43 Cal.App.5th 861
Cal. Ct. App.2019Background
- Donald G. Keene pleaded guilty to failure to register as a sex offender and admitted a strike and a one‑year prison prior; the court later struck the strike prior.
- At sentencing the court imposed the middle term (2 years) plus a one‑year prison prior and assessed a $1,500 restitution fine and $224 in additional fees/assessments.
- Keene did not object at sentencing and did not request an ability‑to‑pay hearing; he had earlier been released on his own recognizance and failed to appear for sentencing.
- On appeal Keene relied on People v. Dueñas to argue that imposing fines/fees without an ability‑to‑pay hearing violated due process.
- The Court of Appeal held Keene forfeited the Dueñas challenge by failing to raise it at sentencing and rejected his ineffective‑assistance claim as unsupported on the silent record.
- After briefing, Senate Bill No. 136 (effective Jan. 1, 2020) changed the § 667.5(b) one‑year prior; the court remanded to strike that enhancement under Estrada and resentence.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Keene) | Held |
|---|---|---|---|
| Whether imposition of fines/fees/assessments without an ability‑to‑pay hearing violates due process | Forfeiture applies when defendant fails to object at sentencing; court need not sua sponte hold hearing | Dueñas requires a hearing and prosecution must prove present ability to pay; failure to hold one violates due process | Forfeited: defendant waived the challenge by not raising it at sentencing; Dueñas not applied to excuse forfeiture |
| Whether counsel was ineffective for not raising ability‑to‑pay at sentencing | No ineffective assistance; record silent and defendant cannot show deficient performance or prejudice | If forfeiture applies, counsel was ineffective under Strickland | Denied: silent record cannot establish Strickland claim; remedy would be habeas if substantiated |
| Whether Keene benefits from SB 136 eliminating the § 667.5(b) one‑year prior | New law applies retroactively to nonfinal cases under Estrada | Keene entitled to benefit because his case was nonfinal on Jan. 1, 2020 | Remanded: strike the § 667.5(b) enhancement and resentence; amend abstract of judgment |
Key Cases Cited
- People v. Dueñas, 30 Cal.App.5th 1157 (Cal. Ct. App. 2019) (held fines/fees imposed without ability‑to‑pay hearing may violate due process)
- People v. Frandsen, 33 Cal.App.5th 1126 (Cal. Ct. App. 2019) (held ability‑to‑pay challenge is forfeited if not raised at sentencing)
- People v. Kopp, 38 Cal.App.5th 47 (Cal. Ct. App. 2019) (discussed burden of proof and scope of ability‑to‑pay inquiry)
- People v. Aguilar, 60 Cal.4th 862 (Cal. 2015) (forfeiture principles applied to sentencing issues)
- People v. Trujillo, 60 Cal.4th 850 (Cal. 2015) (forfeiture doctrine in sentencing challenges)
- People v. Nelson, 51 Cal.4th 198 (Cal. 2011) (forfeiture and sentencing review)
- People v. Avila, 46 Cal.4th 680 (Cal. 2009) (forfeiture of sentencing issues)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong test for ineffective assistance of counsel)
- People v. Mendoza Tello, 15 Cal.4th 264 (Cal. 1997) (silent record ordinarily defeats ineffective‑assistance claims; habeas remedy suggested)
- In re Estrada, 63 Cal.2d 740 (Cal. 1965) (newly enacted penal statutes apply retroactively to nonfinal judgments)