People v. Castellano ( 2019 )

Filed 3/26/19
*
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B286317
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA456838)
v.
NARCISCO CASTELLANO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Laura F. Priver, Judge. Remanded with
directions.
Aurora Elizabeth Bewicke, under appointment by the
Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
*
Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of parts 1 and 2 of the Factual and Procedural Background and
parts 1 through 3 of the Discussion.
Attorney General, Shawn McGahey Webb, Supervising Deputy
Attorney General, David W. Williams and Jonathan J. Kline,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________
A jury convicted Narcisco Castellano of possession of
cocaine base for sale. After admitting the truth of several prior
conviction and prior prison term enhancement allegations,
Castellano was sentenced to three years in county jail plus
three years of supervised release. On appeal Castellano
primarily contends the People’s expert witness improperly relied
on race and/or national origin in forming an opinion as to the
nature of the conduct described in a hypothetical question, in
violation of Castellano’s constitutional rights to due process and
equal protection. Castellano also contends his trial counsel
provided ineffective assistance by failing to move to exclude the
improper testimony and by eliciting similar testimony during
cross-examination of the expert witness. In a supplemental brief
filed after this court decided People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas), Castellano contends the trial
court violated his rights to due process and equal protection by
imposing certain fines, fees and assessments absent evidence of
his ability to pay them. We affirm Castellano’s conviction and
remand for the trial court to give Castellano the opportunity to
request a hearing and to present evidence demonstrating his
inability to pay the applicable fines, fees and assessments.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
An information filed May 26, 2017 charged Castellano with
possession of cocaine base for purpose of sale (Health & Saf.
2
Code, § 11351.5). It specially alleged Castellano had suffered
five prior drug-related convictions within the meaning of Health
and Safety Code section 11370.2, subdivision (a), and had served
three prior separate prison terms for felonies within the meaning
of Penal Code section 667.5, subdivision (b). Castellano pleaded
not guilty and denied the special allegations.
2. Evidence at Trial
While working undercover near the intersection of 5th and
San Pedro Streets in an area of downtown Los Angeles known as
Skid Row, Los Angeles Police Officer Jose Galvez observed a
middle-aged Cuban man he knew hand Castellano a clear plastic
bag, which Castellano put in his left front pocket. No money was
transferred between the two men. Using binoculars, Galvez saw
the plastic bag contained off-white solids resembling cocaine
base. Galvez relayed a call to Los Angeles Police Officer Adolfo
Pacheco, who immediately detained Castellano. During a search
of Castellano’s left front pocket, Pacheco discovered a clear
plastic bag containing 41 small separately wrapped packages
(“bindles”) of white solids later determined to be cocaine base.
Testifying as an expert on the use and sale of controlled
1
substances, Officer Galvez stated a usable amount of cocaine
1
Officer Galvez testified as both a percipient witness and as
an expert. Regarding his expertise, Galvez testified he had
worked as a police officer for 11 years and more than five years in
narcotics divisions. As part of his specialized training, he had
taken several classes relating to use, production, packaging and
sale of cocaine base and other controlled substances. He also
purchased cocaine base and other controlled substances in an
undercover capacity and had been involved in more than
400 arrests involving cocaine base alone. Based on this
3
base can be as small as .02 grams; the package Castellano
possessed weighed 16.17 gross grams (inclusive of the wrapping);
and the amount in Castellano’s possession was significantly
greater than what an individual would typically possess for
personal use. Galvez also testified that the area where the
transaction occurred was a high crime area controlled mostly by
Cubans selling crack cocaine. Given a hypothetical closely
2
resembling the facts in this case, Galvez opined the cocaine base
was possessed for sale. Asked to elaborate on the basis for his
opinion, Galvez explained, “[My opinion is] [t]hat he possessed it
for the purpose of sales based on the area, the area of 5th and
San Pedro, based on my, you know, total seven years working in
that area it’s a high narcotic area where I said that specifically
that block is known for the sales of cocaine base by male
Hispanics that are mostly Cuban. Also the amount, the
41 individually packaged bindles they are already prepackaged
ready to sell. A known street user wouldn’t have that large
amount of cocaine base or buy that much at one time. So based
on all that I formed the opinion he possessed it for sales.”
testimony, the court overruled defense counsel’s foundation
objection.
2
The prosecutor asked Officer Galvez, “Assume that a male
individual is seen on 5th Street by the intersection of San Pedro
which is a known high narcotics area that traffics in the sale of
crack cocaine, cocaine base, that individual is seen on 5th Street
receiving a bindle containing 41 individually wrapped baggies of
cocaine base and the approximate weight, total weight, of those
41 bindles is approximately 16 gross grams. Do you have an
opinion as to why that individual possessed the 41 bindles of rock
cocaine?”
4
Defense counsel did not object to this testimony. No evidence
was presented that Castellano is Cuban.
Officer Galvez also initially testified on direct examination
that Castellano had $3,394 in small denominations on his person
at the time of his arrest, a fact that “enhanced [Galvez’s] opinion”
that Castellano possessed the cocaine base for purpose of sale.
However, confronted on cross-examination with his written
report of Castellano’s arrest, which stated that no money had
been found on Castellano, Galvez admitted his arrest report was
correct and his earlier testimony had been mistaken. He
explained he had two different hearings to attend that day and
had confused the two cases in this regard. The absence of money
on Castellano’s person, he then stated, did not alter his opinion
that Castellano possessed the 41 individually wrapped packages
of cocaine base for purpose of sale.
Castellano, who used a Spanish language interpreter
throughout the trial, did not testify and did not present any
evidence in his defense. The defense theory of the case was that
Castellano possessed the drugs for personal use.
3. Verdict and Sentence
The jury found Castellano guilty of possession of a
controlled substance for purpose of sale. In a bifurcated
proceeding after waiving his right to a jury trial, Castellano
admitted the truth of each of the special prior conviction and
prior prison term enhancement allegations. The court struck
each of the controlled substance recidivism enhancements; found
two of the three specially alleged prior prison term enhancements
true; and sentenced Castellano to a term of six years, split
between three years in local custody and three years on
5
3
mandatory supervised release. The trial court imposed a $30
court facilities assessment (Gov. Code, § 70373); a $40 court
operations assessment (Pen. Code, § 1465.8); a $50 criminal
laboratory analysis fee (Health & Saf. Code, § 11372.5), which is
subject to an additional state court construction penalty (Gov.
Code, § 70372); and a $300 restitution fine (the statutory
minimum) (Pen. Code, § 1202.4, subd. (b)). The court imposed
and suspended a corresponding $300 parole revocation fine (Pen.
Code, § 1202.45). Castellano did not object to the imposition of
these assessments, fines and fees.
DISCUSSION
1. Castellano Has Forfeited His Challenge to Officer
Galvez’s Testimony Because He Did Not Object at Trial
Citing testimony by Officer Galvez that “Cubans are known
to hang out in the area [where the transaction occurred] and sell
crack cocaine,” the area was known for the sale of crack cocaine
“by male Hispanics that are mostly Cuban,” and Galvez’s “yes”
responses to questions on cross-examination whether the area
was “controlled by Cubans” and that one “indicia of sales” in that
area “would be nationality,” Castellano contends Galvez, in
violation of due process and equal protection, improperly relied
on Castellano’s national origin in opining he possessed the
cocaine for sale. However, Castellano did not object or move to
strike or exclude that testimony on these grounds at trial.
Accordingly, his challenge to that evidence is forfeited. (Evid.
Code, § 353 [appeal not subject to reversal for erroneous
3
The court imposed the upper term of four years for
Castellano’s underlying offense, plus one year for each of the
prior prison term enhancement allegations found true.
6
admission of evidence absent specific objection]; see People v.
Simon (2016) 1 Cal.5th 98, 139 [failure to raise constitutional
challenge to victim impact evidence at trial resulted in forfeiture
of that claim on appeal]; People v. Abel (2012) 53 Cal.4th 891, 924
[“[a] defendant who fails to make a timely objection or motion to
strike evidence may not later claim that the admission of the
evidence was error”]; People v. Partida (2005) 37 Cal.4th 428,
438-439 [appellant forfeited contention evidence was admitted in
violation of due process when no objection made at trial]; People
v. Heard (2003) 31 Cal.4th 947, 972, fn. 12 [same, citing cases].)
In arguing the forfeiture doctrine is inapplicable,
Castellano contends defense counsel’s foundation objection
preserved the issue for appeal. However, that objection related to
Officer Galvez’s level of expertise. Castellano did not challenge
the expert testimony on the ground it improperly considered race
and/or national origin. (Evid. Code, § 353; see People v. Stevens
(2015) 62 Cal.4th 325, 333 [courts will consider a claim of
erroneously admitted evidence only when the original objection to
the evidence was both timely and specific]; People v. Partida,
supra, 37 Cal.4th at p. 437 [although defendant need not assert
constitutional objection to preserve that issue on appeal if
objection to the testimony in question was made on substantially
similar ground under state law, “to the extent defendant asserts
a different theory for exclusion than he asserted at trial, that
assertion is not cognizable”].)
Castellano asserts the absence of a specific objection is
immaterial because the court had assured him “any objection,”
regardless of the ground, would be sufficient to avoid forfeiture.
That characterization of the record misapprehends the court’s
clear pronouncements. In pretrial remarks to counsel concerning
7
its trial management preferences, the court stated, “It’s the
court’s position any objection would preserve your rights to
appeal. If it’s something you need a continuing objection to, I
don’t have a problem with [that]. You can ask for that. I think it
saves time in terms of judicial economy and frustration on the
part of the jurors instead of having objections over and over and
over again.” When the court’s pronouncements are viewed as a
whole and in context, the meaning is clear: A single objection to
particular testimony would preserve the issue challenged; and a
continuing objection would be granted when appropriate to
facilitate trial management and avoid unnecessary interruptions.
Nothing in the court’s statements suggested Castellano was
relieved of the obligation to make specific objections to specific
testimony (whether by an initial or continuing objection) to
preserve that issue for appeal. (See People v. Ervine (2009)
47 Cal.4th 745, 783 [“[w]e have long held that the proponent of
evidence must identify the specific ground of admissibility at trial
or forfeit that basis of admissibility on appeal”; “‘[a] party cannot
argue the court erred in failing to conduct an analysis it was not
asked to conduct’”].)
2. Castellano Has Not Demonstrated His Counsel Was
Constitutionally Ineffective
Castellano alternatively contends his counsel’s failure to
move to strike/exclude Officer Galvez’s national-origin-related
testimony on direct examination, as well as his counsel’s
introduction of similar testimony on cross-examination,
amounted to ineffective assistance of counsel. “To establish
ineffective assistance of counsel, a defendant must show that
(1) counsel’s representation fell below an objective standard of
reasonableness under prevailing professional norms, and
(2) counsel’s deficient performance was prejudicial, i.e., there is a
8
reasonable probability that, but for counsel’s failings, the result
would have been more favorable to the defendant. [Citation.] A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” (People v. Rices (2017) 4 Cal.5th 49,
80 [internal quotation marks omitted]; see Strickland v.
Washington (1984) 466 U.S. 668, 694 [104 S.Ct. 2052, 80 L.Ed.2d
674].) “‘“Whether to object to inadmissible evidence is a tactical
decision; because trial counsel’s tactical decisions are accorded
substantial deference [citations], failure to object seldom
establishes counsel’s incompetence.”’” (Rices, at p. 80.)
Relying on Buck v. Davis (2017) __ U.S. __ [137 S.Ct. 759,
197 L.Ed.2d 1], Castellano contends there could have been no
tactical reason for his counsel’s failure to move to strike the
improper aspects of Officer Galvez’s testimony on direct
examination, let alone to introduce additional harmful
information on cross-examination. In Buck defense counsel
introduced testimony from his own expert witness during a
sentencing hearing in a capital case that the defendant’s race was
a predictive factor for future violence. The United States
Supreme Court held the inexplicable introduction of race-based
propensity evidence by defense counsel was a patently clear case
of ineffective assistance of counsel. That testimony, fueling a
particularly potent and noxious racial stereotype that African-
American men were violence prone, effectively told the jury it
could sentence the defendant to death based on nothing more
than the color of the defendant’s skin. (Id. at pp. 776-777.)
As Castellano observes, several federal jurisdictions have
similarly condemned an expert’s use of racial and ethnic
stereotypes to opine on criminal culpability. (See United States v.
Cabrera (9th Cir. 2000) 222 F.3d 590, 596 [federal law
9
enforcement expert witness who frequently referred to
defendant’s Cuban origins and testified that large populations of
drug traffickers were of Cuban descent improperly injected
national origin into the trial in violation of due process and equal
protection]; United States v. Vue (8th Cir. 1994) 13 F.3d 1206,
1213 [when defendants accused of drug trafficking were of
Hmong descent, expert testimony that 95 percent of opium
smuggling in the same geographic area involved Hmong people
violated due process; the “injection of ethnicity into the trial
clearly invited the jury to put the Vues’ racial and cultural
background into the balance in determining their guilt”]; United
States v. Cruz (2d Cir. 1992) 981 F.2d 659, 664 [in trial involving
Dominican defendant, expert’s description of area where drug
transaction occurred as “inundated with drug dealing” and
“hav[ing] a very high Hispanic” and Dominican population was
improper; “[i]njection of a defendant’s ethnicity into a trial as
evidence of criminal behavior is self-evidently improper and
prejudicial”].)
To be sure, testimony regarding race, ethnicity or national
origin may be relevant in certain instances without invoking
invidious stereotypes. (See generally Bains v. Cambra
(9th Cir. 2000) 204 F.3d 964, 974 (Bains) [distinguishing between
permissible evidence relating to the defendant’s specific
adherence to Sikh cultural norms and impermissible evidence
and argument implying defendant’s criminal culpability based
solely on the defendant’s race or ethnicity].) Nonetheless, absent
racial stereotyping, it is difficult to conceive how Officer Galvez’s
unsolicited remarks on the role in drug trafficking played by the
Cuban population in the area he surveilled were relevant to the
intent of the hypothetical individual described by the prosecutor.
10
In significant contrast to the federal cases Castellano cites,
however, there was no evidence that Castellano was Cuban, as
opposed to the individual who transferred the cocaine base to
him. Thus, to the extent Castellano’s counsel not only failed to
move to strike/exclude Galvez’s unsolicited references to Cuban
drug dealers on direct examination but also emphasized that
testimony in cross-examination, it is conceivable the decision was
strategic—Castellano was not Cuban and thus did not fit the
expert’s description of the drug-selling population. Although
defense counsel did not make that point during closing argument,
on this record we cannot foreclose the possibility that counsel’s
choices in emphasizing nationality as a factor for consideration
were tactical. (Cf. People v. Carrasco (2014) 59 Cal.4th 924, 987
[forgoing presentation of evidence promised in opening statement
can be reasonable tactical decision depending on the
circumstances]; People v. Huggins (2006) 38 Cal.4th 175, 253
[even if prosecutor’s remarks were improper, defense counsel’s
decision to forego objection and use prosecutor’s argument to his
advantage was reasonable tactical choice].)
In any event, even if defense counsel’s actions and
omissions were deficient, Castellano has not shown prejudice.
The evidence of Castellano’s intent to sell the drugs was
overwhelming. He was found with a significant amount of
cocaine base, substantially greater than the amount usually
possessed solely for personal use. The drugs were individually
wrapped in 41 separate small plastic bags containing relatively
similar amounts, packaging that indicated they were meant for
sale. As for Officer Galvez’s Cuban references, neither the
prosecutor nor defense counsel suggested during closing
argument that the jury should consider Castellano’s national
11
origin as a factor in determining his intent (cf. Bains, supra,204 F.3d at p. 970), and the jury was instructed not to let
“nationality, national origin, race or ethnicity” or Castellano’s use
of a Spanish language interpreter influence its decision. We
presume the jury followed these instructions. (People v. Chism
(2014) 58 Cal.4th 1266, 1299.) On this record, it is not
reasonably probable that, absent Galvez’s limited testimony
about Cuban drug sellers in the Skid Row area, Castellano would
have received a more favorable verdict.
3. Officer Galvez Did Not Testify to False Facts or to
Previously Excluded Evidence
Castellano contends the court abused its “gatekeeper
function” by allowing the jury to consider Officer Galvez’s opinion
when it was based on false facts—that Castellano had a large
sum of money on him when he was arrested. However,
Castellano’s counsel emphasized this mistake of fact during
Galvez’s cross-examination, and Galvez opined again that the
absence of money did not alter his opinion. The jury was fully
apprised of the situation. There was no error.
Castellano also contends Officer Galvez related previously
excluded evidence in violation of the court’s pretrial rulings.
Specifically, during cross-examination defense counsel asked
Galvez to identify the factors he typically considered “to
formulate an opinion that something is possessed for purpose of
sales.” Galvez replied, “[It] varies from situation to situation but
the area of where it is located, the amount of narcotics,
sometimes prior knowledge of the individual, and my
observations of the specific act.” Castellano insists that
testimony concerning prior knowledge of an individual violated
the court’s in limine ruling excluding evidence relating to
Galvez’s prior arrests of Castellano. Contrary to Castellano’s
12
contention, Galvez’s testimony did not suggest Galvez knew
Castellano or had previous encounters with him. In any event, it
was defense counsel who elicited the testimony. Accordingly, any
error was invited. (See People v. Penunuri (2018) 5 Cal.5th 126,
157 [when defense counsel requested the jury be told about
defendant’s convictions so that they could properly judge his
4
testimony, any error in admitting such evidence was invited].)
4. Remand Is Necessary To Afford Castellano the
Opportunity To Request a Hearing Concerning His
Ability To Pay Fines, Fees and Assessments
a. Castellano’s argument under Dueñas has not been
forfeited
In Dueñas, supra, 30 Cal.App.5th 1157 this court held it
violated due process under both the United States and California
Constitutions to impose a court operations assessment as
required by Penal Code section 1465.8 or the court facilities
assessment mandated by Government Code section 70373,
neither of which is intended to be punitive in nature, without
first determining the convicted defendant’s ability to pay.
(Dueñas, at p. 1168.) A restitution fine under Penal Code
section 1202.4, subdivision (b), in contrast, is intended to be, and
is recognized as, additional punishment for a crime. Penal Code
section 1202.4, subdivision (c), provides a defendant’s inability to
4
Castellano does not directly contend his counsel was
ineffective in eliciting that testimony. To the extent his Sixth
Amendment argument in his appellate brief can be liberally
construed to encompass that issue, the argument fails. Officer
Galvez’s response to counsel’s entirely appropriate question was
general and brief. Counsel was not ineffective in asking the
question or in failing to move to strike the response.
13
pay may not be considered a compelling and extraordinary reason
not to impose the restitution fine; inability to pay may be
considered only when increasing the amount of the restitution
fine above the minimum required by statute. To avoid the
serious constitutional question raised by these provisions, we
held, although the trial court is required to impose a restitution
fine, the court must stay execution of the fine until it is
determined the defendant has the ability to pay the fine.
(Dueñas, at p. 1172.)
In supplemental briefing filed with the permission of this
court, Castellano contends under Dueñas, supra, 30 Cal.App.5th
1157, the assessments and fees imposed by the trial court should
be reversed and the execution of the restitution fine stayed. The
People argue Castellano forfeited this issue on appeal because he
failed to raise it in the trial court. However, at the time
Castellano was sentenced, Dueñas had not yet been decided; and
no California court prior to Dueñas had held it was
unconstitutional to impose fines, fees or assessments without a
determination of the defendant’s ability to pay. Moreover, none
of the statutes authorizing the imposition of the fines, fees or
assessments at issue authorized the court’s consideration of a
defendant’s ability to pay. Indeed, as discussed, in the case of the
restitution fine, Penal Code section 1202.4, subdivision (c),
expressly precluded consideration of the defendant’s inability to
pay. When, as here, the defendant’s challenge on direct appeal is
based on a newly announced constitutional principle that could
not reasonably have been anticipated at the time of trial,
reviewing courts have declined to find forfeiture. (See, e.g.,
O’Connor v. Ohio (1966) 385 U.S. 92, 93 [87 S.Ct. 252, 17 L.Ed.2d
189]; People v. Doherty (1967) 67 Cal.2d 9, 13-14; see generally
14
People v. Brooks (2017) 3 Cal.5th 1, 92 [“‘[r]eviewing courts have
traditionally excused parties for failing to raise an issue at trial
where an objection would have been futile or wholly unsupported
by substantive law then in existence’”].) We similarly decline to
apply the forfeiture doctrine to Castellano’s constitutional
challenge.
b. A limited remand is appropriate
Relying on Dueñas, supra, 30 Cal.App.5th 1157, Castellano
asserts the court facilities and operations assessments and the
criminal laboratory analysis fee should be reversed, and
execution of the restitution fine stayed, unless and until the
People prove he has the present ability to pay the fine. Dueñas
does not support that conclusion in the absence of evidence in the
record of a defendant’s inability to pay. In Dueñas the defendant
challenged at the sentencing hearing the fees and fines imposed,
asserting she was unable to pay them. (Id. at p. 1162.) She
requested an ability-to-pay hearing and presented evidence—
which the court credited—that she lacked the ability to pay the
fines and fees it imposed. (Id. at pp. 1160-1163.) Our holding in
Dueñas that the fees and assessments could not constitutionally
be assessed and that execution of the restitution fine had to be
stayed was based on the trial court’s uncontested finding that
Dueñas was unable to pay the amounts imposed. Here, in
contrast, Castellano did not request an ability-to-pay hearing at
his pre-Dueñas sentencing; thus, no evidence exists in the record
from which to infer any findings in this regard.
Consistent with Dueñas, a defendant must in the first
instance contest in the trial court his or her ability to pay the
fines, fees and assessments to be imposed and at a hearing
present evidence of his or her inability to pay the amounts
15
contemplated by the trial court. In doing so, the defendant need
not present evidence of potential adverse consequences beyond
the fee or assessment itself, as the imposition of a fine on a
defendant unable to pay it is sufficient detriment to trigger due
process protections. (Dueñas, supra, 30 Cal.App.5th at pp. 1168-
1169.) The trial court then must consider all relevant factors in
determining whether the defendant is able to pay the fines, fees
and assessments to be imposed. Those factors may include, but
are not limited to, potential prison pay during the period of
5
incarceration to be served by the defendant. If the trial court
determines a defendant is unable to pay, the fees and
assessments cannot be imposed; and execution of any restitution
fine imposed must be stayed until such time as the People can
show that the defendant’s ability to pay has been restored. (Id. at
pp. 1168-1169, 1172.)
5
A bill currently pending in the Legislature proposes the
following factors be considered in determining a defendant’s
ability to pay: the defendant’s present financial circumstances;
whether the defendant is receiving any type of government
benefits, including means-tested benefits; whether the defendant
was represented by court-appointed counsel; the defendant’s
reasonably discernible future financial circumstances; the
likelihood the defendant will be able to obtain employment within
a six-month period from the date of the court’s consideration of
the issue; the amount of victim restitution ordered, if any; and
any other factor that may bear upon the defendant’s inability to
pay. (Assem. Bill No. 927 (2019-2020 Reg. Sess.) § 1.)
16
This procedure is already standard in other contexts in
which a litigant seeks relief or assistance based on his or her
financial condition. A litigant seeking fee waivers, for instance,
must complete an application for an initial fee waiver with
information supporting his or her claim to be exempt from filing
fees on the basis of his or her financial condition, such as receipt
of certain public benefits, income below the federal poverty
guidelines, or the inability to pay court fees without using
moneys that normally would pay for the common necessaries of
life for the applicant and his or her family. (Gov. Code, §§ 68632,
68633.) Similarly, when a defendant requests, pursuant to
Government Code section 27706, subdivision (a), to be
represented by the public defender because he or she cannot
afford to retain counsel, the trial court may require the defendant
to file a financial statement to assist the court in making the
final determination whether the defendant is financially able to
employ counsel and qualifies for the services of the public
defender. (Gov. Code, § 27707.)
As Castellano’s conviction and sentence are not yet final,
we remand the matter to the trial court so that he may request a
hearing and present evidence demonstrating his inability to pay
the fines, fees and assessments imposed by the trial court.
DISPOSITION
The conviction is affirmed, and the matter remanded to
give Castellano the opportunity to request a hearing on his
ability to pay the fines, fees and assessments imposed by the trial
court. If he demonstrates the inability to pay, the trial court
must strike the court facilities assessment (Gov. Code, § 70373),
the court operations assessment (Pen. Code, § 1465.8) and the
criminal laboratory analysis fee (Health & Saf. Code, § 11372.5);
17
and it must stay the execution of the restitution fine. If
Castellano fails to demonstrate his inability to pay these
amounts, the fines, fees and assessments imposed may be
enforced.
PERLUSS, P. J.
We concur:
ZELON, J.
FEUER, J.
18