should be analyzed under excessive fines clause, but following 

Dueñas as to court fees and assessments].)

2 This division has in prior cases agreed with the Castellano and

Johnson courts. Given courts’ longstanding routine imposition of statutory 

fees, fines, and assessments prior to Dueñas, we do not think it reasonable to 

say the constitutional rule announced in that case should have been 

anticipated by all competent counsel. However, as will be seen presently, no 

such anticipation was required in this case; although forfeiture for other 

reasons remains at issue. 
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Dueñas is clearly distinguishable from this case because, unlike 

Dueñas, appellant did not at sentencing object to the fines and assessments 

he now challenges. However, the reason he failed to object did not result 

from an understandable failure to anticipate a “newly announced 

constitutional principle that could not reasonably have been anticipated at 

the time of trial.” (People v. Castellano, supra, 33 Cal.App.5th at p. 489.) 

Appellant was sentenced on July, 9, 2019, which was six months after Dueñas

was decided. Thus, relying on People v. Scott (1994) 9 Cal.4th 331, which 

holds that in order to preserve a sentencing issue for appellate review, the 

defendant must raise the issue in the sentencing court, the Attorney General 

maintains that appellant’s failure to make a Dueñas objection at his 

sentencing cannot be excused and forfeits the Dueñas objection he belatedly

advances in this court. 

In response, appellant urges us to adopt the analysis of the Sixth 

Appellate District in People v. Santos (2019) 38 Cal.App.5th 923, which 

according to appellant “recently held that failure to object below did not 

forfeit appellate challenges to monetary assessments.” The opinion in Santos 

provides appellant no support. 

Santos’s sentencing occurred one year before Dueñas was decided, 

Santos did object to the probation department’s recommended restitution 

fine, and the parties in Santos agreed that “the trial court should not have 

imposed the court operations and criminal conviction assessments without 

first determining Santos’s ability to pay, since the record shows that he was 

indigent at the time of sentencing” and that “the matter should be remanded 

for an ability-to-pay determination. (People v. Santos, supra, 38 Cal.App.5th

at p. 933.) The situation in this case is dramatically different. 
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Appellant’s alternative argument is that “any failure to challenge the

monetary assessments because of appellant’s inability to pay is based on 

ineffective assistance of counsel.” However, as the Supreme Court has 

explained, it is particularly difficult to prevail on a claim of ineffective 

assistance on direct appeal (People v. Mai (2013) 57 Cal.4th 986, 1009), and 

the conventional means of raising such claims is a petition for writ of habeas 

corpus. (People v. Pope (1979) 23 Cal.3d 412, 426.) To prevail on appeal, 

appellant must demonstrate not only that counsel’s representation fell below 

an objective standard of reasonableness and resulting prejudice, but also that 

the record “ ‘ “affirmatively discloses that counsel had no rational tactical 

purpose for [his or her] act or omission.” ’ ” (People v. Lucas (1995) 12 Cal.4th

415, 436–437, quoting People v. Zapien (1993) 4 Cal.4th 929, 980.) “ ‘ “[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. Wilson (1992) 

3 Cal. 4th 926, 936, quoting [Pope, at p.] 426.)” (People v. Mendoza Tello

(1997) 15 Cal.4th 264, 266.) 

The record before us is entirely silent as to why defense counsel raised 

no objection to the fines and fees imposed by the court, which totaled $720, 

based on ability to pay. But the record does show that appellant graduated 

from high school eight years ago and attended a community college; and 

though he is currently unemployed he has worked for United Parcel Service, 

Target, and most recently Petaluma Poultry; and he recently received an 

opportunity of employment from Federal Express. According to the probation 

department, appellant “has also expressed interest in going back to school in 

the future to study business as he hopes to open his own hair/nail salon one 
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day.” Counsel may have believed appellant had the ability to pay and raising 

an objection on this ground would be futile (People v. Thompson (2010) 49 

Cal.4th 79, 122 [“[c]ounsel is not ineffective for failing to make frivolous or 

futile motions”]), or even could risk discouraging the court from eliminating 

or lowering a jail term. Appellant has not met his burden of showing 

ineffective assistance of counsel on appeal. (People v. Keene (2019) 43 

Cal.App.5th 861, 864–865.)

DISPOSITION

For the foregoing reasons, the judgment, including the sentence 

imposed, are affirmed.
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_________________________

Kline, P.J.

We concur:

_________________________

Stewart, J.

_________________________

Miller, J.

People v. Davila, Jr. (A157826)