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Filed 8/8/22 P. v. Oswood 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Yuba)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

CORY ALAN OSWOOD,

Defendant and Appellant.

C094022

(Super. Ct. No. 

CRF21-00128)

Pursuant to a negotiated plea agreement, defendant pleaded no contest to fleeing a

peace officer while driving recklessly (Veh. Code, § 2800.2) and attempted first degree 

burglary. (Pen. Code, §§ 664, 459.)1 He also admitted that he had suffered a prior strike. 

(§§ 667, subds. (b)-(i), 1170.12.) In exchange, he received a stipulated prison sentence of 

five years four months and dismissal of the remaining counts and allegations. 

1 Undesignated statutory references are to the Penal Code.
2

Defendant now argues that his no contest plea must be set aside because the trial 

court gave him incomplete Boykin-Tahl2 advisements of his constitutional rights. 

Defendant further argues that certain fines and fees imposed by the trial court at 

sentencing must be stayed and stricken, respectively, and the matter reversed for an 

ability to pay hearing consistent with People v. Dueñas (2019) 30 Cal.App.5th 1157, 

1172-1173 (Dueñas) and its progeny. 

As we shall explain, defendant’s failure to obtain a certificate of probable cause 

under section 1237.5 precludes his Boykin-Tahl claim. We further find that defendant 

has forfeited his fines and fees challenge and, in any event, has not demonstrated trial 

counsel was ineffective for failing to demand an ability to pay hearing before the 

complained-of fines and fees were imposed. Accordingly, we will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant originally was charged with attempted vehicle theft (§ 664; Veh. Code,

§ 10851, subd. (a)—count I); assault on a peace officer (§ 245, subd. (c)—count II); 

fleeing a peace officer while driving recklessly (Veh. Code, § 2800.2—count III); 

receiving a stolen vehicle (§ 496d—count IV); attempted first degree burglary (§§ 664, 

459—count V); felony vandalism (§ 594, subd. (b)(1)—count VI); possession of 

ammunition by a prohibited person (§ 30305, subd. (a)(1)—count VII); misdemeanor 

possession of a smoking device (Health & Saf. Code, § 11364—count VIII); and 

misdemeanor theft. (§ 484, subd. (a)—count IX.) The complaint further alleged as to 

counts I through VII that defendant had suffered a prior strike. (§§ 667, subds. (b)-(i), 

1170.12.) 

On January 27, 2021, defendant resolved this matter by pleading no contest to 

counts III and V and admitting the prior strike allegation. In exchange, he would receive 

2 Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274] (Boykin); In re Tahl

(1969) 1 Cal.3d 122 (Tahl).
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a stipulated midterm prison sentence of five years four months; the remaining charges 

were to be dismissed with a Harvey3 waiver on the felony counts. The stipulated factual 

basis for his plea was derived from Yuba County Sheriff’s Department report No. 21-

0264. According to the prosecutor, authorities were called after defendant attempted to 

steal a tractor and fled the scene in a stolen truck. Defendant refused officers’ attempts to 

conduct a traffic stop, leading law enforcement on a chase through farmland, levees, dirt 

trails, orchards and various roadways, ultimately requiring the deployment of a spike strip 

to end the pursuit. During the chase, defendant came within 10 yards of striking an 

officer (who moved to avoid him); before the chase, defendant was observed attempting 

to enter an occupied residence with pliers. 

As acknowledged at the plea hearing, defendant initialed and signed a seven-page 

plea form that included initialed acknowledgements that he understood and waived 

various constitutional rights, including his right to a jury trial, to confront and crossexamine witnesses, and to remain silent. The trial court found defendant’s waiver of his 

rights was knowing and intelligent and accepted his pleas and admission. It appears from 

the probation report that this was the fifth time defendant had resolved a matter by a plea 

of no contest. 

On February 22, 2021, the trial court sentenced defendant in accordance with the 

plea agreement. In response to defendant’s professed indigence, the court imposed a 

$600 restitution fine (§ 1202.4, subd. (b)), instead of the $1,500 recommended by the 

probation department, and also imposed a matching, suspended $600 parole revocation 

restitution fine (§ 1202.45), two $40 court operations assessments (§ 1465.8), and two 

$30 criminal conviction assessments. (Gov. Code, § 70373.) Defendant did not 

otherwise object to the court’s imposition of these fines and fees, provide an offer of 

3 People v. Harvey (1979) 25 Cal.3d 754.
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proof as to his professed indigence, or request an ability to pay hearing. Finally, the court 

awarded victim restitution to two different victims in the amounts of $1,436.61 and 

$1,646.87, respectively, and reserved jurisdiction to determine restitution as to a third 

victim. 

Defendant’s initial notice of appeal, received by the Yuba County Superior Court 

on March 30, 2021, was rejected and his request for a certificate of probable cause was 

denied. Defendant’s second notice of appeal was based on matters that did not affect the 

validity of the plea. On this court’s own motion, we construed this notice to be timely as 

it was dated April 23, 2021, but was not filed until April 26, 2021, the next court day. On 

July 23, 2021, we denied defendant’s application for leave to seek a belated certificate of 

probable cause. Appellate briefing in this matter was completed May 16, 2022. 

DISCUSSION

I

The Boykin-Tahl Claim

Defendant contends his no contest plea and admission was constitutionally invalid 

because the trial court did not orally inquire into whether he understood and waived his 

constitutional rights to a jury trial, to confront and cross-examine the witnesses against 

him, and to avoid self-incrimination. Despite his written waiver of these rights, 

defendant alleges the purported lack of explicit oral advisements and waivers renders his 

guilty plea invalid under Boykin, supra, 395 U.S. 238 and Tahl, supra, 1 Cal.3d 122. 

This issue is not cognizable on appeal absent a certificate of probable cause. 

Under section 1237.5 and California Rules of Court, rule 8.304, no appeal may be 

taken by a defendant from a judgment of conviction upon a plea of guilty or no contest 

except where a certificate of probable cause has been filed—unless the appeal concerns 

search and seizure issues, is based on grounds occurring after that plea/admission that do 

not affect the validity of the plea/admission, or is an issue “for which, by law, no 
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certificate of probable cause is required.” (Cal. Rules of Court, rule 8.304(b); see also 

§ 1538.5.)

Section 1237.5 provides: “No appeal shall be taken by the defendant from a 

judgment of conviction upon a plea of . . . nolo contendere, . . . except where both of the 

following are met: [¶] (a) The defendant has filed with the trial court a written 

statement, executed under oath or penalty of perjury showing reasonable constitutional, 

jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial 

court has executed and filed a certificate of probable cause for such appeal with the clerk 

of the court.”

Defendant’s own application for leave to seek a belated certificate of probable 

cause recognized that such a certificate was a prerequisite to bringing a Boykin-Tahl

claim. We denied this application and, despite his earlier concession, defendant failed to 

acknowledge the certificate of probable cause requirement in either his opening brief or 

in response to the People’s argument that such a certificate was required. Defendant’s 

failure to obtain a certificate of probable cause from the trial court precludes our 

consideration of the merits of this claim challenging the validity of his no contest plea 

and admission. (§ 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1098 [compliance 

with section 1237.5 is a “ ‘condition precedent’ to the taking of an appeal within its 

scope”].)

II

Defendant’s Fines and Fees Claims

Defendant further argues that the $600 restitution fine (§ 1202.4, subd. (b)), two 

$40 court operations assessments (§ 1465.8), and two $30 criminal conviction 

assessments (Gov. Code, § 70373) imposed by the trial court at sentencing must be 

stayed and stricken, respectively, and the matter reversed for an ability to pay hearing 

consistent with Dueñas, supra, 30 Cal.App.5th 1157 and the requirements of due process,

the Eighth Amendment, and equal protection. 
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At the outset, we note that because defendant was aware that he was not entitled to 

bring a Boykin-Tahl challenge absent a certificate of probable cause, defendant should 

have raised his fines and fees challenges in the trial court in accordance with section 

1237.2, which requires that a defendant first seek relief in the trial court where the only 

issue on appeal is a challenge to fines or fees. (§ 1237.2.)

4

 Defendant did not seek such 

relief, arguably allowing this court to decline to hear his claims. (People v. Hall (2019) 

39 Cal.App.5th 502, 504 [applying section 1237.2 to preclude consideration of a Dueñas

claim]; cf. People v. Mendez, supra, 19 Cal.4th at pp. 1100-1101 [dismissing custody 

credit claim under section 1237.1].)

However, because the trial court’s jurisdiction to determine defendant’s fines and 

fees challenges will end with the completion of this appeal (People v. Torres (2020) 44

Cal.App.5th 1081, 1083, 1088), and in the interest of justice, we will address defendant’s 

arguments despite his noncompliance. Exercising this discretion, we concur with the 

People that defendant forfeited these challenges when he failed to object to the 

imposition of the complained-of fines and fees without an ability to pay hearing. 

Moreover, defendant has not established his counsel was ineffective in failing to demand 

such a hearing below.

4 Section 1237.2 provides: “An appeal may not be taken by the defendant from a 

judgment of conviction on the ground of an error in the imposition or calculation of fines, 

penalty assessments, surcharges, fees, or costs unless the defendant first presents the 

claim in the trial court at the time of sentencing, or if the error is not discovered until 

after sentencing, the defendant first makes a motion for correction in the trial court, 

which may be made informally in writing. The trial court retains jurisdiction after a 

notice of appeal has been filed to correct any error in the imposition or calculation of 

fines, penalty assessments, surcharges, fees, or costs upon the defendant’s request for 

correction. This section only applies in cases where the erroneous imposition or 

calculation of fines, penalty assessments, surcharges, fees, or costs are the sole issue on 

appeal.”
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“In general, a defendant who fails to object to the imposition of fines, fees, and 

assessments at sentencing forfeits the right to challenge those fines, fees, and assessments 

on appeal. [Citations.]” (People v. Greeley (2021) 70 Cal.App.5th 609, 624, review den.

Jan. 5, 2022, S272033.) Defendant was sentenced on February 22, 2021, more than two 

years after the publication of Dueñas. (Dueñas, supra, 30 Cal.App.5th 1157 [decided 

Jan. 8, 2019].) Accordingly, defendant’s failure to request an ability to pay hearing based 

on Dueñas forfeited the issue on appeal. (People v. Curry (2021) 62 Cal.App.5th 314, 

328, fn. 7, review granted July 14, 2021, S267394; Greeley, supra, at p. 624; see also 

People v. Nelson (2011) 51 Cal.4th 198, 227 [defendant forfeited challenge to maximum 

restitution fine under section 1202.4 by failing to object at sentencing].)

Nor do we agree with defendant’s argument that the trial court failed to make an 

ability to pay determination. Here, the court imposed a $600 restitution fine, not the $300 

minimum restitution fine for a felony matter. (§ 1202.4, subd. (b)(1).) Thus, the court 

implicitly determined defendant had the ability to pay more than the statutory minimum, 

while declining to impose the $1,500 recommended by the probation department. (Ibid.; 

§ 1202.4, subd. (c) [“[i]nability to pay may be considered only in increasing the amount 

of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of 

subdivision (b)”].) If defendant had evidence that he wished the court to consider when 

determining his ability to pay, it was his duty to present that evidence to the court. 

(§ 1202.4, subd. (d) [“A defendant shall bear the burden of demonstrating the defendant’s 

inability to pay”]; People v. Cowan (2020) 47 Cal.App.5th 32, 49 [defendant bears the 

burden of proving his inability to pay a challenged fine or fee], review granted June 17, 

2020, S261952.) He did not do so.

Further, defendant has not established that his counsel was ineffective for failing 

to object and request an ability to pay hearing. To prevail on a claim of ineffective 

assistance of counsel, a defendant must show (1) counsel’s performance fell below an 

objective standard of reasonableness under prevailing professional norms; and (2) the 
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deficient performance prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 

668, 687-688, 693-694 [80 L.Ed.2d 674, 693-694, 697-698] (Strickland); People v. 

Ledesma (1987) 43 Cal.3d 171, 216-218 (Ledesma).) To show prejudice, defendant must

show a reasonable probability that he would have received a more favorable result had 

counsel’s performance not been deficient. (Strickland, supra, at pp. 693-694; Ledesma,

supra, at pp. 217-218.) “A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” (Strickland, at p. 694; accord, Ledesma, at p. 218.)

Defendant’s ineffective assistance of counsel claim fails because he has not 

established that he was prejudiced by his counsel’s failure to raise Dueñas at the 

sentencing hearing. Again, the trial court implicitly made an ability to pay determination 

when it imposed a restitution fine that was $300 over the statutory minimum. (§ 1202.4, 

subds. (b)(1), (c).) This fine was imposed at the same time as the remaining $140 in fees, 

and nothing in the record suggests a reasonable probability that the court would have 

determined defendant was unable to pay the latter amount had defendant’s counsel 

objected specifically to the imposition of those fees. (Strickland, supra, at pp. 693-694; 

Ledesma, supra, at pp. 217-218.) 

Nor do we find merit in defendant’s summary assertion that the Eighth 

Amendment requires reversal. Defendant has not shown that the $600 restitution fine 

imposed by the trial court was grossly disproportionate to defendant’s offenses under 

United States v. Bajakajian (1998) 524 U.S. 321 334 [141 L.Ed.2d 314, 329]

5 and People

ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728.

6 Finally, 

5 Superseded by statute on other grounds as stated in United States v. Toro-Barboza

(9th Cir. 2012) 673 F.3d 1136, 1154.

6 Defendant suggests that People v. Cowan, supra, 47 Cal.App.5th at page 48, 

review granted June 17, 2020, S261952, requires remand for an ability to pay 

determination so that the trial court can weigh all factors relevant in an excessive fines 

analysis. We disagree. Defendant was sentenced on February 22, 2021, approximately 
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defendant has not established that equal protection was violated. (People v. Aviles (2019) 

39 Cal.App.5th 1055, 1069 [“ ‘[There is] no general due process and equal protection 

authority which requires a court to conduct a preassessment present ability-to-pay hearing 

before imposing any fine or fee on a defendant, as Dueñas seems to conclude,’ ” italics 

omitted].) Accordingly, his fines and fees challenges fail.

DISPOSITION

The judgment is affirmed.

 KRAUSE , J.

We concur:

 ROBIE , Acting P. J.

 DUARTE , J.

11 months after the publication of Cowan. Thus, it was defendant’s burden in the trial 

court to raise the Eighth Amendment issue and establish his alleged inability to pay. (See 

People v. Torres (2019) 39 Cal.App.5th 849, 860 & fn. 4 [excessive fines claim forfeited 

in absence of timely objection].) Moreover, defendant has not explained how his $600 

fine was grossly disproportionate to his offenses, to wit, attempted first degree burglary, 

attempted theft of a tractor, receiving a stolen truck, leading authorities on a chase over 

multiple terrains necessitating the deployment of nail strips, endangering the life of at 

least one officer, and causing damage exceeding $3,000.