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Filed 7/30/21 P. v. Whitfield CA3

NOT TO BE PUBLISHED

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

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 This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

GEORGE WAYNE WHITFIELD,

Defendant and Appellant.

C091571

(Super. Ct. No. 19CF06496)

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

George Wayne Whitfield appeals the imposition of fines and fees without an ability to 

pay hearing. Recognizing trial counsel did not object to the imposition of these fines and 

fees, despite the fact that sentencing occurred after the publication of Dueñas, defendant 

also contends the failure to object was ineffective assistance of counsel. We conclude his 

counsel was not constitutionally ineffective and affirm the judgment.
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FACTUAL AND PROCEDURAL HISTORY

Defendant pleaded no contest to failure to appear (Pen. Code, § 1320, subd. (b))1

in Butte County Superior Court case No. 19CF06496 and admitted to violating a 

restraining order (§ 273.6) in Butte County Superior Court case No. 19CM03452. The 

trial court sentenced defendant to the upper term of three years in county jail. The trial 

court further imposed a $300 restitution fine (§ 1202.4, subd. (b)), a $40 court operations 

assessment (§ 1465.8), and a $30 conviction assessment (Gov. Code, § 70373).

Defendant’s counsel did not object and did not request an ability to pay hearing. 

Pursuant to section 1237.2, defendant moved for the trial court to either hold an ability to 

pay hearing or to strike or stay the fines and fees. Defendant’s argument relied on 

Dueñas, which held that “due process of law requires the trial court to conduct an ability 

to pay hearing and ascertain a defendant’s present ability to pay before it imposes court 

facilities and court operations assessments under Penal Code section 1465.8 and 

Government Code section 70373.” (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The 

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

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

statutory minimum, the execution of any restitution fine imposed under this statute must 

be stayed unless and until the trial court holds an ability to pay hearing and concludes that 

the defendant has the present ability to pay the restitution fine.” (Ibid.) The trial court 

denied the request.

DISCUSSION

Defendant contends that the trial court implicitly found that defendant had the 

ability to pay his fines and fees when it denied his section 1237.2 motion and argues that 

this finding was not supported by substantial evidence, as required by Dueñas. To the 

1 Undesignated statutory references are to the Penal Code.
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extent defendant forfeited his challenge to the fines and fees by failing to raise the issue

in the trial court, defendant contends his counsel was constitutionally ineffective. He 

argues the proper remedy is to stay the restitution fine and strike the court assessment fee 

and conviction assessment. On reply, defendant further argues that the restitution fee was 

unconstitutionally excessive, in violation of the Eighth Amendment. We agree with the 

People that defendant forfeited his claims on appeal, and we further conclude that 

defendant’s counsel was not constitutionally ineffective.

That a defendant must first object and demonstrate his inability to pay amounts 

imposed at sentencing is a longstanding and well-recognized rule. (See, e.g., People v. 

Nelson (2011) 51 Cal.4th 198, 227 [defendant’s claim that the court erroneously failed to 

consider ability to pay a $10,000 restitution fine is forfeited by the failure to object]; 

People v. Gamache (2010) 48 Cal.4th 347, 409 [challenge to $10,000 restitution fine 

forfeited by failure to object to alleged inadequate consideration of defendant’s ability to 

pay].) This is true regardless of whether a defendant’s ability to pay claims are 

constitutional in nature. (See People v. Trujillo (2015) 60 Cal.4th 850, 859 

[constitutional exception to forfeiture rule did not apply to claim concerning failure to 

obtain express waiver of an ability to pay hearing]; In re Sheena K. (2007) 40 Cal.4th 

875, 880-881 [noting longstanding rule that a constitutional right may be forfeited in 

criminal proceedings by “ ‘ “failure to make timely assertion of the right before a tribunal 

having jurisdiction to determine it” ’ ”].)

Here, defendant was sentenced on February 20, 2020, over a year after issuance of 

the Dueñas decision. (Dueñas, supra, 30 Cal.App.5th 1157 [decided Jan. 8, 2019].) 

Therefore, his failure to raise Dueñas at sentencing forfeits his Dueñas arguments by 

operation of normal rules of appellate review. (People v. Scott (1994) 9 Cal.4th 331, 

351-354 [to preserve a sentencing issue for appellate review, the defendant must raise it 

in the trial court].)
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Nor has defendant established that his counsel was ineffective for failing to object. 

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 deficient performance prejudiced defendant. 

(Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 [80 L.Ed.2d 674]; 

People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) 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, supra, at p. 694; accord, Ledesma, supra, at 

p. 218.)

Here, defendant cannot show his counsel was ineffective because he cannot show 

prejudice. In this case, the trial court had the opportunity to consider defendant’s Dueñas

claims under the section 1237.2 motion. The trial court denied the motion. As a result of 

this consideration and denial, defendant cannot demonstrate that he was prejudiced by 

counsel’s failure to object.

DISPOSITION

The judgment is affirmed.

 /s/

RAYE, P. J.

We concur:

 /s/

MAURO, J.

 /s/

MURRAY, J.