People v. Aguil CA5 ( 2021 )

Filed 4/6/21 P. v. Aguil CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078612
Plaintiff and Respondent,
(Super. Ct. No. BF168785A)
v.
FRANCISCO RUFINO AGUIL, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Judith K.
Dulcich, Judge.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Caely E.
Fallini, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted Francisco Rufino1 Aguil (defendant) of committing sex crimes
against an underage victim. This appeal concerns the admissibility of a recorded
confession. Defendant alleges a violation of his constitutional rights under Miranda v.
Arizona (1966) 384 U.S. 436 (Miranda) and further contends his statements were
coerced. We conclude the confession was voluntarily given in response to noncustodial
interrogation.
Defendant makes alternative claims of sentencing error based on the imposition of
certain fines, fees, and assessments. The People make a partial concession, submitting
the matter should be remanded for the trial court to identify the statutory basis for a total
of $1,860 in assessments. We accept the concession and agree with the proposed
remedy. The judgment is otherwise affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and the victim are blood relatives. In May 2017, the victim (then age
14) told her mother that defendant began molesting her when she was 12 years old and he
was between the ages of 18 and 19. The abuse continued past her 13th birthday,
progressing to acts of oral sex and intercourse. The allegations were reported to the
police on May 24, 2017.
On June 7, 2017, the police recorded a pretextual phone call made by the victim to
defendant for the purpose of eliciting incriminating statements. The conversation was
brief, and defendant denied having any memory of the events about which he was asked.
On June 21, 2017, the police recorded another “pretext call” initiated by the victim’s
mother. The mother’s approach was very aggressive and accusatory. Defendant told her
the victim had “come on to [him],” i.e., tried to initiate physical intimacy, but he claimed
to have rejected her advances. After approximately 45 minutes of repeating such denials,
defendant finally admitted the allegations were true.
1Inthe charging documents and abstract of judgment, defendant’s middle name is spelled
“Rugino.” But from his birth certificate, located in the record, his middle name is actually
“Rufino.” We will use that spelling and direct the trial court to correct the abstract.
2.
On June 22, 2017, two police detectives made an unscheduled visit to the home of
defendant’s grandmother, where defendant was residing. The grandmother invited the
detectives inside, and defendant agreed to speak with them. They activated an audio
recording device prior to entering the home. After approximately 10 minutes of
questioning, defendant incriminated himself. He was placed under arrest a few minutes
later.
Defendant was charged with committing a lewd act upon a child under the age of
14 (Pen. Code, § 288, subd. (a)) and continuous sexual abuse of a child under the age of
14 (id., § 288.5, subd. (a); all undesignated statutory references are to the Penal Code).
The case went to trial in September 2018, at which time defendant unsuccessfully moved
to suppress evidence of his conversation with the detectives. The claims on appeal do not
require a summary of the trial evidence.
Defendant was found guilty as charged. In December 2018, the trial court
imposed a 14-year prison sentence. The notice of appeal was filed on the date of
sentencing.
DISCUSSION
I. Admissibility of Defendant’s Interview Statements
A. Additional Background
The hearing on defendant’s motion to suppress included testimony by defendant’s
grandmother and Detective Rick Wimbish of the Bakersfield Police Department. The
trial court also listened to an audio recording of the interview. The following summary is
derived from the witness testimony and our independent review of the recording.
On June 22, 2017, the day after the second pretext call, Detective Wimbish and his
partner went to defendant’s residence. They pulled up to the house in an unmarked car,
arriving shortly before 11:00 a.m. The detectives were not in uniform but wore
professional attire, i.e., “dress slacks, dress shirt, and a tie.” Detective Wimbish wore a
lanyard displaying his police identification and had a holstered firearm at his hip.
3.
The detectives knocked on the front door and proceeded to converse with the
primary occupant, defendant’s grandmother. Detective Wimbish described the initial
encounter: “[S]he said that [defendant] was sleeping, and she was going to go wake him
up so he could speak with us. And then she came back to the door, and we spoke a little
bit longer about—small talk until [defendant] arrived at the door.”
Detective Wimbish’s partner activated the recording device during the so-called
“small talk.” It is evident from the recording that defendant’s grandmother knew why the
detectives were there and was aware of the victim’s allegations. She stated, in reference
to the victim’s mother, “I thought he [defendant] should have told her, ‘… I am not
coming to your house no more ’cause, uh, [the victim] is [following] me around and
touching me and won’t leave me alone.’ And so maybe that way she [the victim’s
mother] would have believed him. But … he was in special class in school for—he’s not
that bright. Sometimes I tell him, ‘Give me the white clothes to go wash ’em.’ He give
me [the] color one. I said that’s [color]—that’s not white.”2
Detective Wimbish interrupted the grandmother to ask again if defendant was
home. We quote the salient parts of the recording (brackets indicate discrepancies
between what can be heard on the recording and what appears in a written transcript of
the same):3
“DET. WIMBISH: Is Francisco … here?
2In arguing the motion to suppress, the defense emphasized the fact defendant had been
in special education classes in high school. However, the testimony of school personnel with
knowledge of his education records established defendant had an IQ score of 93, which is within
the range of “average” intelligence. Despite a learning disability in the areas of reading and
writing, he graduated from Delano High School at the age of 18.
3The trial court noted there were unspecified “disagreements about the transcript.” For
our purposes, the only material difference is the fact the grandmother can clearly be heard
suggesting the detectives speak to defendant in a “bedroom.” Her statement is inaccurately and
incompletely transcribed as “You say you got a room.” Next, someone says, “That’s fine.” The
transcript attributes the statement to Detective Wimbish’s partner, but it sounds like defendant’s
voice.
4.
“[GRANDMOTHER]: Uh, that’s him [right] there. Want to go outside
or do you want to come inside?
“DET. WIMBISH: It doesn’t matter … [—]
“[GRANDMOTHER]: Oh, come on in then.
“DET. WIMBISH: [—] He can come out or whatever [—]
“[GRANDMOTHER]: [Want in or out?]
“DET. WIMBISH: [—] Whatever’s more convenient for you. Is there
a place we can talk privately in here?
“[DEFENDANT]: [[Unintelligible]]
“[GRANDMOTHER]: You [can go in] a room, [bedroom].
“[UNKNOWN]: That’s fine.
“DET. WIMBISH: [Okay, yeah, if that works for you.] [W]e
appreciate it.”
The detectives followed defendant to his room. Defendant said, “sorry,”
apparently in reference to the state of the bedroom. The conversation continued:
“DET. WIMBISH: … That’s fine. Hopefully, we won’t take too
awfully long. Uh, there’s my card. I’m Detective Wimbish. I’m with the
Bakersfield Police Department. This is Detective Tipton and I might just
sit right here if that’s okay with you?
“[DEFENDANT]: Sure.
“DET. WIMBISH: Okay. And you’re Francisco?
“[DEFENDANT]: Yes.
“DET. WIMBISH: Is it okay if we sit here and talk for a little bit
about some stuff?
“[DEFENDANT]: Yeah.
“DET. WIMBISH: Okay. Appreciate you’re inviting us—inviting us
in ….”
Detective Wimbish asked for defendant’s full name, date of birth, and other
identifying information, which defendant provided. Defendant also produced his Social
5.
Security card. After reviewing the card, Detective Wimbish began what the parties agree
was an interrogation. The interrogation starts at approximately six minutes and 10
seconds into the recording:
“DET. WIMBISH: … I’m sure you know why we’re here.
“[DEFENDANT]: Kind of ….
“DET. WIMBISH: What do you know about why we’re here today?
“[DEFENDANT]: [The victim’s mother and the victim] and
everything. Yeah.
“DET. WIMBISH: Okay. Can you tell me some more about that?”
Defendant spent approximately seven minutes providing narrative statements
about his family background and interactions with the victim during the relevant time
period. His statements were apparently intended to be exculpatory. The victim was
portrayed as having behaved in vaguely inappropriate ways toward him, culminating in
her attempt to “blackmail” defendant by threatening to falsely accuse him of molestation
unless he complied with her various demands.
Detective Wimbish listened passively, sometimes asking for clarification about
locations and the identities of family members. He also asked whether the victim had
ever “flirted” with defendant. Defendant answered, “Kind of yeah. Like there’s times
but like I would just ignore it and like ’cause I didn’t—I’m not tryin’ to get in that kind of
situation ’specially like with my family ….”
Defendant’s involuntariness claim is based on what occurred after he provided the
exculpatory narratives, beginning at approximately 13 minutes and 25 seconds into the
recording:
“DET. WIMBISH: Okay. Well you obviously know because we’re
here that they’ve made a police report.
“[DEFENDANT]: Yeah.
6.
“DET. WIMBISH: Uh, so I’ve sat and talked with [the victim] and—
and she’s basically told [me] what happened and, uh, she’s basically told
me that—that you forced [this] sex on her. So, my—my—my—one of my
questions is you know was it you actually forcing her to do this or was it
mutual? Was it consensual on both of your parts?
“[DEFENDANT]: I wanna say we’ve never had sex, but I never
forced her to do nothing.
“DET. WIMBISH: Mm-hm.
“[DEFENDANT]: At all.
“DET. WIMBISH: So, the sex you [guys] had that was consensual
then?
“[DEFENDANT]: We never had sex.
“DET. WIMBISH: Okay well I didn’t just get this report this morning
or I didn’t [even] just get it yesterday. I got it about three to four weeks
ago. So, I’ve been workin’ on this for quite a while. Okay? And I’ve also
talked to your Uncle Robert. Okay? And he told me about the
conversation that you guys had. Okay? And that’s all already documented
in the report weeks ago the conversation you had talkin’ to him about
having sex with [the victim]. Okay? So, again, one of my questions is
because I’m trying to determine if this was consensual sex you had with
[the victim] or if it was—or if you held her down and made her do it. I
[mean you’re saying] she started flirting with you so I’m tryin’ to determine
if it was consensual sex you had with [the victim] or if you forced her to do
it.
“[DEFENDANT]: It was consensual.
“DET. WIMBISH: It was consensual[?] And I understand that the sex
you had with [the victim] was on multiple occasions[.] And she …
apparently has [some] clothes left from one of those times that there might
be some DNA on. Uh, [we’re] gonna find your DNA on her clothes you
think?
“[DEFENDANT]: I don’t know.
“DET. WIMBISH: Okay. So, she also says that you used a condom
every time you guys had sex except for maybe once she wasn’t sure. Do
you think you used a condom every time you had sex with her? No? Did
you use condoms sometimes with her? Yeah. Uh, and then she said during
7.
the oral sex you—you never used a condom. Is that correct? You’re
shaking your head yes?
“[DEFENDANT]: Yes sir.
“DET. WIMBISH: Okay. How many times do you think you had oral
sex with her?
“[DEFENDANT]: Every time I was asleep on the couch and she
would come and bother me.
“DET. WIMBISH: Okay. [Talking like] five ten fifteen twenty times
you think or less than twenty?
“[DEFENDANT]: Less than 10.
“DET. WIMBISH: Less than 10. And then how ’bout regular sexual
intercourse. How many times you think that occurred?
“[DEFENDANT]: [As many times as] she bothered me in the middle
of the night.
“DET. WIMBISH: Less than 20?
“[DEFENDANT]: Less than 10.”
The interrogation continued for another four minutes before defendant was placed
under arrest.
The trial court found, in pertinent part: “[I]t [was] an interrogation; however, I
don’t think there [are] any facts that support he was in custody. … It appeared to be
clearly consensual first by the grandmother and then by defendant.” Defendant’s
statements were also found to have been voluntarily given. Accordingly, the motion to
suppress was denied.
B. Miranda Claim
If a defendant is subjected to custodial interrogation without being advised
pursuant to Miranda, statements made during the interrogation cannot be used in the
prosecution’s case-in-chief. (People v. Lessie (2010) 47 Cal.4th 1152, 1162; People v.
Thornton (2007) 41 Cal.4th 391, 432.) “Under Miranda, police officers must warn a
suspect before questioning that he or she has the right to remain silent and the right to the
8.
presence of an attorney.” (People v. Case (2018) 5 Cal.5th 1, 20.) “In reviewing
Miranda issues on appeal, we accept the trial court’s resolution of disputed facts and
inferences as well as its evaluations of credibility if substantially supported, but
independently determine from undisputed facts and facts found by the trial court whether
the challenged statement was legally obtained.” (People v. Smith (2007) 40 Cal.4th 483,
502.) “Where, as was the case here, an interview is recorded, the facts surrounding the
admission or confession are undisputed and we may apply independent review.” (People
v. Duff (2014) 58 Cal.4th 527, 551.)
In “Miranda case law, ‘custody’ is a term of art that specifies circumstances that
are thought generally to present a serious danger of coercion.” (Howes v. Fields (2012)
565 U.S. 499, 508–509.) “Interrogation consists of express questioning or of words or
actions on the part of police officers that they should have known were reasonably likely
to elicit an incriminating response.” (People v. Johnson (1992) 3 Cal.4th 1183, 1224.)
The fact defendant was interrogated is not in dispute. However, in the absence of
custodial interrogation “Miranda simply does not come into play.” (People v. Mickey
(1991) 54 Cal.3d 612, 648.)
“The key question is whether, under all of the objective circumstances, a
reasonable person in the suspect’s position would have felt free to terminate the
interrogation. [Citations.] But even if a person’s freedom of movement has been
curtailed, an ‘additional question’ arises: ‘whether the relevant environment presents the
same inherently coercive pressures as the type of station house questioning at issue in
Miranda.’ [Citations].” (People v. Caro (2019) 7 Cal.5th 463, 491.) The Miranda case
involved “incommunicado interrogation of individuals in a police-dominated
atmosphere” where the suspects were “cut off from the outside world.” (Miranda, supra,384 U.S. at p. 445.)
“Relevant factors include the location of the questioning [citation], its duration
[citation], statements made during the interview [citations], the presence or absence of
9.
physical restraints during the questioning [citation], and the release of the interviewee at
the end of the questioning [citation].” (Howes v. Fields, supra, 565 U.S. at p. 509.)
“Additional factors are whether the suspect agreed to the interview and was informed he
or she could terminate the questioning, whether police informed the person he or she was
considered a witness or suspect, whether there were restrictions on the suspect’s freedom
of movement during the interview, and whether police officers dominated and controlled
the interrogation or were ‘aggressive, confrontational, and/or accusatory.’” (People v.
Pilster (2006) 138 Cal.App.4th 1395, 1403–1404.)
There are factors weighing in favor of both defendant and the People. On the one
hand, for example, Detective Wimbish made clear defendant was the subject of a
criminal investigation and confronted him with evidence of his guilt. On the other hand,
the questioning was brief and nonaggressive. Defendant was interrogated for less than 15
minutes, beginning when he was asked “What do you know about why we’re here
today?” and ending when he was told to follow the detectives to their car.
The location factor cuts both ways. In contrast to the “inherently coercive
atmosphere” of a police station (People v. Montano (1991) 226 Cal.App.3d 914, 939; see
Berkemer v. McCarty (1984) 468 U.S. 420, 438), a suspect “is more likely to be
‘“confident, indignant, or recalcitrant”’ [citation] and ‘“more keenly aware of his rights
and more reluctant to tell of his indiscretions or criminal behavior within the walls of his
home.”’” (People v. Saldana (2018) 19 Cal.App.5th 432, 456, quoting Miranda, supra,384 U.S. at pp. 449–450.) If family members are nearby, “their presence [can provide]
moral support.” (Miranda, at p. 450.) However, questioning defendant in his bedroom
arguably restricted his freedom of movement. Defendant emphasizes this point, but it
was his grandmother who suggested they go into the bedroom. The detectives had said,
“[H]e can come out[side] or … whatever’s more convenient for you.”
In People v. Linton (2013) 56 Cal.4th 1146, the questioning of a murder suspect
inside of his home was determined to be noncustodial interrogation. (Id. at pp. 1167–
10.
1168.) After a detective and a deputy district attorney had asked to speak with him, the
appellant “invited them into his house, taking them into his bedroom.” (Id. at p. 1167.)
The appellant was not restrained, and there was “no evidence that they blocked [his] exit
from the bedroom.” (Ibid.) The appellant was questioned “for about a half-hour,” and
“[t]he nature of their questioning” was neither “aggressive [nor] particularly
confrontational.” (Ibid.)
Few circumstances distinguish the interrogation in this case from the one in
Linton. Defendant’s interview was shorter, which does not help his argument. The
Linton interrogators carried no visible firearms, which is a detail weighing in defendant’s
favor. (People v. Linton, supra, 56 Cal.4th at p. 1167.) Most significantly, the Linton
appellant was repeatedly told he was not under arrest and did not have to answer any
questions. (Ibid.) Such assurances were not provided to defendant, but the general
message was at least partially conveyed (albeit subtly) when Detective Wimbish asked,
“Is it okay if we sit here and talk for a little bit about some stuff?” Defendant responded
affirmatively, and the detective said he appreciated the fact defendant had invited them
inside.
The audio recording tips the scale in favor of the People. It shows Detective
Wimbish was calm and polite, and that he deferred to defendant and his grandmother
with respect to where the interview took place. As observed by the trial court, the
interactions come across as entirely consensual. After spending the first half of the
interview listening to defendant’s narrative statements, the detective matter-of-factly
disclosed what he had learned from the victim and her family. Defendant began to
confess just a few moments later.
“‘[A]ccusatory questioning is more likely to communicate to a reasonable person
in the position of the suspect[] that he is not free to leave’ than would general and neutral
investigative questions. Thus, on the issue of custody, courts consider highly significant
whether the questioning was brief, polite, and courteous or lengthy, aggressive,
11.
confrontational, threatening, intimidating, and accusatory. [Citations].” (People v.
Aguilera (1996) 51 Cal.App.4th 1151, 1164.) While not entirely free of accusations,
Detective Wimbish’s conversation with defendant was brief, polite, courteous, and
nonthreatening. Based on the totality of the circumstances, we conclude defendant’s
confession was made in a noncustodial setting. As such, there was no Miranda violation.
C. Voluntariness Claim
Defendant further contends his statements were coerced. He makes three related
arguments. Detective Wimbish is said to have exploited the circumstance of defendant
being “a person of lower intelligence.” Because of his intellectual “deficiencies,”
defendant’s free will was allegedly overborne by “deceptive interrogation tactics.” He
also claims there was an implied promise of leniency.
The People argue forfeiture. However, defendant raised the issue of voluntariness
in a motion in limine and made several arguments regarding his intellect. The trial court
ruled the evidence did not “give[] rise to a claim of involuntariness.” Assuming the claim
was not forfeited, it fails on the merits.
“‘Both the state and federal Constitutions bar the prosecution from introducing a
defendant’s involuntary confession into evidence at trial.’” (People v. Wall (2017) 3
Cal.5th 1048, 1065.) It is the People’s burden to establish voluntariness by a
preponderance of the evidence. (Id. at p. 1066.) The issue presents “a mixed question of
law and fact that is nevertheless predominantly legal” and subject to de novo review.
(People v. Mickey, supra, 54 Cal.3d at p. 649; accord, People v. Linton, supra, 56 Cal.4th
at p. 1177.) “Our voluntariness determination rests on an ‘independent’ consideration of
the entire record, including ‘“‘the characteristics of the accused and the details of the
[encounter].’”’” (People v. Mendez (2019) 7 Cal.5th 680, 698.)
“A confession of a crime is not inadmissible merely because the accused was of
subnormal intelligence, although subnormal intelligence is a factor that may be
considered with others in determining voluntariness.” (In re Norman H. (1976) 64
12.
Cal.App.3d 997, 1001; accord, People v. McWhorter (2009) 47 Cal.4th 318, 358.)
Defendant was questioned two weeks prior to his 21st birthday. As discussed in footnote
2, ante, defendant had an IQ score of 93, meaning he was/is a person of average
intelligence. That is certainly how he comes across on the audio recording of the
interrogation. The trial court was not persuaded by the lack of intelligence argument, and
neither are we.
Next, defendant alleges Detective Wimbish “admitted that he told a series of lies,
including that ‘Uncle Robert’ told him that [defendant] had talked about having sex with
[the victim], and that he had potential DNA evidence.” The assertion is only partially
correct. The detective did concede his remark about possible DNA evidence was a ruse.
However, we agree with the People that he did not lie about his conversation with
defendant’s uncle.
Detective Wimbish told defendant, “[I] talked to your Uncle Robert. Okay? And
he told me about the conversation that you guys had.” Both statements were true. The
detective then specified, “the conversation you had talkin’ to him about having sex with
[the victim].” This statement is not disproven by the record. At the motion hearing,
Detective Wimbish testified the uncle had told him defendant did not use the word “sex”
and did not say the victim’s name, but the uncle “stated that he believed they both knew
what they were talking about.” The uncle claimed defendant had said “it” happened “a
couple of times and that the last time it happened was last year.” Accordingly, during the
interrogation, Detective Wimbish told defendant, “according to your Uncle Robert the
last time that you told him was about a year ago.” Since defendant was necessarily aware
of what he had told his uncle, he would have known if the detective was embellishing.
“‘Lies told by the police to a suspect under questioning can affect the
voluntariness of an ensuing confession, but they are not per se sufficient to make it
involuntary.’” (People v. Farnam (2002) 28 Cal.4th 107, 182.) “Deception does not
undermine the voluntariness of a defendant’s statements to the authorities unless the
13.
deception is ‘“‘of a type reasonably likely to procure an untrue statement.’”’ [Citations.]
‘“The courts have prohibited only those psychological ploys which, under all the
circumstances, are so coercive that they tend to produce a statement that is both
involuntary and unreliable.”’” (People v. Williams (2010) 49 Cal.4th 405, 443.) For the
reasons discussed, the statements about defendant’s uncle do not support the claim of
involuntariness.
Defendant’s reliance on the DNA ruse, which actually originated in the pretext
call between him and the victim’s mother,4 is unavailing for two reasons. First, the
deceptive nature of Detective Wimbish’s statement was not established until he was
cross-examined at trial. “Our review, of course, is limited to the evidence before the
court when it heard the motion.”5 (People v. Hartsch (2010) 49 Cal.4th 472, 491.)
Second, Detective Wimbish did not mention potential DNA evidence until after
defendant had already admitted to having “consensual” sex with the victim. Therefore,
even if the DNA ruse could be considered in this appeal, it would not change the result.
(See People v. Maury (2003) 30 Cal.4th 342, 405 [“The statement and the inducement
must be causally linked”]; People v. Chutan (1999) 72 Cal.App.4th 1276, 1280 [“Police
officers are thus at liberty to utilize deceptive stratagems to trick a guilty person into
confessing. The cases from California and federal courts validating such tactics are
legion”].)
4The victim’s mother had told defendant, “You know, she still has the clothes that she
wore when you guys had sex[.] [W]hat if I were to call the cops. Just to get them [tested] … for
a DNA or something.… [¶] …[¶] You need to tell me the truth because I will [expletive] grab
those clothes and [expletive] take it to the cops.”
5Defendant’s briefing seems to imply his trial counsel “renewed” the motion to suppress
after the People rested their case. That did not happen. At most, defense counsel incorporated
the arguments made in support of the motion into a trial objection interposed during direct
examination of Detective Wimbush. But the defense never alleged any implied promises had
been made and did not discuss the DNA remarks when arguing the suppression motion. In any
event, the trial objection preceded the cross-examination testimony upon which defendant now
relies.
14.
Finally, we consider the supposed promise of leniency. A confession motivated
by a promise of leniency or some other benefit is inadmissible. (People v. Carr (1972) 8
Cal.3d 287, 296.) “‘This rule raises two separate questions: was a promise of leniency
either expressly made or implied, and if so, did that promise motivate the subject to
speak?’” (People v. Tully (2012) 54 Cal.4th 952, 986.)
Defendant’s claim is based on Detective Wimbish’s focus on the issue of consent.
In California, “a child under age 14 is legally incapable of consenting to sexual
relations.” (People v. Soto (2011) 51 Cal.4th 229, 233.) Defendant argues the questions
about whether his encounters with the victim were “consensual” implied he would not be
prosecuted if he responded affirmatively. We disagree.
Although consent is not a defense to committing lewd acts upon a child, such
crimes are punished more severely if they involve the use of force. A lewd act is
ordinarily punishable “by imprisonment in the state prison for three, six, or eight years.”
(§ 288, subd. (a).) If the same act is committed by force, it is punishable “by
imprisonment in the state prison for 5, 8, or 10 years.” (Id., subd. (b)(1).)
Detective Wimbish was not lying when he told defendant the victim had accused
him of forcing her to participate in sexual activity. This was a permissible interrogation
tactic. “‘Questioning may include exchanges of information, summaries of evidence,
outline of theories of events, confrontation with contradictory facts, [and] even debate
between police and suspect.’” (People v. Holloway (2004) 33 Cal.4th 96, 115.) The
police may suggest “possible explanations of the events and offer[] defendant an
opportunity to provide the details of the crime.” (People v. Carrington (2009) 47 Cal.4th
145, 171.)
We conclude there were no implied promises of leniency. While the claim fails
for this reason alone, defendant’s causation argument is also unconvincing. The first two
times Detective Wimbish asked if the sex was consensual, defendant said they “never had
15.
sex.” He confessed after learning Detective Wimbush had spoken to his uncle, which, as
explained above, was a permissible interrogation technique.
II. Sentencing Issues
A. Additional Background
Defendant was sentenced to the middle term of 12 years for violating section
288.5 and received a consecutive two-year term (one-third of the middle term) for
violating section 288, subdivision (a). The trial court also imposed various financial
obligations. At issue here is the imposition, for each conviction, of a $30 criminal
conviction/court facilities assessment (Gov. Code, § 70373, subd. (a)(1)); a $40 court
operations assessment (§ 1465.8, subd. (a)(1)); a $300 sex offender fine (§ 290.3); and a
“penalty assessment” of $930 for reasons not specified on the record. The trial court
imposed but stayed a $300 probation revocation restitution fine (§ 1202.45). Defendant
was also ordered to pay a $300 restitution fine (§ 1202.4, subd. (b)(1).)
Defendant made no objections to the fines and assessments.
B. Failure to Identify Statutory Basis for Assessments
Case law holds “that penalty assessments must be (1) specified in the court’s oral
pronouncement of judgment, and (2) specifically listed in the abstract of judgment.”
(People v. Hamed (2013) 221 Cal.App.4th 928, 937, citing People v. High (2004) 119
Cal.App.4th 1192, 1200–1201.) “If the abstract does not specify the amount of each fine,
the Department of Corrections cannot fulfill its statutory duty to collect and forward
deductions from prisoner wages to the appropriate agency. [Citation.] At a minimum,
the inclusion of all fines and fees in the abstract may assist state and local agencies in
their collection efforts.” (High, at p. 1200.)
Defendant claims, and the People concede, the trial court erred by failing to
specify the statutory basis for the $930 in penalty assessments imposed for each
conviction. Consequently, the required information is missing from the abstract of
judgment. This is a “‘legal error[] at sentencing’ that can be reviewed on appeal
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‘“regardless of whether an objection or argument was raised ….”’” (People v. Hartley
(2016) 248 Cal.App.4th 620, 637.)
The trial court could have satisfied the requirement by making “a shorthand
reference in its oral pronouncement to ‘penalty assessments as set forth in the’ probation
report.” (People v. Hamed, supra, 221 Cal.App.4th at p. 940.) No such references were
made. Moreover, the trial court appears to have stricken (by interlineation) parts of the
report wherein those calculations appear.6 We accept the People’s concession and will
order a limited remand for the trial court to correct the error. (Accord, People v. Fromuth
(2016) 2 Cal.App.5th 91, 115.)
C. Dueñas Claim
Defendant separately alleges error based on People v. Dueñas (2019) 30
Cal.App.5th 1157 (Dueñas), which holds “that due process of law requires the trial court
to conduct an ability to pay hearing and ascertain a defendant’s present ability to pay
before it imposes court facilities and court operations assessments under … section
1465.8 and Government Code section 70373.” (Id. at p. 1164.) Dueñas further holds that
“although … section 1202.4 bars consideration of a defendant’s ability to pay unless the
judge is considering increasing the fee over the statutory minimum, the execution of any
restitution fine imposed under this statute must be stayed unless and until the trial court
holds an ability to pay hearing and concludes that the defendant has the present ability to
pay the restitution fine.” (Ibid.)
This appeal was already pending when the Dueñas opinion was published. The
People do not concede the claim. However, because the matter will be remanded for the
limited purpose of addressing an issue involving assessments, they do not oppose giving
defendant “the opportunity to request an ability to pay hearing on his fines and fees” on
6The probation department arrived at $930 combining individual assessments of $300
(§ 1464, subd. (a)(1)), $60 (§ 1465.7, subd. (a)), $150 (Gov. Code, § 70373, subd. (a)(1)), $210
(id., § 76000, subd. (a)), $60 (id., § 76000.5, subd. (a)(1)), $30 (id., § 76104.6, subd. (a)(1)), and
$120 (id., § 76104.7, subd. (a)).
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remand. (Italics added). We agree the sentencing court may entertain such a request if
made upon remand.
The California Supreme Court will soon decide whether trial courts must consider
a defendant’s ability to pay before imposing or executing fines, fees, and assessments;
and if so, which party bears the burden of proof. (See People v. Kopp (2019) 38
Cal.App.5th 47, 94–98, review granted Nov. 13, 2019, S257844.) However, this district
has held that a defendant forfeits an “ability to pay challenge” by failing to object at the
time of sentencing. (E.g., People v. Lowery (2020) 43 Cal.App.5th 1046, 1053–1054;
People v. Aviles (2019) 39 Cal.App.5th 1055, 1073–1075; contra, People v. Son (2020)
49 Cal.App.5th 565, 596–598.) There is a split of authority “regarding if, and under what
circumstances, the forfeiture doctrine applies” (People v. Montes (2021) 59 Cal.App.5th
1107, 1115), and in cases such as Lowery and Aviles, the appellants were challenging
restitution fines in excess of the statutory minimum. (Lowery, at p. 1055; Aviles, at p.
1061.)
Section 1202.4, subdivisions (c) and (d) permit defendants to raise an ability to
pay objection when the court imposes a restitution fine above the statutory minimum of
$300. Here, because the trial court imposed the minimum restitution fine of $300,
defendant did not have a statutory right to object to it. But he did have an opportunity to
challenge the $300 sex offender fine imposed pursuant to section 290.3, and that fine was
presumably determinative of the additional $1,860 ($930 × 2) in penalty assessments (see
fn. 6, ante, and statutes cited therein).
Section 290.3, subdivision (a) provides: “Every person who is convicted of any
offense specified in subdivision (c) of Section 290 shall, in addition to any imprisonment
or fine, or both, imposed for commission of the underlying offense, be punished by a fine
of three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars
($500) upon the second and each subsequent conviction, unless the court determines that
the defendant does not have the ability to pay the fine.” (Italics added.) The trial court’s
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imposition of the $300 fine implies a finding of defendant’s ability to pay it. The implied
finding is supported by the record, which indicates defendant had a monthly income of
$1,300, owned a vehicle worth approximately $5,000, and had no debts or preexisting
financial obligations except monthly car insurance premiums of $125.
In People v. McMahan (1992) 3 Cal.App.4th 740 (McMahan), the appellant’s
sentence included a fine imposed under section 290.3. On appeal, this district considered
whether the trial court “had a duty to determine he had the ability to pay the fine before
its imposition.” (McMahan, at p. 748.) The opinion holds section 290.3 places “the
burden upon the defendant to timely raise the issue.” (McMahan, at p. 749.) The
appellant was thus deemed to have forfeited his claim by failing to object and/or present
evidence of an inability to pay. (Id. at p. 750.)
Defendant acknowledges the McMahan case but argues it was recently questioned
in People v. Acosta (2018) 28 Cal.App.5th 701. We are not persuaded. The Acosta
appellant conceded the issue of forfeiture but alleged ineffective assistance of counsel
based on his trial attorney’s failure to object to a section 290.3 fine. (Acosta, at pp. 705–
706.)
In Acosta, the Sixth Appellate District opined “it is the better practice for the trial
court to independently inquire at sentencing about the defendant’s ability to pay a sexual
offender fine irrespective of whether the defendant—or his attorney—requests that the
court do so.” (People v. Acosta, supra, 28 Cal.App.5th at p. 707.) However, the next
paragraph of the opinion states: “We emphasize that we do not hold that a trial court is
obligated to inquire into a defendant’s ability to pay a sex offender fine absent the
defendant’s request.” (Ibid.)
We conclude defendant arguably forfeited all ability to pay arguments, including
his Dueñas claim, by failing to object to the section 290.3 fine. (Cf. People v. Gutierrez
(2019) 35 Cal.App.5th 1027, 1033 [“As a practical matter, if [the appellant] chose not to
object to a $10,000 restitution fine based on an inability to pay, he surely would not
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complain on similar grounds regarding an additional $1,300 in fees”].) We thus decline
to reach the merits of these claims in this appeal. On remand, defendant may raise these
issues in the first instance in the trial court.
DISPOSITION
The matter is remanded for the limited purpose of having the trial court identify
the statutory basis for all imposed penalty assessments and conduct further proceedings
consistent with this opinion. In all other respects, the judgment is affirmed. The trial
court shall then prepare an amended abstract of judgment, which includes the correct
spelling of defendant’s name (see fn. 1), and send a copy to the Department of
Corrections and Rehabilitation.
PEÑA, J.
WE CONCUR:
HILL, P.J.
POOCHIGIAN, J.
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