Filed 7/26/21 P. v. Sandoval CA4/1
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COURT OF APPEAL FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077538
Plaintiff and Respondent,
v.
VICTOR SANDOVAL,
Defendant and Appellant. (Super. Ct. No. SCN403638)
APPEAL from a judgment of the Superior Court of San Diego County,
Brad A. Weinreb, Judge. Affirmed and remanded with directions.
Russell S. Babcock, under appointment by the Court of Appeal, for the
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters and Julie L.
Garland, Assistant Attorneys General, Steve Oetting and Heather Bushman
Arambarri, Deputy Attorneys General, for the Plaintiff and Respondent.
A jury convicted Victor Sandoval of arson. (Pen. Code,1 § 451.) The
court sentenced him to three years’ probation and ordered him to pay certain
1 Undesignated statutory references are to the Penal Code.
fines, fees and assessments, starting one year after sentencing at $35 per
month.
Sandoval contends: (1) insufficient evidence supported his arson
conviction; (2) his counsel provided ineffective assistance by failing to object
to certain testimony; (3) the court erroneously failed to order a mental
competency examination under section 1368 despite signs that he was
mentally ill; (4) the court erroneously instructed the jury with CALCRIM No.
372 regarding flight; and (5) the court erroneously imposed the fines, fees and
assessments without determining his ability to pay them, in violation of his
constitutional rights and under People v. Duenas (2019) 30 Cal.App.5th 1157.
We affirm the judgment and remand with directions set forth below.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2019, a woman saw Sandoval carrying “an armful of
branches” near a wooded area. She watched him for approximately five
minutes as he added leaves from one pile of branches to another. She saw
smoke and flames rise from one pile. She called 911.
Another passerby noticed smoke rising from some nearby trees and saw
Sandoval moving away from the area. The man videotaped Sandoval, and
asked if he had started the fire. Sandoval denied doing so. Afterwards,
Sandoval walked away and “was being casual like nothing happened.” The
man called 911. He also extinguished the fire. The video recording was
played for the jury.
An Oceanside Police Department arson detective who investigated the
fire described the surrounding area as “about a ten-acre preserve area where
there’s just nothing built on it. In close proximity, you have a lot of homes.
On any given corner, you have multifamily homes, single-family homes. Very
dry wooded area. A lot of under—undergrowth that’s dead, easily
2
combustible, and it could easily be set on fire.” The detective testified that a
charred tree trunk indicated this incident involved not “just the smoldering
fire. It was a fire that was burning quite well.”
The Defense Case
At trial, Sandoval was asked if he “intentionally” started the fire, and
he replied, “Yeah,” explaining that his “goal was to smell that church-type of
smell” by putting eucalyptus branches on the fire to “get an incense effect.”
Sandoval testified: “I was careful because I was thinking to myself that I
could have burned acres, create damage or—so I clean around the—around
the tree like eight-feet [sic] radius, and then I started a fire.” Defense counsel
asked Sandoval, “Why did you select to start [the fire] next to a tree?” He
replied, “Because that tree would help me to avoid the—the wind, because I
checked the direction of the wind and the wind was heading—it was blowing
towards east, and then the tree was—was blocking me from the fire to
spread.” He added, “And so I was kind of supervising the fire.” Sandoval
testified he extinguished the fire by stepping on it. But he acknowledged the
fire was still smoking when he walked away: “I just put it out and then I
walked away. And then when I walked away, I saw this man videotaping . . .
me and asking me: [‘]Did you start a fire?[’] And I said [‘]no,[’] because there
was no more fire.” Sandoval said he did not have to answer the man, who
was not an “officer or anything like that.”
In closing, defense counsel argued Sandoval was not guilty of arson but
rather of the lesser included offense of unlawfully starting a fire: “[Sandoval]
told the officer that he set the fire to smell eucalyptus because that has a
spiritual effect on him. And Mr. Sandoval did so recklessly. He did not do it
with a malicious intent. He did not do it with a wrongful intent. When he set
that pile of brush on fire to smell the eucalyptus, he got his spiritual effect,
3
and then he believed he put out the fire and he walked away.” Defense
counsel added: “Even though [Sandoval] cleared that area, he ignored the
risk because he went ahead and he started the fire. And ignoring the risk is
a gross deviation from what a reasonable person would do.”
DISCUSSION
I. Sufficiency of the Evidence Challenge
Sandoval contends insufficient evidence supported his arson conviction:
“The crux of the issue in this case is that while [Sandoval] did intend to burn
eucalyptus leaves, there is no evidence that he intended the fire to spread out
to burn forest land or woods. . . . [H]ere, there is a complete absence of
malice because the uncontroverted evidence is that [he] only attempted to
burn eucalyptus leaves, attempting to extinguish them after his ceremony,
and he did not intentionally do damage to the woodlands.” He further
requests that this court “consider exercising its discretion” and reduce his
conviction to the lesser included offense of unlawfully causing a fire to forest
land. (§ 452.)
A. Applicable Law
“ ‘In reviewing the sufficiency of the evidence, we must 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.]’ [Citation.] ‘ “[O]ur role
on appeal is a limited one.” [Citation.] Under the substantial evidence rule,
we must presume in support of the judgment the existence of every fact that
the trier of fact could reasonably have deduced from the evidence. [Citation.]
Thus, if the circumstances reasonably justify the trier of fact’s findings, the
opinion of the reviewing court that the circumstances might also reasonably
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be reconciled with a contrary finding does not warrant reversal of the
judgment.’ ” (In re V.V. (2011) 51 Cal.4th 1020, 1026.)
“A person is guilty of arson when he or she willfully and maliciously
sets fire to or burns or causes to be burned . . . any structure, forest land, or
property.” (§ 451.) Arson requires only a general criminal intent; “the
specific intent to set fire to or burn or cause to be burned the relevant
structure or forest land is not an element of arson.” (People v. Atkins (2001)
25 Cal.4th 76, 84.) Thus, there must be a general intent to willfully commit
the act of setting on fire under such circumstances that the direct, natural,
and highly probable consequences would be the burning of the relevant
structure or property. (In re V.V., supra, 51 Cal.4th at p. 1029.) In the
context of arson, the definition of “maliciously” does not require a “specific
intent to do a further act or achieve a future consequence.” (Id. at p. 1027.)
Rather, “arson’s ‘willful and malice requirement ensures that the setting of
the fire must be a deliberate and intentional act, as distinguished from an
accidental or unintentional ignition or act of setting a fire.’ ” (Id. at p. 1029.)
“[M]alice will be presumed or implied from the deliberate and intentional
ignition or act of setting a fire without a legal justification, excuse, or claim of
right.”2 (Id. at p. 1028.)
2 The court instructed the jury on arson with CALCRIM No. 1515: “To
prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant set fire to or burned forest land; [¶] AND [¶] 2. He acted
willfully and maliciously. [¶] To set fire to or burn means to damage or
destroy with fire either all or part of something, no matter how small the
part. [¶] Someone commits an act willfully when he or she does it willingly
or on purpose. [¶] Someone acts maliciously when he or she intentionally
does a wrongful act or when he or she acts with the unlawful intent to
defraud, annoy, or injure someone else. [¶] Forest land means brush-covered
land, cut-over land, forest, grasslands, or woods.”
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B. Analysis
As set forth above, substantial evidence showed that Sandoval
intentionally started the fire. He testified to doing so. Further, a witness
saw him adding leaves to a fire. Another witness videotaped Sandoval as he
was leaving the area, and captured his denial that he had started the fire.
The detective testified the fire was burning “quite well,” and posed a threat to
the neighborhood. Based on this evidence and the court’s instructions, the
jury could reasonably conclude that the malice element was met here because
Sandoval did not ignite the fire accidentally or unintentionally. (In re V.V.
supra, 51 Cal.4th at p. 1029.) His claim that he did not intend to set the
woodlands on fire is unavailing, as arson does not require the specific intent
“to do a further act or to achieve a future consequence.” (People v. Booker
(2011) 51 Cal.4th 141, 177.)
For the same reason, we decline Sandoval’s invitation to reduce his
conviction to the lesser included offense.3 The jury evaluated the evidence
and court instructions and declined to find that he acted merely recklessly
and unintentionally when he set the fire and walked away while it was still
smoking. (Accord, In re V.V., supra, 51 Cal.4th at pp. 1032-1033; People v.
3 The court instructed the jury with CALCRIM No. 1532 about the crime
of unlawfully causing a fire under section 452: “A person acts recklessly
when (1) he or she is aware that his or her actions present a substantial and
unjustifiable risk of causing a fire, (2) he or she ignores that risk, and (3)
ignoring the risk is a gross deviation from what a reasonable person would
have done in the same situation. [¶] To set fire to or burn means to damage
or destroy with fire either all or part of something, no matter how small the
part. [¶] Forest land means brush-covered land, cut-over land, forest,
grasslands, or woods. [¶] Property means personal property or land other
than forest land. [¶] Arson and unlawfully causing a fire require different
mental states. For arson, a person must act willfully and maliciously. For
unlawfully causing a fire, a person must act recklessly.”
6
Green (1983) 146 Cal.App.3d 369, 379.) We have no basis for rejecting the
jury’s verdict based on the trial record.
II. Ineffective Assistance of Counsel Claim
Sandoval contends he received ineffective assistance of counsel, who
failed to object to the arson detective’s testimony regarding a whiskey can
that appeared like a Molotov cocktail and was found near the fire.
A. Background
On direct examination, the detective testified regarding the can that
“there was some stuffing material that was sticking out of [the can] as if it
was being turned into maybe a makeshift Molotov cocktail.” He described
such an item as “some combustible material fluid that’s placed in some type
of container with a fuse attached to it that . . . you could light the fuse and,
when you throw the bottle or container, the material or the fluids,
combustible material could be gas. It could be just about anything that is on
fire. When it hits, it sprays around and starts a quick fire.”
On cross-examination, defense counsel asked the detective about the
can:
“[Defense Counsel:] And you described a whiskey container that was
empty; is that correct?
“[The Detective:] Yes.
“[Defense Counsel:] And as far as you know, that whiskey container
was not used to start the particular fire that is being discussed today; is that
correct?
“[The Detective:] As far as I know, it had no use in the fire.”
B. Applicable Law
To prove counsel provided ineffective assistance, a defendant must
show both that counsel’s performance fell below an objective standard of
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reasonableness under prevailing professional norms, and the deficient
performance prejudiced him. (Strickland v. Washington (1984) 466 U.S. 668,
687.) “Judicial scrutiny of counsel’s performance must be highly deferential.
It is all too tempting for a defendant to second-guess counsel’s assistance
after conviction or adverse sentence, and it is all too easy for a court,
examining counsel’s defense after it has proved unsuccessful, to conclude that
a particular act or omission of counsel was unreasonable. [Citation.] A fair
assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances
of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” (Id. at p.
689.) We accord great deference to counsel’s tactical decisions. (People v.
Jones (2003) 29 Cal.4th 1229, 1254.)
“Defendant must also show that if counsel’s performance fell below
acceptable standards in some respect, a reasonable probability exists that a
more favorable outcome would have been reached absent the deficient
performance. [Citation.] That probability must be one sufficient to
undermine confidence in the outcome of the trial.” (People v. Karis (1988) 46
Cal.3d 612, 656.) In considering a claim of ineffective assistance of counsel, it
is not necessary to determine “ ‘whether counsel’s performance was deficient
before examining the prejudice suffered by the defendant as a result of the
alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice, which we expect will often be so,
that course should be followed.’ ” (In re Fields (1990) 51 Cal.3d 1063, 1079,
quoting Strickland, supra, 466 U.S. at p. 697.)
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C. Analysis
We dispose of this argument on the ground that Sandoval has failed to
show prejudice. Defense counsel on cross-examination specifically raised the
issue of the whiskey can and the detective confirmed that it was not used to
start the fire. With that strategy, defense counsel highlighted for the jury
that the reference to Molotov cocktails was immaterial to the facts of this
case. Therefore, counsel blunted any prejudice that the Molotov cocktail
reference might have presented. In light of the ample evidence set forth
above that Sandoval started the fire intentionally, he has not shown that he
would have received a different result absent the detective’s challenged
testimony; therefore, this claim fails.
III. Mental Competency Hearing
Sandoval contends the trial court violated his state and federal
constitutional rights to due process and a fair trial by failing to sua sponte
order a mental competency hearing under section 1368 despite the fact he
showed “strong signs during the trial that [he] was suffering from a mental
disease or impairment that would have made it impossible for him to assist
in his defense.” He alternatively contends his counsel provided ineffective
assistance by failing to request a mental competency hearing.
A. Background
Sandoval bases his claims on two statements he made during his
testimony: First, he said: “I started [the fire] in order for me to show people
how to bring the Holy Spirit down, you know, trying to burn—make fire and
suffocate it with green eucalyptus and make the neighborhood smell like—
holy smokes, you know, like it has an effect on me that creates a—makes me
believe that Holy Spirit comes down to us and helps us out.”
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Second, Sandoval said he used eucalyptus leaves because “[t]hat’s how
you—how you get the smell on—out of—smells like church, cause you’ve
got—you got to add the green leaves of eucalyptus on top of the fire, so it’ll
get like oil out of those leaves and bring some like brown smoke, and that’s
the one that creates the odor of the Holy Spirit.”
Third, Sandoval relies on his manner of greeting the judge at the
March 9, 2020 sentencing hearing: “Your Honor—a warm physical and
spiritual manner, I would have burned bridges to recovery. Anyways, I need
a decision that you make in this case will be the right [sic].”
B. Applicable Law
“[T]he conviction of an accused when he is legally incompetent violates
due process.” (People v. Medina (1990) 51 Cal.3d 870, 881.) “[A] competency
hearing is required whenever substantial evidence of the accused’s
incompetence has been introduced.” (Id. at p. 882.) “A defendant is mentally
incompetent . . . if, as a result of a mental health disorder or developmental
disability, the defendant is unable to understand the nature of the criminal
proceedings or to assist counsel in the conduct of a defense in a rational
manner.” (§ 1367, subd. (a).) “It shall be presumed that the defendant is
mentally competent unless it is proved by a preponderance of the evidence
that the defendant is mentally incompetent.” (§ 1369, subd. (f).)
“When . . . a competency hearing has already been held and the
defendant was found to be competent to stand trial, a trial court is not
required to conduct a second competency hearing unless ‘it “is presented with
a substantial change of circumstances or with new evidence” ’ that gives rise
to a ‘serious doubt’ about the validity of the competency finding.” (People v.
Marshall (1997) 15 Cal.4th 1, 33.) “More is required than just bizarre actions
or statements by the defendant to raise a doubt of competency.” (Ibid.) “[A]
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reviewing court generally gives great deference to a trial court’s decision
whether to hold a competency hearing.” (Ibid.) “ ‘ “An appellate court is in
no position to appraise a defendant’s conduct in the trial court as indicating
insanity, a calculated attempt to feign insanity and delay the proceedings, or
sheer temper.” ’ ” (Ibid.)
If a doubt arises in the mind of the judge as to the mental competence
of the defendant, he or she shall state that doubt on the record and inquire of
defense counsel whether counsel believes the defendant is mentally
competent. (§ 1368, subd. (a).) “ ‘Evidence of incompetence may emanate
from several sources, including the defendant’s demeanor, irrational
behavior, and prior mental evaluations.’ ” (People v. Murdoch (2011) 194
Cal.App.4th 230, 236; see People v. Rogers (2006) 39 Cal.4th 826, 847.) But to
be entitled to a competency hearing, a defendant must exhibit more than a
preexisting psychiatric condition that has little bearing on the question of
whether the defendant can assist defense counsel. (In re Sims (2018) 27
Cal.App.5th 195, 208.)
A defense counsel’s failure to move for a competency hearing may
violate the defendant’s right to effective assistance “when ‘there are sufficient
indicia of incompetence to give objectively reasonable counsel reason to doubt
the defendant’s competency, and there is a reasonable probability that the
defendant would have been found incompetent to stand trial had the issue
been raised and fully considered.’ ” (Stanley v. Cullen (9th Cir. 2011) 633
F.3d 852, 862.) However, an attorney “is not ineffective for failing to raise
the issue of competence where there may be some evidence raising a doubt,
but that evidence is not substantial.” (People v. Mickel (2016) 2 Cal.5th 181,
200.) C. Analysis
11
Contrary to Sandoval’s argument, his challenged statements made
during the trial regarding the Holy Spirit and his wish to elicit the smell of
church do not provide substantial evidence of his mental incompetency.
Although bizarre or seemingly irrelevant comments may indicate some form
of mental illness, they do not necessarily indicate incompetency for trial
purposes. (People v. Koontz (2002) 27 Cal.4th 1041, 1064.) “Bizarre
statements or actions, taken in isolation, do not require a court to hold a
competency hearing.” (In re Sims, supra, 27 Cal.App.5th at p. 209.)
Sandoval’s statements did not alert the court about a possible need for a
mental competency examination. Sandoval has pointed to nothing in the
record indicating that he was unable to understand the proceedings against
him or assist in his defense.
Further, as shown by defense counsel’s closing arguments, she did not
regard Sandoval’s trial statements as signs of mental illness; rather, she used
them to support her argument that Sandoval set the leaves on fire for its
“spiritual effect,” and not out of malice, and thus the jury should not find him
guilty of arson, but only of the lesser included offense. This was a tactical
defense that was incompatible with a request for a section 1368 hearing.
Accordingly, we conclude Sandoval has “failed to show affirmative evidence
that counsel could have had ‘no rational tactical purpose’ for these decisions,
[thus he] has not demonstrated constitutionally deficient performance on this
record.” (Mickel, supra, 2 Cal.5th at pp. 198, 200.)
IV. Flight Instruction
Sandoval contends the trial court erred by instructing the jury
regarding flight with CALCRIM No. 372 because there was insufficient
evidence that he actually fled or otherwise sought to avoid arrest or
prosecution.
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A. Background
The court instructed the jury regarding flight with CALCRIM No. 372:
“If the defendant fled or tried to flee immediately after the crime was
committed, that conduct may show that he was aware of his guilt. [¶] If you
conclude that the defendant fled or tried to flee, it is up to you to decide the
meaning and importance of that conduct. However, evidence that the
defendant fled or tried to flee cannot prove guilt by itself.”
B. Applicable Law
The trial court has a sua sponte duty to instruct the jury on all general
principles of law relevant to the issues raised by the evidence. (People v.
Brooks (2017) 3 Cal.5th 1, 73.) The trial court is not required, however, to
give the jury a pinpoint instruction if it is argumentative, duplicative of other
instructions, or is not supported by substantial evidence. (People v. Hartsch
(2010) 49 Cal.4th 472, 500.)
“A claim of instructional error is reviewed de novo. [Citation.] An
appellate court reviews the wording of a jury instruction de novo and assesses
whether the instruction accurately states the law. [Citation.] In reviewing a
claim of instructional error, the court must consider whether there is a
reasonable likelihood that the trial court’s instructions caused the jury to
misapply the law in violation of the Constitution. [Citations.] The
challenged instruction is viewed ‘in the context of the instructions as a whole
and the trial record to determine whether there is a reasonable likelihood the
jury applied the instruction in an impermissible manner.’ ” (People v.
Mitchell (2019) 7 Cal.5th 561, 579.) Instructional error requires reversal of
the judgment only if it resulted in a miscarriage of justice, meaning it is
reasonably probable the defendant would have fared better in the absence of
the error. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; People v. Watson
13
(1956) 46 Cal.2d 818, 836; see People v. Cavitt (2004) 33 Cal.4th 187, 209
[erroneous limiting instruction subject to Watson harmless error analysis].)
For the court to give an instruction regarding flight as evincing
consciousness of guilt, there need only be some evidence in the record that, if
believed by the jury, would sufficiently support the suggested inference.
(People v. Coffman & Marlow (2004) 34 Cal. 4th 1, 102.) Flight does not
require an actual escape or the physical act of running from the scene as long
as the defendant acts with the purpose of avoiding observation or arrest.
(People v. Abilez (2007) 41 Cal.4th 472, 522; People v. Bradford (1997) 14
Cal.4th 1005, 1055.) Moving after committing a crime can support a flight
instruction. (People v. Simon (1989) 208 Cal.App.3d 841, 851-852)
C. Analysis
Sandoval claims it is unclear whether defense counsel properly objected
to the flight instruction in the trial court. The People counter that defense
counsel did not object to that instruction. We need not resolve this issue
because the claim fails on the merits. Sufficient evidence of flight was
presented by a witness who saw Sandoval walking away from the fire while it
was still burning. When the witness asked Sandoval if he had started the
fire, he denied doing so. The witness proceeded to extinguish the fire.
Sandoval admitted that he walked away from the fire while it was still
smoking. By leaving the scene while the fire burned, and later denying his
role in starting the fire, Sandoval evinced consciousness of guilt that
supported the flight instruction.
In any event, we conclude that any error was harmless. CALCRIM No.
372 expressly informed the jury that, if it found Sandoval fled or tried to flee
the scene, it was the sole judge of “the meaning and importance” of that
conduct. And the trial court properly instructed the jury with CALCRIM No.
14
200 that some jury instructions might be inapplicable. In other words, as the
jury was told to decide for itself what facts supported flight, and if it decided
the evidence that Sandoval walked away from the fire was irrelevant, it knew
to disregard the flight instruction. (See People v. Silveria (2020) 10 Cal.5th
195, 245 [reviewing court must presume jury understood and followed
instructions].) With CALCRIM No. 200, the trial court mitigated the
potential for prejudice even if the court erroneously gave the flight
instruction. (People v. Vega (2015) 236 Cal.App.4th 484, 503.) In light of the
overwhelming evidence of Sandoval’s guilt set forth above, we conclude it was
not reasonably probable he would have received a more favorable result
absent the flight instruction.
V. Fines, Fees and Assessments
Sandoval contends this court should vacate the fines, fees and
assessments because they violate his constitutional rights to due process and
equal protection and against excessive fines and contradict Duenas, supra, 30
Cal.App.5th 1157.
At the April 2020 sentencing hearing, the court imposed the following
fines, fees and assessments: (1) $820 state surcharge fine (§ 1465.7, subd.
(a)); (2) $300 restitution fine (§ 1202.4, subd. (b)); (3) $154 criminal justice
administration assessment (Gov. Code, § 29550.2); (4) $40 court operations
assessment (§ 1465.8); (5) $30 criminal conviction assessment (Gov. Code,
§ 70373); (6) suspended $300 probation revocation fine (§ 1202.44); and (7)
$500 in direct restitution fines to the victims (§ 1202.4, subd. (f)(3)(G)).
When defense counsel requested the court stay the fines, fees and
assessments pending an ability to pay hearing, the court ordered Sandoval to
start payments of $35 monthly on May 9, 2020, with this proviso: “If
[Sandoval] has an inability to pay, is not employed and . . . has made gainful
15
opportunities to be employed and does not have the ability, he can come back
to court and seek resolution of that issue at that time.”
In light of the fact the court expressly stayed its ruling on the fines,
fees and assessments for one year, which time expired during the pendency of
this appeal, we need not address this claim on the merits. Rather, we permit
Sandoval on remand to file a proper motion in the trial court to address his
inability to pay the fines, fees and assessments as that court’s ruling allowed.
DISPOSITION
The judgment is affirmed and the matter remanded with directions
that the superior court permit Sandoval to file a motion challenging his
ability to pay the imposed fines, fees and assessments.
O’ROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
GUERRERO, J.
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