People v. Scroggins CA2/5

Filed 3/1/23 P. v. Scroggins CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B322702

Plaintiff and Respondent, (Tulare County
Super. Ct. No.
v. VCF380969)

RANDY SCROGGINS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Tulare
County, Melinda Myrle Reed, Judge. Affirmed in part and
remanded with instructions.
Solomon Wollack, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Senior Assistant
Attorney General, Catherine Chatman, Supervising Deputy
Attorney General, and Kimberley A. Donahue, Deputy Attorney
General, for Plaintiff and Respondent.
 Defendant and appellant Randy Scroggins (defendant) was
charged, among other things, with attempted murder for shooting
his wife, L.R., in the arm. Defendant moved for a mistrial and for
a new trial, following conviction on the charges, contending his
confrontation and due process rights were irreparably violated
when L.R. briefly testified as a witness for the prosecution before
she refused to testify further—and the trial court struck the
testimony given and instructed the jury to disregard it. We
consider whether the trial court correctly denied the mistrial and
new trial motions, and we also decide a handful of sentencing
issues—including whether recently passed legislation amending
the Penal Code’s multiple punishment bar (Penal Code section
6541) requires a remand to permit the trial court to decide
whether to resentence defendant under the statute as amended.

I. BACKGROUND
A. The Shooting and the Police Response
In May 2019, defendant, L.R., and her children, I.M.,
Le.M., and La.M., lived in Farmersville, a city near Fresno.2
Defendant and L.R. argued about L.R.’s Facebook account in
their front yard. The argument became physical. L.R. bit
defendant, and defendant slapped L.R.
Defendant and L.R. argued over her Facebook account
again on May 22, 2019. Defendant’s brother, Baudelio Luna
(Luna), was also present at the house. Luna suggested defendant

1
Undesignated statutory references that follow are to the
Penal Code.
2
I.M.’s age is unclear from the record. In an abundance of
caution, we refer to I.M. as though he were a minor.

2
and L.R. take a break from arguing, and offered to drive L.R. and
her children to another location. Defendant agreed. Luna,
Le.M., and La.M. went outside to Luna’s car. Defendant exited
the home and then reentered, locking the screen door behind him.
As Luna, Le.M., and La.M. were loading the car, they heard a
gunshot.
A few moments later, defendant and L.R. came toward the
front door. Defendant supported L.R., who had blood dripping
down her arm as she opened the screen door. L.R. said “the idiot
shot me” after walking outside. Defendant tried to get L.R. into a
car to take her to the hospital.
Luna convinced defendant to give him his (defendant’s)
gun. Luna ejected the clip and cleared the gun. He then gave it
to James, defendant’s son, who took the gun inside his house, a
separate home on the same property.
When I.M. arrived at the home and saw L.R. bloody and
holding her arm, I.M. asked defendant why he shot L.R.
Defendant admitted he shot L.R. but he did not explain why.
I.M. called 911, and while he was on the phone, defendant said he
was “done” and ran away, fleeing into nearby orchards.
Officer Ashley Hoppert of the Farmersville Police
Department responded to the 911 call. Upon arriving, Officer
Hoppert observed L.R. rolling on the ground, wailing and
screaming in pain. L.R. told Officer Hoppert she had been shot
with a black handgun. Officer Hoppert observed a through and
through gunshot wound below L.R.’s left wrist, and a wound to
her left shoulder, which appeared to have a bullet lodged in it.
L.R. stated she had been shot once and denied having brought
her arm up when she was shot. L.R. told Officer Hoppert she and
defendant had been arguing for the last week over dumb stuff.

3
 James Scroggins turned defendant’s gun over to another
police officer at the scene. A detective retrieved a single spent
shell casing inside the home. Detective Richard Morley located
defendant and took him into custody.

B. Trial
In October 2019, the Tulare County District Attorney’s
Office charged defendant in a 12-count information. Six of the
counts—attempted murder (count 1), assault with a firearm
(count 2), false imprisonment (count 3), injuring a spouse (count
6), and cruelty to a child (counts 9 and 10)—were brought in
connection with the shooting on May 22, 2019. Two of the counts
related to acts defendant committed against L.R. on May 21,
2019, namely assault with a firearm (count 4) and dissuading a
witness from reporting a crime (count 5). The remaining counts,
for being a felon in possession of a firearm (count 7) and
possession of ammunition (count 8), were based on actions taken
on or about and between both dates.3 Firearm, Three Strikes
law, and prior felony conviction enhancements were also alleged.
At trial, I.M., La.M., Le.M., Luna, and James Scroggins
testified, as did officers from the Farmersville Police Department
and others involved in the investigation. Several of the witnesses
testified to hearing defendant admit he shot L.R.—indeed, the
fact of the shooting was not contested by the defense (the defense
theory was the gun accidentally discharged when L.R. tried to
disarm defendant so he would not commit suicide). The

3
The trial court dismissed counts 9 and 10 prior to the
commencement of trial. The court dismissed counts 3, 4, and 5 on
the prosecution’s motion during the trial.

4
prosecution also introduced evidence that Le.M. told an
investigator that she saw defendant drag L.R. by the hair the day
before the shooting and—after the shooting—heard defendant
say “because she’s a ‘ho’” when asked why he shot L.R.4 In
addition—as we now describe in greater detail in light of the
principal issue raised on appeal—L.R. was also called as a
witness.

1. The initial colloquy regarding whether L.R. will
testify
The prosecution called L.R. to testify. After stating her
name for the record and stating defendant was her husband, L.R.
said she was choosing not to testify against her husband. The
prosecution asked the court to order L.R. to testify.
The trial court then informed L.R. that because the matter
was a criminal proceeding, L.R. did not have the right to refuse to
testify against her husband. In response, L.R. asked if that was
true under section 1219 of the “California Code.” The trial court
told L.R. that if she did not testify the court would have the
option of having her arrested and held in contempt of court, and
L.R. could be incarcerated for up to six months. L.R. questioned
whether the contempt remedy applied and defendant interposed
an objection but did not articulate a basis for it.
The trial court reiterated the law permitted L.R. to be
found in contempt of court and incarcerated for the duration of

4
During her trial testimony, Le.M. claimed she lied to the
investigator and maintained defendant did not make these
statements. She did acknowledge during her testimony, however,
that defendant was “very abusive.”

5
the trial or prosecuted for a longer amount of jail time. L.R.
asked if she could assert marital privilege. The court maintained
she could not and reiterated that if she did not testify she would
be subjecting herself to criminal prosecution and incarceration.
L.R. acquiesced and agreed to testify.
Counsel for defendant asked to “make a record.” The court
said counsel could be heard later, and overrode his subsequent
attempt to interject, stating they were bringing in the jury.

2. L.R.’s testimony
Under questioning from the prosecutor, L.R. testified that
at some point toward the beginning of the day on May 22,
defendant came into their bedroom and woke her up and they
began arguing about Facebook, a topic about which they had been
arguing for a month. (Earlier in the week, L.R. left the house for
a few hours and went to her daughter’s residence. L.R. returned
home because things had calmed.) They moved the argument
into the garage, where they remained for two to three hours.
When asked, L.R. said she did not recall speaking to a
Deputy Gates; she also testified reviewing a transcript of her
statement to Deputy Gates did not refresh her recollection. L.R.
denied telling the deputy she returned to the home because
defendant threatened to hurt her children if she did not. When
the prosecutor stated she had said those words, L.R. said she did
not remember. She denied telling Deputy Gates that defendant
was going to hurt himself and had a gun. She also denied there
was an incident between her and defendant involving a firearm
on May 21 in which defendant pushed a gun against her head.
L.R. also denied pointing out for the deputy the area on her head
where defendant pushed the gun or claiming it left a mark. L.R.

6
additionally denied seeing defendant with a gun prior to May 22
and asking to leave the garage that day when arguing with
defendant.
L.R. testified she wanted to stop fighting with defendant
and leave the situation alone. When asked about a prior
statement in which she said defendant got angrier and more
violent, and then went outside, grabbed a crowbar, and tried to
hit her with it, L.R. said the part about the crowbar was untrue.
L.R. stated that after the argument in the garage, she went
back into the house and slept for a few hours, until the afternoon.
L.R. said a document describing her prior statements was not
true when it said defendant dragged her by the hair. She said
she did not remember her kids seeing it and stopping defendant.
L.R. testified she was grabbing her stuff to leave when she
learned Luna was going to take her and the children somewhere
else. Le.M. and La.M. were outside already, and Luna walked
outside as well.

3. The trial court correctly advises L.R.
The trial court took a recess at this point in L.R.’s
testimony. Defendant requested to make an argument outside of
the presence of the jury regarding a mistrial. The trial court
stated it intended to proceed. Defendant objected to not being
able to make a record. The court then invited counsel to sidebar.5
At sidebar, the prosecutor agreed with defense counsel that
Code of Civil Procedure section 1219, subdivision (b), specified

5
The conversation at sidebar was not reported. Defendant
obtained a settled statement regarding the content of the sidebar
conversation.

7
the maximum punishment for a domestic violence victim’s refusal
to testify is a fine. Defendant requested a mistrial. The trial
court did not grant a mistrial and stated it would correctly advise
L.R. of the consequences of her refusal to testify. Defendant then
requested counsel be appointed for L.R. The court denied the
request and indicated that if L.R. refused to testify, her
testimony would be stricken from the record and the jury would
be instructed to disregard it.
After concluding the sidebar, the court stated for the record
that counsel agreed the maximum punishment L.R. could face for
refusing to testify against defendant was a $10,000 fine, not jail
time. L.R. asked the court to clarify whether a $10,000 fine
would definitely be imposed. The court said no and explained the
chain of potential consequences of refusing to testify. L.R. then
requested and received a minute to consider the court’s updated
advisement. She ultimately decided she would not testify against
defendant.

4. Subsequent proceedings concerning L.R.’s
testimony
When the jury returned to the courtroom, the trial court
informed the jury L.R. had left the witness stand and stated it
was striking L.R.’s testimony. The court instructed the jury not
to consider the testimony during the course of the trial, or to
allow it to affect their verdict. L.R. later confirmed in the
presence of the jury that she was choosing not to testify.
Defendant orally moved for a mistrial, arguing L.R.’s
testimony was highly prejudicial, particularly the testimony
regarding prior bad acts for which there were no other witnesses.
Defendant argued there was no way to “unring the bell,” and

8
contended he would be deprived of a fair trial. The trial court
denied the motion.
When the trial court instructed the jury, it reminded the
jury it had stricken L.R.’s testimony from the record and again
instructed the jury to disregard it and not consider it for any
purpose. The court also instructed the jury that nothing the
attorneys say is evidence and their questions are not evidence. It
further instructed the jury not to “assume something is true just
because one of the attorneys asked a question that suggested it
was true.”
Defendant subsequently asked the trial court to state on
the record the reasons for its denial of his request for a mistrial.
The trial court did so, explaining the evidence against defendant
through the examination of other witnesses was strong and
complete. The court opined that, if anything, L.R.’s stricken
testimony was favorable to defendant because she denied any
criminal wrongdoing on defendant’s part. The court additionally
emphasized it had stricken the testimony, admonished the jury to
disregard it, and had reminded the jury of that during its
recitation of the jury instructions. The court concluded there was
nothing about L.R.’s aborted testimony that unfairly advantaged
the prosecution.

D. Verdict and Sentencing
1. Verdict
The jury found defendant guilty of attempted murder
(count 1) and found true associated allegations that defendant
personally and intentionally discharged a firearm that caused
great bodily injury to L.R., that defendant personally and
intentionally discharged a firearm, that defendant personally and

9
intentionally used a firearm, and that defendant personally
inflicted great bodily injury on L.R. The jury also found
defendant guilty of assault with a firearm (count 2) and injuring
a spouse (count 6). As to both of those counts, the jury found true
allegations that defendant personally and intentionally used a
firearm and personally inflicted great bodily injury on L.R.
Finally, the jury found defendant guilty of being a felon in
possession of a firearm (count 7) and of possession of ammunition
(count 8). The trial court separately found true allegations that
defendant sustained three prior convictions qualifying as
“strikes” under the Three Strikes law.

2. Motion for new trial
After the verdicts, defendant filed a motion for new trial
based on the trial court’s incorrect advisement to L.R. concerning
the consequences of declining to testify and the decision to
overrule the defense objection prior to L.R.’s (misadvised)
decision to testify. The trial court acknowledged its instruction to
L.R. stating she could be imprisoned for refusing to testify
against defendant was clearly erroneous. But it found the error
had not resulted in a miscarriage of justice. In so finding, the
court reasoned L.R.’s testimony consisted primarily of denials of
defendant’s wrongdoing during the days preceding the shooting
and noted there were no subsequent witnesses called to impeach
those denials. The court also emphasized its decision to strike
the testimony immediately after L.R. declined to testify further,
the multiple admonitions it gave the jury to disregard L.R.’s
testimony, and the strength of the other evidence against
defendant, which the court believed was overwhelming.

10
 3. Sentencing
The trial court sentenced defendant to a total of 81 years to
life in prison. On the attempted murder conviction (count 1), the
court imposed a sentence of 42 years to life pursuant to section
1170.12, subdivision (c)(2)(A)(iii), plus 25 years to life for
discharge of a firearm causing great bodily injury (§ 12022.53,
subd. (d)) and 10 years for defendant’s two prior serious felony
convictions. On the felon in possession of a firearm conviction,
the court imposed a term of four years, consecutive to the
sentence on count 1. Sentences and enhancements on the assault
with a firearm, injuring a spouse, and possession of ammunition
convictions (counts 2, 6, and 8) were either ordered stricken or
imposed and stayed pursuant to section 654.
Defendant was ordered to pay a restitution fine in the
amount of $10,000 pursuant to section 1202.4. The court also
imposed a court operations assessment in the amount of $240
and a criminal conviction assessment in the amount of $180.
Defendant asked the court to stay all fines and fees until
the People proved he had the ability to pay them. The court said
it was not inclined to stay the fines because defendant had the
ability to work in prison. The court referenced a letter from a
friend and sometime co-employee of defendant indicating
defendant was a good worker, and concluded defendant should be
able to meet the demands of the fines while incarcerated.6
Defendant argued he would not likely earn a gainful income

6
The letter, which addressed defendant’s overall character,
stated in pertinent part that defendant was willing to jump in
and help at work and never turned down work. It also generally
stated defendant “has always worked hard.”

11
because the prison work program is not a regular salary, he
would be in prison for a very long time, and there was no
reasonable likelihood he would be able to pay. The court found
defendant had the ability to earn and pay all the fees and fines
imposed.
Defendant represented he had accrued 412 days of custody
credits, and he was credited in that amount.

II. DISCUSSION
The trial court did not err by denying defendant’s mistrial
motion and motion for new trial. Once it became clear L.R. would
not testify further—and that defendant would accordingly be
unable to cross-examine her—the trial court struck her testimony
in its entirety and instructed the jury to disregard it. The court
repeated that instruction again at the close of evidence and
further instructed the jury that questions asked by an attorney
are not evidence. These remedial measures were sufficient to
dispel any need for a mistrial or new trial under the
circumstances; L.R. said nothing that was so prejudicial that the
jury could not be expected to comply with the court’s instructions.
(In fact, as the trial court observed, most of L.R.’s testimony—
which was never impeached by another witness—was favorable
to defendant.)
As for defendant’s sentencing contentions, we believe the
trial court’s determination that defendant has the ability to pay
the fines and fees it imposed was sufficiently supported by the
record. But we agree with the parties that defendant’s judgment
must be modified in several clerical respects and the cause should
be remanded to give the trial court the opportunity to exercise
newly conferred discretion under section 654 if it so chooses.

12
 A. The Trial Court Was Not Required to Grant a
Mistrial or New Trial
The parties agree the trial court initially erred by
instructing L.R., a victim of domestic violence, that she could be
imprisoned for refusing to testify. (Code Civ. Proc., § 1219, subd.
(b).) The trial court itself recognized its error during L.R.’s
testimony, re-advised L.R. with accurate information, struck her
testimony, and ordered the jury not to consider it. The question
we resolve is whether constitutional due process and
Confrontation Clause considerations require affording defendant
a new trial notwithstanding the trial court’s measures to remedy
its error. Our review of the denial of a motion for mistrial or new
trial is for abuse of discretion. (People v. Bell (2019) 7 Cal.5th 70,
121 [“In general, ‘a motion for mistrial should be granted only
when “‘a party’s chances of receiving a fair trial have been
irreparably damaged.’”’ [Citation.] ‘We review a ruling on a
mistrial motion for an abuse of discretion. [Citations.] A trial
court should declare a mistrial only “‘if the court is apprised of
prejudice that it judges incurable by admonition or instruction.’”
[Citation.] “In making this assessment of incurable prejudice, a
trial court has considerable discretion”’”]; People v. Lightsey
(2012) 54 Cal.4th 668, 729 [“‘“We review a trial court’s ruling on a
motion for a new trial under a deferential abuse-of-discretion
standard”’”].)

1. Confrontation rights
Relying primarily on People v. Shipe (1975) 49 Cal.App.3d
343 (Shipe), defendant contends his confrontation rights were
violated and he was irreparably prejudiced by the violation. In
Shipe, the police arrested the defendant and two other men for

13
murdering a drug dealer. (Id. at 345-346.) The other men pled
guilty to being accessories after the fact, and the prosecutor
subsequently called them as witnesses at the defendant’s trial.
Each of the men answered preliminary questions but then
asserted the Fifth Amendment when the prosecutor began asking
questions about the incident. (Shipe, supra, 49 Cal.App.3d at
346.) The court determined the witnesses did not have the right
to assert the Fifth Amendment privilege and ordered them to
answer. The prosecutor asked both witnesses leading questions
such as, “‘Is it not true that . . . you came back and saw the body
of [the victim and] that [the defendant] was on top of him?’” and
“‘Is it not further true . . . that in your presence [the victim] was
stabbed multiple times by your brother, [the defendant]?’” (Id. at
347-348.) By asking these questions, “the prosecutor placed
before the jury information which overwhelmingly established
[the defendant] as the murderer, provided a narcotics-related
motive for the crime, and provided a basis for the inference that
two witnesses had revealed this information in their statements
to the authorities.” (People v. Burciago (1978) 81 Cal.App.3d 151,
164.)
The Shipe court reversed the conviction and held the
prosecutor’s questions violated the defendant’s Confrontation
Clause rights. (Shipe, supra, 49 Cal.App.3d at 349, 355.) The
court called the prosecutor’s questions “flagrantly suggestive” and
stated a prosecutor may not, “under the guise of cross-
examination, get before the jury what is tantamount to
devastating direct testimony.” (Id. at 351, 349.) The court also
concluded the People could not demonstrate the confrontation
violation did not contribute to the verdict obtained because the

14
evidence of the defendant’s guilt was “entirely circumstantial.”
(Id. at 355.)
The pertinent facts in Shipe differ from the facts here in
two key respects. First, in Shipe, the testimony in question was
not stricken. (Shipe, supra, 49 Cal.App.3d at 346-349.) Here, by
contrast, the trial court struck the entirety of L.R.’s testimony
and instructed the jurors they were not to consider her testimony
or allow it to affect their decision. During its delivery of jury
instructions, the trial court reminded the jury it had stricken
L.R.’s testimony and again instructed it to disregard the
testimony. The trial court also instructed the jury that the
attorneys’ questions were not evidence, and not to assume
something was true because an attorney’s question suggested it
was true. These differences are important because “[t]he
assumption that jurors are able to follow the court’s instructions
fully applies when rights guaranteed by the Confrontation Clause
are at issue.” (Tennessee v. Street (1985) 471 U.S. 409, 415, fn. 6;
accord, People v. Smithey (1999) 20 Cal.4th 936, 962 [holding the
defendant was not denied his right to confrontation where “the
jury was instructed to disregard all questions regarding
defendant’s intent and any answers”].) As a result, we assume
the jury followed the court’s instructions.
Second, in Shipe, there was no significant independent
evidence of guilt other than what was brought out by the
challenged questioning. (Shipe, supra, 49 Cal.App.3d at 355
[“The evidence of appellant’s guilt was entirely
circumstantial . . .”].) Here, however, the other evidence of
defendant’s guilt on the crimes of conviction was strong.
Defendant was the only person in the home with L.R. at the time
of the shooting. After she was shot, L.R. identified defendant as

15
the person who shot her, and defendant admitted the same to
I.M. Defendant and L.R. had been fighting the week of the
shooting, and one of their arguments turned violent. Though
L.R. had two wounds, one below her left wrist, which the bullet
went through, and a wound to her left shoulder, where the bullet
lodged, the evidence reflected only one shot was fired. The jury
could properly find based on all this evidence (and Le.M.’s
statement to the investigator about defendant’s post-shooting
“because she’s a ho” statement) that defendant attempted to kill
L.R. and she raised her arm to shield herself when defendant
fired (though L.R. denied this). (See, e.g., People v. Smith (2005)
37 Cal.4th 733, 741-742 [act of firing a gun toward a victim at a
close, but not point blank, range is sufficient to support an
inference of intent to kill where the shot could have inflicted a
mortal wound had the shot been on target].)
In contrast to Shipe and the other cases on which
defendant relies, the facts here are more akin to those found in
People v. Morgain (2009) 177 Cal.App.4th 454 (Morgain). That
case holds a defendant’s right to confrontation was not violated
where a witness was granted use immunity and ordered to testify
but refused to answer a handful of questions posed by the
prosecutor, including whether the defendant told her that he shot
the victim. (Id. at 459-462.) The trial court in Morgain, like the
trial court here, granted the defendant’s motion to strike the
entirety of the witness’s testimony and instructed the jury not to
consider the prosecution’s questions as evidence. (Id. at 462,
465.) The Morgain court held the defendant suffered no
infringement of his Confrontation Clause rights requiring retrial
because the trial court struck the witness’s testimony, because
the court instructed the jury not to consider the prosecution’s

16
questions as evidence, and because there was independent
evidence of defendant’s guilt. (Id. at 465-466.) The facts here are
analogous and we reach the same conclusion.

2. Due process
Defendant also contends his Fourteenth Amendment due
process right to a fair trial was violated by L.R.’s testimony. In so
arguing, defendant acknowledges that, generally, “the admission
of improper evidence is harmless if it is subsequently stricken out
and the jury is told to disregard it.” (People v. Sourisseau (1944)
62 Cal.App.2d 917, 929.) However, he contends L.R.’s testimony
was so prejudicial that striking it and admonishing the jury to
disregard it could not cure the error.
In support of this argument, defendant cites a handful of
cases in which appellate courts have held a mistrial should have
been granted on significantly different facts. (See, e.g. People v.
Allen (1978) 77 Cal.App.3d 924, 934-935 [reference to the
defendant’s parole status was not cured by trial court striking
testimony and admonishing jury where the evidence presented
an extremely close case] (Allen); People v. Ozuna (1963) 213
Cal.App.2d 338, 339, 342 [admonition to jury did not remove
harmful effect of testimony referring to defendant as “ex-convict”;
evidence was not strong enough to preclude finding of innocence]
(Ozuna); People v. Bentley (1955) 131 Cal.App.2d 687, 689-690
[curative admonition insufficient where police witness in child
sexual abuse case improperly revealed defendant’s suspected
involvement in prior similar cases and another witness revealed
the defendant “trie[d] to date up all the married women in the
neighborhood”] (Bentley); People v. Navarrete (2010) 181
Cal.App.4th 828, 834 [curative instruction could not undo

17
prejudice where jury was likely to interpret testimony to mean
the defendant made a confession of guilt] (Navarrete).) All of
these cases involve “exceptional” circumstances in which “‘the
improper subject matter is of such a character that its
effect . . . cannot be removed by the court’s admonitions.’
[Citation.]” (Allen, supra, 77 Cal.App.3d at 935.) The testimony
in Allen and Ozuna, for instance, improperly revealed the
respective defendants had prior convictions. The subject
testimony in Bentley indicated the defendant, charged with child
abuse, had previously been suspected of abusing another child.
And the testimony in Navarrete suggested the defendant had
confessed to the crime. Here, by contrast, L.R.’s answers to
questions before refusing to testify further mainly augmented
testimony by other witnesses establishing that she and defendant
had been arguing, and one of those arguments had turned
physical. That is not an “exceptional” circumstance like those in
the cited cases.7

B. Ability to Pay Fines and Fees
Defendant asks us to order his restitution fine and other
assessments stayed pursuant to People v. Dueñas (2019) 30
Cal.App.5th 1157 (Dueñas)—unless or until the People prove his
ability to pay. Defendant argues substantial evidence does not
support the trial court’s conclusion that defendant could obtain

7
Defendant additionally asserts that “refusal to entertain
[trial] counsel’s timely objections constituted error in its own
right.” Even if that were correct, the error was not prejudicial—
as our merits analysis demonstrates.

18
paid work in prison and was thus capable of paying his fines and
fees.
Our Supreme Court has granted review to decide whether a
court must consider a defendant’s ability to pay before imposing
or executing fines, fees, and assessments and, if so, which party
bears the burden of proof. (People v. Kopp (2019) 38 Cal.App.5th
47, review granted Nov. 13, 2019, S257844.) For purposes of this
appeal, we assume that Dueñas was correctly decided.8
The record reflects that at the time of sentencing defendant
was 44 years old, had previously been employed as a truck driver,
and was a hard worker. The trial court sentenced defendant to
an aggregate term of 81 years to life. Based on these facts, the
trial court could reasonably rely on defendant’s ability to earn
prison wages, even if those wages are low, to find he had the
ability to pay. (See People v. Jenkins (2019) 40 Cal.App.5th 30,
41 [“[I]t is entirely appropriate to consider the wages defendant
may earn in prison on the inability-to-pay issue.”]; People v.
Ramirez (1995) 39 Cal.App.4th 1369, 1377 [a trial court may
consider the defendant’s future ability to pay, including his
ability to earn wages while in prison].) Defendant argues there
was no evidence demonstrating whether he would be eligible for a
prison work program, when he would be able to begin working,
how many hours he would work, or the pay rate he would receive.
He further argues that, at an estimated rate for a mid-level job in
prison, he would have to substantially outlive his life expectancy
in order to pay off his fines and assessments. None of these

8
We therefore do not address the People’s argument that the
issue should be analyzed under the excessive fines clause of the
Eighth Amendment rather than under the Due Process clause.

19
arguments demonstrate, however, that the trial court’s
imposition of fines and fees was erroneous. (See, e.g., People v.
DeFrance (2008) 167 Cal.App.4th 486, 505 [defendant did not
show inability to pay $10,000 restitution fine simply because
prison wages would make it difficult, it would take a long time,
and the fine might never be paid].)

C. Calculation of Assessments and Custody Credits
Defendant argues, the People concede, and we agree, that
the court operations assessments and criminal conviction
assessment imposed must be modified. Penal Code section
1465.8, subdivision (a)(1) imposes a $40 per count assessment to
help pay for court operations. Government Code section 70373,
subdivision (a)(1) sets forth an assessment of $30 per felony count
in order to pay for court facilities. Defendant was convicted on
five counts. Accordingly, the trial court should have imposed
$200 in fees under section 1465.8 and $150 in fees under
Government Code section 70373.
The trial court awarded defendant 358 days of custody
credit and 54 days of conduct credit, based on the calculations
provided to the court at the sentencing hearing. Defendant was
arrested on June 2, 2019, and sentenced on May 26, 2020.
Defendant is entitled to actual custody credit for all days in jail,
including partial days. (People v. Valdes (2020) 53 Cal.App.5th
953, 955.) As the parties agree, the calculation of the custody
credit days provided to the court at sentencing undercounted
defendant’s actual custody credits by two days. Accordingly, on
remand, the court must ensure defendant receives 360 days of
actual custody credit, plus 54 days of conduct credit, for a total of
414 days.

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 D. Assembly Bill 518
In a supplemental brief, defendant argues the matter
should be remanded to the trial court to allow it to determine
whether to exercise its discretion under Assembly Bill 518, which
became effective on January 1, 2022. The People agree,
conceding Assembly Bill 518 applies to defendants’ case
retroactively.
Prior to Assembly Bill 518, section 654 provided that an act
or omission punishable under multiple provisions of law must be
punished only under the provision carrying the longest term of
imprisonment. (Former § 654 [“An act or omission that is
punishable in different ways by different provisions of law shall
be punished under the provision that provides for the longest
potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision”].)
Assembly Bill 518 amended section 654 to give trial courts the
authority to impose punishment under either of two provisions
that permit punishment of the same act, i.e., without being
constrained to choose the punishment carrying the longest term
of imprisonment. (§ 654 [“An act or omission that is punishable
in different ways by different provisions of law may be punished
under either of such provisions, but in no case shall the act or
omission be punished under more than one provision”].)
In this case, defendant was convicted of multiple crimes
arising out of the same act, and the trial court sentenced him in
accordance with the requirements of section 654 as it existed at
the time. We agree that Assembly Bill 518 applies retroactively
to defendant’s case. (See e.g., People v. Superior Court (Lara)
(2018) 4 Cal.5th 299, 307, 309 [new laws granting courts
discretion to ameliorate punishment should be applied

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retroactively to “‘every case to which it constitutionally could
apply’” even if it is only exercised in some cases].)
Accordingly, defendant is entitled to a limited remand to
permit the trial court to determine whether to exercise its
discretion under section 654 as amended. On remand, the trial
court should hold a hearing with defendant present (unless his
presence is waived) to determine whether to exercise its
discretion to modify the original sentence. If the court opts to
impose a lesser term than initially imposed, the court should
proceed with a full resentencing. If the court decides not to
exercise its discretion to impose a lesser sentence, the prior
sentence is to remain in effect, and defendant need not be
resentenced but should be remanded to continue serving the term
previously imposed (with the corrections in the abstract of
judgment we have already outlined). (Peracchi v. Superior Court
(2003) 30 Cal.4th 1245, 1255; People v. Buckhalter (2001) 26
Cal.4th 20, 35.)

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 DISPOSITION
Defendant’s convictions are affirmed and the cause is
remanded for further proceedings consistent with this opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, Acting P. J.

We concur:

MOOR, J.

KIM, J.

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