Opinion
H047405
07-27-2021
THE PEOPLE, Plaintiff and Respondent, v. ERASMO FLORES, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. F1555162
Bamattre-Manoukian, J.
Defendant Erasmo Flores pleaded no contest to a count of oral copulation with a child under 14 years old by force, violence, duress, menace, or fear (former Pen. Code, § 288a, subd. (c)(2)(B)) and a count of lewd or lascivious act on a child under 14 years old by force, violence, duress, menace, or fear (§ 288, subd. (b)(1)). Before sentencing, Flores moved to withdraw his plea, which the trial court denied. The trial court subsequently sentenced Flores to the agreed upon term of 15 years in prison.
Unspecified statutory references are to the Penal Code. Former section 288a was renumbered section 287, effective January 1, 2019. There was no substantive change to subdivision (c)(2)(B).
On appeal, Flores argues that the trial court abused its discretion and violated his due process rights by denying his motion to withdraw his plea. He further argues that the fines imposed by the trial court must be stayed under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). As we explain, we find no merit in Flores's contentions and affirm the judgment.
I. Background
1. The Information
On January 15, 2016, Flores was charged by information with a count of oral copulation or sexual penetration with a child 10 years of age or younger (§ 288.7, subd. (b); count 1).
Since Flores pleaded no contest to the offenses, we derive our factual summary from the probation report, which was based on a report prepared by the Santa Clara County Sheriff's Office.
On October 21, 2013, a deputy was dispatched following a report that a child had been molested sometime in 2011 or 2012. The deputy interviewed the eight year old victim and the victim's mother. The victim's mother said that she had been friends with Flores for three years. On October 18, 2013, the victim told her mother that Flores had molested her. The molestation occurred at the victim's home when the victim's mother was at the store and the victim's mother's friend was in the shower. The victim told the deputy that Flores had asked her to take her pants and underwear off, and he had touched her “ ‘privates' ” with his hands and had put his penis in her vagina. Flores had also licked the victim's vagina and had taken two or three photographs of the victim's “ ‘private' area” with his cell phone. According to the victim, Flores stopped the assault when he heard the victim's mother's friend turn off the shower. The victim said that she had been afraid to report the molestation because Flores had told her that he would kill her if she told anyone.
In a pretext phone call made on February 26, 2014, Flores denied molesting the victim and said that the victim was lying.
3. The Plea
On April 9, 2018, Flores signed and initialed an advisement of rights, waiver, and plea form. Flores initialed next to the lines indicating that he understood that he would be pleading to a count of violating former section 288a, subdivision (c)(2)(B) and a count of violating section 288, subdivision (b)(1). Flores initialed next to the line that read, “I understand that the maximum sentence for the charge(s) to which I am pleading guilty or no contest to, is a state prison term of 15 years and [zero] months.” The “15” was handwritten on the form. Flores also initialed next to the line that read, “The prosecution, my attorney, and I have agreed that if I plead guilty or no contest to the charge(s) and admit the allegation(s) and prior convictions listed above, the Court will sentence me to: [¶] State prison for 22 years.” The “22” was also handwritten on the form. Finally, Flores initialed next to the line that said, “I understand count(s) Two and Three is/are serious or violent felony/felonies, and each qualifies as a ‘strike.' ”
That same day, the trial court held a hearing and granted the prosecutor's motion to amend the information to allege two additional counts, oral copulation with a child under 14 years old by force, violence, duress, menace, or fear (former § 288a, subd. (c)(2)(B); count 2), and lewd or lascivious act on a child under 14 years old by force, violence, duress, menace, or fear (§ 288, subd. (b)(1); count 3).
Thereafter, Flores waived his right to a jury trial and pleaded no contest to counts 2 and 3. Before Flores entered his plea, the trial court asked Flores if his “initials and signature” were the ones on the waiver form. Flores answered, “Yes.” The trial court asked Flores, “Did you go over the form carefully with your attorney?” Flores answered, “Yes.” The trial court then asked, “Do you have any questions?” Flores answered, “No.” The trial court referred the matter to the probation department and asked, “Has Mr. Flores been to prison before?” Flores answered, “Yes, ” and said he had been in prison “[a]bout 10, 15 years ago.”
4. The Motion to Withdraw the Plea and Flores's Declaration
On August 31, 2018, Flores's trial counsel, Jamie Harris, moved to be relieved as Flores's attorney. The trial court granted the motion, and Flores was appointed a public defender.
On February 20, 2019, Flores filed a motion to withdraw his plea under section 1018. According to the motion, Flores had been suffering from “medical complications due to a stroke and low pressure” at the time he entered his plea, and Harris “gave him erroneous information regarding his entitlement to conduct credits under the law.”
Flores attached a declaration in support of his motion. According to his declaration, Flores had retained Harris, a private attorney, to represent him. For three years, Flores believed that Harris was preparing his case for trial and was ready to defend him in court. On April 9, 2018, the day before the case was scheduled to proceed to trial, Harris came to visit Flores at his holding cell. Harris, who had some papers in her hand, told Flores that he had a plea deal “for 15 years, with half time.” Flores repeatedly told Harris that he did not want to take the deal and wanted to proceed to trial. Flores and Harris went back and forth for 15 minutes about Flores's decision to proceed to trial, and whenever Flores said he did not want to take the plea deal, Harris said that Flores could not go to trial because he would lose. Harris also stated, “repeatedly and emphatically, ” that Flores would “get life after trial, ” and Flores should “consider how worried [his] mother would be about [him] if [he] were sentenced to life in prison.”
According to Flores's declaration, he suffered a stroke two years ago when he was incarcerated. Due to the stroke, the left side of his body was paralyzed, he lost his vision in his right eye, and he retained only 40 percent of his vision in his left eye. Although Flores had regained mobility to the left side of his body, he required a wheelchair. He had also been diagnosed with low blood pressure that could be exacerbated by physical exertion.
Flores stated that at the time of the change of plea hearing, he was transported to the courthouse in the early morning hours at around 5:00 a.m., before he had eaten. Flores had felt his blood pressure drop, and he had difficulty moving and felt dizzy. The 15 minute conversation that Flores had with Harris was “incredibly stressful, ” and Harris had become “increasingly aggressive the more [Flores] expressed [his] intention to reject the plea offer.” Flores disclosed that he had felt his left eye “fail, ” which can happen when his blood pressure gets too low.
Shortly after their conversation, Harris returned with some paperwork and told Flores to read and sign it. Flores told Harris that he could not read the paper and asked Harris to read it for him. Harris “quickly read through the paper, mumbling most of the time making it difficult for [Flores] to understand her.” Harris pointed to different parts of the form and told Flores to sign. Flores “was unaware of what [he] was signing” at the time because he was “tired, weak, and felt sick.” Harris told Flores not to worry and that he was “only getting one strike and that the strike would not hurt [him].” Afterwards, Harris left the holding cell and told him that his case would be called shortly.
According to Flores, Harris returned several minutes later and told him that he would be pleading to two strike convictions, not one. Flores asked her why he was pleading to two strikes when she had just told him that he would be pleading to one strike. Harris “did not tell [him] what the charges were, only that they were strikes.” She then reiterated that Flores should not worry because the strikes would not affect him. Harris gave Flores a second set of papers to sign, and Flores “signed where she told [him] to sign.” Shortly thereafter, Flores was brought into the courtroom. Flores's recollection of what happened inside the courtroom was “limited, ” and he felt “dizzy and faint, and was having trouble seeing from [his] left eye.” Flores claimed that “[i]t all happened so fast and before [he] knew it, [he] was back in Elmwood where [he was] currently housed.”
Flores asserted that he later learned that the strike convictions that he had pleaded to were not eligible for “half time, ” which is contrary to what Harris had told him before he entered his plea. According to Flores, Harris's assertion that the strike convictions would not impact him was untrue because the fact that his strike offenses were violent offenses “severely impacts the amount of credits [he] receive[s], both locally in the county jail and in state prison.” Flores declared that “[i]n succumbing to Ms. Harris' pressure to take a plea deal, [he] relied heavily on her representations that the strikes would not affect [him], and [he] would receive ‘half time' for [his] time in custody.” Flores insisted that had he been properly advised, he would have rejected the plea offer and would have elected to go to trial.
The prosecutor opposed Flores's motion to withdraw his plea and argued that Flores had failed to establish by a strong showing of clear and convincing evidence that he had acted outside his exercise of free judgment or that he had been unable to think clearly and logically when he entered his plea. The prosecutor noted that Flores did not have Harris submit a declaration to corroborate his assertions, and he provided only his own declaration as evidence, which was “clearly made from a party that has an obvious interest in the outcome of the proceedings.”
5. The Hearing on the Motion to Withdraw the Plea
On April 5, 2019, the trial court held a hearing on Flores's motion to withdraw his plea. At the hearing, defense counsel marked for identification seven pages of Flores's medical records, which described Flores's medical issues and the medications he had been taking at the time that he entered his plea. The documents indicated that Flores suffered from “ ‘[d]iabetes with neurological manifestations' ” between 2016 and 2018.
The medical records were marked for identification as an exhibit by the trial court during the change of plea hearing. The records are not included in the record on appeal, and there is no indication that the trial court admitted the records into evidence. According to the clerk's minutes of the change of plea hearing, the records were subsequently released to Flores's defense counsel.
Defense counsel argued that Flores signed his declaration in support of his motion to withdraw his plea under penalty of perjury, and he asserted in his declaration that he started to “feel complications from [his] diabetes, ” including dizziness, during his conversation with Harris about accepting the plea agreement. On the morning that he accepted the plea, he had not yet taken his medications. According to Flores's declaration, everything that happened was a blur and Flores did not remember filling out the plea form or even sitting in court and entering his plea.
The prosecutor argued that Flores had “only provided [his] own statements and medical reports that suggest he may have had a cognitive impairment around the time of his plea sentence, ” and Flores did not provide a declaration from Harris pertaining to the allegedly erroneous advice that he had received from her. Moreover, the prosecutor argued that Flores was able to clearly answer the questions posed by the trial court during the change of plea hearing. The prosecutor pointed out that Flores was able to answer that he had previously served time in prison approximately 10 or 15 years ago when asked by the trial court.
The trial court asked defense counsel whether there was any significance to the fact that Harris did not submit a declaration on Flores's behalf. Defense counsel argued, “I don't believe that any attorney would sit here and say, under penalty of perjury, ‘I took advantage of my client's disability, and I misadvised him on the law.' [¶] And because I don't believe that Ms. Harris is prepared to say that, we did not present any [d]eclaration from [her].”
After considering the parties' arguments, the trial court denied Flores's motion, concluding that Flores had “not met his burden o[f] proof to withdraw the plea.” The trial court stated, “I remember the Flores case reasonably well, just because I think everyone involved, it took us a long time to get this case to be in the position to go for trial.” The trial court noted that Flores had executed a waiver form, and one of the boxes that Flores had initialed on the form stated, “ ‘I am thinking clearly.' ” Flores also initialed next to a line that said, “ ‘I have not recently used any medication, alcohol or drug that is affecting my ability to understand the form or the consequences of my plea.' ” The trial court further observed that Flores “initialed each of the charges that he was pleading to, ” and initialed and acknowledged that counts 2 and 3 were serious and violent felonies that qualified as strikes.
Furthermore, the trial court stated: “And as the People, I think, correctly, point out, I had a dialogue with the defendant, and that is very clearly indicated on the transcript, as I do with every defendant. [¶] And I ask them if they have-I asked him specifically, after amendments were done, I asked him, before he entered his plea, if it sounded right when we stated the disposition. [¶] He responded, ‘Yes.' [¶] And I asked him if that was all right with him. [¶] He said, ‘Yes.' [¶] I asked if these were his initials and signature on the form. [¶] He responded, ‘Yes.' [¶] I asked him if he had gone over it carefully with his attorney. [¶] He said, ‘Yes.' [¶] I asked him if he had any questions. [¶] He said, ‘No.' [¶] And that was before the plea and before the arraignment. [¶] And as the DA pointed out, there was at least one other question that was initially directed at the defendant. I asked, had he been to prison before. That was mostly to concern whether-what sort of probation report would have to be generated. [¶] And the defendant responded that he had been there about 10 or 15 years ago. And I did order a full report in any event. [¶] And consequently, that dialogue and the waiver form are designed to help us determine if a defendant is impaired or lacks the full understanding necessary for him to waive his Constitutional rights and enter into what he apparently would think would be a favorable disposition in the matter.”
The trial court acknowledged Flores's contrary declaration as follows: “I certainly have read and considered the defendant's [d]eclaration, where he naysays some of the conclusions that I've drawn here. [¶] But it-beyond the slight corroboration in the medical records, I simply have credibility issues. [¶] I do not accept or value the defendant's statement that he was not properly advised or was not thinking clearly, especially in light of the statements to me and the signatures and initials he did on the waiver form.”
Defense counsel noted that Flores wanted “to augment the record and inform the Court that at the time that they were signing the plea form, ... he could not see the form, could not read the form.” The trial court responded, “Although I have reached my decision, it is worth noting that, in examination [sic] the waiver form as it currently exists in the file, there's nothing that appears to my layperson's eyes to suggest a visual impairment: The initials are all centered in the boxes where initials would normally go; the signature of the defendant appears on the line where a defendant's signature would go. It does not suggest someone with a visual impairment, but I'm certainly not an expert in that regard. [¶] The decision remains.”
6. The Sentencing
On August 1, 2019, the trial court sentenced Flores pursuant to the plea agreement to a total term of 15 years in prison. Flores's sentence was composed of a midterm of 10 years for oral copulation with a child under 14 years old by force, violence, duress, menace, or fear (former § 288a, subd. (c)(2)(B); count 2) and a mitigated term of five years for committing a lewd or lascivious act on a child under 14 years old by force, violence, duress, menace, or fear (§ 288, subd. (b)(1); count 3). Flores received a total of 1, 790 days of credit composed of 1, 557 actual days and 233 days of conduct credit. The trial court imposed a $3,000 restitution fine under section 1202.4, subdivision (b). The trial court also imposed a $300 sex offender fine under section 290.3 plus $930 in penalty assessments.
Flores appealed and requested a certificate of probable cause, which the trial court granted.
II. Discussion
1. Motion to Withdraw the Plea
Flores argues that the trial court abused its discretion and violated his due process rights when it denied his motion to withdraw his plea. Flores argues that there was clear and convincing evidence that his medical condition and partial blindness affected his ability to enter into a plea agreement. The Attorney General argues that Flores merely repeats arguments that the trial court considered and reasonably rejected, and that no abuse of discretion appears on the record.
A. General Principles and Standard of Review
Section 1018 allows the trial court to grant a defendant's request to withdraw his or her plea of guilty or no contest “before judgment... for a good cause shown.” This section must be “liberally construed... to promote justice.” (Ibid.) Good cause exists when “[m]istake, ignorance or any other factor” overcomes the exercise of free judgment. (People v. Cruz (1974) 12 Cal.3d 562, 566.)
A plea cannot be withdrawn simply because the defendant has changed his or her mind (People v. Nance (1991) 1 Cal.App.4th 1453, 1456), or because the plea was made reluctantly or unwillingly by the defendant (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208 1209).
“The defendant has the burden to show, by clear and convincing evidence, that there is good cause for withdrawal of his or her guilty plea.” (People v. Breslin (2012) 205 Cal.App.4th 1409, 1415 1416.) In ruling on a motion to withdraw a plea, the trial court may consider its own observations of the defendant, as well as “take into account the defendant's credibility and his [or her] interest in the outcome of the proceedings.” (People v. Ravaux (2006) 142 Cal.App.4th 914, 918.) “In determining the true facts the trial court is not bound by the uncontradicted statements of the defendant.” (People v. Brotherton (1966) 239 Cal.App.2d 195, 201 (Brotherton).) When the evidence is contradictory, the trial court is “entitled to resolve the factual conflict against” the defendant. (People v. Hunt (1985) 174 Cal.App.3d 95, 104 (Hunt).) “Where two conflicting inferences may be drawn from the evidence, it is the reviewing court's duty to adopt the one supporting the challenged order.” (Ibid.)
We review the trial court's denial of a motion to withdraw a plea for an abuse of discretion. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254 (Fairbank).) We adopt the trial court's factual findings if supported by substantial evidence. (Ibid.)
B. Analysis
After a review of the record, we conclude that the trial court did not abuse its discretion when it denied Flores's motion to withdraw his plea agreement.
Here, the record reflects that the trial court relied on its personal observations of Flores's demeanor and behavior during the change of plea hearing when it made its factual finding that Flores understood the consequences of his plea and was not visually or otherwise impaired. The trial court noted that during the change of plea hearing, it had a colloquy with Flores and had asked him whether his signatures and initials appeared on the waiver form, whether he had reviewed the form “carefully” with his attorney, and whether he had any questions for the trial court. Flores was able to answer all of the trial court's questions. The trial court also noted that it had asked an additional question about whether Flores had previously been in prison before, and Flores cogently and accurately answered that he had been in prison about 10 or 15 years ago. The trial court's observations of Flores at the change of plea hearing constitutes substantial evidence in support of the conclusion that the plea was knowing, intelligent, and voluntary. (See Fairbank, supra, 16 Cal.4th at p. 1254.)
During the hearing on the motion to withdraw the plea, the prosecutor noted that Flores had previously served time in prison in 2009 and the change of plea hearing took place in 2018.
Moreover, the trial court observed that the presentation of the signature and initials on Flores's waiver form did not suggest that Flores suffered from a visual impairment at the time he signed the form. Flores accurately signed on the lines and his initials appeared centered in the boxes on the waiver form.
Flores argues that there was evidence that his medical condition affected his ability to enter the plea voluntarily. In support of his claim, Flores relies on his declaration and the medical documents that he provided, which the trial court acknowledged “slight[ly] corroborat[ed]” Flores's declaration. However, the fact that there was conflicting evidence in the record regarding Flores's visual impairment did not require the trial court to rule in his favor and grant the motion. The trial court was not required to accept as true Flores's declaration detailing his medical condition. (Brotherton, supra, 239 Cal.App.2d at p. 201.) The record demonstrates that the trial court found that Flores's assertions in his declaration were contrary to the trial court's recollection of his behavior during the change of plea hearing. The trial court expressly considered Flores's declaration and his medical records but concluded that it “simply ha[d] credibility issues” and did “not accept or value [Flores's] statement that he was not properly advised or was not thinking clearly, especially in light of the statements [made to the court] and the signatures and initials he did on the waiver form.” The trial court was “entitled to resolve the factual conflict against” Flores. (Hunt, supra, 174 Cal.App.3d at p. 104.)
On appeal, Flores argues that errors in the waiver form itself support his claim that he suffered from a visual impairment, was unable to carefully review the form, and was merely initialing the boxes as Harris directed. The waiver form erroneously stated that the maximum sentence for counts 2 and 3 was 15 years and that Flores agreed to a stipulated sentence of 22 years. In fact, the waiver form should have stated that the maximum sentence for counts 2 and 3 was 22 years and that Flores agreed to a stipulated sentence of 15 years. Flores claims that this error strongly suggests that he could not read the waiver form and had not been adequately informed of the meaning and significance of initialing and signing it.
Flores, however, did not raise this argument to the trial court. Flores's written motion to withdraw his plea agreement did not mention any errors on his waiver form. Likewise, Flores's declaration did not cite to any errors in the waiver form or claim that he was misadvised about his sentence. During the hearing on the motion to withdraw the plea, defense counsel did not argue that errors in the waiver form supported Flores's claim that he was visually impaired and good cause existed to withdraw his plea. In fact, the errors in the waiver form were not raised or mentioned at all during the sentencing hearing when Flores was sentenced to the agreed upon term of 15 years in prison. Accordingly, we find that Flores has forfeited this argument on appeal. (See People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13 [“[w]hen a party does not raise an argument at trial, he may not do so on appeal”], overruled on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 421.)
Flores does not argue that his trial counsel rendered ineffective assistance by failing to argue that the error in the plea form demonstrated that there was good cause for him to withdraw from his plea agreement.
Additionally, even if Flores's arguments pertaining to the errors on the waiver form were preserved for appellate review, we are not persuaded by Flores's claim that substantial evidence does not support the trial court's determination that he did not suffer from a visual impairment or that he was prohibited from thinking clearly when he entered his plea agreement. The error on the waiver form, like Flores's declaration and medical records, provided conflicting evidence over whether Flores's medical condition impaired his ability to exercise free judgment. The trial court, however, observed and interacted with Flores during the change of plea hearing and was able to assess his demeanor. The trial court also observed and interacted with Flores during the subsequent hearing on his motion to withdraw the plea, which enabled the court to evaluate Flores's credibility. In light of this record, we find that the trial court's factual finding that Flores was not visually impaired and was thinking clearly was supported by substantial evidence. (See Fairbank, supra, 16 Cal.4th at p. 1254.) As a result, the trial court did not abuse its discretion when it denied Flores's motion to withdraw his plea.
Flores also argues that the erroneous denial of his motion to withdraw his plea violated his federal due process rights. Since we do not find that the trial court's denial of his motion to withdraw his plea was an abuse of discretion, Flores's due process claim fails.
2. Ability to Pay Fines and Fees
Flores argues that the trial court erred when it imposed the restitution fine (§ 1202.4, subd. (b)) and the sex offender fine (§ 290.3) plus penalty assessments without determining his ability to pay, relying on Dueñas, supra, 30 Cal.App.5th 1157.
A. Background
At the sentencing hearing on August 1, 2019, the trial court imposed a $3,000 restitution fine under section 1202.4, subdivision (b), a $300 sex offender fine under section 290.3 plus $930 in penalty assessments. The trial court waived the AIDS education fine, court security fee, criminal conviction assessment fee, and the criminal justice administration fee. Defense counsel asked the trial court if it would consider staying the sex offender fine under section 290.3. The trial court responded, “Counsel, I reduced it by two thirds with the expectation that he'll be able to work while in custody and money will be collected that can pay that so I won't reduce it any further.”
B. Dueñas
In Dueñas, the Court of Appeal reversed an order imposing the court operations assessment (§ 1465.8) and the court facilities assessment (Gov. Code, § 70373) after concluding that it was “fundamentally unfair” and violated due process under the federal and California Constitutions to impose the assessments without a determination of the defendant's ability to pay. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The Dueñas court also concluded that the execution of a restitution fine under section 1202.4 “must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine.” (Dueñas, supra, at p. 1164.)
C. Analysis
We conclude that Flores has forfeited his claims of error because his sentencing hearing took place on August 1, 2019, several months after Dueñas was decided. In general, a defendant who fails to object to the imposition of fines, fees, and assessment at sentencing forfeits the right to challenge those fines, fees, and assessments on appeal. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864; People v. Trujillo (2015) 60 Cal.4th 850, 853 854.) At the time of the sentencing hearing, Dueñas had already been decided and there is no reason why Flores could not have requested an ability to pay hearing on his fines based on Dueñas. Flores's failure to raise this issue below with respect to his restitution fine and his sex offender fine has forfeited his arguments on appeal.
Flores's claims with respect to the restitution fine are also forfeited because he did not request an ability to pay determination even though he had the right to do so. The trial court in this case imposed a $3,000 restitution fine under section 1202.4, subdivision (b), well above the statutory minimum amount of $300 (§ 1202.4, subd. (b)(1)), but Flores did not request an ability to pay hearing. (§1202.4, subd. (d) [when setting restitution fine in excess of minimum, the court shall consider relevant factors including a defendant's inability to pay]; see People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 [defendant was obligated to object to restitution fine above statutory minimum and objection on that ground would not have been futile at the time of the sentencing hearing].)
Flores argues that because he challenged the sex offender fine below, his argument regarding the sex offender fine is preserved for appeal. During the sentencing hearing, Flores's counsel requested that the trial court consider staying the sex offender fine. However, contrary to Flores's argument that the trial court made no ability to pay finding, the record reflects that the trial court concluded that Flores had the ability to pay the sex offender fine under section 290.3. After defense counsel requested that the fine be stayed, the trial court responded that it had already “reduced [the fine] by two thirds with the expectation that [Flores will] be able to work while in custody and money will be collected that can pay that [fine].” In other words, the trial court determined that Flores had the ability to pay the fine using his probable future prison wages. (People v. Burnett (2004) 116 Cal.App.4th 257, 261 [trial court may consider a “defendant's potential future income” and all relevant evidence when determining ability to pay sex offender fine under § 290.3].) Flores does not argue that the trial court's finding is not supported by sufficient evidence.
Section 290.3, subdivision (a) specifies that a sex offender fine shall be imposed “unless the court determines that the defendant does not have the ability to pay the fine.”
Moreover, even if we assume that Flores's claims regarding the restitution fine and the sex offender fine are not forfeited, his ability to pay arguments are based on Dueñas. The Courts of Appeal, including panels of our own court, have reached conflicting conclusions on whether Dueñas was correctly decided, and the issue is currently before the California Supreme Court. (See, e.g., People v. Kopp (2019) 38 Cal.App.5th 47, 95 [agreeing with Dueñas that due process requires an ability to pay determination before imposition of court operations or court facilities assessments], review granted Nov. 13, 2019, S257844; People v. Santos (2019) 38 Cal.App.5th 923, 927 [applying “the principles articulated [in Dueñas]”]; id. at pp. 935 939 (dis. opn. of Elia, J.); People v. Adams (2020) 44 Cal.App.5th 828, 832 [concluding that “Dueñas was wrongly decided”]; id. at pp. 832 833 (dis. opn. of Premo, J.); People v. Petri (2020) 45 Cal.App.5th 82, 90 [finding that Dueñas was not “persuasive”]; id. at p. 95 (conc. & dis. opn. of Premo, J.).) Pending the California Supreme Court's decision in Kopp, we continue to adhere to the position that Dueñas was incorrectly decided.
For these reasons, we conclude that the trial court did not err when it imposed the restitution fine or the sex offender fine.
III. Discussion
The judgment is affirmed.
WE CONCUR: ELIA, ACTING P.J.DANNER, J.