Filed 8/17/20 P. v. Perez CA2/7
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                      DIVISION SEVEN


THE PEOPLE,                                                    B292026

         Plaintiff and Respondent,                             (Los Angeles County
                                                               Super. Ct. No. BA460888)
         v.

EFREN VALLADARES PEREZ,

         Defendant and Appellant.


      APPEAL from a judgment in the Superior Court of
Los Angeles County, Craig E. Veals, Judge. Convictions
affirmed, remanded with directions.
      Patricia S. Lai, under appointment by the Court of Appeal,
for Defendant and Appellant.
      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, William H.
Shin and Kathy S. Pomerantz, Deputy Attorneys General, for
Plaintiff and Respondent.
                _______________________________
       Efren Valladares Perez was convicted following a jury trial
of driving under the influence of alcohol causing injury and hit-
and-run driving. The jury also found true special allegations
Perez had personally inflicted great bodily injury in the
commission of a felony. On appeal Perez contends the trial court
erred in failing to instruct the jury regarding the elements of the
great bodily injury enhancement until after the jury had
deliberated. Perez also argues the court erred by relying on
impermissible factors in sentencing him to the upper term for
driving under the influence. We affirm Perez’s conviction, modify
the sentence imposed for hit-and-run driving and remand to
permit Perez to challenge his ability to pay the fines, fees and
assessments the court imposed at sentencing.
      FACTUAL AND PROCEDURAL BACKGROUND
      1. The Information
       In an information filed December 19, 2017 Perez was
charged with driving under the influence of alcohol causing
injury (Veh. Code, § 23153, subd. (a)), driving with a blood alcohol
level of 0.08 percent or more causing injury (Veh. Code, § 23153,
subd. (b)) and misdemeanor hit-and-run driving causing property
damage (Veh. Code, § 20002, subd. (a)). As to the two felony
counts, the information specially alleged Perez had personally
inflicted great bodily injury on Ignacio Cano Sanchez-Benitez
within the meaning of Penal Code section 12022.7,
subdivision (a).1




1     Statutory references are to this code unless otherwise
stated.




                                 2
      2. Evidence at Trial
       At approximately 11:00 a.m. on September 10, 2017
Rukhulla Kazimov, a professional limousine driver, was driving
his limousine home from his office, heading south on Las Palmas
Avenue in Hollywood. While Kazimov was stopped at a stop sign
at the intersection of Las Palmas and Lexington Avenue, a white
sport utility vehicle (SUV) travelling about 30 miles per hour
struck the right rear of Kazimov’s limousine and proceeded to
drive between it and the sidewalk, scraping the side of the
limousine in the process. The SUV, whose driver was later
identified as Perez, continued to drive very slowly to the next
intersection. Kazimov, believing Perez was looking for a place to
stop and exchange information, followed the SUV.
       The light was red when Perez arrived at the intersection of
Las Palmas and Santa Monica Boulevard. He made an abrupt
right turn without pausing to see if there was oncoming traffic.
Kazimov had already memorized Perez’s license plate number
and decided he would continue home. He waited for the light to
change and turned right onto Santa Monica Boulevard. Kazimov
turned right again at the next intersection onto McCadden Place
and pulled over momentarily to radio his dispatcher and report
the accident. Kazimov then proceeded north toward Lexington
when he heard a loud collision and saw a bicyclist, later
identified as Sanchez-Benitez, falling to the ground. Kazimov
observed that the SUV had hit a parked car and come to a stop.
Perez climbed out the driver’s side window and fell to the ground.
       Kevin Salazar was driving west on Santa Monica
Boulevard on the morning of September 10, 2017 when a white
SUV made a dangerous right turn onto Santa Monica from
Las Palmas. Salazar testified the SUV did not slow down for




                                3
traffic and turned into the oncoming lane, almost hitting a bus
traveling in the opposite direction. Salazar noticed a limousine
behind the SUV. The limousine slowed at the light to wait for
traffic to pass and then “sped off” after the SUV. Salazar thought
the limousine was chasing the SUV, and he decided to follow to
see what was happening. Salazar turned right onto McCadden
behind Kazimov, who pulled over. As the SUV was traveling
north on McCadden at approximately 40 miles per hour, Salazar
saw it hit a bicyclist. Salazar testified it was a “violent impact”;
he saw the bicyclist’s body “fly through the air and hit the
ground.” The SUV then hit two parked cars with enough force
that they collided with the cars parked behind them.
       Salazar got out of his car and went to the driver’s side of
the SUV where he found Perez in the driver’s seat. Salazar
testified Perez smelled strongly of alcohol and appeared drunk:
His eyes were bloodshot, and he was mumbling nonsensically.
Perez was too inebriated to get out of the car by himself, so
Salazar helped him out through the window. Perez passed out on
the sidewalk. At one point Salazar walked to where Sanchez-
Benitez was lying on the ground. Salazar observed Sanchez-
Benitez had “blood all over his face, his leg, bleeding from his leg,
just a lot of blood.”
       Raymond Garza was standing on the east side of McCadden
near the intersection with Fountain Avenue on the morning of
September 10, 2017. He saw a white SUV speeding north along
McCadden toward Fountain; the SUV ran two stop signs and
then collided with a bicyclist traveling west on Fountain. The
impact sent the bicyclist flying approximately 30 or 40 feet. The
SUV veered to the left and hit a parked car. Perez appeared
“totally drunk. . . . [He] couldn’t even walk or stand.” Garza




                                 4
approached Sanchez-Benitez, who was badly hurt. Garza said
the scene was “horrific. It was really traumatizing.” Sanchez-
Benitez was “just so scared and hurt. . . . A lot of blood . . . . His
body looked really mangled. I couldn’t tell what was broken or
what. It was just really scary.”
       Sanchez-Benitez testified he was riding his bicycle to work
westbound on Fountain on the morning of September 10, 2017.
While he was in the intersection of Fountain and McCadden, a
white SUV ran the stop sign and hit him. He was knocked off his
bicycle and landed further up the block. He tried to stand but
could not feel his legs. He was bleeding from his eye, mouth and
one leg. Sanchez-Benitez later learned he had broken his nose,
eight ribs and his pelvis in four places. The base of his spine had
broken off, and he was bleeding into his spinal column. He
underwent emergency surgery on his spine, as well as emergency
surgery to reattach his eyelid and lip. Sanchez-Benitez was in
the hospital a total of 10 days after the accident. At the time of
trial, nine months after the accident, Sanchez-Benitez testified he
was in almost constant pain and had not been able to return to
work because he could not stand or sit for long periods of time.
He said his leg still went numb occasionally and was very
painful. More than 1,000 pages of Sanchez-Benitez’s medical
records were admitted into evidence.
      Los Angeles Police Officer Alan Munoz, a field collision
investigator in September 2017, spoke to Perez in the hospital
shortly after the accident. Munoz testified Perez smelled of
alcohol and had red, watery eyes and a flushed complexion.
Perez initially told Munoz he had two beers the previous night
but later said he drank two beers the morning of the accident.
Perez admitted he had rear-ended the limousine and told Munoz




                                  5
he had not stopped because he did not want to deal with the
police. Perez said he then hit another car and claimed that car
hit the bicyclist.
      Perez consented to a blood test to determine his blood
alcohol level. The blood was drawn at 2:50 p.m., approximately
four hours after the accident, and revealed Perez had a blood
alcohol level of .164 percent. The People’s expert opined Perez
would have had a blood alcohol level between .19 and .25 percent
at the time of the accident.
      3. The Verdict and Sentence
       The jury found Perez guilty on all counts and found true
the special allegations he had personally inflicted great bodily
injury on Sanchez-Benitez during the commission of a felony.
The trial court sentenced Perez to an aggregate state prison term
of six years, consisting of the upper term of three years for
driving under the influence of alcohol causing injury, plus
three years for the great bodily injury enhancement, and a
concurrent sentence of one year for hit-and-run causing property
damage. The court imposed and stayed pursuant to section 654 a
sentence of six years for driving with a blood alcohol level of
0.08 percent or more causing injury, consisting of the upper term
of three years, plus three years for the great bodily injury
enhancement. The court also imposed a $120 court operations
assessment ($40 per conviction) (Pen. Code, § 1465.8), a $90 court
facilities assessment ($30 per conviction) (Gov. Code, § 70373)
and a $300 restitution fine (the statutory minimum) (Pen. Code,
§ 1202.4, subd. (b)).




                                6
                          DISCUSSION
      1. Any Error in Failing To Instruct the Jury on the Great
         Bodily Injury Enhancement Prior to Deliberation Was
         Harmless
        a. Relevant proceedings
       The trial court inadvertently failed to instruct the jury on
the elements of the great bodily injury sentence enhancement
prior to its deliberations. Upon reviewing the verdict forms
returned by the jury, the court realized the forms had included
language directing the jury to find whether Perez had inflicted
great bodily injury on Sanchez-Benitez during the commission of
a felony and the jury had found the allegation true for both felony
counts. After consulting with the attorneys, the court decided,
over defense counsel’s objection, to instruct the jury on the great
bodily injury enhancement and to have it consider again the
enhancement allegations.
       The trial court explained to the jury, “There is an
additional bit of information that I need to give to you. And we
can address it I think relatively quickly. But it’s going to require
that you go back into the jury room. . . . There is, as I mentioned,
some additional information that may or may not impact your
decision in this case. You decide whether it’s impactful or not. If
you would change your verdict, then you’ll let us know that is the
situation. Otherwise we’ll proceed with the verdict forms that
you have submitted.” After a brief recess to print the jury
instruction and new verdict forms, the court continued, “[T]here
is an issue, and the issue is that you made an express finding as
to great bodily injury alleged in counts 1 and 2. And whereas,
undoubtedly you have a strong intuitive sense as to what that




                                  7
expression means, it nonetheless does have a specific legal
meaning, and I have to instruct you on that which I failed to do
earlier. . . . To the extent that this instruction might impact the
decision that you made, there are new verdict forms, fresh ones,
with respect to counts one and two that you can indicate that
change . . . . If this instruction doesn’t make any difference as far
as your previous verdict is concerned, then just leave it
unchanged. . . .” “And the fact this instruction is being read in
isolation, that is, apart from the others, is no indication that it is
any more or less important that the others.”
       The court then instructed the jury on the elements of the
great bodily injury enhancement.2 After deliberating for an
additional four minutes, the jury returned verdict forms again
finding the special allegations true. At defense counsel’s request,
the jury was polled as to the verdict, and the court directed they
be polled specifically on the great bodily injury enhancement.
The court stated, “With respect to count 1 and the allegation that
in the commission of the offense the defendant inflicted great


2      The jury was instructed with CALJIC No. 17.20: “It is
alleged in counts 1 and 2 that in the commission of each felony
specified therein, the defendant personally inflicted great bodily
injury on Ignacio Cano Sanchez-Benitez. If you find the
defendant guilty of either crime, that is either count 1 or 2 or
both, you must determine whether the defendant personally
inflicted great bodily injury on Ignacio Cano Sanchez-Benitez in
the commission of each crime. ‘Great bodily injury,’ as used in
this instruction, means a significant or substantial physical
injury. Minor, trivial or moderate injuries do not constitute great
bodily injury. The People have the burden of proving the truth of
this allegation. If you have a reasonable doubt it is true, you
must find it to be not true.”




                                  8
bodily injury, did you agree that great bodily injury was, in fact,
inflicted by the defendant?” Each juror replied affirmatively.
        b. Governing law and standard of review
       Section 12022.7, subdivision (a), provides a three-year
sentence enhancement for “[a]ny person who personally inflicts
great bodily injury on any person other than an accomplice in the
commission of a felony or attempted felony . . . .” Because the
sentence enhancement increases the maximum penalty for the
crime charged, the court is required to instruct the jury on the
elements of the enhancement: “[A] trial court’s failure to instruct
the jury on an element of a sentence enhancement provision
(other than one based on a prior conviction), is federal
constitutional error if the provision ‘increases the penalty for [the
underlying] crime beyond the prescribed statutory maximum.’”
(People v. Sengpadychith (2001) 26 Cal.4th 316, 326; see
Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [“[o]ther than
the fact of a prior conviction, any fact that increases the penalty
of a crime beyond the prescribed statutory maximum must be
submitted to a jury and proved beyond a reasonable doubt”].)
       Claims of instructional error are questions of law, which we
review de novo. (People v. Posey (2004) 32 Cal.4th 193, 218;
People v. Alvarez (1996) 14 Cal.4th 155, 217; People v. Jandres
(2014) 226 Cal.App.4th 340, 358.) Failure to instruct the jury on
an element of a sentence enhancement “is reversible under
[Chapman v. California (1967) 386 U.S. 18, 24], unless it can be
shown ‘beyond a reasonable doubt’ that the error did not
contribute to the jury’s verdict.” (People v. Sengpadychith, supra,
26 Cal.4th at p. 326; accord, People v. Merritt (2017) 2 Cal.5th
819, 827.) In other words, the harmless error inquiry regarding
an element omitted from the jury instructions requires the




                                  9
reviewing court to determine if it is clear beyond a reasonable
doubt a rational jury would have found the defendant guilty
absent the error. (Merritt, at p. 827; see People v. Gonzalez
(2012) 54 Cal.4th 643, 666 [“[w]e have exhaustively reviewed the
trial evidence to determine ‘whether the record contains evidence
that could rationally lead to a contrary finding with respect to the
omitted element’”]; People v. Mil (2012) 53 Cal.4th 400, 417
[“[o]ur task, then, is to determine ‘whether the record contains
evidence that could rationally lead to a contrary finding with
respect to the omitted element’”].)
        c. Any error in the trial court’s failure to instruct the jury
           on the sentencing enhancement was harmless beyond a
           reasonable doubt
       Perez argues the trial court’s failure to instruct the jury on
the great bodily injury enhancement prior to jury deliberations
was not cured by the court reading the instruction after the fact
and giving the jury an opportunity to reassess its findings. We
need not decide whether the procedure employed here adequately
protected Perez’s right to have the elements of the special
enhancement allegation submitted to a jury because any error in
failing to properly instruct the jury was harmless beyond a
reasonable doubt.
       As discussed, a true finding under section 12022.7,
subdivision (a), required the jury to find Perez had personally
inflicted great bodily injury on Sanchez-Benitez. Perez argues
the jury was not given a definition of great bodily injury and,
therefore, there is no way of knowing what definition the jury
used in determining great bodily injury was inflicted. “Great
bodily injury” is statutorily defined as “a significant or
substantial physical injury.” (§ 12022.7, subd. (f); see CALCRIM




                                 10
No. 3160 [“Great bodily injury means significant or substantial
physical injury. It is an injury that is greater than minor or
moderate harm”].) To rise to the level of great bodily injury, an
injury need not result in “‘permanent,’ ‘prolonged’ or ‘protracted’
disfigurement, impairment, or loss of bodily function.” (People v.
Escobar (1992) 3 Cal.4th 740, 750.) Lacerations, bruises and
abrasions are sufficient to sustain a finding of great bodily injury.
(People v. Odom (2016) 244 Cal.App.4th 237, 247; People v.
Washington (2012) 210 Cal.App.4th 1042, 1047.) Similarly, a
bone fracture, even a facial fracture where no surgery is required,
can constitute great bodily injury. (People v. Nava (1989)
207 Cal.App.3d 1490, 1499; see People v. Villarreal (1985)
173 Cal.App.3d 1136, 1140-1141 [evidence of a bone fracture
supports a true finding on the great bodily injury enhancement
and in some circumstances establishes a “‘significant or
substantial injury’” as a matter of law].)
       The uncontested evidence at trial established Sanchez-
Benitez was bleeding profusely at the scene of the accident. He
suffered multiple broken bones, including the severing of the base
of his spine. He was bleeding internally, and his eyelid and lip
were partially detached. He underwent two emergency surgeries,
spending a total of 10 days in the hospital. Nine months later, he
was still under the care of physicians, suffered constant pain and
was unable to work. Even Perez’s trial counsel effectively
conceded Sanchez-Benitez’s injuries were significant, stating
during his closing argument, “There’s no dispute that the young
man was hurt, that he was hurt badly. . . . We’re not disputing
that his bones were broken, that he was hurt, and that it was
terrible.” On this record there is no evidence that could
rationally lead to a finding other than that Sanchez-Benitez




                                 11
suffered great bodily injury as a result of the accident. (See
People v. Villarreal, supra, 173 Cal.App.3d at p. 1141 [multiple
fractures of nasal bones, two broken teeth, surgery, five days in
the hospital, and continued headaches and medical treatment
constituted great bodily injury as a matter of law].)
        Even if the instructional error was harmless as to the
definition of great bodily injury, Perez argues, it was not
harmless as to causation. To find Perez liable pursuant to
section 12022.7, subdivision (a), the jury was required to find
Perez personally inflicted Sanchez-Benitez’s injuries.3 “A
defendant ‘personally inflicts’ great bodily injury if he directly
causes the injury—that is, if the defendant ‘himself’ ‘actually
inflicts the injury’ by ‘directly perform[ing] the act that causes
the physical injury.’” (People v. Ollo (2019) 42 Cal.App.5th 1152,
1156; accord, People v. Cardenas (2015) 239 Cal.App.4th 220, 228;
[“‘for the [great bodily injury] enhancement to apply, the
defendant must be the direct, rather than the proximate, cause of
the victim’s injuries’”].)
        During his closing argument Perez’s attorney did not
dispute Perez’s SUV hit Sanchez-Benitez. Instead, he contended
the accident was not caused because Perez was under the
influence of alcohol, but because he was being chased by Kazimov
and Salazar, which caused him to drive dangerously. Even if

3      This is in contrast to Vehicle Code section 23153,
subdivision (a), which penalizes a defendant for proximately
causing an injury. (Veh. Code, § 23153, subd. (a) [“[i]t is unlawful
for a person, while under the influence of any alcoholic beverage,
to drive a vehicle and concurrently do any act forbidden by law,
or neglect any duty imposed by law in driving the vehicle, which
act or neglect proximately causes bodily injury to any person
other than the driver”].)




                                 12
there were evidence to support this theory, which is doubtful at
best, and the jury had believed Perez’s version of events, it would
be legally irrelevant.
       Whether Perez ran the stop sign because he was being
chased or because he was under the influence of alcohol is of no
moment. It was undisputed Perez’s SUV hit Sanchez-Benitez
and caused his injuries. These facts, together with the jury’s
unchallenged finding Perez was guilty of driving under the
influence causing injury, are all that is required to find Perez
liable under section 12022.7, subdivision (a). Perez is not
absolved of culpability because other drivers’ actions may have
contributed to the accident. (See People v. Guzman (2000)
77 Cal.App.4th 761, 764 [defendant driving under influence of
alcohol who made unsafe left turn into oncoming traffic
personally inflicted great bodily injury on passenger even though
other driver participated in causing the accident]; see also People
v. Elder (2014) 227 Cal.App.4th 411, 421 [“[D]efendant engaged
in a physical struggle with the victim. It was during the
volitional act of struggling and attempting to pull away that the
victim’s injury was inflicted. Defendant was a direct cause of the
injury. . . . Neither the accidental nature of the injury, nor the
fact that it takes two to struggle, absolves defendant of
responsibility for personally inflicting GBI on the victim”].)
       In sum, there was no evidence at trial upon which a
properly instructed, rational jury could have reached a different
conclusion than that Perez personally inflicted great bodily injury
on Sanchez-Benitez. Any error was harmless beyond a
reasonable doubt.




                                13
      2. Perez Has Failed To Demonstrate the Trial Court
         Improperly Imposed the Upper Term Sentence for
         Driving Under the Influence Causing Injury
        a. Governing law and standard of review
       When a determinate sentencing statute authorizes
three possible terms of imprisonment, “the choice of the
appropriate term shall rest within the sound discretion of the
court.” (§ 1170, subd. (b).) “The court shall select the term
which, in the court’s discretion, best serves the interests of
justice.” (Ibid.) In exercising that discretion, the sentencing
court “may consider circumstances in aggravation or mitigation,
and any other factor reasonably related to the sentencing
decision.” (Cal. Rules of Court, rule 4.420(b).)4 The relevant
circumstances may be obtained from the record in the case, the
probation report, statements from the victim of the crime and
evidence introduced at the sentencing hearing. (§ 1170, subd. (b);
rule 4.420(b).)
       Subject to certain exceptions, “a trial court is free to base
an upper term sentence upon any aggravating circumstance that
(1) the court deems significant and (2) is reasonably related to the
decision being made.” (People v. Moberly (2009) 176 Cal.App.4th
1191, 1196; see People v. Sandoval (2007) 41 Cal.4th 825, 848;
rules 4.408(a), 4.421.) The existence of a single aggravating
circumstance is legally sufficient to make the defendant eligible
for imposition of the upper term. (People v. Black (2007)
41 Cal.4th 799, 816; People v. Osband (1996) 13 Cal.4th 622, 728;
see People v. Quintanilla (2009) 170 Cal.App.4th 406, 413.)

4    Citations to a rule or rules are to the California Rules of
Court.




                                 14
       “The trial court’s sentencing discretion must be exercised in
a manner that is not arbitrary and capricious, that is consistent
with the letter and spirit of the law, and that is based upon an
‘individualized consideration of the offense, the offender, and the
public interest.’” (People v. Sandoval, supra, 41 Cal.4th at
p. 847.) In the absence of a showing the sentencing decision was
irrational or arbitrary, “‘“the trial court is presumed to have
acted to achieve legitimate sentencing objectives, and its
discretionary determination to impose a particular sentence will
not be set aside on review.”’” (People v. Carmony (2004)
33 Cal.4th 367, 376-377.) A trial court abuses its discretion “if it
relies upon circumstances that are not relevant to the decision or
that otherwise constitute an improper basis for decision.”
(Sandoval, at p. 847; see People v. Willover (2016)
248 Cal.App.4th 302, 323.)
        b. The trial court acted within its discretion in
           sentencing Perez to the upper term for driving under
           the influence causing injury
       In sentencing Perez to the upper term for driving under the
influence of alcohol causing injury, the trial court identified four
aggravating factors: the crime involved great violence, great
bodily harm or other acts disclosing a high degree of cruelty,
viciousness, or callousness (rule 4.421(a)(1)); the victim was
particularly vulnerable (rule 4.421(a)(3)); Perez was convicted of
other crimes for which consecutive sentences could be imposed
(rule 4.421(a)(7)); and the crime involved damage of great
monetary value (rule 4.421(a)(9)). Perez’s trial counsel did not
object to the court’s use of any of these factors.
       Perez now contends the court erred in applying three of
these factors. First, Perez argues the court could not rely on




                                 15
Sanchez-Benitez’s great bodily injury as a factor in aggravation
because it imposed a sentencing enhancement based on the same
fact. Second, Perez argues the finding Sanchez-Benitez was
particularly vulnerable because he was riding a bicycle was
improper because Sanchez-Benitez was not more vulnerable than
any other pedestrian or bicyclist would have been. Finally, Perez
argues there was insufficient evidence to show Perez had caused
damage of great monetary value.
       Even if Perez’s arguments were not forfeited for failure to
raise them in the trial court (see People v. Boyce (2014) 59 Cal.4th
672, 730-731 [“‘[c]laims involving the trial court’s failure to
properly make or articulate its discretionary sentencing choices’
are subject to forfeiture, including ‘cases in which the stated
reasons allegedly do not apply to the particular case, and cases in
which the court purportedly erred because it double-counted a
particular sentencing factor, misweighed various factors, or failed
to state any reasons or to give a sufficient number of valid
reasons’”]), they are without merit.
       As to the first factor, the Attorney General concedes the
court could not both impose the great bodily injury sentence
enhancement and rely on great bodily injury as an aggravating
factor for imposing the upper term sentence. (See § 1170,
subd. (b) [“[t]he court may not impose an upper term by using the
fact of any enhancement upon which sentence is imposed under
any provision of law”]; People v. Scott (1994) 9 Cal.4th 331, 350
[“Although a single factor may be relevant to more than one
sentencing choice, such dual or overlapping use is prohibited to
some extent. For example, the court generally cannot use a single
fact both to aggravate the base term and to impose an
enhancement, nor may it use a fact constituting an element of the




                                16
offense either to aggravate or to enhance a sentence”]; see also
rule 4.420(c) [“a fact charged and found as an enhancement may
be used as a reason for imposing the upper term only if the court
has discretion to strike the punishment for the enhancement and
does so”].)
      Contrary to Perez’s argument, however, reliance on this
factor was not entirely improper. There was ample evidence
supporting the court’s finding Perez acted with a high degree of
cruelty, viciousness or callousness, which was not an element of
any offense or sentence enhancement and was thus properly
considered by the court during sentencing. The evidence
established that, by 11 a.m. on the day of the accident, Perez had
consumed enough alcohol to cause him to have more than twice
the legal limit of alcohol in his system. When Perez hit
Kazimov’s car, instead of realizing he was impaired and stopping
to take responsibility, he fled, and, in an attempt to escape
responsibility for his actions, drove recklessly until he hit
Sanchez-Benitez. Having done so, Perez still did not stop until
his SUV hit a parked car and his airbags deployed. Even then
Perez lied to the investigating officer later that day, first saying
he had not consumed any alcohol since the night before and then
saying he had consumed only two beers that morning. This
evidence amply supported the court’s finding Perez had acted
with a high degree of cruelty, viciousness or callousness.
      In addition, Perez does not challenge the court’s reliance on
Perez’s conviction of another crime (hit-and-run driving) for
which the court could have, but did not, impose a consecutive
sentence.
      These two aggravating factors constitute a sufficient basis
for imposition of the upper term. To the extent the court also




                                 17
articulated an impermissible factor to explain its sentencing
choice, reversal for resentencing is not required because it is not
reasonably probable the court would have chosen a lesser
sentence had it not relied on such factors. (See People v. Price
(1991) 1 Cal.4th 324, 492 [“[w]hen a trial court has given both
proper and improper reasons for a sentence choice, a reviewing
court will set aside the sentence only if it is reasonably probable
that the trial court would have chosen a lesser sentence had it
known that some of its reasons were improper”].)
      Finally, Perez’s argument the trial court erred by failing to
consider any mitigating factors during sentencing is without
merit. Even if a mitigating factor unquestionably exists, the
weight or significance to assign it is within the trial court’s broad
discretion; the court is free to disregard it altogether and need
not explain why it did so. (See People v. Lai (2006)
138 Cal.App.4th 1227, 1258.)
      3. A Limited Remand Is Necessary To Afford Perez the
         Opportunity To Request a Hearing Concerning His
         Ability To Pay Fines, Fees and Assessments
       In People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas)
this court held it violated due process under both the United
States and California Constitutions to impose a court operations
assessment as required by Penal Code section 1465.8 or the court
facilities assessment mandated by Government Code
section 70373, neither of which is intended to be punitive in
nature, without first determining the convicted defendant’s
ability to pay. (Dueñas, at p. 1168.) A restitution fine under
Penal Code section 1202.4, subdivision (b), in contrast, is
intended to be, and is recognized as, additional punishment for a
crime. Section 1202.4, subdivision (c), provides a defendant’s




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inability to pay may not be considered a compelling and
extraordinary reason not to impose the restitution fine; inability
to pay may be considered only when increasing the amount of the
restitution fine above the minimum required by statute. To avoid
the serious constitutional questions raised by these provisions,
we held, although the trial court is required to impose a
restitution fine, the court must stay execution of the fine until it
is determined the defendant has the ability to pay the fine.
(Dueñas, at p. 1172.)5
       Perez contends under Dueñas the court facilities and
operations assessments should be reversed, and execution of the
restitution fine stayed, unless and until the People prove he has
the present ability to pay the fine.6 As we explained in People v.


5      Several courts of appeal have applied this court’s analysis
in Dueñas (e.g., People v. Santos (2019) 38 Cal.App.5th 923, 929-
934; People v. Kopp (2019) 38 Cal.App.5th 47, 95-96, review
granted Nov. 13, 2019, S257844 [applying due process analysis to
court assessments]; People v. Jones (2019) 36 Cal.App.5th 1028,
1030-1035). Others have rejected the due process analysis (e.g.,
People v. Kingston (2019) 41 Cal.App.5th 272, 279-281; People v.
Hicks (2019) 40 Cal.App.5th 320, 326, review granted Nov. 26,
2019, S258946), or concluded the imposition of fines and fees
should be analyzed under the excessive fines clause of the Eighth
Amendment (e.g., People v. Aviles (2019) 39 Cal.App.5th 1055,
1061; Kopp, at pp. 96-97 [applying excessive fines analysis to
restitution fines]). The Supreme Court granted review of the
decision in Kopp to decide the following issues: “Must a court
consider a defendant’s ability to pay before imposing or executing
fines, fees, and assessments? If so, which party bears the burden
of proof regarding defendant’s inability to pay?”
6     Perez did not raise this issue in the trial court. However,
the People do not argue Perez has forfeited the issue on appeal,




                                 19
Castellano (2019) 33 Cal.App.5th 485, Dueñas does not support
that conclusion in the absence of evidence in the record of a
defendant’s inability to pay. “[A] defendant must in the first
instance contest in the trial court his or her ability to pay the
fines, fees and assessments to be imposed and at a hearing
present evidence of his or her inability to pay the amounts
contemplated by the trial court.” (Castellano, at p. 490;
see Dueñas, supra, 30 Cal.App.5th at pp. 1168-1169.)
       We remand the matter to the trial court so that Perez may
request a hearing and present evidence demonstrating his
inability to pay the fine and assessments imposed by the trial
court.




and we have generally declined to find forfeiture based on a
defendant’s failure to object to fines and fees prior to our opinion
in Dueñas. As we explained in People v. Castellano (2019)
33 Cal.App.5th 485, 489, “[N]o 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. . . . 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.” (Accord, People v. Belloso (2019)
42 Cal.App.5th 647, 662; People v. Johnson (2019) 35 Cal.App.5th
134, 138; contra, People v. Ramirez (2019) 40 Cal.App.5th 305,
312 [defendant forfeited challenge by not objecting to the
assessments and restitution fine at sentencing]; People v.
Bipialaka (2019) 34 Cal.App.5th 455, 464 [same]; People v.
Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154 [same].)




                                 20
      4. The Sentence Imposed for Misdemeanor Hit-and-run
         Driving Must Be Corrected
       Vehicle Code section 20002, subdivision (a), requires a
driver involved in an accident causing property damage to
immediately stop his or her vehicle and give the other driver his
or her contact information. Failure to do so is a misdemeanor
and “shall be punished by imprisonment in the county jail not
exceeding six months.” (Veh. Code, § 20002, subd. (c).) Despite
the six-month maximum penalty, the trial court imposed a
sentence of one year for the hit-and-run conviction, to be served
concurrently with the penalty imposed for driving under the
influence causing injury. The imposition of the one-year sentence
for hit-and-run driving was improper and resulted in an
unauthorized sentence. (See People v. Cunningham (2001)
25 Cal.4th 926, 1044-1045 [appellate court has obligation to
correct unauthorized sentence whenever the error comes to its
attention, whether or not the error was raised on appeal]; see
generally People v. Scott (1994) 9 Cal.4th 331, 354 [a sentence is
“unauthorized” when it “could not lawfully be imposed under any
circumstance in the particular case”].) We modify Perez’s
sentence to reflect a six-month concurrent sentence for violation
of Vehicle Code section 20002, subdivision (a).
      5. Perez Is Entitled to 312 Days of Actual Custody Credit
       A defendant is entitled to credit for all days spent in
custody from the date of arrest to the date of sentencing.
(§ 2900.5.) Perez contends, and the Attorney General concedes,
the trial court incorrectly awarded Perez 311 days of actual
custody credit, plus 46 days of conduct credit; but Perez was




                                21
entitled to 312 days of actual custody credit.7 Accordingly, the
abstract of judgment must be modified to reflect 312 days of
actual custody credit and total presentence custody credit of
358 days. (People v. Taylor (2004) 119 Cal.App.4th 628, 647
[incorrect calculation of legally mandated custody credit is an
unauthorized sentence that may be corrected at any time].)
                         DISPOSITION
       The convictions are affirmed. The judgment is modified to
reflect a sentence of six months for the misdemeanor hit-and-run
conviction. The matter is remanded to give Perez the opportunity
to request a hearing on his ability to pay the fine and
assessments imposed by the trial court. The trial court is
directed to prepare an amended abstract of judgment to reflect
the modification of the hit-and-run sentence and the correction of
Perez’s custody credits and to forward it to the Department of
Corrections and Rehabilitation.


                                           PERLUSS, P. J.


      We concur:


            SEGAL, J.


            FEUER, J.


7      The one-day increase in actual custody credit does not
affect the number of days of conduct credit Perez earned.




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