gno.law

People v. Keene

California Court of Appeal · D074871 · 2019-12-20 · Published

Proceeding
appeal from a judgment
Trial court
Superior Court of San Diego County · No. SCD273634
Trial judge
Polly H. Shamoon
Outcome
modified — Affirmed as modified and remanded with directions.
Area
criminal
Panel
Richard D. Huffman, Sr. (author), Judith D. McConnell

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T05:27Z · confidence high

The trial court sentenced the defendant to three years in prison and imposed fines and fees without an ability-to-pay hearing, which the appellate court found forfeited on appeal. The appellate court affirmed the judgment but modified it to strike a one-year prison prior enhancement based on a new statute effective during the appeal.

Ruling reviewedStandardThe courtThe model
Imposition of fines, fees, and assessments without an ability-to-pay hearing
“Keene has forfeited the opportunity to challenge the fines, fees and assessments imposed by the trial court.”
unclearerroragree with court
agree with court
Ineffective assistance of counsel for failing to raise ability-to-pay issue
“The record does not establish either prong of the Strickland test.”
de novonot reachedagree with court
agree with court
Application of one-year prison prior enhancement under Penal Code section 667.5, subdivision (b)
“We agree with the parties and find the appropriate remedy is to remand the case with directions to strike the one-year enhancement and resentence as may be appropriate.”
de novoerroragree with court
agree with court

Authorities

  • relied: People v. Dueñas (2019) 30 Cal.App.5th 1157 — Imposition of fines, fees, or assessments without a hearing on ability to pay denies due process; burden is on prosecution to prove present ability to pay.
  • relied: People v. Frandsen (2019) 33 Cal.App.5th 1126 — The issue of ability to pay fines and costs is subject to forfeiture if not raised in the trial court.
  • relied: People v. Kopp (2019) 38 Cal.App.5th 47 — Defendant has a right to an ability-to-pay hearing if requested; burden of proof is on the defendant; ability to pay is not focused solely on present ability.
  • relied: People v. Aguilar (2015) 60 Cal.4th 862 — Failure to object to fines or fees at sentencing results in forfeiture of the issue on appeal.
  • relied: People v. Trujillo (2015) 60 Cal.4th 850 — Failure to object to fines or fees at sentencing results in forfeiture of the issue on appeal.
  • relied: People v. Nelson (2011) 51 Cal.4th 198 — Failure to object to fines or fees at sentencing results in forfeiture of the issue on appeal.
  • relied: People v. Avila (2009) 46 Cal.4th 680 — Failure to object to fines or fees at sentencing results in forfeiture of the issue on appeal.
  • relied: Strickland v. Washington (1984) 466 U.S. 668 — Ineffective assistance of counsel requires showing of deficient performance and prejudice.
  • relied: People v. Mendoza Tello (1997) 15 Cal.4th 264 — It is difficult to establish ineffective assistance of counsel on a silent record; remedy is typically habeas corpus.
  • relied: In re Estrada (1965) 63 Cal.2d 740 — A defendant is entitled to the benefit of a new statute that reduces a penalty if the case is not final when the statute takes effect.
  • relied: People v. Gutierrez (2019) 35 Cal.App.5th 1027 — Failure to raise ability-to-pay argument in trial court results in forfeiture on appeal.
  • relied: People v. Castellano (2019) 33 Cal.App.5th 485 — Ability-to-pay argument is not forfeited if not raised in trial court (cited in concurrence as more persuasive than Frandsen).
  • relied: People v. Johnson (2019) 35 Cal.App.5th 134 — Ability-to-pay argument is not forfeited if not raised in trial court (cited in concurrence as more persuasive than Frandsen).
  • relied: People v. Jones (2019) 36 Cal.App.5th 1028 — Ability-to-pay argument is not forfeited if not raised in trial court (cited in concurrence as more persuasive than Frandsen).

The appellate opinion: sound with gaps — sound with gaps

How this analysis was made · dispute it

inconsistent with cited authority

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence medium

The trial court, after denying Keene's motion to withdraw his guilty plea to failing to register as a sex offender, struck a strike prior and sentenced him to two years plus a one-year prison prior enhancement under Penal Code section 667.5, subdivision (b), imposing a $1,500 restitution fine and $224 in fees and assessments without objection or any ability-to-pay request. The Court of Appeal held the Dueñas ability-to-pay challenge forfeited, rejected the ineffective-assistance claim on a silent record, but vacated the sentence and remanded with directions to strike the prison prior enhancement under Senate Bill No. 136 and Estrada, otherwise affirming.

Ruling reviewedStandardThe courtThe model
Imposition of a $1,500 restitution fine (Pen. Code, § 1202.4, subd. (b)) and $224 in fees and assessments without a hearing on ability to pay, challenged for the first time on appeal under Dueñas
“Keene has forfeited the opportunity to challenge the fines, fees and assessments imposed by the trial court.”
unclearcorrectagree with court
The court applied the forfeiture doctrine, following Frandsen and long-standing Supreme Court authority (Avila, Nelson, Trujillo, Aguilar) holding that ability-to-pay objections to fines are forfeited if not raised at sentencing. The result is defensible, particularly because the $1,500 restitution fine exceeded the statutory minimum and section 1202.4, subdivision (c) already permitted an inability-to-pay objection, so a statutory basis to object existed independent of Dueñas. The majority, however, did not address the contrary line of cases (Castellano, Johnson, Jones) excusing forfeiture where sentencing predated Dueñas and an objection would have been futile; the concurrence flags this gap. No standard of review was articulated, though forfeiture is a legal question.
Claim that trial counsel was constitutionally ineffective for failing to object to the fines, fees and assessments or request an ability-to-pay hearing
“The record does not establish either prong of the Strickland test. We have no idea why counsel did not raise the ability to pay issue.”
unclearcorrectagree with court
Under Strickland the defendant must show deficient performance and prejudice; on a silent record where counsel may have had tactical reasons (here, counsel was focused on overcoming the failure to appear and obtaining dismissal of the strike), direct appeal is generally not the vehicle, as People v. Mendoza Tello holds. The record contains nothing about Keene's financial circumstances, so prejudice cannot be shown. The court's analysis and authorities support its conclusion.
Imposition of a one-year prison prior enhancement under Penal Code section 667.5, subdivision (b)
“The parties agree that Keene's case will not be final as of January 1, 2020; thus, he is entitled to the benefit of the new statute.”
de novoerror (statutory interpretation)agree with court
The enhancement was lawful when imposed, but Senate Bill No. 136 narrowed section 667.5, subdivision (b) to prior terms for sexually violent offenses effective January 1, 2020; under In re Estrada an ameliorative change applies retroactively to judgments not yet final. Because the case would not be final by the effective date, striking the enhancement and remanding for resentencing is the correct remedy. The classification as 'error' reflects that the enhancement can no longer stand, not that the trial court misapplied the law at the time of sentencing.

Authorities

  • relied: People v. Dueñas (2019) 30 Cal.App.5th 1157 — Imposition of fines, fees and assessments without a hearing on ability to pay violates due process; the court there found no forfeiture. Discussed and declined to follow on forfeiture.
  • relied: People v. Frandsen (2019) 33 Cal.App.5th 1126 — An ability-to-pay challenge to fines, fees and assessments under Dueñas is forfeited if not raised in the trial court.
  • relied: People v. Kopp (2019) 38 Cal.App.5th 47 — Defendant has a right to an ability-to-pay hearing when requested, bears the burden of proving inability to pay, and the inquiry is not limited to present ability at sentencing (review granted S257844).
  • relied: People v. Aguilar (2015) 60 Cal.4th 862 — Failure to object at sentencing forfeits a challenge to the ability to pay fees and costs.
  • relied: People v. Trujillo (2015) 60 Cal.4th 850 — Ability-to-pay challenges to fees are forfeited if not raised in the trial court.
  • relied: People v. Nelson (2011) 51 Cal.4th 198 — Failure to object to a restitution fine above the minimum on inability-to-pay grounds forfeits the issue on appeal.
  • relied: People v. Avila (2009) 46 Cal.4th 680 — Ability-to-pay objection to a restitution fine is forfeited when not raised at sentencing.
  • relied: Strickland v. Washington (1984) 466 U.S. 668 — Ineffective assistance requires showing deficient performance and resulting prejudice.
  • relied: People v. Mendoza Tello (1997) 15 Cal.4th 264 — An ineffective-assistance claim generally cannot be resolved on direct appeal where the record is silent as to counsel's reasons; the remedy is habeas corpus.
  • relied: In re Estrada (1965) 63 Cal.2d 740 — Ameliorative changes in criminal statutes apply retroactively to all cases not yet final absent contrary legislative intent.
  • relied: People v. Gutierrez (2019) 35 Cal.App.5th 1027 — Cited by the concurrence: a defendant who fails to object to a restitution fine above the statutory minimum on ability-to-pay grounds forfeits a Dueñas challenge to that fine and to lesser fees.

The appellate opinion: sound with gaps — The forfeiture, Strickland, and Estrada holdings are each supported by the authorities cited, and the disposition correctly gives Keene the benefit of Senate Bill No. 136. The majority nonetheless does not engage the contrary published decisions (Castellano, Johnson, Jones) excusing forfeiture for pre-Dueñas sentencings, nor does it expressly rely on the stronger point that the $1,500 restitution fine exceeded the statutory minimum so a statutory ability-to-pay objection was always available, a rationale the concurrence supplies via Gutierrez.

How this analysis was made · dispute it

Opinion

Filed 12/20/19

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D074871

Plaintiff and Respondent, v. (Super. Ct. No. SCD273634)

DONALD G. KEENE, Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Polly H.

Shamoon, Judge. Affirmed as modified and remanded with directions.

Rachel Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.

In this case the appellant seeks, for the first time on appeal, to challenge the court's imposition of various fines, fees and assessments as part of the sentence. We will find the issue has been forfeited by failure to raise it at the sentencing hearing. Since the appellant does not challenge his conviction or any other part of his sentence we will affirm the judgment.

PROCEDURAL BACKGROUND

Donald G. Keene pleaded guilty to one count of failure to register as a sex offender (Pen. Code,1 §§ 290.012, 290.018, subd. (b)). He also admitted a strike prior (§ 667, subds. (b)-(i)) and a prison prior (§ 667.5, subd. (b)). The court indicated it would strike the strike prior at sentencing.

During the pendency of his sentencing hearing, Keene was released on his own recognizance. Thereafter, Keene failed to appear for sentencing and was ultimately arrested on a bench warrant.

At the sentencing hearing, Keene's motion to withdraw his guilty plea was denied.

The court struck the "strike" prior and sentenced Keene to the middle term of two years for the offense plus one year for the prison prior. The court also imposed a $1500 restitution fine (§ 1202.4, subd. (b)) and $224 in other fees and assessments. Keene did not object to the fines, fees or assessments; nor did he request a hearing on his ability to pay any of the imposed amounts.

Keene appeals relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).

He contends the imposition of fines, fees and assessments without first holding a hearing on his present ability to pay denied him due process. He also contends that if we find the 1 All further statutory references are to the Penal Code unless otherwise specified. 2 issue to be forfeited for failure to timely raise it, trial counsel was ineffective. We will reject his contentions and affirm.

DISCUSSION

A. The Dueñas Issue Has Been Forfeited At the core of the Dueñas opinion is its holding that imposition of fines, fees or assessments without a hearing on ability to pay denies due process. It was that court's view it was the trial court's duty to hold a hearing and thus failure to seek a hearing did not result in forfeiture. Further, the court found that the burden to prove "present" ability to pay was on the prosecution. Other courts, including this court have disagreed with Dueñas on these key principles.

In People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155, the court disagreed with Dueñas and held the issue of ability to pay was subject to forfeiture. The court reasoned that ability to pay fines and other costs have long been litigated in the courts. Forfeiture can be applied when the issue is raised for the first time on appeal.

The vast extension of due process by the Dueñas opinion certainly presents a different approach to the issue but does not amount to a wholly new concept that might justify abandonment of well-established forfeiture principles.

Since the Dueñas opinion, various courts have adopted its approach, and others, including this court, have not endorsed the Dueñas court's reasoning.

In People v. Kopp (2019) 38 Cal.App.5th 47, 95-97, review granted, November 13, 2019, S257844, we expressed some of our disagreement with the Dueñas opinion. In particular, we agreed that a defendant has a right to a hearing on ability to pay, where it is 3 requested by the defense. We held the burden of proof was on the defendant to show inability to pay the amounts assessed. We also rejected the idea that ability to pay was focused solely on the present ability at the time of sentencing.

The concept of forfeiture for failure to raise ability to pay fines, fees or assessments is well established in our caselaw prior to Dueñas. Some of the cases include People v. Aguilar (2015) 60 Cal.4th 862, 864; People v. Trujillo (2015)

60 Cal.4th 850, 853-854; People v. Nelson (2011) 51 Cal.4th 198, 227; and People v. Avila (2009) 46 Cal.4th 680, 729.

We agree with the court's holding and reasoning in People v. Frandsen, supra, 33 Cal.App.5th at pages 1153-1154, and will apply it here. We are satisfied that the doctrine of forfeiture should be applied in this case. The defendant represented by counsel was aware of the recommended amount of money proposed to be assessed against him. No objection was made, and no comments of any kind suggested a challenge to the amounts identified. Keene has forfeited the opportunity to challenge the fines, fees and assessments imposed by the trial court.

B. Defense Counsel Was Not Ineffective In somewhat of a throw-away argument, Keene contends that if we find forfeiture on appeal, then of necessity his counsel provided ineffective assistance of counsel under the Sixth Amendment. Keene bears the burden of showing counsel's representation was defective, and he was prejudiced as a result. (Strickland v. Washington (1984) 466 U.S.

668, 690.) The record does not establish either prong of the Strickland test. We have no idea why counsel did not raise the ability to pay issue. We know counsel was trying hard 4 to overcome Keene's failure to appear and to get the trial court to eliminate the strike prior. We have no idea whether the fines, fees or assessments were of any consequence.

Nothing enlightens us on the consequences of any failure of Keene in the future to pay any of the amounts.

Our Supreme Court addressed the issue of establishing ineffective assistance of counsel on a silent record in People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268.

The court found it difficult to establish error or prejudice without a full record. The court suggested the defendant's remedy, if any, must be by way of a petition for habeas corpus.

(Ibid.)

C. Senate Bill No. 136 After the briefing in this case was completed, the Governor signed Senate Bill No. 136 which changed the application of the one-year prison prior enhancement under section 667.5, subdivision (b). Effective January 1, 2020, the alleged enhancement in this case under that section would no longer be valid. We requested and received supplemental briefing on the question of whether Keene is entitled to the benefit of the new statute under the principles of In re Estrada (1965) 63 Cal.2d 740 (Estrada). The parties agree that Keene's case will not be final as of January 1, 2020; thus, he is entitled to the benefit of the new statute. We agree with the parties and find the appropriate remedy is to remand the case with directions to strike the one-year enhancement and resentence as may be appropriate.

5 DISPOSITION

The sentence is vacated, and the trial court is ordered to strike the enhancement under section 667.5, subdivision (b) and resentence the defendant accordingly.

Following resentencing the court shall amend the abstract of judgment and forward the amended abstract to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

6 Dato, J., concurring.

Consistent with this court's reasoning in People v. Gutierrez (2019) 35 Cal.App.5th 1027, I would agree that Donald G. Keene forfeited his Dueñas2 argument by failing to raise any ability-to-pay argument in the trial court. (Gutierrez, at pp. 1032- 1033.) But I cannot join my colleagues in their endorsement of the forfeiture analysis in People v. Frandsen (2019) 33 Cal.App.5th 1126, which I find considerably less persuasive than cases such as People v. Castellano (2019) 33 Cal.App.5th 485, 488-489, People v. Johnson (2019) 35 Cal.App.5th 134, 138; People v. Jones (2019) 36 Cal.App.5th 1028, 1033, and People v. Belloso (Nov. 26, 2019, B290968) __ Cal.App.5th __, [2019 Cal.App.Lexis 1181 at *24-*25].

DATO, J.

2 See People v. Dueñas (2019) 30 Cal.App.5th 1157. 1

Cites, in this corpus