People v. Jackson CA2/4

Filed 6/10/21 P. v. Jackson CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR

THE PEOPLE, B292315

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA095843)
v.

CLERECE CASHAY JACKSON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, H. Jay Ford III, Judge. Affirmed.
John Steinberg, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Assistant Attorney General, Michael C. Keller and Steven E.
Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
 Appellant Clerece Jackson is the mother of minor
quadruplets Aa., An., Ar., and Az.1 In October 2015, the
quadruplets’ teacher contacted the Los Angeles County
Department of Children and Family Services (DCFS) when some
of the quadruplets arrived at school with black eyes. During the
ensuing investigation, An. disclosed that appellant physically
abused the quadruplets, and three of the four were found to have
marks and scarring consistent with the abuse An. described.
DCFS detained the quadruplets and appellant’s other minor
children and initiated dependency proceedings. The Los Angeles
County District Attorney (“the People”) also charged appellant
with inflicting corporal injury on the quadruplets. After Aa. and
Az. ran away from their shared foster home and Az. was found
with appellant, the People added charges that appellant detained
Aa. and Az. from their legal custodian and violated a protective
order barring contact between her and the quadruplets.
After a lengthy trial at which appellant represented herself
and the quadruplets gave conflicting testimony, a jury found
appellant guilty of inflicting corporal injury on An. and Ar.;
detaining Aa. and Az. from their lawful custodian; and violating a
protective order. The jury acquitted appellant of inflicting
corporal injury on Aa. and was unable to reach a verdict as to
whether she inflicted corporal injury on Az; the People ultimately
dismissed the latter charge. The court found that appellant
detained Aa. and Az. while on bail and sentenced her to three
years of formal probation.

1We refer to appellant’s minor children by the first letters
of their first names to distinguish among them while protecting
their privacy. (Cal. Rules of Court, rule 8.90(b).) No disrespect is
intended.

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 Appellant now argues that the corporal injury convictions
must be reversed because the court did not instruct the jury with
either the lesser included offense of misdemeanor battery or with
CALCRIM No. 331 concerning witnesses with developmental,
cognitive, or mental disabilities. She contends that the abduction
convictions must be reversed because the trial court deprived her
of a defense and directed a verdict for the prosecution by
misinstructing on the element of malice, excluding hearsay
testimony regarding the alleged sexual abuse of Az. in foster care,
and failing to sua sponte instruct on the defense of necessity.
Appellant also argues that the trial court erred by finding she
was on bail rather than allowing the jury to decide that issue and
by failing to conduct an ability to pay hearing before imposing
fines and fees.
We reject appellant’s contentions and affirm the judgment
in full.
PROCEDURAL HISTORY
On May 29, 2018,2 the People filed a second amended
information charging appellant with four counts of felony
corporal injury to a child, one count for each quadruplet (Pen.
Code, § 273d, subd. (a))3; two counts of felony child abduction, one
count for Aa. and one count for Az. (§ 278); and one count of
misdemeanor violation of a protective order (§ 273.6, subd. (a)).
The People alleged that the corporal injuries occurred on or

2The second amended information was filed toward the end
of appellant’s trial to conform the date alleged in the protective
order count to proof. The original information in this case was
filed on July 28, 2017, and the first amended information was
filed on February 20, 2018.
3All further statutory references are to the Penal Code

unless otherwise indicated.

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between September 1 and October 12, 2015, and that the
abductions and protective order violations occurred later, on or
about February 24, 2017. The People further alleged, pursuant
to section 12022.1, that appellant committed the child abductions
while she was released on bail for the corporal injury offenses,
which had been previously charged and were refiled in the
instant case.
Appellant represented herself at a jury trial, which began
on April 11, 2018 and continued, with some interruptions,
through June 14, 2018. The jury found appellant guilty of
causing corporal injury to An. and Ar., abducting Aa. and Az.,
and violating a protective order. It found her not guilty of
causing corporal injury to Aa. and was unable to reach a verdict
as to whether she caused corporal injury to Az. The court
dismissed the charge of corporal injury to Az. on the People’s
motion. The court later found that appellant committed the
abduction offenses while she was on bail, in violation of section
12022.1.
Appellant filed a motion for new trial on August 21, 2018.
The court heard argument on and denied the motion during
appellant’s sentencing hearing on August 24, 2018.
After finding that the case was an “unusual” one “in which
the interests of justice would be served if the person is granted
probation” (§ 1203, subd. (e)), the court sentenced appellant to
three years of formal probation with conditions including the 318
days in jail appellant already had served and had credits for, 30
days of community service, and completion of a 52-week child
abuse program that satisfies the requirements of section 273.1.
The court also imposed a $300 restitution fine, subject to an

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ability-to-pay hearing (§ 1202.4, subd. (b)); a $300 probation
revocation restitution fine, stayed unless probation is revoked
(§ 1202.45); a court security fee of $40 (§ 1465.8, subd. (a)(1)); a
criminal conviction assessment of $30 (Gov. Code, § 70373); a
$500 domestic violence payment, subject to an ability-to-pay
hearing (§ 1203.097); and the costs of probation, subject to an
ability-to-pay hearing.
Appellant timely appealed. She is now represented by
counsel.
FACTUAL BACKGROUND
Appellant has eight children: adult daughter Cornesha;
son To., who does not live with the family; sons Ti. and Ant.; and
the quadruplets, sons Aa., An., and Ar., and daughter Az. At the
time of the events underlying the corporal injury charges, the
quadruplets were 10 years old.
I. People’s Evidence
A. Corporal Injury
Rosewood Avenue Elementary School principal Linda
Crowder testified that appellant enrolled Ant., Aa., An., Ar., and
Az. at the Los Angeles public school in September 2014. Ant. was
in sixth grade, and the quadruplets were in fourth grade.
Appellant gave all five children permission to participate in a
program called “Operation School Bell,” which provides students
with school supplies including uniforms, shoes, books, toys, and a
backpack. During Operation School Bell, Crowder saw An. take a
toy, and appellant later discovered that Az. had taken an extra
pair of shoes. Az. and Ar. testified at trial that appellant put the
quadruplets on “backpack restriction” after these incidents so
they could no longer conceal items in their backpacks; they had to
carry their supplies to and from school in their hands.

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 With appellant’s permission, Crowder again took the
quadruplets to Operation School Bell during the following school
year, on Thursday, October 8, 2015. They all received school
supplies, including backpacks. The quadruplets’ fifth grade
teacher, Robin Frazier, testified that she saw them walking home
that afternoon. Frazier became “concerned” when she noticed
that “three of them were way up ahead,” and An. was walking
back toward the school. As An. approached her, Frazier heard
him “mumbling something about he was going to get the
backpacks.” Frazier then saw An. “dig out two backpacks from
under a bush” and noticed school supplies strewn along the
sidewalk.
Frazier walked with An. to the other quadruplets and told
them to put the school supplies back in the backpacks and take
them home. The quadruplets responded by asking Frazier to call
appellant, “because she had told them not to bring backpacks
home” and “was going to be really upset with them.” They
seemed “scared and sort of evasive.” Frazier told them again to
take the supplies home, and said appellant could get rid of the
backpacks if she did not want the quadruplets to have them.
After sending the quadruplets on their way with the backpacks
and other supplies, Frazier called Crowder and asked her to call
appellant “so that the quadruplets would not be in trouble.”
Crowder testified that she called appellant to apprise her of the
situation. Appellant “sounded frustrated” and told Crowder that
she did not want the quadruplets to have backpacks. Later that
afternoon, Crowder noticed that the backpacks had been returned
to the school.
Crowder and Frazier both testified that none of the
quadruplets attended school the following day, Friday, October 9,

6
2015. When the quadruplets returned to their classroom on
Monday, October 12, 2015, Frazier noticed that they were
unusually quiet. Frazier also saw that Aa., Ar., and Az. had
black eyes. The combination of the quadruplets’ unusual
behavior and bruising led Frazier to suspect child abuse. She
called Crowder to her classroom; Crowder observed that the
quadruplets were “very quiet” and saw “remnants of black eyes”
on Aa., Ar., and Az. Crowder told Frazier, a mandated reporter,
to report her suspicions to the authorities.
Los Angeles County Sheriff’s deputy Marlena Martinez
responded to the school to investigate. Martinez spoke with the
quadruplets separately. She spoke to Ar. first. He had bruising
around his left eye and told Martinez that he was only able to
answer questions pertaining to school. Martinez next spoke to
Az., who also had bruising and swelling on her face. Az. cried
during the questioning and told Martinez that the beads she wore
in her hair caused the injuries to her face. Az. “spontaneously”
added, “My mom didn’t punch me.” Martinez next spoke to Aa.;
she noticed that he had a scratch on his face. Aa. was
“standoffish” and told Martinez that she could speak to his
mother about how he got the scratch. Martinez spoke to An. last.
She noticed a large scar on his hand, and a scratch on his arm.
Martinez also looked at An.’s back and “saw old scars that were
consistent with some type of like whipping.” An. told Martinez
that appellant had struck him with an extension cord. An.
further stated that appellant had punched Aa. and Ar. because
they had come home with backpacks. An. told Martinez that
appellant had punched him in the past, and that he sometimes
feared her.

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 A social worker took An., Ar., and Az. (but not Aa.) to the
Los Angeles County/USC Medical Center. Nurse practitioner
Shana Cripe testified that she immediately noticed bruising on
the children’s faces. Cripe then met with each of the children
individually, interviewed them, and examined them. During her
examination of An., Cripe documented and photographed red
linear and loop marks on his buttocks and left flank, “multiple
hyperpigmented overlapping loop marks on his right upper hip,
hip area, and upper thigh,” and a “scabbed abrasion on the inside
of the mucous membrane of his lip.”4 Cripe testified that loop
marks, which can be caused by cords, belts, or hangers, “are very
specific for abuse” because they indicate “a large injury in two
separate directions, so there’s no way it’s accidental.” An. told
Cripe that appellant “punches us” and hit him with a cord every
day; he attributed the lip wound to being hit with appellant’s fist.
Cripe concluded that An.’s statements were consistent with the
marks she observed and with a history of ongoing physical abuse.
Cripe documented and photographed a “loop-like pattern
mark” on Ar.’s thigh; loop marks on his hip, buttocks and mid-
back, “similar to” An.’s; a “big circular scar on his left chest”;
“blue bruises underneath each eye”; “bruising and abrasions
above his left eye”; and “another blue bruise on the side of his
face.” Ar. told Cripe that all of the marks were “birth marks,”
and “kept repeating that he wasn’t hurt.” Cripe testified that
Ar.’s exam was consistent with physical abuse and inconsistent
with his stated history of “birth marks.” Specifically, the facial
bruising was consistent with being punched in the face within the
past week.

4Cripe’sphotographs of An. and the other children were
admitted into evidence.

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 Cripe documented and photographed similar marks and
scarring in similar locations on Az., including blue bruising on
the left side of her face. Though Az. did not have any “perfect
loop marks,” Cripe testified that the marks she saw “made [her]
suspect that [Az.] possibly was hit in the exact same manner that
the boys were.” Az. repeatedly told Cripe that she was not hurt
and did not have any bruises. Cripe nevertheless concluded that
all three children likely had been abused.
Detective Jeffrey Jackson of the Los Angeles County
Sheriff’s Department interviewed An., Ar., and Az. separately at
school the following day, October 13, 2015. An. told Jackson that
the quadruplets had gotten into trouble due to the backpack
incident. An. further told Jackson that appellant had spanked
them with an electrical cord and hit them with her fist. An. drew
a picture of the hallway where the electrical cord was kept, and
showed Jackson linear marks and scars “in various stages of
healing” on his back.
Jackson testified that Ar. told him that appellant hit him
with an extension cord after the backpack incident, and had hit
him with the cord on other occasions as well. Ar. demonstrated
how appellant held the cord; Jackson took a photograph that was
shown to the jury and admitted into evidence. Ar. showed
Jackson a mark on his leg from the cord, and said the bruising on
his eye was due to appellant punching him with her fist. During
her interview, Az. told Jackson that appellant struck the
quadruplets with an electrical cord she kept in the hallway and
had punched her in the eye. Recordings of Jackson’s interviews
with Ar. and Az. were played for the jury and admitted into
evidence; Jackson testified that “there was an issue with the
recording” of An.’s interview. A recording of a subsequent

9
forensic interview of An. was played for the jury and admitted
into evidence.
All four quadruplets and their older brothers Ant. and Ti.
were placed in foster care in November 2015. On December 3,
2015, the criminal court issued a protective order preventing any
contact between appellant and the quadruplets.
All four quadruplets testified at trial. Az. and An. both
testified that appellant struck them. Az testified that appellant
punched Aa. and Ar. in the nose the day they received the
backpacks. She further testified that appellant “whooped” the
quadruplets with an extension cord “once or twice a month,” and
once punched Az. in the eye. An. testified that appellant
“whooped” him with a cord and punched him, though he also
stated that appellant never “whooped” him or hit him with her
fist.
Aa. and Ar. testified that appellant never struck them
inappropriately. Aa. testified that appellant only ever spanked
the quadruplets with an open hand when they did something
“really bad.” Aa. denied that appellant punched the quadruplets
with her fist or hit them with an electrical cord. The prosecutor
impeached him with prior testimony he gave in dependency
court, when he stated that appellant struck him “hard” with a
closed fist “a lot.” Aa. stated that his prior testimony was the
result of feeling pressured in dependency court. Ar. testified that
appellant never punched him or gave him a black eye. He also
denied having scars or marks on his body. The prosecutor
impeached him with contrary testimony from dependency court.
B. Abduction and Violation of Protective Order
Foster parent Paula Smith-Bull testified that Aa. and Az.
were placed in her home in February 2017. Smith-Bull was

10
aware of the protective order prohibiting appellant from
contacting the quadruplets and attempted to follow it. She was
also aware that a social worker recently had informed Aa. and
Az. that they would not be reuniting with appellant; Smith-Bull
testified that both children became “withdrawn” after that
conversation.
On February 22, 2017, about two or three days after the
children’s conversation with the social worker, Smith-Bull
allowed Aa. and Az. to walk to school as they normally did.
Smith-Bull went to the school later that day for an awards
assembly and was surprised to find that Aa. and Az. were not at
school. Smith-Bull notified the principal, who called the school
police and the local sheriff’s station. Smith-Bull formally
reported Aa. and Az. missing. Az. testified that she and Aa.
“went with my mom,” who picked them up near their elementary
school and drove them to an apartment where they stayed with
appellant, their adult sister Cornesha, and others for a few days.
Sheriff’s detective Daniel Starkey testified that he was
assigned to look for Aa. and Az. on February 24, 2017. Using
department resources, he located a phone number associated
with appellant and placed a “ping” on it to monitor the location of
the phone using the number. Starkey explained that a ping can
give a location within about 1,000 to 1,500 meters while the
phone is on. After investigating several pings without success,
Starkey called the phone on February 24, 2017. Cornesha
answered. Starkey told Cornesha that Aa. and Az. were missing
and asked to speak to appellant. Cornesha “became extremely
agitated” and told Starkey that appellant was in Michigan.
Cornesha hung up on Starkey; thereafter, the phone was turned
off.

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 Starkey testified that the phone sent several pings from the
Inglewood area on February 26, 2017. Starkey contacted deputy
sheriff Larry McGee and his partner, Carlson, briefed them on
the case, and sent them to a shopping center in the vicinity of the
pings. McGee testified that he saw a vehicle matching the
description he was given parked at the shopping center. McGee
also saw appellant, Cornesha, and Az. getting in the vehicle.
McGee and his partner pulled up behind the vehicle and detained
appellant, Cornesha, and Az. While appellant was in the
backseat of the patrol car, McGee heard her yell, “They ran away
and we were gonna take them back tomorrow.”
When Starkey arrived on the scene, he attempted to speak
to appellant and Cornesha, but they were both “uncooperative.”
No one, including Az., told Starkey where Aa. was or seemed
concerned about his whereabouts. Starkey was informed on
March 3, 2017 that Aa. had been found.
On rebuttal, DCFS social worker Mercedes Mendoza
testified that Ant. told her that he was with Aa. and Ti. at the
shopping center and fled the scene when he saw appellant and
Cornesha being arrested.
II. Defense Evidence
A. Corporal Injury
Pediatrician Gagik Khoylyan examined all four
quadruplets in October 2014 for well-child visits, and examined
Ar. on October 7, 2015 for a skin issue. Dr. Khoylyan did not
record or report any suspected abuse.
Brian Palmer testified that he was a resource specialist
teacher at Rosewood. He worked with An., who had an
“individualized education program” (IEP), three to five mornings
each week. Palmer had no concerns about bruises or marks on

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An. He never contacted DCFS about An., the other quadruplets,
or Ant.
Ant., Ti., and Cornesha all testified that appellant never
struck or abused them or the quadruplets. Ant. acknowledged
that he had told a court in the family’s previous home state of
Kentucky that appellant had struck him with a cord and a belt,
but he stated that he had been lying then and the real
perpetrator had been his older brother, To. Ti. and Cornesha
testified that To. physically abused his younger siblings, until
appellant removed To. from the home. The quadruplets also
testified that To. abused his siblings, including striking them
with his fists and objects and forcing An. and Ar. to jump from a
second-story window. All of appellant’s children further testified
that the quadruplets often inflicted marks on one another by
fighting among themselves and with their older siblings.
Cornesha testified that none of the quadruplets had black eyes
when they went to school on October 12, 2015. She also testified
that Aa. and Az. told her that police officers told them they would
be taken to the police station if they did not say that appellant
abused them.
Deputy sheriff Fabian Moore testified that he and his
partner, deputy sheriff Todd Mohr, went to Rosewood on October
12, 2015 in response to a “mutual aid” request from the Los
Angeles Police Department or other directive from their
dispatcher. They subsequently went to appellant’s apartment.
Mohr testified that Rosewood was within the city of Los Angeles,
not West Hollywood, and he was not aware of any such mutual
aid request. Mohr further testified that he spoke to Cornesha,
Ti., and Ant. at appellant’s apartment and did not receive any
information from them that led him to conclude that appellant

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abused the quadruplets. Mohr arrested appellant for child abuse
on the directive of deputy sheriff Marlena Martinez.
DCFS emergency response social worker Mary Lester
testified that she responded to Rosewood on October 12, 2015.
Lester, who is trained to assess children’s credibility, interviewed
the quadruplets separately in a conference room. The children
were “very well composed,” and none of them told her that
appellant abused them. Lester testified that she “wasn’t
concerned that there were black eyes” and “wasn’t impressed that
the children had been harmed by an adult or anyone, for that
matter.” One of the law enforcement officers there told her that
An. had disclosed abuse to him. Lester recalled asking An., “Why
didn’t you tell me that?”; An. told her he had been scared. Lester
“felt like she needed to further interview him and assess him,”
because she thought he might have special needs, and she also
had to speak with appellant’s other children to complete her
investigation. Lester therefore went to appellant’s apartment
with Moore and Mohr. All of the children denied abuse by
appellant, and Lester believed them at that time.
Lester subsequently took the quadruplets to a clinic to be
assessed by medical staff; she stated that “marks were noted”
during the examinations. Lester had not asked the children to
disrobe when she interviewed them because they were at school
at the time. She stated that the abuse allegations were
substantiated based on the medical professionals’ opinions. All
four quadruplets told her they wanted to go home, however, and
they did not fear appellant.
Deputy District Attorney Oksana Sigal testified that she
was assigned to the case from October 2015 to December 2017.
Sigal helped schedule the children’s forensic interviews, which

14
she also observed through one-way glass. She first personally
interacted with the quadruplets in February 2016, right before
they were scheduled to give testimony at a preliminary hearing.
Sigal testified that she met them in a conference room in the
presence of a DCFS social worker. Sigal stated that she was
never alone with any of the quadruplets. Sigal did not tell Az. or
Ar. that she was acting as their attorney or would be
representing them in court. She also denied telling them “to say
what the police told them to say when they were at West
Hollywood station”; she stated that she told them to tell the
truth, like she told every witness or victim in her cases.
B. Abduction and Violation of Protective Order
Ti. testified that Aa. and Az. told him that they did not like
being in foster care. At some point, Ti. helped them make a plan
to leave. Appellant was not involved in the plan. Az. was scared,
but she and Aa. both were happy to see Ti. on February 24, 2017.
Cornesha testified that she went to a park near the family’s
apartment to exercise on February 25, 2017; she did that every
Saturday. While she was there, Az. unexpectedly arrived on the
bus. Cornesha spent about 30 minutes with Az. before putting
her back on the bus. Cornesha told Az. to go back to her foster
home and call the police when she got there. Cornesha did not
call the police even though she knew they were looking for Az.;
she called Az.’s social workers and left a message.
Cornesha testified that Az. knew that Cornesha would be
at the Inglewood shopping center the following day. Az.
approached Cornesha and appellant in the parking lot about five
minutes after appellant arrived. The police arrived within a
minute or two after that, while Cornesha was hugging Az.,
crying, and trying to figure out what to do. Cornesha was aware

15
of the protective order prohibiting contact between appellant and
the quadruplets and did not arrange for Az. to meet appellant.
Cornesha did not see Aa. or Az. in appellant’s vehicle that day.
Ant. denied being present at the shopping center with Ti. and Aa.
and telling Mercedes Mendoza that he had been there.
DISCUSSION
I. Corporal Injury Convictions
Appellant contends the corporal injury convictions must be
reversed due to the court’s failure to instruct the jury on the
lesser included offense of misdemeanor battery or with
CALCRIM No. 331 concerning witnesses with developmental,
cognitive, or mental disabilities. We disagree.
A. Misdemeanor Battery Instruction
1. Background
During the jury instructions conference, the court observed
that “simple assault and battery” were lesser included offenses of
corporal injury. The People stated that they were pursuing “an
all or nothing theory” and were not requesting instruction on any
lesser included offenses. The court then said to appellant: “I’m
required to instruct on lesser-included offenses. You need to hit
the books to fully understand what that is. [¶] I do not have to
give those instructions if the defense theory of the case is
inconsistent with those defenses. [¶] So, for example, in this case
. . . my impression is that the defense case is that Ms. Jackson,
you, the defendant, did not strike the kids in any way, shape, or
form. Either it happened the way the People say it happened by
punching and hitting with the cord or it didn’t happen at all. [¶]
And if that is the case, then there is no need for me to instruct
the jury on lesser-included offenses because either it was the
felony committed or it was no crime at all committed. [¶] I’m

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gonna leave you with that. Take a look at what you need to take
a look at. I will double check to see what duty I have to instruct
regardless of that. Certainly there is a line of authority that says
instructing on lesser-included offenses is not required if it is
inconsistent with the defense case or not supported by the
defense case.” Appellant responded, “I did research that, and you
are correct in your observation of the defense, and I’m asking
that that not be included.” Before concluding the conference, the
court reiterated that it would “double check and make sure that
I’m right that I don’t have to do that.”
When the parties revisited the jury instructions a few days
later and discussed verdict forms, the court informed the parties
that it agreed with them “that there is no basis to instruct the
jury on verdict forms that have lesser and greater-included
crimes.” The People then clarified, “I am not asking that lessers
be given, but I am not objecting to them being given.” The court
asked appellant, “Ms. Jackson, you do not want lesser-included
offenses to be given?” She responded, “Correct.” The court then
stated, “I tend to agree. I’m not sure the evidence supports it
‘cause of your all or nothing theory of your defense. But if there
was evidence to support it, I might have to give it regardless
whether you wanted me to, Ms. Jackson, but I am finding that
the evidence doesn’t support the lesser-included offenses based on
your theory as we described all or nothing.”
The court instructed the jury with a modified version of the
pattern instruction for corporal injury to a child, CALCRIM No.
822, Inflicting Physical Punishment on a Child. The
modification, proposed by the People and requested by both
parties, added, “It is not unlawful for a parent to spank a child
for disciplinary purposes with an object other than the hand. The

17
punishment, however, must be necessary and not excessive in
relation to the individual circumstances.” After closing
arguments, the court additionally instructed the jury with a
modified version of CALCRIM No. 3405, Parental Right to
Punish a Child, which it opined “is the better definition to
capture what is legal and not legal than the paragraph regarding
spanking” it added to CALCRIM No. 822. It did not instruct the
jury on any lesser included offenses of corporal injury. The jury
found appellant guilty of two of the four counts of corporal injury,
acquitted her on the third, and hung on the fourth.
2. Analysis
Battery (§ 242) is a lesser included offense of corporal
injury to a child (§ 273d). (People v. Valdez (2002) 27 Cal.4th 778,
787.) A trial court has a sua sponte duty to instruct on a lesser
included offense if there is substantial evidence that the
defendant is guilty only of the lesser offense. (People v. Chestra
(2017) 9 Cal.App.5th 1116, 1121.) Substantial evidence is that
from which a reasonable jury could conclude that the defendant
committed the lesser, but not the greater offense. (Ibid.) Where
such substantial evidence exists, the trial court must instruct on
the lesser included offense even if it is inconsistent with the
theory of defense or “‘when as a matter of trial tactics a
defendant not only fails to request the instruction but expressly
objects to its being given.’” (Ibid.) We review de novo the
question whether the trial court improperly failed to instruct on a
lesser included offense. (Id. at p. 1122.)
Before we reach the merits of that question, we address
respondent’s contention that appellant invited and therefore may
not challenge any instructional error. Under the invited error
doctrine, “a defendant may not invoke a trial court’s failure to

18
instruct on a lesser included offense as a basis on which to
reverse a conviction when, for tactical reasons, the defendant
persuades a trial court not to instruct on a lesser included offense
supported by the evidence.” (People v. Barton (1995) 12 Cal.4th
186, 198; see also People v. Horning (2004) 34 Cal.4th 871, 905;
People v. Souza (2012) 54 Cal.4th 90, 114.) Respondent argues
that the invited error doctrine applies here, because appellant
pursued an all-or-nothing defense and asked the court not to
instruct the jury on lesser included offenses. We are not
persuaded. As the Supreme Court explained in People v. Barton,
supra, 12 Cal.4th at p. 198 (emphasis added), the invited error
doctrine applies where “the defendant persuades a trial court not
to instruct on a lesser included offense supported by the evidence.”
Here, the trial court expressly found, and we agree, that
substantial evidence did not support instruction on a lesser
included offense. The invited error doctrine therefore does not
apply. We accordingly consider whether the trial court erred in
failing to instruct on battery.
We conclude it did not. Section 273d “requires the
defendant to inflict a cruel or inhuman corporal punishment or
injury upon a child and the actual result is an injury resulting in
a traumatic condition.” (People v. Cockburn (2003) 109
Cal.App.4th 1151, 1160.) “It is injury resulting in a traumatic
condition that differentiates this crime from lesser offenses,”
including battery (People v. Gutierrez (1985) 171 Cal.App.3d 944,
952 [emphasis in original]); a traumatic condition is “a wound, or
external or internal injury . . . whether of a minor or serious
nature, caused by physical force.” (§ 273.5, subd. (d); see also
People v. Gutierrez, supra, 171 Cal.App.3d at p. 953; CALCRIM
No. 840.) Battery requires only a willful or unlawful touching of

19
another person done in a harmful or offensive manner. (People v.
Chenelle (2016) 4 Cal.App.5th 1255, 1263; see also § 242;
CALCRIM No. 960.)
The record did not contain substantial evidence that
appellant committed battery but did not inflict corporal injury on
An. and Ar. As appellant describes the evidence in her opening
brief: “The forensic examinations of three of the quadruplets
revealed that An[.] had multiple abrasions on his chest, scars on
his arms and the back of his neck, and loop marks on his hips,
thighs, flanks, and upper arm. An[.] told Cripe that appellant
punched and hit ‘all of us’ with a cord every day. [¶] Ar[.] also
had scars in a loop pattern on his thigh, and red loop marks on
his back and buttocks. He had bruises under each eye, and a cut
on the inside of his lip. The bruises and cut could have been
caused by being punched in the face. [¶] Az[.] had similar
injuries to her brothers, including loop marks in the same areas
as her brothers and bruises on her cheek.” No reasonable jury
could conclude from this evidence that appellant committed
battery but did not injure or cause traumatic injury to the
children. The children had abrasions, bruising, scarring, and
loop marks, all of which evince the injury and traumatic
condition that distinguish corporal injury from battery.
Appellant emphasizes that the jury only convicted her on
two of the four counts and argues it is therefore “reasonably
probable that the jury would have reached a more favorable
result” had it been instructed on battery. (See People v. Moye
(2009) 47 Cal.4th 537, 556-557; People v. Watson (1956) 46 Cal.2d
818.) The fact that the jury was unable to reach a verdict on one
count and acquitted appellant on another does not demonstrate
that a more favorable result was reasonably probable on the

20
remaining two counts, for which appellant herself acknowledges
strong evidence of abuse. If anything, it suggests that appellant’s
strategy of pursuing an all-or-nothing defense was prudent on the
facts of this case.
Appellant also argues that the court’s sua sponte duty to
instruct on battery arose not after the close of evidence but “after
the prosecution introduced a new theory of guilt in closing
argument.” The court decided to add CALCRIM No. 3405 to the
instructions after the jury asked for clarification of the word
“reasonable” as used in CALCRIM No. 822.5 During discussion
with the parties, the court noted that the People had argued
appellant “went too far, and that begs the question of whether it
was reasonable or not” before deciding to give CALCRIM No.
3405. Appellant argues that this instruction “on a parent’s right
to discipline . . . did not substitute for instructions on the lesser-
included offenses [sic].” Her reliance on People v. Whitehurst
(1992) 9 Cal.App.4th 1045 (Whitehurst) in support of this
argument is misplaced.
In Whitehurst, supra, 9 Cal.App.4th 1045, 1049, the issue
was whether the court had a sua sponte duty to instruct the jury
regarding a parent’s right to discipline his or her child during a
parent’s trial for inflicting corporal injury in violation of section
273d. In concluding that such a duty existed, the court rejected

5CALCRIM No. 822 uses the word reasonable in its
definition of natural and probable consequence: “A natural and
probable consequence is one that a reasonable person would
know is likely to happen if nothing unusual intervenes.” It uses
the word “reasonably” in the third element of the offense: “When
the defendant acted, she was not reasonably disciplining a child.”
It appears from context that the jury was concerned with the
latter.

21
the Attorney General’s contention that the defendant’s theory
that he had disciplined his stepdaughter Natalie and did not hit
her hard could be divided into two separate defenses: that
Natalie did not suffer a traumatic condition, and that he was
simply disciplining her. (Id. at p. 1050.) The court explained
that “whether the corporal punishment falls within the
parameters of a parent’s right to discipline involves consideration
of not only the necessity for the punishment but also whether the
amount of punishment was reasonable or excessive.
Reasonableness and necessity therefore are not two separate
defenses but rather two aspects of the single issue of parental
right to discipline by physical punishment.” (Ibid.) The court
further noted that a parent may reasonably discipline a child
without committing battery. (Ibid.) In light of its conclusion that
the trial court prejudicially erred by failing to sua sponte instruct
on the concepts embodied in CALCRIM No. 3405, the Whitehurst
court did not address the appellant’s alternative argument that
the trial court erred by failing to instruct on the lesser included
offense of battery. (Id. at pp. 1047, 1052, fn. 4.)
Pointing to these portions of Whitehurst, appellant asserts
that “[t]he jury instruction on a parent’s right to discipline did
not substitute for the right to an instruction on the lesser-
included offense.” Whitehurst does not support that proposition.
“It is axiomatic that cases are not authority for propositions not
considered.” (People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10.)
Moreover, the Whitehurst court emphasized that the instruction
on parental discipline “was of critical importance” in the case,
because “there was no dispute that defendant hit Natalie, and the
only real issue in [the] case was whether the punishment was
necessary and, if so, whether it was reasonable.” (Whitehurst,

22
supra, 9 Cal.App.4th at. 1050.) Here, whether appellant struck
the children was the disputed issue; appellant’s defense was that
she never struck the children. Whitehurst accordingly is not
instructive.
B. CALCRIM No. 331
1. Background
During trial, evidence was introduced that An., the child
who made the most damning abuse disclosures, attended special
education classes. Brian Palmer, Rosewood’s “resource specialist
teacher,” testified that he had worked with An. three to five
mornings per week pursuant to An.’s IEP. Palmer further
explained that an IEP “is a document mandated by the Federal
Individuals with Disabilities Education Act that allows for
children with certain disabilities to get their education in what’s
called the ‘least restrictive environment’ that supports their
educational needs,” and stated that An. “came to me in my room
for extra help.” Social worker Mary Lester, who interviewed the
quadruplets, testified that she thought “maybe [An.] needed
further assessment maybe, because at that juncture I started to
think that maybe he had special needs.” There was no further
evidence regarding the nature of An.’s IEP or any disability or
impairment with which he may have been diagnosed.
Based on the above testimony,6 appellant requested that
the court instruct the jury with CALCRIM No. 331. That

6Appellant also asserted that “Linda Crowder, the People’s
first witness, referenced [An.] having an I.E.P. and disability.”
On cross-examination, Crowder testified only that she had no
recollection in response to appellant’s questions about whether
Crowder remembered “being in a conference with [appellant] and
other school staff regarding [An.’s] IEP” or discussing with

23
instruction, authorized by and tracking the language of section
1127g,7 provides: “In evaluating the testimony of a person with a
(developmental disability[,]/[or] [a] (cognitive[,]/[or] mental[,]/[or]
communication) impairment), consider all of the factors
surrounding that person’s testimony, including his or her level of
cognitive development. [¶] Even though a person with a
developmental disability[,]/[or] [a] (cognitive[,]/[or] mental[,]/[or]
communication) impairment)[,] may perform differently as a
witness because of his or her level of cognitive development, that
does not mean he or she is any more or less credible than another
witness. [¶] You should not discount or distrust the testimony of
a person with a developmental disability[,]/[or] [a]
(cognitive[,]/[or] mental[,]/[or] communication) impairment)[,]
solely because he or she has such a (disability/[or] impairment).”
The People objected on the grounds that there was no
evidence that An. “suffers from any serious affliction, cognitive or
mental disability.” The trial court sustained the objection,
finding that “[t]here’s been no competent evidence of a disability
that warrants that instruction.”
2. Analysis
We review a trial court’s refusal to give a requested
instruction de novo. (People v. Quarles (2018) 25 Cal.App.5th
631, 634.) “‘A trial court must give a requested instruction only if
it is supported by substantial evidence, that is, evidence

appellant and Palmer “[An.] not having a backpack to take home,
IEP documentation.”
7Section 1127g provides that “In any criminal trial or

proceeding in which a person with a developmental disability, or
cognitive, mental, or communication impairment testifies as a
witness, upon the request of a party, the court shall instruct the
jury” with, essentially, CALCRIM No. 331.

24
sufficient to deserve jury consideration.’ [Citation.] ‘“[T]here
need only be some evidence in the record that, if believed by the
jury, would sufficiently support the suggested inference.”’
[Citation.]” (People v. Byers (2021) 61 Cal.App.5th 447, 456, 457
(Byers).) The relevant question here is whether the evidence in
the record to which appellant points—testimony that An. had an
IEP and received unspecified special education services and
speculation regarding An.’s possible “special needs”—supports
the inference that An. had a developmental disability or
cognitive, mental, or communication impairment.
The terms “developmental disability” and “cognitive,
mental, or communication impairment” are not defined in section
1127g or CALCRIM No. 331. As both appellant and respondent
recognize, when the meaning of a statute is unclear, the proper
course is to “look to a variety of extrinsic aids, including the
objects to be achieved, the evils to be remedied, legislative
history, the statutory scheme of which the statute is a part,
contemporaneous administrative construction, and questions of
public policy.” (People v. Ramirez (2009) 45 Cal.4th 980, 987;
People v. Keeper (2011) 192 Cal.App.4th 511, 520 (Keeper).) The
courts in People v. Catley (2007) 148 Cal.App.4th 500 (Catley) and
Keeper, supra, 192 Cal.App.4th 511 performed this analysis. As
explained in Catley and largely echoed by Keeper: “Section 1127g
was added in 2004 by the Legislature, which articulated its
purpose as follows: ‘It is the intent of the Legislature to enact
legislation protecting the rights of developmentally disabled
persons and other dependent persons who are witnesses in
criminal cases and ensuring that they are given equal access to
the criminal justice system.’ (Stats. 2004, ch. 823, § 1.) The
Legislature defined a dependent person as ‘any person who has a

25
physical or mental impairment that substantially restricts his or
her ability to carry out normal activities or to protect his or her
rights, including, but not limited to, persons who have physical or
developmental disabilities or whose physical or mental abilities
have significantly diminished because of age.’ (Id., § 2; see Evid.
Code, § 177.)” (Catley, supra, 148 Cal.App.4th at p. 508; see also
Keeper, supra, 192 Cal.App.4th at pp. 520-521.) Keeper further
concluded, from the legislative history and definition of
“dependent persons,” that “the Legislature intended section
1127g to apply to persons whose developmental disability, or
cognitive, mental, or communication impairment, causes them to
be dependent on others for care,” and did not intend it to apply to
individuals who “generally engaged in normal daily activities
without assistance.” (Keeper, supra, 192 Cal.App.4th at p. 521.)
Byers, supra, 61 Cal.App.5th 447, recently disagreed with
Keeper and read section 1127g to be more broadly applicable,
“without limitation to dependent persons,” because “some
sections of the legislation that added section 1127g [to the Penal
Code] do not involve, or are not limited to, dependent persons.”
(Byers, supra,61 Cal.App.5th at p. 457.) Indeed, while much of
the bill enacting section 1127g referred to “dependent persons
with a substantial cognitive impairment,” the portion adding
section 1127g was worded much more broadly than other sections
amended by the bill. For instance, Evidence Code sections 710,
765, and 767 were amended to add reference to “a dependent
person with a substantial cognitive impairment.” (See Stats.
2004, ch. 823, §§ 1, 2, 6, 8, 14). Had the Legislature wished to
similarly limit the applicability of section 1127g, it would have
done so.

26
 Even construing section 1127g and CALCRIM No. 331
broadly, however, the evidence does not support an inference that
An. had a “developmental disability” or “cognitive, mental, or
communication impairment.” Lester’s speculation that An. might
have unspecified “special needs” does not establish that An. in
fact had any, and his possession of an IEP and receipt of special
education services does not necessarily mean An. had a
“developmental disability” or “cognitive, mental, or
communication impairment.” As appellant notes in her brief,
IEPs are prepared for children with a wide range of special
needs, including “intellectual disabilities, hearing impairments
(including deafness), speech or language impairments, visual
impairments (including blindness), serious emotional disturbance
. . ., orthopedic impairments, autism, traumatic brain injury,
other health impairments, or specific learning disabilities.” (20
U.S.C. § 1401(3)(A), defining “child with a disability”.) A child
with a learning difference such as dyslexia or dyscalculia or an
orthopedic impairment may benefit from special education
services but may not be said to have a “developmental disability”
or “cognitive, mental, or communication impairment.” Without
additional information about An.’s IEP, the “extra help” Palmer
provided, or the basis for Lester’s suspicion that An. had “special
needs,” the jury could not reasonably infer that An. had a
“developmental disability” or “cognitive, mental, or
communication impairment.”
Even if such an inference were reasonable, we would find
harmless any error in the court’s failure to instruct with
CALCRIM No. 331. Appellant’s theory of the case was that she
never struck the quadruplets. She argued that Rosewood staff
fabricated the abuse claims out of animus toward the family, and

27
law enforcement and DCFS pressured or coerced some of the
quadruplets into making statements and giving testimony to
support the false abuse claims. She contends that the court’s
refusal to give CALCRIM No. 331 was federal constitutional error
because it precluded her “from presenting the defense theory that
the reason [An.], alone, reported abuse to police was because he
was more easily pressured and coerced into making a false
statement than his siblings.” She asserts that “[a]bsent the
instruction, the prosecutor was able to capitalize on [An.’s]
statements, arguing that he reported the abuse more than his
siblings ‘for whatever reason,’ and urging the jury to convict
appellant based on the testimony of a single witness, pursuant to
CALCRIM No. 301. . . . The prosecutor’s arguments erroneously
implied there was no basis for evaluating [An.’s] testimony
differently than that of any other witness.”
A key goal of CALCRIM No. 331 is to ensure that the jury
does not evaluate the testimony of a witness with a disability or
impairment differently than that of another witness. “CALCRIM
No. 331 informs the jury it should not decide whether an
individual with a developmental disability or cognitive
impairment is a credible witness based solely on the disability or
impairment. Rather, the instruction advises the jury the level of
the witness's developmental disability or cognitive impairment is
one factor it must consider.” (Catley, supra, 148 Cal.App.4th at p.
508.) In other words, the instruction undermines appellant’s
argument that An.’s alleged disability or impairment rendered
him less credible and more susceptible to coercion, which she
made to the jury despite the omission of CALCRIM No. 331.
Moreover, the People did not argue that the jury should rely
exclusively on An.’s testimony to prove the corporal injury

28
allegations. To the contrary, they cautioned the jury, “before you
conclude that the testimony of one witness proves a fact, carefully
review, think about, consider everything that you saw and heard
from this witness stand over the past few months.”
Additionally , the jury instructions must be considered as a
whole. (See Byers, supra, at p. 458.) Here, the court instructed
the jury with standard instructions on assessing the credibility of
witnesses (CALCRIM Nos. 105 & 226) and evaluating conflicting
evidence (CALCRIM No. 302), as well as an instruction regarding
prior testimony given by the quadruplets when they were 10
years old or younger (CALCRIM No. 330). The jury thus was
well aware that it could “consider anything that reasonably tends
to prove or disprove the truth or accuracy” of An.’s testimony,
including his ability to perceive the things about which he
testified, his demeanor on the stand, his age, and whether he
may have been influenced by others involved in the case. Any
error in the omission of CALCRIM No. 331 would be harmless.
II. Abduction Convictions
Appellant argues that her convictions for abducting Aa. and
Az. must be reversed because the trial court deprived her of a
defense and directed a verdict for the prosecution by
misinstructing on the element of malice, excluding hearsay
testimony regarding the alleged sexual abuse of Az. in foster care,
and failing to sua sponte instruct on the defense of necessity. We
reject these contentions.
A. Malice Instruction
1. Background
Appellant was charged with two counts of abduction under
section 278, which provides: “Every person, not having a right to
custody, who maliciously takes, entices away, keeps, withholds,

29
or conceals any child with the intent to detain or conceal that
child from a lawful custodian shall be punished . . . .” The court
instructed the jury that the offense required proof that appellant
acted with specific intent: “For you to find a person guilty of this
crime, that person must not only intentionally commit the
prohibited act, but must do so with a specific intent. The act and
specific intent required are explained in the instruction for that
crime.” (CALCRIM No. 252.) The instruction the court gave for
the crime was the pattern instruction, CALCRIM No. 1250, Child
Abduction: No Right to Custody. The specific intent it described
and defined was malice: “The defendant is charged in Counts
FIVE AND SIX with child abduction without a right of custody in
violation of Penal Code section 278. [¶] To prove that the
defendant is guilty of this crime, the People must prove that: [¶]
1. The defendant maliciously took, kept, withheld, or concealed a
child from her lawful custodian; [¶] 2. The child was under the
age of 18; [¶] 3. When the defendant acted, she did not have a
right to custody of that child; [¶] AND [¶] 4. When the defendant
acted, she intended to detain or conceal the child from the child’s
lawful custodian. Someone acts maliciously when he or she
intentionally does a wrongful act or when he or she acts with the
unlawful intent to disturb, defraud, annoy, or injure someone
else.” Appellant raised no objection to these instructions in the
trial court.
During their closing argument, the People argued that they
had proven all four elements of abduction as set forth in
CALCRIM No. 1250. As to malice, they argued: “Someone acts
maliciously when he or she intentionally does a wrongful act. . . .
. Intentionally did the wrongful act. Ms. Jackson knew she didn’t
have custody of her children on February 24th, 2017, and she

30
acted with the lawful [sic] intent. . . . No force or anything had to
be used, and it didn’t have to be dramatic. It wasn’t dramatic,
from what we heard. But it still fits the elements of the crime
and was against the law. . . . Ms. Jackson knew what she was
doing, which is why she’s been charged with a crime.”
Appellant also addressed malice during her closing
argument. She partially quoted the definition from CALCRIM
No. 1250 and argued that she did not intend to disturb, defraud,
annoy, or injure Aa. or Az. She further argued that she “didn’t
have the ability to follow” the no-contact court order, because she
“saw Az[.] for moments. I had to process my own emotions. This
is the real world; not a piece of paper. In the real world, I was
looking at my almost 12-year-old daughter I hadn’t seen in
forever. In the real world, I saw my own two daughters standing
in front of each other crying. In the real world I was trying to
process what happens next, and we were arrested. Me and
Cornesha were arrested, and in some aspect, so was Az[.], except
me and Cornesha could make phone calls, get mail, and visit.” In
rebuttal, the People responded to appellant’s argument that she
did not intend to disturb, defraud, annoy, or injure by pointing
out that the definition of maliciously listed the unlawful
intentions in the disjunctive using an “or” rather than in the
conjunctive using an “and.” They further argued, “Ms. Jackson
by taking her children, letting them get in the car, which is what
the evidence showed you happened, intentionally did a wrongful
act. Ms. Jackson knew she wasn’t supposed to let those kids get
in the car and drive them away and be with them for the next 48
hours, admittedly probably having fun, watching TV, braiding
hair, etc. That’s the wrongful act. And doing the wrongful act on
purpose, that’s the malicious part, as the law says right here.”

31
 2. Analysis
Appellant now contends that the child abduction
convictions “were the product of an unconstitutional application
of Penal Code section 278.”8 However, it appears her concern lies
primarily with CALCRIM No. 1250 and only indirectly with
section 278. She argues that CALCRIM No. 1250 “effectively
created an unconstitutionally impermissible presumption of
malice based upon the ‘undisputed’ facts that appellant took a
child under 18 years of age in violation of a court order. The
instruction erroneously permitted the jury to convict her based
solely on the commission of the ‘wrongful act’ of detaining or
concealing a child in violation of the court order,” regardless of
any justification, excuse, or mitigating circumstances underlying
her actions. We review her claims of instructional error and
removal of an issue from the jury’s consideration de novo. (People
v. Posey (2004) 32 Cal.4th 193, 218.)
Appellant’s claims rest upon on her assertion that the
definition of “maliciously” in CALCRIM No. 1250 is “incomplete.”
She asserts that the court should have added language to

8Respondent asserts, in a single sentence, that “because
appellant’s constitutional challenge to section 278 requires
analysis of the facts of this particular case, this Court should
deem it forfeited for failure to raise the issue in the trial court.”
The case respondent cites, In re Sheena K. (2007) 40 Cal.4th 875,
supports this proposition only in the context of as-applied
constitutional challenges to probation conditions. Moreover,
incorrect or incomplete instructions that allegedly affect an
appellant’s substantial rights are reviewable even if no objection
was raised in the trial court. (People v. Denman (2013) 218
Cal.App.4th 800, 812; § 1259.) We accordingly consider the
merits of appellant’s contentions.

32
CALCRIM No. 1250 to require the People to prove not only that
she intentionally did a wrongful act, but also that she did so
without justification, excuse, or mitigating circumstances. As a
result of this alleged incompleteness, she argues, the jury had “no
option other than to find ‘malice’ established by the mere proof of
a taking in violation of a custody order,” because “[t]he taking of
the child will necessarily result in a violation of the existing
orders, and that violation will necessarily constitute a ‘wrongful’
act within the ‘ordinary, everyday’ meaning of the word.”
Therefore, “[i]t is ‘impossible’ not to have acted ‘maliciously’ in
connection with the taking of the child,” and “[t]he prosecution is
relieved of the burden of proof on the malice element, because its
ultimate burden is reduced from three elements to two.”9 These
contentions are unavailing.
As the Supreme Court explained in the context of section
278.5, a child abduction statute that also requires a defendant to
act maliciously, the malice required is that defined in section 7,
subdivision (4), which “‘import[s] a wish to vex, annoy, or injure
another person, or an intent to do a wrongful act.’” (People v.
Neidinger (2006) 40 Cal.4th 67, 79 (Neidinger).) This definition is
substantively identical to that contained in CALCRIM No. 1250,
which thus accords with the law: “Someone acts maliciously

9As indicated above, CALCRIM No. 1250 sets forth four
elements that the People must prove beyond a reasonable doubt
to establish the offense of child abduction with which appellant
was charged. Appellant’s claim that the People’s burden of proof
decreased “from three elements to two” appears to be a
consequence of her nearly verbatim duplication of arguments
examined in an unpublished opinion addressing CALCRIM No.
1251, a similar instruction that lists three elements for a similar
child abduction offense.

33
when he or she intentionally does a wrongful act or when he or
she acts with the unlawful intent to disturb, defraud, annoy, or
injure someone else.” Appellant claims additional language is
needed to clarify that “intentionally” means “without
justification, excuse, or mitigating circumstance.” Whether a
defendant acted without justification, excuse, or mitigating
circumstance is a factual issue on which he or she bears the
burden of raising a reasonable doubt, not part of the offense the
People must prove. (See Neidinger, supra, 40 Cal.4th at pp. 74-
75, 79.)
Contrary to appellant’s claim, CALCRIM No. 1250 did not
leave the jury with no option but to convict her of child abduction
based solely on her violation of the protective order. The
instruction required the People to prove beyond a reasonable
doubt that appellant acted maliciously when she deprived DCFS
of its right to custody of Aa. and Az. by intentionally keeping,
withholding, or concealing the children. The People thus were
required to prove that appellant intentionally did one or more of
these wrongful acts, not merely that she violated the order.
Appellant contends that People v. Diaz (2005) 125
Cal.App.4th 1484 (Diaz) compels the opposite conclusion. In
Diaz, the defendant was charged with evading a pursuing police
officer while driving with willful or wanton disregard for the
safety of persons or property, in violation of Vehicle Code section
2800.2, subdivision (a). (Diaz, supra, 125 Cal.App.4th at p. 1486-
1487.) To prove the element of willful or wanton disregard for
safety, the prosecution had to prove that the defendant
committed three or more traffic violations during the pursuit.
(Id. at p. 1486.) The prosecution selected as one of those three
offenses failure to yield the right of way for an emergency vehicle,

34
specifically the one in pursuit; the jury found defendant guilty.
(Id. at p. 1487.) On appeal, the defendant argued that the
conviction should be reversed because it was impossible to
commit the offense of evading a police pursuit without also failing
to yield to the pursuing vehicle and therefore the prosecution only
had to prove two underlying traffic violations instead of three.
(See ibid.) The appellate court agreed. (Ibid.; see also id. at pp.
1490-1491.) It held that allowing the necessarily included offense
of failure to yield as one of the three violations the prosecution
had to prove “would mean there is automatically one qualifying
violation . . . whenever the People have proven the offense of
evading pursuit. In other words, the People are given a ‘freebie,’
and their burden is reduced from three violations to two
violations.” (Id. at p. 1491.) The court found the error was
prejudicial and reversed the defendant’s conviction. (Id. at pp.
1491-1492.)
Appellant asserts that “[t]he same problem arises in child
abduction cases where the child is the subject of custody orders
and the jury is instructed on malice in the form it was instructed
here. . . . It is ‘impossible’ not to have acted ‘maliciously’ in
connection with the taking of the child.” We are not persuaded.
First, Diaz is inapposite because it involved a statute that
required the prosecution to prove three predicate offenses to
establish an element of the charged offense; the statute at issue
here lacks any such requirement. Second, unlike the overlapping
offenses in Diaz, it is possible to violate a custody order without
wrongful or malicious intent. Under some circumstances,
including those appellant argued were present here, a reasonable
jury could conclude that a defendant violated a custody order
inadvertently or with permissible intentions.

35
 We reject appellant’s contention that CALCRIM No. 1250
“effectively created an unconstitutionally impermissible”
presumption of malice based upon the “undisputed” facts that she
took a child under 18 years of age in violation of a court order.
CALCRIM No. 1250 did not require the jury to find or presume
that appellant acted with malice in the event the jury found she
violated the custody order when she kept, withheld, or concealed
Aa. and Az. The instruction did not refer to the custody orders
and did not tell the jury it was required to make presumptions or
inferences. Although the jury could find from the evidence that
keeping, withhold, or concealing Aa. and Az. violated the custody
order, and that violating the custody order was a “wrongful act,”
these findings of fact alone were insufficient to compel a
conviction under the court’s instructions. As discussed above, the
People were still required to prove that appellant intentionally
did the alleged wrongful act. The jury could have acquitted
appellant if it had found the People failed to meet their burden of
proving beyond a reasonable doubt that she intentionally violated
the custody order. This could have occurred if, for example, there
was insufficient proof she knew about the custody order or if the
custody order was ambiguous. The instruction did not create a
mandatory presumption requiring the jury to find appellant acted
with malice solely because she violated the custody order.
B. Exclusion of Testimony & Necessity Defense
1. Background
While Az. was on the stand, appellant asked10 her if she
had told anyone she wanted to leave the foster home of Paula
Smith-Bull. The court sustained the People’s hearsay objection,

10The court permitted appellant to directly examine
witnesses called by the People.

36
but allowed appellant to ask Az. why she wanted to leave the
foster home. Az. answered that she did not like it there, and the
court sustained the People’s relevance objections to appellant’s
further inquiries as to why.
When Smith-Bull testified several days later, appellant
asked her, “Regarding the male figure that you testified
frequented your home, isn’t it true that you knew he was using
Az[.] for his sexual pleasures?” The court sustained the People’s
objection and told appellant, “There is no foundation for that.”
Appellant then asked if Smith-Bull had “any knowledge that
Az[.] was concerned with the male person that you had visiting
your home and him inappropriately touching her.” The court
sustained the People’s numerous objections, told appellant “no
more regarding any claim that is implied by your question that
Az[.] was a victim of any inappropriate touching,” and
admonished the jury that questions were not evidence.
Outside the presence of the jury, the court asked appellant
to explain the basis of her queries regarding the alleged sexual
assault of Az. Appellant stated, as the court summarized, that
she had “heard secondhand from other family members that Az[.]
was being sexually assaulted while in the care of Ms. Smith-
Bull.” She also informed the court that Cornesha had alluded to
the alleged abuse at the preliminary hearing.11 Appellant made

11At the preliminary hearing, Cornesha testified that Az.
“told me that she ran away because she was getting molested at
her foster home.” The People objected on hearsay grounds, and
appellant responded that the statement was “offered to prove
that [Az.] experienced that mental or physical state” and had
reached out to Cornesha at the park for protection. The
magistrate stated, “it’s a stretch,” but admitted the statement
under Evidence Code 1250 as “corroboration that the minor ran

37
no further offer of proof. After hearing argument, the court ruled
that appellant was “not to question any other witnesses” about
the alleged sexual assault of Az. unless she presented additional
evidence in an Evidence Code section 402 hearing. The court
further ordered, “You are not going to question the witnesses
about why she ran away. That raises the issue or possibility or
question that she was being sexually assaulted. That you are
prohibited from doing.”
The issue arose again during the defense case, in a
conference outside the presence of the jury. The court observed
that the reasons Aa. and Az. ran away from Smith-Bull’s foster
home would be relevant only if the People planned to argue that
appellant committed the abduction offense by taking or enticing
away the children. The People stated that they planned to argue
only that appellant kept, withheld, or concealed Aa. and Az. On
the basis of that representation, to which the court said it was
“going to hold them,” the court ruled that any testimony as to
why Aa. and Az. ran away was irrelevant. Appellant argued that
“the reason they chose to run away is significantly relevant
because it goes to the state of mind of both Az[.] and Aa[.],” and
asserted that in the absence of such evidence, “it just seems like
[Az.] was some crazy kid just running all over town.” The court
stated it understood that argument, but ruled that any limited
relevance in that regard would be outweighed by the undue
consumption of time and possibility of confusing the jury. (See
Evid. Code, § 352.)

away as opposed to being taken.” On cross-examination,
Cornesha testified that Az. had disclosed to her “touching from
her foster dad.” Cornesha further testified that she did not call
the police upon receipt of this information.

38
 The People adhered to their promise during closing,
arguing only “that the evidence shows that Ms. Jackson intended
to detain or conceal the children from their lawful custodian,
[DCFS].” Appellant argued that she had “happened upon” Az.
and was in her presence for mere “moments” before law
enforcement arrested appellant in front of Az. “to show me who
was boss.” She further contended that law enforcement “weren’t
looking” for Aa.; “[i]f he believed that Aa[.] was with me, you
think he would have canvassed the area.”
2. Analysis
Appellant now contends the court erred in excluding
evidence of Az.’s alleged abuse, both because it was relevant to
appellant’s state of mind and because it prevented appellant from
presenting a necessity defense. Appellant further contends that
the court erred in failing to sua sponte instruct on the necessity
defense, which she asserts was supported by substantial evidence
and was “the only viable defense strategy remaining after [she
was] deprived of any meaningful opportunity to defend against a
finding of ‘malice.’” We reject these contentions.
We review the trial court’s decision to exclude evidence for
abuse of discretion. (People v. Peoples (2016) 62 Cal.4th 718,
745.) “The decision to exclude evidence ‘will not be disturbed
except on a showing [that] the trial court exercised its discretion
in an arbitrary, capricious, or patently absurd manner that
resulted in a manifest miscarriage of justice [citation].’
[Citation.]” (Ibid.) Appellant has not made that showing here.
The court excluded the evidence at various points as lacking
foundation, irrelevant, unduly time-consuming, and potentially
confusing. So long as one of those bases was valid, we need not
evaluate every alternative rationale for excluding the evidence.

39
(See People v. Bacon (2010) 50 Cal.4th 1082, 1103.) In light of
the arguments raised here, we begin with relevance.
Only relevant evidence is admissible. (Evid. Code, § 350.)
Evidence is relevant if it has “any tendency in reason to prove or
disprove any disputed fact that is of consequence to the
determination of the action.” (Evid. Code, § 210.) As the trial
court observed, evidence concerning the alleged sexual abuse
would have been relevant if the People sought to prove that
appellant physically took Az. from her foster home, assuming
there was also evidence that appellant was aware of the alleged
abuse. However, whether appellant took Az. was not a disputed
fact in the case. To the extent that the evidence may have been
relevant to Az.’s state of mind and provided a basis for her
actions, as appellant argued, the court did not abuse its
discretion in concluding that this limited probative value was
substantially outweighed by undue consumption of time and the
possibility of confusing the issues before the jury. (Evid. Code,
§ 352.)
Appellant contends that the court abused its discretion
because the evidence was “relevant to appellant’s state of mind in
determining whether she acted with ‘malice,’ a critical element of
the prosecution’s proof required to convict her of child abduction.”
Respondent argues that appellant forfeited this contention
because she did not cite that basis of admissibility in the trial
court. (See Evid. Code, § 354; People v. Saunders (1993) 5 Cal.4th
580, 589-590.) Appellant, who acknowledges that she did not
seek to admit the evidence on this basis, asks us to nonetheless
consider the argument because the exclusion of the evidence
deprived her of due process and a meaningful opportunity to
present a defense—the defense of necessity. Relatedly, she

40
contends the court erred by failing to instruct the jury on the
defense of necessity.
The defense of necessity is in essence a public policy
determination that an individual should not be punished for a
crime he or she committed to avoid greater harm. (See People v.
Heath (1989) 207 Cal.App.3d 892, 900-901.) “To justify an
instruction on the defense of necessity, there must be evidence
sufficient to establish that defendant violated the law (1) to
prevent a significant evil, (2) with no adequate alternative, (3)
without creating a greater danger than the one avoided, (4) with
a good faith belief in the necessity, (5) with such belief being
objectively reasonable, and (6) under circumstances in which he
[or she] did not substantially contribute to the emergency.”
(People v. Pepper (1996) 41 Cal.App.4th 1029, 1035.) A trial court
has a sua sponte duty to instruct on an affirmative defense if
there is substantial evidence supportive of the defense and the
defense is not inconsistent with the defendant’s theory of the
case. (People v. Brooks (2017) 3 Cal.5th 1, 73.)
Here, the only evidence appellant cites in support of a
necessity defense is the evidence the court excluded—allegations
that Az. suffered sexual abuse in her foster home. Excluded
evidence is not substantial evidence. Appellant asserts that the
court should have admitted the evidence, thereby supporting a
necessity defense, to ensure that her due process rights as a self-
represented litigant were protected. We are not persuaded. “Pro.
per. litigants are held to the same standards as attorneys.”
(Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)
“[T]he cost of recognizing a criminal defendant’s right to self-
representation may result ‘“in detriment to the defendant, if not
outright unfairness.”’ [Citation.] But that is a cost that we allow

41
defendants the choice of paying, if they can do so knowingly and
voluntarily.” (People v. Mickel (2016) 2 Cal.5th 181, 206.)
Appellant, who competently represented herself throughout a
lengthy trial, gave no indication that she intended to present a
defense of necessity. To the contrary, her defense to the
abduction charge was that she encountered Az. mere moments
before she was arrested for abduction. The trial court was not
obligated to anticipate and suggest to appellant theories of
defense or admissibility to ensure that her due process rights
were protected.
Appellant argues that People v. Minifie (1996) 13 Cal.4th
1055 (Minifie) compels the opposite result. In Minifie, a
represented defendant charged with “assaultive crimes” sought to
introduce evidence of threats made against him by people other
than the victim to support his theory of self-defense. (Minifie,
supra, 13 Cal.4th at p. 1060.) The trial court excluded the
proffered evidence, ruling that it was inadmissible character
evidence or, alternatively, that it was substantially more
prejudicial than probative under Evidence Code section 352. (Id.
at pp. 1062-1063.) The defendant proceeded with his self-defense
argument, but was unable to use the excluded evidence to
support it. (See id. at pp. 1063-1064.) The jury found him guilty
of unlawful possession of a firearm by a felon and assault with a
deadly weapon. (Id. at p. 1064.)
On appeal, the defendant argued that the threats made by
third parties were admissible to prove his own state of mind and
the reasonableness of his fear of the victim; both the Court of
Appeal and the Supreme Court agreed. (Minifie, supra, 13
Cal.4th at pp. 1065-1066.) The Supreme Court further held that
the trial court abused its discretion under Evidence Code section

42
352. (Id. at p. 1070.) Adopting the analysis of the Court of
Appeal, it reasoned, “‘None of the considerations supporting the
discretionary exclusion of relevant evidence substantially
outweighed the probative value of the evidence at issue here.
Presentation of evidence at the heart of the defense would not
have represented an “undue” consumption of time. There was no
risk of prejudice associated with the evidence. “The prejudice
referred to in Evidence Code section 352 applies to evidence
which uniquely tends to evoke an emotional bias against . . . [one
party] . . . and which has very little effect on the issues.”
[Citation.] Evidence bearing on [defendant’s] state of mind was
highly probative, and had no “unique tendency” to evoke any
emotional bias against the prosecution. Evidence that
[defendant] might have had reason to fear for his life would not
have “confused the issue.” It would have further illuminated the
situation the jury was required to evaluate.’” (Id. at pp. 1070-
1071.) The Supreme Court concluded the error was prejudicial as
to the assault convictions, because “the excluded evidence was
central to the defense” such that “the claim of self-defense was
not compelling” in its absence. (Id. at p. 1071.) The court held
that the excluded evidence “would have strengthened the defense
considerably,” as the jury may have found that the third-party
threats “justified a stronger reaction to [the victim’s] punch than
would otherwise be reasonable.” (Ibid.)
This case is not analogous to Minifie. Here, appellant did
not apprise the court that she wanted to introduce the evidence to
support a necessity defense, nor did she attempt to advance a
materially weakened necessity defense in its absence. The
suggestion that a child was sexually abused in a foster home is
precisely the type of evidence that tends to evoke an emotional

43
bias while having very little effect on the defense that appellant
advanced as early as her opening statement. The trial court did
not err by excluding the evidence or not instructing the jury on
the defense of necessity.
III. Cumulative Error
Appellant argues that the cumulative effect of the errors
she has identified requires reversal of her convictions. Because
we found no errors, we reject this claim.
IV. Section 12022.1 Enhancement
Appellant contends that the trial court violated her
constitutional right to a jury trial on every fact essential to
punishment by finding that she committed the abduction offenses
while on bail. Because the court made the finding rather than
presenting the issue to the jury, she argues that the
enhancement must be stricken. The record indicates that the
trial court already struck the enhancement. Accordingly, this
issue is moot.
A. Background
The information alleged, pursuant to section 12022.1, that
appellant committed the child abduction offenses while she was
on bail in case SA091444, a previous iteration of the instant case.
No evidence regarding appellant’s bail status was introduced at
trial, the jury was not instructed on section 12022.1, and the
allegations were not included on the verdict forms. At a hearing
approximately one month after trial, the court raised the issue of
the on-bail enhancement allegations as a “clean-up item” that “is
appropriately addressed now.” The court explained to appellant,
“you don’t have a right to a jury trial on that issue. But it is a
factual determination that the court has to make at sentencing
with the appropriate findings to be made.” The court took

44
judicial notice of the relevant court files and, based on their
contents, found appellant “guilty of violating Penal Code section
12022.1.” Appellant raised no objections to the procedure or the
findings. The court later ordered the imposition of sentence
suspended and granted appellant formal probation of three years.
It made no mention of section 12022.1.
B. Analysis
Section 12022.1 provides for an enhanced sentence when a
defendant commits a felony (“secondary offense”) while released
on bail or his or her own recognizance after being charged with a
previous felony (“primary offense”). The enhancement allegation
“shall be pleaded in the information or indictment which alleges
the secondary offense . . . and shall be proved as provided by law.”
(§ 12022.1, subd. (c).) If the enhancement is so proven, the
defendant “shall be subject to a penalty enhancement of an
additional two years [in state prison], which shall be served
consecutive to any other term imposed by the court.” (§ 12022.1,
subd. (b).) Additionally, subdivision (f) provides that, if the
defendant is sentenced to probation on the primary offense and
convicted of the secondary offense, “any sentence for the
secondary offense shall be enhanced as provided in subdivision
(b).” (§ 12022.1, subd. (f).) The primary offenses in this case were
the corporal injury offenses; the secondary offenses were the child
abduction offenses. There is no indication that appellant’s
probation term was extended as a result of the court’s findings.
We interpret this as the trial court’s exercise of its discretion to
strike the section 12022.1 enhancement under section 1385. (See
People v. Meloney (2003) 30 Cal.4th 1145, 1155-1156.)
Appellant nevertheless contends that the enhancement
must now be stricken as unconstitutional under Apprendi v. New

45
Jersey (2000) 530 U.S. 466, Blakely v. Washington (2004) 542
U.S. 296, and Descamps v. United States (2013) 570 U.S. 254.
Since the enhancement already was stricken or otherwise not
applied, we need not and do not wade into the morass of this
complex issue.
V. Fines and Fees
Appellant argues that the court erred under People v.
Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) by imposing fines
and fees pursuant to section 1202.4, section 1465.8, and
Government Code section 70373 without first holding an ability-
to-pay hearing. She requests a remand with directions for the
trial court to stay these fines and fees “unless the People can
prove appellant has the ability to pay.”12
A. Background
At the sentencing hearing, after the court indicated an
intent to set a restitution hearing, appellant made the following
statement: “[R]egarding the volunteer or the community service,
that costs money for me to be attached with that. Probation costs
money. Community service costs money. The fines and costs cost
money. The court ordered me to be in LA costs money [sic] when
I have housing and have resided in another state prior to now.
Everything costs money. And somehow this court wishes me to
expend all of that in honoring the orders made of the court. I just

12Currently pending before the Supreme Court is People v.
Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019,
S257844, in which the parties have been asked to address two
issues: “Must a court consider a defendant’s ability to pay before
imposing or executing fines, fees, and assessments? If so, which
party bears the burden of proof regarding defendant’s inability to
pay?”

46
think it’s too much. I think it’s too much.” She asked the court to
exercise its discretion and stay restitution.
The court explained that it did not “have the discretion to
disregard victim restitution based on your inability to pay.” It
continued, “The areas that I do have discretion based on your
inability to pay, to suspend, if you will, or to wipe out are the
areas of the restitution fine, which I would affix at the minimum
of $300 now, and the domestic violence fine, which is a $400 fine,
which I would affix now. The notion of your ability to pay can
mean - - there is some misunderstanding. I recognize that right
now you may not have the cash in your bank account to write a
check for these amounts. But that does not mean under the law
that you do not have the ability to pay them over time. Over time
would consist for [sic] the period of probation. If at the end of the
term of probation you still are unable to pay those amounts, then
the court often will order them waived after that, to the extent
they are waivable. . . . You have the physical ability to be
employed and earn money. I recognize that being a convicted
felon impairs that ability to some extent. But all of the
defendants that come before me face those same challenges and
eventually they are overcome or at the end of probation
ultimately determine that they in fact . . . do not have the ability
to pay them in full. . . . When you ask me that I stay them, yes, it
is stayed as a practical matter until you have the ability to pay.
Whether I ultimately order a portion of it waived or not will
depend on truly your inability to pay at all throughout the term
of probation.”
Appellant then informed the court that she did not have
stable housing in California, but had access to housing in
Michigan. She explained, “I don’t have anything here. I’m living

47
with someone. I have an entire residence somewhere else. I
don’t have ability [sic] to work here to make the desired income to
care for my family with these convictions. So this court is
essentially rendering me homeless.” The court stated that it
understood that appellant “would have free housing in Michigan
and that housing is a significant expense.” It ruled, however,
that it would not allow probation to be transferred to Michigan
immediately, but stated that decision was without prejudice to
appellant later making a showing that comparable services were
available in Michigan.
The court ultimately ordered appellant to pay a restitution
fine, which it fixed “at the minimum amount of $300 [(§ 1202.4)];
a probation revocation restitution fine in the same amount, which
I order stayed unless your probation is revoked and the sentence
is imposed [(§ 1202.45)]; a criminal conviction assessment of $30
[(Gov. Code, § 70373)]; a criminal court security [assessment] of
$40 [(§ 1465.8)]; and the cost of probation to be determined by the
probation officer subject to an ability to pay hearing, as well as a
domestic violence payment of $400, again subject to . . . an
ability-to-pay hearing [(§ 1203.097)].” After the clerk advised the
court that the domestic violence fee was now $500, the court
imposed a $500 fee, “subject to your ability to pay over the term
of probation.” The court ordered appellant to return in
approximately one month “for restitution hearing setting, ability-
to-pay hearing, if necessary, and firearms compliance.”
The appellate record does not contain a transcript of or any
documents pertaining to a further restitution or ability-to-pay
hearing.

48
 B. Analysis
In Dueñas, supra, 30 Cal.App.5th 1157, Division Seven of
this court held that the imposition of assessments under section
1465.8 and Government Code section 70373 without a
determination that the defendant has the ability to pay them
“violates due process under both the United States Constitution
and the California Constitution.” (Dueñas, supra, 30 Cal.App.5th
at p. 1168.) It further held that the execution of restitution fines
imposed under section 1202.4 must be stayed “until and unless
the People demonstrate that the defendant has the ability to pay
the fine.” (Id. at p. 1172.) Division Two of this court
subsequently concluded that Dueñas was wrongly decided in
People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov.
26, 2019, S258946. Courts across the state have joined one side
or the other of this ongoing dispute, which, as noted above, is
currently pending before the Supreme Court. Rather than take a
position, we will assume for purposes of this appeal that the
principles of Dueñas are applicable here.
There is no error with respect to the restitution fine
imposed under section 1202.4. The court explicitly advised
appellant that it was required to impose the fine but would stay
execution of the fine and possibly even waive it, depending upon
appellant’s ability to pay. Indeed, the court scheduled an ability-
to-pay hearing shortly after the sentencing hearing. These
procedures are consistent with those contemplated in Dueñas.
Even if appellant’s due process rights were violated with
respect to the assessments imposed under section 1465.8 and
Government Code section 70373, we are not persuaded that
appellant was prejudiced. As the trial court correctly recognized,
ability to pay is not a static inquiry. (E.g., People v. Kopp, supra,

49
38 Cal.App.5th at p. 96 [“[T]he trial court should not limit itself
to considering only whether Appellants have the ability to pay at
the time of the sentencing hearing. As both Appellants will be
serving lengthy prison sentences, it is appropriate for the court to
consider the wages that both men may earn in prison.”].) Several
cases accordingly have held that no prejudice occurs if a convicted
defendant has the ability to earn wages while in prison. (See
People v. Lowery (2020) 43 Cal.App.5th 1046, 1060; People v.
Aviles (2019) 39 Cal.App.5th 1055, 1076; People v. Jones (2019)
36 Cal.App.5th 1028, 1035.) The same principle applies even
more strongly where, as here, appellant is not incarcerated and
therefore has the opportunity to earn well above the $12 to $56
per month an incarcerated person can. (See People v. Jones,
supra, 36 Cal.App.5th at p. 1035.)
As the court observed, appellant, who was 38 years old at
the time of sentencing, had “the physical ability to be employed
and earn money” during her three-year term of probation. The
assessments at issue totaled $70. Nothing in the record
reasonably suggests that appellant would be unable to pay this
sum, approximately $1.95 per month for the duration of her
probation, to satisfy the obligations, particularly if she
successfully transferred her probation to a jurisdiction in which
she had low-cost housing available. Moreover, unlike the
defendant in Dueñas, she is not facing a recurring cycle of debt or
repeated incarceration solely because of her financial status.
(See Dueñas, supra, 30 Cal.App.5th at p. 1164 & fn. 1.)
Additionally, the trial court contemplated reassessment of
appellant’s ability to pay throughout her period of probation. On
this record, we conclude that any Dueñas error was harmless.

50
 DISPOSITION
The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J.

CURREY, J.

51