People v. Rosales CA4/2

Filed 9/16/20 P. v. Rosales 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E072661

v. (Super.Ct.No. INF1601508)

LUIS MANUEL ROSALES, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. James T. Latting, Judge.

Affirmed with directions.

Joshua L. Siegel, 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, Steve Oetting and Daniel J.

Hilton, Deputy Attorneys General, for Plaintiff and Respondent.

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 I. INTRODUCTION

A jury found defendant and appellant, Luis Manuel Rosales, guilty as charged in

16 counts of committing lewd acts with Jane Doe, a child under the age of 14. (Pen.

Code, § 288, subd. (a).)1 Defendant was sentenced to 38 years in prison: the upper term

of eight years on count 1, plus consecutive two-year terms on counts 2 through 16.

In this appeal, defendant raises three claims of error. He first claims that the

custodial interview statements he made shortly after his arrest were admitted in violation

of his Miranda2 rights and his due process rights. He specifically claims he did not waive

his Miranda rights; his due process rights were violated because his interview statements

were admitted even though they were involuntary; and, as a Mexican national, he was not

advised of his consular notification rights under section 834c and the 1963 Vienna

Convention on Consular Relations Treaty (the Vienna Convention).

We find no Miranda violation or due process violation. Defendant impliedly

waived his Miranda rights; his interview statements were voluntary; and the failure to

notify him of his consular rights did not affect his decision to waive his Miranda rights,

render his interview statements involuntary, or otherwise prejudice him.

Second, defendant claims, and we and the People agree, that defendant is entitled

to 49 additional days of presentence custody credits—a total of 1,067, rather than 1,018.

Third and lastly, defendant claims the court erroneously imposed a $300 restitution fine

1 Undesignated statutory references are to the Penal Code.

2 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

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and $1,120 in court assessments ($70 for each conviction), without first determining if he

was able to pay them. We conclude that any error in imposing the fine and assessments

was harmless beyond a reasonable doubt, given that defendant is young and able to work

in order to pay the fine and assessments over time.

We modify the judgment to award defendant 49 additional days of presentence

custody credits. In all other respects, we affirm the judgment.

II. FACTUAL BACKGROUND

A. Prosecution Evidence

Doe was born in February 2003. When she was in the fifth and sixth grades, Doe,

her parents, and her three older siblings lived in a house on La Jolla Avenue in Coachella.

Doe was later homeschooled, and in late 2014, she and her family moved to a house on

Shadow Rock in Coachella.

Defendant and the wife of Doe’s uncle were cousins. Doe first met defendant at

her aunt and uncle’s anniversary party, when Doe and her family were still living in their

La Jolla house. After the anniversary party, defendant and his family became friends

with Doe’s family; and defendant, his wife, and son often spent time at Doe’s house. The

two families also went on camping trips together.

When Doe was in the fifth or sixth grade, and she and her family were living in the

La Jolla house, defendant began telling Doe that he loved her, and they began sending

text messages to each other. One night around this time, Doe and defendant were alone

in Doe’s living room; Doe’s family members had just gone to bed; and defendant was

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about to leave but said he couldn’t find his keys. Defendant then romantically kissed Doe

on her lips. Doe did not tell her family about the kiss.

The first charged lewd acts between Doe and defendant occurred when Doe’s

mother asked Doe to go to the grocery store with defendant. On the way there, defendant

said he had forgotten his wallet and took Doe to his home. There, Doe orally copulated

defendant and they attempted sexual intercourse, but Doe said it was hurting so defendant

stopped (counts 13 & 14).

Then, on “the night of [the] lunar eclipse,” in November 2014, Doe snuck out of

her house around 1:00 a.m. and met defendant at his truck to watch the eclipse; but,

defendant said he forgot to bring the “special glasses” they needed. Inside his truck,

defendant kissed Doe (count 3), touched her breasts (count 2), and had vaginal

intercourse with her (count 1). After the lunar eclipse, when Doe was still in sixth grade,

defendant picked up Doe on her way home from school and took her to her La Jolla

house, where they kissed and had sexual intercourse in her living room (counts 4 & 5).

In December 2014, after Doe and her family moved to the Shadow Rock house,

Doe’s parents went to Mexico for over a week and left Doe and her older siblings at

home. During that time, defendant and Doe had sexual intercourse in Doe’s bedroom

(count 6) and in her siblings’ bedrooms (counts 7 & 8). By this time, Doe thought she

was defendant’s girlfriend, and he told her they were “going to have a future, possibly get

married.” He also told her not to tell anyone that he was her boyfriend because it was too

risky.

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 Another time, when Doe was living in the Shadow Rock house, she and defendant

gave her mother a ride to work, then defendant took her to a hotel where they had oral

and vaginal sex (counts 15 & 16). One night in early 2016, when his wife and son were

away, defendant picked up Doe at her house around 1:00 a.m. and took her to his house

where they had oral and vaginal sex (counts 11 & 12).

The last lewd act occurred in April 2016, when Doe met defendant at his truck

around 1:00 a.m. and they had oral and vaginal sex (counts 9 & 10). In an April 2016

exchange of e-mails, Doe and defendant indicated that, in five years, they would not have

to sneak around anymore.

One night in May 2016, Doe again snuck out of her house and met defendant; but,

this time he told her to go back inside her house because his wife’s car was outside of

Doe’s house. After Doe went back inside her house, defendant’s wife knocked on Doe’s

family’s front door. Later that night, around midnight, Doe’s father came to Doe’s room

and asked her what she had been doing with defendant. Doe then told her father that she

and defendant had been having sexual contact for a year or longer.

In June 2016, the molestations were reported to law enforcement, and a deputy

came to Doe’s family’s home and talked to Doe’s parents. Doe’s mother later found

notes from defendant that he had left hidden for Doe in her family’s front yard and gave

them to an investigator. Doe underwent a forensic medical examination in June 2016 that

showed she had no physical injuries. In July 2016, Doe underwent a forensic interview

and later showed an investigator some of the locations where some of the lewd acts

occurred.

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 Defendant was arrested on October 11, 2016, and taken to a sheriff’s station.

After being placed in an interview room, he was Mirandized and interviewed. A video

recording of the interview was played for the jury. During the interview, defendant was

very forthcoming about the lewd acts he had committed with Doe, and his account of the

lewd acts was generally consistent with Doe’s subsequent trial testimony. Defendant

claimed he did not know the acts were unlawful because Doe consented to them. At the

conclusion of the interview and at the interviewer’s request, defendant wrote letters of

apology to Doe and her parents.

B. Defense Case

Defendant did not testify, and the defense did not present any evidence.

III. DISCUSSION

A. Defendant’s Interview Statements Were Properly Admitted

Defendant claims the trial court prejudicially erred in allowing the prosecution to

adduce the custodial interview statements he made following his arrest. He claims the

record is insufficient to show that he waived his Miranda rights or that his statements

were voluntary and therefore admissible. We disagree on both counts.

1. Relevant Background

The defense moved in limine to exclude defendant’s interview statements. During

an Evidence Code section 402 hearing, Damen Butvidas, a senior investigator for the

Riverside County District Attorney’s Office, testified for the prosecution. Defendant was

arrested on October 11, 2016, at his place of employment in Palm Desert. He was then

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placed in handcuffs and transported to the sheriff’s station in Thermal where he was

placed in an interview room, read his Miranda rights, and interviewed.

During the approximately 20-minute drive from defendant’s place of employment

to the sheriff’s station, investigator Butvidas engaged in “casual conversation” with

defendant. During this discussion, defendant said he grew up in Indio, graduated from

Indio High School, and went to college for a year where he played soccer. He wanted to

get a degree in business or marketing. He had no trouble communicating with the

investigator in English, and he spoke to the investigator only in English.

A video recording and a transcript of part of defendant’s interview were admitted

in evidence at the Evidence Code section 402 hearing. When defendant was first in the

interview room, the investigator asked defendant whether he wanted “water or anything,”

and defendant said, “water would be fine.” The investigator then asked defendant

“booking” questions, including requests for his address, phone number, and where he was

born. Defendant said he was born in Mexico. The investigator then told defendant that

he wanted to talk to defendant about defendant and Doe, and he wanted to get

defendant’s “side of the story” because “there’s always two sides of the story.”

Next, the investigator read defendant his Miranda rights from a card.3 Defendant

was told that he had the right to remain silent; anything he said could be used against him

in court; he had the right to have an attorney present both before and during any

3 Around 10 minutes elapsed between the time defendant was placed in the
interview room and the time he was read his Miranda rights.

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questioning; and, if he could not afford an attorney, one would be appointed for him, free

of charge, before and during any questioning, if he so wished. After each Miranda

advisement, defendant responded, “yes,” when he was asked whether he understood the

advisement; but, after reading the advisements, the investigator did not ask defendant

whether he wished to waive his Miranda rights and speak with the investigator. Instead,

the investigator proceeded with the interview by saying, “So . . . I don’t want to be

judgmental or anything like that but I want to hear your side of the story. Okay?”

Defendant was 32 years old at the time of the interview. He answered all of the

investigator’s questions, and the interview lasted around one hour and 50 minutes.

Defendant did not, at any point, indicate that he wished to stop talking, invoke his right to

an attorney, or exhibit any hesitation in answering any of the investigator’s questions. At

the conclusion of the interview, defendant asked to use the restroom and was told that the

transporting deputy would allow him to use the restroom.

At no time before or during the interview was defendant advised of his consular

notification rights under section 834c and Article 36 of the Vienna Convention.

“ ‘Article 36, paragraph 1(b), of the Vienna Convention provides that law enforcement

officials “shall . . . inform” arrested foreign nationals of their right to have their consulate

notified of their arrest, and if a national so requests, inform the consular post that the

national is under arrest.’ [Citation.] Article 36 generally requires that such an

advisement be given ‘without delay.’ [Citation.] California implemented the [Vienna]

Convention’s requirements in section 834c. [Citation.] [Section 834c] requires law

enforcement to inform any ‘known or suspected foreign national’ of the right to consular

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notification when the foreign national has been arrested, booked, or detained for more

than two hours. (§ 834c, subd. (a)(1).)” (People v. Leon (2020) 8 Cal.5th 831, 845

(Leon).) The foreign national must also be notified that he or she has “a right to

communicate with an official from the consulate of his or her country.” (§ 834c, subd.

(a)(1).)4

At the time of the 2016 interview, investigator Butvidas had been working for the

Riverside County Sheriff’s Department since 1994. But he had not been trained in, nor

did he know about, the requirements of the Vienna Convention. It was his understanding

that “the jail makes these notifications once somebody is being housed at the facility”;

and, because he had never worked in the jail, he did not know what protocols the jail

followed for such notifications.

At the hearing, defense counsel argued that the admission of defendant’s interview

statements would violate defendant’s Miranda rights and his due process rights. Counsel

emphasized: (1) defendant was not asked whether he wished to waive his Miranda rights

before he answered the investigator’s questions; (2) defendant was not advised of his

consular notification rights before or during the interview; and (3) before the interview,

there were at least 20 minutes of conversation between the investigator and defendant

that were not presented for the court’s consideration. Counsel argued that all of these

4 For certain countries, not including Mexico, article 36 of the Vienna Convention
requires “mandatory notification” of its national’s arrest or detention, “without regard to
an arrested or detained foreign national’s request to the contrary.” (See § 834c, subds.
(a)(1), (d).)

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factors showed that defendant’s will was overborne, rendering his interview statements

involuntary and taken in violation of his Miranda rights and the Vienna Convention.

The prosecutor countered that defendant impliedly waived his Miranda rights

when he began answering and continued answering the investigator’s questions after he

was informed of and acknowledged that he understood each of his Miranda rights. The

prosecutor also argued that suppressing a confession is not a remedy for a violation of an

individual’s consular notification rights. Finally, the prosecutor argued that there was no

evidence that defendant’s interview statements were involuntary. The court denied the

defense’s motion to exclude defendant’s interview statements. During trial, the defense

renewed its objection to the admission of the interview statements on the grounds they

were involuntary and were taken in violation of Miranda and the Vienna Convention.

Again, the objections were overruled, and a recording of defendant’s interview was

played for the jury.

2. Defendant Impliedly Waived His Miranda Rights

Defendant claims the admission of his custodial interview statements violated his

Miranda rights because the record is insufficient to show that he made a valid Miranda

waiver. We conclude that defendant impliedly waived his Miranda rights.

“The Fifth Amendment to the United States Constitution, which applies to the

states by virtue of the Fourteenth Amendment, provides that no person may be compelled

to be a witness against himself or herself.” (People v. Linton (2013) 56 Cal.4th 1146,

1170-1171 (Linton).) In Miranda, the high court “ ‘adopted a set of prophylactic

measures to protect a suspect’s Fifth Amendment right from the “inherently compelling

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pressures” of custodial interrogation.’ ” (Linton, at p. 1171, quoting Maryland v. Shatzer

(2010) 559 U.S. 98, 103.)

Under Miranda, a suspect “must be warned prior to any questioning that he has

the right to remain silent, that anything he says can be used against him in a court of law,

that he has the right to the presence of an attorney, and that if he cannot afford an

attorney one will be appointed for him prior to any questioning if he so desires.

Opportunity to exercise these rights must be afforded to him throughout the interrogation.

After such warnings have been given, and such opportunity afforded him, the individual

may knowingly and intelligently waive these rights and agree to answer questions or

make a statement. But unless and until such warnings and waiver are demonstrated by

the prosecution at trial, no evidence obtained as a result of interrogation can be used

against him.” (Miranda, supra, 384 U.S. at p. 479.)

“To establish a valid Miranda waiver, the prosecution bears the burden of

establishing by a preponderance of the evidence that the waiver was knowing, intelligent,

and voluntary under the totality of the circumstances of the interrogation.” (Linton,

supra, 56 Cal.4th at p. 1171.) “ ‘On review of a trial court’s decision on a Miranda issue,

we accept the trial court’s determination of disputed facts if supported by substantial

evidence, but we independently decide whether the challenged statements were obtained

in violation of Miranda.’ ” (People v. Hensley (2014) 59 Cal.4th 788, 809.)

“In general, if a custodial suspect, having heard and understood a full explanation

of his or her Miranda rights, then makes an uncompelled and uncoerced decision to talk,

he or she has thereby knowingly, voluntarily, and intelligently waived them. [Citation.]

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Law enforcement officers are not required to obtain an express waiver of a suspect’s

Miranda rights prior to a custodial interview. [Citation.] Rather, a valid waiver of

Miranda rights may, as here, be inferred from the defendant’s words and actions.”

(People v. Cunningham (2015) 61 Cal.4th 609, 642.)

Here, the trial court impliedly found, and we agree, that substantial evidence

shows defendant knowingly, intelligently, and voluntarily waived his Miranda rights.

Defendant began answering and continued to answer the investigator’s questions—after

the investigator read him his Miranda rights and he acknowledged he understood them.

The entire record, including the video recording of defendant’s interview, shows that

defendant’s will was not overborne, and he was not under any compulsion to answer the

investigator’s questions. Defendant never once indicated that he wished to stop talking,

consult with an attorney, or have an attorney present during the interview.

Defendant’s willingness to answer the investigator’s questions, after he was

advised of and acknowledged that he understood his Miranda rights, constitutes an

implied waiver of his Miranda rights. (People v. Sauceda-Contreras (2012) 55 Cal.4th

203, 218-219.) The record shows that defendant’s implied waiver was “voluntary in the

sense that it was the product of a free and deliberate choice rather than intimidation,

coercion, or deception.” (Moran v. Burbine (1986) 475 U.S. 412, 421.) The record also

shows that defendant’s implied waiver was “knowing” in the sense that it was “made

with a full awareness of both the nature of the right being abandoned and the

consequences of the decision to abandon it.” (Ibid.)

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 3. Defendant’s Interview Statements Were Voluntary

Defendant claims his interview statements were inadmissible because they were

involuntarily made. Again, we disagree. The entire record shows that defendant’s

interview statements were voluntary.

A defendant’s involuntary confession is inadmissible, and the prosecution has the

burden of establishing by a preponderance of the evidence that a defendant’s proffered

confession was voluntary. (People v. Carrington (2009) 47 Cal.4th 145, 169.) Whether

a confession was voluntary depends on the totality of the circumstances surrounding its

making. (Ibid.) We uphold the trial court’s factual findings concerning the

circumstances surrounding the making of a confession, if substantial evidence supports

them, but we independently review the court’s voluntariness finding. (Ibid.)

“ ‘In general, a confession is considered voluntary “if the accused’s decision to

speak is entirely ‘self-motivated’ [citation], i.e., if he freely and voluntarily chooses to

speak without ‘any form of compulsion or promise of reward.’ ” ’ ” (People v. Tully

(2012) 54 Cal.4th 952, 985.) Conversely, “ ‘[a] statement is involuntary if it is not the

product of “ ‘a rational intellect and free will.’ ” ’ ” (People v. McWhorter (2009) 47

Cal.4th 318, 346.) Thus, a confession is involuntary if “ ‘the defendant’s “will was

overborne at the time he confessed.” ’ ” (Id. at pp. 346-347.)

The trial court here implicitly found, substantial evidence shows, and we agree,

that defendant’s interview statements were voluntarily. Both before and during the

interview, defendant freely spoke with the investigator in English and never once

indicated that he misunderstood his Miranda rights or any of the investigator’s questions.

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Although defendant was born in Mexico, he grew up in Indio, graduated from Indio High

School, and attended college for a year. Thus, defendant was quite capable of

understanding the purpose of the interview and the investigator’s questions. It is also

clear from defendant’s interview statements that, at the time of the interview, defendant

knew his lewd acts with Doe were unlawful, but he nonetheless freely and voluntarily

confessed to them. In sum, all of the circumstances surrounding the interview show that

defendant’s will was not overborne before or during the interview, that defendant did not

speak under any form of compulsion or promise of reward, and that his interview

statements were entirely voluntary.

4. The Failure To Notify Defendant of His Consular Rights Was Not Prejudicial

Defendant claims his interview statements were involuntary and inadmissible

because he was not notified, before the interview, of his consular rights under the Vienna

Convention. On this record, the failure to notify defendant of his consular rights did not

render his interview statements involuntary or inadmissible, affect his Miranda waiver, or

otherwise prejudice him.

The failure to notify a suspect of his or her consular rights does not, in and of

itself, render the suspect’s subsequent interview statements or confession involuntary and

therefore inadmissible. (Sanchez-Llamas v. Oregon (2006) 548 U.S. 331, 349; People v.

Enraca (2012) 53 Cal.4th 735, 756.) But a defendant can raise a consular notification

claim “as part of a broader challenge to the voluntariness of his statements to police.”

(Sanchez-Llamas, at p. 350; Enraca, at p. 757.)

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 Here, defendant was not notified of his consular rights, as required under article 36

of the Vienna Convention and section 834c. As indicated, “[t]he Vienna Convention

requires that law enforcement officers convey to arrested foreign nationals, ‘without

delay,’ that they have the right to have their consulate notified of their arrest. (Vienna

Convention, supra, art. 36, par. 1(b), at p. 101 (Article 36) see § 834c, subd. (b)).”

(People v. Vargas (2020) 9 Cal.5th 793, 832 (Vargas).)

Additionally, Penal Code section 834c implements the requirements of the Vienna

Convention by requiring that law enforcement “inform any ‘known or suspected foreign

national’ of the right to consular notification when the foreign national has been arrested,

booked, or detained for more than two hours.” (Leon, supra, 8 Cal.5th at p. 845.)

Subject to exceptions not applicable here, these include notifying the foreign national that

he or she has the right to have his country’s consulate notified of his or her arrest or

detention and that he or she has the “right to communicate with an official from the

consulate of his or her country.” (§ 834c, subds. (a)(1), (d).)

By the time defendant’s interview concluded, more than two hours had passed

since defendant was arrested at his place of employment. During that over two-hour

period, defendant was not told he had the right to have the Mexican consulate notified of

his arrest or of his right to speak with a consulate official (§ 834c, subd. (a)(1)); even

though, before his interview, he told the investigator that he was born in Mexico and,

thus, indicated that he possibly was a Mexican national.

Nonetheless, on this record, defendant has not shown that the failure to notify him

of his consular rights had any bearing on his decision to waive his Miranda rights or the

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voluntariness of his subsequent interview statements. Nor has he shown that the failure

to notify him of his consular rights otherwise prejudiced him.

Our Supreme Court has rejected similar consular notification claims where the

defendants failed to establish any resulting prejudice—that is, where they failed to

establish any link between the failure to notify them of their consular rights and their

subsequent statements to law enforcement. (Leon, supra, 8 Cal.5th at pp. 846-847

[rejecting the defendant’s consular notification claim where the defendant “established no

relation whatsoever between his confession and the lack of consular notice”]; Vargas,

supra, 9 Cal.5th at p. 833 [rejecting as “far too speculative” the defendant’s claim that he

“might have testified at trial had a consular official advised him to remain silent when

questioned by the police”].)

In Vargas, our Supreme Court recognized that, “[a] defendant is entitled to relief

under the Vienna Convention if the defendant can show that a violation occurred, and

that the violation resulted in prejudice. [Citations.] Although Article 36 ‘ “secures only

a right of foreign nationals to have their consulate informed of their arrest or detention—

not to have their consulate intervene, or to have law enforcement authorities cease their

investigation pending any such notice or intervention” ’ [citation], consular notification

may facilitate a defendant's access to assistance, advice, and legal services. If a

defendant is unable to make ‘some showing that the violation had an effect on the trial,’

the U.S. Supreme Court has explained that even with a ‘properly raised and proven’

Vienna Convention claim, ‘it is extremely doubtful that [a] violation should result in the

overturning of a final judgment of conviction.’ [Citation.] ‘ “In most circumstances,

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there is likely to be little connection between an Article 36 violation and evidence or

statements obtained by police.” [Citation.] Accordingly, the “failure to notify a suspect

of his or her consular rights does not, in itself, render a confession inadmissible” under

Article 36.’ ” (Vargas, supra, 9 Cal.5th at p. 832, italics added.)

Defendant argues that his interview statements should have been suppressed solely

because the interviewing investigator had not been trained in the consular notification

requirements of the Vienna Convention. He points out that “ ‘[e]xclusionary rules are

very much aimed at deterring lawless conduct by police’ ” (Colorado v. Connelly (1986)

479 U.S. 157, 169), including “recurring or systemic negligence” on the part of the

police. (Herring v. United States (2009) 555 U.S. 135, 144.) He argues that the

investigator’s lack of training shows this case involves the “type of systemic negligence”

that exclusionary rules serve to deter.

Indeed, the investigator’s lack of training in the consular notification requirements

of the Vienna Convention appears to have fallen short of the requirements of section

834c. The statute provides that, “California law enforcement agencies shall ensure that

policy or procedure and training manuals incorporate language based upon provisions of

the treaty [i.e., Vienna Convention] that set forth requirements for handling the arrest and

booking or detention for more than two hours of a foreign national pursuant to this

section prior to December 31, 2000.” (§ 834c, subd. (c).) But, defendant’s failure to

establish prejudice, or any link between the failure to notify him of his consular rights

and his waiver of his Miranda rights or the voluntariness of his confession, renders his

consular notification claim unavailing. (Vargas, supra, 9 Cal.5th at pp. 834-835.)

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 To be sure, and as defendant points out, the Miranda court recognized that foreign

nationals may be especially susceptible to making involuntary statements to police,

particularly when they are “thrust into an unfamiliar atmosphere and run through

menacing police interrogation procedures.” (Miranda, supra, 384 U.S. at p. 457.) Here,

however, defendant, though a Mexican national, grew up in Indio, spoke fluent English,

was educated, and was 32 years old at the time of his interview. He was more than

capable of understanding his Miranda rights, and the record shows that he understood

those rights and knowingly, intelligently, and voluntarily waived them. Nor does the

record show that the investigator employed any “menacing police interrogation

procedures” in connection with defendant’s interview. (Ibid.) To the contrary, the record

shows that defendant was treated respectfully and made comfortable before and

throughout his interview.

B. Defendant Is Entitled to an Additional 49 Days of Presentence Custody Credits

Defendant claims, and we and the People agree, that defendant is entitled to an

additional 49 days of presentence custody credits—a total of 1,067 days, rather than the

1,018 days he was awarded. At sentencing, the probation report recommended and the

court awarded defendant 1,018 days of presentence custody credits, comprised of 886

actual days (§ 2900.5), plus 132 days of worktime credit. (§ 2933.1.)

As the parties agree, the award of presentence custody credits fell short because it

did not include (1) the 43 days defendant spent in custody between March 15, 2019 (the

day he was originally supposed to be sentenced) and April 26, 2019 (the day he was

sentenced), plus (2) six additional days of worktime credit, based on the additional 43

18
days he spent in custody (15 percent of 43 equals 6). (§ 2933.1.) Thus, defendant is

entitled to an additional 49 days of presentence custody credits, or a total of 928 days of

actual presentence custody credits plus 139 days of conduct credits.

C. Any Error in Imposing the $1,420 in Fines and Fees Was Harmless

Defendant claims the court violated his due process rights and his right to be free

from excessive fines, by imposing a $300 restitution fine and $1,120 in court assessments

($70 on each of his 16 convictions), without determining if he was able to pay them.

(People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168, 1171, fn. 8 (Dueñas).)5 We

conclude that any error in imposing the challenged fine and court assessments was

harmless beyond a reasonable doubt.

On appeal, claims of Dueñas error are not prejudicial if the record shows they are

harmless beyond a reasonable doubt. (People v. Jones (2019) 36 Cal.App.5th 1028,

1035; Chapman v. California (1967) 386 U.S. 18, 24.) Any assessment of a defendant’s

ability to pay the fine and assessments would necessarily include consideration of his or

her future earning capacity, including his or her ability to earn wages while incarcerated

5 In People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13,
2019, S257844, our Supreme Court is currently reviewing whether a court is required to
consider a defendant’s ability to pay before it may impose or execute fines, fees, and
assessments; and, if so, which party bears the burden of proof regarding the defendant’s
“inability to pay.” (People v. Kopp (2019) Cal. Lexis 8371, S257844.) Some appellate
courts have also concluded that Dueñas was “wrongly decided.” (E.g., People v. Hicks
(2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946; People v. Aviles
(2019) 39 Cal.App.5th 1055, 1067-1068; People v. Adams (2020) 44 Cal.App.5th 828,
831-832.)

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in state prison (People v. Jones, at p. 1035) and following his or her release. (People v.

Hennessey (1995) 37 Cal.App.4th 1830, 1837.)

Here, the record shows that defendant’s future earning capacity is sufficient to pay

the $1,420 in fines and assessments. At the time of sentencing on April 26, 2019,

defendant was 34 years old. He had worked as a landscaper, earning $15 an hour. His

young age and ability to work show that he is presently able to pay the $1,420 in fines

and assessments over time while in prison, after release, or some combination of both.

Thus, any error in imposing the $1,420 in fines and assessments, without determining that

defendant was presently able to pay them, was necessarily harmless beyond a reasonable

doubt.

IV. DISPOSITION

The judgment is modified to award defendant 49 days of additional presentence

custody credits: a total of 1,067 days, comprised of 928 actual days plus 139 days of

worktime credits (§ 2933.1), rather than the total of 1,081 days he was awarded at

sentencing on April 26, 2019. The matter is remanded to the trial court with directions to

prepare a supplemental sentencing minute order and an amended abstract of judgment,

reflecting this change to the judgment. The trial court is further 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

FIELDS

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 J.
We concur:

RAMIREZ
P. J.
McKINSTER
J.

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