Filed 8/24/20 P. v. Camacho CA4/2
See concurring/dissenting opinion

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                      E071514

 v.                                                                      (Super.Ct.No. RIF1703502)

 JOSE CAMACHO,                                                           OPINION

          Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. L. Jackson Lucky IV,

Judge. Affirmed.

         David R. Greifinger, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,

Andrew Mestman and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and

Respondent.




                                                             1
       Jose Camacho committed a series of crimes against his on-again, off-again

girlfriend after she told him she’d been intimate with someone else. According to her

testimony at the preliminary hearing, he stole and damaged her phone, injured her

severely by punching her, moved her into a bathroom without windows when she

screamed for help, detained her from leaving his house, and continued to hit her as she

attempted to escape. After she got away, he published nude photographs of her without

her permission. He pled guilty to inflicting corporal injury, robbery, kidnapping, false

imprisonment, and publishing private photographs.

       Camacho doesn’t appeal his conviction, but challenges aspects of his sentence.

First, he argues the sentences for kidnapping, robbery, and false imprisonment must be

stayed because he committed those offenses during the same course of criminal conduct

during which he committed the infliction of corporal injury and all for the purpose of

enabling him to inflict corporal injury.

       Second, citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), he argues

the trial court violated his constitutional right to due process by imposing court operation

and facilities fees without first conducting a hearing to determine his ability to pay and by

imposing a restitution fine and parole revocation fees without staying them until the

People had demonstrated his ability to pay.

       We conclude Camacho’s offenses were distinct and could be punished separately.

As for the Dueñas errors, we conclude they were harmless. We therefore affirm the

judgment.



                                              2
                                              I

                                          FACTS

       When these events happened, Camacho and his girlfriend had been in a stormy, on

and off relationship for over three years and had recently broken up.

       On August 23, 2017, they were at Camacho’s home when she told him she’d done

what she characterized as “something [he’s] not going to forgive [her] for” and said she

wanted to go home. She had already called her mother for a ride when Camacho took her

phone and went outside and smashed it. Back inside, Camacho demanded to know what

she’d done, and she eventually told him (despite the breakup) that she had “committed

infidelity.” He told her to call her mother because he wanted to “talk about this,” and she

told her mother not to come.

       The girlfriend said she then apologized for her infidelity. Rather than talk about it,

Camacho reacted violently, punching her in the eye with his fist hard enough to break her

left orbital bone and cause bleeding from her nose. She fell to the floor crying and started

screaming for help. Camacho tried to quiet her by placing his hand over her mouth and

nose. When she didn’t stop, he told her she needed to get cleaned up, put his arms around

her, and led her from the kitchen down the hallway into a bathroom that didn’t have a

window.

       She told Camacho she wanted to go home, but he asked her to stay and wait it out

in his room like she had when he’d given her a black eye in a past fight. That time she’d

stayed in his room for about two weeks. She said she didn’t want to do that and when she



                                              3
reached for the bathroom door, Camacho punched her in the eye again. She screamed,

and he put his hand over her mouth and turned on a faucet. Camacho then turned on the

shower saying he wanted her to clean up, but she refused out of fear of being hit and

slipping. She reached for the door a couple more times, and each time Camacho hit her.

After she moved away from the door and sat down on the floor, he hit her three times on

the forehead. She then got up, sat on the sink, and asked him to call her mother. He

agreed and stepped away from the door to make the call.

       At that point, she made a break for it, got out of the bathroom and to the front door

before Camacho caught up with her. When she went to open the door, Camacho slammed

it shut and hit her again in the face with his fist. She said he hit her a couple more times

after that and tried to sick his Rottweiler on her. She said she was standing there crying

when he pulled back and she managed to get the door open and run away.

       Later the same day, she got a notification Camacho had posted a picture of her, but

when she clicked on it, the image had been deleted. That night, she learned he had

published nude pictures of her without her permission, sending them to friends and

family and posting them on a social media site.

       Camacho pled guilty to unlawfully inflicting corporal injury (Pen. Code, § 273.5,

subd. (a), unlabeled statutory citations refer to this code) with a great bodily injury

enhancement (§ 12022.7, subd. (e)), kidnapping (§ 207, subd. (a)), robbery (§ 211), false

imprisonment (§ 236), and unlawfully photographing and publishing private pictures of

another person’s intimate body parts (§ 647, subd. (j)(4)).



                                              4
       On September 17, 2018, the trial court sentenced Camacho to seven years in state

prison and ordered him to pay an assortment of fines and fees. The court designated the

inflicting corporal injury conviction as the principal count, imposed the middle term of

three years with four additional years for the great bodily injury enhancement. The court

imposed concurrent middle term sentences for the other offenses—five years for the

kidnapping, four years for the robbery, two years for the false imprisonment, and 90 days

for publishing private nude pictures of another without permission.

       The trial court imposed a court facilities fee of $150 (Gov. Code, § 70373), a $200

court operations fee (Pen. Code, § 1465.8), a $300 restitution fine (Pen. Code, § 1202.4,

subd. (b)), and a parole revocation fine of $300 (Pen. Code, § 1202.45, subd. (c)), which

it stayed pending successful completion of parole. Though not at issue on appeal, the

court also imposed victim restitution of $860. (Pen. Code, § 1202.4, subd. (f)). Camacho

didn’t object to any of the fee or fine orders at his sentencing hearing.

                                              II

                                        ANALYSIS

       A. Certificate of Probable Cause

       Camacho appeals aspects of his sentence, not his guilty plea. The People argue we

shouldn’t reach the merits because he didn’t obtain a certificate of probable cause to

challenge his plea agreement, a fact Camacho acknowledges.




                                              5
       In general, defendants may not appeal from a guilty plea unless they first obtain a

certificate of probable cause from the trial court attesting there are reasonable grounds for

the appeal. (Pen. Code, § 1237.5.) The certificate requirement doesn’t apply to appeals

which are based solely on grounds arising after the entry of the plea and don’t affect the

plea’s validity. (Cal. Rules of Court, rule 8.304(b)(4)(B).)

       The People acknowledge a certificate of probable cause isn’t generally required to

challenge sentencing issues left open at the time the plea was entered into, even when the

plea specifies a range of sentences from which the court could choose. (People v. Buttram

(2003) 30 Cal.4th 773, 783-785, 790-791.) However, they argue the general rule doesn’t

apply here because Camacho accepted a plea that incorporated a waiver of such

sentencing issues by saying “[a]s part of this plea, I . . . do . . . waive any right to appeal

that I may have.” (Italics added.) According to the People, that means Camacho’s

appeal—though limited to sentencing issues—is in fact attacking the validity of his plea.

       We reject this argument. A plea’s general or nonspecific waiver of appellate rights

doesn’t ordinarily include errors occurring after the plea is entered because the defendant

could not have knowingly and intelligently given up the right to appeal unknown or

unforeseen future error. (People v. Becerra (2019) 32 Cal.App.5th 178, 186-187.) Two

examples of general or nonspecific waivers provided by the Supreme Court are, “‘I waive

my appeal rights,’” and “‘I waive my right to appeal any ruling in this case.’” (People v.

Panizzon (1996) 13 Cal.4th 68, 85, fn. 11.)




                                               6
       The appellate waiver in this case is nonspecific in just that way. Camacho’s plea

simply said he waived “any right to appeal that I may have.” Such a waiver doesn’t

encompass the sentencing issues of custody term, fees, and fines, which were left

unresolved in the plea and were instead determined at the subsequent sentencing hearing.

(People v. Buttram, supra, 30 Cal.4th at pp. 785-786, 790-791.) A certificate of probable

cause was not required for us to address those issues. (Id. at p. 787.)

       B. Staying Sentences under Section 654

       The trial court ordered the sentences imposed for three of Camacho’s crimes—

robbery, kidnapping, and false imprisonment—to run concurrently with the sentence for

the enhanced infliction of corporal injury. Camacho argues the court should have instead

stayed the sentences for the three crimes because they were all committed during a

continuous course of conduct and with the single objective of inflicting corporal injury on

his girlfriend.

                  1. Legal principles

       Under section 654, “[a]n 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.” The statute precludes multiple punishments for

a single act, but also for an indivisible course of conduct. (People v. Hester (2000) 22

Cal.4th 290, 294.)




                                              7
        “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 (1993) 5

Cal.4th 1203, 1208, quoting Neal v. State of California (1960) 55 Cal.2d 11, 19.) If a

defendant entertains multiple, independent criminal objectives, section 654 doesn’t bar

punishment for each offense, even if the violations share common acts or are parts of the

same course of conduct. (Ibid.)

        “The question whether [Penal Code] section 654 is factually applicable to a given

series of offenses is for the trial court, and the law gives the trial court broad latitude in

making this determination. Its findings on this question must be upheld on appeal if there

is any substantial evidence to support them.” (People v. Hutchins (2001) 90 Cal.App.4th

1308, 1312.) “The court’s findings may be either express or implied from the court’s

ruling. [Citation.] In the absence of any reference to Penal Code section 654 during

sentencing, the fact that the court did not stay the sentence on any count is generally

deemed to reflect an implicit determination that each crime had a separate objective.

[Citations.] ‘“We must ‘view the evidence in a light most favorable to the respondent and

presume in support of the [sentencing] order the existence of every fact the trier could

reasonably deduce from the evidence.’”’” (People v. Tarris (2009) 180 Cal.App.4th 612,

626.)




                                               8
          Here, the court did not mention section 654 in sentencing Camacho, so we look to

whether substantial evidence supports the implicit finding that he had separate objectives

in committing the separate offenses.

                2. The robbery offense

          Camacho argues the sentence for robbery should be stayed because he took and

destroyed his girlfriend’s cell phone to cut her off from the outside world, allowing him

to commit the other crimes of kidnapping, false imprisonment, and inflicting corporal

injury.

          We can’t reach that conclusion. When Camacho took possession of the phone and

smashed it, he didn’t know his girlfriend had been unfaithful. All she had told him was

she had done something that he would not forgive her for. It is reasonable to infer he took

the phone to try to discover what she was withholding from him and then smashed the

phone when his efforts were unsuccessful. The inference finds further support in the fact

that the girlfriend’s mother was already on her way when he destroyed the phone and

went back inside the house. It was only after he returned to the kitchen and Camacho

started questioning her that he found out what she had done. And it was only after they

agreed to talk some more, called the girlfriend’s mother to tell her not to come, and the

girlfriend apologized for her infidelity, that Camacho punched her in the eye. We

conclude the trial court’s implicit finding that the robbery was distinct from the assault

had substantial support.




                                              9
               3. The kidnapping and false imprisonment offenses

        Camacho claims the sentences imposed for kidnapping and false imprisonment

should be stayed because his acts of taking his girlfriend down the hallway into the

bathroom (the kidnapping) and stopping her from leaving (the false imprisonment) were

done for the purpose of allowing him to inflict further corporal injury.

        That just doesn’t fit the facts. After he hit her in the kitchen, she began screaming

and wouldn’t stop. After covering her mouth and nose and asking her to stop didn’t work,

Camacho told her she needed to get cleaned up, wrapped his arms around her, and led her

down a hallway to a bathroom with no window. Once there, he made it clear his desire

was to cover up his crime by telling her he wanted her to stay in his house until she

healed. The trial court could reasonably have found Camacho committed the act of

kidnapping for the purpose of keeping his physical abuse secret, not to impose further

harm.

        Nor did Camacho’s imprisonment of the girlfriend appear to relate to the desire to

assault her further. He turned on the shower and encouraged her to clean up, but she

refused to get in. When she told him she wanted to go home, he apologized and pleaded

with her to stay and wait in his room for her injuries to heal. They spent some of the time

in the bathroom talking. He appears to have hit her to stop her from trying to leave. The

trial court plainly had sufficient evidence to conclude the initial assault and the false

imprisonment were distinct acts. It also had sufficient evidence to conclude the

subsequent assaults and the false imprisonment were distinct.



                                              10
       In his reply brief, Camacho argues we should order a stay of the false

imprisonment sentence because it was part of the same course of conduct as the

kidnapping. He doesn’t explain why he didn’t raise the issue in his opening brief. We

don’t consider arguments raised first in reply briefs without a showing why the appellant

couldn’t have made the argument earlier. (People v. Taylor (2019) 43 Cal.App.5th 390,

400, fn. 4.) We note, however, even if taking the girlfriend to the bathroom and keeping

her there was a single course of conduct, Camacho’s separate action in preventing her

from opening the front door and leaving was an act of false imprisonment that occurred a

substantial amount of time after the kidnapping, which supports the trial court’s implicit

finding that they were separate acts.

       C. Camacho’s Ability to Pay Fines and Fees

       Camacho’s sentence includes a court facilities fee in the amount of $150, a $200

court operations fee, a $300 restitution fine, and a stayed parole revocation fine. Camacho

didn’t object to any of the fee or fine orders at his sentencing hearing.

       He argues the trial court violated his constitutional right to due process, as

explained in Dueñas, by imposing the court operations and facilities fees without first

conducting a hearing to determine his ability to pay. Though sections 1202.4 and 1202.45

require trial courts to impose restitution and parole fines, he argues the court was required

to stay those fines unless the People demonstrate he is able to pay them.

       In Dueñas, Division Seven of the Second District Court of Appeal held trial courts

must always consider a defendant’s ability to pay fees and restitution fines, even if the



                                             11
statutes imposing them suggest otherwise. (Dueñas, supra, 30 Cal.App.5th at pp. 1168-

1172.) The court held imposing court operation and facilities fees without first

determining a defendant’s ability to pay them is a due process violation under the federal

and state Constitutions. (Id. at pp. 1168-1169.) It also held due process requires the

execution of a mandatory restitution fine be stayed until and unless the court finds

defendant has the ability to pay it. (Id. at pp. 1169-1172.) In People v. Belloso, the same

court included the probation revocation fine authorized by section 1202.45 in its decision

to remand that case for an ability to pay hearing.1 (People v. Belloso (2019) 42

Cal.App.5th 647, 651-652, 663.)

       The People argue Camacho forfeited his due process claims by failing to object

when the court imposed them. We disagree. It would have been futile for Camacho to

object to the fines and fees at his sentencing hearing, which occurred before Dueñas was

published. Moreover, as we explained at length in People v. Jones (2019) 36 Cal.App.5th

1028, 1034-1035 (Jones), such due process objections were all but foreclosed by the case

law and the statutes authorizing the fines and fees. In Jones, we therefore declined to find

forfeiture on an alleged Dueñas error. (Jones, at p. 1033; see also People v. Castellano

(2019) 33 Cal.App.5th 485, 489; People v. Johnson (2019) 35 Cal.App.5th 134, 137-138;




       1
       These and related issues are pending before the Supreme Court in People v.
Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844.


                                             12
contra, People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153.) We see no reason to

depart from our prior holding.2

       However, we conclude any error stemming from the failure to conduct an ability-

to-pay hearing was harmless beyond a reasonable doubt. (Jones, supra, 36 Cal.App.5th at

pp. 1034-1035 [error under Dueñas is subject to a harmless error analysis]; see Chapman

v. California (1967) 386 U.S. 18, 24 [before a court can find a constitutional error

harmless, it must be able “to declare a belief that it was harmless beyond a reasonable

doubt”].)

       The trial court imposed fines and fees in the total amount of $650 and sentenced

Camacho to seven years in state prison, reduced by 152 days of credit for time served.

Had the court conducted an ability-to-pay hearing in accordance with Dueñas, it would

have considered Camacho’s future earning capacity, including whether he would be able

to earn wages in prison. (Jones, supra, 36 Cal.App.5th at p. 1035; People v. Johnson,

supra, 35 Cal.App.5th at pp. 138-139.)

       Every able-bodied person committed to the custody of the Department of

Corrections and Rehabilitation is obligated to work. (Cal. Code Regs., tit. 15, § 3040,

subd. (a).) As we explained in Jones, wages in California prisons currently range from

$12 to $56 a month. (Jones, supra, 36 Cal.App.5th at p. 1035; Cal. Code Regs., tit. 15,

       2  The dissent’s reliance on People v. Valles (2020) 49 Cal.App.5th 156, 162-163,
review granted, July 22, 2020, S262757, is misplaced, as the lead opinion in that case
expressed only one justice’s opinion on the forfeiture of Dueñas claims. (Valles, at
p. 169, conc. opn. of Menetrez J. [“Presiding Justice Ramirez[’s] . . . Dueñas analysis . . .
is not joined by any other member of the panel and conflicts with this division’s
published precedent in People v. Jones”].) He remains alone in his view.

                                             13
§ 3041.2, subd. (a)(1).) Camacho was 19 years old and a high school graduate when he

was sentenced. He has pointed to nothing in the record to suggest he isn’t able-bodied.

Letters written in his support by his high school principal and his science teacher suggest

he is intelligent and willing to work hard, which bodes well for his ability to maintain

paid employment while in prison. Accordingly, we conclude the failure to conduct a

hearing to determine Camacho’s ability to pay $650 in fines and fees was harmless

beyond a reasonable doubt.

                                            III

                                     DISPOSITION

       We affirm the judgment.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                SLOUGH
                                                                                           J.

I concur:


MENETREZ
                          J.




                                             14
[People v. Camacho, E071514]

RAMIREZ, P.J., Concurring and Dissenting.

       I concur with the majority in all respects except for its conclusion that defendant

did not forfeit the issue of his ability to pay the fines. For the reasons expressed in

People v. Valles (2020) 49 Cal.App.5th 156, 162-163, review granted, July 22, 2020,

S262757, I would find defendant is precluded from challenging the trial court’s

imposition of the statutory minimum restitution and parole revocation fines because he

did not object to them at the sentencing hearing.




                                                                 RAMIREZ
                                                                                          P. J.




                                              1
