Filed 11/4/21 P. v. Bradford 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RAYMOND BRADFORD,

Defendant and Appellant.

F081464

(Kings Super. Ct. No. 19CM6042)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kings County. Robert Shane 

Burns, Judge.

Sara E. Coppin, 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, Catherine Chatman and Michael 

Dolida, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Levy, Acting P. J., Poochigian, J. and Detjen, J.
2.

INTRODUCTION

Appellant and defendant Raymond Bradford, a state prison inmate, was sentenced 

to two years after being convicted of battery upon correctional officers. On appeal, he 

contends the court improperly imposed a restitution fine and other fees without 

determining his ability to pay those amounts in violation of People v. Dueñas (2019) 30 

Cal.App.5th 1157 (Dueñas). We affirm.

FACTS

On April 11 and 12, 2019, defendant was inside his prison cell and threw fecal 

matter at two different correctional officers.

PROCEDURAL BACKGROUND

On December 13, 2019, a complaint was filed in the Superior Court of Kings 

County charging defendant with counts 1 and 2, felony battery by a prisoner on a 

nonconfined person (Pen. Code, § 4501.5)1, with three prior strike convictions.

Plea

On March 25, 2020, the court arraigned defendant on the complaint and granted 

his motion to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806.2

The court stated defendant’s “out date” was 2027, and the prosecution had offered 

an aggregate term of two years for both counts.

Thereafter, defendant waived a preliminary hearing and pleaded no contest to both 

felony counts, and the court dismissed the prior strike convictions.

1 All further statutory citations are to the Penal Code unless otherwise indicated.

2

In his appellate briefing, defendant states he was represented by appointed 

counsel at trial. At defendant’s first appearance, however, he declined the court’s 

appointment of counsel and instead moved to represent himself pursuant to Faretta. The 

court conducted the requisite hearing and granted the motion.
3.

Sentencing

On the same day, defendant waived time, and the court sentenced him pursuant to 

section 1170.1, subdivision (c) since he had a prior in-prison offense. It imposed two 

consecutive terms of one year (one-third the midterm) for each count, for a total of two 

years in prison, to be served consecutively to the sentence he was already serving.

When the court took defendant’s plea, it explained that it could impose a penal 

fine up to $10,000, and “my normal practice on a prison case is not to impose a penal 

fine, but if I did that, the state would add assessments and fees that would increase the 

amount you have to pay ....” The court stated it was required to impose a restitution fine 

between $300 and $10,000, and other assessments.

The court imposed the statutory minimum restitution fine of $300 (§ 1202.4, 

subd. (b)) and stayed the parole revocation fine of $300 (§ 1202.45), and reserved victim 

restitution (§ 1202.4, subd. (f)).

The court also imposed court operations assessments of $80 (§ 1465.8, 

subd. (a)(1)) and criminal conviction assessments of $60 (Gov. Code, § 70373).

On or about May 20, 2020, defendant timely delivered his notice of appeal to 

prison authorities for delivery. On July 10, 2020, the superior court granted his request 

for a certificate of probable cause.3

3 “The prison-delivery rule ... provides that a self-represented prisoner’s notice of

appeal in a criminal case is deemed timely filed if, within the relevant period set forth in 

the California Rules of Court, the notice is delivered to prison authorities pursuant to the 

procedures established for prisoner mail. [Citation.]” (Silverbrand v. County of Los

Angeles (2009) 46 Cal.4th 106, 110, fn. omitted; Cal. Rules of Court, rule 8.25(b)(5).)
4.

DISCUSSION

I. Section 1237.2

On appeal, defendant raises the single issue that the matter must be remanded for 

the trial court to determine whether he had the ability to pay the restitution fine and 

assessments imposed pursuant to Dueñas.

As a preliminary matter, we note defendant failed to request the trial court to 

address his challenges to the fines, fees, and assessments, as required by section 1237.2 

and People v. Hall (2019) 39 Cal.App.5th 502. Section 1237.2 states: “An appeal may 

not be taken by the defendant from a judgment of conviction on the ground of an error in 

the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs 

unless the defendant first presents the claim in the trial court at the time of sentencing, or 

if the error is not discovered until after sentencing, the defendant first makes a motion for 

correction in the trial court, which may be made informally in writing. The trial court 

retains jurisdiction after a notice of appeal has been filed to correct any error in the 

imposition or calculation of fines, penalty assessments, surcharges, fees, or costs upon the 

defendant’s request for correction. This section only applies in cases where the 

erroneous imposition or calculation of fines, penalty assessments, surcharges, fees, or 

costs are the sole issue on appeal.” (Italics added.)

The primary purpose of section 1237.2 is to “encourage and facilitate the prompt 

and efficient resolution in the trial court of challenges to fines, assessments and fees that 

would otherwise be asserted on direct appeal,” and the trial court retains jurisdiction to 

address a section 1237.2 request during the pendency of the direct appeal from the 

judgment of conviction. (People v. Torres (2020) 44 Cal.App.5th 1081, 1087, 1088; 

People v. Hall, supra, 39 Cal.App.5th at p. 504.)

“[S]ection 1237.2 broadly applies to an error in the imposition or calculation of 

fees,” including the claim that the court failed to determine a defendant’s ability to pay 
5.

under Dueñas, and the failure to comply with the provision may result in dismissal of the 

appeal. (People v. Hall, supra, 39 Cal.App.5th at pp. 504, 505.)

“[W]hen a defendant raises at least one other issue on appeal, he or she need not 

first file a motion in the trial court to correct the imposition or calculation of penalty 

assessments or fines. Instead, he or she can include those claims with the other 

contentions raised in the appeal.” (People v. Jordan (2018) 21 Cal.App.5th 1136, 1141; 

People v. Clark (2021) 67 Cal.App.5th 248.)

While defendant represented himself at the plea and sentencing hearing, he was 

represented by appointed counsel on appeal who has raised only one issue – whether the 

matter must be remanded for an ability to pay hearing pursuant to Dueñas. Appellate 

counsel could have filed a section 1237.2 request during the pendency of this appeal, and 

the trial court retained jurisdiction to address such a request. There is no evidence in this 

record that such a request was made.

II. The Restitution Fine and Fees

We decline to dismiss the appeal because even if defendant had complied with 

section 1237.2, we disagree with the holding in Dueñas and find the matter need not be 

remanded on this issue.4

Dueñas 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 any 

fines or fees. (Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1167.)5

4 The People assert defendant forfeited appellate review of his Dueñas contentions 

because the sentencing hearing was held over a year after the ruling in that case and he 

failed to object. We decline to address forfeiture since defendant represented himself at 

the plea and sentencing hearing.

5 The California Supreme Court is currently considering whether trial courts must 

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

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

Kopp (2019) 38 Cal.App.5th 47, 94–98, review granted Nov. 13, 2019, S257844.)
6.

As explained in People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles), we believe

Dueñas was wrongly decided and an Eighth Amendment analysis is more appropriate to 

determine whether restitution fines, fees, and assessments in a particular case are grossly 

disproportionate and thus excessive. (Aviles, at pp. 1068–1072.) Under that standard, the 

fines and fees imposed in this case are not grossly disproportionate to defendant’s level of 

culpability and the harm he inflicted, and thus not excessive under the Eighth 

Amendment. (Aviles, at p. 1072.)

On appeal, defendant argues the court’s imposition of the operations and criminal 

conviction assessments was contrary to its statement that it would not impose any “penal 

fines.” However, the court’s reference to a penal fine was likely to section 672. Many 

criminal statutes provide for the imposition of a base fine in addition to a jail or prison 

sentence. (People v. Sorenson (2005) 125 Cal.App.4th 612, 617.) Defendant was 

charged and pleaded no contest to two counts of violating section 4501.5, which does not 

provide for imposition of a base fine. Where the criminal statute does not prescribe the 

base fine, the trial court has discretion under section 672 to impose a fine not exceeding 

$10,000 in a felony case. (People v. Uffelman (2015) 240 Cal.App.4th 195, 197; People 

v. Clark (1992) 7 Cal.App.4th 1041, 1051.) If the court exercises its discretion to impose 

a base fine, it must also calculate a state surcharge and penalty assessment. (§§ 1464, 

1465.7, subd. (a).) The court did not impose a base fine pursuant to section 672, 

consistent with its statements at the time of his plea.

In any event, even if we agreed with Dueñas, we would still reject defendant’s 

constitutional claims and find any error arising from the court’s failure to make an ability 

to pay finding was harmless since defendant has the ability to pay the fines and fees 

imposed in this case. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Jones

(2019) 36 Cal.App.5th 1028, 1030–1031; Aviles, supra, 39 Cal.App.5th at pp. 1075–

1077.)
7.

“ ‘ “Ability to pay does not necessarily require existing employment or cash on 

hand.” [Citation.] “[I]n determining whether a defendant has the ability to pay a 

restitution fine, the court is not limited to considering a defendant’s present ability but 

may consider a defendant’s ability to pay in the future.” [Citation.] This include[s] the 

defendant’s ability to obtain prison wages and to earn money after his release from 

custody. [Citation.]’ [Citations.]” (Aviles, supra, 39 Cal.App.5th at p. 1076.)

We can infer from the instant record that defendant has the ability to pay the 

aggregate amount of fines and fees from probable future wages, including prison wages. 

(Aviles, supra, 39 Cal.App.5th at p. 1076; People v. Douglas (1995) 39 Cal.App.4th 

1385, 1397; People v. Ellis (2019) 31 Cal.App.5th 1090, 1094.) At the plea and 

sentencing hearing, the court stated that defendant was already serving a prison term until 

2027, and then imposed two additional consecutive years for the instant case. There is 

nothing in the record to show that defendant would be unable to satisfy the fine and fees 

imposed by the court while serving his prison term, even if he fails to obtain a prison job.

While it may take defendant some time to pay the amounts imposed in this case, that 

circumstance does not support his inability to make payments on these amounts from 

either prison wages or monetary gifts from family and friends during her prison sentence.

(See, e.g., People v. Potts (2019) 6 Cal.5th 1012, 1055–1057; People v. Lewis (2009) 46 

Cal.4th 1255, 1321; People v. DeFrance (2008) 167 Cal.App.4th 486, 505.)

DISPOSITION

The judgment is affirmed.