People v. Morse CA4/1

Filed 6/10/22 P. v. Morse CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D079880

Plaintiff and Respondent,

v. (Super. Ct. No. 2066318)

GERALD WAYNE MORSE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Stanislaus County,
Shawn D. Bessey, Judge. Affirmed as modified.
Diane Nichols and Robert L.S. Angres, under appointment by the Court
of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters,
Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney
General, Daniel B. Bernstein, Darren K. Indermill, Edrina Nazaradeh, and
Catherine Chatman, Deputy Attorneys General, for Plaintiff and Respondent.

Gerald Wayne Morse appeals a judgment sentencing him to prison for
40 years to life after a jury found him guilty of molesting three children.
Morse contends the trial court erroneously admitted incriminating
statements he made when police interviewed him at his home without giving
the warnings required by Miranda v. Arizona (1966) 384 U.S. 436 (Miranda);
the evidence was insufficient to support one of the convictions; and the court
erroneously ordered him to pay court operations and facilities assessments, a
restitution fine, and a portion of the fees of his appointed attorney. We agree
the attorney fees award must be vacated but reject Morse’s other claims of
error. We therefore modify the judgment by vacating the attorney fees award
and affirm the judgment as so modified.
I.
BACKGROUND
A. Report of Molestation
On March 11, 2016, Morse’s wife, Consuelo, learned that Morse had
molested her niece, Jane Doe 1. Consuelo asked her daughters from a prior
relationship, Jane Doe 2 and Jane Doe 3, whether “that had also happened to
them or not.” They responded that Morse had “touched” them. Consuelo
then called the police. While waiting for the police to arrive, she confronted
Morse with the allegations, and he said “he did do it” and “was remorseful.”
B. Police Interview and Arrest
Officer Cameron Cromwell, two other police officers, and two police

department explorers1 responded to Consuelo’s call. Cromwell and the two
other officers wore uniforms and were armed with handguns; the two
explorers wore different uniforms and were not armed. When the officers and
explorers arrived, Morse, Consuelo, her two daughters, Morse’s mother, and
her partner were in the home. Cromwell saw Morse at the top of the stairs,

1 According to Cromwell, the explorers “ride out with us trying to figure
out what’s law enforcement involved.”
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where he was talking to a lawyer on the telephone, and asked him to come
downstairs to pat him down for safety. After the patdown, Cromwell asked
Morse to wait with the other officers, explorers, Morse’s mother, and her
partner in a room, where they engaged in small talk while Cromwell
interviewed Jane Doe 3. The officers stood near the front door of the home.
Morse remained in the room for about 50 minutes.
After finishing the interview of Jane Doe 3, Cromwell went to the room
where Morse was sitting with the others and asked whether there was a
place inside or outside he would feel comfortable talking to Cromwell. Morse
then led Cromwell to a small bedroom. Cromwell told Morse he could take a
seat if he wanted, and he sat on the bed while Cromwell stood near the open
doorway because there was no place else to sit. Cromwell told Morse, “You
know why we’re here, I’m assuming ‘cause it sounded like Consuelo talked to
you before I got here.” Morse responded, “Yes.” Cromwell did not give Morse

the Miranda warnings2 and asked him, “[D]o you wanna talk to me about
this?” Morse did not answer the question directly and proceeded to speak
with Cromwell for about 23 minutes.
During the interview, Morse stated that about six or seven years ago
when he had returned from military deployment, he was taking medication
for “sleep issues” and depression and would wake up in the bedroom of his
stepdaughters, Jane Doe 2 and Jane Doe 3. Morse said his hand was once
under the shirt of Jane Doe 3 “rubbing her belly.” When Cromwell asked

2 “[W]hen an individual is taken into custody or otherwise deprived of his
freedom by the authorities in any significant way and is subjected to
questioning, . . . [h]e must be warned prior to any questioning that he has the
right to remain silent, that anything he says can be used against him in a
court of law, that he has the right to the presence of an attorney, and that if
he cannot afford an attorney one will be appointed for him prior to any
questioning if he so desires.” (Miranda, supra, 384 U.S. at pp. 478-479.)
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Morse whether he had touched Jane Doe 3 anyplace else, he said, “Not that I
remember, but like I said I don’t remember what I was doing or where I was
at. I mean kinda figured I was or maybe I did more but I guess I just didn’t
wanna realize it.” Morse said he “might have” touched Jane Doe 3 in other
spots, but he did not remember ever touching her breasts or genitals. He did
not remember ever touching Jane Doe 2 on her genitals or elsewhere. Morse
said he was “pretty sure” his stepdaughters told police “the truth about what
happened,” and he was “[v]ery sorry” for what happened. During the
interview, Cromwell never told Morse either that he was free to leave and did
not have to speak to Cromwell or that he was not free to leave and had to
speak to him, and Morse never indicated he did not want to speak to
Cromwell.
At the conclusion of the interview, Cromwell arrested Morse. Cromwell
was not planning to arrest Morse after he interviewed Jane Doe 3 and
decided to do so after he interviewed Morse.
C. Charges
The People charged Morse with five counts of committing a lewd and
lascivious act on a child under the age of 14 years. (Pen. Code, § 288, subd.
(a); subsequent undesignated section references are to this code.) Counts 1
and 2 were based on separate acts Morse committed against his niece, Jane
Doe 1, between January 4, 2016, and March 7, 2016. Count 3 was based on
an act Morse committed against his stepdaughter, Jane Doe 2, between
November 1, 2009, and October 31, 2011. Count 4 was based on an act Morse
committed against his stepdaughter, Jane Doe 3, between December 9, 2011,
and December 8, 2012. Count 5 was based on an act Morse committed
against his niece, Jane Doe 4, between January 10, 2015, and January 9,
2016. As to each count, the People alleged Morse was subject to punishment

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under the One Strike law because he had committed lewd and lascivious acts
against multiple victims. (§ 667.61, subd. (e).)
D. Motion in Limine to Exclude Interview
Before trial, Morse filed a motion to exclude his statements to
Cromwell as having been obtained in violation of his Miranda rights. In
opposition, the People conceded Morse had been interrogated but argued no
Miranda warnings were required because he was not in custody when
Cromwell questioned him. The trial court held a hearing at which Cromwell
testified and the video and audio recording of his interview of Morse was
played. After hearing arguments from counsel, the court ruled Morse was not
in custody during the interview and the People could introduce it in evidence.
E. Trial
Jane Doe 1 testified that before she turned nine years old, Morse placed
his hand on her genital area once at her house and another time at his house,
but she could not remember whether it was over or under her clothes. Jane
Doe 1’s mother testified she once found Morse and Jane Doe 1 alone in Jane
Doe 1’s room, and when the mother entered, Jane Doe 1 jumped off her bed
and Morse was kneeling or squatting about four inches in front of her. Jane
Doe 1’s mother further testified that after Morse got up and left the room,
Jane Doe 1 looked scared and was crying but said nothing had happened.
Jane Doe 1 later told her mother Morse “had been touching her . . . for a long
time.”
Jane Doe 2 testified that when she was eight or nine years old, Morse
more than once put his hand inside her pants and underwear, touched her
genitals, and told her to stay quiet and not to tell her mother. Jane Doe 2
later told her sister, Jane Doe 3, about the incidents, and they told Consuelo,
who called the police.

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 Jane Doe 3 testified that when she was 13 or 14 years old, she woke up
scared from a nightmare, went to the bedroom of Morse and Consuelo, and
got into their bed. Morse put his hand on her genital area over her clothes
and pushed her underwear into her vagina with his finger. When the
prosecutor reminded Jane Doe 3 she had testified at the preliminary
examination that she was 13 years old when this incident happened, she
agreed she was 13 and was in seventh or eighth grade. On cross-
examination, Jane Doe 3 admitted she “could . . . have been 14” when the
incident happened and was “completely unsure one way or the other”
whether she was 13 or 14. On redirect examination, Jane Doe 3 testified her
brother was still in diapers when Morse touched her genital area over her
clothes and pushed her underwear into her vagina with his finger. Consuelo
testified Jane Doe 3 stopped going into Consuelo and Morse’s bedroom to
sleep when Jane Doe 3 was in middle school, and the brother stopped
wearing diapers in April or May 2010, when Jane Doe 3 was 11 years old. On
redirect examination, Jane Doe 3 also confirmed she was in seventh or eighth
grade when the incident occurred and her testimony at the preliminary
examination about her age at the time of the incident was “accurate.” On
recross-examination, Jane Doe 3 testified she could have been 13 or 14 at the
time of the incident, but she was “more sure that it happened when [she] was
13 than 14 considering [she] was going into high school when [she] was 14,
and [she] kn[e]w that it happened before that.”
Jane Doe 4, Morse’s niece, testified that when she was “like 10,” Morse
on two occasions sat beside her on a couch and put his hand on her genital
area over her clothes. Jane Doe 4 further testified she told her mother and
Consuelo about the incidents. Both Jane Doe 4’s mother and Consuelo denied
Jane Doe 4 had told them about either incident. The parties stipulated the

6
first time Jane Doe 4 told anybody Morse had touched her was on June 23,
2016, and the person she told was a county social worker. Jane Doe 4 also
testified she saw Morse put his hand on the genital area of her sister, Jane
Doe 1, over her clothes.
The prosecutor played a video and audio recording of Cromwell’s
interview of Morse for the jury. A transcript of the interview was admitted in
evidence.
Morse testified he was having sleep issues in 2012 and once woke up in
Jane Doe 3’s bed rubbing her belly. He denied ever touching her “private
areas.” Morse did not remember Jane Doe 3 ever coming into his and
Consuelo’s bedroom to sleep. He denied ever touching Jane Doe 1, Jane Doe
2, or Jane Doe 4 on their genitals or putting his hand down their pants.
F. Verdicts and Sentence
The jury found Morse guilty on counts 1 through 4 and not guilty on
count 5. As to each guilty verdict, the jury found true the multiple-victim
allegation under the One Strike law.
The trial court sentenced Morse to prison for 25 years to life on count 1,

plus a consecutive term of 15 years to life on count 3.3 The court imposed
concurrent terms of 25 years to life on counts 2 and 4. The court ordered
Morse to pay a $10,000 restitution fine (§ 1202.4); a $10,000 parole revocation
restitution fine on which the court stayed execution unless parole is revoked

3 The prison terms differed based on the dates Morse committed the lewd
and lascivious acts underlying the convictions. He committed the act
underlying count 1 in 2016, when the prescribed penalty was 25 years to life
in prison. (Former § 667.61, subd. (j)(2), as amended by Stats. 2011, ch. 361,
§ 5.) Morse could have committed the act underlying count 3 before
September 9, 2010, when the prescribed penalty was 15 years to life in
prison. (Former § 667.61, subd. (b), as amended by Prop. 83, § 12, as
approved by voters, Gen. Elec. (Nov. 7, 2006).)
7
(§ 1202.45); and a $300 sex crime conviction fine (§ 290.3). The court ordered
Morse to pay $200 for the fees of his appointed attorney. (Former § 987.8, as
amended by Stats. 2017, ch. 62, § 1.) The sentencing minutes and abstract of
judgment also include a court operations assessment of $160 (§ 1465.8) and a
court facilities assessment of $120 (Gov. Code, § 70373), although the court
never mentioned either at sentencing.
II.
DISCUSSION
A. Miranda Violation
Morse argues the judgment must be reversed because the trial court
erroneously admitted his interview with Cromwell. He contends the
interview was not admissible because he had not been given the warnings
Miranda requires when a suspect is interrogated in a police-dominated
atmosphere (see fn. 2, ante), and the error in admitting such an “ ‘evidentiary
bombshell’ ” in a case where the evidence was far from overwhelming
prejudiced the defense. The People respond that Miranda warnings were not
required because Morse was not questioned while he waited in the room with
others while Cromwell interviewed Jane Doe 3 and could have terminated his
own interview with Cromwell and left at any time. The People further
respond that any error in admitting the interview was harmless beyond a
reasonable doubt because the certain, detailed, and consistent testimony of
the victims, which was corroborated by other witnesses, provided
overwhelming evidence of Morse’s guilt. We conclude there was no Miranda
violation and therefore need not, and do not, address the parties’ arguments
concerning prejudice.

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 1. Standard of Review
Whether a defendant was in custody for Miranda purposes presents a
mixed question of law and fact. We review the trial court’s factual findings
on the circumstances of the interrogation for substantial evidence and decide
independently whether under the totality of the circumstances a reasonable
person in the defendant’s position would have felt free to stop the questioning
and leave. (People v. Kopatz (2015) 61 Cal.4th 62, 80 (Kopatz); In re I.F.
(2018) 20 Cal.App.5th 735, 760; People v. Macklem (2007) 149 Cal.App.4th
674, 695.)
2. Governing Law
Custodial interrogation means “questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way.” (Miranda, supra,
384 U.S. at p. 444.) “As used in [the] Miranda case law, ‘custody’ is a term of
art that specifies circumstances that are thought generally to present a
serious danger of coercion.” (Howes v. Fields (2012) 565 U.S. 499, 508-509
(Howes).) To constitute custody for Miranda purposes, there must be
restraint on the person’s freedom of movement in an “environment [that]
presents the same inherently coercive pressures as the type of station house
questioning at issue in Miranda.” (Howes, at p. 509.) To determine whether
the person was in custody for Miranda purposes, California courts have
identified the following factors as relevant:
1. whether police or the person interrogated initiated contact with law
enforcement, and if police did so, whether the person voluntarily
agreed to an interview;
2. whether the express purpose of the interview was to question the
person as a witness or as a suspect;
3. the location of the interview;

9
 4. whether police informed the person he or she was under arrest or in
custody;
5. whether police informed the person he or she was free to stop the
interview and leave at any time, or whether the person’s conduct
indicated an awareness of such freedom;
6. whether the person’s freedom of movement was restricted during the
interview;
7. the length of the interview;
8. the number of police officers who participated;
9. whether police dominated and controlled the interview;
10. whether police manifested a belief the person was guilty and had
evidence to prove it;
11. whether police were aggressive, confrontational, or accusatory;
12. whether police used techniques to pressure the suspect; and
13. whether police arrested the person at the end of the interview.
(People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162 (Aguilera); accord,
People v. Potter (2021) 66 Cal.App.5th 528, 539-540 (Potter); People v. Torres
(2018) 25 Cal.App.5th 162, 172-173 (Torres); People v. Saldana (2018) 19
Cal.App.5th 432, 455 (Saldana).)
3. Analysis
The parties agree Morse was interrogated for purposes of Miranda.
Morse concedes “[t]here were no findings of fact or credibility disputes, as the
evidence, including what Cromwell related, is included in the [video and
audio] recordings and transcripts.” We thus proceed to determine
independently whether the interrogation was “custodial,” i.e., whether under
the totality of the circumstances, “a reasonable person [would] have felt he or
she was not at liberty to terminate the interrogation and leave.” (Thompson
v. Keohane (1995) 516 U.S. 99, 112 (Thompson); accord, Kopatz, supra, 61
Cal.4th at p. 80; see Torres, supra, 25 Cal.App.5th at p. 173 [when interview

10
is recorded, facts are undisputed and subject to independent review on
appeal].)
Factors Nos. 1, 2, 5, 8, and 13 from the list in part II.A.2., ante, weigh,
at least partially, in favor of a finding the interrogation was custodial. Police
initiated contact with Morse to discuss the allegations of sex crimes his
stepdaughters and nieces made against him (factor Nos. 1 & 2). (Torres,
supra, 25 Cal.App.5th at p. 176 [detectives interviewed defendant as suspect
after receiving complaint he molested child].) Cromwell never told Morse “he
was free to terminate the interview and leave if he wished” (factor No. 5).
(Aguilera, supra, 51 Cal.App.4th at p. 1164.) Three armed police officers and
two police explorers were present in Morse’s home before and during the
interview (factor No. 8). (United States v. Craighead (9th Cir. 2008) 539 F.3d
1073, 1085 (Craighead) [“the presence of a large number of visibly armed law
enforcement officers goes a long way towards making the suspect’s home a
police-dominated atmosphere”]; People v. Lopez (1985) 163 Cal.App.3d 602,
608 (Lopez) [ratio of officers to suspects is relevant to custody
determination].) Cromwell arrested Morse at the end of the interview (factor
No. 13). (Saldana, supra, 19 Cal.App.5th at p. 461 [defendant was arrested
“just a few minutes” after he confessed].)
All factors except Nos. 2 and 13 weigh, again at least partially, against
a finding the interrogation was custodial. When Cromwell asked Morse
whether he wanted to talk about the allegations, Morse willingly answered
Cromwell’s questions for about 23 minutes (factor No. 1). (Torres, supra, 25
Cal.App.5th at p. 173 [“Torres voluntarily agreed to an interview”]; Saldana,
supra, 19 Cal.App.5th at p. 455 [“Saldana voluntarily agreed to be
questioned”].) The interview occurred in Morse’s home, in a bedroom to
which Morse led Cromwell after he asked whether there was a place inside or

11
outside where Morse would feel comfortable talking (factor Nos. 3 & 5).
“[A]bsent an arrest, interrogation in the familiar surroundings of one’s own
home is generally not deemed custodial” (United States v. Newton (2d Cir.
2004) 369 F.3d 659, 675), “because individuals in a familiar environment are
less likely to be intimidated by law enforcement officers” (United States v.
Rakowski (D.Vt. 1987) 714 F.Supp. 1324, 1334). During the interview, Morse
“was neither told that he was under arrest nor that he was not free to leave”
(Lopez, supra, 163 Cal.App.3d at p. 608), and he was not “handcuffed or
otherwise restrained” (Potter, supra, 66 Cal.App.5th at p. 542; see Saldana,
at p. 459 [“Saldana was not handcuffed”]) (factor Nos. 4 & 6). The interview
lasted 23 minutes, which is shorter than other interviews whose lengths
courts have determined weighed against a finding the interview was
custodial (factor No. 7). (People v. Linton (2013) 56 Cal.4th 1146, 1167
(Linton) [“about a half-hour”]; Potter, at p. 542 [30 minutes]; Torres, at p. 173
[45 minutes]; Saldana, at p. 459 [“less than an hour”].) Cromwell was the
only police officer who questioned Morse, and he used a “courteous and polite”
tone, did not “threaten or intimidate” Morse, and did not state he “considered
[Morse] to be guilty” or “had the evidence to prove his guilt in court” (factor
Nos. 8-12). (People v. Spears (1991) 228 Cal.App.3d 1, 25; see Lopez, at
p. 608, fn. 4 [“Accusatory questioning is more likely to communicate to a
reasonable person in the position of the suspect, that he is not free to leave.
[Citation.] General investigatory questioning may convey a different
message.”].)
Having considered the totality of the circumstances of Cromwell’s
interview of Morse, we conclude the factors weighing against a finding the
interview was custodial preponderate over those weighing in favor of a
finding it was custodial, and Morse therefore was not entitled to Miranda

12
warnings. In reaching this conclusion, we are mindful the warnings are
designed to prevent the loss of a person’s right not to “be compelled in any
criminal case to be a witness against himself” (U.S. Const., 5th Amend.) when
the person is “thrust into an unfamiliar atmosphere and run through
menacing police interrogation procedures” (Miranda, supra, 384 U.S. at
p. 457). Such an environment, according to Miranda, “is created for no
purpose other than to subjugate the individual to the will of his examiner,”
and its “inherently compelling pressures . . . work to undermine the
individual’s will to resist and to compel him to speak where he would not
otherwise do so freely.” (Id. at pp. 457, 467.) Morse was not “thrust into an
unfamiliar atmosphere” (id. at p. 457) when Cromwell interviewed him.
Morse was at home with his family and chose to be interviewed in a room in
which he felt comfortable and to which the door was kept open. (Cf. People v.
Butterfield (1968) 258 Cal.App.2d 586, 590 (Butterfield) [police interview of
defendant in a room with an open door “in the friendly and familiar environs

of his own home” where his mother was present was not custodial].)4 Nor
was Morse “run through menacing police interrogation procedures.”
(Miranda, at p. 457.) “[O]n the issue of custody, courts consider highly

4 Miranda itself recognized the significant difference between
questioning a suspect at home and at a police station. The “ ‘principal
psychological factor contributing to a successful interrogation is privacy—
being alone with the person under interrogation.’ ” (Miranda, supra, 384
U.S. at p. 449.) “ ‘If at all practicable, the interrogation should take place in
the investigator’s office or at least in a room of his own choice. The subject
should be deprived of every psychological advantage. In his own home he
may be confident, indignant, or recalcitrant. He is more keenly aware of his
rights and more reluctant to tell of his indiscretions of criminal behavior
within the walls of his home. Moreover his family and other friends are
nearby, their presence lending moral support. In his office, the investigator
possesses all the advantages. The atmosphere suggests the invincibility of
the forces of the law.’ ” (Id. at pp. 449-450.)
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significant whether the questioning was brief, polite, and courteous or
lengthy, aggressive, confrontational, threatening, intimidating, and
accusatory.” (Aguilera, supra, 51 Cal.App.4th at p. 1164.) Cromwell did not
“use[ ] compulsion, threats or trickery to make [Morse] talk.” (Butterfield, at
p. 590.) “[T]he nature of the interview in this case, which was brief and not
accusatory, would not convey to the reasonable person the impression that he
or she was in custody . . . .” (People v. Stansbury (1995) 9 Cal.4th 824, 832.)
In sum, the environment in which Cromwell questioned Morse did not
“present[ ] the same inherently coercive pressures as the type of station
house questioning at issue in Miranda.” (Howes, supra, 565 U.S. at p. 509.)
Morse disagrees and identifies several circumstances he contends show
he “was under the functional equivalent of arrest” during the police
interview. (Bolding and initial capitalization omitted.) Relying on the factors
identified in Craighead, supra, 539 F.3d 1073, Morse contends the
atmosphere of his home was “police-dominated” because (1) three armed
police officers and two unarmed explorers were in the home; (2) police
“restrained” him by interrupting his telephone call with a lawyer, telling him
to come downstairs, patting him down, telling him to sit in a room with his
mother and her partner for about 50 minutes while he waited to be
interviewed, and standing guard over him by blocking the front door and
hallway; (3) he was “isolated” during the interview because Cromwell did not
invite Morse’s mother or her partner into the bedroom where Cromwell stood
in the doorway and questioned Morse; and (4) police never told Morse he was
free to go, did not have to speak to Cromwell, and could terminate the
interview at any time. We are not persuaded.
In Craighead, supra, 539 F.3d 1073, FBI agents obtained a warrant to
search Craighead’s home for child pornography, and eight officers from three

14
different law enforcement agencies participated in the subsequent search.
(Id. at p. 1078.) All of the officers were armed, and some unholstered their
guns in Craighead’s presence. (Ibid.) One FBI agent said she wanted to talk
to Craighead and told him he was not under arrest, any statement he might
make would be voluntary, he would not be arrested that day, and he was free
to leave. (Ibid.) The agent and a detective “directed” and “escorted”
Craighead to a storage room at the back of the house for a private
conversation while other officers searched the house. (Id. at pp. 1078, 1086.)
The storage room door was closed, and the detective, who was visibly armed,
stood leaning against the wall near the door. (Ibid.) The interview lasted 20
to 30 minutes. (Id. at p. 1078.) The appellate court ruled that under those
circumstances “[t]he interrogation within Craighead’s home was custodial,
and Miranda warnings were required.” (Craighead, at p. 1089.)
The circumstances of Morse’s interview are not similar to those of the
interview in Craighead, supra, 539 F.3d 1073. Although five law
enforcement personnel entered Morse’s home, they were summoned to the
home by Consuelo, they did not search the home, only three were armed, and
none unholstered a firearm. Morse was neither directed nor escorted to a
room where he was questioned behind a closed door by one officer while
another stood near the door. Rather, Morse was questioned in a room of his
choosing to which he led Cromwell after Cromwell asked Morse whether
there was a place inside or outside the house where he would feel comfortable
talking. The door remained open throughout the interview, and, contrary to
Morse’s assertion that Cromwell “effectively blocked” the only exit by
standing in the doorway, the recording of the interview shows Cromwell stood
inside the room near the door and faced Morse while he sat on the bed. Thus,
Morse was not “isolated” from his mother and her partner, who remained

15
nearby even though they were not invited into the room for the interview,
likely because their presence would have made Morse uncomfortable given
the “obviously distasteful” subject matter of the interview. (Butterfield,
supra, 258 Cal.App.2d at p. 590.)
Nor was Morse “restrained, either by physical force or by threats”
(Craighead, supra, 539 F.3d at p. 1085), during the 50 minutes between the

arrival of police and the interview.5 Morse was on the telephone with a
lawyer when one of the police officers arrived and said, “Would you mind just
coming down here? I can pat you down and make sure you don’t have
anything on you.” Morse descended the stairs about 30 seconds later, and the
record does not indicate how long he had been talking to the lawyer before
police arrived. We thus disagree with Morse that police “in essence” told him
“to get off the phone with [the] lawyer.” The patdown was done in the
presence of Morse’s mother and her partner and lasted about 10 seconds. (Cf.
Maryland v. Shatzer (2010) 559 U.S. 98, 113 [“temporary and relatively
nonthreatening detention” of stop and frisk “does not constitute Miranda
custody”].) Morse then sat in a room with his mother and her partner while

5 The People assert there was no violation of Morse’s Miranda rights
during this period because there was no interrogation. Miranda warnings
are required only for “custodial interrogation” (Miranda, supra, 384 U.S. at
pp. 444-445), and without interrogation the warnings need not be given
(Edwards v. Arizona (1981) 451 U.S. 477, 486). We agree the casual
conversation in which Morse participated with police while he sat waiting to
be interviewed by Cromwell did not constitute interrogation and thus Morse
was not entitled to Miranda warnings before the conversation. (Rhode Island
v. Innis (1980) 446 U.S. 291, 301 [interrogation means words or actions by
police that are reasonably likely to elicit incriminating response from
suspect]; People v. Gamache (2010) 48 Cal.4th 347, 388 [“small talk is
permitted”].) We consider the conversation and the other circumstances of
the waiting period only as they relate to our determination whether, under
the totality of the circumstances, Morse was in custody when Cromwell
questioned him.
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he waited to be interviewed by Cromwell, and during that time Morse
provided police with identification and contact information, participated in
casual conversation, and occasionally looked at his telephone. The record
does not support Morse’s assertions police told him to stay in the room and
blocked his exit. Shortly after arriving at Morse’s home, an officer stated in
quick succession, “Let me get him a chair,” and “Stay right here,” but it does
not appear the statements were directed to Morse, because he had not yet
descended the stairs or sat down in the folding chair set up for him. Video
recordings during the time Morse sat in the room with his mother and her
partner show one police officer stood in front of a window facing Morse,
another officer stood at or near the foot of the stairs and frequently moved
around and left the area, one of the explorers stood near the front door, and
the other explorer stood by the stairs. Nobody was ever blocking the many
exits from the room. In fact, Morse’s mother exited and entered the room
four times, and nobody was ever in her way. Morse never attempted to leave
the room, was not instructed not to do so, and was not prevented from doing
so. (Cf. United States v. Panak (6th Cir. 2009) 552 F.3d 462, 467 [in-home
interview by law enforcement officers was noncustodial when suspect was
neither physically restrained nor told she could not leave]; Linton, supra, 56
Cal.4th at p. 1167 [same when suspect was not physically restrained and exit
from interview room was not blocked].) Hence, while Morse waited to be
interviewed, he was not subject to “ ‘a “formal arrest or restraint on freedom
of movement” of the degree associated with a formal arrest.’ ” (Thompson,
supra, 516 U.S. at p. 112.)
In sum, “[w]e conclude that [Morse] was not, in the above cited
circumstances, subjected to the coercive, police-dominated atmosphere which
was Miranda’s concern; that he was therefore not in custody when

17
questioned; and that Miranda advice was not required. The trial court’s
denial of [Morse’s] motion to exclude his statements from evidence was
therefore correct.” (Lopez, supra, 163 Cal.App.3d at p. 609.)
B. Sufficiency of Evidence on Count 4
Morse contends inconsistencies in the evidence of Jane Doe 3’s age at
the time of the lewd and lascivious act alleged in count 4 make the evidence
constitutionally insufficient to support the conviction on that count and
require reversal. The People acknowledge the inconsistencies but contend
the evidence, when viewed in the light most favorable to the judgment, was
sufficient to prove Jane Doe 3 was under the age of 14 years at the time of the
offense. We agree with the People.
1. Standard of Review
When considering a challenge to the sufficiency of the evidence, we
review the record in the light most favorable to the judgment to decide
whether it contains substantial evidence—i.e., evidence that is reasonable,
credible, and of solid value—from which a reasonable jury could find the
defendant guilty beyond a reasonable doubt. (People v. Holmes, McClain and
Newborn (2022) 12 Cal.5th 719, 780 (Holmes).) We presume in support of the
judgment the existence of every fact the jury reasonably could have deduced
from the evidence. (Ibid.)
2. Governing Law
The crime charged in count 4 occurs when a “person . . . willfully and
lewdly commits any lewd or lascivious act . . . upon or with the body, or any
part or member thereof, of a child who is under the age of 14 years, with the
intent of arousing, appealing to, or gratifying the lust, passions, or sexual
desires of that person or the child.” (§ 288, subd. (a), italics added.) For
conviction, “the subject of the attack must be a child under the age of 14

18
years, and proof of that fact must be made.” (People v. Levoy (1920) 49
Cal.App. 770, 771.) Due process requires the prosecution prove the fact
beyond a reasonable doubt. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7,
subd. (a); In re Winship (1970) 397 U.S. 358, 364; People v. Martin (2000) 78
Cal.App.4th 1107, 1115.)
3. Analysis
The evidence on Jane Doe 3’s age at the time of the offense charged in
count 4 was in conflict at trial. As described in part I.E., ante, Jane Doe 3
testified that when she was 13 or 14 years old, Morse put his hand on her
genital area over her clothes and pushed her underwear into her vagina after
she awoke from a nightmare one night and got into his and Consuelo’s bed.
When questioned by the prosecutor, Jane Doe 3 stated she was in seventh or
eighth grade and was 13 when the incident happened. When questioned by
Morse’s counsel, however, she said she could have been 14 and was
“completely unsure one way or the other.” Jane Doe 3 later told Morse’s
counsel she was “more sure” she was 13 because she was 14 when she
entered high school and the incident happened before that. Consuelo
testified Jane Doe 3 stopped going into Consuelo’s bedroom at night when
Jane Doe 3 was in middle school. Jane Doe 3 also testified her brother was
still wearing diapers when the incident happened, and based on Consuelo’s
testimony about when he stopped wearing diapers, Jane Doe 3 would have
been in middle school and only 11 years old. Hence, there was evidence,
albeit contradicted, that Jane Doe 3 was less than 14 years old at the time of
the incident underlying count 4.
In assessing the sufficiency of the evidence to support the conviction,
we must keep in mind the test is not whether we believe the evidence
established Morse’s guilt beyond a reasonable doubt, but “whether, after

19
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.” (Jackson v. Virginia (1979) 443 U.S. 307, 318-
319; accord, Holmes, supra, 12 Cal.5th at p. 780.) Here, the jury might have
disregarded the testimony that Jane Doe 3 could have been 14 when Morse
put his hand on her genital area and believed the testimony she was 13 or 11
when the incident occurred. The resolution of conflicts and inconsistencies in
testimony is the exclusive province of the jury unless there is patent falsity,
inherent improbability, or other reason to question the validity of the
testimony. (People v. Gomez (2018) 6 Cal.5th 243, 281.) Indeed, in another
case in which the victim gave inconsistent testimony about whether she was
13 or 14 years old when the defendant committed a lewd and lascivious act on
her, the Court of Appeal ruled: “The question of the apparent inconsistency
was, thus, placed before the jury. It was the jury’s prerogative, and not this
court’s, to resolve it.” (People v. Cantrell (1992) 7 Cal.App.4th 523, 538; see
People v. Tompkins (2010) 185 Cal.App.4th 1253, 1261 [inconsistency in
victim’s testimony “went only to the weight and credibility of the evidence
and, on appeal, we do not disturb the jury’s resolution of that
inconsistency”].) “Accordingly, we find the contradictions in [Jane Doe 3’s]
testimony did not render it impossible to believe or obviously false, but
merely presented the jury with a credibility determination that is not
reviewable on appeal.” (People v. Mejia (2007) 155 Cal.App.4th 86, 99.)
C. Fines, Fees, and Assessments
Morse challenges several monetary impositions included in the
judgment. We consider each below and conclude only the challenge to
reimbursement of appointed attorney fees warrants relief.
1. Restitution Fine

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 Morse challenges the imposition of the $10,000 restitution fine as
“fundamentally unfair,” unconstitutionally excessive, and a violation of his
due process and equal protection rights, because the trial court made no
finding he could pay the fine. He relies on People v. Dueñas (2019) 30
Cal.App.5th 1157 (Dueñas), which held imposition and execution of a
restitution fine over an indigent defendant’s objection violates the
defendant’s due process and equal protection rights unless the court first
determines the defendant has the ability to pay. The People argue Morse
forfeited his challenge by not objecting to the amount of the fine at the
sentencing hearing, the fine does not violate his constitutional rights, and his
employment at the time of arrest is sufficient to establish his ability to pay.
We conclude Morse forfeited this challenge.
The trial court must impose a restitution fine on a defendant convicted
of a felony in an amount between $300 and $10,000 “unless it finds
compelling and extraordinary reasons for not doing so and states those
reasons on the record.” (§ 1202.4, subd. (b).) The defendant’s inability to pay
“shall not be considered a compelling and extraordinary reason not to impose
a restitution fine,” and “may be considered only in increasing the amount of
the restitution fine in excess of the minimum fine.” (§ 1202.4, subd. (c).)
Although Dueñas, supra, 30 Cal.App.5th 1157, held a court may not
impose a restitution fine on an objecting defendant unless the court finds the
defendant can pay the fine, appellate courts still “stand by the traditional
and prudential virtue of requiring parties to raise an issue in the trial court if
they would like appellate review of that issue.” (People v. Frandsen (2019) 33
Cal.App.5th 1126, 1155 (Frandsen).) “In this case, as in Frandsen, the trial
court imposed the statutory maximum restitution fine. And as Frandsen
correctly notes, even before Dueñas a defendant had every incentive to object

21
to imposition of a maximum restitution fine based on inability to pay because
governing law as reflected in the statute (§ 1202.4, subd. (c)) expressly
permitted such a challenge.” (People v. Gutierrez (2019) 35 Cal.App.5th 1027,
1033; accord, People v. Lapenias (2021) 67 Cal.App.5th 162, 182.) Morse
concedes he did not object to the $10,000 restitution fine at sentencing. He
therefore forfeited his inability-to-pay challenge to the fine on appeal.
(Lapenias, at p. 182; Gutierrez, at p. 1033; Frandsen, at p. 1154.)
2. Attorney Fees
When Morse was sentenced, a statute authorized the trial court to
order him to reimburse all or a portion of the fees of appointed counsel if,
after notice and a hearing, the court found he had a present ability to pay the
fees. (Former § 987.8, subds. (b), (e)(2), as amended by Stats. 2017, ch. 62,
§ 1.) The statute was later amended to add a subdivision that provided for
automatic repeal on July 1, 2021. (Former § 987.8, subd. (j), as amended by
Stats. 2020, ch. 92, § 37.) Another statute that became operative on July 21,
2021, provides the balance of any award under former section 987.8 “shall be
unenforceable and uncollectible and any portion of a judgment imposing
those costs shall be vacated.” (§ 1465.9, subd. (a).) These statutory changes
were made while Morse’s appeal was pending, and we asked the parties for
supplemental letter briefs on their effect on Morse’s obligation to reimburse
the $200 in attorney fees as ordered by the trial court. The parties agree the
statutory changes eliminated Morse’s reimbursement obligation as of July 1,
2021. We therefore vacate the portion of the $200 attorney fees
reimbursement award that remains unpaid as of that date. (See People v.
Lopez-Vinck (2021) 68 Cal.App.5th 945, 954.)

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 3. Court Operations and Facilities Assessments
Morse contends the court operations and facilities assessments must be
stricken from the sentencing minutes and the abstract of judgment, because
the trial court did not orally impose those assessments at the sentencing
hearing and did not determine he had the ability to pay them. The People
respond the assessments should not be stricken because their imposition is
mandatory. We agree with the People.
“To assist in funding court operations, an assessment of forty dollars
($40) shall be imposed on every conviction for a criminal offense . . . .”
(§ 1465.8, subd. (a)(1), italics added.) “To ensure and maintain adequate
funding for court facilities, an assessment shall be imposed on every
conviction for a criminal offense . . . in the amount of thirty dollars ($30) for
each . . . felony . . . .” (Gov. Code, § 70373, subd. (a)(1), italics added.) The
assessments apply to each conviction (People v. Sencion (2012) 211
Cal.App.4th 480, 483; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866),
and their imposition is mandatory (Frandsen, supra, 33 Cal.App.5th at
p. 1154; People v. Woods (2010) 191 Cal.App.4th 269, 272). If the trial court
omits them, they may be added to the judgment of conviction on review by
the appellate court. (People v. Harbison (2014) 230 Cal.App.4th 975, 986,
fn. 14; People v. Rodriguez (2012) 207 Cal.App.4th 1540, 1543, fn. 2.)
Morse’s four convictions subjected him to a total court operations
assessment of $160 and a total court facilities assessment of $120. The trial
court should have orally imposed the assessments at the sentencing hearing.
Had the court not later included them in the sentencing minutes and the
abstract of judgment, we would have had to add them to the judgment as part
of this appeal. Morse thus suffered no prejudice from the court’s failure to
impose the assessments orally at sentencing. We do not consider his

23
contention, made for the first time in his reply brief, that we should presume
the trial court determined he had no ability to pay the assessments and for
that reason did not impose them. “It is axiomatic that arguments made for
the first time in a reply brief will not be entertained because of the unfairness
to the other party.” (People v. Tully (2012) 54 Cal.4th 952, 1075; see People v.
Jackson (1981) 121 Cal.App.3d 862, 873 [“Points raised in the reply brief for
the first time will not be considered”].)
III.
DISPOSITION
The judgment is modified by vacating the portion of the $200 attorney
fees reimbursement award imposed under former section 987.8 that remains
unpaid as of July 1, 2021, and as so modified the judgment is affirmed. Upon
remand, the trial court is directed to amend the abstract of judgment to
reflect the vacatur of the balance of the award under former section 987.8
and to forward a copy of the corrected abstract to the Department of
Corrections and Rehabilitation.

IRION, J.

WE CONCUR:

AARON, Acting P. J.

DATO, J.

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