People v. Gamboa CA4/2

Filed 8/24/20 P. v. Gamboa CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E072259

v. (Super.Ct.No. FSB17000629)

JOSE GAMBOA, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. David J. Mazurek,

Judge. Affirmed with directions.

Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Paige B. Hazard and Steve

Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
 INTRODUCTION

On February 5, 2017, Alberto Casillas was gunned down near his home.

Defendant, Jose Enrique Gamboa, was charged and convicted by a jury of first degree

murder (Pen. Code, § 187)1 of Alberto Casillas and of personally using a firearm (§

12022.53, subd. (b)), personally using and intentionally discharging a firearm (§

12022.53, subd. (c)), and personally using and intentionally discharging a firearm causing

death (§ 12022.53, subd. (d)) during the commission of a felony. The court also found

that defendant had suffered four prior convictions for which he had served prison terms

(prison priors) pursuant to section 667.5, subdivision (b). Defendant was sentenced to an

aggregate term consisting of an indeterminate term of 50 years to life plus a determinate

term of four years for the prison priors.2 Additionally, defendant was ordered to pay a

$3,000 restitution fine (§ 1202.4, subd. (b)), a matching parole revocation fine that was

suspended (§ 1202.45), a $30 criminal convictions assessment (Gov. Code, § 70373,

subd. (a)(1)), and a $40 court operations assessment (§ 1465.8, subd. (a)(1)). Defendant

appealed.

On appeal, defendant contends: (1) the trial court erred in denying defendant’s

motion for a new trial; (2) the trial court violated his Sixth Amendment right to confront

witnesses against him by limiting cross-examination of a prosecution witness; (3) the trial

court erred in instructing the jury on CALCRIM No. 372, regarding flight after crime; (4)

1 All references, unless otherwise noted, are to the Penal Code.

2 The court stayed the sentences for sections 12022.53 subdivisions (b) and (c)
pursuant to section 12022.53, subdivision (f).

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the combined effect of these errors denied defendant a fair trial; (5) there was insufficient

evidence defendant served four prior prison terms within the meaning of section 667.5,

subdivision (b); (6) there is no evidence that defendant has the ability to pay the

restitution fine in the amount of $3000. In a supplemental brief, defendant asserts and

respondent concedes, that his sentence must be modified under Senate Bill No. 136

(Senate Bill 136) to strike the one-year enhancements for prior convictions.3

BACKGROUND

Near 4:00 a.m. on February 5, 2017, Alberto Casillas (Casillas) and his girlfriend,

Jennifer Richardson (Richardson), were walking to their home in San Bernardino. On

their walk home, Casillas’s longtime friend V.C.4 called out to Richardson from his

vehicle. Richardson and Casillas stopped to speak to V.C., who in turn parked and exited

his white vehicle. A short time later, an individual known to Casillas, Richardson, and

V.C. only as “Kiki” (Kiki) pulled up in a black Honda vehicle and parked near them.

Kiki was later identified as defendant Gamboa.

After exiting his vehicle, defendant approached Richardson, Casillas, and V.C.

Casillas owed defendant money for drugs. Defendant immediately requested Casillas pay

him. According to Richardson, before Casillas could answer, defendant swung at

3 In light of the legislative changes enacted by way of Senate Bill 136,
defendant’s argument that there was insufficient evidence to support the true finding on
the four prison prior enhancement allegations under section 667.5, subdivision (b), is now
moot.

4 This witness had acted as a confidential informant for law enforcement in the
past, so we will refer to him by his initials, V.C.

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Casillas and missed. In turn, Casillas ran down the street while Richardson tried to work

out a deal with defendant and V.C. to pay Casillas’s debt. Richardson and defendant

agreed that Richardson would pay defendant what was owed the next day.

After making the agreement, Richardson left V.C. and defendant to catch up to

Casillas and continue home. V.C. then saw defendant with a gun and heard defendant

say something along the lines of wanting to shoot. Then, V.C. reversed his car into the

driveway of a nearby apartment complex.

Meanwhile, defendant drove down the street to where Casillas and Richardson

were at. Defendant exited his car and pointed a gun at Casillas and Richardson. Casillas

ran, and defendant fired nine shots. V.C. saw defendant fire the shots. Richardson heard

Casillas yell, “I’m hit,” and saw his body on the ground. Defendant got back into his car

after the shooting, while V.C. jumped into his own car and left in the opposite direction

of the crime scene. Casillas was transported to the hospital but died. The autopsy

determined the cause of death to be a gunshot wound to the back.

Richardson identified the shooter as defendant throughout the investigation.

Initially, detectives showed her two six pack photo lineups to identify Kiki, but neither

lineup included a photo of defendant, so Richardson did not identify anyone. However,

the third six pack photo lineup included a photograph of defendant and Richardson

identified defendant as Kiki, the shooter.

As part of the investigation, detectives also spoke to V.C. Initially, V.C. was

hesitant to speak to detectives regarding the shooting and asked to speak to a detective

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with whom he was familiar. Although that detective did not appear at the interview, V.C.

cooperated with the detectives investigating Casillas’s murder without the attendance of

the requested detective. That detective did appear at the end of V.C.’s interview, but did

not speak to V.C. regarding the case, nor did that detective offer or promise V.C.

anything in exchange for his cooperation in this case. V.C. told detectives that he

recalled the shooting and saw Kiki shoot Casillas. V.C. then identified Kiki as defendant

and helped police locate him.

When interviewed by detectives, defendant admitted to being at the crime scene in

a black vehicle. Defendant also admitted to having a confrontation with Casillas.

Additionally, defendant corroborated Richardson’s attempt to settle Casillas’s debt with

him. Defendant also confirmed he was known as Kiki.

By way of an amended information, defendant was charged with the murder (§

187) of Casillas. It was further alleged that in the commission of the crime, defendant

personally and intentionally discharged a firearm causing great bodily injury and death

(§12022.53, subd. (d); personally using and intentionally discharging a firearm (§

12022.53, subd. (c)), and personally using a firearm (§ 12022.53, subd. (b)). It was

further alleged that defendant had suffered four prior convictions for which he had served

separate prison terms (prison priors) (§ 667.5, subd. (b)).

A jury found defendant guilty of all charges on November 16, 2018. On February

1, 2019, defendant filed a motion for a new trial or modification of verdict arguing

insufficient credible evidence to sustain the verdict. The prosecution opposed the motion

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which was denied on March 1, 2019. The court noted that it found Richardson was

particularly credible, the evidence supported her testimony, and that all the witnesses,

including defendant himself, placed defendant at the crime scene. Therefore, the only

logical conclusion was that defendant was the shooter.

After ruling on the motion, the court sentenced defendant to a total indeterminate

term of 50 years to life plus a determinate term of four years. The indeterminate term

consisted of 25 years to life for the murder charge (§ 187) plus a 25-years to life

consecutive term for personally using and intentionally discharging a firearm causing

death (§ 12022.53, subdivision (d)). The determinate sentence consisted of one year for

each prior prison conviction pursuant to section 667.5, subdivision (b). All other

sentences were stayed. Additionally, defendant was ordered to pay a $3,000 restitution

fine (§ 1202.4, subd. (b)), a matching parole revocation fine that was suspended (§

1202.45), a $30 criminal convictions assessment (Gov. Code § 70373, subd. (a)(1)), and a

$40 court operations assessment (§ 1465.8, subd. (a)(1)).

Defendant timely appealed.

DISCUSSION

1. Trial Court Properly Denied Defendant’s Motion for a New Trial

Defendant contends that the trial court erred in denying defendant’s motion for a

new trial because there is insufficient evidence to support the jury’s verdict. Specifically,

defendant argues that there is a lack of witness credibility and points to inconsistencies

between Richardson’s and V.C.’s testimony. We disagree.

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 A criminal defendant may move for a new trial on specified grounds. (§ 1181.)

Among these are trial or instructional error, or prosecutorial misconduct (§ 1181, subd.

5), a verdict contrary to the law or facts (§ 1181, subds. 6, 7), newly discovered evidence

(§ 1181, subd. 8), and juror misconduct (§ 1181, subds. 3, 4), including the jury’s receipt

any evidence out of court. (§ 1181, subd. 2). (People v. Ault (2004) 33 Cal.4th 1250,

1260.)

In reviewing the evidence upon the filing of a new trial motion challenging the

reliability of witness’s testimony, “a trial court must review the evidence independently,

considering the proper weight to be afforded to the evidence and then deciding whether

there is sufficient credible evidence to support the verdict. [Citation.]” (People v. Lewis

(2001) 26 Cal.4th 334, 364.) “A trial court’s ruling on a motion for new trial is so

completely within that court’s discretion that a reviewing court will not disturb the ruling

absent a manifest and unmistakable abuse of that discretion. [Citation.]” (People v.

Hayes (1999) 21 Cal.4th 1211, 1260-1261.)

Thus, the appellate court reviews the evidence in the light most favorable to the

trial court’s ruling, drawing all factual inferences that favor the trial court’s decision.

(People v. Johnston (2003) 113 Cal.App.4th 1299, 1303–1304.) “The trial court’s factual

findings, express or implied, . . . will be upheld if supported by [any] substantial

evidence.” (People v. Drake (1992) 6 Cal.App.4th 92, 97.) After all, “‘[it] is the

exclusive province of the trial court to judge the credibility of the witnesses, determine

the probative force of testimony, and weigh the evidence [citations].’” (People v. Sheran

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(1957) 49 Cal.2d 101, 109.) Therefore, the order will be reversed only if it can be said as

a matter of law there is no substantial evidence to support a judgment contrary to the

verdict. (Ibid.)

Here, the trial court ruled there was sufficient evidence of defendant’s guilt to

support the jury’s verdict and denied the motion for a new trial. After considering

defendant’s credibility contentions, the trial court noted that it presided over the trial,

recalled the evidence, and that in weighing the evidence independently would have come

to the same verdict as the jury. Despite defendant’s contentions, the trial court “found

Ms. Richardson’s testimony particularly credible. And especially in conjunction with the

video interview with the detective within hours after the incident. . . . [¶] . . . Ms.

Richardson’s testimony was also consistent with the physical evidence that was found in

the case, the shell casings, the position of the vehicle.”

The court went on to state that all witnesses, including defendant himself, placed

defendant at the crime scene and agreed that there was a confrontation regarding the

money the victim owed defendant. The court also noted that all witnesses, including the

defendant, stated defendant went to and ended up at the same intersection at which the

victim was shot to death. The trial court also stated it would not make sense for a third

party to have shown up at the same time to commit the killing.

Given that it is the exclusive province of the trial court to weigh the evidence,

judge witness credibility and determine the probative force of testimony and that the trial

court’s ruling is supported by substantial evidence, we find there is sufficient evidence to

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support the jury’s verdict. (See People v. Sheran, supra, 49 Cal.2d at p. 109; People v.

Drake, supra, 6 Cal.App.4th at p. 97.) Therefore, the trial court did not err in denying

defendant’s motion for a new trial.

2. The Limited Cross Examination of the Confidential Informant Was

Harmless Beyond a Reasonable Doubt

Defendant argues the trial court violated his Sixth Amendment right to confront

witnesses against him by limiting his cross-examination of the prosecution’s confidential

informant. We disagree.

a. Background

Defendant made a motion in limine requesting an Evidence Code section 402

hearing regarding the interactions of two detectives with V.C., because they had not

submitted reports about their interactions and conversations with V.C. Prior to the in

limine hearing, the trial court ruled in chambers that details of prior contact between

Detective Luna and V.C. concerning instances when V.C. had been a confidential

informant were irrelevant, although for purposes of the Evidence Code section 402

hearing, counsel was permitted to lay a foundation that some prior contact had occurred.

At the Evidence Code section 402 hearing, Detective Luna testified he had roughly 10 to

15 contacts with V.C. between 2010 and 2017. However, no promises of assistance were

made.

During defendant’s cross-examination of V.C. at trial, V.C. testified that he knew

Detective Luna, so defense counsel requested a sidebar, in which he asked to be allowed

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to question V.C. about his activities as a confidential informant. Defense counsel argued

it was relevant for the jury to know that V.C. is somebody who works with law

enforcement, and that he was a snitch. The court found the evidence was irrelevant

where Detective Luna was not involved in this case, and V.C. was not made any promises

or offers in exchange for his cooperation.

However, V.C. testified that when he was interviewed by Detective Cunningham,

he asked for Detective Luna because he was not comfortable speaking on the record, but

that the detective he asked for did not show up until the end of the interview. V.C. also

testified he was initially hesitant to testify at trial because he had already been beaten up

over his testimony. V.C. revealed that he was in custody, under protective custody, for

failure to appear to testify previously in the case.

b. Discussion

Trial courts have considerable discretion in “restricting cross-examination that is

repetitive, prejudicial, confusing of the issues, or of marginal relevance.” (People v.

Chatman (2006) 38 Cal.4th 344, 372.) However, “‘[n]ot every restriction on a

defendant’s desired method of cross-examination is a constitutional violation.’” (People

v. Elliott (2012) 53 Cal.4th 535, 579, citing Chatman, supra, at p. 372.)

Thus, unless the defendant can show that the prohibited cross-examination would

have produced “‘a significantly different impression of [a witness’s] credibility’

[citation], the trial court’s exercise of its discretion in this regard does not violate the

Sixth Amendment.” (People v. Frye (1998) 18 Cal.4th 894, 946.) Therefore, when

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reviewing a trial court’s decision regarding the scope of cross-examination we review for

abuse of discretion. (United States v. Bonanno (9th Cir. 1988) 852 F.2d 434, 439, cert.

denied, (1989) 488 U.S. 1016.) It is the defendant’s burden to show that the prohibited

cross-examination would have produced a significantly different impression of the

witness’s credibility. (People v. Chatman, supra, 38 Cal.4th at p. 372.)

“Confrontation clause violations are subject to federal harmless-error analysis

under Chapman v. California (1967) 386 U.S. 18, 24.” (People v. Geier (2007) 41

Cal.4th 555, 608.) Under this analysis, “‘an otherwise valid conviction should not be set

aside if the reviewing court may confidently say, on the whole record, that the

constitutional error was harmless beyond a reasonable doubt.’” (Ibid., quoting Delaware

v. Van Arsdall (1986) 475 U.S. 673, 681).) “The harmless error inquiry asks: ‘Is it clear

beyond a reasonable doubt that a rational jury would have found the defendant guilty

absent the error?’ [Citation.]” (People v. Geier, supra, 41 Cal.4th at p. 608.)

In the present case, the issue of V.C.’s possible motivation or bias was an issue

that the trial court took into consideration as early as the beginning of the trial. Yet,

because the detective for whom V.C. had worked was not assigned to the investigation of

the current offense and did not make any offers or promises to V.C. in return for his

cooperation, testimony about V.C.’s work as a confidential informant would not have

revealed a motive or bias. Further, the prohibited cross-examination would not have

produced “a significantly different impression of [a witness’s] credibility.” (Delaware v.

Van Arsdall, supra, 475 U.S. at p. 680.)

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 There was no error. However, even if the court had erred, any error would have

been harmless beyond a reasonable doubt, given Richardson’s testimony about the

shooting and the identification of defendant as the shooter. Given the evidence, even

setting aside V.C.’s testimony and any possible error from it, it is clear the jury would

have found defendant guilty. (See People v. Geier, supra, 41 Cal.4th at p. 608.)

3. Trial Court Did Not Err in Giving the Flight Instruction, CALCRIM No.

372.

Defendant argues it was error to instruct the jury it could consider defendant’s

flight as consciousness of guilt (CALCRIM No. 372 ) because the main issue in the case

was identification, and the instruction created an unsupported inference of defendant’s

guilt.5 We disagree.

The flight instruction reads: “If the defendant fled [or tried to flee] (immediately

after the crime was committed/[or] after (he/she) was accused of committing the crime),

that conduct may show that (he/she) was aware of (his/her) guilt. If you conclude that the

defendant fled [or tried to flee], it is up to you to decide the meaning and importance of

that conduct. However, evidence that the defendant fled [or tried to flee] cannot prove

guilt by itself.” (CALCRIM No. 372 (2019).)

5 The People contend that defendant has forfeited the issue by failing to object to
CALCRIM No. 372 in the trial court. However, an appellate court “may also review any
instruction given, refused or modified, even though no objection was made thereto in the
lower court, if the substantial rights of the defendant were affected thereby.” (§ 1259.)
Additionally, the California Supreme Court has found that challenges to the flight
instruction on appeal are cognizable even in the absence of a contemporaneous objection
in the lower court. (People v. Rogers (2013) 57 Cal.4th 296, 332, fn. 5.)

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 “‘In general, a flight instruction “is proper where the evidence shows that the

defendant departed the crime scene under circumstances suggesting that his movement

was motivated by a consciousness of guilt.” [Citations.] “‘[F]light requires neither the

physical act of running nor the reaching of a far-away haven. [Citation.] Flight

manifestly does require, however, a purpose to avoid being observed or arrested.’”

[Citation.]’ [Citation.]” (People v. Leon (2015) 61 Cal.4th 569, 607.)

“If there is evidence identifying the person who fled as the defendant, and if such

evidence ‘is relied upon as tending to show guilt,’ then it is proper to instruct on flight.

(§ 1127c.) ‘The jury must know that it is entitled to infer consciousness of guilt from

flight and that flight, alone, is not sufficient to establish guilt. (§ 1127c.) The jury’s need

to know these things does not change just because identity is also an issue. Instead, such

a case [only] requires the jury to proceed logically by deciding first whether the [person

who fled] was the defendant and then, if the answer is affirmative, how much weight to

accord to flight in resolving the other issues bearing on guilt. The jury needs the

instruction for the second step.’ [Citation.]” (People v. Mason (1991) 52 Cal.3d 909,

943.) “The instruction also does not lessen the prosecution’s burden of proof even if the

identity of the perpetrator is at issue.” (People v. Johnson (2015) 61 Cal.4th 734, 774,

citing People v. Avila (2009) 46 Cal.4th 680, 710.)

At one time, it was deemed improper to give an instruction on flight where

identity was a contested issue. (People v. Anjell (1979) 100 Cal.App.3d 189, 199.) The

reasoning was that flight “is a factor tending to connect an accused with the commission

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of an offense.” (People v. Moore (1963) 211 Cal.App.2d 585, 600.) However, a flight

instruction which assumes “‘neither the guilt nor the flight of the defendant’” is not

erroneous. (People v. Anjell, supra, 100 Cal.App.3d at p. 200, citing People v. Cannady

(1972) 8 Cal.3d 379, 392, quoting People v. Daener (1950) 96 Cal.App.2d 827, 832-

833.) In other words, an instruction on flight is only improper if it does appear to assume

such “guilt.” (Anjell, supra.)

The statement from Anjell, supra, has largely been rejected in more recent years.

(People v. Mason (1991) 52 Cal.3d 909, 943.) Under the more modern approach if there

is evidence identifying the person who fled as the defendant, and if such evidence “is

relied upon as tending to show guilt,” then it is proper to instruct on flight. (§ 1127c;

People v. Mason, supra, 52 Cal.3d at p. 943.)

Here, although defendant proffered a third party culpability defense, this was not a

mistaken identity case. There was evidence from two eye witnesses identifying

defendant as the person who shot the victim and then fled, which shows guilt.

Specifically, Richardson and V.C. both identified defendant as the shooter. V.C.

observed defendant get back into his car and leave the scene. Other witnesses observed a

car fleeing the scene. This evidence showed defendant departed the crime scene under

circumstances suggesting that his movement was motivated by a consciousness of guilt.

Thus, there was evidence of guilt aside from defendant’s flight, and defendant’s

identity as the person fleeing was established. The court properly instructed the jury that

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“If you conclude that the defendant fled, it is up to you to decide the meaning and

importance of that conduct.” The jury was properly instructed.

4. Defendant Was Not Denied a Fair Trial

Defendant asserts his trial was infected by the errors committed, depriving him of

a fair trial. We disagree.

It is true that a series of trial errors, though independently harmless, may in some

circumstances rise by accretion to the level of reversible and prejudicial error. (People v.

Cunningham (2001) 25 Cal.4th 926, 1009; People v. Hill (1998) 17 Cal.4th 800, 844.)

However, we have found no errors, so there are no collective errors to evaluate for

prejudice. (See People v Lua (2017) 10 Cal.App.5th 1004, 1019 [“we find any arguable

errors also to be harmless when considered collectively, for the same reasons we have

found no prejudice from them individually”].)

Defendant was entitled to a fair trial, but not a perfect one. (People v.

Cunningham, supra, 25 Cal.4th at pp. 926, 1009, and cases cited; see also, People v.

Jasso (2012) 211 Cal.App.4th 1354, 1378.) There was no series of trial errors resulting

in prejudice to defendant, and he was not deprived of a fair trial.

5. Defendant’s Prior Prison Enhancements Must Be Stricken

In defendant’s original opening brief, he argued there was insufficient evidence

that defendant had suffered four separate prior prison terms, and sought to have one of

the prior prison enhancements be stricken. However, in a supplemental brief, defendant

seeks retroactive application of the recent amendment to section 667.5, as part of Senate

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Bill 136 which requires that all four enhancements be stricken, rendering the original

issue moot. The People concede that defendant is entitled to relief. We agree.

Prior to the enactment of Senate Bill 136, section 667.5 provided for the

imposition of a one-year term for each prior separate prison term served by a defendant.

However, Senate Bill 136 (2019–2020 Reg. Sess.), amended former section 667.5,

subdivision (b), and went into effect on January 1, 2020. Under this amendment, a one-

year prior prison term enhancement will only apply if a defendant served a prior prison

term for a sexually violent offense as defined in Welfare and Institutions Code section

6600, subdivision (b). (See Stats. 2019, ch. 590, § 1; People v. Lopez (2019) 42

Cal.App.5th 337, 340-341; see also, People v. Gastelum (2020) 45 Cal.App.5th 757,

772.)

The statute is plainly ameliorative in nature because it reduces punishment. An

amendatory statute lessening punishment is presumed to apply in all cases not yet

reduced to final judgment as of the amendatory statute’s effective date, unless the

enacting body indicates a contrary intent, by the inclusion of either an express saving

clause or its equivalent. (People v. Lara (2019) 6 Cal.5th 1128, 1134; People v. DeHoyos

(2018) 4 Cal.5th 594, 600.) The parties agree that Senate Bill 136 is retroactive and the

amendment to section 667.5, subdivision (b), applies in this case.

We therefore agree with other courts before us that have applied the amendment

retroactively to all cases not final on appeal. (People v. Lopez, supra, 42 Cal.App.5th at

p. 341, citing In re Estrada (1965) 63 Cal.2d 740, 742; see also, People v. Cruz (2020) 46

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Cal.App.5th 715, 738-739.) Because none of defendant’s prison prior convictions were

for sexually violent offenses, we remand the case with directions to strike the one-year

enhancements. (People v. Keene (2019) 43 Cal.App.5th 861, 865.)

6. Defendant Forfeited Any Challenge to the Restitution Fine and Failed to

Show Inability to Pay the Nominal Assessments.

Defendant argues that the trial court improperly imposed a $3,000 restitution fee

(§ 1202.4, subd. (b)), a $40 court operations assessment (§ 1465.8), and a $30 criminal

conviction assessment (Gov. Code, § 70373) fee without first considering his ability to

pay. However, defendant forfeited any challenge to the $3,000 restitution fine by failing

to object. As for the imposition of court fees and assessments, even if defendant was

entitled to a hearing on his ability to pay, any error was harmless beyond a reasonable

doubt.

a. The Restitution Fine

It has long been recognized that pursuant to section 1202.4, subdivision (c), trial

courts may consider defendant’s inability to pay when the imposed restitution is above

the statutory minimum as defined in subdivision (b)(1). (§ 1202.4, subd. (c).) Therefore,

if a defendant does not timely object to the restitution fine in the trial court, appellate

challenge to that restitution fine is forfeited. (People v. Taylor (2019) 43 Cal.App.5th

390, 399-401; People v. Jones (2019) 36 Cal.App.5th 1028, 1033; People v. Frandsen

(2019) 33 Cal.App.5th 1126, 1154.)

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 Here, probation recommended a restitution fine of $10,000. Defense counsel

asked the restitution be reduced to the statutory minimum arguing that “the mandatory

minimum be imposed so that if the [c]ourt does impose an actual restitution amount for

[defendant] to pay, his funds can go towards the actual restitution so that the family gets

reimbursed rather than the money needing to go to the fund.” The trial court imposed a

reduced restitution fine in the amount of $3,000 in response to defendant’s objection.

Thereafter, defendant made no further objection. Any challenge to the reduced restitution

fine has been forfeited. (See People v. Taylor, supra, 43 Cal.App.5th at pp. 399-401;

People v. Jones, supra, 36 Cal.App.5th at p. 1033; People v. Frandsen, supra, 33

Cal.App.5th at p. 1154.)

b. Court Fees and Assessments

Defendant also challenges the imposition of the court operations assessment and

the criminal conviction assessment. With regards to the other imposed fees, a trial court

must “conduct an ability to pay hearing and ascertain a defendant’s present ability to pay”

before requiring a defendant to pay a restitution fine under section 1202.4 or assessments

under section 1465.8 and Government Code section 70373. (People v. Dueñas (2019) 30

Cal.App.5th 1157, 1164.) Dueñas was decided in January of 2019, and defendant was

sentenced in March 2019. While the decision had only been filed two months before

defendant’s sentence, we must assume defendant’s counsel was aware of it.

For cases involving fees or assessments imposed prior to the decision in Dueñas,

we have held that a defendant was entitled to a hearing on his ability to pay unless the

18
error was harmless. (Jones, supra, 36 Cal.App.5th at pp. 1034-1035.) The rationale for

considering such an issue despite the lack of objection was the policy under which

“‘[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial

where an objection would have been futile or wholly unsupported by substantive law then

in existence.’ [Citations.]” (People v. Brooks (2017) 3 Cal.5th 1, 92.)

Here, we cannot say that an objection would have been futile because the decision

in Dueñas had already been published, and, significantly, because the trial court did

adjust the restitution fine at defense counsel’s request. Nevertheless, even if we were to

reach the issue, defendant has failed to demonstrate prejudice. We will find Dueñas error

harmless if the record demonstrates he cannot make a showing that he is eligible for

relief. (People v. Jones, supra, 36 Cal.App.5th 1028, 1035.)

A defendant’s ability to pay includes “‘[his] ability to obtain prison wages and to

earn money after his release from custody.’ [Citations.]” (People v. Cervantes (2020) 46

Cal.App.5th 213, 229.) When determining whether the trial court’s failure to conduct an

ability to pay hearing was harmless beyond a reasonable doubt, courts may consider the

defendant’s potential prison wages. (People v. Taylor, supra, 43 Cal.App.5th at p. 402.)

“Every able-bodied person . . . is obligated to work.” (Cal. Code Regs., tit. 15, § 3040,

subd. (a); § 2700.) A prisoner’s assignment “to a paid position is a privilege dependent

on available funding, job performance, seniority and conduct.” (Cal. Code Regs., tit. 15,

§ 3040, subd. (k); accord, People v. Rodriguez (2019) 34 Cal.App.5th 641, 649.) Prison

wages range from $12 to $56 per month, depending on the job and skill level involved.

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(Cal. Code Regs., tit. 15, § 3041.2, subd. (a)(1); People v. Cervantes (2020) 46

Cal.App.5th 213, 229.) Fifty percent of a prisoner’s wages and trust account deposits

will be deducted to pay any outstanding restitution fine, plus another 10 percent for the

administrative costs of this deduction. (§ 2085.5, subds. (a), (e); Cal. Code Regs., tit. 15,

§ 3097, subd. (f); People v. Rodriguez, supra, 34 Cal.App.5th at p. 649; see also, People

v. Jones, supra, 36 Cal.App.5th at p. 1035.)

Here, defendant was sentenced to 50 years to life (not counting the four prison

priors that will be stricken), and the record contains no indication he is either unhealthy

or unable to work. (See People v. Cervantes, supra, 46 Cal.App.5th at p. 229.) Also, he

has not demonstrated that he will be unable to pay off the fees and assessments during his

term time. At the rate of $5.46 a month, the lowest monthly income he would earn after

other deductions, defendant would be able to pay off the $40 court assessment fee and the

$30 criminal conviction fee within one year and one month. (See People v. Taylor,

supra, 43 Cal.App.5th at p. 402.) Thus, the error is harmless beyond a reasonable doubt.

DISPOSITION

The convictions are affirmed. We remand to the trial court with orders to strike

defendant’s four prison prior enhancements pursuant to the amended provision of section

667.5, subdivision (b), as well as to modify the sentencing minutes and the abstract of

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judgment to reflect this change. In all other respects the sentence is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:

CODRINGTON
J.

RAPHAEL
J.

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