Filed 8/19/20 P. v. Burkhart 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   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,                                                B289069, B292354

         Plaintiff and Respondent,                         (Los Angeles County
                                                           Super. Ct. No. BA425399)
         v.

HARRY BURKHART,

         Defendant and Appellant.




      APPEAL from a judgment of the Superior Court of
Los Angeles County, George G. Lomeli, Judge. Conditionally
reversed and remanded with instructions.
      Jeralyn Keller, under appointment by the Court of Appeal,
for Defendant and Appellant.
      Xavier Becerra, Attorney General, Lance E. Winters,
Assistant Attorney General, Jason Tran and Shezad H. Thakor,
Deputy Attorneys General, for Plaintiff and Respondent.

                                 _______________________
       Defendant Harry Burkhart appeals from a judgment of
conviction entered after a jury trial for 18 counts of arson of an
inhabited structure, 25 counts of arson of property, two counts of
arson of a structure, two counts of attempted arson, and two
counts of possession of flammable material. After a bifurcated
trial on Burkhart’s sanity, the jury found Burkhart was sane
when he set the fires.
       Burkhart contends his trial counsel in his opening
statement and closing argument conceded Burkhart’s guilt as to
several of the charged offenses in violation of his Sixth
Amendment right to counsel under McCoy v. Louisiana (2018)
584 U.S. ___ [138 S.Ct. 1500] (McCoy). He also argues remand is
necessary to determine his eligibility for mental health diversion
pursuant to Penal Code section 1001.36.1 Burkhart further
asserts the trial court violated his right to due process by
imposing certain fines and assessments absent evidence of his
ability to pay. Burkhart, who was 24 years old when he
committed the offenses, also seeks remand for an opportunity to
make a record of information relevant to his future youth
offender parole hearing under section 3051.
       We reject Burkhart’s argument his trial counsel’s conduct
violated his constitutional right to counsel, but we conditionally
reverse for the trial court to conduct a hearing on Burkhart’s
eligibility for mental health diversion. If the trial court does not
grant diversion, or if Burkhart is unsuccessful in completing
diversion, the court shall reinstate his convictions and sentence.
In that case, the trial court should allow Burkhart to request a


1    All further undesignated statutory references are to the
Penal Code.




                                 2
hearing and present evidence demonstrating his inability to pay
the court assessments and fines imposed by the court. The trial
court shall also allow Burkhart an opportunity to make a record
of information relevant to his future youth offender parole
hearing under section 3051.

      FACTUAL AND PROCEDURAL BACKGROUND

A.     The Indictment
       The grand jury returned a 49-count felony indictment
against Burkhart, charging him with 18 counts of arson of an
inhabited structure (§ 451, subd. (b); counts 1, 2, 4, 5, 8, 12, 14,
15, 19, 22, 29, 33, 37, 38, 40, 42, 44, & 46); 25 counts of arson of
property (§ 451, subd. (d); counts 3, 6, 7, 9, 10, 11, 13, 16, 17, 20,
21, 23, 24, 25, 27, 28, 30, 32, 34, 35, 36, 39, 43, 45, & 47); two
counts of arson of a structure (§ 451, subd. (c); counts 31 & 41);
two counts of attempted arson (§ 455; counts 18 & 26); and two
counts of possession of flammable material (§ 453, subd. (a);
counts 48 & 49). The indictment further alleged as to each count
for arson of a structure or an inhabited structure the arsons were
caused by use of a device designed to accelerate the fire or delay
ignition (§ 451.1, subd. (a)(5)).
       Burkhart pleaded not guilty and not guilty by reason of
insanity and denied the special allegations.

B.    The Guilt Phase of Trial
      1.     The evidence
      From the early morning of December 30, 2011 until his
arrest in the early morning of January 2, 2012, Burkhart lit a
series of more than 40 fires. Burkhart started each fire by




                                  3
placing a fire starter atop an artificial fire log,2 which he
positioned beneath the engine compartment of an automobile,
usually one parked in a carport. Many of the fires spread to
surrounding structures, including some residences. Burkhart
typically lit clusters of fires by setting logs aflame beneath
multiple parked cars in a particular location, then traveling to
another area to do the same.
       Video surveillance cameras recorded Burkhart purchasing
numerous fire starters at several locations of a grocery store
chain on December 28, 29, 30, and 31. For each purchase,
Burkhart used a rewards card at the register. Additional video
footage placed Burkhart or his vehicle in close proximity to the
location of several of the fires around the time they were lit.
Burkhart was identified in the videos in part because he always
wore a pony tail and all-black clothing, and he walked with a
distinctive limping gait. DNA evidence recovered from a propane
cannister and a matchbox connected Burkhart to two of the crime
scenes.
       When Burkhart was arrested in the early morning of
January 2, officers found fire-starting materials between the
front seats of his vehicle. No similar fires occurred after
Burkhart’s arrest.
       Burkhart did not testify or call any witnesses during the
guilt phase of his trial.




2      Fire starters are wax-based packages containing
petroleum-based fuel, designed quickly to ignite a fire. Artificial
fire logs are compressed wooden logs infused with wax.




                                 4
      2.     The guilt phase verdict
      The jury found Burkhart guilty of all counts and found true
the special allegations the arsons were caused by use of a device
designed to accelerate the fire.

C.     The Sanity Phase of Trial
       Forensic psychologist Dr. Richard Romanoff testified for
the defense and opined Burkhart suffered from autism spectrum
disorder, impaired cognitive function, paranoid delusions, and
stress-related psychotic mental illness, which rendered Burkhart
legally insane when he set the fires. Forensic psychologist
Dr. Kris Mohandie testified for the People. Dr. Mohandie also
diagnosed Burkhart with autism spectrum disorder, but he
opined Burkhart was not legally insane when he committed the
charged offenses. Burkhart’s first sanity trial ended in a mistrial
because the jurors were unable to reach a unanimous decision.
       Dr. Romanoff testified for the defense at Burkhart’s second
sanity trial and again opined Burkhart was legally insane when
he set the fires. Forensic psychologist Dr. Joel Leifer testified for
the People. Dr. Leifer opined Burkhart did not suffer from
autism spectrum disorder or any other mental illness when he set
the fires. The jury found Burkhart was sane at the time he
committed all the offenses.

D.    Sentencing
      The trial court sentenced Burkhart to an aggregate state
prison term of 33 years four months. The trial court selected
count 1 for arson of an inhabited structure as the base term and
imposed the middle term of five years, plus the middle term of
four years on the enhancement for use of a device designed to




                                 5
accelerate the fire (§ 451.1, subd. (a)(5)). On seven of the other
counts for arson of an inhabited structure (counts 4, 5, 8, 12, 14,
15, and 33), the court imposed consecutive sentences of one year
eight months (one-third the middle term of five years), plus one
year four months (one-third the middle term of the four-year
enhancement). On count 31 for arson of a structure, the court
imposed a consecutive term of one year four months, plus one
year four months on the enhancement (one-third the middle term
of four years for the base term and enhancement). On count 34
for arson of property, the court imposed a consecutive term of
eight months (one-third the middle term of two years).
       The court imposed the middle term of two years on the
remaining counts for arson of property (counts 3, 6, 7, 9, 10, 11,
13, 16, 17, 20, 21, 23, 24, 25, 27, 28, 30, 32, 35, 36, 39, 43, 45, &
47), attempted arson (counts 18 & 26), and possession of
flammable material (counts 48 & 49), to run concurrently. As to
the remaining counts for arson of a structure and arson of an
inhabited structure (counts 2, 19, 22, 29, 37, 38, 40-42, 44, & 46),
the court imposed the middle term of five years on each count, to
run concurrently, and struck the enhancements in the interest of
justice.
       The trial court imposed a $1,470 court facilities assessment
($30 per count) (Gov. Code, § 70373, subd. (a)(1)) and a $1,960
court operations assessment ($40 per count) (Pen. Code, § 1465.8,
subd. (a)(1)). The court imposed a restitution fine of $5,000 (Pen.
Code, § 1202.4, subd. (b)), and it imposed and suspended a parole
revocation restitution fine in the same amount (Pen. Code,
§ 1202.45). Burkhart did not object to imposition of the
assessments and fines or raise his inability to pay. The court




                                  6
continued the hearing on victim restitution. Burkhart timely
appealed (No. B289069).
      At the continued hearing, the parties stipulated to
imposition of $30,000 in victim restitution. The trial court
imposed $29,143.07 in victim restitution. Burkhart timely
appealed the restitution award (No. B292354), and we
consolidated the appeals.3

                          DISCUSSION

A.    Burkhart’s Trial Counsel Did Not Concede His Guilt in
      Violation of His Sixth Amendment Right to Counsel
      1.    Proceedings below
      Steven Schoenfield represented Burkhart at trial. Before
and during trial, Burkhart maintained he was innocent of all
charges, contending his mental illness prevented him from
leaving the house. Burkhart wanted to call his neighbors as alibi
witnesses he believed would testify Burkhart was at his home at
the time the fires were set; to present evidence “about the true
criminals in this case”; and to argue “those people in the videos
were actors.” On several occasions both before and during trial,
Burkhart requested to replace Schoenfield as his court-appointed
attorney pursuant to People v. Marsden (1970) 2 Cal.3d 118

3      Although Burkhart appealed from the trial court’s
imposition of victim restitution, he failed to address victim
restitution in his opening brief, thereby forfeiting any challenge
on appeal. (People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 [“the
claim is omitted from the opening brief and thus waived”]; Aptos
Council v. County of Santa Cruz (2017) 10 Cal.App.5th 266, 296,
fn. 7 [“Issues not raised in the appellant’s opening brief are
deemed waived or abandoned.”].)




                                 7
because Schoenfield would not follow Burkhart’s preferred
approach and Burkhart did not trust him.
       During his opening statement, Schoenfield stated, “There is
no question that [the prosecutor] has evidence to tie
Mr. Burkhart to six or seven of . . . these charged fires. And it’s a
virtual certainty that there will be a sanity phase in this trial. I
have no illusions about that. [¶] For the other 40 or so fires,
you’ll be asked to convict because of the similar method of
operation and the location and the timing of the incidents. [¶] So
as you take in the evidence I ask you to hold [the prosecutor] to
the burden of proof as to all the charges.” Schoenfield explained
some of his questions would be relevant to the sanity phase of
trial. Schoenfield concluded, “Once again, I ask you to pay close
attention to all the evidence. Most importantly, I ask you all to
keep an open mind.”
       During his closing argument, Schoenfield stated, “[C]learly,
[the prosecutor] has presented evidence connecting Harry
Burkhart directly to some of the charged fires. [¶] The DNA
evidence taken from the matchbox and the propane canister
connect [Burkhart] to two of the incidents. . . . [¶] And the video
evidence reasonably makes a case against Harry Burkhart [as to
four other fires].” Schoenfield acknowledged this evidence
connected Burkhart with six or seven of the charged fires. But he
added, “[A]s for those . . . six cases, that is what reasonable doubt
looks like. The remainder of the fires, they want you to convict
because of the method of operation and because the fires were
done in the same time period and in the Los Angeles area.
[¶] The problem is they haven’t proven each of those fires beyond
a reasonable doubt. [T]hey have proven 40 or so of these other
arsons by use of starter materials. However, the prosecution still




                                 8
must have actual evidence to link Harry Burkhart to each of
those individual fires, and that standard is beyond a reasonable
doubt.” Schoenfield noted “copycats could be responsible” and
argued “[t]he prosecution lacks specific evidence against Harry
Burkhart for the bulk of the charged arsons.”
       Schoenfield continued, “We know that the burden of proof
is on the government, but let’s try and understand the definition
and truly feel the weight of the proof required to convict.
[¶] . . . [¶] It’s the highest standard of proof of any court in the
world.” Schoenfield closed, “[The prosecution has] evidence for
six of [the fires], but they don’t have the evidence for the rest of
them. [¶] And I ask you to look at the evidence very carefully,
and to convict [Burkhart] of the crimes that they have proven and
not of the ones that they do not have the evidence.”

      2.      Burkhart’s trial counsel did not concede his guilt
              under McCoy
       Burkhart contends his trial counsel conceded Burkhart’s
guilt as to six or seven of the arson counts during his opening
statement and closing argument in violation of Burkhart’s Sixth
Amendment right to counsel recognized in McCoy, supra,
584 U.S. at p. ___ [138 S.Ct. 1500]. In McCoy, the United States
Supreme Court held “counsel may not admit her client’s guilt of a
charged crime over the client’s intransigent objection to that
admission.” (Id. at p. ___ [138 S.Ct. at p. 1510].) The court
explained the Sixth Amendment, which “guarantees to each
criminal defendant ‘the Assistance of Counsel for his defence,’”
gives the defendant “[a]utonomy to decide that the objective of
the defense is to assert innocence” and to “insist on maintaining
[his or] her innocence at the guilt phase of a capital trial.” (Id. at




                                  9
pp. ___ [138 S.Ct. at pp. 1507-1508].) “When a client expressly
asserts that the objective of ‘his defence’ is to maintain innocence
of the charged criminal acts, his lawyer must abide by that
objective and may not override it by conceding guilt.” (Id. at
p. ___ [138 S.Ct. at p. 1509].)
       In contrast to determination of the objective of the defense,
reserved to the defendant, “[t]rial management is the lawyer’s
province: Counsel provides his or her assistance by making
decisions such as ‘what arguments to pursue, what evidentiary
objections to raise, and what agreements to conclude regarding
the admission of evidence.’” (McCoy, supra, 584 U.S. at p. ___
[138 S.Ct. at p. 1508]; accord, People v. Frederickson (2020)
8 Cal.5th 963, 993 [“Defense counsel can make strategic choices
regarding how best to achieve a defendant’s objectives, but the
defendant chooses those objectives.”].)
       Burkhart contends Schoenfield’s opening statement and
closing argument conceded Burkhart’s guilt to six or seven of the
charged arson counts, over his intransigent objection to any
admission of guilt. The People assert Schoenfield’s statements do
not amount to a concession of guilt under McCoy, but rather, a
strategic decision to emphasize the prosecution’s lack of direct
evidence as to the majority of counts, while still holding the
prosecution to its burden of proof as to all of the counts. The
People have the better argument.
       The facts here are distinguishable from those in McCoy.
There, the defendant faced the death penalty for three murders.
(McCoy, supra, 584 U.S. at p. ___ [138 S.Ct. at pp. 1505-1506].)
During defense counsel’s opening statement in the guilt phase of
the trial, the attorney “told the jury there was ‘no way reasonably
possible’ that they could hear the prosecution’s evidence and




                                10
reach ‘any other conclusion than Robert McCoy was the cause of
these individuals’ death,’” and “the evidence is ‘unambiguous,’
‘my client committed three murders.’” (Id. at p. ___ [138 S.Ct. at
pp. 1506-1507].) Although the defendant took the stand and
testified he was innocent, defense counsel in his closing argument
in the guilt phase “reiterated that [the defendant] was the killer”
and “told the jury that he ‘took [the] burden off of [the
prosecutor].’” (Id. at p. ___ [138 S.Ct. at p. 1507].) As the McCoy
court explained, defense counsel’s “express motivation for
conceding guilt was . . . to try to build credibility with the jury,
and thus obtain a sentence lesser than death.” (Id. at p. ___ [138
S.Ct. at p. 1510].) The United States Supreme Court reversed
the judgment of conviction, holding the trial court’s allowance of
defense counsel’s admission of the defendant’s guilt had violated
the defendant’s Sixth Amendment right to counsel. (Id. at p. ___
[138 S.Ct. at p. 1512].)
       Here, unlike in McCoy, Schoenfield did not tell the jury
Burkhart was guilty of any of the charged offenses. Although
Schoenfield in his opening statement noted the People presented
evidence (including DNA evidence from a matchbox and propane
canister, and video footage placing Burkhart near the location of
several of the fires) that “connect[ed]” Burkhart to six or seven of
the fires, Schoenfield added as to those fires, “[T]hat is what
reasonable doubt looks like.” As to the video evidence that
showed Burkhart near the scene of the fires, Schoenfield
acknowledged the evidence “reasonably makes a case” against
Burkhart. But Schoenfield also urged the jury to “hold [the
prosecutor] to the burden of proof as to all the charges.” And
during his closing argument, Schoenfield reiterated “the burden
of proof is on the government” and requested the jury “to look at




                                11
the evidence very carefully, and to convict [Burkhart] of the
crimes that they have proven and not of the ones that they do not
have the evidence.” Schoenfield distinguished between the six or
seven arson counts for which the People introduced direct
evidence of Burkhart’s involvement from the “40 or so” counts for
which the People relied on the similarity in modus operandi, but
at no time did Schoenfield state Burkhart was guilty of arson or
set the fires, or purport to relieve the prosecution of its burden of
proof. (Cf. McCoy, supra, 584 U.S. at p. ___ [138 S.Ct. at p. 1507];
People v. Flores (2019) 34 Cal.App.5th 270, 272 [defense counsel’s
admission defendant facing attempted murder charge was
driving the car that seriously injured police officer (instead
arguing defendant did not have intent to kill), over defendant’s
repeated objection he was not the driver, violated defendant’s
Sixth Amendment right to counsel]; People v. Eddy (2019)
33 Cal.App.5th 472, 477 [defense counsel’s concession defendant
committed manslaughter (but not first degree murder) despite
defendant’s insistence he was factually innocent violated
defendant’s Sixth Amendment right to counsel].)4
       Rather, Burkhart’s disagreement with Schoenfield was over
trial strategy, not the trial objective. Schoenfield focused on the
absence of direct evidence linking Burkhart to the majority of the
fires, while maintaining the People bore the burden to prove guilt


4       The People also rely on People v. Lopez (2019)
31 Cal.App.5th 55, 62, in which the Court of Appeal considered
defense counsel’s statements “‘[a]s to the hit and run, he’s guilty
of it’” and “‘he should be punished for it.’” However, the Court of
Appeal in Lopez affirmed the defendant’s conviction because the
record did not reflect he had objected to his attorney’s decision to
concede guilt on the hit and run charge. (Id. at p. 66.)




                                 12
beyond a reasonable doubt as to all counts. Schoenfield believed
this approach would preserve his credibility with the jury at both
the guilt and sanity phases of Burkhart’s trial. But Burkhart
wanted Schoenfield to argue the person shown in the videos was
not him, but an actor; his mental illness prevented him from
leaving the house; and other witnesses saw him at home during
the fires. Despite Schoenfield and Burkhart’s disparate views on
the appropriate theory of the case, the disagreement was over
“‘what arguments to pursue,’” not Burkhart’s constitutional right
to determine the objective of his defense was innocence. (McCoy,
supra, 584 U.S. at p. ___ [138 S.Ct. at p. 1508]; People v.
Frederickson, supra, 8 Cal.5th at p. 1001.)

B.     Burkhart Is Entitled to an Eligibility Hearing for Mental
       Health Diversion
       Effective June 27, 2018, “the Legislature enacted
sections 1001.35 and 1001.36 as part of Assembly Bill No. 1810
(2017-2018 Reg. Sess.) . . . . [Citation.] Section 1001.36 gives
trial courts the discretion to grant pretrial diversion for
individuals suffering from certain mental health disorders.
(§ 1001.36, subd. (a).)” (People v. Frahs (2020) 9 Cal.5th 618, 626
(Frahs).) “The stated purpose of the diversion statute ‘is to
promote all of the following: [¶] (a) Increased diversion of
individuals with mental disorders to mitigate the individuals’
entry and reentry into the criminal justice system while
protecting public safety. [¶] (b) Allowing local discretion and
flexibility for counties in the development and implementation of
diversion for individuals with mental disorders across a
continuum of care settings. [¶] (c) Providing diversion that
meets the unique mental health treatment and support needs of




                                13
individuals with mental disorders.’ (§ 1001.35, subds. (a)-(c).)”
(Frahs, at p. 626.)
      Under section 1001.36, subdivision (c), “‘pretrial diversion’
means the postponement of prosecution, either temporarily or
permanently, at any point in the judicial process from the point
at which the accused is charged until adjudication . . . .” If a
defendant is charged with qualifying offenses,5 “a trial court may
grant pretrial diversion if it finds all of the following: (1) the
defendant suffers from a qualifying mental disorder; (2) the
disorder played a significant role in the commission of the
charged offense; (3) the defendant’s symptoms will respond to
mental health treatment; (4) the defendant consents to diversion
and waives his or her speedy trial right; (5) the defendant agrees
to comply with treatment; and (6) the defendant will not pose an
unreasonable risk of danger to public safety if treated in the
community.” (Frahs, supra, 9 Cal.5th at pp. 636-627; accord,
People v. Weaver (2019) 36 Cal.App.5th 1103, 1115, fn. 13; see
§ 1001.36, subd. (b)(1)(A)-(F).)
      If the six criteria in section 1001.36, subdivision (b)(1), are
met, and if the trial court “is satisfied that the recommended
inpatient or outpatient program of mental health treatment will
meet the specialized mental health treatment needs of the
defendant” (id., subd. (c)(1)(A)), then the trial court may order
pretrial diversion into an approved mental health treatment
program for up to two years (id., subd. (c)(1) & (3)). If the
defendant commits an additional offense or otherwise performs

5     A defendant may not be placed into a diversion program for
the charged offenses of murder, manslaughter, use of a weapon of
mass destruction, or certain enumerated sex offenses. (§ 1001.36,
subd. (b)(2).)




                                 14
unsatisfactorily in the diversion program, the trial court may
reinstate the criminal proceedings. (Id., subd. (d).) “If the
defendant has performed satisfactorily in diversion, at the end of
the period of diversion, the court shall dismiss the defendant’s
criminal charges that were the subject of the criminal
proceedings at the time of the initial diversion.” (Id., subd. (e).)
Upon successful completion of diversion, “the arrest upon which
the diversion was based shall be deemed never to have
occurred . . . .” (Ibid.; accord, Frahs, supra, 9 Cal.5th at p. 627.)
       Burkhart contends, the People concede, and we agree
section 1001.36 applies retroactively to Burkhart’s prosecution.
(Frahs, supra, 9 Cal.5th at pp. 624-625.) As the Frahs court
observed, section 1001.36 “offers a potentially ameliorative
benefit for a class of individuals—namely, criminal defendants
who suffer from a qualifying mental disorder.” (Frahs, at p. 631.)
Thus, section 1001.36 is presumptively retroactive. (Frahs, at
p. 631.) As in Frahs, in light of the significant evidence presented
at trial of Burkhart’s mental illness, we conditionally reverse
Burkhart’s judgment of conviction and direct the trial court to
determine whether Burkhart qualifies for diversion under section
1001.36. (See Frahs, supra, 9 Cal.5th at p. 640 [“we conclude
that a conditional limited remand for the trial court to conduct a
mental health diversion eligibility hearing is warranted when, as
here, the record affirmatively discloses that the defendant
appears to . . . suffer[] from a qualifying mental disorder”];
People v. Burns (2019) 38 Cal.App.5th 776, 788.) If the trial court
exercises its discretion to grant diversion and Burkhart
completes diversion, the trial court shall dismiss the charges.
(Frahs, at p. 641.) If the court determines Burkhart is ineligible
for diversion or exercises its discretion not to grant diversion, or




                                 15
if Burkhart is not successful in completing diversion, Burkhart’s
convictions and sentence shall be reinstated. (Ibid.)

C.    Burkhart Is Entitled to a Hearing on His Ability To Pay the
      Assessments and Fines
      Burkhart requests we remand the case for the trial court to
conduct an ability-to-pay hearing in accordance with our opinion
in Dueñas because he was indigent at the time of sentencing. We
agree if the judgment is reinstated, Burkhart should have an
opportunity on remand to request a hearing and present evidence
demonstrating his inability to pay the assessments and
restitution fines imposed by the trial court.

      1.    Dueñas and its progeny
      In Dueñas this court concluded “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; 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, supra, 30 Cal.App.5th at
p. 1168; accord, People v. Belloso (2019) 42 Cal.App.5th 647, 654-
655 (Belloso), review granted Mar. 11, 2020, S259755.)6 In

6     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.,




                                16
contrast to court assessments, a restitution fine under
section 1202.4, subdivision (b), “is intended to be, and is
recognized as, additional punishment for a crime.” (Dueñas, at
p. 1169; accord, Belloso, at p. 655.)7 Section 1202.4, subdivision
(c), expressly provides a defendant’s inability to pay a restitution
fine may not be considered a “compelling and extraordinary
reason” not to impose the statutory minimum fine. However, as
this court held in Dueñas, to avoid the serious constitutional
questions raised by imposition of such a fine on an indigent
defendant, “although the trial court is required by . . .
section 1202.4 to impose a restitution fine, the court must stay
the execution of the fine until and unless the People demonstrate
that the defendant has the ability to pay the fine.” (Dueñas, at
p. 1172; accord, Belloso, at p. 655.)




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?”
7     Our analysis of restitution fines under section 1202.4,
subdivision (b), also applies to parole revocation fines under
section 1202.45, because these fines must be imposed “in the
same amount as that imposed pursuant to subdivision (b) of
Section 1202.4.” (§ 1202.45, subd. (a).)




                                 17
      2.   On remand Burkhart is entitled to an opportunity to
           challenge imposition of the assessments and fines
      The People principally contend Dueñas was wrongly
decided. We follow this court’s due process analysis in Dueñas.8


8      The People do not argue Burkhart forfeited his right to a
hearing by failing to object to the assessments and fines at the
time of their imposition, and we decline to find Burkhart forfeited
his constitutional challenge as to the assessments. (People v.
Castellano (2019) 33 Cal.App.5th 485, 489 [“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.”]; see Belloso, supra, 42 Cal.App.5th at
p. 662; People v. Santos, supra, 38 Cal.App.5th at pp. 931-932;
People v. Johnson (2019) 35 Cal.App.5th 134, 137-138.) As to the
restitution fines, Burkhart had a right under section 1202.4,
subdivision (d), to challenge imposition of a restitution fine above
the $300 statutory minimum, and the parole revocation
restitution fine in the same amount (§ 1202.45, subd. (a)).
Although Burkhart failed in the trial court to challenge
imposition of the $5,000 restitution fine and parole revocation
restitution fine, “neither forfeiture nor application of the
forfeiture rule is automatic.” (People v. McCullough (2013)
56 Cal.4th 589, 593 [finding defendant forfeited challenge to
imposition of booking fee where he failed to raise his ability to
pay the fee in the trial court]; accord, In re S.B. (2004) 32 Cal.4th
1287, 1293 [“application of the forfeiture rule is not automatic,”
although “the appellate court’s discretion to excuse forfeiture
should be exercised rarely and only in cases presenting an
important legal issue”].) Because we are directing the trial court
to hold an ability-to-pay hearing on remand as to the
assessments, we leave it to the trial court’s discretion whether to
consider Burkhart’s ability to pay the $5,000 restitution and
parole revocation restitution fines on remand.




                                 18
       The People contend the record does not support a remand
for an ability-to-pay hearing because Burkhart failed to show in
the trial court he did not have the financial ability to pay the
assessments and fines and failed to show he lacked the future
earning capacity to pay, including from wages he would earn
while in prison. However, because Burkhart was not aware of his
ability to challenge the assessments and fines on due process and
equal protection grounds, he should have that opportunity on
remand. Moreover, at the time of sentencing Burkhart was 30
years old and terminally ill with cancer. The trial court noted
Burkhart’s “extremely serious health condition” as a mitigating
factor at sentencing. Further, there was evidence Burkhart
suffered from mental illness, and he had no history of
employment.
       The People’s reliance on People v. Johnson (2019)
35 Cal.App.5th 134 is misplaced. There, the Court of Appeal
declined to remand under Dueñas, finding any error in the trial
court’s imposition of fines and assessments without first
determining the defendant’s ability to pay was harmless because
evidence in the record of the defendant’s past earning capacity
and ability to earn prison wages over his term of incarceration
demonstrated an ability to pay the $300 restitution fine, $40
court operations assessment, and $30 court facilities assessment
imposed by the trial court. (Id. at pp. 137-139.) The Johnson
court reasoned, “The idea that [the defendant] cannot afford to
pay $370 while serving an eight-year prison sentence is
unsustainable.” (Id. at p. 139.) Although Burkhart’s term of
incarceration is lengthy, his significant mental and physical
health problems diminish the likelihood he will be able to pay the
much larger sum of $8,430 while serving his sentence.




                               19
       We reject the People’s additional contention Burkhart has
not shown a due process violation because he has not
demonstrated adverse consequences from imposition of the
assessments and fines. As we explained in Castellano, “the
defendant need not present evidence of potential adverse
consequences beyond the fee or assessment itself, as the
imposition of a fine on a defendant unable to pay it is sufficient
detriment to trigger due process protections.” (People v.
Castellano (2019) 33 Cal.App.5th 485, 490.) The People are
correct Burkhart must in the first instance request an
ability-to-pay hearing and present evidence of his inability to pay
the assessments and restitution fines. (Ibid.) We remand for
him to do so.

D.    Burkhart Is Entitled to a Franklin Hearing on Remand
      In a series of decisions, the United States and California
Supreme Courts have curtailed imposition of sentences of life
without parole (LWOP) on juvenile offenders, recognizing the
lessened culpability and greater prospects for reform that
distinguish juvenile from adult offenders. In Graham v. Florida
(2010) 560 U.S. 48 (Graham), the United States Supreme Court
held the imposition of an LWOP sentence on a juvenile offender
who committed a nonhomicide offense violated the Eighth
Amendment’s prohibition on cruel and unusual punishment.
(Graham, at pp. 68, 74.) In Miller v. Alabama (2012) 567 U.S.
460, 477 (Miller), the high court extended Graham, holding the
imposition of a mandatory LWOP sentence on a juvenile in a
homicide case also violated the Eighth Amendment. Relying on
Graham and Miller, in People v. Caballero (2012) 55 Cal.4th 262,
268 (Caballero) the California Supreme Court held the Eighth




                                20
Amendment bars “sentencing a juvenile offender to a term of
years with a parole eligibility date that falls outside the juvenile
offender’s natural life expectancy.”
       The Legislature enacted sections 3051 and 4801 “to bring
juvenile sentencing in conformity with Miller, Graham, and
Caballero.” (People v. Franklin (2016) 63 Cal.4th 261, 268
(Franklin); accord, People v. Sepulveda (2020) 47 Cal.App.5th
291, 298.) As originally enacted, section 3051 authorized a
hearing by the Board of Parole Hearings (Board) “for the purpose
of reviewing the parole suitability of any prisoner who was under
18 years of age at the time of his or her controlling offense.”
(Former § 3051, subd. (a)(1).) Section 3051 requires the Board to
provide “a meaningful opportunity to obtain release” by
conducting the youth offender parole hearing during the 15th,
20th, or 25th year of a juvenile offender’s incarceration,
depending on the offender’s sentence. (§ 3051, subds. (a)(2)(B),
(b)(1)-(3), & (e); accord, Franklin, supra, 63 Cal.4th at p. 277.)
Section 4801, subdivision (c), provides the Board “shall give great
weight to the diminished culpability of juveniles as compared to
adults, the hallmark features of youth, and any subsequent
growth and increased maturity of the prisoner in accordance with
relevant case law,” when reviewing an offender’s parole eligibility
pursuant to section 3051.
       In Franklin, the Supreme Court interpreted sections 3051
and 4801 to require a youth offender have a “sufficient
opportunity to make a record of information relevant to his
eventual youth offender parole hearing.” (Franklin, supra,
63 Cal.4th at p. 284; accord, In re Cook (2019) 7 Cal.5th 439, 451
[“an offender entitled to a hearing under sections 3051 and 4801
may seek the remedy of a Franklin proceeding even though the




                                21
offender’s sentence is otherwise final”].) The goal of the Franklin
proceeding “is to provide an opportunity for the parties to make
an accurate record of the juvenile offender’s characteristics and
circumstances at the time of the offense so that the Board, years
later, may properly discharge its obligation to ‘give great weight
to’ youth-related factors (§ 4801, subd. (c)) in determining
whether the offender is ‘fit to rejoin society’ despite having
committed a serious crime ‘while he was a child in the eyes of the
law’ [citation].” (Franklin, at p. 284.) The Franklin court
remanded for the trial court to determine whether the defendant
had a sufficient opportunity to create a record, and if not, to
“receive submissions and, if appropriate, testimony.” (Ibid.)
       Effective January 1, 2018, the Legislature amended
section 3051 to authorize a youth offender parole hearing for all
offenders who were 25 years old or younger at the time of the
offense. (§ 3051, subd. (a)(1).) Burkhart argues he is entitled to
remand for a Franklin proceeding because he was 24 years old
when he committed the arsons. The People do not dispute
Burkhart is “eligible for release on parole at a youth offender
parole hearing during [his] 15th year of incarceration.” (§ 3051,
subd. (b)(1).) Instead, the People argue Burkhart forfeited his
opportunity to create a record of relevant information because his
attorney failed to present evidence at the time of sentencing (on
March 23, 2018) or request a hearing in the trial court. However,
the goals of judicial forfeiture—proper development of the record
for appellate review and judicial economy—are not advanced by
applying forfeiture here. (People v. McCullough (2013) 56 Cal.4th
589, 593; In re S.B. (2004) 32 Cal.4th 1287, 1293.) Because we
are remanding for the trial court to conduct hearings on
Burkhart’s eligibility for mental health diversion and his ability




                                22
to pay the assessments and restitution fines, we instruct the trial
court to provide Burkhart a sufficient opportunity, either upon
our initial remand, or a subsequent reinstatement of the
convictions and sentence, to make a record of information
relevant to a later youth offender parole hearing.9 (See Franklin,
supra, 63 Cal.4th at p. 284.)

                         DISPOSITION

       We conditionally reverse the judgment and remand for the
trial court to conduct a hearing on Burkhart’s eligibility for
mental health diversion. If the court determines Burkhart
qualifies for diversion under section 1001.36, then the court may
grant diversion. If Burkhart successfully completes diversion,
then the trial court shall dismiss the charges.
       If the trial court concludes Burkhart is ineligible for
diversion or exercises its discretion not to grant diversion, or
Burkhart does not successfully complete diversion, then the court
shall reinstate Burkhart’s convictions and sentence and allow
Burkhart to request a hearing and present evidence
demonstrating his inability to pay the assessments and fines. If
Burkhart demonstrates his inability to pay the assessments, the
trial court must vacate them. If the court determines Burkhart
does not have the ability to pay the restitution fines, it must stay
their execution. Further, the trial court shall provide Burkhart



9    Because we remand for the trial court to conduct a
Franklin proceeding, we do not reach Burkhart’s contention
Schoenfield provided ineffective assistance of counsel by failing to
request a Franklin proceeding at the time of his sentencing.




                                23
an adequate opportunity to make a record of information relevant
to a future youth offender parole hearing under section 3051.




                                     FEUER, J.
We concur:




             PERLUSS, P. J.




             DILLON, J.*




*     Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




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