Opinion
E070702
02-03-2020
THE PEOPLE, Plaintiff and Respondent, v. TERRENCE FREDERICK BROWN, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1500044) OPINION APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Affirmed. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury found defendant and appellant, Terrence Frederick Brown, guilty of committing three sex offenses against Jane Doe: (1) a lewd act on a child under age 14, by means of force, duress, or fear (Pen. Code, § 288, subd. (b)(1); count 1); (2) rape by force, duress, or fear (§ 261, subd. (a)(2); count 2), and oral copulation by force, duress, or fear (§ 288a, subd. (c)(2)(A); count 12). Defendant was sentenced to 18 years in prison—the middle term of six years on count 1, plus full, consecutive six-year terms on counts 2 and 12. (§ 667.6, subd. (d).)
Unspecified statutory references are to the Penal Code.
The jury was unable to reach verdicts and the court declared a mistrial on 20 additional counts alleging sex offenses against Doe, namely, nine counts of forcible rape, charged in counts 3 through 11, and 11 counts of forcible oral copulation, charged in counts 13 through 23.
From June 1998 through June 2000, the period during which the information alleged and the jury was instructed that defendant allegedly committed count 1, six years was the middle-term sentence for violating section 288, subdivision (b)(1) (lewd act by force, duress or fear). (See Stats. 2010, c. 219 (A.B. 1844).)
In this appeal, defendant raises one claim of evidentiary error and two claims of sentencing error. He first claims the court erroneously refused to allow him to impeach Doe's trial testimony with evidence that she made approximately 12 prior false statements of fact to family members, including false claims of sexual abuse against Doe and others, perpetrated by persons other than defendant. He claims the exclusion of this evidence, coupled with the court's further refusal to allow his counsel to ask Doe whether she had ever made a false complaint of sexual abuse, violated his due process right to present a defense and thus deprived him of a fair trial. We conclude that this claim lacks merit. The alleged prior complaint evidence was properly excluded because there was no evidence that any of the prior complaints were false. Thus, there was also no evidentiary basis for asking Doe whether she had ever made a false complaint of sexual abuse.
Second, defendant claims his six-year term on his lewd act conviction in count 1 must be stayed under section 654, because the prosecutor urged the jury to base its guilty verdict in count 1 on any one of several of defendant's acts of rape or oral copulation. Thus, he claims, his lewd act conviction in count 1 may be based on the same acts underlying convictions in counts 2 and 12. This claim also lacks merit. Although no evidence shows that defendant committed a lewd act on Doe without also forcing Doe either to have sexual intercourse with him or to orally copulate him, substantial evidence supports the court's implied finding that count 1 is based on a separate and distinct act of rape or oral copulation than counts 2 and 12.
Third, defendant claims the matter must be remanded for the court to determine whether he is able to pay various fines and fees imposed at sentencing. We conclude that the court's failure determine that defendant was able to pay the fines and fees, if erroneous, was harmless beyond a reasonable doubt, because the record shows that defendant will be able to pay the fines and fees over time.
We therefore affirm the judgment in all respects.
II. BACKGROUND
A. Prosecution Evidence
1. Doe's Childhood Adoptive Home and Family
Doe was born in June 1987 and was 30 years old when she testified at trial in 2018. In 1992 or 1993, when Doe was five or six years old, Doe was fostered and later adopted by Valerie M., who had three older biological daughters, M., C1, and C2. M. is eight or nine years older than Doe, C1 is seven or eight years older, and C2 is six years older. Of her three adoptive sisters, Doe was closest to C1. When Doe was around eight years old, Valerie began physically and verbally abusing Doe, but Valerie treated M., C1 and C2 more kindly.
In 1999, when Doe was age 12 and in the seventh grade, Valerie, M., C1, C2, and Doe moved into defendant's four-bedroom, four-bathroom, one-loft, three-story house in Moreno Valley. Defendant was around age 22 at the time, and was M.'s boyfriend. Valerie slept in the third-floor in the loft, while defendant and M. shared the second-floor master bedroom and Doe, C1, and C2 had their own second-floor bedrooms. Doe lived in the house with her adoptive family, including defendant, until she completed the 10th grade. During this time, defendant's and M.'s young daughter, and C1's young daughter, also lived in the house, and, from time to time, Valerie had Japanese exchange students living in the house.
When she completed the 10th grade, Doe moved to Los Angeles, where she lived with her biological sister for two years, then she moved back to the Moreno Valley house and lived there until she was 18 years old, when she permanently moved out of the house. During the two years she lived in Los Angeles, Doe would visit her adoptive family in the Moreno Valley home for several weeks at a time. But the information alleged that counts 1, 2, and 12 occurred no later than June 2000, that is, before Doe moved to Los Angeles when she was 16 years old, or around June 2004 to June 2005.
2. Defendant's Ongoing Molestations of Doe
One day, when Doe was still 12 years old and in the seventh grade, Valerie took M., C1, and C2 to Disneyland, but left Doe at home with defendant as a form of punishment. Valerie told Doe to stay in her room, but defendant opened Doe's door and told her she could come out. Doe went downstairs to get something to eat, then she went to the second floor "TV room" and sat on a chair. When Doe was downstairs, defendant told Doe that Valerie did not really love Doe and was only caring for Doe for the money, but that he, defendant, cared about Doe and would look out for her.
After Doe went upstairs to the TV room, defendant came into the room with a pen or pencil, a pad of paper, and an alcoholic drink. He sat on a chair in front of Doe and began rapping, "How would it feels [sic] to taste your pussy." The first time he said it, his head was down, but the second time he said it, he looked at Doe, which made her feel "weird." He continued writing rap songs for the next 10 or 15 minutes.
Then, defendant approached Doe and began rubbing her shoulder; she told him to stop but he did it again and told her to be quiet. Next, he told Doe to take off her clothes and lie on the floor; she did so, and was scared. Defendant then removed his clothes and got on top of Doe. Again, Doe told him to stop, but he refused and put his penis inside of her for two to three minutes. Doe was crying during the intercourse. Immediately afterward, Doe took a shower and was still crying and bleeding from her vagina.
Doe testified that defendant made Doe orally copulate defendant and have sexual intercourse with him more than two times every month from the time Doe was 12 years old until she was 16 years old. The first few times, Doe told defendant "no," but the acts became routine and Doe did not feel that she could refuse defendant. Defendant threatened to "hurt" Doe if she disclosed the molestations to anyone, and he also told her that no one would believe her if she told anyone.
Doe testified that "every time" she and defendant had "a sexual encounter," "it was always, like, two to three minutes" in one of the bathrooms in the house. All of the bathrooms had locks on their doors. Defendant commonly made Doe orally copulate him before he made her "turn around" and have sexual intercourse with him. The incidents of oral copulation and sexual intercourse occurred "over and over and over, for years."
On one occasion, after the first time defendant had sexual intercourse with Doe in the TV room, defendant called Doe into the first floor bathroom. Doe insisted that she did not want to "do anything," but defendant became aggressive and put his hand around her neck, and choked her. Doe then had to turn around and place her hands on the toilet so defendant could have sexual intercourse with her for two to three minutes.
On another occasion, while the molestations were continuing, defendant told Doe to come into his bedroom, and Doe did so, knowing it meant she would have to have sexual intercourse with defendant. Doe was standing near the foot of the bed, and defendant was lying on the bed, wearing a partially-opened robe. Before anything happened, Valerie opened the partially-open door and asked Doe what she was doing in there. Defendant said he had asked Doe to clean the room. Without allowing Doe to say anything, Valerie punched Doe in the face multiple times and gave Doe two black eyes. C1 walked in and asked what was going on. Valerie told C1 that Doe was "in here with a grown-ass man, and she had no business being in here."
At trial, Valerie denied that the incident in defendant's bedroom occurred. But in a recorded telephone call before trial, the prosecutor asked Valerie about the time Doe and defendant were alone in a room together. During the call, Valerie explained that she was not home at the time, but that C1 told her what had happened. She claimed that both defendant and Doe got in trouble for being alone in a room together, and stated that Doe had "no business being in there." A trial, Valerie claimed she said that on the phone, only to get the prosecutor off of the phone, because she was busy and the prosecutor was "irritating" her.
3. Doe's Disclosure of the Molestations to J.P.
When Doe was 12 or 13 years old, she told one person, her best friend, J.P., that defendant was "raping" her. Doe asked J.P. not to tell anyone,, and J.P. complied. Doe and J.P. attended school together, and J.P. lived several houses from the Moreno Valley house.
J.P. testified that she and Doe met when J.P. was in the fifth grade and Doe was in the seventh grade. J.P. described Doe's relationship with Valerie as like that of "Cinderella," or "a housekeeper and maid-type relationship." Valerie would speak angrily to Doe and punished Doe for little things, but Valerie did not treat her biological daughters that way. J.P. also heard defendant say inappropriate things to Doe. For example, when Doe was 15 years old, J.P. heard defendant asked Doe whether Doe wanted to "get drunk later on."
J.P. recalled that, when J.P. was around 12 years old and Doe was 14, she and Doe were in J.P.'s room at J.P.'s house, talking, and J.P. asked Doe why Doe was treated so differently than her sisters. Doe explained that she had been a foster child and was adopted by Valerie. Then, Doe told J.P. that defendant made her perform oral sex on him. Doe was crying and asked J.P. not to tell anyone about their conversation, and J.P. did not.
4. Doe's Reporting of the Molestations to Police
In 2013, when Doe was 25 years old, Doe reported to police what defendant had done to her, 10 to 15 years earlier. Shortly before she reported defendant's actions to the police, Doe told Valerie and C1 what defendant had done to her, beginning when she was 12 years old. Valerie, C2, and M. never spoke with Doe again. C1 initially supported Doe and encouraged her to report defendant's actions, but several weeks after Doe disclosed the molestations to Valerie and C1, Doe and C1 got in to an argument, and Doe and C1 never spoke again.
The parties stipulated that, if Detective N. were called to testify, "she would state she interviewed [Doe]. During a separate phone call with [Doe], [Doe] told Detective [N.] the following: [¶] [Doe] decided to come forward because she is afraid that [defendant] is continuing to sexually abuse young girls. She stated that she knows [defendant] and [M.] have moved to Pennsylvania, and she believes that they may be staying with family members who have young girls. She stated she believes [M.] and [defendant] have been living in Pennsylvania for the last four years. She is fearful that [defendant] may be harming his own children because they are getting to the age she was when he started abusing her." B. Defense Case
At trial in 2018, M. and defendant were still together; they had been together since they were teenagers and had four children. In 2007, defendant lost his Moreno Valley home. Thereafter, M. moved to Pittsburgh, and defendant moved to Pittsburgh 12 to 18 months later. During the prosecution's case-in-chief, Doe acknowledged that, when she was in her early 20's, or around 2009 to 2010, she visited M., defendant, and their children in Pittsburgh.
Doe's three adoptive sisters, M., C1, and C2, testified that Doe was always loved by her adoptive family, but Doe often got into trouble, both at home and at school, for lying, getting into fights at school, and being disrespectful to teachers. They also testified that Doe frequently lied and was dishonest, had a reputation for dishonesty, and was not mistreated at home. C1 described Doe as "a bit of a storyteller." There was no privacy in the Moreno Valley home. And, during the years that Doe claimed defendant was molesting her—approximately 1999 to 2003—defendant was often not at home because he was traveling, both domestically and internationally, for his career as a rap artist. Defendant did not testify.
III. DISCUSSION
A. The Court Properly Refused to Allow Defendant to Impeach Doe's Trial Testimony with Doe's Prior Alleged Complaints or Statements of Fact, Because There Was Insufficient Evidence That Doe's Prior Complaints Were False
Defendant claims the court erroneously refused to allow him to impeach Doe's testimony with evidence that, on prior occasions, Doe had made false complaints or false statements of fact to C1, Valerie, and M., including but not limited to false complaints that individuals other than defendant had sexually molested or had attempted to sexually molest Doe and others. The court excluded the evidence on the ground there was no showing that any of the alleged statements were false. Defendant claims the exclusion of this impeachment evidence violated his due process right to present a defense and thus deprived him of a fair trial. He also claims the court erroneously refused to allow him to ask Doe whether she had ever made a prior false claim of sexual abuse. We conclude that all of the proffered impeachment evidence was properly excluded, because there was no showing that any of Doe's alleged prior statements were false.
1. Relevant Background
Defendant sought to introduce 12 allegedly false complaints or false statements of fact that he claimed Doe made, at various times before trial, including when Doe was a young child and when she was married and in her 20s, to either Valerie, C1, or M. Defendant claimed that Doe made some of the statements to two or more of these witnesses.
As proffered by the defense, Doe's alleged prior false complaints or statements of fact were: (1) " 'My birth mother was trying to have me killed for insurance money[;]" (2) "My mother-in-law [G.B.] was molesting my son[;]" (3) Doe's husband and daughter had "an inappropriate relationship[;]" (4) One day, while she was driving with her husband and stopped at a stoplight, "a black car stops, guys get out with guns drawn[;]" (5) Doe complained " 'about her mother's husband molesting her[;]" (6) Doe's birth sister's husband tried to touch Doe inappropriately when Doe was 14 or 15 years old; he waited until he and Doe were alone in the house, then he tried to molest Doe and he put his hands on Doe; (7) Doe's birth brother "was inappropriate" with Doe; he made her "model swimsuits" and made "vulgar remarks" to her; (8) Doe's birth mother's husband tried to molest Doe; he followed Doe around, and when they were alone he put his hands on her legs; (9) When Doe was 14 or 15 years old, her birth mother's husband tried to molest her. When her birth mother was not around, the husband would do everything he could to be left alone with Doe; (10) Doe's birth sister's husband molested Doe when Doe was around 11 or 12 years old; (11) when Doe 14 or 15 years old, her birth brother tried to molest her; he touched her breasts and butt, and made her model bathing suits in front of him; and (12) When Doe was 13 to 14 years old, Doe's birth mother's husband tried to rape Doe.
Defense counsel sought to introduce these statements through the testimony of Valerie, C1, or M. Counsel also sought permission to cross-examine Doe concerning whether she had ever made statements, or any false claim of sexual abuse. When the court asked counsel what evidence showed that the prior complaints were false, counsel noted that Doe did not report the alleged abuse to the police, and continued to allow the alleged perpetrators to care for her own children after she made the alleged false claims of abuse. Counsel did not offer to produce and could not produce any of the alleged perpetrators of Doe's complaints or prior abuse, or any of the persons who allegedly did what Doe had claimed they did.
The court excluded all of the proffered prior statements on the ground the defense offered insufficient evidence that any of the statements were false. The court explained: "I need more credible evidence from the defense attorney here as to the falsity of these various statements." The court analyzed the statements under Evidence Code section 352 and concluded that their probative value was "substantially lessened by not having a credible affirmation or confirmation of the actual falsity of the event." And, because there was no evidence that the prior statements were false, the court concluded that their probative value was "clearly outweighed" by the danger that their admission would confuse the issues, mislead the jury, or consume undue court time.
The court did not preclude Valerie, C1, or M. from testifying that Doe had a poor reputation for truthfulness and honesty (Evid. Code, § 780, subd. (e)), and these witnesses so testified.
2. Applicable Law and Analysis
As the parties agree, "a prior false accusation of sexual molestation is . . . relevant on the issue of the molest victim's credibility." (People v. Franklin (1994) 25 Cal.App.4th 328, 335.) Similarly, and more generally, evidence that a witness knowingly made a prior false report of a crime is relevant to the witness's credibility in accusing a defendant of a crime. (People v Hamlin (2009) 170 Cal.App.4th 1412, 1460.)
But a witness's prior complaints or reports of crimes have no bearing on the witness's credibility "unless it was also established that those prior complaints were false." (People v. Tidwell (2008) 163 Cal.App.4th 1447, 1457 (Tidwell).)
Further, trial courts have broad discretion to exclude relevant evidence if the court determines that its probative value is substantially outweighed by the probability that its admission will confuse the issues, mislead the jury, or consume undue court time (Evid. Code, § 352), and the court's exercise of this discretion will not be disturbed on appeal absent a showing that it was exercised in a patently absurd, arbitrary, or capricious manner that resulted in a manifest miscarriage of justice. (People v. Kurley (2018) 23 Cal.App.5th 513, 532.) A witness's alleged prior false complaints or statements, offered to impeach the witness's credibility, should be analyzed under Evidence Code section 352. (See Tidwell, supra, 163 Cal.App.4th at pp. 1457-1458.)
In Tidwell, the appellate court concluded the trial court did not abuse its discretion in excluding defense-proffered impeachment evidence that a witness against the defendant, who was on trial for raping the witness, among other charges, had previously accused other men of raping her. (Tidwell, supra, 163 Cal.App.4th at pp. 1451, 1457-1458.) The Tidwell court reasoned: "Although there was some evidence that [the witness] made inconsistent statements, there was no conclusive evidence that her prior rape complaints were false. The defense was unable to obtain evidence from the men that [the witness had previously] accused, and inferences could be drawn either way from the circumstances of the prior incidents and [the witness's] statements concerning the incidents. In addition to the weaknesses in the evidence concerning falsity of the rape complaints, admitting the evidence would have resulted in an undue consumption of time as the defense attempted to bolster its view and the prosecution introduced evidence that [the defendant] had raped another female student. We therefore cannot say that the trial court abused its discretion in excluding the evidence based on the weak nature of the evidence of falsity of the complaints and the confusion of the jury and consumption of time it would have engendered for the parties to embark on the task of litigating the truthfulness of [the witness's] prior complaints" (Id. at p. 1458; People v. Bittaker (1989) 48 Cal.3d 1046, 1097 [finding no abuse of discretion under Evid. Code, § 352 in trial court's exclusion of impeachment evidence based on facts similar to Tidwell's].)
Here too, the trial court did not abuse its discretion in excluding all of the defense-proffered impeachment evidence under Evidence Code section 352. First, the court reasonably concluded that the evidence that Doe's prior complaints and other statements were false was extremely weak at best. The defense was unable to produce any of the persons it claimed Doe had falsely accused of molesting or attempting to molest Doe or her children, or about whom Doe had allegedly made other false statements of fact. The only evidence the defense offered to show that Doe's prior complaints and other statements were false was that (1) Doe never reported any of the alleged prior incidents of sexual abuse to the police, as she did in this case; and (2) the sheer number of her prior complaints and other statements showed that they were all false. At best, these circumstances supported a weak inference that Doe's prior complaints and other statements were false.
Second, given the weakness of the inference that Doe's alleged prior complaints and other statements were false, the court reasonably determined that admitting Doe's prior complaints and other statements to impeach Doe's trial testimony, would have caused an undue consumption of court time by necessitating a "trial within a trial" on the truthfulness of Doe's prior complaints and other statements. Indeed, the prosecution likely would have countered the defense's weak claim that the prior complaints and other statements were false with contrary evidence that the prior complaints and statements were true. As the People point out, "Doe came from a home that was so dysfunctional she had to be removed by Child Protective Services. She was then adopted by Valerie and lived in yet another dysfunctional home. The fact that Doe was surrounded by abusive people her entire childhood len[t] credence to her claims. Moreover, there [was] no evidence that Doe ever recanted any of the claims." In turn, this "trial within a trial" likely would have confused and distracted the jury from determining the central issue in the case: whether Doe's current complaints of sexual abuse against defendant were true.
Lastly, defendant's fundamental right to due process did not necessitate the admission of any of Doe's prior complaints and statements to impeach Doe's trial testimony. Given the weakness of the evidence that the prior complaints and statements were false, the impeachment evidence did not amount to "crucial exculpatory evidence," as defendant claims. To be sure, and as defendant points out, " '[T]rial judges in criminal cases should give a defendant the benefit of any reasonable doubt when passing on the admissibility of evidence as well as in determining its weight,' " and " 'Evidence that is relevant to the prime theory of the defense cannot be excluded in wholesale fashion merely because the trial would be simpler without it.' " (People v. Wright (1985) 39 Cal.3d 576, 584-585.)
But here, the court gave defendant the highest benefit of the doubt in considering the admissibility of the impeachment evidence and did not exclude the evidence merely because the trial would be simpler without it. Rather, the court reasonably excluded the impeachment evidence based on the substantial danger that it would confuse the issues and mislead the jury. (Cf. People v. Minifie 13 Cal.4th 1055, 1071-1071, quoting Wright, supra, at p. 585 ["Presentation of evidence at the heart of the defense would not have represented an " 'undue' consumption of time"].) B. Defendant's Six-Year Term on Count 1 is Not Required to be Stayed (§ 654)
Defendant claims his six-year term on his forcible lewd act conviction in count 1 must be stayed under section 654 because, given the prosecutor's argument, the jury may have based its guilty verdict in count 1 on the same acts or conduct underlying his forcible rape conviction in count 2, his forcible oral copulation conviction in 12, or both counts 2 and 12. We disagree.
As we explain, substantial evidence supports the court's implied finding that the jury based count 1 on a separate act of rape or oral copulation, rather than the same acts underlying counts 2 and 12. Additionally, the jury was given a unanimity instruction, which required it to base each of its guilty verdicts on separate and distinct acts of rape or oral copulation. And, contrary to defendant's argument, the prosecutor did not urge the jury to base count 1 on the same act acts underlying counts 2 and 12.
1. Relevant Background
As we have noted, the jury found defendant guilty as charged in count 1 (forcible lewd act), count 12 (forcible rape), and count 12 (forcible oral copulation). The jury did not reach verdicts and a mistrial was declared on nine additional counts of forcible rape (counts 3-11), and nine additional charges of forcible oral copulation (counts 13-23).
The jury was instructed that defendant was charged with committing count 1, and counts 2 through 12, between June 1998 and June 2000 (when Doe 11 to 12 years old), and with committing counts 13 through 23 between June 2003 and June 2004 (when Doe was 15 to 16 years old). The jury was additionally instructed that the People had presented evidence of more than one act to prove defendant committed these offenses, and the jury could not find defendant guilty unless it unanimously agreed either that (1) the People had proved that defendant "committed at least one of these acts and you all agree on which act he committed for each offense[;]" or (2) the People had proved that defendant "committed all the alleged acts to have occurred during this time period" and had also proved that defendant "committed at least the number of offenses charged." (CALCRIM No. 3501 [Unanimity: When Generic Testimony of Offense Presented].)
2. Applicable Law and Analysis
Section 654 provides that, "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . ." "The purpose of this statute is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. . . ." (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)
"The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question [express or implied] must be upheld on appeal if there is any substantial evidence to support them. [Citations.] 'We must "view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Hutchins, supra, 90 Cal.App.4th at pp. 1312-1313.)
Here, substantial evidence supports the court's implied finding that the jury based its guilty verdict in count 1 on any one or more of numerous acts of forcible sexual intercourse or forcible oral copulation that defendant perpetrated against Doe between June 1998 and June 2000, but based its guilty verdict in count 2 on a separate act of sexual intercourse occurring between June 1998 and June 2000, and based its guilty verdict in count 12 on still another separate act of oral copulation, occurring between June 2003 and June 2004.
Indeed, although no evidence showed that defendant committed a lewd act on Doe without also making Doe have sexual intercourse with him, orally copulate him, or both, Doe testified defendant made Doe have sexual intercourse with him and orally copulate him more than two times every month from the time Doe was 12 years old (June 1999) until she was 16 years old (June 2003). Thus, the jury had many more than three acts of sexual intercourse and oral copulation upon which to base its guilty verdict in count 1, 2, and 12. And, as noted, the jury was instructed that it could not convict defendant in any count unless it unanimously agreed he committed at least one act for each offense. (CALCRIM No. 3501.)
Defendant points out that the prosecutor argued to the jury that the lewd act charge in count 1 "could be oral. It could be rape. It could be any of them." On this basis, defendant argues, "for all the record shows, and in conformity with the prosecution's argument, the jury's verdict on count 1 could very well have been based on the same conduct underlying either count 1 or count 12, or both counts."
We disagree. First, the unanimity instruction precluded the jury from basing its guilty verdict in count 1 on the same acts underlying its guilty verdicts in counts 2 or 12.
Second, neither the information nor the jury's verdicts specified the factual basis of the jury's lewd act verdict in count 1. (Cf. People v. Siko (1988) 45 Cal.3d 820, 823-826 (Siko) [separate term imposed on lewd act conviction required to be stayed under section 654 where charging instrument and verdict specified that the count was based on the same acts of rape and sodomy underlying other convictions]; People v. McCoy (2012) 208 Cal.App.4th 1333, 1339 ["Siko is ... authority that where there is a basis for identifying the specific factual basis for a verdict, a trial court cannot find otherwise in applying section 654"].)
Third, and contrary to the suggestion implicit in defendant's argument, the prosecutor did not tell the jury that it could rely on the same act of rape or oral copulation to convict defendant in count 1 as it relied on to convict defendant in counts 2 or 12. Instead, the prosecutor merely told the jury that count 1 could be based on any one of the many acts of sexual intercourse or oral copulations that occurred when Doe was under age 14, and that "You just all have to agree on one [of these acts] for this count [1]." The prosecutor separately discussed the charges of forcible rape in counts 2 through 11, and also separately discussed the charges of forcible oral copulation in counts 12 through 23.
Thus, in imposing the six-year term on count 1, the court reasonably and implicitly determined, based on substantial evidence, the unanimity instruction, and the entire record, that counts 1, 2 and 12, were based on separate and distinct acts. It follows that defendant's six-year term on count 1 is not required to be stayed. C. Any Dueñas Error Was Harmless
At sentencing, the court imposed unsuspended fines and fees totaling $2,724.58—a $514.58 booking fee (Gov. Code, § 29550, subd. (d)(1), $2,000 restitution fine (Pen. Code, § 1202.4, subd. (b) ), $90 criminal conviction assessment fee ($30 for each conviction) (Gov. Code, § 70373, subd. (a)(1)), and $120 court operations assessment fee ($40 for each conviction). (Pen. Code, § 1465.8.)
The court also imposed but suspended a $2,000 parole revocation fine, pending revocation of defendant's parole. (§ 1202.45, subd. c).)
In this appeal, defendant claims the court erroneously imposed the fines and fees without first determining that defendant had the ability to pay them. (People v. Dueñas (2018) 30 Cal.App.5th 1157, 1164, 1170-1172 (Dueñas) [before a court may impose various mandatory fines and fees, due process and equal protection principles require court to determine the defendant is presently able to pay the fines and fees].)
We conclude that any error in imposing the $2,724.58 in fines and fees without determining defendant's ability to pay them was necessarily harmless beyond a reasonable doubt. (People v. Jones (2019) 36 Cal.App.5th 1028, 1034-1035 (Jones) [reviewing prejudicial effect of Dueñas error under the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24, the standard that applies to most federal constitutional errors].)
Other appellate courts have criticized Dueñas as having been wrongly decided. (See, e.g., People v. Hicks (2019) 401 Cal.App.5th 320, 329 [due process precludes a court form imposing fines and assessments only if doing so would deny the defendant access to the courts or result in the defendant's incarceration]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1069 [inability-to-pay claims properly assessed under Eight Amendment's prohibition on "excessive fines"].) But, given our conclusion that any Dueñas error was harmless, it is unnecessary to determine whether Dueñas was wrongly decided in this case. For the same reason, it is unnecessary to address the People's claim that defendant has forfeited his claim of Dueñas error by failing to object to the fines and fees at sentencing, and defendant's alternative claim that his counsel rendered ineffective assistance in failing to object to the fines and fees.
The probation report, filed in June 2018, shows defendant was born in September 1977, and was 40 years old when he was sentenced in June 2018. The report also shows that defendant has "average" physical health, "good" mental health, and no physical disabilities, and that his sole physical limitation is diabetes, for which he takes insulin. He completed high school and he has an Associate of Arts degree. He was sentenced to 18 years in prison, with 798 days of custody credits. If he is not paroled, he will be released before he is age 56.
In our view, all of this "forecloses a meritorious inability pay argument." (Jones, supra, 36 Cal.App.5th at p. 139.) Because the record shows that defendant is relatively young, is in reasonably good health, and has marketable job skills, he undoubtedly will be able to pay the $2,724.58 in fines and fees over time, both while he is incarcerated and following his release from custody. (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [a defendant's ability to pay includes the defendant's ability to earn prison wages and money following the defendant's release from custody].)
Defendant argues that the record contains "considerable evidence" that he does not have the present ability pay any of the $2,724.58 in fines and fees. He notes the probation report shows that, from January 1, 2013, to July 16, 2016, he was employed as a group home counselor in Pennsylvania and earned only $1,500 per month. He also points out that there is no evidence he has any assets or savings. We disagree that this shows defendant will be unable to pay the $2,724.58 in fines and fees over time. To the contrary, defendant's work as a group home counselor shows he has valuable leadership skills and an ability use those skills to earn a living.
In sum, the record shows beyond a reasonable doubt that defendant will be able to pay the $2,724.58 in fines and fees over time. (See People v. Johnson (2019) 35 Cal.App.5th 134, 139 ["[T]here is enough evidence in the trial record to conclude that the total amount [of fines and fees] involved here did not saddle [the defendant] with a financial burden anything like the inescapable, government-imposed debt trap [that the physically disabled] Velia Dueñas faced"].) Thus, any Dueñas error in failing to determine defendant's ability to pay the fines and fees at sentencing was harmless beyond a reasonable doubt. (Jones, supra, 36 Cal.App.5th at p. 139.)
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: MILLER
Acting P. J. SLOUGH
J.