People v. Ervin CA5

Filed 12/2/21 P. v. Ervin CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F079348
Plaintiff and Respondent,
(Super. Ct. No. F18906793)
v.

DALE LEE ERVIN, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt,
Judge.
Aaron J. Schechter, 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, Robert Gezi
and Julie A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant Dale Ervin was charged with driving with willful or wanton disregard
for the safety of persons or property while fleeing from pursuing peace officers (Veh.
Code, § 2800.2, subd. (a) [count 1]); unlawful possession of heroin (Health & Saf. Code,
§ 11350, subd. (a) [count 2]); unlawful possession of methamphetamine (id., § 11377,
subd. (a) [count 3]); and driving under the influence of a drug (Veh. Code, § 23152,
subd. (f) [count 4]). The information further alleged that he previously was convicted of
a qualifying “strike” offense under the Three Strikes law (Pen. Code, §§ 667, subds. (b)-
(i), 1170.12, subds. (a)-(d)) and served seven separate prison terms (id., § 667.5, former
subd. (b)). Prior to trial, defendant admitted the special allegations. Following trial, the
jury found him guilty as charged. Thereafter, the trial court exercised its discretion and
struck two prior prison term enhancements.
Defendant received an aggregate prison sentence of nine years on count 1: a
doubled middle term of four years plus five years for five prior prison term
enhancements. He also received concurrent 365-day jail terms on counts 2, 3, and 4.
Defendant was ordered to pay a $500 restitution fine (Pen. Code, § 1202.4) and two $50
laboratory analysis fees (Health & Saf. Code, § 11372.5, subd. (a)). A $500 parole
revocation fine (Pen. Code, § 1202.45) was imposed and suspended. Four $40 court
operations assessments (id., § 1465.8) and four $30 court facilities assessments (Gov.
Code, § 70373) were imposed and stayed.
In his opening brief, defendant makes several contentions. First, the court “should
reverse [the] felony reckless evading conviction because [the conviction] is not supported
by substantial evidence .…” (Capitalization omitted.) Second, the court “should reverse
[the] felony reckless evading conviction because [it] committed instructional error … by
giving the jury incomplete and misleading instructions on the siren element.”
(Capitalization omitted.) Third, the court “should vacate [defendant]’s restitution fine

2.
because the trial court abused its discretion by arbitrarily and irrationally determining that
[he] is able to pay the fine .…” (Capitalization omitted.) Finally, the court “should
vacate [defendant]’s laboratory analysis fee because the trial court violated [his] right to
due process by imposing this assessment without a determination that [he] is presently
able to pay.” (Capitalization omitted.) We conclude: (1) substantial evidence supported
the reckless evasion conviction; (2) the court did not commit instructional error; and (3)
the restitution fine and the laboratory analysis fees need not be vacated.
In a supplemental brief, defendant argues that the five prior prison term
enhancements must be stricken in view of a recent amendment to Penal Code section
667.5, subdivision (b), enacted by Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate
Bill No. 136) (Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020). The Attorney General agrees
that these enhancements must be stricken. We accept this concession and strike the five
prior prison term enhancements. We remand the matter for resentencing to allow the trial
court to exercise its sentencing discretion in light of the changed circumstances. (People
v. Jennings (2019) 42 Cal.App.5th 664, 682.)
STATEMENT OF FACTS
Fresno County Deputy Sheriff Chapple was on duty in the early morning hours of
October 2, 2018. He was operating a patrol car that had a “red and blue emergency light
bar on the top” and was “fully marked” with “sheriffs stars on both sides” and the word
“ ‘Sheriff’ on the back.” Chapple was dressed in his standard uniform, which consisted
of a long-sleeved shirt “with Fresno County Sheriffs patches on both shoulders,” badge,
duty belt, green pants, and steel boots.
At approximately 1:47 a.m., Chapple observed a “white four-door Honda” “pass a
car” and “run a stop sign” at the intersection of Princeton Avenue and Thesta Street. He
switched on “Code 3 emergency lights”—four flashing red and blue lights “on the front
bumper” as well as flashing red and blue lights and solid red and blue lights on the light

3.
bar—and pursued the Honda, which “accelerated” westbound on Princeton Avenue “in
an attempt to flee.” Traveling at a speed of 50 miles per hour in a 25-mile-per-hour
residential area, the Honda “ran a four-way stop sign” at the intersection of Princeton
Avenue and Clark Street. It then turned onto southbound Clark Street and continued for
four blocks, ignoring three more stop signs. After the Honda “ran the [third] stop sign”
and turned onto eastbound Clinton Avenue “over a double solid yellow line,” Chapple
“initiated [the] siren” “to warn” an oncoming car, which “had to completely stop … in
order to avoid being hit.” The Honda “turned again over a double solid yellow line onto”
Thesta Street. By this point, it was traveling at a speed of “35, 40 miles an hour.” The
Honda headed northbound on Thesta Street, disregarded another stop sign, and then “died
in the middle of the intersection” of Terrace Avenue and Thesta Street. The pursuit
lasted “[t]hree to five minutes tops” and ended “around … 30 seconds” after Chapple
turned on the siren.
Defendant, the driver of the Honda, was apprehended. Crystal methamphetamine,
heroin, and a glass pipe were found on his person. California Highway Patrol Officers
Carreno and Tucker arrived on the scene at approximately 2:00 a.m. to conduct a DUI
evaluation. Carreno, a drug recognition expert, noticed that while the weather was
“pretty cold” and defendant was wearing a white tank top, defendant was sweating so
profusely that he had “a shine on his body and on his head as well.” During questioning
by Tucker, defendant admitted that he “did meth earlier” and “had smoked some
marijuana earlier.” He was also “nodding off,” i.e., he “was just not able to stay awake or
… kept … leaning over,” which Carreno identified as the demeanor of someone “coming
down from their high.” Because defendant was “on the nod,” Tucker “didn’t conduct the
full range of field sobriety tests.” Carreno opined that defendant exhibited objective
signs of intoxication consistent with being under the influence of methamphetamine.

4.
Thereafter, defendant was transported to the hospital for a blood draw.
Subsequent testing revealed 0.89 milligrams per liter of methamphetamine, a “potentially
toxic range” that would impair a person’s ability to drive. Testing also revealed 0.16
nanograms per milliliter of cannabis, an amount that would likely not “overpower” “the
stimulation and sleep deprivation aspects of [the] methamphetamine used” by defendant.
At trial, on cross-examination, Chapple affirmed that he typically activated his
vehicle’s siren “to get someone’s attention,” “[w]hether it’s the car that [he’s] attempting
to pull over or the surrounding cars.” On recross-examination, he testified that “[t]here
were no vehicles” on Clark Street during that stretch of the pursuit.
DISCUSSION

I. Substantial evidence supported defendant’s conviction for reckless
evasion on count 1
a. Standard of review
“To determine the sufficiency of the evidence to support a conviction, we review
the entire record in the light most favorable to the prosecution to determine whether it
contains [substantial] evidence that is reasonable, credible and of solid value, from which
a rational trier of fact could find that the elements of the crime were established beyond a
reasonable doubt.” (People v. Tripp (2007) 151 Cal.App.4th 951, 955.) We “presume in
support of the judgment the existence of every fact the trier could reasonably deduce
from the evidence.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) “We need not be
convinced of the defendant’s guilt beyond a reasonable doubt; we merely ask whether
‘ “any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” [Citation.]’ ” (People v. Tripp, supra, at p. 955, italics omitted.)
“This standard of review … applies to circumstantial evidence. [Citation.] If the
circumstances, plus all the logical inferences the jury might have drawn from them,
reasonably justify the jury’s findings, our opinion that the circumstances might also

5.
reasonably be reconciled with a contrary finding does not warrant a reversal of the
judgment.” (Ibid.)
“Before the judgment of the trial court can be set aside for insufficiency of the
evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis
what[so]ever is there sufficient substantial evidence to support it.” (People v. Redmond,
supra, 71 Cal.2d at p. 755.) “ ‘Conflicts and even testimony which is subject to
justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive
province of the trial judge or jury to determine the credibility of a witness and the truth or
falsity of the facts upon which a determination depends. [Citation.] We resolve neither
credibility issues nor evidentiary conflicts; we look for substantial evidence.’ ” (People
v. Lee (2011) 51 Cal.4th 620, 632.)
b. Analysis
Vehicle Code section 2800.1, subdivision (a) reads:

“Any person who, while operating a motor vehicle and with the intent to
evade, willfully flees or otherwise attempts to elude a pursuing peace
officer’s motor vehicle, is guilty of a misdemeanor punishable by
imprisonment in a county jail for not more than one year if all of the
following conditions exist:

“(1) The peace officer’s motor vehicle is exhibiting at least one lighted red
lamp visible from the front and the person either sees or reasonably should
have seen the lamp.

“(2) The peace officer’s motor vehicle is sounding a siren as may be
reasonably necessary.

“(3) The peace officer’s motor vehicle is distinctively marked.

“(4) The peace officer’s motor vehicle is operated by a peace officer …
and that peace officer is wearing a distinctive uniform.”
Vehicle Code section 2800.2, subdivision (a), which “incorporates and expressly requires
a violation of [Vehicle Code] section 2800.1” (People v. Copass (2009) 180 Cal.App.4th
37, 41), reads:

6.
“If a person flees or attempts to elude a pursuing peace officer in violation
of Section 2800.1 [of the Vehicle Code] and the pursued vehicle is driven
in a willful or wanton disregard for the safety of persons or property, the
person driving the vehicle, upon conviction, shall be punished by
imprisonment in the state prison, or by confinement in the county jail for
not less than six months nor more than one year.…”
The record—viewed in the light most favorable to the prosecution—establishes
that defendant operated a Honda sedan while he was under the influence of
methamphetamine in the early morning hours of October 2, 2018. He passed another
vehicle and failed to yield at a stop sign at the intersection of Princeton Avenue and
Thesta Street. Deputy Sheriff Chapple, who was wearing his standard uniform and
driving a patrol car displaying “sheriffs stars on both sides” and the word “ ‘Sheriff’ on
the back,” observed this violation. He turned on the emergency lights, which included
flashing red lights in front of and atop his car, and followed the Honda. Subsequently,
defendant accelerated to 50 miles per hour in a 25-mile-per-hour residential area. He
ignored another stop sign as he turned onto Clark Street and then ran three more stop
signs. After defendant ran the third stop sign and turned onto Clinton Avenue, Chapple
activated his siren to alert an oncoming car, which was able to avoid a collision.
Approximately 30 seconds later, after turning onto Thesta Street and ignoring yet another
stop sign, defendant’s vehicle eventually broke down in the middle of the Terrace
Avenue–Thesta Street intersection.
Defendant does not dispute that Chapple wore a distinctive uniform, operated a
motor vehicle that was distinctively marked and exhibited at least one lighted red lamp
visible from the front, and sounded a siren about 30 seconds before the pursuit ended.
Nevertheless, he argues:

“The People’s evidence supporting count one showed that the
pursuit lasted for about three to five minutes, and that the officer did [sic]
activate his siren until the final thirty seconds of the pursuit. [Citation.]
The police officer’s activation of his siren is a necessary prerequisite for a
defendant to be guilty of reckless evading. [Citation.] So, prior to the time

7.
when the officer first activated his siren, the prerequisite conditions for
felony reckless evading did yet not exist. [¶] … [¶]

“[Defendant]’s … felony reckless evading conviction is not
supported by substantial evidence.… [A]ll four prerequisite conditions of
[Vehicle Code] section 2800.1, subdivision (a), must have been satisfied
before a defendant can be guilty under [Vehicle Code] section 2800.2 for
evading an officer with ‘willful or wanton disregard.’ [Citations.] Here,
the four prerequisite conditions of [Vehicle Code] section 2800.1,
subdivision (a), were not satisfied until the last thirty seconds of the pursuit,
when the officer activated his siren. [Citation.] And the record does not
contain sufficient evidence that [defendant] recklessly evaded the officer
during the final thirty seconds of this pursuit—the time when all four
prerequisite conditions of [Vehicle Code] section 2800.1, subdivision (a),
were met.…”
We disagree with the notion that Vehicle Code section 2800.1, subdivision (a)(2)
mandates a siren’s activation at some point during a pursuit. The provision reads: “The
peace officer’s motor vehicle is sounding a siren as may be reasonably necessary.”
(Italics added.) “The court’s role in construing a statute is to ‘ascertain the intent of the
Legislature so as to effectuate the purpose of the law.’ [Citations.] In determining the
Legislature’s intent, a court looks first to the words of the statute. [Citation.] ‘[I]t is the
language of the statute itself that has successfully braved the legislative gauntlet.’
[Citation.] [¶] When looking to the words of the statute, a court gives the language its
usual, ordinary meaning. [Citations.] If there is no ambiguity in the language, we
presume the Legislature meant what it said and the plain meaning of the statute governs.
[Citations.]” (People v. Snook (1997) 16 Cal.4th 1210, 1215; accord, People v. Hudson
(2006) 38 Cal.4th 1002, 1009 (Hudson).) The unequivocal wording of Vehicle Code
section 2800.1, subdivision (a)(2) indicates that siren use is situational rather than
compulsory. Had the Legislature intended otherwise, the phrase “as may be reasonably
necessary” would have been excluded. (See Hudson, supra, at p. 1010 [“[I]nterpretations
that render statutory terms meaningless as surplusage are to be avoided.”].)

8.
Next, we disagree with defendant’s claim that “the prerequisite conditions for
felony reckless evading” “were not satisfied until the last thirty seconds of the pursuit,
when [Chapple] activated his siren.” As noted, defendant does not dispute the presence
of three of the four Vehicle Code section 2800.1, subdivision (a) conditions from the
outset: “a red light,” “a distinctively marked vehicle,” and “a peace officer in a distinctive
uniform.” (Hudson, supra 38 Cal.4th at p. 1008.) Regarding the “siren” condition
(ibid.), we reiterate that activation thereof is not mandatory. Based on the record, a
rational trier of fact could have found that siren use was not reasonably necessary for the
greater part of the pursuit. At trial, Chapple testified that he would use a siren to capture
the attention of a perpetrator and/or other motorists. After witnessing defendant’s failure
to yield at a stop sign on Princeton Avenue in the early morning hours of October 2,
2018, Chapple turned on the emergency lights. Given defendant’s immediate reaction,
i.e., accelerating to 50 miles per hour in a 25-mile-per-hour residential area and turning
onto southbound Clark Street to evade Chapple, one may logically infer that the lights
alone were sufficient to capture defendant’s attention. Additionally, Chapple testified
that “[t]here were no [other] vehicles” on the four-block stretch of Clark Street, obviating
the need for a siren to warn others prior to the near-collision on Clinton Avenue.1
Finally, we disagree with defendant’s claim that “the record does not contain
substantial evidence that [he] recklessly evaded [Chapple] during the final thirty seconds
of this pursuit .…” He maintains:

1 An earlier case from Division Five of the Second Appellate District reversed the
defendant’s reckless evasion conviction because “[Vehicle Code] Section 2800.1,
subdivision (a)(2) requires the officer be using a siren” and “there was no substantial
evidence that a siren was sounded.” (People v. Shakhvaladyan (2004) 117 Cal.App.4th
232, 237–238, overruled in part by Hudson, supra 38 Cal.4th 1002, 1011, fn. 3.)
However, the holding never considered whether siren activation was “reasonably
necessary” under the circumstances.

9.
“There is no evidence that, during these final thirty seconds, [defendant]
was traveling at an excessive or unsafe speed, came anywhere near any
other cars, or otherwise posed a substantial safety risk to anyone.”
This assertion is belied by the record. At the time Chapple sounded his siren,
approximately 30 seconds before the end of the pursuit, defendant was on Clinton
Avenue heading eastbound toward an oncoming motorist. After the siren was activated,
the motorist was alerted and able to “completely stop,” averting an accident. Defendant,
on the other hand, continued to flee. His speed apparently decreased to “35, 40 miles an
hour” by the time he turned onto northbound Thesta Street. However, since his Honda
“died in the middle of the intersection” of Terrace Avenue and Thesta Street shortly
thereafter, one may logically infer that the speed reduction was the result of car trouble
and not of defendant’s own volition.
We conclude that substantial evidence supported defendant’s reckless evasion
conviction.
II. The trial court did not commit instructional error
a. Background
Prior to closing arguments, the court instructed the jury:

“[CALCRIM No. 2181 (Evading Peace Officer):] The defendant is
charged in Count One with evading a peace officer, in violation of Vehicle
Code Section 2800.2. To prove that the defendant is guilty of this crime the
People must prove beyond a reasonable doubt that; one, a peace officer
driving a motor vehicle was pursuing the defendant; two, the defendant
who was also driving a motor vehicle willfully fled from or tried to elude
the officer intending to evade the officer; three, during the pursuit the
defendant drove with willful or wanton disregard for the safety of persons
or property; and, four, all of the following were true: A, there was at least
one lighted red lamp from the front of the peace officer’s vehicle, B, the
defendant either saw or reasonably should have seen the lamp, C, the peace
officer’s vehicle was sounding a siren as reasonably necessary, D, the peace
officer’s vehicle was distinctively marked and, E, the peace officer was
wearing a distinctive uniform. [¶] … [¶]

10.
“[CALCRIM No. 2182 (Evading Peace Officer: Misdemeanor):]
Evading a peace officer, in violation of Vehicle Code Section 2800.1, is a
lesser-included offense to evading a peace officer as charged in Count One.
To prove the defendant is guilty of this crime the evidence must prove
beyond a reasonable doubt that, one, a peace officer driving a motor vehicle
was pursuing the defendant, two, the defendant who was also driving a
motor vehicle willfully fled from or tried to elude the officer intending to
evade the officer and, three, all of the following were true: A, there was at
least one lighted red lamp visible from the front of the peace officer’s
vehicle, B, the defendant either saw or reasonably should have seen the
lamp, C, the peace officer’s vehicle was sounding a siren as reasonably
necessary, D, the peace officer’s vehicle was distinctively marked and, E,
the peace officer was wearing a distinctive uniform.”
b. Standard of review
“The independent or de novo standard of review is applicable in assessing whether
instructions correctly state the law.” (People v. Posey (2004) 32 Cal.4th 193, 218.)
c. Analysis
“[T]he court is required to give correct jury instructions on the general principles
of law relevant to issues raised by the evidence.” (People v. Anderson (2015) 232
Cal.App.4th 1259, 1279.) Here, the court issued CALCRIM Nos. 2181 and 2182, both of
which highlighted the need to establish each of the four Vehicle Code section 2800.1,
subdivision (a) conditions. Their wording of these conditions did not materially deviate
from the statutory language. “[T]he trial court’s obligation is to state the law correctly.”
(People v. Runnion (1994) 30 Cal.App.4th 852, 858.) We find that the court met its
obligation.
Defendant contends that the court “committed instructional error by giving the
jury incomplete and misleading instructions … on the siren element.” He specifies:

“Given the facts here (i.e., the officer failing to first activate his siren
until the final thirty seconds of the three-to-five-minute pursuit), …
CALCRIM No. 2181 is highly misleading because the ‘as reasonably
necessary’ phrase of the siren element incorrectly suggests that the siren
element can be satisfied even if the officer does not activate his siren at all.”
(Boldface and italics omitted.)

11.
Defendant’s argument is based on an interpretation of Vehicle Code section 2800.1,
subdivision (a)(2) that we have rejected. (See ante, at pp. 7–9.) We find no instructional
error.2
III. The restitution fine and laboratory fees need not be vacated
a. Background
According to the probation officer’s report filed on May 17, 2019, defendant was
42 years old and lived with his girlfriend. He obtained a GED in 1997 “while in state
prison” and “received training for firefighting while in prison.” Defendant was
unemployed and performed “side jobs for income.” He used marijuana and
methamphetamine “[d]aily” since the ages of 10 and 13, respectively. Defendant related
that he was “in good physical health” and “denied any mental health conditions.” The
probation officer recommended a restitution fine of $4,500 (Pen. Code, § 1202.4) and
two laboratory analysis fees totaling $100 (Health & Saf. Code, § 11372.5, subd. (a)),
inter alia.
At the May 17, 2019 sentencing hearing, defense asked the court “not to impose
any of those fines or fees.” He reasoned:

“Our office was appointed to [defendant]’s case back in, I believe, October
of 2018. At that time—well, he’s been in custody ever since. He never
bailed out. The form that our office fills out with individuals before we
take appointment would show that he was not working, did not have an
ability to pay, that’s why our office was appointed, so I would ask that—I
have a note here that he was homeless at the time, so I would ask that the
court not impose any of those fines and fees. I would object to the
imposition of any of those fines or fees.”
The court pronounced:

2 Having examined the merits, we need not address (1) the Attorney General’s claim
of forfeiture; or (2) defendant’s claim of ineffective assistance of counsel, which is
premised on a finding of forfeiture.

12.
“All right. Well, you know, I don’t really know the specifics of how
inmate employment works, but I do know that there is a provision for him
to be assigned work duties for which he is compensated at some level. The
court is going to impose a restitution fine under [Penal Code sections]
1202.4 and 1202.45 in the amount of $500, not the recommended $4,500. I
do find that his lack of resources coming into the prison commitment today
would justify limiting the restitution fine assessments to his ability to
address those while in custody.

“I am required, however, to impose lab fees of $50 for each of the
Health and Safety Code counts for a total of $100 pursuant to Health and
Safety Code [section] 11372.5.…”
b. Analysis
i. Restitution fine
Defendant contends that the court “violate[d] [his] right to due process under the
federal and California constitutions” by imposing a $500 restitution fee “because the
record clearly demonstrates that [he] is indigent and has no ability to pay the fine.” He
asks us to either “vacate [the] $500 restitution fine” or, in the alternative, “remand for the
trial court to properly consider [his] ability to pay the $500 restitution fine without regard
to the arbitrary and irrational conclusions on which it relied.” We conclude that neither is
warranted.
We note that defendant cites People v. Dueñas (2019) 30 Cal.App.5th 1157
(Dueñas), which held that “due process of law requires the trial court to conduct an
ability to pay hearing and ascertain a defendant’s present ability to pay” before it imposes
any fines or fees. (Id. at p. 1164.) Our court has written extensively about Dueñas. (See,
e.g., People v. Montes (2021) 59 Cal.App.5th 1107; People v. Son (2020) 49 Cal.App.5th
565; People v. Lowery (2020) 43 Cal.App.5th 1046; People v. Aviles (2019) 39
Cal.App.5th 1055 (Aviles).) Even if we agreed with Dueñas, it is factually inapposite: in
the instant case, the court expressly determined that defendant had the ability to pay the
restitution fine.

13.
A challenge to a court’s determination that a defendant had the ability to pay a fine
is reviewed for abuse of discretion. (See People v. Lewis (2009) 46 Cal.4th 1255, 1321.)
“ ‘Under the abuse of discretion standard, “a trial court’s ruling will not be disturbed, and
reversal of the judgment is not required, unless the trial court exercised its discretion in
an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage
of justice.” [Citation.]’ [Citations.]” (Id. at p. 1286; see In re Marriage of Burgess
(1996) 13 Cal.4th 25, 32 [reviewing court “required to uphold [a discretionary] ruling if it
is correct on any basis, regardless of whether such basis was actually invoked”].)
“ ‘Ability to pay does not necessarily require existing employment or cash on
hand.’ [Citation.] ‘[I]n determining whether a defendant has the ability to pay a
restitution fine, the court is not limited to considering a defendant’s present ability but
may consider a defendant’s ability to pay in the future.’ [Citation.] This include[s] the
defendant’s ability to obtain prison wages and to earn money after his release from
custody. [Citation.]” (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837, italics
omitted; accord, Aviles, supra, 39 Cal.App.5th at p. 1076.) “Every able-bodied person
committed to the custody of the Secretary of the Department of Corrections and
Rehabilitation is obligated to work as assigned by department staff .…” (Cal. Code
Regs., tit. 15, § 3040, subd. (a); see Pen. Code, § 2700.) “State prison inmates who
perform assigned work are compensated for it.” (People v. Frye (1994) 21 Cal.App.4th
1483, 1487.) Depending on the prisoner’s skill level, prison wages range from $12 to
$56 per month. (Cal. Code Regs., tit. 15, § 3041.2, subd. (a)(1).) The state may garnish
between 20 and 50 percent of those wages to pay the restitution fine. (Pen. Code,
§ 2085.5, subds. (a), (c).)3

3 In his brief, defendant alleges: “[I]t is well known that there is a high
unemployment rate in California’s prisons.” He cites no authority in support of this
charge.

14.
Here, one may infer from the record that defendant “has the ability to pay the fines
and fees imposed upon him from probable future wages, including prison wages” over
the course of his sentence. (Aviles, supra, 39 Cal.App.5th at p. 1076.) At the time of the
sentencing hearing, defendant was 42 years old and had a high school equivalency
credential. He performed “side jobs” for income, demonstrating “some past income-
earning capacity.” (People v. Johnson (2019) 35 Cal.App.5th 134, 139 (Johnson).)
Defendant previously received firefighter training and reported that he remained in good
physical health and did not suffer from any mental health conditions.” (See People v.
Frye, supra, 21 Cal.App.4th at p. 1487 [“If defendant was ineligible for prison work
assignment, it was incumbent upon him to alert the court to any such disability.”].) Even
assuming defendant could only work for the minimum prison wage of $12 per month,
given the length of his four-year sentence (see at p. 16, post), he would have sufficient
time to earn the amount needed to pay the fine. (See People v. Jones (2019) 36
Cal.App.5th 1028, 1035.) “In our view, this forecloses a meritorious inability to pay
argument.” (Ibid.) Since defendant “has ample time to pay … from a readily available
source of income while incarcerated” (Johnson, supra, 35 Cal.App.5th at p. 140), we
uphold the court’s ability-to-pay finding.
ii. Laboratory analysis fees
Defendant contends that the court “violated [his] right to due process under the
federal and California constitutions by imposing a $100 laboratory analysis fee [citation]
without a determination of [his] ability to pay.” He once again cites Dueñas and asks us
to either “vacate the laboratory analysis fee” or, in the alternative, “remand for the trial
court to consider [his] ability to pay this assessment.” Even if we agreed with Dueñas, in
view of the record (see ante, at p. 15), any error arising from the court’s failure to make
an ability-to-pay finding with respect to the laboratory analysis fees was harmless beyond

15.
a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Jones,
supra, 36 Cal.App.5th at p. 1035; Johnson, supra, 35 Cal.App.5th at pp. 139–140.)

IV. The five prior prison term enhancements must be stricken in light of
Senate Bill No. 136
At the time defendant was sentenced, Penal Code section 667.5, former
subdivision (b) provided, in part:

“[W]here the new offense is any felony for which a prison sentence
or a sentence of imprisonment in a county jail under subdivision (h) of
Section 1170 is imposed or is not suspended, in addition and consecutive to
any other sentence therefor, the court shall impose a one-year term for each
prior separate prison term for a sexually violent offense as defined in
subdivision (b) of Section 6600 of the Welfare and Institutions Code .…”
Defendant asserts that Senate Bill No. 136 applies retroactively to the case and
asks us to strike the five prior prison term enhancements because none of the underlying
offenses was a sexually violent offense. The Attorney General agrees. We accept this
concession. The five prior prison term enhancements are stricken. The matter is
remanded for resentencing to allow the trial court to exercise its sentencing discretion in
light of the changed circumstances. (People v. Jennings, supra, 42 Cal.App.5th 664,
682.) We take no position on how the court should exercise said discretion.

16.
DISPOSITION
The five prior prison term enhancements are stricken. We remand the matter for
further proceedings consistent with our opinion. Thereafter, the trial court shall prepare
an amended abstract of judgment accordingly and transmit certified copies thereof to the
appropriate authorities. In all other respects, the judgment is affirmed.

LEVY, J.
WE CONCUR:

HILL, P.J.

FRANSON, J.

17.