Opinion
H045236
10-15-2019
THE PEOPLE, Plaintiff and Respondent, v. SAMUEL CRUZ JIMENEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F1554028)
Defendant Samuel Cruz Jimenez was convicted by jury trial of three counts of lewd acts on a child under the age of 14 (counts 3, 6, and 7; Pen. Code, § 288, subd. (a)), two counts of attempted lewd acts on a child under the age of 14 (counts 4 and 5; §§ 664, 288, subd. (a)), and one count of misdemeanor battery (count 9; § 242). The jury also found true a one-strike allegation that defendant had committed section 288 offenses against multiple victims. (§ 667.61, subd. (e)(4).) The trial court sentenced defendant to an indeterminate term of 30 years to life, consecutive to a determinate term of two years and six months.
Subsequent statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant argues that (1) there was insufficient evidence one of the victims was under 14 years of age when the conduct charged in counts 6 and 7 took place, (2) the trial court prejudicially erred in instructing the jury with CALCRIM No. 207 (Proof Need Not Show Actual Date), (3) the trial court prejudicially erred in instructing the jury with a modified version of CALCRIM No. 3550 (Pre-Deliberation Instructions), (4) the imposition of the restitution fine, the court security assessment, and the Government Code section 70373 assessment without a determination of ability to pay violated defendant's due process rights, and (5) the cumulative effect of these errors violated defendant's due process and jury trial rights. We find no merit to defendant's claims and affirm.
I. Factual Background
A. Prosecution's Case
1. M.D.'s Testimony
M.D. was born in April 2002. M.D. met defendant when she was "9 or 10 years old." Defendant was married to M.D.'s aunt. M.D. recalled five distinct incidents.
On one occasion, when M.D. was "9 or 10," defendant "gave [her] his phone so [she] could play a game." While she was playing, defendant "put his hand in [her] pants . . . ." M.D. "kept playing on his phone." Defendant touched her vagina, putting his fingers inside her vagina. The incident ended when M.D. "gave him his phone back and . . . left." M.D. "didn't know what to do or who to tell."
On another occasion, M.D. was sleeping in a bed with defendant, her aunt, and their children. Defendant began to move his hand over M.D.'s upper body. M.D. "wrapped [herself] in the blanket a couple of times," but defendant pulled "on the blanket, trying to unwrap it from [her]." M.D. did not say anything because she "was scared that he would try to do something worse." M.D. did not tell her aunt about what happened because M.D. was also "scared she wouldn't believe [her]."
In October 2014, M.D. had an argument with her father and moved into defendant's and her aunt's house. M.D. lived in their house for "[a]bout a month." The bedroom contained a bunk bed, a bed used by defendant and her aunt, a couch, and a television.
On a third occasion, when M.D. was sleeping on the bottom bunk, defendant slid his hand "[e]verywhere," including her shoulder, waist, thighs, and buttocks. M.D. moved closer to the wall, and defendant went to the bathroom. M.D.'s aunt and her children were asleep in the room when this happened. M.D. did not report what happened to her aunt because she was "scared" "[t]hat she wouldn't believe [her]."
On another occasion, M.D. was sleeping on the top bunk because she thought "that it would be harder for him to reach [her]." As she was getting "ready to wake up to get ready to go to school, [she] started to feel [defendant's] hand on [her] and [she] just moved closer to the wall." M.D. felt defendant touch her on the shoulder, buttocks, and thigh. She moved closer to the wall, and defendant went to the bathroom.
On the last occasion, M.D. was in bed wrapped in a blanket when defendant came to the room and "put his hand over the blanket . . . on top of where [her] vagina was." His hand was open and he moved it up and down. M.D. moved closer to the wall, and defendant left.
After this final incident, M.D. went to school and told her friend "all the details of all the incidents that had occurred." Her friend told her she "needed to tell somebody so somebody could do something about it." M.D. spoke to a school counselor, who called the police and child protective services.
2. N.D.'s Testimony
N.D. was born on August 1, 2000. She met defendant at a barbeque at her father's house. Her father lived next door to defendant and M.D.'s aunt. N.D. lived with her mother. During a period of "three or four months" when she was "12 or 13" years old, N.D. regularly visited her father's house. N.D. would "go over to [her] dad's house and then [she] would hang out with [M.D.'s aunt] and the kids next door." At the time, M.D.'s aunt and defendant had two children, "a baby girl and a boy." The baby girl was a "couple months old."
About "a week" after meeting M.D.'s aunt, N.D. began to occasionally spend the night at defendant's and M.D.'s aunt's house. N.D. recalled four incidents where defendant touched her inappropriately. N.D. was "pretty sure" she was "the same age while this whole thing happened."
In one incident, N.D. was sleeping on the couch at defendant's house. Early in the morning, defendant came over to her and began "rubbing [her] body." She felt defendant "touching [her] back and down, like, to [her] butt." N.D. "froze" and "didn't do anything" because she "didn't know what to do." The touching did not last long, and defendant left for work.
In another incident, N.D. was again sleeping on the couch. Early in the morning, N.D. awoke to find defendant touching her shoulder, with his hands moving towards her chest. Defendant touched the top portion of N.D.'s breast with the palm of his hand. N.D. "grab[bed] his hand and . . . push[ed] it away from" her. Defendant "put it back" a few seconds later. N.D. pushed his hand away again. Defendant then left and went to work.
In a third incident, N.D. was shopping at Walmart with defendant, M.D.'s aunt, and their children. As N.D. walked behind M.D.'s aunt, defendant walked behind N.D. and "kept, like, smacking [her] butt" with his hand. N.D. told him to stop. Defendant replied, "No, I'm going to keep doing it." N.D. moved in front of M.D.'s aunt so that defendant "wouldn't be able to do it" anymore. Defendant did not "try to smack [her] butt" when she was in front of M.D.'s aunt.
In a fourth incident, N.D. was sitting in a room in defendant's house when M.D.'s aunt left the room. Defendant's baby boy was playing on the floor; he was small, about "[o]ne or two." Defendant "jumped on" N.D., who fell back on the bed. Defendant's "whole body" was on N.D. N.D. struggled with defendant, telling him, "Stop. Get off." Defendant said nothing. His body was on top of her body, and his face was "two inches" from her face. Defendant put his hands over N.D.'s hands for about 30 seconds, then N.D. pushed him off and he left.
N.D. and M.D. knew each other. At some point, N.D. and M.D. were in a car together when M.D. told N.D. that defendant had touched her. N.D. responded that defendant had touched her as well. Later, after N.D. had stopped visiting defendant's and M.D.'s aunt's house, a police officer came to N.D.'s school and spoke to her about the incidents with defendant. N.D. had not called the police or told anyone about the incidents.
At trial, N.D. explained she had "a hard time" remembering the details about what happened. She did not remember the dates of the abuse or how old she was. However, she said, "I feel like it was before my freshman year." N.D. recalled that she went to see a movie called "The Nut Job" with defendant and M.D.'s aunt, which was shown in January and February of 2014.
3. Expert Testimony
Dr. Blake Carmichael testified as an expert on child sexual abuse accommodation syndrome (CSAAS). CSAAS has five components: (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) delayed, conflicted, or unconvincing disclosure; and (5) recanting or retraction. Carmichael testified that children "have a very difficult time with abstract concepts, like time, order, number." He explained that sometimes a child's report of abuse may seem unconvincing because details that are important to adults are "peripheral" to children. Such peripheral details can "absolutely include" things like the time of year, season, and child's grade level.
B. Defense Case
Jacquelin Orocco, defendant's coworker, testified that she had seen defendant interact with both adults and children, and had attended birthday parties with him. She had never seen defendant behave inappropriately. Another coworker, Maria Ulloa, testified that she had seen defendant interact with children and had never seen him behave inappropriately.
Defendant's sister, Nancy Cruz, testified that she had three children. She trusted defendant around her children, and had never seen an inappropriate or unusual interaction between defendant and her children.
Defendant testified that he met M.D. in 2010. He denied being sexually attracted to M.D., and denied ever touching her inappropriately, even by accident. He claimed he had never been alone with M.D.
Defendant testified that he met N.D. "around August of 2013." He denied being attracted to her, and claimed that he had absolutely no physical contact with N.D. He specifically denied each allegation of abuse. He believed there was "[n]o way [N.D.] could have misinterpreted some sort of touch" from him. He also claimed he had never been alone with N.D. He acknowledged that N.D. had spent the night at his house on two occasions, each time sleeping on the couch. Defendant recalled that he invited N.D. to a birthday party in December 2013. The last time he saw N.D. was "[p]erhaps a month" after the party, "sometime in January of 2014."
At the time the charged conduct occurred, defendant had two children, a son born in May 2011 and a daughter born in September 2012.
Dr. Andrea Shelley testified as an expert in sexual paraphilia. She explained that she had conducted a Stoll evaluation of defendant, which included a mental status evaluation, a clinical interview, and the Abel Assessment for sexual interests. The majority of Stoll evaluations that Shelley administers are unfavorable to defendants and are never presented in court.
People v. Stoll (1989) 49 Cal.3d 1136.
In the Abel Assessment, defendant was shown a series of photographs of adults and children; his response was measured by a computer. The results of the Abel Assessment showed that defendant "is attracted to adolescent and adult females and that he does not have a significant attraction to either male or female children." The images of adolescent females that defendant was shown were limited to those who appeared to be 14 years of age or older and displayed "secondary sexual characteristics" such as "breasts, widened hips, [and] puberty hairs." Shelley asserted that it was "biologically normal to be attracted to adolescents who are in puberty." Defendant scored a 17 out of 100 on a cognitive distortion scale, which Shelley considered to be "non-problematic." Defendant's social desirability score was 100 percent, indicating that "[h]e was trying to make a good impression." While this score is characterized as "highly problematic" by the test, Shelley did not find it unusual for a person in the judicial system. Shelley's "overall opinion was that [defendant] did not have the characteristics that [she] usually see[s] in men who molest children."
II. Discussion
A. Sufficiency of the Evidence
Defendant argues that there was insufficient evidence that N.D. was under 14 years of age at the time of the lewd acts charged in counts 6 and 7. He notes that N.D.'s testimony was "unclear" as to the timing and order of the abuse.
N.D. described two incidents when defendant came over while she slept on the couch and touched her inappropriately. The couch incidents were the bases for counts 6 and 7.
"In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact." (People v. Young (2005) 34 Cal.4th 1149, 1181 (Young).) " '[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (People v. Johnson (1980) 26 Cal.3d 557, 576.) "[The] appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425; accord, People v. Pensinger (1991) 52 Cal.3d 1210, 1237.)
Section 288, subdivision (a) prohibits committing "any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child . . . ." (Italics added.)
We conclude that there was sufficient evidence to allow a rational trier of fact to conclude that N.D. was under the age of 14 when defendant committed the lewd acts alleged in counts 6 and 7. When N.D. met defendant and M.D.'s aunt, their baby girl was a "couple months old." The baby girl was born in September 2012. Thus, N.D.'s testimony reasonably established that she first met defendant sometime in late 2012 or early 2013. N.D. further testified that she began to visit her father's house, which was next to defendant's house, when she was "12 or 13" years old. She was also "pretty sure" she was "the same age" when the charged offenses occurred. N.D. recalled that she watched a movie with defendant and M.D.'s aunt in January or February 2014. Defendant testified that he met N.D. "around August of 2013," and that he last saw her "sometime in January of 2014." N.D. turned 14 years old in August 2014, more than half a year after the time period that was reasonably established by the evidence. In sum, substantial evidence supports the jury's finding that N.D. was under 14 years of age at the time defendant committed the offenses in counts 6 and 7.
Defendant's reliance on People v. Mejia (2007) 155 Cal.App.4th 86 (Mejia) is misplaced. Mejia involved a conviction for continuous sexual abuse of a child (§ 288.5, subd. (a)), which required a showing that the child was under 14 years of age at the time of the offense and that the defendant committed at least three acts of misconduct over a three-month period. (Mejia, at pp. 93-94.) The appellate court found that "the only reasonable inference" from the evidence was that the three-month period of continuous abuse started about three months before the victim turned 14 years old, which forced the jury to "speculate that the first incident occurred early enough in June to satisfy the 90-day requirement . . . ." (Id. at p. 95.) In contrast, in the instant case the prosecution needed to show only that, for each count, a single act of abuse occurred before N.D. turned 14 years old. Further, the jury did not need to speculate as to whether N.D. was under 14 years of age because the evidence reasonably established that the lewd acts occurred before her 14th birthday.
Finally, to the extent defendant claims that the evidence was insufficient because N.D.'s testimony as to the timing of the charged conduct was "unclear" or in some respects inconsistent, the jury could reasonably believe N.D.'s testimony based on Carmichael's expert testimony that children "have a very difficult time with abstract concepts, like time, order, number." Additionally, this argument amounts to an invitation to reweigh the evidence and reassess witness credibility, which is beyond the scope of our appellate review. (Young, supra, 34 Cal.4th at p. 1181.)
B. CALCRIM No. 207
Defendant argues the trial court prejudicially erred in instructing the jury with CALCRIM No. 207 because it told the jury that the evidence merely needed to show that the crimes occurred "reasonably close" to a period of time "on or about and in between April 16th, 2011 and December 10th, 2014." This instruction, he contends, "misinstructed the jury" by referring to a period of time after N.D. turned 14 years old.
1. Background
The trial court explained on the record that the parties discussed the jury instructions in an unreported conference. The court listed the instructions to which the parties agreed, which included CALCRIM No. 207. No objection was raised to the instruction.
Pursuant to CALCRIM No. 207, the court instructed the jury as follows: "It is alleged that the crimes occurred on or about and in between April 16th, 2011 and December 10th, 2014. The People are not required to prove that the crime took place exactly on that day, but only that it happened reasonably close to that time period." This date range included dates relevant to both N.D.'s and M.D.'s allegations. The conduct involving M.D. was alleged to have occurred as late as December 10, 2014.
The trial court's instructions described count 6 as follows: "On or about and between January 1st, 2014, and July 31st, 2014, . . . the crime of lewd or lascivious act on a child under 14 . . . was committed by [defendant] . . . upon . . . [N.D.], a child under the age of 14, namely 13, while on the couch, with the intent of arousing, appealing to, gratifying the lust, passions, and sexual desires of the defendant and of the child." The court used the same language to describe the allegations in count 7.
In describing the elements of the offense, the court instructed the jury that the prosecution must prove that "[t]he child was under the age of 14 years of age at the time of act." The court explained, "Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun."
2. Analysis
Defendant does not argue that the instruction was an incorrect statement of the law. He contends it was ambiguous in the context of this case. " 'A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' [Citations.]" (People v. Landry (2016) 2 Cal.5th 52, 99-100.) Nevertheless, "[a] reviewing court may review an instruction even absent an objection 'if the substantial rights of the defendant were affected thereby.' [Citation.]" (People v. Hardy (2018) 5 Cal.5th 56, 91.) " 'Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim—at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was.' [Citation.]" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1087.) Because defendant argues the claimed instructional error affected his substantial rights, we reach the merits of his claim.
"It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." (People v. Burgener (1986) 41 Cal.3d 505, 538, disapproved on a different point in People v. Reyes (1998) 19 Cal.4th 743, 756.) We evaluate the challenged instruction in the context of all the instructions given by the trial court. (Boyde v. California (1990) 494 U.S. 370, 378.) "[An] instruction 'may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record. [Citation.] In addition, in reviewing [a potentially] ambiguous instruction such as the one at issue here, we inquire 'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." (Estelle v. McGuire (1991) 502 U.S. 62, 72.)
On this record, there is no reasonable likelihood that the jury misapplied CALCRIM No. 207. The trial court instructed the jury it could convict defendant of committing a lewd act on N.D. only if the prosecution proved she was under 14 years of age at the time the offense occurred. The court clarified that "[u]nder the law, a person becomes one year older as soon as the first minute of his or her birthday has begun." The jury was also told, with respect to counts 6 and 7, that the crimes allegedly occurred "between January 1st, 2014, and July 31st, 2014 . . . upon [N.D.], a child under the age of 14, namely 13 . . . ." In the context of all the instructions given by the court, a reasonable jury would understand that CALCRIM No. 207 merely "states the general rule that when a crime is alleged to have occurred 'on or about' a certain date, it is not necessary for the prosecution to prove the offense was committed on that precise date. [Citations.]" (People v. Rojas (2015) 237 Cal.App.4th 1298, 1304 (Rojas).) The other instructions, given specifically with the charge for counts 6 and 7, clarified that regardless of the particular date of the offense, the prosecution had to prove N.D. was under 14 years of age when each lewd act occurred.
Defendant's reliance on Rojas is misplaced. In Rojas, the jury was instructed using a modified version of CALCRIM No. 207. (Rojas, supra, 237 Cal.App.4th at p. 1303.) The instruction, as given, told the jury that "the crimes [alleged] occurred on or about December 1, 2006, through August 5, 2011. The People are not required to prove that those crimes took place exactly during those time periods, but only that they happened on a date or dates after August 12, 2005." (Ibid.) The charged offense was a violation of section 288.7, subdivision (a), which was effective as of September 20, 2006. (Rojas, at p. 1303.) The court determined that the reference to August 12, 2005, "allow[ed] for reasonable doubt" that the verdict for that count was based on conduct that occurred before the effective date of the statute. (Id. at p. 1307.)
The "[r]eference to August 12, 2005, was apparently intended to denote the earliest possible accrual point for the statute of limitations." (Rojas, supra, 237 Cal.App.4th at p. 1303.)
In contrast to Rojas, here none of the charges included a count that was alleged to have been committed " 'on a date or dates after' " a specific date. In addition, the instruction in Rojas "omitted the 'reasonably close' language and instead advised that, notwithstanding the time period alleged for Counts 2 and 3, it was sufficient for jurors to find those offenses 'happened on a date or dates after August 12, 2005.' " (Rojas, supra, 237 Cal.App.4th at p. 1307.) The Rojas court characterized this as "objectively confusing." (Ibid.) In this case, the challenged instruction did not omit the "reasonably close" language or introduce another "objectively confusing" date without explanation. Construed together with the trial court's other instructions, there is no reasonable likelihood the jury understood CALCRIM No. 207 to permit a conviction for counts 6 and 7 based on conduct that occurred when N.D. was 14 years of age.
C. CALCRIM No. 3550
Defendant argues that the trial court's modification of CALCRIM No. 3550 lowered the prosecution's burden of proof and denied him the right to due process.
1. Background
The court instructed the jury that it must communicate with the court only by written note. The court explained that before answering, it would consult with the attorneys in the case, and so it "may take some time" to answer. The court continued: "I will answer any questions in writing or orally, here in open court. Do not reveal to me or anyone else how the vote stands on the question of guilt or innocence in this case unless I ask you to do so." (Italics added.) Defendant did not object to the instruction or request a modification.
The italicized portion is a modification of CALCRIM No. 3550, which in its original form states: "Do not reveal to me or anyone else how the vote stands on the (question of guilt/[or] issues in this case) unless I ask you to do so."
The court also instructed the jury that a defendant is "presumed to be innocent" and "[t]his presumption requires the People to prove a defendant guilty beyond a reasonable doubt." The court emphasized: "Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty." In discussing the types of evidence presented, the court stated, "You may not convict a defendant unless the People have proved his guilt beyond a reasonable doubt." After instructing the jury on the use of the verdict forms, the court stated, "Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt, unless I specifically tell you otherwise."
In the prosecutor's closing, the prosecutor stated, "The burden is proof beyond a reasonable doubt." After recounting the evidence, she asserted that "[t]he evidence shows that the defendant is guilty beyond a reasonable doubt of the charges against him." During defense counsel's closing, counsel reminded the jury that "[t]here's a presumption of innocence that attaches to [defendant]" and that this presumption means defendant "sits here still not guilty of these charges." Defense counsel emphasized that his burden was not to prove defendant's innocence.
2. Analysis
Defendant argues that the phrase, "guilt or innocence," impermissibly "reframed the instruction to characterize the trial as a contest between 'guilt' on the one hand and 'innocence' on the other." As with defendant's other claim of instructional error, he did not object in the trial court. But, because he argues that the claimed error affected his substantial rights, we reach the merits of the claim.
Defendant acknowledges that "a somewhat similar contention" was rejected in People v. Frye (1998) 18 Cal.4th 894 (Frye), disapproved on another point by People v. Doolin (2009) 45 Cal.4th 390, 421 fn. 22. In Frye, the trial court's instructions to the jury made multiple references to "innocence." (Frye, at p. 958.) "The trial court instructed jurors not to be biased against defendant because he has been charged with a crime or brought to trial, nor to infer from these circumstances that defendant is more likely to be guilty than innocent. The court also instructed, in connection with the principle that motive is not an element of the charged crimes, that '[a]bsence of motive may tend to establish innocence.' Regarding flight after commission of a crime, the court explained that evidence of flight is not sufficient to establish guilt, but if proved, 'may be considered by you in light of all other proved facts in deciding the question of . . . guilt or innocence. . . . You may consider evidence that there may be reasons which are consistent with innocence.' " (Ibid.)
The high court rejected the defendant's claim of instructional error, finding that the trial court's reference to innocence "did not shift any burden of proof." (Frye, supra, 18 Cal.4th at p. 958.) The court noted that the jury had been correctly instructed on the presumption of innocence and the prosecution's burden of proof. (Ibid.) The court also observed that the prosecutor, in her closing remarks, "explained to the jury that the People had the burden of proof on each and every count." (Ibid.) The court concluded: "Viewing the instructions as a whole, and in light of the record at trial, . . . it is not reasonably likely the jury understood the challenged instructions to mean defendant had the burden of establishing his innocence." (Ibid.; accord, People v. Crew (2003) 31 Cal.4th 822, 847-848 [no reasonable likelihood jury misapplied or misconstrued four jury instructions that referred to "guilt or innocence"].)
Similarly here, the jury was instructed on the presumption of innocence and the prosecution's burden of proof. In addition, as in Frye, the prosecutor explained to the jury that it was the prosecution's burden to prove defendant's guilt beyond a reasonable doubt. Defense counsel reiterated that standard and reminded the jury that defendant did not have to prove his innocence. Considering the instructions as a whole, there is no reasonable likelihood the jury misunderstood the phrase "guilt or innocence" as lessening the prosecution's burden of proof.
D. Ability to Pay Fine and Assessments
Defendant argues that the trial court violated his right to due process by imposing the restitution fine, the court security assessment, and the Government Code section 70373 assessment without first determining whether he had the ability to pay. Defendant contends that "under the rationale of [People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas)], the case should be remanded for determination of whether [defendant] has the ability to pay" the challenged fine and assessments.
1. Background
The court imposed a $200 court security assessment (§ 1465.8), a $150 court facilities assessment (Gov. Code, § 70373), and a $10,000 restitution fine (§ 1202.4, subd. (b)(1)). Defendant did not object below or request that the court consider his ability to pay the fine or the assessments.
2. Analysis
In Dueñas, the trial court imposed, over the defendant's objections, a $30 court facilities assessment (Gov. Code, § 70373), a $40 court operations assessment (§ 1465.8), and a statutory minimum $150 restitution fine (§ 1202.4, subd. (b)(1)). (Dueñas, supra, 30 Cal.App.5th at pp. 1162-1163.) The appellate court reversed. The court held that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373." (Id. at p. 1164.) The court also held that "although Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Ibid.)
The Attorney General maintains that defendant forfeited his claim because he did not raise his constitutional challenge in the trial court. Defendant argues that any objection would have been futile, and his failure to object should be excused. Alternatively, he contends it is reviewable as "a facial challenge to imposition of these fees without a determination of ability to pay."
We consider only defendant's claim based on Dueñas. Defendant's supplemental brief contains no argument independent of Dueñas, and is inadequate to raise a purported facial challenge. --------
In People v. Gutierrez (2019) 35 Cal.App.5th 1027 (Gutierrez), the trial court imposed a restitution fine in the amount of $10,000 and certain fees and assessments totaling $1,300. The appellate court held that the defendant, who had been sentenced before Dueñas, had forfeited his right to raise an inability-to-pay argument on appeal by failing to raise the argument below. (Gutierrez, at p. 1029.) The court explained that the trial court had imposed not just a restitution fine greater than the statutory minimum, it had imposed the maximum amount permitted by statute. (Id. at p. 1033.) Because "even before Dueñas" section 1202.4 permitted the court to consider a defendant's ability to pay when it imposed a fine above the statutory minimum, "a defendant had every incentive to object to imposition of a maximum restitution fine based on inability to pay." (Gutierrez, at p. 1033.) Thus, the court explained, "even if Dueñas was unforeseeable . . . , under the facts of this case [the defendant] forfeited any ability-to-pay argument regarding the restitution fine by failing to object." (Ibid.) As for the other fees and assessments, the court stated that the defendant's challenge to these amounts was also forfeited because, as "a practical matter, if [the defendant] chose not to object to a $10,000 restitution fine based on an inability to pay, he surely would not complain on similar grounds regarding an additional $1,300 in fees." (Ibid.)
We find Gutierrez persuasive under the facts of this case. Because the court imposed a $10,000 restitution fine, an amount far greater than the $300 statutory minimum, defendant had the right, even before Dueñas, to request that the court consider his inability to pay that amount and "had every incentive" to do so. (Gutierrez, supra, 35 Cal.App.5th at p. 1033.) The same is true of the assessments. Because defendant failed to object to his ability to pay the $10,000 fine, we see no basis for excusing his failure to object to the assessments totaling $450 based on an inability to pay. (Ibid.; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 ["Given his failure to object to a $10,000 restitution fine based on inability to pay, [the defendant] has not shown a basis to vacate assessments totaling $120 for inability to pay."].)
E. Cumulative Error
Defendant contends that the cumulative impact of the errors discussed above rendered the trial fundamentally unfair. We have rejected each of defendant's individual claims of error. Because there are no errors to cumulate, we reject defendant's separate claim of cumulative error. (People v. Watkins (2012) 55 Cal.4th 999, 1036.)
IV. Disposition
The judgment is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.