Opinion
E073633
08-07-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE ROBERTO ROBLES, 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, Senior Assistant Attorney General, and Eric A. Swenson and Allison V. Acosta, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB17002078) OPINION APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, 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, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Jose Roberto Robles harassed a female neighbor, sexually and otherwise, for years. She testified (and/or told police) that one night, she awoke to find him on top of her, kissing her. He tried to get her to orally copulate him. He then forced her outside her house and into an alley behind her house, where he tried again to get her to orally copulate him. He then left — likely deterred by the victim's young sons, who were screaming, crying, and desperately clinging to her.
Defense counsel did not dispute that defendant had harassed the victim. He argued, however, that she made up the sexual attack to get revenge, or at least so she could get a restraining order against him, and that the police did not adequately investigate her allegations.
After a jury trial, defendant was found guilty of kidnapping for purposes of unlawful oral copulation (§ 209, subd. (b)(1)) and attempted forcible oral copulation (former § 288a, subd. (c)(2)(A), see now § 287, subd. (c)(2)(A), and § 664, subd. (a)).
These and all further statutory citations are to the Penal Code, unless otherwise specified.
The jury deadlocked on six other counts: assault during a first degree burglary with the intent to commit a sexual offense (§ 220, subd. (b)), first degree burglary (§§ 459 & 460, subd. (a)), making a criminal threat (§ 422, subd. (a)), attempted forcible rape (§§ 261, subd. (a)(2), 664, subd. (a)), and two counts of child abuse (§ 273a, subd. (a)). The trial court declared a mistrial on those counts and dismissed them on the prosecution's motion.
Defendant was sentenced to life in prison with the possibility of parole, along with the usual fines and fees.
In this appeal, defendant contends the trial court erred by:
1. Failing to instruct on the lesser included offense of simple kidnapping.
2. Failing to give a unanimity instruction with respect to attempted forcible oral copulation.
3. Refusing to apply section 654 due to its mistaken understanding of the charges.
4. Imposing fines and fees without determining whether defendant had the ability to pay them.
We agree that the trial court's finding that section 654 did not apply was based on a misunderstanding of what defendant had been convicted of. We will remand for reconsideration of this issue. Otherwise, we find no reversible error.
I
STATEMENT OF FACTS
Jane Doe lived in San Bernardino with her two sons, aged seven and two. Her sister and brother-in-law lived in a house abutting the street; Doe occupied a "back house" behind it. Behind Doe's house, there was an alley. A window in the living room/dining room area opened onto the alley.
The trial court ordered that the victim be referred to by this fictional name. (See § 293.5.)
Defendant lived across the street. Doe had been afraid of him for years. When she got home from work, he would follow her up to the front gate of her property. Sometimes he asked her for a date; she refused. Sometimes he asked "if [she] was a whore" and said "he had money." She would tell him to leave her alone. On "many occasions," she told him not to come into her house; he responded "that he could go anywhere he wanted." He also harassed her on Facebook, sending her obscene messages. She believed he was dangerous because she had heard gunshots coming from his house. In his Facebook profile picture, he was holding a weapon.
Twice, Doe went to apply for a restraining order against defendant, but she was told "sometimes that would make matters worse, that the person would turn violent."
On the night of July 8-9, 2017, Doe went to bed around midnight. She and her sons slept together in one bed. The door was locked; she could not remember whether the window was locked.
She awoke to find defendant on top of her, kissing her. She screamed. Her sons woke up and started crying. Defendant got up, so Doe was able to sit up in the bed; her sons clung to her. Defendant reached behind his back, as if for a weapon, and told her to calm the boys down or "things would get worse."
Defendant unbuttoned his pants, grabbed Doe by the hair, pulled her head toward his groin, and asked her to "suck on it." She begged him "not to do anything to [her] in front of the children."
Defendant then forced her to walk outside the house, pulling her by the hair. He took her into the alley. Her sons ran after her, still crying and screaming. Defendant touched her buttocks. Once again, he pulled her head by the hair toward his groin and demanded that she orally copulate him.
Doe told the police that defendant made this demand. At trial, however, she did not "recall [this] very well."
Doe broke away and ran back in the house. Defendant used his undershirt to wipe the windowsill, then left.
Doe did not tell the police that defendant wiped the windowsill. She did tell them that she could not call 911 because defendant took her cell phone; before leaving, he wiped it off and gave it to her.
Doe phoned her brother-in-law. He told his wife (Doe's sister) to call the police, then ran to Doe's house. Doe's sister looked out a window and saw defendant going out the gate of the property and walking toward his own house.
Defendant was arrested the next day. Doe identified him in an in-field showup.
Doe's older son largely confirmed Doe's account, albeit from his perspective. Defendant said something, but he could not remember what. However, he testified that he and his brother never went outside. When the police interviewed him, he identified the intruder as defendant, "a neighbor that [he was] afraid of[.]"
Doe's brother-in-law confirmed that defendant had been "bothering" Doe; he had told defendant two or three times to leave her alone.
The police found "shoe impressions surrounding the entire exterior" of Doe's house, especially outside the windows. A chevron pattern in the impressions matched the shoes that defendant was wearing that night; however, his shoes also had a swirl pattern on the toe and heel, which did not show up in any of the impressions. The dirt around the house was "pretty saturated." Inside the house, however, there was no mud or dirt on the floor.
The police also found that the curtain rod of the window onto the alley had partially fallen off the wall. However, the investigating officer did not remember whether the window was shut or locked. Fingerprints taken from the window were not usable. The window opening was about 16 or 18 inches high. Defendant was six feet two inches tall and "heavyset." The investigating officer agreed that it would be "extremely difficult, if not impossible" for a person defendant's size to get in through the window.
On top of a hedge in front of the front house, the police found a Modelo beer can. Defendant's fingerprint was on the can. They found an identical can on a table in defendant's garage.
The police swabbed the window frame and the beer can for DNA, but they did not swab anything else, and they never tested the swabs.
It was stipulated that, on the night of the crime, defendant attended a party next door to Doe's house, at which beer was served; the party ended between 11:00 p.m. and midnight. The police did not interview any of Doe's neighbors.
II
FAILURE TO INSTRUCT ON SIMPLE KIDNAPPING
Defendant contends that the trial court erred by failing to instruct on the lesser included offense of simple kidnapping.
"Under California law, trial courts must instruct the jury on lesser included offenses of the charged crime if substantial evidence supports the conclusion that the defendant committed the lesser included offense and not the greater offense. [Citations.]" (People v. Gonzalez (2018) 5 Cal.5th 186, 196.)
Here, defense counsel did not request an instruction on simple kidnapping. He did request lesser included offense instructions on the assault and child abuse counts. The trial court denied these because they were not supported by the defense theory of the case — i.e., the defense was that defendant "didn't do this."
Nevertheless, the trial court's duty to instruct on a lesser included offense exists even in the absence of a request. (People v. Gonzalez, supra, 5 Cal.5th at p. 196.) Moreover, "'[t]he sua sponte duty to instruct on lesser included offenses, unlike the duty to instruct on mere defenses, arises even against the defendant's wishes, and regardless of the trial theories or tactics the defendant has actually pursued.' [Citation.]" (People v. Beames (2007) 40 Cal.4th 907, 926.)
Simple kidnapping is a lesser included offense of kidnapping for purposes of a sexual offense. (People v. Jackson (1998) 66 Cal.App.4th 182, 189; see also People v. Montes (2014) 58 Cal.4th 809, 874 [kidnapping for purposes of robbery].)
The major element distinguishing kidnapping for purposes of a sexual offense from simple kidnapping is, obviously, the intent to commit a sexual offense. Defendant therefore argues that there was substantial evidence that he did not intend to commit a sexual offense.
We disagree. Defendant had a history of making crude sexual advances toward Doe — asking her for a date, offering her money for sex, and sending her obscene Facebook messages. On entering her house, he got on top of her, in bed, and started kissing her. He pulled her head toward his penis and asked her to "suck on it." Admittedly, all this happened before the kidnapping, but it shows that defendant had sex on his mind.
The evident impetus for the kidnapping was that Doe's sons were crying and clinging to her, and she begged him "not to do anything to [her] in front of the children." Immediately after that, he forced her outside. Once in the alley, he touched her buttocks. He repeated his demand that she suck his penis. Really, under these circumstances, what possible reason could defendant have had for kidnapping the victim other than to commit a sexual offense?
Defendant argues that, at trial, Doe did not testify to defendant's second demand, outside, to suck his penis; this was merely something she had told police. Nevertheless, her statement to the police was substantial evidence of this. And he also "touched [her] butt." In any event, even if there were no evidence of any sexual conduct outside the house, there was still no evidence of any other intent.
Defendant also argues that Doe's son did not testify regarding defendant's first demand for oral sex, inside the bedroom. However, he did testify that defendant grabbed Doe's hair and pulled her toward him. Defendant was saying something, but he did not remember what. One would hardly expect a seven-year-old child to register a demand for oral copulation. Once again, if defendant's intent was not sexual, what was it?
Finally, defendant points to the fact that the jury hung on other counts, which were also based on Doe's testimony. This is irrelevant to whether there was substantial evidence of these counts (see People v. Superior Court (Sparks) (2010) 48 Cal.4th 1, 13), much less to whether there was substantial evidence of any lesser included offense.
We therefore conclude that the trial court did not err by failing to instruct on simple kidnapping.
III
FAILURE TO GIVE A UNANIMITY INSTRUCTION
Defendant contends that the trial court erred by failing to give a unanimity instruction with respect to the attempted forcible oral copulation charge (count 5).
"In a criminal case, . . . the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]" (People v. Russo (2001) 25 Cal.4th 1124, 1132.) "On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty. [Citation.]" (Ibid.)
Here, there was evidence that defendant demanded twice that the victim orally copulate him — once in the bedroom and once outside the house. Moreover, the prosecutor did not make any election to proceed on just one of these acts. To the contrary, she argued to the jury that both acts occurred.
The People argue, however, that this case comes under the continuous course of conduct exception to the requirement of a unanimity instruction.
In the context of the unanimity instruction requirement, "continuous course of conduct" "is a catch-all term, which, somewhat confusingly, embraces two wholly distinct principles.
"First, the continuous-course-of-conduct exception applies '"when . . . the statute contemplates a continuous course of conduct of a series of acts over a period of time" [citation].' [Citation.] For example, where the defendant is charged with one count of continuous sexual abuse of a child [citation], even if based on a series of acts over time, a unanimity instruction is not required. [Citation.] As already noted, however, a unanimity instruction is not required when the evidence shows only one discrete crime. Thus, this is not really an exception to the requirement.
"Second, the continuous-course-of-conduct exception applies when (1) 'the acts are so closely connected in time as to form part of one transaction,' (2) 'the defendant tenders the same defense or defenses to each act,' and (3) 'there is no reasonable basis for the jury to distinguish between them. [Citations.]' [Citation.] 'This exception "'is meant to apply not to all crimes occurring during a single transaction but only to those "where the acts testified to are so closely related in time and place that the jurors reasonably must either accept or reject the victim's testimony in toto." [Citation.]' [Citation.]" [Citation.]' [Citation.] Again, however, it is not at all clear that this is truly an exception. It would seem more accurate to say that, in this situation, a unanimity instruction is required, but the failure to give one is harmless. [Citation.]" (People v. Lueth (2012) 206 Cal.App.4th 189, 196.)
To the extent that the People are asking us to apply the first version of the continuous course of conduct exception, they should be careful what they wish for. If we were to hold that both of defendant's demands constituted a single discrete attempt, that would mean that, in some future case in which the defendant made two similar demands — or three, or more — that hypothetical defendant could be convicted on only one count of attempt. Moreover, the People cite no cases to assist us in deciding whether multiple efforts to commit a crime constitute a single attempt, and if so, when. Under these circumstances, we are reluctant to decide whether the first version of the continuous course of conduct exception applies here. Instead, we assume, without deciding, that the trial court should have given a unanimity instruction.
Thus, we turn to whether that assumed error was harmless, under the second version of the continuous course of conduct exception or otherwise.
The second version does not apply here. While the acts were closely connected in time and the defense to both was the same, there was a reasonable basis on which the jury could have distinguished between the two acts. At trial, Doe remembered and recounted defendant's first demand that she orally copulate him, but she did not clearly remember the second demand.
This very fact, however, shows that the assumed error was harmless, for another reason.
Preliminarily, we must identify the applicable harmless error standard. In People v. Wolfe (2003) 114 Cal.App.4th 177, we held that the failure to give a unanimity instruction violates the federal constitution (id. at pp. 187-188); therefore, it can be found harmless only when "the beneficiary . . . prove[s] beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman v. California (1967) 386 U.S. 18, 24.)
A minority of California courts have held that the error does not violate the federal constitution. (E.g., People v. Vargas (2001) 91 Cal.App.4th 506, 562.) They relied on Johnson v. Louisiana (1972) 406 U.S. 356, which had held that the federal constitutional requirement of a unanimous jury of twelve persons did not apply to the states. (People v. Vargas, supra, at p. 562.) Recently, the United States Supreme Court bolstered our conclusion by overruling Johnson and holding that the federal constitutional requirement of a unanimous jury of twelve persons does apply to the states. (Ramos v. Louisiana (2020) ___ U.S. ___, ___ [140 S.Ct. 1390, 1397] [lead opn. of Gorsuch, J., joined by Ginsburg and Breyer, JJ.; see also id. at p. 1408 [conc. opn. of Sotomayor, J.); id. at p. 1410 [conc. opn. of Kavanaugh, J.]; id. at p. 1421 [conc. opn. of Thomas, J.].)
Under the federal standard, "[t]he failure to give a unanimity instruction may be harmless error if we can conclude beyond a reasonable doubt that all jurors must have unanimously agreed on the act(s) constituting the offense. [Citations.]" (People v. Norman (2007) 157 Cal.App.4th 460, 466.)
Here, Doe testified to the forcible oral copulation attempt that happened inside the bedroom. Evidently she gave the police an account of the bedroom attempt that was consistent with her testimony, as she was never impeached with her statement to them. However, as discussed, she did not clearly remember a forcible oral copulation attempt that happened outside. The only evidence of this was her statement to the police. Defendant himself singles out the evidence of the outside attempt as "particularly . . . problematic."
At oral argument, defendant's counsel conceded that this is a "fair inference from the record."
Accordingly, a reasonable juror could conclude that both attempts occurred. Alternatively, a reasonable juror could conclude that the bedroom attempt occurred, but the outside attempt did not. Finally, a reasonable juror could conclude that Doe was simply not credible and that neither attempt occurred. No reasonable juror, however, could conclude that the outside attempt occurred but the bedroom attempt did not.
We are therefore convinced, beyond a reasonable doubt, that the jury unanimously found that defendant committed the bedroom attempt (though some or all of them may have found that he also committed the outside attempt). (See People v. Lueth, supra, 206 Cal.App.4th at p. 199 [in spousal battery prosecution, failure to give unanimity instruction was harmless where victim's testimony to first beating was corroborated by photos but her testimony indicating a second beating was uncorroborated]; People v. Wolfe, supra, 114 Cal.App.4th at p. 188 [in prosecution for unlawful possession of a firearm, failure to give unanimity instruction was harmless where defendant admitted possession of one stash of guns but denied possession of second stash].)
IV
THE APPLICATION OF SECTION 654
Defendant contends that the trial court erroneously analyzed the application of section 654.
A. Additional Factual and Procedural Background.
At sentencing, defense counsel asserted that section 654 applied. The trial court ruled, "If we had a charge of kidnapping to commit rape and then an attempted rape, I would agree that is the same course of conduct and 654 would apply to that. But here, we have a charge of kidnapping with intent to commit rape, and then a separate act of attempted forcible oral copulation. So, I think, there are separate acts and separate and independent intents, and therefore Penal Code [s]ection 654 does not apply."
B. Discussion.
Section 654, section (a), as relevant here, provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
"Section 654 precludes multiple punishments for a single act or indivisible course of conduct. [Citation.]" (People v. Hester (2000) 22 Cal.4th 290, 294.) "'"'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may [not] be punished . . . for more than one.'"' [Citation.]" (People v. Jackson (2016) 1 Cal.5th 269, 354.) "If, on the other hand, defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335.)
"'"'A trial court's . . . finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.' [Citation.]" [Citation.]' [Citations.]" (People v. McKinzie (2012) 54 Cal.4th 1302, 1368, disapproved on other grounds in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.)
The major premise of the trial court's reasoning was that defendant had been convicted of kidnapping with the intent to commit rape. Not so. Defendant was, in fact, convicted of kidnapping with the intent to commit oral copulation. The information alleged that defendant committed "kidnapping to commit another crime, in violation of Penal Code section 209(b)(1)," in that he "did unlawfully kidnap and carry away Jane Doe to commit oral copulation." (Capitalization altered.) The jury was instructed, "The defendant is charged in Count 2 with the crime of kidnapping for purposes of oral copulation in violation of Penal Code section 209(b)." It was further instructed that, to find defendant guilty on this count, it had to find, among other things, that he "intended to commit oral copulation . . . ."
The People concede that the trial court "misspoke," but they argue that its finding of separate intents and objectives was supported by substantial evidence. They invoke the rule "that '"'a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason.'"' [Citation.]" (People v. Chism (2014) 58 Cal.4th 1266, 1307, fn. 13.) This rule does not apply, however, if the trial court acted under a misapprehension and we cannot know how it would have ruled in the absence of the misapprehension. (People v. Allen (2001) 88 Cal.App.4th 986, 999.) To put it another way, if the trial court could have found either that section 654 did apply or did not, we cannot say which finding is "correct in law." We can uphold the finding only if the trial court would have had to make the same finding in any event — i.e., only if there is no substantial evidence that defendant did not have separate intents and objectives.
That is not the case here. The trial court could reasonably have found that defendant acted throughout with the single intent and objective of obtaining oral copulation. The People argue that the offenses were temporally separated so as to afford defendant an opportunity to reflect and to renew his or her intent. (See People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1113.) Perhaps the trial court could have so found. But it could also have found that they were not. If a man has had too much beer and starts trying to force himself on a woman, while she is screaming and her children are also screaming and clinging to her, a trier of fact may reasonably question how promptly he is able to reflect.
Defendant does not claim the record shows identical intents and objectives as a matter of law. He asks only that we remand to allow the trial court to redetermine whether section 654 applies. We conclude that he is entitled to that.
V
FAILURE TO DETERMINE ABILITY TO PAY
Defendant contends that the trial court erred by imposing fines and fees without determining whether he had the ability to pay them.
A. Additional Factual and Procedural Background.
At sentencing, the trial court found that defendant did not have the ability to pay for his appointed counsel or to pay for the presentence investigation. However, it imposed a $1,000 restitution fine (§ 1202.4), a $1,000 parole revocation fine (stayed) (§ 1202.45), a court operations assessment of $80 (§ 1465.8, subd. (a)(1)), and a court facilities assessment of $60 (Gov. Code, § 70373, subd. (a)(1)). Defense counsel did not object.
B. Discussion.
Defendant relies on People v. Dueñas (2019) 30 Cal.App.5th 1157, which held that due process prohibits the imposition of a criminal fine or fee in the absence of a hearing on the defendant's ability to pay. (Id. at pp. 1160, 1164-1172.)
Preliminarily, the People contend that defense counsel forfeited this contention by failing to raise it below.
Dueñas was decided on January 8, 2019. Defendant was sentenced on September 6, 2019. We have held that, when the defendant was sentenced before Dueñas was decided, failure to object does not result in forfeiture, because an objection would have been futile. (People v. Jones (2019) 36 Cal.App.5th 1028, 1031-1034.) However, when, as here, the defendant was sentenced after Dueñas, the general rule of forfeiture applies. (See generally People v. Scott (1994) 9 Cal.4th 331, 353.)
Defendant nevertheless argues that there was no forfeiture, for four reasons.
First, he argues that a trial court's complete failure to exercise discretion can be raised for the first time on appeal. (See In re Sean W. (2005) 127 Cal.App.4th 1177, 1181-1182.) With regard to the restitution fines, the trial court clearly did exercise discretion; it set these above the minimum of $300 and below the maximum of $10,000. (See § 1202.4, subd (b)(1).) The other fees were mandatory, in the absence of an objection. Thus, as to the other fees, the trial court was never called upon to exercise discretion; a fortiori, it did not fail to exercise discretion.
Second, he argues that the asserted error comes under the unauthorized sentence exception to the general rule of forfeiture. In People v. Avila (2009) 46 Cal.4th 680, the Supreme Court rejected an identical contention: "Defendant contends, however, that because he did not have the ability to pay, the . . . fine was an unauthorized sentence, thus exempting him from having to bring his claim to the court's attention. [Citation.] Not so. Had defendant brought his argument to the court's attention, it could have exercised its discretion and considered defendant's ability to pay . . . in ascertaining the fine amount[s]." (Id. at p. 729.)
Third, quoting People v. Vera (1997) 15 Cal.4th 269, disapproved on other grounds in People v. French (2008) 43 Cal.4th 36, 47, fn. 3, defendant argues that he is entitled to raise a claim of a "'deprivation of certain fundamental, constitutional rights'" for the first time on appeal. (Id. at p. 276.) "But none of the narrow class of such rights — a plea of once in jeopardy and the right to jury trial [citation] — is implicated here. . . . [T]hat dictum in Vera was not intended to provide defendants with an 'end run' around the forfeiture rule, thus eviscerating it." (People v. Tully (2012) 54 Cal.4th 952, 980, fn. 9.)
Fourth and finally, defendant argues that defense counsel's failure to object constituted ineffective assistance of counsel.
"To make out a claim that counsel rendered constitutionally ineffective assistance, 'the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different.' [Citation.] To make out an ineffective assistance claim on the basis of the trial record, the defendant must show '(1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding.' [Citation.]" (People v. Hoyt (2020) 8 Cal.5th 892, 958, pet. for cert. filed May 12, 2020.)
There could be a satisfactory explanation here. (See People v. Keene (2019) 43 Cal.App.5th 861, 864-865.) For all we know, defendant did have the ability to pay, and defense counsel knew it. Indeed, defense counsel could have reasoned that raising the issue might cause the trial court to require defendant to pay appointed counsel or presentence investigation costs.
In sum, then, we conclude that defendant's Dueñas claim has been forfeited.
VI
DISPOSITION
The judgment with respect to the conviction is affirmed. The judgment with respect to the sentence is reversed, on the following conditions. The matter is remanded with directions to determine whether section 654 applies. If the trial court finds that it does not apply, it must reimpose the same sentence. If the trial court finds that it does apply, it must reimpose the same sentence, except that it must stay the term imposed on count 5 (attempted forcible oral copulation).
The superior court clerk is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Director of the Department of Corrections and Rehabilitation. (§§ 1213, 1216.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: FIELDS
J. RAPHAEL
J.