Filed 9/23/26 P. v. Figueroa CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D085098

Plaintiff and Respondent,

v. (Super. Ct. No. SCN441395)

DIONISIO FIGUEROA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Victor M. Torres, Judge. Affirmed.
Carl Fabian, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene Sevidal, Assistant Attorney General, Eric A.
Swenson, Attorney General, and Daniel J. Hilton, Deputy Attorneys General,
for Plaintiff and Respondent.
 A jury found Dionisio Figueroa guilty of second-degree murder.

(Pen. Code,1 § 187, subd. (a).) The jury further found that Figueroa
personally used a deadly and dangerous weapon, a knife, in committing the
offense. (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23).) The court sentenced
Figueroa to 16 years to life and imposed various fines and fees. Figueroa
contends on appeal that: (1) there was insufficient evidence to prove that he
was guilty of second-degree murder and not voluntary manslaughter; and
(2) the court erred in imposing a $10,000 restitution fine under section
1202.4, subdivision (b) without giving him an opportunity to demonstrate his
inability to pay.
We conclude that substantial evidence supports the jury’s second-
degree murder verdict and its implicit finding that Figueroa did not act in the
heat of passion upon adequate provocation when he killed Manuel Aguirre.
We further reject Figuero’s contention that the trial court erred by depriving
him of his statutory right to present evidence pertaining to his ability to pay
the restitution fine. Accordingly, we affirm the judgment.

1 Further undesignated statutory references are to the Penal Code.
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 FACTUAL AND PROCEDURAL BACKGROUND
A. The Killing
On the morning of February 23, 2024, Figueroa and his brother, Carlos
Figueroa, were standing with Aguirre outside of a liquor store in Bonsall,
California. They were waiting in the area for a couple hours looking for work,
but no one hired them that day. At around 10:30 a.m., Aguirre gave Figueroa
money to buy a 12-pack of beer in the store. When the three of them finished
drinking that pack, they bought more beer. Carlos recalled that they
consumed about 10 beers each.
Carlos testified at trial that after they finished the second round of
beers around 1:30 p.m., Aguirre demanded that Carlos buy the next round.
When he told Aguirre he did not have enough money to buy beer, Aguirre
became angry and aggressive. Surveillance footage from outside the front
of the store showed Carlos, Figueroa, and Aguirre arguing for about two
minutes. Aguirre appeared to jab his finger in the air towards Carlos and
Figueroa and swipe his hand in their direction multiple times during the
argument. The store owner heard them arguing and came outside to tell
them to leave. Video footage shows all of them, including the store owner,
walking around the corner of the building away from the camera and out of
frame. The store owner returned alone soon afterwards and walked back
towards the front of the store holding empty beer bottles he had picked up
from the side of the building.
Video footage showed that about a minute later, Figueroa and Carlos
chased Aguirre from the side of the building into the front parking lot. In the
tussle that ensued, Figueroa had a knife in his hand and was using it to
make slashing motions at Aguirre. Aguirre moved backwards through the
parking lot, parrying Figueroa’s knife swipes with an empty intact beer bottle

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in his left hand.
Aguirre eventually tripped backwards into a planter area. With Carlos
next to him, Figueroa immediately crouched on top of Aguirre and plunged
the knife down into Aguirre’s upper left chest. Figueroa got up and quickly
moved away from the parking lot towards the street, with Carlos following a
short distance behind him. Both were arrested later that afternoon. Booking
photos showed Carlos had a cut on his right eyelid and a cut to the right of
his nose.
A police officer responding to the scene found Aguirre lying on his back
and unresponsive with blood on his clothes and on the ground. Emergency
responders transported Aguirre to the hospital where he was later
pronounced dead. A medical examiner determined that the knife had
penetrated Aguirre’s heart, causing his death.
B. Additional Witness Testimony
The People charged Figueroa with murder and personal use of a deadly
weapon. (§§ 187, subd. (a) & 12022, subd. (b)(1).)
Carlos testified in his brother’s defense at trial in July 2024. He
described drinking with Figueroa and Aguirre outside of the store until
Aguirre got upset with Carlos because he could not purchase more beer.
After the store owner told them to leave and they rounded the corner to the
side of the building, Carlos said Figueroa stopped to urinate in a bush.
According to Carlos, Aguirre suddenly hit Carlos’s back and face with a bottle
while Carlos was waiting for his brother. Carlos said he fell, and when
Figueroa helped him up, Aguirre also hit Figueroa in the back with the
bottle. Carlos recounted that Aguirre told Figueroa, “Shorty, are you going to
get in with your brother too?” Figueroa and Aguirre began fighting, but
Carlos said he did not remember anything that happened after that point.

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 Carlos was charged with murder for his role in the incident, but he pled
guilty to a lesser offense. As part of his plea, he admitted under oath that he
and Figueroa intentionally chased and physically assaulted Aguirre, which
resulted in Aguirre’s death.
On cross-examination, Carlos acknowledged that he initially told law
enforcement during his post-arrest interview that he remembered nothing
about the incident because he was drunk. But later in the interview he told
them that a man had “punched” him because he would not buy beer for the
man. The detective who conducted the interview testified that Carlos said
someone had tried to “eye-gouge” him and “punched” him, but Carlos made
no mention of being hit with a bottle, nor did he say that Aguirre had hit or
threatened Figueroa.
C. Expert Testimony
Dr. Kristina Malek, a clinical psychologist, testified as a defense expert.
She addressed the concept of a “fight-or-flight response,” which occurs when
the body perceives a threat or stressor in the environment. Dr. Malek
explained that when a fight response is triggered—by, for example, someone
trying to injure a family member—one might react very violently “to save
that person’s life.” In fight-or-flight mode, someone might experience
increased energy, narrowed focus, and more impulsive decision-making.
According to Dr. Malek, fight or flight is automatic and can last anywhere
from 20 to 60 minutes. She testified that if somebody witnessed a family
member being attacked and ran after the attacker, that response “could be
consistent” with fight or flight.
On cross-examination, Dr. Malek explained that just because someone
is triggered does not necessarily mean they will have a fight-or-flight
response. If a fight-or-flight response occurs, the “conscious brain” that

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allows for complex thought may begin functioning again within seconds to
minutes “depending on the severity of the event that happens[.]” When
asked about someone pulling out a weapon in a fight, Dr. Malek said that the
action could be an instinctive fight response, but it could also be the product
of conscious decision-making.
D. Verdict and Sentencing
After deliberating for a few hours, the jury found Figueroa guilty of
second-degree murder, with a true finding that he personally used a deadly
and dangerous weapon. At the September 2024 sentencing hearing, the trial
court sentenced Figueroa to 16 years to life in prison and imposed the
following fines, ancillary costs, and victim restitution: (1) a restitution fine of
$10,000 under section 1202.4, subdivision (b); (2) a $40 court operations
assessment under section 1465.8; (3) a $30 court facilities assessment under
Government Code section 70373; and (4) victim restitution under Penal Code
sectio1202.4, subdivision (f), in the amount of $2,827.07. The court also
imposed and stayed an additional $10,000 parole revocation restitution fine
under section 1202.45. Lastly, the court reserved jurisdiction on further
victim restitution.
DISCUSSION
I
Figueroa first contends there was insufficient evidence for the jury
to find that he committed second-degree murder, rather than the lesser
included offense of voluntary manslaughter. Specifically, he argues that the
prosecution failed to disprove that he acted in the heat of passion in response
to sufficient provocation. We conclude substantial evidence supports the
jury’s implicit finding that Figueroa did not kill Aguirre under provocation

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that would have caused a person of average disposition to act rashly and
without due deliberation.
A. Governing Law
Murder is the unlawful killing of a human being with malice
aforethought. (§ 187, subd. (a).) “[S]econd degree murder . . . is ‘the unlawful
killing of a human being with malice aforethought but without the additional
elements, such as willfulness, premeditation, and deliberation, that would
support a conviction of first degree murder.’ ” (People v. Cravens (2012) 53
Cal.4th 500, 507; see §§ 187, subd. (a) & 189.) “ ‘A defendant who commits
an intentional and unlawful killing but who lacks malice is guilty of . . .
voluntary manslaughter.’ ” (People v. Breverman (1998) 19 Cal.4th 142, 153
(Breverman), quoting § 192.) Voluntary manslaughter is a lesser included
offense of murder. (People v. Gonzalez (2018) 5 Cal.5th 186, 197 [“Lesser
included offenses of first degree premeditated murder include second degree
murder, voluntary manslaughter, and involuntary manslaughter”];
Breverman, at p. 154.)
An intent to unlawfully kill generally constitutes malice. (§ 188.) But
a defendant who unlawfully kills in the “heat of passion” lacks malice and is
guilty of voluntary manslaughter. (§ 192, subd. (a); see People v. Lasko
(2000) 23 Cal.4th 101, 109–110.) Provocation distinguishes this form
of manslaughter from murder. (People v. Rangel (2016) 62 Cal.4th 1192,
1225.) “ ‘To be adequate, the provocation must be one that would cause an
emotion so intense that an ordinary person would simply react, without
reflection. . . . [T]he anger or other passion must be so strong that the
defendant’s reaction bypassed his thought process to such an extent that
judgment could not and did not intervene.’ ” (Ibid.) “[I]f sufficient time has
elapsed for the passions of an ordinarily reasonable person to cool, the killing

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is murder, not manslaughter.” (Ibid., internal quotation marks omitted.)
Whether someone killed with malice aforethought (constituting murder) or
killed in the heat of passion (constituting voluntary manslaughter) is a
factual matter for the jury to decide. (See, e.g., People v. Wright (2015) 242
Cal.App.4th 1461, 1482 [“whether adequate provocation and heat of passion
have been shown are fundamentally jury questions”].)
The heat of passion requirement for manslaughter has both objective
and subjective components. (People v. Steele (2002) 27 Cal.4th 1230, 1252.)
“The defendant must actually, subjectively, kill under the heat of passion.
[Citation.] But the circumstances giving rise to the heat of passion are also
viewed objectively.” (Ibid.) The objective component requires that the
passion be such “ ‘as would naturally be aroused in the mind of an ordinarily
reasonable person under the given facts and circumstances,’ ” because “ ‘no
defendant may set up his own standard of conduct and justify or excuse
himself because in fact his passions were aroused, unless further the jury
believe that the facts and circumstances were sufficient to arouse the
passions of the ordinarily reasonable man.’ [Citation.]” (Id. at pp. 1252–
1253.)
On review for sufficiency of the evidence supporting a conviction, we
must “ ‘examine the entire record in the light most favorable to the judgment
to determine whether it contains substantial evidence—that is, evidence that
is reasonable, credible, and of solid value that would support a rational trier
of fact in finding [the defendant guilty] beyond a reasonable doubt.’ ” (People
v. San Nicolas (2004) 34 Cal.4th 614, 657–658.) We will not reverse unless
there is no hypothesis upon which sufficient substantial evidence exists to
support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.) We must
“presume in support of the judgment the existence of every fact the trier

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could reasonably deduce from the evidence.” (People v. Jones (1990) 51
Cal.3d 294, 314.) “The same standard applies when the conviction rests
primarily on circumstantial evidence.” (People v. Kraft (2000) 23 Cal.4th 978,
1053.) “An appellate court must accept logical inferences that the jury might
have drawn from the circumstantial evidence.” (People v. Maury (2003) 30
Cal.4th 342, 396.) “Given this deferential standard of review, a ‘defendant
bears an enormous burden in claiming there is insufficient evidence’ to
support a conviction.” (People v. Wear (2020) 44 Cal.App.5th 1007, 1020.)
B. Analysis
For several reasons, there was substantial evidence at trial from which
the jury could reasonably determine Figueroa did not kill Aguirre in the heat
of passion because of legally sufficient provocation. First, the primary
evidence of provocation was the testimony of Figueroa’s own brother Carlos.
But the jury could reasonably have concluded that Carlos’s account of the
provocation lacked credibility. The court instructed the jury that it could
believe “all, part, or none” of any witness’s testimony. (CALCRIM No. 226.)
The portion of the altercation when Carlos claimed Aguirre assaulted him
was not captured on video, and by the time the fight progressed to the
parking lot in front of surveillance cameras, Carlos and Figueroa were the
ones pursuing Aguirre. Carlos gave inconsistent accounts to law enforcement
about what happened and what he could recall, including whether Aguirre
hit him with a bottle versus punching him. While Carlos sustained injuries
to his face, there were no medical records showing the severity of those
injuries, and the jury could have reasonably concluded that he got those cuts
during the fight in the parking lot and not from Aguirre assaulting him with
a bottle. Carlos also testified that he had consumed about 10 beers before the
fight broke out and had trouble remembering what happened. The jury could

9
reasonably infer that Carlos’s inconsistent statements, alcohol consumption,
and bias in favor of his own brother made him an unreliable witness
regarding the alleged provocation.
Second, even assuming the jury believed all of Carlos’s testimony, it did
not necessarily compel a finding in Figueroa’s favor on the required objective
or subjective components of provocation. (See People v. Padilla (2002) 103
Cal.App.4th 675, 679.) The evidence of Aguirre’s provocative conduct
consisted of video footage showing Aguirre pointing his finger at Carlos and
Figueroa and swiping at them with his hand, Carlos’s testimony that he was
hit in the back and face with an empty beer bottle, Carlos’s testimony that
Aguirre called Figueroa “shorty” and threatened him, and photos showing
that Carlos suffered cuts on his nose and eyelid. On the videotape, Carlos did
not appear to be seriously injured because he continued actively participating
in the confrontation and chased Aguirre into the parking lot with Figueroa.
While a jury could infer Aguirre’s behavior was assaultive and offensive, a
jury could also reasonably conclude that being a witness to such conduct
during what amounted to a mutual quarrel—even for a family member—
would not naturally arouse judgment-clouding passion in the mind of an
ordinarily reasonable person. (See People v. Beltran (2013) 56 Cal.4th 935,
950 (Beltran).) Although Figueroa argues he was triggered by “seeing” his
brother get attacked, there is no evidence that Figueroa actually saw Aguirre
attack Carlos. Carlos testified that Aguirre hit him while Figueroa was
urinating in a bush and that Figueroa helped him up after he fell, but there
is no evidence that Figueroa himself witnessed the surprise attack and it was
not captured on the videotape surveillance. And even assuming Figueroa did
witness Aguirre hitting his brother, the jury could have inferred he chased
Aguirre down and stabbed him out of revenge rather than heat of passion.

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(See People v. Gutierrez (2002) 28 Cal.4th 1083, 1144 [passion for revenge will
not reduce murder to manslaughter]; People v. Burnett (1993) 12 Cal.App.4th
469, 478 [“Heat of passion may not be based upon revenge”].)
Finally, as the relevant jury instruction stated, “[i]f enough time
passed between the provocation and the killing for a person of average
disposition to ‘cool off’ and regain his or her clear reasoning and judgment,
then the killing is not reduced to voluntary manslaughter on this basis.”
(CALCRIM No. 570.) The entire confrontation between Aguirre, Figueroa,
and Castro took place over the course of approximately four minutes.
Assuming that Figueroa was provoked by an attack on his brother when they
were around the corner not within range of the surveillance cameras, he at
least had time to take out a knife, chase Aguirre back around the corner and
into the parking lot while swiping at him multiple times, get on top of
Aguirre after he fell onto his back, then stab him in the chest. It was for the
jury to determine whether this was a sufficient cooling-off period under the
circumstances.
Figueroa cites Dr. Malek’s testimony to argue that it would have
taken at least 20 minutes for Figueroa to “return to normalcy” if he was
experiencing fight or flight. But the jury was not required to accept
Dr. Malek’s expert testimony on this point. The court instructed the jury
that it was “not required to accept [expert opinions] as true or correct.”
(CALCRIM No. 332.) Moreover, Dr. Malek’s testimony left open the
possibility that Figueroa could have been upset by Carlos’s assault without
necessarily having a fight-or-flight response. When asked about someone
pulling out a weapon in a fight, Dr. Malek expressly said that such an action
could be an instinctive fight response, but it could also be the product of a
conscious decision. She explained that even when fight or flight is underway,

11
the “conscious brain” that allows for complex thought can begin functioning
again within seconds of detecting a threat. While a reasonable jury could
conclude from Dr. Malek’s testimony that Figueroa was only acting on
instinct when he killed Aguirre, a reasonable jury could also conclude that by
the time Figueroa was chasing Aguirre through the parking lot, he was
capable of conscious decision-making and not acting in the heat of passion.
Whether adequate provocation and heat of passion were present is
fundamentally a jury question because jurors are “ ‘much better qualified to
judge of the sufficiency and tendency of a given provocation, and much more
likely to fix, with some degree of accuracy, the standard of what constitutes
the average of ordinary human nature, than the judge whose habits and
course of life give him [or her] much less experience of the workings of
passion in the actual conflicts of life.’ [Citation.]” (Beltran, supra, 56 Cal.4th
at p. 948.) Here, the totality of the evidence was sufficient for the jury to
conclude beyond a reasonable doubt that Figueroa did not kill Aguirre under
provocation that would have caused a person of average disposition to act
rashly and without due deliberation. Accordingly, we will not disturb the
jury’s verdict finding Figueroa guilty of second-degree murder on sufficiency
of the evidence grounds.

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 II
Figueroa next argues that remand is required to allow him to

demonstrate his inability to pay the $10,000 restitution fine.2 We disagree.
A. Additional Background
Before sentencing, the probation report indicated that Figueroa had
worked as a day laborer and had no income, debt, or assets. The probation
officer recommended imposition of various fines and fees, including a $10,000
restitution fine under section 1202.4, subdivision (b). At the beginning of the
sentencing hearing, the prosecutor and defense counsel confirmed they had
each reviewed the probation report.
After the prosecutor presented argument and submitted the matter at
sentencing, defense counsel also presented argument. In his argument,
defense counsel did not mention anything about the recommended restitution
fine. He only argued that the court should consider not imposing the one-
year penalty for the section 12022 enhancement. Defense counsel then
concluded: “And with that, I submit.”
After both sides submitted the matter, the court imposed sentence,
including the fines and fees recommended by the probation officer. As noted,
one of the fines the court imposed was the $10,000 restitution fine
recommended by the probation officer under section 1202.4, subdivision (b).
After the court had imposed sentence, defense counsel asked the court
to “stay any fines and fees pending an ability to pay hearing.” The court
responded as follows: “Well, I think the Penal Code sections that I cited

2 Upon conviction, a criminal defendant may be required to pay one or
more of three types of restitution: a restitution fine; restitution paid directly
to the victim; or restitution as a condition of probation. (People v. Giordano
(2007) 42 Cal.4th 644, 651–652.) This case concerns the restitution fine,
imposed on nearly every convicted defendant and paid into a statewide pool
used to compensate victims. (§ 1202.4, subds. (a)(3), (b), (c), (e).)
13
provide for that. I doubt that there’s any assets or any access to the -- any
access to funds that would be seizable by the [V]CB [Victim Compensation
Board].” The court did not schedule any further hearing on the matter. The
sentencing minutes and abstract of judgment do not indicate that any of the
fines or fees were stayed. The parties agree that the trial court denied
Figueroa’s request to stay the fines and fees pending a subsequent ability to
pay hearing.
B. Analysis
Figueroa contends that the trial court erred by depriving him of his
statutory right to present evidence on his inability to pay the $10,000

restitution fine under section 1202.4, subdivisions (c) and (d).3
Section 1202.4, subdivision (b) requires the court to impose a
restitution fine of not less than $300 and not more than $10,000 “unless it
finds compelling and extraordinary reasons for not doing so and states those
reasons on the record.” Subdivision (c) states in relevant part: “A defendant’s
inability to pay shall not be considered a compelling and extraordinary
reason not to impose a restitution fine. Inability to pay may be considered
only in increasing the amount of the restitution fine in excess of the
minimum fine . . . .” Subdivision (d) provides in relevant part:
“In setting the amount of the fine pursuant to subdivision
(b) in excess of the minimum fine pursuant to paragraph
(1) of subdivision (b), the court shall consider any relevant
factors, including, but not limited to, the defendant’s
inability to pay, the seriousness and gravity of the offense
and the circumstances of its commission, any economic gain
derived by the defendant as a result of the crime, the extent
to which any other person suffered losses as a result of the

3 Figueroa raises no issue on appeal regarding any of the other fees or
fines imposed by the trial court.

14
 crime, and the number of victims involved in the crime.
Those losses may include pecuniary losses to the victim or
the victim’s dependents as well as intangible losses, such as
psychological harm caused by the crime. Consideration of a
defendant’s inability to pay may include the defendant’s
future earning capacity. A defendant shall bear the burden
of demonstrating the defendant’s inability to pay. Express
findings by the court as to the factors bearing on the
amount of the fine shall not be required. A separate
hearing for the fine shall not be required.”

At the time of Figueroa’s sentencing hearing in September 2024, there
was “a divergence among the Courts of Appeal regarding court-ordered
financial obligations imposed on criminal defendants.” (People v. Kopp (2025)
19 Cal.5th 1, 9 (Kopp).) Some courts followed People v. Dueñas (2019) 30
Cal.App.5th 1157 (Dueñas), which concluded that although section 1202.4,
subdivision (b) requires the imposition of a restitution fine, the trial court as
a matter of due process “must stay the execution of the fine until and unless
the People demonstrate that the defendant has the ability to pay the fine.”
(Id. at p. 1172.) Other courts disagreed with Dueñas on this due process
issue. (See, e.g., People v. Aviles (2019) 39 Cal.App.5th 1055, 1067–1068.)
In Kopp, our Supreme Court resolved this conflict. The court
distinguished between the imposition of punitive fines, ancillary costs, and
direct victim restitution. (Kopp, supra, 19 Cal.5th at pp. 11–16.) For
punitive fines, which include restitution fines imposed under section 1202.4,
subdivision (b) (id. at p. 13), the Supreme Court expressly disapproved of
Dueñas’s due process holding. (Id. at p. 23 & fn. 17.) The court stated:
“Contrary to Dueñas’s suggestion, we do not find a due process requirement
to hold an ability to pay hearing before imposing every punitive fine.” (Id. at
p. 23.) The court instead concluded that the proper vehicle to challenge a
punitive fine is under the excessive fines provisions of the United States and

15
California Constitutions. (Id. at pp. 9, 23–24.) Although the Supreme Court
in Kopp found no due process right to an ability-to-pay hearing for punitive
fines, it recognized that section 1202.4 itself provides that a defendant’s
inability to pay shall be considered as one of the relevant factors when
imposing a restitution fine in excess of the $300 minimum. (Id. at pp. 13–14,
18, 23–24, 30.)
We conclude that the trial court committed no error by denying
Figueroa’s request to “stay” the restitution fine it had just imposed “pending
an ability to pay hearing.” As the trial court noted, it was essentially
undisputed that Figueroa had no present ability to pay at the time of the
sentencing hearing. The probation report stated that he had no income, debt,
or assets. Under the statute, however, “[c]onsideration of a defendant’s
ability to pay may include the defendant’s future earning capacity.”
(§ 1202.4, subd. (d).) Thus, the trial court was entitled to consider Figueroa’s
future prison earnings while serving his sentence of 16 years to life. (See,
e.g., People v. Jones (2019) 36 Cal.App.5th 1028, 1035.) Moreover, any
unpaid balance of the restitution fine will become unenforceable and
uncollectable as a matter of law after 10 years. (§ 1465.9; Kopp, supra, 19
Cal.5th at p. 17.) Absent any clear indication to the contrary, “we may
assume the trial court was aware of and fulfilled its statutory duty to
consider ability to pay when setting the restitution fine.” (People v. Wilson
(2023) 14 Cal.5th 839, 868; see also § 1202.4, subd. (d) [express findings as to
the factors bearing on amount of fine not required].)
The trial court properly denied Figueroa’s request for a post-sentencing
hearing on his ability to pay the fine. The statute expressly provides that
“[a] defendant shall bear the burden of demonstrating the defendant’s
inability to pay” and “[a] separate hearing for the fine shall not be required.”

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(§ 1202.4, subd. (d).) By its plain language, this subdivision contemplates
that the defendant will come forward with evidence of inability to pay at the
sentencing hearing when the fine is imposed, not at a separate post-
sentencing hearing. Requiring the court to hold a separate ability-to-pay
hearing after a restitution fine has already been imposed at sentencing would
conflict with the Legislature’s explicit direction that a separate hearing “shall
not be required.” (Ibid.) Other than the now-disapproved Dueñas line of
cases, no authority requires the trial court to stay the execution of a
restitution fine pending another post-sentencing hearing on the defendant’s
ability to pay. We therefore reject Figueroa’s claim that the court’s refusal
to hold such a hearing violated his statutory rights.
Figueroa raises no constitutional claim independent of his claim of a
statutory violation under section 1202.4. Although he mentions the four-part
test for a violation of the excessive fines clause of the Eighth Amendment in
passing in his opening brief, he does not develop the argument or analyze the

four factors.4 In his reply brief, Figueroa makes clear that he is not raising
any constitutional issue separate and apart from his claim of a statutory
violation. He explains that his argument on appeal is “premised on a
statutory breach where the statute at issue is a gatekeeper of constitutional
protections” and contends that any other constitutional issue is “utterly
moot” and “not justiciable until the sentencing court first considers the

4 The “ ‘touchstone of the constitutional inquiry under the Excessive
Fines Clause is the principle of proportionality.’ ” (People ex rel. Lockyer v.
R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728.) In analyzing
proportionality, there are “four considerations: (1) the defendant’s culpability;
(2) the relationship between the harm and the penalty; (3) the penalties
imposed in similar statutes; and (4) the defendant’s ability to pay.” (Ibid.)
Figueroa does not analyze these factors or make any proportionality
argument in his briefing.
17
appellant’s evidence of his inability to pay . . . .” Because Figueroa has not
developed any excessive fines argument independent of his statutory claim,
we deem any such claim to have been forfeited. (See People v. Guzman (2019)
8 Cal.5th 673, 683, fn. 7 [due process claim forfeited by failure to “develop the
argument”].) We therefore affirm the $10,000 restitution fine.
DISPOSITION
The judgment is affirmed.

BUCHANAN, J.

WE CONCUR:

MCCONNELL, P. J.

KELETY, J.

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