People v. Gutierrez
247 Cal. Rptr. 3d 850
Cal. Ct. App. 5th2019Background
- Defendant Salvador R. Gutierrez was convicted by jury of nine counts of lewd and lascivious acts on a child (Pen. Code § 288(a)) based on abuse of his granddaughter; jury and bifurcated findings supported numerous prior convictions and enhancements, producing a very long aggregate sentence.
- On appeal (Gutierrez I) the court rejected an ineffective-assistance impeachment claim but found insufficient evidence to treat an Arizona conviction as a California serious-felony/strike prior; case remanded for resentencing.
- At resentencing the court recalculated an aggregate determinate and indeterminate term (resulting in 35 years plus 100+ years to life as described) and reimposed a $10,000 restitution fine and several fees/assessments without an ability-to-pay hearing; defendant did not object at sentencing.
- After remand defendant raised for the first time an Eighth Amendment "cruel and unusual" challenge to the new sentence and, via a petition for rehearing, relied on People v. Dueñas to seek an ability-to-pay hearing for the fines and fees.
- The appellate court remanded only to permit the trial court to consider striking one or more serious-felony priors under § 667(a)(1) (i.e., resentencing limited to that discrete issue); in all other respects (including fines, fees, and assessments) the judgment was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether resentencing was required beyond prior-prior findings | People: trial court correctly imposed priors/enhancements except where insufficient evidence showed Arizona conviction was a California serious prior | Gutierrez: trial court improperly treated Arizona conviction as a California serious/strike prior and made factual findings for enhancements | Court remanded only to allow trial court to reconsider striking one or more §667(a)(1) serious-prior enhancements; otherwise affirmed |
| Whether defendant forfeited ability-to-pay challenge under Dueñas | People: defendant forfeited ability-to-pay objection by not raising it at sentencing or earlier; statutory provisions allowed objection to restitution only where above minimum | Gutierrez: Dueñas creates a new constitutional right to a preassessment ability-to-pay hearing and thus might excuse failure to object earlier | Court: defendant forfeited the Dueñas-based challenge here (failure to object when statutory mechanism existed for restitution above minimum and court expressly found ability to pay); affirmed fines/fees |
| Whether Dueñas should be applied retroactively or excused as unforeseen change in law | People: Dueñas may be unforeseeable in some contexts but where statutory rights existed defendant had two opportunities to object | Gutierrez: relied on Dueñas and argued relief should be available on remand | Court did not decide correctness of Dueñas generally; applied forfeiture doctrine and affirmed fines/fees on that basis |
| Whether fines/fees violated federal/state constitutional prohibitions (Eighth/Due Process) | Defendant: fines/fees imposed without ability-to-pay hearing violate due process and/or are excessive | People: forfeiture bars claim; in any event fines/fees are not constitutionally excessive here | Court: declined to reach merits of Eighth Amendment claim given forfeiture; affirmed fines/fees; concurrence urged Eighth Amendment analysis but still would affirm in this case |
Key Cases Cited
- People v. Dueñas, 30 Cal.App.5th 1157 (Cal. Ct. App. 2019) (held trial court must conduct an ability-to-pay hearing before imposing certain assessments and stay restitution execution until present ability to pay is found)
- People v. Frandsen, 33 Cal.App.5th 1126 (Cal. Ct. App. 2019) (discussed forfeiture and applicability of Dueñas to maximum restitution fines)
- People v. Castellano, 33 Cal.App.5th 485 (Cal. Ct. App. 2019) (applied Dueñas and excused forfeiture where Dueñas was unforeseeable at sentencing)
- People v. Johnson, 35 Cal.App.5th 134 (Cal. Ct. App. 2019) (excused forfeiture in some Dueñas contexts; analyzed harmlessness where defendant could pay)
- People v. Aguilar, 60 Cal.4th 862 (Cal. 2015) (forfeiture doctrine applied to sentencing/costs challenges)
- People v. Trujillo, 60 Cal.4th 850 (Cal. 2015) (forfeiture doctrine applied to sentencing-related claims)
- People v. Nelson, 51 Cal.4th 198 (Cal. 2011) (failure to object to lack of ability-to-pay consideration forfeits the claim)
- Griffin v. Illinois, 351 U.S. 12 (U.S. 1956) (due process and equal protection require access to appellate review for indigent defendants via free transcript)
- United States v. Bajakajian, 524 U.S. 321 (U.S. 1998) (Excessive Fines Clause proportionality test; factors include culpability, harm/penalty relation, similar penalties, and ability to pay)
- People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., 37 Cal.4th 707 (Cal. 2005) (discusses Bajakajian factors for excessive fines analysis)
- Timbs v. Indiana, 139 S. Ct. 682 (U.S. 2019) (Excessive Fines Clause applicable to states)