Opinion
E070987
11-12-2019
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL RODRIGUEZ, Defendant and Appellant.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1502130) OPINION APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr., Judge. Affirmed in part; reversed in part and remanded with directions. Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Michael Rodriguez molested his two step-nieces, who were 15 and 12 years old, at a family party. Defendant was convicted in count 1 of committing a lewd or lascivious act upon Doe1, who was between the ages of 14 and 15, and 10 years younger than defendant (Pen. Code, § 288, subd. (c)(1)); and in count 2 with committing a lewd or lascivious act upon Doe2 who was under the age of 14 years (§ 288, subd. (a)). The jury also found true the allegation that there was more than one victim (§ 1203.066, subd. (a)(7)). Defendant was sentenced to six years eight months to be served in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant claims the trial court abused its discretion and violated his federal constitutional rights to due process by (1) excluding defense evidence of specific instances of conduct of the prosecution witnesses for the purpose of challenging those witnesses' credibility; (2) the trial court erred by admitting testimony from the mother of one of the victims based on the fresh complaint doctrine; (3) the cumulative impact of the two errors violated his federal and state constitutional rights to due process and a fair trial; and (4) the imposition of court operations and facilities assessments and a restitution fine without a determination of his ability to pay violated his federal constitutional rights to due process pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
FACTUAL AND PROCEDURAL HISTORY
A. FACTUAL BACKGROUND
1. PEOPLE'S CASE-IN-CHIEF
Doe1 was born in July 1998. She was 19 years old at the time of trial and was in college. J.W. (Father) was her biological father. T.W. and Doe2 had been adopted by Father after he married their mother, S.D. J.D. was S.D.'s mother. Defendant was S.D.'s uncle and J.D.'s brother. In 2013, Doe1 loved spending time with Father and had a good relationship with him. She also liked spending time with S.D.'s family. She was generally a very happy person at that time.
Doe1 oftentimes went to J.D.'s home in Riverside with Father. J.D. would have family parties. Doe1 had met defendant at J.D.'s house and they had talked several times. He was a "fun uncle." He would sometimes tickle her feet and stomach while they were playing. He also did this to her siblings. He also had playfully slapped her buttocks before December 2013.
In December 2013, Doe1 went to J.D.'s house with Father for a family gathering. Defendant, Father, S.D., J.D., T.W., Doe2 and several other family members were at the party. There were 15 to 20 people at the party. Doe1, T.W., and Doe2 stayed the night in a trailer outside the home. One night, she watched a movie in one of the bedrooms in the house. T.W. and Doe1 were laying on the bed on their stomachs and their heads were facing the bottom of the bed. Defendant was sitting at the top of the bed leaning against the headboard. Doe1 was in the middle and defendant was on her right side. Doe2 came in the room sometime during the movie.
Defendant massaged Doe1's feet during the movie. He then moved his hand up her leg massaging her. He moved his hand to her inner thigh. She started to get scared. Defendant then moved his hand onto her buttocks and vagina. He moved his hand in a circular motion. He rubbed her buttocks for several minutes. He slowly rubbed her vagina. He touched her over her clothes. She did not know what to do and froze. She was able to text a message to T.W. She told him she did not know what to do and wanted it to stop. Defendant finally got up and went to the bathroom. Doe1 did not recall anyone else being in the room besides T.W. and maybe Doe2.
T.W., Doe1 and Doe2 left the room and went to the outside trailer They discussed what they were going to do about the touching. They decided not to tell anyone because it would cause conflicts in the family and they thought that no one would believe them. They all slept in the trailer. The next morning defendant slapped both her and Doe2 on the buttocks. Doe1 just tried to forget about the incident.
Doe1 finally broke down and told her mother, H.H. (Mother) when it was suggested defendant come to her house and pick up Girl Scout cookies. She told Father and S.D. but they tried to minimize what had happened. S.D. did not want the issue pursued. Doe1 was adamant she was telling the truth.
Defendant's son, E.R. (Son), was at the house that day but she could not recall him coming into the bedroom. Doe2 sat on the bed at some point during the movie. Doe2 was not there when defendant was rubbing Doe1's vagina.
Doe2 was born in October 2001 and had lived with Father—her adoptive father—from 2011 until June 2017. She was very close with T.W. She was close with Doe1 but they did not live together. Doe2 and Father were not close because he fought with her mother and also accused her of being like her mother. She also did not have a good relationship with S.D.
Doe2 visited J.D.'s house in Riverside in 2013 when she would have been around 12 years old. Doe2 had no relationship with defendant and had only met him a few times. She could not recall him touching her in a playful manner. She went to J.D.'s house for a family gathering with Father and S.D. T.W. and Doe2 were also there. She stayed with her siblings in a trailer outside the house.
She was inside the bedroom watching a movie with Doe1, T.W. and defendant. No one else was in the room. She was on the side of the bed leaning against the headboard. Doe2 and T.W. were laying on their stomachs on the bed. Defendant stood next to the bed or was sitting on the edge of the bed.
Defendant put his hand inside her shirt and rubbed her breast skin-to-skin in a circular motion. She could not recall if she was wearing a bra. He then moved his hand to her crotch area. He reached inside her pants but over her underwear. He moved his hand back and forth. This lasted for less than one minute. Doe2 froze while defendant was touching her. Defendant then touched Doe1's leg and moved it up toward her buttocks. Doe2 left and went to the bathroom. When Doe2 returned to the bedroom, defendant was gone. She did not see defendant touch Doe1's buttocks.
Doe1 wanted to leave the bedroom so they all went to the trailer. Doe1, T.W. and Doe2 talked about what had happened. They all decided not to say anything. Doe2 did not think anyone would believe her. Doe2 just wanted to forget the incident. After Doe1 called Father and S.D. about the abuse she suffered, they asked Doe2 what had happened. Doe2 started crying and tried to show them what happened. S.D. yelled at her and did not believe her. They did not call the police.
T.W. was very close with Doe2 and had a good relationship with Doe1. He described Father as abusive and caused him a lot of problems. S.D. also did not treat him well. He knew defendant through S.D. He recalled being at J.D.'s house at the end of 2013. He was 15 or 16 years old at the time. He had minimal interaction with defendant prior to the incident with Doe1 and Doe2.
T.W. was in the bedroom watching a movie with defendant, Doe1 and Doe2. He did not recall anyone else being in the room. Doe1 was lying next to him and Doe2 was sitting up on the bed. About halfway through the movie, he looked back and saw defendant put his hand inside Doe2's shirt. Defendant looked like he was squeezing her breast. Defendant moved his hand down to Doe2's pelvic area. Doe2 sat frozen. T.W. turned away and was not sure if defendant moved his hand on her pelvic area. Defendant moved his hand to Doe1's leg, massaging it. Doe2 went to the bathroom. Defendant moved his hand up toward Doe1's buttocks; she texted him that defendant was touching her and she did not know what to do. T.W. observed defendant's hand move into her inner thigh area and move up and down. Doe2 came back from the bathroom and they all left and went to the trailer. Doe1 and Doe2 were shocked and scared. He told them that they should say something. T.W. did not want to tell Father and S.D. because they thought T.W. was a liar. Doe1 and Doe2 agreed that no one would believe them. T.W. was telling the truth.
T.W. admitted getting into fights with Father and at one point they evaluated T.W. for psychological problems. Father had been married to T.W.'s mother.
Mother testified; she described Doe1 as bubbly and outgoing. She was always happy. In 2013, Doe1 lived with Mother; Father had visitation rights. Doe1 and Father spent a lot of time with S.D.'s family.
Around Christmas 2013, Father took Doe1 with him to visit S.D.'s family for a large party. When Doe1 returned from the event, she did not act like herself. She was not happy and went straight to bed. Mother asked her why she was upset but Doe1 told her she did not want to talk.
Several months later, in February 2014, Doe1, who was 15 years old at the time, was in the midst of selling Girl Scout cookies. J.D. had purchased several and Doe1 had to deliver them to her house. Doe1 told Mother she did not want to deliver them. Mother did not understand her reluctance as she had delivered to J.D. in prior years. Mother was concerned and knew something had happened. She questioned Doe1 for over 45 minutes and refused to give up. Doe1 was crying.
Doe1 finally told her that defendant inappropriately touched her while they were watching a movie at J.D.'s house. Doe1 told Mother that Doe2 and T.W. were in the room with her. Mother had no doubt that Doe1 was telling the truth; she was not a liar. Doe1 was very reluctant to tell her the details. Doe1 told her not to tell anyone. Mother called the police. Doe1 did not want to tell the police what had happened because she was scared and embarrassed.
2. DEFENSE CASE
Kathy Smith dated defendant from 2012 until 2014. She went to a family party at J.D.'s house around Christmas of 2013. There were about 15 people present. She was in the room with Doe1, Doe2, T.W., defendant and Son watching a movie. Son was on the bed with them. She sat in a chair in the corner. Defendant was by the bed.
Doe1 complained that her feet hurt. Defendant reached over Doe2 and rubbed Doe1's feet. He rubbed her feet for approximately two minutes. He touched no other parts of Doe1's body. Everyone else in the room just watched the movie. Defendant never touched Doe2. Smith never left defendant alone in the bedroom with the children that night.
On cross-examination, Smith could not recall if this occurred in 2012 or 2013. She could not recollect the specific details of other times there were family gatherings at J.D.'s house. There were several times she went to the house and all of the children were in defendant's bedroom watching television. Defendant had told her how everyone had testified at trial before her testimony.
Smith did not speak with anyone but defendant about what she had seen until she spoke with defendant's attorney six months prior to trial. Smith never returned the several phone calls to her made from an investigator from the district attorney's office. She had information of defendant's innocence but never told anyone during the two years defendant was awaiting trial. Smith did not believe T.W., Doe1 and Doe2.
Son testified; he and defendant lived with J.D. in 2013. All of his family was at the house on Christmas Eve in 2013. Defendant had told him about the accusations Doe1 and Doe2 were making, which they claimed happened at the party.
There were at least 15 adults and children at the party. Son only left the house for a short trip to the store that day. The room where the incident happened belonged to him. He was in the room most of the day playing videogames. T.W., Doe1, and Doe2 came into the bedroom that evening and they all watched a movie together. T.W. and another boy were sitting at the foot of the bed, and Doe1 and Doe2 were sitting by the headboard. He also sat against the headboard. Defendant and Smith entered the room while they were watching the movie. They sat in two chairs that were in the room. Son recalled that during the movie defendant rubbed Doe1's feet. It only lasted about one minute. He was not sure if Doe2 was in the room when defendant was rubbing Doe1's feet. This was the only time that Son saw defendant rub Doe1's feet.
When Son first spoke with the police in 2015, he could not remember what holiday this happened on, and initially said that Doe1 was not in the room. He could not recall if defendant gave anyone massages. He said that Smith was sitting in a separate chair in the bedroom but not defendant. When he spoke with a defense investigator in 2017, he did not recall Doe2 being in the room. For the first time, Son said defendant rubbed Doe1's feet. He also stated that defendant was in a separate chair and not on the bed. Between 2015 and 2017 he had spoken with defendant. He later stated he could not see defendant's hands during the incident.
Father had custody of T.W. and Doe2 at the time of the Christmas party in 2013. Doe1 did not live with him. That evening, he observed T.W., Son, another boy and Doe2 in the bedroom on the bed. He did not recall Doe1 being in the room. None of the children acted differently at all that night. He found out about the accusations from Doe1 and Doe2. Father never contacted the police and never confronted defendant. He thought it was possible it did not happen. He also thought the mother of T.W. and Doe2 worked with Mother to make up the story to get custody of their children.
Doe2 and T.W. lived with Father from 2011 until they turned 18 years old. Doe2 and T.W. were known for not telling the truth. Between 2011 and 2015, T.W. oftentimes would lie. Doe2 would get suspended from school for doing things she knew she should not do. T.W. kept doing things that would get him in trouble. Doe2 would continue to lie if she was asked by another, to go with the "flow." As for T.W., Father stated, "I do not believe that he can tell the truth. There were multiple instances over the years where he would get caught in a flat out lie and would still lie about it and not tell the truth. A lot of that occurred in my house." At the time of the incident in 2013, Doe2 would lie but then admit she was lying. However, since then she had changed and would consistently lie. Prior to trial, Father had told detectives that T.W. oftentimes lied.
DISCUSSION
A. IMPEACHMENT EVIDENCE
Defendant contends on appeal the trial court erred and violated his federal constitutional due process rights by erroneously relying upon Evidence Code section 787 to exclude defense evidence of specific instances of dishonesty by T.W., Doe1 and Doe2.
1. ADDITIONAL FACTUAL BACKGROUND
Prior to trial, defendant filed an Evidence Code section 402 brief seeking to introduce evidence to impeach the credibility of the prosecution witnesses. Defendant made an offer of proof as to the testimony of Father, who was the father of Doe1, Doe2 and T.W. As for T.W., the offer of proof was that he "lies to us a lot." He would lie about anything. Further, T.W. had been caught with marijuana at school. As for Doe2, Father described her as "goofy" and wanting attention. He also would testify as to her honesty that she would get herself into a little bit of trouble sometimes.
At a hearing on the admission of this evidence, defense counsel made the offer of proof that Father would testify about T.W.'s reputation for telling lies and that he had been in trouble at school several times for lying. Further, Doe2 shared the same traits. Father also may potentially testify about Doe1 that she was not credible regarding information pertaining to the allegations in this case. The trial court understood that Father "has the foundation to lay reputation evidence that these kids are liars." The prosecution insisted it had no information from the defense about any instances of dishonesty. The trial court suggested an Evidence Code section 402 hearing be held prior to Father's testimony.
Prior to Father's testimony, the trial court stated that it understood Father would be testifying as to the character of T.W., Doe1 and Doe2. It would allow such testimony under Evidence Code sections 351 and 780. The trial court clarified "[T]he court finds there is sufficient foundation for reputation evidence. Reputation, not specific instance. . . . [¶] . . . [¶] . . . The code is very clear on that." The People objected as to Doe1 and Doe2 as there was no offer of proof as to what he would say about them. The trial court found there was a foundation because Doe2 and T.W. had lived with Father. The trial court again offered that an Evidence Code section 402 hearing be held.
Defendant filed a supplemental brief. He provided the following offer of proof: "Defense counsel believes in good faith that [Father] will testify to specific instances where [T.W.] and [Doe2] were untruthful at the prodding of others both to illicit changes in custody in Family Court, and other instances where both children were forced to lie at the direction of other adults. It should be noted that [Doe2] testified in this trial that she desired to live with her mother, and was desirous of living with her mother during the years she lived with [Father]. Further, [Father] has intimated to both Prosecution Investigators and Defense Investigators that [T.W.] lies to him all the time, and therefore should be allowed to give specific examples in support of his opinion testimony as to his opinion of [T.W.]'s capacity for truthfulness."
At the next hearing, the trial court stated it had reviewed the supplemental brief. It stated, "The whole purpose of Evidence Code section 787 is to not waste the jury's time on undue consumption, confusion of the issues at hand. And the whole policy consideration of Evidence Code section 787 is to conclude evidence of specific instances of conduct other than felony convictions and convictions underlying facts and misdemeanor cases involving dishonesty and moral turpitude. [¶] So the Court's tentative is to remain. The witness may give opinion and reputation evidence, as the Court indicated a few days ago." The parties addressed whether this would include Doe1, who had not lived with Father. The trial court concluded there was insufficient foundation for Father to testify about Doe1's reputation. Defendant does not contest the ruling as to Doe1 that Father could not testify about her reputation.
2. ANALYSIS
Evidence Code section 780 provides that "the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: [¶] . . . [¶] (e) His character for honesty or veracity or their opposites." Evidence Code section 787 provides that "Subject to Section 788, evidence of specific instances of his conduct relevant only as tending to prove a trait of his character is inadmissible to attack or support the credibility of a witness." However, Evidence Code section 787 is no longer applicable in criminal cases because the California Constitution provides that, subject to Evidence Code section 352 and other exceptions not relevant here, "relevant evidence shall not be excluded in any criminal proceeding." (Cal. Const., art. I, § 28, subd. (f)(2); People v. Harris (1989) 47 Cal.3d 1047, 1081 [addition of truth-in-evidence language to Constitution "effected a pro tanto repeal" of Evid. Code, §§ 786 and 787 in criminal cases].) The prohibition of Evidence Code section 787 on impeachment with conduct evidence other than felony convictions no longer applies in criminal cases. (In re Freeman (2006) 38 Cal.4th 630, 640, fn. 5; see also People v. Mickle (1991) 54 Cal.3d 140, 168 [evidence informant had threatened witnesses and offered to inform on other cases in exchange for leniency improperly excluded pursuant to Evid. Code, § 787, which no longer applied in criminal cases and evidence was relevant to the informant's credibility].)
The trial court's ruling here appears to have been exclusively based on Evidence Code section 787. As stated, Evidence Code section 787 was not applicable in this case based on article I, section 28, subdivision (f)(2) to the California Constitution. The trial court did not state any other reason for excluding such evidence or exclude such evidence pursuant to Evidence Code section 352. Based on the trial court's ruling relying only on Evidence Code section 787, the trial court erred. Such error was harmless.
In People v. Dalton (2019) 7 Cal.5th 166, 214-215 the high court similarly found that the trial court erred by excluding specific instances of the circumstances underlying the defendant's felony convictions. (Id. at p. 213.) It found, relying on People v. Watson (1956) 46 Cal.2d 818, 837, that "[E]ven assuming such an error, there is no reasonable probability that a different outcome as to the conspiracy and murder counts and the torture-murder special-circumstance allegation (the matters to which [witness]'s testimony was arguably relevant) would have resulted if the excluded line of questioning had been presented." (Dalton, at pp. 214-215.) In People v. Mickle, supra, 54 Cal.3d at p. 168, the court rejected that exclusion of this type of evidence violated a defendant's Sixth Amendment right of confrontation. As such, despite defendant arguing this error is reviewable under the beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, the California Supreme Court has stated this is clearly subject to Watson state error.
In Dalton, the court found that the error was harmless because it would not have "cast [the witness]'s credibility in a significantly different light." (People v. Dalton, supra, 7 Cal.5th at p. 215.) The court found the jury was aware the witness had suffered several prior convictions and the mere fact of the convictions cast doubt on the witness's veracity. Further, other strong evidence supported the defendant's convictions. (Id. at pp. 215-216.)
Defendant argues that the exclusion of specific instances in which Doe2 and T.W. lied was prejudicial because it went directly to their credibility. He provides no argument as to what specific instances of dishonesty were excluded as to Doe1. Father's testimony was significantly less persuasive only generally testifying about their truthfulness and not being able to state the specific instances forming that opinion. The excluded evidence of specific instances that formed his opinion of them as liars would have "dramatically" changed the jury's assessment of their credibility.
Here, Father testified that Doe2 and T.W. lived with him between 2011 and 2017. During that time, T.W. oftentimes would lie to him. He would continue to disobey rules despite being aware this would get him in trouble. T.W. had a hard time telling the truth. There were many times over the years that he was caught in a lie and would refuse to tell the truth. As for Doe2, she would lie if asked by an adult and would keep lying. Father also noted that since the incident, she increasingly lied and would not tell the truth.
Although Father did not provide testimony as to the specific instances in which Doe2 and T.W. lied, he did testify they consistently lied and had a hard time telling the truth. The jury would not have had a significantly different view of their credibility if such specific evidence was admitted. It was clear that Father believed that his children were lying but the jury found them credible.
The evidence supported that Doe1, Doe2 and T.W. were telling the truth. They all consistently stated that defendant first touched Doe2 and then Doe1. They were consistent as to who was in the room at the time and when such molestation occurred. The defense witnesses did not initially come forward to support defendant and were not consistent in their recollection of the events. Father was in a custody battle with the mother of T.W. and Doe2 and blamed her for the accusations. The evidence supported that defendant inappropriately touched Doe1 and Doe2.
B. FRESH COMPLAINT
Defendant contends the trial court erred by admitting Mother's testimony that Doe1 told her about the molestation several months later under the fresh complaint doctrine. He insists that Doe1 did not disclose the information until several months after the incident occurred and only revealed the information after a lengthy interrogation by Mother.
1. ADDITIONAL FACTUAL BACKGROUND
Prior to trial, the People filed a motion in limine to allow testimony in from Mother, that Doe1 disclosed the abuse a few months after it occurred. Such disclosure was admissible under the fresh complaint doctrine. Defendant filed opposition. Defendant contended that the actual conversation between Mother and Doe1 had not been disclosed. Further, the information came to light only after Child Protective Services had visited Mother's home to investigate her for child neglect.
The People argued at the hearing on the matter prior to trial that T.W., Doe1 and Doe2 all agreed at the time of the incident to not tell anyone because no one would believe them. Several months later, Mother asked Doe1 to interact with defendant in order to sell him Girl Scout cookies. Doe1 became upset and refused. Doe1 finally told Mother she did not want to go to defendant's house because he had touched her.
An Evidence Code section 402 hearing was conducted and Mother was questioned outside the presence of the jury. Sometime in February 2014, Doe1 was supposed to deliver Girl Scout cookies to defendant's house. She did not want to go to his house. This was the first time in her life that Doe1 had not wanted to deliver her cookies. Mother spoke with Doe1 for over 45 minutes before Doe1 disclosed that she, Doe2 and T.W. had been watching a movie at J.D.'s house. During the movie, she was inappropriately touched by defendant. Mother recalled this occurred around Christmas 2013. Doe1 provided detail to Mother but the trial court informed the parties such detail would not be admissible under the fresh complaint doctrine. The trial court explained that Mother could not go into specific detail about what she was told by Doe1. The only relevant consideration for admitting the evidence was whether the complaint was made, when it was made, and in what context.
The trial court found that the fresh complaint was probative and not highly prejudicial because it would not allow Mother to testify as to what was told to her in detail. The time frame between 2013 and 2014 was not too remote.
2. ANALYSIS
"Under the fresh complaint doctrine, 'proof of an extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose—namely, to establish the fact of, and the circumstances surrounding, the victim's disclosure of the assault to others—whenever the fact that the disclosure was made and the circumstances under which it was made are relevant to the trier of fact's determination as to whether the offense occurred. [Citation.] The jury may consider the evidence 'for the purpose of corroborating the victim's testimony, but not to prove the occurrence of the crime.' " (People v. Manning (2008) 165 Cal.App.4th 870, 880.)
"[T]he admissibility of such evidence does not turn invariably upon whether the victim's complaint was made immediately following the alleged assault or was preceded by some delay, nor upon whether the complaint was volunteered spontaneously by the victim or instead was prompted by some inquiry or questioning from another person. Rather, these factors simply are to be considered among the circumstances of the victim's report or disclosure that are relevant in assisting the trier of fact in assessing the significance of the victim's statements in conjunction with all of the other evidence presented. The specific relevance of the extrajudicial-complaint evidence, however, must be shown in every case." (People v. Brown (1994) 8 Cal.4th 746, 763.)
Such evidence is subject to evaluation pursuant to Evidence Code section 352. (People v. Brown, supra, 8 Cal.4th at p. 763.) Fresh complaint testimony must be "carefully limited to the fact that a complaint was made, and to the circumstances surrounding the making of the complaint" and must not include the details of the alleged offense. (Id. at p. 762.)
Here, the trial court considered the testimony from Mother and found the fresh complaint doctrine applied. The molestation occurred in late December 2013 and Doe1 came forward in February 2014. This was not an excessive delay. Moreover, although Doe1 only disclosed the abuse after Mother spoke with her for almost one hour, there is no indication that this was overly coercive. The trial court did not abuse its discretion by admitting the fact that Doe1 told Mother about the abuse.
Further, even if the trial court erred by admitting the fresh complaint evidence, such error was harmless as "it is not reasonably probable a different result would have been reached" if such testimony was excluded. (People v. Manning, supra, 165 Cal.App.4th at p. 880; see also People v. Ramirez, supra, 143 Cal.App.4th at p. 1526.)
Defendant contends that the admission of the evidence under the fresh complaint doctrine violated his federal constitutional right to a fair trial and is reversible pursuant to Chapman v. California, supra, 386 U.S. at p. 36. This is clearly state error involving admission of evidence reviewed pursuant to the test in People v. Watson, supra, 46 Cal.2d at p. 836.
Here, Doe1 testified about the molestation. As such, the jury viewed Doe1 and judged her credibility based on her in-court testimony. (See People v. Ramirez, supra, 143 Cal.App.4th at p. 1526 [victim who made statement testified thus "the jury did not have to rely solely on secondhand statements she made to third parties. Rather, it had the opportunity to hear from [the victim] directly and judge her credibility"].)
Additionally, Doe1 was not the only witness who testified about what happened in the bedroom that evening. T.W. was present and observed defendant touching Doe1 and Doe2. Doe2 also observed some sort of touching of Doe1 by defendant and described in vivid detail the abuse she suffered. The testimony by Mother was only a small part of the case and it was consistent with the testimony from Doe1 and the other prosecution witnesses.
Based on the foregoing, it is not reasonably probable that had the trial court excluded Doe1's statement to Mother that she had been molested by defendant, that the results of the trial would have been different.
C. CUMULATIVE ERROR
Defendant contends that if this court finds the trial court committed both evidentiary errors that we consider the cumulative impact of the errors. Initially, we found no error in the admission of the evidence under the fresh complaint doctrine. Moreover, even though we found that the trial court erroneously relied upon Evidence Code section 787, we found such error harmless. "In examining a claim of cumulative error, the critical question is whether [the] defendant received due process and a fair trial. [Citation.] A predicate to a claim of cumulative error is a finding of error." (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.) We found only that the court erred by excluding specific instances of conduct by Doe1, Doe2 and T.W. under Evidence Code section 787. We found that such error was harmless. Hence, there was no cumulative effect of multiple errors, the only situation in which the cumulative error doctrine applies. (People v. Williams (2013) 56 Cal.4th 165, 201, abrogated on other grounds in People v. Elizalde (2015) 61 Cal.4th 523; People v. Sedillo, at p. 1068.)
D. ABILITY TO PAY FINES AND FEES
Defendant claims, relying on Dueñas, supra, 30 Cal.App.5th 1157, that the trial court violated his federal constitutional rights to due process by failing to determine his ability to pay the mandatory court facilities assessment of $60 imposed pursuant to Government Code section 70373; the court operations fee in the amount of $80 imposed pursuant to Penal Code section 1465.8; and the restitution fine of $3,600 imposed pursuant to Penal Code section 1202.4, subdivision (b). Defendant requests that this court vacate the court facilities and court operation assessments and stay the restitution fine until the People can show that he has the present ability to pay. In the alternative, the case should be remanded for an ability to pay hearing. The People concede remand is appropriate for an ability to pay hearing.
At the time of sentencing, the trial court indicated it had reviewed the probation report. According to the probation report, the probation department recommended the imposition of a $3,600 restitution fine under Penal Code section 1202.4, subdivision (b). It also detailed the assessments, which, relevant here, included a recommendation of an $80 court operations assessment fee within the meaning of Penal Code section 1465.8, and a $60 criminal conviction assessment within the meaning of Government Code section 70373. At the time of sentencing, the trial court did not make any specific reference to any fines, fees or assessments. Nonetheless, the minute order from sentencing and the abstract of judgment state that a $3,600 restitution fine; an $80 court operations assessment fee; and a $60 criminal conviction assessment were imposed by the trial court.
On January 8, 2019, after sentencing in this case, the Second District Court of Appeal issued an opinion in Dueñas, supra, 30 Cal.App.5th 1157. In Dueñas, the defendant was a probationer who suffered from cerebral palsy, was indigent, homeless and the mother of young children. She requested and received a full hearing on her ability to pay the court facilities fee, court operations fee and the mandatory minimum restitution fine. Despite her clear inability to pay these fees and fine, the trial court mandatorily imposed them. (Dueñas, supra, at pp. 1162-1163.)
The appellate court held that the trial court violated the defendant's right to due process under both the United States and California Constitutions by imposing court operations and facilities assessments pursuant to Government Code section 70373 and Penal Code section 1465.8 without making a determination as to the defendant's ability to pay, even though such determination was not required by the statute. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) Further, the appellate court concluded that the imposition of restitution fines pursuant to section Penal Code section 1202.4, subdivision (b) raises similar constitutional concerns, and therefore held that, while the trial court must impose the minimum restitution fine even if the defendant demonstrates an inability to pay, "the court must stay the execution of the fine until and unless the People demonstrate that the defendant has the ability to pay the fine." (Dueñas, supra, at p. 1172.)
We need not determine whether Dueñas was decided correctly, whether defendant properly raised the issue in the lower court or whether the failure to conduct the ability to pay hearing was harmless. (See People v. Jones (2019) 36 Cal.App.5th 1028.) The People concede remand for rehearing is appropriate and that the trial court should determine defendant's ability to pay based on the unique facts of this case. As such, we will order remand for an ability to pay hearing on the court operations and facilities fees, and the restitution fine.
Defendant has contended this court should strike the court operations and facilities assessments, and stay the restitution fine because it is apparent he had the inability to pay. However, defendant also states that if this court concludes the record is insufficient to establish his indigence, remand should be granted for an ability to pay hearing. Defendant hired a private attorney to represent him in the lower court so it is unclear from the record that he has no ability to pay the assessments.
DISPOSITION
We reverse and remand the case to allow defendant the opportunity to request an ability to pay hearing on the fines, fees and assessments imposed by the trial court. If the trial court determines defendant has the ability to pay the fines, fees and assessments, they may be imposed. If the trial court determines defendant cannot pay the court operations and facilities assessments, they shall be stricken, and the restitution fine should be stayed. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. SLOUGH
J.