Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08WF1333, Lance Jensen, Judge.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, ACTING P.J.
Rey Benavidez appeals from a judgment after a jury convicted him of sexual intercourse with a child 10 years or younger, T.C., digital penetration with a child 10 years or younger, T.C., attempted lewd act upon a child under 14 years of age, A.L., and misdemeanor indecent exposure after unlawful entry.
Benavidez argues the following: (1) there was instructional error; (2) the destruction of evidence violated his due process rights; (3) the trial court erroneously admitted prior sexual misconduct evidence; (4) there was cumulative error; (5) after the close of evidence, the court erroneously allowed the prosecutor to amend the information; (6) insufficient evidence supports one of his convictions; and (7) the court erroneously imposed the sex offender registration fine, or alternatively his defense counsel was ineffective for failing to assert he is financially unable to pay the fine.
We agree the court erroneously permitted the prosecutor to amend the information and defense counsel should have raised the issue of Benavidez’s inability to pay the sex offender registration fine. We reverse Benavidez’s conviction on count 4 and remand the matter for further proceedings consistent with this opinion. None of his other contentions have merit, and we affirm the judgment.
FACTS
Benavidez’s brother had a romantic relationship with C.C. approximately 20 years ago; the relationship produced one child. Although that relationship ended, Benavidez remained close friends with C.C., even after she married. Her second marriage produced two children, a boy, C., and a girl, T.C. After C.C. had surgery, Benavidez moved into C.C.’s home to help with household chores and the children. When Benavidez later moved in with C.C.’s neighbor, R.H. and her family, including eight-year-old girl S.H., Benavidez visited C.C. frequently. While first living with C.C. and then later with R.H., Benavidez interacted often with T.C., S.H., and A.L. (T.C.’s female cousin).
T.C., who was about eight years old at the time of the incidents, enjoyed spending time with her uncle, Benavidez—they would play board games, watch television, use the computer, and swim. T.C.’s cousin, A.L., and T.C.’s neighborhood friend, S.H., would join them. Their relationship changed though when “[Benavidez] touched [her] in wrong spots, ” her buttocks, breasts, and vagina. On one occasion, Benavidez put his index finger inside T.C.’s vagina and moved it around, and it hurt. On another occasion, Benavidez put his penis inside her vagina. On other occasions, Benavidez touched his penis to T.C.’s vagina. Benavidez had T.C. straddle him and he rubbed his penis against T.C.’s vagina. During one of the occasions, eight-year-old T.C. straddled 40-year-old Benavidez, she rubbed her vagina against his penis, and white fluid came out of his penis and got on her stomach and in her hair. Benavidez directed T.C. to rub her vagina against a bed and a chair. He offered T.C. money and candy to put her mouth on his penis, but she refused. Benavidez masturbated to ejaculation in front of T.C., and he frequently kissed her on the lips. He showed her pictures of naked adults on the computer and the television. Benavidez made T.C. “pinky promise” not to tell, and he gave her money and candy “to touch [her] in wrong spots.”
S.H., who was about eight years old at the time of the incidents, initially liked Benavidez, but he showed her and T.C. movies with people having sex. He also showed her and T.C. his penis a few times. On one occasion, Benavidez held his penis and wiggled it up and down. He gave them gifts and candy and made them “pinky promise” not to tell. S.H. initially lied to her parents because she was scared but eventually told them the truth.
A.L., who was 10 years old at the time of the incident (December 6, 1998), was playing Monopoly with T.C. and Benavidez. Benavidez had a special rule that if someone landed on a certain spot, the person had to show their “private parts.” During one of their games, Benavidez pulled down his pants and showed them his penis. Benavidez told them he would give them money if they showed him their vaginas.
That night or the next evening, T.C. and A.L. approached C.C. with a whiteboard that read, “Uncle Rey shows his wiener.” C.C. angrily wiped the words off the whiteboard, and T.C., sensing her mother’s emotion, backed away. After T.C. told her mother to forget it, A.L. bravely stated, “‘No, [T.C.] We have to tell.’” C.C. went to R.H.’s house and told R.H. what T.C. and A.L. told her that Benavidez did to them. R.H. later spoke with her daughter. R.H. told Benavidez to move out. After C.C. spoke with her daughter further and assured her she did nothing wrong, C.C. called the police. T.C.’s stomach felt better after she told her mother what Benavidez did to her because “[she] felt like [she] didn’t have any more secrets in it.”
Officer Nicholas Vella went to C.C.’s home where he spoke with C.C. and R.H. He also spoke with T.C. and S.H. and tape recorded their responses. T.C. told Vella that Benavidez exposed his penis to her, S.H., and A.L. She stated he touched her vagina but did not put his finger inside her vagina. T.C. did not tell Vella Benavidez put his penis in her vagina. S.H. confirmed Benavidez exposed his penis to the three girls.
Detective Tom Weizoerick arranged for and took the victims to be interviewed by the Child Abuse Services Team (CAST) the next day. As relevant here, T.C. initially said Benavidez did not put his penis insider her vagina but later said he did.
DVDs of the interviews were played for the jury.
An information, later amended by interlineation, charged Benavidez with sexual intercourse or sodomy with a child 10 years or younger—sexual intercourse, T.C. (Pen. Code, § 288.7, subd. (a)) (count 1), oral copulation or sexual penetration with a child 10 years or younger—digital penetration, T.C. (§ 288.7, subd. (b)) (count 2), continuous sexual abuse, T.C. (§ 288.5, subd. (a)) (count 3), attempted lewd act upon a child under 14 years of age, S.H. (§§ 664, subd. (a), 288, subd. (a)) (count 4), and misdemeanor indecent exposure after unlawful entry (§ 314, subd. (1)) (count 5). As to counts 1, 2, and 3, the information alleged Benavidez had substantial sexual conduct with a child, T.C. (§ 1203.066, subd. (a)(8)).
All further statutory references are to the Penal Code, unless otherwise indicated.
Before trial, the prosecutor moved to admit prior sexual offense evidence concerning Benavidez’s daughter, A.B., pursuant to Evidence Code section 1108. The prosecutor sought to admit evidence that in approximately 1992, Benavidez masturbated three times in front of A.B., who was then about six or seven years old. Benavidez opposed the motion.
At the hearing on the motion, the prosecutor explained she sought to admit evidence Benavidez masturbated in front of A.B. When the trial court stated, “No allegations of touching?” the prosecutor responded, “That’s correct.” After hearing counsels’ argument, the court explained evidence Benavidez masturbated in front of A.B. was relevant to the charged offenses, the evidence would not consume an undue amount of time, and the evidence’s probative value outweighs its prejudicial effect.
A.B., 24-years-old at the time of trial, testified for the prosecution. When the prosecutor asked A.B. what changed her relationship with her father, she replied, “Do I say he molested me?” The prosecutor asked A.B. to explain what he did to her. A.B. replied, “He touched me.” The prosecutor inquired whether Benavidez had ever exposed himself to her. A.B. stated that when she was six or seven years old, Benavidez made her watch him masturbate to ejaculation. A.B. claimed she only remembered this happening one time. When the prosecutor asked her whether Benavidez acted inappropriately on any other occasions, A.B. replied, “There was one time just -- I remember him going down to touch me but then I moved him and he stopped.” Defense counsel did not object. On cross-examination, defense counsel questioned A.B. about the touching, and A.B. explained Benavidez “touch[ed] [her] private area.”
T.C. initially testified Benavidez’s penis never penetrated her vagina; he only rubbed it on her vagina. T.C. later admitted she told the CAST interviewer he put his penis inside her vagina, and she could not explain why she told a police officer his penis did not go inside her vagina.
The prosecutor also offered C.’s testimony. C. testified Benavidez paid special attention to T.C. and “always” told her to sit on his lap. He explained on one occasion he, T.C., and Benavidez were in the pool and as Benavidez lay on a raft, T.C. straddled Benavidez and grabbed his penis, he said “Ah, ” and C. told T.C. to get off Benavidez. C. also said Benavidez would direct him to type letters into the computer and pornographic websites would “pop[] up.”
The prosecutor also offered Vella’s testimony concerning his interviews with the victims and their mothers. Vella admitted it was the first time he interviewed a child in a sexual molestation case. Vella said he did not ask T.C. any questions about the specifics of the alleged molestations. Additionally, Vella testified it was his personal practice to record interviews and use the tape to refresh his recollection of the interviews as he prepares his police report. Vella stated it his practice to then erase the tape. He admitted it is not his employer’s common practice to erase tapes. Vella stated he had no ill intent when he erased the tapes. Vella concluded by stating he knew a detective would interview the victims again.
Benavidez offered testimony concerning his residences during the applicable time period. With the exception of one August evening, he rented a motel room in Buena Park from July 12, 2007, to September 14, 2007. He rented a room at a friend’s residence from September 2007 to March 2008.
Benavidez also offered the testimony of a computer forensic expert who testified he examined a copy of the computer hard drive from T.C.’s home. The expert testified he determined the computer had been used to visit pornographic websites on 37 days over the history of the computer, 2006 to 2008. The expert explained that on various days five MySpace accounts and three e-mail accounts were accessed just before or just after visiting pornographic websites. The expert also said preteen girl websites were visited in close temporal proximity to visiting pornographic websites.
Deborah Aldana testified for the defense. Aldana stated she was Benavidez’s girlfriend 18 years before trial, and he cared for A.B. for a couple months during that time. She never suspected any inappropriate behavior between them.
The investigator who interviewed A.B. testified A.B. told him she had seen Benavidez masturbate. She did not tell him that Benavidez touched her inappropriately. On cross-examination, the investigator stated he did not ask A.B. whether Benavidez touched her inappropriately.
A forensic scientist testified she did not find any semen or vaginal fluid on the items recovered from the home. A board certified sexual assault registered nurse examiner testified she reviewed T.C.’s forensic records and watched a DVD of the sexual assault examination and opined the results were within normal limits.
Benavidez testified on his own behalf. He admitted that when A.B. was six years old she caught him masturbating. He denied ever touching A.B. inappropriately. Benavidez stated he lived with C.C. and her family from May 2007 to July 2007, but he and C.C. argued and he moved out. He moved first to a motel, then to his friend’s house, and finally to R.H.’s house. He explained they resolved their differences in late 2007, and while he lived with his friend, he visited C.C. approximately four times. Benavidez said that while he lived at R.H.’s house, C.C. frequently invited him to her house to smoke marijuana with her.
Benavidez testified he babysat C.C.’s three children one time for three hours and a few times for shorter periods while C.C. ran errands, but he never watched T.C. alone. He explained that when he lived at R.H.’s house, he was alone with T.C. and S.H. two times while R.H. ran errands, and on one occasion he babysat S.H. alone for one hour.
Benavidez claimed he did not know how to use a computer, did not have an e-mail account, did not have a MySpace page, and did not ever use the computer in C.C.’s home office. He stated he caught C. looking at pornography on the computer and T.C. walked into the room. He said that on another occasion he caught T.C. looking at pornography on the computer. He claimed that on another occasion, he, C. and T.C. were watching television and T.C. turned the channel to pornography. He described another occasion when he, C., and T.C. were in the pool and he heard C. say a certain word and T.C. would pull down her shorts. Benavidez also described an evening in July 2008 at the C.C. residence with everyone home when he helped T.C. do a flip and she kicked Benavidez in the testicles. He told her she “broke [his] balls, ” she said, “‘Let me see, ’” and he replied, “‘Yeah, right.’” She persisted, and when he grabbed the elastic on his shorts, T.C. and A.L. turned their heads, he snapped the elastic, and they laughed. Benavidez stated C.C. confronted him the following day because T.C. told her mother that he had exposed himself, and R.H. asked him to move out. He lived at his brother’s house until he was arrested the following month.
Benavidez denied exposing himself to T.C. or S.H., fondling T.C., having T.C. sit on his lap, masturbating to ejaculation in front of T.C., ejaculating on T.C., or penetrating T.C. He denied offering the girls money to touch him or have them show him their genitalia. He denied all their accusations.
On cross-examination, Benavidez testified detectives interviewed him twice the day he was arrested. He admitted that during the first interview he did not tell detectives T.C. kicked him in the testicles while trying to do a flip. During the second interview he told detectives T.C. was “special.” He stated T.C. “begged” him to “flash her, ” and he conceded with great regret that he succumbed to her request.
After the defense rested, the trial court considered Benavidez’s pre-trial motion to dismiss based on the destruction of evidence—the audiotape of Vella’s interview with T.C. After hearing counsels’ argument, the trial court denied the motion. The court explained Vella did not act in bad faith when he erased the audiotapes of his interviews with T.C. and S.H. The court also stated any exculpatory value to the audiotapes was not known to Vella until later, at the CAST interview. The court concluded by stating there was comparable evidence, Vella’s report, the preliminary hearing transcript, the CAST interviews, and witness testimony.
On Benavidez’s motion, the trial court dismissed the substantial sexual conduct allegation as to counts 1 and 2. On the prosecutor’s motion, the trial court dismissed count 3.
The prosecutor then moved to amend count 4 to name A.L. instead of S.H pursuant to section 1009. As support for the amendment, the prosecutor relied on A.L.’s testimony and her statements during her CAST interview where she stated Benavidez offered her money to expose her vagina. Defense counsel objected to the amendment on procedural and substantive grounds. With respect to the procedural grounds, defense counsel argued the prosecutor was prohibited from amending count 4 because at the preliminary hearing the magistrate dismissed count 5 concerning A.L. As to the substantive argument, defense counsel argued Benavidez was prejudiced because he was exposed to increased punishment; counsel conceded he had notice of the charge and was not prejudiced in that respect.
After a short break, the trial court stated it had read the relevant case law and reviewed the preliminary hearing transcript. The prosecutor argued the magistrate erred in dismissing count 5 because the prosecutor did offer evidence Benavidez offered A.L. money to expose her genitalia. When the court asked the prosecutor why when she filed the information she did not name A.L. as the victim in count 4, the prosecutor admitted it was an “oversight.” After the court tried to summarize defense counsel’s argument for him, counsel asserted there was not sufficient evidence at the preliminary hearing Benavidez committed count 4 against A.L. Counsel also contended the prosecutor should have filed a motion to reinstate the complaint (§ 871.5) or filed an amended information, which would have permitted Benavidez to move to set aside the information (§ 995). The court mused it could be a clerical error and there was a preliminary hearing where the prosecutor offered evidence to support count 5 regarding A.L. Defense replied Benavidez was prejudiced because “there’s an extra count against [him] that [he] can’t challenge at all pretrial because the people are not amending pretrial.” Counsel added that the prosecutor deprived Benavidez of the substantial right in challenging count 4 against A.L. pretrial by way of a section 995 motion. Distinguishing some of the relevant case authority the court opined there was evidence at the preliminary hearing to support count 5 concerning A.L.
After the prosecutor stated Benavidez had notice she may amend count 4 before trial started, the court responded Benavidez’s argument is he was prevented from challenging count 4 by way of a section 995 motion. The prosecutor asserted the trial court should review the preliminary hearing transcript. The court began to explain it could not go back, the prosecutor interrupted and stated there was evidence at the preliminary hearing supporting count 5 concerning A.L. Defense counsel responded the trial court “isn’t sitting, and shouldn’t be sitting, as a reviewing court” to determine whether there was sufficient evidence to hold Benavidez on count 5 as to A.L.
The trial court explained that it wanted to make clear for the record it did not “review the preliminary hearing transcript with the mindset that [it] [had] [the] authority to now sit as a reviewing court as a quasi [section] 995 for purposes of analyzing this amendment to proof request.” The court characterized the relevant case authority as stating the prejudice analysis required the court to determine what the defendant “missed out on, ” which in this case is the inability to bring a section 995 motion. Defense counsel repeated the only judicial finding on this issue was the magistrate’s determination there was insufficient evidence to hold Benavidez on count 5, and the trial court could not sit as a reviewing court on that decision. The trial court permitted the prosecutor to amend count 4 to name A.L. because Benavidez’s substantial rights were not prejudiced by the amendment.
The trial court stated: “the defense was put on notice before the trial this was going [to] happen. The defense had the opportunity to examine [A.L.], as well as any other folks that might have any relationship to that new amended count. [¶] The evidence that the court heard certainly supports the amendment. The preliminary hearing transcript supports that. The only reason I put that on the record is just in case. I’m not saying that my ruling is based on that. I’m just saying that if for some reason another reviewing court were to want to then, as some courts have, look at the evidence in the preliminary hearing transcript and in case my opinion of the preliminary hearing has... any weight at all, that’s the only reason I mentioned it. That’s an aside. That’s independent of all the other grounds that I’m making my ruling on but I just throw that out there for that purpose. But I would come to that conclusion if I never even read the preliminary hearing transcript.” The court concluded Benavidez had notice of the accusation and his due process rights were not violated.
The jury convicted Benavidez of counts 1, 2, 4, and 5. After denying Benavidez’s new trial motion, the trial court sentenced him to a total prison term of 44 years as follows: 25 years to life on count 1, a consecutive term of 15 years to life on count 2, and a consecutive upper term of four years on count 4. The court ordered him to pay a $300 fine pursuant to section 290.3.
DISCUSSION
I. CALCRIM No. 3500, “Unanimity”
Benavidez argues the trial court erroneously instructed the jury with a modified version of CALCRIM No. 3500 because the instruction did not reference count 5, and it instructed the jury to perform the unanimity analysis just once, instead of for each of the counts. Neither claim has merit.
“When a defendant is charged with a single offense, but there is proof of several acts, any one of which could support a conviction, either the prosecution must select the specific act relied upon to prove the charge, or the jury must be instructed that all the jurors must agree that the defendant committed the same act or acts. [Citation.] When the prosecutor does not make an election, the trial court has a sua sponte duty to instruct the jury on unanimity. [Citation.]” (People v. Mayer (2003) 108 Cal.App.4th 403, 418.)
Here, the trial court instructed the jury with CALCRIM No. 3500, “Unanimity, ” as follows: “The defendant is charged with the crimes as alleged in [c]ounts 1, 2, and 4 sometime during the period of January 27, 2008[, ] to July 31, 2008. [¶] The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed.” We now address Benavidez’s claims.
A. Count 5
Benavidez argues CALCRIM No. 3500 erroneously failed to include count 5. The Attorney General concedes the error but argues the error was harmless. We agree with the Attorney General.
The information charged Benavidez with count 5 as follows: “On or about January 27, 2008, in violation of [s]ection 314[, subdivision] (1)... (indecent exposure after unlawful entry), a misdemeanor, ... Benavidez did willfully, lewdly, and unlawfully expose his/her person and private parts after entering without consent an inhabited dwelling house, a place where there were present other persons to be offended and annoyed thereby.” At a pre-trial hearing, the prosecutor indicated count 5 concerned all three alleged victims. At trial, the prosecutor offered evidence that Benavidez exposed his penis to T.C., S.H., and A.L. on numerous different occasions. With respect to count 5, the prosecutor focused on S.H. during closing argument. The prosecutor argued S.H. told the CAST interviewer that “‘[Benavidez] showed [her] and [T.C.] his private[.]’” The prosecutor stated, “There you go, indecent exposure.” The prosecutor added S.H. said it happened “a couple times.” A little later, the prosecutor argued, “And so you go back and you plug it into count 5, did [Benavidez] willfully expose his genitals in the presence of [S.H.] or another who might be offended or annoyed?” (Italics added.) The prosecutor then restated the statutory elements mentioning only S.H. The prosecutor concluded by asking the jury to convict him of count 5 based on “the crimes of indecent exposure.” (Italics added.) Throughout closing argument however, the prosecutor mentioned several other incidents the jury could rely on to convict Benavidez of count 5.
The Attorney General concedes the trial court erred in failing to include count 5 in the modified version of CALCRIM No. 3500. The Attorney General argues, however, Benavidez was not prejudiced by the error. We agree.
We must reverse the judgment based on the failure to give a unanimity instruction unless the error is harmless beyond a reasonable doubt. (People v. Wolfe (2003) 114 Cal.App.4th 177, 186.) “The erroneous failure to give a unanimity instruction is harmless if disagreement among the jurors concerning the different specific acts proved is not reasonably possible.” (People v. Napoles (2002) 104 Cal.App.4th 108, 119.) “Where the record provides no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless. [Citation.] Where the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless. [Citation.]” (People v. Thompson (1995) 36 Cal.App.4th 843, 853.).
Here, the case was a credibility contest between the victims and Benavidez. The prosecutor offered evidence Benavidez sexually molested and exposed himself to T.C., S.H., and A.L. Benavidez denied all the victims’ accusations. Left with believing the young girls or Benavidez, the jury chose the young girls. The jury necessarily concluded Benavidez committed all the acts if he committed any, and therefore he was not prejudiced by the trial court’s failure to include count 5 in the modified version of CALCRIM No. 3500.
Relying on People v. Milosavljevic (2010) 183 Cal.App.4th 640, 649 (Milosavljevic), Benavidez argues that because there was significant uncertainty in the victims’ testimony it cannot be concluded beyond a reasonable doubt that if the jury found he committed one act he committed all the acts. Nearly all the asserted inconsistencies concern matters only tangentially related to whether Benavidez actually exposed himself to the victims. The only alleged inconsistencies involving indecent exposure concern whether S.H. was present when Benavidez exposed himself to T.C., and how he used the rules of a board game to carry out his deviant behavior. Milosavljevic is inapposite as it involved uncertainties concerning the specific circumstances of each illegal act. (Id. at p. 648.) Therefore, Benavidez was not prejudiced by the error.
B. Instructional Language
Benavidez contends the modified version of CALCRIM No. 3500 allowed the jury to convict him of all three counts based solely on one act. The Attorney General contends Benavidez forfeited appellate review of this issue because he did not object to the instruction and the instruction was not fatally flawed. Benavidez concedes he did not object but raises numerous grounds to preserve the issue for appellate review. We will address the merits of his claim. (§ 1259; People v. Williams (1998) 61 Cal.App.4th 649, 657 [addressing the merits of a claim, despite its forfeiture, because defendant asserted ineffective assistance of counsel].)
The correctness of jury instructions is determined from the entire charge by the trial court and not from consideration of part or parts of an instruction. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) We assume the jurors are intelligent persons capable of understanding and correlating all jury instructions given them. (People v. Guerra (2006) 37 Cal.4th 1067, 1148.)
We agree the modified version of CALCRIM No. 3500 is not a model of clarity. But we conclude Benavidez has not shown the trial court’s unanimity instruction was reasonably likely to have been interpreted by the jury in the manner he suggests. (People v. McPeters (1992) 2 Cal.4th 1148, 1191, overruled on other grounds in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.)
First, a reading of the last sentence, while certainly susceptible to Benavidez’s interpretation, is more reasonably interpreted to mean the jury could not convict him of any of the offenses unless it agreed on the acts underlying the basis for each of the separate offenses. Second, the remaining instructions correctly informed the jury, both prior to and after trial, the prosecutor bore the burden of proving beyond a reasonable doubt Benavidez committed each statutory element of each separate offense before the jury could find him guilty of those offenses. The trial court correctly instructed the jury on each of the statutory elements it must find to convict Benavidez of each of the separate offenses. Finally, counsels’ arguments correctly explained the relevant law. Thus, under the circumstances of this case, a reasonable jury would have understood it was required to find Benavidez had committed each of the requisite elements for the respective offenses beyond a reasonable doubt prior to finding him guilty on each of the counts. We simply cannot conclude the jury convicted him of four separate and different offenses, based on one act.
Benavidez again relies on Milosavljevic, supra, 183 Cal.App.4th 640, to argue the modified version of CALCRIM No. 3500 was legally erroneous. The Milosavljevic court addressed the same issue we are confronted with here. But in that case, the first paragraph of the modified version of CALCRIM No. 3501 stated: “‘You all agree that the People have proved that the defendant committed at least one of these acts and you all agree which act he committed for each offense....’” (Italics added.) The court concluded it was not reasonably likely the jury interpreted the instruction erroneously because the jury had to agree on the act for “each offense.” Benavidez claims that because the modified version of CALCRIM No. 3500 given here did not include the same language, it was legally erroneous. As we explain above, based on the entire charge, we conclude it was not reasonably likely the jury interpreted the instructions in the manner he suggests.
II. Destruction of Evidence
Benavidez argues his due process rights were violated when Vella erased the audiotapes of his interview with the alleged victims. Not so.
“‘Law enforcement agencies have a duty, under the due process clause of the Fourteenth Amendment, to preserve evidence “that might be expected to play a significant role in the suspect’s defense.” [Citations.] To fall within the scope of this duty, the evidence “must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” [Citations.] The state’s responsibility is further limited when the defendant’s challenge is to “the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” [Citation.] In such case, “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” [Citations.] [¶] ‘On review, we must determine whether, viewing the evidence in the light most favorable to the superior court’s finding, there was substantial evidence to support its ruling. [Citation.]’ [Citations.]” (People v. Carter (2005) 36 Cal.4th 1215, 1246.)
Here, we conclude the trial court properly denied Benavidez’s motion to dismiss based on the destruction of evidence. Substantial evidence supports the trial court’s conclusion there was no evidence Vella knew whether the audiotape possessed any exculpatory value. Vella testified he did not ask T.C. any specifics about the alleged molestations, including whether Benavidez put his penis inside T.C.’s vagina. The record supports the court’s conclusion Vella did not learn this was an issue until the CAST interview, after he erased the audiotape. With respect to Benavidez’s claim Vella knew there were inconsistencies between T.C.’s statements and what C.C. said T.C. told her, again Vella stated he did not conduct an in-depth interview because he knew a detective would later investigate the case.
Additionally, substantial evidence supports the court’s finding there was comparable evidence to dispute whether Benavidez put his penis inside T.C.’s vagina. The jury heard T.C.’s testimony where she initially denied Benavidez penetrated her and later stated he did. The jury also heard an audiotape of the CAST interview where she first denied and then agreed he penetrated her and defense counsel could have impeached T.C. with the CAST interview. In other words, the jury knew there were inconsistencies in T.C.’s testimony.
Finally, the record is void of any evidence Vella erased the audiotape in bad faith. Although it was not his employer’s common practice, Vella testified that after he listened to the audiotape and prepared his police report, he erased the audiotape. He did this in every case. He asserted that although his police report did not include everything on the audiotape, his police report was a fair representation of the interview. Thus, the trial court properly denied Benavidez’s dismissal motion.
III. Evidence Code section 1108
Benavidez asserts the trial court erroneously admitted evidence that in approximately 1992, he made his daughter, A.B., watch him masturbate to ejaculation. We disagree.
We note Benavidez only complains about the admission of evidence concerning him masturbating. The prosecutor neither in her moving papers nor at the Evidence Code section 402 hearing stated she sought to admit evidence of an inappropriate touching. At trial, when A.B. testified Benavidez touched her, defense counsel did not object. And defense counsel cross-examined A.B. about the touching. On appeal, Benavidez primarily argues the trial court erroneously admitted evidence he masturbated in A.B.’s presence, although he does occasionally mention the touching. He claims generally this issue is preserved for appellate review because he objected before trial, although he concedes he did not further object at trial. And he does not specify whether, if at all, he objected to admission of the evidence he inappropriately touched A.B. Because the trial court did not rule on the admissibility of the evidence of touching, and Benavidez did not later object to admission of this evidence, we limit our discussion to whether the court properly admitted evidence Benavidez made A.B. watch him masturbate.
Evidence Code section 1101, subdivision (a), prohibits the use of disposition or propensity evidence to prove a defendant’s conduct on a specific occasion. (People v. Falsetta (1999) 21 Cal.4th 903, 911.) However, Evidence Code section 1108, subdivision (a), states, “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] [s]ection 1101, if the evidence is not inadmissible pursuant to [Evidence Code] [s]ection 352.” Evidence Code section 1108 authorizes a trial court to admit “bad conduct evidence... to prove ‘predisposition’ to commit sex crimes.” (People v. Harris (1998) 60 Cal.App.4th 727, 730 (Harris).) Two of those crimes are indecent exposure (§ 314, subd. (1)), and lewd and lascivious acts on a minor (§ 288, subd. (a)).
Evidence Code section 352, however, authorizes a trial court to exclude prior sexual offenses evidence. “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) We are mindful that “‘“[t]he prejudice which [Evidence Code] [section 352] is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.” [Citations.] “Rather, the statute uses the word in its etymological sense of ‘prejudicing’ a person or cause on the basis of extraneous factors.”’ [Citation.] Painting a person faithfully is not, of itself, unfair.” (Harris, supra, 60 Cal.App.4th at p. 737.) “We review a challenge to a trial court’s choice to admit or exclude evidence under [Evidence Code] section 352 for abuse of discretion. [Citation.]” (People v. Branch (2001) 91 Cal.App.4th 274, 282 (Branch).)
In Harris, supra, 60 Cal.App.4th at pages 737-741, the court articulated the following factors to determine whether evidence of prior sexual acts was properly admitted pursuant to Evidence Code section 1108: (1) the probative value of the evidence; (2) the inflammatory nature of the evidence; (3) the possibility of confusion of the issues; (4) the amount of time involved in introducing and refuting the evidence of uncharged offenses; and (5) remoteness in time of the uncharged offenses.
A. Relevance
“[E]vidence of a ‘prior sexual offense is indisputably relevant in a prosecution for another sexual offense.’ [Citation.]” (Branch, supra, 91 Cal.App.4th at pp. 282-283.) “The charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in [Evidence Code] section 1108.” (People v. Frazier (2001) 89 Cal.App.4th 30, 40-44 (Frazier), fn. omitted.)
Here, evidence that Benavidez made A.B. watch him masturbate to ejaculation was highly relevant to the charged offenses. T.C. testified Benavidez masturbated to ejaculation in front of her, and S.H. said he exposed his penis to her and stroked it in an up and down motion. Thus, the masturbation evidence was relevant.
B. Inflammatory
In Harris, the court, relying on People v. Ewoldt (1994) 7 Cal.4th 380, “deemed it important in evaluating prior uncharged acts pursuant to [Evidence Code] section 352, whether ‘[t]he testimony describing the defendant’s uncharged acts... was no stronger and no more inflammatory than the testimony concerning the charged offenses.’” (Harris, supra, 60 Cal.App.4th at pp. 737-738.)
Benavidez contends the prior sexual offense evidence was highly inflammatory because “it elevated [him] from a mere pedophile to an incestuous pedophile.” The evidence Benavidez masturbated to ejaculation was no more inflammatory than the charged offenses. The jury heard evidence Benavidez digitally penetrated T.C.’s vagina, put his penis inside her vagina, and rubbed his penis on her vagina. But this was not the most inflammatory evidence the jury heard. The jury heard evidence Benavidez ejaculated on her stomach and in her hair. The jury heard evidence eight-year-old T.C. tried to clean semen out of her hair with a wet paper towel. Evidence he made his young daughter watch him masturbate to ejaculation was no more inflammatory than this evidence.
C. Confusion of the Issues
It is possible the risk of juror confusion may increase when uncharged offenses are introduced as evidence. “If the prior offense did not result in a conviction, that fact increases the danger that the jury may wish to punish the defendant for the uncharged offenses and increases the likelihood of confusing the issues ‘because the jury [has] to determine whether the uncharged offenses [in fact] occurred.’ [Citation.]” (Branch, supra, 91 Cal.App.4th at p. 284.) “This risk, however, is counterbalanced by instructions on reasonable doubt, the necessity of proof as to each of the elements of a lewd act with a minor, and specifically that the jury ‘must not convict the defendant of any crime with which he is not charged.’” (Frazier, supra, 89 Cal.App.4th at p. 42.)
Here, the prior sexual misconduct evidence concerned one victim, not involved in the charged offenses, on one occasion. Contrary to Benavidez’s claim otherwise, this evidence simply did not create a “‘trial within a trial.’” Additionally, any remaining risk of confusion was sufficiently countered by the trial court’s instructions. The trial court instructed the jury on the elements of the charged offenses, reasonable doubt, and the proper use of evidence of prior sexual offenses. Benavidez points to nothing in the record to indicate the jury was confused by T.C.’s testimony. (Branch, supra, 91 Cal.App.4th at p. 284.)
D. Amount of Time
“Conceivably a case could arise in which the time consumed trying the uncharged offenses so dwarfed the trial on the current charge as to unfairly prejudice the defendant... and we cannot say spending less than a third of the total trial time on these issues was prejudicial as a matter of law.” (Frazier, supra, 89 Cal.App.4th at p. 42 [uncharged offense evidence that comprised 27 percent of the total trial transcript did not consume an unreasonable amount of time].) Here, A.B.’s testimony consisted of approximately 36 pages of reporter’s transcript, which was less than five percent of the total trial transcript. Additionally, her testimony required only one additional jury instruction. Thus, A.B.’s testimony did not consume an undue amount of time.
E. Remoteness
“Remoteness of prior offenses relates to ‘the question of predisposition to commit the charged sexual offenses.’ [Citation.] In theory, a substantial gap between the prior offenses and the charged offenses means that it is less likely that the defendant had the propensity to commit the charged offenses.” (Branch, supra, 91 Cal.App.4th at p. 285.) “No specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible. [Citation.]” (Id. at p. 284.)
Courts have found previous sexual offenses up to 30 years old not to be so remote in time as to preclude admission where the prior sexual misconduct and the charged offenses are similar. “[S]ignificant similarities between the prior and the charged offenses may ‘balance[] out the remoteness.’ [Citation.]” (Branch, supra, 91 Cal.App.4th at p. 285 [30-year gap between offenses was not remote where prior and current offenses “remarkably similar”]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [15- to 22-year gap was not remote where prior and current acts similar]; People v. Soto (1998) 64 Cal.App.4th 966, 991 [passage of 20 to 30 years did not automatically render prior incidents prejudicial where prior sexual offenses and charged offenses similar].)
Here, the prior sexual misconduct occurred approximately 16 years before the charged offenses. The passage of 16 years does not automatically make the prior sexual offenses too remote when the prior sexual misconduct and the charged offenses are similar. As we explain above, the prior sexual offense evidence was similar to the evidence presented at trial. A.B., T.C., and S.H. all testified Benavidez masturbated in their presence. Benavidez’s reliance on Harris, supra, 60 Cal.App.4th 727, is misplaced. In that case, the court concluded prior sexual offense evidence was too remote because the 23-year-old prior offense and charged offenses were totally dissimilar and defendant had led a blameless life.
Finally, Benavidez complains the prior sexual misconduct evidence was unreliable and he was unable to defend himself against the charges because he could not call the person whom A.B. reported the misconduct to—Benavidez’s grandmother. First, his claim the evidence was unreliable is one of weight, not admissibility. Second, A.B. testified she reported the misconduct to her aunt. Because we have concluded the trial court properly admitted the prior sexual offense evidence, we also conclude Benavidez’s assertion his federal constitutional rights were violated has no merit.
IV. CALCRIM No. 1190
Benavidez contends the trial court erroneously instructed the jury with CALCRIM No. 1190, “Other Evidence Not Required to Support Testimony in Sex Offense Case” because the court did not define “complaining witness.” The Attorney General contends Benavidez forfeited appellate review of the issue and “complaining witness” has a common meaning. We agree with the Attorney General.
The trial court has a sua sponte duty to define terms that have a technical meaning peculiar to the law. “‘In the absence of a specific request, a court is not required to instruct the jury with respect to words or phrases that are commonly understood and not used in a technical or legal sense. [Citation.]... [Citation.] ‘If defendant thought the point needed additional clarification or explanation, defendant should have “requested appropriate clarifying or amplifying language” [citation]; absent such a request, the point is not preserved for appellate review.’ [Citation.]” (People v. Horning (2004) 34 Cal.4th 871, 908-909.)
Here, Benavidez concedes he did not request that “complaining witness” be defined. Thus, he has forfeited appellate review of the issue. Because, however, he claims his defense counsel was ineffective for failing to request “complaining witness” be defined, we will address the merits of his claim.
CALCRIM No. 1190, “Other Evidence Not Required to Support Testimony in Sex Offense Case, ” states, “Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone.” (Italics added.) The word “complain” is a commonly understood word and means “to make a formal accusation, charge, or complaint.” (Webster’s Third New International Dictionary (1981) p. 464.) The word “witness” too is commonly understood and means “one that gives evidence regarding matters of fact under inquiry.” (Id. at p. 2627.) The words read together would be commonly understood to mean the person who accuses or charges another with something. We simply cannot conclude “complaining witness” has a technical meaning peculiar to the law.
We note the California Supreme Court in People v. Gammage (1992) 2 Cal.4th 693, 700, concluded CALJIC No. 10.60, CALCRIM No. 1190’s predecessor, was legally correct. However, that instruction did not include the phrase “complaining witness.”
Benavidez complains CALCRIM No. 1190 lowered the prosecutor’s burden of proof because the jury could have convicted him based on A.B.’s testimony, or convicted him of a count alleged as to one victim based on the testimony of a victim not a witness to the act. It was not reasonably likely the jury interpreted CALCRIM No. 1190 in the manner Benavidez suggests.
First, the trial court instructed the jury that it could not convict Benavidez based on A.B.’s testimony alone. Second, CALCRIM No. 1190 states that “Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone.” When read logically in its entirety, the language undisputedly leads to the conclusion that a jury may convict a defendant of a sexual assault crime based on the crime victim’s testimony. We simply cannot conclude the jury convicted Benavidez of penetrating T.C. with his finger and penis, or trying to manipulate A.L. to show him her vagina, based solely on S.H.’s testimony. Additionally, the trial court instructed the jury on the elements of the charged offenses, and that the prosecutor had to prove each of the elements of the charged offenses beyond a reasonable doubt. Thus, CALCRIM No. 1190 was proper.
V. Cumulative Error
Benavidez contends the cumulative effect of the errors requires reversal. We conclude there were no errors. Therefore, his claim the cumulative effect of the errors was prejudicial has no merit.
VI. Information Amendment
Benavidez asserts the trial court erroneously permitted the prosecutor to amend the information to allege A.L., not S.H., was the victim in count 4. We agree.
“Both the Sixth Amendment of the federal Constitution and the due process guarantees of the state and federal Constitutions require that a criminal defendant receive notice of the charges adequate to give a meaningful opportunity to defend against them. [Citations.]” (People v. Seaton (2001) 26 Cal.4th 598, 640.) “[T]he information has a ‘limited role’ of informing defendant of the kinds and number of offenses; ‘the time, place, and circumstances of charged offenses are left to the preliminary hearing transcript, ’ which represents ‘the touchstone of due process notice to a defendant.’ [Citations.]” (People v. Jones (1990) 51 Cal.3d 294, 312 (Jones).) “‘Where... the particulars are not shown by the preliminary hearing transcript, the defendant is not on notice in such a way that he has the opportunity to prepare a meaningful defense.’” (People v. Graff (2009) 170 Cal.App.4th 345, 366 (Graff).)
In California, a trial court has discretion to permit the amendment of an information “for any defect or insufficiency, at any stage of the proceedings.” (§ 1009.) There are two caveats to the exercise of that discretion: (1) the information “cannot be amended so as to change the offense charged, nor... so as to charge an offense not shown by the evidence taken at the preliminary examination” (ibid.), and (2) the amendment must not violate the defendant’s substantial rights. (Ibid.) On appeal, the defendant bears the burden of establishing the trial court abused its discretion in permitting an amendment to the information. (People v. Wimberly (1992) 5 Cal.App.4th 773, 795.)
Here, the felony complaint alleged Benavidez committed two counts of attempted lewd act on a child under 14 (§§ 664, 288, subd. (a)) against Jane Doe #2 (count 4) and Jane Doe #3 (count 5). At the preliminary hearing, the prosecutor indicated Jane Doe #1 was T.C., Jane Doe #2 was S.H., and Jane Doe #3 was A.L. The magistrate held Benavidez to answer on counts 1 through 4 but discharged count 5 for insufficient evidence. As relevant here, the information charged Benavidez with count 4, attempted lewd act upon a child under 14 years of age (§§ 664, subd. (a), 288, subd. (a)), as to Jane Doe #2. The information added count 5, misdemeanor indecent exposure after unlawful entry (§ 314, subd. (1)). At the beginning of trial proceedings, the prosecutor indicated S.H. was the victim in count 4. The prosecutor added however that at the close of evidence, she may amend the information to include A.L. in count 4. During opening argument, the prosecutor apparently stated she may amend count 4 to name A.L., and defense counsel objected. As we explain above more fully, the trial court permitted the prosecutor to amend count 4 to name A.L. because Benavidez had notice.
The Attorney General asserts Benavidez forfeited his due process argument because at the hearing on the motion, defense counsel acknowledged that before trial began Benavidez had notice the prosecutor may move to amend count 4 and thus he was not prejudiced on that basis. Benavidez responds he did argue his due process rights were violated, albeit for different reasons—he was exposed to increased punishment because he was unable to file a section 995 motion to challenge count 4. We conclude Benavidez preserved appellate review of the issue when he argued his due process rights were violated because he was unable to file a section 995 motion to set aside count 4.
Although a trial court may allow a prosecutor to amend the information to cure a defect or insufficiency, the court may not permit the prosecutor to amend the information to change the offense charged. Here, after the close of evidence, the trial court permitted the prosecutor to amend count 4 to charge Benavidez with the same offense, attempted lewd act upon a child under 14 years of age (§§ 664, subd. (a), 288, subd. (a)), but the prosecutor amended count 4 to name a new victim, A.L. This was not a mere cure of a defect or insufficiency. Although the offense remained the same, by alleging a new victim the prosecutor created a new crime. Had the count been included in the information, defense counsel may have had a different litigation strategy or cross-examined A.L. differently. (See Graff, supra, 170 Cal.App.4th at p. 365 [rejecting argument new evidence not new offense but only used to support existing charges].) Thus, the trial court erroneously permitted the prosecutor to amend count 4 to replace S.H. with A.L. as the victim.
Additionally, the amendment affected Benavidez’s substantial rights. The prosecutor admitted failing to include count 4 against A.L. was an oversight. Although defense counsel had notice the prosecutor may seek to amend count 4 to name A.L., defense counsel was unable to challenge the sufficiency of the evidence supporting count 4 by way of a section 995 motion. Had the prosecutor included count 4 against A.L. in the information, defense counsel could have filed a section 995 motion. Given the magistrate’s finding of insufficient evidence on count 5 against A.L., Benavidez had a reasonable chance of prevailing on his section 995 motion as to count 4 against A.L. Because Benavidez was denied that statutory right, his substantial rights were affected.
VII. Sufficiency of the Evidence-Count 1
Benavidez contends insufficient evidence supports his conviction on count 1 because T.C.’s testimony was inconsistent on whether he penetrated her. Not so.
“The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.] [¶] The insistence of some cases on greater specificity of a child victim’s testimony may reflect persistent doubts about the general credibility of that testimony. [Citations.] Yet, as explained above, it is not a proper appellate function to reassess the credibility of the witnesses. Moreover, it is now well established that a child’s testimony cannot be deemed insubstantial merely because of his or her youth. Thus, ‘under present law, no distinction is made between the competence of young children and that of other witnesses [citations].’ [Citations.]” (Jones, supra, 51 Cal.3d at pp. 314-315.)
Here, there was sufficient evidence Benavidez penetrated T.C.’s vagina with his penis. The jury heard evidence T.C. told the CAST interviewer that Benavidez put his penis inside her vagina. This was sufficient evidence to support his conviction on count 1. “The uncorroborated testimony of a single witness is sufficient to sustain a conviction.” (People v. Scott (1978) 21 Cal.3d 284, 296; see Evid. Code, § 411.) That T.C. at other times denied Benavidez penetrated her with his penis is of no consequence on appeal. (Jones, supra, 51 Cal.3d at pp. 314-315 [jury function to assess witness credibility].) Therefore, sufficient evidence supports Benavidez’s conviction on count 1.
VIII. Sex Offender Fine
Benavidez claims the trial court erroneously imposed the $300 sex offender fine. The Attorney General responds Benavidez forfeited appellate review of this issue. Benavidez responds it is an unauthorized act and his defense counsel was ineffective for failing to object. Although we agree he forfeited appellate review of this issue (People v. McMahan (1992) 3 Cal.App.4th 740, 750 (McMahan)), we will address the merits of his claim because he asserts his counsel was ineffective.
“In order to establish a violation of the right to effective assistance of counsel, a defendant must show that counsel’s performance was inadequate when measured against the standard of a reasonably competent attorney, and that counsel’s performance prejudiced defendant’s case in such a manner that his representation ‘so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ [Citations.] Moreover, ‘a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.’ [Citation.] Prejudice is shown when there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.] If defendant fails to show that he was prejudiced by counsel’s performance, we may reject his ineffective assistance claim without determining whether counsel’s performance was inadequate. [Citation.]” (People v. Sanchez (1995) 12 Cal.4th 1, 40-41, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421.)
Section 290.3, subdivision (a), provides: “(a) Every person who is convicted of any offense specified in subdivision (c) of [s]ection 290 shall, in addition to any imprisonment or fine, or both, imposed for commission of the underlying offense, be punished by a fine of three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars ($500) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine.”
Here, Benavidez claims that, but for defense counsel’s incompetence in failing to object to imposition of the section 290.3 fine based on his inability to pay, the trial court’s decision with respect to the fine would have been different. We agree.
As we explain above, section 290.3 requires imposition of the fine “unless the court determines that the defendant does not have the ability to pay the fine.” (§ 290.3, subd. (a).) “This language certainly indicates that consideration of the defendant’s ability to pay is a factor to be considered in imposing the fine.” (McMahan, supra, 3 Cal.App.4th at p. 749.) The trial court, however, is not required to first determine the defendant’s ability to pay before imposing the fine. Rather, the defendant has the burden to affirmatively argue and demonstrate why it should not be imposed. (McMahan, supra, 3 Cal.App.4th at pp. 749-750.)
Here, the record reflects the trial court made no findings on the record regarding Benavidez’s ability to pay the section 290.3 fine, and defense counsel made no objection at sentencing. The probation report, however, states the probation department conducted a financial evaluation of Benavidez and determined he did not have the ability to pay for the cost of preparing the probation report. Based on this information, counsel should have submitted evidence concerning Benavidez’s inability to pay the section 290.3 fine. Had defense counsel done so, we conclude, it is reasonably probable the trial court would have declined to impose it. (People v. Le (2006) 136 Cal.App.4th 925, 935-936 [concluding defendant received ineffective assistance from counsel who failed to object to trial court’s erroneous calculation of a restitution fine].) As such, remand is necessary to permit the trial court to reconsider its decision in this regard.
DISPOSITION
We reverse Benavidez’s conviction on count 4. We remand the matter to the trial court for consideration of whether Benavidez has the ability to pay the sex offender registration fine. In all other respects, the judgment is affirmed.
WE CONCUR: MOORE, J., FYBEL, J.