P. v. Tuiono

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Filed 3/25/20 P. v. Tuiono CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
SAMUEL TUIONO,
Defendant and Appellant.
E071886
(Super.Ct.No. RIF1800197)
OPINION
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Amanda
E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted defendant Samuel Tuiono of attempted murder (Pen. Code,1
§§ 664, 187, subd. (a), count 1) and robbery (§ 211, count 2). The jury also found true
the allegation that he had personally discharged a firearm causing great bodily injury in
the commission of both offenses. (§§ 12022.53, subd. (d), 1192.7, subd. (c)(8).)
(However, the jury found not true that the commission of count 1 was willful, deliberate,
and premeditated.)
The trial court sentenced defendant to a total term of 32 years to life in state
prison.2 On appeal, he contends: (1) we should remand to permit the trial court to
consider whether to modify the punishment imposed for the gun use from a 25-year-to-
life term, under subdivision (d) of section 12022.53, to a lesser term under
subdivisions (c) or (b) of section 12022.53; and (2) we should remand to give defendant
the opportunity to request a hearing on his ability to pay the various fines and fees
imposed. Defendant further contends there is a sentencing error in the abstract of
judgment. We affirm.
I. PROCEDURAL BACKGROUND AND FACTS
Defendant (born in December 2000) responded to the victim’s online offer to sell
a backpack, agreeing to meet at a Riverside restaurant. On October 19, 2017, the victim,
1 Unless otherwise noted, all undesignated statutory references are to the Penal
Code.
2 Defendant’s sentence is as follows: count 1 (attempted murder), seven years,
plus a consecutive 25-year-to-life term for the gun use enhancement; count 2 (robbery),
five years, plus a consecutive 25-year-to-life term for the gun use enhancement, with the
total term on count 2 stayed. (§ 654).

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his wife, and son arrived at the restaurant. While his family waited in the car, the victim
brought the backpack into the restaurant where he saw two young men (later identified as
defendant and B.H.).) The victim approached the young men and defendant suggested
they go outside. Once outside, defendant pointed a gun at the victim’s face and said,
“‘Look, Cuz, it’s a stick-up.’” Defendant and B.H. began walking away with the victim’s
backpack, without paying for it; however, the victim followed. When the victim got
close to defendant, he fired his gun, shooting the victim in the thigh.
II. DISCUSSION
A. Remand of the Firearm Enhancement Sentence Is Not Warranted.
Defendant requested the trial court to exercise its discretion to dismiss his firearm
enhancement, and the request was denied. Recognizing its discretion within section
12022.53, subdivision (h)(1), to strike or dismiss the enhancement if the interest of justice
so required, the court explained, “I don’t know how you get there. I don’t know how the
interest of justice would” support striking the enhancement. Nevertheless, relying on
People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison), defendant contends the
matter must be remanded to allow the trial court to exercise its discretion to potentially
impose a lesser, uncharged firearm enhancement under section 12022.53, subdivisions
(b) or (c). This court has already addressed a claim under Morrison and concluded the
statute does not afford any such additional options (People v. Yanez (2020) 44
Cal.App.5th 452, 457-460 (Yanez)), and we therefore decline to remand the matter on this
basis.

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Section 12022.53 sets forth three different sentence enhancements for a
defendant’s personal use of a firearm in the commission of enumerated offenses: a 10-
year enhancement when a defendant personally uses a firearm, but does not discharge it
(§ 12022.53, subd. (b)); a 20-year enhancement when a defendant personally and
intentionally discharges a firearm, but the discharge does not cause great bodily injury or
death (§ 12022.53, subd. (c)); and a 25-year-to-life enhancement when a defendant
personally and intentionally discharges a firearm causing great bodily injury or death
(§ 12022.53, subd. (d)). In 2017, the Legislature amended the statute to include the
following: “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. . . .” (§ 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2.)
Given this change in the statute, the Morrison court concluded that the trial court
has the discretion to impose a lesser included, uncharged enhancement (§ 12022.53,
subds. (b) or (c)) in the interests of justice pursuant to section 1385, notwithstanding a
finding by the trier of fact in support of a greater enhancement (§ 12022.53, subd. (d)).
(Morrison, supra, 34 Cal.App.5th at pp. 222-223.) However, our colleagues in the Fifth
District reached the opposite conclusion in People v. Tirado (2019) 38 Cal.App.5th 637
(Tirado), review granted November 13, 2019, S257658. The Tirado court decided that
the statute contained no language suggesting the Legislature intended to grant such
discretion in sentencing. (Id. at pp. 642-644.) As we stated in Yanez, “[a]fter conducting
our own independent analysis of section 12022.53, subdivision (h), we agree with the
conclusion reached in Tirado.” (Yanez, supra, 44 Cal.App.5th at p. 458.)

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Applying the fundamental rules of statutory interpretation, we conclude that
“nothing in the plain language of sections 1385 or 12022.53, subdivision (h) suggests an
intent to allow a trial court discretion to substitute one sentencing enhancement for
another.” (Yanez, supra, 44 Cal.App.5th at p. 459.) Rather, “the Legislature’s use of the
words ‘strike’ or ‘dismiss’ indicates the court’s power pursuant to these sections is
binary.” (Ibid.; cf. People v. Harvey (1991) 233 Cal.App.3d 1206, 1229 (Harvey) [same
conclusion when considering the plain meaning of the term “strike” in the context of a
similar drug sentencing enhancement].)
In Harvey, the appellate court examined Health and Safety Code section 11370.4,
subdivision (e), which affords the trial court with the discretion to “strike” an
enhancement if it finds mitigating circumstances. (Harvey, supra, 233 Cal.App.3d at
p. 1229.) In deciding that the word “strike” did not include discretion to impose a lesser
enhancement, the court explained: “The wording of the section makes it clear that the
sentencing court has only two alternatives. If the court does not feel there are mitigating
circumstances sufficient to justify the striking of the enhancement, it must impose the
enhancement. Otherwise, if it finds that mitigating circumstances do exist which would
justify striking the enhancement, it may be stricken. Nowhere does the section indicate
the court may impose only a portion of the enhancement. In interpreting the statute, the
Legislature is presumed to have meant what it said, and the plain meaning of the
language governs. [Citation.] Nowhere in the statute does it indicate the court has any
discretion besides either imposing the full enhancement or striking it in its entirety.”
(Harvey, at pp. 1229-1230.) The same reasoning applies here.

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Moreover, as we explained in Yanez, under the separation of powers principle,
“we decline to adopt an interpretation of section 12022.53, subdivision (h) which would
vest the trial court with discretionary power to essentially modify a charge brought by the
prosecutor despite sufficient evidence to support such a charge.” (Yanez, supra,
44 Cal.App.5th at p. 460.)
Here, the People charged defendant with the gun enhancement under
section 12022.53, subdivision (d), the jury found the allegation true, and defendant does
not challenge this finding as contrary to the law or claim insufficient evidence justifies
the imposition of a lesser enhancement. (§ 1181 [To the extent the Legislature has
provided statutory authority for a trial court to modify a verdict in order to impose a
lesser offense or lesser punishment than that found true by a jury, it has specified that
such should occur only when the verdict is contrary to the law or evidence.].) Because
we reach a conclusion contrary to that in Morrison, we decline to remand the matter for
resentencing on the ground the trial court has the option of imposing a lesser, uncharged
enhancement.
B. No Correction of the Abstract of Judgment Is Required.
Defendant contends, and the People agree, the abstract of judgment does not
reflect the trial court’s oral pronouncement of judgment with respect to certain fines and
fees. They assert the abstract of judgment requires correction. We disagree.
Defendant suffered two convictions. The court operations fee is mandatory
(People v. Woods (2010) 191 Cal.App.4th 269, 272 [court operations fee and court
facilities fees are mandatory]), and requires a $40 assessment be imposed on every

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conviction (Pen. Code, § 1465.8, subd. (a)(1)). Likewise, the conviction assessment/court
facility fee is mandatory and requires a $30 assessment be imposed on every conviction.
(Gov. Code, § 70373.) The minute order and the abstract of judgment indicate an $80
court operations assessment ($40 for each conviction) was imposed even though the trial
court orally imposed $60, and a $60 conviction assessment ($30 for each conviction) was
imposed even though the court orally imposed $40. Generally, an oral pronouncement of
judgment controls (People v. Mitchell (2001) 26 Cal.4th 181, 185) but, where fees and
fines are mandatory, “their omission may be corrected for the first time on appeal.”
(People v. Castellanos (2009) 175 Cal.App.4th 1524, 1530; see People v. Crabtree (2009)
169 Cal.App.4th 1293, 1327-1328 [trial court erred by failing to impose court operations
fee for each of defendant’s convictions, even if the sentence on a conviction was stayed];
see also People v. Smith (2001) 24 Cal.4th 849, 853 [whenever a sentence includes a
period of parole, a parole revocation fine equal to the restitution fine “must” be imposed].)
Here, the minutes and abstract of judgment correctly state the mandatory fees,
notwithstanding the oral pronouncement of sentence. No modification is required.
C. Imposition of Fines, Fees, and Assessments.
Defendant asserts that under the reasoning in People v. Dueñas (2019)
30 Cal.App.5th 1157, 1168 (Dueñas), the imposition of a $60 conviction
assessment/court facility fee (Gov. Code, § 70373), an $80 court operations
assessment/fee (Pen. Code, § 1465.8),3 and a $300 restitution fine (Pen. Code, § 1202.4)
3 See discussion in section II.B., ante. [footnote continued on next page]

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without a determination that he has the ability to pay violated his rights under the due
process, equal protection, and excessive fines clauses of the federal and California
constitutions. He asks us to remand the matter to allow him to request an ability to pay
hearing on his various fines. The People acknowledge the holding in Dueñas and
contend that if we determine the trial court erred in failing to hold an ability to pay
hearing before imposing the nonpunitive assessments, the error is harmless beyond a
reasonable doubt because defendant is unable to show an inability to pay these
assessments given his good physical health and lengthy sentence. As to the $300
restitution fine, the People assert the fine is “a form of punishment, and should
principally be examined in light of the excessive fines clause, under which ability to pay
is not determinative.”4
We conclude remand is not necessary for an ability to pay hearing given
defendant’s lengthy sentence and the likelihood of his ability to earn prison wages.
[footnote continued from previous page]
[footnote continued from previous page]
[footnote continued from previous page]
[footnote continued from previous page]
4 “It makes no difference whether we examine the issue as an excessive fine or a
violation of due process.” (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005)
37 Cal.4th 707, 728 [considering an excessive fine challenge to the civil penalty imposed
under Health & Saf. Code, § 118950, subd. (d)]; People v. Castellano (2019)
33 Cal.App.5th 485, 490 [“imposition of a fine on a defendant unable to pay it is
sufficient detriment to trigger due process protections”]; Dueñas, supra, 30 Cal.App.5th
at p. 1171, fn. 8.)

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1. Further background information.
According to the probation officer’s report, at the time of his sentencing,
defendant was approximately six weeks from turning 18 years old, five feet 11 inches
tall, and weighed 229 pounds. He was single, had no children, had no income or
expenses, and had completed the 10th grade. He had good physical health, with no
physical limitations or disabilities. The report recommended the trial court order
defendant to pay a $10,000 restitution fine (Pen. Code, §§ 1202.4, 2085.5), a $60
criminal conviction fee (Gov. Code, § 70373), and an $80 court operations fee (Pen.
Code, § 1465.8, subd. (a)(1)). At the sentencing hearing, the trial court ordered defendant
to pay the recommended amounts (see fn. 3), with the exception of the restitution fine,
which the court imposed in the amount of $300. The court never conducted a hearing,
nor commented, on defendant’s ability to pay, and defense counsel never raised the issue.
2. Applicable Law.
The Dueñas court concluded: “[T]he 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

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(2019) 42 Cal.App.5th 647, 654-655 (Belloso).)5 In contrast to court assessments, a
restitution fine under Penal Code 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.) Penal Code section 1202.4, subdivision (c), expressly provides a
defendant’s inability to pay a restitution fine may not be considered as a “compelling and
extraordinary reasons” not to impose the statutory minimum fine.
This court has addressed the claim of Dueñas error and concluded a defendant who
has not objected to the imposition of a restitution fine and court assessments has not
forfeited the issue on appeal. (Jones, supra, 36 Cal.App.5th at pp. 1031-1034 [no
forfeiture for failing to object to imposition of minimum restitution fine ($300) and court
security fee ($70)].) We also concluded a Dueñas error may be harmless if the record
shows a defendant will be able to earn the total amount imposed during imprisonment.
(Jones, at pp. 1034-1035 [a defendant who was sentenced to state prison for a term of six
years—with a presentence custody and conduct credit of 332 days—would earn sufficient
prison wages to pay fines and assessments of $370].)
5 Several Courts of Appeal, including this court (People v. Jones (2019)
36 Cal.App.5th 1028, 1030-1035 (Jones)) have applied the 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]). Others have rejected the due process analysis (e.g.,
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; People v.
Kopp, at pp. 96-97 [applying excessive fines analysis to restitution fines]).

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Here, defendant challenges the imposition of the minimum restitution fine ($300),
the criminal conviction fee ($60), and the court operations fee ($80) on the basis there
was no determination of his ability to pay. However, the record contains sufficient
evidence to support his ability to pay the amounts imposed given his sentence of 32 years
in state prison. The trial court is presumed to know the law (People v. Thomas (2011)
52 Cal.4th 336, 361), which includes the requirement that “every able-bodied prisoner
imprisoned in any state prison” must perform labor for compensation. (§ 2700.) The
record reflects that at the time of sentencing, defendant was less than six weeks from
turning 18 years old, five feet 11 inches tall, weighed 229 pounds, and had no disabilities.
His health was described as “good,” he was not married, and he did not have any
children.
In the absence of some indication that defendant has a disability precluding him
from performing any type of labor in prison, it must be presumed that he is capable of
earning prison wages. (See People v. Gentry (1994) 28 Cal.App.4th 1374, 1377, fn. 6.)
The trial court could properly consider these wages and find, albeit implicitly, that
defendant can afford to pay the ordered fees through his prison wages. (See People v.
Hennessey (1995) 37 Cal.App.4th 1830, 1837 [court may consider ability to earn prison
wages in determining ability to pay]; Jones, supra, 36 Cal.App.5th at p. 1035 [“Wages in
California prisons currently range from $12 to $56 a month. [Citations.] And half of any
wages earned (along with half of any deposits made into [a prisoner’s] trust account) are
deducted to pay any outstanding restitution fine.”].) Also, there is no evidence defendant
has any other financial obligations that would interfere with his ability to pay. Although

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there is no guarantee defendant will actually obtain paid labor while serving his prison
term, in the absence of contrary evidence we must assume he will become eligible for it
during his lengthy prison sentence.
For the above reasons, we conclude remand is unnecessary.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
MILLER
J.

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