Filed 12/17/19 (unmodified opinion attached)

CERTIFIED FOR PARTIAL PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

DAMION WILSON,

Defendant and Appellant.

 B287272

 (Los Angeles County

 Super. Ct. No. BA454306)

 ORDER MODIFYING OPINION

 AND DENYING REHEARING

 [NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on November 20, 

2019 be modified as follows:

1. On page 6, the last sentence and citations of the second

paragraph are deleted and replaced with the following:

However, Dent noted that even if a request is denied for an 

improper reason, if the record establishes that the request was 

nonetheless properly denied on other grounds, it would uphold 

the trial court’s ruling. (Dent, at p. 218; see People v. Scott, 

supra, 91 Cal.App.4th at p. 1206 [sufficient reasons on record 

constituted implicit consideration of Windham factors].) 
2

This modification does not change the judgment.

The petition for rehearing is denied.

CERTIFIED FOR PARTIAL PUBLICATION.

____________________________________________________________

DHANIDINA, J. EDMON, P. J. EGERTON, J.
Filed 11/20/19 (unmodified opinion)

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

DAMION WILSON,

Defendant and Appellant.

 B287272

 (Los Angeles County

 Super. Ct. No. BA454306)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Jose I. Sandoval, Judge. Affirmed.

Edward Mahler, under appointment by the Court of 

Appeal, for Defendant and Appellant.

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

Assistant Attorney General, Lance E. Winters, Assistant 

Attorney General, Steven D. Matthews and Chung L. Mar, 

Deputy Attorneys General, for Plaintiff and Respondent.

 

* Pursuant to California Rules of Court, rules 8.1105 and 

8.1110, this opinion is certified for publication with the exception 

of parts I, II, and IV of the Discussion.
2

Damion Wilson pleaded no contest to forcible rape and 

admitted prior felony convictions after the trial court denied his

Faretta1 motion. On appeal, he contends that the motion should 

have been granted and that he did not knowingly and 

intelligently waive his right to a jury trial on his priors. We 

reject these contentions. And, in the published portion of this 

opinion, we reject his contention that he is entitled to remand for 

resentencing under Senate Bill No. 1393. Where, as here, the 

sentence resulted from a negotiated plea, a defendant is not 

entitled to remand under that law. 

BACKGROUND

Wilson and the victim had a brief relationship. After it 

ended, he forcibly entered the victim’s home and raped her. An 

information therefore charged Wilson with kidnapping (Pen. 

Code,2 § 207, subd. (a); count 1), forcible rape in the course of a 

burglary (§§ 261, subd. (a)(2), 667.61, subds. (a), (d)(4); count 2), 

first degree burglary, person present (§ 459; count 3), and assault 

to commit a felony during commission of a first degree burglary 

(§ 220, subd. (b); count 4). On November 6, 2017, Wilson pleaded 

no contest to forcible rape and admitted he had a prior strike and 

a prior serious felony conviction (§ 667, subd. (a)(1)). Pursuant to 

the negotiated plea, the trial court sentenced him to six years,

doubled to 12 years based on the prior strike, plus five years for 

the prior serious felony, for a total of 17 years. 

 

1 Faretta v. California (1975) 422 U.S. 806 (Faretta).

2 All further statutory references are to the Penal Code

unless otherwise indicated. 
3

DISCUSSION

I. Faretta request

On the eve of trial, Wilson asked to represent himself. The 

trial court denied the request, finding it equivocal. As we now 

explain, the request was properly denied, but for another reason, 

untimeliness. 

A defendant in a criminal case has a Sixth Amendment 

right to represent himself or herself. (People v. Marshall (1997) 

15 Cal.4th 1, 20.) To invoke this right, the defendant must 

unequivocally assert it within a reasonable time before trial 

(People v. Windham (1977) 19 Cal.3d 121, 127–128), and the 

request must be knowing and voluntary (People v. Doolin (2009) 

45 Cal.4th 390, 453). A timely, unequivocal request for selfrepresentation must be granted, no matter how unwise the 

request. (Windham, at p. 128.) Otherwise, untimely requests for 

self-representation are addressed to the trial court’s sound 

discretion. (Id. at pp. 127–129.) Also, an equivocal request must 

be distinguished from a conditional one. A conditional request is 

one, for example, where the defendant asks that counsel be 

removed and, if not removed, that the defendant wants to 

represent himself. (People v. Michaels (2002) 28 Cal.4th 486, 

524.) Such a request is not equivocal. (Ibid.) To evaluate 

whether a trial court erred by denying a Faretta request, we look 

at the defendant’s words and conduct to determine whether the 

defendant really wanted to give up the right to counsel. 

(Marshall, at pp. 25–26.)

Here, Wilson’s words and conduct were clear that if he did 

not get a different counsel, then he wanted to represent himself. 
4

On the day set for trial, Wilson made a Marsden3 motion, which 

was denied.4 He then asked to represent himself. The trial court 

advised Wilson of the felony charges against him, that he faced

three different strikes and two life counts, and that selfrepresentation was a bad decision. When the trial court asked 

Wilson if he really did not want help to understand the technical 

and sophisticated legal principles, Wilson said, “It’s not what I 

wish but,” “I wish I had counsel that I believe is going to fight on 

my behalf.” The trial court found the request to be equivocal: “It 

has to be unequivocal. It’s clear to me you want counsel. It’s 

clear you need counsel. And this is in response to a[n] adverse 

ruling in another motion, sir.” 

Wilson then asked if he could have cocounsel, and the trial 

court told him no, this was not a way to get a different lawyer. 

Wilson replied, “What I’m saying—I don’t need a lawyer to 

represent me. A standby lawyer—I don’t need somebody that’s 

going—” At that point, the trial court interrupted Wilson and 

asked why he needed a standby lawyer. Wilson said, “just in case 

if I have a question.” When the trial court explained that this 

was not how a standby lawyer works, Wilson said he did not need 

counsel, then. The trial court repeated that the request was 

 

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

4 Wilson had previously made Faretta and Marsden 

motions. When he made his first Faretta request, the trial court 

asked Wilson if he really thought he could represent himself. 

Wilson replied he could do a better job than his counsel, who was 

not cooperating with him. After further discussion, Wilson said 

he would rather have another public defender. The trial court 

therefore held a Marsden hearing and denied the Marsden 

motion. 
5

equivocal, and that Wilson was trying to get another lawyer, 

recognizing he needed representation. Wilson repeated he didn’t 

need another counsel. He said, “I’m not asking for another 

counsel. You said this is my decision. [¶] . . . [¶] . . . This is not—

this is not what I want to do, but my counsel that’s representing 

me left me no choice. I’m going in blind, not knowing what’s 

going on, your Honor.” This, the trial court responded, was 

exactly the equivocation that made it clear Wilson did not want 

to represent himself. The trial court therefore denied the Faretta

request.

As this demonstrates, Wilson’s dissatisfaction with his 

counsel prompted his Faretta request. But, a clearly stated 

Faretta request motivated by dissatisfaction with counsel is not 

equivocal. (Moon v. Superior Court (2005) 134 Cal.App.4th 1521, 

1529–1530.) In People v. Weeks (2008) 165 Cal.App.4th 882, for 

example, a public defender represented the defendant. The 

defendant then was permitted to go pro se. After several months, 

the defendant asked if his standby counsel could take over but 

was told that if he lost his pro per status the original public 

defender would be reappointed. The defendant made it clear that 

if he had to choose between remaining in propria persona or 

being represented by his original public defender, then he would 

choose the former. (Id. at p. 885.) Finding the defendant’s 

position to be equivocal, the trial court revoked his status and 

reappointed the original public defender. Weeks held that 

denying the request was error. (Id. at p. 887.) Like the 

defendant in Weeks, Wilson clearly expressed he would rather 

represent himself than continue being represented by his counsel. 

Hence, his request was conditional.
6

And, had it been timely, it should have been granted. But 

it was not timely. That is, a motion to represent oneself must be 

made within a reasonable time before trial commences. (People v. 

Windham, supra, 19 Cal.3d at p. 128.) Thus, a Faretta motion 

made on the day of trial may be found to be untimely (People v. 

Frierson (1991) 53 Cal.3d 730, 740, 742), as may one made four 

days before trial is to begin (People v. Scott (2001) 91 Cal.App.4th 

1197, 1205). An untimely Faretta request requires consideration 

of the quality of counsel’s representation, the defendant’s prior 

proclivity to substitute counsel, the reasons for the request, the 

length and stage of the proceedings, and the disruption or delay 

which might reasonably be expected to follow the granting of 

such a motion. (Windham, at p. 128.) 

Although the trial court did not state it was also denying 

Wilson’s Faretta motion on the ground of untimeliness, we can 

independently review the record to determine whether it would 

properly have been denied on this ground. (See People v. 

Halvorsen (2007) 42 Cal.4th 379, 433, fn. 15.) In People v. Dent

(2003) 30 Cal.4th 213, 218, for example, the trial court denied a 

Faretta motion for an improper reason. Nonetheless, because the 

record established the request was properly denied on other 

grounds, the court upheld the trial court’s ruling. (Dent, at

p. 218; see People v. Scott, supra, 91 Cal.App.4th at p. 1206, 

[sufficient reasons on record constitute implicit consideration of 

Windham factors].)

The record here similarly shows that Wilson’s motion was 

properly denied. Wilson made his Faretta motion on the day set 

for trial. The next afternoon, the trial court swore in a 

prospective panel. On its face, the motion was untimely. Also, 

the trial court had the opportunity to evaluate the quality of 
7

Wilson’s counsel, as Wilson made three Marsden motions, all of 

which were denied. This shows that Wilson had adequate 

representation. Also, counsel was ready to proceed to trial and 

voir dire was about to begin. But the record supports a 

reasonable inference that granting the motion would have 

necessitated a continuance. When Wilson made his Faretta

request, he asked for standby counsel, said he was going “in 

blind, not knowing what’s going on,” and noted that he had “no 

paperwork. [He didn’t] have nothing.” Wilson’s own statements 

show he was not ready for trial. Under the totality of these 

circumstances, the Faretta motion was properly denied. 

II. Waiver of right to jury trial

Wilson contends he did not knowingly and intelligently 

waive his right to a jury trial on the strike and enhancement. We 

disagree. 

A criminal defendant’s guilty plea or inculpatory admission 

requires personal waiver of the right to a trial by jury. (Boykin v. 

Alabama (1969) 395 U.S. 238, 243.) The trial court accordingly 

must advise a defendant of his or her rights and obtain a waiver 

of them before taking a plea or admission. (In re Tahl (1969) 1 

Cal.3d 122, 132.) A valid waiver is one that is knowing, 

intelligent, and voluntary. (Boykin, at p. 242.) These 

advisements also must be given before the trial court may accept 

a defendant’s admission that he or she has suffered prior felony 

convictions. (In re Yurko (1974) 10 Cal.3d 857, 863.) 

The plea bargain here required Wilson to plead no contest 

to the substantive forcible rape charge and to admit a prior strike

and a prior serious felony. The prosecutor advised Wilson of the 

substantive charges, and Wilson acknowledged he had discussed 

them with his counsel and that he understood he would be 
8

sentenced to 17 years in prison. The prosecutor then advised 

Wilson of his right to a jury trial, and Wilson said he understood 

and gave up that and other rights. After this advisement and 

waiver, the prosecutor explained that Wilson’s prior strike could 

subject him to life in prison on subsequent felonies. The trial 

court repeated the offer: six years for forcible rape, doubled to 

12 years based on the strike, plus five years, for a total prison 

sentence of 17 years. Wilson then pleaded no contest to count 2, 

forcible rape and admitted he had a prior robbery conviction and 

a prior first degree burglary conviction. The trial court accepted 

the plea, finding that the waivers were made knowingly, freely,

and intelligently. 

However, because the prosecutor detailed only the 

substantive charges before Wilson waived his jury trial right, 

Wilson now argues he was never advised he had a right to a jury 

trial on the enhancements; therefore, his waivers and plea were 

not knowing and intelligent. People v. Forrest (1990) 221 

Cal.App.3d 675 rejected a similar contention. The defendant in 

that case argued that he had to be expressly and separately 

advised of his right to a jury trial on prior convictions. (Id. at 

p. 678 & fn. 3.) Forrest held that nothing in applicable case law 

requires a separate advisement and waiver of rights where a 

defendant “in a single proceeding” pleads to the substantive 

charge and to the prior convictions. (Id. at pp. 679, 681.) 

We agree. Here, as in People v. Forrest, supra, 221 

Cal.App.3d at page 679, Wilson’s plea to the substantive offense 

and to the prior convictions occurred in a single proceeding and 

was not separate in time. The single, express advisement 

adequately advised Wilson of his constitutional rights, including 

the right to a jury trial on both the substantive offense and prior 
9

convictions. Therefore, the trial court correctly found that 

Wilson’s plea was knowing and intelligent.

III. Senate Bill No. 1393

Alternative to his argument that his admission to the fiveyear prior conviction must be reversed, Wilson argues that he is 

at least entitled to a remand so that the trial court can consider 

whether to strike the prior under Senate Bill No. 1393. When 

Wilson was sentenced in 2017, the trial court had no discretion to 

strike a section 667, subdivision (a)(1), enhancement. Senate 

Bill No. 1393 went into effect on January 1, 2019. (Sen. Bill 

No. 1393 (2017–2018 Reg. Sess.).) That bill amended 

sections 667, subdivision (a)(1), and 1385, subdivision (b), to 

allow a court to exercise its discretion to strike or to dismiss a 

serious felony prior for sentencing purposes. (Stats. 2018, 

ch. 1013, §§ 1–2.) 

Courts of appeal are divided as to the interplay between 

Senate Bill No. 1393 and sentences arising from plea agreements. 

The first area of disagreement concerns whether defendants like 

Wilson whose sentences arise from plea agreements must obtain 

a certificate of probable cause before raising on appeal Senate 

Bill No. 1393, or its counterpart Senate Bill No. 620. (See, e.g.,

People v. Stamps (2019) 34 Cal.App.5th 117 [certificate 

unnecessary], review granted June 12, 2019, S255843 (Stamps); 

People v. Baldivia (2018) 28 Cal.App.5th 1071 [same]; People v. 

Hurlic (2018) 25 Cal.App.5th 50 [same] (Hurlic); but see People v. 

Alexander (2019) 36 Cal.App.5th 827, 843 (conc. & dis. opn. of 

Needham, J.) [certificate necessary], review granted Oct. 16, 

2019, S257190; People v. Galindo (2019) 35 Cal.App.5th 658

[same], review granted Aug. 28, 2019, S256568; People v. Fox 

(2019) 34 Cal.App.5th 1124 [same], review granted July 31, 2019, 
10

S256298.) This issue is not before us, because Wilson has a 

certificate of probable cause.

The issue before us is whether Wilson is entitled to a 

remand so that the trial court can exercise its discretion whether 

to strike the five-year prior. As we have said, Senate Bill 

No. 1393 gives trial courts discretion to strike a five-year prior, 

and it applies retroactively to cases, such as Wilson’s, not final 

when the bill took effect. (See People v. Garcia (2018) 28 

Cal.App.5th 961, 973.) However, that does not mean Wilson is 

entitled to a remand for resentencing. Rather, Wilson’s 17-year 

sentence was negotiated. A negotiated or agreed-upon sentence

must be distinguished from an open plea. In an open plea, the 

defendant pleads unconditionally to all charges, and is therefore 

exposed to the maximum possible sentence. (People v. Cuevas 

(2008) 44 Cal.4th 374, 381, fn. 4.) While the trial court may 

indicate the sentence it will impose, there is no promise it will do 

so. (People v. Clancey (2013) 56 Cal.4th 562, 570.) 

In contrast, a negotiated plea is one in which the defendant 

pleads to specific charges and enhancements, and the trial court 

plays no part except to approve or disapprove the plea and to 

enter sentence thereon. (People v. Segura (2008) 44 Cal.4th 921, 

931.) The People and the defendant negotiate the agreement. 

The trial court is not a negotiating party to the transaction. Once 

a trial court accepts a plea bargain, it is bound to impose 

sentence within the limits of the bargain. If the trial court finds 

the bargain to be unacceptable, it has no discretion to modify it. 

Its remedy is to reject it, not to violate it directly or indirectly. 

(Ibid.; see People v. Fox, supra, 34 Cal.App.5th at p. 1138, rev. 

granted.)
11

Notwithstanding the limited discretion a trial court has 

with respect to negotiated pleas, some courts have found that 

Senate Bill No. 1393 gives trial courts discretion on remand to 

modify a negotiated plea by striking a firearm enhancement or a 

five-year prior. The court in Hurlic, supra, 25 Cal.App.5th at 

page 53 did not publish its discussion regarding remand for 

resentencing and instead merely stated in its introduction that 

being “unable to say that there is no ‘reasonable possibility’ that 

the trial court would decline to exercise its newfound sentencing 

discretion, we vacate the judgment and remand for a new 

sentencing hearing to decide whether to exercise that discretion.” 

Stamps, supra, 34 Cal.App.5th at page 124, review granted,

similarly advised that on remand the trial court could consider 

whether striking the five-year prior would be incompatible with 

the agreement on which the plea was based. If the trial court 

struck the enhancement, it could resentence defendant but could 

not impose a term in excess of the negotiated term without giving 

the defendant an opportunity to withdraw his plea. (Ibid.) 

Hurlic and Stamps give trial judges a power they have 

never had, making them active players in plea negotiations. 

Neither the law nor Senate Bill No. 1393 supports giving trial 

judges such a role. Senate Bill No. 1393 does not empower “a 

trial court to disregard the express terms of a plea agreement by 

imposing a sentence that does not reflect an agreed-upon term for 

a firearm enhancement.” (People v. Fox, supra, 34 Cal.App.5th at 

p. 1138, rev. granted; accord, People v. Kelly (2019) 32 

Cal.App.5th 1013, 1017, review granted June 12, 2019, S255145.) 

Rather, the discretion afforded trial courts under Senate Bill 

No. 1393 arises only when a defendant is sentenced or 

resentenced under another law, and nothing in the bill disposes 
12

of “existing limits on a trial court’s discretion when sentencing a 

defendant convicted by plea.” (Fox, at p. 1137.) 

Our California Supreme Court decisions in Harris v. 

Superior Court (2016) 1 Cal.5th 984 and Doe v. Harris (2013) 57 

Cal.4th 64 do not support a contrary view. The defendant in 

Harris v. Superior Court entered a negotiated plea that included 

dismissal of a robbery charge and allegations. Thereafter, the 

electorate passed Proposition 47, which reduced certain 

nonviolent crimes to misdemeanors and created a petitioning 

procedure for defendants to have their felonies reclassified. The 

People moved to withdraw from the plea agreement and to 

reinstate charges on the ground resentencing would deprive it of 

the benefit of the bargain. The court, however, found that

Proposition 47 expressly applied to someone serving a sentence 

“ ‘whether by trial or plea.’ ” (Harris v. Superior Court, at p. 991, 

italics omitted.) Hence, the People were not entitled to set aside 

the plea agreement when defendant sought to have his sentence 

recalled. In contrast to Proposition 47, Senate Bill No. 1393 “does 

not expressly mention convictions by plea but grants discretion to 

the trial court to strike or dismiss such enhancements” and does 

not have a procedural mechanism allowing defendants to reduce 

their sentences. (People v. Galindo, supra, 35 Cal.App.5th at 

p. 671, rev. granted.) Harris v. Superior Court therefore does not 

help Wilson.

Doe v. Harris, supra, 57 Cal.4th 64 also does not help him. 

Doe said the general rule in California is that unless a plea 

agreement contains a term requiring the parties to apply only the 

law in existence when the agreement is made, parties to a plea 

agreement are deemed to know and to understand that the state, 

subject to constitutional limitations, may enact laws that will 
13

affect the consequences attending the conviction entered upon the 

plea. (Id. at pp. 66–67.) “That the parties enter into a plea 

agreement thus does not have the effect of insulating them from 

changes in the law that the Legislature has intended to apply to 

them.” (Id. at p. 67.) Even so, this general rule has no 

applicability to Senate Bill No. 1393. There is “no language or 

evidence to suggest the Legislature” in enacting Senate Bill 

No. 1393 “intended trial courts to exercise discretion they do not 

have for defendants sentenced pursuant to stipulated sentences.” 

(People v. Galindo, supra, 35 Cal.App.5th at p. 672, rev. granted.) 

Stated otherwise, nothing in Senate Bill No. 1393 indicates a 

legislative intent to change the very nature of negotiated pleas. 

Permitting a trial court, under the guise of Senate Bill 

No. 1393, to strike a five-year prior from a negotiated plea is thus 

contrary to the real-world practicalities of plea bargaining. In 

practice, what happens in negotiated pleas is the prosecution has 

a number in mind. That number is not arbitrary. It is based on 

numerous factors that may include policies of the district 

attorney’s office, the charged crimes and enhancements, and 

consultation with the victim or victims. The prosecution then

crafts an offer using the various options—high, mid or low terms

and enhancements—to reach that number. 

With this in mind, assume that a trial court acting in the 

here and now, with the benefit of Senate Bill No. 1393, is 

presented with a stipulated plea that includes a five-year term

under section 667, subdivision (a)(1). This, of course, means that 

the defendant has agreed to the five-year term. But let’s indulge 

the fanciful notion that the trial court refuses to take the plea if it

includes such a term because it would strike it. What would then 

happen? The trial court could not modify the plea to reduce it by 
14

five years. The trial court would have to reject the plea. The 

prosecution would then find another way to get to its number, or 

the plea agreement would fall through. The point is this: what 

the trial court thinks the number should be is largely irrelevant, 

as this is not an open plea. A trial court must accept the

negotiated plea or reject the bargain outright, but it cannot come 

up with its own number. The “whole point of a conditional plea, 

as well as the expectation of the parties who negotiate them,” is 

“that the court would not have such discretion” to change the 

length of the sentence. (People v. Alexander, supra, 36 

Cal.App.5th at p. 846.) 

Now consider the circumstances here. The prosecutor’s 

pre-preliminary hearing offer was 21 years, which Wilson did not 

take. Thereafter, the prosecutor offered 17 years but explained 

that her unit almost never went below the pre-preliminary

hearing offer. To get the offer of 17 years, the prosecutor had to

consult the victim, investigating officer, assistant head deputy 

and head deputy. So, the prosecutor informed defendant, “[i]t’s 

not getting any better than this. I can’t do any better than this. 

This is as good as it gets.” Wilson, who was facing multiple life 

terms and decades more in state prison if convicted of all charges 

and allegations, took the deal. We can infer that the trial court 

found the plea bargain to be consistent with the interests of 

justice, as the trial court approved it. Were we to find that the 

trial court could on remand strike the five-year term and reduce 

Wilson’s sentence to 12 years, this makes the plea more akin to 

an open one, thereby flipping longstanding law on its head. (See 

People v. Alexander, supra, 36 Cal.App.5th at p. 847.) The 

general rule may be that pleas, even negotiated ones, are not 

immune from changes in the law. But the change in law 
15

specifically effected by Senate Bill No. 1393 has no bearing on the 

negotiated plea in this case. Senate Bill No. 1393 is not a vehicle 

to allow Wilson to “whittle down” his sentence but to otherwise 

leave the plea agreement intact. (People v. Kelly, supra, 32 

Cal.App.5th at p. 1018, rev. granted.)

Wilson is not entitled to a remand. 

IV. Ability to pay hearing

Without objection, the trial court imposed on Wilson a $300 

restitution fine under section 1202.4, subdivision (b), a $30 court 

facility assessment under Government Code section 70373, and a 

$40 court operations assessment under section 1465.8. Under 

recent authority holding that such a fine and assessments may 

not be constitutionally imposed absent evidence of the 

defendant’s ability to pay them, Wilson contends that the matter 

must be remanded so that the trial court can conduct an ability to 

pay hearing. (See People v. Dueñas (2019) 30 Cal.App.5th 1157.)

Unlike the defendant in Dueñas, Wilson did not object 

below to the assessments on the ground of his inability to pay and 

made no showing of indigence. Generally, where a defendant has 

failed to object to a restitution fine based on an inability to pay, 

the issue is forfeited on appeal. (See People v. Avila (2009) 46 

Cal.4th 680, 729.) This general rule applies here. (People v. 

Frandsen (2019) 33 Cal.App.5th 1126; but see People v. 

Castellano (2019) 33 Cal.App.5th 485.) 

In any event, we agree with those cases finding that 

Dueñas’s due process analysis is flawed. (See, e.g., People v. 

Hicks (2019) 40 Cal.App.5th 320; People v. Caceres (2019) 39 

Cal.App.5th 917; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 

1039 (conc. opn. of Benke, J.).) As Hicks notes, Dueñas

improperly wove together two distinct strands of due process 
16

precedent. The first secures a due process based right of access to 

courts; but imposing fees, fines, and assessments does not deny a 

criminal defendant access to the courts. The second strand erects 

a due process based bar to incarceration based on failure to pay 

criminal penalties when that failure is due to indigence, but mere 

imposition of those penalties does not result in incarceration for 

failure to pay due to indigence. Hence, neither strand prohibits 

imposing assessments and fines. 

Further, not all defendants are similarly situated to

Dueñas, whose cerebral palsy rendered her unable to work and 

whose inability to pay fines and fees was directly related to her 

poverty. (See People v. Johnson (2019) 35 Cal.App.5th 134.) 

Here, there was no evidence Wilson lacked income-earning 

capacity. Also, Wilson is serving a 17-year sentence. Even if we 

assumed he suffered a due process violation when the trial court 

imposed a modest financial burden on him without taking his 

ability to pay into account, he has ample time to pay it from a 

readily available source of income while incarcerated, i.e., prison 

wages. 

DISPOSITION

The judgment is affirmed.

CERTIFIED FOR PARTIAL PUBLICATION.

DHANIDINA, J.

We concur:

EDMON, P. J. EGERTON, J.