People v. Roller CA4/2

Filed 6/1/21 P. v. Roller 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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, E074909

v. (Super.Ct.No. BAF1800544)

CHRISTOPHER LANCE ROLLER, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Alfonso Fernandez,

Judge. (Retired judge of the Santa Clara County Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Susan S. Bauguess, 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, Senior Assistant Attorney General, and Eric A. Swenson and

Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.

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 Defendant Christopher Lance Roller and a friend entered a house while the

occupant was out of town. When a neighbor challenged them, they said they were there

to clean the house, at the occupant’s request. The occupant later found $3,000 and other

items missing. Defendant took the stand and testified that he entered the house only

because his friend seemed to be doing work there and asked him for a bid to clean it up.

In a jury trial, defendant was found guilty of one count of first degree burglary.

(§§ 459, 460, subd. (a).)1 He was sentenced to four years (the midterm) in prison.

Defendant now contends:

1. There was insufficient evidence of criminal intent to support defendant’s

conviction for burglary.

2. Defendant’s statements to the police were obtained in violation of Miranda v.

Arizona (1966) 384 U.S. 436 (Miranda) and its progeny.

3. Because the trial court found that defendant was not able to pay certain fees, it

erred by imposing other fees and fines.

Finding no prejudicial error, we will affirm.

1 These and all further statutory citations are to the Penal Code, unless
otherwise indicated.

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 I

STATEMENT OF FACTS

A. Prosecution Case.

Victim Joe Lucero lived alone at a house on High Street in Cherry Valley. On

April 1, 2018, he went to visit his mother in Colton. Before leaving, he locked his back

door with a padlock. He asked his next-door neighbors, Joel and Annette Sappingfield,

“to keep an eye on his house” while he was away.

Around 2:30 p.m., the Sappingfields noticed a white utility pickup truck in

Lucero’s driveway. Joel Sappingfield knocked on Lucero’s back door three times over

the span of two or three minutes.2 Finally, defendant answered the door. He was

wearing a neon orange vest. A Hispanic man was behind him.

Sappingfield asked if Joe was there. The Hispanic man said no. The Hispanic

man said they were cleaning the house for Joe. This made Sappingfield suspicious,

because he had offered to help Lucero clean his house, but Lucero had declined.

Sappingfield asked them for a work order or a business card. Defendant said, “Let

me go to the truck to get it.” He and the Hispanic man went to the truck and got in. The

truck drove off “[v]ery recklessly,” hitting a fence and almost hitting the Sappingfields’

truck.3 Annette Sappingfield called 911. She gave the license number of the truck.

2 Sappingfield later told police the back door was open.
3 According to Annette Sappingfield, the Hispanic man was driving.
According to Joel Sappingfield, however, defendant was driving. When defendant took
the stand, he admitted that he was driving.

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 A responding police officer found a cut padlock lying outside Lucero’s back door.

Later, Lucero found that approximately $3,000 was missing, along with a portable grill,

hand tools, knives, hatchets, and medication.

The truck was registered to defendant at an address about a 10-minute drive away.

Police officers went to that address. They spoke to Ashley Lockwood, who lived there.

Defendant lived in a different house on the same property.

Lockwood led the officers to defendant’s truck. It was not in defendant’s usual

parking space, which was visible from the street. Instead, it was parked in another

location where he sometimes parked, “near the back of the property behind some dirt

mounds.” It had the license number that Annette Sappingfield had reported.

Lockwood also told the police that she had seen a brown Ford F-150 pickup truck,

which she associated with a Hispanic man, at defendant’s house earlier that day.

The officers then contacted defendant, who was raking in his front yard. They

placed him in the back of a police car. He was cooperative. He told the police they could

search his truck; however, they found it locked, and the keys were locked inside. A neon

construction vest was visible in the back seat.

When the police asked, “Who’s the guy in the brown truck?,” he said it was his

friend Rey Rodriguez. He told them how to find a house where Rodriguez lived (or

perhaps used to live).

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 The police brought Joel Sappingfield to the scene. In an in-field showup, he

identified defendant. The next day, in a photo line-up, Sappingfield identified Rey

Rodriguez as the Hispanic man.

B. Defense Case.

Defendant testified that he was an electrician. Rodriguez was a friend and

occasional coworker. Rodriguez phoned defendant and asked for a ride; he gave what

turned out to be Lucero’s address. When defendant arrived, Rodriguez was in the front

yard. Rodriguez asked him for an estimate to clean the yard. Defendant was not

interested. Rodriguez then led defendant inside the house and asked for an estimate to

clean the interior. Again, defendant was not interested. He did not think about taking

anything; “Why would I take someone’s trash?”

When Joel Sappingfield knocked, defendant answered the door within five

seconds. Sappingfield was “very rude, very agitated.” He asked for their identification.

As defendant and Rodriguez started walking to the truck, Sappingfield said “Don’t go

anywhere. I’m getting my gun.”4

Rodriguez said, “Let’s get out of here. This isn’t good.” He added that “he

couldn’t have police contact” because “he had gang enhancement charges and weapons

manufacturing charges.” Defendant was scared, so he left and drove home. He started

4 At trial, Joel Sappingfield denied making any such threat. He did not even
own a gun. At the preliminary hearing, he said he did not think he made the threat;
however, after being asked “over and over again,” he conceded, “It’s possible.”

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raking his yard while Rodriguez walked out to the street; a woman came and picked

Rodriguez up.

About five minutes after defendant got home, the police arrived. Because it was

April 1, he thought at first that he was the victim of an April Fool’s prank. He told the

police, falsely, that he was never at Lucero’s house, because he was afraid of them and

afraid of Rodriguez. However, he admitted that, despite his supposed fear of Rodriguez,

he did tell them where Rodriguez lived. Defendant claimed that he also told police that a

man (i.e., Sappingfield) had threatened him, but “none of that made it on the record.”

C. Prosecution Rebuttal.

On rebuttal, a video of defendant’s statement to the police was played. After

being given Miranda warnings, he denied being on High Street that day. He said he had

been driving around looking for his girlfriend, but on Brookside Avenue, not on High

Street. He denied having been with Rodriguez.

II

THE SUFFICIENCY OF THE EVIDENCE OF CRIMINAL INTENT

Defendant contends that there was insufficient evidence of criminal intent to

support his conviction for burglary.

“‘When considering a challenge to the sufficiency of the evidence to support a

conviction, we review the entire record in the light most favorable to the judgment to

determine whether it contains substantial evidence — that is, evidence that is reasonable,

credible, and of solid value — from which a reasonable trier of fact could find the

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defendant guilty beyond a reasonable doubt.’ [Citation.] We determine ‘whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.’

[Citation.] In so doing, a reviewing court ‘“‘presumes in support of the judgment the

existence of every fact the trier could reasonably deduce from the evidence.’”

[Citation.]’ [Citation.]” (People v. Morales (2020) 10 Cal.5th 76, 88.)

“Burglary is committed when a person ‘enters any . . . building’ with the intent of

committing ‘larceny or any felony.’ [Citation.]” (People v. Yarbrough (2012) 54 Cal.4th

889, 890; see § 459.)

Essentially, defendant argues that the evidence was consistent with his testimony

that he entered the house at Rodriguez’s request, thinking that they both had the right to

be there. The very premise of that testimony, however, was not credible. If Rodriguez

was in the process of burglarizing a house, he might well phone defendant and ask for a

ride. He would not, however, ask defendant how much he would charge to clean up the

yard. And he certainly would not invite defendant inside the house and ask how much he

would charge to clean it up. Rather, he would hop in defendant’s truck and absquatulate.

Moreover, defendant’s testimony does not account for the missing loot. Maybe

Rodriguez could conceal the $3,000 and the medication on his person, but not the

portable grill, hand tools, knives, and hatchets. For these to be missing, either defendant

or Rodriguez had to load them into defendant’s truck. Moreover, when they arrived at

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defendant’s house, either defendant or Rodriguez had to offload them. It is inconceivable

that this could occur without defendant’s knowledge.

Defendant claimed that Rodriguez walked out to the street; he saw a woman pick

him up. If so, however, Rodriguez had to be carrying a portable grill, hand tools, knives,

and hatchets — which defendant did not mention.

Defendant also did not credibly explain why he did not park in his usual parking

space. He claimed he had the right to park there, and he did park there sometimes. On

cross-examination, however, he was asked:

“Q. . . . So you parked at a place where it would take you 75 yards to get back to

your own house . . . and . . . Rodriguez would have to cross an extra 75 yards to get back

to the street?

“A. Yes, sir.

“Q. Any reason for that?

“A. No, sir.”

Reasonable jurors could believe Joel Sappingfield’s testimony that he did not

threaten defendant and disbelieve defendant’s testimony that Sappingfield did. On that

view of the evidence, there was no credible explanation for why defendant drove away so

hastily, hitting a fence and nearly hitting the Sappingfield’s truck in the process — except

that he had been caught flat-footed in the commission of a burglary.

Similarly, Sappingfield testified that he knocked on the door three times, over two

or three minutes, before defendant answered. Defendant claimed that Sappingfield

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knocked for only five seconds. Reasonable jurors could believe Sappingfield; hence,

they could conclude that defendant’s delay showed consciousness of guilt.

Defendant also contradicted himself about his movements after Rodriguez phoned

him. On direct, he testified that Rodriguez phoned him around 11:30 a.m. At that time,

defendant was practicing welding at a friend’s house. He was wearing his neon work

vest because he did not want to burn his shirt. He “stopped and went to go pick

[Rodriguez] up.” His apparent point was to explain why he was wearing the vest at

Lucero’s house; otherwise, a reasonable inference would be that he was trying to give the

false impression that he was there to do legitimate work.

On cross, however, when confronted with the fact that he was at Lucero’s house

around 2:45 p.m., defendant corrected himself and said Rodriguez phoned him around

1:30 p.m.; he then further corrected that to 2:00 p.m. He added that he took some time to

“clean up from welding.” Apparently to explain why he did not take his vest off, despite

admitting now that he cleaned up, he testified that he “normally drive[s] around with [his]

vest on,” “[e]ven when . . . not on the job.”

On rebuttal, the prosecution introduced defendant’s statement to the police, in

which he said he had been driving around looking for his girlfriend. On surrebuttal, he

claimed that that was true. “[T]hat [was the] hour you couldn’t account for earlier.”

After Rodriguez phoned, defendant drove around looking for his girlfriend for an hour,

“[g]ive or take,” before actually going to pick Rodriguez up. Nevertheless, Rodriguez

did not phone him during this time.

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 In short, defendant was destroyed on cross.

Last but not least, defendant was impeached by his statements to the police. The

jurors could reason that an innocent man would have told the police the same story to

which he eventually testified. Defendant claimed that he was afraid of Rodriguez;

nevertheless, he admittedly gave the police Rodriguez’s name and “told them where to

find Rey.”

For these reasons, there was substantial evidence that defendant knew he was not

supposed to be in Lucero’s house and that he entered it with the intent to steal Lucero’s

stuff.

III

THE ADMISSIBILITY UNDER MIRANDA AND SEIBERT

OF DEFENDANT’S STATEMENTS TO THE POLICE

Defendant contends that the police failed to give him Miranda warnings before

they initially questioned him. Also, while they did eventually give him Miranda

warnings before they questioned him further, such “midstream Miranda warnings” are

ineffective. Therefore, the trial court erred by admitting his responses to both the pre-

and post-Miranda questioning.

A. Additional Factual Background.

The trial court held an Evidence Code section 402 hearing. The evidence at that

hearing showed the following.

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 Defendant was a suspect because a truck registered to him had been identified as

involved in the crime and was found at his home.

Deputy Robert Ochoa and a second officer contacted defendant, detained him, and

put him in the back of a police car. Defendant was not handcuffed, but he was locked in.

The purpose of the detention was to hold him while a witness (i.e., Joel Sappingfield) was

brought for an in-field show-up.

While they were waiting, Deputy Ochoa “asked him who his friend was that drives

the brown truck.” He said that was his friend Rey. Deputy Ochoa asked where Rey

lived. Defendant said he did not know the address, but he explained how to get there and

how to identify the house.

Deputy Ernesto Elenes brought the witness to the scene. Once the witness

identified defendant,5 Deputy Elenes handcuffed defendant and told him he was under

arrest. Deputy Elenes drove the witness home, then drove back to the scene; this took

about 30 minutes. He gave defendant Miranda warnings, and defendant agreed to talk to

him.

B. Additional Procedural Background.

Defendant filed a motion to exclude his statements to the police, based on

Miranda. He argued that, once he was handcuffed and put in the police car, he was in

5 Deputy Elenes parked the witness about 200 yards from defendant, who
was still in the police car. The witness could not see defendant well enough to make an
identification. Deputy Elenes therefore walked to the police car, took a photo of
defendant, and showed it to the witness, who then identified him.

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custody and entitled to Miranda warnings. He also argued that, under Missouri v. Seibert

(2004) 542 U.S. 600 (Seibert), “Miranda warnings given mid-interrogation, after a

defendant gives an unwarned confession, are ineffective . . . .”

The prosecution filed an opposition. It argued that defendant “was briefly

detained for the purpose of an identification . . . .” It also argued that the evidence did

not show the kind of two-step interrogation prohibited by Seibert.

After hearing argument, the trial court denied the motion. It explained: “While I

can see there being some parallels to the Seibert case, I think there’s also some

differences that are distinguishable. The pre-Miranda statements came in, it was not

even accusations of what it was that they were thinking Mr. Roller had — the crime he

had committed. They’re asking about [Rodriguez’s] truck. That changed after defendant

was identified by the witnesses in this case, and he was appropriately given his Miranda

rights and he waived them and made statements.”

C. Discussion.

“[W]hen an individual is taken into custody . . . [h]e 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.” (Miranda, supra, 384 U.S. at pp. 478-479.) “Statements taken in

violation of Miranda are inadmissible in the government’s case-in-chief.” (People v.

Caro (2019) 7 Cal.5th 463, 492.)

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 “On review, ‘“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.”’ [Citations.]” (People v. Henderson

(2020) 9 Cal.5th 1013, 1023.)

“Miranda warnings are due only when a suspect interrogated by the police is ‘in

custody.’” (Thompson v. Keohane (1995) 516 U.S. 99, 102.) “Custody consists of a

formal arrest or a restraint on freedom of movement of the degree associated with a

formal arrest. [Citations.] When there has been no formal arrest, the question is how a

reasonable person in the defendant’s position would have understood his situation.

[Citation.]” (People v. Moore (2011) 51 Cal.4th 386, 395.)

The fact that defendant was not free to leave, standing alone, is not determinative.

In an investigative detention (also known as an investigative stop or a Terry stop; see

Terry v. Ohio (1968) 392 U.S. 1), the suspect is not free to leave but nevertheless is not in

custody for purposes of Miranda.

“Under the Fourth Amendment, . . . a policeman who lacks probable cause but

whose ‘observations lead him reasonably to suspect’ that a particular person has

committed, is committing, or is about to commit a crime, may detain that person briefly

in order to ‘investigate the circumstances that provoke suspicion.’ [Citation.] ‘[T]he stop

and inquiry must be “reasonably related in scope to the justification for their initiation.”’

[Citation.] Typically, this means that the officer may ask the detainee a moderate number

of questions to determine his identity and to try to obtain information confirming or

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dispelling the officer’s suspicions. But the detainee is not obliged to respond. And,

unless the detainee’s answers provide the officer with probable cause to arrest him, he

must then be released.” (Berkemer v. McCarty (1984) 468 U.S. 420, 439-440, fns.

omitted.) In light of “[t]he comparatively nonthreatening character of detentions of this

sort,” “persons temporarily detained pursuant to such stops are not ‘in custody’ for the

purposes of Miranda.” (Berkemer at p. 440; accord, Howes v. Fields (2012) 565 U.S.

499, 510; Maryland v. Shatzer (2010) 559 U.S. 98, 113; People v. Clair (1992) 2 Cal.4th

629, 679 [“Generally, [custody] does not include a temporary detention for

investigation.”]; but see People v. Pilster (2006) 138 Cal.App.4th 1395, 1405-1406.)

“‘[T]here is no hard and fast line to distinguish . . . investigative detentions from

. . . de facto arrests. Instead, the issue is decided on the facts of each case, with focus on

whether the police diligently pursued a means of investigation reasonably designed to

dispel or confirm their suspicions quickly, using the least intrusive means reasonably

available under the circumstances.’ [Citations.] Important to this assessment, however,

are the ‘duration, scope and purpose’ of the stop. [Citation.]” (People v. Celis (2004) 33

Cal.4th 667, 674-675.)

Except in one respect, People v. Craig (1978) 86 Cal.App.3d 905 (Craig) is on all

fours with this case. (Perhaps we should say it is on all threes.) There, officers placed

several robbery suspects in the back of the police car. The robbery victim was brought to

the scene. He identified two of the suspects (including defendants Craig and Turner).

All of the suspects were then taken to the police station. (Id. at p. 911.)

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 The Craig court relied on People v. Harris (1975) 15 Cal.3d 384. Harris had held

that, under the circumstances there, transporting the defendant to the scene of the crime

to see if a witness could identify him was unconstitutional, in part because there were less

intrusive means, such as transporting the witness to where the defendant was. (Craig,

supra, 86 Cal.App.3d. at p. 912.)

Craig went on: “The facts and circumstances here fit squarely within the

suggested alternative of Harris. Implicit in that decision is the belief of the Supreme

Court in the right of officers to detain a suspect for a reasonable period of time for

identification. Accordingly, we hold the officers’ detention of defendants, for the

purpose of identification by the victim was reasonable where the period of detention was

only a few minutes (5-10), and the victim was brought to the suspect. It was proper,

under the circumstances, for defendants to be held inside a police vehicle while awaiting

the victim. If Harris would allow transportation of a suspect in a police vehicle, the

similar placement of a suspect in a police vehicle would not, in our view, be improper

where the vehicle is immobile.” (Craig, supra, 86 Cal.App.3d at p. 913.)

Craig is distinguishable only in that there, the detention lasted five to ten minutes,

whereas here, it was somewhat longer. When Deputy Elenes Mirandized him, defendant

had been in the police car for about an hour. However, this included the 30 minutes that

it took Deputy Elenes to drive Sappingfield home after he identified defendant. After the

identification, the police had probable cause for an arrest. Moreover, they did not

question defendant during this time. The relevant investigative detention was between

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the time when defendant was placed in the police car and the time when Sappingfield

identified him. This lasted about 30 minutes.

Similarly long seizures for the purpose of identification have been held to be

investigative detentions.

In People v. Bowen (1987) 195 Cal.App.3d 269, two suspects were handcuffed to

a guard rail for 25 minutes while the victim was brought to the scene for an identification.

(Id. at pp. 271-273.) The appellate court rejected the defendant’s contention that this was

a de facto arrest. (Id. at pp. 272-274.) “[T]he police officers immediately radioed their

dispatcher to request that the victim be transported to the detention scene . . . . The police

tape contains a recording of [an officer] asking for an estimation of the time of arrival of

the victim. The dispatcher radioed back that the unit transporting the victim was caught

in traffic and would arrive shortly.” (Id. at pp. 273-274.) “Since the ‘police diligently

pursued a means of investigation that was likely to confirm or dispel their suspicions

quickly, during which time it was necessary to detain the defendant’ [citation], the 25-

minute detention was not unreasonable and did not amount to an arrest. [¶] The fact that

appellant was handcuffed while detained awaiting the victim’s arrival does not mean that

appellant was under arrest during this time. . . . [As in] Craig, the officers in the instant

case properly secured appellant while awaiting the victim.” (Id. at p. 274.)

In In re Carlos M. (1990) 220 Cal.App.3d 372, after a reported rape, an officer

“awakened two sleeping suspects; got them on their feet; attempted to obtain names and

identifications; determined a language barrier existed and that they lacked identifications;

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called to determine the location of the only person (i.e., the victim) who could confirm or

dispel his suspicions; conducted a pat-down search; handcuffed both suspects; walked

them to his car and placed them inside; made a five-minute trip to the hospital [where he

victim was]; and walked two men, one at a time, to the place where the victim could

identify them.” (Id. at p. 382, fn. 4; see also id. at pp. 380-381.)

The appellate court held that this was a reasonable investigative detention and not

a de facto arrest. (In re Carlos M., supra, 220 Cal.App.3d at pp. 381-385.) The officer

“selected ‘a means of investigation that was likely to confirm or dispel [his] suspicions

quickly.’ [Citation.]” (Id. at p. 385.) The detention was not “impermissibly lengthy”;

considering everything the officer accomplished in 30 minutes, his “actions show[ed]

commendable dispatch.” (Id. at p. 382, fn. 4.) It was necessary to transport the defendant

to the hospital, because the victim could not be brought to the scene until her rape

examination was over, which would have prolonged the detention. (Id. at pp. 383-384.)

Finally, it was necessary to handcuff both men for officer safety. (Id. at p. 385; see also

People v. Soun (1995) 34 Cal.App.4th 1499, 1515-1520 [35-minute detention in back of

police cars so arresting officers could determine whether detainees matched witness

descriptions].)

A 24-hour seizure might be an arrest per se; a 30-minute seizure is not. Thus, we

look to whether the police “‘diligently pursued a means of investigation reasonably

designed to dispel or confirm their suspicions quickly, using the least intrusive means

reasonably available under the circumstances.’ [Citations.]” (People v. Celis, supra, 33

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Cal.4th at p. 675.) Here, it took about 30 minutes to go from defendant’s house to the

witness’s house and back. Thus, it appears that the police acted diligently and

expeditiously.

Because defendant was subject to an investigative detention, he was not in

custody, so Deputy Ochoa could properly question him without Miranda warnings. And,

once the witness identified him, Deputy Elenes could properly place him in custody,

Mirandize him, and interrogate him; Seibert did not apply.

IV

INABILITY TO PAY FINES AND FEES

Defendant contends that, because the trial court found that he was not able to pay

certain fees, it erred by imposing other fees and fines.

A. Additional Factual and Procedural Background.

The trial court found that defendant did not have the ability to pay a presentence

report fee (§ 1203.1b, subd. (a)) or presentence incarceration costs (§ 1203.1c).

However, it did impose a $300 restitution fine (§ 1202.4), a $300 parole restitution

revocation fine, stayed (§ 1202.45), a criminal conviction fee of $30 (Gov. Code,

§ 70373), and a court operations assessment fee of $40 (§ 1465.8).

At first, the trial court was going to impose a booking fee (Gov. Code § 29550.2)

of $514.48. Defense counsel asked it to “stay” the booking fee, invoking People v.

Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). The trial court agreed to do so, although

it observed, “I’m not sure Dueñas is the proper vehicle for that.”

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 B. Discussion.

Dueñas held that “due process of law requires the trial court to conduct an ability

to pay hearing and ascertain a defendant’s present ability to pay” before it imposes any

fines or fees. (Dueñas, supra, 30 Cal.App.5th at p. 1164.)

Buckets of ink have been spilled over whether Dueñas is good law, including the

subsidiary question of whether, even assuming it reached the right result, it should have

analyzed the issue under the excessive fines clause rather than the due process clause.

These issues are presently before our Supreme Court. (See People v. Kopp (2019) 38

Cal.App.5th 47, review granted Nov. 13, 2019, S257844.) As we find we can resolve this

contention on other grounds, we express no opinion on them.

1. Forfeiture.

The People respond that defense counsel forfeited this contention by failing to

object to any of the fines or fees other than the booking fee.

We agree. When, as here, the defendant was sentenced after Dueñas, we apply the

general rule that failure to object results in forfeiture. (People v. Torres (2020) 47

Cal.App.5th 984, 991; see generally People v. Scott (1994) 9 Cal.4th 331, 353.) Defense

counsel chose to object only to the booking fee, and the trial court agreed not to impose

it. Defendant does not claim that this was ineffective assistance.

2. Prejudice.

The People also respond that the asserted error was harmless.

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 Again, we agree. In People v. Jones (2019) 36 Cal.App.5th 1028, we held that a

Dueñas error is harmless when the record demonstrates that the defendant could not have

shown inability to pay. (Id. at p. 1035.) In that case, it was clear that the defendant could

pay the fines out of his prison wages; therefore, the error was harmless. (Ibid.)

Here, defendant will not necessarily be able to pay the full $370 out of prison

wages. However, he should be able to make a dent in it.6 Moreover, the probation report

shows that he had a high school diploma. He worked as an electrician, landscaper, and

home remodeler, making $1,500 a month. He had fixed expenses of $750 a month,

leaving him with disposable income of $750. He was 36 years old and in good health. It

seems indisputable that he can pay $370 once he gets out of prison. Indeed, we question

the support for the trial court’s finding that he could not pay those fees that it declined to

impose.

6 Defendant was sentenced to four years. With good conduct credits (§ 2933,
subd. (b)), he would have to serve only two years. In addition, he had 84 days — a little
under three months — of presentence custody credit. This left him facing actual
incarceration of a little over 21 months. If he worked, he could earn a minimum of $5.40
a month (see People v. Taylor (2019) 43 Cal.App.5th 390, 402), for a minimum total of
$113.40.

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 V

DISPOSITION

The judgment appealed from is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.

We concur:

MILLER
J.

SLOUGH
J.

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