People v. Figueroa CA4/1

Opinion

Filed 9/23/26 P. v. Figueroa CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D085098

Plaintiff and Respondent, v. (Super. Ct. No. SCN441395)

DIONISIO FIGUEROA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Victor M. Torres, Judge. Affirmed. Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene Sevidal, Assistant Attorney General, Eric A. Swenson, Attorney General, and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent. A jury found Dionisio Figueroa guilty of second-degree murder.

(Pen. Code,1 § 187, subd. (a).) The jury further found that Figueroa personally used a deadly and dangerous weapon, a knife, in committing the offense. (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23).) The court sentenced Figueroa to 16 years to life and imposed various fines and fees. Figueroa contends on appeal that: (1) there was insufficient evidence to prove that he was guilty of second-degree murder and not voluntary manslaughter; and (2) the court erred in imposing a $10,000 restitution fine under section 1202.4, subdivision (b) without giving him an opportunity to demonstrate his inability to pay. We conclude that substantial evidence supports the jury’s second- degree murder verdict and its implicit finding that Figueroa did not act in the heat of passion upon adequate provocation when he killed Manuel Aguirre. We further reject Figuero’s contention that the trial court erred by depriving him of his statutory right to present evidence pertaining to his ability to pay the restitution fine. Accordingly, we affirm the judgment.

1 Further undesignated statutory references are to the Penal Code. 2 FACTUAL AND PROCEDURAL BACKGROUND A. The Killing On the morning of February 23, 2024, Figueroa and his brother, Carlos Figueroa, were standing with Aguirre outside of a liquor store in Bonsall, California. They were waiting in the area for a couple hours looking for work, but no one hired them that day. At around 10:30 a.m., Aguirre gave Figueroa money to buy a 12-pack of beer in the store. When the three of them finished drinking that pack, they bought more beer. Carlos recalled that they consumed about 10 beers each. Carlos testified at trial that after they finished the second round of beers around 1:30 p.m., Aguirre demanded that Carlos buy the next round. When he told Aguirre he did not have enough money to buy beer, Aguirre became angry and aggressive. Surveillance footage from outside the front of the store showed Carlos, Figueroa, and Aguirre arguing for about two minutes. Aguirre appeared to jab his finger in the air towards Carlos and Figueroa and swipe his hand in their direction multiple times during the argument. The store owner heard them arguing and came outside to tell them to leave. Video footage shows all of them, including the store owner, walking around the corner of the building away from the camera and out of frame. The store owner returned alone soon afterwards and walked back towards the front of the store holding empty beer bottles he had picked up from the side of the building. Video footage showed that about a minute later, Figueroa and Carlos chased Aguirre from the side of the building into the front parking lot. In the tussle that ensued, Figueroa had a knife in his hand and was using it to make slashing motions at Aguirre. Aguirre moved backwards through the parking lot, parrying Figueroa’s knife swipes with an empty intact beer bottle 3 in his left hand. Aguirre eventually tripped backwards into a planter area. With Carlos next to him, Figueroa immediately crouched on top of Aguirre and plunged the knife down into Aguirre’s upper left chest. Figueroa got up and quickly moved away from the parking lot towards the street, with Carlos following a short distance behind him. Both were arrested later that afternoon. Booking photos showed Carlos had a cut on his right eyelid and a cut to the right of his nose. A police officer responding to the scene found Aguirre lying on his back and unresponsive with blood on his clothes and on the ground. Emergency responders transported Aguirre to the hospital where he was later pronounced dead. A medical examiner determined that the knife had penetrated Aguirre’s heart, causing his death. B. Additional Witness Testimony The People charged Figueroa with murder and personal use of a deadly weapon. (§§ 187, subd. (a) & 12022, subd. (b)(1).) Carlos testified in his brother’s defense at trial in July 2024. He described drinking with Figueroa and Aguirre outside of the store until Aguirre got upset with Carlos because he could not purchase more beer. After the store owner told them to leave and they rounded the corner to the side of the building, Carlos said Figueroa stopped to urinate in a bush. According to Carlos, Aguirre suddenly hit Carlos’s back and face with a bottle while Carlos was waiting for his brother. Carlos said he fell, and when Figueroa helped him up, Aguirre also hit Figueroa in the back with the bottle. Carlos recounted that Aguirre told Figueroa, “Shorty, are you going to get in with your brother too?” Figueroa and Aguirre began fighting, but Carlos said he did not remember anything that happened after that point.

4 Carlos was charged with murder for his role in the incident, but he pled guilty to a lesser offense. As part of his plea, he admitted under oath that he and Figueroa intentionally chased and physically assaulted Aguirre, which resulted in Aguirre’s death. On cross-examination, Carlos acknowledged that he initially told law enforcement during his post-arrest interview that he remembered nothing about the incident because he was drunk. But later in the interview he told them that a man had “punched” him because he would not buy beer for the man. The detective who conducted the interview testified that Carlos said someone had tried to “eye-gouge” him and “punched” him, but Carlos made no mention of being hit with a bottle, nor did he say that Aguirre had hit or threatened Figueroa. C. Expert Testimony Dr. Kristina Malek, a clinical psychologist, testified as a defense expert. She addressed the concept of a “fight-or-flight response,” which occurs when the body perceives a threat or stressor in the environment. Dr. Malek explained that when a fight response is triggered—by, for example, someone trying to injure a family member—one might react very violently “to save that person’s life.” In fight-or-flight mode, someone might experience increased energy, narrowed focus, and more impulsive decision-making. According to Dr. Malek, fight or flight is automatic and can last anywhere from 20 to 60 minutes. She testified that if somebody witnessed a family member being attacked and ran after the attacker, that response “could be consistent” with fight or flight. On cross-examination, Dr. Malek explained that just because someone is triggered does not necessarily mean they will have a fight-or-flight response. If a fight-or-flight response occurs, the “conscious brain” that 5 allows for complex thought may begin functioning again within seconds to minutes “depending on the severity of the event that happens[.]” When asked about someone pulling out a weapon in a fight, Dr. Malek said that the action could be an instinctive fight response, but it could also be the product of conscious decision-making. D. Verdict and Sentencing After deliberating for a few hours, the jury found Figueroa guilty of second-degree murder, with a true finding that he personally used a deadly and dangerous weapon. At the September 2024 sentencing hearing, the trial court sentenced Figueroa to 16 years to life in prison and imposed the following fines, ancillary costs, and victim restitution: (1) a restitution fine of $10,000 under section 1202.4, subdivision (b); (2) a $40 court operations assessment under section 1465.8; (3) a $30 court facilities assessment under Government Code section 70373; and (4) victim restitution under Penal Code sectio1202.4, subdivision (f), in the amount of $2,827.07. The court also imposed and stayed an additional $10,000 parole revocation restitution fine under section 1202.45. Lastly, the court reserved jurisdiction on further victim restitution. DISCUSSION I Figueroa first contends there was insufficient evidence for the jury to find that he committed second-degree murder, rather than the lesser included offense of voluntary manslaughter. Specifically, he argues that the prosecution failed to disprove that he acted in the heat of passion in response to sufficient provocation. We conclude substantial evidence supports the jury’s implicit finding that Figueroa did not kill Aguirre under provocation 6 that would have caused a person of average disposition to act rashly and without due deliberation. A. Governing Law Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) “[S]econd degree murder . . . is ‘the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder.’ ” (People v. Cravens (2012) 53 Cal.4th 500, 507; see §§ 187, subd. (a) & 189.) “ ‘A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of . . . voluntary manslaughter.’ ” (People v. Breverman (1998) 19 Cal.4th 142, 153 (Breverman), quoting § 192.) Voluntary manslaughter is a lesser included offense of murder. (People v. Gonzalez (2018) 5 Cal.5th 186, 197 [“Lesser included offenses of first degree premeditated murder include second degree murder, voluntary manslaughter, and involuntary manslaughter”]; Breverman, at p. 154.) An intent to unlawfully kill generally constitutes malice. (§ 188.) But a defendant who unlawfully kills in the “heat of passion” lacks malice and is guilty of voluntary manslaughter. (§ 192, subd. (a); see People v. Lasko (2000) 23 Cal.4th 101, 109–110.) Provocation distinguishes this form of manslaughter from murder. (People v. Rangel (2016) 62 Cal.4th 1192, 1225.) “ ‘To be adequate, the provocation must be one that would cause an emotion so intense that an ordinary person would simply react, without reflection. . . . [T]he anger or other passion must be so strong that the defendant’s reaction bypassed his thought process to such an extent that judgment could not and did not intervene.’ ” (Ibid.) “[I]f sufficient time has elapsed for the passions of an ordinarily reasonable person to cool, the killing 7 is murder, not manslaughter.” (Ibid., internal quotation marks omitted.) Whether someone killed with malice aforethought (constituting murder) or killed in the heat of passion (constituting voluntary manslaughter) is a factual matter for the jury to decide. (See, e.g., People v. Wright (2015) 242 Cal.App.4th 1461, 1482 [“whether adequate provocation and heat of passion have been shown are fundamentally jury questions”].) The heat of passion requirement for manslaughter has both objective and subjective components. (People v. Steele (2002) 27 Cal.4th 1230, 1252.) “The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively.” (Ibid.) The objective component requires that the passion be such “ ‘as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances,’ ” because “ ‘no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.’ [Citation.]” (Id. at pp. 1252– 1253.) On review for sufficiency of the evidence supporting a conviction, we must “ ‘examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value that would support a rational trier of fact in finding [the defendant guilty] beyond a reasonable doubt.’ ” (People v. San Nicolas (2004) 34 Cal.4th 614, 657–658.) We will not reverse unless there is no hypothesis upon which sufficient substantial evidence exists to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.) We must “presume in support of the judgment the existence of every fact the trier 8 could reasonably deduce from the evidence.” (People v. Jones (1990) 51 Cal.3d 294, 314.) “The same standard applies when the conviction rests primarily on circumstantial evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.) “Given this deferential standard of review, a ‘defendant bears an enormous burden in claiming there is insufficient evidence’ to support a conviction.” (People v. Wear (2020) 44 Cal.App.5th 1007, 1020.) B. Analysis For several reasons, there was substantial evidence at trial from which the jury could reasonably determine Figueroa did not kill Aguirre in the heat of passion because of legally sufficient provocation. First, the primary evidence of provocation was the testimony of Figueroa’s own brother Carlos. But the jury could reasonably have concluded that Carlos’s account of the provocation lacked credibility. The court instructed the jury that it could believe “all, part, or none” of any witness’s testimony. (CALCRIM No. 226.) The portion of the altercation when Carlos claimed Aguirre assaulted him was not captured on video, and by the time the fight progressed to the parking lot in front of surveillance cameras, Carlos and Figueroa were the ones pursuing Aguirre. Carlos gave inconsistent accounts to law enforcement about what happened and what he could recall, including whether Aguirre hit him with a bottle versus punching him. While Carlos sustained injuries to his face, there were no medical records showing the severity of those injuries, and the jury could have reasonably concluded that he got those cuts during the fight in the parking lot and not from Aguirre assaulting him with a bottle. Carlos also testified that he had consumed about 10 beers before the fight broke out and had trouble remembering what happened. The jury could 9 reasonably infer that Carlos’s inconsistent statements, alcohol consumption, and bias in favor of his own brother made him an unreliable witness regarding the alleged provocation. Second, even assuming the jury believed all of Carlos’s testimony, it did not necessarily compel a finding in Figueroa’s favor on the required objective or subjective components of provocation. (See People v. Padilla (2002) 103 Cal.App.4th 675, 679.) The evidence of Aguirre’s provocative conduct consisted of video footage showing Aguirre pointing his finger at Carlos and Figueroa and swiping at them with his hand, Carlos’s testimony that he was hit in the back and face with an empty beer bottle, Carlos’s testimony that Aguirre called Figueroa “shorty” and threatened him, and photos showing that Carlos suffered cuts on his nose and eyelid. On the videotape, Carlos did not appear to be seriously injured because he continued actively participating in the confrontation and chased Aguirre into the parking lot with Figueroa. While a jury could infer Aguirre’s behavior was assaultive and offensive, a jury could also reasonably conclude that being a witness to such conduct during what amounted to a mutual quarrel—even for a family member— would not naturally arouse judgment-clouding passion in the mind of an ordinarily reasonable person. (See People v. Beltran (2013) 56 Cal.4th 935, 950 (Beltran).) Although Figueroa argues he was triggered by “seeing” his brother get attacked, there is no evidence that Figueroa actually saw Aguirre attack Carlos. Carlos testified that Aguirre hit him while Figueroa was urinating in a bush and that Figueroa helped him up after he fell, but there is no evidence that Figueroa himself witnessed the surprise attack and it was not captured on the videotape surveillance. And even assuming Figueroa did witness Aguirre hitting his brother, the jury could have inferred he chased Aguirre down and stabbed him out of revenge rather than heat of passion.

10 (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1144 [passion for revenge will not reduce murder to manslaughter]; People v. Burnett (1993) 12 Cal.App.4th 469, 478 [“Heat of passion may not be based upon revenge”].) Finally, as the relevant jury instruction stated, “[i]f enough time passed between the provocation and the killing for a person of average disposition to ‘cool off’ and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis.” (CALCRIM No. 570.) The entire confrontation between Aguirre, Figueroa, and Castro took place over the course of approximately four minutes. Assuming that Figueroa was provoked by an attack on his brother when they were around the corner not within range of the surveillance cameras, he at least had time to take out a knife, chase Aguirre back around the corner and into the parking lot while swiping at him multiple times, get on top of Aguirre after he fell onto his back, then stab him in the chest. It was for the jury to determine whether this was a sufficient cooling-off period under the circumstances. Figueroa cites Dr. Malek’s testimony to argue that it would have taken at least 20 minutes for Figueroa to “return to normalcy” if he was experiencing fight or flight. But the jury was not required to accept Dr. Malek’s expert testimony on this point. The court instructed the jury that it was “not required to accept [expert opinions] as true or correct.” (CALCRIM No. 332.) Moreover, Dr. Malek’s testimony left open the possibility that Figueroa could have been upset by Carlos’s assault without necessarily having a fight-or-flight response. When asked about someone pulling out a weapon in a fight, Dr. Malek expressly said that such an action could be an instinctive fight response, but it could also be the product of a conscious decision. She explained that even when fight or flight is underway, 11 the “conscious brain” that allows for complex thought can begin functioning again within seconds of detecting a threat. While a reasonable jury could conclude from Dr. Malek’s testimony that Figueroa was only acting on instinct when he killed Aguirre, a reasonable jury could also conclude that by the time Figueroa was chasing Aguirre through the parking lot, he was capable of conscious decision-making and not acting in the heat of passion. Whether adequate provocation and heat of passion were present is fundamentally a jury question because jurors are “ ‘much better qualified to judge of the sufficiency and tendency of a given provocation, and much more likely to fix, with some degree of accuracy, the standard of what constitutes the average of ordinary human nature, than the judge whose habits and course of life give him [or her] much less experience of the workings of passion in the actual conflicts of life.’ [Citation.]” (Beltran, supra, 56 Cal.4th at p. 948.) Here, the totality of the evidence was sufficient for the jury to conclude beyond a reasonable doubt that Figueroa did not kill Aguirre under provocation that would have caused a person of average disposition to act rashly and without due deliberation. Accordingly, we will not disturb the jury’s verdict finding Figueroa guilty of second-degree murder on sufficiency of the evidence grounds.

12 II Figueroa next argues that remand is required to allow him to demonstrate his inability to pay the $10,000 restitution fine.2 We disagree. A. Additional Background Before sentencing, the probation report indicated that Figueroa had worked as a day laborer and had no income, debt, or assets. The probation officer recommended imposition of various fines and fees, including a $10,000 restitution fine under section 1202.4, subdivision (b). At the beginning of the sentencing hearing, the prosecutor and defense counsel confirmed they had each reviewed the probation report. After the prosecutor presented argument and submitted the matter at sentencing, defense counsel also presented argument. In his argument, defense counsel did not mention anything about the recommended restitution fine. He only argued that the court should consider not imposing the one- year penalty for the section 12022 enhancement. Defense counsel then concluded: “And with that, I submit.” After both sides submitted the matter, the court imposed sentence, including the fines and fees recommended by the probation officer. As noted, one of the fines the court imposed was the $10,000 restitution fine recommended by the probation officer under section 1202.4, subdivision (b). After the court had imposed sentence, defense counsel asked the court to “stay any fines and fees pending an ability to pay hearing.” The court responded as follows: “Well, I think the Penal Code sections that I cited 2 Upon conviction, a criminal defendant may be required to pay one or more of three types of restitution: a restitution fine; restitution paid directly to the victim; or restitution as a condition of probation. (People v. Giordano (2007) 42 Cal.4th 644, 651–652.) This case concerns the restitution fine, imposed on nearly every convicted defendant and paid into a statewide pool used to compensate victims. (§ 1202.4, subds. (a)(3), (b), (c), (e).) 13 provide for that. I doubt that there’s any assets or any access to the -- any access to funds that would be seizable by the [V]CB [Victim Compensation Board].” The court did not schedule any further hearing on the matter. The sentencing minutes and abstract of judgment do not indicate that any of the fines or fees were stayed. The parties agree that the trial court denied Figueroa’s request to stay the fines and fees pending a subsequent ability to pay hearing. B. Analysis Figueroa contends that the trial court erred by depriving him of his statutory right to present evidence on his inability to pay the $10,000 restitution fine under section 1202.4, subdivisions (c) and (d).3 Section 1202.4, subdivision (b) requires the court to impose a restitution fine of not less than $300 and not more than $10,000 “unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record.” Subdivision (c) states in relevant part: “A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine . . . .” Subdivision (d) provides in relevant part: “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 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 3 Figueroa raises no issue on appeal regarding any of the other fees or fines imposed by the trial court.

14 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.”

At the time of Figueroa’s sentencing hearing in September 2024, there was “a divergence among the Courts of Appeal regarding court-ordered financial obligations imposed on criminal defendants.” (People v. Kopp (2025) 19 Cal.5th 1, 9 (Kopp).) Some courts followed People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which concluded that although section 1202.4, subdivision (b) requires the imposition of a restitution fine, the trial court as a matter of due process “must stay the execution of the fine until and unless the People demonstrate that the defendant has the ability to pay the fine.” (Id. at p. 1172.) Other courts disagreed with Dueñas on this due process issue. (See, e.g., People v. Aviles (2019) 39 Cal.App.5th 1055, 1067–1068.) In Kopp, our Supreme Court resolved this conflict. The court distinguished between the imposition of punitive fines, ancillary costs, and direct victim restitution. (Kopp, supra, 19 Cal.5th at pp. 11–16.) For punitive fines, which include restitution fines imposed under section 1202.4, subdivision (b) (id. at p. 13), the Supreme Court expressly disapproved of Dueñas’s due process holding. (Id. at p. 23 & fn. 17.) The court stated: “Contrary to Dueñas’s suggestion, we do not find a due process requirement to hold an ability to pay hearing before imposing every punitive fine.” (Id. at p. 23.) The court instead concluded that the proper vehicle to challenge a punitive fine is under the excessive fines provisions of the United States and 15 California Constitutions. (Id. at pp. 9, 23–24.) Although the Supreme Court in Kopp found no due process right to an ability-to-pay hearing for punitive fines, it recognized that section 1202.4 itself provides that a defendant’s inability to pay shall be considered as one of the relevant factors when imposing a restitution fine in excess of the $300 minimum. (Id. at pp. 13–14, 18, 23–24, 30.) We conclude that the trial court committed no error by denying Figueroa’s request to “stay” the restitution fine it had just imposed “pending an ability to pay hearing.” As the trial court noted, it was essentially undisputed that Figueroa had no present ability to pay at the time of the sentencing hearing. The probation report stated that he had no income, debt, or assets. Under the statute, however, “[c]onsideration of a defendant’s ability to pay may include the defendant’s future earning capacity.” (§ 1202.4, subd. (d).) Thus, the trial court was entitled to consider Figueroa’s future prison earnings while serving his sentence of 16 years to life. (See, e.g., People v. Jones (2019) 36 Cal.App.5th 1028, 1035.) Moreover, any unpaid balance of the restitution fine will become unenforceable and uncollectable as a matter of law after 10 years. (§ 1465.9; Kopp, supra, 19 Cal.5th at p. 17.) Absent any clear indication to the contrary, “we may assume the trial court was aware of and fulfilled its statutory duty to consider ability to pay when setting the restitution fine.” (People v. Wilson (2023) 14 Cal.5th 839, 868; see also § 1202.4, subd. (d) [express findings as to the factors bearing on amount of fine not required].) The trial court properly denied Figueroa’s request for a post-sentencing hearing on his ability to pay the fine. The statute expressly provides that “[a] defendant shall bear the burden of demonstrating the defendant’s inability to pay” and “[a] separate hearing for the fine shall not be required.”

16 (§ 1202.4, subd. (d).) By its plain language, this subdivision contemplates that the defendant will come forward with evidence of inability to pay at the sentencing hearing when the fine is imposed, not at a separate post- sentencing hearing. Requiring the court to hold a separate ability-to-pay hearing after a restitution fine has already been imposed at sentencing would conflict with the Legislature’s explicit direction that a separate hearing “shall not be required.” (Ibid.) Other than the now-disapproved Dueñas line of cases, no authority requires the trial court to stay the execution of a restitution fine pending another post-sentencing hearing on the defendant’s ability to pay. We therefore reject Figueroa’s claim that the court’s refusal to hold such a hearing violated his statutory rights. Figueroa raises no constitutional claim independent of his claim of a statutory violation under section 1202.4. Although he mentions the four-part test for a violation of the excessive fines clause of the Eighth Amendment in passing in his opening brief, he does not develop the argument or analyze the four factors.4 In his reply brief, Figueroa makes clear that he is not raising any constitutional issue separate and apart from his claim of a statutory violation. He explains that his argument on appeal is “premised on a statutory breach where the statute at issue is a gatekeeper of constitutional protections” and contends that any other constitutional issue is “utterly moot” and “not justiciable until the sentencing court first considers the 4 The “ ‘touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality.’ ” (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728.) In analyzing proportionality, there are “four considerations: (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.” (Ibid.) Figueroa does not analyze these factors or make any proportionality argument in his briefing. 17 appellant’s evidence of his inability to pay . . . .” Because Figueroa has not developed any excessive fines argument independent of his statutory claim, we deem any such claim to have been forfeited. (See People v. Guzman (2019) 8 Cal.5th 673, 683, fn. 7 [due process claim forfeited by failure to “develop the argument”].) We therefore affirm the $10,000 restitution fine. DISPOSITION The judgment is affirmed.

BUCHANAN, J.

WE CONCUR:

MCCONNELL, P. J.

KELETY, J.