Opinion
C087599
01-08-2020
THE PEOPLE, Plaintiff and Respondent, v. NOLEN KEITH BUCHANAN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. P16CRF0368)
A jury found defendant Nolen Keith Buchanan guilty of three counts of first degree murder and sustained firearm and multiple-murder enhancements. The trial court sentenced him to an indeterminate term of 150 years to life, remarking that "the facts of the case are so heinous and the [d]efendant's behavior so callous that, from the Court's perspective, they are suggestive that this might be the rare case of irretrievable depravity where life in prison without parole or a lengthy sentence which is tantamount to life in prison without parole is the only appropriate outcome," hoping that defendant might nonetheless experience rehabilitation.
On appeal, defendant challenges the decision to try him in criminal court (being under 17 years old at the time of his crimes in 2015), the exclusion of defense evidence, various statements of the prosecutor in closing arguments, and the imposition of a number of penal assessments without an evaluation of his ability to pay them. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was born in 1999. He lived in Benicia with his father, his father's long-term partner (to whom we shall refer as his stepmother for convenience, as defendant called her "mom"), and his younger half-brother, who was born in 2007.
The parents had a cabin in rural El Dorado County north of Placerville and east of Auburn. Defendant's paternal grandfather testified that the parents and the two boys had planned a trip to the cabin for the weekend of September 11, 2015, after celebrating the eighth birthday of the younger son.
Video surveillance, matching a receipt dated September 12, 2015, showed the stepmother making a purchase at a hardware store on Saturday driving a white Ford F-150 pickup truck that they owned. The parents went to a club close to the cabin around closing time on Saturday night. Surveillance footage from the club and a nearby restaurant showed the white Ford pickup truck driving off in the direction of the cabin. About an hour later, the restaurant surveillance showed the Ford truck coming back from the direction of the cabin and heading toward the interstate. A toll station photograph placed the Ford pickup truck in the Bay Area on Sunday afternoon.
On Sunday morning at about 10:00 a.m., firefighters responded to reports of a blaze at the cabin. The structure was not actively burning any longer, but was still warm. There was a Dodge truck parked nearby. A pungent smell alerted the firefighters to the potential presence of human remains, who quickly located a skull. Ultimately, investigators found three sets of human remains in the ash and rubble in "very degraded" condition. These were the bodies of the father, stepmother, and younger brother, identified through DNA. The tissue samples showed that the victims had not inhaled smoke before they died. Because of the state of his body, it was not possible to determine a cause of death for the father, but there were numerous small metal fragments present in the body that could have been bullets. The stepmother's remains had what appeared to be bullets embedded in the tissues, but they could not be further analyzed forensically. The younger brother's skull had an obvious gun wound (a piece of the skull being missing) that was probably lethal.
Investigators found fast-food debris on the property consistent with a receipt from a Fairfield store from Friday night. The DNA of both defendant and his parents were on straws. The father's sole ATM card had been used in the club at which the parents had been on Saturday night; it was next used in Benicia at various locations on Sunday. The following week, the police found a rifle belonging to the father and the stepmother's purse under a bush near to the business the family operated. Defendant's cell phone reflected August 2015 searches for arson, as well as safe-cracking and disabling alarm systems. (Defendant did not know the combination to his father's safe.)
The grandfather testified he had seen only defendant using it.
Defendant had told his former girlfriend that he planned to see her on the Friday night before the fire, but then had another friend give her a false excuse for not meeting up with her. He called her early on Sunday morning and said he had been hanging out around his home over the weekend. He spent the rest of Sunday making purchases and visiting with different people, also telling them that he had stayed home from the cabin trip. He watched pornography on his phone. He took the girlfriend out for dinner, who noticed he was wearing new clothes.
A Benicia police officer went to defendant's home that evening, where defendant was alone drinking beer. The officer had been asked to make contact with the owners of the Dodge truck found at the cabin. The officer told defendant there had been a fire in the area of the cabin and he needed to speak with defendant's parents. Defendant said they had gone up to the cabin without him but he expected them home that evening.
Defendant then called his girlfriend, sounding distraught about the police telling him that his family was missing. The girlfriend and her mother brought him over to their house, where he searched for information about fires in the area of the cabin. Defendant seemed focused on getting his father's construction business open the following day.
On Monday, defendant phoned his grandfather and told him that his family was missing after a fire at the cabin. He met the grandfather at the business. The grandfather thought defendant seemed emotionless and focused on getting the crews ready for work. Defendant also told his grandfather that this was one of his best mornings of his life because he had spent the night with his former girlfriend. He was wearing a new sports coat, which was unusual for him. Later that week, defendant tearfully confessed to his grandfather that he had killed his little brother "So he wouldn't have to go through the same thing that I did." The grandfather stopped him from talking about this, and refused thereafter to discuss the subject with defendant. It was with great reluctance that the grandfather eventually shared this conversation in July 2017 with investigators, after hearing defendant testify at his fitness hearing that his father had killed his stepmother and brother, after which defendant killed his father in self-defense.
Defendant also visited his fitness instructor on Monday morning. Although he expressed concern about his family (noting that he had stayed home that weekend), he was again more focused on maintaining the family business and property, and getting access to the bank accounts, and talked about his future financial plans. The instructor found defendant's demeanor about the tragedy to be somewhat off-putting.
He lunched with his stepmother's mother that week, who found his proprietary air toward his family's assets and future financial plans to be off-putting (acknowledging that defendant was not an emotional person). She suggested he might want to seek emancipated minor status if he did not want to move to Arizona and live with his biological mother. He told her he had spent the weekend by himself at home. He was aware at this point that at least two sets of remains had been found in the cabin, but told her that he did not think his father had survived. He was wearing new clothes and jewelry.
In his first interview with police that Monday, defendant stated that he did not go to the cabin because there was not enough room in the Dodge truck his parents were taking back to the property (where it was usually parked) for either him or the family dog. He did not ask any questions other than the condition of the cabin. He suggested his little brother could have caused the fire by tipping over the generator. He remarked that his parents constantly argued.
After executing a search warrant at the Benicia home (where they located the father's ATM card on top of a safe in the closet of the master bedroom), investigators spoke with defendant a second time. He again said he had spent the weekend in Benicia, keeping to himself on Friday and Saturday while taking care of chores. He did not have any contact with his family. He again suggested his little brother could have spilled fuel from the generator, and once again described the poor relationship between his parents, with his father frequently mentioning the desire to separate and the two maintaining separate bedrooms. Defendant was generally listless, but perked up when the subject switched to automotive maintenance. In a third interview at his high school, he did not have anything to add to his previous account. At this point, the investigators were aware that the Ford pickup truck had been seen in surveillance, contrary to defendant's claim that the family took the Dodge truck. Defendant did not ask if his parents and brother had been located. In a fourth interview, he did not have any explanation when asked how the ATM card could have been used in El Dorado on Saturday before defendant used it on Sunday, or the footage showing the presence of the Ford pickup truck in El Dorado before he was seen driving it on Sunday. He was then arrested after invoking his right to speak to an attorney.
Defendant testified that he loved his father. He tolerated his stepmother, whom he described as unpredictable and a drug user, because he had to live with her even if she was not a very likeable person. She was not welcome at Buchanan family gatherings. The three of them all worked at the family business, where defendant had begun assisting at age 12 and became a supervisor of small crews toward his father's end of defendant assuming control over the business, although defendant eschewed any interest in this goal (preferring instead to enlist in the Army), also noting that the business was not doing well and caused his father to consider other business options. Defendant would get into arguments with his father about work-related issues. Both parents would talk with him about their problems with each other. Defendant loved his little brother, whom he would babysit whenever his parents went out. He would try to shield his brother from the arguments between the parents.
Defendant never witnessed his father being physically violent with his stepmother. On at least five occasions, police came to their home because of arguments between the couple. By 2015, the couple was fighting daily, calling each other names and throwing things at each other. The father would threaten to throw her out and keep the younger brother. The stepmother would walk out on him and also claim that she would seek custody of her son, but would eventually return. Defendant's father threw things at him when angry, and sometimes physically abused him as well. He constantly belittled defendant. His father would go out at night without his stepmother, and a defense witness testified to going on dates with him in August 2015 (where he discussed being involved for a long time with a bizarre woman).
Defendant admitted that he in fact went with his family to the cabin after stopping at the fast-food store. He asserted that his father was yelling at both him and his stepmother on Friday. The bickering continued on Saturday, but the couple went out together. Defendant noted that when his parents went out together he would be the one watching his little brother. Defendant and his brother went to sleep about 11:00 p.m.
Defendant testified that he awoke to the sound of screaming and gunshots. When this stopped, defendant could hear the sounds of someone walking toward where he and his brother were sleeping. Defendant claimed he could not see the face of the person (seeming to assert that the body was backlit), who then aimed a rifle and shot defendant's brother. Defendant grabbed the barrel of the rifle, causing this person to fall backward and release it. Defendant fired twice into the dark. After grabbing the lantern, he saw that the person with the rifle was his father. Defendant went back to his brother and held him until his brother stopped breathing. When he walked into the main room of the cabin, he could see his stepmother on the floor, riddled with gun wounds and lying in a puddle of blood.
Defendant grabbed the rifle and his stepmother's purse (which had the keys to the Ford pickup truck), and took their dog out to the truck. "I went back up to the cabin, and because I thought . . . I could just go home and pretend I'd never gone there and . . . it would just be the fire that happened, and no one would have to know about what happened." He therefore set the cabin on fire, rather than summon the authorities. He secreted the rifle and purse when he got home because he did not want police to find them. He lied to everyone about his presence at the cabin. He conceded that he had never offered an account of his current defense to investigators. By the time of his fourth interview, he knew he would be arrested and therefore did not see any point in offering his current defense. He denied ever telling his grandfather that he had killed his little brother. He did feel entitled to take charge of the family assets after his parents' death.
DISCUSSION
1.0 The Challenge to Certification to Criminal Court Is Foreclosed
This matter was initially filed in criminal court after a grand jury indicted defendant. Defense counsel moved to remand the case to the juvenile court, based on subsequent amendments to the operative law, and the trial court agreed to hear the matter in a fitness hearing as the juvenile court with the charging document to be considered as a juvenile petition. In a lengthy ruling, it granted the motion of the People to transfer the matter back to criminal court, concluding that defendant was criminally sophisticated and unlikely to be rehabilitated in the years remaining before the juvenile court lost jurisdiction over him, and that the circumstances and gravity of the offenses alleged against him warranted criminal rather than delinquency proceedings. At length, defendant faults the sufficiency of the findings on the part of the trial court in its ruling, and contends the ruling was an abuse of discretion.
Notably absent in the 20 pages of argument is any discussion of the cognizability of this issue on direct appeal from the criminal judgment. This transfer ruling is not an appealable order, and must be raised instead in a petition for an extraordinary writ. (Cal. Rules of Court, rule 5.770(g).) The issue may not subsequently be raised on direct appeal from the criminal judgment. (Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 804, fn. 1, citing People v. Chi Ko Wong (1976) 18 Cal.3d 698, 714; accord, People v. Garcia (1981) 115 Cal.App.3d 85, 112 [juvenile court's certification to criminal court "is an extrajudicial process insofar as subsequent criminal proceedings are concerned," thus transfer order may not be reviewed on appeal from criminal judgment of conviction]; but compare In re Harris (1993) 5 Cal.4th 813, 842-843 [principle does not apply to a fundamental jurisdictional defect in certification order].)
We denied defendant's extraordinary writ petition for review of this order in November 2017.
Responding in his reply brief after the People raised this issue, defendant makes the unsupported claim that "the [c]ourt exceeded its jurisdiction by not transferring the matter to juvenile court for [a] . . . fitness adjudication," failing to make findings, and issuing a ruling that did not have substantial evidence in support. The record plainly belies the former point, and the latter two are not fundamental jurisdictional errors (In re Harris, supra, 5 Cal.4th at p. 843 [challenge to correctness of certification order premised on "garden-variety evidentiary complaint" and the "familiar procedural lament" of inadequate findings are not jurisdictional claims]). As a result, we conclude defendant may not relitigate this issue on appeal.
2.0 The Trial Court Did Not Err in Excluding Defense Evidence
There were protracted proceedings regarding journals that the stepmother kept that purported to document the abusive behavior of the father. We attempt to keep our recount to a minimum. Ultimately, the trial court allowed the defense to admit any such entries that were internally dated within five years of the murders, involving injuries or threats of injury by the father, in order to corroborate the defense theory of third-party culpability and self-defense premised on the father's propensity for domestic violence. After reviewing proposed journal entries one more time with the trial court, the defense introduced five excerpts from January, February, and June 2015. In these, the stepmother discussed having substantial arguments with the father, and being "roughed . . . up" so severely that she slept with a knife. She described his rages having physical and emotional effects, and being the victim of severe physical abuse to the point where she feared for her life. She could not understand how she could feel so happy being with the same person who could also be so abusive.
In this vein, the trial court excluded testimony about the father flying into a rage when an elderly man tapped into his bumper in a parking lot, and an incident where he was enraged at the stepmother's mother and showered her face with spittle while he screamed at her. With respect to the latter, the trial court noted, "Lord knows I think all of us have heard more about this relationship than we ever want[ed] to, that there was a plethora of nasty comments, aggressive comments, getting into people's faces, so on and so forth. [¶] I am not, under Evidence Code section 352, going to let you get into with every person who may have knowledge of every encounter that [the father] may have had where he's yelling, spitting, being aggressive, [or] being in people's faces" absent any firsthand knowledge of physical violence. It pointed out that "we have spent untold amounts of time on this information already. It's come out . . . through [defendant]. It's come out through other witnesses, and at some point in time, the Court has to take control and put some limits on it." It did agree to allow exploration of the context of admissible journal entries with further excerpts if necessary.
Defendant contends the trial court abused its broad evidentiary discretion in its efforts to manage this miasma of character evidence. Defendant claims he was limited to evidence that "trivialized" the nature of his father's abusiveness. We do not need to delve into the legal standards that informed the trial court's discretion on this subject. As the People properly point out, any possible abuse of discretion could not possibly be prejudicial error.
We reference the evidence of defendant's guilt and his testimony in his own behalf summarized in the facts. To this we add the testimony of the stepmother's mother at trial, in which she related the stepmother talking to her about arguments with the father, and the mother's expressions of concern about the stepmother's safety and the children's safety because of the tumultuous relationship with the father (although she never had personally seen the father be violent with the stepmother or seen any signs of physical abuse, and she had seen the good side of the relationship between the father and his family). A police officer testified about the several service calls to the residence of the father and stepmother for reports of domestic violence to which defendant had testified. A coworker testified about the heated nature of the relationship of the father and stepmother at work that resulted in outbursts several times a week, and he had needed to repair the door to the father's office several times after the father slammed it hard after arguments with the stepmother. He also had to intercede when the father flew off the handle in a verbal confrontation with defendant. He described the father as a hothead. He did not, however, see the father throw anything at the stepmother or mishandle her, or otherwise see him get physically aggressive with anyone. Another coworker, however, witnessed the father punching defendant in the bathroom at work and kicking him on another occasion, as well as being physically aggressive with a client and other workers.
We think the gist of defendant's testimony was sufficiently corroborated, and do not find it likely that additional excerpts from the stepmother's journal to the same effect or other examples of the father's character for flying off the handle conceivably could have lead to a different outcome in the face of the evidence of defendant's guilt. As a result, we reject this argument (along with a one-sentence argument aside about cumulative error).
3.0 Defendant Is Foreclosed from Asserting Prosecutorial Misconduct on Appeal
Defendant cites four subjects of the prosecutor's closing argument that he argues amounted to misconduct. He concedes that trial counsel did not object to any of these or request admonitions. He accordingly invokes the usual reasons why this court should address this argument on appeal in the first instance: The misconduct was incurable, it was ineffective assistance of trial counsel to fail to object, and we should exercise our discretion to excuse the forfeiture of this claim.
Failure to lodge a contemporaneous objection and a request for an admonition forfeits any claim of prosecutorial misconduct, except where a defendant affirmatively establishes on appeal that it was irremediable or it was futile to object, with more than a "ritual[ized] incantation" to this effect. (People v. Panah (2005) 35 Cal.4th 395, 462.) Defendant does not attempt to establish futility on the present record, nor does he offer any nonconclusory discussion of why the challenged subjects of closing argument could not have been the subject of effective admonitions.
Defendant's attempt to reach the issue under the guise of ineffective assistance of trial counsel fails in two regards. In the first place, direct appeal is almost inevitably the inappropriate forum for establishing that the inherently tactical choice of failing to raise an objection to misconduct fell below reasonable professional standards. (People v. Lopez (2008) 42 Cal.4th 960, 966, 972.) In the second place, defendant does not provide anything more than perfunctory analysis of how a failure to object did not meet objective professional litigation standards; "[t]his will not suffice" (People v. Mitchell (2008) 164 Cal.App.4th 442, 466-467 [rejecting claim of ineffective assistance on this basis]). As a result, we will not countenance this exercise in second-guessing. If in fact trial counsel did not have any strategic basis for failing to object, defendant has a remedy in habeas corpus (if he could possibly establish any resulting prejudice).
Finally, although we have discretion to consider an issue regardless of forfeiture, this applies only where it raises a question of law on the undisputed facts appearing in the record on appeal. (Bialo v. Western Mutual Ins. Co. (2002) 95 Cal.App.4th 68, 73; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 415, pp. 473-474.) However, this is a disfavored course of action; it is unjust to the opposing party, unfair to the trial court, and contrary to judicial economy (i.e., a waste of the time of the parties and the judicial branch) since it encourages the embedding of reversible error through silence in the trial court. (Saville v. Sierra College (2005) 133 Cal.App.4th 857, 873.) As a result, we do not ordinarily exercise our discretion to excuse forfeiture except in rare instances "in cases presenting an important legal issue." (In re S.B. (2004) 32 Cal.4th 1287, 1293.) The circumstances of this appeal hardly satisfy this stringent criterion. The claim of misconduct is therefore not cognizable in this appeal. As defendant has forfeited our plenary review of this claim, we simply observe that none of the four instances he identifies in his briefing amount to improper argument on the part of the prosecutor.
First, there was a defense psychological expert who testified in the abstract about adolescent mental development and the traumatic effect of abusive behavior. He did not offer any opinion about defendant in particular. When posed with a hypothetical based on defendant's behavior in the present case by the prosecutor, the expert asserted that he believed such conduct appeared to be the result of thoughtful and deliberative reasoning rather than any traumatized thinking, albeit still being a function of emotional motivation. The prosecutor then asserted in closing argument that the defense expert was not asked to offer any opinion about defendant in particular because it would be adverse to defendant, considering his answer to the hypothetical of the prosecutor. (Although the prosecutor had objected to any such opinion before trial, the court reserved any ruling for trial, and defense counsel did not subsequently seek to have an opinion regarding defendant in particular admitted in discussing the subject of the expert's proposed testimony before calling the witness.) We do not discern anything other than fair comment on the state of the evidence, and cannot discern how this line of argument in any event would fatally interfere with the defense theories of genuine self-defense and third-party culpability.
Second, the prosecutor commented on the defense's use of the stepmother's private thoughts to "muddy [the] waters" at trial regarding two people who could not explain the actual meaning of these entries. "This is Defense scrambling, using everything they can to confuse you, to give you red herrings, to muddy the water, dragging [the decedent couple] through the mud knowing that they can't defend themselves." This is not an attack on the integrity of defense counsel but simply a permissible comment on the state of the evidence and an exhortation to avoid being "misled by the defense interpretation of the evidence." (People v. Cunningham (2001) 25 Cal.4th 926, 1003.)
Third, as defendant concedes, there was an absence of evidence of remorse on the part of defendant, except for his confession to his grandfather. Defendant argues the prosecutor's fair comment on this evidence in closing argument was contrary to law. However, what is precluded is attempting to use absence of remorse as substantive proof of guilt; it may be used for other purposes (People v. Michaels (2002) 28 Cal.4th 486, 528), such as here where the prosecutor generally was arguing about defendant acting on a premeditated course of action rather than out of genuine self-defense.
Finally, the prosecutor remarked that the evidence showed defendant's "hatred and disdain" for his family. Even assuming this overstates or misstates the evidence, the remark was neither "deceptive" nor "reprehensible," nor did it amount to a pattern of " 'rude and intemperate behavior' "; the jury was nevertheless perfectly able to determine for itself based on its observation of the testimony at trial whether defendant in fact hated and disdained his family (People v. Dennis (1998) 17 Cal.4th 468, 522; People v. Gionis (1995) 9 Cal.4th 1196, 1214), so this remark could not possibly be outcome-determinative.
4.0 Defendant Is Not Entitled to a Remand to Challenge the Imposed Fines and Fees
In a one-paragraph argument, defendant challenges the imposition of restitution and parole revocation fines, as well as assessments for court operations and facilities. (Pen. Code, §§ 1202.4, 1202.45, 1465.8; Gov. Code, § 70373.) Citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) (review on own motion declined and request for depublication denied Mar. 27, 2019, S254210), defendant argues that the imposition of these financial costs without express consideration of his ability to pay is a violation of due process.
Although it is defendant's burden to establish an inability to pay (accord, People v. Kopp (2019) 38 Cal.App.5th 47, 96 (Kopp) review granted Nov. 13, 2019, S257844; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 (Frandsen), review den. July 17, 2019, S255714), defendant neither objected to these fines generally nor asserted his inability to pay them (to refute the presumption that defendants capable of working who are serving a lengthy prison term will be able to pay assessments from prison wages (People v. Johnson (2019) 35 Cal.App.5th 134, 139, review den. Aug. 14, 2019, S256281)). (The defendant in Dueñas had in fact sought a hearing on her ability to pay on constitutional grounds. (Dueñas, supra, 30 Cal.App.5th at pp. 1162-1163.)) As a result, existing authority would hold that defendant has forfeited the issue on appeal (Frandsen, supra, 33 Cal.App.5th at pp. 1154-1155), although there is also authority to the contrary (Johnson, at pp. 137-138; People v. Castellano (2019) 33 Cal.App.5th 485, 489, review den. July 17, 2019, S255551). There is also settled law that failure to object to the amount of a restitution fine on the ground of inability to pay forfeits that issue on appeal. (People v. Nelson (2011) 51 Cal.4th 198, 227; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033, (Gutierrez) review den. Sept. 18, 2019, S256881 [failure to object to maximum restitution fine on ground of inability to pay forfeits Dueñas issue].) Defendant has thus forfeited our plenary review of this issue.
We may consider, as persuasive authority, the cases that have been granted review by our Supreme Court. (Cal. Rules of Court, rule 8.1115(e)(1).)
In any event, subsequent published authority has called the reasoning of Dueñas into question. As digested in People v. Hicks (2019) 40 Cal.App.5th 320 (Hicks) (review granted Nov. 26, 2019, S258946), Dueñas is premised on authority involving a right under due process of access to the courts, and a bar against incarceration for an involuntary failure to pay fees or fines. (Hicks, at p. 325.) However, a postconviction imposition of fees and fines does not interfere in any respect with the right of access to either the trial or appellate court. (Id. at p. 326.) The postconviction imposition of fees and fines also does not result in any additional incarceration, and therefore a liberty interest that due process would protect is not present. (Ibid.) Since the stated bases for the conclusion in Dueñas do not support it, the question is whether due process generally otherwise compels the same result. (Hicks, at p. 327.) The People have a fundamental interest in punishing criminal conduct, as to which indigency is not a defense (otherwise, defendants with financial means would suffer discrimination). "For the reasons set forth above, we conclude that due process does not [generally] speak to this issue and that Dueñas was wrong to conclude otherwise." (Id. at p. 329.) Kingston, supra, 41 Cal.App.5th at page 279, agreed with Hicks.
The analysis of Dueñas in Hicks is adopted in People v. Kingston (2019) 41 Cal.App.5th 272, 279-281 (Kingston), and is paralleled in People v. Aviles (2019) 39 Cal.App.5th 1055, 1068-1069 (petn. for review & request for depublication den. Dec. 11, 2019, S258563) (Aviles), People v. Caceres (2019) 39 Cal.App.5th 917, 927 (review den. Jan. 2, 2020, S258720), and in the opinions of individual justices in People v. Santos (2019) 38 Cal.App.5th 923, 937-938 (dis. opn. of Elia, J.), and Gutierrez, supra, 35 Cal.App.5th at pp. 1038-1030 (conc. opn. of Benke, J.). --------
Aviles also found Dueñas to be wrongly decided, finding the only proper limit on fees and fines is the constitutional prohibition against excessive fines under the Eighth Amendment to the federal Constitution. (Aviles, supra, 39 Cal.App.5th at pp. 1061, 1067, 1069-1072; accord, Kopp, supra, 38 Cal.App.5th at p. 96, rev.gr.)
Therefore, given the forfeiture of any objection to the restitution fine under consistent authority and the absence of any valid claim under due process in connection with the remaining fees and fines, we conclude defendant is not entitled to a remand for the trial court to consider his ability to pay either. We therefore reject this argument.
DISPOSITION
The judgment is affirmed.
/s/_________
Butz, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Murray, J.