People v. Breshears CA3

Filed 8/11/21 P. v. Breshears 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Trinity)
----
THE PEOPLE,
C092078
Plaintiff and Respondent,
(Super. Ct. No. 19F014A)
v.
SETH THOMAS BRESHEARS,
Defendant and Appellant.
THE PEOPLE, C092079
Plaintiff and Respondent, (Super. Ct. No. 19F014C)
v.
RYAN DAYMON FORTNER,
Defendant and Appellant.
A jury found defendants Seth Thomas Breshears and Ryan Daymon Fortner guilty
of five counts of second degree burglary (counts one, two, three, five, and six). Each
1
count pertained to a separate structure on the Department of Fish and Wildlife (DFW)
compound in Lewiston: the warden’s garage, the fisheries shop, the fisheries mobile
home, and two trailers. The jury found both defendants not guilty of burglary as to a
third trailer (count four). The jury also found Breshears not guilty of possession of a
firearm by a person who has previously been convicted of a felony (count seven) and
Fortner not guilty of causing a firearm to be carried concealed within a vehicle (count
eight).
The trial court denied probation and sentenced defendants to an aggregate split
term of five years and eight months: two years and eight months in county jail and three
years on mandatory supervision.
On our own motion, we consolidated Fortner’s and Breshears’s appeals for
purposes of oral argument and decision. A third defendant, Angela Michelle Latten, was
convicted of the same offenses and received the same sentence. We upheld her
conviction in a separate appeal. (People v. Latten (Apr. 23, 2021, C091889 [nonpub.
opn.].)
Latten raised none of the issues presented by her co-defendants. Fortner and
Breshears each argue: (1) their trial counsels rendered ineffective assistance by failing to
object to the prosecutor’s closing argument; (2) the trial court erred in failing to instruct
the jury with CALCRIM No. 224 on how to consider circumstantial evidence introduced
to prove an issue other than intent or mental state; (3) the cumulative effect of this
ineffective assistance of counsel and instructional error requires reversal; and (4) a 10
percent administrative fee on the victim restitution ordered by the court should be
stricken. Breshears also argues remand is required to determine his ability to pay other
fees. We conclude neither the cumulative effect nor the individual effect of the alleged
ineffective assistance of counsel or the trial court’s decision not to instruct the jury with
CALCRIM No. 224 necessitates reversal. We accept the People’s concession that the 10
percent administrative fees must be stricken. We also direct the trial court to correct a
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clerical error in Breshears’s abstract of judgment. In all other respects, we affirm the
judgments as to Fortner and Breshears.
I. BACKGROUND
On February 7, 2019, L. and B. lived overlooking the DFW buildings on Cemetery
Road in Lewiston. At around 9:30 p.m., L. saw a dark vehicle pull up to the buildings.
The vehicle was about 30 yards away. Three vehicle doors opened, and three figures
walked toward the largest building. After five to eight minutes, L. heard a grinder turn
on and what sounded like chains being rattled.
L. saw the door open to the largest building and a smaller office building. He also
saw the light go on in the smaller building. L. saw lights in the open trunk of the vehicle
as well, and he heard big metal objects being moved.
B. heard people talking and what sounded like something grinding a chain in half
coming from the DFW area. She went inside and called the sheriff. It was about 9:30
p.m. After the person she spoke to called back, B. gave the phone to L.
At about 9:33 p.m., Trinity County Sheriff’s Deputy Ruiz was dispatched to the
DFW compound on Cemetery Road due to a report of a suspicious looking dark sedan
and grinder noises. It took Deputy Ruiz 10 to 15 minutes to get there. While he was on
his way, dispatch told him the sedan had left the premises.
As Deputy Ruiz approached Cemetery Road, he saw what looked like a dark sedan
several hundred yards from the entrance to the DFW compound.
Deputy Ruiz stopped the sedan, and the driver identified himself as Fortner.
Latten was in the passenger seat and Breshears was sitting in the back seat behind her.
Fortner and Latten had marijuana residue on their clothing. Latten explained they were
coming from Redding and had been trimming marijuana. Fortner said he had been
picked up at the Plug and Jug about 15 minutes earlier. Deputy Ruiz remarked that it did
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not take that long to get there from the Plug and Jug, and Fortner said he had stopped by
the bridge to smoke.1
Other officers arrived, including DFW Officer Smith. Officer Smith testified that
the chain that crosses the entryway to the facility was down and the padlock that had
connected it appeared to have been ground. When he had last left the compound about a
week earlier, all of the doors of the buildings had been closed and the trailers had been
locked.
Among the items found in the sedan were marijuana residue, Muck boots, a
battery-operated grinder, a black toolbox with orange handles, a come-along, tie-downs, a
set of keys, a manila envelope, a camouflage motor cycle helmet, a backpack, a drill, an
air compressor, a battery, an evidence tag, and two cans of blackberry flavored Sparks—
one on the passenger-side floorboard and one in the pocket on the back of the driver’s
seat. The keys were turned over to Officer Smith because he believed they were from
one of the DFW buildings. The battery and helmet were also returned to Officer Smith.
The helmet was his. He identified the battery as belonging to the ATV that was kept in
one of the DFW buildings. The battery had been inside the backpack along with a .45
caliber firearm. Breshears told law enforcement that he had found the firearm.
Photographs of the bottom of Fortner’s, Breshears’s, and Latten’s shoes were
taken and compared to photographs of shoe prints from the crime scene. Deputy Ruiz
opined that Breshears’s shoes “had striking similarities” to one of the shoe prints from the
scene, and Latten’s appeared to have the same hexagon-shaped pattern as a different set
of shoe prints from the scene.
1 Deputy Ruiz testified that the Plug and Jug was only a couple of minutes way.
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DFW Officer Smith and a second sheriff’s deputy searched all of the DFW
buildings. The next day, Officer Smith and fellow DFW Officer Cardoza reinspected
each of the buildings defendants were ultimately convicted of burglarizing.
When Officer Smith first inspected the warden’s garage (count one) on the
evening of February 7, 2019, the door was ajar, and a light was on inside. There was an
ATV in the garage, but the helmet and battery for the ATV were missing. DFW Officer
Cardoza testified the garage looked like it had been ransacked.
The door to the fisheries shop (count two), which held tools, was wide open.
Some of the cabinets were open. Officer Cardoza believed the cable come-along that was
in the sedan came from the fisheries shop. A supervisor for the fisheries shop testified
that the cordless drill and grinder found in the sedan looked similar to items that were
used in the shop.
The door to the fisheries mobile home (count three) was wide open, and a window
was also open. Below the window were fresh footprints.
Trailer number one (count four) is an empty trailer. It was still locked, but it
appeared as if someone had tried to force his or her way into it. The back door was open
wide enough for someone to stick their head inside.
The door to trailer number two (count five), which held marijuana-related
evidence, was open. The cable lock that had been used to secure the door had been cut
and was on the ground. Marijuana from a tub was strewn around the inside of the trailer.
A can of blackberry Sparks was on the ground, open, mostly full, and still cold. DFW
Officer Cardoza testified that the evidence tag that was found in the sedan had his
handwriting on it and was from a marijuana sample that had been locked in trailer
number two. Likewise, the manila envelope had stored marijuana from an earlier case
and had been locked in trailer number two. According to Officer Cardoza, the marijuana
found in the back of the sedan was consistent with the marijuana in trailer number two,
which was old, dry, and brittle.
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Trailer number three (count six) was another evidence trailer. The padlock that
had secured the door had been cut, and the door was open. The door appeared to have
been pried open. Trailer number three contained evidence of butane honey oil lab
equipment. Officer Cardoza testified that he believed the tie-downs that were found in
the sedan were taken from trailer number three because they were similar to what holds
in place the butane and propane tanks. There was a black bag outside of trailer number
three that had been inside the trailer the week before.
Officer Cardoza opined that the toolbox that was in the sedan had come from the
fisheries shop (count two) or trailer number three (count six). He also opined the Muck
boots were taken from one of the DFW buildings based on their consistency with the
Muck boots he had seen in them.
Latten’s friend Jessica testified as part of her defense. Jessica said that on the
evening of February 7, 2019, she was in a subdivision off the main road in Lewiston with
Latten trimming marijuana. Latten left after getting into the front passenger seat of a
dark blue sedan at about 9:45 p.m.
Latten also testified that she was at a house in the Lewiston subdivision until 9:45
p.m. on February 7, 2019, when she got into the sedan driven by Fortner. She frequently
let Fortner borrow her car. Breshears was in the back seat. They drove past the Plug and
Jug and pulled over near a bridge to smoke. Latten denied picking Fortner up at the Plug
and Jug or going to the DFW compound that evening.
Latten denied stealing any items from the DFW compound. She testified that
various items found in the sedan, including the air compressor, keys, drill, and grinder
were hers. Other items, such as the Muck boots, helmet, and manila envelope were not
hers.
Officer Cardoza testified that the Plug and Jug had closed its business before July
2018 and just recently reopened. It was not open for business on February 7, 2019.
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II. DISCUSSION
A. Prosecutorial Misconduct
1. Closing Argument
During her closing argument, the prosecutor stated:
“Reasonable doubt is a concept that we use every day. We make decisions every
day based on reasonable doubt. Not beyond all doubt, not beyond a shadow of a doubt.
We talked about this for a long time on voir dire during jury selection.
“I would submit when you buy a car, you’re not convinced beyond all doubt. In
addition, you buy it based on reasonable doubt. You deal with things every day in your
life because you have no way of making decisions every day, beyond—based on beyond
all doubt.
“And when you buy a car, you don’t just buy it because you like the steering
wheel. You don’t just like it—you don’t just buy it because you like the tires. You don’t
just buy it because you like the miles per gallon.
“You look at it as a whole. You look at all of the evidence about that car. You
look at all of the facts you know about that car. And then you make the decision as to
whether you’re convinced beyond a reasonable doubt that this is the car for you.
“So it’s a concept we use every day. We don’t just look at bits and pieces of
things.”
2. Alleged Ineffective Assistance of Counsel
Fortner and Breshears (hereafter “defendants”) contend the prosecutor’s closing
argument trivialized the reasonable doubt standard, and their trial counsel rendered
ineffective assistance by failing to object.
“Advocates are given significant leeway in discussing the legal and factual merits
of a case during argument. [Citation.] However, ‘it is improper for the prosecutor to
misstate the law generally [citation], and particularly to attempt to absolve the
prosecution from its . . . obligation to overcome reasonable doubt on all elements
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[citation].’ ” (People v. Centeno (2014) 60 Cal.4th 659, 666 (Centeno).) “The case law
is replete with innovative but ill-fated attempts to explain the reasonable doubt standard.”
(Id. at p. 667.)
Defendants’ argument targets the prosecution’s suggestion that reasonable doubt is
a concept that jurors use every day. (See Centeno, supra, 60 Cal.4th at p. 672 [“It is
certainly proper to urge that the jury consider all [of] the evidence before it”].) People v.
Nguyen (1995) 40 Cal.App.4th 28 (Nguyen), discussed a similar assertion of prosecutorial
misconduct. In Nguyen, the prosecutor argued:
“ ‘The standard is reasonable doubt. That is the standard in every single criminal
case. And the jails and prisons are full, ladies and gentlemen. [¶] It’s a very reachable
standard that you use every day in your lives when you make important decisions,
decisions about whether you want to get married, decisions that take your life at stake
when you change lanes as you’re driving. If you have reasonable doubt that you’re going
to get in a car accident, you don’t change lanes.
“ ‘So it’s a standard that you apply in your life. It’s a very high standard. And
read that instruction, too. I won’t paraphrase it because it’s a very difficult instruction,
but it’s not an unattainable standard. It’s the standard in every single criminal case.’ ”
(Nguyen, supra, 40 Cal.App.4th at p. 35.)
The appellate court held that this was misconduct because it “trivialize[d] the
reasonable doubt standard.” (Nguyen, supra, 40 Cal.App.4th at p. 36.) The court
explained: “It is clear the almost reflexive decision to change lanes while driving is quite
different from the reasonable doubt standard in a criminal case. The marriage example is
also misleading since the decision to marry is often based on a standard far less than
reasonable doubt . . . .” (Ibid.) It concluded: “We strongly disapprove of arguments
suggesting the reasonable doubt standard is used in daily life to decide such questions as
whether to change lanes or marry.” (Ibid.) Likewise, our Supreme Court long ago stated
that “[t]he judgment of a reasonable man in the ordinary affairs of life, however
8
important, is influenced and controlled by the preponderance of the evidence. . . . But in
the decision of a criminal case involving life or liberty, something further is required.
There must be more than a preponderance of evidence. There must be in the minds of the
jury an abiding conviction, to a moral certainty, of the truth of the charge, derived from a
comparison and consideration of the evidence. They must be entirely satisfied of the
guilt of the accused.” (People v. Brannon (1873) 47 Cal. 96, 97.)
Despite the prosecutor’s misconduct, we conclude defendants have not
demonstrated ineffective assistance of counsel. This is because their counsels’ omissions
did not result in prejudice. To establish ineffective assistance, a defendant must show “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S. 668,
694; accord Centeno, supra, 60 Cal.4th at p. 676.)
It is not reasonably probable the prosecutor’s argument caused one or more jurors
to convict based on a lesser standard of proof than beyond a reasonable doubt. (See
Centeno, supra, 60 Cal.4th at p. 677.) “ ‘We presume that jurors treat the court’s
instructions as a statement of the law by a judge, and the prosecutor’s comments as words
spoken by an advocate in an attempt to persuade.’ ” (People v. Dalton (2019) 7 Cal.5th
166, 260.) The misconduct recognized in Nguyen is premised on the notion jurors do not
use the reasonable doubt standard in daily life; instead, they use a lesser standard. The
trial court correctly instructed the jury regarding the definition of reasonable doubt with
CALCRIM No. 220, including that “[p]roof beyond a reasonable doubt is proof that
leaves you with an abiding conviction that the charge is true.” The court also instructed
the jury that “[i]f you believe that the attorneys’ comments on the law conflict with my
instructions, you must follow my instructions.” “The court also gave the written
instructions to ‘the jury to consult during deliberations.’ ” (Dalton, supra, at p. 261.) We
presume the jury followed these instructions.
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Additionally, unlike in Centeno and contrary to defendants’ argument, the
evidence implicating them was strong. (See Centeno, supra, 60 Cal.4th at p. 677 [“this
was a very close case”].) Defendants were stopped in Latten’s car shortly after the
robbery with items that could have only come from different buildings in the DFW
compound. Latten did not explain the possession of all of these items and her testimony,
even if it could be believed, did not suggest her co-defendants’ innocence. We agree
with the People that on this evidence, combined with the instructions given, it is not
reasonably likely the jury would have reached a different result had counsel objected and
a curative instruction been given. Accordingly, defendants were not prejudiced by their
counsels’ failure to object to the prosecutor’s misconduct.
B. CALCRIM No. 224
Defendants contend the trial court erred in failing to instruct the jury with
CALCRIM No. 224 on how to consider circumstantial evidence introduced to prove an
issue other than intent or mental state.
An instruction on the principles contained in CALCRIM No. 224 “ ‘must be given
sua sponte when the prosecution substantially relies on circumstantial evidence to prove
guilt.’ ” (People v. Rogers (2006) 39 Cal.4th 826, 885.) “[B]ut it should not be given
where the evidence relied on is either direct or, if circumstantial, is not equally consistent
with a reasonable conclusion of innocence.” (People v. Heishman (1988) 45 Cal.3d 147,
167 (Heishman), abrogated on another ground in People v. Diaz (2015) 60 Cal.4th 1176,
1190.) Additionally, “ ‘CALCRIM Nos. 224 and 225 provide essentially the same
information on how the jury should consider circumstantial evidence, but CALCRIM No.
224 is more inclusive. [Citation.]’ [Citation.] CALCRIM No. 224 ‘is the proper
instruction to give unless the only element of the offense that rests substantially or
entirely on circumstantial evidence is that of specific intent or mental state.’ ” (People v.
Contreras (2010) 184 Cal.App.4th 587, 592.) Here, the trial court instructed the jury
with CALCRIM No. 225 and not CALCRIM No. 224.
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The People concede the prosecution relied on circumstantial evidence at least to
prove identity, but argue the trial court had no obligation to instruct the jury with
CALCRIM No. 224 because the circumstantial evidence was not equally consistent with
a reasonable conclusion of innocence. Breshears argues our Supreme Court has “moved
away” from this approach because the more recent Rogers and People v. Sandoval (2015)
62 Cal.4th 394, do not mention this principle and do not cite Heishman. We disagree.
The majority in neither opinion discusses Heishman or the rule articulated therein. “It is
axiomatic that cases are not authority for propositions not considered.” (People v. Ault
(2004) 33 Cal.4th 1250, 1268, fn. 10.) Thus, we remain bound by Heishman. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Regardless, the reason the instruction is not required where the circumstantial
evidence is not equally consistent with a reasonable conclusion of innocence overlaps
with the question of prejudice. As such, we will turn to that dispositive question. Where
the trial court fails to instruct with CALCRIM No. 224, we must determine whether there
is a reasonable probability that a properly instructed jury would have returned a verdict
more favorable to defendant. (People v. Rogers, supra, 39 Cal.4th at pp. 886-887; People
v. Watson (1956) 46 Cal.2d 818, 836; see also People v. Sandoval, supra, 62 Cal.4th at
pp. 421-422 [trial court erroneously failed to give instruction on finding special
circumstances based on circumstantial evidence].) “ ‘ “ ‘ “[A] ‘probability’ in this
context does not mean more likely than not, but merely a reasonable chance, more than
an abstract possibility.” ’ ” ’ ” (People v. Sandoval, supra, at p. 422.) “Further, the
Watson test for harmless error ‘focuses not on what a reasonable jury could do, but what
such a jury is likely to have done in the absence of the error under consideration. In
making that evaluation, an appellate court may consider, among other things, whether the
evidence supporting the existing judgment is so relatively strong, and the evidence
supporting a different outcome is so comparatively weak, that there is no reasonable
probability the error of which the defendant complains affected the result.’ ” (People v.
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Beltran (2013) 56 Cal.4th 935, 956.) Whether or not CALCRIM No. 224 was required, it
was not reasonably probable either defendant would have obtained a better result had the
instruction been given.
The jury was instructed that to prove a defendant was guilty of burglary, the
People had to prove the defendant entered a building or cargo trailer, and that when he or
she did so, he or she intended to commit theft. The jury was also instructed on aiding and
abetting.
The jury was instructed with CALCRIM No. 223 on the difference between direct
and circumstantial evidence and the fact that both may be used to prove or disprove the
elements of a charge. Additionally, the jury was instructed with CALCRIM No. 225 that
“[t]he People must prove not only that the defendant did the act charged, but also that he
or she acted with a particular intent. The instruction for each crime and allegation
explains the intent required. [¶] An intent may be proved by circumstantial evidence.
[¶] Before you may rely on circumstantial evidence to conclude that a fact necessary to
find the defendant guilty has been proved, you must be convinced that the People have
proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before
you may rely on circumstantial evidence to find the defendant had the required intent,
you must be convinced that the only reasonable conclusion supported by the
circumstantial evidence is that the defendant had the required intent. If you can draw two
or more reasonable conclusions from the circumstantial evidence, and one of those
reasonable conclusions supports a finding that the defendant did have the required intent
and another reasonable conclusion supports a finding that the defendant did not, you must
conclude that the required intent was not proved by the circumstantial evidence.
However, when considering circumstantial evidence, you must accept only reasonable
conclusions and reject any that are unreasonable.”
Like CALCRIM No. 225, CALCRIM No. 224 states: “Before you may rely on
circumstantial evidence to conclude that a fact necessary to find the defendant guilty has
12
been proved, you must be convinced that the People have proved each fact essential to
that conclusion beyond a reasonable doubt.” Additionally, the omitted pattern instruction
sets forth the following: “Also, before you may rely on circumstantial evidence to find
the defendant guilty, you must be convinced that the only reasonable conclusion
supported by the circumstantial evidence is that the defendant is guilty. If you can draw
two or more reasonable conclusions from the circumstantial evidence, and one of those
reasonable conclusions points to innocence and another to guilt, you must accept the one
that points to innocence. However, when considering circumstantial evidence, you must
accept only reasonable conclusions and reject any that are unreasonable.”
As in Rogers, the trial court’s decision not to give CALCRIM No. 224 could not
have affected the issue of intent, and as to the remaining issues of identity and entry (and
the non-intent aspects of aiding and abetting), the circumstantial evidence supporting the
jury’s determination was strong, and the evidence pointing toward innocence was weak.
(See People v. Rogers, supra, 39 Cal.4th at p. 886 [“Because CALJIC No. 2.02 was
given, the failure to give CALJIC No. 2.01 could have affected only the issue of identity.
On that issue, the evidence supporting the jury’s determination that defendant killed [the
victim], while circumstantial, was strong”].) Again, defendants were found in a vehicle
shortly after the robberies and just outside the DFW compound with various items that
could have only been explained by their entry into different DFW structures. The
circumstantial evidence pointed convincingly to their guilt on the counts on which they
were convicted and was not consistent with a reasonable conclusion of their innocence.
It may have been reasonable to conclude from the shoe patterns alone that defendants
were not present at the crime scene, but that was not a reasonable conclusion to draw
from the circumstantial evidence as a whole. Given the timeline of events, we cannot
conclude Fortner’s statement to the sheriff’s deputy that he had been picked up by Latten
and Breshears 15 minutes earlier (which was around the time the officer had been
dispatched during an ongoing robbery) altered the analysis of the circumstantial evidence.
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Moreover, the evidence supporting the judgments was so comparatively strong and the
other evidence so comparatively weak, it was not reasonably probable the alleged
instructional error affected the result. Accordingly, reversal is not warranted.
C. Cumulative Error
Defendants argue the cumulative effect of the alleged ineffective assistance of
counsel and instructional error requires reversal of their convictions. We have assumed
error with respect to the prosecutor’s closing argument and the instructions on
circumstantial evidence. Even considered together, these errors do not necessitate
reversal. (See People v. Nunez and Satele (2013) 57 Cal.4th 1, 63.)
D. Fees and Fines
1. Administrative Restitution Collection Fee
At sentencing, the trial court ordered both defendants to pay victim restitution in
the amount of $3,387.65. The court also imposed a 10 percent administrative fee and
indicated it was pursuant to Trinity County Ordinance 3.36.020.
On appeal, defendants argue, and the People concede, that the 10 percent
administrative fee should be stricken because the referenced county ordinance, and the
statute on which it relies, do not apply unless probation has been granted. We accept the
People’s concession. Trinity County Ordinance 3.36.020(A) provides “when a defendant
or defendants are ordered to make restitution to a victim or victims pursuant to . . .
[s]ection 1203.1, a fee may be imposed to cover the actual administrative cost of
collecting restitution not to exceed ten percent of the total amount ordered to be paid.”
Section 1203.1, in contrast to section 1202.4, only applies when the court grants
probation. (See People v. Anderson (2010) 50 Cal.4th 19, 26-29 [comparing sections
1203.1 and 1202.4].) Here, the trial court denied probation and victim restitution was
authorized under section 1202.4, subdivision (f). (People v. Rahbari (2014) 232
Cal.App.4th 185, 196, disapproved on another ground by People v. Bryant (July 29,
2021, S259956) __ Cal.5th __ [2021 Cal. LEXIS 5260, at *12, fn. 5] [“victim restitution
14
ordered as part of a sentence to county jail followed by mandatory supervision pursuant
to section 1170[, subdivision ](h) is an order pursuant to section 1202.4”].) As such, the
10 percent administrative fee was unauthorized and must be stricken.
2. Dueñas
Breshears challenges the trial court’s imposition of a $200 court operations
assessment (§ 1465.8) and a $150 court facilities assessment (Gov. Code, § 70373).
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Breshears argues the
trial court violated his right to due process and equal protection by not first conducting a
hearing on his ability to pay. The People respond that Breshears forfeited this argument
by failing to object in the trial court. We agree.2
The decision in Dueñas was issued more than a year before Breshears’s
sentencing. (Dueñas, supra, 30 Cal.App.5th 1157.) Breshears’s failure to object on the
basis of Dueñas forfeited this challenge. (See, e.g., People v. Avila (2009) 46 Cal.4th
680, 729 [rejecting argument that defendant was exempted from forfeiture because
restitution fine amounted to an unauthorized sentence based upon his inability to pay].)
That Breshears’s ability to pay claims are constitutional in character does not alter the
application of the forfeiture doctrine. (See People v. Trujillo (2015) 60 Cal.4th 850, 859
[constitutional exception to forfeiture rule did not apply to claim concerning failure to
obtain express waiver of an ability to pay hearing]; In re Sheena K. (2007) 40 Cal.4th
875, 880-881 [noting longstanding rule that a constitutional right may be forfeited in
criminal proceedings “ ‘ “by the failure to make timely assertion of the right before a
tribunal having jurisdiction to determine it” ’ ”].) Nor does his citation to the subsequent
People v. Son (2020) 49 Cal.App.5th 565, which agreed with Dueñas as to the
assessments he challenges on appeal, alter our conclusion. (See Son, supra, at pp. 577-
2 We note Breshears does not argue his trial counsel was ineffective in failing to object
based on Dueñas.
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578, 581.) The court in Son concluded “Dueñas error” is not forfeited if not raised in
pre- Dueñas proceedings. (Son, supra, at p. 597.) We conclude Breshears has forfeited
his claim of Dueñas error in a post-Dueñas proceeding.
Additionally, Breshears acknowledges his abstract of judgment does not
accurately reflect the amount of the assessments orally imposed, and that the oral
pronouncement controls. (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) We will
order Breshears’s abstract of judgment corrected.3
III. DISPOSITION
The 10 percent administrative fees are stricken. As modified, the judgments are
affirmed. The trial court is directed to correct the abstract of judgment for Breshears to
reflect the imposition of a $200 court operations assessment (§ 1465.8) and a $150 court
facilities assessment (Gov. Code, § 70373) as set forth in the oral pronouncement, and to
forward a certified copy of the abstract of judgment to the Department of Corrections and
Rehabilitation.
/S/
RENNER, J.
We concur:
/S/
BLEASE, Acting P. J.
/S/
ROBIE, J.
3 Fortner’s abstract of judgment requires no correction.
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