Opinion
E071900
03-18-2020
THE PEOPLE, Plaintiff and Respondent, v. MARAWAN FAKRY ABDELFATTAH, Defendant and Appellant.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1703603) OPINION APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge. Affirmed with directions. Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Marawan Fakry Abdelfattah got angry when his girlfriend Jane Doe did not answer his calls. He returned home from work and confronted her. He pushed her, cornered her in the kitchen and threatened to kill her. He took her cellular telephone and cut the Internet connection to the home. Doe was able to get away. She told the police that defendant had held a knife to her when he threatened her and she was afraid because she believed that defendant may have killed his ex-wife. At trial, Doe testified she may have imagined defendant was holding a knife when he threatened to kill her. Defendant was found guilty of making criminal threats and the misdemeanor charge of destruction of an electronic device.
Defendant claims in his opening brief on appeal that (1) the trial court erred and violated his federal due process rights by admitting Doe's prejudicial testimony that she believed defendant may have killed his ex-wife; (2) 911 calls made by Doe after the incident were improperly admitted as spontaneous statements violating his federal due process rights and requiring reversal of his convictions; (3) the cumulative prejudicial impact of the two evidentiary errors violated his federal and state constitutional rights to due process and a fair trial; and (4) the trial court erred by refusing to reduce his conviction of making terrorist threats to a misdemeanor. In supplemental briefing, defendant contends remand to the trial court is necessary for it to conduct an ability to pay hearing for the restitution fine and court operation fees imposed in light of People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
Defendant was charged by the Riverside County District Attorney's Office with assault with a deadly weapon, a knife (Pen. Code, § 245, subd. (a)(1); count 1); making criminal threats (§ 422; count 2); and misdemeanor damaging a wireless communication device (§ 591.5; count 3). In addition, he was charged with the special allegation that defendant personally used a dangerous or deadly weapon (§ 12022, subd. (b)(1)) for count 2. The jury found defendant not guilty of count 1, but found him guilty of counts 2 and 3. The jury found the weapons use allegation not true. On December 21, 2018, the trial court sentenced defendant to 16 months in state prison and a county jail term of 180 days. A restitution fine and fees were imposed, which will be discussed in detail, post.
All further statutory references are to the Penal Code unless otherwise indicated.
B. FACTUAL HISTORY
A. CURRENT INCIDENT
Doe met defendant in January 2017. They both had children from previous relationships. She and defendant became romantically involved. They were married under the Islamic religion in March 2017 but never formalized the marriage in California.
In August 2017, Doe and her two children moved in with defendant in Riverside; prior to that time she lived in Folsom in Northern California. Defendant oftentimes got angry with his own two children, J.A. and A.A., and yelled at them. Defendant told Doe that his ex-wife had died of a heart attack. Later, he told her he lied and that she had committed suicide in Egypt by jumping out their hotel room window. When she asked him why he lied, he told her because it was embarrassing. Defendant also told her that his ex-wife had obtained a restraining order against him.
Defendant constantly told Doe at the beginning of their relationship that he loved her and he would do anything not to lose her. If she did not immediately answer her phone, he would call her numerous times until she answered or drive from his home in Riverside to Folsom. As their relationship progressed, he became verbally abusive. He called her a whore, bitch, and the "ugliest thing" he had ever seen. In April 2017, they went on a cruise and he got mad at her for talking to two older men. When back in their cabin, he threw all her makeup, called her names and pushed her. He did not let her out of their room for several hours.
On September 11, 2017, Doe took all the children to school around 7:00 a.m. and then came home to take a shower. When she got out of the shower, defendant was standing in the bathroom; he had gone to work earlier that morning and usually worked until 8:00 or 9:00 p.m. She was startled by his presence and he started yelling and cussing at her. He told her she was a "f'in whore" and asked why she had not answered his telephone calls; he claimed to have called her more than one hundred times. Defendant was holding her cellular telephone.
Doe took back her phone and walked toward the closet to get dressed so she could leave. Defendant took the phone back. Defendant's eyes were wide open and he was not blinking; Doe was scared. Doe walked downstairs to the kitchen and he followed her. He pushed her in the back but she did not fall. He kept calling her a "fucking whore" and "garbage."
When they got to the kitchen, he threatened to hurt her while yelling at her close to her face. Doe asked for her telephone back. Doe was unable to move in the kitchen as he had her trapped in a corner. Doe recalled there was a knife set on the counter behind her. Defendant told Doe, " 'Don't make me hurt you, I will kill you.' " She could not recall if he had anything in his hand but she was in fear of her life. She thought he was capable of killing her. Doe thought that it was possible he had killed his ex-wife and she had not committed suicide, which deepened her fear. She did not want to testify any further about what had happened when he had her in the corner of the kitchen, including whether he was holding a knife. She testified that she may have imagined he was holding a knife.
Doe claimed that defendant's mother-in-law had told Doe that defendant may have killed his ex-wife.
Doe was able to move away from defendant and grabbed her laptop computer to email her sister to tell her what had happened. Defendant went upstairs and cut wires so that she could not access the Internet. He told her he was not going to allow her to talk to anyone. Defendant went into the garage and she ran out the front door.
While she was in her car backing out of the driveway, he yelled to her that she was not going to get away. He told her he was going to get her. He then chased her in his car. Doe did not have her phone because defendant still had it in his possession. Doe drove in her car and parked trying to hide from him. She saw his car driving around the neighborhood. She eventually drove to her daughter's school after she was certain she had lost him. She walked into the office of the school and was crying. She asked to see her daughter, M.M. When M.M. came to the office, Doe took her cellular telephone and told her not go anywhere with defendant.
Doe parked near the school and called the police because she was scared to return home. She explained to the 911 dispatcher that defendant had abused her that morning after the children had been dropped off at school. She stated that defendant had pushed her, hit her and told her he was going to kill her. She could be heard sniffling. Doe advised the dispatcher she was going to wait by the children's school until the police arrived. She was scared and did not want to go home in case he was at home.
She waited in her car by the school but the police did not come. She had to call 911 a second time. She explained that she had previously contacted 911 but no police officer had come to talk to her. She stated her husband had abused her that morning and she had driven away from the home. She was scared to go back home. She was advised she could go the police station.
Doe drove to the police station. She spoke with Riverside Police Officer Jimmy Chen at the Magnolia police station at around 9:25 a.m. He spoke with her while wearing his body camera and recording device.
Doe told Officer Chen that defendant was Bipolar and was taking medication. She explained that defendant was "good guy" but had some mental issues. That morning, she had been in the shower when defendant tried to call her; she had 55 missed calls on her phone. Defendant returned from work because she was not answering and confronted her in the bathroom. She told him to calm down and he pushed her into the counter of the bathroom. He took her phone. He also pulled her hair. She went downstairs to get her purse. He pushed her into the corner of the kitchen and there were knives behind her. She again told him to calm down. Defendant grabbed a knife and told her, " 'I swear I'll kill you. I swear I'll kill you.' " She thought she was going to die. She told Officer Chen she got scared because defendant had told her that his ex-wife had committed suicide but she was now wondering if he had something to do with her death.
Defendant told her that she could not leave him or he would kill her. Doe told him that she loved him and would not leave him, in order to get him to calm down. She was able to leave in her car and he followed her. She was able to lose him and she called the police. Doe was afraid to press charges against defendant because he would bail out and kill her. Doe had some scratches on the back of her neck but she did not know how she got them.
Officer Chen accompanied Doe back to her house so she could grab her belongings and move out. Defendant was not home. Later, Officer Chen was able to inspect defendant's telephone; he had 55 missed calls to Doe.
After this incident, Doe moved her children to Folsom in Northern California. She admitted she forged defendant's name on two checks in order to have money to move. The checks were rejected by the bank. She and defendant saw each other over Thanksgiving, Christmas and New Years in 2017, after this incident. She did not request a permanent restraining order against defendant between September 2017, and January 2018, and never told law enforcement she saw defendant during this time. She got back with defendant because she loved his children and wanted to help take care of them. Defendant apologized and she wanted to give him a second chance. In January 2018, she broke up with him because he was not changing. She had requested a restraining order but never followed through with a hearing to obtain it. She was still afraid of defendant.
Doe was given immunity for her testimony.
2. DOMESTIC VIOLENCE EXPERT TESTIMONY
Detective Christian Vaughan testified as an expert on domestic violence. He had previously testified 58 times as an expert. He had no personal involvement in the instant case. He explained that domestic violence relationships are complex. Most domestic violence incidents are not reported. Most victims of domestic violence do not leave their abuser even if they have the opportunity. Further, even if the victim leaves her abuser, oftentimes she returns to the relationship based on promises by the abuser that he will change or if children are involved.
Detective Vaughan explained the cycle of violence, which involved the tension building stage; a physical or verbal abusive incident; and then there was the honeymoon phase during which the abuser apologizes and promises to never abuse the victim again. Detective Vaughan also testified about the "Power and Control Wheel." He emphasized that domestic violence was about the abuser being in control of the victim. Coercion and threats were used to show control. Intimidation was commonly shown by destroying the property of the victim to remind the victim what the abuser was capable of doing.
3. DEFENSE
Nader Talaat Naguib Abdelmashi Nasr had known defendant since 2016. He lived in Downey with two roommates, including John William. Nasr was close with defendant and his children. Nasr had only met Doe one time. Nasr was contacted by the police on September 11, 2017, around 3:00 or 4:00 p.m. He told the police that defendant had come to his house in Downey at approximately 7:30 a.m. on that morning as defendant did most mornings before he went to work. He left around 9:15 or 9:30 a.m.
Around 10:30 a.m. on September 11, 2017, William received a telephone call from a police officer. He was asked if defendant had been at his house that day, and William told the police officer that he had not seen defendant that morning. Nasr had a separate entrance into his room. Nasr denied he spoke with William prior to the police contacting him.
Olga Mendez was defendant's mother-in-law. Defendant married her daughter in 2004. They had two children, J.A. and A.A. Her daughter committed suicide in 2012. Defendant was never violent with J.A. and A.A. Mendez spoke with Doe after the September 11, 2017, incident. Doe said to her that defendant killed his ex-wife, her daughter; Mendez disagreed and told Doe that her daughter had committed suicide. Her daughter had been depressed for many years and had tried to commit suicide in 2004. Mendez was aware that her daughter had called the police on defendant one time in their relationship.
A.A. and J.A. were defendant's sons. A.A. was present at the wedding of defendant and Doe. Doe was nice to him. A.A., J.A. and defendant visited Doe and her children several times in Folsom when Doe and defendant were first dating. A.A., defendant, Doe and the other children went on a cruise. He did not recall any time that Doe and defendant stayed in their room for an extended period of time.
They also took a trip to Las Vegas. Doe at one point grabbed J.A.'s arm when J.A. got into an argument with her son and said "Don't ever be a daddy's boy" and something racial to him. Defendant told Doe not to call J.A. a "Mexican." The day prior to September 11, A.A. had heard Doe yelling at defendant. A.A. recalled visiting Doe in Folsom with defendant and J.A. after September 11, 2017. J.A. recalled that Doe and her children were at their house for New Year's Eve in 2017.
4. REBUTTAL
Defendant had pleaded guilty to a violation of section 273.6, which was a violation of protective order in 2007, involving his ex-wife. The People presented defendant's interview with Officer Chen at the police station. Defendant insisted that on the morning of September 11, 2017, he left the house at 6:30 a.m. and was in Downey at 8:00 a.m. He went to work at 11:00 a.m. in Long Beach. He was with his friend from 8:00 until 10:00 a.m. He gave Officer Chen Nasr's name. Officer Chen called William. Defendant could be heard telling William in Arabic that Nasr needed to call Officer Chen and say he was with defendant from 8:00 to 10:00 that day. Defendant admitted calling Doe numerous times that day because he got worried when she did not answer her phone.
DISCUSSION
A. ADMISSION OF TESTIMONY THAT DEFENDANT MAY HAVE BEEN COMPLICIT IN HIS EX-WIFE'S DEATH
Defendant insists the trial court erred and violated his federal constitutional due process rights by admitting testimony by Doe that she believed defendant may have killed his ex-wife.
1. ADDITIONAL FACTS
Prior to trial, defendant brought a motion in limine seeking to exclude testimony by Doe that defendant may have killed his ex-wife. Defendant's counsel argued that the evidence was more prejudicial than probative pursuant to Evidence Code section 352. The People responded the testimony was relevant to show Doe's sustained fear for the terrorist threat charge.
The trial court addressed the admission of the testimony prior to trial. The trial court had reviewed the briefs and the transcript from Officer Chen's belt recording. The trial court intended to admit the evidence to show Doe's state of mind despite the fact she had no specific knowledge that defendant had killed his ex-wife. The trial court intended to give a special instruction to the jury limiting its consideration to her state of mind and that it was not admitted for its truth. Defendant's counsel disagreed that Doe was in sustained fear due to the belief that defendant may have killed his ex-wife; she briefly told Officer Chen but never referenced it in the 911 calls. Defendant could not fight against an accusation of a crime that was committed in Egypt; it was immensely prejudicial.
The trial court responded, "Keep in mind we are not litigating whether or not [defendant] committed murder in another country. What we're dealing with is what the alleged victim believed, and that is why it is relevant because it goes to the element of sustained fear." It did not matter whether it was true; it was the belief of the victim that was relevant. The trial court found the evidence was more probative than prejudicial because it went to the heart of whether Doe had sustained fear.
During Doe's testimony, the jury was instructed, "[Doe]'s testimony regarding her feelings or beliefs regarding the circumstances surrounding the death of the defendant's ex-wife are not being admitted for the truth of any allegation against, [defendant]. The testimony is admissible solely for the limited purpose of [Doe]'s state of mind, including whether or not her alleged belief contributed to [Doe]'s fear that the defendant's alleged threats would be carried out. [¶] So any testimony that you hear with respect to her statements or her testimony now as it relates to [defendant]'s ex-wife can only be taken for that limited purpose, not for any wrongdoing that the defendant is accused of or not accused of in that prior incident. It's only with respect to her state of mind." The same admonition was given at the end of the trial with the other jury instructions.
2. PROBATIVE EVIDENCE
A charge of making criminal threats in violation of section 422 requires the prosecution to prove the following elements: "(1) [T]hat the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat—which may be 'made verbally, in writing, or by means of an electronic communication device"—was "on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
Section 422 "incorporates a mental element on the part of not only the defendant but the victim as well." (People v. Garrett (1994) 30 Cal.App.4th 962, 966.) The prosecution must establish that as a result of the threat "the victim was in a state of 'sustained fear' [and] the nature of the threat, both on 'its face and under the circumstances in which it is made,' was such as to convey to the victim an immediate prospect of execution of the threat and to render the victim's fear reasonable." (Id. at pp. 966-967.) Whether a person's fear is reasonable can be based on all the surrounding circumstances and not just on the words alone. (People v. Franz (2001) 88 Cal.App.4th 1426, 1446.)
In People v. Allen (1995) 33 Cal.App.4th 1149, 1156, the victim was aware that the defendant had previously come to her house and looked in her windows. The court found, "The victim's knowledge of defendant's prior conduct is relevant in establishing that the victim was in a state of sustained fear." (Ibid.)
"The trial court has broad discretion in determining the relevance of evidence." (People v. Carter (2005) 36 Cal.4th 1114, 1166-1167.) "Under Evidence Code section 352, a trial court may exclude otherwise relevant evidence when its probative value is substantially outweighed by concerns of undue prejudice, confusion, or consumption of time. 'Evidence is substantially more prejudicial than probative [citation] if, broadly stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome." ' " (People v. Riggs (2008) 44 Cal.4th 248, 290.)
Here, the fact that Doe believed defendant may have killed his ex-wife, rather than her committing suicide, was particularly relevant in establishing the element that she was in a state of sustained fear when defendant threatened her. (People v. Garrett, supra, 30 Cal.App.4th at p. 967.) Despite the fact she was advised that defendant's ex-wife had committed suicide, and had been depressed, she also was aware that defendant's ex-wife had obtained a restraining order against him. Further, defendant initially lied about his ex-wife committing suicide. His evasiveness about the circumstances of his ex-wife's death bolstered the fact that Doe could reasonably believe that defendant was capable of killing his ex-wife, which caused her to believe him when he threatened to kill her. This was probative evidence of Doe's state of mind when defendant threatened to kill her.
Moreover, this evidence was not more prejudicial than probative. The jury was specifically instructed that it should not consider the facts of the prior incident to be true, but rather, that it was only relevant to what Doe believed. The jury was instructed that "[Doe]'s testimony regarding her feelings or beliefs regarding the circumstances surrounding the death of the defendant's ex-wife are not being admitted for the truth of any allegation against [defendant]. The testimony is admissible solely for the limited purpose of [Doe]'s state of mind, including whether or not her alleged belief contributed to [Doe]'s fear that the defendant's alleged threats would be carried out." As such, the prejudice was diminished by the giving of the instruction as the jury was aware it could not consider that defendant killed his ex-wife to find him guilty.
3. HARMLESS ERROR
Defendant contends the admission of the evidence violated his rights to due process and was prejudicial, requiring reversal of his convictions. "We review evidentiary errors for prejudice by determining whether it was reasonably probable that a jury would have returned a more favorable verdict for defendant had the court not admitted the evidence." (People v. Felix (2019) 41 Cal.App.5th 177, 187, citing to People v. Watson (1956) 46 Cal.2d 818, 836.) "[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair." (People v. Partida (2005) 37 Cal.4th 428, 439.) "Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test." (Ibid.) Here, defendant's trial was not fundamentally unfair, and it is not reasonably probable the verdict would have been more favorable to defendant if the evidence had been excluded.
As noted, the jury was twice admonished as to the use of the evidence that Doe believed defendant had killed his ex-wife. It was specifically instructed that it was not to consider the evidence for its truth but only to consider it as it reflected on Doe's state of mind. We presume the jurors followed the given instructions and did not convict defendant based on a finding that since defendant had killed his ex-wife, he committed the crime in this case. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Moreover, during cross-examination, Doe stated that the mother of defendant's ex-wife had told her that she thought defendant had killed his ex-wife. However, Mendez testified she was certain her daughter had committed suicide and never told Doe that defendant had killed her daughter. As such, the jury was aware that no one else believed that defendant had killed his ex-wife and there had been no pursuit of defendant on the charge. There is nothing to support the jurors actually believed defendant killed his ex-wife and convicted him based solely on Doe's belief that he had killed his ex-wife..
Finally, even without such evidence, the other evidence supported the verdict. Defendant had contacted Doe an excessive number of times on that day showing his obsession with knowing her location at all times. The jury also heard evidence that defendant may have convinced his friend to provide an alibi for him. Doe then immediately moved her items out of defendant's home and moved to another county. The jury could reasonably conclude based on this evidence that defendant had threatened Doe and that she was in sustained fear of him, causing her to immediately move out. Detective Vaughan testified a victim oftentimes would return to an abuser, bolstering Doe's credibility despite her seeing defendant after the incident occurred. Even without the testimony that Doe believed defendant had killed his ex-wife, there was strong evidence that defendant threatened to kill her and that she was in sustained fear, to support his conviction of violating section 422.
B. ADMISSION OF DOE'S 911 CALLS
Defendant further contends the trial court erred and violated his federal constitutional due process rights by admitting Doe's 911 calls as spontaneous statements. He insists that the evidence was prejudicial because it provided strong corroboration of her otherwise "questionably credible allegation" that defendant had threatened to kill her.
1. ADDITIONAL FACTUAL BACKGROUND
Prior to trial, the People filed a trial brief contending that Doe's statements made to 911 dispatchers were admissible as spontaneous statements pursuant to Evidence Code section 1240.
Defendant's counsel argued at the hearing on the matter, that there was sufficient time for Doe to reflect on what she was going to say to the police before she called 911. Doe had gone to M.M's school a significant period of time after the incident to borrow M.M.'s cellular telephone. Once she obtained the phone, she went to another location before making the 911 calls. She was not under the influence of excitement when she made the calls. The People responded that Doe was clearly scared when she made the calls. She was afraid that defendant was going to follow her and kill her. She did not feel safe to return home and went to the police station.
The trial court listened to the 911 tapes. After listening to the tapes, the prosecutor argued that Doe was "sniffling" on the tapes and was scared to go home because defendant threatened to kill her. She was unable to use her phone because defendant took possession of it, and he disabled the Internet so that she could not use her computer. She saw defendant circling the neighborhood as stated during the 911 call. Defense counsel responded that Doe had not suffered any injuries. Her emotions were in abeyance when she made the 911 calls. Based on the call, her emotions were not running so high that she could not reflect on what she was telling the police as required by Evidence Code section 1240.
The trial court ruled to admit the 911 calls as spontaneous statements under Evidence Code section 1240. The trial court explained its ruling. "So in listening to the calls, it appears as though she's emotional. She is not crying hysterically. She is not screaming, which I've heard before in other calls. But nonetheless, when a person is emotional and upset and describing an event that they have purportedly just witnessed, I think that would satisfy the elements of [Evidence Code section] 1240."
The matter was revisited just prior to trial. Doe was called outside the presence of the jury. She testified that when she called 911 she was "scared." She was under the stress of the incident when she called 911. She was driving around streets because she was afraid to go home. Defendant had been following behind her in his car and she had to lose him. She hid for at least 30 minutes to make sure he was gone. Doe insisted she was crying when she entered the school to see her daughter and to get her daughter's phone.
In reconsidering its early ruling, the trial court relied on the 911 calls and Doe's testimony. It was clear to the court that Doe was still under stress when she called 911. Further, she was scared because defendant had followed her after the incident and she had to hide. The trial found the passage of time did not preclude spontaneity.
2 PREJUDICE
We need not consider whether the trial court properly admitted the 911 tapes as their admission was clearly harmless and did not contribute to the verdict. Evidentiary errors are harmless unless it is reasonably probable the defendant would have received a more favorable result absent the error. (People v. Watson, supra, 46 Cal.2d at p. 836; People v. Felix, supra, 41 Cal.App.5th at p. 187.) Again, the admission of evidence does not result in a due process violation unless it makes the trial fundamentally unfair. (People v. Partida, supra, 37 Cal.4th at p. 439.)
Here, the 911 tapes did not convey any further information than what Doe had told Officer Chen in the recorded interview. Further, the same information Doe conveyed in the 911 tape was testified to by her in court. In fact, the statement made to Officer Chen was much more prejudicial than the 911 tapes as it included that defendant had used a knife when he threatened her. Although the jury eventually acquitted defendant of the use of the knife, it was potentially prejudicial evidence that was admitted along with the 911 tapes. The 911 tapes provided no additional or different evidence than that already in front of the jury, and it is not reasonably probable the result of the proceeding would not have been different had it been excluded.
Defendant contends that the 911 calls were prejudicial because they "corroborated" Doe's testimony. However, although it may have corroborated some of the details in the Officer Chen interview, and her trial testimony, there were several differences between the 911 calls, Doe's testimony and her statements to Officer Chen. Doe never mentioned the knife during the 911 call and she did not reference that she thought defendant may have killed his ex-wife. The 911 calls also provided an opportunity for defendant to attack her claim of the knife and whether she was in sustained fear of defendant. There is nothing to support that defendant was prejudiced by the admission of Doe's 911 calls and their admission did not render the trial fundamentally unfair.
C. CUMULATIVE ERROR
Defendant contends that considered together, these two evidentiary errors denied him a fair trial. Under the cumulative error doctrine, the cumulative effect of several trial errors may be prejudicial even if they would not be prejudicial when considered individually. (See People v. Sanchez (1995) 12 Cal.4th 1, 60, overruled in part on other grounds in People v. Doolin (2009) 45 Cal.4th 380, 421.) Here we have found any conceivable errors to be harmless, and as a result, collectively they were not prejudicial. (See People v Lua (2017) 10 Cal.App.5th 1004, 1019 ["we find any arguable errors also to be harmless when considered collectively, for the same reasons we have found no prejudice from them individually"].) Defendant has failed to show cumulative errors warrant reversal.
D. REDUCE CRIMINAL THREATS CONVICTION TO MISDEMEANOR
Defendant contends the trial court relied upon improper factors in concluding that his crime of making criminal threats should not be reduced to a misdemeanor. Specifically, the trial court relied upon defendant's use of the knife when he threatened Doe. Defendant insists that Doe "unequivocally recanted" during her trial testimony her allegation made to Officer Chen that defendant held a knife to her when he threatened her. There was not a preponderance of the evidence that defendant used a knife to threaten to kill Doe to support the trial court's refusal to reduce the criminal threats conviction to a misdemeanor.
1. ADDITIONAL FACTUAL BACKGROUND
During trial, defendant became ill. Counsel could not contact him after he left court early. He was taken home by a relative and had not contacted counsel. His phone appeared to have been modified not to receive messages. The trial proceeded in his absence. Defendant did not return until the date of sentencing when he was apprehended at the airport trying to enter the United States from Egypt.
At the time of sentencing, the trial court addressed the motion brought by defendant's counsel to reduce the charge in count 2, terrorist threats, to a misdemeanor pursuant to section 17, subdivision (b).
The prosecutor argued the trial court, in rejecting defendant's request, should consider that defendant left during trial. Further, based on the crime itself, Doe was so scared that she immediately moved out and took her children to Folsom. Defendant continued to contact her even though there was a temporary restraining order in place. Defendant's counsel countered that Doe had willingly seen defendant after the offense. Doe was not injured during the attack and she did not pursue a permanent restraining order. Defendant's counsel also pointed to the fact that the jury acquitted defendant of the assault charge and the weapons use enhancement showing they did not believe her testimony about the knife. Finally, defendant only left during the middle of trial because he did not understand the judicial system and was scared.
The trial court found that there was an ongoing volatile relationship between Doe and defendant. Defendant exercised control over Doe. He called her numerous times on the date of the incident. The trial court indicated it was aware defendant was acquitted of the knife use, but that Doe did tell Officer Chen that defendant had used the knife. It noted, "When she testified, she said that she's not sure if there was a knife or in her mind she thought that he had a knife when the threat to kill was made. And so reasonably done, the jurors were unclear as to whether or not a knife was used, and they acquitted him." The trial court noted that Doe was upset and could not recall whether defendant had the knife when she testified at trial, not that she completely fabricated the knife. Her actions after the incident showed her fear.
The trial court was also concerned defendant had previously violated a restraining order. It concluded, "So keeping in mind all of the facts and circumstances in the particular case, Court does not believe that this is a misdemeanor conduct in any way, shape or form. The criminal threats to kill were certainly believed by the victim that it would indeed happen. And her actions thereafter certainly are consistent with that. And so Court believes that this is not misdemeanor conduct, given the defendant's record, though minimal, but conduct in this case." The trial court also noted it was a "slap in the face to this Court" that he left in the middle of trial. The motion to reduce the criminal threats conviction to a misdemeanor was denied.
2. TRIAL COURT DID NOT ABUSE ITS VAST DISCRETION
Under section 17, subdivision (b), the trial court has broad discretion to reduce a felony offense to a misdemeanor. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.) A violation of section 422 may be charged as either a misdemeanor or a felony. (§ 422.) When exercising its discretion under section 17, subdivision (b), the trial court considers " 'the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.' " (Alvarez, at p. 978, fn. omitted.)
We review the trial court's denial of a motion to reduce the felony conviction to a misdemeanor for abuse of discretion. (People v. Superior Court (Alvarez), supra, 14 Cal.4th at p. 981.) " 'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' " (Id. at pp. 977-978.)
Initially the record does not emphatically support that the trial court's decision to deny defendant's section 17, subdivision (b), motion was based on its finding that the preponderance of the evidence established that defendant used a knife when he threatened Doe. The trial court noted that since Doe could not recall whether defendant used a knife when she testified at trial, the jury "reasonably" was unclear if a knife was used and acquitted him of the charges involving the knife. The trial court also noted that Doe did not testify at trial that she had completely fabricated the knife. In making its final ruling, the trial court did not mention defendant's knife use. The record does not support defendant's claim that the trial court improperly relied on his knife use in denying his motion to reduce his felony conviction of making terrorist threats to a misdemeanor.
Moreover, even if the trial court considered it in denying defendant's motion, the trial court could reasonably consider the evidence during sentencing. "[A] trial court, in exercising its discretion in sentencing a defendant on an offense of which he or she has been convicted, may take into account the court's own factual findings with regard to the defendant's conduct related to an offense of which the defendant has been acquitted, so long as the trial court properly finds that the evidence establishes such conduct by a preponderance of the evidence." (In re Coley (2012) 55 Cal.4th 524, 557; see also People v. Towne (2008) 44 Cal.4th 63, 86.) Here, we disagree with defendant that Doe completely rejected that defendant did not have a knife during her trial testimony. Rather, she chose not to testify about it and stated that she may have imagined he had a knife. The trial court reasonably could conclude that her statements to Officer Chen were credible and could consider the knife in choosing not to reduce the felony to a misdemeanor.
Defendant submits that Towne and Coley were wrongly decided. We are bound by these decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Finally, even if his knife use was one factor, the trial court considered numerous factors in rejecting defendant's motion to reduce his felony conviction to a misdemeanor, which were amply supported by the evidence. First, the trial court relied upon the fact that Doe believed the threats from defendant and her actions in immediately moving after the incident showed she was scared. Further, the court relied upon the fact that defendant had a prior conviction of violating a restraining order. The trial court was also concerned that defendant had left in the middle of trial. All of these factors combined led to the trial court denying defendant's motion. The trial court did not abuse its discretion.
E. DUEÑAS
Defendant claims in his supplemental opening brief, relying on People v. Dueñas, supra, 30 Cal.App.5th 1157, that the trial court violated his federal constitutional right to due process by failing to determine his ability to pay the mandatory criminal conviction assessment fee of $60 imposed pursuant to Government Code section 70373; the court security assessment fee in the amount of $80 imposed pursuant to Penal Code section 1465.8; and a restitution fine of $600 imposed pursuant to Penal Code section 1202.4, subdivision (b), and the parole revocation fine pursuant to Penal Code section 1202.45 in the same amount that was stayed. Defendant contends remand is necessary in order for the trial court to conduct an ability to pay hearing. The People did not provide a response. The California Supreme Court will ultimately decide this issue as it has granted review in People v. Kopp, review granted on November 13, 2019, S257844, but we conclude remand is not necessary.
Defendant was sentenced on December 21, 2018. The trial court imposed the court operations fees in the total amount of $140. It further imposed a $600 restitution fine pursuant to section 1202.4, subdivision (b), and a stayed parole revocation fine in the same amount. There was no objection by counsel and the trial court did not address defendant's ability to pay. On June 13, 2019, defendant's counsel filed a letter with the trial court stating it was an informal motion to correct the imposition of fines and fees at sentencing. Defendant contended, relying upon Dueñas, that his restitution fine should be stayed and the fees reversed until the trial court found that he had an ability to pay the fines and fees. The trial court refused to made any correction to the sentence due to the defendant failing to object at the time of sentencing on the ground of inability to pay. Since there are other issues on appeal, defendant must seek relief in this court. (§ 1237.2; People v. Jenkins (2019) 40 Cal.App.5th 30, 37.)
Both Government Code section 70373, subdivision (a)(1) and Penal Code section 1465.8, subd. (a)(1) do not include language regarding the defendant's ability to pay the fees. Penal Code section 1202.4, subdivision (b) provides for a mandatory minimum restitution fine in the amount of $300 absent "compelling and extraordinary reasons for not doing so." If the trial court wishes to exceed $300, only then must it determine if the defendant has the ability to pay the additional fine. (§ 1202.4, subd. (d).)
On January 8, 2019, after sentencing in this case, the 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. (Id., at pp. 1162-1163.)
The appellate court held that the trial court violated 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 court concluded that although the imposition of restitution fines pursuant to section Penal Code section 1202.4, subdivision (b), is punishment unlike the above fees, it raises similar constitutional concerns, and therefore, the Duenas court 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, at p. 1172.)
Dueñas had not been decided at the time of defendant's sentencing. In People v. Castellano (2019) 33 Cal.App.5th 485, the defendant had failed to object to the fines and fees imposed, but the court rejected a forfeiture argument and found "'no California court prior to Dueñas had held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant's ability to pay. . . . When, as here, the defendant's challenge on direct appeal is based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial, reviewing courts have declined to find forfeiture." (Id. at p. 489.)
However, in People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154, the defendant was found to have forfeited the challenge to his restitution fine by not objecting to fines and assessments at sentencing in a case involving a restitution fine greater than the minimum restitution fine. Relying upon section 1202.4, subdivision (d), the Frandsen court concluded that, at least with respect to the restitution fine, defendant had forfeited that issue on appeal by failing to raise it in the trial court. (Frandsen, at p. 1154.) This court recently approved of this conclusion regarding the imposition of a restitution fine in an amount in excess of the minimum restitution fine. (People v. Jones (2019) 36 Cal.App.5th 1028, 1033 ["Because, as noted, even before Dueñas, the Penal Code indicated that inability to pay may be considered in increasing the amount of the restitution fine above the $300 minimum, Frandsen was correct to conclude that '[s]uch an objection would not have been futile under governing law at the time of his sentencing hearing' "].)
Here, unlike the situation in Dueñas where the court had imposed the minimum restitution fine, the trial court imposed a $600 restitution fine that was above the statutory minimum, without objection. Defendant at the time of sentencing had a statutory right to object to the fine as set forth in subdivision (d) of section 1202.4 but failed to do so. The California Supreme Court has found that if a defendant could have objected at the time of sentencing to a fine imposed based on inability to pay, such failure to object waives the claim. (See People v. Case (2018) 5 Cal.5th 1, 53; People v. Gamache (2010) 48 Cal.4th 347, 409.) As such, we conclude defendant forfeited his inability-to-pay claim as to the restitution fine imposed pursuant to section 1202.4, subdivision (b) based on his failure to raise it below.
Additionally, we need not determine whether defendant forfeited his claim on appeal or whether Dueñas was properly decided as to the fees imposed. Even if Dueñas applies to this case, the record supports defendant has the ability to pay based on his prison wages rendering any conceivable constitutional error harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Defendant, who received a sentence of 16 months, can earn wages in prison to pay at least a portion of the fees. (People v. Jones, supra, 36 Cal.App.5th at p. 1035 [prisoners can earn wages while in prison].)
Further, there was ample testimony during the trial that defendant was working and bought expensive gifts for Doe. This is unlike the situation in Dueñas where the defendant had no income and was disabled. We find that even if Dueñas was properly decided, any conceivable constitutional error was harmless.
F. CORRECTION OF ABSTRACT OF JUDGMENT
The abstract of judgment reflects that defendant was ordered to pay a booking fee of $514.58. This amount was reflected on the probation report. However, during the pronouncement of sentence, the trial court did not impose the booking fee. "An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment and may not add to or modify the judgment it purports to digest or summarize." (People v. Mitchell (2001) 26 Cal.4th 181, 185.) In the event of a discrepancy between the oral pronouncement of judgment, and the abstract of judgment, the appellate court shall order that the trial court correct the abstract of judgment even if not so requested by the parties. (Id. at pp. 187-188.) We will so order.
DISPOSITION
The clerk of the superior court is directed to correct the abstract of judgment to strike the $514.58 booking fee and send the new abstract of judgment to the Department of Corrections and Rehabilitation. We otherwise affirm the judgment in its entirety.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. McKINSTER
J.