California Court of Appeal Aug 24, 2020 No. E071514Unpublished
Filed 8/24/20 P. v. Camacho CA4/2 See concurring/dissenting opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E071514
v. (Super.Ct.No. RIF1703502)
JOSE CAMACHO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. L. Jackson Lucky IV,
Judge. Affirmed.
David R. Greifinger, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,
Andrew Mestman and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and
Respondent.
1
Jose Camacho committed a series of crimes against his on-again, off-again
girlfriend after she told him she’d been intimate with someone else. According to her
testimony at the preliminary hearing, he stole and damaged her phone, injured her
severely by punching her, moved her into a bathroom without windows when she
screamed for help, detained her from leaving his house, and continued to hit her as she
imprisonment (§ 236), and unlawfully photographing and publishing private pictures of
another person’s intimate body parts (§ 647, subd. (j)(4)).
4
On September 17, 2018, the trial court sentenced Camacho to seven years in state
prison and ordered him to pay an assortment of fines and fees. The court designated the
inflicting corporal injury conviction as the principal count, imposed the middle term of
three years with four additional years for the great bodily injury enhancement. The court
imposed concurrent middle term sentences for the other offenses—five years for the
kidnapping, four years for the robbery, two years for the false imprisonment, and 90 days
for publishing private nude pictures of another without permission.
The trial court imposed a court facilities fee of $150 (Gov. Code, § 70373), a $200
court operations fee (Pen. Code, § 1465.8), a $300 restitution fine (Pen. Code, § 1202.4,
subd. (b)), and a parole revocation fine of $300 (Pen. Code, § 1202.45, subd. (c)), which
it stayed pending successful completion of parole. Though not at issue on appeal, the
court also imposed victim restitution of $860. (Pen. Code, § 1202.4, subd. (f)). Camacho
didn’t object to any of the fee or fine orders at his sentencing hearing.
II
ANALYSIS
A. Certificate of Probable Cause
Camacho appeals aspects of his sentence, not his guilty plea. The People argue we
shouldn’t reach the merits because he didn’t obtain a certificate of probable cause to
challenge his plea agreement, a fact Camacho acknowledges.
5
In general, defendants may not appeal from a guilty plea unless they first obtain a
certificate of probable cause from the trial court attesting there are reasonable grounds for
the appeal. (Pen. Code, § 1237.5.) The certificate requirement doesn’t apply to appeals
which are based solely on grounds arising after the entry of the plea and don’t affect the
plea’s validity. (Cal. Rules of Court, rule 8.304(b)(4)(B).)
The People acknowledge a certificate of probable cause isn’t generally required to
challenge sentencing issues left open at the time the plea was entered into, even when the
plea specifies a range of sentences from which the court could choose. (People v. Buttram
(2003) 30 Cal.4th 773, 783-785, 790-791.) However, they argue the general rule doesn’t
apply here because Camacho accepted a plea that incorporated a waiver of such
sentencing issues by saying “[a]s part of this plea, I . . . do . . . waive any right to appeal
that I may have.” (Italics added.) According to the People, that means Camacho’s
appeal—though limited to sentencing issues—is in fact attacking the validity of his plea.
We reject this argument. A plea’s general or nonspecific waiver of appellate rights
doesn’t ordinarily include errors occurring after the plea is entered because the defendant
could not have knowingly and intelligently given up the right to appeal unknown or
unforeseen future error. (People v. Becerra (2019) 32 Cal.App.5th 178, 186-187.) Two
examples of general or nonspecific waivers provided by the Supreme Court are, “‘I waive
my appeal rights,’” and “‘I waive my right to appeal any ruling in this case.’” (People v.
Panizzon (1996) 13 Cal.4th 68, 85, fn. 11.)
6
The appellate waiver in this case is nonspecific in just that way. Camacho’s plea
simply said he waived “any right to appeal that I may have.” Such a waiver doesn’t
encompass the sentencing issues of custody term, fees, and fines, which were left
unresolved in the plea and were instead determined at the subsequent sentencing hearing.
(People v. Buttram, supra, 30 Cal.4th at pp. 785-786, 790-791.) A certificate of probable
cause was not required for us to address those issues. (Id. at p. 787.)
B. Staying Sentences under Section 654
The trial court ordered the sentences imposed for three of Camacho’s crimes—
robbery, kidnapping, and false imprisonment—to run concurrently with the sentence for
the enhanced infliction of corporal injury. Camacho argues the court should have instead
stayed the sentences for the three crimes because they were all committed during a
continuous course of conduct and with the single objective of inflicting corporal injury on
his girlfriend.
1. Legal principles
Under section 654, “[a]n act or omission that is punishable in different ways by
different provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision.” The statute precludes multiple punishments for
a single act, but also for an indivisible course of conduct. (People v. Hester (2000) 22
Cal.4th 290, 294.)
7
“Whether a course of criminal conduct is divisible and therefore gives rise to more
than one act within the meaning of section 654 depends on the intent and objective of the
actor. If all of the offenses were incident to one objective, the defendant may be punished
for any one of such offenses but not for more than one.” (People v. Latimer (1993) 5
Cal.4th 1203, 1208, quoting Neal v. State of California (1960) 55 Cal.2d 11, 19.) If a
defendant entertains multiple, independent criminal objectives, section 654 doesn’t bar
punishment for each offense, even if the violations share common acts or are parts of the
same course of conduct. (Ibid.)
“The question whether [Penal Code] section 654 is factually applicable to a given
series of offenses is for the trial court, and the law gives the trial court broad latitude in
making this determination. Its findings on this question must be upheld on appeal if there
is any substantial evidence to support them.” (People v. Hutchins (2001) 90 Cal.App.4th
1308, 1312.) “The court’s findings may be either express or implied from the court’s
ruling. [Citation.] In the absence of any reference to Penal Code section 654 during
sentencing, the fact that the court did not stay the sentence on any count is generally
deemed to reflect an implicit determination that each crime had a separate objective.
[Citations.] ‘“We must ‘view the evidence in a light most favorable to the respondent and
presume in support of the [sentencing] order the existence of every fact the trier could
reasonably deduce from the evidence.’”’” (People v. Tarris (2009) 180 Cal.App.4th 612,
626.)
8
Here, the court did not mention section 654 in sentencing Camacho, so we look to
whether substantial evidence supports the implicit finding that he had separate objectives
in committing the separate offenses.
2. The robbery offense
Camacho argues the sentence for robbery should be stayed because he took and
destroyed his girlfriend’s cell phone to cut her off from the outside world, allowing him
to commit the other crimes of kidnapping, false imprisonment, and inflicting corporal
injury.
We can’t reach that conclusion. When Camacho took possession of the phone and
smashed it, he didn’t know his girlfriend had been unfaithful. All she had told him was
she had done something that he would not forgive her for. It is reasonable to infer he took
the phone to try to discover what she was withholding from him and then smashed the
phone when his efforts were unsuccessful. The inference finds further support in the fact
that the girlfriend’s mother was already on her way when he destroyed the phone and
went back inside the house. It was only after he returned to the kitchen and Camacho
started questioning her that he found out what she had done. And it was only after they
agreed to talk some more, called the girlfriend’s mother to tell her not to come, and the
girlfriend apologized for her infidelity, that Camacho punched her in the eye. We
conclude the trial court’s implicit finding that the robbery was distinct from the assault
had substantial support.
9
3. The kidnapping and false imprisonment offenses
Camacho claims the sentences imposed for kidnapping and false imprisonment
should be stayed because his acts of taking his girlfriend down the hallway into the
bathroom (the kidnapping) and stopping her from leaving (the false imprisonment) were
done for the purpose of allowing him to inflict further corporal injury.
That just doesn’t fit the facts. After he hit her in the kitchen, she began screaming
and wouldn’t stop. After covering her mouth and nose and asking her to stop didn’t work,
Camacho told her she needed to get cleaned up, wrapped his arms around her, and led her
down a hallway to a bathroom with no window. Once there, he made it clear his desire
was to cover up his crime by telling her he wanted her to stay in his house until she
healed. The trial court could reasonably have found Camacho committed the act of
kidnapping for the purpose of keeping his physical abuse secret, not to impose further
harm.
Nor did Camacho’s imprisonment of the girlfriend appear to relate to the desire to
assault her further. He turned on the shower and encouraged her to clean up, but she
refused to get in. When she told him she wanted to go home, he apologized and pleaded
with her to stay and wait in his room for her injuries to heal. They spent some of the time
in the bathroom talking. He appears to have hit her to stop her from trying to leave. The
trial court plainly had sufficient evidence to conclude the initial assault and the false
imprisonment were distinct acts. It also had sufficient evidence to conclude the
subsequent assaults and the false imprisonment were distinct.
10
In his reply brief, Camacho argues we should order a stay of the false
imprisonment sentence because it was part of the same course of conduct as the
kidnapping. He doesn’t explain why he didn’t raise the issue in his opening brief. We
don’t consider arguments raised first in reply briefs without a showing why the appellant
couldn’t have made the argument earlier. (People v. Taylor (2019) 43 Cal.App.5th 390,
400, fn. 4.) We note, however, even if taking the girlfriend to the bathroom and keeping
her there was a single course of conduct, Camacho’s separate action in preventing her
from opening the front door and leaving was an act of false imprisonment that occurred a
substantial amount of time after the kidnapping, which supports the trial court’s implicit
finding that they were separate acts.
C. Camacho’s Ability to Pay Fines and Fees
Camacho’s sentence includes a court facilities fee in the amount of $150, a $200
court operations fee, a $300 restitution fine, and a stayed parole revocation fine. Camacho
didn’t object to any of the fee or fine orders at his sentencing hearing.
He argues the trial court violated his constitutional right to due process, as
explained in Dueñas, by imposing the court operations and facilities fees without first
conducting a hearing to determine his ability to pay. Though sections 1202.4 and 1202.45
require trial courts to impose restitution and parole fines, he argues the court was required
to stay those fines unless the People demonstrate he is able to pay them.
In Dueñas, Division Seven of the Second District Court of Appeal held trial courts
must always consider a defendant’s ability to pay fees and restitution fines, even if the
11
statutes imposing them suggest otherwise. (Dueñas, supra, 30 Cal.App.5th at pp. 1168-
1172.) The court held imposing court operation and facilities fees without first
determining a defendant’s ability to pay them is a due process violation under the federal
and state Constitutions. (Id. at pp. 1168-1169.) It also held due process requires the
execution of a mandatory restitution fine be stayed until and unless the court finds
defendant has the ability to pay it. (Id. at pp. 1169-1172.) In People v. Belloso, the same
court included the probation revocation fine authorized by section 1202.45 in its decision
to remand that case for an ability to pay hearing.1 (People v. Belloso (2019) 42
Cal.App.5th 647, 651-652, 663.)
The People argue Camacho forfeited his due process claims by failing to object
when the court imposed them. We disagree. It would have been futile for Camacho to
object to the fines and fees at his sentencing hearing, which occurred before Dueñas was
published. Moreover, as we explained at length in People v. Jones (2019) 36 Cal.App.5th
1028, 1034-1035 (Jones), such due process objections were all but foreclosed by the case
law and the statutes authorizing the fines and fees. In Jones, we therefore declined to find
forfeiture on an alleged Dueñas error. (Jones, at p. 1033; see also People v. Castellano
(2019) 33 Cal.App.5th 485, 489; People v. Johnson (2019) 35 Cal.App.5th 134, 137-138;
1 These and related issues are pending before the Supreme Court in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844.
12
contra, People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153.) We see no reason to
depart from our prior holding.2
However, we conclude any error stemming from the failure to conduct an ability-
to-pay hearing was harmless beyond a reasonable doubt. (Jones, supra, 36 Cal.App.5th at
pp. 1034-1035 [error under Dueñas is subject to a harmless error analysis]; see Chapman
v. California (1967) 386 U.S. 18, 24 [before a court can find a constitutional error
harmless, it must be able “to declare a belief that it was harmless beyond a reasonable
doubt”].)
The trial court imposed fines and fees in the total amount of $650 and sentenced
Camacho to seven years in state prison, reduced by 152 days of credit for time served.
Had the court conducted an ability-to-pay hearing in accordance with Dueñas, it would
have considered Camacho’s future earning capacity, including whether he would be able
to earn wages in prison. (Jones, supra, 36 Cal.App.5th at p. 1035; People v. Johnson,
supra, 35 Cal.App.5th at pp. 138-139.)
Every able-bodied person committed to the custody of the Department of
Corrections and Rehabilitation is obligated to work. (Cal. Code Regs., tit. 15, § 3040,
subd. (a).) As we explained in Jones, wages in California prisons currently range from
$12 to $56 a month. (Jones, supra, 36 Cal.App.5th at p. 1035; Cal. Code Regs., tit. 15,
2 The dissent’s reliance on People v. Valles (2020) 49 Cal.App.5th 156, 162-163, review granted, July 22, 2020, S262757, is misplaced, as the lead opinion in that case expressed only one justice’s opinion on the forfeiture of Dueñas claims. (Valles, at p. 169, conc. opn. of Menetrez J. [“Presiding Justice Ramirez[’s] . . . Dueñas analysis . . . is not joined by any other member of the panel and conflicts with this division’s published precedent in People v. Jones”].) He remains alone in his view.
13
§ 3041.2, subd. (a)(1).) Camacho was 19 years old and a high school graduate when he
was sentenced. He has pointed to nothing in the record to suggest he isn’t able-bodied.
Letters written in his support by his high school principal and his science teacher suggest
he is intelligent and willing to work hard, which bodes well for his ability to maintain
paid employment while in prison. Accordingly, we conclude the failure to conduct a
hearing to determine Camacho’s ability to pay $650 in fines and fees was harmless
beyond a reasonable doubt.
III
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH J.
I concur:
MENETREZ J.
14
[People v. Camacho, E071514]
RAMIREZ, P.J., Concurring and Dissenting.
I concur with the majority in all respects except for its conclusion that defendant
did not forfeit the issue of his ability to pay the fines. For the reasons expressed in
People v. Valles (2020) 49 Cal.App.5th 156, 162-163, review granted, July 22, 2020,
S262757, I would find defendant is precluded from challenging the trial court’s
imposition of the statutory minimum restitution and parole revocation fines because he
did not object to them at the sentencing hearing.
RAMIREZ P. J.
1
AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant's multiple offenses were distinct and could be punished separately under Penal Code section 654, and that any error regarding the failure to conduct an ability-to-pay hearing for fines and fees was harmless.
Issues
Whether the trial court erred by failing to stay sentences for robbery, kidnapping, and false imprisonment under Penal Code section 654.
Whether the trial court violated the defendant's due process rights by imposing fines and fees without an ability-to-pay hearing.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We conclude Camacho’s offenses were distinct and could be punished separately.”
“As for the Dueñas errors, we conclude they were harmless.”
“Accordingly, we conclude the failure to conduct a hearing to determine Camacho’s ability to pay $650 in fines and fees was harmless beyond a reasonable doubt.”