Opinion
A159254
08-10-2021
THE PEOPLE, Plaintiff and Respondent, v. ROBERT LAWRENCE HUFFMAN SMITH, Defendant and Appellant.
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-722870-1
STREETER, J.
A jury convicted defendant Robert Lawrence Huffman Smith of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 1) and assault by means of force likely to produce great bodily injury (id., subd. (a)(4); count 2). Smith was sentenced to state prison for a term of four years for assault with a deadly weapon in count 1, along with a concurrent three-year sentence for assault by means of force likely to produce great bodily injury in count 2. The trial court refused to stay the sentence in count 2, opting not to take a position on section 654.
Undesignated statutory references are to the Penal Code.
Smith appeals, contending that he cannot be convicted of both assault with a deadly weapon in count 1 and assault by force likely to produce great bodily injury in count 2 because on this record those crimes are different statements of the same offense, thereby violating section 954. In the alternative, Smith argues that if there is no section 954 violation we must nonetheless reverse his conviction in count 2 for insufficiency of the evidence. Smith also appeals his concurrent sentence for count 2, contending that the trial court erred in failing to stay his sentence for that offense under section 654. Finally, Smith argues Dueñas error (People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas)), contending that the trial court failed to hold an inability-to-pay hearing before imposing court assessments and fines.
We reject Smith's claim of section 954 error and his insufficiency of the evidence argument, but we agree that the trial court erred in failing to stay the sentence on his count 2 conviction under section 654. We shall therefore remand for resentencing on the count 2 conviction. In the resentencing proceedings, under People v. Cowan (2020) 47 Cal.App.5th 32 (Cowan), review granted June 17, 2020, S261952, we shall direct the trial court to entertain any inability-to-pay objection Smith may have before imposing assessments and fines.
I. BACKGROUND
Danny McMillon, an employee of Best Western Hotel, saw Smith ride a bike onto hotel property. Through security cameras, McMillon watched Smith looking into parked cars in the hotel parking lot. McMillon waited for Smith to return to the front of the hotel and then walked outside and confronted Smith about what he was doing. McMillon and Smith began to argue and McMillon told Smith to “get the F out of [t]here.” Smith motioned at McMillon to come with him and walked his bike across the street. McMillon followed Smith and walked across the street.
When McMillon reached Smith across the street, Smith pushed McMillon's chest with both hands and punched McMillon in the face. McMillon withstood the barrage and punched Smith in return. According to McMillon's testimony, after he “threw a couple [of] punches, ” Smith “made a mad dash towards his bike.” Upon reaching his bike, Smith retrieved “a very thick, large chain... from his bike” (in McMillon's words) and struck McMillon across his head knocking McMillon to the ground. McMillon, still conscious, grabbed Smith's leg to prevent another attack and at that point the physical altercation ceased. McMillon got back to his feet, grabbed Smith's backpack, and swung it “quite feverishly” to keep Smith away from him. McMillon then crossed the street and re-entered the hotel lobby where he called 911. Smith was arrested later that morning.
The Sonoma County District Attorney charged Smith by information with one count of assault with a deadly weapon (§ 245, subd. (a)(1); count 1) and one count of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 2). A jury found Smith guilty on both counts, and in a bifurcated court trial the court found true a prior prison term enhancement allegation (§ 667.5, subd. (b)). At sentencing, the court struck the prison prior in light of then recently enacted Senate Bill No. 136 (2019-2020 Reg. Sess.) (see People v. Lopez (2019) 42 Cal.App.5th 337, 340-341), and sentenced Smith to serve four years in state prison, consisting of the upper term as to count 1 (§ 245, subd. (a)(1)), with count 2 sentenced concurrently. The trial court also imposed a $330 restitution fine (§ 1202.4), a $40 court operations assessment (§ 1465.8), a $30 criminal conviction assessment (Gov. Code, § 70373), and suspended a $330 parole revocation restitution fine (§ 1202.45).
DISCUSSION
A. The Section 954 Claim
1. Background
The jury convicted Smith of assault with a deadly weapon (§ 245, subd. (a)(1); count 1) and of assault by means likely to produce great bodily injury (§ 245, subd. (a)(4); count 2). Relying heavily on People v. Brunton (2018) 23 Cal.App.5th 1097 (Brunton) and People v. Cota (2020) 44 Cal.App.5th 720 (Cota), review granted April 22, 2020, S261120, Smith contends his conviction on count 2 must be vacated because subdivisions (a)(1) and (a)(4) of section 245 are different statements of the same offense. Smith argues that, as a result, he suffered a dual conviction for the same act in violation of section 954. We see no merit to the argument.
Section 954 provides in material part as follows: “An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged, and each offense of which the defendant is convicted must be stated in the verdict or the finding of the court.”
This statute generally permits multiple convictions for more than one crime arising out of the same act or course of conduct. (§ 954; People v. Reed (2006) 38 Cal.4th 1224, 1226-1227.) The California Supreme Court has “ ‘ “repeatedly held that the same act can support multiple charges and multiple convictions.”' ” (People v. Kopp (2019) 38 Cal.App.5th 47, 62, review granted Nov. 13, 2019, S257844 (Kopp), quoting People v. White (2017) 2 Cal.5th 349, 353-354.) There exists, however, a judicially created exception prohibiting multiple convictions under section 954 if one is based on a lesser offense necessarily included in the other. (People v. Reed, supra, 38 Cal.4th at p. 1227, citing People v. Montoya (2004) 33 Cal.4th 1031, 1034.) “[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.” (People v. Lopez (1998) 19 Cal.4th 282, 288.) A leading case reaching a conclusion consistent with this exception is People v. Vidana (2016) 1 Cal.5th 632 (Vidana), where the California Supreme Court held “ ‘[i]t logically follows that if a defendant cannot be convicted of a greater and a lesser included offense based on the same act or course of conduct, dual convictions for the same offense based on alternate legal theories would necessarily be prohibited.' ” (Id. at p. 650.)
Thus, section 954 authorizes multiple convictions for different or distinct offenses, but does not permit multiple convictions for different statements of the same offense when based on the same act or course of conduct. (Vidana, supra, 1 Cal.5th at p. 650.) This is not to say that the same course of conduct can never support multiple convictions. (People v. White, supra, 2 Cal.5th at pp. 354-355.) It can. The limitation in section 954 described in Vidana functions only to prohibit dual conviction for the same offense based on alternative legal theories, or in other words, different statements of the same offense. (Vidana, at p. 650.) Whether two offenses are simply restatements of the same offense depends in part on the facts adduced to prove them.
In People v. Aguayo, review granted May 1, 2019, S254554, the Supreme Court directed the parties to brief the following issues: (1) “Is assault by means of force likely to produce great bodily injury a lesser included offense of assault with a deadly weapon?” (2) “If so, was defendant's conviction of assault by means of force likely to produce great bodily injury based on the same act or course of conduct as her conviction of assault with a deadly weapon?” (3) “ ‘Are Penal Code section 245, subdivision (a)(1) and section 245, subdivision (a)(4) merely different statements of the same offense for purposes of section 954?' ” (4) “ ‘If so, must one of defendant's convictions be vacated?' ”
Two cases are illustrative. In Brunton, supra, 23 Cal.App.5th 1097, the defendant was convicted of violations of subdivisions (a)(1) and (a)(4) of section 245. (Brunton, supra, at p. 1101.) There, the defendant's act supporting such convictions was the choking of his cellmate with a towel. (Id. at p. 1099.) Based on the facts of that case, the appellate court vacated the defendant's second conviction, assault by means of force likely to produce great bodily injury, stating: “[W]e thus conclude that, when based on a defendant's single act of using a noninherently dangerous object in a manner likely to produce great bodily injury, section 245(a)(1) and (4) are merely different statements of the same offense....” (Id. at p. 1107, italics added.) And in Cota, supra, 44 Cal.App.5th 720, review granted, the defendant was convicted of the same section 245 subdivisions for his single act of bludgeoning the victim with a metal chair. (Cota, at p. 723.) Based on the facts of the case, the court vacated the defendant's conviction for assault by means of force likely to cause great bodily injury because the two convictions were different statements of the same offense of aggravated assault and both were based on the same conduct. (Id. at pp. 729-730.)
2. Analysis
While Brunton and Cota are informative, they do not apply here. In each of those cases, a single act formed the basis for the convictions which violated section 954. (Brunton, supra, 23 Cal.App.5th at pp. 1101, 1105; Cota, supra, 44 Cal.App.5th at pp. 723, 729, review granted.) Here, the Attorney General argues Smith's convictions rest on different factual predicates, rendering the convictions in-line with section 954. We agree.
Section 954 permits multiple convictions for each charged offense, provided the convictions are based on separate acts, even if those acts are committed at or near the same time. (Kopp, supra, 38 Cal.App.5th at p. 63, review granted [upholding two convictions under section 245 for the defendant's distinct acts of stabbing and then repeatedly kicking the victim]; see People v. Johnson (2007) 150 Cal.App.4th 1467, 1474-1477 [upholding three convictions under section 273.5 based on three successive acts of violence from the defendant].) Here, the altercation serving as the basis for Smith's convictions lasted “only seconds or, at the most, a few minutes.” We must therefore determine whether, on the evidence presented, Smith's assaultive conduct in this short period of time consisted of two distinct acts to support two convictions, despite the short duration of the assault. We conclude it did.
People v. Johnson, supra, 150 Cal.App.4th 1467 is on point. There, the defendant engaged in a course of conduct which included stabbing the victim in her left arm; choking and holding her against a wall; and striking her on her neck, arm, and lower back. (Id. at p. 1472.) The defendant was charged with three separate violations of section 273.5 and convicted on all three counts. (Johnson, at p. 1471.) Reviewing for a section 954 violation, the court upheld all three convictions, concluding that each conviction could be sustained due to evidence of three direct applications of force on the victim by the defendant. (Johnson, at p. 1477). Each conviction of abuse was complete when the defendant engaged in “willful and direct application of physical force upon the victim.” (Ibid.)
The evidence presented to the jury shows that what happened in this case is similar. The physical portion of the altercation began with Smith shoving the victim away with both of his hands. Smith followed up by punching McMillon in the face. McMillon responded with force, and after the two disengaged, Smith followed with a second attack-the striking of McMillon with the chain. The record in this case thus presents two separate violent encounters between Smith and McMillon within a rapidly evolving series of events. Count 1 is based on Smith's use of the chain. Count 2 is based on the punching and shoving.
The record also shows, and Smith acknowledges, that during the initial jury instruction conference the prosecutor told the court it intended to argue that the factual basis for count 1 consisted of swinging the chain while count 2 was based upon a separate fist fight and shoving. But the prosecution did not follow through on this promise, Smith argues. The crux of Smith's section 954 argument rests upon the assertion that the prosecution confused the jury during closing argument, merging counts 1 and 2. The contention is that the prosecutor did not make clear the assault charge in count 2 was based solely on Smith's punching and shoving of the victim, instead also including the chain swinging which was the sole basis for the conviction in count 1.
During closing argument, the prosecutor described count 2 as follows:
“So count 2 is similar to count 1; we just don't have a weapon. And it's going to repeat a lot of the same things, so you won't have to work as hard when you're looking at count 2. You will have done all of the heavy lifting. [¶] Did an act that by its nature would directly and probably result in the application of force to a person. So no weapon, but he did an act-the swinging of the chain, the throwing of the fist, the pushing with the two hands-did an act that by its nature would directly and probably result in the application of force to a person. We charge this primarily for the actual pushing and punching to Mr. McMillon by the defendant. [¶] So again, count 2 then talks about the force used was likely to produce great bodily injury. Although it doesn't need to create great bodily injury, just like I spoke of before, the fact that a closed-hand punch to Mr. McMillon's face could have produced great bodily injury, the two-hand shove could have created great-was of such force that it could have created great bodily injury.” (Italics added.)
Smith focuses in particular on the prosecutor's use of “the swinging of the chain” regarding count 2. He argues that both counts were subsumed into the same act of Smith striking the victim with the chain. This contention fails because the prosecutor's reference to the chain must be interpreted in context. When addressing great bodily injury, the prosecutor referenced a “two-hand shove” and “closed-hand punch.” Moreover, twice the prosecutor stated count 2 did not involve a weapon. The prosecutor did, to be sure, state that count 2 was charged “primarily” for the actual pushing and punching by Smith. But we do not think this stray remark can be reasonably read as an invitation for the jury to ignore the factual difference in the evidence relating to counts 1 and 2 and to convict Smith on both counts for identical conduct. Read in context, the statement appears to be a hedge against the possibility the jury might not be convinced the chain was used as a deadly weapon, and in that eventuality-entailing acquittal on count 1, a scenario that never came to pass-the prosecutor wished to emphasize the jury could consider the chain swinging and still convict on count 2. On the evidence adduced here, section 954 presented no bar to submitting both counts 1 and 2 to the jury. We see nothing in the prosecutor's closing argument that effectively merged these counts.
In a subsidiary line of argument, Smith takes issue with the fact that the jury was instructed as to great bodily injury in count 1, which he characterizes as “adding to the confusion.” This instruction was proper under CALCRIM No. 875. A deadly weapon other than a firearm-here, the chain-includes the term “great bodily injury” within its definition. (CALCRIM No. 875 [“A deadly weapon other than a firearm is any object, instrument, or weapon [that is inherently deadly or one] that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.” (Second italics added.)].) Other than the alleged confusion Smith claims this legally correct instruction exacerbated-an argument founded on the premise there was confusion in the first place, which in turn rests on a reading of the record we reject-it is undisputed the jury was properly instructed on both counts 1 and 2. “We presume the jury understands and follows the trial court's instructions, including the written instructions.” (People v. Frederickson (2020) 8 Cal.5th 963, 1026.)
The current version of CALCRIM No. 875 includes this definition for the term “deadly weapon other than a firearm.” The version of CALCRIM No. 875 given at trial provided a similar definition for the term “deadly or dangerous weapon.”
B. The Substantial Evidence Claim
1.Background
The jury found Smith guilty of count 2, assault by force likely to produce great bodily injury, under section 245, subdivision (a)(4). Smith contends that substantial evidence does not support this finding. Here, too, we reject his claim of error.
The standard of review in determining the sufficiency of the evidence supporting a conviction is well-settled. “When considering a defendant's challenge to the sufficiency of the evidence, we review the entire record most favorably to the judgment to determine whether the record contains substantial evidence from which a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt.” (Kopp, supra, 38 Cal.App.5th at p. 69, review granted.) We do not reweigh evidence or reassess a witness's credibility, presuming the existence of every fact the rational trier of fact could reasonably deduce from the evidence. (People v. Lindberg (2008) 45 Cal.4th 1, 27.) Again, we ask whether any rational trier of fact could have found the allegations to be true beyond a reasonable doubt, after viewing the evidence in the light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319.)
To prove a violation of section 245, subdivision (a)(4), the prosecution must establish that a person was assaulted and that the assault was committed by means of force likely to produce great bodily injury. (In re Jose R. (1982) 137 Cal.App.3d 269, 275.) Because the focus of the statute is on “force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial.” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) “Likely” is one of the key words here, and “[w]hether a force is likely to produce great bodily injury is essentially a question of fact for the trier of fact.” (In re Jose R., supra, at p. 277, italics added.) The other key element is that of great bodily injury, which is bodily injury that is substantial or significant, “not insignificant, trivial or moderate.” (People v. McDaniel (2008) 159 Cal.App.4th 736, 748.) The focus of the great bodily injury portion of the offense is on the amount of force “actually used” by the defendant, not “the force that the [defendant] could have used against the victim.” (People v. Duke (1985) 174 Cal.App.3d 296, 303, italics omitted.)
2. Analysis
Smith's sufficiency of the evidence attack on his count 2 conviction rests largely on his contention that the actual injuries suffered by McMillon are relevant, but not dispositive of whether a section 245 violation occurred. Smith attempts to characterize the wounds suffered by McMillon as superficial and argues that “throwing a punch during a fight..., should not be deemed sufficient to convert a simple battery or assault into a felony.”
Despite Smith's various attempts to minimize the seriousness of his assaultive conduct, we find no merit in any of his arguments. As already stated, the focus is not on what injuries McMillon actually suffered, but instead on Smith's actual application of force and its “likely” effects according to the jury. (In re Jose R., supra, 137 Cal.App.3d at p. 277.) Although Smith argues there is “scant authority to uphold the finding, ” it is well-established “[t]hat the use of hands or fists alone may support a conviction of assault ‘by means of force likely to produce great bodily injury.' ” (People v. Aguilar, supra, 16 Cal.4th at p. 1028; see People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) The record demonstrates that Smith shoved McMillon and punched him in the head, a particularly vulnerable part of the body. We cannot say norational trier of fact could have found a section 245 violation on this record.
C. The Section 654 Claim
1.Background
At Smith's sentencing hearing, the trial court sentenced him to the upper term of four years in state prison as to count 1 (§ 245, subd. (a)(1)), with count 2 (§ 245, subd. (a)(4)) sentenced concurrently at three years in state prison. Smith contends that even if this court should uphold both of his convictions under counts 1 and 2, his sentence for count 2 should nonetheless be stayed under section 654. He argues the trial court erred by imposing concurrent sentences for counts 1 and 2, and thus subjecting him to double punishment. The People contend that we should remand to allow the trial court to “exercise its discretion” under section 654 to stay punishment for Smith's second assault conviction instead of staying it outright as Smith argues. For reasons we shall discuss, we reject the People's characterization of section 654 as discretionary in nature, but conclude that a remand for full resentencing is proper in light of the trial court's failure to apply the statute.
As relevant, section 654, subdivision (a) provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” The purpose of this legislative prohibition against multiple punishments is to ensure that a defendant's punishment will be commensurate with his culpability. (People v. Butler (1986) 184 Cal.App.3d 469, 472, citing Neal v. State of California (1960) 55 Cal.2d 11, 20 (Neal).) While section 954 proscribes dual convictions for necessarily included offenses and multiple offenses that simply restate the same offense (Vidana, supra, 1 Cal.5th at p. 650), section 654 proscribes dual punishment for certain offenses. (Neal, supra, at pp. 16, 18.)
The California Supreme Court has interpreted section 654 to mean: “If a course of criminal conduct causes the commission of more than one offense, each of which can be committed without committing any other, the applicability of section 654 will depend upon whether a separate and distinct act can be established as the basis for each conviction.” (People v. Knowles (1950) 35 Cal.2d 175, 187.) Moreover, section 654 has been applied not only where there was but one act, but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654. (Neal, supra, 55 Cal.2d at p. 19.) The test generally applied when there has been a course of conduct rather than a single criminal act is the Neal test, wherein a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 if the offenses committed were not incident to one objective. (Neal, at p. 19; see People v. Harrison (1989) 48 Cal.3d 321, 335 [“[w]e have traditionally observed” the Neal test].) There is no “ ‘universal construction which directs the proper application of section 654 in every instance.' ” (People v. Butler, supra, 184 Cal.App.3d at p. 472, citing People v. Beamon (1973) 8 Cal.3d 625, 636.)
2. Analysis
The section 654 analysis on this record is clear. Smith was convicted for his commission of two distinct offenses: assault with a deadly weapon in count 1 and assault by force likely to cause great bodily injury in count 2. As noted above, these convictions were the result of an altercation that “happened very quickly” and in a “very close proximity of time.” “While the ‘temporal proximity' of multiple crimes is not determinative of the applicability of section 654 [citation], it is a relevant consideration in the analysis.” (People v. Evers (1992) 10 Cal.App.4th 588, 604, fn. 10, quoting People v. Ordonez (1991) 226 Cal.App.3d 1207, 1239.) Based on the record before us, we conclude that section 654 was potentially applicable to this set of facts, with the temporal proximity of the two assaults proving particularly relevant. The trial court should have made a factual determination in deciding whether the acts by Smith were incident to one criminal objective, thus constituting one indivisible course of conduct. (Kopp, supra, 38 Cal.App.5th at p. 91, review granted [“ ‘The question of whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination.' ”].) If it had found one indivisible course of conduct, then section 654 would have prohibited multiple punishment and Smith's sentence under count 2 should have been stayed.
But the trial judge stated during sentencing that he was “not going to take a position on 654” and issued concurrent sentences for counts 1 and 2. During the sentencing hearing, the trial judge also stated that he recognized Smith's convictions as “one transaction or occurrence in a very close proximity of time, ” a statement which appears to be in tension with his stated intention not to “take a position on 654.” Although the Attorney General characterizes the trial court's actions as a “failure to exercise discretion, ” we think that characterization of the court's authority under section 654 is incorrect. Section 654 is a nondiscretionary statute mandating its application in cases with multiple punishments stemming from one indivisible transaction or occurrence. (See generally Neal, supra, 55 Cal.2d 11.) The trial court had no discretion in dealing with section 654 because either the statute applied or it did not. Because the record is sufficient to demonstrate that section 654 potentially applied, the trial court erred in not “tak[ing] a position on 654.” Whether section 654 applies is a separate and distinct issue from the section 954 issue we discuss above. If the same criminal objective motivated each assaultive act, section 654's multiple punishment bar would likely apply, since the acts were so close in time; but the bar may not apply if a different criminal objective motivated each assaultive act. As we note above, the temporal element of the analysis is highly relevant, but it is not determinative.
Smith argues the record is clear enough for this court to apply section 654 and stay punishment for his conviction on count 2. We decline to do so. As noted, the question of whether the acts of which a defendant has been convicted constituted an indivisible course of conduct is primarily a factual determination made by the trial court on the basis of its findings concerning the defendant's intent and objective in committing the acts. (People v. Ferguson (1969) 1 Cal.App.3d 68, 74.) “ ‘A trial court's implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.' ” (People v. Racy (2007) 148 Cal.App.4th 1327, 1336-1337; accord, People v. Green (1988) 200 Cal.App.3d 538, 543 [“Whether a course of criminal conduct violating more than one penal statute is committed with a single criminal intent or with multiple criminal objectives is ordinarily a question of fact for the trial court”].)
While Smith points to the trial court's statement, “I do [see] this as one transaction or occurrence in a very close proximity of time, ” as constituting a definite determination on the section 654 issue by the trial court, we are less sure. Perhaps it was; perhaps it was not. No clear and unambiguous finding on the section 654 issue was made by the trial court, and we are not dealing with a silent record that would allow us to conclude there was an implied finding on it. Rather than undertake to divine from the cold record what objective or objectives Smith might have had in the rapid sequence of his altercations with McMillon, we shall remand for resentencing with the guidance that the trial court make a factual determination on whether Smith's actions constituted an indivisible course of conduct for the purposes of section 654.
D. Assessments and Restitution Fine Claim
At sentencing, the trial court imposed on Smith a $330 restitution fine, a $40 court operations assessment, a $30 criminal conviction assessment, and suspended a $330 parole revocation restitution fine. Citing Dueñas, supra, 30 Cal.App.5th 1157, Smith argues the trial court violated his right to due process under both state and federal law by imposing a $330 restitution fine and $70 in assessments without making a determination on his ability to pay. The Attorney General takes the position that Smith's claims as to the assessments are moot because Smith can raise these claims upon a remand for resentencing. The Attorney General argues, however, that the claim as to the restitution fine is forfeited and in any event meritless.
In January 2019, Dueñas held that, to impose court operations fees (§ 1465.8) and facilities fees (Gov. Code, § 70373), and to impose but not stay a $300 minimum restitution fine (§ 1202.4, subd. (b)), without holding a hearing to determine the defendant's ability to pay the fines and fees, violates due process. (Dueñas, supra, 30 Cal.App.5th at pp. 1168-1169, 1172.) Much has been written in published Court of Appeal decisions about Dueñas. Last year, we addressed the subject in Cowan, supra, 47 Cal.App.5th 32, review granted. We see no need to reiterate any of what we said there. We adhere to the view that an excessive fines analysis governs fees, assessments, and fines, and that ability to pay is one of four factors in the excessive fines calculus. (Id. at pp. 42, 47-49.) With respect to the restitution fine, the Attorney General argues that any inability-to-pay objection was forfeited because Smith failed to raise it or to cite Dueñas at his sentencing, even though Dueñas had been on the books for 10 months prior to his sentencing.
While the forfeiture issue is troubling, on this record we see no need to deal with it under the rubric of ineffective assistance of counsel, as Smith's counsel suggests. We must remand for further resentencing proceedings anyway. Since the Attorney General recognizes that Smith's inability to pay assessments may be argued on remand, we will decline as a discretionary matter to find that any of Smith's inability-to-pay objections-to assessments, fees, or fines-are forfeited. (People v. Montes (2021) 59 Cal.App.5th 1107, 1117.) There is very little on the record here to indicate whether an inability-to-pay objection might have any merit, but there are hints that it could. The probation report indicates that at the time the offenses in this case took place, Smith was a transient who had occasionally earned money “ ‘under the table' ” “split[ting] wood, ” but that by the time he went to trial he had no source of income and was incarcerated. There is nothing to indicate his eligibility for and ability to earn prison wages. The record shows that Smith is someone with a history of mental illness who was initially found to be mentally unfit for trial. While the offenses he was convicted of are serious, they are not so serious that, on the limited record we have before us, the excessive fines analysis may be decided as a matter of law on the appellate record. Accordingly, any inability-to-pay objection Smith may wish to pursue must be addressed in the first instance in the trial court, on remand, under Cowan.
We also note that, in his opening brief on appeal, which was filed more than six months after we decided Cowan, Smith's counsel failed to raise any excessive fines issue, mentioning it only in the alternative on reply. This is a bit surprising. Cowan was not the first published appellate opinion to recognize that inability-to-pay objections may be asserted under constitutional excessive fines protections. (See People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1039-1040 (conc. opn. of Benke, Acting P. J.); Kopp, supra, 38 Cal.App.5th at pp. 98-99, review granted (conc. & dis. opn. of Benke, Acting P. J.).) To be sure, however, in circumstances where the law was in a state of uncertainty-which is perhaps an understatement when it comes to Dueñas-Smith's failure to cite the precise grounds of his constitutional objection would not necessarily foreclose him from mounting an inability-to-pay argument on appeal. (Cf. People v. Perez (2020) 9 Cal.5th 1, 9 [failure to object to gang testimony on hearsay grounds before the decision in People v. Sanchez (2016) 63 Cal.4th 665, did not forfeit defendant's ability to make confrontation clause claim on appeal following Sanchez].) Of more concern is his failure to make any inability-to-pay objection at his sentencing hearing, many months after Dueñas was decided.
III. DISPOSITION
Smith's convictions under counts 1 and 2 are affirmed. We remand this matter for resentencing. As part of resentencing, Smith may challenge any imposed fines or assessments as explained in Cowan, supra, 47 Cal.App.5th 32, review granted, subject to guidance we provided there.
WE CONCUR: POLLAK, P. J., BROWN, J.