After pleading guilty to a felony offense, Keene was sentencing to three years in prison. The court also imposed a $1500 restitution fine (Pen. Code, § 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. The fines and fees were imposed prior to the Dueñas decision. On appeal, Keene relied on Duenas to argue the imposition of fines, fees and assessments without first holding a hearing on his present ability to pay denied him due process. He also argued that if the court found the issue to be forfeited for failure to timely raise it, trial counsel was ineffective.
- The Duenas issue was forfeited. The court agreed with the holding and reasoning in People v. Frandsen (2019) 33 Cal.App.5th 1126. Here, 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.
- Defense counsel was not ineffective for failing to raise the ability to pay argument. The record did not disclose the reasons for counsel’s decision. Counsel may not have raised the issues because counsel was trying hard to overcome Keene’s failure to appear and to get the trial court to eliminate a strike prior.
- SB 136. Keene’s sentence included a prison prior. The court agreed with the parties that Keene is entitled to the benefit of the new statute and found the appropriate remedy is to remand the case with directions to strike the one-year enhancement and resentence as may be appropriate.