Opinion
H044858
06-05-2020
THE PEOPLE, Plaintiff and Respondent, v. DENIS OLIVER PEREZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. C1515086)
I. INTRODUCTION
Defendant Denis Oliver Perez appeals after a jury found him guilty of possession of methamphetamine for sale (Health & Saf. Code, § 11378) and misdemeanor carrying a concealed firearm in a vehicle (Pen. Code, § 25400, subd. (a)(1)). The jury also found true the allegation that defendant was personally armed with a firearm when he possessed methamphetamine for sale (§ 12022, subd. (c)). The trial court placed defendant on probation with the condition that he serve one year in county jail, among other terms.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant contends that his trial counsel was constitutionally ineffective for failing to object to the prosecutor's argument that the jury should not consider the lesser included offense of simple possession of methamphetamine before determining its verdict on the greater offense of possession of methamphetamine for sale and for failing to object to a police officer's opinion testimony that pertained to defendant's guilt. Defendant also contends that the judgment must be reversed because the trial court failed to sua sponte instruct the jury on the proper use of circumstantial evidence with CALCRIM No. 224 instead of CALCRIM No. 225 and that even if none of the errors requires reversal when examined separately, the cumulative prejudice from the errors deprived defendant of a fair trial and requires reversal. Lastly, defendant contends that, based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the trial court violated defendant's due process rights under the federal and California Constitutions when it imposed various fines and fees.
For reasons that we will explain, we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Prosecution Evidence
1. The Incident
At approximately 6:40 p.m. on April 24, 2015, San Jose Police Officers Michael Santos and Garrie Thompson were traveling in an unmarked police car in an area with a high level of narcotics activity when Officer Santos saw someone walk up to an SUV and lean into the passenger window. Officer Santos found the activity suspicious and radioed another police unit before driving away.
Officers Matthew Sanfilippo and Matthew Rodriguez responded to the call. Noticing that the SUV did not have a front license plate, the officers approached the vehicle. The SUV's windows were rolled down and the officers could smell marijuana coming from inside. Defendant was in the driver's seat and the man who had been leaning into the passenger window, later identified as Oscar Hernandez, occupied the front passenger seat. There was an open beer can in the center console.
The officers asked the men to step out of the vehicle. As the men got out of the SUV, defendant dropped a marijuana joint on the ground. When Officer Rodriguez asked Hernandez whether he had anything illegal on him, he nodded toward his shirt pocket where the officer found a small baggie with the number "420" written on it. It was later determined that the baggie contained approximately .58 grams of methamphetamine. Hernandez was arrested for simple possession of methamphetamine and for being under the influence methamphetamine. No cell phone or pipe were found on him.
A search of the SUV revealed a digital scale in a compartment in the center console and a small baggie containing what appeared to be crystal methamphetamine in the rear ashtray connected to the center console. The baggie had "420" written on it.
Officer Rodriguez located a Tupperware container underneath the middle of the SUV's rear bench seat. Two baggies of suspected methamphetamine were inside the container. Also inside the container was a zip-lock bag holding numerous 1x1-inch baggies with "420" printed on them. A semiautomatic firearm with an unloaded magazine and a large glass jar containing approximately 33 grams of marijuana were next to the Tupperware container. No drug paraphernalia was found inside the vehicle.
Defendant was placed under arrest. A cell phone and $146 were found on him. Defendant displayed symptoms consistent with being under the influence of methamphetamine including fluttering eyelids, dried and chapped lips, profuse sweating, and an elevated pulse rate. Defendant was transported to the police department's preprocessing center. Officer Thompson performed Valtox testing on each item of suspected methamphetamine found in defendant's vehicle.
2. Expert Testimony
A criminalist determined that one of the baggies found inside the Tupperware container located in the vehicle contained 3.18 grams of methamphetamine. Pursuant to the lab's protocols, the criminalist solely tested and weighed the contents of the baggie containing the largest amount of suspected narcotics.
Officer Ramon Sanchez, Jr. testified as an expert in the possession of controlled substances for sale and Spanish slang terms for narcotics sales. Officer Sanchez reviewed and interpreted the text messages found on defendant's phone that were written in Spanish slang. In Officer Sanchez's opinion, one text messages asked, "[W]here is the drug[?]" Another message asked, "[D]o you want the drugs[?]" Another message stated, "I don't have enough [cash] for the ounce," which was followed by, "You could break some off" or "Take some out." The drugs were referred to as "pura masa" or "pure dough." Another text message stated, "I don't have money until later." Another text asked, "Do you have marijuana, homie[?]" Other text messages pertained to smoking methamphetamine.
Officer Sanchez opined that the text messages pertained to narcotics sales. Officer Sanchez stated that it was common for people to use slang terms for narcotics and he believed the term "masa" in the texts referred to methamphetamine. Officer Sanchez opined that the text messages about the ounce and "breaking some off" referred to methamphetamine rather than marijuana because methamphetamine is more commonly sold in an ounce.
Officer Rodriguez testified as an expert in methamphetamine and marijuana sales. Officer Rodriguez opined that two of the baggies associated with defendant contained approximately the same amount of narcotics. Officer Rodriguez stated that 3.18 grams was somewhat "low" for an "eight ball," or an eighth of an ounce, but the amount was consistent with methamphetamine sales. According to Officer Rodriguez, there are four "eight balls" in half an ounce. Officer Rodriguez testified that a drug dealer who sold multiple "eight balls" would be a mid-level dealer. For most users, .58 grams of methamphetamine would last half a day. Officer Rodriguez stated that "420" is a symbol for marijuana.
Officer Rodriguez testified regarding some of the text messages in English on defendant's cell phone. One of the text messages stated, " 'What's up man. Can you front me a half eight and a 20 in NTP tomorrow[?]' " Officer Rodriguez opined that the text message referenced half an eighth of an ounce, or 1.75 grams, of narcotics and .2 grams of narcotics for $20. Another text message stated, " 'LOL, dude, I just get half. And try to sell.' " Another message stated, " '[T]o sell an eighth for 80, but I need to buy something to give him.' " Officer Rodriguez believed the text related to the sale of methamphetamine based on the $80 price for an eighth of an ounce; $80 for an eighth of an ounce of marijuana would be "pretty excessive." The text messages also referenced "Seven Trees" and "meeting up." Officer Rodriguez was familiar with Seven Trees Street in San Jose as an area with a high concentration of narcotics. In Officer Rodriguez's opinion, the text messages on defendant's phone were consistent with drug transactions.
Officer Rodriguez stated that the scale found in the SUV was consistent with scales used to weigh methamphetamine; marijuana scales are typically bigger because the product is larger. The empty "420 baggies" were also consistent with methamphetamine packaging; baggies used in marijuana sales are typically larger. The lack of drug paraphernalia in the vehicle was also consistent with drug sales.
In Officer Rodriguez's opinion, based on the packaging, the text messages, the scale, and the firearm, the methamphetamine found inside the SUV was possessed for sale. In addition, the fact that a person seen walking up to the SUV was later found with methamphetamine packaged in the same kind of baggie recovered in the vehicle "ma[d]e it more of a sales case."
B. Defense Evidence
Defendant testified that he was 24 years old and had lived in San Jose for nine years. He was 21 or 22 years old in April 2015. Spanish was his first language.
Defendant stated that on April 24, 2015, he was sitting in the driver's seat of his SUV for about a half hour when police contacted him. He and Hernandez had been smoking marijuana.
Defendant testified that he knew Hernandez because defendant visited the area regularly and Hernandez slept on the street or in cars there. Defendant lived two blocks away.
Defendant stated that he lent Hernandez his SUV for about two weeks to sleep in and store his belongings because Hernandez did not have a place to live. Defendant had not used the SUV during that two-week period. On the date of his arrest, he and Hernandez were going to move Hernandez's belongings from the SUV into a van in the area.
Defendant stated that after the police told him to get out of the car, he was asked "where the drug was." Defendant responded that he had been smoking marijuana and drinking a beer.
Defendant testified that he did not see the police search the car. Approximately 45 minutes after the police first contacted him, an officer showed defendant a gun and a square container. Defendant did not know the square container was in the car, but he knew there was marijuana inside a glass container in the vehicle. Defendant bought the marijuana a few hours before the police arrived with money he had from his worker's compensation. The marijuana was next to the last row of seats in the back of the vehicle on the driver's side. Defendant had a cell phone on him.
Defendant stated that the police never mentioned that they found methamphetamine inside the square container and they did not open the container to show him. Defendant did not know there was methamphetamine in the vehicle.
Defendant testified that he owned the firearm found inside the vehicle. He had hidden it underneath a small white blanket in the third row of the SUV, which had been folded down. There were many other items in the SUV that belonged to Hernandez, such as electrical cables, recycling, and clothing. Defendant knew there were empty baggies and a scale in the vehicle but they did not belong to him.
Defendant stated that some of the text messages on his phone pertained to marijuana. The text messages had nothing to do with methamphetamine. The reference to "pura masa" was to "pure junk, only junk" or "pure enjoyment." In one message defendant asked someone if he wanted to "put up half to buy an ounce," but that did not pertain to methamphetamine. There was also a text message conversation with Hernandez where Hernandez asked defendant to lend him or give him an eighth of marijuana. In another text message, the word "droga" was used to refer to marijuana, not methamphetamine.
On cross-examination, defendant stated that he had left the gun hidden in the vehicle for about a week while Hernandez was using the car. He kept the gun in the SUV because he was going to look for someone and because the firearm did not work. Defendant told Hernandez not to touch the gun.
Defendant testified that half of the marijuana found in the vehicle was his and half belonged to his friend "El Cholo." Defendant stated that he used to sell marijuana to friends as a favor. Defendant buys an ounce of marijuana at a time to save money. He did not sell marijuana in April 2015.
C. Stipulations
The parties stipulated that defendant's blood tested negative for the presence of methamphetamine, cocaine, opiates, and PCP. Hernandez's blood tested positive for the presence of methamphetamine and negative for the presence of cocaine, opiates, and PCP.
D. Charges , Verdict , and Sentence
Defendant was charged with possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 1) and misdemeanor carrying a concealed firearm in a vehicle (§ 25400, subd. (a)(1); count 2). It was also alleged regarding count 1 that defendant was personally armed with a firearm. (§ 12022, subd. (c)).
A jury found defendant guilty as charged.
The trial court placed defendant on probation with the condition that he serve one year in county jail, among other terms.
III. DISCUSSION
A. Ineffective Assistance of Counsel
Defendant contends that he received ineffective assistance of counsel at trial for two reasons: (1) his counsel failed to object to the prosecutor's argument that the jury should not consider the lesser included offense of simple possession of methamphetamine before determining its verdict on the greater offense of possession of methamphetamine for sale; and (2) his counsel failed to object to a police officer's opinion testimony that pertained to defendant's guilt.
1. Legal Principles
To prevail on a claim of ineffective assistance of counsel, a defendant must establish both that his or her trial counsel's performance was deficient and that he or she suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The deficient performance component of an ineffective assistance claim requires a showing that "counsel's representation fell below an objective standard of reasonableness" under prevailing professional norms. (Id. at p. 688.) Regarding prejudice, a "defendant must show that there is a reasonable probability"—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) Prejudice requires a showing of "a ' "demonstrable reality," not simply speculation.' " (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
"[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Strickland, supra, 466 U.S. at p. 697; see In re Cox (2003) 30 Cal.4th 974, 1020.)
2. Failure to Object to the Prosecutor's Closing Argument
a. Trial Court Proceedings
The trial court instructed the jury before closing arguments. Regarding deliberations and the completion of verdict forms, the court gave CALCRIM No. 3517. As relevant here, the instruction stated: "If all of you find that the defendant is not guilty of a greater charged crime, you may find him guilty of a lesser crime if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime. A defendant may not be convicted of both a greater and lesser crime for the same conduct. [¶] . . . [¶] Simple possession of methamphetamine is a lesser crime of possession for sale of methamphetamine as charged in Count 1. [¶] It is up to you to decide the order in which you consider each crime and the relevant evidence, but I can accept a verdict of guilty of a lesser crime only if you have found the defendant not guilty of the corresponding greater crime."
During closing argument, the prosecutor stated: "So . . . you heard about what the judge talked about for lesser-includeds. These are something that's required by operation of law. It attaches to some charges in our law. It doesn't attach to others. But just sale of a controlled substance, by operation of law we have to give you a second jury instruction about simple possession. [¶] . . . [¶] When you get the jury instructions, you are going to get two separate pieces of paper for Count One. First one is going to say Count One, sale [sic] of methamphetamine. Your second piece is going to be [the] lesser included of Count One. You can go through and decide these however you want. . . . If I have proven that there is possession for sales of methamphetamine, I have necessarily also proven that there is just possession of methamphetamine. . . . [¶] If you believe that the defendant is guilty of sales [sic], you can stop there. You don't need to go to the lesser. If you believe that the defendant is not guilty of the possession for sales, what you then do is move to the lesser. And in the lesser you say . . . now do I believe that he's guilty or not guilty of the lesser. [¶] What you do not do is guilty of the greater and guilty of the lesser. [¶] You also don't do guilty of the lesser, not sure about the greater. You have to acquit on the sales [sic] charge first before you can consider the lesser. [¶] Now if you want to go through do we have all the elements we have, and talk about the lesser, but as far as giving us back jury instructions [sic], before you get to the lesser, you have to acquit on the greater charge and the greater is going to be Count One."
After closing arguments concluded, the trial court explained the verdict forms to the jury and stated: "There is a little twist in this case in that -- and I think counsel referred to it -- there is a lesser-included offense. And basically possession of methamphetamine is a lesser-included offense of possession of methamphetamine for the purpose of sale. [¶] So if you unanimously agree that the defendant did not commit possession of methamphetamine for sale[], in other words he's not guilty of Count One, then you can fill out the verdict form for the lesser-included [offense] of simple possession. [¶] You can discuss them in any order you want. You can talk about Count Two, the lesser-included. I'm not talking about controlling your deliberations. I'm talking about turning in the verdict form[s]."
b. Analysis
Defendant contends that his trial counsel was ineffective for failing to object to the prosecutor's statement during argument on the lesser included offense that the jury had "to acquit on the sales charge first before [it] c[ould] consider the lesser." Defendant asserts that the statement violated the rule set forth in People v. Kurtzman (1988) 46 Cal.3d 322 (Kurtzman) and his right to due process. We conclude defendant has not established that he was prejudiced by his counsel's failure to object to the prosecutor's argument.
Kurtzman involved a trial court's response to a jury question. During deliberations, the jury asked, " 'Can we find the defendant guilty of manslaughter without unanimously finding him not guilty of murder in the second degree?' " (Kurtzman, supra, 46 Cal.3d at p. 328.) The trial court responded, " 'No, you must unanimously agree on the second degree murder offense before considering voluntary manslaughter.' " (Ibid.) The California Supreme Court held that the trial court erred in its response because a jury "may consider charges in any order it wishes to facilitate ultimate agreement on a conviction or acquittal" even though "it may not return a verdict on lesser offenses unless it has unanimously agreed on a disposition of the greater." (Id. at p. 332.) Under this rule, "a trial court should not tell the jury it must first unanimously acquit the defendant of the greater offense before deliberating on or even considering a lesser offense. [Citation.]" (People v. Dennis (1998) 17 Cal.4th 468, 536 (Dennis).)
Here, as the Attorney General concedes, the prosecutor erred when she told the jury that it had "to acquit on the sales charge first before [it] c[ould] consider the lesser." This statement constituted error because although a jury "may [be] restrict[ed] . . . from returning a verdict on a lesser included offense before acquitting on a greater offense, [it] may not [be] preclude[d] . . . from considering lesser offenses during deliberations." (Dennis, supra, 17 Cal.4th at p. 536.) Under California law, a jury is not required "to deliberate in any particular sequence." (Kurtzman, supra, 46 Cal.3d at p. 334.)
While the prosecutor's statement was improper, defendant has not demonstrated that but for his counsel's failure to object, "the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.) When instructing on deliberations and the completion of verdicts with CALCRIM No. 3517, the trial court told the jury "[i]t [was] up to you to decide the order in which you consider each crime and the relevant evidence, but I can accept a verdict of guilty of a lesser crime only if you have found the defendant not guilty of the corresponding greater crime." Also included in the court's instructions was CALCRIM No. 200, which admonished the jury, "If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." Moreover, at the conclusion of closing arguments, the court instructed the jury, "You can discuss [the greater and lesser offenses] in any order you want. You can talk about Count Two [and] the lesser included."
We presume the jury followed the trial court's instructions. (People v. Edwards (2013) 57 Cal.4th 658, 764.) "When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for '[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade.' [Citation.]" (People v. Osband (1996) 13 Cal.4th 622, 717.) Further, the prosecutor's argument regarding the consideration of the lesser included offense was unclear. Although the prosecutor incorrectly told jurors, "You have to acquit on the sales charge first before you can consider the lesser," she correctly stated, "You can go through and decide these however you want." This lack of clarity would have diminished the strength of the prosecutor's argument in light of the court's instructions.
In addition, the evidence against defendant was strong. During a search of defendant's SUV, police found 3.18 grams of methamphetamine in a zip lock bag, approximately the same amount of suspected methamphetamine in another zip lock, a digital scale, numerous empty 1x1-inch baggies with the number "420" on them, one "420" baggie containing suspected methamphetamine, and a firearm. The police also recovered defendant's cell phone which contained text messages indicative of sales activity. An officer testified that in an area known for a high level of narcotics activity, he saw Hernandez walk up to the SUV and lean into the passenger window. Another officer testified that when he made contact with the occupants of the SUV, he found defendant in the driver's seat and Hernandez in the passenger seat. Hernandez was under the influence of methamphetamine and had .58 grams of methamphetamine in his shirt pocket, packaged in a baggie with "420" written on it.
Defendant testified that he did not know there was methamphetamine in the vehicle. The jury necessarily rejected this testimony when it found that defendant possessed methamphetamine for the purpose of sale.
Based on the trial court's instructions to the jury, the strength of the prosecution's evidence, and the jury's rejection of defendant's testimony, we conclude that defendant has not established "a reasonable probability that . . . the result of the proceeding would have been different" had his trial counsel objected to the prosecutor's misstatement regarding the jury's consideration of the lesser included offense. (Strickland, supra, 466 U.S. at p. 694.) We therefore deny his ineffective assistance of counsel claim. (See id. at p. 697.)
3. Failure to Object to Officer Sanfilippo's Testimony
a. Trial Court Proceedings
Several witnesses used the terms "suspect one," or "S-1," and "suspect two," or "S-2," during trial. First, Officer Thompson testified that he received several items from Officers Rodriguez and Sanfilippo at the preprocessing center that he packaged and booked into evidence. Officer Thompson stated that some of the bags containing narcotics were "associated with suspect one" and another bag was "identified as belonging to suspect two."
Next, the following exchange occurred during Officer Sanfilippo's direct examination:
"[THE PROSECUTOR]: And just a general police practice about how you -- you have multiple subjects and you have drugs coming off the two subjects. Do you separate them, these are the drugs from this person, these [are] the drugs from that person?
"[DEFENSE COUNSEL]: Objection to foundation.
"[OFFICER SANFILIPPO]: Yes.
"THE COURT: Objection is overruled.
"[OFFICER SANFILIPPO]: Yes.
"[THE PROSECUTOR]: Is one of the ways you do it, marking one as S-1 or like S-2, for example?
"[OFFICER SANFILIPPO]: Yes.
"[THE PROSECUTOR]: And so when you -- when you took that methamphetamine out of the ashtray and were associating it, would you have associated it with either suspect one or suspect two?
"[OFFICER SANFILIPPO]: Yes.
"[THE PROSECUTOR]: And how do you choose which suspect to assign that to?
"[OFFICER SANFILIPPO]: It would be based on what either suspect said, whether one admitted to it or not.
"[THE PROSECUTOR]: Could it also
"[DEFENSE COUNSEL]: Objection. Move to strike. Foundation.
"THE COURT: Objection is overruled.
"[¶] . . . [¶]
"[THE PROSECUTOR]: Does location about where you find something factor into it?
"[OFFICER SANFILIPPO]: Yes.
"[THE PROSECUTOR]: If you find something in someone's vehicle, could you associate that with that person?
"[OFFICER SANFILIPPO]: Yes.
"[THE PROSECUTOR]: So in this particular case, the methamphetamine that was found in the ashtray behind the center console, did you associate that with one of the suspects?
"[OFFICER SANFILIPPO]: Yes.
"[THE PROSECUTOR]: Which suspect was that?
"[OFFICER SANFILIPPO]: It would be [defendant]."
The criminalist testified that "there was one bag marked S-1 that contained three bags. There was another bag marked S-2 that contained one bag." He proceeded to testify regarding his testing of the contents inside the "S-1" bag and the "S-2" bag.
Lastly, Officer Rodriguez testified that "two [of the] zip-lock baggies inside the S-1 baggie . . . look[ed] about the same." Officer Rodriguez also responded to several questions by the prosecutor where she referred to the bags as labeled either "S-1" or "S-2."
b. Analysis
Defendant contends that his trial counsel rendered ineffective assistance when she failed to object to Officer Sanfilippo's testimony that he associated the methamphetamine found in defendant's vehicle with defendant because the testimony "amounted to an improper opinion that [defendant] was guilty because it expressed his opinion as a police officer that [defendant] was the one who possessed the methamphetamine, not Hernandez." We are not persuaded.
In People v. Coffman and Marlow (2004) 34 Cal.4th 1 (Coffman), the California Supreme Court reaffirmed the longstanding rule that "[a] witness may not express an opinion on a defendant's guilt. [Citations.]" (Id. at p. 77.) The court explained that "[t]he reason for this rule is not because guilt is the ultimate issue of fact for the jury, as opinion testimony often goes to the ultimate issue. ([Citations]; see Evid.Code, § 805.) 'Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.' [Citation.]" (Ibid.)
In Coffman, the prosecutor cross-examined a codefendant about the defendant's participation in the crimes. (Coffman, supra, 34 Cal.4th at pp. 76-77.) After quoting the allegations in the information, the prosecutor asked the codefendant whether the defendant willingly went along with the charged crimes of kidnapping and robbery and whether the defendant and codefendant acted as a team. (Ibid.) The codefendant responded in the affirmative. (Ibid.)
The defendant asserted on appeal that the codefendant "gave inadmissible opinion testimony on the central question of [defendant's] guilt." (Coffman, supra, 34 Cal.4th at p. 76.) The California Supreme Court concluded otherwise, determining that "the prosecutor was attempting, with some success, to get [the codefendant] to concede the truth of the allegations against him and to describe, as a percipient witness, the degree of defendant['s] coparticipation during the commission of the offenses . . . . We see in [the codefendant's] testimony the expression of an opinion regarding neither [the defendant's] guilt nor her credibility or state of mind." (Id. at p. 77.)
Here, Officer Sanfilippo was a percipient witness to the police contact with defendant and Hernandez, the search of defendant and Hernandez, and the search of defendant's SUV. The testimony at issue pertained to the police practice of distinctly labeling evidence in an investigation involving multiple suspects, the bases for associating evidence with one suspect versus another, and the fact that Officer Sanfilippo associated the suspected narcotics recovered from the center console ashtray with defendant. Officer Sanfilippo's testimony does not constitute opinion testimony regarding defendant's guilt of possession of methamphetamine for sale but is rather an explanation of Officer Sanfilippo's conduct during the investigation—i.e., why he labeled items S-1 versus S-2—and was necessary to explain other evidence admitted at trial. As such, it was not improper, and defendant's trial counsel was not ineffective for declining to object to it on the basis of improper opinion testimony. (See People v. Price (1991) 1 Cal.4th 324, 327 [counsel is not required to make baseless objections], superseded by statute on other grounds, as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1162.)
Although defendant argues that "Officer Sanfilippo opined that all of the methamphetamine found in the common areas and under the back seat of the SUV (placed in bag S-1) was 'associated' with [defendant]," the sole testimony he cites does not include such a statement. Rather, the testimony cited by defendant involves Officer Sanfilippo's statements that evidence found in someone's vehicle could be associated with that person and that he associated the methamphetamine found in the center console ashtray with defendant.
But even if we were to assume that Officer Sanfilippo's statement that he associated the methamphetamine with defendant constituted improper opinion testimony regarding defendant's guilt of possession of methamphetamine for sale, we would determine that defendant has not demonstrated that he was prejudiced by his counsel's failure to object to it. When a witness states a legal conclusion that the jury is fully equipped to draw, the opinion is superfluous. (See People v. Arguello (1966) 244 Cal.App.2d 413, 421-422.)
The trial court instructed the jurors that they alone were the finders of fact and that they could consider whether other evidence proved or disproved a fact about which a witness testified. The jurors heard Officers Sanfilippo and Rodriguez testify about what they found in the SUV and where they found it. This included, in addition to the small "420" baggie of suspected methamphetamine in the SUV's center console ashtray, a Tupperware container holding two zip lock bags of suspected methamphetamine, one of which was determined to contain 3.18 grams of methamphetamine, and numerous empty 1x1-inch "420" baggies. Marijuana and a firearm were found next to the Tupperware container and a methamphetamine scale was found in the center console. The officers also testified regarding defendant's and Hernandez's positions in the vehicle and the methamphetamine recovered on Hernandez's person. In addition, the jurors heard Officer Santos's testimony that he saw Hernandez walk up to the SUV and lean into the passenger window before Officers Sanfilippo and Rodriguez responded to the scene. And they heard defendant's testimony that he owned the SUV, the firearm, and the marijuana but he was unaware of the methamphetamine in the vehicle. Given this evidence and the trial court's instructions, the jurors were well aware that it was their role to decide the facts and they were equipped with the evidence necessary to do so. Thus, we conclude that it is not reasonably probable that defendant would have obtained a more favorable trial outcome had Officer Sanfilippo's testimony regarding his association of the methamphetamine with defendant been excluded. (See Strickland, supra, 466 U.S. at p. 694.)
For these reasons, we determine that defendant has not demonstrated his counsel rendered constitutionally ineffective assistance when she failed to object to Officer Sanfilippo's testimony.
B. Circumstantial Evidence Instruction
Defendant contends that the trial court erred when it instructed the jury on circumstantial evidence with CALCRIM No. 225 instead of CALCRIM No. 224. The Attorney General concedes the error but argues that reversal is not required because defendant was not prejudiced.
1. Trial Court Proceedings
The trial court instructed the jury on the reasonable doubt standard with CALCRIM No. 220. As relevant here, the instruction stated that "[a] defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true."
The court also instructed the jury with CALCRIM No. 223, which defines direct and circumstantial evidence. CALCRIM No. 223 explained to the jury that "[f]acts may be proven by direct or circumstantial evidence or by a combination of both. [¶] Direct evidence can prove a fact by itself. For example, it a witness testifies he saw it raining outside before he came into the courthouse, that testimony is direct evidence that it was raining. [¶] Circumstantial evidence also may be called indirect evidence. Circumstantial evidence does not directly prove the fact to be decided but is evidence of another fact or group of facts from which you may logically and reasonably conclude the truth of the fact in question. For instance, if a witness testifies that he saw someone coming inside wearing a raincoat covered with drops of water, that testimony is circumstantial evidence; because it may support a conclusion that it was raining outside. [¶] Both direct and circumstantial evidence are acceptable types of evidence that prove or disprove the elements of a charge including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence."
The trial court instructed the jury on the use of circumstantial evidence to prove intent or mental state with CALCRIM No. 225 as follows: "The People must prove not only that the defendant did the acts charged, but also that he acted with a particular intent. The instruction for each crime and allegation explains the intent required. [¶] An intent may be proved by circumstantial evidence. [¶] Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to conclude that the defendant had the required intent, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required intent and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required intent was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
The trial court did not instruct the jury with CALCRIM No. 224, which states: "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
The trial court's conference with counsel on the jury instructions was not reported. Defendant did not object to the court's instruction on circumstantial evidence with CALCRIM No. 225.
2. Instructional Error
A trial court has the duty to sua sponte instruct "on general principles of law that are closely and openly connected with the facts presented at trial" and that are necessary for a jury's understanding of the case. (People v. Ervin (2000) 22 Cal.4th 48, 90.) We review a trial court's instructions de novo because the underlying question is one of law and the application of legal principles. (See People v. Alvarez (1996) 14 Cal.4th 155, 217.)
Both CALCRIM No. 224 and CALCRIM No. 225 instruct the jury on the proper use of circumstantial evidence. CALCRIM No. 224 instructs on the sufficiency of circumstantial evidence generally, whereas CALCRIM No. 225 instructs on the use of circumstantial evidence to prove intent or mental state. "The general instruction on sufficiency of circumstantial evidence is a more inclusive instruction on sufficiency of circumstantial evidence than the instruction on sufficiency of circumstantial evidence to prove specific intent or mental state, and the former is the proper instruction to give unless the only element of the offense that rests substantially or entirely on circumstantial evidence is that of specific intent or mental state." (People v. Cole (2004) 33 Cal.4th 1158, 1222 (Cole).) Instruction on the principles described in CALCRIM No. 224 " 'must be given sua sponte when the prosecution substantially relies on circumstantial evidence to prove guilt.' " (People v. Rogers (2006) 39 Cal.4th 826, 885 (Rogers).)
We agree with the parties that the general instruction on circumstantial evidence was required here because the prosecution's proof of defendant's guilt of possession of methamphetamine for sale was circumstantial. Not only was defendant's mental state proved by circumstantial evidence, defendant's possession of methamphetamine was proved by circumstantial evidence as well. This is not a case where "the only element of the offense that rests substantially or entirely on circumstantial evidence is that of specific intent or mental state." (Cole, supra, 33 Cal.4th at p. 1222.) Thus, the trial court erred when it instructed the jury with CALCRIM No. 225 instead of CALCRIM No. 224.
Defendant makes no claim that the trial court's instructional error pertained to the charge of carrying a concealed firearm in a vehicle. --------
3. Prejudice
Defendant argues that he was prejudiced by the instructional error because "[t]here was circumstantial evidence calling the prosecution's case into doubt and suggesting that someone else (Hernandez) possessed the meth[amphetamine], such that a reasonable juror could draw a conclusion from the evidence pointing towards innocence." Defendant contends that the error was of federal constitutional magnitude because it "arguably diminished the requirement of proof beyond a reasonable doubt" and violated his due process rights, including his right to present a defense. Defendant asserts that reversal is required under Chapman v. California (1976) 386 U.S. 18, 24 because the error was not harmless beyond a reasonable doubt.
However, "the federal Constitution does not require trial courts to instruct on the evaluation of circumstantial evidence when, as here, the jury is properly instructed on the reasonable doubt standard." (People v. McKinnon (2011) 52 Cal.4th 610, 677; cf. Rogers, supra, 39 Cal.4th at pp. 886-887.) The trial court instructed the jury on the reasonable doubt standard with CALCRIM No. 220, which correctly stated the law. (People v. Aranda (2012) 55 Cal.4th 342, 353.) We therefore decline to find federal constitutional error.
Prejudice arising from state law error is assessed under the standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836. Thus, we must determine whether there is a reasonable probability that had the jury been instructed on circumstantial evidence with CALCRIM No. 224 instead of CALCRIM No. 225, defendant would have obtained a more favorable outcome at trial. (See Rogers, supra, 39 Cal.4th at p. 886.)
Because the trial court instructed the jury on the use of circumstantial evidence to prove intent, the court's failure to instruct on the use of circumstantial evidence generally could have affected only the issue of defendant's possession of methamphetamine. (See Rogers, supra, 39 Cal.4th at p. 886.) As we stated above, the evidence against defendant was strong. Police saw Hernandez approach defendant's SUV and lean into the passenger window in an area known for narcotics activity. Defendant was then contacted in the driver's seat of the vehicle with Hernandez in the passenger seat. A subsequent search of the SUV revealed a small baggie with "420" written on it in the center console ashtray containing suspected methamphetamine, a Tupperware container holding two zip lock bags of suspected methamphetamine, one of which was determined to contain 3.18 grams of methamphetamine, numerous empty 1x1-inch "420" baggies, a jar of marijuana, a scale, and a gun. Although defendant denied knowing about the methamphetamine, he admitted that the marijuana and gun were his. The marijuana and gun were found next to the Tupperware container with the methamphetamine and packaging inside.
Some of the text messages on defendant's phone were indicative of drug possession and sales. For example, a message referenced " 'sell[ing] an eighth for 80.' " Another asked, " 'What's up man. Can you front me a half eight [sic] and a 20 in NTP tomorrow[?]' " Another message stated, " 'LOL, dude, I just get half. And try to sell.' " While defendant testified that the text messages pertained to marijuana, there was evidence that two of the zip lock bags inside the Tupperware container in defendant's SUV each contained close to an eighth of an ounce of suspected methamphetamine, which is consistent with the amount mentioned in one of the text messages. Moreover, there was expert testimony that the price of $80 for an eighth of an ounce was consistent with methamphetamine but not marijuana. And although defendant testified that he had a text message exchange with Hernandez where Hernandez asked defendant to lend him or give him an eighth of marijuana, that testimony was inconsistent with the fact that methamphetamine, not marijuana, was found on Hernandez's person.
In addition, the trial court's instruction with CALCRIM No. 225 told jurors that "[b]efore [they could] rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, [they] must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt" and that "when considering circumstantial evidence, [they] must accept only reasonable conclusions and reject any that are unreasonable." This same language is found in the general instruction on the use of circumstantial evidence that the trial court did not give, CALCRIM No. 224. And the trial court instructed that "[w]henever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true."
Based on the strength of the evidence against defendant and the instructions on circumstantial evidence and the reasonable doubt standard that were given by the trial court, we conclude that there is no reasonable probability that had the jury been instructed on circumstantial evidence with CALCRIM No. 224 instead of CALCRIM No. 225, defendant would have obtained a more favorable outcome at trial. (See Rogers, supra, 39 Cal.4th at p. 886.) For these reasons, we determine that the trial court's instructional error was harmless.
4. Ineffective Assistance of Counsel
Defendant also contends that his counsel was constitutionally ineffective for failing to request the trial court to instruct the jury with CALCRIM No. 224.
We have determined that the trial court's error was harmless because there is no reasonable probability that defendant would have obtained a more favorable outcome had the jury been instructed on circumstantial evidence with CALCRIM No. 224 instead of CALCRIM No. 225. (See Rogers, supra, 39 Cal.4th at p. 886.) For the same reasons, we reject defendant's ineffective assistance claim. (See Strickland, supra, 466 U.S. at p. 694 [to prevail on an ineffective assistance of counsel claim, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"].)
C. Cumulative Prejudice
Defendant contends that his convictions must be reversed due to cumulative prejudice from his counsel's ineffective assistance and the trial court's instructional error.
However, as we have explained, defendant has failed to establish that he was prejudiced by any alleged deficiency of counsel. Accordingly, "defendant's claim based upon the cumulative effect of ineffective assistance of counsel also must fail." (People v. Smithey (1999) 20 Cal.4th 936, 1017.) Since we have found only one instructional error committed by the trial court, we reject defendant's claim that cumulative prejudice deprived him of a fair trial. (See In re Reno (2012) 55 Cal.4th 428, 483; People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.)
D. Duenas Error
Relying on Dueñas, supra, 30 Cal.App.5th 1157, which was decided after defendant was sentenced, defendant contends that the trial court violated his due process rights under the federal and California Constitutions because it failed to determine whether he had the present ability to pay various fines and assessments before it imposed them. Defendant challenges the imposition of a $300 restitution fine (§ 1202.4), an $80 court operations assessment (§ 1465.8), and a $60 court facilities assessment (Gov. Code, § 70373), as well as the suspended imposition of a $300 probation revocation restitution fine (§ 1202.44).
The Attorney General asserts that defendant's claim has been forfeited by his failure to object on due process grounds below. The Attorney General also argues that Dueñas was wrongly decided as to restitution fines and that the issue should be analyzed under the excessive fines clause of the Eighth Amendment to the federal Constitution. Regarding the court operations and court facilities assessments, the Attorney General "does not seek to uphold the imposition of these assessments on those who have no ability to pay," but asserts that "imposition of th[e] [assessments] without an ability to pay finding was harmless."
1. Trial Court Proceedings
When the trial court placed defendant on probation, it ordered him to pay the following fines, fees, and assessments: (1) a restitution fine of $300 plus a 10 percent administrative fee; (2) a criminal laboratory analysis fee of $50 plus penalty assessment (Health & Saf. Code, § 11372.5); (3) a drug program fee of $150 plus penalty assessment (Health & Saf. Code, § 11372.7); (4) a court operations assessment of $80; (5) a court facilities assessment of $60; (6) a presentence investigation fee of $450 (§ 1203.1b); and (7) a probation supervision fee not to exceed $110 per month (§ 1203.1b). The court also imposed and suspended a $300 probation revocation restitution fine.
Defendant objected to the imposition of two fees, one of which the trial court declined to impose. First, defendant objected to the imposition of a booking fee (Gov. Code, § 29550.2). Defendant asserted that "the Court does not have to impose [the fee] based on ability to pay." Defendant also argued that there had not been "a sufficient showing with respect to the setting of the amount of that fee." When asked for its position, the prosecution submitted on the issue. The trial court declined to impose the booking fee.
Second, defendant inquired whether the court would consider imposing a lower probation supervision fee. The court declined defendant's request.
2. Dueñas
In Dueñas, the defendant at sentencing requested a hearing to determine her ability to pay various amounts that were imposed by the trial court. (Dueñas, supra, 30 Cal.App.5th at p. 1162.) At a subsequent ability-to-pay hearing the court reviewed the defendant's "uncontested declaration concerning her financial circumstances." (Id. at p. 1163.) The court waived attorney's fees based on the defendant's indigence but rejected her constitutional claim that due process required the court to consider her ability to pay other fines and assessments, including a minimum restitution fine under section 1202.4, a $40 court operations assessment under section 1465.8, and a $30 court facilities assessment under Government Code section 70373. (Dueñas, supra, at p. 1163; see id. at p. 1169.)
On appeal, the Dueñas court observed that the purpose of the $40 assessment under section 1465.8 is "[t]o assist in funding court operations" (§ 1465.8, subd. (a)(1)), and that the purpose of the $30 assessment under Government Code section 70373 is "[t]o ensure and maintain adequate funding for court facilities" (Gov. Code, § 70373, subd. (a)(1)). Regarding such "fee-generating statutes" and their impact on indigent defendants, the Dueñas court stated that " '[c]riminal justice debt and associated collection practices can damage credit, interfere with a defendant's commitments, such as child support obligations, restrict employment opportunities and otherwise impede reentry and rehabilitation. . . .' [¶] These additional, potentially devastating consequences suffered only by indigent persons in effect transform a funding mechanism for the courts into additional punishment for a criminal conviction for those unable to pay." (Dueñas, supra, 30 Cal.App.5th at pp. 1165, 1168.) Based primarily on a trio of cases—Griffin v. Illinois (1956) 351 U.S. 12 (Griffin), In re Antazo (1970) 3 Cal.3d 100 (Antazo), and Bearden v. Georgia (1983) 461 U.S. 660 (Bearden)—the Dueñas court concluded that imposition of the court operations assessment and court facilities assessment without a determination of the defendant's ability to pay was "fundamentally unfair" and violated due process under the federal and California Constitutions. (Dueñas, supra, at p. 1168.)
Regarding restitution fines, the Dueñas court further stated that a wealthy defendant who successfully completes probation would have an absolute right to have the charges against the defendant dismissed under section 1203.4, subdivision (a)(1). (Dueñas, supra, 30 Cal.App.5th at pp. 1170, 1171.) An indigent probationer, on the other hand, who could not afford the mandatory restitution fine, would have to persuade the trial court that dismissal of the charges and relief from the penalties of the offense were in the interest of justice. (Ibid., citing § 1203.4, subd. (a)(1).) The Dueñas court found that "[t]he statutory scheme thus results in a limitation of rights to those who are unable to pay," and that section 1202.4 is "not a substitute for due process." ( Dueñas, supra, at p. 1171, fn. omitted.) The Dueñas court concluded that the execution of a restitution fine under section 1202.4 "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." (Dueñas, supra, at p. 1164.)
3. Forfeiture
The Attorney General contends that defendant's claim has been forfeited because he failed to object at sentencing to the fines and assessments he challenges here.
The Courts of Appeal have reached different conclusions regarding whether a due process claim under Dueñas is forfeited if the defendant failed to object in the trial court to the imposition of the restitution fine, the court operations assessment, or the court facilities assessment. (See, e.g., People v. Rodriguez (2019) 40 Cal.App.5th 194, 197, 206 [Dueñas claim forfeited]; People v. Jones (2019) 36 Cal.App.5th 1028, 1031-1034 (Jones) [due process objection based on Dueñas not forfeited]; People v. Santos (2019) 38 Cal.App.5th 923, 932 (Santos) [claim based on Dueñas not forfeited].)
" 'Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence.' [Citation.] . . . In determining whether the objection would have been futile, 'we consider the "state of the law as it would have appeared to competent and knowledgeable counsel at the time of the trial." ' [Citations.]" (Jones, supra, 36 Cal.App.5th at p. 1031.) The forfeiture rule does not apply when " ' "the pertinent law later changed so unforeseeably that it is unreasonable to expect trial counsel to have anticipated the change." ' [Citation.]" (Ibid.)
Prior to Dueñas, the "controlling case law on point effectively foreclosed any objection that imposing the [minimum] $300 restitution fine without conducting an ability to pay hearing violated [a defendant's] due process rights." (Jones, supra, 36 Cal.App.5th at p. 1031.) In People v. Long (1985) 164 Cal.App.3d 820 (Long), the appellate court rejected the defendant's argument that "imposition of the . . . restitution fine at the time of his sentencing without consideration of his ability to pay constituted a denial of due process." (Id. at p. 824, italics omitted [analyzing § 1202.4 and former Gov. Code, § 13967].) The fact that " 'some attorneys may have had the foresight to raise this issue [in Dueñas] does not mean that competent and knowledgeable counsel reasonably could have been expected to have anticipated' Dueñas. [Citation.]" (Jones, supra, at p. 1033.)
In light of Long, and the fact that the statutes requiring imposition of a minimum restitution fine, a suspended probation revocation restitution fine in the same amount as the restitution fine, a court operations assessment, and a court facilities assessment either preclude, or do not require, an ability-to-pay determination (§§ 1202.4, subd. (c), 1202.44, 1465.8, subd. (a); Gov. Code, § 70373, subd. (a)(1)), we will assume that defendant did not forfeit his due process claim under Dueñas regarding the $300 minimum restitution fine, the suspended $300 probation revocation restitution fine, the $80 court operations assessment, and the $60 court facilities assessment. (See Jones, supra, 36 Cal.App.5th at pp. 1031-1034 [due process objection based on Dueñas not forfeited]; Santos, supra, 38 Cal.App.5th at p. 932 [claim based on Dueñas not forfeited].) Although defendant objected to the booking fee and the probation supervision fee, both of those statutes required ability-to-pay determinations. (Gov. Code, § 29550.2, subd. (a); § 1203.1b, subds. (a), (b).)
4. Analysis
The Courts of Appeal have reached conflicting conclusions regarding whether Dueñas was correctly decided, and the issue is currently before the California Supreme Court. (See, e.g., People v. Kopp (2019) 38 Cal.App.5th 47, 95 [agreeing with Dueñas that due process requires an ability to pay determination before imposition of court operations or court facilities assessments], review granted Nov. 13, 2019, S257844; Santos, supra, 38 Cal.App.5th at pp. 926-927 [applying "the principles articulated [in Dueñas]"]; People v. Hicks (2019) 40 Cal.App.5th 320, 326, review granted Nov. 26, 2019, S258946 (Hicks) [concluding Dueñas improperly expanded the boundaries of due process because "the two strands of due process precedent" it relied on do not support its rule]; People v. Adams (2020) 44 Cal.App.5th 828, 831-832 (Adams) [same]; People v. Petri (2020) 45 Cal.App.5th 82, 90-92 (Petri) [same].) For the following reasons, we do not find Dueñas persuasive, and we determine that the trial court did not err in imposing the restitution fine, court facilities assessment, and court operations assessment and imposing and suspending the probation revocation restitution fine without first determining defendant's ability to pay those amounts.
Dueñas relied on "two distinct strands" of precedent to reach the holding that due process requires an ability-to-pay determination before a trial court may impose fines and assessments. (Hicks, supra, 40 Cal.App.5th at p. 325.) "The first strand secures a . . . right of access to the courts." (Ibid; see, e.g., Griffin, supra, 351 U.S. at p. 19 (plur. opn. of Black, J.) [due process and equal protection clauses require that "[d]estitute defendants . . . be afforded as adequate appellate review as defendants who have money enough to buy transcripts"].) "The second strand . . . bar[s] . . . incarceration based on the failure to pay criminal penalties when that failure is due to a criminal defendant's indigence . . . ." (Hicks, supra, at p. 325; see, e.g., Antazo, supra, 3 Cal.3d 100, 103-104 [requiring a convicted indigent defendant to serve out a fine and penalty assessment in jail because the defendant is unable to pay violates the federal equal protection clause]; Bearden, supra, 461 U.S. at p. 661-662 [14th Amendment prohibits automatic revocation of probation for failure to pay a fine, in the absence of a determination that the probationer failed to make sufficient efforts to pay or that other forms of punishment were inadequate].)
As the appellate court in Hicks explained, "[t]he first strand does not dictate Dueñas's bar on imposing fees because the imposition of assessments, fines and fees does not deny a criminal defendant access to the courts. [Citations.] . . . [¶] The second strand also does not dictate Dueñas's bar on imposing fees because their imposition, without more, does not result in incarceration for nonpayment due to indigence." (Hicks, supra, 40 Cal.App.5th at p. 326; accord, Adams, supra, 44 Cal.App.5th at p. 832; Petri, supra, 45 Cal.App.5th at p. 92.)
We therefore are not persuaded by defendant's reliance on Dueñas to support his contention that due process required an ability to pay finding by the trial court before imposition of the restitution fine, the court operations assessment, and the court facilities assessment and the imposition and suspension of the probation revocation restitution fine. "Absent Dueñas, we are left to evaluate defendant's due process challenge under the two strands of precedent Dueñas cites. Neither strand bars the imposition of [$140] in assessments and the $300 restitution fine in this case" or the imposition and suspension of the $300 probation revocation restitution fine. (Hicks, supra, 40 Cal.App.5th at p. 329.) The "imposition of these financial obligations has not denied defendant access to the courts" and "their imposition has [not] . . . result[ed] in defendant's incarceration." (Ibid.)
Accordingly, we conclude that the trial court did not err by imposing the restitution fine, court operations assessment, and court facilities assessment and imposing and suspending the probation revocation restitution fine without a finding that defendant had the ability to pay them.
IV. DISPOSITION
The judgment is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. I CONCUR: /s/_________
GROVER, J. Greenwood, P.J., Concurring and Dissenting:
I respectfully dissent from the majority's opinion solely regarding Perez's challenge to the fines and fees imposed on him as conditions of probation. I continue to be persuaded by the reasoning in People v. Dueñas (2019) 30 Cal.App.5th 1157, and thus conclude that the trial court violated appellant's federal constitutional right to due process by imposing fines and fees without first assessing his ability to pay them. (See People v. Santos (2019) 38 Cal.App.5th 923.)
/s/_________
Greenwood, P.J.