P. v. Chacon

SEE CONCURRING AND DISSENTING OPINION
Filed 7/7/20 P. v. Chacon CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY CHACON,
Defendant and Appellant.
F077849
(Super. Ct. No. BF142972A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Gary T.
Friedman, Judge.
Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A.
Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

-- 1 of 13 --

2.
Anthony Chacon (defendant) appeals from his sentence following a second
remand by this court. We affirm.
PROCEDURAL HISTORY
In June 2014, a jury found defendant to have been the shooter in a drive-by
shooting that targeted defendant’s fellow gang member.1 Although the intended victim
was unharmed, a ricocheting bullet struck and killed a two-year-old girl who was playing
in her front yard. The jury convicted defendant of first degree drive-by murder (Pen.
Code,2 §§ 187, 189; count 1), attempted murder (§§ 187, 664; count 2), and shooting at
an inhabited dwelling (§ 246; count 3). As to count 1, the jury found defendant
committed the murder by means of a drive-by shooting and to further the activities of a
criminal street gang (§ 190.2, subd. (a)(21) & (22)); personally discharged a firearm
causing death (§ 12022.53, subd. (d)); inflicted great bodily injury or death by shooting a
firearm from a motor vehicle (§ 12022.55); and committed the murder for the benefit of,
at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)). As
to count 2, the jury found defendant personally discharged a firearm (§ 12022.53,
subd. (c)), and committed the crime for the benefit of, at the direction of, or in association
with a criminal street gang (§ 186.22, subd. (b)). As to count 3, the jury found defendant
committed the crime for the benefit of, at the direction of, or in association with a
criminal street gang (ibid.).
On July 18, 2014, defendant was sentenced to prison for an unstayed term of life
in prison without the possibility of parole plus 25 years to life pursuant to section
12022.53, subdivision (d) on count 1, plus 15 years to life plus 20 years pursuant to
section 12022.53, subdivision (c) on count 2. The court imposed a restitution fine
1 Pursuant to Evidence Code sections 452, subdivision (d) and 459, we take judicial
notice of our records and opinions in People v. Anthony Chacon, F069786 and People v.
Anthony Chacon, F075542.
2 All statutory references are to the Penal Code unless otherwise stated.

-- 2 of 13 --

3.
(§ 1202.4, subd. (b)) in the amount of $2403, imposed and stayed a parole revocation fine
(§ 1202.45) in the same amount, imposed a court operations assessment (§ 1465.8) in the
amount of $120, and imposed a court facilities funding assessment (Gov. Code, § 70373)
in the amount of $90. It awarded defendant 739 actual days’ credit but no local conduct
credits. (See § 2933.2.)
Defendant appealed. This court found the sentence on count 2 was unauthorized,
because the jury did not make the premeditation finding necessary for imposition of a life
term pursuant to section 664, subdivision (a). Accordingly, we vacated the sentence on
that count, remanded for resentencing, and otherwise affirmed.
Defendant was resentenced on count 2 on April 26, 2017. After finding no
circumstances in mitigation and several in aggravation, the trial court imposed the upper
term of nine years, plus 10 years for the section 186.22, subdivision (b)(1)(C)
enhancement, plus 20 years for the section 12022.53, subdivision (c) enhancement, to be
served consecutively to count 1. The financial obligations were unchanged, but the trial
court updated defendant’s credits to 1,752 actual days.
Defendant again appealed and, after initially filing a brief pursuant to People v.
Wende (1979) 25 Cal.3d 436, requested a remand so the trial court could exercise its new
discretion to strike the firearm enhancements pursuant to section 12022.53, subdivision
(h), as amended by Senate Bill No. 620 (2017-2018 Reg. Sess.). We remanded the matter
for that purpose and otherwise affirmed.
The trial court heard the matter on July 20, 2018. After finding four circumstances
in aggravation but none in mitigation, and specifically remarking on the gravity of the
case and defendant’s prior record, the trial court reiterated the previously imposed
sentence, including, “following [the court’s] exercise of discretion,” the section
3 This was the minimum amount of such a fine in 2012, when defendant committed
his offenses. (§ 1202.4, former subd. (b)(1).)

-- 3 of 13 --

4.
12022.53, subdivision (d) enhancement as to count 1 and the section 12022.53,
subdivision (c) enhancement as to count 2. The court also reiterated the previously
imposed financial obligations, and updated defendant’s credits to 2,202 actual days.
Defendant again appealed. After initially filing a Wende brief, appellate counsel
requested, and was granted, permission to file a brief raising the issues we now address.
DISCUSSION
I
THE FIREARM ENHANCEMENTS
Relying primarily on People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison),
defendant contends the matter should be remanded so the trial court can decide whether
to reduce the firearm enhancements rather than striking them. We disagree.
Where, as here, a defendant has been found to have personally used a firearm in
the commission of an offense enumerated in subdivision (a) of section 12022.53, the
statute sets out three different sentence enhancements that depend upon the nature and
consequences of the firearm use. Subdivision (b) specifies a 10-year enhancement for the
personal use of a firearm. Subdivision (c) specifies a 20-year enhancement for the
personal and intentional discharge of a firearm. Subdivision (d) specifies an
enhancement of 25 years to life for the personal and intentional discharge of a firearm
that proximately causes great bodily injury or death. Subdivision (f) of section 12022.53
precludes imposition of more than one term of imprisonment under the statute per person
for each crime, and states that “[i]f more than one enhancement per person is found true
under this section, the court shall impose upon that person the enhancement that provides
the longest term of imprisonment.”
In Morrison, supra, 34 Cal.App.5th 217, the Court of Appeal held that an
uncharged enhancement under section 12022.53, subdivision (b) or (c) can be imposed in
lieu of an enhancement under subdivision (d) of the statute, if the subdivision (d)
enhancement was unsupported by substantial evidence, was defective or legally

-- 4 of 13 --

5.
inapplicable in some other respect, or if the trial court struck the subdivision (d)
enhancement pursuant to section 1385. (Morrison, supra, at pp. 222-223.)
In People v. Tirado (2019) 38 Cal.App.5th 637, review granted November 13,
2019, S257658, this court disagreed with Morrison. (Tirado, supra, at p. 644.) We held
that where only one enhancement under section 12022.53 was alleged and found true, the
trial court has discretion to strike or dismiss the enhancement pursuant to sections 1385
and 12022.53, subdivision (h), but it has no discretion to substitute another enhancement
within section 12022.53, unless the enhancement alleged is either factually unsupported
or inapplicable to the offense of conviction. (Tirado, supra, at pp. 640, 643-644, review
granted.) At least two other intermediate courts have agreed. (People v. Garcia (2020)
46 Cal.App.5th 786, 788, 790-794, review granted June 10, 2020, S261772; People v.
Yanez (2020) 44 Cal.App.5th 452, 458-460, review granted Apr. 22, 2020, S260819.)
In the present case, only the applicable enhancement with the greatest sentence
was alleged and found true by the jury — subdivision (d) of section 12022.53, with its
sentence of 25 years to life, as to count 1; and subdivision (c) of section 12022.53, with
its sentence of 20 years, as to count 2. Although we recognize review has been granted,
we see no reason to depart from our analysis and conclusion in Tirado. Defendant is not
entitled to a remand to permit the trial court to exercise discretion to impose an
enhancement under section 12022.53 that carries a lower sentence, when no such
enhancement was alleged.4
II
THE MONETARY OBLIGATIONS
As previously described, at the original sentencing hearing, the trial court ordered
defendant to pay the then-statutory minimum restitution fine of $240, pursuant to section
4 Remand would not be warranted in any event, because the trial court’s comments
and findings show it would not impose lesser enhancements.

-- 5 of 13 --

6.
1202.4, subdivision (b), and imposed and stayed a parole revocation fine in the same
amount, pursuant to section 1202.45. The court also imposed a court operations
assessment in the amount of $120 ($40 per count) pursuant to section 1465.8, and a court
facilities funding assessment in the amount of $90 ($30 per count) pursuant to
Government Code section 70373. These monetary obligations remained unchanged after
both remands. At no time did defendant object.
Defendant now contends the trial court improperly imposed the monetary
obligations without determining whether he had the ability to pay the amounts, in
violation of his due process rights, and the matter must be remanded for the court to
conduct a hearing on defendant’s ability to pay.5 Defendant’s due process argument is
based on People v. Dueñas (2019) 30 Cal.App.5th 1157, which was decided after
defendant’s most recent remand and while his current appeal was pending. Dueñas held
that “due process of law requires the trial court to conduct an ability to pay hearing and
ascertain a defendant’s present ability to pay” before it imposes any fines or fees. (Id. at
pp. 1164, 1167; accord, People v. Castellano (2019) 33 Cal.App.5th 485, 488-489.)
We conclude defendant did not forfeit the issue, as he lacked the statutory ability
to object to the fines and assessments imposed. Section 1202.4, subdivisions (c) and (d)
only permit a party to raise an ability to pay objection when the court imposes a
restitution fine above the statutory minimum. Section 1465.8, subdivision (a)(1) and
Government Code section 70373, subdivision (a)(1) do not permit a defendant to make
any kind of ability to pay objection. Since the trial court here imposed the minimum
restitution fine, defendant lacked the statutory ability to object under the governing law at
5 The question whether a court must consider a defendant’s ability to pay before
imposing or executing fines, fees, and assessments and, if so, which party bears the
burden of proof regarding the defendant’s ability to pay, is currently pending before the
California Supreme Court. (People v. Kopp (2019) 38 Cal.App.5th 47, review granted
Nov. 13, 2019, S257844.)

-- 6 of 13 --

7.
the time of his sentencing hearings. (Cf. People v. Frandsen (2019) 33 Cal.App.5th
1126, 1153-1154.)
Nevertheless, we conclude defendant is not entitled to a remand.
First, the situation presented in Dueñas is markedly distinguishable from the facts
of defendant’s case. (See People v. Lowery (2020) 43 Cal.App.5th 1046, 1054-1055
(Lowery); see also People v. Son (2020) 49 Cal.App.5th 565, 599-601, petn. for review
pending, petn. filed June 29, 2020 (conc. & dis. opn. of Franson, J.).)
Second, even if we agreed with Dueñas and Castellano, we would reject
defendant’s constitutional claim for the reasons stated in Lowery, supra, 43 Cal.App.5th
at pages 1056 through 1057.6
Third, any error in the trial court’s failure to conduct a hearing on defendant’s
ability to pay was harmless beyond a reasonable doubt. (Chapman v. California (1967)
386 U.S. 18, 24; Aviles, supra, 39 Cal.App.5th at p. 1075.) “ ‘Ability to pay does not
necessarily require existing employment or cash on hand.’ [Citation.] ‘[I]n determining
whether a defendant has the ability to pay a restitution fine, the court is not limited to
considering a defendant’s present ability but may consider a defendant’s ability to pay in
the future.’ [Citation.] This include[s] the defendant’s ability to obtain prison
wages . . . .” (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837, italics omitted.)
We can infer from the record that defendant has the ability to pay the aggregate
amount of $450 imposed in this case from probable current or future assets, including
prison wages. (Aviles, supra, 39 Cal.App.5th at p. 1076; People v. Ellis (2019) 31
6 At least one panel of this court has held that Dueñas was wrongly decided, and an
Eighth Amendment analysis is more appropriate to determine whether monetary
obligations imposed in a particular case are grossly disproportionate and thus excessive.
(People v. Aviles (2019) 39 Cal.App.5th 1055, 1068-1072 (Aviles).) Under that standard,
the fines and assessments imposed in this case are not grossly disproportionate to
defendant’s level of culpability and the harm he inflicted, and thus they are not excessive
under the Eighth Amendment. (Aviles, supra, at p. 1072; see Lowery, supra, 43
Cal.App.5th at pp. 1057-1058.)

-- 7 of 13 --

8.
Cal.App.5th 1090, 1094.) At the time of the original sentencing hearing, defendant, who
was born in 1983, was reported by the probation officer to be in good health with no
disabilities. He was a high school graduate and had taken welding classes. He had a
history of reasonably steady employment and gave his income as $20,000 to $30,000 per
month. He stated he owned valuable property in Mexico.
Nothing in the record suggests defendant will be unable to satisfy the fines and
assessments imposed by the court while serving his lifelong prison term, even if he fails
to obtain a prison job.7 While it may take him some time, that circumstance does not
support his inability to make payments on his financial obligations from existing assets,
prison wages, or monetary gifts from family and friends during his prison sentence. (See,
e.g., People v. Potts (2019) 6 Cal.5th 1012, 1055-1057; People v. Lewis (2009) 46
Cal.4th 1255, 1321; People v. DeFrance (2008) 167 Cal.App.4th 486, 505.)
We thus conclude, based on the record before us, that defendant has the ability to
pay the statutory minimum restitution fine and the mandatory assessments he was ordered
to pay. He is not entitled to a remand for a hearing on the subject.
III
AMENDED ABSTRACT OF JUDGMENT
After the trial court resentenced defendant on count 2 on April 26, 2017, it issued
an amended abstract of judgment that reflected, inter alia, defendant’s updated custody
credits. When the matter was remanded a second time for the court to exercise its
discretion under section 12022.53, subdivision (h), the court orally updated defendant’s
credits, but did not issue an amended abstract of judgment. Defendant’s appellate
attorney asked the trial court to issue an amended abstract, but the court ruled none was
required since the sentence imposed on April 26, 2017, remained in full force and effect.
7 This is so even assuming the stated income was the amount per year, not per
month.

-- 8 of 13 --

9.
Defendant now says we should require the trial court to prepare an amended abstract —
even if we are not remanding the matter — to reflect the sentence and custody credits
pronounced on July 20, 2018. We disagree.
Where a defendant’s sentence is modified on remand or a determinate sentence is
imposed and ordered to run consecutively to a previously imposed determinate term so
that the trial court in the current case is required to pronounce a single aggregate term, the
trial court is required to issue an amended abstract of judgment that reflects credit for all
of the actual days the defendant has spent in custody up to that time. (People v.
Buckhalter (2001) 26 Cal.4th 20, 37; People v. Saibu (2011) 191 Cal.App.4th 1005,
1012-1013; see § 2900.1.) Thus, when the trial court modified defendant’s sentence on
count 2 on April 26, 2017, it properly issued an amended abstract of judgment that
included defendant’s updated custody credits.
What occurred on July 20, 2018, is different. Although the trial court referred to
resentencing defendant on remand, this court’s remittitur did not vacate the sentence
imposed on April 26, 2017, but simply remanded the matter for exercise of discretion
regarding the firearm enhancements and otherwise affirmed. Although the trial court
restated the sentence imposed on each count, that sentence was not altered from the one
imposed on April 26, 2017. Accordingly, the trial court was not required to issue a new
or amended abstract of judgment. The superior court’s direction to its clerk to forward to
the California Department of Corrections and Rehabilitation a certified copy of (1) the
ruling denying the requested preparation of an updated or amended abstract of judgment,
and (2) the minute order dated July 20, 2018, which stated that the sentence imposed
April 26, 2017, remained in full force and effect and which updated defendant’s custody
credits, is sufficient.

-- 9 of 13 --

10.
DISPOSITION
The judgment is affirmed.
DETJEN, Acting P.J.
I CONCUR:
FRANSON, J.

-- 10 of 13 --

SMITH, J., Concurring and Dissenting.
I concur in sections I and III of the majority opinion. As for section II, I agree that
Chacon has not forfeited his challenge to the court assessments (Pen. Code, § 1465.81;
Gov. Code, § 70373) and restitution fine (§ 1202.4, subd. (b))2 imposed by the trial court
at sentencing. However, I dissent from the discussion and resolution of the merits of this
issue.
Chacon’s challenge to the court assessments and restitution fine imposed here is
based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Dueñas held that the
court cannot order a defendant to pay court assessments and restitution fines consistent
with constitutional requirements, without affording the defendant an opportunity to
request an ability to pay hearing. In other words, Dueñas held that, under applicable
constitutional mandates, such assessments and fines can only be effectuated if the
defendant is able to pay them.
I agree with Dueñas to the extent it holds that, under the United States
Constitution, a defendant must have the opportunity to request an ability to pay hearing
before nonpunitive court assessments are imposed at sentencing. However, in light of
existing United States Supreme Court precedents clarifying that, under the Constitution,
indigency is not a bar to enforcement of monetary judgments arising from unpaid fines
imposed as punishment, I disagree with Dueñas to the extent it further holds an ability to
pay hearing is constitutionally required before effectuation of the punitive restitution fine.
My reasoning is fully detailed in the lead opinion in People v. Son (2020) 49 Cal.App.5th
565, 599-601, petn. for review pending, petn. filed June 29, 2020 (lead opn. of Smith, J.).
1 All future statutory references are to the Penal Code unless otherwise noted.
2 In addition to the restitution fine imposed under section 1202.4, subdivision (b),
the court imposed and stayed a matching parole revocation restitution fine (§ 1202.45,
subd. (a)). However, I do not separately address the latter because it is essentially a
corollary of the former.

-- 11 of 13 --

2
I would remand the matter to give Chacon an opportunity to request an ability to
pay hearing with respect to the court operations assessment (§ 1465.8) and the court
facilities assessment (Gov. Code, § 70373). I disagree with the majority’s assertion that
remand is not required because “any error in the trial court’s failure to conduct a hearing
on defendant’s ability to pay was harmless beyond a reasonable doubt,” under Chapman
v. California (1967) 386 U.S. 18, 24. (Maj. opn., ante at p. 7.) Chacon has not yet had
an opportunity to request an ability to pay hearing to make a showing that he could not
pay the court assessments reimposed at the most recent sentencing, on July 20, 2018.
Accordingly, “no evidence exists in the record from which to infer any findings in this
regard.” (People v. Castellano (2019) 33 Cal.App.5th 485, 490.) Since the issue of
Chacon’s inability to pay was not addressed in the trial court, it would be inappropriate to
hold the existing, and necessarily incomplete, record definitively precludes Chacon from
demonstrating an inability to pay.3
In this context, I also disagree with the majority’s reasoning that Chacon should be
presumed able to pay the court assessments based on actual or potential prison
employment. While there is ample authority supporting the proposition that a prisoner’s
ability to pay fines and fees may be assessed on the basis of anticipated prison wages
(see, e.g., People v. Jones (2019) 36 Cal.App.5th 1028, 1035), reliance on that notion is
purely speculative at this juncture, given the absence of a record on the issue and the fact
that not all inmates are eligible for paid positions, which are considered a privilege and
3 The defendant was arrested in the instant case in July 2012. The majority relies on
his pre-arrest financial information and employment history of fairly low wage work, as
reflected in a probation report prepared in July 2014, to find that any error arising from
the court’s present failure to hold an ability to pay hearing is harmless beyond a
reasonable doubt. In my view, the defendant’s 2012 financial information as related to a
probation officer in 2014, is clearly outdated and cannot be relied on for present
purposes.

-- 12 of 13 --

3
are subject to various restrictions and requirements. (Cal. Code Regs., tit. 15, §§ 3040,
3041.1.)
With regard to the restitution fine imposed here, I would affirm the restitution fine
to the extent Chacon’s instant challenge is based entirely on the holding of Dueñas.
However, Chacon should have an opportunity to challenge the restitution fine, on
remand, under the excessive fines clause of the Eighth Amendment. The trial court is
best placed to resolve such a claim in the first instance, as the present record is devoid of
current information regarding Chacon’s financial circumstances and such information is
necessary for the Eighth Amendment analysis. (See, e.g., People v. Cowan (2020) 47
Cal.App.5th 32, 48 [“Because ability to pay is an element of the excessive fines calculus
under both the federal and state Constitutions, we conclude that a sentencing court may
not impose court operations or facilities assessments or restitution fines without giving
the defendant, on request, an opportunity to present evidence and argument why such
monetary exactions exceed his ability to pay.”].)
SMITH, J.

-- 13 of 13 --