Filed 8/8/22 P. v. Oswood CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Yuba) ----

THE PEOPLE, C094022 Plaintiff and Respondent, (Super. Ct. No. v. CRF21-00128) CORY ALAN OSWOOD, Defendant and Appellant.

Pursuant to a negotiated plea agreement, defendant pleaded no contest to fleeing a peace officer while driving recklessly (Veh. Code, § 2800.2) and attempted first degree burglary. (Pen. Code, §§ 664, 459.)1 He also admitted that he had suffered a prior strike. (§§ 667, subds. (b)-(i), 1170.12.) In exchange, he received a stipulated prison sentence of five years four months and dismissal of the remaining counts and allegations.

Defendant further argues that certain fines and fees imposed by the trial court at sentencing must be stayed and stricken, respectively, and the matter reversed for an ability to pay hearing consistent with People v. Dueñas (2019) 30 Cal.App.5th 1157, 1172-1173 (Dueñas) and its progeny.

As we shall explain, defendant’s failure to obtain a certificate of probable cause under section 1237.5 precludes his Boykin-Tahl claim. We further find that defendant has forfeited his fines and fees challenge and, in any event, has not demonstrated trial counsel was ineffective for failing to demand an ability to pay hearing before the complained-of fines and fees were imposed. Accordingly, we will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND Defendant originally was charged with attempted vehicle theft (§ 664; Veh. Code, § 10851, subd. (a)—count I); assault on a peace officer (§ 245, subd. (c)—count II); fleeing a peace officer while driving recklessly (Veh. Code, § 2800.2—count III); receiving a stolen vehicle (§ 496d—count IV); attempted first degree burglary (§§ 664, 459—count V); felony vandalism (§ 594, subd. (b)(1)—count VI); possession of ammunition by a prohibited person (§ 30305, subd. (a)(1)—count VII); misdemeanor possession of a smoking device (Health & Saf. Code, § 11364—count VIII); and misdemeanor theft. (§ 484, subd. (a)—count IX.) The complaint further alleged as to counts I through VII that defendant had suffered a prior strike. (§§ 667, subds. (b)-(i), 1170.12.)

On January 27, 2021, defendant resolved this matter by pleading no contest to counts III and V and admitting the prior strike allegation. In exchange, he would receive

As acknowledged at the plea hearing, defendant initialed and signed a seven-page plea form that included initialed acknowledgements that he understood and waived various constitutional rights, including his right to a jury trial, to confront and cross- examine witnesses, and to remain silent. The trial court found defendant’s waiver of his rights was knowing and intelligent and accepted his pleas and admission. It appears from the probation report that this was the fifth time defendant had resolved a matter by a plea of no contest.

On February 22, 2021, the trial court sentenced defendant in accordance with the plea agreement. In response to defendant’s professed indigence, the court imposed a $600 restitution fine (§ 1202.4, subd. (b)), instead of the $1,500 recommended by the probation department, and also imposed a matching, suspended $600 parole revocation restitution fine (§ 1202.45), two $40 court operations assessments (§ 1465.8), and two $30 criminal conviction assessments. (Gov. Code, § 70373.) Defendant did not otherwise object to the court’s imposition of these fines and fees, provide an offer of

Defendant’s initial notice of appeal, received by the Yuba County Superior Court on March 30, 2021, was rejected and his request for a certificate of probable cause was denied. Defendant’s second notice of appeal was based on matters that did not affect the validity of the plea. On this court’s own motion, we construed this notice to be timely as it was dated April 23, 2021, but was not filed until April 26, 2021, the next court day. On July 23, 2021, we denied defendant’s application for leave to seek a belated certificate of probable cause. Appellate briefing in this matter was completed May 16, 2022.

DISCUSSION I The Boykin-Tahl Claim Defendant contends his no contest plea and admission was constitutionally invalid because the trial court did not orally inquire into whether he understood and waived his constitutional rights to a jury trial, to confront and cross-examine the witnesses against him, and to avoid self-incrimination. Despite his written waiver of these rights, defendant alleges the purported lack of explicit oral advisements and waivers renders his guilty plea invalid under Boykin, supra, 395 U.S. 238 and Tahl, supra, 1 Cal.3d 122.

This issue is not cognizable on appeal absent a certificate of probable cause.

Under section 1237.5 and California Rules of Court, rule 8.304, no appeal may be taken by a defendant from a judgment of conviction upon a plea of guilty or no contest except where a certificate of probable cause has been filed—unless the appeal concerns search and seizure issues, is based on grounds occurring after that plea/admission that do not affect the validity of the plea/admission, or is an issue “for which, by law, no

certificate of probable cause is required.” (Cal. Rules of Court, rule 8.304(b); see also § 1538.5.)

Section 1237.5 provides: “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of . . . nolo contendere, . . . except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.”

Defendant’s own application for leave to seek a belated certificate of probable cause recognized that such a certificate was a prerequisite to bringing a Boykin-Tahl claim. We denied this application and, despite his earlier concession, defendant failed to acknowledge the certificate of probable cause requirement in either his opening brief or in response to the People’s argument that such a certificate was required. Defendant’s failure to obtain a certificate of probable cause from the trial court precludes our consideration of the merits of this claim challenging the validity of his no contest plea and admission. (§ 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1098 [compliance with section 1237.5 is a “ ‘condition precedent’ to the taking of an appeal within its scope”].)

II Defendant’s Fines and Fees Claims Defendant further argues that the $600 restitution fine (§ 1202.4, subd. (b)), two $40 court operations assessments (§ 1465.8), and two $30 criminal conviction assessments (Gov. Code, § 70373) imposed by the trial court at sentencing must be stayed and stricken, respectively, and the matter reversed for an ability to pay hearing consistent with Dueñas, supra, 30 Cal.App.5th 1157 and the requirements of due process, the Eighth Amendment, and equal protection.

At the outset, we note that because defendant was aware that he was not entitled to bring a Boykin-Tahl challenge absent a certificate of probable cause, defendant should have raised his fines and fees challenges in the trial court in accordance with section 1237.2, which requires that a defendant first seek relief in the trial court where the only issue on appeal is a challenge to fines or fees. (§ 1237.2.)4 Defendant did not seek such relief, arguably allowing this court to decline to hear his claims. (People v. Hall (2019) 39 Cal.App.5th 502, 504 [applying section 1237.2 to preclude consideration of a Dueñas claim]; cf. People v. Mendez, supra, 19 Cal.4th at pp. 1100-1101 [dismissing custody credit claim under section 1237.1].)

However, because the trial court’s jurisdiction to determine defendant’s fines and fees challenges will end with the completion of this appeal (People v. Torres (2020) 44 Cal.App.5th 1081, 1083, 1088), and in the interest of justice, we will address defendant’s arguments despite his noncompliance. Exercising this discretion, we concur with the People that defendant forfeited these challenges when he failed to object to the imposition of the complained-of fines and fees without an ability to pay hearing.

Moreover, defendant has not established his counsel was ineffective in failing to demand such a hearing below.

“In general, a defendant who fails to object to the imposition of fines, fees, and assessments at sentencing forfeits the right to challenge those fines, fees, and assessments on appeal. [Citations.]” (People v. Greeley (2021) 70 Cal.App.5th 609, 624, review den.

Jan. 5, 2022, S272033.) Defendant was sentenced on February 22, 2021, more than two years after the publication of Dueñas. (Dueñas, supra, 30 Cal.App.5th 1157 [decided Jan. 8, 2019].) Accordingly, defendant’s failure to request an ability to pay hearing based on Dueñas forfeited the issue on appeal. (People v. Curry (2021) 62 Cal.App.5th 314, 328, fn. 7, review granted July 14, 2021, S267394; Greeley, supra, at p. 624; see also People v. Nelson (2011) 51 Cal.4th 198, 227 [defendant forfeited challenge to maximum restitution fine under section 1202.4 by failing to object at sentencing].)

Nor do we agree with defendant’s argument that the trial court failed to make an ability to pay determination. Here, the court imposed a $600 restitution fine, not the $300 minimum restitution fine for a felony matter. (§ 1202.4, subd. (b)(1).) Thus, the court implicitly determined defendant had the ability to pay more than the statutory minimum, while declining to impose the $1,500 recommended by the probation department. (Ibid.; § 1202.4, subd. (c) [“[i]nability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b)”].) If defendant had evidence that he wished the court to consider when determining his ability to pay, it was his duty to present that evidence to the court. (§ 1202.4, subd. (d) [“A defendant shall bear the burden of demonstrating the defendant’s inability to pay”]; People v. Cowan (2020) 47 Cal.App.5th 32, 49 [defendant bears the burden of proving his inability to pay a challenged fine or fee], review granted June 17, 2020, S261952.) He did not do so. Further, defendant has not established that his counsel was ineffective for failing to object and request an ability to pay hearing. To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 [80 L.Ed.2d 674, 693-694, 697-698] (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-218 (Ledesma).) To show prejudice, defendant must show a reasonable probability that he would have received a more favorable result had counsel’s performance not been deficient. (Strickland, supra, at pp. 693-694; Ledesma, supra, at pp. 217-218.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, at p. 694; accord, Ledesma, at p. 218.)

Defendant’s ineffective assistance of counsel claim fails because he has not established that he was prejudiced by his counsel’s failure to raise Dueñas at the sentencing hearing. Again, the trial court implicitly made an ability to pay determination when it imposed a restitution fine that was $300 over the statutory minimum. (§ 1202.4, subds. (b)(1), (c).) This fine was imposed at the same time as the remaining $140 in fees, and nothing in the record suggests a reasonable probability that the court would have determined defendant was unable to pay the latter amount had defendant’s counsel objected specifically to the imposition of those fees. (Strickland, supra, at pp. 693-694; Ledesma, supra, at pp. 217-218.)

Nor do we find merit in defendant’s summary assertion that the Eighth Amendment requires reversal. Defendant has not shown that the $600 restitution fine imposed by the trial court was grossly disproportionate to defendant’s offenses under United States v. Bajakajian (1998) 524 U.S. 321 334 [141 L.Ed.2d 314, 329]5 and People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728.6 Finally,

DISPOSITION The judgment is affirmed.

KRAUSE , J.

We concur:

ROBIE , Acting P. J.

DUARTE , J.