Opinion
D074258
04-06-2020
THE PEOPLE, Plaintiff and Respondent, v. KEVIN ALBERT RICHARD COSET, Defendant and Appellant.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Adrianne S. Denault and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN316025) APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed. Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Adrianne S. Denault and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
After repeatedly shooting and stabbing an acquaintance in 2013, defendant Kevin Coset was charged with first degree premeditated murder with a lying-in-wait special circumstance allegation, and firearm- and deadly weapon-use enhancement allegations. In 2018, after extensive proceedings establishing Coset's competence to represent himself and to stand trial, he pleaded guilty to first degree premeditated murder and admitted the enhancement allegations, in exchange for dismissal of the special circumstance allegation. The trial court sentenced him to prison for 50 years to life, plus one year, and ordered him to pay assessments, fees, and fines exceeding $10,000.
Coset raises three issues on appeal. First, he contends the trial court erred by denying his motion to withdraw his guilty plea. Second, he contends he is entitled to the retroactive benefit of a mental health diversion statute that was enacted after he was sentenced (Pen. Code, § 1001.36), but not subject to a subsequent amendment to that statute that eliminated diversion eligibility for defendants (like him) charged with murder. Finally, he contends the trial court's imposition of assessments, fees, and fines without first determining his ability to pay them violated his due process rights as recently enunciated in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) and violated the Eighth Amendment's excessive fines clause. For reasons we will explain, we reject these contentions and affirm.
Further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts of the offense are largely irrelevant to the issues raised in this appeal. In brief, Coset subsequently admitted to his probation officer that he had repeatedly shot and stabbed an acquaintance and wrapped his body in a sleeping bag.
In 2013, Coset was charged with first degree premeditated murder (§§ 187, subd. (a), 189) with a lying-in-wait special circumstance allegation (§ 190.2, subd. (a)(15) ["penalty . . . is death or imprisonment . . . for life without the possibility of parole"]). The operative amended information included enhancement allegations that Coset personally used a firearm (§ 12022.5, subd. (a) [3/4/10-year enhancement]); personally discharged a firearm causing death (§ 12022.53, subd. (d) [25-to-life enhancement]); and personally used a deadly weapon, to wit: a knife (§ 12022, subd. (b)(1) [one-year enhancement]).
Coset initially pleaded not guilty.
In 2018, after trial had just begun, Coset agreed to plead guilty to first degree premeditated murder and to admit the enhancement allegations, in exchange for the prosecutor's agreement to dismiss the special circumstance allegation. The trial court accepted the plea on these terms.
The trial court sentenced Coset to prison for 50 years to life, plus one year. The court also ordered Coset to pay the following: a $40 court operations assessment (§ 1465.8); a $30 criminal conviction assessment (Gov. Code, § 70373); a $154 criminal justice administration fee (Gov. Code, § 29550 et seq.); and a $10,000 restitution fine (§ 1202.4, subd. (b)) and corresponding, suspended parole-revocation fine (§ 1202.45).
The indeterminate term of 50 years to life was based on 25-to-life terms for each the murder conviction and the firearm-discharge enhancement. The one-year determinate term was based on the knife-use enhancement. The court imposed a four-year term on the lesser firearm enhancement allegation, but stayed it under section 654 as duplicative of the firearm-discharge enhancement.
The trial court also ordered Coset to pay direct victim restitution of $5,810. This order is not at issue in the appeal.
DISCUSSION
I. Withdrawal of Guilty Plea
Coset contends the trial court erred by denying his motion to withdraw his guilty plea. We disagree.
A. Background
1. Competency and Self-Representation Proceedings
When he was initially charged in 2013, Coset was represented by retained counsel, and then the public defender's office.
In April 2015, Coset successfully moved to represent himself. The trial court relieved the public defender and appointed the Office of Assigned Counsel (OAC) to provide ancillary services.
In July 2015, the OAC moved to revoke Coset's self-represented status based on a psychologist's determination that Coset suffered from "grand delusions." The trial court suspended criminal proceedings and ordered a further examination. About eight months later (in March 2016), and based on a psychiatrist's opinion that Coset suffered from a "delusional disorder" that rendered him incompetent to represent himself, the trial court revoked Coset's self-represented status, reappointed the public defender, and reinstated criminal proceedings.
The public defender then immediately requested a further evaluation as to whether Coset was competent to stand trial. The trial court resuspended criminal proceedings and ordered a further evaluation.
In July 2016, the court found Coset was not competent to stand trial and committed him to Patton State Hospital.
In December 2016, after further evaluation and proceedings, the court found Coset competent to stand trial and reinstated criminal proceedings. Coset was thereafter represented by the public defender.
In July 2017, Coset again moved to represent himself. After a further psychological evaluation, the court reinstated Coset's self-represented status in November 2017.
Coset represented himself throughout the remainder of the proceedings.
2. Pretrial Motions
In February 2018, the case was assigned for trial to Judge Elias, who heard and ruled on the parties' motions in limine.
On the day set for jury selection, Coset orally moved to dismiss the case on speedy-trial grounds. The trial court denied the motion. Coset then orally moved to challenge Judge Elias "for cause." When Judge Elias responded that Coset would need to file a written motion under Code of Civil Procedure section 170.1, Coset moved to challenge the judge under section 170.6 of that code. The judge denied the motion as untimely because he had already "heard substantive issues."
Coset then asked the court if he could waive his presence during voir dire. When the court asked Coset how he would exercise his peremptory challenges, Coset said he would "defer to [the prosecutor]'s judgment." The court ultimately denied the motion, explaining that although Coset need not participate, he must at least be present.
3. Change of Plea
After the prosecutor gave his opening statement, Coset gave him a note asking if he could plead no contest to the charges. After a brief recess, the prosecutor reported that he had spoken with his supervisor and they were not inclined to accept anything short of a guilty plea. The court explained to Coset that, "for purposes of the criminal determination, a no contest plea is the same identical thing to a guilty plea," and the court would accept a no contest plea to all charges over the prosecution's objection "because that's one of three pleas that the statute allows." But the court clarified that if Coset wanted the prosecution "to dismiss an allegation[,] . . . then they are back in control . . . ."
Coset "acknowledg[ed] the evidence" against him, but expressed that he took issue with the prosecution's motive theory. When the court explained that motive is not an element of the charged offense, Coset said he understood.
As the court began filling out a change-of-plea form, the prosecutor advised that because the maximum possible punishment was life without parole (due to the lying-in-wait special circumstance allegation), Coset, as a self-represented party, could not enter a plea. (See § 1018 ["No plea of guilty of a felony for which the maximum punishment is . . . life imprisonment without the possibility of parole . . . shall be received from a defendant who does not appear with counsel . . . ."].) The following discussion among the court, the prosecutor, and Coset then transpired:
We quote this passage in full because it relates to Coset's claim on appeal that the trial court exerted undue influence during the plea negotiations.
"The Court: Okay. So you would not accept a first [degree murder] with weapon use [enhancement]?
"[Prosecutor]: Well, based on what the defendant wrote to me, no contest to the sheet, I informed the defendant—
"The Court: I understand that. I asked you a question. So now answer me, not him. You would not accept a first degree—
"[Prosecutor]: I am willing—
"The Court: —without the special circumstance?
"[Prosecutor]: I'm willing to consider alternatives to what the defendant proffered to me if the defendant is willing to discuss those alternatives with me.
"The Court: Well, I'm discussing it with you. So is it your answer, yes or no, would you accept a first [degree murder] without the LWOP?
"[Prosecutor]: Likely, yes.
"The Court: If they took away the life without parole and you pled guilty to the murder with a premeditation allegation, but . . . what we took off is the life without parole, you can then plead guilty to that[?]
"Mr. Coset: Yes."
The court then gave Coset a change-of-plea form to complete and offered to clarify anything Coset had questions about. Coset completed the form, agreeing to plead guilty to all charges in exchange for dismissal of the special circumstance allegation. The court reviewed the form with Coset and accepted his guilty plea, finding he was "in full possession of [his] faculties" and that his plea was "express, explicit, knowing, intelligent and voluntar[y]."
4. Motion to Withdraw Guilty Plea
About one month after entering his guilty plea, Coset filed a motion seeking to withdraw his plea. He argued in the motion that Judge Elias had no authority to accept the plea because Coset had disqualified him under Code of Civil Procedure section 170.6. The prosecution opposed the motion.
Around the same time he filed his motion to withdraw his guilty plea, Coset also filed a motion seeking to disqualify Judge Elias under Code of Civil Procedure section 170.6, and a petition for writ of habeas corpus based in part on that statute. The court denied the petition as untimely and lacking merit. The court did not yet rule on the motion to withdraw.
Coset then filed an amended motion to withdraw his guilty plea on the basis that, "due to the inherently coercive actions of the court," he entered his plea "under extreme duress." Specifically, Coset argued the court had been "overly interested in obtaining a guilty plea" such that he "felt as though there was nothing he could do or say to stop the discussion and resume trial without upsetting or enraging the court . . . ."
The prosecutor opposed the motion, arguing it was untimely, Coset had initiated and actively participated in the plea negotiations, and the court had acted as a neutral arbiter.
The court addressed the motion at the outset of the sentencing hearing. Based on "the declarations" and "the evidence at the time of the entry of the change of plea and the negotiations that occurred at that time," the court found Coset had not shown good cause to withdraw his guilty plea. The court specifically explained to Coset why it rejected his duress claim:
"I know that you say you believe you were under duress. I have to make my own factual determination, and I was here when the whole event occurred. You were the one that requested to enter a plea. I didn't try to ask you to enter a plea, [the prosecutor] didn't ask you to enter a plea, you said, 'I want to talk to the DA,' you wanted to [plead]. The whole negotiation then became whether it would be a no contest or not, and we ended up where we're at."
B. Relevant Legal Principles
Section 1018 allows a defendant to seek to withdraw his or her guilty plea before judgment has been entered upon a showing of good cause. (§1018; see People v. Patterson (2017) 2 Cal.5th 885, 894 (Patterson).) "To establish good cause to withdraw a guilty plea, the defendant must show by clear and convincing evidence that he or she was operating under mistake, ignorance, or any other factor overcoming the exercise of his or her free judgment, including inadvertence, fraud, or duress." (People v. Breslin (2012) 205 Cal.App.4th 1409, 1416 (Breslin); see Patterson, at p. 894.) "The defendant must also show prejudice in that he or she would not have accepted the plea bargain had it not been for the mistake." (Breslin, at p. 1416.) "The defendant may not withdraw a plea because the defendant has changed his or her mind." (People v. Archer (2014) 230 Cal.App.4th 693, 702.) " 'Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.' " (People v. Weaver (2004) 118 Cal.App.4th 131, 146 (Weaver).)
Section 1018 states in part: "On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. . . . This section shall be liberally construed to effect these objects and to promote justice."
"In ruling on a motion to withdraw a plea, the trial court may take into account the defendant's credibility and his or her interest in the outcome of the proceedings." (People v. Dillard (2017) 8 Cal.App.5th 657, 665.) We "must adopt the trial court's factual findings if substantial evidence supports them." (People v. Fairbank (1997) 16 Cal.4th 1223, 1254; see Breslin, supra, 205 Cal.App.4th at p. 1416.) "A trial court's decision whether to permit a defendant to withdraw a guilty plea under section 1018 is reviewed for abuse of discretion." (Patterson, supra, 2 Cal.5th at p. 894.)
C. Analysis
The trial court did not abuse its discretion by finding Coset failed to establish by clear and convincing evidence that his guilty plea was the product of duress. As Coset acknowledges in his briefing on appeal:
"[Y]es, . . . the record showed it was [Coset] himself who initiated the request to plead immediately after the prosecutor presented opening statement. And, yes, [Coset] agreed to plead guilty when the prosecutor said his office would not accept a no contest plea. And, yes, [Coset] agreed to plead guilty to first degree murder with the gun and knife enhancements after the prosecutor removed the special circumstances allegation based on the statute that a pro per defendant cannot plead guilty to LWOP."These concessions are fatal to Coset's appeal.
We reject Coset's contention that the trial court violated its duty to "maintain impartiality and not advocate" during plea negotiations (Boldface and capitalization omitted.) The court did not advocate for either side, tell Coset he should plead guilty, assess the merits of the case, or discuss any adverse consequence Coset would suffer were he not to plead guilty. (Cf. Weaver, supra, 118 Cal.App.4th at p. 142 ["The court stated it was concerned that appellant would go to trial, be convicted and receive a life sentence. The court stated it concluded that had appellant gone to trial the likelihood of his being convicted was 'enormous.' The court stated it was also interested in not further victimizing the victims" by forcing them to testify at trial.].)
To the contrary, Coset "acknowledg[ed] the evidence" against him during the plea negotiations.
Moreover, Coset has not explained how the court's participation prejudiced him in any way. If anything, the court's participation benefited Coset by facilitating a resolution that left him eligible for parole when he otherwise would not have been.
Nor are we persuaded that Coset's intermittent lack of competence to represent himself or to stand trial during the several preceding years rendered him particularly susceptible to undue influence by the court during the change-of-plea proceeding. The trial court based its finding of a lack of good cause to withdraw the plea, in part, on its firsthand observations of Coset in court. Yet, the court specifically found Coset was "in full possession of [his] faculties" and that his plea was "express, explicit, knowing, intelligent and voluntar[y]." We defer to this factual finding based on the court's firsthand observations.
II. Mental Health Diversion
After Coset was sentenced, the Legislature enacted a pretrial mental health diversion procedure that, generally speaking, allows a qualifying defendant to eventually have his or her pending charges dismissed upon satisfactory performance in diversion. (§ 1001.36.) Shortly after initially enacting it, the Legislature amended the diversion statute to eliminate eligibility for defendants charged with certain offenses, including murder. (Stats. 2018, ch. 1005, § 1; § 1001.36, subd. (b)(2)(A).) Coset contends the initially enacted version of the diversion statute applies retroactively to him (thus entitling him to a limited remand for a determination of eligibility), while the subsequent amendment eliminating eligibility for those (like him) who committed murder does not. We disagree.
Effective June 27, 2018, the Legislature created a pretrial diversion program for defendants who suffer from qualifying mental disorders and meet the criteria specified in the statute. (§ 1001.36, subd. (b), added by Stats. 2018, ch. 34, § 24; see People v. Cawkwell (2019) 34 Cal.App.5th 1048, 1053, review granted Aug. 14, 2019, S256113 (Cawkwell).) "In broad general outline, it allows a trial court to grant a defendant pretrial diversion, for the purpose of mental health treatment for up to two years, if it finds that the defendant has a mental disorder that was a significant factor in the commission of the charged offense." (People v. McShane (2019) 36 Cal.App.5th 245, 259, review granted Sept. 18, 2019, S257018 (McShane).) "If the defendant performs satisfactorily in diversion, the court must dismiss the criminal charges." (Ibid., citing § 1001.36, subd. (e).)
Although review has been granted, we may still cite Cawkwell for its persuasive value. (Cal. Rules of Court, rule 8.1115(e)(1).)
On September 30, 2018, about three months after section 1001.36 was enacted and became effective, the Legislature amended it to (among other things) eliminate diversion eligibility for defendants charged with certain offenses, including murder. (Stats. 2018, ch. 1005, § 1; § 1001.36, subd. (b)(2)(A) ["A defendant may not be placed into a diversion program, pursuant to this section, for the following current charged offenses: [¶] (A) Murder or voluntary manslaughter."]; see Cawkwell, supra, 34 Cal.App.5th at p. 1053, rev.gr.) This amendment took effect January 1, 2019. (Ibid.)
Several Courts of Appeal—including various panels of our own—have held that the mental health diversion statute generally applies retroactively to all nonfinal judgments on appeal because it is ameliorative and does not reflect a legislative intent that it apply only prospectively. Other Courts of Appeal have found that the Legislature's designation of the diversion procedure as pretrial indicates a legislative intent that the statute apply only prospectively. The retroactivity issue is pending in the California Supreme Court.
See, e.g., People v. Frahs (2018) 27 Cal.App.5th 784, 791, review granted Dec. 27, 2018, S252220; People v. Hughes (2019) 39 Cal.App.5th 886, 896, review granted Nov. 26, 2019, S258541; People v. Weaver (2019) 36 Cal.App.5th 1103, 1122, review granted Oct. 9, 2019, S257049; People v. Aguayo (2019) 31 Cal.App.5th 758, 760, review granted May 1, 2019, S254554; People v. Burns (2019) 38 Cal.App.5th 776, 787, review granted Oct. 30, 2019, S257738.
See, e.g., People v. Craine (2019) 35 Cal.App.5th 744, 760, review granted Sept. 11, 2019, S256671; People v. Torres (2019) 39 Cal.App.5th 849, 856; People v. Khan (2019) 41 Cal.App.5th 460, 493-494, review granted Jan. 29, 2020, S259498.
We need not decide here whether section 1001.36 applies retroactively, in general, because we conclude the currently enacted version eliminating diversion eligibility for defendants charged with certain offenses applies to Coset and renders him ineligible.
The courts that have held section 1001.36 applies retroactively have generally done so on the basis of the so-called "Estrada rule," which " 'rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.' " (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308; see In re Estrada (1965) 63 Cal.2d 740, 744-745 (Estrada); fn. 8, ante.) "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (Estrada, at p. 745.)
For us to conclude that only the initially enacted version of section 1001.36 applies retroactively under Estrada, we would have to infer that the Legislature determined that the lack of mental health diversion for defendants charged with murder was too severe a penalty. But section 1001.36 as amended and currently enacted forecloses that inference. The amendment specifically eliminated diversion eligibility for defendants charged with murder. We may therefore infer that exclusion from eligibility for mental health diversion is not too severe a punishment for Coset. (See McShane, supra, 36 Cal.App.5th at p. 259 [rejecting as a "feat of argumentative gymnastics" the claim by a defendant charged with murder that he "is entitled to the benefit of the new diversion provisions, because they are ameliorative," but "not subject to the even newer murder exclusion, because . . . it is not ameliorative"], rev.gr.)
This conclusion is consistent with ex post facto principles. (See In re E.J. (2010) 47 Cal.4th 1258, 1276 ["the question whether a new law is being applied retrospectively is closely intertwined with the question whether it is an unconstitutional ex post facto law"].) As our court previously explained in Cawkwell, the constitutional prohibition on ex post facto laws "ensures that people are given 'fair warning' of the punishment to which they may be subjected if they violate the law . . . ." (Cawkwell, supra, 34 Cal.App.5th at p. 1054, rev.gr.; see U.S. Const., art. I, §§ 9, 10; Cal. Const., art. I, § 9.) When Coset committed murder in 2013, the possibility of pretrial mental health diversion did not exist because it was not until five years later that section 1001.36 was first enacted. Thus, Coset could not have relied on the possibility of receiving pretrial mental health diversion when he committed murder. (See Cawkwell, at p. 1054.)
"Moreover, the Legislature's amendment of section 1001.36 to eliminate eligibility for defendants charged with [murder] did not make an act unlawful that was not formerly unlawful, nor did it increase the punishment for the offense[] with which [Coset] was charged." (Cawkwell, supra, 34 Cal.App.5th at p. 1054, rev.gr.) "That is, [Coset] was subject to the same punishment when he committed his offense[] as he was after the Legislature narrowed the scope of defendants eligible for diversion." (Ibid.; see McShane, supra, 36 Cal.App.5th at p. 260 ["the enactment of the murder exclusion did not change the consequences of his crime as of the time he committed it"], rev.gr.) "Thus, the amendment does not violate the ex post facto clauses of the state or federal Constitutions . . . ." (Cawkwell, at p. 1054.)
III. Challenge to Assessments, Fees, and Fines
As noted, the trial court ordered Coset to pay $10,224 in assessments, fees, and fines. Coset contends the trial court's imposition of these monetary obligations without first determining his ability to pay them violated his due process rights under the subsequent holding of Dueñas, supra, 30 Cal.App.5th 1157, and the Eighth Amendment's excessive fines clause. Coset acknowledges he did not raise these challenges in the trial court, but argues his due process-based challenge is not forfeited because "[t]he change in law effected by the Dueñas opinion was not foreseeable" and, regardless of Dueñas's foreseeability, "any objection . . . based on an inability to pay would have been overruled because it was wholly unsupported by the then controlling authorities." We disagree.
These consisted of a $40 court operations assessment (§ 1465.8); a $30 criminal conviction assessment (Gov. Code, § 70373); a $154 criminal justice administration fee (Gov. Code, § 29550 et seq.); and a $10,000 restitution fine (§ 1202.4, subd. (b)) and corresponding, suspended parole-revocation fine (§ 1202.45).
In Dueñas, supra, 30 Cal.App.5th 1157, the Court of Appeal for the Second District, Division Seven, held that imposing assessments and a fine on an indigent defendant violated due process-based rights that ensure access to the courts and bar incarceration based on nonpayment of fines due to indigence. (Id. at pp. 1167-1168, 1172.)
The Eighth Amendment states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (U.S. Const., Amend. 8.)
Coset offers no argument as to why he has not forfeited his Eighth Amendment-based challenge.
Notably, even when Coset was sentenced, the statute that authorized the $10,000 restitution fine—which comprises about 98 percent of the $10,224 he challenges on appeal—expressly authorized the trial court to consider his ability to pay. Specifically, by imposing a restitution fine of $10,000 under section 1202.4, subdivision (b), the trial court exceeded the $300 minimum fine, thereby authorizing the court to "consider[]" Coset's "[i]nability to pay." (§ 1202.4, subd. (c).) By statute, Coset bore "the burden of demonstrating his . . . inability to pay." (§ 1202.4, subd. (d).) "The statute thus impliedly presumes a defendant has the ability to pay and expressly places the burden on a defendant to prove lack of ability." (People v. Romero (1996) 43 Cal.App.4th 440, 449.)
Section 1202.4, subdivision (c) states in part: "The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. 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 . . . ." (Italics added.) --------
Coset's silence during sentencing in the face of a $10,000 fine he could have challenged on the basis of his alleged inability to pay "is a classic example of the application of the forfeiture doctrine relied upon by the California Supreme Court in numerous criminal sentencing cases decided well before Dueñas." (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033; see People v. Nelson (2011) 51 Cal.4th 198, 227 [applying the forfeiture rule to an unpreserved ability-to-pay challenge to a restitution fine]; People v. Miracle (2018) 6 Cal.5th 318, 356 [failure to object at sentencing forfeits excessive fine claim].) And because Coset failed to object at sentencing to the $10,000 restitution fine on ability-to-pay grounds, he has forfeited the issue on appeal as to the remaining $224 in challenged assessments. (See Gutierrez, at p. 1033 ["As a practical matter, if [the defendant] chose not to object to a $10,000 restitution fine based on an inability to pay, he surely would not complain on similar grounds regarding an additional $1,300 in fees."].)
DISPOSITION
The judgment is affirmed.
HALLER, J. WE CONCUR: McCONNELL, P. J. AARON, J.