Opinion
E071801
06-25-2020
THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER CHARLES SMITH, Defendant and Appellant.
David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Christopher P. Beesley, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI18002193) OPINION APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed with directions. David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
After the victim reported her 1968 Chevy Nova had been stolen, she discovered defendant and appellant Alexander Charles Smith had her car at his residence. Parts of the car had been dismantled. Following a jury trial, defendant was convicted of felony receiving stolen property (Pen. Code, § 496d). In a bifurcated proceeding, the trial court found true that defendant had suffered a prior serious or violent felony strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Defendant was sentenced to six years in state prison with 252 days of credit for time served. He was also ordered to pay a $300 restitution fine (§ 1202.4), a $300 parole revocation fine (§ 1202.45), and $70 in court operations and facilities assessments (Pen. Code, § 1465.8, subd. (a)(1); Gov. Code, § 70373, subd. (a)(1)).
All future statutory references are to the Penal Code unless otherwise stated.
The jury found defendant not guilty of driving or taking a vehicle without the owner's consent (Veh. Code, § 10851, subd. (a)).
On appeal, defendant contends: (1) the trial court erred by admitting evidence of his prior bill of sale and allowing an officer to give his opinion the bill of sale appeared to be fraudulent; and (2) the trial court violated his due process rights by imposing a court facilities assessment, court operations assessment, restitution fine, and parole revocation fine without first determining his ability to pay. The People also argue that the abstract of judgment should be corrected to reflect the imposed assessments. We reject defendant's contentions and order the superior court clerk to amend the abstract of judgment.
II
FACTUAL BACKGROUND
A. Current Incident
In August 2018, Rachel A. owned a black 1968 Chevy Nova. The car had been left parked in front of her mother's house in Hesperia since about 2010. The car had been in the family for over 40 years, and Rachel had been trying to save money to restore it.
On August 3, 2018, Rachel drove past her mother's house to confirm her car was parked in its usual spot in the driveway. Rachel saw the car, but a "rolloff box" that had previously been behind the car to prevent it from leaving the driveway was no longer there.
The next day, on August 4, 2018, at about 8:45 a.m. to 9:00 a.m., Rachel's mother discovered that the car was not parked in its usual spot, and called Rachel to ask her where she had moved the car. Rachel responded that she had not moved the car, and her mother told her to report the car stolen to the police. Rachel went to her mother's house, called the police, and asked a neighbor if he had seen anything. Rachel also posted on Facebook and other outlets asking for help in finding her car. At 10:11 a.m., Rachel received a response on Facebook from a woman stating that she saw a black Chevy Nova nearby, approximately six or seven blocks from Rachel's mother's house. Rachel called her boyfriend and asked him to go to the address where the car had been seen.
Soon thereafter, Rachel's boyfriend found her car parked at a house several blocks away. He also saw defendant standing behind the car. The trunk and hood of the vehicle were open and the air cleaner was removed. Defendant made eye contact with Rachel's boyfriend and immediately went inside the open garage of the house for a few minutes before coming back outside with a handwritten bill of sale on a piece of notebook paper. Defendant showed Rachel's boyfriend the handwritten bill of sale which he saw briefly. Rachel's boyfriend called Rachel and told her to call the police and inform them the vehicle had been located.
Rachel arrived at around 10:15 a.m. and saw defendant standing near her car. She also noticed that the vehicle's hood was open, the air cleaner had been removed from the engine, the shift tower had been taken apart, and the wires were pulled out from underneath the dashboard. Rachel observed the car had some new scratches. Rachel approached defendant, and defendant showed her the handwritten bill of sale, which included a signature at the bottom. The document amused Rachel because the car had the wrong manufacturing year for the vehicle and the name of the seller appeared fictitious. When the police arrived, Rachel asked defendant to see the bill of sale again, but at that time the signature had been ripped off the bottom of the piece of paper.
Deputy Smith of the San Bernardino County Sheriff's Department arrived at the scene at about 10:20 a.m. and saw defendant standing approximately one foot from the car. Defendant showed the officer the handwritten bill of sale and claimed he had purchased the vehicle for $150. The paper stated: "Paul Acosta selling his 1969 Chevy Nova to Alex Smith [defendant] for the price of 150 this date of 8-3-2018. If any questions, please call 1-559-653-9005." The officer called the number and left a voicemail but never received a response. The voicemail did not indicate that it belonged to Paul Acosta. After defendant was not able to provide keys or a pink slip for the vehicle, the officer arrested defendant.
Rachel did not know Paul Acosta, and she had not given anyone permission to take or sell her car. Rachel valued the car at $3,000 minimum. The vehicle had been appraised in 1997 or 1998 for $6,000 after an accident. Rachel had replaced the engine prior to the accident. Rachel had informed the officer the car was not operable on the day of the incident because it did not have a battery, and she did not know if the car would run if the battery was replaced.
B. Prior Incident
On February 4, 2013, Detective McWilliams of the San Bernardino Sheriff's Department conducted a follow-up investigation for a utility trailer reported stolen on January 20, 2013. Detective McWilliams located the trailer in the backyard of a single family residence in Apple Valley and contacted the homeowner. When the detective asked the homeowner questions about the trailer, the homeowner contacted defendant. Detective McWilliams then spoke to defendant, who told him that he had purchased the trailer from an acquaintance named "Frank" for $500 cash. Defendant also stated that he knew Frank through another acquaintance named "Chad."
Defendant did not know the last names for Frank or Chad but gave Detective McWilliams a handwritten bill of sale written on a white sheet of paper. This handwritten bill of sale reflected the date of sale as January 29, 2013, from a "Frank Lopez." Defendant did not present any other type of documentation such as a pink slip or receipt for the sale. In addition, defendant could not provide any further identifying information for who Frank was. The writing of "Frank Lopez" on the bill of sale varied between print and cursive. Detective McWilliams opined that a legitimate bill of sale would have consistent writing and the inconsistent writing led him to believe the handwritten bill of sale "was done fictitiously or by multiple authors."
III
DISCUSSION
A. Admission of Prior Incident
Defendant contends the trial court abused its discretion in admitting evidence of the 2013 incident because significant differences between the prior conduct and the instant offense warranted exclusion of the 2013 incident. He also argues that the trial court prejudicially erred in allowing the detective to offer a lay opinion as to the document's legitimacy.
1. Additional Relevant Background
The People moved in limine to admit evidence under Evidence Code section 1101 that during an investigation into a stolen trailer in February 2013, defendant provided Detective McWilliams with a handwritten bill of sale to support his lawful possession of the trailer. The People sought to introduce the evidence for the purposes of showing defendant's intent in the present case, as well as the existence of a common plan or scheme. Defendant opposed the admission of this evidence.
The trial court held an Evidence Code section 402 hearing to consider the admission of the 2013 prior handwritten bill of sale. During the hearing, Detective McWilliams testified that defendant had provided him with a handwritten bill of sale for the stolen trailer, which contained the alleged seller's first and last name, but did not provide any contact information. He also stated that defendant identified the seller as an acquaintance whom he purchased the trailer from for $500 but was not able to provide a pink slip for the trailer.
Defendant pleaded guilty to receiving stolen property in that prior 2013 incident, and the trial court sentenced him to eight months in state prison.
In arguing that the prior incident was inadmissible at trial, defense counsel argued that it was more prejudicial than probative because that incident was dissimilar to the present case. The trial court granted the People's motion to introduce the 2013 evidence regarding the prior bill of sale, finding the probative value outweighed its prejudice. The court noted that defendant having pleaded guilty to the charge associated with the stolen trailer indicated that the prior bill of sale he produced for the detective was indeed fraudulent. Thus, the trial court found the probative value of the prior incident sufficiently outweighed any prejudice and was admissible under Evidence Code sections 352 and 1101.
At the close of evidence, the trial court instructed the jury with CALCRIM No. 375, which allowed the jury to consider the evidence of the prior incident for the limited purposes of intent and common plan or scheme. The jury found defendant guilty of felony receiving stolen property (Pen. Code, § 496d), and not guilty of driving or taking a vehicle without the owner's consent (Veh. Code, § 10851, subd. (a)).
2. Evidence Code Sections 1101 and 352
Evidence Code section 1101, subdivision (a), provides that evidence of prior bad acts "is inadmissible when offered to prove [the defendant's] conduct on a specified occasion." (See People v. Jackson (2016) 1 Cal.5th 269, 299-300 (Jackson) ["'"[Prior bad act evidence] is said to weigh too much with the jury[,] and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge."'"].)
Evidence Code section 1101, subdivision (b), on the other hand, provides that evidence of uncharged acts is admissible "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than [the defendant's] disposition to commit such an act." "In this inquiry, the degree of similarity of criminal acts is often a key factor, and 'there exists a continuum concerning the degree of similarity required for cross-admissibility, depending upon the purpose for which introduction of the evidence is sought: "The least degree of similarity . . . is required in order to prove intent. . . ." . . . By contrast, a higher degree of similarity is required to prove common design or plan, and the highest degree of similarity is required to prove identity.'" (Jackson, supra, 1 Cal.5th at p. 300; see People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt), [uncharged act evidence is inherently prejudicial, and the question of its admissibility requires "'extremely careful analysis'"], superseded by statute on other grounds as explained in People v. Falsetta (1999) 21 Cal.4th 903, 911-913.)
"'"There is an additional requirement for the admissibility of evidence of uncharged crimes: The probative value of the uncharged offense must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury."'" (People v. Thomas (2011) 52 Cal.4th 336, 354; People v. Lewis (2001) 25 Cal.4th 610, 637 ["'"[Evidence of uncharged crimes] is so prejudicial that its admission requires extremely careful analysis"' and to be admissible, such evidence '"must not contravene other policies limiting admission, such as those contained in Evidence Code section 352."'"]; People v. Daniels (1991) 52 Cal.3d 815, 856 ["'[I]f the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded.'"].)
We review the trial court's rulings under Evidence Code sections 1101 and 352 for abuse of discretion. (People v. Thompson (2016) 1 Cal.5th 1043, 1114.) A trial court abuses its discretion only if its ruling "'falls outside the bounds of reason.'" (People v. Kipp (1998) 18 Cal.4th 349, 371.)
"[E]vidence of defendant's uncharged misconduct is relevant where the uncharged misconduct and the charged offense are sufficiently similar to support the inference that they are manifestations of a common design or plan." (Ewoldt, supra, 7 Cal.4th at pp. 401-402.) "To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual." (Id. at p. 403.) Furthermore, the "evidence of uncharged misconduct must demonstrate 'not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.'" (Id. at p. 402.)
In this case, evidence relating to the 2013 prior incident was admissible to show defendant's intent and common plan. With respect to intent, the prior conduct underlying defendant's 2013 conviction for receiving stolen property and his current charge arose from facts sufficiently similar to support the inference that defendant likely harbored the same intent, namely, to deprive the owner of his or her property and to evade criminal liability. Defendant's conduct in 2013 is sufficiently similar to his conduct in the instant case that it shows he "'"probably harbor[ed] the same intent in each instance."'" (Ewoldt, supra, 7 Cal.4th at p. 402.) In 2013, defendant sought to conceal having received the stolen trailer with a fraudulent bill of sale—conduct for which he eventually pleaded guilty. Likewise, in the current case, defendant sought to conceal the unlawful possession of Rachel's car with a deceptive bill of sale that did not include the correct year for the vehicle. The facts of the prior incident together with the circumstances surrounding the instant offense tended to prove that defendant intended to use a fraudulent bill of sale to deprive Rachel of ownership or possession of her car.
Evidence of the prior 2013 act was also similar to show defendant acted pursuant to a common plan because the two crimes contained common features that supported an inference the individual acts were conducted pursuant to a general plan to evade criminal liability. (See Ewoldt, supra, 7 Cal.4th at p. 402.) Defendant's conduct underlying the 2013 prior incident and his current actions involved a similar pattern. In both instances, vehicles were stolen and were later found at defendant's residence. Further, when police confronted defendant about the stolen vehicles, he emerged with, and presented, an alleged bill of sale. In both offenses, the bills of sale were handwritten, and defendant could not identify or provide further identifying information for the alleged sellers. In 2013, defendant claimed he had purchased the trailer for $500 cash from an acquaintance whom he could not contact. Similarly, in 2018, defendant stated that he purchased the car for $150 from someone whom he could no longer contact. And in both circumstances, defendant could not provide further corroboration such as a pink slip, evidence of vehicle transfer, or any other relevant documentation for the sale, and relied solely on the handwritten bills of sale he presented to police. There was sufficient similarity between the prior 2013 conduct involving the stolen trailer and the instant offense to show that in both instances defendant operated with the same preconceived plan to conceal his receipt of stolen property with a deceptive, handwritten bill of sale.
The highly probative and relevant evidence of the 2013 prior was not outweighed by any undue prejudice under Evidence Code section 352. "'The presence of a design or plan to do or not to do a given act has probative value to show that the act was in fact done or not done.'" (Ewoldt, supra, 7 Cal.4th at p. 393.) In this case, defendant claimed he had lawfully obtained the Chevy Nova. The evidence of defendant's prior 2013 incident was relevant to refute this defense and establish defendant's intent and involvement in the offense. The 2013 prior evidence was also strongly probative of a common plan. On the other hand, the danger of unfair prejudice or jury confusion was limited. The prior 2013 evidence was brief and straightforward and was not particularly egregious or likely to inflame the jury against defendant.
Furthermore, any prejudice was sufficiently countered by the trial court's jury instructions limiting consideration of the prior conduct evidence to receiving stolen property offense and to the issues of intent, knowledge, and common plan or scheme. Defendant argues there was no evidence presented to the jury he was convicted of taking the trailer. However, the trial court specifically excluded the evidence of the conviction to reduce the likelihood that the jury would improperly use the evidence to conclude that defendant was a bad person or had a criminal disposition. The trial court took appropriate steps to instruct the jury on the limited use of the evidence. The trial court did not abuse its discretion in admitting evidence of defendant's 2013 prior, and admission of the evidence did not violate defendant's due process rights because the evidence was properly admitted.
3. Improper Opinion Testimony
Defendant also argues that the trial court erred in allowing the opinion testimony of Detective McWilliams about the legitimacy of the 2013 handwritten bill of sale because (1) he was never qualified as a handwriting expert and (2) the prosecution laid no foundation he had any expertise in bills of sale.
Generally, the testimony of a witness is limited to matters of which he or she has personal knowledge. (Evid. Code, § 702, subd. (a).) Lay opinion testimony is admissible if it is both rationally based on the perception of the witness and helpful to a clear understanding of the witness's testimony. (Evid. Code, § 800; People v. Bradley (2012) 208 Cal.App.4th 64, 83.) "[A] lay witness may not give an opinion about another's state of mind" (People v. Chatman (2006) 38 Cal.4th 344, 397), nor is "[l]ay opinion about the veracity of particular statements by another [admissible] on that issue." (People v. Melton (1988) 44 Cal.3d 713, 744.) "Matters that go beyond common experience and require particular scientific knowledge may not properly be the subject of lay opinion testimony. [Citations.]" (People v. DeHoyos (2013) 57 Cal.4th 79, 131 (DeHoyos).)
"A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert." (Evid. Code, § 720, subd. (a).) "'"The decisive consideration in determining the admissibility of expert opinion evidence is whether the subject of the inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness or whether, on the other hand, the matter is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." [Citations.]' [Citation.]" (People v. Sergill (1982) 138 Cal.App.3d 34, 39 (Sergill).)
"A trial court's ruling on the admission or exclusion of evidence is reviewed for abuse of discretion." (DeHoyos, supra, 57 Cal.4th at p. 131.) Where testimony has been erroneously admitted, "[we] must examine the entire cause, including the evidence, and determine whether it is reasonably probable that a result more favorable to [the defendant] would have been reached had this evidence not been admitted. [Citations.]" (Sergill, supra, 138 Cal.App.3d at p. 41, citing People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) & Evid. Code, § 353.)
Here, it is undisputed that Detective McWilliams did not testify as an expert witness. As such, no foundation was laid or required regarding his qualifications to testify as an expert. Instead, he testified about his personal observations of the bill of sale defendant had presented to him when he was investigating the stolen trailer. And during his testimony, Detective McWilliams stated that he noticed the handwriting on the bill of sale appeared to be inconsistent, suggesting to him the document was either fictitious or had multiple authors. This perception was based on his common experience and the jury itself could certainly have drawn the same conclusions had it seen the document. Detective McWilliams's observations about matters that anyone could see on the bill of sale was helpful to the understanding of his testimony as to why he ultimately decided to arrest defendant during the investigation of the stolen trailer. The trial court did not err in admitting the lay opinion testimony of Detective McWilliams.
Even if the trial court erred in admitting Detective McWilliams's lay opinion testimony, any error was harmless. The record indicates that there was ample evidence, independent of Detective McWilliams's lay opinion testimony concerning the legitimacy of the 2013 bill of sale, to establish defendant received the stolen Chevy Nova. Defendant was found with the car less than six blocks from where it was taken. Once the victim's boyfriend arrived and made eye contact with defendant, who was standing near the car, defendant immediately ran inside, only to return minutes later with a handwritten bill of sale. That document misidentified the year of the car, significantly undervalued it, and provided a contact phone number for an alleged seller that police could not verify. The victim testified that she had not given anyone permission to sell her vehicle. Thus, if there was any error in the admission of the detective's testimony, there is no reasonable probability exclusion of that evidence would have resulted in a more favorable result for defendant. (Watson, supra, 46 Cal.2d at p. 836.)
B. Ability to Pay Hearing on Fines and Fees
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, defendant asserts that imposition of the $300 restitution fine, $300 parole revocation fine, and assessments in the amount of $70 without a determination of his ability to pay violated his due process rights. He thus contends the fines and fees should be stayed unless the People prove his ability to pay and the matter should be remanded for a determination of his ability to pay his fines and fees.
Dueñas involved the plight of a married mother with cerebral palsy, whose family—which included two young children—was demonstrably unable to afford even basic necessities due to poverty and an inability to work. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Dueñas's inability to pay several juvenile citations had resulted in suspension of her driver's license, which then led to a series of misdemeanor convictions over the years for driving with a suspended license and additional court fees she was also unable to pay. (Id. at p. 1161.) Dueñas routinely served time in jail in lieu of paying the fines she owed, but nevertheless was sent to collections on other fees related to her court appearances. (Ibid.)
After pleading no contest to yet another misdemeanor charge of driving with a suspended license, the trial court imposed on Dueñas certain assessments and a $150 restitution fine—the minimum amount required under Penal Code section 1202.4, subdivision (b). The trial court rejected Dueñas's argument that the imposition of the assessments and the fine without consideration of her ability to pay them violated her constitutional rights to due process and equal protection. (Dueñas, supra, 30 Cal.App.5th at p. 1163.) The Court of Appeal reversed, holding that "the assessment provisions of Government Code section 70373 and Penal Code section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair[, and] imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution." (Dueñas, at p. 1168.) The imposition of a minimum restitution fine without consideration of the defendant's ability to pay also violated due process. (Id. at pp. 1169-1172.) The appellate court reversed the order imposing the assessments and directed the trial court to stay the execution of the restitution fine "unless and until the People prove that [the defendant] has the present ability to pay it." (Id. at pp. 1172-1173.)
Here, the People contend that defendant forfeited any challenge to the restitution fines, fees, and assessments by failing to object or raise the issue below, and imposition of the restitution fine was constitutional. The general rule of forfeiture is well-settled. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864; People v. Avila (2009) 46 Cal.4th 680, 729.) Relying on our opinion in People v. Jones (2019) 36 Cal.App.5th 1028 (Jones), defendant argues that the forfeiture rule should not apply because his sentencing occurred prior to Dueñas and was based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial.
We acknowledge that courts have addressed similar arguments with different results. (See, e.g., People v. Castellano (2019) 33 Cal.App.5th 485, 489 (Castellano) [Division Seven of the Second District held that the forfeiture rule did not apply to a defendant sentenced prior to Dueñas because no court had previously "held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant's ability to pay."]; accord, People v. Johnson (2019) 35 Cal.App.5th 134, 138 (Johnson); compare People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 [Division Eight of the Second District applied the forfeiture rule and disagreed with the defendant's assertion that Dueñas constituted "'a dramatic and unforeseen change in the law.'"]; accord, People v. Bipialaka (2019) 34 Cal.App.5th 455, 464.)
However, recently this court in Jones, supra, 36 Cal.App.5th 1028, addressing the forfeiture argument, concluded that the defendant had not forfeited his right to raise an inability-to-pay argument on appeal by failing to raise the argument below where the trial court had imposed a $70 court operations fee and a $300 restitution fine. (Id. at p. 1030.) We explained: "Because a due process objection would have been 'futile or wholly unsupported by substantive law then in existence' had it been raised to the trial court, Jones has not forfeited the argument by failing to raise it below. (People v. Brooks [(2017)] 3 Cal.5th [1,] 92.) 'The circumstance that some attorneys may have had the foresight to raise this issue [in Dueñas] does not mean that competent and knowledgeable counsel reasonably could have been expected to have anticipated' Dueñas. ([People v.] Black [(2007)] 41 Cal.4th [799,] 812.) Given the substantive law in existence at the time of Jones's sentencing, Dueñas was unforeseeable. We therefore agree with and follow other courts that have similarly declined to find forfeiture on an alleged Dueñas error." (Jones, at p. 1033, citing Castellano, supra, 33 Cal.App.5th at p. 489 and Johnson, supra, 35 Cal.App.5th at pp. 137-138.)
Here, we adhere to our reasoning in Jones and decline to find defendant forfeited his right to raise an inability-to-pay argument on appeal by failing to raise the argument below. At the time of defendant's sentencing, controlling case law on point effectively foreclosed any objection that imposing the $300 restitution fine without conducting an ability to pay hearing violated his due process rights. Section 1202.4, subdivision (b)(1), states that "[i]f the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300)," which was the amount imposed here. Subdivision (c) of that section, moreover, states that "[i]nability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b)." (Italics added.) Because only the minimum amount was imposed, the statute supports the conclusion that the trial court had no discretion to take ability to pay into account.
Similarly, the relevant statutes all but foreclosed any due process objections to the court facilities or court operations assessments. As Dueñas noted, neither Government Code section 70373 nor Penal Code section 1465.8 expressly requires that the pertinent assessment be premised on an ability to pay. (See Dueñas, supra, 30 Cal.App.5th at p. 1166 [both sections are "silent as to the consideration of a defendant's ability to pay in imposing the assessments"].) "Without language in those sections instructing courts to condition the assessments on an ability to pay, [defendant]'s failure to object is excusable." (Jones, supra, 36 Cal.App.5th at p. 1032, citing People v. Ellis (2019) 31 Cal.App.5th 1090, 1094 ["[T]here is no language in the statute that provides the restriction that [defendant] asks us to impose. Moreover, it is not the province of this court to insert words or add provisions to an unambiguous statute."].)
However, as we concluded in Jones, we find the trial court's imposition of the statutory minimum restitution fine in the amount of $300 and total assessments in the amount of $70 without conducting an ability-to-pay hearing was harmless. We review federal constitutional errors under the harmless-beyond-a-reasonable-doubt test for prejudice set forth in Chapman v. California (1967) 386 U.S. 18, 24. (See Jones, supra, 36 Cal.App.5th at p. 1035 [we found Dueñas error harmless under Chapman]; Johnson, supra, 35 Cal.App.5th 134 [same].) Any error was harmless if the record demonstrates that defendant could not have established an inability to pay.
Defendant was sentenced to six years in state prison with 252 days of credit for time served. In addition, the trial court found true that defendant had suffered a prior serious or violent felony strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). "Wages in California prisons currently range from $12 to $56 a month. [Citations.] And half of any wages earned (along with half of any deposits made into [a defendant's] trust account) are deducted to pay any outstanding restitution fine. [Citations.]" (Jones, supra, 36 Cal.App.5th at p. 1035.) Taking into account defendant's conduct credits, defendant can earn enough in prison to pay the $300 restitution fine plus the $70 in assessments, even assuming defendant earns nothing more than the minimum and serves 80 percent of his sentence. In our view, this forecloses a meritorious inability to pay argument. Numerous cases have held that courts may consider future earning capacity, including the ability to earn prison wages, in determining ability to pay. (See People v. DeFrance (2008) 167 Cal.App.4th 486, 505 [defendant sentenced to prison did not show absolute inability to pay $10,000 restitution fine even though prison wages would make it difficult for him to pay the fine, it would take a very long time, and the fine might never be paid]; People v. Ramirez (1995) 39 Cal.App.4th 1369, 1377 [a trial court may consider the defendant's future ability to pay, including his ability to earn wages while in prison]; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 ["defendant's ability to obtain prison wages and to earn money after his release from custody" are properly considered when determining whether a defendant has the ability to pay]; People v. Gentry (1994) 28 Cal.App.4th 1374, 1377, fn. 6 [even where defendant had a claimed back injury, absent indication at the time of sentencing that it precluded him from performing any type of labor, it could not be assumed he was ineligible for prison work].) Accordingly, on this record, we conclude that any error was harmless. (Jones, at p. 1035; Johnson, supra, 35 Cal.App.5th at pp. 139-140.)
Moreover, because defendant's case lacks the exceptional circumstances that defined Dueñas, Dueñas is distinguishable. There is no evidence defendant was indigent, unlike in Dueñas. The harm that caused Dueñas's situation to rise to the level of a constitutional violation was the application of the statutes imposing fines, fees, and assessments in the face of undisputed evidence that she was unable to pay, unable to work, and would undoubtedly suffer further penalties based solely on her indigence. (Dueñas, supra, 30 Cal.App.5th at pp. 1161-1163.) The record here does not show that defendant had a past history of being unable to pay assessments and fees or that he was unable to work or that he would suffer further penalties. According to the record, defendant was 48 years old at the time of sentencing and had previously worked in the construction field. "[T]here is enough evidence in the trial record to conclude that the total amount involved here did not saddle [defendant] with a financial burden anything like the inescapable, government-imposed debt trap Velia Dueñas faced." (Johnson, supra, 35 Cal.App.5th at p. 139 [defendant not "similarly situated" to Dueñas].)
"'[A]bility to pay' . . . does not require existing employment or cash on hand. Rather, a determination of ability to pay may be made based on the person's ability to earn where the person has no physical, mental or emotional impediment which precludes the person from finding and maintaining employment once his or her sentence is completed." (People v. Staley (1992) 10 Cal.App.4th 782, 783.) Unlike in Dueñas, defendant provides no indication the $300 restitution fine and $70 assessments at issue will saddle him with "anything like the inescapable, government-imposed debt trap" faced by the defendant in that case. (See Johnson, supra, 35 Cal.App.5th at p. 139.) The factual differences between the instant case and Dueñas are significant. Based on this record, any reasonable court would still have imposed the fine and assessments even if it had separately considered defendant's ability to pay them under Dueñas.
C. Correction of Abstract of Judgment
The People contend that the abstract of judgment should be amended to reflect the imposition of the fees and assessments. We agree.
Here, although the trial court imposed $70 in assessments as recommended by the probation officer, the abstract of judgment does not reflect their imposition. The probation officer recommended $30 in court construction fees pursuant to Government Code section 70373, subdivision (a)(1), and $40 in court operation fees pursuant to Penal Code section 1465.8, subdivision (a)(1). When there is a discrepancy between the oral pronouncement of a sentence and the abstract of judgment or the clerk's minute order, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186 (Mitchell); People v. Zackery (2007) 147 Cal.App.4th 380, 385.) While the trial court imposed these fees, the abstract of judgment omits any reference to them. The oral pronouncement is controlling.
Appellate courts may order correction of abstracts of judgment that do not accurately reflect the oral judgments of sentencing courts. (Mitchell, supra, 26 Cal.4th at pp. 185-186). Therefore, we order the abstract of judgment be corrected so as to reflect the trial court's oral pronouncement by adding the court construction and court operation fees.
IV
DISPOSITION
The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting the trial court's oral pronouncement of judgment by adding a $30 court construction fee pursuant to Government Code section 70373, subdivision (a)(1), and a $40 court operations fee pursuant to Penal Code section 1465.8, subdivision (a)(1). The clerk of the superior court is also directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. MILLER
J.