Filed 1/2/20

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

GREGORY LAMAR LOWERY et al.,

Defendants and Appellants.

F076484

(Super. Ct. Nos. 16CR-02612A, 

16CR-02612B)

OPINION

APPEAL from a judgment of the Superior Court of Merced County. Jeanne 

Schechter, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for 

Defendant and Appellant Gregory Lamar Lowery. 

John Steinberg, under appointment by the Court of Appeal for Defendant and 

Appellant Bryan Joseph Green.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Catherine 

Chatman, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is 

certified for publication with the exception of parts I, II and IV of the Discussion.
2.

INTRODUCTION

On April 11, 2016, appellants Gregory Lamar Lowery and Bryan Joseph Green 

robbed three separate businesses in the area of Merced, California. They were both 

armed with firearms, and four victims had guns pointed at them during the various 

robberies. A jury convicted both appellants of four counts of second degree robbery 

(Pen. Code, § 211;

1 counts 1-4) and for being felons in possession of a firearm 

(§ 29800, subd. (a)(1); count 5). The jury found true alleged firearm enhancements 

(§ 12022.53, subd. (b)). The trial court found true that Green had suffered a prior 

serious felony conviction. 

Lowery received an aggregate prison term of 24 years eight months. This 

consisted of an upper term of five years in count 2 (second degree robbery), along with 

a 10-year firearm enhancement (§ 12022.53, subd. (b)). Consecutive one-third terms 

were imposed for the three other robbery convictions (counts 1, 3-4), along with 

respective firearm enhancements in counts 3 and 4.2 The court imposed a concurrent 

middle term of two years for being a felon in possession (count 5). The court imposed a 

restitution fine of $6,900 (§ 1202.4, subd. (b)(1)); a parole revocation restitution fine of 

$6,900 (§ 1202.45, subd. (a), which was stayed pending successful completion of 

parole); a court operations assessment of $200 (§ 1465.8, subd. (a)(1)); and a criminal 

conviction assessment of $150 (Gov. Code, § 70373, subd. (a)(1)). The court did not 

ascertain Lowery’s ability to pay these fees, fines and assessments prior to imposing 

them.3

1 All future statutory references are to the Penal Code unless otherwise noted.

2 A firearm enhancement was not alleged against Lowery in count 1.

3 A restitution fine (§ 1202.4, subd. (b)(1)) represents punishment. (People v. 

Hanson (2000) 23 Cal.4th 355, 361–363.) In contrast, a court operations assessment 

(§ 1465.8, subd. (a)(1)) and a criminal conviction assessment (Gov. Code, § 70373, 

subd. (a)(1)) are not considered punishment. (People v. Alford (2007) 42 Cal.4th 749, 
3.

Green received an aggregate prison term of 41 years. This consisted of an upper 

term of five years in count 1 (second degree robbery), doubled because of a strike prior, 

along with a 10-year firearm enhancement (§ 12022.53, subd. (b)). A five-year 

enhancement was imposed in count 1 under section 667, subdivision (a)(1). 

Consecutive one-third terms were imposed for the three other robbery convictions, 

along with their respective firearm enhancements. The court imposed a concurrent 

middle term of two years for being a felon in possession (count 5). The court imposed a 

restitution fine of $10,000 (§ 1202.4, subd. (b)(1)); a parole revocation restitution fine 

of $10,000 (§ 1202.45, subd. (a), which was stayed pending successful completion of 

parole); a court operations assessment of $200 (§ 1465.8, subd. (a)(1)); and a criminal 

conviction assessment of $150 (Gov. Code, § 70373, subd. (a)(1)). The court did not 

ascertain Green’s ability to pay these fees, fines and assessments prior to imposing 

them.4

Appellants contend this matter must be remanded so the sentencing court may 

exercise its discretion to strike or dismiss their respective firearm enhancements 

pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620). Green 

further asserts remand is required for the court to exercise its discretion to strike his 

five-year sentence enhancement (§ 667, subd. (a)(1)) pursuant to Senate Bill No. 1393 

(2017-2018 Reg. Sess.) (Senate Bill 1393). We conclude a remand is not warranted for 

either of these issues. Based on the sentencing record, it is abundantly clear the court

would not have exercised its discretion to strike or dismiss any of these enhancements.

757 [§ 1465.8]; People v. Knightbent (2010) 186 Cal.App.4th 1105, 1112 [Gov. Code, 

§ 70373].)

4 Pursuant to section 1202.4, subdivision (f), the court ordered appellants to pay 

restitution of $9,450 to three victims. The court reserved jurisdiction as to two 

remaining victims. This obligation was ordered “joint and several.” In section IV, 

below, we order correction of the abstracts of judgment to properly reflect the victim 

restitution imposed in this matter.
4.

The parties dispute whether or not the court properly imposed the various fees, 

fines and assessments against appellants. Appellants rely primarily on People v. 

Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). In the published portion of this opinion, 

we find that appellants have forfeited this claim. In any event, Dueñas is 

distinguishable from the present matter, and appellants’ respective constitutional rights 

were not violated. We also conclude that any presumed constitutional error was 

harmless.

Finally, a clerical error appears in the respective abstracts of judgment. We order 

them amended to reflect the direct victim restitution of $9,450. (§ 1202.4, subd. (f).) 

We otherwise affirm appellants’ respective judgments.

BACKGROUND

Because the issues raised on appeal relate to sentencing, we provide only a 

general summary of the trial facts supporting the convictions.

I. The Armed Robberies.

On April 11, 2016, appellants entered three separate businesses, and they robbed 

four victims. Surveillance video at each location captured significant portions of 

appellants’ robberies. Those videos were played for the jury. At trial, appellants did 

not present any evidence. 

A. The first robbery.

The first robbery occurred at a market in Merced. Lowery grabbed an envelope 

containing about $200 to $300, which had been under a counter. He ran from the 

business. The owner’s son, B.K., pursued him. Outside the business, B.K. caught 

Lowery, and he grabbed the envelope back. They began to scuffle. B.K. and Lowery 

ended up on the ground. Green approached and put a gun to B.K.’s head. B.K. 

relinquished the money, and appellants each kicked B.K.’s head before fleeing. At trial, 

B.K. identified appellants as the robbers.
5.

B. The second robbery.

Shortly after robbing B.K., appellants entered a liquor store in Merced. Several 

customers were present. The store’s owner, K.S., was behind the counter. Green went 

behind the counter and he put a gun to K.S.’s head. A cash drawer was already open. 

Green asked for “extra money” and threatened to kill K.S. K.S. opened another drawer. 

Green, who kept his gun pointed at K.S.’s head, took money from both drawers. 

Lowery also displayed a firearm. He directed the customers to sit on the floor. At one 

point, Lowery reached over the counter and also removed cash from a drawer. 

Appellants exited the liquor store without further incident.

In addition to taking cash from the registers, appellants took personal items 

belonging to K.S., such as his driver’s license, his wife’s identification card, and various 

debit and credit cards. Later that same day, a clerk working at a local gas station found 

these personal items discarded on the ground near a dumpster outside. 

C. The final robbery.

Later that same day, appellants entered a convenience store in Winton, 

California. Green went behind a counter where two clerks, G.S. and her son J.S., were 

working. Green pointed a gun at J.S. He demanded money, threatening he would 

shoot. Lowery displayed his own firearm and directed customers to sit down. Lowery 

also went behind the counter and demanded the cash registers to be opened. Once the 

registers were open, appellants took about $10,000. They left without further incident. 

At trial, G.S. identified Lowery as one of the two robbers. 

After appellants left, J.S. discovered a bullet on the floor away from the cash 

registers. At trial, he told the jury that, during this robbery, one of the suspects had 

“racked” a handgun. 

II. Appellants Purchase Two Used Vehicles.

After the three robberies, and later on the same day, Green purchased a used 

Saab from a dealership in Merced. At the same time, both Lowery and Green also 
6.

purchased a used Jaguar from the same dealer. They paid in cash for both vehicles. In 

court, the dealer identified appellants as the two individuals who purchased those 

vehicles. 

III. Lowery Confesses To Robbing B.K. From The First Business.

Law enforcement quickly identified appellants as the suspects. A detective 

reviewed video at the gas station where the personal items belonging to K.S. had been 

discovered. In the video, the detective saw a white Buick Skylark enter the parking lot 

and two subjects exit the vehicle. One subject “dumped” some “items in the garbage.” 

The other subject walked into the store. The second subject wore a T-shirt that read, 

“ ‘I’m on one.’ ” According to K.S., the victim in the second robbery, one of the 

suspects had worn that same T-shirt. Another detective, who was familiar with 

appellants, recognized them in the gas station video. Lowery was taken into custody 

and he was interviewed. He admitted taking the envelope of cash from the counter of 

the first market. He denied any involvement in the other two robberies. He admitted 

that, when the first robbery occurred, he was wearing a T-shirt which said, “I’m on 

one.” 

On April 12, 2016, law enforcement searched Green’s residence. They 

recovered two different types of ammunition. A “white over gray Buick Skylark” was 

parked in the driveway. This vehicle was registered to Green. 

DISCUSSION

I. Remand Is Not Warranted For The Trial Court To Exercise Its Sentencing 

Discretion Under Senate Bill 620.

At the time of sentencing in this matter, the trial court was required to impose 

additional prison terms for the firearm enhancements found true under 

section 12022.53. (Former § 12022.53, subd. (d).) On October 11, 2017, however, the 

 See footnote, ante, page 1.
7.

Governor approved Senate Bill 620, which amended, in part, section 12022.53. A trial 

court now has discretion to strike or dismiss these firearm enhancements. (§ 12022.53, 

subd. (h).)

The parties agree, as do we, that these amendments apply retroactively to 

appellants because their cases are not yet final. (People v. Woods (2018) 19 

Cal.App.5th 1080, 1090.) The parties, however, disagree whether remand is 

appropriate. Respondent asserts that a remand would serve no purpose. According to 

respondent, no reasonable court would exercise its discretion to strike appellants’ 

respective firearm enhancements. (See People v. Gutierrez (1996) 48 Cal.App.4th 

1894, 1896.) To support its position, respondent focuses on appellants’ criminal 

conduct in this matter and the court’s comments at sentencing. We agree with 

respondent that, based on this sentencing record, remand is not warranted.

Remand is necessary when the record shows the trial court proceeds with 

sentencing on the erroneous assumption it lacks discretion. (People v. Brown (2007) 

147 Cal.App.4th 1213, 1228.) If, however, the record shows the sentencing court 

“would not have exercised its discretion even if it believed it could do so, then remand

would be an idle act and is not required.” (People v. McDaniels (2018) 22 Cal.App.5th 

420, 425 (McDaniels).) Certain factors may be germane in assessing whether a trial 

court is likely to exercise its sentencing discretion in the defendant’s favor. Those 

factors are: (1) the egregious nature of the defendant’s crimes; (2) the defendant’s 

recidivism; and (3) the fact that consecutive sentences were imposed. (Id. at p. 427.) 

However, these factors alone cannot establish what the court’s discretionary decision 

would have been. (Ibid.) If the court imposes the maximum sentence permitted, a 

remand would be an idle act because the record contains a clear indication the court 

would not exercise its discretion in the defendant’s favor. (Ibid.)

During sentencing, Lowery’s trial counsel asked the court to impose a middle 

term for the robbery conviction representing the base term. The court, however, 
8.

declined that sentencing option. The court stated that Lowery’s actions involved “a 

threat of great bodily harm or a high degree of viciousness.” Lowery “engaged in 

violent conduct indicating a serious danger to society.” The court noted that Lowery’s 

“prior convictions are of increasing seriousness.”5 The court said it looked “hard” for 

factors in mitigation for Lowery, but it could not find any. The court recognized that 

Lowery’s and Green’s behaviors differed because it was Green who “went behind the 

counter and put the guns to the heads of the clerks.” However, the court noted that, 

although Lowery was not as aggressive, he was still holding people at gunpoint. The 

court stated that, even if it had discretion to not sentence the firearm enhancements 

consecutively, it would still impose them consecutively. As to Lowery, the court 

designated count 2 (second degree robbery) as the principal term, and it imposed an 

aggravated sentence of five years. The court said an aggravated sentence was 

appropriate based on the facts of the case. The court imposed consecutive sentences for 

the remaining three convictions of second degree robbery (counts 1, 3-4).6

Regarding Green, his trial counsel sought concurrent sentences for the four 

robbery convictions. He asserted that section 654 should be used for the convictions in 

counts 3 and 4 because they involved a single incident with two victims. Green’s 

counsel also requested a middle term for the robbery conviction representing the base 

term. He argued a concurrent sentence from the prior serious felony enhancement was 

warranted, along with a concurrent term for the possession of a firearm conviction 

5 Lowery had a prior 2010 felony conviction for carrying a loaded firearm 

(§ 12031, subd. (a)(1)) and a 2004 felony conviction for vehicle theft (Veh. Code, 

§ 10851, subd. (a)). Among other misdemeanor convictions, he had a 2013 

misdemeanor conviction for willful cruelty to a child (§ 273a, subd. (b)), and a 2004 

misdemeanor conviction for the manufacture, sale, or possession of a dangerous weapon 

(§ 12020, subd. (a)(1)). He was generally given jail sentences and probation for these 

various felony and misdemeanor convictions. 

6

In count 5, felon in possession of a firearm (§ 29800, subd. (a)(1)), the court 

imposed a concurrent middle term of two years. 
9.

(count 5). In contrast, the prosecutor argued for the upper term and consecutive 

sentences. 

The court “found the same aggravating factors” as it had for Lowery.7 The court 

commented that Green’s behavior had been “appalling” and “terrifying” for the victims. 

The court noted that Green had pointed the gun directly at two victims, and “your 

behavior is just off the charts here, as far as the Court’s concerned.” The court could 

not find any factors in mitigation. The court designated count 1 (second degree 

robbery) as the principal term, and it imposed an aggravated sentence of five years. The 

court stated an aggravated sentence was appropriate in this situation. The court imposed 

consecutive sentences for the remaining three convictions of second degree robbery 

(counts 2-4).8 The court commented that it did not have discretion to impose a 

concurrent enhancement for Green’s prior serious felony conviction (§ 667, subd. 

(a)(1)). However, the court stated that, even if it had such discretion, it would not 

impose a concurrent enhancement. 

This record reveals a clear indication that the trial court would not have struck or 

dismissed appellants’ respective firearm enhancements even if it had such discretion. 

For both appellants, the court imposed an upper term sentence for second degree 

robbery, and it imposed additional consecutive sentences. The court commented on the 

egregious nature of appellants’ actions and their recidivism. (See McDaniels, supra, 22 

Cal.App.5th at p. 427.) When sentencing Lowery, the court stated that, even if it had 

7 Green had a prior 2007 felony conviction for robbery (§ 211), and a 2012 felony 

conviction for possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. 

(a)). He also had two misdemeanor convictions in 2007 for driving without a license 

(Veh. Code, § 12500, subd. (a)). In 2012, Green’s probation was revoked and he was 

sentenced to three months in prison. 

8

In count 5, felon in possession of a firearm (§ 29800, subd. (a)(1)), the court 

imposed a concurrent middle term of two years, which was doubled because of his prior 

strike. 
10.

discretion to not sentence the firearm enhancements consecutively, it would still impose 

them consecutively. When sentencing Green, the court stated that, even if it had 

discretion to impose a concurrent enhancement for his prior serious felony conviction 

(§ 667, subd. (a)(1)), it would not do so. 

Based on this sentencing record, remand would be an idle act and it is not 

required.9 (See People v. Gutierrez, supra, 48 Cal.App.4th at p. 1896 [denying remand 

after sentencing court indicated it would not have exercised its discretion to strike a 

Three Strikes prior even if it had believed it could have done so]; McDaniels, supra, 22 

Cal.App.5th at p. 427.) Accordingly, we deny appellants’ respective requests for 

remand for the court to exercise its discretion under Senate Bill 620.

II. Remand Is Not Warranted For The Trial Court To Exercise Its Sentencing 

Discretion Under Senate Bill 1393.



At the time of Green’s sentencing in this matter, the trial court was required to 

impose an additional five-year prison term based on his prior serious felony conviction. 

(Former § 667, subd. (a)(1).) On September 20, 2018, however, the Governor signed 

Senate Bill 1393, which amended sections 667 and 1385 to provide sentencing courts 

with discretion to strike or dismiss this enhancement.

We agree with the parties that this amendment applies retroactively to Green. 

(People v. Sexton (2019) 37 Cal.App.5th 457, 473.) The parties, however, disagree 

whether remand is warranted. We agree with respondent that a remand would serve no 

purpose.

9

In light of the court’s comments and other sentencing choices, our conclusion is 

not altered by the fact that, in count 5, the court imposed concurrent terms for 

appellants’ respective convictions of being a felon in possession of a firearm (§ 29800, 

subd. (a)(1)).

 See footnote, ante, page 1.
11.

We have already set forth above the relevant portions of the sentencing record. 

The court made it abundantly clear that, even if it had discretion, it would not order 

Green’s five-year sentence enhancement (§ 667, subd. (a)(1)) to run concurrently. 

Based on that comment alone, it is overwhelmingly apparent that the court would not 

strike or dismiss this enhancement. In any event, the court found no factors in 

mitigation and stated that Green’s behavior had been “appalling” and “terrifying” for 

the victims. The court noted that Green had pointed the gun directly at two victims, and 

“your behavior is just off the charts here, as far as the Court’s concerned.” The court 

imposed an aggravated sentence against him, and it ordered additional consecutive 

sentences.

Based on this sentencing record, the trial court gave a clear indication it would 

not have exercised its discretion to strike or dismiss this enhancement even if it had the 

discretion to do so. As such, remand would be an idle act and is not required.10 (See 

People v. Gutierrez, supra, 48 Cal.App.4th at p. 1896 [denying remand after sentencing 

court indicated it would not have exercised its discretion to strike a Three Strikes prior 

even if it had believed it could have done so]; McDaniels, supra, 22 Cal.App.5th at 

p. 427.) Accordingly, we deny Green’s request for remand for the court to exercise its 

discretion following Senate Bill 1393.

III. Appellants Have Forfeited Their Claims Under Dueñas; In Any Event, 

Dueñas Is Distinguishable From The Present Matter; The Trial Court Did 

Not Violate Appellants’ Constitutional Rights; And Any Presumed Error Is 

Harmless.

Appellants challenge the imposition of the assessments imposed against them 

under section 1465.8, subdivision (a)(1), and Government Code section 70373, 

subdivision (a)(1). They also challenge the restitution fines imposed against them under 

10 In light of the court’s comments and other sentencing choices, our conclusion is 

not altered by the fact that, in count 5, the court imposed a concurrent term for Green’s 

conviction of being a felon in possession of a firearm (§ 29800, subd. (a)(1)).
12.

section 1202.4, subdivision (b)(1). Their claims are based primarily on Dueñas, supra, 

30 Cal.App.5th 1157. They assert that Dueñas controls, they did not forfeit this issue, 

and remand is required for the lower court to conduct further proceedings. 

In Dueñas, the defendant was an indigent, homeless mother of two, who 

subsisted on public aid while suffering from cerebral palsy. She had dropped out of 

high school because of her illness, and she was unemployed. (Dueñas, supra, 30 

Cal.App.5th at pp. 1160–1161.) As a teenager, the defendant’s driver’s license was 

suspended when she could not pay some citations. (Id. at p. 1161.) She then was 

convicted of a series of misdemeanor offenses for driving with a suspended license, and 

in each case, she was given the choice to pay mandatory fees and fines, which she 

lacked the means to do, or go to jail. (Ibid.) She served jail time in the first three of 

these cases, but still faced outstanding debt, which increased with each conviction. 

(Ibid.)

After her fourth conviction of driving with a suspended license, the defendant 

was placed on probation and again ordered to pay mandatory fees and fines. The court 

imposed a $30 criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)); a 

$40 court operations assessment (§ 1465.8, subd. (a)(1)); and a minimum $150 

restitution fine (§ 1202.4, subd. (b)(1)).

11

 The court also imposed and stayed a 

probation revocation restitution fine (§ 1202.44). (Dueñas, supra, 30 Cal.App.5th at 

pp. 1161–1162.) The defendant challenged the fees and fines imposed under sections 

1202.4 and 1465.8, and Government Code section 70373. (Dueñas, at p. 1164.) The 

trial court rejected her constitutional arguments that due process and equal protection 

required the court to consider her ability to pay these fines and assessments. (Id. at 

p. 1163.) On appeal, however, the Dueñas court determined that the defendant’s due 

11 The minimum restitution fine for a misdemeanor is $150. The minimum 

restitution fine for a felony is $300. (§ 1202.4, subd. (b)(1).)
13.

process rights had been infringed. According to Dueñas, an ability to pay hearing was 

required so the defendant’s “present ability to pay” could be determined before 

assessments were levied for a court operations assessment (§ 1465.8, subd. (a)(1)) and a 

criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)).12 (Dueñas, at 

p. 1164.) The Dueñas court also concluded that the minimum restitution fine of $150 

(§ 1202.4, subd. (b)(1)) had to be stayed. The appellate court reached that conclusion 

despite section 1202.4 barring consideration of a defendant’s ability to pay unless the 

judge is considering a fine over the statutory minimum. (§ 1202.4, subd. (c).) Dueñas

held that “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.” (Dueñas, at p. 1164.)

We find appellants’ assertions based on Dueñas unavailing. As an initial matter, 

appellants have forfeited these claims. In any event, Dueñas is distinguishable from the 

present matter, and appellants’ respective constitutional rights were not violated. 

Finally, any presumed constitutional error is harmless beyond any reasonable doubt.

A. Appellants have forfeited the Dueñas-related claims.

Section 1202.4, subdivision (b)(1), requires a court to impose a restitution fine in 

an amount not less than $300 and not more than $10,000 in every case where a person is 

convicted of a felony unless it finds compelling and extraordinary reasons not to do so. 

Section 1202.4, subdivision (c), specifies a defendant’s inability to pay is not a 

compelling and extraordinary reason to refuse to impose the fine, but inability to pay 

“may be considered only in increasing the amount of the restitution fine in excess of the 

minimum fine [of $300].” While the defendant bears the burden of demonstrating his or 

her inability to pay, a separate hearing for the restitution fine is not required. (§ 1202.4, 

12 Nothing in these statutes authorizes a trial court to consider a defendant’s ability 

to pay.
14.

subd. (d).) “Given that the defendant is in the best position to know whether he has the 

ability to pay, it is incumbent on him to object to the fine and demonstrate why it should 

not be imposed.” (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154.)

Here, and unlike the defendant in Dueñas, appellants did not object to the fees, 

fines and assessments imposed against them. Appellants also did not request a hearing 

regarding their ability to pay. Contrasting the present circumstances with Dueñas, 

where the court imposed the minimum restitution fine, appellants had such fines 

imposed which were far above the minimum of $300. (§ 1202.4, subd. (b)(1).) In fact, 

Green had the maximum restitution fine imposed of $10,000, while Lowery’s restitution 

fine was $6,900. 

We disagree with appellants’ assertions that Dueñas represents a newly 

announced rule of law, or that this issue raises a pure question of constitutional law that 

involves no factual dispute. To the contrary, appellants had a statutory right, and were 

obligated, to object to the imposition of the restitution fines above the $300 minimum. 

(§ 1202.4, subd. (c) [inability to pay may be considered when the restitution fine is 

increased above the minimum].) A factual determination was required regarding their 

alleged inability to pay. (See People v. Frandsen, supra, 33 Cal.App.5th at p. 1153.) 

Thus, such objections would not have been futile under governing law when appellants 

were sentenced. (Id. at p. 1154.) We stand by the traditional rule that a party must raise 

an issue in the trial court if they would like appellate review. (Id. at p. 1155.) 

We reach the same conclusion with respect to the remaining assessments and 

fees. Because appellants failed to object to the restitution fines, which were well above 

the minimum amount, we likewise reject any assertion they may now complain that the 

trial court imposed a court operations assessment of $200 (§ 1465.8, subd. (a)(1)); and a 

criminal conviction assessment of $150 (Gov. Code, § 70373, subd. (a)(1)). (See 

People v. Jenkins (2019) 40 Cal.App.5th 30, 40–41; People v. Gutierrez (2019) 35 

Cal.App.5th 1027, 1033 [finding forfeiture of Dueñas-related claims].)
15.

Based on this record, appellants have forfeited their Dueñas-related claims. (See, 

e.g., People v. Avila (2009) 46 Cal.4th 680, 729 [defendant forfeited issue by failing to 

object to imposition of restitution fine based on inability to pay]; see also People v. 

Jenkins, supra, 40 Cal.App.5th at pp. 40–41 [Dueñas error forfeited]; People v. Aviles

(2019) 39 Cal.App.5th 1055, 1073 (Aviles) [same]; People v. Torres (2019) 39 

Cal.App.5th 849, 860 [same]; People v. Gutierrez, supra, 35 Cal.App.5th at p. 1033 

[same]; People v. Frandsen, supra, 33 Cal.App.5th at p. 1154 [same]; People v. 

Bipialaka (2019) 34 Cal.App.5th 455, 464 [same].) 

B. Dueñas is distinguishable from the present matter.

According to the Dueñas court, the defendant lost her driver’s license because 

she was too poor to pay her juvenile citations. She continued to offend because the 

aggregating criminal conviction assessments and fines prevented her from recovering 

her license. The Dueñas court described this as “cascading consequences” stemming 

from “a series of criminal proceedings driven by, and contributing to, [the defendant’s] 

poverty.” (Dueñas, supra, 30 Cal.App.5th at pp. 1163–1164.)

Even if appellants have not forfeited these claims, we reject appellants’ 

assertions that Dueñas applies to them. In contrast to Dueñas, appellants’ incarcerations 

were not a consequence of prior criminal assessments and fines. Appellants were not 

caught in an unfair cycle, and they could have avoided the present convictions 

regardless of their financial circumstances. Dueñas is distinguishable and it has no 

application in this matter. (See People v. Caceres (2019) 39 Cal.App.5th 917, 928–929

[declining to apply Dueñas’s “broad holding” beyond its unique facts]; People v. 

Johnson (2019) 35 Cal.App.5th 134, 138 [“Dueñas is distinguishable.”].)

C. The court did not violate appellants’ constitutional rights.

Even if forfeiture did not occur, we reject any argument that the trial court 

violated appellants’ constitutional rights. The Dueñas defendant presented compelling 
16.

evidence that the imposed assessments resulted in ongoing unintended punitive 

consequences. The Dueñas court determined that these unintended consequences were 

“fundamentally unfair” for an indigent defendant under principles of due process.13

(Dueñas, supra, 30 Cal.App.5th at p. 1168.) The Dueñas court noted that the imposed 

financial obligations were also potentially unconstitutional under the excessive fines 

clause of the Eighth Amendment. However, Dueñas stated that “[t]he due process and 

excessive fines analyses are sufficiently similar that the California Supreme Court has 

observed that ‘[i]t makes no difference whether we examine the issue as an excessive 

fine or a violation of due process.’ [Citation.]” (Dueñas, supra, at p. 1171, fn. 8.)

Both People v. Hicks (2019) 40 Cal.App.5th 320, review granted September 14, 

2019, S258946 (Hicks) and this court’s opinion in Aviles, supra, 39 Cal.App.5th 1055, 

have strongly criticized Dueñas’s analysis. (Hicks, supra, 40 Cal.App.5th at p. 322, 

review granted; Aviles, supra, 39 Cal.App.5th at pp. 1059–1060.) We agree with those 

criticisms. (See also People v. Kingston (2019) 41 Cal.App.5th 272, 279 [finding Hicks

to be “better reasoned” than Dueñas]; People v. Caceres, supra, 39 Cal.App.5th at 

p. 928 [“In light of our concerns with the due process analysis in Dueñas, we decline to 

apply its broad holding requiring trial courts in all cases to determine a defendant’s 

ability to pay before imposing court assessments or restitution fines.”].)

This court in Aviles held that, in contrast to a due process challenge, the 

“ ‘excessive fines’ ” clause in the Eighth Amendment to the United States Constitution 

was a more appropriate avenue for an indigent defendant to challenge the imposition of 

13 Dueñas’s conclusion in this regard has been criticized. It has been noted that 

“Dueñas did not involve the right to access the courts, the defendant’s liberty interests, 

or any other fundamental right.” (People v. Santos (2019) 38 Cal.App.5th 923, 938 (dis. 

opn. of Elia, J.).) It has also been stated that the imposition of fees, fines and 

assessments does not satisfy “the traditional due process definition of a taking of life, 

liberty or property.” (People v. Gutierrez, supra, 35 Cal.App.5th at p. 1039 (conc. opn. 

of Benke, Acting P.J.).)
17.

fees, fines and assessments. (Aviles, supra, 39 Cal.App.5th at p. 1069.) Under its facts, 

Aviles found no constitutional violation for the imposition of assessments and fines 

imposed on a felon who, after fleeing from officers, shot and wounded two of them. 

(Id. at pp. 1059–1060.) Aviles also concluded that any presumed error was harmless 

because the felon had the ability to earn money while in prison. (Id. at pp. 1075–1077.)

The Hicks court held that, in contrast to Dueñas’s application of due process, a 

due process violation must be based on a fundamental right, such as denying a 

defendant access to the courts or incarcerating an indigent defendant for nonpayment. 

Hicks concluded that Dueñas’s analysis was flawed because it expanded due process in 

a manner that grants criminal defendants a right not conferred by precedent; that is, an 

ability to pay hearing before assessments are imposed. (Hicks, supra, 40 Cal.App.5th at 

pp. 325–326, review granted.) Under its facts, Hicks rejected a due process challenge to 

the imposition of fines and assessments on a felon who, while under the influence of a 

stimulant, resisted arrest. (Id. at pp. 323, 329–330.)

1. Appellants’ due process rights were not violated.

In this matter, the fees, fines and assessments imposed against appellants do not 

implicate the traditional concerns of fundamental fairness. Appellants were not denied 

access to the courts or prohibited from presenting a defense. (See Griffin v. Illinois

(1956) 351 U.S. 12, 18–20 [due process and equal protection require a state to provide 

criminal defendants with a free transcript for use on appeal]; People v. Kingston, supra,

41 Cal.App.5th at p. 281; Hicks, supra, 40 Cal.App.5th at p. 326, review granted.) 

Appellants were not incarcerated because they were unable to pay prior fees, fines or 

assessments. (See Bearden v. Georgia (1983) 461 U.S. 660, 672–673 (Bearden)

[fundamental fairness is violated if a state does not consider alternatives to 

imprisonment if a probationer in good faith cannot pay a fine or restitution]; People v. 
18.

Kingston, supra, 41 Cal.App.5th at p. 281; Hicks, supra, 40 Cal.App.5th at p. 326, 

review granted.)

The unique concerns addressed in Dueñas are lacking here. Nothing establishes 

or even reasonably suggests that appellants face ongoing unintended punitive 

consequences. Appellants do not establish how they suffered a violation of a 

fundamental liberty interest. Because unintended consequences are not present, it was 

not fundamentally unfair for the court to impose the fees, fines and assessments in this 

matter without first determining appellants’ ability to pay.14 As such, the trial court did 

not violate appellants’ due process rights, and this claim fails.15 (See People v. 

Kingston, supra, 41 Cal.App.5th at p. 282; Hicks, supra, 40 Cal.App.5th at p. 329, 

review granted.)

2. The fees, fines and assessments were not grossly 

disproportionate under the Eighth Amendment.

Green asserts that imposition of the fees, fines and assessments imposed against 

him violated the excessive fines clause of the Eighth Amendment. We find Green’s 

excessive fines challenge unpersuasive.16

14 We note that the court was permitted to impose fines upon appellants following 

their convictions. (See, e.g., Bearden, supra, 461 U.S. at p. 669 [a state has a 

fundamental interest in “appropriately punishing persons—rich and poor—who violate 

its criminal laws” and poverty does not immunize a defendant from punishment].) 

15 Respondent concedes that due process is violated when an indigent defendant is 

imprisoned for failure to pay a punitive fine “because the fundamental right to liberty is 

implicated.” Respondent urges us to resolve this due process challenge using a rational 

basis (as opposed to strict scrutiny) analysis. We need not fully respond to respondent’s 

position in this regard or articulate the appropriate standard of review for a due process 

challenge in this situation. To the contrary, appellants’ due process claims are based 

primarily on Dueñas, which neither articulated what fundamental liberty interest was at 

stake nor set forth a standard of review.

16 Although only Green raises a challenge under the excessive fines clause, we 

apply the same analysis to Lowery because they are similarly situated.
19.

“The touchstone of the constitutional inquiry under the Excessive Fines Clause is 

the principle of proportionality: The amount of the forfeiture must bear some 

relationship to the gravity of the offense that it is designed to punish.” (United States v. 

Bajakajian (1998) 524 U.S. 321, 334 (Bajakajian).) “The California Supreme Court has 

summarized the factors in Bajakajian to determine if a fine is excessive in violation of 

the Eighth Amendment: ‘(1) the defendant’s culpability; (2) the relationship between 

the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the 

defendant’s ability to pay. [Citations.]’ [Citations.]” (Aviles, supra, 39 Cal.App.5th at 

p. 1070.) While ability to pay may be part of the proportionality analysis, it is not the 

only factor. (Bajakajian, supra, 524 U.S. at pp. 337–338.)

According to Bajakajian, two considerations are particularly relevant in deriving 

a constitutional excessiveness standard. First, “judgments about the appropriate 

punishment for an offense belong in the first instance to the legislature.” (Bajakajian, 

supra, 524 U.S. at p. 336.) Second, “any judicial determination regarding the gravity of 

a particular criminal offense will be inherently imprecise. Both of these principles

counsel against requiring strict proportionality between the amount of a punitive 

forfeiture and the gravity of a criminal offense, and we therefore adopt the standard of 

gross disproportionality articulated in our Cruel and Unusual Punishments Clause 

precedents.” (Ibid.)

Here, appellants threatened multiple victims with firearms while robbing three 

businesses. We must give deference to the Legislature’s determination regarding the 

appropriate punishment. (Bajakajian, supra, 524 U.S. at p. 336.) When the relevant 

factors are examined, it is abundantly clear that the fees, fines and assessments imposed 

against them were not “grossly disproportional” under these circumstances. (Id. at 

p. 334; see also Aviles, supra, 39 Cal.App.5th at p. 1072; People v. Gutierrez, supra, 35 

Cal.App.5th at pp. 1040–1041 (conc. opn. of Benke, Acting P.J.).) As such, we reject 

any assertion that the excessive fines clause of the Eighth Amendment was violated.
20.

3. Appellants’ rights to equal protection under the law were not 

violated.

Green contends that imposition of the assessments and fines under Government 

Code section 70373 and Penal Code sections 1202.4, 1202.45 and 1465.8 violated his 

rights to equal protection. He relies primarily on Dueñas for this claim. We find 

Green’s equal protection claim unpersuasive.17 We have already concluded that 

Dueñas is distinguishable from the present matter and we will not apply it here. In any 

event, Dueñas based its holding on due process grounds, and not on equal protection. 

(Dueñas, supra, 30 Cal.App.5th at p. 1168, fn. 4.) Four opinions are instructive in 

resolving an equal protection challenge.

First, in Williams v. Illinois (1970) 399 U.S. 235 (Williams), the United States 

Supreme Court invalidated on equal protection grounds a facially neutral statute that 

authorized imprisonment for an indigent’s failure to pay fines. (Id. at pp. 241–242.) 

Second, in Tate v. Short (1971) 401 U.S. 395 (Tate), the United States Supreme 

Court expanded upon Williams. The Tate court held that equal protection was violated 

when an indigent defendant was committed to a “municipal prison farm” because he 

could not pay accumulated fines of $425 based on nine convictions for traffic offenses. 

(Tate at pp. 396–397.) The high court noted that the defendant “was subjected to 

imprisonment solely because of his indigency.” (Id. at p. 398.) Important to the issue 

before us, the Tate court commented that a state has a “valid interest in enforcing 

payment of fines.” (Id. at p. 399.) According to Tate, a state “is not powerless to 

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

result would amount to inverse discrimination since it would enable an indigent to avoid 

both the fine and imprisonment for nonpayment whereas other defendants must always 

suffer one or the other conviction.” (Ibid.) The high court stated that “ ‘numerous 

17 Although only Green raises a challenge under equal protection, we apply the 

same analysis to Lowery because they are similarly situated.
21.

alternatives’ ” existed for a state to avoid “imprisoning an indigent beyond the statutory 

maximum for involuntary nonpayment of a fine or court costs.” (Ibid.) However, those 

alternatives were left for the states to explore. (Id. at p. 400.)

Third, in In re Antazo (1970) 3 Cal.3d 100, the California Supreme Court held 

that an indigent defendant could not be imprisoned for failure to pay a fine. Otherwise a 

violation of equal protection would occur based on wealth. (Id. at pp. 103–104.) 

Importantly, our high court noted that imposing a fine and penalty assessment on an 

indigent offender did not by itself necessarily constitute a violation of equal protection. 

Apart from imprisonment, alternatives exist that could permit an indigent offender to be 

fined. (Id. at p. 116.)

Finally, in Bearden, supra, 461 U.S. 660, the United States Supreme Court held 

that a court may not revoke probation for an indigent defendant’s inability to pay a fine 

and restitution, absent evidence and findings that the defendant was responsible for the 

failure or that alternative forms of punishment were inadequate. Otherwise, the 

“deprivation would be contrary to the fundamental fairness required by the Fourteenth 

Amendment.” (Id. at pp. 672–673.) The high court, however, reiterated that a state is 

not powerless to enforce judgments against those financially unable to pay a fine. (Id.

at pp. 671–672.) Bearden also noted that, when a defendant’s indigency is involved, 

due process provides a better analytic framework than equal protection because “a 

defendant’s level of financial resources is a point on a spectrum rather than a 

classification.” (Id. at p. 666, fn. 8.) In the same footnote, Bearden stated that “[t]he 

more appropriate question is whether consideration of a defendant’s financial 

background in setting or resetting a sentence is so arbitrary or unfair as to be a denial of 

due process.” (Ibid.)

In light of Williams, Tate, In re Antazo and Bearden, it is clear that appellants 

were not denied equal protection. They were not incarcerated because of their alleged 

poverty. Appellants do not articulate how a fundamental liberty interest was implicated. 
22.

Thus, the trial court was permitted to impose a fine or penalty on them so long as 

alternatives to imprisonment are offered for purposes of repayment. (In re Antazo,

supra, 3 Cal.3d at p. 116.)

Based on this record, we reject Green’s assertion that the court imposed an 

unauthorized sentence. Appellants failed to bring this issue to the attention of the trial 

court. (See People v. Avila, supra, 46 Cal.4th at p. 729 [rejecting assertion that 

imposition of a fine represented an unauthorized sentence because the defendant failed 

to object].) In any event, the court’s respective orders did not violate appellants’ 

constitutional rights. Accordingly, appellants’ claims are without merit. However, as

we discuss below, we can also declare that any presumed error is harmless.

D. Any presumed constitutional violation is harmless.

When sentenced in this matter, Lowery18 was approximately 32 years old and 

Green19 was approximately 28 years old. Nothing from this record suggests that they 

suffer from any physical or mental limitations. 

Unlike the Dueñas defendant who was placed on probation and subjected to a 

recurring cycle of debt, appellants were sentenced to relatively lengthy determinate 

prison terms following their multiple convictions for armed robbery. Nothing in this 

record suggests they might be unable to work, or that they might be ineligible for prison 

work assignments. As such, we can infer that they will have the opportunity to earn 

prison wages and they can start paying these financial obligations. (Aviles, supra, 39 

18 According to the probation report, Lowery was married but currently separated. 

He has a total of six children, two of whom are in common with his spouse. All of his 

children are minors. The report indicates he “is a music artist and CEO of his own 

music record label.... He manages eleven people and that is his form of employment. 

He did not indicate how much he is earning from this business.” 

19 According to the probation report, Green is not married and he is childless. He 

“was not working prior to his arrest. He was attending Merced College, studying to 

become an automotive mechanic. He obtained financial aid and was receiving up to 

$1,500 per semester.” 
23.

Cal.App.5th at p. 1076; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [ability 

to pay includes a defendant’s prison wages].)

“Prison wages range from $12 to $56 per month, depending on the prisoner’s 

skill level.” (Aviles, supra, 39 Cal.App.5th at p. 1076, citing Cal. Code Regs., tit. 15, 

§ 3041.2; Cal. Dept. of Corrections & Rehabilitation, Adult Institutions Operations 

Manual (2019), art. 12 (Inmate Pay), §§ 51120.1, 51120.6, pp. 354–356.) “The state 

may garnish between 20 and 50 percent of those wages to pay the section 1202.4, 

subdivision (b) restitution fine.” (Aviles, supra, at p. 1076, citing § 2085.5, subds. (a), 

(c); People v. Ellis (2019) 31 Cal.App.5th 1090, 1094.) It is illogical to conclude that

appellants will not have an ability to begin paying at least some of the imposed fees, 

fines and assessments while they are incarcerated.

Based on this record, appellants’ circumstances are vastly different from the 

probationer in Dueñas. While it may take them considerable time to pay the amounts 

imposed against them, it is clear they can make payments from either prison wages or 

monetary gifts from family and friends during their lengthy prison sentences. (Aviles,

supra, 39 Cal.App.5th at p. 1077.) Thus, even assuming a constitutional violation 

occurred, any alleged error is harmless beyond a reasonable doubt. (Chapman v. 

California (1967) 386 U.S. 18, 24; People v. Johnson, supra, 35 Cal.App.5th at 

pp. 139–140.) Therefore, this claim is without merit and remand is unnecessary.

IV. The Abstracts Of Judgment Contain Clerical Errors.



During sentencing, the court ordered appellants to pay total victim restitution of 

$9,450 to three victims (§ 1202.4, subd. (f)). The court reserved jurisdiction as to two 

remaining victims. This obligation was ordered “joint and several.”

Lowery’s abstract of judgment incorrectly lists this restitution amount as $9,000. 

Green’s abstract of judgment fails to list this obligation.

 See footnote, ante, page 1.
24.

An appellate court may correct clerical errors appearing in abstracts of judgment 

either on its own motion or upon application of the parties. (People v. Mitchell (2001) 

26 Cal.4th 181, 185.) “An abstract of judgment is not the judgment of conviction; it 

does not control if different from the trial court’s oral judgment and may not add to or 

modify the judgment it purports to digest or summarize. [Citation.]” (Ibid.)

We direct the trial court to cause appellants’ abstracts of judgment to be amended 

to reflect the ordered victim restitution of $9,450. (§ 1202.4, subd. (f).) The abstracts 

shall reflect that the respective obligations are “joint and several” to each other. The 

court shall have the amended abstracts forwarded to the appropriate authorities.

DISPOSITION

The trial court shall cause appellants’ respective abstracts of judgment to reflect 

the ordered victim restitution of $9,450. (§ 1202.4, subd. (f).) Appellants’ abstracts 

shall reflect that their respective obligations are “joint and several” to each other. The 

court shall have the amended abstracts forwarded to the appropriate authorities. In all 

other respects, appellants’ judgments are affirmed.

____________________

LEVY, J.

WE CONCUR:

_____________________

HILL, P.J.

_____________________

POOCHIGIAN, J.