Opinion
G057705
04-30-2020
THE PEOPLE, Plaintiff and Respondent, v. MARCO RAMIREZ-NERI, Defendant and Appellant.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey, Michael R. Johnson and Theresa A. Patterson, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17NF2168) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed. Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey, Michael R. Johnson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Marco Ramirez-Neri of committing a lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)), continuous sexual abuse of a child (§ 288.5, subd. (a)), two counts of aggravated sexual assault of a child (§ 269, subd. (a)(1)), and two counts of forcible rape (§ 261, subd. (a)(2)). He was sentenced to an indeterminate term of 48 years to life. The trial court also imposed various fines and fees, and denied appellant's request to waive them based on his inability to pay.
All further statutory references are to the Penal Code unless otherwise indicated.
He contends: (1) His convictions must be reversed for instructional error because CALCRIM No. 1193, which concerns evidence of child sexual abuse accommodation syndrome (CSAAS), incorrectly states the law and lowers the prosecution's burden of proof; and (2) The trial court erred by imposing a $200 restitution fine (§ 1202.4), and $240 in court operation assessment fees (§ 1465.8), without determining his ability to pay them. We reject both claims and affirm the judgment.
FACTS
Because appellant's focus here is narrow, we need only briefly summarize the underlying facts; we discuss in more detail those facts relevant to the issues before us as needed below. Suffice it to say, appellant sexually abused his daughter Y.G. from when she was eight years old to when she was 22. The day after appellant attempted to initiate sexual contact with her yet again, 22-year-old Y.G. decided to kill herself. She wrote a suicide note to her half-sister describing appellant's repeated sexual abuse dating back to when she was eight or nine years old. She cut her wrist with a knife, "got scared," and then called 911. She told the operator she was tired of her father abusing her for years and said she no longer wanted to live.
Below, she was referred to by her first name and last initial, but we find this insufficiently protects her privacy, and instead refer to her as "Y.G." (See Cal. Rules of Court, rule 8.90(b).)
Riverside County Sheriff's deputies responded to her home. A deputy interviewed Y.G., and she briefly described how appellant had touched her inappropriately, including putting "his part in me." Because the abuse had occurred in Orange County, she later gave more detailed statements to Anaheim police, and told a detective appellant first started sexually abusing her when she was eight. This abuse continued frequently until she was 22, with sexual intercourse beginning when she was 13.
When appellant had escalated his assaults to include forcible sexual intercourse, then-13-year-old Y.G. attempted suicide by taking some pills from her mother's medicine. It "didn't work," and "just made [her] stomach hurt very bad." She did not tell anyone what she had done. When asked why, she replied, "[b]ecause that is when everything started . . . and I was scared." The forced intercourse was the "worst kind of abuse" he had done to her.
The detective arranged for Y.G. to make a recorded covert telephone call to appellant. At the beginning of the call, Y.G. told appellant she was in the hospital and needed to speak to him. She said she wanted to know why appellant started touching her when she was just eight years old; appellant asked for forgiveness. She confronted him with the fact she was only 13 when he started to have sex with her, which he acknowledged; again he asked for forgiveness.
Appellant repeatedly asked her about the police and whether anyone could hear her. Y.G. told him she was alone. Appellant said he wanted her to forgive him and asked if she would be able to do so. She replied she could. She asked appellant to promise he would never touch her or have sex with her again. Appellant suggested they "fix everything," and asked if she had told her mother about what had happened. She said she had not because she was embarrassed. Appellant told her to lie to her mother about the reason for her suicide attempt.
The detective interviewed appellant. Initially, he denied improperly touching Y.G. He was told his telephone conversation with her had been recorded, and police were aware he had apologized to Y.G. for doing "bad things" to her. Appellant said he had always had "problems" with Y.G., and admitted touching her. He acknowledged he touched Y.G.'s vagina on the outside of her clothing beginning when she was about 12. He also admitted having sex with her, again saying it began when she was 12 years old. This occurred about once a month, and continued until a few months before his 2017 arrest. Appellant said he felt bad about what he did and had apologized to Y.G., asking for her forgiveness. The detective asked if he wanted to write an apology letter to Y.G., which appellant agreed to do.
Before reporting her sexual abuse to the 911 operator, Y.G. had not disclosed it to anyone. At times, she wanted to tell her mother, but she would "freeze up," and get scared. She did not think anyone would believe her. She did not trust anyone else and "didn't really have friends." She was also afraid her father would be angry if she told anyone. Y.G. said she loved appellant as a father but hated what he did to her. She described her relationship with appellant as "very confusing." When they were out in public, he would act like a "regular father," but once they were alone at home, he was not.
Y.G. testified her mother became upset with her after she reported appellant's sexual abuse. In fact, she no longer spoke to her mother. Appellant had been an important source of income to the family, the leader of the household, and the main "bread winner."
Dr. Jody Ward, a clinical and forensic psychologist, testified about CSAAS. CSAAS involves a pattern of behaviors exhibited by many children who have been sexually abused by someone well known to the child. There are five manifestations of CSAAS: secrecy; helplessness; entrapment and accommodation; delayed disclosure; and retraction or recantation. "Secrecy" refers to the fact the abuse occurs in secret and the child keeps it secret for a long period of time. "Helplessness" refers to the power differential inherent between children and adults and the fact children are dependent on the adults around them. "Accommodation and entrapment" refers to the perpetrator's ability to continue to sexually abuse the child because the child has not reported previous sexual abuse. "Delayed disclosure" refers to research showing two-thirds of sexually abused children do not report it until adulthood and even when they do disclose, it can be tentative or hesitant. "Retraction or recantation" is less frequent, and occurs when a victim comes forward with allegations of sexual abuse but subsequently softens or recants the allegations because of the consequences he or she has faced as a result of the disclosure.
Not all sexually abused children exhibit all of these behaviors, but many do. CSAAS is helpful to understand why some children respond to sexual abuse in a manner that might seem counterintuitive to a layperson. However, CSAAS is not a diagnostic tool, nor is it used to show abuse actually occurred. Dr. Ward did not know the parties and was not familiar with any of the evidence in this case, so offered no opinion on guilt or innocence.
In the defense case, Y.G.'s younger brother testified he never saw appellant touch Y.G. in a sexual manner. Y.G. seemed normal and happy to him when she was around appellant. Appellant did not testify.
DISCUSSION
CALCRIM No. 1193 and Dr. Ward's CSAAS Testimony
Appellant contends his convictions must be reversed for instructional error, arguing CALCRIM No. 1193's explication of CSAAS evidence incorrectly states the law and lowers the prosecution's burden of proof. We disagree.
Before trial, the prosecution moved to introduce CSAAS evidence through Dr. Ward's testimony; appellant filed a similar motion to preclude it. The trial court granted the prosecutor's motion, but ruled that, immediately following Dr. Ward's testimony, it would instruct the jury with CALCRIM No. 1193. Appellant's counsel did not object; he agreed with the court's suggestion to read the instruction mid-trial.
Thus, after Dr. Ward testified, the court told the jury: "You have heard testimony from Dr. Jody Ward regarding child sexual abuse accommodation syndrome. Dr. Ward's testimony about child sexual abuse accommodation is not evidence that the defendant committed any of the crimes charged against him. You may consider this evidence only in deciding whether or not [Y.G.'s] conduct was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of her testimony." To emphasize the point, the court repeated the instruction. Later, it was read to the jury a third time at the end of the trial, just before final arguments.
"The independent or de novo standard of review is applicable in assessing whether instructions correctly state the law[.]" (People v. Posey (2004) 32 Cal.4th 193, 218.) In this context, "the relevant inquiry is whether there is a reasonable likelihood the jury applied the challenged instruction in a way that violated the Constitution. [Citations.] '"'[W]e must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.' [Citation.]" [Citations.]'" (People v. Covarrubias (2016) 1 Cal.5th 838, 915.) When conducting our inquiry, we examine the challenged jury instruction in the context of all the instructions, and not in "artificial isolation." (People v. Richardson (2008) 43 Cal.4th 959, 1028.)
CSAAS is not new. (See People v. Bowker (1988) 203 Cal.App.3d 385, 389, fn. 3 (Bowker) [recognition of the syndrome dates to at least 1983].) Similarly, it is well established that although "expert testimony on the common reactions of child molestation victims is not admissible to prove that the complaining witness has in fact been sexually abused . . . it is admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident — e.g., a delay in reporting — is inconsistent with his or her testimony claiming molestation. [Citations.] 'Such expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children's seemingly self-impeaching behavior. [¶] The great majority of courts approve such expert rebuttal testimony.' [Citation.]" (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301, fn. omitted (McAlpin).)
California is not alone. As of 2015, the courts of at least 41 other states admit CSAAS evidence for similar or even broader purposes. (See King v. Commonwealth (Ky. 2015) 472 S.W.3d 523, 534-535 (dis. opn. of Abramson, J.) [compiling cases].)
Thus, expert testimony relating to CSAAS can be properly offered at trial where an abuse victim's credibility is called into question because of delayed reporting. (People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745 (Patino) [victim's credibility was in issue due to "paradoxical behavior," including delay in reporting molestation].) As such, the testimony is admissible to dispel specific myths or misconceptions by pointing out victims of childhood sexual abuse, as a group, often delay reporting abuse and such behavior is not inconsistent with having been molested. (See People v. Julian (2019) 34 Cal.App.5th 878, 885 (Julian); People v. Housley (1992) 6 Cal.App.4th 947, 955-957 [CSAAS testimony was admissible to explain child's delay in reporting rape and later recantation of charges, explaining CSAAS testimony "may — with certain limitations — be used to disabuse the jury of common misconceptions concerning abuse victims"]; People v. Mateo (2016) 243 Cal.App.4th 1063, 1069 [CSAAS admitted to dispel common misconceptions the jury may hold as to how children react to abuse].)
Where a defense attorney places the credibility of the victim at issue, the prosecution may preemptively offer CSAAS evidence in its case-in-chief to explain to the jury why a child victim would delay reporting the abuse. (Patino, supra, 26 Cal.App.4th at pp. 1744-1745 [admission of CSAAS evidence "is not error merely because it was introduced as part of the prosecution's case-in-chief rather than in rebuttal"].)
Here, during his cross-examination, appellant's trial counsel confronted Y.G. several times with the fact she had never told anyone what was being done to her as it progressed over the years. The implication was she did not tell anyone because it did not happen as she described, i.e., it was to impeach her credibility.
As a result, the CSAAS evidence was relevant to "rehabilitate [Y.G.'s] credibility when the defendant suggest[ed] that [her] conduct after the incident - e.g., a delay in reporting - [was] inconsistent with [her] testimony claiming molestation." (Julian, supra, 34 Cal.App.5th at p. 885.) Similarly, Dr. Ward's testimony was admissible to "disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children's seemingly self-impeaching behavior." (McAlpin, supra, 53 Cal.3d at p. 1301.)
Moreover, this is not a case in which the prosecution improperly introduced CSAAS evidence to support the truth of the molestation claims. (Compare Bowker, supra, 203 Cal.App.3d at pp. 394-395.) Rather, the record shows the CSAAS evidence was presented to the jury in a manner narrowly tailored to inform them that counterintuitive reactions to abuse, including delayed reporting, were not uncommon for child molestation victims. Dr. Ward's limited testimony went no further than that and the jury was told it too could not.
In People v. Gonzales (2017) 16 Cal.App.5th 494 (Gonzales), Dr. Ward told a jury, "CSAAS is not a tool to help diagnose whether a child has actually been abused. . . . [I]f it is not known whether a child has been abused, CSAAS is not helpful in determining whether a child has, in fact, been abused. The purpose of CSAAS is to understand a child's reactions when they have been abused." (Id. at pp. 503-504.) And just as here, the Gonzales jury was also instructed with CALCRIM No. 1193, limiting the purpose for which the jury could use Dr. Ward's testimony. (Id. at p. 503.) The court concluded, "Ward's testimony made it clear CSAAS evidence is not evidence [defendant] did anything . . . [and] CALCRIM No. 1193 was proper and did not violate due process." (Id. at p. 504.) So too here.
In addressing a claim of jury misinstruction, we assess the entire charge to the jury as a whole, and view the challenged instruction in context with the other instructions to determine whether there was a reasonable likelihood the jury applied the challenged instruction in an impermissible manner. (People v. Jennings (2010) 50 Cal.4th 616, 677.) We also presume the jury followed the court's instructions. (People v. Edwards (2013) 57 Cal.4th 658, 746.)
Here, the jury was instructed to "[p]ay careful attention to all of [the] instructions and consider them together" (CALCRIM No. 200), that "certain evidence was admitted for a limited purpose," and to "consider that evidence only for that purpose and for no other" (CALCRIM No. 303). CALCRIM No. 1193 thrice told the jury the CSAAS evidence was not evidence appellant molested Y.G., and to use it "only" for the limited purpose of determining whether Y.G.'s conduct was inconsistent with the conduct of a child who had been molested "and in evaluating the believability of her testimony" about her molestations. While it is true that evidence for evaluating an alleged molestation victim's believability may ultimately assist the jury in determining whether to credit his or her statements molestations did occur, the same may be said of any evidence admitted solely on the issue of a witness' credibility. But that does not mean it lessens the burden of proof.
As stated in McAlpin, expert CSAAS testimony "is admissible to rehabilitate [a] witness' credibility when the defendant suggests that the [witness'] conduct after the incident . . . is inconsistent with his or her" molestation claims. (McAplin, supra, 53 Cal.3d at p. 1300.) CALCRIM No. 1193 properly limits the jury's consideration of the CSAAS evidence to its permissible purpose. It is not reasonably likely the jury understood CALCRIM No. 1193 as allowing it to use the evidence for the impermissible purpose of determining the molestations occurred. Rather, the jury most likely understood the instruction as permitting it to use the CSAAS evidence solely for the distinct and permissible purpose of evaluating Y.G.'s testimony in light of the evidence she did not report her molestation until almost 14 years after it began, and how that might seem inconsistent with the conduct of a child who had been molested for so many years.
Consequently, as the standard jury instruction on the limited use of CSAAS evidence, CALCRIM No. 1193 does not violate due process or misapply the burden of proof. (Gonzales, supra, 16 Cal.App.5th at pp. 503-504.); cf. McAlpin, supra, 53 Cal.3d at pp. 1300-1301.) We therefore hold CALCRIM No. 1193 fairly instructed the jury on the proper use — and limitations on the use — of CSAAS evidence in this case. There was no instructional error.
"The California jury instructions approved by the Judicial Council are the official instructions for use in the state of California." (Cal. Rules of Court, rule 2.1050(a).) The CALCRIMs are such instructions. (People v. Lucas (2014) 60 Cal.4th 153, 294, disapproved on other grounds in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19.)
The Restitution Fine and Court Fees
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), appellant contends the trial court violated his due process rights by imposing certain fines and fees without first determining he had the financial ability to pay them. We are not persuaded.
In Dueñas, the defendant suffered a stream of "cascading consequences" as a result of her inability to pay various fines and fees levied against her over the course of several years. (Dueñas, supra, 30 Cal.App.5th at p. 1163.) Not only did she lose her driver's license, she was subjected to additional jail time and the prospect of civil collection efforts, all because she lacked the means to pay off her original financial penalties. (Id. at pp. 1161-1164.) Given that her criminal history stemmed largely from the lack of monetary resources, the Dueñas court determined there was no rational basis for subjecting her to additional financial penalties in her current case, and therefore the trial court's decision to do so violated due process.
A number of courts have criticized the soundness of the Dueñas ruling and some have rejected the idea that due process is the appropriate measure by which the constitutionality of criminal fines and fees should be assessed. (See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, review granted and held Nov. 26, 2019, S258946 [Dueñas improperly expanded the boundaries of due process].) However, we need not join this fray because, even assuming the particular result in Dueñas was correct, appellant has not demonstrated the trial court violated his due process rights by failing to ascertain his ability to pay before ordering him to pay the restitution fine and fee assessments at issue in this case.
At the sentencing hearing, the court imposed "the old restitution fine per 1202.4 in the amount of $200," referring to section 1202.4 as it read prior to 2012. Trial counsel did not object. The court was inclined to impose $70 per count in court fees and assessments. Defense counsel asked the court "to consider waiving those [fees] given the fact that [appellant] likely will be in prison and indigent given some of the recent case law that's come down . . . ." The court responded it was going to waive the booking fee in any event, but said the fee issue should have been raised in appellant's sentencing brief. Defense counsel referred the court to Dueñas, although he mistakenly said the case "ha[d been] taken [] up so it's no longer binding." The trial court agreed to strike part of the fees, i.e., the $30 per count assessment under Government Code section 70373, subdivision (a)(1), because that section was legally inapplicable to the convictions in this matter, but it imposed the $40 per count fee under section 1465.8. It waived the booking fees, finding appellant "ha[d] no ability to pay those . . . ."
The Dueñas opinion was issued on January 8, 2019. (Dueñas, supra, 30 Cal.App.5th at p. 1157.) Respondent Los Angeles City Attorney did not seek further review. The Supreme Court denied a depublication request from the San Bernardino County District Attorney, and declined review on its own motion. (Ibid., March 27, 2019, S254210). The remittitur issued on March 29, 2019. The sentencing hearing here was held on May 3, 2019.
The $200 Restitution Fine (§ 1202 .4)
Because he failed to raise it below, appellant has forfeited his appellate challenge to the restitution fine. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 (Frandsen) [Dueñas challenge forfeited by failure to object to the fines and assessments at sentencing]; accord, People v. Jenkins (2019) 40 Cal.App.5th 30, 40-41, review granted and held on other grounds, Nov. 26, 2019, S258729; People v. Torres (2019) 39 Cal.App.5th 849 [same]; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 [same]; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 [same]; cf. People v. Aguilar (2015) 60 Cal.4th 862, 864 [forfeiture rule applies to probation costs and attorneys' fees imposed at sentencing]; People v. McCullough (2013) 56 Cal.4th 589, 590-591 [challenge to booking fee forfeited where no objection was made in trial court]; People v. Nelson (2011) 51 Cal.4th 198, 227 [ability to pay a maximum restitution fine is forfeited by failure to object]; People v. Avila (2009) 46 Cal.4th 680, 729 [rejecting argument that imposition of a restitution fine without an ability to pay showing was an unauthorized sentence not subject to the forfeiture rule].)
Other cases have rejected a forfeiture argument in similar circumstances, but we find those cases distinguishable because they involve sentencing hearings held before the Dueñas decision. (See, e.g., People v. Castellano (2019) 33 Cal.App.5th 485, 489 (Castellano), and People v. Johnson (2019) 35 Cal.App.5th 134, 137-138 (Johnson).)
The $240 in Court Security Fees (§ 1465 .8)
Appellant contends the imposition of the court security fees violated due process because he "is indigent, as evidenced by the fact that he has qualified for appointed counsel at trial and on appeal." The fact appellant had (or has) appointed counsel is not determinative. (People v. Douglas (1995) 39 Cal.App.4th 1385, 1397 [a defendant may lack the ability to pay the cost of his court-appointed attorney yet still have the means to pay other fines or fees].)
Appellant points out the Attorney General "agrees that [the § 1465.8] assessment[s] violate[] due process," and concedes that "[b]ecause the court operations . . . assessments are non-punitive, due process requires that the court conduct, at appellant's request, an ability-to-pay hearing before imposing the assessments." (Quoting Respondent's Brief at pp. 43-44.) We are not required to accept a concession by the Attorney General (People v. Kim (2011) 193 Cal.App.4th 836, 847), and we decline to do so in this instance.
This was a post-Dueñas case, where appellant had an opportunity — and an obligation — to demonstrate, not merely allege, he did not have an ability to pay the fine and fees. This he neglected to do. "[T]he most knowledgeable person regarding the defendant's ability to pay would be the defendant himself. It should be incumbent upon the defendant to affirmatively argue against application of [a fine] and demonstrate why it should not be imposed." (People v. McMahan (1992) 3 Cal.App.4th 740, 749-750 [§ 290.3 sex offense fine].) That, of course, was exactly what Ms. Dueñas did in her case, with "an uncontested declaration concerning her financial circumstances[.]" (Dueñas, supra, 30 Cal.App.5th at p. 1163.)
The burden rested with appellant, not the prosecutor, to demonstrate his inability to pay the fees and fine in question. (See Castellano, supra, 33 Cal.App.5th at p. 490 [in Dueñas context, "a defendant must in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court" (italics added)]; Frandsen, supra, 33 Cal.App.5th at p. 1154 ["Given that the defendant is in the best position to know whether he has the ability to pay, it is incumbent on him to object to the fine and demonstrate why it should not be imposed"].)
Even assuming the trial erred by not conducting a full-blown ability-to-pay hearing on its own accord, we find any supposed due process violation harmless beyond a reasonable doubt because the record demonstrates appellant is able to work and, while serving his prison term, will have an opportunity to earn the minimal fees he was assessed. Appellant was 49 years old at the time of sentencing, and had worked in construction from 1998 until his arrest in 2017, with a salary of $500 a week. Although appellant is diabetic, his health is otherwise "good," and he denied using either alcohol or drugs. Part of Y.G.'s reluctance to report her molestations was her concern the family would lose appellant's ability to continue to financially support them, because he was the main "bread winner." Appellant told the probation officer he was the "sole provider" for the family and, when he is released from prison, he planned to return "to work to support them."
The probation officer stated appellant was given a "Notice of Right to a Financial Hearing pursuant to [section] 1203.1b," but he did not submit an "Adult Financial Statement declaring his assets and liabilities" for a determination of his ability to pay the cost for preparation of the probation report. In addition, the probation officer recommended a restitution fine of $3000, more than the minimum, and therefore one appellant was statutorily entitled to contest. (See Frandsen, supra, 33 Cal.App.5th at p. 1154; § 1202.4, subd. (c) [although a defendant's inability to pay is not a compelling and extraordinary reason to refuse to impose a restitution fine, an inability to pay "may be considered . . . in increasing the amount of the restitution fine in excess of the minimum fine"].)
Appellant was employed during the 14 years he molested his daughter. More importantly, and unlike the defendant in Dueñas, he was not imprisoned because of his poverty. Rather, it was because he committed a series of heinous crimes against his daughter for over a decade. Appellant is the antipode of Ms. Dueñas, and the Dueñas case is both factually distinguishable and legally inapposite. (See People v. Caceres (2019) 39 Cal.App.5th 917, 923, 928 [distinguishing Dueñas on the basis it involved the extreme situation where the defendant's current offense was driven by, and likely to contribute to, her poverty such that she was trapped in an endless cycle of criminal activity and escalating debt]; People v. Kopp (2019) 38 Cal.App.5th 47, 95, review granted Nov. 13, 2019, S257844 [same].)
Unlike Ms. Dueñas, appellant does not appear to have a past history of being unable to pay court assessments, limited assets, or an income needed for vital childcare needs. He has not pointed to any circumstances, such as a serious neurological disability, casting doubt on his ability to obtain the funds for payment of his future obligations. A defendant's ability to pay does not require existing employment or cash on hand. (People v. Staley (1992) 10 Cal.App.4th 782, 785.) Rather, it can be based on a person's future ability to earn, including his ability to earn prison wages. (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837.) Here, appellant will be serving many years in prison and, unlike Ms. Dueñas, who "because of her [cerebral palsy] . . . dropped out of high school and [did] not have a job," he has the capacity to earn. (Dueñas, supra, 30 Cal.App.5th at p. 1160.) Any reasonable trial court could have imposed the relatively low assessments and restitution fine imposed here.
Accordingly, we conclude any error was harmless beyond a reasonable doubt. (See People v. Jones (2019) 36 Cal.App.5th 1028, 1035-1036 [because "[w]ages in California prisons currently range from $12 to $56 a month," any Dueñas error was harmless because defendant would "have sufficient time to earn these amounts during his sentence, even assuming [defendant] earns nothing more than the minimum"]; Johnson, supra, 35 Cal.App.5th at p. 139 [idea a defendant cannot afford to pay $370 while serving a three-year prison sentence is "unsustainable"].)
DISPOSITION
The judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. ARONSON, J.