Filed 5/21/21 P. v. Watkins CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C088677
Plaintiff and Respondent, (Super. Ct. No.
STKCRFE20150005393,
v. SF130600A )
RICHARD HOWARD WATKINS,
Defendant and Appellant.
Defendant Richard Howard Watkins and Kelly M. shared a hotel room in Manteca
for several nights. Shortly thereafter, Kelly was found strangled to death in a dumpster
less than a mile from the hotel room. Surveillance video footage showed defendant
dumping Kelly’s body in the dumpster, and his DNA was found on her breasts and under
her fingernails.
1
Following a jury trial, defendant was convicted of first degree murder. (Pen.
Code, § 187, subd. (a).)1 The trial court sustained two strike allegations (§§ 667, subd.
(d), 1170.12, subd. (b)) and sentenced defendant to 75 years to life in state prison.
Defendant contends on appeal that sustaining hearsay objections to proposed
questioning of the lead investigator deprived him of his rights to confrontation and to
present a defense, the erroneous admission of the victim’s hearsay statements was
reversible error, cumulative error warrants reversal, and remand is required in light of
People v. Dueñas (2019) 30 Cal.App.5th 1157, 1160 (Dueñas).
The evidence defendant intended to produce through the proposed cross-
examination of the lead investigating officer involved hearsay or second-hand hearsay,
and did not implicate any third party as a possible suspect in the murder. Exclusion of
this line of questioning was within the trial court’s discretion under Evidence Code
section 352, and the exclusion did not implicate defendant’s rights to confrontation or to
present a defense. The victim’s statement that she was not defendant’s girlfriend was
admissible for a nonhearsay purpose. While the trial court erred in admitting the victim’s
statement that she was waiting for defendant, the error was harmless. Finding cumulative
error does not warrant reversal and Dueñas was incorrectly decided, we shall affirm.
BACKGROUND
On the night of March 15, 2014, Jeremy Chambers discovered a body while
looking for recyclables in a dumpster behind a Manteca shopping center. His fiancé
called 911. Manteca police officers found the body of a dead woman, naked from the
waist up, covered by a cardboard box. The ligature marks on her neck were consistent
with strangulation using a cylindrical material. She died at least 36 hours before the
March 17 autopsy, and showed signs of being a methamphetamine user.
1 Undesignated statutory references are to the Penal Code.
2
The woman was identified as 22-year-old Kelly M. Her mother reported her
missing on March 17. She had given Kelly a white Mitsubishi Lancer. On March 11,
Kelly’s mother saw defendant driving the Lancer with Kelly as a passenger.
April Scharff was collecting cans and bottles from a dumpster by a nearby Circle
K store on March 16 when she found a pillowcase containing women’s clothing, and a
backpack. The backpack contained Kelly’s journal and a torn camisole. A friend
identified the camisole as Kelly’s; when Kelly wore it a few days earlier, it was not torn.
Video surveillance from the Circle K showed defendant was inside the store on March 15
at 8:14 p.m. and at 11:54 a.m. on March 16.
A surveillance video showed that on March 15, at 10:27 p.m., a man2 with a white
shirt pulled over his head placed a comforter containing a body in the dumpster, pulled
the comforter away so the body rolled out, and then covered the body with a cardboard
box from the dumpster. A comforter with that design and a pillow were found missing
from room 117 of the Pacific Express Inn, a low budget hotel in Manteca. The hotel was
0.8 miles from where Kelly’s body was found. The room was registered to Kelly from
March 13 through March 16, and defendant was seen in the room for several days before
the comforter disappeared. An unplugged table lamp was found on the floor.
Defendant was at the Pacific Express Inn on March 13 with Kelly and her friends
Ashley Noonan, Brittany Westerdale, and Westerdale’s boyfriend Benjamin Voget.
Kelly smoked methamphetamine while defendant drank vodka. Defendant sold some
marijuana to Noonan, who testified that defendant and Kelly interacted like business
partners who were trying to sell various items. They did not appear to have any romantic
relationship with each other. At one point, defendant told Kelly in a rude voice to pick
her stuff up from the bed.
2 During closing argument, defense counsel admitted defendant was the person who
dumped Kelly’s body in a dumpster.
3
Defendant and Voget then took Kelly’s car to go to Stockton; defendant drove.
They went to several liquor stores. During the drive, defendant told Voget he wanted to
get to know Kelly and thought Voget’s girlfriend Westerdale could help him with this.
Voget told defendant Kelly would like whom she chooses and nothing he could do would
help persuade her to do anything.
Heading back to Manteca, defendant lost control of the car and got it stuck in a
drainage ditch by the onramp to Interstate 5. As the Highway Patrol was arriving,
defendant told Voget to say that he rather than defendant was driving the car. Defendant
first told the responding officers that someone else had been driving the car, and then
tried to blame Voget. Defendant’s voice was raspy and slurred; when officers tried to
arrest him, he ran across the southbound lanes and onto the center median. The officers
had to use a taser to arrest defendant. Defendant was booked into San Joaquin County
Jail at 5:19 a.m. on March 14 and released that day at 11:24 a.m. Kelly’s car was towed
away at this time.
Voget returned to the hotel without defendant and he and Westerdale slept there
for a while. Later on March 14, Westerdale and Voget went to Voget’s parents’ house;
Westerdale talked to Kelly on her cell phone at 8:30 p.m.
On March 15, Bryan McDonald gave defendant a ride to Stockton at the request of
McDonald’s friend Skip. Defendant told McDonald he needed to pay for an impounded
car that he had crashed. At one point, defendant purchased cocaine and marijuana,
combined them into a “chewy” cigarette, and smoked it. He told McDonald that he did
not want to pay for Kelly’s car, and something like it was not his fault. On the way back
to Manteca, defendant told McDonald he had a “sexy” or “hella pretty” woman waiting
for him, a girl who was “wife material.”
Defendant and McDonald returned to the Pacific Express Inn before 11:45 a.m.
Defendant invited McDonald into the room to smoke some marijuana and get gas money.
4
Kelly was in the room when McDonald entered and got $20 gas money from defendant.
McDonald left after about five minutes.
DNA from the cardboard box covering Kelly’s body in the dumpster matched
defendant’s. Defendant’s DNA was also found on samples taken under Kelly’s
fingernails. Swabs from Kelly’s breasts had the DNA of two people; Kelly was the major
contributor and defendant the minor. The lamp cord from the hotel room contained the
DNA of four or five persons, a mixture too complex to identify contributors.
DISCUSSION
I
Third Party Evidence
Defendant contends the trial court denied his rights to confrontation and to present
a defense by sustaining the prosecution’s objections to the defense introducing various
statements in police reports through the cross-examination of the lead investigator in this
case. We disagree.
A. Background
The prosecution filed a pretrial motion to exclude various tips related in the police
report regarding the culpability of persons other than defendant for the murder. Among
the possible suspects named in these tips were Kelly’s ex-boyfriend Devon Martin, David
Olivera, and Brandon Beatty. The motion pointed out how the other suspects had been
cleared, and asserted there was no reliable direct or circumstantial evidence linking any
of them to Kelly’s murder.
Defense counsel filed an opposition asserting defendant had a right to cross-
examine officers regarding whether they had neglected to pursue plausible leads about
third parties. The reply asserted this was particularly true with respect to Devon Martin,
because Kelly had recently broken up with him, had begun dating his best friend Zakk
Vance, and Kelly had reportedly said Martin would kill her if he found out. Counsel
further asserted Martin had reportedly abused Kelly, Martin had obtained a love poem
5
Kelly had written to Vance, and Martin had made an incriminating statement to his
mother, Christina Zuk. Counsel also claimed discovery materials showed Kelly’s phone
called Zakk Vance after her body was found in the dumpster, and officers did not ask
Vance about the call until early 2017.
During a pretrial hearing on the motion, the prosecutor stated that his motion listed
“pretty much” every person that the police were told could have been a possible suspect,
the Manteca police investigated all of them, and determined they were not suspects. The
prosecutor also noted none of these people had a motive or were seen around the victim
at the time of her death. Defense counsel replied, “that this was a case where there was a
lot of noise, apparently people were willing to make accusations in a very flagrant
manner; however, I disagree that it’s really an issue of third party culpability.” Rather
than a third party culpability defense, where defendant would present evidence that
another person committed the crime, here the defense sought “to show that a reasonable
doubt exists, based upon the unwillingness or inability of the police to pursue plausible
investigative leads in this case.” The trial court deferred ruling on the motion until
hearing the prosecution’s case-in-chief.
The prosecutor noted in his opening statement that there were other suspects in the
early stages of the investigation, Kelly’s ex-boyfriend Devon Martin, and two other men,
David Olivera and Brandon Beatty, who came to the hotel room after defendant and
Voget left in Kelly’s car on March 13. The prosecutor told the jury defendant became the
focus of the investigation when defendant’s DNA showed up on Kelly’s body and on the
box in the dumpster. Defense counsel argued in opening that no one knows who killed
Kelly and the evidence would not show that defendant did it.
Following the direct examination of the lead investigator in the case, Manteca
Police Sergeant Steven Schluer, defense counsel sought permission to question Sergeant
Schluer about following up investigative leads. Counsel asserted this was not offered as
third party culpability evidence, and while the questioning would rely on hearsay
6
statements, the statements would not be offered for their truth but for the officer’s state of
mind. In particular, the defense sought to question Sergeant Schluer about Devon Martin
and Zakk Vance.
The prosecutor replied that all of the evidence involved hearsay or multiple levels
of hearsay. For example, one statement the defense referred to was characterized by the
prosecutor as “some talk that Kelly said she was afraid Devon [Martin] might kill her if
. . . [he] found out about some letter . . . nobody even knows if [he] found the letter.” The
prosecutor additionally noted that in this same statement Kelly said she was afraid
defendant would cut her head off.
The trial court stated defense counsel was “entitled to ask the officer questions
about what he did do, what he didn’t do, to whom he spoke, and the names of the people
to whom he did not speak.” It also found a constitutional issue on the limitation on
hearsay by expert witnesses as stated in People v. Sanchez (2016) 63 Cal.4th 665
(Sanchez), and posited that the limitation on using hearsay applied even more so here
because Sergeant Schluer was not an expert witness.3 Accordingly, while the defense
could ask the officer, “did you investigate this, did you talk to this witness, did you lift a
fingerprint off this, did you try to get a print, so on and so forth,” getting into hearsay
statements was a different problem.
The trial court stated the defense could call witnesses with firsthand knowledge of
the relationship between Martin and Kelly, but defense counsel replied that such
witnesses were unavailable. Counsel noted that one of the statements he wished to
question Sergeant Schluer about was a statement by Devon Martin’s father Drew Martin,
that Devon Martin’s mother, Christina Zuk, told him that Devon called her and said he
3 Later, the trial court stated that Sanchez was limited to case specific issues, this
case did not involve an expert witness, and that it mentioned the Sanchez decision for
“context.”
7
wanted to move out to Arizona with her because he had nowhere to go, nowhere to stay,
had broken up with his girlfriend, and was in trouble in California. Defense counsel told
the court that allegations of abuse by Devon Martin against Kelly were supported by two
witnesses, although it was not clear what they said. The prosecutor replied that neither
witness could describe any injury to Kelly and said only that she could have been the
victim of abuse. The court ruled that the defense could not ask Sergeant Schluer about
statements in police reports regarding Martin’s relationship with Kelly and statements he
might have made after they broke up. Counsel could ask if Sergeant Schluer “spoke to
these witnesses and if he did any follow-up as a result of speaking to the witnesses, but as
far as [what] they said, I don’t think it’s appropriate to ask.” The court noted that in
addition to the hearsay issues, the probative value of the statements was outweighed by
their prejudicial effect on the prosecution.
Regarding the phone call to Zakk Vance after Kelly’s body was found in the
dumpster, the prosecutor stated that about three minutes after Kelly was put in the
dumpster, her phone first dialed a nine for about 22 seconds and then dialed Zakk
Vance’s phone for about two seconds. The trial court ruled that the defense could elicit
evidence of the call, as well as the fact that Devon Martin asked to see a photograph of
defendant when he was questioned about the case.
B. Analysis
Defendant contends the trial court denied him the right to confrontation by
foreclosing questioning about all information police received concerning Devon Martin’s
possible involvement in the murder. He contends the proffered cross-examination had
the nonhearsay purpose of showing the police failed to investigate leads, and the trial
court’s ruling to the contrary was based on an incorrect reading of Sanchez, supra,
63 Cal.4th 665. Arguing that the evidence satisfied the standard for third party
culpability evidence, defendant concludes the trial court prejudicially erred.
8
The Sixth Amendment affords all defendants the right to confront and cross-
examine witnesses against them. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678
[89 L.Ed.2d 674, 683] [the right of cross-examination is “secured for defendants in state
as well as federal criminal proceedings”].) The defense is typically given wide latitude to
test the credibility of such witnesses, but the trial court may still place reasonable limits
on defense counsel’s inquiries. (People v. Pearson (2013) 56 Cal.4th 393, 455.) Trial
courts have broad discretion to impose reasonable limits on cross-examination, “based on
concerns about, among other things, harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation that is repetitive or only marginally relevant.” (Van
Arsdall, at p. 679 [89 L.Ed.2d at p. 683]; see Pearson, at p. 454 [“trial courts have broad
discretion ‘ “to prevent criminal trials from degenerating into nitpicking wars of attrition
over collateral credibility issues . . . .” ’ ”].) “ ‘[T]he Confrontation Clause guarantees
only “an opportunity for effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the defense might wish.” ’
[Citations.]” (United States v. Owen (1988) 484 U.S. 554, 559 [98 L.Ed.2d 951, 957].)
“[T]hird party culpability evidence is admissible if it is ‘capable of raising a
reasonable doubt of [the] defendant’s guilt,’ but . . . ‘[w]e do not require that any
evidence, however remote, must be admitted to show a third party’s possible
culpability. . . . [E]vidence of mere motive or opportunity to commit the crime in another
person, without more, will not suffice to raise a reasonable doubt about a defendant’s
guilt: there must be direct or circumstantial evidence linking the third person to the
actual perpetration of the crime.’ [Citation.]” (People v. Robinson (2015) 37 Cal.4th
592, 625.) “[I]n making these assessments ‘courts should simply treat third-party
culpability evidence like any other evidence: if relevant it is admissible [citation] unless
its probative value is substantially outweighed by the risk of undue delay, prejudice or
confusion [citation].’ ” (Ibid.)
9
A trial court has broad discretion in deciding the admissibility of all evidence,
including hearsay evidence. (People v. Beeler (1995) 9 Cal.4th 953, 978.) We review
any trial court ruling on admissibility of evidence for abuse of discretion. (People v.
Alvarez (1996) 14 Cal.4th 155, 201.) Of course, the scope of discretion always resides in
the particular law being applied, such that we determine as a question of law whether the
trial court applied an incorrect legal standard. (People v. Parmar (2001) 86 Cal.App.4th
781, 793.)
Defendant relies primarily on Alvarez v. Ercole (2nd Cir. 2014) 763 F.3d 223
(Alvarez). In support of “his main defense theory[] that the police investigation into the
murder was flawed and had improperly disregarded a promising alternate suspect,”
Alvarez sought to elicit testimony from the lead detective about a police report that
identified someone other than Alvarez as a potential suspect. (Id. at pp. 225, 228.) The
state trial court erred by precluding this line of inquiry on hearsay grounds and failing to
recognize that Alvarez offered the testimony for the nonhearsay purpose of showing that
law enforcement failed to conduct a proper investigation. (Id. at p. 225.) In doing so, the
Second Circuit panel concluded that the trial court violated Alvarez’s rights under the
Confrontation Clause because, “by cutting off this line of questioning,” the court’s
evidentiary rulings “effectively denied Alvarez the opportunity to develop his only
defense” and “left Alvarez without any support for his theory of the case.” (Id. at
pp. 225, 232.)
The evidence supporting the alternative suspect was much stronger in Alvarez than
here. Alvarez was charged in a drive-by shooting in which no forensic evidence tied him
to the case, and no witnesses could identify the shooter on the day of the shooting.
(Alvarez, supra, 763 F.3d at p. 226.) A person named Vasquez told the police shortly
after the murder that his acquaintance Julio Guerrero told Vasquez that he had killed a
man for insulting him and his wife. (Id. at pp. 226-227.) Vasquez gave the police
Guerrero’s phone number, but the police never called or contacted Guerrero. (Id. at
10
p. 227.) By contrast, none of the tips that defendant sought to use in cross-examination
implicated any other person in Kelly’s murder. At most, the hearsay statements were
minimally probative of a jealousy motive for Devon Martin. However, such relevance is
undercut by the fact that the best evidence supporting this theory, Kelly’s statement that
Martin would kill her if he found a letter she sent, also contained the statement that
defendant would cut her head off. Likewise, Martin’s cryptic statement that he was in
trouble in California does not approach the relevance of the statement in Alvarez where
the other suspect admitted committing a murder. The phone call to Kelly’s boyfriend
Zakk Vance, a 22-second call to the number nine followed by a two-second call to Vance
is consistent with an accidental call. Finally, unlike Alvarez, there was forensic evidence
implicating defendant, his DNA on the box, Kelly’s breasts, and under her fingernails,
and he was seen placing her body in the dumpster.
Even assuming Alvarez is correct and evidence of police failure to investigate tips
can be admissible for a nonhearsay purpose, the court here was well within its discretion
to exclude the proposed line of questioning under Evidence Code section 352. 4 The
relevance was slight. Kelly’s statement that Martin would kill her shows no more than a
possible motive to kill her, which is no more than minimally relevant without other
evidence tying Martin to the murder. Likewise, the statement by Martin’s mother that her
son called her and said he was in trouble does not in any way raise doubt about the
prosecution’s case as there is no evidence tying this statement to the charged crime. The
leads the police did not follow up on here were not third party culpability evidence; the
4 We also reject defendant’s claim the trial court improperly relied on Sanchez. The
court initially did make some statements relating Sanchez’s hearsay analysis to the case
before it, but eventually noted this case did not involve expert testimony and that Sanchez
was mentioned only to provide context. Since we uphold the trial court’s ruling on its
separate Evidence Code section 352 analysis, any reliance on Sanchez is irrelevant to our
ruling.
11
fact that someone else may have had a motive to kill the victim is useless without
additional evidence. Furthermore, even defense counsel admitted third party culpability
was not a defense theory. The theory of the defense at trial, that there was insufficient
evidence that defendant killed the victim, was not supported by the tips at issue here.
Allowing the defense to raise the failure to follow these leads would introduce confusing
and irrelevant evidence. Since the trial court’s decision was correct under Evidence Code
section 352, the right to confrontation is not implicated. (People v. Quartermain (1997)
16 Cal.4th 600, 623 [“notwithstanding the confrontation clause, a trial court may restrict
cross-examination of an adverse witness on the grounds stated in Evidence Code section
352”]; People v. Harris (2005) 37 Cal.4th 310, 336 [“the application of ordinary rules of
evidence does not implicate the federal Constitution”].)
We are similarly unconvinced by defendant’s theory of admissibility as third party
culpability evidence. First, defense counsel expressly disclaimed this theory, forfeiting
the claim on appeal. Furthermore, as noted, the evidence was minimally relevant to
motive and nothing else, and therefore did not meet the standard of admissibility for third
party culpability evidence.
II
Victim Hearsay Statements
During the direct examination of Brittany Westerdale, she testified that when he
came back to the room with another woman with whom he had spent time, defendant said
to Kelly, referencing the other woman: “That’s the kind of girl that would take your
boyfriend,” to which Kelly replied, “You’re not my boyfriend.” Defendant made a mean
comment to Kelly about 20 to 30 minutes after she said he was not her boyfriend.
Defendant raised a hearsay objection; the prosecutor replied it was offered to show the
victim’s state of mind, that she was not sexually interested in defendant. The trial court
admitted the statement as state of mind evidence pursuant to Evidence Code section
1250.
12
Later, Westerdale testified that she called Kelly with her boyfriend Voget’s phone
at 8:30 p.m. on March 14. She said that Kelly told her she was waiting for defendant,
who was going to help get her car out of impoundment. Defendant made a hearsay
objection. The court found it admissible as state of mind evidence and under Evidence
Code section 1241 as a contemporaneous statement.
Defendant contends both hearsay rulings were prejudicial error.
Kelly’s statement that defendant was not her boyfriend was admissible for a
nonhearsay purpose. An extrajudicial statement offered for some purpose other than to
prove the fact stated therein is not hearsay. (People v. Bolden (1996) 44 Cal.App.4th
707, 714.) Bolden resolves the admissibility of Kelly’s statement that defendant was not
her boyfriend. The defendant in Bolden was dating Barry, who lived with her godmother,
Griffin, in an apartment building. (Id. at p. 711.) Griffin disapproved of Bolden and told
Barry to tell Bolden he was not welcome at their residence. (Ibid.) After Barry did so,
Bolden threw Molotov cocktails at the apartment. (Id. at pp. 711-712.) Over a defense
hearsay objection, the People introduced Barry’s testimony that she had told Bolden that
Griffin said he should not come around the residence. (Id. at p. 714.) Bolden held the
statement was not hearsay because it was not offered to prove the truth of the matter
asserted, i.e., that Griffin had actually said Bolden was not welcome. “The subject
communication was not hearsay because it was not ‘offered to prove the truth of the
matter stated.’ It was offered to prove motive: appellant Bolden, upon hearing the
communication, had reason to be angry with Ms. Griffin. [¶] Such communication,
offered for such a purpose, is not hearsay. [Citations.]” (Id. at p. 715.)
The same applies here. There was evidence defendant was romantically or
sexually interested in Kelly; he made statements that she was attractive, was wife
material, and asked for help in connecting with her. However, there was also other
evidence she did not reciprocate, that she and defendant had a more businesslike
relationship. Her retort to defendant’s flirtatious statement was admissible not to show
13
that he was not, in fact, her boyfriend, but that she said this to him in front of another
person, thus potentially angering or humiliating him, which is evidence of his motive to
kill her. While the trial court found it admissible as evidence of Kelly’s state of mind, we
need not address the correctness of this assertion, as we review the results of the court’s
actions rather than its reasons. (Florio v. Lau (1998) 68 Cal.App.4th 637, 653 [“In
reviewing a trial court’s decision, we review the result, not the reasoning. A decision
right in result will not be reversed because it is based on an erroneous theory”].)
Kelly’s statement that she was waiting for defendant is another matter.
Evidence Code section 1250 provides for the admission into evidence “of a
statement of the declarant’s then existing state of mind, emotion, or physical sensation
(including a statement of intent, plan, motive, design, mental feeling, pain, or bodily
health)” when “offered to prove the declarant’s state of mind, emotion, or physical
sensation at that time or at any other time when it is itself an issue in the action.” (Id.,
subd. (a)(1).) However, this provision “does not make admissible evidence of a
statement of memory or belief to prove the fact remembered or believed.” (Id., subd.
(b).)
Also, an out of court statement is not hearsay if “offered to explain, qualify, or
make understandable conduct of the declarant” and the statement is “made while the
declarant was engaged in such conduct.” (Evid. Code, § 1241.)
Kelly’s statement did not describe her state of mind and her state of mind at the
time was not at issue. It also does not explain Kelly’s conduct. As the Attorney General
properly concedes, it was inadmissible.
This nontestimonial statement does not implicate defendant’s right to
confrontation and its erroneous admission did not deprive him of the right to a fair trial.
Accordingly, we examine the error under People v. Watson (1956) 46 Cal.2d 818.
(People v. Duarte (2000) 24 Cal.4th 603, 619 [Watson standard is applicable to state law
error in admission of hearsay].) There was ample evidence that defendant and Kelly
14
were in close proximity before she was murdered; they shared the hotel room where she
was likely murdered, and defendant put her body in the dumpster. In addition, a witness,
McDonald, saw defendant with Kelly in the hotel room together on the day of the
murder, which minimizes the importance of the erroneously admitted hearsay by
providing independent proof that defendant was in the room with Kelly on the day of her
murder. It is not reasonably probable that defendant would obtain a more favorable result
if this hearsay was not admitted.5 (Watson, at p. 836.)
III
Dueñas
Defendant contends remand is required for an ability to pay hearing with respect
to the restitution fine, and court operations and conviction assessments. He cites in
support Dueñas, supra, 30 Cal.App.5th 1157, which held that due process requires the
trial court to stay execution of restitution fines, as well as court operation and conviction
assessments, until it has held a hearing and determined the defendant has the present
ability to pay.
We join the courts concluding Dueñas was wrongly decided and hold that
defendant was not entitled to an ability to pay hearing for the restitution fine, or the
conviction and operation assessments. (People v. Kingston (2019) 41 Cal.App.5th 272,
279; People v. Hicks (2019) 40 Cal.App.5th 320, 322, review granted Nov. 26, 2019,
S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1060; People v. Caceres (2019)
39 Cal.App.5th 917, 920.) We therefore reject the contention.
5 Since we find only one error and conclude it was harmless, defendant’s claim of
cumulative error is without merit.
15
DISPOSITION
The judgment is affirmed.
/s/
BLEASE, J.
We concur:
/s/
RAYE, P. J.
/s/
DUARTE, J.
16