Opinion
B312305
07-12-2022
THE PEOPLE, Plaintiff and Respondent, v. DANIEL G. ESQUIVEL, Defendant and Appellant.
Patricia S. Lai, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, and Eric J. Kohm, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA084395-01, Kathryn A. Solorzano, Judge. Affirmed with directions.
Patricia S. Lai, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, and Eric J. Kohm, Deputy Attorney General, for Plaintiff and Respondent.
SEGAL, J.
INTRODUCTION
This is the third time this court has reviewed a judgment against Daniel Esquivel for the attempted murder of Jose Macias. In this appeal, Esquivel challenges the trial court's imposition of a 20-year sentence enhancement under Penal Code section 12022.53, subdivision (c), a restitution fine of $2,000, and certain assessments. We conclude that the trial court did not prejudicially err in imposing the sentence enhancement and that Esquivel forfeited his challenge to the restitution fine and assessments. Therefore, we affirm.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Esquivel on Two Counts of Attempted Murder, and the Trial Court Sentences Him
The People charged Esquivel with two counts of attempted murder (§§ 187, subd. (a), 664) after he fired multiple shots into a crowd of people gathered outside a house, injuring Macias (count 1) and Carlos Juarez (count 2). In connection with both counts, the People alleged Esquivel personally used a firearm, personally and intentionally discharged a firearm, and personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (b)-(d)).
The jury convicted Esquivel on both counts, but found only the attempted murder of Macias was willful, deliberate, and premeditated (§ 664, subd. (a)). Additionally, for both counts the jury found true all the firearm allegations under section 12022.53, subdivisions (b) through (d).
For the attempted murder of Macias, the trial court sentenced Esquivel to life in prison, plus 25 years to life for the firearm enhancement under section 12022.53, subdivision (d). For the attempted murder of Juarez, the court sentenced Esquivel to a term of five years, plus 25 years to life for the firearm enhancement under section 12022.53, subdivision (d). (People v. Esquivel (Feb. 13, 2018, B269545) [nonpub. opn.] (Esquivel I).) The court imposed and stayed execution of the sentence enhancements under section 12022.53, subdivisions (b) and (c).
B. This Court Affirms the Judgment, Vacates Its Decision, Reverses the Conviction for the Attempted Murder of Juarez, and Remands for a New Trial on Count 2 and To Exercise Discretion Whether To Impose the Firearm Enhancements
Esquivel appealed his conviction for the attempted murder of Juarez, arguing among other things the trial court erred in instructing the jury on the so-called kill zone theory because the evidence did not support that instruction. In an unpublished decision, we affirmed the judgment of conviction but remanded for resentencing. (Esquivel I, supra, B269545.)
The Supreme Court granted Esquivel's subsequent petition for review (People v. Esquivel, review granted Sept. 11, 2019, S247832), and later decided People v. Canizales (2019) 7 Cal.5th 591, which limited the kill zone theory to circumstances "in which there is sufficient evidence from which the jury could find that the only reasonable inference is that the defendant intended to kill (not merely to endanger or harm) everyone in the zone of fatal harm." (Id. at p. 597.) Having decided Canizales, the Supreme Court transferred Esquivel's appeal back to this court with directions to vacate our decision in Esquivel I and reconsider the cause in light of Canizales. On reconsideration, we held the trial court prejudicially erred in instructing the jury on the kill zone theory, reversed Esquivel's conviction for the attempted murder of Juarez, and remanded for a new trial on that charge. (People v. Esquivel (Dec. 23, 2019, B269545) [nonpub. opn.] (Esquivel II).)
We also directed the trial court to exercise its discretion whether to strike the firearm enhancements. We did this because, when the trial court sentenced Esquivel in December 2015, section 12022.53, subdivision (h), prohibited the court from striking the enhancements under that statute. The Legislature, however, later amended section 12022.53 to give the trial court discretion to strike the firearm enhancements in the interest of justice (see Sen. Bill No. 620 (2017-2018 Reg. Sess.) § 1). We held those amendments applied retroactively to a defendant like Esquivel whose appeal was not final on the law's effective date. (Esquivel II, supra; see People v. Johnson (2019) 32 Cal.App.5th 938, 941-942; People v. Billingsley (2018) 22 Cal.App.5th 1076, 1079-1080.)
C. The Trial Court Dismisses Count 2 and Resentences Esquivel, and Esquivel Appeals Again
On July 30, 2020 the trial court granted the People's motion to dismiss count 2 (the attempted murder of Juarez) and continued the resentencing hearing to November 18, 2020. On that date, the court again continued the hearing to February 1, 2021. Meanwhile, in December 2020 the new Los Angeles County District Attorney issued sentencing policies, including Special Directive 20-08, which provides "that 'sentence enhancements or other sentencing allegations . . . shall not be filed in any cases and shall be withdrawn in pending matters.'" (Nazir v. Superior Court of Los Angeles County (June 2, 2022, B310806) 79 Cal.App.5th 478, ___ [2022 WL 1793245, p. 2] (Nazir).) "The Special Directive explained that 'the current statutory ranges for criminal offenses alone, without enhancements, are sufficient to both hold people accountable and also to protect public safety' and that 'studies show that each additional sentence year causes a 4 to 7 percent increase in recidivism that eventually outweighs the incapacitation benefit.'" (Ibid.) In general, "Special Directive 20-08 instructed deputy district attorneys in pending cases to move to dismiss or withdraw sentence enhancement allegations." (Ibid.)
On February 1, 2021 counsel for Esquivel asked the court to continue the sentencing hearing so that Esquivel could attend. Counsel for Esquivel then engaged in the following discussion with the court concerning the firearm enhancements:
"[Counsel for Esquivel]: There's a gun enhancement and I believe the People have a motion. [Esquivel's] okay with going forward with the enhancement today, with the dismissal, and then continuing resentencing.
"The Court: Well, he's been convicted by a jury of the use of the gun. So, the sentencing is with the court, it's not with the People. He's already been convicted by a jury. So, the [district attorney's] new policies that apply to open cases don't apply. . . . So, at this point we'll have to take it one step at a time but your request to dismiss the gun allegation is denied.
"[Counsel for Esquivel]: I believe . . . this case was pending when the new directives came out and I believe the new directives are
"The Court: The new directives don't govern the court, counsel. I don't work for [the district attorney]. I don't mean to be disrespectful, but [Esquivel] was convicted many years back. . . . He's been sentenced on that gun allegation. It's been upheld. There is no change that was ordered or directed by the court of appeal. So, at this point he's been convicted of that. The court will adjust the sentence, which will reflect the change with regard to reversal and the choice on the side of the prosecution, but that's it."
After additional discussion concerning Esquivel's presence at the resentencing hearing, the trial court stated, "The motion to dismiss a gun charge for the reasons I've just stated is denied." The court continued the resentencing hearing to March 10, 2021.
On March 4, 2021 Esquivel filed a "brief in support of remittitur," asking the court to dismiss the firearm enhancements under section 12022.53, subdivisions (b) through (d), for three reasons. First, he argued imposing any of the enhancements under section 12022.53 would violate his right to due process because a "defendant convicted of the exact same conduct as Mr. Esquivel after the enactment of [the district attorney's new sentencing directives] would not face the same sentencing consequences." Second, Esquivel argued he had bettered himself and received "rehabilitative credit" in prison by completing a victim impact program, an anger management program, a prison ministry program, a 30-day educational course, and other programs. Finally, Esquivel argued his term of life in prison on count 1 was sufficient "to meet [the] goals of punishment and public safety." Esquivel's brief stated: "It is the policy of the Los Angeles County District Attorney's Office that the current statutory ranges for criminal offenses alone, without enhancements, are sufficient to both hold people accountable and also to protect public safety." The brief quoted (without citing) two pages of Special Directive 20-08 almost verbatim.
At the March 10, 2021 hearing the trial court stated it was inclined to reduce Esquivel's sentence on the firearm enhancement on count 1 from 25 years to life under section 12022.53, subdivision (d), to 20 years under section 12022.53, subdivision (c). The People did not oppose that tentative decision. Counsel for Esquivel restated Esquivel's equal protection argument based on Special Directive 20-08, argued Esquivel had made "extreme efforts towards reform and rehabilitation" as described in his brief, and asserted that imposing any sentence for the firearm enhancement would be "overkill" because Esquivel was already serving "a significant sentence" on count 1.
The court rejected Esquivel's equal protection argument, explaining the district attorney's sentencing policies "are not the law" and instead "control how the prosecution intends to proceed." The court stated that, "without regard to the [district attorneys' Special] Directives," the court would determine whether to impose a firearm enhancement by following "the traditional rules of sentencing." The court said it would "focus on the Rules of Court with regard to the enhancement," which included assessing the mitigating and aggravating circumstances. The court identified circumstances relevant to the crime, including Esquivel's motive, the severity of injuries Esquivel inflicted, the recklessness of his actions, his intent to kill Macias, and the additional act of violence against Juarez. The court decided not to reimpose the enhancement under section 12022.53, subdivision (d), because Esquivel was not motivated by a gang dispute. "[F]or that reason," the court stated, "I believe the life term on the gun is not necessary in order for . . . this court to honor the objectives of sentencing . . . . I don't need to go into all of them at this point. But I do find that the number of shots, the fact that somebody else was shot, makes this more appropriately a 20-year sentence rather than a 10-year sentence. Those reasons also, from my perspective, indicate that this is not a case where the court should exercise the court's discretion to strike out all of the gun enhancements."
The trial court acknowledged Esquivel had made "progress . . . while in prison in terms of classes that [he was] taking there which are geared toward rehabilitation." The court stated, however, it had no information about Esquivel's general conduct in prison, such as whether Esquivel had violated any "prison rules."
The trial court imposed a term of 20 years under section 12022.53, subdivision (c), and stayed execution of the enhancements under section 12022.53, subdivisions (b) and (d). Consistent with the original sentencing hearing in 2015, the court imposed a restitution fine of $2,000, and on each count a court operations assessment (described in the abstract of judgment as a "court security fee") of $40 and a criminal conviction assessment of $30. The abstract of judgment filed March 23, 2021 and corrected May 5, 2021 reflected the same restitution fine, as well as the same assessments, even though Esquivel was convicted on only one count. Esquivel timely appealed.
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Imposing the 20-Year Firearm Enhancement Under Section 12022.53, Subdivision (c), and Any Error Was Harmless
Esquivel contends the trial court abused its discretion by refusing on February 1, 2021 to consider a motion to dismiss the firearm enhancements "on its merits" and by failing on March 10, 2021 to consider Esquivel's progress toward rehabilitation in deciding whether to impose the firearm enhancement under section 12022.53, subdivision (c). We conclude that any error on the first point was harmless and that there was no error on the second point.
1. Applicable Law and Standard of Review
"In determining whether to dismiss a firearm enhancement under section . . . 12022.53, a court considers the same factors considered '"when handing down a sentence in the first instance."'" (Nazir, supra 79 Cal.App.5th at p. [p. 8]; see People v. Parra Martinez (2022) 78 Cal.App.5th 317, 321 ["the factors the trial court must consider when deciding whether to strike a section 12022.53 firearm enhancement pursuant to [Senate Bill No. 620] are the same as those it is required to weigh when handing down a sentence in the first instance"]; People v. Flores (2021) 63 Cal.App.5th 368, 377 [same].) "These factors include those listed in California Rules of Court, rule 4.410 (general objectives in sentencing), rules 4.421 and 4.423 (circumstances in aggravation and mitigation), and rule 4.428(b) (discretion in striking an enhancement and punishment for an enhancement under section 1385)." (Nazir, at p. [p. 8].) In Nazir we held these rules of court include various objectives of the criminal justice system, including those underlying the district attorney's policies in Special Directive 20-08. (Id. at p. [p. 8], citing Cal. Rules of Court, rule 4.410(a)(4) & (8).)
California Rules of Court, rule 4.428(c), which became effective March 14, 2022, provides a court "must consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in section 1385(c) are present." Those circumstances, which the Legislature added to section 1385, effective January 1, 2022, and which apply to sentencings occurring after that date (§ 1385, subd. (c)(7)), include where "application of an enhancement could result in a sentence of over 20 years" (id., subd. (c)(3)(C)).
"We review a trial court's order denying a motion to dismiss a sentence enhancement under section 1385 for abuse of discretion." (Nazir, supra, Cal.App.5th at p. [p. 4]; see People v. Flores, supra, 63 Cal.App.5th at p. 376.) "A trial court may abuse its discretion where 'its decision is so irrational or arbitrary that no reasonable person could agree with it,' 'where the trial court was not "aware of its discretion"' to dismiss a sentencing allegation under section 1385, or 'where the court considered impermissible factors in declining to dismiss.'" (Nazir, at p. [p. 4]; see People v. Carmony (2004) 33 Cal.4th 367, 377-378; see also People v. Tirado (2022) 12 Cal.5th 688, 694 (Tirado) [a "court acting while unaware of the scope of its discretion is understood to have abused it"].)
"'[T]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.'" (People v. Pearson (2019) 38 Cal.App.5th 112, 116; see People v. Carmony, supra, 33 Cal.4th at pp. 376-377.) In particular, "'unless the record affirmatively reflects otherwise,' the trial court is deemed to have considered the factors enumerated in the California Rules of Court." (Pearson, at p. 117; see Cal. Rules of Court, rule 4.409.)
2. Any Error in Failing To Consider the Merits of the Motion To Dismiss the Firearm Enhancements Was Harmless
Esquivel first contends the trial court abused its discretion on February 1, 2021 when the court denied a motion to dismiss the firearm enhancements because the court "mistakenly believed" the district attorney's new policies did not apply to Esquivel's still-pending case. As a preliminary matter, it is not clear from the record there was a motion to dismiss the firearm enhancements on February 1, 2021; if there was such a motion, who made it; or what the grounds were for such a motion. Esquivel asserts "the parties seemed to be following the [district attorney's] Special Directive to move the court to dismiss the firearm enhancements," but neither the clerk's transcript nor the reporter's transcript includes any motion to dismiss. The colloquy between the court and counsel for Esquivel at the February 1, 2021 hearing suggests there may have been a motion to dismiss, but there is no written or oral record of it. Nevertheless, the People appear to concede the prosecutor at some point on or before February 1, 2021 moved to dismiss the firearm enhancements.
Assuming that the People made such a motion, that it was pursuant to the district attorney's policy under Special Directive 20-08, and that the trial court erred on February 1, 2021 in failing to consider the motion on the merits, any error was harmless because the court considered and denied the motion on the merits on March 10, 2021. Indeed, Esquivel's March 4, 2021 "brief in support of remittitur" (perhaps again) asked the court to dismiss the firearm enhancements in their entirety and advanced arguments that closely tracked Special Directive 20-08. For example, quoting from Special Directive 20-08, Esquivel argued in his brief "the current statutory ranges for criminal offenses alone, without enhancements, are sufficient to both hold people accountable and also to protect public safety." Esquivel also quoted in his brief statistics and sources from Special Directive 20-08 intended to show that sentence enhancements have substantially increased the prison population and "exacerbate[d] racial disparities in the justice system." And Esquivel restated in his brief the statistics cited in Special Directive 20-08 regarding the increase in recidivism rates caused by long sentences.
Esquivel does not argue the court failed to consider these arguments on March 10, 2021 when the court imposed the firearm enhancement under section 12022.53, subdivision (c). Thus, to the extent the court erred on February 1, 2021 in failing to consider the merits of a motion to dismiss the firearm enhancements, the court cured any such error on March 10, 2021. (Cf. People v. Bolden (2002) 29 Cal.4th 515, 543-544 [any error caused by the trial court's failure to rule on the admissibility of certain evidence was rendered harmless by the introduction of similar evidence].)
Moreover, as we stated in Nazir, while the policies advanced under Special Directive 20-08 are relevant when the court considers a motion to dismiss a firearm enhancement in the interest of justice under section 1385, they are not dispositive. (See Nazir, supra, 79 Cal.App.5th at p. [pp. 8-9].) A court considering a motion to dismiss a firearm enhancement must still consider the factors enumerated in the California Rules of Court, and the trial court in this case did just that. Indeed, the court acknowledged it had to "honor the objectives of sentencing," and those objectives include creating effective deterrents and reducing recidivism (see Cal. Rules of Court, rule 4.410), both of which are referenced in Special Directive 20-08. Esquivel has not shown or attempted to show that, had the court considered the merits of a motion to dismiss the parties seem to believe was made on or before February 1, 2021, the court would have dismissed the firearm enhancements or imposed a lesser sentence than it did on March 10, 2021, when the court did consider Esquivel's arguments, including those he advanced regarding Special Directive 20-08. (See People v. Alexander (2010) 49 Cal.4th 846, 896 [reviewing court may not set aside a judgment in the absence of a showing of prejudice].)
3. The Trial Court Did Not Abuse Its Discretion by Failing To Consider Any Relevant Factors
Esquivel contends the trial court abused its discretion by "ignor[ing] all of the educational achievements that [Esquivel] had accomplished since he was originally sentenced, and ignor[ing] the fact that [he] was making great progress toward his rehabilitation." According to Esquivel, the record "strongly supports an inference that the trial court was not aware that it should have taken into account [Esquivel's] post-conviction conduct in custody in making a ruling." In fact, the record shows the opposite. At the beginning of the March 10, 2021 hearing, the trial court acknowledged Esquivel's "progress . . . toward rehabilitation" and asked counsel for Esquivel and the prosecutor to keep that fact (among others) "in mind" in stating their positions on resentencing. Counsel for Esquivel confirmed the trial court considered Esquivel's efforts toward rehabilitation, stating during the hearing the court had "mentioned" such efforts.
To the extent Esquivel argues the trial court failed to consider his progress toward rehabilitation during the court's later recitation of factors relevant to its decision whether to impose the firearm enhancement under section 12022.53, subdivision (c), we do not presume the court based its ruling on only the factors the court stated at that point in the hearing. As discussed, the court referenced Esquivel's efforts toward rehabilitation, and in the absence of an affirmative record to the contrary, we presume the court considered all relevant factors. (People v. Pearson, supra, 38 Cal.App.5th at p. 117; accord, People v. Carmony, supra, 33 Cal.4th at p. 378; see People v. Parra Martinez, supra, 78 Cal.App.5th at p. 323 [where "the record does not affirmatively establish that the trial court failed to consider relevant sentencing factors set forth in the rules of court," the reviewing court "may presume those factors were properly considered"]; People v. Myers (1999) 69 Cal.App.4th 305, 310 ["the fact that the court focused its explanatory comments on the violence and potential violence of appellant's crimes does not mean that it considered only that factor"].) Esquivel has not shown the trial court abused its discretion by failing to consider any of the relevant factors under section 12022.53, subdivision (c).
Because Esquivel cannot show the trial court abused its discretion in failing to consider the motion to dismiss the sentence enhancements on the merits or in failing to consider his post-conviction conduct, there is no support for Esquivel's argument the trial court failed to exercise "its informed discretion in light of all the changed circumstances, including the District Attorney's Special Directives and [Esquivel's] progress toward his rehabilitation." Thus, Esquivel has not shown the court violated his due process rights based on the court's failure to exercise informed discretion.
B. Esquivel Forfeited His Challenges to the Restitution Fine and Assessments
Esquivel argues the trial court should have stayed imposition of the $2,000 restitution fine, the $80 court operations assessment, and the $60 criminal conviction assessment because the court did not find he had an ability to pay the fine and assessments under People v. Dueñas (2019) 30 Cal.App.5th 1157, 1169 (Dueñas). Esquivel, however, did not object to the fine and assessments during the sentencing hearing, thus forfeiting the argument.
1. Relevant Statutes
Section 1202.4, subdivision (b), states: "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." A restitution fine under section 1202.4, subdivision (b), "is intended to be, and is recognized as, additional punishment for a crime." (Dueñas, supra, 30 Cal.App.5th at p. 1169; accord, People v. Belloso (2019) 42 Cal.App.5th 647, 655, review granted Mar. 11, 2020, S259755.) Under section 1202.4, subdivision (c), the trial court may not consider a defendant's ability to pay when imposing the minimum restitution fine of (now) $300, but the court may consider the defendant's ability to pay if the court imposes a restitution fine above the minimum. (People v. Miracle (2018) 6 Cal.5th 318, 356; see § 1202.4, subd. (d) ["[i]n setting the amount of the [restitution] fine . . . in excess of the minimum fine," the court "shall consider any relevant factors, including, but not limited to, the defendant's inability to pay"]; Dueñas, at p. 1170, fn. 6 ["a trial court may . . . consider a defendant's ability to pay if the court is considering imposing a restitution fine in excess of the statutory minimum amount"].)
Section 1465.8, subdivision (a)(1), provides, in part: "To assist in funding court operations, an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense." Government Code section 70373, subdivision (a)(1), provides, in part: "To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense . . . in the amount of thirty dollars ($30) for each misdemeanor or felony." "In Dueñas this court held that 'the assessment provisions of Government Code section 70373 and . . . section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair,' that 'imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution,' and that 'due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes [these] assessments.'" (People v. Montelongo (2020) 55 Cal.App.5th 1016, 1034; see Dueñas, supra, 30 Cal.App.5th at pp. 1164-1168; People v. Belloso, supra, 42 Cal.App.5th at pp. 654-655, review granted.)
2. Esquivel's Failure To Object to the Restitution Fine and the Assessments Forfeited His Argument the Trial Court Erred in Not Considering His Ability To Pay
Because the $2,000 restitution fine the trial court imposed exceeded the statutory minimum of $300, Esquivel had the right to argue he was unable to pay it, but he admittedly did not. By failing to object and argue he did not have the ability to pay the $2,000 restitution fine, Esquivel forfeited the argument the court violated his constitutional rights by imposing the fine without considering his ability to pay. (See People v. Miracle, supra, 6 Cal.5th at p. 356 ["[b]ecause [the] defendant did not object to the [restitution] fine at his sentencing hearing, he has forfeited his challenge"]; People v. Avila (2009) 46 Cal.4th 680, 729 ["in not adducing evidence of his inability to pay" a $10,000 restitution fine, the defendant "forfeited the argument"]; People v. Smith (2020) 46 Cal.App.5th 375, 395 ["a defendant forfeits a challenge to the trial court's imposition of a restitution fine above the statutory minimum for failing to consider his or her ability to pay if the defendant did not object in the trial court"].) The same holds true for Esquivel's failure to object to the assessments. (See Smith, at p. 395 [defendant forfeited his challenge to both a restitution fine and court assessments by failing to object in the trial court on the ground he was unable to pay].)
Esquivel asks us to consider his ability-to-pay argument based on Dueñas despite his failure to object at the sentencing hearing because his argument raises a pure question of law. We decline the invitation. A "defendant must in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court." (People v. Castellano (2019) 33 Cal.App.5th 485, 490; see People v. Montes (2021) 59 Cal.App.5th 1107, 1121 [defendant has "the burden of both demonstrating a harm of constitutional magnitude and making a record regarding his alleged inability to pay the restitution fine and court assessments"]; People v. Santos (2019) 38 Cal.App.5th 923, 934 ["it is the defendant's burden to demonstrate an inability to pay, not the prosecution's burden to show the defendant can pay"]; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 ["[g]iven that the defendant is in the best position to know whether he has the ability to pay, it is incumbent on him to object to the fine and demonstrate why it should not be imposed"].) "The trial court then must consider all relevant factors in determining whether the defendant is able to pay the fines, fees and assessments to be imposed. Those factors may include, but are not limited to, potential prison pay during the period of incarceration to be served by the defendant." (Castellano, at p. 490.) In the absence of evidence Esquivel did not have the ability to pay the fine or assessments the court imposed (or an indication in the record the court refused to consider such evidence), including evidence of his assets and ability to earn money in prison, Esquivel cannot show the trial court violated his constitutional rights. (See ibid. [a reviewing court will not stay execution of a restitution fine "in the absence of evidence in the record of a defendant's inability to pay"].)
C. The Abstract of Judgment Must Be Corrected To Reflect the Proper Assessments on Count 1
The abstract of judgment states the trial court imposed the same court operations assessment and criminal conviction assessment that it imposed at the original sentencing hearing in December 2015, even though this court reversed the conviction on count 2 and the trial court dismissed that count. The court operations assessment and the criminal conviction assessment authorized under section 1465.8, subdivision (a)(1), and Government Code section 70373, subdivision (a)(1), respectively, require the court to impose such assessments on each conviction of a criminal offense. Esquivel argues, the People concede, and we agree the trial court erred in imposing the fine and fees on both counts, an apparent oversight after dismissing count 2. Therefore, the court must correct the abstract of judgment to impose a $40 court operations assessment and a $30 criminal conviction assessment on count 1 only.
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstract of judgment and send a certified copy of the amended judgment to the Department of Corrections and Rehabilitation.
We concur: PERLUSS, P. J., WISE, J. [*]
[*] Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.