Filed 1/17/20 P. v. Saucedo CA4/2

Reposted – Final version

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

FERNANDO A. SAUCEDO,

Defendant and Appellant.

E070686

(Super.Ct.No. 16CR005358)

OPINION

APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson, Jr., Judge. Affirmed as modified with directions.

Patricia A. Scott, 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, Warren Williams and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION

A jury convicted defendant and appellant Fernando A. Saucedo of one count of robbery (Pen. Code, § 211, count 1); one count of making criminal threats (§ 422, count 2); two counts of assault with a firearm (§ 245, subd. (a)(2), counts 3 & 4); and one count of possession of a firearm by a felon (§ 29800, subd. (a)(1), count 5). The jury also found true that defendant personally used a firearm (§§ 12022.53, subd. (b), 12022.5, subd. (a)) in the commission of counts 1 through 4. In a bifurcated proceeding, defendant admitted that he had suffered one prior serious or violent felony strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), one prior serious felony conviction (§ 667, subd. (a)), and one prior prison term (§ 667.5, subd. (b)). The remaining prior prison term enhancements were stricken.

After denying defendant’s motion to dismiss the prior strike conviction, the trial court sentenced defendant to a total term of 35 years eight months in state prison with 936 days’ credit for time served as follows: an aggravated five-year term on count 1, which was doubled to 10 years due to the prior strike, plus 10 years for the firearm use enhancement; a consecutive 16 months on count 2, plus 16 months for the firearm use enhancement; a consecutive two years on count 3, plus 16 months for the firearm use enhancement; a consecutive two years on count 4, plus 16 months for the firearm use enhancement; a consecutive 16 months on count 5; plus a consecutive five years for the prior serious felony conviction. The prior prison term enhancement was stayed.

On appeal, defendant contends: (1) his sentence on count 2 for making a criminal threat should be stayed pursuant to section 654 because those offenses were committed with the same intent and objective as count 3; (2) in light of Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1-2, eff. Jan. 1, 2019), the matter must be remanded to allow the trial court to exercise its discretion to strike the five-year enhancement for the prior serious felony conviction; and (3) imposing the $5,000 restitution fine without a determination of his ability to pay violated his due process right under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).

We agree with the parties that the trial court should have stayed his sentence for making criminal threats under section 654, and we also agree that he is entitled to remand so the court may exercise its discretion in the first instance with respect to whether to strike or dismiss the prior serious felony conviction enhancement. With respect to Dueñas, we conclude that defendant has forfeited the argument. As modified, we affirm the judgment.

II

FACTUAL BACKGROUND

A. Count 1 (Robbery)

On March 17, 2016, at about 2:45 p.m., defendant approached a parked United Parcel Service (UPS) truck, pointed a gun at the driver, and demanded jewelry. The driver did not have any jewelry, so he directed defendant to several boxes containing new cell phones. Defendant took the boxes containing cell phones, as well as another random package, and fled.

A video of the incident was recovered from a surveillance camera at a nearby liquor store. The video showed that the incident occurred at 2:40 p.m. and lasted less than a minute. The UPS driver was unable to identify defendant during an in-field lineup. However, the UPS driver was later shown a T-shirt with a “Superman” logo, which he identified as the shirt the suspect wore at the time of the robbery.

B. Counts 2 (Criminal Threat) and 3 (Assault with a Firearm on Matthew N.)

A short time later, after 2:45 p.m. on March 17, 2016, Matthew N. was with his wife and his son at a dog park. Matthew and his family were planning to paint a “snack shack” for the baseball team and were waiting in their car in the parking lot. A white Mercedes pulled into the parking lot and someone began throwing white boxes out of the window. Matthew’s wife yelled that the person should throw the trash in a dumpster, which stood only a few feet away.

Defendant exited from the passenger side of the car and began walking aggressively toward Matthew, who was now standing outside next to his vehicle. Defendant pointed a gun at Matthew’s head and then at Matthew’s stomach area, and said several times, “I’m going to f[]ing kill you,” and “What the f[] are you going to do?” When defendant pointed the gun at Matthew’s stomach, defendant continued to yell, “Do you want me to kill you?”

Matthew’s son witnessed the incident and called the police. After Matthew’s son stated that he had called the police, defendant got back into the white Mercedes and the car quickly drove off. Matthew noted the license plate number of the white Mercedes. The entire confrontation lasted about four or five minutes. When asked to view a suspect during an in-field lineup about two hours later, both Matthew and his wife identified defendant. Matthew also recognized defendant’s clothing and the gun used during the incident. Matthew identified defendant as the suspect with certainty. Defendant was wearing dark-colored shorts, a blue T-shirt with a “Superman” logo, and a blue “Boston” hat.

C. Counts 6 (Assault on Alfonso K.) and 7 (Felon in Possession of Firearm)

Around two hours later, sometime after 5:00 p.m. on March 17, 2016, Alfonso K. and his wife were driving to a pharmacy. Alfonso was waiting for cross traffic to clear before turning into the parking lot. A male, later identified as defendant, wearing a blue “Superman” T-shirt was sitting on the curb. Defendant was yelling at Alfonso to, “Go, go.” As Alfonso looked at him, defendant said, “What are you looking at?” Alfonso responded, “I’ll be back,” intending to go back and ask defendant what his problem was. Defendant replied, “Oh yeah?” and reached over with his right hand to his hip area. Defendant then pulled out a gun and fired one round at Alfonso. Alfonso estimated that defendant was about 30 feet away from his car.

Alfonso accelerated through the parking lot to the pharmacy and called the police. Alfonso described the suspect. A police officer responded to the scene and saw defendant walking on a nearby street wearing a blue baseball cap, blue jean shorts with no shirt, and socks and tennis shoes. Defendant had a blue T-shirt tucked under his right arm. When the officer approached him, defendant dropped the blue T-shirt in a grass planter area. Defendant was apprehended a few minutes later. Later that day, Alfonso identified defendant as the person who shot at him.

When assisting officers arrived, an officer picked up the blue T-shirt, which he noticed had a “Superman” logo. The officer also recovered another T-shirt, which was long-sleeved and white, and a black .38-caliber revolver. The revolver was wrapped in the T-shirts. The revolver contained five rounds, three of which were live, and two of which had been fired, with only the empty casings remaining in the chamber. It could not be determined when the expended casings were fired.

III

DISCUSSION

A. Section 654

Defendant contends that imposition of consecutive terms on counts 2 and 3 for making criminal threats and assault with a firearm against Matthew violated section 654, because those offenses were part of the same continuous course of conduct and were committed with the same intent and objective, namely, to cause the victim sustained fear by threatening his life. The People concede that defendant had a single intent and objective when he committed both offenses, and therefore concede count 2 and the accompanying firearm use enhancement must be stayed. We agree.

The probation officer recommended consecutive sentences for making the criminal threat offense in count 2 and the assault with a firearm offense in count 3 based on defendant’s separate acts of placing the gun against Matthew’s head while threatening to kill him, and then placing the gun toward his stomach area while again threatening to kill him. Although the probation officer recognized that the two acts were closely related in time and place, the officer nonetheless concluded consecutive sentences were appropriate, because defendant brandished the firearm while threatening the victim to induce more fear, and the acts were separated by enough time to enable defendant to walk away after the first threat.

At sentencing, defense counsel asked the court not to impose punishment for both count 2 and count 3, because both crimes were part of a single, indivisible course of conduct under section 654. The prosecutor responded that defendant committed separate acts by pointing the gun at the victim’s forehead and stomach while threatening him, and that the crimes had different elements. The trial court agreed that counts 2 and 3 were based on separate acts with separate elements and therefore declined to find section 654 applied.

Section 654 provides in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).) Hence, section 654 prohibits punishment for two offenses arising from the same act or from a series of acts constituting an indivisible course of conduct. (People v. Corpening (2016) 2 Cal.5th 307, 311; People v. Latimer (1993) 5 Cal.4th 1203, 1216; People v. Harrison (1989) 48 Cal.3d 321, 335.)

“ ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ ” (People v. Latimer, supra, 5 Cal.4th at p. 1208.) On the other hand, if the defendant entertained multiple criminal objectives that were independent and not incidental to each other, he or she “may be punished for each statutory violation committed in pursuit of each objective,” even though the violations were otherwise part of an indivisible course of conduct. (People v. Harrison, supra, 48 Cal.3d at p. 335.)

Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) Its findings will not be reversed on appeal if there is any substantial evidence to support them. (Ibid.; People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.) “We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143; see People v. Cleveland (2001) 87 Cal.App.4th 263, 271 [trial court’s finding of “ ‘separate intents’ ” reviewed for sufficient evidence in light most favorable to the judgment].)

In People v. Mendoza (1997) 59 Cal.App.4th 1333, superseded by statute on other grounds as stated in People v. Franz (2001) 88 Cal.App.4th 1426, 1442, the defendant was convicted both of making a criminal threat and of dissuading a witness by force, or by express or implied threat of force or violence. (Id. at p. 1345.) On appeal, the court stayed the criminal threat conviction pursuant to section 654. The court reasoned the threat to kill the victim was made to dissuade her from testifying. (Mendoza, at p. 1346.)

Here, there is no evidence to suggest defendant had separate intents and objectives when he pointed the gun and made threats to kill Matthew. In both instances, defendant intended to place Matthew in fear for his life. Further, the two acts were indivisible in time. The assault with a firearm was committed at the same time as making the criminal threats. Defendant pointed the gun at Matthew while making his criminal threats. Moreover, in closing argument, the prosecutor treated the two crimes as occurring simultaneously, and in discussing the criminal threat charge, the prosecutor relied heavily on the use of the gun: “The threat, what is the threat in this case? ‘I’m going to f[]ing kill you.’ That’s what he said repeatedly to [Matthew], ‘I’m going to f[]ing kill you.’ [¶] Was the threat made orally? Yes. It was made orally to [Matthew]. He yelled and screamed at [Matthew] while pointing a gun at [Matthew]. He did that repeatedly. Now, did he intend the statement to be understood as a threat? Okay. At the conduct when he was making that threat, he was pointing a gun at [Matthew]’s forehead and pointing a gun at his stomach area. He intended that statement to be a threat.”

We conclude that there is insufficient evidence to support the trial court’s ruling that the crimes are separate and distinct. Both crimes were committed with the same intent and objective of terrorizing Matthew in the dog park parking lot.

Accordingly, the 16-month sentence imposed for making a criminal threat and the attendant 16-month sentence for the firearm use enhancement must be stayed under section 654. (See People v. Butler (1996) 43 Cal.App.4th 1224, 1248 [“Where multiple punishment has been improperly imposed, ‘. . . the proper procedure is for the reviewing court to modify the sentence to stay imposition of the lesser term.’ ”].)

B. Senate Bill No. 1393

At the time of defendant’s sentencing on June 8, 2018, the trial court was required to impose the five-year enhancement under section 667, former subdivision (a)(1), based on defendant’s prior serious felony conviction. However, effective January 1, 2019, section 667, subdivision (a)(1), and section 1385 were amended to permit a trial court, in the furtherance of justice, to strike or dismiss a five-year enhancement under section 667, subdivision (a)(1). (Sen. Bill No. 1393, ch. 1013, §§ 1, 2.)

Defendant contends that in light of Senate Bill No. 1393’s amendment to section 1385, the matter must be remanded to the court to permit it to exercise its discretion as to whether his prior serious felony conviction enhancements should be stricken. The parties agree that the statutory amendments apply retroactively in this case. (People v. Jimenez (2019) 32 Cal.App.5th 409, 426; People v. Garcia (2018) 28 Cal.App.5th 961, 971-973; People v. McDaniels (2018) 22 Cal.App.5th 420, 424-425 (McDaniels).) The focus of their disagreement is whether remand for resentencing is required.

The People contend that remand is not required because it is clear from the sentencing record that the trial court would not have exercised its discretion to strike the prior serious felony conviction enhancement. In support of this argument, they rely on the trial court’s denial of defendant’s invitation to strike his prior serious or violent felony strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), and its selection of the aggravated term on count 1 for robbery and imposition of consecutive terms on all of the counts and firearm enhancement. The People also point out that the court found no circumstances in mitigation, and it identified multiple circumstances in aggravation, such as defendant’s threat of great bodily harm, his violent conduct revealed a serious danger to society, his numerous prior convictions, his having served prior prison terms, and his unsatisfactory performance on parole. Further, the court commented that it found no unusual circumstances that would justify a grant of probation in this case.

In support of their argument that remand is not necessary in this instance, the People cite McDaniels, supra, 22 Cal.App.5th 420 and People v. Jones (2019) 32 Cal.App.5th 267 (Jones), for the proposition that remand is not required where “the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] enhancement.” (McDaniels, at p. 425.) As discussed in the decision, the relevant proposition was articulated by the Court of Appeal in People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896, in which the court was tasked with determining whether reconsideration of sentencing was required after the California Supreme Court held in Romero, supra, 13 Cal.4th 497 that trial courts have the discretion to strike prior convictions.

The defendant in Gutierrez was 34 years old, and he attacked two men who were at least 30 years older than he was, resulting in convictions for robbery and attempted robbery. (People v. Gutierrez, supra, 48 Cal.App.4th at p. 1896.) The trial court imposed a total aggregate sentence of 18 years four months and, during sentencing, the court stated the defendant “was ‘clearly engaged in a pattern of violent conduct, which indicates he is a serious danger to society.’ ” (Ibid.) Further, in the context of deciding whether to impose two one-year enhancements under section 667.5, former subdivision (b), the trial court stated, “ ‘[T]here really isn’t any good cause to strike it. There are a lot of reasons not to, and this is the kind of individual the law was intended to keep off the street as long as possible.’ ” (Gutierrez, at p. 1896.)

In Jones, supra, 32 Cal.App.5th 267, the defendant was convicted of premeditated attempted murder, assault with a deadly weapon, and assault by means of force likely to produce great bodily injury. (Id. at p. 271.) It was also found true that the defendant personally inflicted great bodily injury and personally used a deadly weapon. (Ibid.) In addition, the trial court found that the defendant sustained a prior serious felony conviction and a prior strike conviction for attempted voluntary manslaughter. (Ibid.) The trial court sentenced the defendant to 22 years plus a consecutive 14 years to life in state prison. (Ibid.)

In sentencing the defendant, the trial court stated, “ ‘I’ve already, I guess, sort of spoken my sense of this case in my ruling on the new trial motion. This gives me obviously, as you know, great satisfaction in imposing the very lengthy sentence here today.’ ” (Jones, supra, 32 Cal.App.5th at p. 274.) The court also noted that, “notwithstanding [the] defendant’s genial conduct during court proceedings, his actions had displayed a ‘temper’ that was ‘oftentimes triggered by drinking,’ along with ‘a [penchant] to use knives, apparently.’ ” (Ibid.) The court further stated the defendant had “ ‘earned the sentence here today.’ ” (Ibid.) In addition, the court explained there was “ ‘no shortage’ ” of aggravating factors that supported the upper term, but one factor “ ‘certainly to include [was] this case did involve planning and sophistication and there was violent conduct involved and the Defendant . . . has served a prior prison term.’ ” (Ibid.)

The defendant appealed, and in part, requested a remand for resentencing on his prior serious felony conviction pursuant to Senate Bill No. 1393. (Jones, supra, 32 Cal.App.5th at p. 269.) The Court of Appeal found remand to reconsider the prior serious felony conviction was unnecessary. In rejecting the defendant’s request for a remand, the court noted the trial court’s comments upon sentencing the defendant and also explained: “Reviewing the evidence in the record, we conclude there is no possibility the trial court would strike the enhancement were we to remand. At sentencing, the court first denied [the] defendant’s motion for new trial. Independently reviewing the evidence, the court felt ‘very comfortable denying the motion for new trial [and] very comfortable with the verdict . . . including that the defendant had adequate time to premeditate the attempted murder of Mr. Stowers.’ The evidence showed [the] defendant ‘was doing his reconnaissance and essentially laying [sic] in wait. . . .’ [¶] [The d]efendant’s behavior after Stowers threw him down was ‘rage, and he did not like what Mr. Stowers had done unto him and was going to make that clear under whatever circumstances that might be including, incredibly, chasing him out into oncoming traffic on J Street that night, dodging in and out of cars . . . and then not giving up. . . .’ There was no question that after cornering Stowers, [the] defendant stabbed him. [¶] The [trial] court found [the] defendant had ‘ample opportunities . . . to reflect on how far was he going to take this when it came to Mr. Stowers. Well, you take it all the way. Incredibly. Senselessly. [¶] This whole case just shows the absurdity of what’s deemed to be at times acceptable societal behavior over something as ridiculous as to the caliber of a Long Island Iced Tea drink. That’s what brought us here today.’ [¶] During sentencing, the prosecutor explained the facts of the felony prior. [The d]efendant was convicted of attempted manslaughter for stabbing his ex-wife numerous times. [The d]efendant served 10 years in prison for that conviction and had been released only for a few months when he stabbed Stowers. [The d]efendant did not know any of the individuals at the bar before he attacked.” (Id. at pp. 273-274.)

In this case, in contrast, the trial court made no comments regarding the facts underlying the offenses or when it imposed the prior serious felony conviction enhancement or its opinion about the severity of the sentence it intended to impose. To the contrary, the court indicated it was going to exercise its discretion to modify the sentence downward from that recommended by the probation officer and the prosecutor, who both recommended 41 years eight months. In this regard, the court did not impose the longest possible sentence. Instead, as to each of the firearm enhancements attached to counts 2 through 4, it imposed only midterm sentences. Moreover, the California Supreme Court has reiterated that “ ‘[d]efendants are entitled to sentencing decisions made in the exercise of the “informed discretion” of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that “informed discretion” than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record.’ [Citation.] In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record ‘clearly indicate[s]’ that the trial court would have reached the same conclusion ‘even if it had been aware that it had such discretion.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez).)

Post-Gutierrez, most of the published cases considering whether remand is appropriate to allow the trial court to exercise its discretion in the first instance have concluded that remand is appropriate, including McDaniels, cited by the People. (People v. Johnson (2019) 32 Cal.App.5th 26, 69 [Sen. Bills Nos. 1393 & 620]; Garcia, supra, 28 Cal.App.5th at p. 973 [Sen. Bill No. 1393]; People v. Almanza (2018) 24 Cal.App.5th 1104, 1109-1111 [Sen. Bill No. 620 applying to firearm enhancement]; People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081-1082 [Sen. Bill No. 620]; McDaniels, supra, 22 Cal.App.5th at pp. 427-428 [Sen. Bill No. 620].) Indeed, recently this court in People v. Zamora (2019) 35 Cal.App.5th 200, remanded the matter for resentencing under Senate Bills Nos. 620 and 1393 to permit the trial court to exercise its newly granted discretion as to whether to strike the firearm enhancements and to strike or dismiss the remaining serious felony conviction enhancements, despite the trial court having sentenced the defendant to 20 years, plus 100 years to life. (Zamora, at pp. 203, 208-209.)

We do not minimize defendant’s crimes in this case. We also recognize that the trial court rejected defendant’s invitation to strike his prior strike conviction under Romero, found no mitigating factors but numerous aggravating factors, commented that there were no unusual circumstances to justify a grant of probation, and elected to impose the upper term on count 1 in sentencing defendant. The record in this case, however, unlike in Jones, does not contain pointed comments regarding the facts underlying the offenses, defendant’s characteristics, or the prior serious felony conviction enhancement. In addition, the record before us does not reflect the trial court knew it had discretion to strike defendant’s prior serious felony enhancement; nor does it reflect a clear indication by the trial court that it would not have struck the enhancement if it had discretion to do so. As such, we decline to speculate on what the trial court might do on remand in the absence of such express indication in the record.

Notably, in People v. Almanza, the Court of Appeal initially affirmed judgment and declined to remand the matter to the trial court in light of Senate Bill No. 620. It then granted rehearing, concluding, “We are persuaded . . . by McDaniels and defense counsel that speculation about what a trial court might do on remand is not ‘clearly indicated’ by considering only the original sentence. This is the case when there is a retroactive change in the law subsequent to the date of the original sentence that allows the trial court to exercise discretion it did not have at the time of sentence.” (People v. Almanza, supra, 24 Cal.App.5th at pp. 1110-1111.) We concur.

Although the record indicates the trial court was not sympathetic in this case, and for good reason; however, at the time defendant was sentenced, the court lacked the discretion to strike or stay the prior serious felony enhancement. Defendant is entitled to be sentenced in the exercise of informed discretion and remand is appropriate so that the trial court may exercise its discretion under the amendments to sections 667 and 1385. We express no opinion on how the trial court should exercise its discretion on remand. (McDaniels, supra, 22 Cal.App.5th at p. 428.)

C. Ability to Pay $5,000 Restitution Fine

Relying on Dueñas, supra, 30 Cal.App.5th 1157, defendant also asserts that imposing a restitution fine in the amount of $5,000 violated his right to due process of law. He thus contends that absent proof of his present ability to pay, the restitution fine should be stayed unless the People can show he has the present ability to pay the fine. Dueñas involved the plight of a married mother with cerebral palsy, whose family—which included two young children—was demonstrably unable to afford even basic necessities due to poverty. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Dueñas’s inability to pay several juvenile citations had resulted in suspension of her driver’s license, which then led to a series of misdemeanor convictions over the years for driving with a suspended license and additional court fees she was also unable to pay. (Id. at p. 1161.) Dueñas routinely served time in jail in lieu of paying the fines she owed, but nevertheless was sent to collections on other fees related to her court appearances. (Ibid.)

After pleading no contest to yet another misdemeanor charge of driving with a suspended license, the trial court imposed on Dueñas certain assessments and a $150 restitution fine—the minimum amount required under Penal Code section 1202.4, subdivision (b). The trial court rejected the defendant’s argument that the imposition of the assessments and the fine without consideration of her ability to pay them violated her constitutional rights to due process and equal protection. (Dueñas, supra, 30 Cal.App.5th at p. 1163.) The Court of Appeal reversed, holding that “the assessment provisions of Government Code section 70373 and Penal Code section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair[, and] imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution.” (Dueñas, at p. 1168.) The imposition of a minimum restitution fine without consideration of the defendant’s ability to pay also violated due process. (Id. at pp. 1169-1172.) The appellate court reversed the order imposing the assessments and directed the trial court to stay the execution of the restitution fine “unless and until the People prove that [the defendant] has the present ability to pay it.” (Id. at pp. 1172-1173.)

Here, the People contend that defendant forfeited any challenge to the restitution fine by failing to object or raise the issue below. This general rule is well-settled. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864; People v. Avila (2009) 46 Cal.4th 680, 729.) Defendant argues, however, that the forfeiture rule should not apply because his sentencing occurred prior to Dueñas, and any objection would therefore have been futile.

Courts have addressed similar arguments with varying results. In People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano), Division Seven of the Second District held that the forfeiture rule did not apply to a defendant sentenced prior to Dueñas. (Id. at p. 489; accord, People v. Johnson (2019) 35 Cal.App.5th 134, 138 (Johnson).) The Castellano court explained that when the trial court sentenced the defendant, “Dueñas had not yet been decided; and no California court prior to Dueñas had held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant’s ability to pay. Moreover, none of the statutes authorizing the imposition of the fines, fees or assessments at issue authorized the court’s consideration of a defendant’s ability to pay. Indeed . . . in the case of the restitution fine, Penal Code section 1202.4, subdivision (c), expressly precluded consideration of the defendant’s inability to pay. When, as here, the defendant’s challenge on direct appeal is based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial, reviewing courts have declined to find forfeiture.” (Castellano, at p. 489; see People v. Jones (2019) 36 Cal.App.5th 1028, 1033; see generally People v. Brooks (2017) 3 Cal.5th 1, 92 [“ ‘[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.’ ”].)

In People v. Frandsen (2019) 33 Cal.App.5th 1126, Division Eight of the Second District applied the forfeiture rule and disagreed with the defendant’s assertion that Dueñas constituted “ ‘a dramatic and unforeseen change in the law.’ ” (Id. at p. 1153; accord, People v. Bipialaka (2019) 34 Cal.App.5th 455, 464.) In People v. Gutierrez (2019) 35 Cal.App.5th 1027, Division One of this court found “it unnecessary to address any perceived disagreement on the forfeiture issue,” explaining that both “Castellano and Johnson involved situations in which the trial court imposed the statutory minimum restitution fine.” (Id. at pp. 1032-1033.) In Gutierrez, as in Frandsen and unlike this case, “the trial court imposed the statutory maximum restitution fine.” (Id. at p. 1033.) The court here imposed a restitution fine in the amount of $5,000, above the statutory minimum. (§ 1202.4, subd. (b)(1).)

Castellano and other post-Dueñas cases that imposed minimum restitution fines are thus distinguishable from the instant case with regard to the issue of forfeiture because in those cases, the trial court imposed the minimum statutory restitution fine, whereas the restitution fine imposed in the instant case exceeded the minimum statutory fine. (See e.g., People v. Jones, supra, 36 Cal.App.5th at pp. 1029-1030 [trial court imposed a court operations fee of $70 and a $300 restitution fine; we found no forfeiture]; Castellano, supra, 33 Cal.App.5th at p. 489; Johnson, supra, 35 Cal.App.5th at pp. 137-138.) Section 1202.4, subdivision (c), states in relevant part: “The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. 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).” (Italics added.)

Subdivision (c) of section 1202.4 thus states the trial court is barred from considering the defendant’s inability to pay the minimum authorized restitution fines. But section 1202.4 does not preclude the trial court from considering ability to pay when imposing a restitution fine exceeding the statutorily authorized minimum amount. Dueñas, which involves imposition of the minimum statutory restitution fine, thus does not provide a newly announced constitutional principle applicable to cases involving imposition of restitution fines exceeding the statutory minimum. Therefore, because there would be no reason under section 1202.4 not to object based on inability to pay a restitution fine exceeding the statutory minimum, failure to object in the trial court forfeits the objection on appeal. As concluded in People v. Aviles, “[e]ven if Dueñas applied to this case, defendant forfeited his ability to pay challenge because he failed to object to the amounts imposed at the sentencing hearing.” (People v. Aviles (2019) 39 Cal.App.5th 1055, 1073, citing People v. Frandsen, supra, 33 Cal.App.5th at p. 1153; People v. Bipialaka, supra, 34 Cal.App.5th at p. 464.)

IV

DISPOSITION

The judgment is modified to stay the sentence imposed on count 2 for making criminal threats and its accompanying firearm use enhancement pursuant to section 654. The matter is also remanded to the trial court to exercise its discretion under sections 667, subdivision (a)(1), and 1385 as amended by Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1-2, eff. Jan. 1, 2019) and, if appropriate following exercise of that discretion, to resentence defendant accordingly. The trial court is directed to prepare an amended abstract of judgment reflecting the modification for the sentence on count 2 and its accompanying firearm enhancement, and modification, if any, of the sentence on the prior serious felony conviction enhancement, and to forward a certified copy to the Department of Corrections and Rehabilitation reflecting the modifications. The judgment is otherwise affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

Acting P. J.

We concur:

RAPHAEL

J.

MENETREZ

J.