Filed 9/8/26 P. v. Falasco 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089183
Plaintiff and Respondent,
(Super. Ct. Nos. CCR070699,
v. MCR074700)
DIANNE JENNIFER FALASCO,
Defendant and Appellant. OPINION
APPEAL from a judgment of the Superior Court of Madera County. Sosi
Chitakian Vogt, Judge.
William I. Parks, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Ivan P. Marrs and Dina
Petrushenko, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Dianne Jennifer Falasco appeals following her conviction by plea and
sentencing in two criminal cases. Defendant claims the trial court abused its discretion
when it denied her motion to strike her prior felony conviction under Penal Code
section 1385, subdivision (a),1 denied her request for presentence custody credit for the
time she was on an electronic monitor, and imposed a penalty assessment in the amount
of $205 in each case pursuant to Vehicle Code section 23645, subdivision (a), without
determining her ability to pay.
We find no errors and affirm the judgment.
BACKGROUND
In July 2021, defendant was involved in an early morning solo vehicle accident
with no injuries.2 Responding California Highway Patrol (CHP) officers smelled alcohol
on defendant’s breath and her blood-alcohol concentration (BAC) levels, measured by
breath test, were 0.14 and 0.16 percent. Defendant was released to an ambulance crew
based on her on-scene behavior and the matter was forwarded to the Madera County
District Attorney’s Office to file charges. In September 2021, charges were filed against
defendant in Madera Superior Court case No. CCR070699.3
In February 2022, CHP officers effected an early morning vehicle stop and
recognized defendant from the incident seven months prior. Defendant admitted driving
without a license and an officer observed a methamphetamine pipe in the vehicle.
Defendant failed a field sobriety test, and her BAC levels, measured by breath test, were
reportedly 0.73 and 0.72 percent.4 Officers located two meth pipes and two plastic
baggies containing meth during a vehicle inventory search. Defendant was arrested and
1 All undesignated statutory references are to the Penal Code.
2 The factual summary is based on the probation report.
3 Further reference to case numbers are to Madera Superior Court case numbers.
4 It is unclear if these reported readings were accurate or were instead attributable to some
error.
2.
taken to jail. In August 2022, charges were filed against defendant in case No.
MCR074700.
The Madera County District Attorney’s Office filed a first amended complaint in
both cases in early March 2023, and a second amended complaint in late March 2023. In
case No. CCR070699, defendant was charged with driving under the influence (DUI) of
alcohol (0.16 percent), within 10 years of a prior felony DUI; driving with a BAC of 0.08
percent or higher, within 10 years of a prior felony DUI; misdemeanor driving on a
license suspended or revoked for a prior DUI; and misdemeanor driving on a license
suspended or revoked under section 13353, 13353.1 or 13353.2 of the Vehicle Code,
within five years of a prior offense. (Veh. Code, §§ 23152, subd. (a)/23550.5, subd. (a)
[count 1], 23152, subd. (b)/23550.5, subd. (a) [count 2], 14601.2, subd. (a) [count 3],
14601.5, subd. (a) [count 4].) Based on defendant’s 2014 conviction for a DUI causing
great bodily injury (GBI) (Veh. Code, § 23153, subd. (b); Pen. Code, § 12022.7), the
second amended complaint also alleged a prior felony DUI and a prior serious or violent
felony within the meaning of the “Three Strikes” law (§§ 667, subd. (d)(1), 1170.12,
subd. (b)(1)).
In case No. MCR074700, defendant was charged with DUI of alcohol and drugs,
within 10 years of a prior felony DUI; driving on a license suspended or revoked for a
prior DUI; possession of a controlled substance; and possession of a smoking device.
(Veh. Code, §§ 23152, subd. (g)/23550.5, subd. (a) [count 1], 14601.2, subd. (a)
[count 2]; Health & Saf. Code, §§ 11377, subd. (a) [count 3], 11364, subd. (a) [count 4].)
The second amended complaint alleged a prior felony DUI and a prior serious or violent
strike conviction.
3.
In February 2024, defendant entered into a plea agreement to resolve both cases
and the parties stipulated to a factual basis.5 In case No. CCR070699, defendant pleaded
no contest to driving with a BAC level of .08 percent or more and she admitted the prior
conviction allegations. (Veh. Code, § 23152, subd. (b); count 2.) In case
No. MCR074700, she pleaded no contest to DUI of drugs and alcohol and admitted the
prior conviction allegations. (Veh. Code, § 23152, subd. (g); count 1.) In accordance
with the plea agreement, in case No. CCR070699, defendant was sentenced to the lower
term of 16 months, doubled to 32 months under the Three Strikes law, and in case
No. MCR074700, she was sentenced to a consecutive term of 16 months,6 for a total
determinate term of four years in prison.
During sentencing, the trial court denied defendant’s request to strike her prior
felony conviction under section 1385, and her request for custody credits while on
supervised release with electronic monitoring for a period of time in 2023 and a second
period of time in 2024. In both cases, the trial court stayed the $1,669 fine imposed
under Vehicle Code section 23546 after defendant raised her inability to pay, but did not
stay the $300 restitution fine under Penal Code section 1202.4 or the $205 penalty
assessment under Vehicle Code section 23645.
On appeal, defendant claims the trial court abused its discretion under
section 1385, subdivision (a), when it denied her motion to strike her prior felony
conviction under Romero. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497
5 The plea agreement also included a no contest plea in a third case, cases
No. CCR074732, for driving on a suspended or revoked license on or around January 31, 2023,
with prior conviction allegations. (Veh. Code, § 14601.2, subd. (a).)
6 One-third of the two-year middle term, doubled for the prior strike conviction.
4.
(Romero).)7 She also claims that she is entitled to custody credits for the period in 2023
she was on pretrial release on electronic monitoring, and that this matter must be
remanded because the court imposed the $205 penalty assessment without holding a
hearing and finding she has the ability to pay.
The People dispute any entitlement to relief.
We find no errors and affirm the judgment. However, we shall direct the trial
court to correct the abstract of judgment to reflect defendant has one prior DUI
conviction rather than three prior convictions and to forward the amended abstract of
judgment to the appropriate authorities. (People v. Mitchell (2001) 26 Cal.4th 181, 185
(Mitchell).)
DISCUSSION
I. Motion to Strike Prior Felony Conviction
A. Legal Principles
Section 1385, subdivision (a), provides, “The judge or magistrate may, either on
motion of the court or upon the application of the prosecuting attorney, and in furtherance
of justice, order an action to be dismissed.…” Under the statute, “a trial court may strike
or vacate an allegation or finding under the Three Strikes law that a defendant has
previously been convicted of a serious and/or violent felony, on its own motion .…”
(People v. Williams (1998) 17 Cal.4th 148, 158 (Williams), citing § 1385, subd. (a).) We
review the trial court’s decision to grant or deny relief under that statute for abuse of
discretion. (People v. Carmony (2004) 33 Cal.4th 367, 373–374 (Carmony).) “Th[e]
7 In the trial court, defendant’s two Romero motions cited to both subdivision (a) and
subdivision (c) of section 1385, but, on review, defendant does not pursue the argument that she
is entitled to relief from her prior conviction under subdivision (c). (See People v. Grandberry
(2026) 118 Cal.App.5th 14, 19 [“courts have uniformly rejected the contention that the
mitigating factors identified in subdivision (c) of section 1385 apply to a request to dismiss a
prior strike because the Three Strikes law is an alternate sentencing scheme, not an
‘enhancement’”].)
5.
standard is deferential” (Williams, supra, at p. 162), but “not empty” (ibid.). “[I]t asks in
substance whether the ruling in question ‘falls outside the bounds of reason’ under the
applicable law and the relevant facts [citations].” (Ibid.)
The trial court’s exercise of discretion must be viewed through the lens of the
Three Strikes alternative sentencing scheme. (Wheeler v. Appellate Division of Superior
Court (2024) 15 Cal.5th 1193, 1206–1207.) “‘[T]he Three Strikes initiative, as well as
the legislative act embodying its terms, was intended to restrict courts’ discretion in
sentencing repeat offenders.’ (Romero, supra, 13 Cal.4th at p. 528.) To achieve this end,
‘the Three Strikes law does not offer a discretionary sentencing choice, as do other
sentencing laws, but establishes a sentencing requirement to be applied in every case
where the defendant has at least one qualifying strike, unless the sentencing court
“conclud[es] that an exception to the scheme should be made because, for articulable
reasons which can withstand scrutiny for abuse, this defendant should be treated as
though he actually fell outside the Three Strikes scheme.”’ ([People v.] Strong [(2001)]
87 Cal.App.4th [328,] 337–338, fn. omitted.)
“Consistent with the language of and the legislative intent behind the three strikes
law, we have established stringent standards that sentencing courts must follow in order
to find such an exception. ‘[I]n ruling whether to strike or vacate a prior serious and/or
violent felony conviction allegation or finding under the Three Strikes law, on its own
motion, “in furtherance of justice” pursuant to … section 1385[, subdivision ](a), or in
reviewing such a ruling, the court in question must consider whether, in light of the
nature and circumstances of his present felonies and prior serious and/or violent felony
convictions, and the particulars of his background, character, and prospects, the
defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence
should be treated as though he had not previously been convicted of one or more serious
and/or violent felonies.’ (Williams, supra, 17 Cal.4th at p. 161.)” (Carmony, supra, 33
Cal.4th at p. 377.)
6.
B. Trial Court Proceedings
In 2014, defendant was convicted of driving with a BAC of 0.08 percent or higher
and inflicting GBI, which is both a serious and a violent felony under the Three Strikes
law. (Veh. Code, § 23153, subd. (b); Pen. Code, §§ 12022.7, 667, subd. (d)(1), 667.5,
subd. (c)(8), 1192.7, subd. (c)(8).) In April 2024, following the entries of plea, defense
counsel filed a motion requesting the trial court strike defendant’s prior felony conviction
under section 1385. Citing section 1385, subdivision (b), counsel moved for relief under
section 1385, subdivision (c)(2)(D), (F), and (H). Counsel also moved for relief under
Romero on the ground that defendant should be deemed outside the spirit of the Three
Strikes law. (§ 1385, subd. (a); Carmony, supra, 33 Cal.4th at p. 377.) The motion
included a 2023 evaluation by a rehabilitation specialist who recommended defendant
attend the Salvation Army’s six-month residential drug and alcohol rehabilitation
program in Fresno, a 2023 eligibility letter from the Salvation Army in Fresno, and letters
of support from defendant’s former husband and one daughter. At the hearing, counsel
argued that defendant’s conduct stemmed from substance abuse and mental health issues
rather than antisocial behavior, and that since her release on bail, she had engaged in
services, was working, and had not relapsed.
The trial court denied the motion, stating the prior conviction was within 10 years
of defendant’s current cases and she had a total of 11 pending cases, nine for driving on a
suspended license and two felony DUI’s.8 The court disagreed defendant was making
strides toward rehabilitation and program attendance, and observed that the prior strike
was for the same conduct underlying her current cases. The court also observed that
while out on pretrial release, defendant was remanded for failing to turn on her ankle
8 The People point out the trial court miscounted and defendant had 12 open cases: cases
Nos. CCR074290, MCR074700, CCR070699, CCR073834, CCR074559, CCR074732,
CCR075658, MCR072908, MCR072993, MCR073499, MCR073504, and MCR077870.
7.
monitor and, although she was “a different person” than when first arrested, it was not in
the interest of justice to dismiss her prior strike conviction.
In August 2024, defense counsel renewed the Romero motion and provided
additional supporting information. The renewed motion included an updated 2024
evaluation by the rehabilitation specialist recommending defendant attend the Salvation
Army’s 12-month residential program in San Francisco, a 2024 presumptive eligibility
letter from the Salvation Army in San Francisco, multiple certificates of course
completion and transcripts, and an updated letter from defendant’s daughter. At the
subsequent sentencing hearing held in December 2024, counsel stated that defendant had
completed 439 hours of coursework, and she was engaged in Alcoholics Anonymous
(AA) and counseling. Counsel argued that if the trial court granted the Romero motion, it
could impose conditions that would allow defendant to gradually transition back into
society and avoid negative influences within the prison system that might derail her
progress. Counsel acknowledged that driving without a license and while under the
influence were issues for defendant, but he argued they could be addressed in other ways.
The trial court found the additional information did not present anything new for
consideration and was merely an update given the passage of time. The court credited
defendant with the steps she was taking, acknowledged the diligent efforts of the
rehabilitation specialist who evaluated defendant and recommended she attend the
Salvation Army’s 12-month program, and acknowledged the insights provided by
defendant’s daughter’s letter. However, the court concluded the additional information
was insufficient to change the previous analysis that defendant did not fall outside the
spirit of the Three Strikes law, and the court denied the motion.
C. Analysis
On appeal, defendant claims the trial court abused its discretion when it denied her
Romero motion. She argues, “While the court mentioned [defendant]’s background,
8.
character and prospects going forward, it would fully appear that the court chose to
discount all of the factors related to [defendant]’s personal circumstance, including her
background, her continuing commitment to self-improvement, to sobriety, and to her
family, as attested to by her family members and the substantial documentation that she
provided. In doing so, the court ignored the underpinnings that truly define a person’s
character.” She characterizes the court’s decision as inconsistent “with the spirit of the
recidivist sentencing statutes, and … arguably … cruel and inhumane.”
“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 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.” (Carmony, supra, 33 Cal.4th at pp. 376–377; accord, People v. Nunez
(2023) 97 Cal.App.5th 362, 370–371.)
Defendant does not identify anything in the record indicating the trial court
misunderstood or misapplied the law. She couches her claim in language suggesting the
court failed to account for all of the relevant facts, but the record does not support this
view. Instead, defendant’s claim reflects her disagreement with the trial court’s ruling,
which is insufficient to support a claim that the court abused its discretion when it denied
the motion. (Carmony, supra, 33 Cal.4th at pp. 376–377.)
The record evidences defendant’s longstanding struggle with mental health and
substance abuse issues. Although she was making progress in custody in terms of
9.
attending AA meetings, taking courses, and engaging in counseling, defendant’s
underlying issues contributed to her prior conviction for a DUI with GBI in 2014, and to
her current convictions for the conduct committed in 2021 and 2022. Further, defendant
had numerous pending cases, all relating to her persistence in driving without a valid
license and/or her problems with drugs and alcohol, and defendant’s performance on
pretrial release was unsatisfactory and included the failure to check in with pretrial
services and the failure to ensure her monitor was charged and activated. Given the
underlying record, we find no support for defendant’s claim that the court abused its
discretion by finding that she did not fall outside the spirit of the Three Strikes law,
which “‘was intended to restrict courts’ discretion in sentencing repeat offenders.’”
(Carmony, supra, 33 Cal.4th at p. 377, italics added, quoting Romero, supra, 13 Cal.4th
at p. 528.) Notwithstanding defendant’s contrary argument, the trial court expressed
empathy for defendant and the record does not suggest the court viewed her as akin to a
hardened career criminal. It is undisputable that defendant repeatedly violated the law,
and defendant’s mere disagreement with the court’s determination under section 1385
does not suffice to demonstrate error.9
II. Entitlement to Custody Credit for Time Served on Electronic Monitoring
A. Legal Principles
Next, defendant claims entitlement to custody credits for the period of time in
2023 she was on pretrial supervised release with electronic monitoring. “Preconviction
9 Citing two Ninth Circuit cases, defendant also claims, in conclusory terms, a due process
violation. We decline to consider this undeveloped argument. First, although “‘a “mere error of
state law” is not a denial of due process’” (Swarthout v. Cooke (2011) 562 U.S. 216, 222; accord,
People v. Gonzales (2013) 56 Cal.4th 353, 385), we found no merit to defendant’s claim of state
law error in any event. Second, defendant fails to support her constitutional claim with specific
authority or argument. “[F]ailure to offer reasoned analysis of [an] issue constitutes a waiver.
‘“‘When an appellant fails to raise a point, or asserts it but fails to support it with reasoned
argument and citations to authority, we treat the point as waived.’”’” (Trinity Risk Management,
LLC v. Simplified Labor Staffing Solutions, Inc. (2021) 59 Cal.App.5th 995, 1008; see Cal. Rules
of Court, rule 8.204(a)(1)(B).)
10.
custody credits are governed by section 2900.5, subdivision (a), which provides in
relevant part that ‘[i]n all felony and misdemeanor convictions, either by plea or by
verdict, … all days of custody of the defendant, including … days served in home
detention pursuant to Section 1203.016 or 1203.018, shall be credited upon his or her
term of imprisonment.…’ Section 1203.016 governs home detention postsentencing and
section 1203.018 extends the same conditions and privileges to a home detention
program prior to sentencing. [Citation.] The conditions of electronic home detention
under sections 1203.016 and 1203.018 are ‘substantially similar.’” (People v. Gerson
(2022) 80 Cal.App.5th 1067, 1087–1088 (Gerson), quoting § 2900.5, subd. (a), and
quoting and citing People v. Yanez (2019) 42 Cal.App.5th 91, 93–94.)
“Section 1203.018 leaves the terms of the electronic monitoring program to the
discretion of county authorities .…” (Gerson, supra, 80 Cal.App.5th at p. 1088.)
However, the program must require the following: “[t]he participant shall remain within
the interior premises of the participant’s residence during the hours designated by the
correctional administrator” (§ 1203.018, subd. (d)(1)), and that “[t]he participant shall
admit any probation officer or other peace officer designated by the correctional
administrator into the participant’s residence at any time for purposes of verifying the
participant’s compliance with the conditions of the detention” (id., subd. (d)(2)).10 “The
electronic monitoring may include global positioning system devices or other supervising
devices for the purpose of helping to verify the participant’s compliance with the rules
and regulations of the electronic monitoring program.…” (§ 1203.018, subd. (d)(3).)
A defendant is entitled to custody credits if released on a home detention program
under section 1203.018 or, as explained in Gerson, on terms of release “as ‘custodial, or
restraining’ as a statutory home detention program pursuant to section 1203.018.”
10 Senate Bill No. 852 (2023–2024 Reg. Sess.) amended subdivision (d)(2) of
section 1203.018, effective January 1, 2024, but the change was merely technical.
11.
(Gerson, supra, 80 Cal.App.5th at p. 1089.) In this case, the parties agree on the
applicable legal principles, but disagree whether defendant was subject to release terms
sufficient to entitle her to pretrial custody credits. Defendant was released on an
electronic monitoring program and subject to a waiver of her Fourth Amendment rights,
but she claims she was also subject to a curfew, thereby demonstrating custody or
restraint sufficient to support an award of custody credits. (Gerson, supra, at p. 1089.)
The People maintain defendant has no entitlement to credits because she was not released
on a home detention program or subject to a curfew.
B. Trial Court Proceedings
Defendant was arraigned and released on her own recognizance in case
No. CCR070699 on April 6, 2022, and in case No. MCR074700 on October 31, 2022.
On April 14, 2023, after second amended complaints were filed in both cases, defendant
was arraigned and released on pretrial release subject to certain terms and conditions.
The trial court stated it was placing defendant on “intense supervised release with
electr[on]ic monitoring, which is the GPS as well as the Transdermal Alcohol Detection
device.” The court ordered as follows:
“You are ordered to comply with the following terms and conditions
of that release: You are not to violate any laws. You must meet
with a pretrial—with a services probation officer on a weekly basis
or more frequently as directed by the pretrial services release officer.
“Attend all court hearings and interview appointments as directed
by the Court or the Madera County Pretrial Release Services officer.
Obey all directives and orders of the Court and the Madera County
Pretrial Release Services officer.… [¶] … [¶]
“… Remain within the County of Madera unless otherwise
approved by the Court or Madera County Pretrial Release Services
officer.
“You are to waive extradition if arrested outside of California.
Notify the Madera County Pretrial Release Services of any law
enforcement contact. Attend substance abuse, alcohol abuse, mental
12.
health counseling, domestic violence counseling as directed by the
Court, or the Madera County Pretrial Release Services officer.
“Refrain from the use of all alcohol and illegal narcotics. Submit
to drug and alcohol testing as directed by the Madera County Pretrial
Release Services officer, and submit to search and seizure of your
person, residence, vehicle any time, day or night, by any peace
officer with or without probable cause or a search warrant.
“Seek and maintain gainful employment. If unemployed, support
your legal—if employed, support your legal dependents.
“You are not to possess any deadly or dangerous weapons. You
are not to tamper with or disable the electronic monitoring GPS and
transdermal device in any way. You are to maintain the electronic
monitoring GPS and transdermal device in a charged condition at all
times, and report to the Madera County Probation Department .…”
Defendant answered affirmatively when asked, “Do you understand and accept
those terms and conditions of your pretrial release?”
On July 5, 2023, the trial court granted defendant’s request to travel out-of-state
for her mother’s memorial service. She was ordered to remain in contact with pretrial
services and keep her alcohol transdermal device charged at all times.
On July 14, 2023, defendant was arraigned on one new case and she had another
new case pending that was not yet in the system. Prior to the hearing, the probation
department submitted a memo requesting that defendant be remanded because she failed
to report to pretrial services and, during the hearing, a probation officer informed the
court defendant never reported to pretrial services and did not enable her monitor for the
period she was granted permission to travel to Arizona.11 Based on defendant’s failure to
comply with the terms of pretrial release by failing to maintain contact with pretrial
services and failing to keep her ankle monitor charged, the trial court found she violated
11 At the hearing, defense counsel informed the court that he just learned defendant did not
go to Arizona.
13.
the terms and conditions of pretrial release, terminated pretrial release, and remanded
defendant into custody.
When defendant was sentenced on December 2, 2024, following her entry of plea
in both cases, counsel requested defendant be awarded a total of 156 days of time credit
for the two time periods she was released on supervised released, which were April 14,
2023, through July 14, 2023, and April 12, 2024, through June 14, 2024. The trial court
denied the request and stated, “She was not under house arrest; she did not have a curfew;
she was not in a lockdown treatment facility. She was placed on the transdermal alcohol
detection device for the safety of the public. There was no loss of liberty, so the Court
doesn’t feel that she’s entitled to those time credits.”
C. Analysis
Defendant challenges only the denial of credits for the period in 2023, and she
acknowledges that the terms and conditions imposed in 2024 did not include a curfew.
Defendant concedes the court’s 2023 oral pronouncement did not include a curfew, but
she points to the minute orders, which reference imposition of a curfew. We find this
argument unpersuasive. “Where there is a discrepancy between the oral pronouncement
of judgment and the minute order …, the oral pronouncement [generally] controls.”
(People v. Zackery (2007) 147 Cal.App.4th 380, 385, citing Mitchell, supra, 26 Cal.4th at
pp. 185–186 and People v. Mesa (1975) 14 Cal.3d 466, 471.) Moreover, the minute
orders at issue expressly reflect only recommended conditions of release, to include a
curfew. On appeal, defendant bears the burden of affirmatively demonstrating error (e.g.,
Jameson v. Desta (2018) 5 Cal.5th 594, 608–609; People v. Giordano (2007) 42 Cal.4th
644, 666), and her reliance on minute orders is misplaced, as they are not controlling and
do not support her claim of judicial error.
Although we find defendant has not met her burden of demonstrating error, we
also observe that in denying the request for custody credits, the trial court specifically
14.
stated defendant did not have a curfew. Defense counsel did not object or otherwise
disagree, which results in forfeiture of the claim. (People v. Stowell (2003) 31 Cal.4th
1107, 1114; People v. Fruits (2016) 247 Cal.App.4th 188, 208.)
III. Imposition of Penalty Assessment
A. Legal Principles
Defendant challenges imposition of a $205 penalty assessment in each case under
Vehicle Code section 23645, subdivision (a), which provides that “any person convicted
of a violation of Section 23152 or 23153 shall, in addition to any other fine, assessment,
or imprisonment imposed pursuant to law, pay an alcohol abuse education and prevention
penalty assessment in an amount not to exceed fifty dollars ($50) for deposit and
distribution pursuant to Section 1463.25 of the Penal Code.”12 Subdivision (c) of
Vehicle Code section 23645 provides, “The court shall determine if the defendant has the
ability to pay a penalty assessment. If the court determines that the defendant has the
ability to pay a penalty assessment, the court may set the amount to be paid and order the
defendant to pay that sum to the county in the manner in which the court believes
reasonable and compatible with the defendant’s financial ability. In making a
determination of whether a defendant has the ability to pay, the court shall take into
account the amount of any fine imposed upon the defendant and any amount the
defendant has been ordered to pay in restitution. If the court determines that the
12 The $205 assessment is comprised of a base fine of $50 with the following penalty
assessments: “(1) a 100 percent state penalty assessment (§ 1464, subd. (a)(1)); (2) a 20 percent
state surcharge (§ 1465.7); (3) a state court construction penalty of up to 50 percent (Gov. Code,
§ 70372); (4) a 70 percent additional penalty (Gov. Code, § 76000, subd. (a)(1)); (5) a 20 percent
additional penalty if authorized by the county board of supervisors for emergency medical
services (Gov. Code, § 76000.5, subd. (a)(1)); (6) a 10 percent additional penalty ‘“[f]or the
purpose of implementing the DNA Fingerprint, Unsolved Crime and Innocence Protection Act”’
(Gov. Code, § 76104.6, subd. (a)(1)); and (7) a [4]0 percent additional state-only penalty for the
purpose of operating forensic laboratories under the same act (Gov. Code, § 76104.7).” (People
v. Hamed (2013) 221 Cal.App.4th 928, 935; accord, People v. Johnson (2015) 234 Cal.App.4th
1432, 1457–1458.)
15.
defendant does not have the ability to pay a penalty assessment, the defendant shall not
be required to pay a penalty assessment.”
B. Analysis
Defendant claims that the trial court imposed the $205 penalty assessment without
determining her ability to pay, necessitating remand for a hearing. The People respond
that because defense counsel raised the issue of defendant’s ability to pay and the court
stayed thousands of dollars in response, the court impliedly found she had the ability to
pay the $205 penalty assessment. Defendant counters that the statutory language does
not suggest the determination may be made by implication. We disagree with this
characterization of the record.
In each case, the trial court imposed a $300 restitution fine under Penal Code
section 1202.4, subdivision (b); a $300 parole revocation restitution fine, suspended,
under Penal Code section 1202.45, subdivision (a); a $205 penalty assessment under
Vehicle Code section 23645, subdivision (a); and a $1,669 fine under Vehicle Code
section 23546, subdivision (a). Separately, in case No. CCR074732, the court imposed a
$150 restitution fine and a $2,120 fine under Vehicle Code section 14601.2,
subdivision (d)(2).
Defense counsel requested the fines be vacated or stayed pending an ability-to-pay
hearing. The trial court declined to consider the fact that defendant retained private
counsel, as noted by the prosecutor, and stated that defense counsel presented “ample
information” relating to defendant’s difficulties with employment, housing, and
electricity on her property. The court granted counsel’s request and stayed the $1,669
fine in cases Nos. CCR070699 and MCR074700, but imposed the $205 penalty
assessment and the $300 parole revocation restitution fine. The court also stayed the
$2,120 fine in case No. CCR074732. The court asked counsel if there was anything else
and counsel responded there was not.
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This is not a case in which the trial court imposed fines and fees without
considering defendant’s ability to pay, in disregard of counsel’s request for a hearing.
Instead, the court found the request meritorious, granted the motion, and stayed more
than $5,000 in fines across three cases. Counsel had the opportunity to object to the $205
penalty assessment, but did not do so. Under these circumstances, we agree with the
People that the ruling evidences a finding that defendant had the ability to pay $205. In
addition, although we find no error, because counsel did not object, the forfeiture doctrine
applies to bar appellate review of the claim. (People v. Caparrotta (2024) 103
Cal.App.5th 874, 908 [“‘[i]n general, a defendant who fails to object to the imposition of
fines and fees at sentencing forfeits the right to challenge those fines and fees on
appeal’”], disapproved on another ground in People v. SanMiguel (2026) 20 Cal.5th 254,
287–288 and fn. 7; accord, People v. Evers (2023) 97 Cal.App.5th 551, 556; see People
v. Pinedo (2021) 66 Cal.App.5th 608, 620–621 [declining to apply forfeiture doctrine to
imposition of fines and fees without an ability-to-pay hearing prior to decision in People
v. Dueñas (2019) 30 Cal.App.5th 1157], disapproved in part by People v. Kopp (2025) 19
Cal.5th 1, 23 and fn. 7.)
IV. Error in Abstract of Judgment
Finally, in case No. MCR074700, defendant pleaded no contest to DUI of drugs
and alcohol, in violation of Vehicle Code section 23152, subdivision (g), and admitted
one prior DUI conviction. The People point out the abstract of judgment reflects, in
error, that defendant had three prior DUI convictions.
“Any discrepancy between the judgment as orally pronounced and as recorded in
the clerk’s minutes or abstract of judgment is presumed to be the result of clerical error”
(People v. Leon (2020) 8 Cal.5th 831, 855, citing People v. Mesa, supra, 14 Cal.3d at
p. 471), and we may order correction on review (Mitchell, supra, 26 Cal.4th at p. 185,
quoting In re Candelario (1970) 3 Cal.3d 702, 705). Accordingly, the trial court shall
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direct the issuance of an amended abstract of judgment reflecting that defendant had one
prior DUI conviction rather than three.
DISPOSITION
The judgment is affirmed. The trial court shall issue an amended abstract of
judgment correcting the error relating to case No. MCR074700 (count 1B) to reflect
defendant had one prior DUI conviction rather than three prior DUI convictions. The
trial court shall forward a copy of the amended abstract of judgment to the appropriate
authorities.
MEEHAN, Acting P. J.
WE CONCUR:
HARRELL, J.
GUERRA, J.
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