Opinion
H046741
04-30-2020
THE PEOPLE, Plaintiff and Respondent, v. CESAR ELISEO CACHO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1490507)
A jury convicted defendant Cesar Cacho of second degree murder and found true an attendant firearm allegation. The trial court sentenced defendant to 40 years to life in state prison. On appeal, defendant contends the trial court erred in refusing a pinpoint jury instruction on a heat of passion theory of voluntary manslaughter. He also seeks conditional reversal of the fines and fees imposed by the trial court and remand for an ability to pay hearing. Finding no prejudicial error, we shall affirm.
I. BACKGROUND
A. Factual Summary
1. The Shooting
On August 1, 2014, defendant—then 23 years old—drank with his friends Jesus Rivera and Ivan M. Rivera testified that the three friends drank at least a 32-pack of beer. By the early morning hours of August 2nd, they were drunk and out of alcohol. They decided to go to the nearby 7-Eleven on Monterey Road in San Jose to buy more beer. Rivera drove the group in his two-door gray Ford Thunderbird. Defendant rode in the front passenger seat and Ivan rode in the backseat.
Surveillance video from the 7-Eleven shows that the Thunderbird parked in front of the store at 1:38 a.m. Rivera exited the vehicle to let Ivan out. Ivan entered the 7-Eleven to buy beer while Rivera stood outside the car waiting for him to return; defendant remained in the vehicle.
John H. was parked to the right of the Thunderbird, an open parking space between the vehicles. John was sitting in his vehicle and noticed the arrival of the gray car carrying three Hispanic males.
Harvey H. was on his way to the 7-Eleven around the same time as defendant and his friends. On the way, Harvey ran into T.B., someone he knew from the neighborhood. Harvey frequently would see T.B. outside the liquor store drinking, gambling, and selling drugs. Harvey also socialized with T.B. The two chatted briefly as they walked along the sidewalk to the side of the 7-Eleven. Surveillance video shows that they turned the corner to walk to the 7-Eleven entrance shortly before 1:39 a.m. Harvey observed that T.B.'s demeanor changed, becoming "pissed off." T.B. said, "I've been looking for these motherfuckers" and walked quickly towards the gray Thunderbird. Harvey testified that T.B. put on tight leather gloves as he approached the vehicle. Harvey thought there was going to be a fist fight.
Rivera saw T.B. as he approached. Rivera had met T.B. but did not know him well. Rivera testified that T.B. asked him, "What's up" and he responded, "Chilling pretty much." Rivera then heard T.B. say "Get out of the car" and heard defendant respond, in a questioning tone, "Get out of the car?" A split second later, Rivera heard gun shots. He looked over and saw defendant outside the car, looking down and shooting. Rivera "panicked" and got back in the car. Defendant got in too and they drove off, leaving Ivan in the store.
John also saw T.B. come around the corner of the 7-Eleven. John did not know T.B., who he described as an African-American man in his mid- to late-20s. John testified that T.B. threw his hands up, in what appeared to be a gesture directed at the gray car. John also heard someone say "what's up" in an aggressive manner and then saw the front passenger get out of the gray car and start shooting.
Surveillance video from the 7-Eleven captured the shooting. At 1:39 a.m., the Thunderbird's passenger door begins to open. Three seconds later, as defendant is stepping out of the Thunderbird, T.B. enters the frame. He approaches the Thunderbird's passenger door, then turns and falls to the ground. At the same time, defendant stands with his arms extended towards T.B. After T.B. falls, defendant walks around the passenger door and points something in his right hand towards the ground where T.B. fell. With his arm extended, defendant takes about five steps and leans over. At 1:39:08 a.m., a flash can be seen at the end of defendant's outstretched right arm. Defendant then returns to the Thunderbird, which begins to drive away at 1:39:22 a.m.
Rivera testified that he was surprised by the shooting. He did not know that defendant was armed and was unaware of any problems between defendant and T.B. As they were driving, defendant said, "Oh, my bad." Rivera pulled over and let defendant out.
2. The Investigation and Arrests
One of the responding officers testified that the scene was chaotic when he first arrived at the 7-Eleven. A group of about 10 people was gathered outside the 7-Eleven; they were yelling and moving around the scene. T.B. was lying face down in the parking lot; he had on black gloves. He was pronounced dead at the scene at 1:56 a.m. After securing the scene, officers recovered 10 spent shell casings from the parking lot. Officers did not find any weapons on T.B.
Dr. Michelle Jorden, the chief medical examiner for the Santa Clara County Medical Examiner Coroner's Office, performed an autopsy on T.B. She testified that he had a tattoo that read "gangsta." She further testified that he suffered 10 gunshot wounds, including three gunshot wounds to the back and one to the back of the head. Dr. Jorden determined the cause of death to be multiple gunshot wounds.
Defendant was arrested in Manteca four days after the shooting. Six days later, Rivera was arrested in Gilroy.
The trial court admitted gang evidence, over defendant's objection and despite the absence of any gang allegations, on grounds it was relevant to motive and intent.
Two prosecution witnesses testified as experts in the area of criminal street gangs in Santa Clara County—Gabriel Cuenca (a San Jose police officer) and Michael Whittington (a criminal investigator for the District Attorney's Office and a former San Jose police officer).
Whittington testified that respect is "the most important element in street gang life" and that acts of disrespect towards a gang member will be "met with violence." Cuenca testified that violence is a large part of gang culture and that the commission of violent acts garners respect from one's fellow gang members and increases one's status within the gang. Whittington noted that gang violence also "keeps the community in fear" so that community members will not report or cooperate with the investigation of gang crime.
Cuenca testified that Norteños are a criminal street gang and that their symbols include the color red and the number 14, representing "N," the 14th letter of the alphabet. Cuenca further testified that there are more than 20 Norteño subsets in San Jose, including the United Nortes Locos Villains (UNLV), Family on Every Side (FOES), and Varrio Mas Chingon.
Cuenca opined that defendant was a Norteño and a member of the FOES subset at the time of the shooting. That opinion was based in part on the fact that defendant had a tattoo of one dot near his right elbow and a tattoo of four dots near his left elbow, representing the Norteño symbol "14." Whittington testified that "one dot on one arm, four dots on the other arm" is a common Norteño tattoo. Cuenca also based his opinion regarding defendant's gang membership on the clothing defendant was wearing at the time of his arrest—namely, a red San Jose Sharks hat and a memorial T-shirt for a deceased FOES gang member. Cuenca's opinion also was based on San Jose Police Officer Rocky Zanotto's trial testimony that, during a consensual encounter with defendant on June 29, 2013, defendant said he "claim[ed] Norteño FOE."
Cuenca testified that the Crips are another criminal street gang with a presence in San Jose. Their symbols include the color blue (and variations thereon, such as teal) and the letter "C." Seven Tree Crips, 95 Gangster Crips, and Round Table are among the Crip subset gangs. Cuenca opined that, at the time of his death, T.B. was a member of the Seven Tree Crips. Cuenca based that opinion on T.B.'s "gangsta" tattoo, the fact that he was wearing a shirt with teal on it at the time of his death, and numerous pictures found on T.B.'s cell phone in which he is wearing blue and displaying Seven Trees Crips gang signs. Cuenca testified that T.B. also was affiliated with the 95 Gangster Crips.
Gang expert Whittington testified that he investigated the 2012 shooting death of Deshawn Brown, a member of the 95 Gangster Crips. Brown was shot to death across the street from the 7-Eleven where T.B. was killed two years later. Two members of Varrio Mas Chingon were arrested and ultimately convicted in connection with Brown's death. Whittington testified that Brown's murder intensified an existing feud between certain Norteños and certain Crips in that area, which continued until at least 2015. According to Whittington, the subsets involved in that feud included the Norteño subsets of UNLV and Varrio Mas Chingon on one side and the Round Table Gangsters, which he described as a "very unique" "half Norteño half Crip subset," on the other. Whittington further testified that the Round Table Gangsters and the 95 Gangster Crips are associated and refer to themselves collectively as 95 Round Table. He testified that the 7-Eleven where T.B. was shot is in an area controlled by the Round Table Gangsters and the 95 Gangster Crips.
Rivera testified that he used to hang out with Norteños. He was aware that defendant had a tattoo of four dots, which he understood meant "gang member." Rivera testified that he was aware of a conflict between UNLV and the Round Table Gangsters because a few months before the shooting UNLV members who mistook him for a Round Table Gangster beat him up.
4. Defense Evidence
Defendant testified that he spent his childhood in San Jose and most of his teenage years in Manteca. As a teenager, he began drinking and smoking marijuana on a daily basis. At age 18 or 19, defendant moved back to San Jose where he lived with his father. He had "plenty of jobs" over the years, including as a security guard, doing landscaping and janitorial work, and moving furniture. At the time of the shooting, defendant, Rivera, and Ivan worked together moving furniture. After work, they would drink "to get drunk" at Great Oaks Park. During the summer of 2014, defendant frequently drank until he passed out. Defendant lived within a mile of the 7-Eleven where the shooting took place; he went there and to the liquor store across the street from the 7-Eleven frequently. He had seen T.B. "loitering" and "gambling" in front of the liquor store. Defendant knew T.B. "was from Seven Trees or 95." He denied the two had any problems with one another before the shooting.
Defendant testified that August 1, 2014 was his day off. That afternoon, he smoked half a joint with PCP in it and drank beer. He met up with Rivera and Ivan in the late afternoon. They bought a 32-pack of beer and drank it at the park. After finishing the beer, they bought and drank 40-ounce bottles of malt liquor. Then they went to defendant's house, where he had more beer. While they were there, defendant showed off his gun to Ivan. Defendant testified that he had owned the gun for a few years and that he rarely carried it. But that night he put it in his waistband after showing it to Ivan and forgot it was there.
They ran out of beer and, sometime before 2:00 a.m. the following morning, they decided to drive to 7-Eleven to buy more. Defendant testified that he was feeling "pretty drunk" while he sat in the car outside 7-Eleven. Defendant saw an African-American male walking in his direction aggressively and telling him to get out of the car. Defendant noticed the man was wearing gloves. Initially, defendant was confused. As the man got closer, he "reach[ed] towards the belt area or his pocket" where defendant saw a bulge. Defendant thought he was going to get shot; he "reacted" by shooting. Defendant did not remember shooting T.B. in his back while he was on the ground; defendant expressed remorse and said T.B. "didn't deserve that." Defendant testified that he did not know what he did with the gun after the shooting.
Defendant said that he, Rivera, and Ivan were affiliated with Norteños, but were not gang members.
Forensic psychiatrist Jason Roof, M.D., testified for the defense as an expert on alcohol and its effects on cognition and memory, including blackouts and grayouts. He testified that he had performed a psychiatric evaluation on defendant and had concluded that defendant had "no diagnosable active mental disorders . . . outside of substance use." Dr. Roof further testified that alcohol impacts a person's "ability to use [his or her] judgment" and that "reading an environment can be more challenging when intoxicated." Dr. Roof defined a blackout as a phenomenon where long term memories are not encoded when a person is intoxicated. He said that a grayout is similar, but results in fragmentary memories as opposed to a total absence of memories. Dr. Roof opined that the amount of alcohol that defendant reported consuming prior to the shooting could have resulted in a blackout or grayout.
B. Procedural History
The Santa Clara County District Attorney charged defendant with murder (Pen. Code, § 187) by information filed on June 16, 2016. The information alleged that defendant personally and intentionally discharged a firearm in the commission of the murder. (§ 12022.53, subds. (b)-(d).) Rivera was charged with murder as well. He pleaded to being an accessory after the fact (§ 32) prior to trial.
All further statutory references are to the Penal Code unless otherwise noted.
The information also included a gang enhancement allegation (§ 186.22, subd. (b)(5)) and a special circumstance allegation that defendant intentionally killed the victim while defendant was an active participant in a criminal street gang (§ 190.2, subd. (a)(22)). Defendant filed a successful section 995 motion to dismiss those allegations. --------
The case went to a jury trial in September 2018. The jury was instructed on first and second degree murder (CALCRIM Nos. 520 and 521), reasonable self-defense (CALCRIM No. 505), provocation (CALCRIM No. 522), voluntary manslaughter based on sudden quarrel or heat of passion (CALCRIM No. 570), and voluntary manslaughter based on imperfect self-defense (CALCRIM No. 571), among other concepts. The jury rendered its verdicts on October 5, 2018. Jurors found defendant not guilty of first degree murder, but guilty of second degree murder, and found true the firearm enhancement allegation.
Defendant moved the court to strike the firearm enhancement under section 1385. On December 14, 2018, the trial court denied that motion and sentenced defendant to a 40 years-to-life prison term—15 years to life on the murder conviction plus 25 years to life on the firearm enhancement. The trial court also imposed various fines and fees, including a $300 restitution fine (§ 1202.4, subd. (b)(2)); a $300 parole revocation restitution fine, which was suspended pending successful completion of parole (§ 1202.45); a $40 court operation assessment (also known as a court security fee) (§ 1465.8); a $30 court facilities assessment (also known as a criminal conviction assessment) (Gov. Code, § 70373); and a $129.75 criminal justice administration fee payable to the City of San Jose (Gov. Code, §§ 29550, 29550.1, 29550.2). Defendant did not object.
Defendant timely appealed.
II. DISCUSSION
A. Refusal to Give Pinpoint Instruction on Heat of Passion
Defendant argues the trial court erred by refusing to give a pinpoint instruction he requested regarding heat of passion voluntary manslaughter. We agree that the trial court erred but conclude that the error was harmless and, therefore, does not require reversal.
1. Background
Defendant presented a heat of passion defense. He argued that the victim provoked him by approaching aggressively and demanding he get out of the car. Defendant further argued that his response—shooting the victim—was a rash one made under the influence of intense emotion.
The trial court instructed the jury with CALCRIM No. 570 regarding heat of passion that will reduce a murder to manslaughter. In part, that instruction provided that: "The defendant killed someone because of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant was provoked; [¶] 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured (his/her) reasoning or judgment; AND [¶] 3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment. . . . [¶] You must decide whether the perpetrator was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment. . . ."
Defendant requested a pinpoint instruction "clarifying 'that the jury need not find a provocation sufficient to rouse a reasonable person to kill, but only a provocation sufficient to trigger actions out of passion rather than judgment.' . . . (People v. Trinh (2014) 59 Cal.4th 216, 23[2].)" The trial court denied that request, reasoning that "the current CALCRIM actually incorporates the language that . . . was requested."
During closing arguments, defense counsel correctly argued that "the jury doesn't have to find a provocation sufficient to rise a reasonable person to kill. . . . In other words, you don't have to show that anybody being provoked in that way would kill, just that anybody being provoked in that way might lose their mind in that time period." In rebuttal and without objection from the defense, the prosecutor argued that "whatever words were expressed [by T.B.] is not enough provocation for a person to use deadly force in this case, for a person to be not -- to be under the -- to be put in a situation that they would act rashly that -- to be put in the position that they would not be able to deliberate, to be put in a position that they would just take out a gun and start shooting an individual. That's not the level of provocation in terms of an average person of average disposition would have that kind of provocation."
2. Legal Principles and Standard of Review
"A pinpoint instruction 'relate[s] particular facts to a legal issue in the case or "pinpoint[s]" the crux of a defendant's case, such as mistaken identification or alibi.' [Citation.]" (People v. Ward (2005) 36 Cal.4th 186, 214.) "A proper pinpoint instruction must be given at a defendant's request." (People v. Mora and Rangel (2018) 5 Cal.5th 442, 498.) Our review is de novo. (People v. Shaw (2002) 97 Cal.App.4th 833, 838 ["assertions of instructional error are reviewed de novo"].) Erroneous refusal to give a pinpoint instruction is state law error, which requires reversal "only if 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' (People v. Watson (1956) 46 Cal.2d 818, 836.)" (People v. Wilkins (2013) 56 Cal.4th 333, 349.)
Our Supreme Court has held that, "to reduce murder to manslaughter, provocation must be such as would 'render an ordinary person of average disposition "liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment" ' (People v. Beltran (2013) 56 Cal.4th 935, 957), while repudiating the argument . . . that provocation must be such as would move an ordinary person to kill [citation]." (People v. Trinh, supra, 59 Cal.4th at pp. 232-233 (Trinh).) In Trinh, the defendant unsuccessfully requested "a pinpoint instruction emphasizing that the jury need not find a provocation sufficient to rouse a reasonable person to kill, but only a provocation sufficient to trigger actions out of passion rather than judgment." (Id. at pp. 231-232, fn. omitted.) The California Supreme Court concluded that the trial court erred in refusing to give that pinpoint instruction, noting that "[t]he instructions read to the jury did not specifically address that point." (Id. at p. 233.)
3. The Trial Court Erred
This case is analogous to Trinh. Defendant sought a pinpoint instruction substantively indistinguishable from the one Trinh requested. As in Trinh, the "[t]he instructions read to the jury did not specifically address" whether the provocation must be such as to cause an ordinary person of average disposition merely to act rashly or to kill. (Trinh, supra, 59 Cal.4th at p. 233.) In Trinh, "[t]he jury was instructed with a slightly modified version of CALJIC No. 8.42." (Id. at p. 232, fn. 4.) Among other things, that instruction provided: "The question to be answered is whether or not at the time of the killing the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection and from passion rather than from judgment." (Ibid.) Here, the jury was instructed with CALCRIM No. 570, which similarly told jurors to "consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment. . . ."
The Attorney General argues that the trial court was not required to give the requested pinpoint instruction because CALCRIM No. 570 is a correct statement of law. We agree that CALCRIM No. 570 correctly states the law, but that is not a reason for declining to give a pinpoint instruction. A pinpoint instruction is improper and should not be given "if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence [citation]." (People v. Moon (2005) 37 Cal.4th 1, 30.) The Attorney General suggests the pinpoint instruction was duplicative, citing People v. Burney (2009) 47 Cal.4th 203, 246 [trial court did not err in declining to give duplicative pinpoint instruction] and People v. Bolden (2002) 29 Cal.4th 515, 559 [same]. We disagree. As noted above, as given here, CALCRIM No. 570 did not state that a provocation need not be of the sort that would cause an ordinary person to kill in order to be legally sufficient. Accordingly, the requested pinpoint instruction to that effect was not duplicative. (Trinh, supra, 59 Cal.4th at p. 233 [identical pinpoint instruction held not to be duplicative where "[t]he instructions read to the jury did not specifically address" "whether the provocation must be such as to cause an ordinary person of average disposition merely to act rashly or to kill"].)
In sum, the trial court erred in declining to give the requested pinpoint instruction.
3. Prejudice
The error in declining to give the pinpoint instruction requires reversal only if defendant suffered prejudice under Watson, meaning it is reasonably probable that a result more favorable to defendant would have been reached had the instruction been given. Watson harmless error "review focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration." (People v. Breverman (1998) 19 Cal.4th 142, 177 (Breverman).) In applying Watson, we may consider, among other things, the relative strength of the evidence supporting the existing judgment and the evidence supporting a different outcome, "the instructions as a whole, the jury's findings, and the closing arguments of counsel." (People v. Larsen (2012) 205 Cal.App.4th 810, 831.)
We begin by considering counsel's closing arguments. Here, defense counsel communicated the substance of the pinpoint instruction, correctly stating that "the jury doesn't have to find a provocation sufficient to rise a reasonable person to kill. . . . In other words, you don't have to show that anybody being provoked in that way would kill, just that anybody being provoked in that way might lose their mind in that time period." But, in rebuttal, the prosecutor asserted the argument rejected in Beltran—that any provocation was legally insufficient because it would not have caused an average person to "just take out a gun and start shooting an individual." Defense counsel did not object to that misstatement of law. In light of these arguments, it is reasonably probable that jurors may have misunderstood what constitutes legally sufficient provocation for purposes of heat of passion voluntary manslaughter.
Next, we examine the jury's findings, as implied by their verdicts. The jury convicted defendant of second degree murder. Accordingly, the jury must have rejected defendant's claim that he shot T.B. in imperfect self-defense, which reduces murder to voluntary manslaughter. The jury's rejection of defendant's imperfect self-defense claim implies jurors disbelieved defendant's testimony that he believed he was in imminent danger of death or great bodily injury when he shot T.B. (People v. Duff (2014) 58 Cal.4th 527, 561 ["Imperfect self-defense, which reduces murder to voluntary manslaughter, arises when a defendant acts in the actual but unreasonable belief that he is in imminent danger of death or great bodily injury"].)
We turn now to the evidence supporting a verdict of voluntary manslaughter based on a heat of passion theory. Harvey testified that T.B. became angry upon seeing defendant and his friends and walked quickly towards them while donning gloves. John testified that T.B. threw his hands up and said "what's up" in an aggressive manner. The evidence showed that T.B. was a gang member and that gang members are violent. Jurors reasonably could have inferred from the foregoing evidence that T.B's "intimidating conduct . . . caused [defendant to experience] immediate fear and panic. Under these circumstances, a reasonable jury could infer that defendant was aroused to passion . . . ." (Breverman, supra, 19 Cal.4th at pp. 163-164.) And jurors could reasonably conclude that a person of average disposition would panic and act rashly if a gang member appeared to be about to attack them.
However, our focus is "not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration." (Breverman, supra, 19 Cal.4th at p. 177.) In the circumstances of this case, we struggle to conceive of what defendant could have feared as a result of T.B's aggression if not death or great bodily injury. Given jurors' conclusion that defendant did not believe he was in imminent danger of death or great bodily injury, it is improbable that they would have inferred that defendant's reason nevertheless was obscured by fear and panic. (See People v. Moye (2009) 47 Cal.4th 537, 556-557 [finding any error in failing to instruct on heat of passion voluntary manslaughter was harmless where jury rejected claim of imperfect self-defense reasoning "the jury having rejected the factual basis for the claims of reasonable and unreasonable self-defense, it is not reasonably probable the jury would have found the requisite objective component of a heat of passion defense (legally sufficient provocation) even had it been instructed on that theory of voluntary manslaughter"].)
The second degree murder conviction was amply supported by the evidence at trial, which supported the reasonable inference that defendant intentionally shot T.B., with either an intent to kill or conscious disregard for life, because T.B. was a gang rival who had shown defendant disrespect by demanding he get out of the car. The evidence likewise supported the reasonable inference that defendant, with one of the requisite mental states, intentionally shot T.B. as part of an ongoing feud between Crips and Norteños.
In sum, we conclude that it is not reasonably probable that the jury would have rendered a verdict more favorable to defendant had the pinpoint instruction been given. The jury's rejection of defendant's imperfect self-defense claim convinces us that, even if properly instructed (and even absent the District Attorney's misstatement of law in closing), the jury would have concluded that defendant's reason was not obscured by fear and panic.
B. Due Process Challenge to Fines and Fees
Defendant asserts that the trial court violated his federal constitutional rights by imposing the court operations assessment, the court facilities assessment, and the criminal justice administrative fee and failing to stay the restitution fine without determining whether he had an ability to pay those amounts. He relies on People v. Dueñas (2019) 30 Cal.App.5th 1157, which was decided after his sentencing and held that due process requires the trial court (1) to conduct a hearing to ascertain a defendant's ability to pay before it imposes a court operations assessment or a court facilities assessment and (2) to stay execution of any restitution fine unless and until it holds an ability-to-pay hearing and concludes that the defendant has the ability to pay the restitution fine.
Some courts have disagreed with Dueñas's due process analysis or have limited the case to its facts. (See People v. Hicks (2019) 40 Cal.App.5th 320, 329 [declining to follow Dueñas]; People v. Kingston (2019) 41 Cal.App.5th 272, 279 [following Hicks]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069 [declining to follow Dueñas]; (People v. Caceres (2019) 39 Cal.App.5th 917, 926-927 [declining to extend Dueñas beyond "[its] extreme facts"]; People v. Allen (2019) 41 Cal.App.5th 312, 326 [expressing agreement with "the reasoning of the numerous courts that have rejected Dueñas's due process analysis"].) This court is split on the issue of whether Dueñas was correctly decided. (Compare People v. Santos (2019) 38 Cal.App.5th 923, 927 [following Dueñas] with People v. Adams (2020) 44 Cal.App.5th 828, 831 [concluding that Dueñas was wrongly decided].) The issue of whether a court must consider a defendant's ability to pay before imposing or executing fines, fees, and assessments is pending before the California Supreme Court in People v. Kopp, review granted November 13, 2019, S257844. We need not consider the validity of Dueñas, however, because any error was harmless.
We review federal constitutional errors under the harmless-beyond-a-reasonable-doubt test for prejudice set forth in Chapman v. California (1967) 386 U.S. 18, 24. (See People v. Johnson (2019) 35 Cal.App.5th 134, 140 (Johnson) [finding Dueñas error harmless under Chapman]; People v. Jones (2019) 36 Cal.App.5th 1028, 1030-1031 (Jones) [same].) Any error was harmless if the record demonstrates that defendant could not have established an inability to pay. That is the case here.
Defendant was sentenced to a lengthy prison sentence of 40 years to life. Defendant is young and held numerous jobs prior to his incarceration; there is no reason to believe he will be unable to perform work in prison. "Wages in California prisons currently range from $12 to $56 a month. [Citations.] And half of any wages earned (along with half of any deposits made into [a defendant's] trust account) are deducted to pay any outstanding restitution fine. [Citations.]" (Jones, supra, 36 Cal.App.5th at p. 1035.) Assuming defendant earns the minimum monthly wages of $12 and half of his wages go towards paying the $499.75 in challenged fines and fees, he will satisfy those obligations in just under 7 years.
On this record, we conclude that any error was harmless. (Johnson, supra, 35 Cal.App.5th at p. 139 ["The idea that [defendant] cannot afford to pay $370 while serving an eight-year prison sentence is unsustainable."]; Jones, supra, 36 Cal.App.5th at p. 1035 [finding Dueñas error harmless because defendant sentenced to six-year term would have ability to pay $300 restitution fine and $70 in assessments from prison wages]; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 ["defendant's ability to obtain prison wages and to earn money after his release from custody" are properly considered when determining whether a defendant has the ability to pay].)
III. DISPOSITION
The judgment is affirmed.
/s/_________
ELIA, J. WE CONCUR: /s/_________
PREMO, Acting P. J. /s/_________
MIHARA, J.