1

Filed 8/18/22 P. v. Washington 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

LARRY LASHAY WASHINGTON,

Defendant and Appellant.

C094513

(Super. Ct. No. 19FE014608)

After a bench trial, the court found defendant Larry LaShay Washington guilty of 

two counts of second degree robbery. The court found true that defendant personally 

used a firearm in the commission of each offense. (Pen. Code, § 12022.53, subd. (b).)1 

The court sentenced defendant to 12 years in prison: the low term of two years on 

count 1, plus 10 years for the firearm enhancement. The court imposed a concurrent twoyear sentence on count 2. 

1

 Undesignated statutory references are to the Penal Code.
2

On appeal, defendant argues: (1) the trial court violated his Sixth Amendment 

right to control the objectives of his defense by not asking whether he consented to his 

counsel’s concession of guilt; (2) the court erred by failing to give him full Boykin-Tahl2

advisements because his bench trial was in effect a “slow plea” of guilty; and (3) the 

court’s imposition of certain fines and fees without holding a hearing on his ability to pay 

them violated his constitutional rights. We will modify the judgment to correct the trial 

court’s miscalculation of the minimum restitution fine and matching suspended $300

parole revocation restitution fine it could impose. We will affirm the judgment as 

modified.

I. BACKGROUND

A. The Prosecution’s Case

A bank teller testified that, on August 12, 2019, defendant entered the bank and 

waived a gun in the air. He threw a bag onto the teller’s counter and told her to fill it. 

She put money from her drawer into the bag. The prosecution played videos from the 

bank’s surveillance cameras. 

Another bank employee testified that the man who entered the bank was holding a 

pistol. He said it was a robbery and instructed everyone to put their hands up. After he 

obtained cash from two tellers, the man left in a champagne-colored Volkswagen sedan. 

A police officer testified that he found an unoccupied Volkswagen sedan matching 

the description he was provided regarding the bank robbery. The keys were in the 

ignition and the engine was still running. Inside the sedan, the officer found black tube 

socks that looked like those that were on the suspect’s hands in the surveillance video. 

The officer ran a records check and learned defendant was the registered owner of the 

sedan. 

2

 Boykin v. Alabama (1969) 395 U.S. 238 (Boykin); In re Tahl (1969) 1 Cal.3d 122

(Tahl).
3

A second police officer was dispatched to a residential address where he searched 

defendant. As the officer searched him, defendant said, “this wasn’t very well planned.” 

In a nearby backyard, the first officer found a backpack that contained an unloaded 

pistol, more than $8,000 in cash, and a tracking chip inside the bills. 

Later that day, when a detective interviewed defendant, defendant admitted to 

committing the bank robbery and identified himself in photos from the surveillance 

videos. A portion of the video recording of defendant’s interview was played for the 

court. 

B. The Defense Case

Defense counsel called three witnesses. Two were witnesses to the robbery who 

testified that the person who entered the bank never pointed his gun at anyone, but rather 

pointed it in the air. Defendant’s mother testified regarding defendant’s recent behavior. 

II. DISCUSSION

A. Defense Counsel’s Concession of Guilt

1. Trial Court Proceedings

Defendant raises two arguments arising out of his counsel’s concession of guilt at 

his bench trial: (1) the trial court should have asked whether he consented to this 

concession; and (2) the overall effect of this concession and his bench trial was a “slow 

plea” of guilty necessitating full Boykin-Tahl advice and waivers. Before we address 

these issues, we will summarize the relevant trial court proceedings.

Prior to his bench trial, defendant submitted a trial brief explaining “the purpose 

for waiving the jury is to present a short version of the robbery as observed by a few of 

the witnesses in the bank. The defense objective is not to prevail on the question of 

identity, which is beyond dispute, but to make a case for a stay of the [10-]year firearm 

enhancement.” The brief concluded by stating, “The defendant will be found guilty on 

both counts and the enhancement will be found to be true. However, mitigating factors 

will be argued in favor of a request to stay the 10[-]year enhancement.” 
4

Before defendant formally waived his right to a jury trial, the court advised him of 

that right on the record and noted, “If you waive the right to a trial by jury on the charges 

and the enhancements, a judge alone—me—will decide whether you are guilty or not 

guilty of the charges and whether the enhancements are found to be true or not true.” 

After the court asked defendant if he understood the differences between a jury trial and a 

bench trial, defendant responded, “I will be found guilty as long as I use what they put 

down on paper, right?” The court replied, “So we’re going to get to that issue in a 

minute. What I’m focusing on is when witnesses come in. Whether there are going to be 

12 members of our community present in the courtroom who are going to decide the 

charges; or whether I’m going to be the one that decides the charges, whether I’m going 

to be the fact finder.” 

The court asked whether defendant was waiving his right to a jury, and he replied, 

“Yes, ma’am.” The court rephrased the question, and he replied, “I believe so.” The 

court asked defendant if he wanted to speak to his attorney. 

Defendant did not respond, but defense counsel explained, in part, “The reason we 

waive the jury trial is there’s no contest on the identity issue here. The evidence is 

overwhelmingly there. This ... case is about the use of a firearm and only the use of the 

firearm. And so, in waiving the jury, and through many discussions with [the 

prosecutor], we reached this agreement where we would try this to the court, kind of 

relax a little bit the rules of evidence, put everything before you, things that might not 

come before a jury. There’s no contest here, and you need to hear some of the mitigation. 

It will be a very short trial . . . and then you will have all the evidence that you will need 

to decide the firearm issue, because I will be asking your Honor to stay the 10-year 

enhancement for the gun. [¶] The only way I can accomplish this for Mr. Washington, in 

my view, is to waive a jury and put it all before you.” Defense counsel said he had 

explained this strategy to defendant multiple times, and defendant was “on board with it, 

and he understands.” 
5

Defense counsel then asked his client, “Do you have any problem with not having 

twelve people decide whether or not you committed this offense?” 

Defendant responded, “I mean, at the end of the day I’m not a lawyer or a judge. 

I’m just somebody that’s guilty or not guilty, so I don’t really know.” 

In the ensuing discussion, the court noted it understood the defense strategy as 

explained by defense counsel then and in defendant’s trial brief. 

Defense counsel attempted to clarify the waiver of a jury trial to his client: “The 

jury will decide whether or not you had the firearm during this robbery and displayed it. 

They will decide that. But whether or not you get punished for that, in addition to other 

punishment here, is going to be up to this judge. And she’ll make that decision based on 

factors that wouldn’t come before this jury.” Defendant replied, “And that’s what I asked 

you basically.” The court said it was “uneasy with what . . . should be a private 

conversation between Mr. Washington and Counsel,” and the proceedings went off the 

record for defendant and his counsel to have further discussions. After they were back on 

the record, defendant waived his right to a jury trial. 

When it was time to make a closing argument, defense counsel stated, “I would 

concede there’s evidence to find, beyond a reasonable doubt, that Mr. Washington was 

the individual inside the bank. The video showed the firearm, the firearm was recovered.

So I would concede that the case, the elements of both the case, the crimes charged, and 

the special allegation, have been proved, and so I think the Court is well aware of what 

my argument is and will probably come at a later date . . . . I’ll just reserve my comments 

. . . for an appropriate time.” 

2. McCoy and Farwell

“Several federal constitutional rights are involved in a waiver that takes place 

when a plea of guilty is entered in a state criminal trial.” (Boykin, supra, 395 U.S. at p. 

243.) These are the right against self-incrimination, the right to trial by jury, and the right 

to confront one’s accusers. (Ibid.) But “California law has long been settled: ‘[T]rial 
6

counsel’s decision not to contest, and even expressly to concede, guilt on one or more 

charges . . . is not tantamount to a guilty plea requiring a Boykin-Tahl waiver.’ 

[Citations.] The trial court has no duty to inquire whether the defendant agrees with his 

attorney’s concession strategy, at least where there is no explicit indication he disagrees 

with the approach.” (People v. Burns (2019) 38 Cal.App.5th 776, 782.) Defendant 

nonetheless argues the trial court violated his Sixth Amendment right to control the 

objectives of his defense when it permitted defense counsel to concede his guilt without 

inquiring whether he consented to the concession. Defendant relies on McCoy v. 

Louisiana (2018) __U.S. __, 138 S.Ct. 1500, 200 L.Ed.2d 821 (McCoy) and People v. 

Farwell (2018) 5 Cal.5th 295 (Farwell) to support this assertion, but the use of these 

authorities to support such a claim has been repeatedly rejected. (People v. Bernal (2019) 

42 Cal.App.5th 1160, 1166; People v. Burns, supra, at pp. 781-782; People v. Franks

(2019) 35 Cal.App.5th 883, 889-891; People v. Lopez (2019) 31 Cal.App.5th 55, 63-66.) 

In Farwell, our Supreme Court held that “[a] stipulation that admits all of the 

elements of a charged crime necessary for a conviction is tantamount to a guilty plea,” 

and therefore “the record must demonstrate that the defendant voluntarily and 

intelligently waived his constitutional trial rights.” (Farwell, supra, 5 Cal.5th at pp. 299, 

300.) The Farwell court explained that the “stipulation conclusively established the 

stipulated facts as true and completely relieved the prosecution of its burden of proof” 

because “ ‘[w]hen a defendant stipulates to the existence of a fact in controversy . . . the 

jury is instructed that it must regard the fact as conclusively proved.’ ” (Id. at p. 300.) 

Therefore, while the jury in Farwell was required to return a verdict, “its limited function 

did not amount to a jury trial in the constitutional sense.” (Ibid.) Farwell has no 

application here. Despite defense counsel’s concession, the prosecution was not relieved 

of its burden of proof and “still had to present competent evidence to establish the 

essential elements of each charge.” (People v. Burns, supra, 38 Cal.App.5th at p. 783.)
7

McCoy is also inapplicable. There, the United States Supreme Court held 

“counsel may not admit her client’s guilt of a charged crime over the client’s intransigent 

objection to that admission.” (McCoy, supra, 138 S.Ct. at p. 1510.) As we have

previously underscored, “McCoy makes clear . . . that for a Sixth Amendment violation to 

lie, a defendant must make his intention to maintain innocence clear to his counsel, and 

counsel must override that objective by conceding guilt.” (People v. Franks, supra, 35 

Cal.App.5th at p. 891.) Defendant argues cases holding he must demonstrate he 

disagreed with counsel’s concession were wrongly decided. Defendant asserts there were

no means for him to communicate his disagreement. We agree with the People that the 

record shows defendant had the opportunity to speak to the court and did so before 

waiving his right to a jury trial. Moreover, McCoy demonstrates the possibility of 

making a disagreement known and requires it to establish a Sixth Amendment violation. 

(McCoy, supra, at pp. 1506, 1509.) 

Additionally, defendant argues the authorities requiring him to communicate 

disagreement are distinguishable because he “did attempt to clarify whether the outcome 

of his trial was preordained, but the court never answered him.” It was clear from the 

record that defendant was aware of his counsel’s strategy; there is no indication he 

disagreed with it. The fact he sought the court’s confirmation that he would “be found 

guilty as long as I use what they put down on paper” and the court demurred does not 

indicate he disagreed with the strategy. Rather, it indicated defendant was of the 

impression the evidence against him was overwhelming and that concession was the 

strategy. We reject defendant’s assertion that the trial court was required to ask whether 

he consented to the concession. 

3. Bunnell and “Slow Pleas”

Defendant argues his bench trial was tantamount to a “slow plea” of guilty that 

necessitated Boykin-Tahl advice and waivers. We disagree.
8

“Under the rule of Boykin v. Alabama, supra, 395 U.S. 238, and In re Tahl, supra,

1 Cal.3d 122, as extended in Bunnell v. Superior Court (1975) 13 Cal.3d 592 [Bunnell] 

and other cases, ‘when the defendant agrees to a submission procedure, such as a guilty 

plea or a submission on the preliminary hearing transcript, by virtue of which he 

surrenders one or more of the three specified rights [jury trial, confrontation and privilege 

against self-incrimination]’ [citation], the record must reflect that he was advised of and 

personally waived the applicable right or rights.” (People v. Robertson (1989) 48 Cal.3d 

18, 39.)

“A ‘submission’ within the meaning of Tahl, supra, 1 Cal.3d 122 and Bunnell,

supra, 13 Cal.3d 592 occurs when a defendant gives up his right to trial by jury and, 

unless otherwise specified, the right to present additional evidence in his own defense and 

agrees the court can decide the case on the basis of the transcript of prior proceedings. 

[Citations.] Although the parties may reserve the right to present additional evidence, the 

essential components of a submission are waiver of a jury trial and, with respect to the 

witnesses who testified in the prior proceedings, waiver of the right to confrontation in 

the present proceeding. [Citations.] When the submission is a ‘slow plea’ or ‘tantamount 

to a plea of guilty,’ the defendant also gives up his privilege against self-incrimination.” 

(People v. Robertson, supra, 48 Cal.3d at pp. 39-40.) Our Supreme Court has “suggested 

that ‘a “slow plea” of guilty’ may occur where a defendant submits the issue of his or her 

guilt of the charged offense on the basis of the police report [citation] or ‘other 

documentation’ [citation], or where a defendant in a capital case submits the issue of 

penalty on the transcript of prior proceedings.” (People v. Cunningham (2015) 61 

Cal.4th 609, 638.)

Here, defendant agreed to, and proceeded with, a court trial. He did not agree to 

submit the truth of the allegations on agreed evidence, and his waiver of a jury was not a 

consequence of any such agreement. Rather, the prosecution was required to put on its 

case. In doing so, it presented overwhelming evidence of defendant’s guilt including 
9

defendant’s own confession and identification of himself in surveillance videos. Defense

counsel’s concessions were a result of the fact that the evidence the prosecution 

introduced was overwhelming. Similarly, defendant’s criticism of his counsel’s evidence 

and brief cross-examinations are unavailing because both were appropriate considering

the evidence against him. As the People explain, “[i]n light of the strong and 

uncontradicted evidence implicating [defendant] in the robberies, counsel did not have a 

defense to present, but he strategically focused on highlighting the mitigating aspects of 

the robberies and [defendant]’s firearm use. Counsel’s strategy in this regard did not 

transform the trial into a slow plea.” Instead, “defendant enjoyed a full court trial during 

which he confronted, cross-examined, and attempted to impeach the prosecution 

witnesses, and exercised his right against self-incrimination by not taking the witness 

stand. Having fully exercised these rights, there was no need for defendant to waive 

them.” (People v. Cunningham, supra, 61 Cal.4th at pp. 638-639.)

B. Fines and Fees

At sentencing, the trial court stated, “[t]he restitution fine [(§ 1202.4, subd. (b))], 

because there are two felony convictions, is reduced to the statutory minimum of [$]350 

times two. An additional restitution fine of the same amount is imposed and stayed 

unless and until [defendant’s] parole is revoked, and that’s pursuant to [section] 1202.45. 

So again, that’s a total of [$]700 stayed.” The court asked whether defendant had any 

objections or requests for modification based on what appeared in the probation report. 

Defense counsel stated, “I would like the Court to minimize fines whenever possible due 

to the fact [defendant is] not employed and may not be, once he’s released, for a period of 

time.” The court then ordered defendant to pay an $80 court operations assessment 

(§ 1465.8) and a $60 court facilities assessment (Gov. Code, § 70373). Relying on 

People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) and related cases, defendant

argues imposition of these fines and fees without holding a hearing on his ability to pay 

them violated his constitutional rights. To the extent we deem his trial counsel’s
10

comments at sentencing insufficient to preserve this claim on appeal, defendant argues 

his trial counsel rendered ineffective assistance by not objecting to the imposition of 

these fines and fees without the court first determining whether he was able to pay them. 

Before we address these issues, we will correct the restitution fines imposed by the 

court. The abstract of judgment and minute order indicate the restitution fine (§ 1202.4, 

subd. (b)) and parole revocation restitution fine (§ 1202.45) imposed by the court were

each $600. “Where there is a discrepancy between the oral pronouncement of judgment 

and the minute order or the abstract of judgment, the oral pronouncement controls.” 

(People v. Zackery (2007) 147 Cal.App.4th 380, 385.) However, the People argue that in 

orally imposing what it described as a statutory minimum of $700, “[t]he court misspoke, 

as the statutory minimum for the restitution fine is $300 for each felony.” (Italics added.) 

We agree the trial court misspoke, but the People are incorrect about the statutory 

minimum. Section 1202.4, subdivision (b) requires the court to impose a restitution fine 

“[i]n every case where a person is convicted of a crime.” (Italics added.) Further, “[i]f 

the person is convicted of a felony, the fine shall not be less than three hundred dollars 

($300).” (§ 1202.4, subd. (b)(1).) Thus, the minimum restitution fine in this case, which 

is what the record indicates the trial court attempted to orally impose, is only $300. The 

parole revocation restitution fine under 1202.45 is assessed “in the same amount.” 

(§1202.45, subd. (a).) We will modify the judgment accordingly.

We now return to defendant’s argument under Dueñas, supra, 30 Cal.App.5th 

1157. The Dueñas court held “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 . . . section 1465.8 and 

Government Code section 70373.” (Id. at p. 1164.) The Dueñas court also held “that 

although . . . 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 
11

holds an ability to pay hearing and concludes that the defendant has the present ability to 

pay the restitution fine.” (Ibid.) We are not persuaded that the analysis used in Dueñas is 

correct.

Our Supreme Court is now poised to resolve this question, having granted review 

in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, 

S257844, which agreed with the court’s conclusion in Dueñas that due process requires 

the trial court to conduct an ability to pay hearing and ascertain a defendant’s ability to 

pay before it imposes court facilities and court operations assessments under section 

1465.8 and Government Code section 70373, but not restitution fines under section 

1202.4. (Kopp, supra, at pp. 95-96.)

In the meantime, we join those authorities that have concluded the principles of 

due process do not require determination of a defendant’s present ability to pay before 

imposing the fines and assessments discussed in Dueñas. (People v. Kingston (2019) 41 

Cal.App.5th 272, 279-282; People v. Hicks (2019) 40 Cal.App.5th 320, 326-329, rev. 

granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1068-

1069; People v. Caceres (2019) 39 Cal.App.5th 917, 928.) Having done so, we reject 

defendant’s Dueñas challenge and his derivative claim of ineffective assistance of 

counsel. (People v. Kipp (1998) 18 Cal.4th 349, 377 [failure to assert a meritless 

argument does not demonstrate ineffective assistance of counsel].)

To the extent defendant further argues, under People v. Cowan (2020) 47 

Cal.App.5th 32, review granted June 17, 2020, S261952, that he was entitled to make a 

record of his inability to pay under an Eighth Amendment excessive fines analysis, we 

find this citation unhelpful and the argument incomplete. The Cowan court held that 

“[b]ecause ability to pay is an element of the excessive fines calculus under both the 

federal and state Constitutions, . . . a sentencing court may not impose court operations or 

facilities assessments or restitution fines without giving the defendant, on request, an 

opportunity to present evidence and argument why such monetary exactions exceed his 
12

ability to pay.” (Id. at p. 48, italics added.) Defendant’s briefing does not suggest 

defendant had additional evidence or argument to present on this point or any likelihood 

his counsel would have prevailed under an excessive fines analysis. We cannot conclude 

any error occurred or that defendant’s trial counsel rendered ineffective assistance by not 

raising the issue further. (See People v. Mai (2013) 57 Cal.4th 986, 1009 [“the defendant 

must show resulting prejudice, i.e., a reasonable probability that, but for counsel’s 

deficient performance, the outcome of the proceeding would have been different”].)

III. DISPOSITION

The judgment is modified to impose only a $300 restitution fine and matching 

suspended $300 parole revocation restitution fine. As modified, the judgment is 

affirmed. The trial court is directed to forward a certified copy of the amended abstract 

of judgment to the Department of Corrections and Rehabilitation. 

/S/

 

RENNER, J.

We concur:

/S/

 

DUARTE, Acting P. J.

/S/

 

HOCH, J.