People v. Callahan CA4/1 ( 2022 )

Filed 8/16/22 P. v. Callahan CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080019
Plaintiff and Respondent,
v. (Super. Ct. No. SWF1907227)
MICHAEL JOSEPH CALLAHAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Timothy F. Freer, Judge. Affirmed.
Stephen M. Hinkle, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, and
Melissa Mandel and Seth M. Friedman, Deputy Attorneys General, for
Plaintiff and Respondent.
Michael Joseph Callahan was convicted of second degree murder for
crashing his car into California Highway Patrol (CHP) Sergeant Steve Licon
while driving intoxicated at 65 miles per hour on the shoulder of I-15. On
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appeal, Callahan argues: (1) the trial court erred by failing to instruct the
jury on the lesser offenses of gross vehicular manslaughter (Pen. Code, § 192,
subd. (c)(1)),1 involuntary manslaughter (id., § 192, subd. (b)), and gross
vehicular manslaughter while intoxicated (id., § 191.5, subd. (a)); (2) the trial
court abused its discretion under Evidence Code section 352 by admitting a
photograph of the victim while alive and autopsy photographs of the victim’s
uniform, helmet, and body; and (3) the trial court erred by imposing $4,500
restitution fines without determining that Callahan had the ability to pay.
We find no error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Callahan’s Prior DUI and Knowledge of Dangers of Driving While
Intoxicated
In 2004, Callahan pled guilty to a prior DUI charge. As part of his
sentence, he completed a first offender alcohol program and attended classes
sponsored by Mothers Against Drunk Driving. In those classes, people
shared personal experiences regarding the dangers of drunk driving,
including vivid stories about people who had lost loved ones.
Sometime around 2010, Callahan drove home intoxicated and parked
on the curb. He characterized this as a “reality check for [him].” Callahan’s
wife also warned him about the dangers of drunk driving and told him not to
do it.
Callahan had discussed his DUI conviction with coworkers at Costco,
where he worked as a manager. About a month before the charged crime,
Callahan told a coworker that he was glad the police had stopped him in
2004, “ ‘as opposed to [him] hurting somebody.’ ”
1 Further undesignated statutory references are to the Penal Code.
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B. Callahan Gets Intoxicated Celebrating a Job Transfer with Coworkers
On Saturday, April 6, 2019, Callahan finished his usual early morning
shift at Costco and went to Big Al’s in Ontario to celebrate a job transfer.
Big Al’s is a family entertainment center with a sports bar.
Callahan entered Big Al’s around 10:35 a.m. and took a seat in the bar
area with two coworkers. Several more coworkers arrived later.
Over the next few hours, Callahan consumed approximately three shots
of tequila and four 22-ounce beers with high alcohol content. He got
progressively more intoxicated and unruly. Among other things, Callahan
repeatedly pressed his pelvis against the buttocks of a female coworker,
grabbed another female coworker, and had to be restrained from taking food
from someone else’s table.
At some point before leaving Big Al’s, Callahan talked with a coworker
about the fact that they both had prior DUIs. They agreed “it wasn’t worth
it” to drink and drive.
C. Callahan Insists on Driving Home Intoxicated
Shortly after 3:00 p.m., Callahan went out to the parking lot with other
members of his group. He was visibly swaying. He also had trouble tying his
shoe.
Callahan’s companions were concerned about the possibility he might
try to drive himself home to the Lake Elsinore area, which was about an hour
away. One of them, Josue E., asked his girlfriend Jennifer to give Callahan a
ride, and she agreed. But Callahan protested, “ ‘No, I’m fine. I can drive
home.’ ” Josue and another coworker, Cesar V., persisted, telling Callahan,
“ ‘[D]on’t drive home. You’re not safe.’ ” Callahan did not want to listen.
Josue offered to let Callahan stay at his house or get him an Uber. He
asked Callahan to hand over his car keys and said he would call Callahan’s
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wife to come get him. Callahan would not turn over his keys or provide his
wife’s phone number.
Josue and Cesar walked Callahan over to Jennifer’s car. Cesar put his
arm around Callahan to make sure he did not fall, since he had already
“stumble[d] a few times.” Josue and Cesar did their best to coax Callahan
into Jennifer’s car, but he refused, and instead went back inside Big Al’s.
At 3:17 p.m., Callahan reentered Big Al’s, swaying as he walked. A
minute later, he took food from someone else’s table, which resulted in a Big
Al’s manager ejecting him. The manager could see that Callahan was too
intoxicated to drive and urged his friends to take care of him.
Callahan exited to the parking lot, walking with an unsteady gait.
Josue and Jennifer were still worried about Callahan driving himself home.
Jennifer asked if she could call Callahan’s wife or get him an Uber, and she
tried in vain to take his keys away. Josue told Callahan, “ ‘Don’t drive,’ ” and
urged him to accept a ride, but he still refused.
Callahan became more belligerent. He snapped, “ ‘Just leave me alone,
bitch. I got it. Take your fucking girlfriend out of here. I don’t need you guys.
I can fucking drive home by myself.’ ” Callahan took a swing at Josue, but
missed and fell backward to the ground. Josue helped Callahan up and
continued trying to convince him not to drive. Callahan insisted he was fine
and wanted to prove it by driving to Starbucks. Josue and Jennifer agreed to
ride with him. Callahan managed to make a roundtrip drive to a Starbucks
in the same parking lot.
After they returned to Big Al’s, Callahan continued his verbal abuse,
especially toward Jennifer, and he also hit Josue in the head. Josue finally
decided “ ‘[e]nough is enough’ ” and gave up trying to persuade Callahan not
to drive. Josue and Jennifer got out of Callahan’s car, and he drove off.
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D. Callahan Strikes and Kills CHP Sergeant Steve Licon
Around 3:45 p.m., Callahan drove his Toyota Corolla onto southbound
I-15. It was sunny with scattered clouds and “100 percent” visibility. The
freeway was clear, and traffic was lighter than usual.
Despite the conditions, Callahan was driving erratically. He alternated
between driving too slow or too fast for the flow of traffic, frequently changed
lanes, had trouble staying in his lane, straddled lanes, swerved into the
median to pass other vehicles, twice nearly sideswiped another car, and
repeatedly forced other vehicles to honk or take evasive action to avoid
colliding with him, resulting in at least one person calling 911.
At approximately 4:25 p.m., near the Nichols Road exit in Lake
Elsinore, Callahan sped up and veered onto the right shoulder of the freeway,
with his vehicle partially in the gravel beyond the paved portion of the
shoulder. There was no apparent reason for Callahan to be driving on the
shoulder. According to one witness, he was “just driving like 60 miles an
hour on the shoulder like it was nothing.”
Farther ahead, CHP Sergeant Licon had pulled Raymundo R. over onto
the southbound shoulder for speeding. Sergeant Licon was off his motorcycle,
standing on the shoulder behind Raymundo’s car, writing the ticket.
Callahan’s car accelerated as it approached Sergeant Licon. While still
driving on the shoulder at about 65 miles per hour, Callahan hit Sergeant
Licon and crashed into the back of Raymundo’s car. The impact sent
Sergeant Licon flying 108 feet through the air. He landed face down on the
concrete, where he lay unconscious. Later that night, Sergeant Licon died
from massive, internal blunt-force trauma to the left side of his body.
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E. CHP Investigation Confirms Callahan’s Intoxication
Law enforcement officers contacted Callahan at the scene. Callahan
“reeked” of alcohol and had “extremely” red, watery, and bloodshot eyes. The
CHP conducted a DUI investigation at the scene, including field sobriety
tests and a preliminary alcohol screening test, then arrested Callahan.
Following his arrest, Callahan was taken to a CHP station, where
breath and blood samples were collected for blood alcohol content (BAC)
analysis. At 7:22 p.m., Callanah’s BAC was 0.158 percent. Extrapolating
backward, Callahan’s BAC was between 0.195 and 0.233 percent when he
started driving home, and between 0.188 and 0.218 percent when he crashed
into Sergeant Licon. A person is too impaired to drive safely with a BAC of
0.08 percent or above. (See Veh. Code, § 23152, subd. (b).)
Officer Timothy Fenton, a CHP drug-recognition evaluator, performed
an assessment of Callahan the same night. Callahan admitted to drinking
that day. His speech was slurred, he was sweating, and he still smelled of
alcohol. Officer Fenton administered the typical field sobriety tests (i.e.,
horizontal gaze nystagmus, vertical nystagmus, Romberg balance test, walk-
and-turn, one-leg stand, and finger to nose). Based on his investigation,
Officer Fenton concluded that Callahan was obviously under the influence of
alcohol and could not safely operate a motor vehicle.
F. Trial Court Proceedings
Callahan was charged with murder (§ 187, subd. (a)) and personal
infliction of great bodily injury in the commission of the murder (§ 12022.7).
The amended information alleged that Callahan violated section 187,
subdivision (a) “in that . . . [he] did willfully and unlawfully murder STEVE
LICON, a human being,” without any additional details.
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At trial, Callahan asked the court to instruct the jury with CALCRIM
No. 590 on the lesser related offense of gross vehicular manslaughter while
intoxicated (§ 191.5). The prosecutor objected, and the court declined to give
the instruction. Callahan did not request any jury instruction on either gross
vehicular manslaughter (§ 192, subd. (c)(1)) or involuntary manslaughter
(§ 192, subd. (b)).
The jury convicted Callahan of second degree murder (§ 187, subd. (a))
and found that he personally inflicted great bodily injury (§ 12022.7). The
trial court sentenced him to 15 years to life. The court also imposed a $4,500
restitution fine (§ 1202.4, subd. (b)) and a stayed $4,500 parole revocation
fine (§ 1202.45).
DISCUSSION
I
Callahan first argues that the trial court should have instructed the
jury sua sponte on the lesser offenses of gross vehicular manslaughter (§ 192,
subd. (c)(1)) or involuntary manslaughter (§ 192, subd. (b)). We disagree.
A. Gross Vehicular Manslaughter
A trial court must instruct sua sponte on a necessarily included lesser
offense if there is substantial evidence that the defendant is guilty only of the
lesser and not the greater. (People v. Birks (1998) 19 Cal.4th 108, 118
(Birks).) However, a trial court has no sua sponte duty to instruct on lesser
offenses that are not necessarily included in the charged offense. “Rather, a
jury need only be instructed on offenses that the prosecution actually charged
either explicitly or implicitly (because they were necessarily included within
explicitly charged offenses).” (People v. Hicks (2017) 4 Cal.5th 203, 211,
italics added (Hicks).)
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To determine whether one crime is necessarily included in another,
courts must apply either the statutory elements test or the accusatory
pleading test. (People v. Shockley (2013) 58 Cal.4th 400, 404.) Under the
elements test, if the statutory elements of the greater offense include all of
the statutory elements of the lesser offense, the latter is necessarily included
in the former. (Ibid.) Under the accusatory pleading test, if the facts actually
alleged in the accusatory pleading include all of the elements of the lesser
offense, the latter is necessarily included in the former. (Ibid.) In a case like
this one, where the accusatory pleading merely incorporates the statutory
definition of the charged offense without referring to the particular facts, the
court must apply the elements test. (People v. Robinson (2016) 63 Cal.4th
200, 207.)
As Callahan acknowledges, the California Supreme Court has ruled
that the offense of gross vehicular manslaughter while intoxicated (§ 191.5,
subd. (a)) is not a necessarily included offense of murder. (People v. Sanchez
(2001) 24 Cal.4th 983, 988-992 (Sanchez).) Applying the elements test, the
court reasoned that “the statutory elements of murder do not include all the
elements of the lesser offense” because “[g]ross vehicular manslaughter while
intoxicated requires proof of elements that need not be proved when the
charge is murder, namely, use of a vehicle and intoxication.” (Id. at p. 989.)
The reasoning of Sanchez applies equally to gross vehicular
manslaughter under section 192, subdivision (c)(1). The statutory elements
of murder do not include all the elements of gross vehicular manslaughter
because gross vehicular manslaughter requires proof of an element not
required for murder, namely, “driving a vehicle.” (§ 192, subd. (c)(1).) Under
Sanchez, therefore, gross vehicular manslaughter is not a lesser included
offense of murder under the elements test. (People v. Bettasso (2020)
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49 Cal.App.5th 1050, 1057-1060; People v. Wolfe (2018) 20 Cal.App.5th 673,
685-686 (Wolfe).)
Callahan argues at great length that Sanchez was wrongly decided, but
he acknowledges that we are bound by the Supreme Court’s decision. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity).)
We therefore join our colleagues in Bettasso and Wolfe in holding that gross
vehicular manslaughter is not a lesser included offense of murder under
Sanchez. For this reason, the trial court committed no error by failing to
instruct the jury sua sponte on gross vehicular manslaughter.
B. Involuntary Manslaughter
Involuntary manslaughter (§ 192, subd. (b)) is ordinarily a lesser
included offense of murder. (Sanchez, supra, 24 Cal.4th at p. 988.) But the
relevant Penal Code section on involuntary manslaughter explicitly states:
“This subdivision shall not apply to acts committed in the driving of a
vehicle.” (§ 192, subd. (b).)
Because it is undisputed that Callahan caused the death while driving
a vehicle, there was no substantial evidence to support an involuntary
manslaughter instruction. (Wolfe, supra, 20 Cal.App.5th at p. 686 [in murder
case involving drunk driver who killed pedestrian, “the court was prohibited
from” instructing on involuntary manslaughter “because the crime does ‘not
apply to acts committed in the driving of a vehicle’ ”]; see also People v.
Munoz (2019) 31 Cal.App.5th 143, 154 [“If a defendant is charged with
murder caused by driving a vehicle while intoxicated . . . a trial court cannot
give an involuntary manslaughter instruction”].) “The trial court does not
have a duty to instruct on a lesser included offense if there is no substantial
evidence in support of it.” (People v. Leal (2009) 180 Cal.App.4th 782, 792.)
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II
Callahan next argues that he was entitled to a jury instruction on the
lesser related offense of gross vehicular manslaughter while intoxicated
(§ 191.5, subd. (b)). Alternatively, Callahan contends that even if he was not
entitled to such an instruction as a matter of right, the court erred by failing
to exercise its discretion to give it.
We again disagree. As we have explained, the Supreme Court has
ruled that gross vehicular manslaughter while intoxicated is not a lesser
included offense of murder. (Sanchez, supra, 24 Cal.4th at pp. 988-992.) It
has also ruled that a defendant has no right to have the jury instructed on a
lesser related offense over the prosecution’s objection. (Birks, supra,19 Cal.4th at pp. 112-113; see also People v. Taylor (2010) 48 Cal.4th 574, 622
[refusing to reconsider Birks].) Because “gross vehicular manslaughter while
intoxicated is a lesser related offense but not a lesser included offense” of
murder, the trial court correctly denied Callahan’s request to give such an
instruction over the prosecutor’s objection. (People v. Alvarez (2019)
32 Cal.App.5th 781, 790.)
We reject Callahan’s argument that the trial court had discretion to
instruct on a lesser related offense even over the prosecutor’s objection. As
the Supreme Court has made clear: “California law does not permit a court to
instruct concerning an uncharged lesser related crime unless agreed to by
both parties.” (People v. Jennings (2010) 50 Cal.4th 616, 668, italics added;
see also People v. Rangel (2016) 62 Cal.4th 1192, 1230 [“Under Birks,
‘instruction on a lesser related offense is proper only upon the mutual assent
of the parties.’ ”].) The Supreme Court has reasoned that a different rule
“would interfere with prosecutorial charging discretion, essentially allowing
the defendant, not the prosecutor, to choose which charges are presented to
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the jury for decision[.]” (Hicks, supra, 4 Cal.5th at p. 211 [discussing Birks].)
Once again, we are bound by these Supreme Court decisions. (Auto Equity,
supra, 57 Cal.2d at p. 455.)
III
Callahan argues that the trial court abused its discretion under
Evidence Code section 352 by admitting into evidence: (1) a photograph of
Sergeant Licon in uniform when he was alive; (2) autopsy photographs
showing his uniform and helmet; and (3) autopsy photographs showing
injuries to his body. Having reviewed the photographs ourselves, we find no
prejudicial abuse of discretion.
Evidence Code section 352 permits a trial court to exclude relevant
evidence if its probative value is substantially outweighed by the danger of
undue prejudice. The undue prejudice this provision is concerned with is that
which uniquely tends to evoke an emotional bias against the defendant as an
individual and which has very little effect on the issues. (People v. Chhoun
(2021) 11 Cal.5th 1, 29.)
A trial court has broad discretion to weigh the prejudicial effect of
proffered evidence against its probative value under Evidence Code section
352. (People v. Pierce (1979) 24 Cal.3d 199, 211.) We review such rulings for
abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1198.) The trial
court’s ruling will not be disturbed unless it exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice. (People v. Pineda (2022) 13 Cal.5th 186, 222.)
We conclude that the trial court did not abuse its discretion by
admitting the portrait photograph of Sergeant Licon in uniform while he was
alive. The Supreme Court has “permitted similar uses of photographs of
victims while alive” for identification purposes. (People v. Martinez (2003)
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31 Cal.4th 673, 692; see also People v. Tully (2012) 54 Cal.4th 952, 1021;
People v. DeSantis (1992) 2 Cal.4th 1198, 1230.) Even in cases where the
defense has “offered to stipulate to identity,” photographs of murder victims
while they were still alive may be shown to witnesses “ ‘to establish the
witnesses’ ability to identify the victims as the people about whom they were
testifying.’ ” (Tully, at p. 1021, quoting DeSantis, at p. 1230.) The trial court
here admitted the photograph for identification purposes, and the prosecutor
showed it to one CHP witness to establish the identity of the person he was
talking about. Moreover, the jury already knew that Sergeant Licon was a
CHP officer, and even defense counsel agreed it was “not the worst
photograph, from the defense’s perspective.” Based on our independent
review, we agree with the trial court that the photograph was not of a type
which uniquely tends to evoke an emotional bias against the defendant.
The trial court also did not abuse its discretion by admitting the
autopsy photographs of Sergeant Licon’s uniform and helmet. These
photographs were relevant to show the impact to Sergeant Licon’s left side
and head and to illustrate the collision reconstruction expert’s testimony
about how Callahan’s vehicle struck him. (See People v. Pollock (2004)
32 Cal.4th 1153, 1170-1171 [videotape and photographs showing murder
victim’s wounds “could assist the jury in understanding and evaluating the
witnesses’ testimony” and “were not inadmissible as being cumulative of the
witness testimony they were used to illustrate and support”].) There was
nothing gory or inflammatory about these photographs. The photographs of
Sergeant Licon’s uniform showed minor blood stains on his left sleeve, and
the photographs of his helmet showed scrapes and paint transfer from
Callahan’s vehicle. The trial court reasonably concluded that the probative
12
value of these photographs was not substantially outweighed by their
prejudicial effect.
Finally, the trial court did not abuse its discretion by admitting the
autopsy photographs of Sergeant Licon’s body and his injuries. These
photographs were relevant and admissible to illustrate the pathologist’s
testimony about Sergeant Licon’s injuries and how they caused his death.
(People v. Winbush (2017) 2 Cal.5th 402, 459; People v. Bryant, Smith and
Wheeler (2014) 60 Cal.4th 335, 423; People v. Montes (2014) 58 Cal.4th 809,
862.) They were also probative of the great bodily injury allegation. (People
v. Heard (2003) 31 Cal.4th 946, 975 (Heard).) Autopsy photographs in
murder cases “always are disturbing” but the mere fact “that they are graphic
and unpleasant to consider does not render the introduction of those images
unduly prejudicial.” (Id. at p. 976.) As the trial court noted, the prosecutor
here did not seek to admit any autopsy photographs showing the removal or
dissection of organs or other particularly gory images. Our independent
review of the few autopsy photographs admitted by the trial court convinces
us that “they are not unduly gory or inflammatory” and “do not appear to be
of the sort that might inflame a jury.” (Id. at p. 976-977.)
Callahan contends that the photographs had no probative value
because he never contested the fact that he struck and killed Sergeant Licon
while driving intoxicated, other evidence confirmed those facts, and his trial
counsel expressed a willingness to enter some form of stipulation on these
matters. But even if the defendant is willing to stipulate to a victim’s
identity, injuries, and cause of death, the prosecution is not obligated to
accept antiseptic stipulations in lieu of photographic evidence. (People v.
Johnson (2015) 61 Cal.4th 734, 767; see also People v. Morales (2020)
10 Cal.5th 76, 103-104; People v. Brooks (2017) 3 Cal.5th 1, 54.) “A trial court
13
cannot compel a prosecutor to accept a stipulation that would deprive the
state’s case of its evidentiary persuasiveness or forcefulness.” (People v.
Rogers (2013) 57 Cal.4th 296, 329.)
The older authorities cited by Callahan do not convince us that the trial
court abused its discretion. The Supreme Court in Heard rejected the
defendant’s reliance on these same cases, concluding that they “are
distinguishable and do not persuade us that the trial court erred in admitting
into evidence the photographs in question.” (Heard, supra, 31 Cal.4th at
p. 977, fn. 13, citing People v. Poggi (1988) 45 Cal.3d 306, 322-323, People v.
Gibson (1976) 56 Cal.App.3d 119, 134-135, People v. Smith (1973)
33 Cal.App.3d 51, 68-69, People v. Burns (1952) 109 Cal.App.2d 524, 541, and
People v. Love (1960) 53 Cal.2d 843, 856.) In Heard, the Supreme Court
concluded that photographs depicting the crime scene and the murder
victim’s body were relevant to illustrate and corroborate the testimony of
various prosecution witnesses, and were not inadmissible merely because the
defendant did not dispute cause of death or the nature and extent of the
victim’s injuries, or because the photographs were cumulative of facts
independently established by the testimonial evidence. (Heard, at pp. 972-
979.) We reach the same conclusion here.
In sum, we conclude that the trial court reasonably decided that the
admitted photographs were relevant and their probative value was not
substantially outweighed by their potentially prejudicial effect. Thus, the
trial court did not abuse its discretion by admitting these photographs into
evidence. (Heard, supra, 31 Cal.4th at p. 978.)
IV
Finally, Callahan asserts that the trial court erred by imposing a
$4,500 restitution fine (§ 1202.4, subd. (b)) and a stayed $4,500 parole
14
revocation fine (§ 1202.45) without making any determination that he had
the ability to pay them under People v. Dueñas (2019) 30 Cal.App.5th 1157(Dueñas).2
We conclude that Callahan has forfeited the ability to pay issue by
failing to raise it at sentencing, which occurred nearly three years after
Dueñas was decided. “The concept of forfeiture for failure to raise ability to
pay fines, fees or assessments is well established in our case law . . . .”
(People v. Keene (2019) 43 Cal.App.5th 861, 864 (Keene) [holding defendant
forfeited Dueñas issue by failing to raise it at sentencing even though he was
represented by counsel and “was aware of the recommended amount of
money proposed to be assessed against him”].)
Before Callahan’s sentencing, the probation department submitted a
report and recommendation. The report stated that Callahan made $90,000
per year as a manager at Costco until June 2019, when he resigned. The
probation department recommended imposition of a $4,500 restitution fine
(§ 1202.4, subd. (b)) and a suspended $4,500 parole revocation fine.
In his written sentencing statement, Callahan “urge[d] the court” not to
impose the recommended $4,500 restitution fine because “his family will need
every penny they can scrape together over the next several years to attempt
to keep the family home and feed and clothe [his] three children.” However,
Callahan did not argue that he lacked the ability to pay the recommended
fine. An attached letter from Callahan’s wife stated that she had been
employed at Costco for over 15 years.
At sentencing, the trial court imposed the $4,500 restitution fine and a
stayed $4,500 parole revocation fine, as recommended by the probation
2 Other California courts have disagreed with the holding of Dueñas, and
the issue is currently pending before our Supreme Court. (People v. Kopp
(2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.)
15
department. Callahan did not argue that he lacked the ability to pay these
fines and did not request a hearing on his ability to pay.
By failing to argue inability to pay or request a hearing on it in the trial
court, Callahan forfeited the issue. (Keene, supra, 43 Cal.App.5th at p. 864.)
Although Callahan did object to the $4,500 restitution fine in his sentencing
memorandum, he did so on the ground that his family would need the money,
not that he lacked the ability to pay it. (See People v. Gonzalez (2003)
31 Cal.4th 745, 755 [defendant’s objection to sentence on one ground did not
preserve others for appeal].) Even before Dueñas, defendants had a statutory
right to object to a restitution fine over the $300 minimum on the ground of
inability to pay. (§ 1202.4, subd. (c).) Callahan’s “silence [on the ability to
pay issue] is a classic example of the application of the forfeiture doctrine
relied upon by the California Supreme Court in numerous criminal
sentencing cases decided well before Dueñas.” (People v. Gutierrez (2019)
35 Cal.App.5th 1027, 1033 [holding defendant forfeited ability to pay
argument regarding restitution fine and fees by failing to object at
sentencing].)
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DISPOSITION
The judgment is affirmed.
BUCHANAN, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
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