California Court of Appeal Aug 6, 2025 No. E075992AUnpublished
Filed 8/6/25 P. v. Hidalgo CA4/2 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E075992
v. (Super.Ct.No. FVI20000041)
ANTHONY MICHAEL HIDALGO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Tony Raphael,
Judge. Affirmed.
Kevin J. Lindsley and Anita Jog, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Christine
Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Anthony Michael Hildalgo was convicted by jury of
aiding and abetting a car theft. He contends the prosecution presented insufficient
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evidence that he acted as an accomplice in helping his friends commit the crime. He also
contends that: (1) two of the jury instructions prejudicially impeded his alibi defense;
Since Dueñas, some courts have criticized the decision and declined to follow it,
some have concluded the Eighth Amendment’s prohibition against excessive fines
provides the proper framework for analyzing an ability to pay challenge to fines that are
punitive in nature, like restitution, and others have refused to extend its reach beyond the
precise circumstances presented in Dueñas. (See, e.g., People v. Cota (2020) 45
Cal.App.5th 786, 794-795; People v. Hicks (2019) 40 Cal.App.5th 320, 327-329 [holding
Dueñas was wrongly decided], review granted Nov. 26, 2019, S258946; People v. Aviles
(2019) 39 Cal.App.5th 1055, 1067-1069; People v. Kopp (2019) 38 Cal.App.5th 47, 96-
97 [holding Eighth Amendment analysis applies to a restitution fine], review granted
Nov. 13, 2019, S257844; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1038-1039
(conc. opn. of Benke, Acting P. J.); People v. Oliver (2020) 54 Cal.App.5th 1084, 1103;
People v. Allen (2019) 41 Cal.App.5th 312, 326-327; People v. Caceres (2019)
39 Cal.App.5th 917, 926-927; People v. Johnson (2019) 35 Cal.App.5th 134, 138-139.)
Our Supreme Court has granted review of the issues presented by Dueñas and will
resolve the split of authority.
The merits of Dueñas aside, the problem with defendant’s challenge is the
threshold one of forfeiture. While we traditionally excuse the failure to object where an
objection “would have been futile or wholly unsupported by substantive law then in
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existence” (People v. Welch (1993) 5 Cal.4th 228, 237), defendant cannot argue his
failure to object would have been futile because he had the benefit of Dueñas when his
sentence was imposed. The decision came out well before his sentencing hearing. We
therefore conclude his claim of error is forfeited. (See, e.g., People v. McCullough
(2013) 56 Cal.4th 589, 593 [failure to object in the trial court forfeits claim on appeal];
People v. Keene (2019) 43 Cal.App.5th 861, 864 [“The concept of forfeiture for failure to
raise ability to pay fines, fees or assessments is well established in our case law”].)
But even if he had not forfeited his challenge and we were to conclude the judge
erred by not first determining his ability to pay the fees, we would nevertheless find the
error harmless. This is because the record demonstrates, beyond a reasonable doubt, that
defendant will be able to pay the relatively minimal total of less than $400 with future
earnings because he is young, healthy, capable of holding a job (as demonstrated by the
fact he was gainfully employed for several years before his conviction), and will have an
opportunity to earn wages in prison.2 (See People v. Jones (2019) 36 Cal.App.5th 1028,
1035 [Duenas error is harmless if the record demonstrates, beyond a reasonable doubt,
the defendant cannot establish their inability to pay].)
D. Section 1170, Subdivision (b)
2 According to the probation report, prior to his conviction, defendant had been employed by Labor Finders for eight years, setting up tents for military training and earning $11.00 an hour, and by a company called Parexel, participating in research studies and earning $365 per day.
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At defendant’s sentencing, the judge identified several aggravating circumstances3
and observed that “any one of [those circumstances] by itself would be sufficient to
support the imposition of the aggravated sentencing term.” Among the case-specific
aggravating circumstances was that the 62-year-old victim was particularly vulnerable
and defendant had induced others to participate in the crime. The judge also identified
defendant-specific aggravating circumstances, including that defendant had engaged in
violent conduct that posed a public danger, had served prior prison terms, and had
performed unsatisfactorily on parole. These latter circumstances were based on evidence
from his certified record of conviction, which the judge had admitted into evidence and
relied on during the bifurcated bench trial where he found, beyond a reasonable doubt,
that defendant had suffered a prior strike conviction. The records demonstrate defendant
had pled guilty to one count of robbery and one count of receiving stolen property in
April 2004. They also show that he had served a prison term for those convictions, was
convicted of possessing controlled substances while on parole and returned to custody for
the violation, and was released again in 2011.
When the judge sentenced defendant on October 23, 2020, section 1170,
subdivision (b), provided in relevant part: “When a judgment of imprisonment is to be
3 The list of aggravating circumstances in California Rules of Court, rule 4.421, includes case-specific factors—such as, the vulnerability of the victim, whether the crime involved weapons, great violence, or a high degree of callousness, and whether the defendant induced others to participate in the crime—and defendant-specific factors— such as, whether the defendant has engaged in violent conduct that indicates a serious danger to society, whether he or she has served a prior prison term, and whether his or her performance on probation or parole was unsatisfactory. (Cal. Rules of Court, rule 4.421(a) & (b).)
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imposed and the statute specifies three possible terms, the choice of the appropriate term
shall rest within the sound discretion of the court. . . . The court shall select the term
which, in the court’s discretion, best serves the interests of justice. The court shall set
forth on the record the reasons for imposing the term selected and the court may not
impose an upper term by using the fact of any enhancement upon which sentence is
imposed under any provision of law.” (Stats. 2020, ch. 29, § 14; id. at § 44 [indicating
the statute took “effect immediately,” i.e., on Aug. 6, 2020].) The judge could utilize a
circumstance to “‘“support its sentencing choice”’” so long as the existence of that factor
was “‘“established by a preponderance of the evidence.”’” (See People v. Hicks (2017)
17 Cal.App.5th 496, 512.)
While defendant’s appeal was pending, the Governor signed Senate Bill No. 567
(2021-2022 Reg. Sess., Stats. 2021, ch. 731), which made significant changes to section
1170 and became effective on January 1, 2022. Where trial judges formerly had
discretion to select any term of imprisonment within the statutory range when sentencing
a convicted defendant, the new law makes the middle term the presumptive sentence and
permits an aggravated sentence only where the defendant has either stipulated to the facts
underlying the aggravating circumstances or those facts have been found true beyond a
reasonable doubt at a jury or court trial. (§ 1170, subd. (b).) In 2024, our state Supreme
Court observed this statutory scheme “tracks fairly precisely the test that Cunningham [v.
California (2007) 549 U.S. 270] articulated to safeguard the Sixth Amendment jury trial
guarantee: ‘any fact that exposes a defendant to a greater potential sentence must be
found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a
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preponderance of the evidence.’” (Lynch, supra, 16 Cal.5th at p. 760.) More recently,
the Court held that “a defendant is entitled to a jury trial on all aggravating facts, other
than the bare fact of a prior conviction and its elements, that expose the defendant to
imposition of a sentence more serious than the statutorily provided midterm.” (Wiley,
supra, 17 Cal.5th at p. 1086, fn. omitted.) At issue in Wiley were the aggravating facts
for “‘increasing seriousness’” of a defendant’s prior convictions (Cal. Rules of Court,
rule 4.421(b)(2)) and “‘unsatisfactory’” “‘performance on probation’” (Cal. Rules of
Court, rule 4.421(b)(5)). (Wiley, at p. 1082.) The Court did not expressly address the
aggravating fact of a prior prison term. (Cal. Rules of Court, rule 4.421(b)(3).)
Via supplemental briefing, defendant argues the trial court relied on aggravating
factors that are now required to be proved to a jury beyond a reasonable doubt, there is no
clear indication how the court would have exercised its discretion under the new
standard, and use of a prior prison term aggravating fact that has not been found true by a
jury does not amount to harmless error. (Lynch, supra, 16 Cal.5th at pp. 742, 773; Wiley,
supra, 17 Cal.5th at pp. 1082-1084.) The People contend the court did not err in using
defendant’s prior prison term as an aggravating fact because our state Supreme Court did
not address whether such fact must be found true by a jury, and such fact does not require
a “qualitative assessment” as stated in Wiley, at page 1083. Alternatively, the People
argue any error was harmless beyond a reasonable doubt. We agree that any error was
harmless beyond a reasonable doubt.
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“When a defendant is deprived of a jury trial on aggravating facts used to justify
imposition of an upper term sentence, the reviewing court must apply the Chapman[4]
standard of review. [Citations.] Under that standard, ‘a sentence imposed under . . .
section 1170[, subdivision ](b) must be reversed and remanded unless the reviewing court
concludes beyond a reasonable doubt that a jury, applying that same standard, would
have found true all of the aggravating facts upon which the court relied to conclude the
upper term was justified, or that those facts were otherwise proved true in compliance
with the current statute.’ [Citations.] Lack of a jury trial is not harmless under Chapman
if ‘the record contains evidence that could rationally lead to a contrary finding’ with
respect to the aggravating fact at issue.” (Wiley, supra, 17 Cal.5th at p. 1087.) “We may
also find the omission harmless if we can conclude beyond a reasonable doubt ‘that the
omitted [fact] was uncontested and supported by overwhelming evidence.’” (Lynch,
supra, 16 Cal.5th at p. 775.)
We conclude beyond a reasonable doubt that the jury would have found true the
prior prison term aggravating fact. Certified, admissible documents demonstrate the
existence of defendant’s prior conviction and prior prison term, and defendant did not
dispute the existence of the prior prison term. We disagree with defendant’s suggestion
that “[e]ven if this court finds that a jury would necessarily find [he] served time in prison
for prior convictions, the matter must be remanded for re-sentencing because it cannot be
said that the trial court would have imposed an upper term sentence based on this single
4 Chapman v. California (1967) 386 U.S. 18, 87.
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aggravating factor, especially when it had already doubled [his] sentence based on a
strike prior.” As previously noted, the trial judge identified the applicable aggravating
circumstances and explicitly stated that “any one of which by itself would be sufficient to
support the imposition of the aggravated sentencing term.”
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J.
We concur:
MILLER J.
MENETREZ J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's conviction for aiding and abetting car theft, finding sufficient evidence of his participation and concluding that the trial court's jury instructions and sentencing procedures were not erroneous or prejudicial.
Issues
Whether there was sufficient evidence to support the defendant's conviction for aiding and abetting car theft.
Whether the trial court erred in instructing the jury with CALCRIM Nos. 3400 and 207.
Whether the trial court violated the defendant's due process rights by failing to hold an ability-to-pay hearing for fines and fees.
Whether the defendant is entitled to resentencing under Penal Code section 1170, subdivision (b).
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The trial record contains sufficient evidence to permit a reasonable jury to find defendant guilty as an accomplice in the theft of the victim’s car.”
“Having reconsidered the matter in light of Lynch and Wiley, we again reject defendant’s contentions and affirm.”