Filed 1/26/24 P. v. Ruiz CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

GERARDO JAUREGUI RUIZ,

Defendant and Appellant.

F085350

(Super. Ct. No. 17CR-02652)

OPINION

APPEAL from a judgment of the Superior Court of Merced County. Steven K. 

Slocum, Judge.

Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and 

Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOooAppellant Gerardo Jauregui Ruiz was convicted of multiple counts of oral 

copulation and sodomy of a child under 10 and one count of dissuading a witness from 

reporting a crime. Ruiz was sentenced to 80 years to life in prison. On appeal, he argues 
2.

a witness was improperly permitted to offer expert testimony, the trial court improperly 

declined his request to address the court at sentencing, and the trial court imposed 

restitution without first considering his ability to pay. We affirm. 

PROCEDURAL HISTORY

On November 16, 2021, the Merced County District Attorney charged Ruiz with 

two counts of sodomy of a child 10 years old or younger (Pen. Code § 288.7, subd. (a);1

count 1-2), two counts of oral copulation with a child 10 years old or younger (§ 288.7, 

subd. (b); counts 3-4), and one count of dissuading a witness from reporting a crime 

(§ 136.1, subd. (b)(1); count 5.) 

Following a jury trial, Ruiz was found guilty on all counts. On November 29, 

2022, he was sentenced to 25 years to life on counts one and two, 15 years to life on 

counts three and four, to run consecutively, and a concurrent two year term on count five, 

for a total sentence of 80 years to life. 

The trial court further imposed a restitution fine of $10,000 (§ 1202.4), a facilities 

assessment fee of $150 (Gov. Code, § 70373), and a court operations assessment of $200 

(§ 1465.8.) 

STATEMENT OF FACTS

We summarize the facts underlying Ruiz’s conviction as they are not directly 

relevant to the issues on appeal.

In 2016, Ruiz allowed his sister, H., and her two daughters and son, C., to move 

into his home. H. and Ruiz’s nieces slept in the bedroom, while Ruiz and C. slept in the 

converted garage. C. was eight years old at the time. 

About three weeks after H. moved in, Ruiz began sexually abusing C. Over the 

course of the following three weeks, Ruiz forced C. to orally copulate him on 

approximately 14 occasions. Ruiz also sodomized C. on approximately 12 occasions. 

1 Unspecified references are to the Penal Code. 
3.

After each assault, Ruiz warned C. not to tell his mother H. The sexual assaults 

left C. in physical pain, and he ultimately told H. H. confronted Ruiz about the abuse. 

Ruiz asked for forgiveness and pleaded with her not to turn him in, saying that two men 

should not sleep in the same bedroom because those things happen. Ruiz also told C., “I 

told you not to tell her because you were going to make your mother suffer.” 

Ruiz and H. exchanged a number of text messages. Ruiz texted, “[H.], it was 

never my intention. I swear to you that I did not harm. Please don’t turn me in. If you 

do it, I’m going to commit suicide.” H. responded, “I’m not going to turn you in. But 

please, don’t ever get close or come near to one of my children, ever.” Ruiz responded,

“I swear to you that I will never get close. And it is never my intention to cause you that 

harm.” H. responded, “Okay.” Ruiz replied, “Thank you. I cannot stop crying. Please 

tell Ene to not say, please.” Ruiz also replied, “[H.], please, [H.], it was not my intention. 

I swear to you that I was asleep. Don’t do this to me, please. You’re going to cause 

more harm to others than to me.” 

 Diana Gomez-Silvas (Silvas), a nurse, conducted a sexual assault forensic 

(SART) exam on C. However, she did not make any findings of sodomy during the 

exam. Finally, C. also testified about the abuse. 

DISCUSSION

I. The SART Nurse Did Not Improperly Offer Expert Opinions

Ruiz argues that Silvas was allowed to give improper expert opinion about the rate 

of finding evidence of sodomy during SART exams, and the rate at which injuries to the 

anus typically heal, by testifying about her personal experience as a SART nurse. We 

disagree. 

A. Background

Prior to Silvas testifying before the jury, the trial court held an Evidence Code 

section 402 hearing to determine the scope of Silvas’s expertise. Silvas testified she was 

a pediatric nurse for seven years and performed an estimated 150 SART exams, of which 
4.

80 were cases of sodomy involving victims age 10 and under. Based on her experience, 

Silvas opined that injuries to the anus in young children would sometimes heal within 24-

48 hours. She recalled two specific instances where she examined a child with injuries to 

the anus, and during the follow up exam two to five days later, the injuries had healed. 

The court ruled: 

“COURT: I don’t think that the witness can testify that 

an injury to the anus is going to heal within 24 to 48 hours 

and, therefore, not be present. Just generally I don’t think 

there’s enough foundation for that opinion. I think that would 

take a medical doctor to opine to that and probably quite a 

few peer-reviewed studies on various injuries and, you know, 

looking at it on day one, day two, day three, and documenting 

the healing process over time. So I don’t think this is enough 

foundation for that opinion. 

 ...

“I think she can testify generally about what she’s

observed. That was my tentative. She can testify about the 

number of examinations that she’s conducted and how 

frequently she has seen findings. But I would narrow it down 

to the times – we’re talking about a sodomy case. Because I 

don’t think vaginal or other issues are relevant in this case. 

“PROSECUTOR: Right. And she said that when –

children under 10, she had done about 150 SART exams. Of 

that, 80 were for suspected sodomy. And of that she has 

located, maybe five to ten times, findings. 

 ...

“I also would ask that she be able to testify to the 

situations where she had a finding or injury and then had the 

child come back in a couple of days later and saw that the 

injury had healed. She said she did that one to two times. I 

think that’s relevant in her experience. 

“COURT: Okay. I tend to agree with you.”
5.

Silvas then testified about the specifics of the two incidents where the injury 

healed between the initial and follow up visit. The court concluded: 

“COURT: Ms. Silvas, I’ll order that you can basically 

testify about your own personal experiences. ... And the DA 

is going to focus in on what you’ve done, what you have 

seen. But no generalized medical opinions, like it’s – like, let 

me give you an example. I wouldn’t allow you to testify that 

generally there are no findings in children who are 

sodomized. Okay? That would be outside the scope of your 

expertise. 

“I wouldn’t allow you to testify that all – almost all 

injuries heal within 24 to 48 hours, either. Okay? 

“But outside of that, you can testify about your own 

observations, the examinations you have conducted. And I 

think the DA is going to focus on these 80 sodomy cases 

because that’s really what’s relevant in the case before us.” 

Silvas testified before the jury and was offered as an expert in sexual assault 

examinations in children over Ruiz’s objection. Silvas testified about her experiences in 

relevant part: 

“Q: I want to go back to the SART exams that you 

said. You’ve done about 80 SART exams where you have 

examined a child’s anus? 

“A: Correct. 

“Q: Of – and I’m talking about a child under the age of 

10. Is that correct, the 80?

“A: Correct.

 ... 

“Q: So in the 80 exams that we’re discussing, were 

those examinations of a child’s anus where sodomy was 

suspected? 

“A: Correct. 
6.

“Q: And that was suspected sodomy in a child under 

the age of 10?

“A: Correct.

“Q: All right. So out of those 80 exams of a child 

under 10 with suspected sodomy, how many times did you 

locate a finding?

“A: Once or twice.

“Q: Once or twice or was it – I’m not talking about 

incidents where you might have had future contact with a 

patient but just examinations themselves where they’ve had 

suspected findings. 

 ...

“A: Maybe less than ten, estimate. 

“Q: So less than ten times you, out of the 80 suspected 

sodomy anal examinations of a child under 10, less than ten 

times have you found a finding or injury? 

“A: Yes. 

“Q: Now out of those 80 – well before I go there, let 

me ask you: When a child comes in, let’s say a child under 

the age of 10, where you have suspected sodomy and you 

have done an exam and found a finding, do you ever ask that 

that child come back for a follow-up appointment?

“A: Yes. 

“Q: Okay. And what is the reason for doing that? 

“A: For photos, that we do take photos, follow up to 

see if there’s any scarring or anything that maybe I had 

missed on my prior exam, and they are noted. So it’s possible 

findings or not findings. 
7.

“Q: And so typically if a child comes back for the 

follow-up exam, how long after the initial exam do they come 

back? 

“A: Anywhere from two to four – two to five days. 

“Q: Okay. So have you ever had a child under the age 

of 10 where sodomy was suspected and you had a finding at 

that initial exam and then had that same child come back that 

you re-examined again during that two- to five-day period? 

“A: Yes. 

“Q: Okay. So on – on that incident, what – what was 

the suspected – what was suspected as penetrating the child’s 

anus?

 ...

“A: Penis and fingers. 

“Q: Okay, so let’s talk about – so you had two times? 

“A: Correct.”

Silvas then described the two incidents. Silvas testified that if she had only 

attended the children described in the two incidents during their follow-up exam, she 

would have concluded there were no findings of injury. Following Silvas’s testimony, 

the court stated the following outside the presence of the jury: 

“And I just wanted to make a little bit of a record 

regarding the testimony of Ms. Silvas and the Court’s ruling 

regarding her observations of approximately 80 children who 

are aged 10 or under where the suspected mechanism was 

sodomy or forceful penetration of the anus. The defense has 

objected. 

“I appreciate that, [counsel]. I know you’re just doing 

your job. 

“We had a 402 hearing on the issue, too, but the 

Court’s – I just want to make a record that in my view, this is 
8.

an area that’s well outside of the common knowledge of any 

person. This witness has conducted numerous examinations. 

And the jury obviously wouldn’t have any information about 

what it looks like when a child’s anus is penetrated, if that 

would – I would think that a common person might think that 

would leave a severe injury, and you would expect to see an 

injury. 

“So one of the major issues in the case is did a sodomy 

occur, and that’s for the jury to decide, and whether or not –

in this case, there were no findings. So that’s obviously a fact 

that may tend to show a sodomy didn’t occur. 

“But with this expert’s training and experience, the 

jury can better understand the nature of either forcible 

penetration or sodomy and whether or not that does cause 

injury. And, if so, whether or not that heals. 

“So I think these are important facts for the jury to 

hear and well outside the common experience. And under 

352, I find it’s highly probative, and it’s not substantially 

outweighed by the probability that its admission would 

necessitate undue consumption of time, create substantial 

danger of undue prejudice, or confuse the issues or mislead 

the jury.” 

B. Legal Standard

“A person is qualified to testify as an expert if he has special knowledge, skill, 

experience, training or education sufficient to qualify him as an expert on the subject to 

which his testimony relates. Whether a person qualifies as an expert in a particular case, 

however, depends upon the facts of the case and the witness’ qualifications. [Citation.]

The trial court is given considerable latitude in determining the qualifications of an expert 

and its ruling will not be disturbed on appeal unless a manifest abuse of discretion is 

shown.” (People v. Bloyd (1987) 43 Cal.3d 333, 357.) 

An expert witness may testify in the form of an opinion when their testimony is 

related to a subject that is sufficiently beyond common experience that the opinion would 

assist a trier of fact, and the opinion is based on a matter perceived by or personally 
9.

known to the witness or made known to him or her before the hearing, whether or not 

admissible, that is of a type that reasonably may be relied upon by an expert in forming 

an opinion. (Evid. Code, § 801.) “[T]he trial court acts as a gatekeeper to exclude expert 

opinion testimony that is (1) based on matter of a type on which an expert may not 

reasonably rely, (2) based on reasons unsupported by the material on which the expert 

relies, or (3) speculative.” (People v. Lund (2021) 64 Cal.App.5th 1119, 1138.) 

Otherwise, a witness is able to testify on matters within their personal knowledge. 

(Evid. Code, § 702, subd. (a).) The testimony must relate to “evidence relevant to the 

credibility of a witness or hearsay declarant, having any tendency in reason to prove or 

disprove any disputed fact that is of consequence to the determination of the action.” 

(Evid. Code, § 210; People v. Wheeler (1992) 4 Cal.4th 284, 295.) A trial court may 

nonetheless exclude relevant evidence if its probative value is substantially outweighed 

by its potential for prejudice, confusion, or undue consumption of time. (Evid. Code, 

§ 352.) “Like any other witness, experts can relate what they have personally 

observed ....” (People v. Valencia (2021) 11 Cal.5th 818, 831, fn. 13 (Valencia).) We 

likewise review rulings regarding relevancy and Evidence Code section 352 under an 

abuse of discretion standard. (People v. Linton (2013) 56 Cal.4th 1146, 1181.)

C. Analysis 

Ruiz argues Silvas’s testimony constituted inadmissible expert opinion testimony, 

because her personal experience indirectly conveyed a medical opinion to the jury on the 

rarity of observing findings of sodomy during SART exams. 

Silvas was admitted as an expert on sexual assault examinations in children. In 

that capacity, Silvas testified about the general procedures of SART examinations, as 

well as about the examination she conducted on C. Pursuant to the court’s ruling at the 

Evidence Code section 402 hearing, Silvas then testified about her specific experiences 

conducting SART exams on children under the age of 10 where sodomy was suspected. 

Silvas also described two particular cases where she conducted a SART exam of a child 
10.

under the age of 10, where sodomy was suspected and injury was initially present, but no 

injury was found during a follow-up examination two to five days later. Following that 

testimony, the prosecution did not ask Silvas to give any generalized opinions about her 

observations. 

A review of the record does not reveal that Silvas explicitly offered an opinion 

about the rarity of findings of sodomy in SART exams. Silvas’s testimony was limited 

only to her specific, personal experience conducting SART exams, and her specific 

observations in two relevant cases. Ruiz likewise does not cite to any caselaw supporting 

his proposition that an expert witness’s testimony about their specific, personal 

observations can implicitly rise to the level of an expert opinion. Experts, like all 

witnesses, are permitted to testify on matters they personally observed. (Valencia, supra, 

11 Cal.5th at p. 831, fn. 13.) If that testimony might confuse or mislead the jury, its 

admissibility is properly resolved pursuant to Evidence Code section 352. 

The trial court in this case ruled Silvas’s testimony regarding her personal 

experience with SART exams on children under the age of 10 where sodomy was 

suspected was relevant and admissible pursuant to Evidence Code section 352. The court 

found Silvas’s testimony about her experience “highly probative” and “not substantially 

outweighed by the probability that its admission would necessitate undue consumption of 

time, create substantial danger of undue prejudice, or confuse the issues or mislead the 

jury.” Ruiz does not appear to challenge that ruling. 

No impermissible expert opinion was given in this case on the rarity of observing 

findings of sodomy during SART exams in children under age 10, because Silvas did not 

give an opinion on the matter. She only testified as to her personal experience with 

SART exams in the aforementioned category and the trial court found that testimony 

admissible as relevant and probative evidence within Silvas’s personal knowledge. 
11.

II. The Trial Court Did Not Err In Denying Ruiz’s Request To Personally 

Address The Court At Sentencing

Ruiz argues the court erroneously denied his request to personally address the 

court at sentencing, in violation of his federal and state due process rights. We find no 

error, and had error occurred, no prejudice. 

A. Background

At the sentencing hearing on November 29, 2022, after the court announced its 

tentative sentence, the court had the following exchange with Ruiz’s trial counsel:

“DEFENSE COUNSEL: Your Honor, my client, as 

well as his son, Gerardo Ruiz, Junior, would like to address 

the Court. 

“COURT: Okay. Your client may address the Court if 

he’s sworn under oath; otherwise, if he’s stating factors in 

mitigation – what’s the purpose of his statement? 

“RUIZ: Can I have a chance to talk to him?

“COURT: Sure. 

“COURT: [Counsel], do you have an offer of proof of 

what he would like to tell the Court? 

“DEFENSE COUNSEL: He maintains his innocence. 

And that’s the reason he went to trial.

“COURT: Okay. Understood. Otherwise, I don’t 

think he has a right to make a statement to the Court at 

sentencing unless he wants to offer some factors in 

mitigation. [Prosecutor]?

“PROSECUTOR: No, Judge. I would agree. And 

absent that, I would ask that his addressing the Court on his 

issue of innocence not be allowed. 

“COURT: Okay. All right. With that offer of proof, 

I’m going to decline to hear from Mr. Ruiz or his son. Okay. 

I have read the letters from the family, though, and they also 
12.

state that it’s their belief that he’s been wrongfully convicted, 

at least in, I think, two of the three letters. Okay. [Counsel], 

regarding the sentence, anything further?

“DEFENSE COUNSEL: I was also going to mention 

that he is asking for the Court’s mercy at sentencing. 

 

...

“COURT: Okay. All right. I appreciate the requests. 

I understand that the family of the defendant may have, you 

know, heard the version of events from their family member, 

but the Court was present for the trial and the testimony of 

[C.], and I found his testimony to be compelling. I find that 

there were multiple acts, horrific acts of child abuse that 

occurred over a lengthy period of time on numerous different 

days. And I think this is the correct sentence.” 

B. Legal Standard

A court’s inquiry into whether a defendant has any cause to show why sentence 

should not be pronounced is traditionally called an allocution. (People v. Cross (1963) 

213 Cal.App.2d 678, 681.) Section 1200 governs such statements and permits a 

defendant to provide legal cause to show why judgment should not be pronounced. A 

statement of mitigating factors in turn falls within section 1204 which states, 

“The circumstances [in aggravation or mitigation] 

shall be presented by the testimony of witnesses examined in 

open court. ... No affidavit or testimony, or representation 

of any kind, verbal or written, can be offered to or received 

by the court, or a judge thereof, in aggravation or mitigation 

of the punishment, except as provided in this and the 

preceding section. This section shall not be construed to 

prohibit the filing of a written report by a defendant or 

defendant’s counsel on behalf of a defendant if such a report 

presents a study of his background and personality and 

suggests a rehabilitation program.” 

“By stating in section 1204 that mitigating evidence must be presented through 

‘the testimony of witnesses examined in open court’ rather than verbal representations, 
13.

the Legislature has declared that a criminal defendant wishing to make an oral statement 

to the court in mitigation of punishment must do so through testimony given under oath.” 

(People v. Evans (2008) 44 Cal.4th 590, 598 (Evans).) “[A] trial court that prefers to 

proceed more informally may, with the parties’ consent, choose not to have the defendant 

testify under oath and instead allow the defendant to make a brief unsworn statement 

urging lesser punishment.” (Id. at p. 599) 

A defendant does not have a federal due process right to make a personal unsworn 

statement at a sentencing hearing. “ ‘The fundamental requirement of due process is the 

opportunity to be heard “at a meaningful time and in a meaningful manner.” [Citation.] 

California law, through section 1204, gives a criminal defendant the right at sentencing to 

make a sworn personal statement in mitigation that is subject to cross-examination by the 

prosecution. This affords the defendant a meaningful opportunity to be heard and thus 

does not violate any of defendant’s rights under the federal Constitution.’ ” (Evans, 

supra, 44 Cal.4th at p. 600.) 

C. Analysis

Ruiz wanted to address the court to state that he maintains his innocence and that 

is the reason he went to trial, and to request the court’s mercy at sentencing. Ruiz did not 

confirm he was willing to make the statement under oath and subject to crossexamination and did not request that he be called to the stand after the court declined to 

hear his unsworn statement. Nonetheless, the trial court noted both Ruiz’s and his 

family’s affirmation of his innocence, and Ruiz’s request for mercy. 

The trial court did not violate Ruiz’s due process rights by declining to hear his 

statement at sentencing, because Ruiz failed to satisfy the requirements of section 1204. 

Primarily, nothing in the record indicates Ruiz was willing to make a statement under 

oath and subject to cross-examination. The court told Ruiz’s attorney, “[y]our client may 

address the Court if he’s sworn under oath; otherwise if he’s stating factors in 
14.

mitigation ....” At no point following the court’s admonition did Ruiz indicate he was 

willing to make a statement under oath. 

Likewise, California Rules of Court, rule 4.423 describes circumstances in 

mitigation which Ruiz may have presented to the court. “Any circumstances in 

aggravation or mitigation, whether or not the factors have been stipulated to by the 

defendant or found true beyond a reasonable doubt at trial by a jury or the judge in a 

court trial, may be considered in deciding whether to impose consecutive rather than 

concurrent sentences ....” (Cal. Rules of Court, rule 4.425, subd. (b).) 

Ruiz argues a plea for mercy falls within these factors. He relies on an excerpt 

from Evans, supra, 44 Cal.4th at p. 596, discussing the history of allocution, which draws 

from an 1847 treatise on criminal law and reads “ ‘It is now indispensably necessary, 

even in clergyable felonies, that the defendant should be asked by the clerk if he has any 

thing to say why judgment of death should not be pronounced on him. ... If he has 

nothing to urge in bar, he frequently addresses the court in mitigation of his conduct, and 

desires their intercession with the king, or casts himself upon their mercy.’ ” 

Ruiz further relies on the dissenting opinion in California v. Brown (1987) 

479 U.S. 528, 561-562 (dis. opn. of Blackmun, J.), which states, “While the sentencer’s 

decision to accord life to a defendant at times might be a rational or moral one, it also 

may arise from the defendant’s appeal to the sentencer’s sympathy or mercy, human 

qualities that are undeniably emotional in nature. [Citation.] In a capital sentencing 

proceeding, the sentencer’s discretion must be guided to avoid arbitrary or irrational 

decisions. [Citation.] When a jury serves as the sentencing authority, such guidance is 

provided, in part, through jury instructions. This Court, however, has recognized and 

even safeguarded the sentencer’s power to exercise its mercy to spare the defendant’s 

life.” 

Neither of these excerpts apply to the instant case. Section 1204 has now 

superseded 19th century law, and “[c]apital cases are governed by a sentencing scheme 
15.

unique to those cases.” (Evans, supra, 44 Cal.4th at p. 599.) This is not a capital case.

Even if this court accepts that Ruiz was willing to make his statement under oath, a 

generalized declaration of innocence and plea for mercy are not mitigating factors 

pursuant to California Rules of Court, rule 4.423. And, a review of California Rules of 

Court, rule 4.423 does not reveal any mitigating factors which appear to apply to this case 

based on the available record. 

Finally, if the trial court declining to hear Ruiz’s statement was error, such error 

was harmless. (People v. Falcon (2023) 92 Cal.App.5th 911, 950, see also People v. 

Watson (2008) 43 Cal.4th 652, 693.) The court indicated that it found C.’s testimony 

compelling, and that there were “multiple acts, horrific acts of child abuse that occurred 

over a lengthy period of time on numerous different days.” The court concluded that it 

believed the 80-years-to-life sentence was correct. 

Ruiz argues that had he the opportunity to argue for mercy, the court could have 

shown slight mercy by running one or more of his life sentences concurrent rather than 

consecutive. Ruiz argues that even a sentence of 65 years to life would hardly be lenient. 

“It requires no citation of authority that a sentencing judge is required to base his 

decision on the statutory and rule criteria, on an analysis of legitimate aggravating and 

mitigating factors, and not on his subjective feeling about whether the sentence thus 

arrived at seems too long, too short, or just right. He is not permitted to reason backward 

to justify a particular length sentence which he arbitrarily determines.” (People v. 

Swanson (1983) 140 Cal.App.3d 571, 574.) 

As discussed, Ruiz has not identified a single mitigating factor listed in California 

Rules of Court, rule 4.423, which he may have argued at sentencing. A generalized plea 

for mercy is a request for the trial court to act on arbitrary criteria and personal feelings to 

reduce a lawful sentence. In contrast, the trial court noted that the crimes involved 

separate acts of violence and were committed at different times, both factors supporting 

the imposition of consecutive sentences pursuant to California Rules of Court, rule 4.425, 
16.

subdivision (a). Nothing in the record indicates that Ruiz’s claim of innocence or 

generalized plea for mercy would have had a reasonable probability of changing the 

court’s sentence. 

III. The Trial Court Did Not Err in Imposing Fines

Ruiz argues he is indigent, and the imposition of $10,350 in fees and fines violated 

his due process rights under the federal and state constitutions. Primarily, we find Ruiz 

forfeited his challenge to the imposition of fees and fines by failing to object at 

sentencing. Likewise, had the claim not been forfeited, we find the fines were not 

excessive under the Eighth Amendment of the United States Constitution. 

A. Background

At sentencing, the trial court imposed a $10,000 restitution fine pursuant to 

section 1202.4, a $150 facilities assessment fee pursuant to Government Code 

section 70373, and a $200 court operations assessment pursuant to section 1465.8, for a 

total of $10,350 in fines and fees. Ruiz did not object and did not request a hearing on 

his ability to pay the fees. 

B. Legal Standard

“In every case where a person is convicted of a crime, the court shall impose a 

separate and additional restitution fine, unless it finds compelling and extraordinary 

reasons for not doing so and states those reasons on the record.” (§1202.4, subd. (b).) 

“The restitution fine shall be set at the discretion of the court and commensurate with the 

seriousness of the offense. If the person is convicted of a felony, the fine shall not be less 

than three hundred dollars ($300) and not more than ten thousand dollars ($10,000).” 

(§ 1202.4, subd. (b)(1).) 

“In setting the amount of the fine pursuant to subdivision (b) in excess of the 

minimum fine pursuant to paragraph (1) of subdivision (b), 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 
17.

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 

in the crime. Those losses may include pecuniary losses to the victim or the victim's 

dependents as well as intangible losses, such as psychological harm caused by the crime. 

Consideration of a defendant’s inability to pay may include the defendant’s future 

earning capacity. A defendant shall bear the burden of demonstrating the defendant’s 

inability to pay. Express findings by the court as to the factors bearing on the amount of 

the fine shall not be required. A separate hearing for the fine shall not be required.” 

(§ 1202.4, subd. (d).) 

Failure to adduce an inability to pay fines and fees at the trial court forfeits the 

argument on appeal. (People v. Avila (2009) 46 Cal.4th 680, 729.) Ruiz “had a statutory 

right, and [was] obligated, to object to the imposition of the restitution fines above the 

$300 minimum. [Citation.] A factual determination was required regarding [his] alleged 

inability to pay.” (People v. Lowery (2020) 43 Cal.App.5th 1046, 1053-1054 (Lowery).) 

Because a challenge to fees and fines is not a pure question of law based on undisputed 

facts, it cannot be raised for the first time on appeal. (People v. Frandsen (2019) 

33 Cal.App.5th 1126, 1153.) 

Ruiz urges this court to apply the reasoning in People v. Dueñas (2019) 

30 Cal.App.5th 1157 (Dueñas) to this case. One published decision of this court has 

found Dueñas wrongly decided. (People v. Aviles (2019) 39 Cal.App.5th 1055, 1067 

(Aviles).) Aviles held that we review the imposition of fees, fines and assessments under 

the “excessive fines” clause of the Eighth Amendment of the United States Constitution. 

(Id. at 1069.) We may review de novo whether a fine is excessive under the Eighth 

Amendment. (Id. at 1072.) 

“The Eighth Amendment provides: ‘Excessive bail shall not be required, nor 

excessive fines imposed, nor cruel and unusual punishments inflicted.’ ” (United 

States v. Bajakajian (1998) 524 U.S. 321, 327 (Bajakajian).) “ ‘[T]he word “fine” was 
18.

understood to mean a payment to a sovereign as punishment for some offense.’ ” (Id. at 

328.) 

“The touchstone of the constitutional inquiry under the Excessive Fines Clause is 

the principle of proportionality: The amount of the forfeiture must bear some relationship 

to the gravity of the offense that it is designed to punish. [Citations.] ... [A] punitive 

forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity 

of a defendant’s offense.” (Bajakajian, supra, 524 U.S. at p. 334.)

“The California Supreme Court has summarized the factors in Bajakajian to 

determine if a fine is excessive in violation of the Eighth Amendment: ‘(1) the 

defendant's culpability; (2) the relationship between the harm and the penalty; (3) the 

penalties imposed in similar statutes; and (4) the defendant’s ability to pay. [Citations.]’ 

[Citations.] While ability to pay may be part of the proportionality analysis, it is not the 

only factor.” (Aviles, supra, 39 Cal.App.5th at p. 1070.) 

C. Analysis

Ruiz argues that he is indigent, and the fees and fines imposed violate his due 

process rights. He further argues the issue is cognizable on appeal, because the trial court 

failed to exercise its discretion and deprived him of fundamental procedural rights, the 

imposition of the fees and fines was in excess of the trial court’s jurisdiction, and trial

counsel was ineffective in failing to object to the fees and fines. 

It is well established that the imposition of fees and fines is a question of fact, and 

an appellant is obligated to object at the trial court to the imposition of fines above the 

minimum amount. (Lowery, supra, 43 Cal.App.5th at p. 1054; § 1202.4, subd. (d).) Ruiz 

bears the burden of proving inability to pay. (§ 1202.4, subd. (d).) Likewise, the record 

does not show the trial court was unaware of its discretion to impose a lower fine. Error 

may not be presumed from a silent record, and a trial court is presumed to have been 

aware of and followed all applicable laws. (People v. Brown (2007) 147 Cal.App.4th
19.

1213, 1229.) Ruiz’s failure to object to the fees and fines at sentencing forfeited the issue 

on appeal. 

However, even if the issue were not forfeited, the $10,350 in fees and fines 

imposed do not violate the Eighth Amendment’s prohibition against excessive fines. 

Ruiz was solely culpable for sexually assaulting his nephew and did not provide any 

mitigating factors to reduce his culpability at sentencing. The jury found Ruiz committed 

heinous, ongoing acts of sexual assault against an eight-year-old child. Courts have 

upheld fines as high as $750,000 and $1,000,000 in sexual assault cases. (People v. 

Lehman (2016) 247 Cal.App.4th 795 [upholding a restitution fine of $1,000,000 for 

ongoing sexual assault of two minors]; People v. Smith (2011) 198 Cal.App.4th 415 

[upholding a restitution fine of $750,000 for ongoing molestation of a minor.]) 

The fines imposed are not grossly disproportionate to the heinous nature and 

gravity of Ruiz’s offenses, his level of culpability, and the harm he caused and therefore 

not excessive under the Eighth Amendment.

DISPOSITION

The judgment is affirmed. 

SNAUFFER, J.

WE CONCUR:

LEVY, Acting P. J.

PEÑA, J.