Filed 9/23/21 P. v. Rosales CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

PEDRO ROSALES III,

Defendant and Appellant.

F079161

(Super. Ct. No. F18907873)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Alvin M. 

Harrell III, Judge.

Michelle T. LiVecchi-Raufi, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A. 

Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

A jury found appellant Pedro Rosales III guilty of second degree robbery (Pen. 

Code,

1 § 211; count 1) and found true an allegation that he had personally used a deadly 

or dangerous weapon in the commission of the crime (§ 12022, subd. (b)(1)). Following 

his trial, appellant admitted he had suffered a prior strike conviction (§§ 667, subds. (b)-

(i), 1170.12, subds. (a)-(d)), a prior serious felony conviction (§ 667, subd. (a)(1)), and a 

prior prison term (§ 667.5, subd. (b)). The trial court sentenced appellant to the lower 

prison term of two years, doubled to four years due to the strike prior, plus one year for 

the weapon enhancement, five years for the prior serious felony enhancement, and one 

year for the prior prison term enhancement, for a total of 11 years. 

On appeal, appellant argues: (1) his admissions to the allegations of his prior 

convictions were not knowing or voluntary because the trial court did not properly advise 

him of his constitutional rights nor the penal consequences of his admissions (Yurko2

error); (2) the trial court erred by declining to exercise its discretion to strike appellant’s 

strike prior and/or his prior serious felony enhancement; (3) the court violated appellant’s 

due process rights and the excessive fines clause by imposing a $2,000 restitution fine 

(§ 1202.4); and (4) the one-year prior prison term enhancement must be stricken pursuant 

to Senate Bill No. 136 (2019-2020 Reg. Sess.). We strike the prior prison term 

enhancement, and in all other respects, affirm the judgment. 

FACTS

On October 9, 2018, appellant entered a cell phone store and inquired about 

purchasing a speaker that was on display. The store manager told appellant the speaker 

was broken but that she could sell the speaker to appellant at a discount. Appellant said 

he would come back. When he returned later that day, he had changed his clothes. 

Appellant asked a store employee to put the speaker in a book bag he brought in with 

1 Further undesignated statutory references are to the Penal Code.

2

In re Yurko (1974) 10 Cal.3d 857.
3.

him, and she complied. The employee then began to ring up the purchase but stepped a 

few feet away from the counter to text her boss to get the discount code. Once the 

employee stepped away, appellant reached behind the counter and grabbed the speaker.

The employee ran toward appellant and tried to get the speaker back and ended up 

grabbing a part of appellant’s sweater. Appellant turned around and said he had a knife. 

The employee saw the blade of the knife and got scared. Appellant brought the speaker 

outside the store, but at some point, he dropped it, got on his bicycle, and rode away. 

Surveillance videos from the store displaying portions of the incident were shown 

to the jury, and the parties stipulated that the footage displayed in the videos were true 

and correct copies.

DISCUSSION

I. Yurko Error 

A. Relevant Background

After the jury delivered the verdict, the trial court asked appellant if he was 

waiving the jury for the prior conviction allegations, to which appellant responded, “yes.” 

The court then excused the jury. The court went on to inform appellant he had a right to 

a jury trial but that he had just waived that right in the jury’s presence. The court then 

asked appellant whether he admitted the strike allegation, the serious felony conviction 

allegation, and the prison prior allegation, separately, and appellant responded in the 

affirmative to each allegation. 

The court then addressed defense counsel and asked if he had had an opportunity 

to discuss appellant’s jury waiver and his decision to admit the priors with him. Counsel 

responded he had discussed the issue earlier with appellant and “further advised him, ... 

if he did suffer these convictions, which the D.A.’s office can prove, that it’s in his best 

interest to simply admit them.” The trial court asked if counsel was satisfied appellant

understood the right to a trial and that he had sufficiently waived the right, to which 

counsel responded, “I believe so.” The court asked appellant if he agreed, and appellant
4.

and counsel had an unreported discussion. Defense counsel stated, “I just had a brief 

discussion with [appellant]. Um, I think [appellant] understands, one, that he could have 

had the jury decide whether or not he was convicted of these priors, and in my earlier 

conversation with him, he was agreeable to simply admitting them and not contesting 

something that shouldn’t be contested.” 

The court again asked appellant if he agreed with counsel’s assessment. Appellant 

stated he did not “understand what’s going on.” Another unreported discussion was held 

between appellant and defense counsel, after which appellant stated, “Okay. Yes.” The 

court stated: “All right. In essence, I want to summarize that you’re agreeing that you 

agree these things occurred, and you waive the right to a jury to have a jury decide this; is 

that correct?” Appellant responded, “Yes.” The court then stated he found appellant’s 

waiver and admissions were “knowingly, intelligently and voluntarily made,” accepted 

the admissions, and found the prior allegations true.

B. Analysis

Appellant contends his admissions of the prior conviction allegations were not 

“knowing and voluntary” because the court failed to (1) advise appellant and obtain 

waivers of appellant’s rights against self-incrimination and to confront adverse witnesses;

(2) advise appellant he was entitled to a bench trial on the priors; and (3) advise appellant 

his admissions would subject him to an additional prison term of eight years. We 

conclude any error was harmless. 

When a defendant admits a prior conviction allegation that subjects him to

increased punishment, the trial court is required to ensure the admission is knowing and

voluntary. (People v. Cross (2015) 61 Cal.4th 164, 170 (Cross).) To ensure the

standards of voluntariness and intelligence are met, the California Supreme Court held in

Yurko that the court must fully advise the defendant of (1) the defendant’s constitutional

rights subject to waiver (self-incrimination, confrontation, and jury trial, commonly
5.

known as Boykin-Tahl3rights) and (2) the full penal effect of a true finding of a prior

conviction allegation. (Yurko, supra, 10 Cal.3d at p. 865.) The second advisement

requires that the accused “must be advised of the precise increase in the prison term that

might be imposed, the effect on parole eligibility, and the possibility of being adjudged a

habitual criminal.” (Cross, at p. 171; Yurko, at p. 864.) The failure to make the 

advisements to the accused is commonly referred to as “Yurko error.” 

A trial court’s incomplete advisement is not reversible per se. Rather, the test of 

reversal for Yurko error “is whether ‘the record affirmatively shows that [the admission] 

is voluntary and intelligent under the totality of the circumstances.’ ” (Cross, supra, 

61 Cal.4th at p. 171.) “[I]n applying the totality of the circumstances test, a reviewing 

court must ‘review[] the whole record,’ ” not “ ‘just the record of the plea colloquy.’ ” 

(Id. at pp. 179‒180.) “[I]f the transcript does not reveal complete advisements and 

waivers, the reviewing court must examine the record of ‘the entire proceeding’ to assess 

whether the defendant’s admission of the prior conviction was intelligent and voluntary 

in light of the totality of circumstances.” (People v. Mosby (2004) 33 Cal.4th 353, 361

(Mosby).)

While the trial court here did not advise or obtain waivers of appellant’s right 

against self-incrimination and to confront witnesses, we can determine from the record he 

knew and understood these rights. In Mosby, immediately after having undergone a jury 

trial, the court informed the defendant he had a right to a jury trial on the prior conviction 

allegation. (Mosby, supra, 33 Cal.4th at p. 364.) The defendant waived his right to a jury 

trial and admitted the truth of the allegation. (Ibid.) On appeal, the defendant argued the 

trial court reversibly erred by not advising him of his rights to remain silent and to 

confront witnesses. (Ibid.) The California Supreme Court held the court’s failures did 

not render the defendant’s admissions not knowing or intelligent because the defendant

3 Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
6.

had just undergone a jury trial where he exercised his right to remain silent and 

confronted witnesses through counsel and thus would have understood that a trial 

included these rights. (Ibid.) 

Though appellant acknowledges the holding in Mosby, he does not explain why it 

does not apply to his case. We conclude Mosby is apposite. Here, defendant admitted 

the priors immediately after his jury trial on the underlying charges. Like in Mosby, 

appellant knew of and “had just exercised[] his right to remain silent at trial” and because 

he had, through his attorney, confronted witnesses during the jury trial, “he would have 

understood that at a trial he had the right of confrontation.” (Mosby, supra, 33 Cal.4th at 

p. 364.) In addition, prior to appellant’s trial, appellant personally executed a written

request to substitute appointed counsel (Marsden4request), which made direct reference 

to “the privilege against self-incrimination, as guaranteed by the United States 

Constitution and the Constitution of the State of California.” The record as a whole 

demonstrates appellant knew and understood his rights against self-incrimination and to 

confront witnesses; the failure to advise and obtain waivers of the same did not render 

appellant’s admission not knowing and voluntary.

The record further discloses appellant knew the penal consequences of his 

admissions despite the court’s failure to advise him at the time of his admission. These 

consequences were described by the court in appellant’s presence during a Marsden 

hearing held on February 14, 2019. During this hearing, defense counsel represented to 

the court that he had explained appellant’s maximum range of punishment was, according 

to the district attorney, 17 years. The court explained to appellant the minimum prison 

term for robbery was two years, the middle term was three years, and the upper term was 

five years. The court also explained a strike prior, if found true, would double the prison

term to be imposed for robbery and noted that the section 667, subdivision (a)(1) 

4 People v. Marsden (1970) 2 Cal.3d 118.
7.

enhancement was five years. The court also suggested it was contemplating “tak[ing] 

out” “the knife enhancement” if appellant were to plead. 

From the foregoing, we know appellant was aware of the sentencing triad for

robbery; the base term of his sentence would be doubled because of the strike prior, the

prior serious felony allegation carried a term enhancement of five years, the weapon 

allegation carried a term enhancement, and his maximum exposure was 17 years. We can 

infer he was also aware the weapon and prison prior allegations each carried a term of 

one year based on the information the court gave him by applying the process of 

elimination.

5

 The record further demonstrates appellant discussed the matter with 

counsel prior to and at the time he admitted the prior allegations. Appellant was aware of 

the penal consequences of his admission, and the court’s failure to advise appellant of the 

penal consequences at the time of the admissions did not render his admission unknowing 

or involuntary. 

As for appellant’s claim the trial court erred by failing to inform him that he could 

have a court trial in lieu of a jury trial, respondent contends appellant does not effectively 

establish the court was required to advise appellant of any right to a court trial as opposed 

to a jury trial. We need not resolve whether the trial court was required to advise 

appellant of his statutory right to a court trial if a jury is waived, as any error is clearly 

harmless. 

The option of a court trial in lieu of a jury trial is set forth in section 1025.6

Appellant relies on Yurko and its progeny to support his contention the court was required 

5 Because appellant knew his total prison exposure was 17 years; the upper term of 

robbery was five years, potentially doubled to 10 years, and the prior serious felony 

enhancement was five years, for a total of 15 years, it follows the remaining sentence 

enhancing allegations each carried a prison term of one year. 

6 Section 1025 reads, in pertinent part: “(a) When a defendant who is charged in the 

accusatory pleading with having suffered a prior conviction pleads either guilty or not 

guilty of the offense charged against him or her, he or she shall be asked whether he or 

she has suffered the prior conviction.... [¶] (b) [T]he question of whether or not the 
8.

to inform him of a court trial separate from that of a jury trial, but we do not find this line 

of authority stands for appellant’s proposition. Yurko simply extended the requirements 

of Boykin-Tahl to admissions of prior convictions. Neither Boykin nor Tahl make 

reference to a separate advisement that a defendant pleading guilty is entitled to a court 

trial in lieu of a jury trial; only the constitutional right to trial by jury is mentioned. (See

Boykin v. Alabama, supra, 395 U.S. 238; In re Tahl, supra, 1 Cal.3d 122.) Because 

appellant’s only authority is state law, we analyze any error in not advising a defendant of 

any right to a court trial under the reasonable probability standard of error for state error 

pursuant to People v. Watson (1956) 46 Cal.2d 818, 836. 

Appellant has not shown it is reasonably probable he would not have admitted the 

priors had he been advised of an option to have a court trial as opposed to a jury trial. 

Appellant waived his right to have the jury decide the truth of the allegations, and defense 

counsel represented in open court this decision was based on defense counsel’s advice the 

district attorney could prove the priors.

We conclude any Yurko error was harmless because the record as a whole 

affirmatively discloses appellant’s admissions of the prior conviction allegations were 

knowing and voluntary.

II. Court’s Denial of Appellant’s Romero Motion and Declining to Strike the 

Prior Serious Felony Enhancement (§ 667, subd. (a)(1))

Appellant contends the trial court erred by denying appellant’s motion to strike the 

prior strike conviction and the prior serious felony conviction enhancement. We 

disagree.

defendant has suffered the prior conviction shall be tried by the jury that tries the issue 

upon the plea of not guilty, ... or by the court if a jury is waived.” (§ 1025, subds. (a), 

(b), italics added.)
9.

A. Relevant Background

Prior to his sentencing, appellant filed a written motion requesting the court to 

dismiss his prior strike conviction, a 2010 attempted burglary conviction, pursuant to 

People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). His motion was 

based upon five main points: (1) appellant tried to steal the speaker after the victim left 

the room and “was not seeking confrontation”; (2) appellant was addicted to 

methamphetamine and wished to seek treatment; (3) appellant had “become a family 

man” within the last five years; (4) appellant cared about his future and had support from 

family and friends; and (5) appellant was remorseful and wrote a letter of apology at the 

time of his arrest. 

The probation report indicated appellant’s risk assessment score was “High 

Violent.” It further indicated he had a lengthy criminal history dating back to 2009, 

including: in 2009, felony possession of a controlled substance, misdemeanor theft, and 

misdemeanor burglary; in 2010, felony attempted burglary; in 2011, misdemeanor 

receiving stolen property; in 2012, felony assault with force likely to produce great bodily 

injury and felony vehicle theft; in 2013, felony petty theft with priors; in 2015, 

misdemeanor possession of a controlled substance and misdemeanor burglary; and in 

2016, two separate convictions of misdemeanor theft. For aggravating facts relating to 

appellant, the probation report listed that appellant had engaged in violent conduct, that 

his prior convictions were numerous or of increasing seriousness, and that appellant was 

on probation or parole when the crime was committed. Probation found no mitigating 

circumstances relating to either appellant or the crime. For appellant’s sentence, 

probation recommended the middle term of three years, doubled to six years, for the base 

term, plus five years for the prior serious felony conviction, one year for the prior prison 

conviction, and one year for the weapon enhancement, for a total term of 13 years. The 

report further indicated the present case was appellant’s sixth felony and he had had 
10.

multiple opportunities to reform through parole and probation but the circumstances of 

the offense demonstrate his criminal behavior is escalating in violence. 

At the sentencing hearing, before hearing argument, the court noted it had read 

and considered appellant’s request to strike the prior serious felony conviction, the points 

and authorities in support thereof, and the probation report. The court also acknowledged 

receipt and took notice of a certificate of completion of the Wellpath Fresno County Jail 

Substance Use Disorder Program presented by appellant.

The prosecutor argued the court should follow probation’s recommendation. She 

objected to the court striking appellant’s strike based on the several similar crimes he 

committed since committing the strike offense. She noted the victim was very fearful as 

a result of the offense and was present and “tearing up” in court. Defense counsel stated 

his primary arguments were in the written motion, adding that while appellant “did try to 

steal” and “did break the law,” “it was difficult to determine the facts in this case 

personally” as the surveillance video “wasn’t clear.” Defense counsel stated the court 

had “a lot of discretion, not just with a Romero ..., but to potentially dismiss the five-year 

prior in its discretion.” Defense counsel went on to say, “I don’t think the 13 years is 

completely out of bounds, but I think it’s a little heavy.”

In ruling, the trial court noted it agreed with probation as to the factors in 

aggravation relating to appellant. The court also addressed defense counsel’s suggestion

that the video made it unclear as to whether appellant actually had a knife by saying, “I 

watched that video, and I watched the reaction of the victim. I watched the reaction of 

[appellant] and I saw an object in his hand. I don’t have the greatest eyesight and I saw 

it, so we’re not going to sit here and deny what the jury found, because the jury found 

that he, in fact, was armed during the commission of this robbery. And it was, in fact, a 

robbery. It was not a theft.” The court went on to say appellant put the victim at risk 

and, in addressing appellant, “[y]ou don’t know what could have happened with that 

knife and if you would have actually slashed her or she could have had a heart attack or a 
11.

stroke from the stress. You just don’t know, and I could see from here that she was 

wiping the tears from her eyes. No one should have to go through that.” 

The court stated that since the time appellant had committed his strike offense, he 

had had “a number of other convictions, felonies and misdemeanors dealing with stealing 

cars, petty theft, controlled substances, misdemeanor burglary and also two misdemeanor 

petty thefts.” Based on appellant’s criminal record since his strike offense, the trial court 

concluded it “[could not] make a legal conclusion that [appellant was] a person that is 

outside the spirit of the Three Strikes [l]aw” and denied appellant’s request to strike the 

prior strike. The court went on to say, “I’m not going to give you 13 years, sir, but I am 

going to give you enough time that the Court believes will be sufficient to punish you.” 

The court sentenced appellant to an aggregate prison term of 11 years.

B. Analysis

Section 1385 gives the trial court authority to order an action dismissed, “in 

furtherance of justice.” (§ 1385, subd. (a).) Under this authority, the court may vacate a 

prior strike conviction for purposes of sentencing under the “Three Strikes” law, “subject, 

however, to strict compliance with the provisions of section 1385.” (Romero, supra,

13 Cal.4th at p. 504.) 

Additionally, Senate Bill No. 1393, which went into effect on January 1, 2019, 

amended sections 667 and 1385 to eliminate the statutory prohibition on a trial court’s 

ability to strike a five-year enhancement imposed pursuant to section 667, subdivision 

(a)(1) under section 1385. (Stats. 2018, ch. 1013, §§ 1, 2.) 

1. Romero

We review the denial of a request to strike a prior conviction for abuse of 

discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) Dismissal of a 

strike is a departure from the sentencing norm. As such, in reviewing a Romero decision, 

we will not reverse for abuse of discretion unless the defendant shows the decision was 
12.

“so irrational or arbitrary that no reasonable person could agree with it.” (Carmony, at 

p. 377.) 

In ruling on a Romero motion, the trial court “must consider whether, in light of 

the nature and circumstances of his present felonies and prior serious and/or violent 

felony convictions, and the particulars of his background, character, and prospects, the 

defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence 

should be treated as though he had not previously been convicted of one or more serious 

and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) In an 

“extraordinary case—where the relevant factors [set forth in Williams] manifestly support 

the striking of a prior conviction and no reasonable minds could differ—the failure to 

strike would constitute an abuse of discretion.” (Carmony, supra, 33 Cal.4th at p. 378.) 

Reversal is also justified where the trial court was unaware of its discretion to strike a 

prior strike or refused to do so, at least in part, for impermissible reasons. (Ibid.) 

“ ‘[W]here the record demonstrates that the trial court balanced the relevant facts and 

reached an impartial decision in conformity with the spirit of the law, [however,] we shall 

affirm the trial court’s ruling, even if we might have ruled differently in the first 

instance.’ ” (Ibid.)

Appellant has not met his burden of showing the trial court’s decision was “so 

irrational or arbitrary that no reasonable person could agree with it.” Appellant contends 

the trial court abused its discretion in denying his Romero motion to strike his prior 

conviction because the court erroneously only considered appellant’s criminal history in 

making its decision and failed to take into consideration the individualized circumstances 

set forth in appellant’s motion. Appellant contends the trial court failed to take into 

account appellant’s drug addiction, that his strike offense was an attempted burglary as 

opposed to a completed burglary, that he showed remorse for the present offense, and that 

he only showed the victim the knife. We reject appellant’s argument the trial court did 

not consider these factors in making its decision. The trial court expressly stated it had 
13.

read and considered appellant’s motion, which included these factors. Further, the court 

imposed the lower term on appellant’s base sentence when probation had not reported 

any factors in mitigation. It appears the court did take into consideration at least some of 

the factors appellant raises in imposing the lower rather than the middle or upper term. 

We also reject appellant’s assertion the trial court engaged in improper 

“speculation” when it commented that appellant could have harmed the victim with the 

knife directly or by scaring her. The court’s comments appear to us to be permissible 

evaluation of the seriousness of the circumstances of the crime by noting the risk 

appellant’s actions placed on the victim. Appellant does not cite any authority which 

stands for the proposition the court was precluded from considering this or the effect the 

crime had on the victim. 

Here, the trial court considered appellant’s motion, points and authorities, the 

probation report, and proof appellant completed a substance use disorder program while 

in jail, as well as appellant’s criminality and the spirit of the Three Strikes law. Given 

appellant’s criminal history, his inability to avoid criminal activity for a substantial 

period of time, and his violent behavior, the trial court was well within its discretion to 

find that appellant fell within the spirit of the Three Strikes law despite the mitigating 

factors appellant raised. Appellant has not shown that the trial court’s decision not to 

strike the strike prior was arbitrary or irrational. In our opinion, this is not an 

extraordinary case in which all reasonable people would agree that appellant falls outside 

the spirit of the Three Strikes law. (See Carmony, supra, 33 Cal.4th at p. 378.) Thus, we 

conclude the trial court did not abuse its discretion in declining to strike appellant’s prior 

strike conviction.

2. Prior Serious Felony Enhancement

Appellant also contends it was not clear whether the court knew it had authority to 

strike the prior serious felony conviction enhancement under the newly enacted Senate 

Bill No. 1393 because it did not expressly rule on appellant’s request and, as such, 
14.

remand is necessary. Respondent contends appellant forfeited the issue by failing to 

secure a ruling. For the benefit of appellant’s argument, we presume the trial court 

impliedly denied appellant’s request and review his claim on the merits. It fails. 

It is appellant’s burden “to affirmatively demonstrate that the trial court 

misunderstood its sentencing discretion.” (People v. Davis (1996) 50 Cal.App.4th 168, 

172.) “In the absence of evidence to the contrary, we presume that the court ‘knows and 

applies the correct statutory and case law.’ ” (People v. Thomas (2011) 52 Cal.4th 336, 

361.) 

Appellant has not rebutted the presumption that the trial court knew and 

understood its discretion under the then newly enacted Senate Bill No. 1393. The law 

had been in effect for approximately four months at the time of appellant’s sentencing, 

and defense counsel had orally requested the trial court to strike the prior serious felony 

enhancement. The court’s failure to articulate any specific reasons for denying 

appellant’s request was not necessary in light of its comments on the Romero motion. It 

is clear from the record that the trial court had no intention of granting appellant’s request 

to strike the prior serious felony enhancement. Because the trial court denied appellant’s 

request to strike the strike prior, which would have decreased appellant’s total prison 

term by two years, it does not follow it would have stricken the prior serious felony 

enhancement which would have decreased appellant’s total term by five years. The trial 

court expressly noted it decided on a specific aggregate sentence that would adequately

punish appellant. 

Appellant’s assertion it was “unclear” whether the court understood its sentencing 

discretion is not sufficient to satisfy his burden to demonstrate error or rebut the 

presumption the trial court knew of its authority to strike the enhancement. Further, for 

the reasons we have already stated with regard to appellant’s Romero motion, we find the 

trial court’s implied denial was not an abuse of discretion. 
15.

III. Restitution Fine

Probation recommended the court impose a restitution fine in the amount of 

$2,400 (§ 1202.4), a courtroom security fee in the amount of $40 (§ 1465.8), a conviction 

assessment in the amount of $30 (Gov. Code, § 70373), and a probation report fee in the 

amount of $296. 

At sentencing, the trial court imposed a $2,000 restitution fine, and an additional 

parole revocation fine suspended until and unless parole were to be revoked (§ 1202.45). 

The court further ordered appellant to make restitution to the named victim (§ 1202.4, 

subd. (f)). “With respect to the courtroom security fees,” the court stated it had “no 

information as to [appellant’s] ability to pay, but given so much as you’d be sentenced to 

11 years in prison I have no confidence that you will have the ability to pay.” The court 

imposed the $40 court security fee, the $30 Government Code criminal conviction 

assessment, a probation report fee, and stayed “each one of those pending successful 

completion of parole,” noting “[i]f you violate parole that tells me that you have time to 

make money and you’ll have the time to make money to pay these fees.”

With regard to the court’s imposition of the restitution fine, appellant contends the 

fine violated the prohibition against “excessive fines” contained in the Eighth 

Amendment to the United States Constitution and that the court violated appellant’s due 

process rights by failing to conduct an ability-to-pay hearing pursuant to People v. 

Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). In Dueñas, the appellate court held the 

imposition of the nonpunitive court security fee (§ 1465.8, subd. (a)(1)) and criminal 

conviction assessment (Gov. Code, § 70373, subd. (a)(1)) without a determination of the 

defendant’s ability to pay them violated due process. (Dueñas, at p. 1164.) The Dueñas 

court also held that if the defendant has demonstrated an inability to pay the restitution 

fine, which is intended to be punitive (§ 1202.4, subd. (b)(1)), the trial court must stay 
16.

execution of the fine until the People prove the defendant has gained the ability to pay. 

(Dueñas, at p. 1164.)7

Appellant’s claim regarding his ability to pay the restitution fine is forfeited as he 

did not object to the amount of the restitution fine under either (1) the excessive fines 

clause; (2) Dueñas, which was published months before appellant’s sentencing; or 

(3) section 1202.4, which states the court may consider an ability to pay in imposing a 

restitution fine in excess of the minimum fine of $300 (see People v. Frandsen (2019) 

33 Cal.App.5th 1126, 1153). We consider appellant’s argument in the context of 

appellant’s alternative claim that appellant’s counsel’s failure to object constituted 

ineffective assistance of counsel. We conclude, on this record, it does not. 

To prevail on an ineffective assistance of counsel claim, appellant must establish 

that (1) the performance of his trial counsel fell below an objective standard of 

reasonableness and (2) prejudice occurred as a result. (Strickland v. Washington (1984) 

466 U.S. 668, 687; People v. Anderson (2001) 25 Cal.4th 543, 569.) “When examining 

an ineffective assistance claim, a reviewing court defers to counsel’s reasonable tactical 

decisions, and there is a presumption counsel acted within the wide range of reasonable 

professional assistance. It is particularly difficult to prevail on an appellate claim of 

ineffective assistance. On direct appeal, a conviction will be reversed for ineffective 

assistance only if (1) the record affirmatively discloses counsel had no rational tactical 

purpose for the challenged act or omission, (2) counsel was asked for a reason and failed 

to provide one, or (3) there simply could be no satisfactory explanation. All other claims 

of ineffective assistance are more appropriately resolved in a habeas corpus proceeding.” 

(People v. Mai (2013) 57 Cal.4th 986, 1009.)

7 The California Supreme Court is now considering (1) whether trial courts must 

consider a defendant’s ability to pay before imposing or executing fines, fees, and 

assessments; and (2) if so, which party bears the applicable burden of proof. (See People 

v. Kopp (2019) 38 Cal.App.5th 47, 94‒98, rev. granted Nov. 13, 2019, S257844.)
17.

Appellant cannot demonstrate ineffective assistance of counsel. On the issue of 

whether defense counsel should have requested an ability-to-pay hearing pursuant to 

Dueñas, because appellant makes his claim on direct appeal, he is unable to show any 

evidence defense counsel should have presented at any ability-to-pay hearing beyond 

what was on the record, which was available to and considered by the trial court. Thus, 

to the extent appellant’s claim would be based on evidence not included in the record on 

appeal, we cannot resolve appellant’s claim on direct appeal because such evidence is not 

before us. To the extent that appellant’s ability-to-pay claim is based on his lengthy 

prison sentence and other information available from the probation report, the record 

demonstrates the trial court considered this when ordering the $2,000 restitution fine, as it 

expressly relieved appellant of paying the nonpunitive fees and assessments on the basis 

of his prison sentence. For these reasons, appellant cannot show any prejudice, as there is 

no evidence an objection by counsel would have resulted in a more favorable order had 

defense counsel requested an ability-to-pay hearing. 

Nor can appellant demonstrate prejudice resulting from defense counsel’s failure 

to object to the amount under the excessive fines clause or under section 1202.4. The 

amount of the restitution fine is within the discretion of the court and shall be 

“commensurate with the seriousness of the offense” so long as it is not less than $300 or 

greater than $10,000. (§ 1202.4, subd. (b)(1).) According to the statute, the court may 

determine the amount of the fine as “the product of the minimum fine ... multiplied by 

the number of years of imprisonment the defendant is ordered to serve, multiplied by the 

number of felony counts of which the defendant is convicted.” (§ 1202.4, subd. (b)(2).)

In setting the amount of the fine in excess of the minimum, “the court shall consider any 

relevant factors, including, but not limited to, the defendant’s inability to pay, the 

seriousness and gravity of the offense and the circumstances of its commission, any 

economic gain derived by the defendant as a result of the crime, the extent to which any 

other person suffered losses as a result of the crime, and the number of victims involved 
18.

in the crime.” (§ 1202.4, subd. (d).) Applying the section 1202.4, subdivision (b)(2) 

formula to the present case, we arrive at a product of $3,300 ($300 minimum multiplied 

by 11 years multiplied by one count). The court imposed an amount lower than that 

suggested by statute, as well as that recommended by probation, and we presume the trial 

court considered all factors in section 1202.4, subdivision (d). (See People v. Stowell 

(2003) 31 Cal.4th 1107, 1114 [a trial court is presumed to know and follow applicable 

law].) Because the restitution fine imposed was well within the trial court’s statutory 

discretion, we do not find it constituted an excessive fine in violation of the Eighth 

Amendment.

We conclude appellant cannot demonstrate prejudice resulting from his ineffective 

assistance of counsel claim, and therefore his claim fails. 

IV. Senate Bill No. 136

In October 2019, the Legislature passed Senate Bill No. 136, amending 

section 667.5, subdivision (b) to state that a one-year term under that section shall only be 

imposed “for each prior separate prison term for a sexually violent offense ....” (Stats. 

2019, ch. 590, § 1.) Thus, Senate Bill No. 136 eliminated the prior prison term 

enhancement except in cases involving sexually violent offenses. The law went into 

effect on January 1, 2020, almost nine months after appellant was sentenced and while 

this matter was pending on appeal. Appellant argues his one-year prior prison term 

enhancement must be stricken, and respondent agrees, as do we.

As appellant’s prior prison term was not imposed for a sexually violent offense, 

the one-year prior prison term enhancement can no longer be applied to him under Senate 

Bill No. 136. (See People v. Gastelum (2020) 45 Cal.App.5th 757, 772.) Therefore, we 

accept respondent’s concession and strike the prior prison term imposed by the trial court.
19.

DISPOSITION

The judgment is modified as follows. The one-year prior prison term 

enhancement imposed pursuant to section 667.5, subdivision (b) is stricken. With this 

modification, the judgment is affirmed. 

The trial court is directed to cause to be prepared an amended abstract of judgment 

reflecting this modification and reducing appellant’s total sentence by one year. The 

court shall forward a certified copy of the amended abstract of judgment to the 

appropriate authorities. 

 DE SANTOS, J.

WE CONCUR:

LEVY, ACTING P.J.

POOCHIGIAN, J.