People v. Fisher CA1/3 ( 2021 )

Filed 7/7/21 P. v. Fisher CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A157214
v.
CORY JORDAN FISHER, SR., (Humboldt County
Defendant and Appellant. Super. Ct. No. CR1703891)
This is an appeal from final judgment after a jury convicted defendant
Cory Jordan Fisher, Sr., of numerous felony crimes relating to the ongoing
sexual abuse of his two young stepsons, John Doe 1 and John Doe 2, and his
biological son, John Doe 3. Defendant was sentenced to a total prison term of
106 years to life.
Seeking reversal, defendant contends that the trial court engaged in
evidentiary and instructional error; his convictions on certain counts violate
the constitutional prohibition on ex post facto laws; his sentence constitutes
cruel and unusual punishment; the statutory restrictions on the right to a
youth offender parole hearing violate the equal protection clause; and the
requirement to pay certain punitive fines violates the due process and equal
protection clauses given his inability to pay.
1
We conclude that defendant’s convictions on counts 1, 4, and 5 must be
reversed under the constitutional prohibition on ex post facto laws. In all
other regards, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On September 12, 2018, an information was filed charging defendant
with aggravated sexual assault (oral copulation) of John Doe 1 (Doe 1), a
child under age 14, on or between August 1, 2005, and June 1, 2007 (Pen.
Code, § 269, subd. (a)(4); count 1);1 forcible lewd act on Doe 1, a child under
age 14, on or between June 2, 2007, and October 27, 2009 (§ 288, subd. (b)(1);
count 2); continuous sexual abuse of Doe 1, a child under age 14, on or
between July 1, 2005, and October 27, 2009 (§ 288.5, subd. (a); count 3); oral
copulation or sexual penetration of John Doe 2 (Doe 2), a child 10 years old or
younger, on or between October 22, 2007, and April 1, 2008 (§ 288.7, subd.
(b); count 4); oral copulation or sexual penetration of Doe 2, a child 10 years
old or younger, on or between October 22, 2007, and September 30, 2009
(§ 288.7, subd. (b); count 5); forcible lewd act on Doe 2, a child under age 14,
on or between October 22, 2007, and May 31, 2010 (§ 288, subd. (b)(1);
count 6); forcible lewd act on Doe 2, a child under age 14, on or between
October 22, 2007, and May 31, 2010 (§ 288, subd. (b)(1); count 7); lewd act on
John Doe 3 (Doe 3), a child under age 14, on or between March 1, 2017, and
April 6, 2017 (§ 288, subd. (a); count 8); and battery with serious bodily injury
upon Doe 2 on or about June 25, 2017 (§ 243, subd. (d); count 9). As to counts
2, 3, 6, 7 and 8, it was specially alleged that, within the meaning of section
667.61, subdivisions (b) and (e), the offense was committed against more than
one victim.
1 Unless otherwise stated, all statutory citations herein are to the Penal
Code.
2
The information also charged defendant with forcible oral copulation
upon James Doe 1 (former § 288a, subd. (c)(2)(A); count 10); sexual battery
upon James Doe 1 (§ 243.4, subd. (e)(1); count 11); sexual battery upon
James Doe 2 (§ 243.4, subd. (e)(1); count 12); and sexual battery upon
James Doe 3 (§ 243.4, subd. (e)(1); count 13).
Trial began on February 26, 2019, and revealed the following evidence.2
I. Prosecution’s Case.
Defendant’s wife, Angela, had two sons from a previous relationship,
Doe 1 and Doe 2. Doe 1 was born October 28, 1995. Doe 2 was born
October 1, 1998.
In or around March 2005, Angela met defendant, 12 years her junior,3
when he coached Doe 1’s baseball team. The pair soon began dating, and in
the summer of 2005 Angela learned that she was pregnant. In August 2005,
Angela, defendant and Does 1 and 2 moved into a house in Eureka on
Williams Street. Doe 3, defendant’s biological son, was born on April 7, 2006,
and the couple were married later that year. Shortly thereafter, defendant
became a sworn peace officer and was employed as a corrections officer at the
county jail.
In May or June 2007, the family moved to a bigger house on Pine
Street. They lived there until September 2010, when they moved to a house
on Central Avenue, also in Eureka.
2 Counts 10–13 related to allegations of sexual abuse as to James Doe
1, 2, and 3, three inmates at the jail at which defendant was previously
employed as a corrections officer. The jury acquitted defendant of these
charges. Accordingly, we omit discussion of the related evidence from this
opinion.
3 Defendant was born on April 15, 1987.
3
A. Doe 1.
While defendant was his baseball coach, Doe 1 looked up to him as a
father figure and felt “cool” when defendant let him smoke cigarettes in
alleyways before games. Doe 1 was initially pleased when Angela began
dating defendant. However, defendant became very controlling of Doe 1,
even limiting his play with other children, running “checks” on his friends’
parents, and making his teachers sign papers confirming that Doe 1 behaved
and attended class.
Defendant became physically abusive to Doe 1 after the family moved
to Williams Street in 2005, causing Doe 1 to become afraid of him. Once,
defendant picked Doe 1 up by the shirt and punched holes in the drywall
around his head. Defendant frequently “death gripp[ed]” his hand or
stomped on his toes if Doe 1 misbehaved in public. Defendant also used a
TASER gun on Doe 1, supposedly to confirm it worked.
1. Sexual Abuse on Williams Street: August 2005–Summer
2007.
In 2005, when Doe 1 was nine or ten years old, defendant began
sexually abusing him at the Williams Street house. Doe 1 and Doe 2 shared a
bedroom, sleeping in bunk beds, Doe 1 in the bottom bunk and Doe 2 in the
top. Defendant often tucked the boys in at night. The first incident of sexual
abuse occurred when Doe 1 and Doe 2 were being tucked into bed by
defendant, who pulled down his own pants and exposed his genitals to Doe 1.
As defendant continued to tuck Doe 2 into the top bunk, defendant began to
masturbate himself before gesturing to Doe 1 to masturbate him. When
Doe 1 resisted, defendant grabbed the child’s hand and forced him to stroke
defendant’s erect penis. Doe 1 complied because he was scared. The incident
ended when Doe 1 heard someone walking down the hallway and defendant
pulled up his pants.
4
While the family lived on Williams Street, defendant also repeatedly
forced Doe 1 to masturbate him in the bunk bed. After this occurred
numerous times, defendant held Doe 1’s head and forced his erect penis into
the child’s mouth. Doe 1 complied because defendant was an “intense
overbearing person . . . .” During one such oral copulation, defendant
ejaculated in Doe 1’s mouth, which made Doe 1 panic and wash out his mouth
with hand sanitizer and dish soap.
While the family lived on Williams Street, Doe 1 was forced to
masturbate or orally copulate defendant at least twice a week. Generally,
Angela was away or asleep. On one such occasion, defendant removed his
pants and lay behind Doe 1 on his bunk bed. Wrapping his arms tightly
around Doe 1, defendant tried to insert his penis into Doe 1’s anus, causing
him tremendous pain. Defendant then took Doe 1 into his bedroom, bent
Doe 1 over the bed and applied lubricant to defendant’s penis. Doe 1 told him
he did not want him to do this, enraging defendant so much that his face
became red.
2. Sexual Abuse on Pine Street: May/June 2007–September
2010.
After the family moved to Pine Street in the summer of 2007, the
nature of defendant’s abuse changed. Instead of forcing Doe 1 to masturbate
or orally copulate him, defendant forced Doe 1 to be masturbated or orally
copulated. On one occasion, defendant entered Doe 1’s room unexpectedly
while Doe 1 was watching pornography on his computer. Defendant
“forcefully masturbated” Doe 1 while watching a video. Doe 1 finally ended
the incident by pulling up his own pants and leaving.
Other times, defendant forced Doe 1 to allow defendant to orally
copulate him in exchange for certain privileges, such as going to a friend’s
house, or to avoid punishment if Doe 1 misbehaved. For example, once, Doe 1
5
had a friend over and the pair watched a television channel that was off
limits. Defendant told Doe 1 that he had to agree to oral copulation to avoid
trouble. Defendant then forcefully orally copulated Doe 1 until Doe 1
ejaculated. This type of incident occurred 15 to 20 times at the Pine Street
residence while Doe 1 was between 11 and 14 years old.
Another incident occurred when defendant and Doe 1 were soaking in
an inflatable hot tub in the Pine Street basement. Defendant told Doe 1 he
would be “in a world of trouble” if he did not place his penis in defendant’s
anus. Defendant then forced Doe 1 to sodomize him.
During this time, defendant continued to physically abuse Doe 1, once
punching him, sitting on top of him and choking him.
Also during this time, defendant took Doe 1 camping in Humboldt
County. The campground was full, so defendant used his peace officer badge
when asking a man and his wife to share their campsite. The couple agreed,
and defendant and Doe 1 set up their tent about 30 feet from the couple’s
tent. Later that evening, defendant forced Doe 1 to drink whiskey. As Doe 1
became intoxicated for the first time, he admitted to defendant that he once
smoked marijuana. Doe 1 began to cry, believing he was in trouble.
Defendant then orally copulated Doe 1 and told him his mother did not need
to know about their sexual activity.4
4 The man who allowed defendant and Doe 1 to share his campsite later
made a report to law enforcement about possible sexual abuse. According to
his report, around 10 p.m. the man heard Doe 1 crying in the tent and
pleading, “ ‘Please don’t. It hurts. Take it out.’ ” Defendant responded,
“ ‘That’s my boy. That’s my boy.’ ” An investigation ensued, but Doe 1 told
the investigator that he had a rock stuck in his foot and defendant was
helping him remove it. The investigator also spoke to defendant, who denied
any sexual abuse. Defendant consented for Doe 1 to receive a sexual assault
examination, but none ever took place. Defendant testified that he took a
polygraph at the investigator’s request. Ultimately, the investigator
6
3. Sexual Abuse on Central Avenue: September 2010.
After the family moved to a Central Avenue home in September 2010,
defendant masturbated or orally copulated Doe 1 once or twice monthly,
mostly in Doe 1’s bedroom. Defendant forced Doe 1 to comply in order to gain
permission to see his girlfriend. Doe 1 eventually started to spend most of
the day in his room, avoiding his friends and girlfriends.
Doe 1 did not tell Angela about the sexual abuse because defendant
said that she would not believe him. Doe 1 also feared that defendant would
severely beat him if he told anyone and that the family would struggle
without defendant’s financial support.
When Doe 1 was about 16 years old, defendant cornered him in the
bathroom and began “aggressively” moving toward him. Doe 1 punched him
multiple times in the face and chest, knocking defendant unconscious. Even
after this incident, defendant continued to sexually molest Doe 1 by giving
him alcohol or prescription pills that left Doe 1 unable to physically resist.
When he reached age 17, Doe 1 enlisted in the Army to get away from
defendant’s abuse. When he left, Doe 1 threatened defendant that if he ever
abused his brothers, Doe 1 would kill defendant. Doe 1 told defendant that in
return he would not disclose his abuse.
concluded that the reporter may have misinterpreted what he heard.
However, after the other sexual abuse allegations came to light, the
investigator contacted Doe 1 again to discuss the camping trip.
At trial, the trial court admitted evidence regarding the man’s report of
this camping incident to law enforcement “for the limited purpose of giving
meaning to the investigation that followed.”
7
B. Doe 2.
1. Sexual Abuse on Williams Street: August 2005–Summer
2007.
Doe 2 was between six and eight years old when the family lived on
Williams Street. Doe 2 frequently wet his pants at school. Defendant would
take Doe 2 into the bathroom after he returned from school and put rubbing
alcohol on his “butt,” telling Doe 2 that it would keep him from wetting his
pants. Defendant would then remove Doe 2’s pants and fondle his penis.
Defendant told Doe 2 that the touching was their “ ‘little secret’ ” and that no
one would believe Doe 2 if he disclosed it.
Two or three times, defendant “disciplined” Doe 2 for wetting his pants
by draping him over the bathtub, removing his pants, and humping or
rubbing his penis against Doe 2’s “butt crack.” When doing this, defendant
was very aggressive, gripping Doe 2’s torso and telling Doe 2 to “shut up”
when he cried or begged defendant to stop.
Also at the Williams Street house, defendant frequently forced Doe 2 to
take naps with him. Doe 2 would fall asleep and awaken to find defendant
fondling his penis. The first time this occurred, Doe 2 told defendant to stop
and tried to sit up, but defendant pushed him down and continued.
At some point the nature of defendant’s naptime conduct changed. At
least four times on Williams Street, Doe 2 awoke from his nap to find
defendant orally copulating him with his hands wrapped around Doe 2’s
buttocks.
2. Sexual Abuse on Pine Street: May/June 2007–September
2010.
After the family moved to Pine Street, the abuse continued, with Doe 2
once waking to find defendant aggressively humping Doe 2’s “butt crack”
with his penis. The first such incident occurred when defendant, who worked
8
night shifts, demanded that Doe 2 take a nap even after Doe 2 protested that
he had homework. Finally obeying, Doe 2 went and lay on his side in
defendant’s bed while defendant lay down behind him. When Doe 2 fell
asleep, defendant removed the child’s clothes and humped Doe 2’s “butt
crack” with his penis. Defendant then pushed Doe 2 onto his stomach and
ejaculated on his back.
Once, when defendant was aggressively humping Doe 2 from behind,
defendant’s penis almost entered Doe 2’s anus. Doe 2 felt “really strong
pain . . . .” When Doe 2 cried, defendant told him “to shut up” and continued
attempting to penetrate Doe 2 until he turned Doe 2 onto his stomach and
ejaculated onto his back. Defendant attempted to penetrate Doe 2’s anus
more than once.
On another occasion at the Pine Street house, defendant orally
copulated Doe 2’s penis after making Doe 2 nap in defendant’s bed.
3. Sexual Abuse on Central Avenue: September 2010.
Doe 2 entered puberty after the family moved to the Central Avenue
house. Defendant forced Doe 2 to masturbate in front of him, despite Doe 2’s
protestations. Defendant then masturbated next to Doe 2 while Doe 2
masturbated. This forced masturbation happened “more than once” on
Central Avenue. Both times, Doe 2 complied even though he did not want to
do it because defendant was extremely aggressive.
When Doe 2 was in high school, defendant slept in Doe 2’s bed with him
every night. Because defendant was so controlling of Doe 2, the child rarely
went to his friends’ houses. Doe 2 realized that defendant’s abuse was wrong,
and he repeatedly told defendant that it was strange for a grown man to
sleep in a teenager’s bed. However, defendant continued his behavior. In
doing so, defendant frequently forced Doe 2 to consume alcohol and
9
“ ‘nighttime medicine’ ” that would make Doe 2 “black out” and recall nothing
when he awoke. Defendant would become angry and hit Doe 2 if Doe 2 tried
to refuse the medicine. Doe 2 suspected that defendant molested him when
he blacked out.
The last time that Doe 2 recalled defendant molested him was when he
was 16 years old. Doe 2 awoke to find defendant attempting to touch him.
Doe 2 became extremely angry and ordered defendant to stop, prompting
defendant to hold him down and deny doing anything wrong. Enraged, Doe 2
kicked a hole in the wall, trying to free himself, while defendant sat on his
chest so hard that he “cracked” Doe 2’s rib.
Doe 2 also testified about other forms of defendant’s abuse. Defendant
commonly threw objects at Doe 2, including remote controls, phones and full
soda cans, and backhanded him with great force. Defendant also forced
Doe 2 to accompany him wherever he went and showed up randomly at
Doe 2’s school, even sitting in on one of his classes. This behavior
embarrassed Doe 2 and made him uncomfortable.
C. Doe 3: Sexual Abuse on Central Avenue.
Doe 3, age 12 at trial, testified that defendant did “something
inappropriate” to him when he was in the fifth grade. The two were watching
a movie together in Doe 3’s bed when defendant asked him whether his
“pee-pee” was hard. Defendant then tried to touch Doe 3’s penis with his
hand over Doe 3’s pajamas. Defendant rubbed Doe 3’s thigh next to the
child’s penis. Knowing this was wrong, Doe 3 told defendant to stop.
Defendant complied and left the bedroom.
Doe 3 described defendant as often controlling and angry. Doe 3 was
afraid of defendant, having witnessed defendant’s violence toward his
10
brothers, especially Doe 1. Once, defendant violently grabbed Doe 3 and
threw him across a hallway, knocking the wind out of him.
D. Disclosure of Defendant’s Abuse.
On June 25, 2017, Doe 2, age 18, tried to leave the house after
defendant became “angry and confrontational . . . .” Defendant, who had
been drinking, pushed Doe 2 to the ground and “ ‘demand[ed] respect.’ ”
Defendant then punched Doe 2 in the face and choked him, shattering his eye
socket, breaking his nose, and cracking his ribs. Angela hit defendant over
the head to stop his attack before calling the police.
After finding out about the attack, Doe 1, deployed in Afghanistan,
called Doe 2. After a heartfelt conversation, Doe 1 and Doe 2 both
acknowledged having been sexually abused by defendant. Doe 1 had not told
anyone about this abuse except for his wife. Doe 1 later spoke to his chaplain
in Afghanistan, who encouraged Doe 1 to call the police.
The brothers subsequently told Angela about defendant’s sexual abuse.
Doe 1 did so after telling Angela that his wife was pregnant and that he did
not want defendant around the baby. When Angela asked why, Doe 1 replied
that defendant had molested him his entire childhood. Angela was shocked.
Nevertheless, she did not call the police because she worried about the stress
and humiliation it would cause her sons. However, after Angela eventually
discussed the matter with her best friends, one of the friends made a police
report in August 2017. Defendant was arrested on September 15, 2017.
Dr. Anthony Urquiza, a clinical psychologist and director of the child
abuse treatment program at the University of California, Davis, Medical
Center, testified that it is common for victims of sexual abuse to delay
reporting it. Testifying about child sexual abuse accommodation syndrome,
Dr. Urquiza explained its five aspects: secrecy, helplessness, entrapment and
11
accommodation, delayed and unconvincing disclosure, and retraction or
recantation. Briefly stated, this syndrome is a consequence of the fact that
the sexual abuser of a child is often an older person with whom the child has
an ongoing relationship. The abuser often manipulates the child by, among
other things, threatening him or her emotionally or physically in order to
maintain secrecy. The child victim, in turn, feels afraid and helpless and
thus will often delay reporting the sexual abuse, give vague or incomplete
descriptions, report the abuse over time in a piecemeal fashion, and/or recant
his or her disclosures.
II. Defense Case.
Defendant denied sexually abusing his stepsons or biological son.
Defendant admitted drinking too much and having a violent temper with
frequent “[o]utbursts.” He also acknowledged using a variety of prescription
drugs while drinking, including Valium, Xanax and Prozac, explaining that
his job as a corrections officer was very stressful and he often came home
angry and aggressive. Among other incidents, defendant admitted breaking
Angela’s nose when she was pregnant; throwing objects at his stepsons and
son; punching Doe 1 on multiple occasions; and pushing Doe 3 down,
knocking the air out of his lungs. According to defendant, Does 1, 2 and 3
had reason to be bitter toward him.
III. The Jury Verdict, Sentencing and Appeal.
On April 4, 2019, the jury found defendant guilty of counts 1–9 and not
guilty of counts 10–13. The jury found true the allegations that defendant
committed the offenses charged in counts 2–3 and 6–8 against more than one
victim for purposes of section 667.61, subdivision (b), commonly referred to as
the One Strike law. The prosecutor thereafter successfully moved to dismiss
count 3 and its section 667.61 enhancement.
12
On May 6, 2019, defendant was sentenced to state prison for 106 years
to life. In reaching this total term, the court applied section 667.61,
subdivision (b) to impose consecutive terms of 15 years to life on counts
2 and 4–8. The court also imposed various fines, fees and assessments,
including a $1,000 penal fine (§ 672); a $10,000 restitution fine (§ 1202.4,
subd. (b)); and a $10,000 parole revocation restitution fine, which was stayed
(§ 1202.45). The court declined to impose a booking fee, revenue recovery for
court-appointed counsel or a probation investigation fee, citing defendant’s
inability to pay. Finally, the court ordered defendant to pay Doe 3 $2,500 in
victim restitution and reserved jurisdiction as to additional amounts.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant seeks reversal of the judgment on the following grounds:
(1) the trial court erroneously admitted evidence relating to his verbally
abusive conduct on two occasions at Doe 1’s middle school; (2) his conviction
on count 1, aggravated sexual assault (oral copulation) on a child age 14 or
younger (§ 269), violates the constitutional prohibition on ex post facto laws;
(3) his convictions on counts 4 and 5, oral copulation or sexual penetration of
a child age 10 or younger (§ 288.7), violate the constitutional prohibitions on
ex post facto laws; (4) the trial court prejudicially erred by failing to instruct
on certain lesser included offenses for purposes of counts 4 and 5; (5) his
sentence violates the state and federal constitutional prohibitions on cruel
and/or unusual punishment; (6) denying him a youth offender parole hearing
based on section 3051, subdivision (h) was erroneous and violates the equal
protection clause; and (7) imposition of certain punitive fines violates his
constitutional rights to due process and equal protection. We address each
issue to the extent appropriate below.
13
I. Evidence of Defendant’s School Confrontations.
Defendant contends the trial court abused its discretion by admitting
into evidence two confrontations he had at Doe 1’s middle school. As to the
first, defendant was cross-examined regarding an incident in May 2009 when
he was eating lunch with Doe 1 at his middle school’s cafeteria and another
student sat down at their table. This student threatened to “ ‘beat [Doe 1’s]
fucking ass’ ” and then stated that he would also “ ‘beat [defendant’s] fucking
ass’ ” if he “ ‘weren’t so big . . . .’ ” Defendant reported the incident to the
school’s principal and, in the principal and student’s presence, called the
student a “ ‘fucking punk . . . .’ ” The court subsequently overruled an
objection and motion to strike from defense counsel, who argued the
testimony was irrelevant and improper character evidence.
As to the second confrontation, the prosecutor elicited testimony about
a September 8, 2008 incident in which defendant accused a teacher at the
middle school of “ ‘being a fucking bitch.’ ” The school principal later sent
defendant a letter instructing him “to behave in a non-aggressive manner”
while on campus. Defense counsel made no specific objection to this
testimony.
Generally speaking, all relevant evidence is admissible. Nonetheless,
under Evidence Code section 352, the trial court has broad discretion to
admit or exclude relevant evidence upon weighing its probative value against
its prejudicial effect. (People v. Champion (1995) 9 Cal.4th 879, 922; Evid.
Code, § 352.) Only if the probative value of the evidence is substantially
outweighed by its likely prejudicial impact should the court exclude it. (See
People v. Tran (2011) 51 Cal.4th 1040, 1047 [evidence is substantially more
prejudicial than probative “ ‘[only] if, broadly stated, it poses an intolerable
“risk to the fairness of the proceedings or the reliability of the outcome” ’ ”].)
14
On appeal, a trial court’s decision to admit or exclude evidence is
reviewed for abuse of discretion. (People v. Brown (2003) 31 Cal.4th 518, 547;
People v. Avitia (2005) 127 Cal.App.4th 185, 193.) “The trial court’s ruling
will not be disturbed in the absence of a showing it exercised its discretion in
an arbitrary, capricious, or patently absurd manner that resulted in a
miscarriage of justice.” (People v. Avitia, supra, 127 Cal.App.4th at p. 193;
see People v. Dyer (1988) 45 Cal.3d 26, 73.)
Here, even putting aside defense counsel’s failure to object to the
evidence that defendant cursed at a teacher,5 we find nothing arbitrary,
capricious, or patently absurd about the trial court’s admission of evidence
relating to both incidents. As the trial court noted, Doe 2 testified that
defendant sometimes showed up at school, which he found unusual and
unsettling.6 The evidence of defendant’s outbursts at the school also
supported the boys’ testimony regarding defendant’s controlling nature. As
the prosecutor successfully argued below, these confrontations demonstrated
that defendant “maintain[ed] a dominant, aggressive, controlling role within
[the boys’] lives,” which, consistent with expert testimony, could explain why
they submitted to his abuse and why they waited so long to report it.7
5 While we deem defendant to have forfeited the right to challenge the
admission of evidence regarding his use of profanity toward a teacher, we
nonetheless consider both incidents collectively on the merits. (See People v.
Williams (1997) 16 Cal.4th 153, 206 [failure to raise a specific objection below
forfeits the right to challenge admission of evidence on appeal].)
6 Defendant acknowledged that he sometimes showed up at Doe 1’s and
Doe 2’s schools unexpectedly, for example, to bring them lunch or take them
out to lunch.
7As mentioned, Dr. Anthony Urquiza testified regarding child sexual
abuse accommodation syndrome and the tendency of young victims to delay
reporting and submit to the sexual abuse.
15
Accordingly, the challenged evidence was relevant to the issues raised in this
case, including the victims’ credibility. (See People v. Robertson (2012) 208
Cal.App.4th 965, 993 [“Since appellant flatly denied raping the victim in this
case and there was no forensic evidence proving that a rape occurred,
evidence bearing on the respective credibility of appellant and the victim was
highly probative”]; People v. Burgener (2003) 29 Cal.4th 833, 869 [“An
explanation of the basis for the witness’s fear is . . . relevant to her credibility
and is well within the discretion of the trial court”].) Contrary to defendant’s
argument, the challenged evidence did not merely invite “the very type of
character-based inference which Evidence Code section 1101, subdivision (a)
prohibits.” (See Evid. Code, § 1101, subd. (c) [“Nothing in this section affects
the admissibility of evidence offered to support or attack the credibility of a
witness”].)
Finally, even assuming for the sake of argument that this evidence
should have been excluded, given its minimal impact compared to the weight
of the evidence of defendant’s guilt, it is not reasonably likely that admitting
it would have led to a different verdict. (See People v. Cudjo (1993) 6 Cal.4th
585, 611–612 [exclusion of evidence, even if erroneous, is harmless if it does
not appear reasonably probable verdict was affected].) Each of the victims,
Doe 1, Doe 2 and Doe 3, gave detailed testimony regarding specific incidents
of defendant’s abuse that, aside from defendant’s self-serving testimony, were
not seriously impeached. (Ante, pp. 4–11.) Moreover, Angela gave
corroborating testimony regarding defendant’s habit of putting the boys to
bed and often sleeping in the same bed as them—the time and place in which
most of the abuse took place. On this record, there is no basis to disturb the
trial court’s rulings.
16
II. Constitutional Ban on Ex Post Facto Laws.
Defendant challenges his convictions on counts 1, 4 and 5 as violations
of the constitutional prohibition on ex post facto laws. We address these
challenges in appropriate order below.
A. Counts 4 and 5: Section 288.7.
Defendant was convicted on counts 4 and 5 under section 288.7,
subdivision (b), oral copulation or sexual penetration on Doe 2, a child 10
years old or younger. Defendant seeks reversal of both convictions and their
accompanying 15 years to life sentences under the ex post facto doctrine.
Defendant’s argument is well taken.
“Our state and federal Constitutions prohibit ex post facto laws. (U.S.
Const., art. 1, § 10; Cal. Const., art. I, § 9; [citation].) Any law that applies to
events occurring before its enactment and which disadvantages the offender
either by altering the definition of criminal conduct or [by] increasing the
punishment for the crime is prohibited as ex post facto. [Citation.] Section
288.7 was enacted in 2006 and became effective on September 20 of that year.
(Stats. 2006, ch. 337, § 9, p. 2590.) The statute created a new offense which
imposes an indeterminate life sentence for sexual intercourse, sodomy, oral
copulation, or sexual penetration of a child who is 10 years of age or younger.
(Ibid.; [citation].) Therefore, any application of section 288.7 to conduct that
occurred prior to September 20, 2006, is a violation of the state and federal
ex post facto clauses.” (People v. Rojas (2015) 237 Cal.App.4th 1298, 1306
(Rojas).)
“The prohibition against ex post facto laws seeks to achieve two
important goals. First, it assures ‘that legislative Acts give fair warning of
their effect and permit individuals to rely on their meaning until explicitly
changed.’ [Citation.] Second, the rule ‘restricts governmental power by
17
restraining arbitrary and potentially vindictive legislation.’ ” (People v.
Grant (1999) 20 Cal.4th 150, 158.) A conviction that violates the ex post facto
prohibition must therefore be reversed. (Stogner v. California (2003) 539
U.S. 607, 632–633.) Moreover, “[an ex post facto] claim may be raised for the
first time on appeal and should be reviewed under the harmless error
standard described in Chapman v. California (1967) 386 U.S. 18, 24 [17
L.Ed.2d 705, 87 S.Ct. 824]. ([People v.] Hiscox [2006] 136 Cal.App.4th [253,]
258, 261; [citation].)” (Rojas, supra, 237 Cal.App.4th at p. 1306.)
Here, defendant contends that an ex post facto violation occurred
because it is not possible to determine from the record whether the conduct
charged in counts 4 and 5 occurred after the statute went into effect on
September 20, 2006. As defendant notes, neither the jury instructions nor
the verdict forms identified any particular date ranges for when the charged
acts occurred.
Generally, “it is the prosecution’s responsibility to prove to the jury
that the charged offenses occurred on or after the effective date of the statute
providing for the defendant’s punishment.” (People v. Hiscox, supra, 136
Cal.App.4th at p. 256 (Hiscox); see Rojas, supra, 237 Cal.App.4th at p. 1306.)
However, it appears in this case that neither the parties nor the trial court
were aware that section 288.7’s effective date presented an issue of proof
regarding when the charged offenses were committed, as the jury was not
asked to make a finding that counts 4 and 5 occurred after the effective date
of section 288.7. Under such circumstances, “its verdict ‘cannot be deemed
sufficient to establish the date of the offense[s] unless the evidence leaves no
reasonable doubt’ that the conviction was based on an incident that occurred
on or after September 20, 2006.” (Rojas, supra, 237 Cal.App.4th at p. 1306.)
The relevant record is as follows.
18
Defendant acknowledges that “[o]n its face, the information presented
no ex post facto issues,” as the date range alleged for count 4 was October 22,
2007, to April 1, 2008, and the date range alleged for count 5 was October 22,
2007, to September 30, 2009—both of which were after section 288.7’s
effective date. At trial, however, the evidence was not so limited. Rather, the
record showed acts of oral copulation on Doe 2 that occurred both before and
after September 20, 2006.
Specifically, Doe 2 was about six years old when in August 2005 the
family moved to Williams Street, where they were living on September 20,
2006. In May or June 2007, when Doe 2 was about nine years old, the family
then moved to the Pine Street house. Doe 2 testified about multiple acts of
oral copulation that began at the Williams Street house when he was six or
seven years old. However, Doe 2 could not pinpoint exact dates for these acts
other than to confirm that they occurred during the family’s Williams Street
residence between August 2005 and May or June 2007—a date range that
pre- and postdates section 288.7’s enactment.
Further, during closing argument, the prosecutor invited the jury to
consider defendant’s pre-September 20, 2006 sex acts by directing them to
Doe 2’s testimony regarding the incidents of abuse that occurred at the
Williams Street house: “So counts four and five of the charges are the same
type of offense. So it’s oral copulation with a child who’s 10 years or younger.
So—and that the defendant at the time is at least 18 years old, at the time of
the offense. So the acts of oral copulation that began back at the Williams
residence for John Doe 2, there are multiple incidences [sic] where
John Doe 2, when he was 10 or younger[,] was orally copulated by the
defendant.”
19
The People rely on the date ranges set forth in the information—
October 22, 2007, to April 1, 2008, for count 4 and October 22, 2007, to
September 30, 2009, for count 5—to argue against an ex post facto violation.
However, notwithstanding how the section 288.7, subdivision (b) offenses
were charged, the jury instructions on counts 4 and 5 wholly omitted these
dates, only setting forth the elements of these offenses.8
The People also point to two instructions relating to the timing of the
individual counts, CALCRIM Nos. 207 and 3501, to disclaim an ex post facto
violation. Neither is helpful.
First, the jury was instructed per CALCRIM No. 207: “It is alleged
that the alleged crimes occurred on various dates. The People are not
required to prove that the crime took place exactly on that date alleged but
only that it happened reasonably close to that day.” We are unclear how this
language could have sufficed to prevent an ex post facto violation given that
the instruction on the offense charged in counts 4 and 5 failed to identify any
particular date ranges. As such, the phrase “reasonably close” did not
necessarily restrict the jury to evidence of acts occurring after September 20,
2006, the effective date of section 288.7.
Second, as to CALCRIM No. 3501, the jury received the following
unanimity9 instruction: “Except for count 9 (battery with serious bodily
8 As to counts 4 and 5, the jury was instructed: “The defendant is
charged in Counts 4, [sic] and 5 with engaging in oral copulation or sexual
penetration with a child 10 years of age or younger in violation of Penal Code
section 288.7(b). [¶] To prove that the defendant is guilty of this crime, the
People must prove that: [¶] 1. The defendant engaged in an act of oral
copulation or sexual penetration with John Doe 2; [¶] 2. When the defendant
did so, John Doe 2 was 10 years of age or younger; [¶] 3. At the time of the
act, the defendant was at least 18 years old.”
9To protect a defendant’s right to a unanimous jury verdict, “if one
criminal act is charged, but the evidence tends to show the commission of
20
injury), the defendant is charged in the information with committing a
number of sex offenses spanning various periods of time. [¶] The People have
presented evidence of more than one act to prove that the defendant
committed these offenses. You must not find the defendant guilty unless:
[¶] 1. You all agree that the People have proved that the defendant
committed at least one of these acts, and you all agree on which act he
committed for each offense; [¶] OR [¶] 2. You all agree that the People have
proved that the defendant committed all the acts alleged to have occurred
during this time period.”
The People focus on the second prong of CALCRIM No. 3501, which
allowed the jury to meet the unanimity requirement by agreeing that
defendant committed all the alleged acts in the time period set forth in the
information. The People completely disregard the first prong, however,
which alternatively allowed the jury to meet this requirement by agreeing on
which act defendant committed for each count. The jury thus could have
returned guilty verdicts based on the unanimous belief that defendant
committed two acts of oral copulation on Williams Street without considering
when the acts occurred. (See Hiscox, supra, 136 Cal.App.4th at p. 261.)
Further muddying the waters, during deliberations the jury sent a note
to the court requesting to have certain testimony read back relating to
Doe 2’s age when defendant orally copulated or sexually penetrated him. As
the court explained, “They’re looking for testimony regarding the age of
John Doe 2 when oral copulation and/or anal penetration happened. And
then there’s a parentheses [sic], ‘clean up with alcohol,’ signed by the
more than one such act, ‘either the prosecution must elect the specific act
relied upon to prove the charge to the jury, or the court must instruct the jury
that it must unanimously agree that the defendant committed the same
specific criminal act.’ ” (People v. Napoles (2002) 104 Cal.App.4th 108, 114.)
21
foreperson.” This particular incident involving defendant’s rubbing alcohol
on Doe 2’s “butt” occurred at the Williams house, although it is unclear
whether it occurred before September 20, 2006.
Nor do the verdict forms provide any certainty as to whether the jury
relied on post-September 20, 2006 acts to convict defendant. The verdict
forms for counts 4 and 5 state only that the jury found defendant guilty “of
the offense charged in Count Four of the Information” and “of the offense
charged in Count Five of the Information,” to wit, “ORAL COPULATION OR
SEXUAL PENETRATION WITH CHILD 10 YEARS OLD OR YOUNGER,
upon John Doe No. 2, a violation of section 288.7(b) . . . .” Again, no specific
dates are identified.
Under these circumstances, we are left unable to confirm that no
ex post facto violation occurred. As explained by our First District colleagues:
“It would be inappropriate for us to review the record and select among acts
that occurred before and after that date, or to infer that certain acts probably
occurred after that date.” (Hiscox, supra, 136 Cal.App.4th at p. 261.) “For a
court to hypothesize which acts the jury may have based its verdicts on, or
what dates might be attached to certain acts based on ambiguous evidence,
would amount to ‘judicial impingement upon the traditional role of the jury.’ ”
(Ibid., quoting Blakely v. Washington (2004) 542 U.S. 296, 309.)
Accordingly, based on the record as a whole set forth ante, we conclude
that a very real possibility exists that the jury relied on acts of oral
copulation on Doe 2 at the Williams Street house between August 2005 and
section 288.7’s effective date of September 20, 2006. Because the record
allows for reasonable doubt over whether counts 4 and 5 were based solely on
acts occurring on or after September 20, 2006, defendant’s conviction and
22
sentence as to both counts must be reversed. (See Rojas, supra, 237
Cal.App.4th at p. 1307; Hiscox, supra, 136 Cal.App.4th at pp. 261–262.)
We reject as moot defendant’s alternative argument that the court
prejudicially erred by failing to instruct on certain lesser included offenses for
purposes of counts 4 and 5, as well as his argument that the total sentence of
106 years to life constitutes cruel and/or unusual punishment in violation of
the state and federal Constitutions. Given our reversal of counts 4 and 5,
defendant’s total term will be reduced.
B. Count 1: Section 269.
Count 1 charged defendant with aggravated sexual assault (oral
copulation) of Doe 1 in violation of section 269. Defendant argues and the
People concede that this conviction violates the constitutional prohibition on
ex post facto laws because there is no way to determine whether the jury
based its verdict on conduct that occurred before or after section 269 was
amended on September 20, 2006. Prior to September 20, 2006, section 269
required at least a 10-year age difference between the defendant and the
victim. (Stats. 1994, 1st Ex. Sess. 1993, ch. 48, § 1.) After September 20,
2006, section 269 was amended to reduce the required age differential
between the defendant and the victim to seven years. (Stats. 2006, ch. 337,
§ 6.)
Here, Doe 1 is eight and a half years younger than defendant.
Accordingly, defendant could not have committed any act on Doe 1 in
violation of section 269 prior to September 20, 2006. We agree with the
parties that the record in this case does not establish beyond a reasonable
doubt that the jury found defendant guilty of section 269 based on acts
committed against Doe 1 on or after September 20, 2006. Similarly to Doe 2,
Doe 1 testified to numerous acts of oral copulation that occurred throughout
23
the family’s residence on Williams Street, which spanned from August 2005
to Summer 2007. (Ante, pp. 4–5.)
Accordingly, because defendant’s count 1 conviction violates the
constitutional prohibition on ex post facto laws, we reverse both the
conviction and the accompanying sentence. (See Rojas, supra, 237
Cal.App.4th at p. 1307; Hiscox, supra, 136 Cal.App.4th at pp. 261–262.)
III. Constitutional Ban on Cruel or Unusual Punishment.
Defendant contends that his 15 years to life sentence on count 8, lewd
act on Doe 3, a child under age 14, in violation of section 288, subdivision (a),
constitutes cruel or unusual punishment under California law. Article I,
section 17 of the California Constitution prohibits the infliction of “[c]ruel or
unusual” punishment. “A punishment is cruel or unusual in violation of the
California Constitution ‘if, although not cruel or unusual in its method, it is
so disproportionate to the crime for which it is inflicted that it shocks the
conscience and offends fundamental notions of human dignity.’ ” (People v.
Baker (2018) 20 Cal.App.5th 711, 723 (Baker), quoting In re Lynch (1972) 8
Cal.3d 410, 424 (Lynch).)
Under the California Supreme Court’s three-part test, to determine
whether a sentence is cruel or unusual under the state Constitution, the
court must: (1) consider “the nature of the offense and/or the offender, with
particular regard to the degree of danger both present to society” (Lynch,
supra, 8 Cal.3d at p. 425); (2) compare the sentence “with the punishments
prescribed in the same jurisdiction for different offenses which, by the same
test, must be deemed more serious” (id. at p. 426, italics omitted); and
(3) compare the sentence “with the punishments prescribed for the same
offense in other jurisdictions having an identical or similar constitutional
provision.” (Id. at p. 427, italics omitted; accord, In re Palmer (2021) 10
24
Cal.5th 959, 973 [reaffirming the validity of this three-part test].) Here,
defendant limits his analysis to the first and third factors, which we discuss
in turn post.
A. Nature of the Offense and/or Offender.
Defendant does not dispute that his sentence was mandatory under the
relevant statutes given his conviction for committing a lewd act on a child
under section 288, subdivision (a) and the jury’s finding under section 667.61,
subdivision (b) that he committed sexual crimes against multiple victims.
(See § 667.61, subd. (b) [establishing mandatory sentence of 15 years to life
for a person convicted of multiple enumerated sexual offenses against more
than one victim].) Nonetheless, defendant argues that his sentence “is
grossly disproportionate to the crime of non-forcible lewd act on a child when
that crime is committed fleetingly and over the clothes, and where the jury
makes no finding that it involved the genitals or buttocks.”
We reject this argument. The Legislature, not the courts, defines and
sets the punishment for a particular crime. Under the well-established
doctrine of separation of powers, “a court should not lightly encroach on
matters which are uniquely in the domain of the Legislature.” (People v.
Wingo (1975) 14 Cal.3d 169, 174; see Baker, supra, 20 Cal.App.5th at p. 724.)
“Reducing a sentence as otherwise cruel or unusual ‘is a solemn power to be
exercised sparingly only when, as a matter of law, the Constitution forbids
what the sentencing law compels.’ ” (Baker, supra, at p. 724; see People v.
Martinez (1999) 76 Cal.App.4th 489, 494 [“Only in the rarest of cases could a
court declare that the length of a sentence mandated by the Legislature is
unconstitutionally excessive”].) We decline to second-guess the Legislature’s
determination that defendant’s 15 years to life sentence on count 8 fits his
crime.
25
Indeed, while “lewd conduct on a child may not be the most grave of all
offenses, . . . its seriousness is considerable . . . [and it] may have lifelong
consequences to the well-being of the child.” (People v. Christensen (2014)
229 Cal.App.4th 781, 806; see Ashcroft v. Free Speech Coalition (2002) 535
U.S. 234, 244 [“sexual abuse of a child is a most serious crime and an act
repugnant to the moral instincts of a decent people”].) Moreover, the
vulnerability of the boys given their young ages is an aggravating
circumstance. (Baker, supra, 20 Cal.App.5th at p. 725.) “California courts
have long recognized ‘a strong public policy to protect children of tender
years.’ [Citation.]” (People v. Wilson (2020) 56 Cal.App.5th 128, 169.)
Finally, we reject defendant’s attempt to focus solely on this one lewd
act on Doe 3 without regard to his other repeated and more serious acts of
sexual abuse against Does 1 and 2, who, like Doe 3, were vulnerable children
entrusted to defendant’s care. As the California Supreme Court instructs,
“[w]e consider not only the offense in the abstract but also the facts of the
crime in question—‘i.e., the totality of the circumstances surrounding the
commission of the offense . . . .’ ” (Baker, supra, at p. 724; see People v.
Christensen, supra, 229 Cal.App.4th at p. 806 [finding significant that the
defendant “molested not one boy, but three”].) By this measure, defendant’s
punishment on count 8 was not grossly disproportionate to his individual
culpability.
B. Comparable Sentences for the Same Offense in Other
Jurisdictions.
Nor has defendant established that his sentence fell outside the typical
range of sentences for the same offense in other jurisdictions. (See Lynch,
supra, 8 Cal.3d at p. 427.) Defendant faults the People for relying on statutes
from other states listed in Baker, supra, 20 Cal.App.5th at pages 730–731,
which he argues are inapposite.
26
In Baker, the defendant was convicted of oral copulation on a child age
10 or younger and two counts of nonforcible lewd act on a child age 14 or
younger. (Baker, supra, 20 Cal.App.5th at pp. 717–718.) Upholding the
defendant’s 15 years to life sentence, Baker cited several out-of-state statutes
that involved life sentences for oral copulation or sexual penetration of a
child, a more serious crime than nonforcible lewd act. (Baker, supra, at p.
731, citing, e.g., “Mich. Comp. Laws Serv. § 750.520b(1)(a) & (2)(b) [25 years
to life for sexual penetration of a child under 13]; Miss. Code Ann. §§ 97-3-
101(3), 97-3-95(1)(d) [20 years to life for sexual penetration of a child under
14]; Neb. Rev. Stat. Ann. § 28-319.01(1)(a) & (2) [15-year minimum for sexual
penetration of a child under 12]; R.I. Gen. Laws §§ 11-37-8.1, 11-37-8.2 [25
years to life for sexual penetration of a child under 14].”) However, the Baker
court also cited statutes from Florida, Kansas, and Nevada that prescribe
potential life sentences for a lewd act on a child. (Baker, supra, 20
Cal.App.5th at p. 731.)
Defendant argues, “Unlike California, . . . Florida defines a lewd act to
require a touching of ‘the breasts, genitals, genital area, or buttocks, or the
clothing covering them.’ (Fla. Stat. Ann. § 800.04(5)(b).) Here, Doe 3 gave
conflicting statements about whether appellant touched his genitals.
[Citations.] The jury made no finding on the issue.”
This argument confuses our standard of review. While the issue of
whether a punishment is cruel or unusual is one of law subject to
independent review, underlying disputed facts must be viewed in a light most
favorable to the judgment. (People v. Wilson, supra, 56 Cal.App.5th at pp.
166–167.) Accordingly, we assume for purposes of this analysis that the jury
accepted Doe 3’s statement that defendant touched his genitals. (See ibid.)
Viewed in this light, the statutes from Florida, Kansas, and Nevada
27
prescribing potential life sentences for a lewd act on a child are indeed
relevant and weigh in favor of the constitutionality of defendant’s sentence.
(See People v. Wingo, supra, 14 Cal.3d at p. 179 [a punishment should be
viewed with suspicion only “when there appears a significant disproportion
between a challenged penalty and that imposed for the same crime by our
sister states”].)
In summary, after considering defendant’s position, we conclude this
case does not qualify as one of the exceedingly rare cases warranting a
finding that the imposed sentence is disproportionate to defendant’s
culpability. (See Baker, supra, 20 Cal.App.5th at p. 724.) We thus reject his
challenge to the 15 years to life sentence on count 8.
IV. The Constitutionality of Restrictions on the Right to Youth
Offender Parole Hearing Under Section 3051, Subdivision (h).
We next reject defendant’s related argument that he was erroneously
denied the right to a youth offender parole hearing under section 3051,
subdivision (h) based on the life sentence he received on count 8. In so
arguing, defendant again relies on the premise, which we just rejected, that
his life sentence was unconstitutional. Accordingly, his ancillary claim also
fails. We briefly explain.
Section 3051, enacted in 2013, “ ‘establish[es] a parole eligibility
mechanism that provides a person serving a sentence for crimes that he or
she committed as a juvenile the opportunity to obtain release when he or she
has shown that he or she has been rehabilitated and gained maturity . . . .’ ”
(In re Trejo (2017) 10 Cal.App.5th 972, 980–981; see People v. Franklin (2016)
63 Cal.4th 261, 279–280 [§ 3051 provides for youth offender parole hearings
that give youth offenders “a meaningful opportunity” for release on parole
subject to delineated exceptions].) To that end, subject to the exceptions set
28
forth in subdivision (h),10 section 3051 entitles a youth offender who
committed his or her controlling offense before reaching age 26 to a parole
hearing after serving a designated period in custody.11 (§ 3051, subd. (b).)
Here, defendant was found statutorily ineligible for a youth offender
parole hearing for two reasons. First, although defendant was age 25 or
younger when he committed the sex offenses against Does 1 and 2 charged in
counts 2, 6 and 7, he was age 29 when he committed count 8, lewd act on a
child under age 14, against Doe 3, an offense for which he received a life
sentence. (§ 3051, subd. (h).) Second, defendant was sentenced under section
667.61, known as the One Strike law, because he had multiple victims.
(§§ 3051, subd. (h), 667.61, subd. (b).)
Defendant argues that the first disqualifier is inapplicable because his
life sentence on count 8 was unconstitutional and the second is inapplicable
because it violates equal protection.12 Having already upheld the
10 Section 3051, subdivision (h) states: “This section shall not apply to
cases in which sentencing occurs pursuant to Section 1170.12, subdivisions
(b) to (i), inclusive, of Section 667, or Section 667.61, or to cases in which an
individual is sentenced to life in prison without the possibility of parole for a
controlling offense that was committed after the person had attained 18 years
of age. This section shall not apply to an individual to whom this section
would otherwise apply, but who, subsequent to attaining 26 years of age,
commits an additional crime for which malice aforethought is a necessary
element of the crime or for which the individual is sentenced to life in prison.”
11 Section 3051, subdivision (b) originally provided that defendants who
were under age 18 when they committed their crimes were entitled to youth
offender parole hearings. (People v. Franklin, supra, 63 Cal.4th at p. 278.)
Effective January 1, 2018, section 3051 was amended to afford the right to
such hearings to defendants who were age 25 or younger when committing
their crimes. (§ 3051, subd. (a)(1), as amended by Stats. 2017, ch. 684, § 1.5.)
12Specifically, defendant contends section 3051, subdivision (h) violates
the equal protection clauses of the federal and state Constitutions by
excluding young adults convicted and sentenced for serious sex crimes under
29
constitutionality of defendant’s life sentence on count 8, we conclude that
defendant is indeed statutorily ineligible for a youth offender parole hearing
pursuant to section 3051, subdivision (h) since he is serving a life sentence for
a crime that he committed when he was 29 years old. We therefore need not
address defendant’s alternative argument based on the equal protection
clause.
V. Imposition of Statutory Fees and Fines.
Last, defendant challenges the court’s imposition of a $1,000 penal fine
(§ 672), a $10,000 restitution fine (§ 1202.4), and a $10,000 parole revocation
restitution fine (§ 1202.45)13 as a violation of his constitutional rights to due
process and equal protection based on his purported inability to pay, citing
People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). This argument fails.
Dueñas involved a challenge to the court’s imposition of assessments
for court operations (Pen. Code, § 1465.8) and court facilities (Gov. Code,
§ 70373) brought by a misdemeanor probationer who was homeless and
unable to work due to a disability. (Dueñas, supra, 30 Cal.App.5th at pp.
1160–1162.) The reviewing court agreed with the defendant’s challenge,
holding that due process required the trial court to conduct an ability to pay
hearing and to ascertain the defendant’s ability to pay before imposing these
nonpunitive assessments. (Id. at p. 1164.)
Here, the court did not impose nonpunitive assessments as in Dueñas.
Rather, it imposed a $1,000 penal fine pursuant to section 672. (§ 672
[authorizing the imposition of a fine not exceeding $10,000 on a person
the One Strike law from youth offender parole consideration, while including
young adults convicted of the equal or more heinous crimes of murder and
sexual intercourse or sodomy on a child 10 years old or younger.
13Imposition of the parole revocation restitution fine was stayed unless
and until defendant is released on parole and commits a parole violation.
30
convicted of a felony punishable by imprisonment, in relation to which no fine
is statutorily prescribed].) Additionally, the court imposed a $10,000
restitution fine under section 1202.4, which requires imposition of such fine
where the defendant is convicted of a crime unless the court “finds compelling
and extraordinary reasons for not doing so . . . .” (§ 1202.4, subd. (b).) The
minimum restitution fine for felony convictions is $300, and the maximum
fine, imposed here, is $10,000. (Id., subd. (b)(1).)
Section 1202.4 expressly provides, “A defendant’s inability to pay shall
not be considered a compelling and extraordinary reason not to impose a
restitution fine.” (Id., subd. (c).) However, “[i]nability to pay may be
considered . . . in increasing the amount of the restitution fine in excess of the
minimum fine pursuant to paragraph (1) of subdivision (b).” (Ibid.) The
burden of demonstrating the inability to pay an amount above the statutory
minimum lies with the defendant. (Id., subd. (d).)
The People contend defendant forfeited his right to raise a Dueñas
challenge by failing to request a hearing before the trial court regarding his
ability to pay the challenged fines. This contention is well taken. (See
§ 1202.4, subd. (c); People v. Castellano (2019) 33 Cal.App.5th 485, 490
[“Consistent with Dueñas, a defendant must in the first instance contest in
the trial court his or her ability to pay”].) Unlike the misdemeanor
probationer in Dueñas, defendant had a statutory right to an ability to pay
hearing that he did not exercise, thus forfeiting his appellate claim that he
was entitled to such hearing. Moreover, had he requested this hearing, the
same evidence relevant to his inability to pay the $10,000 restitution fine
31
could also have established an inability to pay the penal fine and the stayed
parole revocation restitution fine.14
Defendant responds that his attorney specifically objected to the
restitution fine on the grounds that he lacked the ability to pay and that the
trial court made a finding that he lacked the ability to pay other fees, such as
a booking and presentence investigation fee. However, notwithstanding the
court’s unexplained statement that defendant lacked the ability to pay
certain lesser fees or assessments when declining to impose them, the court
nonetheless imposed the restitution fine set at the statutory maximum
amount, thereby implicitly rejecting defense counsel’s inability to pay
argument. More importantly, despite defendant’s suggestion, he directs us to
nothing in the record that demonstrates his inability to pay. “Given that the
defendant is in the best position to know whether he has the ability to pay, it
is incumbent on him to object to the fine and demonstrate why it should not
be imposed.” (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154, italics
added.)
Thus, even were we to excuse defendant’s failure to request a hearing
on his ability to pay, we would nonetheless conclude that any error under
Dueñas15 was harmless beyond a reasonable doubt. (People v. Johnson (2019)
14 Several courts have held that where a defendant does not object to
imposition of the maximum restitution fine on grounds of inability to pay,
this failure also forfeits claims of inability to pay other fees and assessments
imposed in lesser amounts. (E.g., People v. Smith (2020) 46 Cal.App.5th 375,
395; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 [“if Gutierrez chose
not to object to a $10,000 restitution fine based on an inability to pay, he
surely would not complain on similar grounds regarding an additional $1,300
in fees”].)
15There is currently a dispute among appellate courts regarding
whether the constitutionality of imposing certain financial obligations on a
criminal defendant should be analyzed under the due process clause and/or
32
35 Cal.App.5th 134, 139–140.) A defendant’s ability to pay is not limited to
his or her present financial situation but can also be based on his or her
future ability to earn prison wages and money after release from custody.
(People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837.) Here, the record
shows that defendant was not yet 30 years old at the time of sentencing and
that he will be serving multiple life terms in prison. Nothing in the record
indicates defendant will be unable to work or ineligible for prison work
assignments. Even assuming defendant had no available assets at the time
of sentencing, he will have ample time to pay the fines assessed against him
from his prison wages. (Johnson, at pp. 139–140.)
Defendant insists there is evidence that “at least cast[s] doubt on
whether he was sufficiently healthy and able-bodied to work in prison.”
Defendant points to his own testimony that he suffered a significant finger
injury while working at the jail that led to a painkiller addiction, and that he
took prescription medications for anxiety and depression. These conditions,
equal protection clause of the Fourteenth Amendment or the excessive fines
clause of the Eighth Amendment. The Dueñas court, applying a due process
analysis, noted that the imposed financial obligations were also potentially
unconstitutional under the excessive fines clause of the Eighth Amendment,
but concluded, “The due process and excessive fines analyses are sufficiently
similar that . . . ‘[i]t makes no difference whether we examine the issue as an
excessive fine or a violation of due process.’ [Citation.]” (Dueñas, supra, 30
Cal.App.5th at p. 1171, fn. 8.) Courts have strongly criticized the substantive
holding in Dueñas. (See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, 326–
329, review granted Nov. 26, 2019, S258946; cf. People v. Kopp (2019) 38
Cal.App.5th 47, 95–96 [“agree[ing], to some extent, with the court’s
conclusion in Dueñas that due process requires the trial court to conduct an
ability to pay hearing and ascertain a defendant’s ability to pay before it
imposes court facilities and court operations assessments . . . if the defendant
requests such a hearing”], review granted Nov. 13, 2019, S257844.) For
purposes of this case, and given the state of our record, we need not weigh in
on this debate.
33
assuming for the sake of argument that they are permanent, do not
necessarily preclude defendant from taking on work assignments in prison.
But even if they did, when exercising its discretion to set an appropriate fine,
a trial court is free to consider, among other factors, any money received by a
defendant, be it in the form of prison wages or simply gifts from family or
friends. (See People v. Potts (2019) 6 Cal.5th 1012, 1055–1056 [concluding
trial court could lawfully impose $10,000 restitution fine despite condemned
inmate’s categorical ineligibility to earn prison wages and his receipt of only
occasional small gifts of money from family, and rejecting argument “that a
fine is automatically invalid if a defendant is unable to pay it”].)
Thus, for the reasons stated and based on the record at hand, we affirm
the court’s imposition of these fines.
DISPOSITION
Defendant’s convictions on counts 1, 4 and 5 are reversed. In all other
regards the judgment is affirmed.
34
_________________________
Jackson, J.
WE CONCUR:
_________________________
Fujisaki, Acting P. J.
_________________________
Petrou, J.
A157214/People v. Cory Jordan Fisher, Sr.
35