People v. Esquivel CA4/1

Filed 6/15/22 P. v. Esquivel CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079885
Plaintiff and Respondent,
v. (Super. Ct. No. F17902384)
STEVEN ROY ESQUIVEL, JR.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County,
F. Brian Alvarez, Judge. Affirmed as modified.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General,
Carlos A. Martinez, Julie A. Hokans, and Jamie A. Scheidegger, Deputy
Attorneys General, for Plaintiff and Respondent.
A jury convicted Steven Roy Esquivel, Jr. of driving with a .08 percent
blood alcohol content causing injury (Veh. Code, § 23153, subd. (b); count 1);
driving under the influence causing injury (Veh. Code, § 23153, subd. (a);
count 2); leaving the scene of an accident involving permanent serious injury
(Veh. Code, § 20001, subd. (b)(2); count 3); and misdemeanor resisting arrest
(Pen. Code,1 § 148, subd. (a)(1); count 4.)2 The jury also found true that, as
to counts 1 and 2, Esquivel personally inflicted great bodily injury on three
separate victims (§ 12022.7, subd. (a)) and had a blood alcohol content of
.15 percent or higher (Veh. Code, § 23578). In a separate proceeding, after
waiving his right to trial, Esquivel admitted that he had suffered a prior
driving under the influence conviction.
The court sentenced Esquivel to prison for 13 years, comprised of the
following: for count 1, the upper term of three years, plus three consecutive
three-year terms for the great bodily injury enhancement for each of the
three victims; and one year for count 3. As to count 4, the court sentenced
Esquivel to 364 days in jail. The court stayed Esquivel’s sentence under
count 2 pursuant to section 654. In addition to other fines and fees, the court
imposed a $3,600 restitution fine (§ 1202.4, subd. (b)), a $3,600 parole
revocation fine (§ 1202.45); a $160 court security surcharge fee (§ 1465.8,
subd. (a)(1)), $120 court facility fee (Gov. Code, § 70373); and a $296
probation report fee (§ 1203.1b).
Esquivel appeals, contending the sentence imposed on count 2 should be
stayed under section 654; the evidence is insufficient to support his conviction
under count 4; and the case must be remanded so the court can hold an ability
to pay hearing before imposing any fines, fees, and penalties.
1 Statutory references are to the Penal Code unless otherwise specified.
2 The court granted the prosecutor’s motion to dismiss the original
count 4 (misdemeanor driving with a suspended license causing bodily injury;
Veh. Code, § 14601.4, subd. (a)) and ordered count 5 to be renumbered as
count 4.
2
While this appeal was pending, we granted Esquivel’s request to file a
supplemental brief wherein he argues that the probation report fee should be
stricken under Assembly Bill No. 1869 (2019–2020 Reg. Sess.) (Assembly
Bill 1869), which repealed the statute authorizing the probation supervision
fee (§ 1203.1b).
Also, we requested supplemental briefing regarding whether this
matter must be remanded for resentencing under the recently amended
section 654. The parties each provided supplemental briefs; both agreeing
that remand on this issue is not required.
We determine Esquivel’s arguments that the sentence for count 2
should be stayed under section 654 and the evidence was insufficient to
support his conviction under count 4 are without merit. In addition, we
conclude he has waived his challenge to the fees imposed. However, as the
People concede, Esquivel is entitled to relief under Assembly Bill 1869 and
the portion of the judgment requiring Esquivel to pay a probation report
preparation fee must be vacated. In addition, as Esquivel and the People
agree, there is no need to remand this matter back to the superior court to
resentence Esquivel under revised section 654 because the sentence options
under counts 1 and 2 were the same. In all other respects, the judgment is
affirmed.
FACTUAL BACKGROUND
Prosecution
On April 23, 2017, Claudio M. was in front of his house when he saw
Esquivel’s red Infiniti speeding toward the street “like a flash,” travelling
between 60 and 70 miles an hour. Claudio then heard an explosion. At about
this same time, sisters Crystal and Yesenia B. were in Crystal’s silver Honda
3
along with their cousin, Jennifer L.3 Claudio’s neighbors, Raymond and
Tabitha R., heard the collision out in front of their house; they saw Crystal’s
Honda in the bushes nearby and Esquivel’s red car facing their house.
Raymond and Tabitha watched Esquivel get out of his car, take a few
steps, then return to the vehicle and let a passenger out of the back seat.
Both Esquivel and the passenger walked away in separate directions.
Raymond and Tabitha got in their car, followed Esquivel, and contacted law
enforcement to apprise them of his location as he continued to walk away.
After following Esquivel for a few minutes, Raymond told Esquivel that he
had to return to the scene. Esquivel responded, “Oh, okay,” and turned
around as if he would do so. Instead of returning to the accident scene,
Esquivel ran into a nearby apartment complex and jumped over a wall.
Raymond and Tabitha continued to watch for Esquivel until law enforcement
arrived.
Numerous law enforcement officers participated in the manhunt for
Esquivel. Fresno Police Officer Kristopher Keener brought his police dog to a
nearby backyard to help in the search. Before entering the backyard, Keener
spent about 30 minutes driving around the block and providing a “PA canine
announcement” from the loudspeaker on his patrol car. The announcement
advised that canine was being used and directed any fugitive in the area to
surrender or risk being bitten by the canine. After repeatedly providing the
advisement, Keener and other law enforcement officers began to search the
backyard of a resident who reported someone hiding in her backyard. The
canine then found Esquivel hiding near the fence line.
3 It is undisputed that Crystal, Yesinia, and Jennifer were severely
injured in the accident.
4
When Detective Michael Aguilar first observed Esquivel, he
commanded him to get on his knees and show the officers his hands. Other
officers spent 40 to 50 seconds trying to put Esquivel under arrest, but he
refused to comply. Rather, and in contradiction of the officers’ instructions,
Esquivel stood up, took “a bladed stance,” and ignored the officers’
instructions to put his hands on his head. Esquivel appeared to begin
complying with the detective’s instructions to walk toward them with his
hands in the air.
But when Esquivel was about 15 feet from Aguilar, Esquivel again
defied the detective’s instructions and dropped his hands to his waistband.
Esquivel then raised his hands again, but turned half-way around so that his
right side was facing the officers. Esquivel put his left hand toward his
waistband, and the officers did not know if he had a weapon.
For officer safety, Keener released his canine to assist the officers in
apprehending Esquivel. The dog bit Esquivel’s leg and pulled him to the
ground so that officers could safely take Esquivel into custody. As he placed
Esquivel in custody, Aguilar could smell “a strong odor of alcohol coming from
[Esquivel’s] breath.”
During a search of Esquivel’s car, officers found two, empty 25-ounce
Bud Light beer cans.
A forensic toxicologist analyzed Esquivel’s blood and determined that
he had a blood alcohol content of .15 or .16.
Defense
Diana P. and his mother testified on Esquivel’s behalf. Diana testified
that Esquivel and his uncle had dinner at her house with her family around
the day of the collision. When they left Diana’s home, Esquivel’s uncle was
driving. Esquivel’s mother testified that she saw her son around 7:00 or 7:30
5
on the night of the incident with his uncle, Jacinto E. The next morning,
Esquivel’s mother went to look for Jacinto and noted that he was bruised on
his forehead and arms as though he had been in a car accident.
DICUSSION
I
Section 654
A. Esquivel’s Contentions
Esquivel contends the trial court erred by imposing a one-year sentence
on count 3 (leaving the scene of an accident causing severe and permanent
injury) because the offense arose from a single event (driving while
intoxicated) and was closely related in time and space to that single event. In
addition, the parties agree that this matter does not need to be remanded to
allow Esquivel’s sentence to be reconsidered under the recent amendment to
section 654.
B. Sentence for Count 3
At the time of Esquivel’s sentencing, section 654 provided that “[a]n 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.” (§ 654, former subd. (a).)
“ ‘[T]he purpose of section 654 “is to insure that a defendant’s
punishment will be commensurate with his culpability.” ’ ” (People v.
Capistrano (2014) 59 Cal.4th 830, 886.) In addition to precluding multiple
punishments for a single act, section 654 also precludes multiple
punishments for an indivisible course of conduct. (People v. Hester (2000)
22 Cal.4th 290, 294; People v. Tarris (2009) 180 Cal.App.4th 612, 626.)
“ ‘ “Whether a course of criminal conduct is divisible and therefore gives rise
6
to more than one act within the meaning of section 654 depends on the intent
and objective of the actor. If all of the offenses were incident to one objective,
the defendant may be punished for any one of such offenses but not for more
than one.” ’ ” (Capistrano, at p. 885.)
Whether a defendant had multiple intents or objectives is a question of
fact for the sentencing court (People v. Coleman (1989) 48 Cal.3d 112, 162),
and its findings will be upheld on appeal if supported by substantial
evidence. (People v. McGuire (1993) 14 Cal.App.4th 687, 698.) “We review
the trial court’s determination in the light most favorable to the [People] and
presume the existence of every fact the trial court could reasonably deduce
from the evidence.” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
Below, the prosecution argued that section 654 should not apply to
count 3 because count 1 and count 3 consisted of discrete acts, with the first
act consisting of Esquivel driving while impaired and causing a collision, and
the second act consisting of him leaving the scene. In contrast, defense
counsel argued that section 654 should apply because the two acts were
“closely intertwined” and occurred “closely within time[.]” After considering
arguments as well as the evidence adduced at trial, the court determined that
section 654 did not apply to count 3. In reaching this conclusion, it explained:
“So, the Court, accordingly, would find that there are
separate intents and objectives here with regards to Count
Three. Even though the offenses occurred very close in
time, that is the collision and then the failure to render aid
by running away from the scene, the Court would note that
the intent objective here tells it and the evidence and shows
it that Mr. Esquivel’s intent was to evade, get away and not
render assistance to the people whom he gravely injured.”
Nonetheless, Esquivel argues that the charges in his case all arose from
a single act or objective—driving under the influence of alcohol at a high rate
of speed and causing an accident resulting in bodily injury. He points out
7
had there been no accident, he could not have fled the scene. He therefore
argues that his leaving the scene was simply part of an indivisible course of
conduct that does not allow for multiple punishments. We disagree.
The court reasonably found that the crimes were different acts
motivated by different objectives: Esquivel had a general intent when he
negligently drove a motor vehicle with greater than a .08 percent blood
alcohol content and caused injury; and he had a separate and specific intent
of intentionally leaving the scene of the accident without rendering aid as
required by law. Indeed, Esquivel could have committed the driving of the
vehicle with at least a .08 percent blood alcohol content without also leaving
the scene of an accident before providing assistance. The fact that Esquivel’s
acts in furtherance of his escape may have occurred contemporaneously with
his driving under the influence does not alter this conclusion “because it is
well established that a defendant may harbor ‘separate and simultaneous
intents’ in committing two or more crimes, for purposes of section 654.”
(People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1007 [rejecting application
of the “escape rule,” under which robbery is said to continue until robber
reaches temporary safety, to section 654].)
Further, count 3 involved conduct that is not always criminal. Vehicle
Code section 20001 targets “not the hitting but the running.” (People v.
Campbell (2017) 12 Cal.App.5th 666, 674.) “ ‘The gravamen of a [Vehicle
Code] section 20001 offense . . . is not the initial injury of the victim, but
leaving the scene without presenting identification or rendering aid.’ ”
(People v. Harbert (2009) 170 Cal.App.4th 42, 59.) This is entirely different
from driving under the influence with at least a .08 percent blood alcohol
content, which is always a crime. This is especially true because the latter
8
could have been committed without the former. And there was substantial
evidence to support the trial court’s finding of separate intents.
Finally, the trial court’s decision is consistent with the purpose of
section 654. The purpose of section 654 is to ensure that a defendant’s
punishment is commensurate with his culpability. (People v. Correa (2012)
54 Cal.4th 331, 341.) If multiple punishments were prohibited in cases such
as this, there would be no incentive for a person who drives while under the
influence of alcohol and causes injury to stop and render aid as required by
Vehicle Code section 20001. “In fact, noncompliance would be rewarded. A
defendant would suffer no greater criminal liability if he took his chances on
escaping than if he stopped and rendered aid. Our Legislature could not and
did not intend such an absurd result.” (People v. Butler (1986) 184
Cal.App.3d 469, 474.) As such, the trial court did not err in imposing a one-
year sentence for count 3.
C. Amended Section 654
Effective January 1, 2022, section 654 was amended pursuant to
Assembly Bill No. 518 (Stats. 2021, ch. 441, § 1) to provide the trial court
with the discretion to choose the count for which it imposes punishment
rather than requiring the trial court to select the count with the longest
potential term of imprisonment. Specifically, section 654 now provides in
relevant part, “An act or omission that is punishable in different ways by
different provisions of law may be punished under either of such provisions.”
(§ 654, subd. (a).)
Here, the court determined that counts 1 (Veh. Code, § 23153, subd. (a))
and 2 (Veh. Code, § 23153, subd. (b)) arose from the same acts, and thus, it
sentenced Esquivel under count 1 and stayed count 2 per section 654.
Revised section 654 now allows the superior court to exercise discretion in
9
choosing which of the two counts to select for punishment rather than
requiring the greatest potential term of imprisonment. However, both
counts 1 and 2 provide the same sentencing range (16 months, two years, or
three years). (See Veh. Code, § 23554; People v. Toure (2015) 232 Cal.App.4th
1096, 1102.) As such, remand to allow the court to exercise its new discretion
under revised section 654 would have no impact.4 We will not order an idle
act. (See People v. Ledbetter (2014) 222 Cal.App.4th 896, 904 [remand is
improper if it would “be an idle act and ‘a waste of ever-more-scarce judicial
resources’ ”].)
II
RESISTING ARREST
Esquivel argues that substantial evidence does not support his
conviction for resisting arrest. We disagree.
“The proper test to determine a claim of insufficient evidence in a
criminal case is whether, on the entire record, a rational trier of fact could
find [defendant] guilty beyond a reasonable doubt.” (People v. Barnes (1986)
42 Cal.3d 284, 303.) “In determining whether a reasonable trier of fact could
have found defendant guilty beyond a reasonable doubt, the appellate court
‘must view the evidence in a light most favorable to respondent and presume
in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.’ [Citations.] . . . . ‘[O]ur task . . . is
twofold. First, we must resolve the issue in the light of the whole record . . . .
4 We concur with the parties’ conclusion that the revised version of
section 654 applies retroactively to non-final cases. (See, e.g., People v.
Superior Court (Lara) (2018) 4 Cal.5th 299, 308 [“ ‘in the absence of contrary
indications, a legislative body ordinarily intends for ameliorative changes to
the criminal law to extend as broadly as possible, distinguishing only as
necessary between sentences that are final and sentences that are not’ ”].)
10
Second, we must judge whether the evidence of each of the essential
elements . . . is substantial . . . .’ ” (People v. Johnson (1980) 26 Cal.3d 557,
576-577.) Substantial evidence in the criminal context is evidence that is
“reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.” (Id. at p. 578.) It
is immaterial whether we would have drawn those same inferences (People v.
Solomon (2010) 49 Cal.4th 792, 811-812); our job is not to reweigh the
evidence or reevaluate witness credibility (People v. Jones (1990) 51 Cal.3d
294, 314). “A reversal for insufficient evidence ‘is unwarranted unless it
appears “that upon no hypothesis whatever is there sufficient substantial
evidence to support” ’ the jury's verdict. [Citation.]” (People v. Zamudio
(2008) 43 Cal.4th 327, 357.)
“The legal elements of a violation of section 148, subdivision (a) are as
follows: (1) the defendant willfully resisted, delayed, or obstructed a peace
officer, (2) when the officer was engaged in the [lawful] performance of his or
her duties, and (3) the defendant knew or reasonably should have known that
the other person was a peace officer engaged in the performance of his or her
duties. [Citations.]” (People v. Simons (1996) 42 Cal.App.4th 1100, 1108-
1109.) While the statute does not “criminalize[ ] a person’s failure to respond
with alacrity to police orders” (People v. Quiroga (1993) 16 Cal.App.4th 961,
966), “physical resistance, hiding, or running away from a police officer have
been found to violate section 148” (In re Muhammed C. (2002) 95 Cal.App.4th
1325, 1329 (Muhammed). Evidence of willful resistance and failure to comply
with orders also supports a violation of section 148. (In re J.C. (2014) 228
Cal.App.4th 1394, 1400.)
Here, Esquivel argues that the evidence shows that he cooperated with
the commands of law enforcement, but he did so “slowly.” He further points
11
out that he had been involved in a car accident and was under the influence
of alcohol. Esquivel emphasizes that he complied with the officers’
commands to come out from behind the bushes and raised his hands while
doing so. He admits that he dropped one of his hands on several occasions,
contrary to what the officers were asking him to do. Essentially, he argues
he was complying with the officers’ instructions and simply “dropp[ed] his
hand on one or more occasions to his waist[,]” which he contends does not
violate section 148.
In making his argument that substantial evidence does not support his
conviction for resisting arrest, Esquivel predominately presents the evidence
in light favorable to the defense, drawing inferences from that evidence that
support his position. Yet, in conducting a substantial evidence review, as
discussed ante, we must look at the record in a light most favorable to the
judgment. (People v. Snow (2003) 30 Cal.4th 43, 66.) Considering the record
in this manner, we conclude that substantial evidence supports Esquivel’s
conviction under section 148, subdivision (a).
After fleeing from the scene of the accident, Esquivel hid from officers
and refused to comply with their commands. Moreover, this was not a brief
encounter where Esquivel could have been confused. Rather, Keener testified
that he circled the neighborhood of the house where Esquivel was hiding for
30 minutes. He repeatedly provided canine announcements and directed
Esquivel to surrender. Nonetheless, Esquivel continued to ignore officer
commands even after they found him hiding in the yard. And officers
struggled for 40 to 50 seconds to arrest Esquivel.
Although he began to comply by standing up and showing his hands,
Esquivel subsequently twice defied the officers’ orders. First, he took “a
bladed stance,” and ignored the officers’ instructions to put his hands on his
12
head. Second, just before Keener released his canine, Esquivel again put his
left hand near his waistband. The officers did not know whether Esquivel
possessed a weapon and was reaching for it. Put differently, the act of
Esquivel reaching for his waistband on two occasions potentially jeopardized
officer safety. Further, at the point Esquivel was arrested, officers had been
directing Esquivel to surrender for more than 30 minutes.
In Muhammed, supra, 95 Cal.App.4th 1325, the court listed the typical
types of physical actions comprising section 148 violations: “physical
resistance, hiding, or running away from a police officer.” (Muhammed, at
p. 1329.) In the instant matter, there was substantial evidence that Esquivel
concealed himself for a lengthy period of time despite the officers’ orders to
come out and surrender. Thereafter, once the officers commenced their
search in the backyard, Esquivel failed to submit to the officers’ attempts to
take him into custody. And even after Esquivel began to comply with the
officers’ commands, he twice dropped his hand to his waistband. At the time,
Esquivel had not been searched and officers did not know whether he had a
weapon concealed on his person.
Against this backdrop, we determine that the evidence does not simply
indicate that Esquivel was not acting with alacrity, as he urges, but he failed
to comply with repeated orders after a prolonged concealment. Such actions
or inaction supported a conclusion that Esquivel delayed and obstructed the
officers in the discharge of their official duty. Therefore, a reasonable
inference could be drawn from the evidence that Esquivel “willfully delayed
the officers’ performance of duties” by refusing to comply with the repeated
requests that he come out and surrender and instead hiding behind the tree
13
until found by a police dog. (See Muhammed, supra, 95 Cal.App.4th at
p. 1330.) In short, substantial evidence supported Esquivel’s conviction for
resisting arrest.
III
THE FINES, FEES, AND PENALTIES
At sentencing, the trial court imposed a $3,600 restitution fine under
section 1202.4, a $160 court operations fee under section 1465.8, a $120
criminal conviction assessment under Government Code section 70373, and a
$296 fee for preparation of the probation report under former section
1203.1b.5
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas),
Esquivel contends that imposition of these various fines, fees, and
assessments, without a determination of his ability to pay, violated his
constitutional right to due process. He contends his case should be remanded
to allow the trial court to determine whether he has the ability to pay these
amounts. Yet, as the People point out and Esquivel concedes, he did not
object to the imposition of any of these fines or request an ability to pay
hearing below. Accordingly, as we explain, we conclude Esquivel forfeited the
claimed Dueñas error.
Dueñas involved an indigent, disabled, and homeless mother of young
children who, due to illness, did not complete high school and subsisted on
public aid. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Dueñas
objected on due process grounds to the trial court’s imposition of various fines
and fees. (Id. at p. 1162.) “The court rejected Dueñas’s constitutional
5 The court also ordered victim restitution under section 1202.4,
subdivision (f) with the amount to be determined at a later time. Esquivel
does not challenge the imposition of victim restitution in the instant appeal.
14
arguments that due process and equal protection required the court to
consider her ability to pay these fines and assessments . . . .” (Id. at p. 1163.)
In reversing, the Court of Appeal in Dueñas observed, “Imposing unpayable
fines on indigent defendants is not only unfair, it serves no rational purpose,
fails to further the legislative intent, and may be counterproductive.” (Id. at
p. 1167.) The court therefore held 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 court facilities and court operations
assessments under Penal Code section 1465.8 and Government Code
section 70373.” (Id. at p. 1164.) The Dueñas court also held that “although
Penal Code section 1202.4 bars consideration of a defendant’s ability to pay
unless the judge is considering increasing the fee over the statutory
minimum, the execution of any restitution fine imposed under this statute
must be stayed unless and until the trial court holds an ability to pay hearing
and concludes that the defendant has the present ability to pay the
restitution fine.” (Ibid.)
The Courts of Appeal have reached different conclusions regarding the
substantive merits of the Dueñas opinion6 as well as the question of whether
a defendant forfeits any claim of error by failing to raise the issue in the trial
6 For example, the courts in People v. Hicks (2019) 40 Cal.App.5th 320,
326, review granted November 26, 2019, S258946, and People v. Aviles (2019)
39 Cal.App.5th 1055, 1061 disagreed with Dueñas, whereas the court in
People v. Belloso (2019) 42 Cal.App.5th 647, 654-656 followed Dueñas. In
addition, our high court has granted review in People v. Kopp (2019) 38
Cal.App.5th 47, 95-96, review granted November 13, 2019, S257844, wherein
this court distinguished and did not follow Dueñas. We need not address the
validity of Dueñas given our conclusion here that Esquivel forfeited his claim
of error.
15
court.7 Here, we find forfeiture based on the fact that Esquivel had the
ability to object to the $3,600 restitution fine under section 1202.4—even
before Dueñas was decided—but failed to do so. (See § 1202.4,
subds. (b) & (d) [the court may consider the inability of the defendant to pay
any fine above the statutory minimum amount of $300].) Where a statutory
basis to object based on inability to pay exists, but a defendant fails to assert
such a claim, the claim is forfeited. For example, in Gutierrez, this court held
that a defendant who fails to object to a restitution fine above the statutory
minimum forfeits any ability-to-pay argument. (Gutierrez, supra, 35
Cal.App.5th at p. 1033.) We reasoned that the statute governing imposition
of restitution fines “expressly permitted such a challenge” even before
Dueñas. (Gutierrez, at p. 1033.) The Dueñas decision does not compel a
different conclusion on the issue of forfeiture in such circumstances. (Ibid.
[“[E]ven if Dueñas was unforeseeable (a point on which we offer no opinion),
under the facts of this case [defendant] forfeited any ability-to-pay argument
regarding the restitution fine [above the statutory minimum] by failing to
object.”].) The same is true here, where Esquivel had the statutory right to
request that the trial court consider his ability to pay the restitution fee,
which was above the statutory minimum (§ 1202.4, subd. (d)), but failed to do
so. By failing to object to this fee, or seek an ability to pay hearing before the
court’s imposition of the fee, Esquivel forfeited his challenge on appeal.
7 For example, the courts in People v. Gutierrez (2019) 35 Cal.App.5th
1027, 1033 (Gutierrez), People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154-
1155, and People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 found
forfeiture, but the courts in People v. Johnson (2019) 35 Cal.App.5th 134, 137-
138, People v. Castellano (2019) 33 Cal.App.5th 485, 489, and People v. Jones
(2019) 36 Cal.App.5th 1028, 1033 did not find forfeiture.
16
Except for victim restitution, Esquivel’s remaining fines and fees were
mandatory regardless of ability to pay. (See Dueñas, supra, 30 Cal.App.5th
at pp. 1164, 1170.) But he plainly could have challenged about 79 percent of
the total—$3,300 of $4,156—based on ability to pay. Presumably, if he would
struggle to pay the full amount, objecting to 79 percent would be both
significant and rational. (See, e.g., Gutierrez, supra, 35 Cal.App.5th at
p. 1033.) For this reason, we conclude he forfeited his challenge to all the
fines and fees assessed.
IV
THE PROBATION REPORT PREPARATION FEE
As discussed ante, the trial court imposed a probation report
preparation fee under section 1203.1b. Effective July 1, 2021, Assembly Bill
1869 “ ‘eliminate[d] the range of administrative fees that agencies and courts
are authorized to impose to fund elements of the criminal legal system
and . . . eliminate[d] all outstanding debt incurred as a result of the
imposition of [identified] administrative fees.’ ” (People v. Greeley (2021) 70
Cal.App.5th 609, 625 (Greeley).) Assembly Bill 1869 repealed and amended
statutes that apply to certain fines and fees imposed in cases that were
pending on appeal when the legislation became effective. (People v. Clark
(2021) 67 Cal.App.5th 248, 252 (Clark).)
As applicable here, Assembly Bill 1869 amended the Penal Code by
adding section 1465.9, which states in relevant part: “On and after
July 1, 2021, the balance of any court-imposed costs pursuant to
Section . . . 1203.1b, . . . as [that section] read on June 30, 2021, shall be
unenforceable and uncollectible and any portion of a judgment imposing
th[at] cost[ ] shall be vacated.” (§ 1465.9, subd. (a); Clark, supra, 67
Cal.App.5th at p. 259; Greeley, supra, 70 Cal.App.5th at p. 625.)
17
The parties agree, and we concur, that the statutes enacted by
Assembly Bill 1869 apply to the probation report preparation fee imposed
pursuant to former section 1203.1b and is unenforceable and uncollectable,
and the portion of the judgment imposing those costs must be vacated.
Accordingly, we vacate the portion of the judgment imposing the $296
probation report preparation fee.
DISPOSITION
We vacate the portion of the judgment imposing any fees under former
section 1203.1b. In all other respects, the judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
DO, J.
18