Opinion
H045928
12-20-2021
THE PEOPLE, Plaintiff and Respondent, v. MILTON WUESHTERBERG TEJADA, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. F1766955
ELIA, ACTING P.J.A jury found defendant Milton Tejada guilty of sexually assaulting his seventeen-year-old stepdaughter, A. Specifically, jurors convicted defendant of committing sexual penetration by force, two counts of sexual battery, and two counts of oral copulation by force. On appeal, defendant seeks reversal of his convictions based on the presence of a support person during A.'s testimony and claimed instructional and cumulative error. He also challenges the imposition of certain fines, fees, and penalty assessments at sentencing. We find no error requiring reversal of defendant's convictions. However, we reverse and remand the matter to the trial court with directions to vacate the unpaid portion of the criminal justice administration fee and to identify the penalty assessments imposed, as well as the statutory basis for each.
I. Background
A. Factual Summary
On the evening of October 15, 2017, the then-48-year-old defendant and his teenaged stepdaughter A. were home alone watching a baseball game. A. had smoked marijuana and drank a beer earlier that afternoon. During the game, she and defendant each drank one beer. A. testified that she was buzzed and that she thought defendant was too. Defendant denied being intoxicated. It is undisputed that A. asked defendant to give her a back massage and that he rubbed her shoulders while they sat on the couch. Defendant testified that he watched the entire game and nothing out of the ordinary happened.
By contrast, A. testified that after defendant massaged her on the couch, she moved the massage to the floor so she could lie down. She testified that defendant sat on top of her to continue the massage. While she was laying on her stomach, he touched her breast under her clothing. He then removed her pants and underwear and orally copulated her. A. testified that defendant then put his penis on her stomach and took her hand and placed it on his penis. A. pulled her hand away, got up, and walked into her bedroom. Defendant followed her. Inside her bedroom, he pulled down her pants and licked the outside of her vagina. He also kissed her and bit her neck, which she testified left a hickey. A. testified that she told defendant to stop three times.
The following day, A. told her mother what had happened. A.'s mother confronted defendant, who left the house and never returned. A's mother also called police.
A.'s mother testified that A. had "lied a lot in the past" including about "big things" such as smoking marijuana. A.'s mother was not sure if she believed the allegations.
Police officers tried to contact defendant on his cell phone but he did not answer or return their calls. He was arrested without incident on November 29, 2017.
B. Procedural History
The Santa Clara County District Attorney charged defendant with sexual penetration by force or violence (Pen. Code, § 289, subd. (a)(1); count 1), two counts of sexual battery (§§ 242, 243.4, subd. (a), counts 2 & 3), and two counts of oral copulation by force or violence (former § 288a, subd. (c)(2)(A), counts 4 & 5).
All further statutory citations are to the Penal Code unless otherwise indicated.
The case proceeded to a jury trial in March 2018. Jurors heard a single day of testimony. A. was the sole witness for the prosecution. She was accompanied to the witness stand by a support person who identified herself to the jury as "a victim advocate." Before A. began testifying and after the support person identified herself, the trial court advised jurors that "witnesses are allowed to be accompanied by a support person. Please don't make any inference about that. It is just something we afford to every witness in these kind of cases. It is certainly not evidence. Don't allow it to affect your decision in any way."
A.'s mother testified for the defense and defendant testified on his own behalf. Jurors found defendant guilty on all counts after relatively brief deliberations.
The trial court sentenced defendant to an aggregate state prison term of 15 years on June 8, 2018. The court imposed the middle term of three years on count 2 (to which section 1170.1 applied), a concurrent middle term of three years on count 3 (to which section 1170.1 applied), a consecutive middle term of six years on count 1, a consecutive middle term of six years on count 5, and the middle term of six years on count 4, stayed pursuant to section 654.
Full term consecutive sentencing on counts 1 and 5 was required by section 667.6, subdivision (d). (§ 667.6, subds. (d), (e)(7), (e)(8).)
Defendant's counsel objected to the $10,000 restitution fine recommended by the probation department based on inability to pay. The court responded: "It does not require finding of the ability to pay because I agree with you that the ability to pay $10,000 for someone in prison for 15 years, absent preexisting assets, would be difficult. However, the defendant will be able to pay that fine both as a result of his prison wages but also while he is on parole, which is for up to ten years." The court then orally imposed a $10,000 restitution fine (§ 1202.4, subd. (b)(2)) with an additional $10,000 parole revocation fine, which was suspended pending successful completion of parole (§ 1202.45); a $300 sex offender registration fine plus $930 in associated penalty assessments (§ 290.3); a $70 AIDS education fine (former § 288a, subd. (m)); a $200 court operations assessment fee (§ 1465.8); a $150 court facilities assessment fee (Gov. Code, § 70373); and a $259.50 criminal justice administration fee. In imposing those fines, fees, and assessments, the court stated that it was "adopt[ing] the probation report, . . . for their recommendations, and in particular[] the recitation of the authorities of the various fines and fees . . . ." Defendant timely appealed.
The minute order and abstract of judgment include $217 in penalty assessments associated with the AIDS education fine.
The trial court did not specify whether the criminal justice administration fee was imposed under Government Code section 29550, 29550.1, or 29550.2.
II. Discussion
A. The Presence of a Support Person Did Not Infringe Defendant's Constitutional Rights
In cases involving certain alleged crimes, including the sex offenses at issue in this case, section 868.5, subdivision (a) entitles a prosecuting witness be accompanied to the witness stand by a support person of his or her choosing. Section 868.5, subdivision (b) requires the prosecution to "present evidence that the [support] person's attendance is both desired by the prosecuting witness for support and will be helpful to the prosecuting witness," but only if the support person is also a witness. Where, as was the case here, the support person is not a witness, no such showing is required.
Defendant contends his convictions must be reversed because the trial court allowed A. to testify accompanied by a support person without holding a hearing on the necessity of such a support person. In defendant's view, the court thereby violated his Sixth Amendment right to confrontation (because the support person's presence impacted the jury's observation of A.'s demeanor) and his due process rights (because the support person's presence undermined the presumption of innocence). Defendant acknowledges that the court acted in accordance with section 868.5, but maintains that the statute is unconstitutional.
The Attorney General argues that, because defendant did not request a hearing or otherwise object to the presence of a support person below, he has forfeited these claims of error. Defendant responds that he raises facial challenges to section 868.5's constitutionality, such that no objection was required to preserve his claims. We shall assume defendant's challenges to the support person's presence have been preserved and address them on the merits.
Our Supreme Court squarely rejected defendant's arguments in People v. Chhoun (2021) 11 Cal.5th 1, 38, (Chhoun) where it held that "[a] support person's mere presence in the courtroom or at the witness stand does not infringe the defendant's due process or confrontation rights unless there is evidence of improper interference by the support person." Defendant explicitly acknowledges that "the support person here did not affirmatively interfere with [A.'s] testimony."
Defendant argues Chhoun is distinguishable because, unlike this case, Chhoun was not a he-said, she-said case in which the prosecution relied solely on the testimony of one witness. That is true, but it is a distinction without a difference. Chhoun rejected the argument that "a case-specific, evidence-based showing of need for support persons is required under the federal Constitution" and the contention that a support person's presence is unconstitutional absent evidence of improper interference, regardless of the factual context. (Chhoun, supra, 11 Cal.5th at p. 37.)
Defendant relies heavily on this court's opinion in People v. Adams (1993) 19 Cal.App.4th 412, 438-441, which concluded that the presence of a support person impacts the jury's observation of the witness's demeanor, a component of the confrontation right. But Chhoun, which is binding on this court, noted that the "peculiar factual context" present in Adams "posed an unusual risk that the support person's mere presence might exert improper influence on the witness during her testimony." (Chhoun, supra, 11 Cal.5th at p. 38.) Chhoun effectively confined Adams to its facts and expressly disagreed with it to the extent that it held more broadly that "a compelling state interest and necessity showing [are required] in other contexts." (Ibid.)
In sum, Chhoun compels us to reject defendant's challenges based on the presence of a support person.
B. The Trial Court Did Not Commit Instructional Error
Jurors were instructed with CALCRIM No. 1190 that "Conviction of a sexual assault crime may be based on the testimony of the complaining witness alone." Defendant argues that the trial court violated his due process rights by not also instructing the jury that acquittal of a sexual assault crime may be based on the testimony of the defendant alone. In defendant's view, the instructions were unbalanced on the issue of evaluating witness testimony and he suffered prejudice because of the he-said, she-said nature of the case.
As a threshold matter, we address the Attorney General's contention that defendant forfeited his claim of instructional error by failing to object or request modification of CALCRIM No. 1190 in the trial court." 'A party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial.' [Citation.] However, even without a request, a defendant may argue the court erred in instructing the jury 'if the substantial rights of the defendant were affected thereby.' (§ 1259.)" (People v. Johnson (2015) 60 Cal.4th 966, 993.) Defendant argues the alleged instructional error affected his substantial rights." '[W]hether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim . . . .' [Citation.] Accordingly, we will review the merits of defendant's claim." (People v. Ngo (2014) 225 Cal.App.4th 126, 149.)
"We review defendant's claim[] of instructional error de novo." (People v. Johnson (2009) 180 Cal.App.4th 702, 707.) Where an instruction is ambiguous, "we inquire whether there is a reasonable likelihood that the jury misunderstood or misapplied the instruction in a manner that violates the Constitution." (People v. Covarrubias (2016) 1 Cal.5th 838, 906.) "In reviewing any claim of instructional error, we must consider the jury instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record." (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) "Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions." (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Here, in addition to being instructed that "[c]onviction of a sexual assault crime may be based on the testimony of the complaining witness alone," jurors also were instructed with CALCRIM No. 301 that: "The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence." Our Supreme Court has approved the use of these instructions in combination, rejecting the argument that together they "create a preferential credibility standard for the complaining witness, or somehow suggest that that witness is entitled to a special deference." (People v. Gammage (1992) 2 Cal.4th 693, 701 [considering two equivalent (CALJIC) jury instructions].)
In closing, defense counsel argued for acquittal based on what defendant "has told you," his lack of any "motive to lie," and that fact that "he swore under oath to tell the truth to you and he did, he did that." In view of that argument and the instructions as a whole, there is no reasonable likelihood that the jury would have failed to appreciate that they not only could, but must, acquit if they credited defendant's version of events.
Indeed, the language defendant now claims was required may have misled the jury. Again, defendant contends jurors should have been informed that they could acquit based solely on his testimony. Arguably, such an instruction implies that defendant must prove his innocence and that jurors can acquit only if he carries that burden. Of course, that is not the case. As jurors here were properly instructed, "[a] defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. . . . [¶] Unless the evidence proves-the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty."
Defendant's reliance on Cool v. United States (1972) 409 U.S. 100 is misplaced. There, the defense relied heavily on the "completely exculpatory" testimony of an accomplice, who admitted his own guilt and insisted that the defendant was uninvolved. (Id. at p. 101.) The trial court told the jury that the accomplice's testimony should be viewed with suspicion, but that it could be considered if the jury was" 'convinced it is true beyond a reasonable doubt.'" (Id. at p. 102.) The trial court further instructed the jury that the accomplice's testimony, "alone and uncorroborated", could "support your verdict of guilty . . . ." (Id. at p. 103, fn. 4.) The United States Supreme Court concluded that the instruction was erroneous and required reversal both because it "place[d] an improper burden on the defense" to prove that the accomplice's testimony was true beyond a reasonable doubt (id. at p. 103) and because it was "fundamentally unfair in that it told the jury that it could convict solely on the basis of accomplice testimony without telling it that it could acquit on this basis." (Ibid., fn. 4.)
Defendant contends that, here, the instructions were similarly unfair in that they told jurors they could convict solely on the basis of A.'s testimony without telling them they could acquit solely on the basis of his testimony. We are not persuaded. In Cool, the entire defense was premised on the accomplice testimony and the instruction created the possibility of a misimpression that the accomplice testimony could not be used to support an acquittal. No similar misimpression was created here.
C. Cumulative Error
Defendant contends that the cumulative effect of the foregoing claimed errors was to deprive him of his due process rights. "Under the cumulative error doctrine, the reviewing court must 'review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence.'" (People v. Williams (2009) 170 Cal.App.4th 587, 646.) "The 'litmus test' for cumulative error 'is whether defendant received due process and a fair trial.'" (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.) Because we have found no errors, the claim necessarily fails.
D. Challenges to the Fines, Fees, and Penalty Assessments
Defendant seeks to have his restitution fine stayed and all other fines, fees, and assessments stricken pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), arguing that the People have failed to show he has the ability to pay them. He also challenges the imposition of penalty assessments in connection with the sex offender registration and AIDS education fines. We separately consider each of the amounts ordered by the trial court.
1. Restitution Fine
Where a defendant has been convicted of a felony, the court is required to impose a restitution fine of between $300 and $10,000. (§ 1202.4, subd. (b).) The court must impose the minimum restitution fine of $300 without reference to the defendant's ability to pay. (§ 1202.4, subds. (b)(1) and (c).) However, "[i]nability to pay may be considered . . . in increasing the amount of the restitution fine in excess of the minimum fine" of $300. (§ 1202.4, subd. (c).) The statute specifies that the defendant "bear[s] the burden of demonstrating [his or her] inability to pay" and that "[a] separate hearing for the fine shall not be required." (§ 1202.4, subd. (d).) In Dueñas, Division 7 of the Second Appellate District held that due process requires the trial court to stay execution of any restitution fine unless and until it holds an ability-to-pay hearing and concludes that the defendant has the ability to pay the restitution fine.
Defendant's trial counsel objected to the imposition of a $10,000 restitution fine, saying "there's no way he's going to be able to pay that, earning 35 cents an hour in prison." The trial court imposed a $10,000 restitution fine over defense counsel's objection, stating "[i]t does not require finding of the ability to pay because I agree with you that the ability to pay $10,000 for someone in prison for 15 years, absent preexisting assets, would be difficult. [¶] However, the defendant will be able to pay that fine both as a result of his prison wages but also while he is on parole, which is for up to ten years." Based on the foregoing, defendant contends that trial court "accepted . . . as true" that he lacked the ability to pay the $10,000 fine but imposed it nonetheless. The Attorney General reads the record differently, arguing the trial court made an express finding that defendant could pay the $10,000 restitution fine. Defendant responds that, to the extent that court made such a finding, it was speculative.
While the trial court's comments are somewhat confusing, it is clear the court made an ability to pay finding based on defendant's future earning capacity. We review that factual determination for substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347.)
Defendant was 49 years old at the time of sentencing. He has a high school education and was last employed as a foreman earning $900 per week. Defendant suffered a work-related back injury in May 2016 and was receiving worker's compensation at the time of his arrest. Nothing in the record suggests that defendant is disabled to the point he will be unable to work again. To the contrary, his trial counsel suggested he would be able to work in prison, complaining only that he would not earn enough to pay the restitution fine.
"Wages in California prisons currently range from $12 to $56 a month. [Citations.]" (People v. Jones (2019) 36 Cal.App.5th 1028, 1035.) At the highest prison wage, it would take defendant just under 15 years to earn $10,000; at the lowest wage, it would take him significantly longer. In all likelihood, therefore, defendant "will be unable to pay the entire fine out of his prison wages even if he works . . . for the entire [fifteen]-year term." (People v. Ramirez (1995) 39 Cal.App.4th 1369, 1377.) But where, as here, "[t]here is no evidence that [the defendant] is physically or mentally unable to find legitimate employment upon completion of his sentence," inability to pay a fine out of prison wages alone does not undermine an ability-to-pay determination. (Ibid.)
For the foregoing reasons, defendant has not demonstrated that the court erred in imposing the $10,000 restitution fine.
2. Court Security Fee and Court Operations Assessment
The trial court imposed a $200 court operations assessment fee (§ 1465.8) and a $150 court facilities assessment fee (Gov. Code, § 70373). These fees are statutorily required to be imposed on every criminal conviction (except for parking offenses) without reference to the defendant's ability to pay. (Gov. Code, § 70373, subd. (a)(1) ["shall be imposed on every conviction"]; § 1465.8, subd. (a)(1) [same].)
The Dueñas court noted that" '[c]riminal justice debt and associated collection practices can damage credit, interfere with a defendant's commitments, such as child support obligations, restrict employment opportunities and otherwise impede reentry and rehabilitation.'" (Dueñas, supra, 30 Cal.App.5th at p. 1168.) In view of "[t]hese additional, potentially devastating consequences suffered only by indigent persons," Dueñas concluded that Government Code section 70373 and section 1465.8, subdivision (a)(1) effectively impose "additional punishment for a criminal conviction for those unable to pay." (Dueñas, supra, at p. 1168.) Based on that conclusion, the court reasoned that imposing these assessments without a determination that the defendant has the ability to pay them is "fundamentally unfair" and "violates due process under both the United States Constitution and the California Constitution. (U.S. Const. 14th Amend.; Cal. Const., art. I, § 7.)" (Ibid., fn. omitted.)
Some courts have disagreed with Dueñas's due process analysis or have limited the case to its facts. (See People v. Hicks (2019) 40 Cal.App.5th 320, 329 [declining to follow Dueñas]; People v. Kingston (2019) 41 Cal.App.5th 272, 279 [following Hicks]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069 [declining to follow Dueñas]; (People v. Caceres (2019) 39 Cal.App.5th 917, 926-927 [declining to extend Dueñas beyond "[its] extreme facts"]; People v. Allen (2019) 41 Cal.App.5th 312, 326 [expressing agreement with "the reasoning of the numerous courts that have rejected Dueñas's due process analysis"].) Panels of this court have reached conflicting conclusions as to whether Dueñas was correctly decided. (See, e.g., People v. Santos (2019) 38 Cal.App.5th 923, 927 [following Dueñas]; id. at pp. 935-940 (dis. opn. of Elia, J.); People v. Adams (2020) 44 Cal.App.5th 828, 832 (Adams) [concluding that "Dueñas was wrongly decided"]; id. at pp. 832-833 (dis. opn. of Premo, J.); People v. Petri (2020) 45 Cal.App.5th 82, 90 [finding that Dueñas was not "persuasive"]; id. at p. 95 (dis. opn. of Premo, J.).) The issue of whether a court must consider a defendant's ability to pay before imposing or executing fines, fees, and assessments is pending before the California Supreme Court in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844.
Here, we need not address whether Dueñas was correctly decided. Any error in failing to make an ability to pay determination as to the $200 court operations assessment fee and $150 court facilities assessment fee was harmless. In view of the trial court's determination that defendant had the ability to pay the $10,000 restitution fine, the court necessarily would have reached the same determination regarding these significantly lesser assessments.
3. Criminal Justice Administration Fee
The trial court imposed a $259.50 criminal justice administration fee. Dueñas did not address criminal justice administration fees. In any event, court authority to impose and collect criminal justice administration fees has been abrogated. (Gov. Code, § 6111, subd. (a).) Government Code section 6111 "mandates that any portion of a judgment imposing those fees be vacated. Accordingly, based on the plain language of the statute, the unpaid balance of the . . . criminal justice administration fee[ ] must be vacated." (People v. Greeley (2021) 70 Cal.App.5th 609, 626-627, fns. omitted.)
4. Sex Offender Registration Fine and Penalty Assessments
The trial court imposed a $300 sex offender registration fine plus $930 in penalty assessments. At sentencing, defendant did not contend that he lacked the ability to pay those amounts or otherwise object. He now challenges the fine under Dueñas and challenges the related penalty assessments as legally unauthorized.
Section 290.3 sex offender fines are statutorily subject to an ability to pay determination. (§ 290.3, subd. (a) ["Every person who is convicted of any offense specified in subdivision (c) of [s]ection 290 shall . . . be punished by a fine of three hundred dollars ($300) upon the first conviction . . ., unless the court determines that the defendant does not have the ability to pay the fine"].) Courts have long held that a defendant has the burden of proving his inability to pay the section 290.3 fine. (People v. McMahan (1992) 3 Cal.App.4th 740, 749-750; People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1250.) Dueñas did not address section 290.3 sex offender fines.
By failing to object at sentencing, defendant has forfeited any challenge to the section 290.3 fine and attendant penalty assessments based on inability to pay (including his Dueñas claim). (People v. Acosta (2018) 28 Cal.App.5th 701, 705-706 [failure to object forfeits appellate challenge to section 290.3 fine and associated penalty assessments]; People v. Taylor (2019) 43 Cal.App.5th 390, 399-400 (Taylor) [where "substantive law in existence at the time of . . . sentencing . . . would have permitted the court to consider . . . inability to pay [a] fine," failure to object on inability to pay grounds forfeits claim of Dueñas error].)
As to the penalty assessments, defendant correctly points out that the trial court did not state the statutory basis for the $930 in penalty assessments during the sentencing hearing and that the legal basis for them does not appear in the probation report or elsewhere in the record. Defendant contends that no such legal basis exists. As to that point, he is mistaken. The section 290.3 fine is subject to a number of penalty assessments under various statutes. (See People v. Hamed (2013) 221 Cal.App.4th 928, 940-941 (Hamed).) However, California law requires the superior court clerk to list the amount and statutory basis for each penalty assessment in its sentencing disposition. (Id. at p. 940; People v. Sharret (2011) 191 Cal.App.4th 859, 864; People v. High (2004) 119 Cal.App.4th 1192, 1200.) The failure to specify the statutory bases for the penalty assessments results in a legal error at sentencing that can be reviewed on appeal even in the absence of an objection or argument raised below. (People v. Hartley (2016) 248 Cal.App.4th 620, 637.) The parties do not agree on the bases for the penalty assessments. Accordingly, we shall remand the matter to the trial court to identify the penalty assessments imposed and the statutory basis for each.
5. AIDS Education Fine and Penalty Assessments
The trial court orally imposed a $70 AIDS education fine (former § 288a, subd. (m)) without mentioning any associated penalty assessments. Defense counsel did not object based on inability to pay. The minute order and abstract of judgment indicate that $217 in penalty assessments were imposed in association with the AIDS education fine. Defendant challenges the fine under Dueñas and contends the penalty assessments must be stricken because the trial court never imposed them.
The AIDS education fine is statutorily subject to an ability to pay determination. (Former § 288a, subd. (m) ["[t]he court shall, however, take into consideration the defendant's ability to pay"].) Dueñas did not address such fines. As with the section 290.3 fine, we conclude that defendant forfeited his inability-to-pay-based challenge to the AIDS education fine by not objecting on that ground at sentencing. (Taylor, supra, 43 Cal.App.5th at pp. 399-400.)
With respect to the penalty assessments, it is true that the trial court did not explicitly mention the penalty assessments associated with the AIDS education fine at sentencing. However, the court did expressly "adopt the probation report, . . . for their recommendations, and in particular[] the recitation of the authorities of the various fines and fees . . . ." And the probation report recommended the imposition of the AIDS education fine "plus penalty assessment." Accordingly, we reject the contention that the trial court never imposed the penalty assessments. That said, as with the penalty assessments associated with the sex offender fine, the superior court must identify the amount of and statutory bases for the penalty assessments associated with the AIDS education fine on remand.
E. Section 654
In a footnote on the final page of his opening brief, defendant argues that the trial court should have stayed the sentence for count 5 as opposed to count 4. The Attorney General does not respond to this argument, which could easily have been overlooked due to its placement. "This argument is waived[, having been raised] only in a footnote under an argument heading which gives no notice of the contention." (People v. Crosswhite (2002) 101 Cal.App.4th 494, 502, fn. 5; Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 419 ["An appellant cannot bury a substantive legal argument in a footnote and hope to avoid waiver of that argument"]; Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947 ["Footnotes are not the appropriate vehicle for stating contentions on appeal"]; Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 624, fn. 2 ["We do not view as adequate to preserve an issue on appeal . . . one footnote mention of [it]"]; Roberts v. Lomanto (2003) 112 Cal.App.4th 1553, 1562 [assertions raised only in footnote may be properly disregarded]; Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151, 160 ["We do not have to consider issues discussed only in a footnote"].)
III. Disposition
The judgment is reversed, and the matter is remanded to the trial court with directions to (1) vacate the portion of the $259.50 criminal justice administration fee that remained unpaid as of July 1, 2021 and (2) itemize all fines, fees, and penalty assessments imposed, identifying the statutory basis for each. The trial court shall modify the abstract of judgment to reflect these changes and forward a certified copy to the Department of Corrections and Rehabilitation.
WE CONCUR: BAMATTRE-MANOUKIAN, J., WILSON, J.