P. v. Harper

Filed 2/26/20 P. v. Harper CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JULIE E. HARPER,
Defendant and Appellant.
D074943
(Super. Ct. No. SCN308840)
APPEAL from a postjudgment order of the Superior Court of San Diego County,
Blaine K. Bowman, Judge. Affirmed.
Cynthia A. Grimm, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,
Steve Oetting, Daniel J. Hilton, and Junichi P. Semitsu, Deputy Attorneys General, for
Plaintiff and Respondent.

-- 1 of 19 --

2
Julie E. Harper was tried before a jury and convicted of second degree murder of
her husband. The jury also found true firearm enhancement allegations that Harper
personally discharged a firearm (Pen. Code, § 12022.5, subd. (a))1 and that the discharge
of the firearm resulted in death (§ 12022.53, subd. (d)). The court sentenced Harper to 40
years to life, consisting of 15 years to life for the murder conviction and 25 years to life
for the firearm enhancement under section 12022.53, subdivision (d). Harper appealed
and this court affirmed the conviction, but ordered a limited remand for the trial court to
consider its new authority to strike the firearm enhancements under amendments to the
Penal Code that took effect while Harper's appeal was pending.
On remand, the trial court rejected Harper's request to strike the enhancements.
Harper again appeals, arguing (1) a recent Court of Appeal decision, People v. Morrison
(2019) 34 Cal.App.5th 217 (Morrison), requires remand for the trial court to again
consider striking the firearm enhancement, and that (2) the court abused its discretion and
violated Harper's due process rights by declining to strike the enhancement. Harper also
asserts that she is entitled to remand so that the trial court can consider her ability to pay
the $10,000 restitution fine and various court fees imposed at the initial sentencing
hearing. We reject these challenges and affirm the court's order.
FACTUAL AND PROCEDURAL BACKGROUND
Due to the limited nature of the issues raised in this appeal, it is not necessary to
discuss the facts at length, which are set forth in this court's earlier opinion affirming
1 Subsequent statutory references are to the Penal Code.

-- 2 of 19 --

3
Harper's conviction. (People v. Harper (Jan. 5, 2018, D069632) [nonpub. opn.]
(Harper).) Briefly, on the morning of August 7, 2012, just days after she filed for
divorce, Harper shot her husband in the back after an argument in their bedroom. At the
time, the couple's three young children watched television in the living room downstairs.
After the shooting, Harper left the house with the children, first dropping the older two at
a play gym then later leaving them with her sister. Late that evening, the police
discovered the victim's body. The medical examiner later determined he was killed by a
single gunshot that entered the back left side of his torso and went through his heart. At
some point on the day of the murder, Harper also disposed of the gun, which was never
recovered.
Harper's counsel negotiated Harper's surrender to the police the following day.
The three minor children were taken into protective custody. A search by police of
Harper's father's home after her arrest uncovered a backpack in the attic containing
jewelry, credit cards, checks, a handgun, and passports for Harper and the two older
children. Harper's father also had removed over $30,000 in cash from the bag and given
it to Harper's attorney at the attorney's direction.
Harper was eventually charged with murder and allegations that she personally
discharged a firearm under section 12022.5, subdivision (a) and that the discharge of the
firearm caused death under section 12022.53, subdivision (d). She was first brought to
trial in 2014. The jury acquitted her of the murder charge but deadlocked on the lesser
included offenses of second degree murder and manslaughter. As a result, the court
declared a mistrial. Harper was retried the following year, and as she had in the first trial,

-- 3 of 19 --

4
presented herself as a battered woman who was acting in self-defense when she fired the
gun. Harper took the stand in her own defense and portrayed her husband as controlling
and abusive. The jury rejected the defense, found Harper guilty of second degree murder,
and made true findings on both firearm enhancement allegations.
The trial court sentenced Harper to 40 years to life. Harper challenged the
conviction, asserting on appeal that the prosecutor's removal of male jurors was a
violation of her right to a jury consisting of a representative cross-section of the
community; that the trial court provided erroneous jury instructions concerning the lesser
included offense of involuntary manslaughter and concerning voluntary manslaughter
based on imperfect self-defense; that she received ineffective assistance of counsel based
on her attorney's failure to object during the prosecutor's closing statement; and that the
prosecution's expert on domestic partner abuse was not qualified to testify.
After oral argument on Harper's initial appeal, she filed a request to submit
supplemental briefing on the recent passage of Senate Bill No. 620 (Sen. Bill No. 620),
which provided sentencing courts with discretion under section 1385 to strike the firearm
enhancements applied in this case. We granted the request and invited briefing from the
Attorney General, who conceded the new law applied. We rejected Harper's challenges
to her conviction, but accepted the Attorney General's concession with respect to the
application of Sen. Bill No. 620 and remanded "the matter to the trial court for the limited
purpose of conducting a new sentencing hearing to exercise its discretion under section
1385 with respect to the firearm enhancements."

-- 4 of 19 --

5
After remand, Harper submitted a "motion to modify restitution and to strike
12022.53 allegation." The district attorney filed a resentencing brief opposing the motion
and arguing that striking either firearm enhancement was not in the interests of justice.
At the resentencing hearing, the victim's mother testified about the devastating impact the
crime had on the family. The district attorney read statements from Harper's three
children explaining the heartbreak and life-shattering impact of the murder on their lives.
The prosecutor then recounted the facts of the murder and urged the court not to reduce
Harper's sentence.
Following the prosecutor's argument, Harper's father provided a statement asking
the court to be lenient on his daughter. Harper then addressed the court. She apologized
and asked for mercy. Harper also described the efforts she had undertaken in prison to
better herself. Her defense counsel argued the court should strike the firearm
enhancement imposed under section 12022.53, subdivision (a) in light of the facts that
this was Harper's only criminal offense, that she was remorseful, and that she had
vigorously sought to better herself since her incarceration.
The court begin its ruling by acknowledging Harper's sterling prison record. The
court noted the only issue for its consideration was whether the interests of justice would
be served by striking the firearm enhancement. The court recognized it could consider
"all the facts of the case, the impact to the victim's family, [and] all the circumstances that
are present in this case." The court noted the "egregious" nature of the crime, recounting
it had taken place with three small children downstairs, that Harper did not call 911 after
she shot the victim, and that she instead set off to dispose of the weapon. The court then

-- 5 of 19 --

6
focused on the "trail of devastation and broken hearts" caused by the crime and that the
use of a firearm had made the victim's death certain. The court then stated it had given
the issue "a great deal of thought" before concluding that "the interest of justice clearly
would not be furthered by striking the gun allegation and reducing the sentence."
With respect to Harper's request for the court to revisit the restitution fine, the
court agreed with the prosecutor that the issue was not properly before the court. The
court also noted that even if it were, "it would not be inclined to reduce th[e] restitution
fine."
DISCUSSION
I
Harper first asserts that remand is required under Morrison, supra, 34 Cal.App.5th
217, because the trial court was not aware of its discretion to impose a lesser, uncharged
gun enhancement.
A
"Section 12022.5[, subdivision (a)] provides for a sentence enhancement of three,
four, or 10 years for personal use of a firearm in the [commission or] attempted
commission of any felony. ¶ Section 12022.53 sets forth . . . escalating additional and
consecutive penalties, beyond that imposed for the substantive crime, for use of a firearm
in the commission of specified felonies, including . . . murder: a 10-year prison term for
personal use of a firearm, even if the weapon is not operable or loaded (id., subd. (b)); a
20-year term if the defendant 'personally and intentionally discharges a firearm' (id.,
subd. (c)); and a 25-year-to-life term if the intentional discharge of the firearm causes

-- 6 of 19 --

7
'great bodily injury' or 'death, to any person other than an accomplice' (id., subd. (d))."
(People v. Gonzalez (2008) 43 Cal.4th 1118, 1124.)
Sen. Bill No. 620, which was signed into law on October 11, 2017, and became
effective on January 1, 2018, amended section 12022.5 and 12022.53 to provide trial
courts with discretion to strike firearm enhancements. Prior to the change, imposition of
a firearm sentence enhancement found true by the jury was mandatory. The bill added
the following language to both statutes: "The court may, in the interest of justice
pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement
otherwise required to be imposed by this section. The authority provided by this
subdivision applies to any resentencing that may occur pursuant to any other law."
(Stats 2017, ch. 682, §§ 1(c), 2(h).)
In Morrison, the appellant was convicted of first degree murder and the jury found
true one of the same firearm enhancements Harper faces—personally and intentionally
discharging a firearm causing death under section 12022.53, subdivision (d). (Morrison,
supra, 34 Cal.App.5th at p. 220.) After sentencing, Morrison filed a request to recall his
sentence under section 1170, subdivision (d)(1),2 based on the changes to section
12022.53 made by Sen. Bill No. 620. (Ibid.) The trial court recalled the sentence, but
2 "Pursuant to section 1170, subdivision (d), once a defendant has been committed
to the Department of Corrections, the trial court has, within 120 days of the first day of
commitment, the authority on its own motion to recall the sentence and resentence the
defendant 'for any reason rationally related to lawful sentencing' [citation], 'provided the
new sentence . . . is no greater than the initial sentence.' (§ 1170, subd. (d).) This section
creates a statutory exception to the common law rule that the trial court loses jurisdiction
to resentence a defendant upon commencement of execution of his or her sentence."
(People v. Karaman (1992) 4 Cal.4th 335, 351-352.)

-- 7 of 19 --

8
denied the request to strike the firearm enhancement. (Ibid.) On appeal from the denial,
Morrison argued that remand was required because the trial court did not understand the
scope of its discretion, which he contended included the ability to strike the section
12022.53, subsection (d) penalty and impose a "lesser included" enhancement under
subsection (b) or (c), even though he had not been charged under those provisions.
(Morrison, at p. 221.)
The First District agreed with this assertion, concluding the position was supported
by existing case law recognizing the trial court's discretion to "impose a 'lesser included'
enhancement that was not charged in the information when a greater enhancement found
true by the trier of fact is either legally inapplicable or unsupported by sufficient
evidence." (Morrison, supra, 34 Cal.App.5th at p. 222, citing People v. Fialho (2014)
229 Cal.App.4th 1389, 1395-1396; People v. Strickland (1974) 11 Cal.3d 946, 961;
People v. Lucas (1997) 55 Cal.App.4th 721; People v. Allen (1985) 165 Cal.App.3d 616,
627; and People v. Dixon (2007) 153 Cal.App.4th 985, 1001-1002.) The Morrison court
buttressed its decision by relying on People v. Marsh (1984) 36 Cal.3d 134 (Marsh), in
which the California Supreme Court held the trial court could exercise its discretion
under section 1385 to strike allegations of ransom and great bodily injury that enhanced a
kidnapping conviction in order to make the 16-year-old defendant eligible for
commitment to the Youth Authority (now known as the Division of Juvenile Facilities of
the Department of Corrections and Rehabilitation) since those allegations precluded the
commitment. (Marsh, at p. 143.)
B

-- 8 of 19 --

9
Harper argues that, as in Morrison, another remand for resentencing is necessary
because the trial court was not aware of its authority to impose a lesser included, but
uncharged, enhancement under section 12022.53, subdivision (b) or (c). In response, the
Attorney General makes three arguments. First, he contends Harper forfeited this issue
by not raising it in the trial court. Next, he asserts that Morrison is wrongly decided and
also distinguishable. Finally, the Attorney General argues that even if the logic of
Morrison applies, remand is unnecessary because the trial court's comments at the
resentencing hearing make clear that it would not apply a lesser firearm enhancement.
We need not reach the issues of forfeiture or decide whether Morrison was
wrongly decided because the facts presented here do not require reversal under
Morrison's reasoning. Unlike Morrison, the trial court here was presented with a lesser
sentencing option than the 25-year-to-life enhancement it declined to strike. As noted,
Harper was charged with two firearm enhancements. The jury found true both the
maximum enhancement under section 12022.53, subsection (d) and a second, lesser
firearm enhancement under section 12022.5, subdivision (a). The lesser enhancement
carried a three-, four-, or 10-year prison term, which the trial court imposed and stayed at
the initial sentencing hearing.
Our limited reversal after Harper's initial appeal based on Sen. Bill No. 620
indicated clearly that on remand the trial court was "to consider whether the
enhancements under section 12022.5, subdivision (a) and 12022.53, subdivision (d)
should be stricken under section 1385." (Harper, supra, D069632 at p. 43, italics
added].) In addition, the prosecution's resentencing brief explicitly asked the trial court

-- 9 of 19 --

10
not to strike either enhancement. Given these facts, the court had a clear indication of its
authority to strike the greater firearm enhancement and impose the lesser. Further,
nothing in the record affirmatively suggests the court was unaware of its authority under
these provisions. (See People v. Mosley (1997) 53 Cal.App.4th 489, 496 ["The general
rule is that a trial court is presumed to have been aware of and followed the applicable
law."].) Thus, unlike Morrison, the court was aware of the scope of its discretion and
properly exercised that discretion to impose the same sentence it imposed at the initial
sentencing hearing.3
Finally, even if the trial court was unaware of its discretion to strike the most
severe firearm enhancement and impose one of the lesser uncharged sentence
enhancements under section 12022.53, subdivision (b) or (c), there is no prejudice to
Harper. On remand, the court was presented with the choice to lessen her sentence by
striking the 25-year enhancement under section 12022.53, subdivision (d) and reinstating
the enhancement under section 12022.5 it previously stayed, or by striking both firearm
enhancements. After considering the nature and circumstances of the murder, the court
3 Harper cites People v. Lua (2017) 10 Cal.App.5th 1004, 1020 (Lua) in support of
her assertion that the record here supports a holding that the trial court was unaware of its
discretion. This reliance is misplaced. In Lua, the trial court's comments at sentencing
affirmatively suggested that the court did not understand the scope of its discretion under
section 1385. No such confusion exists on this record and therefore the presumption that
the court was aware of its discretion applies. (See Lua, at p. 1021 ["In short, on the
present record, we cannot say that it is clear that the trial court recognized it had
discretion to strike one or more of defendant's section 11370.2 enhancements, and
expressly declined to do so. [Citation.] Nor is the record silent on the issue, justifying a
presumption in favor of the judgment."].)

-- 10 of 19 --

11
determined the 25-year enhancement was warranted and found that "the interest of justice
clearly would not be furthered by striking the gun allegation and reducing the sentence."
This record shows that even if the court was not aware of any additional discretion to
apply the uncharged enhancements based on the decision in Morrison (discretion we
merely assume for purposes of argument), there is no prejudice to Harper.
II
Harper next asserts that the court's failure to strike the firearm enhancements was
an abuse of its discretion and consequently a violation of her constitutional due process
rights.
"Under section 1385, subdivision (a), a 'judge . . . may, either of his or her own
motion or upon the application of the prosecuting attorney, and in furtherance of justice,
order an action to be dismissed.' " (People v. Carmony (2004) 33 Cal.4th 367, 373.)
" 'A court's discretionary decision to dismiss or to strike a sentencing allegation under
section 1385 is' reviewable for abuse of discretion." (Ibid.) "In reviewing for abuse of
discretion, we are guided by two fundamental precepts. First, ' "[t]he burden is on the
party attacking the sentence to clearly show that the sentencing decision was irrational or
arbitrary. [Citation.] In the absence of such a showing, 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." '
[Citations.] Second, a ' "decision will not be reversed merely because reasonable people
might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting
its judgment for the judgment of the trial judge.' " ' [Citations.] Taken together, these

-- 11 of 19 --

12
precepts establish that a trial court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with it." (Id. at pp. 376-377.)
Harper, in essence, asks this court to second guess the trial court's decision not to
strike the firearm enhancement. That is not our role. The record shows that the trial
court was intimately familiar with the case, having presided over two trials, and had
given its decision a great deal of thought and consideration. The evidence it
considered—including the submissions by Harper outlining her exceptional behavior in
prison, her testimony and the testimony of her father, as well as the grisly facts of the
crime detailed by the prosecutor, the oral statements of the victim's mother, and written
statements by Harper's three children with the victim—all supported the court's
determination that the enhancement was appropriately imposed on Harper. The court's
determination was supported by the evidence and was a proper exercise of its discretion.4
We likewise reject Harper's assertion that the sentence was a violation of her federal due
process rights, which she premises on her faulty contention that the trial court's failure to
strike the enhancement was arbitrary and capricious.
4 Harper also looks to the legislative history of Sen. Bill No. 620 to support her
contention that the evidence does not support the trial court's decision not to strike the
firearm enhancement. She states that "[t]he legislative analysis of SB 620 shows that the
Legislature fully expected the trial courts to liberally exercise this new discretion to
reduce the lengthy sentences for firearm enhancements." Similarly, Harper quotes
language from In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada), to argue that because
the new law provides an opportunity for a less severe sentence, there is a presumption
that a less severe sentence is warranted. These arguments distort the legislative history of
Sen. Bill No. 620 and the meaning of Estrada by ignoring the fact that the change in law
at issue does not mandate a lower sentence, but instead provides the trial courts with new
discretion to reduce sentences in meritorious cases.

-- 12 of 19 --

13
III
Harper's final arguments concern the $10,000 restitution fine under section 1202.4,
subdivision (b), the $40 court operations assessment under section 1465.8, the $30 court
facilities assessment under Government Code section 70373, and the $154 booking fee
under Government Code section 29550, all imposed at the initial sentencing hearing. She
argues the trial court erred by declining to consider her request to reduce the restitution
fine at the resentencing hearing and that the fines and fees were imposed in violation of
her constitutional rights to due process, equal protection, and the excessive fine bans
contained in the Federal and California Constitutions. To remedy these defects, Harper
seeks remand for the trial court to conduct a hearing on her ability to pay the fines and
fees she challenges on appeal.
A
With respect to the trial court's conclusion that it did not have authority under our
prior opinion to consider Harper's request to reduce the restitution fine, we determine it is
unnecessary to rule on this issue because Harper forfeited her arguments concerning the
constitutionality of the fines.
As an initial matter, we note that the case on which Harper relies, People v.
Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), is a far cry from the situation presented
here. In Dueñas, the defendant objected to the trial court's imposition of a $30 court
facilities assessment (Gov. Code, § 70373), a $40 court operations assessment (§ 1465.8),
and a statutory minimum $150 restitution fine (§ 1202.4, subd. (b)(1)) on due process
grounds. (Dueñas, at p. 1162.) "The defendant in Dueñas was a probationer who

-- 13 of 19 --

14
suffered from cerebral palsy, was indigent, homeless, and the mother of young children.
The court agreed to, and held, a separate inability-to-pay hearing as requested by the
defendant." (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1031 (Gutierrez), review
denied (Sept. 18, 2019).) At the hearing, the court "considered the defendant's
'uncontested declaration concerning her financial circumstances, determined that she
lacked the ability to pay the previously ordered attorney fees, and waived them on the
basis of her indigence. The court concluded that the $30 court facilities assessment under
Government Code section 70373 and $40 court operations assessment under . . . section
1465.8 were both mandatory regardless of [her] inability to pay them' (Dueñas, at
p. 1163), and that she failed to show " ' "compelling and extraordinary reasons" ' "
required by statute (§ 1202.4, subd. (c)) to justify waiving [the $150] fine. The [trial]
court rejected Dueñas's constitutional arguments that due process and equal protection
required the court to consider her ability to pay these fines and assessments. . ." ' "
(Gutierrez, at p. 1031, quoting Dueñas, at p. 1163.)
In reversing, the Dueñas court concluded "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 court facilities and court operations assessments under . . . section
1465.8 and Government Code section 70373" (Dueñas, supra, 30 Cal.App.5th at
p. 1164); and that, "although . . . section 1202.4 bars consideration of a defendant's ability
to pay unless the judge is considering increasing the fee over the statutory minimum, the
execution of any restitution fine imposed under this statute must be stayed unless and

-- 14 of 19 --

15
until the trial court holds an ability to pay hearing and concludes that the defendant has
the present ability to pay the restitution fine." (Ibid.)
There is a split of authority regarding whether forfeiture applies to cases where a
defendant failed to object to the imposition of fines and fees before Dueñas was decided.
(Compare People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154 (Frandsen)
[forfeiture found for restitution fines and fees in excess of statutory minimum] and
Gutierrez, supra, 35 Cal.App.5th at pp. 1032-1033 [same] with People v. Castellano
(2019) 33 Cal.App.5th 485, 489 (Castellano) [court declined to find forfeiture for
minimum fines and fees] and People v. Johnson (2019) 35 Cal.App.5th 134, 138
(Johnson) [same].)
Although the Johnson court declined to find forfeiture, it affirmed the judgment
concluding that even if it was error to impose fees, including the statutory minimum
restitution fine, without an ability to pay hearing, the error was harmless. (Johnson,
supra, 35 Cal.App.5th at p. 139.) Unlike in Dueñas, there was evidence in the record that
Johnson had some financial means and past income-earning capacity as well an ability to
earn prison wages over a sustained period. (Johnson, at pp. 139-140.) Similarly, the
court in People v. Jones (2019) 36 Cal.App.5th 1028 (Jones) concluded any Dueñas error
was harmless because the ability to earn prison wages foreclosed an ability to pay
argument. (Jones, at pp. 1035-1036.)
Unlike the defendants in Castellano, Johnson, and Jones, the defendants in
Frandsen and Gutierrez, which held the issue forfeited, faced the maximum $10,000
restitution fine authorized by section 1202.4, subdivision (b)(1). Under the statute, as the

-- 15 of 19 --

16
courts in Gutierrez and Frandsen noted, "even before Dueñas a defendant had every
incentive to object to imposition of a maximum restitution fine based on inability to pay
because governing law as reflected in the statute (§ 1202.4, subd. (c)) expressly permitted
such a challenge." (Gutierrez, supra, 35 Cal.App.5th at p. 1033; Frandsen, supra, 33
Cal.App.5th at p. 1154 ["the trial court imposed the maximum restitution fine. Frandsen
was thus obligated to object to the amount of the fine and demonstrate his inability to pay
anything more than the $300 minimum. Such an objection would not have been futile
under governing law at the time of his sentencing hearing. (§ 1202.4, subds. (c)-(d))."].)
B
At her initial sentencing hearing, Harper failed to object to the imposition of any
of the fines and fees she now challenges on her second appeal. She did object to the
$10,000 restitution fine at the resentencing hearing, but only on the grounds that she
wanted more money to spend in the commissary. Her motion to modify restitution stated
that "she earns between eight and twenty cents an hour, depending on the type of work
she is assigned. The restitution takes 55% of that amount. Her family has no money to
contribute and that is her only source of money for commissary and supplies." This
objection was not a challenge to the constitutionality of the restitution fine based on her
inability to pay and therefore was not sufficient to preserve that issue for our review.
(See People v. Marquez (1979) 88 Cal.App.3d 993, 997 ["An issue will not be reviewed
on appeal absent an objection in the court below on the same grounds urged on
appeal."].) Further, because her objection sought a reduction only so she would have

-- 16 of 19 --

17
more money for personal use, it implied that her wages provided her with the ability to
pay the fine while imprisoned.
Like the defendant in Gutierrez, who also faced a second sentencing hearing after
remand by this court, because the trial court imposed a restitution fine greater than the
statutory minimum of $300, under section 1202.4, Harper had the "right to request that
the court consider [her] ability to pay in setting the restitution fine, but [s]he did not do
so. H[er] silence is a classic example of the application of the forfeiture doctrine relied
upon by the California Supreme Court in numerous criminal sentencing cases decided
well before Dueñas. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864 [applying
the forfeiture rule to challenges to probation-related costs and an order for reimbursement
of fees paid to appointed trial counsel]; People v. Trujillo (2015) 60 Cal.4th 850, 853-854
[applying the forfeiture rule to an unpreserved claim regarding probation-related fees and
defendant's inability to pay them]; People v. Nelson (2011) 51 Cal.4th 198, 227
[defendant's claim that the trial court erred by failing to consider ability to pay a
restitution fine is forfeited by the failure to object].) Thus, even if Dueñas was
unforeseeable (a point on which we offer no opinion), under the facts of this case
[Harper] forfeited any ability-to-pay argument regarding the restitution fine by failing to
object." (Gutierrez, supra, 35 Cal.App.5th at p. 1033.)
To avoid this forfeiture, Harper argues that her counsel's failure to object to the
restitution fine and other fees was a violation of her right to effective counsel. To prevail
on a claim of ineffective assistance, Harper "must show, among other things, that [her]
'counsel's performance was deficient, in that it fell below an objective standard of

-- 17 of 19 --

18
reasonableness under prevailing professional norms.' " (People v. Mai (2013) 57 Cal.4th
986, 1009.) In evaluating his claim, we 'defer[] to counsel's reasonable tactical decisions'
and presume that 'counsel acted within the wide range of reasonable professional
assistance.' (Ibid.) Thus, defendant ' "must overcome the presumption that, under the
circumstances, the challenged action 'might be considered sound trial strategy.' " ' "
(People v. Fairbank (1997) 16 Cal.4th 1223, 1243, quoting Strickland v. Washington
(1984) 466 U.S. 668, 689.)" (People v. Arredondo (2019) 8 Cal.5th 694, 711.)
Harper's burden is " 'is difficult to carry' in this case, because this is a direct appeal
and the record does not disclose the reason for counsel's failure to object. (People v.
Lucas (1995) 12 Cal.4th 415, 437.) For those reasons, we may reverse 'only if (1) the
record affirmatively discloses counsel had no rational tactical purpose for the challenged
act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there
simply could be no satisfactory explanation.' " (Arredondo, supra, 8 Cal.5th at p. 711.)
Harper has failed to carry her burden. Her counsel was not asked why he failed to
request a determination on Harper's ability to pay at either hearing, the record does not
affirmatively disclose that counsel had no rational tactical purpose for the omission, and
we are not convinced there could be no satisfactory explanation. As the Attorney
General points out, Harper's counsel could have concluded that seeking a determination
on her ability to pay the $10,000 restitution fine and the other fees she challenges on
appeal was not appropriate because there was no evidence of Harper's indigence. Of
note, Harper was in possession of a large amount of cash at the time she was arrested and
was represented through two trials and the resentencing hearing by retained counsel.

-- 18 of 19 --

19
Finally, as noted, even the objection Harper did raise to the restitution fine showed that
she had the ability to earn wages that could be garnished for the fines and assessments
during her lengthy prison term.
DISPOSITION
The order is affirmed.
O'ROURKE, J.
WE CONCUR:
HALLER, Acting P. J.
IRION, J.

-- 19 of 19 --