People v. Rojas CA3 ( 2022 )

Filed 10/31/22 P. v. Rojas CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Tehama)
----
THE PEOPLE, C095042
Plaintiff and Respondent, (Super. Ct. No. 20CR002739)
v.
KAREN MARIE ROJAS,
Defendant and Appellant.
Defendant Karen Marie Rojas pleaded guilty to vehicular manslaughter. On
appeal, she relies on People v. Dueñas (2019) 30 Cal.App.5th 1157 to contend the trial
court’s order imposing various fees, fines, and assessments lacked substantial evidence
and violated her constitutional rights to due process and equal protection and to be free
from excessive fines. We conclude defendant forfeited her Dueñas claim by failing to
raise an ability to pay objection at the sentencing hearing. Accordingly, we affirm the
judgment.
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FACTUAL AND PROCEDURAL BACKGROUND
On October 30, 2017, defendant drove her car the wrong direction on a freeway
and crashed into another car; the driver of the other car later died from injuries sustained
in the crash. Defendant pleaded guilty to gross vehicular manslaughter. (Pen. Code,
§ 192, subd. (c)(1).)1 On October 7, 2021, the trial court placed defendant on two years’
probation with 365 days in jail. The court also imposed a $600 restitution fine
(§ 1202.4), a $600 stayed probation revocation fine (§ 1202.44), a $40 court operations
assessment (§ 1465.8), and a $30 conviction assessment (Gov. Code, § 70373).
Defendant timely appealed; the case was fully briefed on August 29, 2022, and assigned
to this panel on September 5, 2022. The parties waived argument and the case was
deemed submitted on October 28, 2022.
On February 28, 2022, while this appeal was pending, defendant’s appellate
counsel filed a request under section 1237.2 to stay the fines and fees imposed pending an
ability to pay hearing. After holding a hearing, the trial court declined to stay or alter the
fines and fees.
DISCUSSION
Defendant challenges the imposition of the fines and fees. First, she argues “it is
fundamentally unfair to impose the Government Code section 70373 and Penal Code
section 1465.8 assessments where substantial evidence does not support that appellant
has the ability to pay.” Second, she argues imposition of the section 1202.4 fine violated
her rights to due process and equal protection as well as the Eighth Amendment
prohibition against excessive fines. We find defendant forfeited her Dueñas claim by
failing to raise it at any point during the sentencing hearing.
1 Undesignated statutory references are to the Penal Code.
2
A defendant generally forfeits a claim not first raised with the trial court, even if
the claim is constitutional in nature. (In re Sheena K. (2007) 40 Cal.4th 875, 880-881.)
This forfeiture rule applies to claims relating to the imposition of assessments, fines, and
fees imposed at sentencing as well. (People v. Greeley (2021) 70 Cal.App.5th 609, 624;
see People v. Trujillo (2015) 60 Cal.4th 850, 856 [“claims of error in the trial court’s
exercise of its sentencing discretion are . . . forfeited if not raised at the sentencing
hearing”]; People v. Gamache (2010) 48 Cal.4th 347, 409 [the defendant forfeited his
claim that the trial court erred in imposing a victim restitution fine by failing to object at
his sentencing hearing].)
The two assessments defendant challenges for substantial evidence are mandatory
fees. (§ 1465.8 [“an assessment of forty dollars ($40) shall be imposed on every
conviction for a criminal offense”]; Gov. Code, § 70373 [“an assessment shall be
imposed on every conviction for a criminal offense”]; People v. Woods (2010) 191
Cal.App.4th 269, 272 [“the facilities assessment, restitution fine and court security fee are
mandatory”].) The appellate court in Dueñas found otherwise, and defendant relies on
Dueñas to assert an ability to pay must be determined prior to imposition of these fees.
(See People v. Dueñas, supra, 30 Cal.App.5th at 1168 [“the assessment provisions of
Government Code section 70373 and Penal Code section 1465.8, if imposed without a
determination that the defendant is able to pay, are thus fundamentally unfair”].) But
defendant’s sentencing hearing took place on October 7, 2021, over 32 months after the
issuance of the Dueñas decision on January 8, 2019.
Defendant’s trial counsel did not object at any point during the sentencing hearing
to the assessments, which the trial court is statutorily mandated to impose absent any
decision it may make to follow the Dueñas court and grant defendant an ability to pay
hearing. Defendant’s failure to object to these assessments at sentencing and ask the trial
court to consider Dueñas and determine her ability to pay forfeited her Dueñas argument
by operation of normal rules of appellate review. (People v. Scott (1994) 9 Cal.4th 331,
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351-354 [to preserve a sentencing issue for appellate review, the defendant must raise it
in the trial court].)
Defendant did submit a section 1237.2 request to the trial court making
substantially similar arguments, but this does not excuse her forfeiture. In order to
preserve a claim on appeal under section 1237.2, a defendant must either “first present[]
the claim in the trial court at sentencing” or first make a motion for correction in the trial
court in the event “the error is not discovered until after sentencing.” In other words,
section 1237.2 only permits defendants to preserve an otherwise forfeited claim (by first
objecting to fines and assessments after sentencing) where they were unaware of the error
at the time of sentencing. (See People v. Torres (2020) 44 Cal.App.5th 1081, 1087
[§ 1237.2 allows the trial court to retain jurisdiction while an appeal is pending so a
defendant who belatedly discovers an erroneous fine does not forfeit their claim on
appeal].)
Here, defendant’s request was made while this appeal was pending and after her
sentencing hearing. Counsel is presumed to know the applicable law; any alleged error in
the imposition of the disputed monetary amounts at sentencing was in no way
undiscovered until after defendant’s sentencing. (See People v. Barrett (2012) 54 Cal.4th
1081, 1105 [counsel is presumed to know applicable law].) Because defendant fails to
demonstrate (or even attempt to argue) that she was unaware of the alleged error at the
time of sentencing, the request to the trial court is insufficient to preserve defendant’s
Dueñas claim on appeal. And, importantly, defendant’s argument on appeal is that
insufficient evidence supported an ability to pay the assessments challenges the trial
court’s refusal to modify the fees at the section 1237.2 hearing, not at the sentencing
hearing, where defendant failed to request an ability to pay hearing or otherwise
challenge the validity of the fees.
Defendant’s claims are also forfeited as to the restitution fine because the trial
court imposed a $600 restitution fine, double the statutory minimum of $300. (§ 1202.4,
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subd. (b)(1).) Defendant had an additional opportunity to object to the restitution fine
based on an inability to pay because the statute authorizing the fine expressly permitted
such a challenge. (See § 1202.4, subds. (b)(1), (c) [defendant’s inability to pay may be
considered in increasing the restitution fine above the $300 statutory minimum], id.,
subd. (d) [defendant bears the burden of demonstrating his or her inability to pay a
restitution fine in excess of the statutory minimum].) Defendant’s failure to preserve her
claim as to the restitution fine results in forfeiture of this claim and also provides an
additional basis to find forfeiture of the assessments imposed under section 1465.8,
subdivision (a)(1) and Government Code section 70373. (See People v. Frandsen (2019)
33 Cal.App.5th 1126, 1154 [given the defendant’s failure to object to $10,000 restitution
fine based on inability to pay, the defendant failed to show a basis to vacate substantially
smaller assessments]; People v. Montelongo (2020) 55 Cal.App.5th 1016, 1034 [accord].)
DISPOSITION
The judgment is affirmed.
/s/
Duarte, Acting P. J.
We concur:
/s/
Hoch, J.
/s/
Renner, J.
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