California Court of Appeal Aug 10, 2022 No. E075992Unpublished
Filed 8/10/22 P. v. Hidalgo CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, 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.
1
Anthony Hidalgo appeals his conviction for car theft, arguing the prosecution
presented insufficient evidence that he acted as an accomplice in helping his friends
commit the crime. He also argues that: (1) two of the jury instructions prejudicially
impeded his alibi defense; (2) the trial judge violated his due process rights as articulated
decided]; People v. Kopp (2019) 38 Cal.App.5th 47, 96-97, review granted Nov. 13,
2019, S257844 [holding Eighth Amendment analysis applies to a restitution fine].) Our
Supreme Court has granted review of the issues presented by Dueñas and will resolve the
split of authority. (Kopp, review granted, Nov. 13, 2019, S257844.)
The merits of Dueñas aside, the problem with Hidalgo’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 existence”
(People v. Welch (1993) 5 Cal.4th 228, 237), Hidalgo 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
14
Cal.4th 589, 593 [the failure to object in the trial court forfeits a claim on appeal, even
claims based on constitutional rights]; 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 hadn’t 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
Hidalgo 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 1 opportunity to earn wages in prison. (See People v. Jones (2019) 36 Cal.App.5th 1028,
1035 [Dueñas error is harmless if the record demonstrates, beyond a reasonable doubt,
the defendant cannot establish their inability to pay].)
D. Senate Bill No. 567
While Hidalgo’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
1 According to the probation report, prior to his conviction, Hidalgo 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. 15
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
is one exception to this rule, which is that a judge “may consider the defendant’s prior
convictions in determining sentencing based on a certified record of conviction without
submitting the prior convictions to a jury.” (Pen. Code, § 1170, subd. (b)(3); Stats. 2021,
ch. 731, § 1.1)
We allowed the parties to submit supplemental briefing regarding the new law’s
application to this case. Hidalgo argues the judge selected the upper term for his
conviction based on facts that were neither found true by the jury nor stipulated to, and as
a result, we must remand for resentencing. The People correctly concede the new law’s
ameliorative changes apply retroactively to Hidalgo. (See People v. Flores (2022) 73
Cal.App.5th 1032, 1039, citing People v. Superior Court (Lara) (2018) 4 Cal.5th 299,
308.) However, they argue the judge’s consideration of now improper facts was harmless
beyond a reasonable doubt because the judge made clear he would also base his decision
to select the upper term based solely on certified court records. We agree with the People.
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
16
danger to society, whether they have served a prior prison term, and whether their
performance on probation or parole was unsatisfactory. (Cal. Rules of Court, rule
4.421(a) & (b).)
At Hidalgo’s sentencing, the judge identified several aggravating circumstances
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 Hidalgo had induced Boggs and Anderson to participate in the crime. The judge also
identified defendant-specific aggravating circumstances, including that Hidalgo 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 Hidalgo’s 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 Hidalgo had suffered a prior strike conviction. The records
demonstrated Hidalgo had pled guilty to one count of robbery and one count of receiving
stolen property in April 2004. They also showed 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. Because these
defendant-specific aggravating circumstances were based on the record of conviction,
they are a proper basis for the decision to select the upper term under the new law.
17
Citing People v. Lopez (2022) 78 Cal.App.5th 459, Hidalgo argues the judge’s
reliance on proper circumstances doesn’t cure the error if the judge also relied on
improper circumstances in selecting the upper term. To the contrary, Lopez underscores
why the judge’s decision in our case complies with the new law. In that case, the trial
judge had relied on now improper circumstances in selecting the upper term as well as
circumstances that remained proper because they were based on the record of conviction.
The appellate court concluded it could not uphold the sentence based on the judge’s
consideration of proper circumstances because the judge had “offered no indication that
[he] would have selected an upper term sentence even if only a single aggravating factor
or some subset of permissible facts were present.” (Lopez, supra, at p. 468.)
Our case, in contrast, offers precisely such an indication. When identifying the
aggravating circumstances the judge explicitly stated that he considered any one of them
sufficient on its own to support the upper term. Thus, because the record does “clearly
indicate that the trial court would have exercised its discretion to impose an upper term
based on an aggravating factor” that remains proper under the new law, we conclude
Hidalgo’s sentence does not violate the recent amendments to Penal Code section 1170.
(Lopez, supra, 78 Cal.App.5th at p. 468.)
18
III
DISPOSITION
We affirm.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH J.
We concur:
McKINSTER Acting P. J.
MENETREZ J.
19
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's conviction for aiding and abetting car theft and his sentence, finding sufficient evidence supported the conviction, the jury instructions were proper, the ability-to-pay challenge was forfeited, and the sentencing error was harmless.
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 fees and fines.
Whether the defendant is entitled to resentencing under Senate Bill No. 567.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The trial record contains sufficient evidence to permit a reasonable jury to find Hidalgo guilty as an accomplice in the theft of the victim’s car.”
“The jury could reasonably conclude the victim’s memory of when the robbery took place was compromised and that it could have happened any time between the late evening of November 19 and the early morning of November 20.”