Filed 1/27/20 P. v. Carella CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT LEWIS CARELLA,

Defendant and Appellant.

G056489

(Super. Ct. No. 13HF0941)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.

Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natatsha Cortina and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Robert Lewis Carella appeals from the judgment following his conviction on one count of continuous sexual abuse of a child under the age of 14. (Pen. Code, § 288.5, subd. (a).) He was sentenced to 16 years in prison. Carella argues the trial court erred in denying his motion to exclude evidence of statements he made to law enforcement after his arrest. He contends these statements were taken in violation of his Miranda rights and were coerced. We find no error in the trial court’s ruling and affirm the judgment.

Before Carella spoke to investigators he was advised of his Miranda rights, and the evidence demonstrates he agreed to speak with knowledge of those rights. The facts also support the conclusion Carella voluntarily waived his Miranda rights in the absence of an express waiver. There was nothing coercive about the interrogation itself, which was conducted in a public place, lasted roughly 80 minutes, and was peppered by the investigators’ offers to terminate it. Although the investigators made deceptive statements during the interrogation, including a claim that they had DNA evidence establishing Carella’s sexual contact with the victim, we do not believe their deception was likely to induce a false confession.

Carella also argues his interrogation was tainted by earlier admissions he made to the victim during recorded phone calls arranged by the police. Carella suggests those recorded calls were improperly coercive because the victim did not disclose she was working as an agent of the police during the calls, and because she engaged in a ruse to play on his empathy as a means of eliciting admissions. But the cases Carella relies upon to challenge the undisclosed agency are inapplicable because he was not in custody and had not been charged at the time of the calls. The fact that Carella was unaware of police involvement in the calls negates any claim of official coercion.

In a supplemental brief, Carella also challenges the court’s imposition of $70 in court facilities and operations fees, a $300 sex offense fine, a $3,200 restitution fine, and a separate $3,200 parole revocation fine (which was stayed), arguing pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157, that he was denied due process when the court imposed the fees without first determining he had the ability to pay them. The claim is unpersuasive. The record indicates the court did consider Carella’s ability to pay, and made an explicit determination that he had the ability to pay the $3,200 restitution fine, citing his future earning capacity and the fact payment could be made from his prison wages. Carella failed to contest this finding at the trial level, and thus he has waived the point.

FACTS

Carella’s victim, L.S., is his niece by marriage. In August 2008, when L.S. had just turned 12, Carella moved to Orange County where L.S. lived with her family, and he visited regularly. He was 29 years old at that time.

Within a few months after Carella’s move to Orange County, he took L.S. and her younger sister on a trip to the Pala Casino, where they stayed at a hotel. L.S. and her sister were supposed to share one bed in the hotel room, while Carella took the other. However, after L.S.’s sister fell asleep, Carella moved her sister into his bed, and then got into the other bed with L.S. He began kissing and groping her, and they eventually had sexual intercourse that same night.

After that incident, Carella and L.S. treated each other like a “boyfriend” and “girlfriend.” He picked her up from school regularly, bought her jewelry and makeup, and took her places. He held her hand when other family members were not present, and had sex “whenever [they] could,” which L.S. estimated to be one to two times per week at either L.S.’s house or a rented room where Carella lived. The two of them also engaged in oral sex on multiple occasions.

The sexual relationship between Carella and L.S. continued for about a year and a half, until Carella moved away in May of 2010. Carella returned to Orange County in November of 2010, and appeared interested in resuming his relationship with L.S., who was then 14. She was not interested and did her best to avoid him. Within a month or two, she stopped communicating with him.

L.S. testified Carella attempted to re-establish contact in March 2013, by texting “Peekaboo” to her, which had been his way of “saying ‘Hi, it’s me. How are you?’” She was scared by the attempt, which prompted her to tell her stepfather and mother about the text messages. L.S. then told her mom, “I’ve made a mistake and that I slept with my uncle.”

L.S.’s parents then reported the matter to the police. On March 15, 2013, Brent Jasper, an Orange County Sheriff’s investigator, arranged for L.S. to make a recorded, “covert phone call” to Carella, to get him to talk about their sexual relationship. At Jasper’s suggestion, L.S. told Carella during the phone call that her current boyfriend had told her she “wasn’t really good at” sex. She then asked Carella if she had been “good in bed” during the time they were seeing each other. He responded, “Yeah, you’re fine, yeah. Of course. Yeah, definitely.”

L.S. also said, “I did remember the first time we had sex,” and Carella replied, “Yeah, yeah I remember everything.” When L.S. asked Carella whether he remembered “when I first gave you a blow job?”, he responded, “Oh my gosh, yeah in the bathroom?” L.S. told Carella “I miss having sex with you Robert,” and he exclaimed, “Haha, really?” She replied, “Yeah, ‘cuz back then I was only 13 years old, remember?” Carella agreed and said, “Yeah, I know. That was crazy.”

Carella then said, “Yeah, I mean you’re growing up now. I mean . . . you almost gonna be, you almost gonna be 17-18 years now so . . .” L.S. replied, “Yeah and I would be better in bed now.” Carella again agreed, “Haha, right? Yeah.”

Two days later, a plainclothes detective arrested Carella at an Escondido car dealership where Carella’s girlfriend was looking at cars. The detective handcuffed Carella, placed him in the front passenger seat of an unmarked SUV, and fastened a seatbelt around him.

Jasper and his partner, Eric Kaesman, both in plainclothes, then arrived to interview Carella as he sat inside the vehicle, turned sideways (with his legs “hanging out of the vehicle”). During the interview, which lasted about an hour and 20 minutes, the two investigators alternated between standing, squatting, and sitting on the curb outside the open passenger side door.

At the beginning of the interview, which was recorded, Jasper informed Carella of his Miranda rights, each of which Carella affirmatively stated he understood. Jasper then relied on what he acknowledged was a “ruse,” telling Carella that L.S. had accused him of forcibly sexually assaulting her. This was followed by a warning from Kaesman that Carella was at a “disadvantage” because they had already “talked to some other people,” and he “d[id]n’t know what we know.”

However, Jasper immediately told Carella, “I don’t think it was force, I think it was consensual. That’s what I think.” Kaesman simultaneously also agreed “That’s what I think.” Jasper then asked Carella, “[h]ave you ever used force to have sex with [L.S.]?” Carella responded, “No.” He also denied dating L.S. or having sex with her at all.

Jasper then told Carella, “See, this is where you’re starting to lie to me, and I know it.” He also told Carella, falsely, that they had video evidence, which he implied depicted sexual activity. But he also told Carella, correctly, “I have a phone call of you talking about sex with [L.S.],” and followed that with, “Remember the blow job in the bathroom?”

The investigators repeated the claim that L.S. had accused Carella of forcible assault several times, while repeatedly assuring him that they did not believe it. They asked him if L.S. wanted to “give [him] a blow job that day,” to which Carella responded with noncommittal confusion, although he quickly and unequivocally denied the subsequent question about whether he “grab[bed] her by the hair and forced her mouth.” When Jasper followed that with “Did she willingly give you a blow job?” Carella replied, “I don’t know. I don’t know.”

This pattern repeated for several questions, with Carella denying any forcible assault or rape, while avoiding the questions involving non-forcible sex. When Kaesman then asked, “But you had sex with her, right?” Carella answered, “No. Well . . . she’s . . . I . . . listen, I mean I would never lie to you, to you guys, you’re the law.” Jasper responded, “You’re lying right now.”

Finally, Jasper asked Carella, “you’re saying when she says you guys have had sexual relations, she’s lying,” and Carella responded, “Yes.” The investigators continued to maintain that they knew Carella had engaged in sex with L.S., and that he was lying to them in denying it. They falsely told him they had his semen on her underwear, which she had saved. He continued to contest the accuracy of the officers’ accusations at times denying only the suggestion of force, and other times denying the sex entirely.

When Jasper again asked Carella, “So did she want to have sex with you, yes or no?” Carella responded, “She would say all these things to me,” including things like “I like being with you, I wanna, you know, be with you.” Carella then reverted to denials, insisting there had never been any sexual contact and L.S. was lying about it.

At that point Jasper told Carella he was done speaking with him. Carella responded, “Hold on. Officers.” Jasper said, “No, I’m done. You[’re] lying to me. You can’t lie to me halfway Robert. Okay? You had sex with her. Alright, but I’m done wasting my time. You’re talking in circles. You can’t say half lies [when] I have proof that the sex happened. Okay. The sex happened, it’s just how it happened, Robert. That’s it. I’m done.” Carella then asked, “What would you like me to do?” Jasper replied, “I’d like you to be honest with me.” He also told Carella, “she’s not lying about everything, okay. So you gotta help me understand, okay. There’s sex, but if you can help articulate how she’s lying about force when sex happened, that’s different. When you just tell me oh she’s a liar about everything, no she’s not ‘cause I know the sex . . . Are we done here?”

Carella then responded, “I don’t want to put myself in a bad situation. You need to help me out . . . .” Jasper said, “I am helping you out. You’re not being honest.” Carella protested, “I’m not a bad guy.” Jasper then said, “Did she give you a blow job ever, yes or no?” After some back and forth, Carella reiterated, “[s]he’s lying.” Jasper pointed out, “[s]he’s not lying about the blow job,” and again announced, “[a]lright, I’m done.”

Carella then said, “I mean are you trying to put me in a position is that what it is? I don’t know.” Kaesman responded, “we’re not putting you in any position,” and told him, “you don’t have to talk to us at all. You don’t have to say a thing.” Jasper again told Carella he will not stand there anymore while Carella lies to him. Carella then asked if he could talk to his girlfriend, whom he described as “terrified.” Kaesman replied, “[w]e’ll reassure her . . . ,” while Jasper again declared, “I’m done.”

Jasper then asked Carella, “Do you have anything else to say to me?” And Carella responded, “I do. I don’t want to lie to you.” He then asked Jasper, “[w]hat’s the best thing for me to do right now?” Jasper replied, “[t]he best thing to do is tell the truth,” which Kaesman echoed.

After Carella once again insisted L.S. was “lying about everything,” Kaesman focused him on the issue of “consensual, willing” sex, explaining “[t]hat’s the kinda sex that we’re talking about.” Carella replies, “I never raped her.” Carella asked the investigators to tell him “exactly what she told you,” but they refused, telling him “that’s not the way we conduct investigations.” Kaesman then reminds Carella, “you’re at a disadvantage. You don’t know everything that we know, and we’re not going to tell you, everything that we know. We’re just here to see if you’re gonna tell us the truth.”

The investigators told Carella that engaging in sex acts with a 13 year old is bad, even if it is consensual, but it is worse if she were forced, and reminded him that they were there to hear his side of the story. They reiterated that they believed only “part of what [L.S. is] telling us,” but did not believe her supposed claim the sexual acts were forced. Kaesman even said, “I think she came on to you.”

Carella again asked the investigators to tell him exactly what L.S. told them, and they again refused. Kaesman indicated he was terminating the interview, stating, “[Y]ou know what I’m going home, I’m gonna [barbecue] a couple of burgers, and have an ice cold beer, that’s where I’m headed . . . so I don’t care what you do one way or the other.” Carella responds, “What do you think I should do in this position? I mean I’m scared.” Kaesman replied, “I’m not giving you any legal advice. You know how this works. You . . . do dumb things and, and then there’s consequences for your actions.” He reiterated that they believed “part of what she’s telling us.”

After once again asking the investigators to tell him what L.S. told them, and again being told no, Carella said, “She’s the one, she’s the one that came onto me,” adding, “I never forced it.” He claimed that L.S. would say to him, “hey I want to be with you,” and that she “like[d] to hold me and stuff like that.” Carella admitted L.S. had performed oral sex on him, but claimed she had initiated it by holding, hugging, and kissing him before pulling his pants down, holding his penis, and then putting her mouth on it for what he claimed was “maybe a few seconds.” He characterized L.S. as having “aggressiveness and sexual drive.”

Carella initially said that he had engaged in sex with L.S. twice, but he later changed that to “around three or four times.” He acknowledged that they had sex for the first time at the Pala Casino hotel room, and claimed that L.S. had instigated it. He claimed their sexual relationship had only lasted three or four months, but they continued to spend time together for approximately one year.

Carella also acknowledged knowing that L.S. was “just turning” 13 years old at the time of his sexual relationship with her and conceded it was “[c]ompletely wrong” for him to have sex with her. He said he had not wanted it to happen, but explained that she was the one who was “very . . . forceful,” and he had felt compelled to engage in sex with her because he “was scared that maybe [L.S.] would say something to her mom, like I did this . . . .”

Carella was charged with of continuous sexual abuse (Pen. Code, § 288.5, subd. (a) (count 1), and three counts of lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (a) (counts 2 through 4).

Before trial, Carella moved to exclude his interview statements as having been taken in violation of his Miranda rights and the Fifth Amendment. The trial court conducted an evidentiary hearing at which Jasper testified about the circumstances of the interview. The court denied the motion, concluding Carella had validly waived his Miranda rights when he stated he understood each of those rights and then answered the investigators’ questions afterwards. The court also concluded Carella’s statements had been freely and voluntarily given.

At the conclusion of the trial, the jury found Carella guilty on all counts, and found true the allegation that Carella had substantial sexual conduct with a child in connection with count 2. The trial court subsequently dismissed counts 2 and 3 upon the prosecution’s motion and sentenced Carella to the upper term of 16 years in prison on count 1.

DISCUSSION

1. Admissibility of Carella’s Statements

Carella’s sole challenge to his conviction is based on his assertion that the trial court erred by denying his motion to exclude the statements he made to the investigators during his interrogation. Carella contends the totality of the circumstances surrounding his interrogation—including the covert telephone call with L.S. that preceded it—demonstrate that his statements were the product of coercion. “‘A statement is involuntary if it is not the product of “‘a rational intellect and free will.’” [Citation.] The test for determining whether a confession is voluntary is whether the defendant’s “will was overborne at the time he confessed.”’” (People v. McWhorter (2009) 47 Cal.4th 318, 346–347 (McWhorter).)

‘“Although coercive police activity is a necessary predicate to establish an involuntary confession, it “does not itself compel a finding that a resulting confession is involuntary.” [Citation.] The statement and the inducement must be causally linked.”’ (McWhorter, supra, 47 Cal.4th at p. 347.) A confession is not rendered involuntary by coercive police activity that is not the “motivating cause” of the defendant’s confession. (People v. Williams (1997) 16 Cal.4th 635, 661.)

“On appeal, we conduct an independent review of the trial court’s legal determination and rely upon the trial court’s findings on disputed facts if supported by substantial evidence.” (People v. Williams (2010) 49 Cal.4th 405, 425.) “The facts surrounding an admission or confession are undisputed to the extent the interview is tape recorded, making the issue subject to our independent review.” (People v. Linton (2013) 56 Cal.4th 1146, 1177.)

Applying those standards, we find no error in the trial court’s ruling.

A. Carella’s Conversation with the Victim

Carella claims the coercion began with the covert telephone calls made to him by L.S., at the behest of the police. He contends those phone calls amounted to official interrogations because L.S. was acting as an “agent of the police” during the calls. However, the case he relies upon, Maine v. Moulton (1985) 474 U.S. 159 (Moulton), does not support his argument. Moulton involves an alleged violation of the defendant’s Sixth Amendment right to counsel. Once that right to counsel attaches, which can occur only after criminal proceedings have been initiated, the police are prohibited from deliberately eliciting any incriminating statement from the defendant in the absence of his counsel. (Massiah v. United States (1964) 377 U.S. 201, 206.) As explained in Moulton, that prohibition is violated when the police rely on a third party to question the defendant on their behalf. However, Carella has asserted no such Sixth Amendment claim in this case.

And when viewed in the context of a Fifth Amendment claim, the assertion that L.S. was acting as an undisclosed agent of the police when she spoke with Carella actually undermines, rather than supports, his claim that the phone calls were improperly coercive. “‘[T]he Fifth Amendment is not “concerned with moral and psychological pressures to confess emanating from sources other than official coercion.”’” (People v. Smith (2007) 40 Cal.4th 483, 502; accord, People v. Dykes (2009) 46 Cal.4th 731, 753.) A finding of official coercion requires “the dual elements of a police-dominated atmosphere and compulsion,” which are “absent when the defendant is unaware that he is speaking to a law enforcement officer.” (People v. Davis (2005) 36 Cal.4th 510, 554; see also People v. Macklem (2007) 149 Cal.App.4th 674, 689 [Miranda warnings are not required unless the person being questioned has either been ‘“taken into custody or otherwise deprived of his freedom of action in any significant way’”].) Thus, the fact that L.S. was secretly working in cooperation with police when she initiated the phone calls with Carella can provide no support for his contention that the calls were improperly coercive.

Carella also claims that the phone calls had a coercive effect because L.S. played on his empathy by deceptively telling him that her current boyfriend had informed her that she was bad at sex, thus prompting Carella to reassure her on that count. Relying on Spano v. People of the State of New York (1959) 360 U.S. 315, 323-324 (Spano) and Williams v. Brewer (S.D. Iowa 1974) 375 F.Supp. 170, 184-185 (Williams), Carella claims that a technique which “plays on the suspect’s sense of sympathy [or empathy] for the complaining witness” amounts to unlawful coercion. Neither case stands for that proposition.

In both Spano and Williams, the defendant was in police custody at the time of the coerced statements, and the play on his sympathy was one factor related to coercion among the totality of circumstances those courts considered. In Spano, the defendant had been subjected to interrogation for nearly eight hours throughout the night despite his repeated refusals to answer questions on advice of his counsel. Following that fruitless interrogation, the police brought in the defendant’s childhood friend, a fledgling police officer, who convinced the defendant to confess by telling him he would lose his job if the defendant did not do so. (Spano, supra, 360 U.S. at p. 319.) In concluding that the defendant’s statement was coerced, the court did not focus exclusively on the friend’s ploy, characterizing it as “another factor which deserves mention in the totality of the situation.” (Id. at p. 323)

In Williams, the defendant was interrogated while being driven in police custody from one city to another, after the police had promised his attorney they would not question him, and the defendant himself had stated he would not answer questions until they had reached their destination and he was able to consult with his attorney in person. The police, who were aware of the defendant’s “religious nature and history of mental illness, used a psychological approach which purposefully played on religion and on [the defendant’s] sympathies.” (Williams, supra, 375 F.Supp. at p. 184.) It was the combination of all those factors—the custodial setting, the close confines of the car, the disregarded agreement not to interrogate, and the psychological ploy—which caused the court to conclude the defendant’s statements had been coerced. The facts in this case are significantly different.

The fact that L.S.’s claim about her current boyfriend was untrue changes nothing. Law enforcement’s use of deceptive comments during an interrogation does not render a statement involuntary unless the comments are of a type reasonably likely to procure an untrue statement. (People v. Williams, supra, 49 Cal.4th at p. 443, citing People v. Jones (1998) 17 Cal.4th 279, 299 and People v. Smith, (2007) 40 Cal.4th 483, 505-506.) In this case, if Carella had never engaged in sex with L.S., her lament about her current boyfriend’s supposed dissatisfaction with his sexual experience with her would not likely have prompted him to reassure her about her sexual ability. The ploy was designed to be effective only on a person who had engaged in sex with L.S. And it was. We find nothing improper in it.

B. The Interrogation

Carella also contends that the interrogation itself was coercive based on various factors. First, he asserts that the investigators’ failure to obtain an express waiver of Carella’s Miranda rights “weigh[s] against the voluntariness of any subsequent confession.” None of the cases he cites supports that assertion. Instead, they address the question of what circumstances would render a waiver invalid—a claim Carella does not make.

In any event, the transcript demonstrates that Jasper read each part of the Miranda warning to Carella separately, asked Carella if he understood that part, and then waited for Carella’s affirmative response before reading him the next one. After Jasper finished reading the warning, he commenced questioning Carella, and Carella readily answered the questions despite his expressed understanding that he was not obligated to do so. Those facts constitute an implied waiver. (People v. Cruz (2008) 44 Cal.4th 636, 668-669 [“we find that defendant’s responses to Detective Newsome’s inquiries reciting his Miranda rights reflect a knowing and intelligent understanding of those rights, and that defendant’s willingness to answer questions after expressly affirming on the record his understanding of each of those rights constituted a valid implied waiver of them”].)

Carella next argues the interrogation was coercive because they “relentlessly interrogated [him], and refused to take no for an answer,” they “engag[ed] in deception and ruse,” and they “made references to his nearby girlfriend and [Carella] repeatedly expressed his fear for her.” Those assertions, to the extent they are accurate, do not rise to the level of coercion in this case.

Significantly, there was nothing about the interrogation itself—which was conducted in a public place, lasted roughly 80 minutes, and included the investigators’ offers to terminate it—which suggests the sort of “prolonged interrogation that has been found to render a resulting confession involuntary.” (People v. Linton, supra, 56 Cal.4th at p. 1178 [concluding that an interrogation lasting approximately four hours, including an hour and 25 minutes of personality testing, did not constitute an unduly prolonged interrogation].)

Moreover, as we have already pointed out, the fact that the investigators made false representations to Carella would not render his confession involuntary unless they are of a type reasonably likely to procure an untrue statement. (People v. Williams, supra, 49 Cal.4th at p. 443.) In this case, the investigators’ false claim of having DNA evidence establishing Carella’s sexual contact with the victim would not concern a person who had never had such contact and was thus unlikely to induce a false confession. Similarly, their false claims that the victim had accused Carella of forcible rape were not likely to induce a false confession by somebody who had no sexual contact with her at all, especially because the investigators repeatedly assured him they did not believe the contention.

And finally, we find no improper coercion arising out of the fact that the investigators made references to Carella’s nearby girlfriend. As Carella acknowledges, the investigators made no threats relating to his girlfriend, and to the extent he was concerned about the distressing effect his interrogation might be having on her, or of the consequences of her learning what he was being accused of, we cannot conclude that concern might have caused him to confess. If anything, it would more likely have the opposite effect. (See People v. Linton, supra, 56 Cal.4th at p. 1170 [Defendant explained to police that he had wanted to “turn himself in” when he was interviewed in his home, but did not want to confess in front of his parents].) As we have already observed, “‘[t]he Fifth Amendment is not “concerned with moral and psychological pressures to confess emanating from sources other than official coercion.”’” (People v. Smith, supra, 40 Cal.4th at p. 502; accord, People v. Dykes, supra, 46 Cal.4th at p. 753.)

Having considered the totality of the circumstances surrounding Carella’s interrogation, we find no error in the trial court’s denial of his motion to exclude his statements from evidence.

2. Imposition of Fees and Fines

In a supplemental brief, Carella relies on Dueñas, supra, 30 Cal.App.5th 1157, to argue that the court denied him due process by imposing various fees and fines without making any determination that he had the ability to pay those fines. We disagree.

In imposing the $3,200 restitution fine pursuant to Penal Code section 1202.4—which was nearly 10 times the combined total of the other fees and fines (a combined $370)—the court explicitly addressed Carella’s ability to pay, explaining that “[i]n determining his ability to pay, the court has examined the factors listed under 1202.4(d), which includes the defendant’s ability to pay based on his future earning capability . . . .” That analysis was appropriate because Penal Code section 1202.4 permits the sentencing court to consider the defendant’s ability to pay if it imposes a restitution fine greater than the statutory minimum of $300 for a felony and $150 for a misdemeanor. (See Pen. Code, § 1202.4, subd. (c) [“Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b)”].)

The court then ordered that “[t]he Director of the Department of Corrections may collect the restitution fine and fines from the [defendant’s] wages and trust account deposits in prison under Penal Code section 2085.5 (a) and they may also be collected while the defendant is on parole.” As explained in People v. Castellano (2019) 33 Cal.App.5th 485, 490, the defendant’s ability to pay can be based on “potential prison pay during the period of incarceration to be served by the defendant.”

By failing to object to the court’s finding that he was able to pay, or more broadly to the trial court’s imposition of a restitution fine that was significantly higher than the statutory minimum, Carella forfeited his argument that the court erred in doing so. (People v. Avila (2009) 46 Cal.4th 680, 729 [defendant forfeited challenge to restitution fine greater than the minimum by failing to raise the argument below]; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 (Gutierrez) [“even before Dueñas[,] a defendant had every incentive to object to imposition of a maximum restitution fine based on inability to pay”].)

We conclude Carella’s forfeiture extends to the other assessments and fine imposed on him as well because as “a practical matter, if [Carella] chose not to object to a [$3,200] restitution fine based on an inability to pay, he surely would not complain on similar grounds regarding an additional [$370] in fees [and fines].” (Gutierrez, supra, 35 Cal.App.5th at p. 1033).

DISPOSITION

The judgment is affirmed.

GOETHALS, J.

WE CONCUR:

FYBEL, ACTING P. J.

THOMPSON, J.