Filed 12/23/19 P. v. Velazquez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(San Joaquin)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

ERNESTO GUARIONEX VELAZQUEZ,

Defendant and Appellant.

C086635

(Super. Ct. No. STK CR FE 2016 0000824 )

A jury found defendant Ernesto Guarionex Velazquez guilty of second degree murder while personally and intentionally discharging a firearm, two counts of carjacking while personally using a firearm, kidnapping while personally using a firearm, criminal threats, being a felon in possession of a firearm, and being a convicted felon carrying a loaded firearm in public.

Defendant appeals the murder conviction, arguing the trial court erred in refusing to instruct the jury on the lesser included offense of voluntary manslaughter based on imperfect self-defense. He further argues the trial court abused its discretion by denying his motion to strike his prior strike convictions under Penal Code section 1385, and erred by imposing the $300 restitution fine and $300 parole revocation restitution fine without first determining he had the ability to pay.

We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The Murder of Debora M.

On January 14, 2016, the day before the murder, defendant called Debora M.’s daughter, Ashley L., from Debora’s phone sounding angry and aggressive; he was out of breath and slurring his words. Defendant was Debora’s boyfriend. He told Ashley to tell Debora to go to the house because she was not there and he was “going to send [his] goons out for her.” He said he had people watching Debora and he had been watching the house as well; he “knew what was going on in the house without him being there.” When he hung up on Ashley, she called 911.

The police did a welfare check on Debora. Debora thought someone had burglarized her house but nothing was missing except for defendant’s items. She borrowed the police officer’s cell phone and left a message for defendant—“[i]f you’re done, just leave me alone and stay away.”

On the same day, defendant told his mother, Esperanza Sanchez, that he and Debora were splitting up. Sanchez testified defendant spent the night at her house but left around three the next morning stating “[Debora] ha[d] to go to work and she [was] scared at that time.” Sanchez said she spoke to Debora a little later while defendant was at Debora’s house; Debora asked Sanchez in slurred speech whether she could live with her because she was scared of the shootings in the area, stating “[t]hey won’t leave us alone” and if she called the police “there’s going to be a war.” Debora also said defendant was suicidal and she wanted to take care of him.

Defendant returned to Sanchez’s house a few hours later and took Sanchez to work. During the drive to work, defendant was on speaker phone with his friend “Spooky,” who sounded threatening to Sanchez. Sanchez also testified she felt threatened by “Spooky.”

Defendant returned to Sanchez’s house around 10:00 a.m. with his friend, Pico. Defendant briefly spoke to his niece, Gizelle Esperanza Melo Velazquez, about taking her to work. Melo Velazquez testified defendant was “on something for sure” and “freak[ed] [her] out.” He said people were following him. Defendant and Pico left and came back two and a half hours later.

What exactly happened next is unclear; Melo Velazquez’s testimony was inconsistent with her prior statement and testimony.

At trial, Melo Velazquez first testified Pico came in and told her they needed to leave because someone “shot up” a house and car; he said, “[p]eople are following us.” She heard yelling and one or more gunshots while inside, and saw Debora lying in the driveway when she went outside. Debora said someone shot her and “[t]hey [were] going to let [her] die.” Defendant and Pico were gone.

After refreshing her memory with her prior police statement, Melo Velazquez testified defendant, Pico, and Debora came to the house in a black car. Pico came inside the house and she heard yelling, but did not know what she said. Melo Velazquez went to her room to get her bag and tools for work and heard gunshots. When she went outside, she saw Debora lying on the driveway; the car was gone. She saw a car driving away but could not recall whether it was the same car in which Debora, defendant, and Pico arrived. She testified she did not tell the police officer that she helped Debora get out of the car or that Debora had been in the back seat. She did not recall telling the police officer that defendant left in the car after Debora was shot or that she saw the car leave and what direction it went.

During cross-examination, Melo Velazquez testified Pico knocked on her door and said someone “shot at the house” and “shot at the car.” She asked “[w]ho are these people?” and he responded “[t]hey are following us.” She recalled seeing a black car turn the corner and passing the house, going “too slowly.” She went to her room to gather items for work and heard gunshots; she saw Debora when she went outside and Debora said: “Call 911. They shot me. Don’t let me die.” She could not recall previously testifying that she saw two black cars going down the road. She said the incident was “like a big blur” and “always ha[d] been.” She did not think her earlier statement was any better in terms of her memory recall.

During redirect, the prosecution played a recording of Melo Velazquez’s statement given to a police officer at the scene of the murder. The statement was captured by the officer’s body camera. The prosecution also provided the jury with a transcript of the conversation. In her statement, Melo Velazquez said defendant, Debora, and someone else (whom she did not identify) arrived in Debora’s black car. Melo Velazquez heard Debora and defendant yelling at each other; she then went inside to grab some items. When she was walking back outside, Melo Velazquez heard a gunshot and saw Debora getting out of the car. Debora was halfway out of the car, “[w]hen they pushed her and they, just, left.” Melo Velazquez helped Debora to lie flat on the driveway.

Sanchez’s neighbor testified he heard screaming and a gunshot around noon on January 15th. He ran outside and saw three males get into a four-door, dark-color car and leave. Defendant was one of the males; he got into the back seat and was carrying a firearm.

Debora was shot twice—in the left thigh and the back. The gunshot in the back was fatal; the muzzle of the gun was less than an inch from Debora’s back when she was shot.

The First Carjacking

Armando L. was remodeling a house in Stockton on January 15, 2016. Defendant pointed a gun at him, and demanded the keys to his truck. Defendant left in the truck with a trailer attached.

The Second Carjacking, Criminal Threats, and Kidnapping

On the day of the shooting, defendant went to Esperanza L.’s home in the early afternoon, where he had previously lived with Debora. Esperanza’s daughters were home, including Ely D. Ely’s sister let defendant in. He asked whether their mother was home and Ely responded she was not. Ely was scared because defendant had a gun in his hand and kept checking the windows.

Defendant appeared to be on drugs, was not acting normal, was talking loud and fast, and repeated himself. Ely asked what he did; he responded “something bad.” He took Ely’s phone and called Esperanza. He said he wanted a ride and hung up on her because she told him to ask his mother.

When Esperanza arrived home, she told defendant she would give him a ride; she saw her daughters were frightened. Defendant got in the passenger seat, pulled out a gun, and laid it in his lap. He told Esperanza he shot Debora because she was cheating on him.

Defendant took Esperanza’s phone, broke it apart, and directed her where to drive. During the drive, he pointed to a car and said people had shot at it. He also directed her to a house and said “that’s where they fired the gunshots.” Defendant did not say anyone shot at him or that “they were trying to get him.”

Defendant would not let Esperanza leave when she asked and said he would shoot her if she tried anything. She thought he was drunk or on drugs; he talked loud and fast, and he was nervous and sweating. She was eventually able to get away.

DISCUSSION

1.0 Defendant’s Request to Instruct the Jury on Voluntary Manslaughter Based on Imperfect Self-defense

1.1 Defendant’s Instruction Request

Defendant asked the trial court to instruct the jury on voluntary manslaughter based on imperfect self-defense. Specifically, defense counsel said: “To make the record clear, Your Honor, the defense also had requested voluntary manslaughter on an imperfect self-defense ground, based upon the testimony of [Melo Velazquez], who testified to there being a slow moving black car that got her attention, a gunshot and that car fleeing with the idea if [Debora] had been killed in a fire [sic] fight, that would have allowed that. [¶] The Court had disagreed with me, I understand, is not instructing on that.” The judge responded: “Based on the testimony, I don’t find substantial evidence of imperfect self-defense, just not enough.” Defendant argues the trial court erred by refusing his instruction request.

1.2 The Trial Court Did Not Err by Rejecting the Instruction Request

“Imperfect self-defense applies where the defendant actually believes he or she is facing an imminent and unlawful threat of death or great bodily injury, and actually believes the acts which cause the victim’s death are necessary to avert the threat, but these beliefs are objectively unreasonable. [Citation.] Imperfect self-defense is not a complete defense to homicide. However, it negates malice aforethought and thereby reduces a homicide which would otherwise be murder to voluntary manslaughter. [Citations.] [¶] A trial court has no duty to instruct the jury on a defense—even at the defendant’s request—unless the defense is supported by substantial evidence.” (People v. Curtis (1994) 30 Cal.App.4th 1337, 1354-1355.) Substantial evidence in this context is not just any evidence, no matter how weak, but rather “ ‘ “evidence that a reasonable jury could find persuasive.” ’ ” (People v. Cunningham (2001) 25 Cal.4th 926, 1008; see People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12 [disapproving prior decisions containing language “to the effect that jury instructions must be given whenever any evidence is presented, no matter how weak”], superseded by statute on other grounds as stated in In re Christian S. (1994) 7 Cal.4th 768, 777.)

Defendant argues the following testimony amounted to substantial evidence supporting his instruction request: “[T]here had been shootings in the area of [Debora’s] residence; that she was afraid to go outside by herself; that someone had made a threatening telephone call to [defendant]; that [defendant] went back [to] [Debora’s] residence on the morning of the shooting because she was afraid to go to work alone; and that a black car slowly approached before the shooting.” Defendant believes “[w]hether rivals or friendly fire shot [Debora], the shooting was committed under circumstances establishing imperfect self-defense” because “[s]he could have moved into the line of fire while [defendant] was acting in the belief that he needed to defend himself or another person.” We disagree.

The fundamental problem with defendant’s argument is that, to require an instruction on imperfect self-defense, there must be evidence from which the jury could find that defendant “actually believe[d] in the need to defend himself against imminent peril to life or great bodily injury.” (People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262.) Defendant did not testify and made no out-of-court comments indicating that when he fired, he believed it necessary to defend his life or to avoid great bodily injury. It is true “ ‘substantial evidence of a defendant’s state of mind may be found in the testimony of witnesses other than a defendant.’ ” (People v. Oropeza (2007) 151 Cal.App.4th 73, 82.) Here, however, no witness testified that defendant fired the gun out of fear, defendant appeared fearful at the time of the shooting, or defendant believed deadly force was necessary to protect himself or another at the time of the shooting. The only substantial evidence of defendant’s state of mind at the time of the shooting was found in Esperanza’s testimony that defendant said he killed Debora because she cheated on him. The testimony regarding Debora’s fear for her own safety does not translate into evidence that defendant actually believed in the need to defend himself or another at the time of the shooting. The same is true of defendant’s conversation with “Spooky”—while Sanchez said she felt threatened by “Spooky’s” tone, there was no evidence defendant felt threatened by “Spooky.”

Moreover, none of the testimony upon which defendant relies amounts to substantial evidence of an imminent peril to life or great bodily injury at the time of the shooting. First, there was no evidence linking the purported shootings near Debora’s house to Sanchez’s house. Indeed, Sanchez testified Debora asked if she could live with Sanchez because Debora feared the shootings in her area; this indicates Debora believed Sanchez’s house and neighborhood were safe. Second, the threatening conversation between defendant and “Spooky” also does not establish imminent peril to life or great bodily injury. Sanchez testified “Spooky’s” tone was threatening and she felt threatened, but she did not testify regarding the substance of the conversation. There was also no evidence linking that conversation to the shooting. Third, the mere fact that a black car slowly passed by the house does not amount to substantial evidence of an imminent threat of death or great bodily injury. There was no evidence that the slow-moving vehicle was connected to the shootings Pico mentioned to Melo Velazquez, or that it was connected to Debora’s murder. Indeed, there was no evidence of a “fire fight,” rendering the defense’s theory untenable and not the result of imperfect self-defense.

In the absence of substantial evidence from which the jury could find that defendant actually believed in the need to defend himself against imminent peril to life or great bodily injury, no instruction on imperfect self-defense was necessary. The trial court thus did not err in refusing defendant’s instruction request.

2.0 Defendant’s Motion to Strike His Prior Strike Convictions

2.1 Defendant’s Motion

Defendant waived his right to a jury trial on his prior convictions and prior prison sentences. He then filed a motion to strike his robbery and criminal threats convictions under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), which the prosecution opposed.

The probation report reveals defendant had three felony convictions in 1993—robbery, second degree burglary, and receiving stolen property. He had a misdemeanor in 2001 for domestic violence and a fourth felony conviction for criminal threats with a second misdemeanor for domestic violence in 2003. In 2012, he had a fifth felony conviction for carrying a concealed weapon.

In his motion and during oral argument, defendant argued the robbery and criminal threats convictions were remote and nonviolent. The trial court denied the motion, explaining: “Now, we do have a very old conviction in the robbery conviction, but we have a pattern of criminal history, that he doesn’t go very long—I mean I think the longest, maybe he went from [19]95 to 2004—2002 without any convictions, but you have the [19]93 burglary and another [19]93 robbery. Then you have a felon in possession. Then you have two domestic violence convictions. [¶] So when you say the [criminal threats conviction] is a non-violent conviction, he was charged with [domestic violence] along with that [criminal threats]. So there’s two prior [domestic violence] convictions and this case arises out of domestic violence, where he went, basically on a mini crime spree throughout Stockton. [¶] So I don’t think there’s anything that [t]his Court could point to that we could say that [defendant] falls outside the spirit of the strike law. [¶] You have one or two violent felonies that happened a long time ago, you could say was, you know, based on addiction, but there’s just nothing that I can see that would lead me to grant this Romero motion.”

2.2 The Trial Court Did Not Abuse Its Discretion

We review the trial court’s denial of defendant’s section 1385/Romero motion for abuse of discretion; that is, defendant must show the sentencing decision was irrational or arbitrary. (People v. Carmony (2004) 33 Cal.4th 367, 375, 377.) It is not enough to show that reasonable people might disagree about whether to strike a prior conviction. (Id. at p. 378.) The three strikes law “not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm . . . . [T]he law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.” (Ibid.) Only extraordinary circumstances justify a finding that a career criminal is outside the three strikes law. (Ibid.) Therefore, “the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Ibid.)

In exercising its discretion under section 1385, the trial court considers the nature and circumstances of the defendant’s current crimes, the defendant’s prior convictions, and the particulars of his or her background, character, and prospects to determine whether the defendant falls “outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted” of his prior strike. (People v. Williams (1998) 17 Cal.4th 148, 161.)

Defendant’s arguments, advanced below and on appeal, do not persuade us any abuse of discretion occurred. This is not an extraordinary case; the record reveals no basis for concluding that, as a matter of law, defendant falls outside the spirit of the three strikes law.

With regard to the nature and circumstances of the current crimes, defendant argues the trial court failed to take into account his “mental state at the time of the ‘crime spree,’ ” which showed he “was in an altered mental state at the time of the commission of the offenses.” Defendant points to witnesses’ testimony that he appeared to be on drugs, did not sound like himself, was out of breath, slurring his words, sweating, nervous, talking fast, and acting paranoid, was not in his right mind, and wanted to commit suicide. He mentions that he “reported to both experts who were appointed to evaluate his mental competence to stand trial that people were following him and trying to kill him,” and believes the jury’s verdict of second degree murder “demonstrates that the jury found [his] mental state at the time of the shooting mitigated the degree of the homicide.”

It is true the trial court did not specifically mention defendant’s mental state during its discussion of the Romero motion; however, it was not required to do so. Where the record is silent, we will presume the trial court correctly applied the law. (People v. Carmony, supra, 33 Cal.4th at p. 378 [“ ‘On a silent record in a post-Romero case, the presumption that a trial court ordinarily is presumed to have correctly applied the law should be applicable’ ”].) This is especially true where, as here, defendant did not raise the issue of his mental state in his motion or during oral argument.

The foregoing witness statements regarding defendant’s mental state further do not demonstrate that the trial court’s decision was irrational or arbitrary. Even if we were to view the statements in the light most favorable to defendant, the existence of one or more mitigating factors does not render a trial court’s denial of a Romero motion an abuse of discretion. (See People v. Zichwic (2001) 94 Cal.App.4th 944, 961 [“An appellate court is not authorized to substitute its judgment of the relative weights of aggravating and mitigating factors properly considered by the trial court.”].) Where, as here, the record demonstrates the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we affirm the ruling. (Ibid.)

Defendant’s reliance on the experts’ reports is also misplaced. He relies on their reports to show that he told both experts “people were following him and trying to kill him.” Defendant’s self-serving statements to the experts do not, however, lead to an inference that the experts believed him. Indeed, in their reports, the experts noted defendant attempted to exaggerate concerns for effect and attempted to look impaired during the interviews. And, they found him competent to stand trial. We fail to see how defendant’s statements to the experts advance his contention that the trial court abused its discretion.

The same is true of defendant’s reliance on the jury’s second degree murder verdict. That the jury found him guilty of second degree murder does not mean that the jury agreed with defendant’s view of his mental state. Defendant ignores the other trial evidence supporting the second degree murder conviction—his statement that he murdered Debora because he believed she cheated on him—indicating an unlawful intent to kill.

Defendant further argues the prior strikes were remote and, because he committed the robbery when he was a teenager, striking the conviction would comport with current policy that “youthful offenders must be treated differently from adult offenders because of their age and developmental level of maturity or lack thereof.” He also believes the length of the sentence supports his argument because, “[w]ithout the ‘strikes,’ [he] still faced a very substantial period of incarceration” that “more than satisfies society’s need to incarcerate him until he is no longer likely to offend again.”

“In determining whether a prior conviction is remote, the trial court should not simply consult the Gregorian calendar with blinders on. To be sure, a prior conviction may be stricken if it is remote in time. In criminal law parlance, this is sometimes referred to as ‘washing out.’ [Citations.] The phrase is apt because it carries the connotation of a crime-free cleansing period of rehabilitation after a defendant has had the opportunity to reflect upon the error of his or her ways.” (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.) As the trial court noted, here, defendant did not have a crime-free cleansing period of rehabilitation after the convictions. The court explained defendant has “a pattern of criminal history,” including domestic violence convictions. While defendant attempts to minimize the convictions as “non-violent,” a robbery conviction carries with it a high risk of violence during the interaction with the victim and, as the trial court appropriately noted, defendant suffered the criminal threats conviction at the same time as the domestic violence misdemeanor.

Defendant is correct that his sentence is an overarching consideration when deciding a Romero motion “because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences.” (People v. Garcia (1999) 20 Cal.4th 490, 500.) However, the three strikes law “creates a strong presumption that any sentence that conforms to the[] sentencing norms is both rational and proper.” (People v. Carmony, supra, 33 Cal.4th at p. 378, italics added.) This presumption will be rebutted only if defendant meets his burden of showing the sentencing decision was irrational or arbitrary—a burden defendant has failed to carry. (Id. at pp. 376-377.)

The trial court’s comments at the hearing indicate it thoughtfully considered the relevant factors. The trial court carefully weighed the applicable factors under Romero and concluded defendant fell within the spirit of the three strikes law because defendant had “a pattern of criminal history.” The trial court’s determination was neither irrational nor arbitrary. Accordingly, we find no abuse of discretion.

3.0 Defendant’s Ability to Pay

Defendant asserts due process requires that we strike or stay the trial court’s imposition of the $300 restitution and parole revocation restitution fines because the trial court imposed the fines without first determining he had the ability to pay, citing People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168, 1172 (review on own motion declined and request for depublication denied Mar. 27, 2019, S254210 [holding it is improper to impose a court operations assessment, a criminal conviction assessment (identified in Dueñas as a facilities assessment), or restitution fine that is not stayed without first determining defendant’s ability to pay] (Dueñas)). In his reply brief, defendant alternatively requests that we remand the matter for the trial court to hold a hearing on his ability to pay.

The People counter that defendant forfeited this contention for failing to object in the trial court, his claim otherwise fails because the record does not show, nor did defendant prove, his inability to pay, and he failed to “show he suffered any adverse consequence of constitutional magnitude from his alleged inability to pay his fees.”

Although it is defendant’s burden to establish an inability to pay (accord, People v. Kopp (2019) 38 Cal.App.5th 47, 96 (Kopp) rev. granted Nov. 13, 2019, S257844; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 (Frandsen), review den. July 17, 2019, S255714), defendant neither objected to these fines generally nor asserted his inability to pay them (to refute the presumption that defendants capable of working who are serving a lengthy prison term will be able to pay assessments from prison wages (People v. Johnson (2019) 35 Cal.App.5th 134, 139, review den. Aug. 14, 2019, S256281)). (The defendant in Dueñas had in fact sought a hearing on her ability to pay on constitutional grounds. (Dueñas, supra, 30 Cal.App.5th at pp. 1162-1163.)) As a result, existing authority would hold that defendant has forfeited the issue on appeal (Frandsen, supra, 33 Cal.App.5th at pp. 1154-1155), although there is also authority to the contrary (Johnson, at pp. 137-138; People v. Castellano (2019) 33 Cal.App.5th 485, 489, review den. July 17, 2019, S255551). There is also settled law that failure to object to the amount of a restitution fine on the ground of inability to pay forfeits that issue on appeal. (People v. Nelson (2011) 51 Cal.4th 198, 227; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033, (Gutierrez) review den. Sept. 18, 2019, S256881 [failure to object to maximum restitution fine on ground of inability to pay forfeits Dueñas issue].)

In any event, subsequent published authority has called the reasoning of Dueñas into question. As digested in People v. Hicks (2019) 40 Cal.App.5th 320 (review granted Nov. 26, 2019, S258946) (Hicks), Dueñas is premised on authority involving a right under due process of access to the courts, and a bar against incarceration for an involuntary failure to pay fees or fines. (Hicks, at p. 325.) However, a postconviction imposition of fees and fines does not interfere in any respect with the right of access to either the trial or appellate court. (Id. at p. 326.) The postconviction imposition of fees and fines also does not result in any additional incarceration, and therefore a liberty interest that due process would protect is not present. (Ibid.) Since the stated bases for the conclusion in Dueñas do not support it, the question is whether due process generally otherwise compels the same result. (Hicks, at p. 327.) The People have a fundamental interest in punishing criminal conduct, as to which indigency is not a defense (otherwise, defendants with financial means would suffer discrimination). It would also be contrary to the rehabilitative purpose of probation if a court were precluded at the outset from imposing the payment of fees and fines as part of educating a defendant on obligations owed to society. (Id. at pp. 327-328.) “For the reasons set forth above, we conclude that due process does not [generally] speak to this issue and that Dueñas was wrong to conclude otherwise.” (Hicks, at p. 329.) Kingston, supra, 41 Cal.App.5th at page 279, agreed with Hicks.

Aviles also found Dueñas to be wrongly decided, finding the only proper limit on fees and fines is the constitutional prohibition against excessive fines under the Eighth Amendment to the Federal Constitution. (Aviles, supra, 39 Cal.App.5th at pp. 1061, 1067, 1069-1072; accord, Kopp, supra, 38 Cal.App.5th at p. 96, review gr.)

Therefore, we conclude defendant is not entitled to a remand for the trial court to consider his ability to pay the financial obligations as a matter of constitutional due process, or to strike or stay them. We therefore reject this argument.

DISPOSITION

The judgment is affirmed.

/s/

Butz, J.

I concur:

/s/

Hoch, J.

ROBIE, J., Concurring and Dissenting.

I concur in all parts of the Discussion except the majority’s “Ability to Pay” analysis in part 3.0. I agree with Dueñas that principles of due process would preclude a trial court from imposing the restitution and parole revocation restitution fines if the defendant demonstrates he or she is unable to pay them. (People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168.) As stated in Castellano, however, a trial court is required to determine a defendant’s ability to pay only if the defendant raises the issue, and the defendant bears the burden of proving an inability to pay. (People v. Castellano (2019) 33 Cal.App.5th 485, 490.) In the absence of authority invalidating the challenged fines on inability to pay at the time the trial court imposed them, defendant could not have reasonably been expected to challenge the trial court’s imposition thereof. (People v. Welch (1993) 5 Cal.4th 228, 237 [“[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence”].)

I also disagree that defendant’s failure to object to the mandatory minimum restitution fine forfeited his ability to pay argument on appeal. Nelson and Gutierrez were cases in which the trial court imposed the maximum restitution fine. (People v. Nelson (2011) 51 Cal.4th 198, 227; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.) The pertinent statute, Penal Code section 1202.4, provides a defendant’s inability to pay shall only be considered in increasing the amount of the restitution fine in excess of the mandatory minimum. (Pen. Code, § 1202.4, subds. (c), (d).) Thus, when the trial court imposed the mandatory minimum restitution fine, defendant had no reason under Penal Code section 1202.4 to object on the ground of inability to pay.

I believe a limited remand under Dueñas is appropriate to permit a hearing on defendant’s ability to pay the restitution fines because his conviction and sentence are not yet final. (See People v. Castellano, supra, 33 Cal.App.5th at pp. 490-491.)

/s/

Robie, Acting P. J.