Filed 12/20/19

                             CERTIFIED FOR PUBLICATION

                 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                       DIVISION ONE

                                 STATE OF CALIFORNIA



THE PEOPLE,                                          D074871

        Plaintiff and Respondent,

        v.                                           (Super. Ct. No. SCD273634)

DONALD G. KEENE,

        Defendant and Appellant.


        APPEAL from a judgment of the Superior Court of San Diego County, Polly H.

Shamoon, Judge. Affirmed as modified and remanded with directions.

        Rachel Ferguson, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

Charles C. Ragland and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and

Respondent.

        In this case the appellant seeks, for the first time on appeal, to challenge the court's

imposition of various fines, fees and assessments as part of the sentence. We will find

the issue has been forfeited by failure to raise it at the sentencing hearing. Since the
appellant does not challenge his conviction or any other part of his sentence we will

affirm the judgment.

                            PROCEDURAL BACKGROUND

       Donald G. Keene pleaded guilty to one count of failure to register as a sex

offender (Pen. Code,1 §§ 290.012, 290.018, subd. (b)). He also admitted a strike prior

(§ 667, subds. (b)-(i)) and a prison prior (§ 667.5, subd. (b)). The court indicated it

would strike the strike prior at sentencing.

       During the pendency of his sentencing hearing, Keene was released on his own

recognizance. Thereafter, Keene failed to appear for sentencing and was ultimately

arrested on a bench warrant.

       At the sentencing hearing, Keene's motion to withdraw his guilty plea was denied.

The court struck the "strike" prior and sentenced Keene to the middle term of two years

for the offense plus one year for the prison prior. The court also imposed a $1500

restitution fine (§ 1202.4, subd. (b)) and $224 in other fees and assessments. Keene did

not object to the fines, fees or assessments; nor did he request a hearing on his ability to

pay any of the imposed amounts.

       Keene appeals relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).

He contends the imposition of fines, fees and assessments without first holding a hearing

on his present ability to pay denied him due process. He also contends that if we find the




1      All further statutory references are to the Penal Code unless otherwise specified.
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issue to be forfeited for failure to timely raise it, trial counsel was ineffective. We will

reject his contentions and affirm.

                                       DISCUSSION

                         A. The Dueñas Issue Has Been Forfeited

       At the core of the Dueñas opinion is its holding that imposition of fines, fees or

assessments without a hearing on ability to pay denies due process. It was that court's

view it was the trial court's duty to hold a hearing and thus failure to seek a hearing did

not result in forfeiture. Further, the court found that the burden to prove "present" ability

to pay was on the prosecution. Other courts, including this court have disagreed with

Dueñas on these key principles.

       In People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155, the court

disagreed with Dueñas and held the issue of ability to pay was subject to forfeiture. The

court reasoned that ability to pay fines and other costs have long been litigated in the

courts. Forfeiture can be applied when the issue is raised for the first time on appeal.

The vast extension of due process by the Dueñas opinion certainly presents a different

approach to the issue but does not amount to a wholly new concept that might justify

abandonment of well-established forfeiture principles.

       Since the Dueñas opinion, various courts have adopted its approach, and others,

including this court, have not endorsed the Dueñas court's reasoning.

       In People v. Kopp (2019) 38 Cal.App.5th 47, 95-97, review granted, November

13, 2019, S257844, we expressed some of our disagreement with the Dueñas opinion. In

particular, we agreed that a defendant has a right to a hearing on ability to pay, where it is

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requested by the defense. We held the burden of proof was on the defendant to show

inability to pay the amounts assessed. We also rejected the idea that ability to pay was

focused solely on the present ability at the time of sentencing.

       The concept of forfeiture for failure to raise ability to pay fines, fees or

assessments is well established in our caselaw prior to Dueñas. Some of the cases

include People v. Aguilar (2015) 60 Cal.4th 862, 864; People v. Trujillo (2015)

60 Cal.4th 850, 853-854; People v. Nelson (2011) 51 Cal.4th 198, 227; and People v.

Avila (2009) 46 Cal.4th 680, 729.

       We agree with the court's holding and reasoning in People v. Frandsen, supra, 33

Cal.App.5th at pages 1153-1154, and will apply it here. We are satisfied that the doctrine

of forfeiture should be applied in this case. The defendant represented by counsel was

aware of the recommended amount of money proposed to be assessed against him. No

objection was made, and no comments of any kind suggested a challenge to the amounts

identified. Keene has forfeited the opportunity to challenge the fines, fees and

assessments imposed by the trial court.

                         B. Defense Counsel Was Not Ineffective

       In somewhat of a throw-away argument, Keene contends that if we find forfeiture

on appeal, then of necessity his counsel provided ineffective assistance of counsel under

the Sixth Amendment. Keene bears the burden of showing counsel's representation was

defective, and he was prejudiced as a result. (Strickland v. Washington (1984) 466 U.S.

668, 690.) The record does not establish either prong of the Strickland test. We have no

idea why counsel did not raise the ability to pay issue. We know counsel was trying hard

                                               4
to overcome Keene's failure to appear and to get the trial court to eliminate the strike

prior. We have no idea whether the fines, fees or assessments were of any consequence.

Nothing enlightens us on the consequences of any failure of Keene in the future to pay

any of the amounts.

          Our Supreme Court addressed the issue of establishing ineffective assistance of

counsel on a silent record in People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268.

The court found it difficult to establish error or prejudice without a full record. The court

suggested the defendant's remedy, if any, must be by way of a petition for habeas corpus.

(Ibid.)

                                    C. Senate Bill No. 136

          After the briefing in this case was completed, the Governor signed Senate Bill

No. 136 which changed the application of the one-year prison prior enhancement under

section 667.5, subdivision (b). Effective January 1, 2020, the alleged enhancement in this

case under that section would no longer be valid. We requested and received

supplemental briefing on the question of whether Keene is entitled to the benefit of the

new statute under the principles of In re Estrada (1965) 63 Cal.2d 740 (Estrada). The

parties agree that Keene's case will not be final as of January 1, 2020; thus, he is entitled

to the benefit of the new statute. We agree with the parties and find the appropriate

remedy is to remand the case with directions to strike the one-year enhancement and

resentence as may be appropriate.




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                                     DISPOSITION

      The sentence is vacated, and the trial court is ordered to strike the enhancement

under section 667.5, subdivision (b) and resentence the defendant accordingly.

Following resentencing the court shall amend the abstract of judgment and forward the

amended abstract to the Department of Corrections and Rehabilitation. In all other

respects the judgment is affirmed.



                                                                           HUFFMAN, J.

WE CONCUR:




McCONNELL, P. J.




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Dato, J., concurring.

       Consistent with this court's reasoning in People v. Gutierrez (2019) 35

Cal.App.5th 1027, I would agree that Donald G. Keene forfeited his Dueñas2 argument

by failing to raise any ability-to-pay argument in the trial court. (Gutierrez, at pp. 1032-

1033.) But I cannot join my colleagues in their endorsement of the forfeiture analysis in

People v. Frandsen (2019) 33 Cal.App.5th 1126, which I find considerably less

persuasive than cases such as People v. Castellano (2019) 33 Cal.App.5th 485, 488-489,

People v. Johnson (2019) 35 Cal.App.5th 134, 138; People v. Jones (2019) 36

Cal.App.5th 1028, 1033, and People v. Belloso (Nov. 26, 2019, B290968) __ Cal.App.5th

__, [2019 Cal.App.Lexis 1181 at *24-*25].




                                                                                   DATO, J.




2      See People v. Dueñas (2019) 30 Cal.App.5th 1157.
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