People v. Ramos CA5 ( 2021 )

Filed 6/7/21 P. v. Ramos CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080918
Plaintiff and Respondent,
(Super. Ct. No. VCF330241)
v.
ROBERT RAMIREZ RAMOS, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Gary L.
Paden, Judge.
John Steinbert, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, William K. Kim and Louis M.
Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P.J., Smith, J. and Meehan, J.
INTRODUCTION
In this case, defendant Robert Ramirez-Ramos was charged on January 26, 2016,
with willful infliction of corporal injury to a spouse, cohabitant or child’s parent, in
violation of Penal Code section 273.5, subdivision (a).1, 2 He pled guilty to the charge on
February 26, 2016, and, following placement in a domestic violence court program, was
granted probation for three years, subject to certain terms and conditions.
On February 26, 2018, defendant was charged in Tulare Superior Court case
No. VCF361905B in connection with two attempted murders.3 On November 22, 2019,
following a jury trial that included two codefendants, defendant was convicted of
shooting at an occupied motor vehicle with attached gang and firearm enhancements.
(§§ 246, 186.22, subd. (b), 12022.53, subds. (c), (e)(1).)
At a combined sentencing hearing, defendant was sentenced to a term of 15 years
to life in prison in Tulare Superior Court case No. VCF361905B. In this case, the trial
court terminated probation and committed defendant to prison for the upper term of four
years, concurrent to the term imposed in Tulare Superior Court case No. VCF361905B.
In addition, the court imposed, without objection, a restitution fine of $600 under
section 1202.4, subdivision (b)(1); a parole revocation restitution fine of $600 under
section 1202.45, subdivision (a), suspended; a court operations assessment of $40 under
section 1465.8; and a court facilities assessment of $30 under Government Code
section 70373. Noting an inability to pay, the court did not impose costs for legal
assistance. (§ 987.8.)
1 All further statutory references are to the Penal Code unless otherwise noted.
2 As the facts underlying the crime are not relevant to the issues raised on appeal, we do
not summarize them further.
3 Defendant’s appeal in Tulare Superior Court case No. VCF361905B is pending before
this court in case no F080916. We take judicial notice of the record in that appeal. (Evid. Code,
§§ 452, subd. (d), 459.)
2.
On appeal, defendant requests remand for an ability-to-pay hearing, pursuant to
the Court of Appeal’s decision in People v. Dueñas (2019) 30 Cal.App.5th 1157(Dueñas).4 Although he did not object during sentencing, he disputes that he forfeited
the claim and asserts that, one, the trial court completely failed to exercise discretion and,
two, the sentence was unauthorized because the court acted in excess of its jurisdiction.
The People contend that defendant forfeited his Dueñas claim by failing to object.
On the merits, they contend that the restitution fine imposed was constitutional under
both the Eighth Amendment and due process principles, and imposition of the
nonpunitive court assessments without determining his ability to pay was harmless error.
However, they urge that defendant’s challenge to the punitive fines be limited to the
Eighth Amendment and his challenge to any nonpunitive fines and assessments be
addressed under due process principles set forth in Dueñas.
We conclude defendant forfeited review of his Dueñas claim by failing to object
and we affirm the judgment.
DISCUSSION
The failure to object in the trial court generally forfeits a claim on appeal and this
principle is applicable to constitutional claims. (People v. McCullough (2013) 56 Cal.4th
4 Pursuant to Government Code section 68081, we issued a letter inviting the parties to
address whether defendant complied with Penal Code section 1237.2, which provides, “An
appeal may not be taken by the defendant from a judgment of conviction on the ground of an
error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs
unless the defendant first presents the claim in the trial court at the time of sentencing, or if the
error is not discovered until after sentencing, the defendant first makes a motion for correction in
the trial court, which may be made informally in writing. The trial court retains jurisdiction after
a notice of appeal has been filed to correct any error in the imposition or calculation of fines,
penalty assessments, surcharges, fees, or costs upon the defendant’s request for correction. This
section only applies in cases where the erroneous imposition or calculation of fines, penalty
assessments, surcharges, fees, or costs are the sole issue on appeal.” In response, defendant
requested relief in the trial court and a stay of this appeal. We granted the stay and the trial court
subsequently denied defendant’s request for relief, thereby perfecting the appeal. Accordingly,
the stay of this appeal is hereby lifted.
3.
589, 593; In re Sheena K. (2007) 40 Cal.4th 875, 880–881.) ‘“[D]iscretion to excuse
forfeiture should be exercised rarely and only in cases presenting an important legal
issue.’” (In re Sheena K., supra, at pp. 887–888, fn. 7.)
In this case, defendant was sentenced on January 23, 2020, which was more than
one year after the Court of Appeal issued its decision in Dueñas. Despite having the
benefit of Dueñas and a statutory right to object under section 1202.4, subdivisions (c)
and (d), defendant did not object to the $600 restitution fine or to the $70 in court
assessments. Under these circumstances, defendant forfeited appellate review of his
claim. (In re Sheena K., supra, 40 Cal.4th at pp. 880–881; People v. Montelongo (2020)
55 Cal.App.5th 1016, 1033–1035; People v. Taylor (2019) 43 Cal.App.5th 390, 399–400;
People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033; People v. Frandsen (2019) 33
Cal.App.5th 1126, 1153–1154.)
Defendant attempts to avoid the forfeiture bar on grounds that the trial court failed
entirely to exercise its discretion in imposing the fines and assessments and that the court
imposed an unauthorized sentence. We are unpersuaded.
Relevant to defendant’s first argument, “‘[d]efendants are entitled to sentencing
decisions made in the exercise of the “informed discretion” of the sentencing court.
[Citations.] A court which is unaware of the scope of its discretionary powers can no
more exercise that “informed discretion” than one whose sentence is or may have been
based on misinformation regarding a material aspect of a defendant’s record.’ [Citation.]
In such circumstances, we have held that the appropriate remedy is to remand for
resentencing unless the record ‘clearly indicate[s]’ that the trial court would have reached
the same conclusion ‘even if it had been aware that it had such discretion.’” (People v.
Gutierrez (2014) 58 Cal.4th 1354, 1391; accord, People v. Flores (2020) 9 Cal.5th 371,
431–432; People v. Yanaga (2020) 58 Cal.App.5th 619, 625.) However, “[i]n the
absence of evidence to the contrary, we presume that the court ‘knows and applies the
correct statutory and case law’” (People v. Thomas (2011) 52 Cal.4th 336, 361), and
4.
“‘“error must be affirmatively shown”’” (People v. Giordano (2007) 42 Cal.4th 644,
666).
As previously stated, defendant had a statutory right to object to the restitution
fine, the decision in Dueñas predated his sentencing by approximately one year, and the
record does not reflect that the trial court lacked awareness of the scope of its jurisdiction.
Therefore, defendant’s claim that the trial court failed to exercise informed discretion
fails.
Defendant’s contention that the trial court imposed an unauthorized sentence fails
as well. In People v. Avila, the California Supreme Court rejected a challenge on this
ground to the imposition of a $10,000 restitution fine under section 1202.4, explaining,
“Had [the] defendant brought his argument to the court’s attention, it could have
exercised its discretion and considered defendant’s ability to pay, along with other
relevant factors, in ascertaining the fine amount. Under the … statute, … a fine in any
amount greater than the statutory minimum, and up to $10,000, is subject to the court’s
discretion. (§ 1202.4, subds. (b)(1), (d).) Moreover, … a defendant bears the burden of
demonstrating his inability to pay, and express findings by the court as to the factors
bearing on the amount of the fine are not required.” (People v. Avila (2009) 46 Cal.4th
680, 729.)
Based on the foregoing, review of defendant’s Dueñas claim is forfeited and we
affirm the judgment.
DISPOSITION
The judgment is affirmed.
5.