People v. Bolanos CA4/1

Filed 10/18/21 P. v. Bolanos CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078363
Plaintiff and Respondent,
v. (Super. Ct. No. INF1700627)
JUAN CARLOS BOLANOS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
James S. Hawkins, Judge. (Retired Judge of the Riverside Sup. Ct. assigned
by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Rachel Varnell, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha
Cortina and Amanda E. Casillas, Deputy Attorneys General for Plaintiff and
Respondent.
INTRODUCTION
A jury convicted Juan Carlos Bolanos of continuous sexual abuse of his
then 12-year-old daughter (Pen. Code,1 § 288.5, subd. (a); count 1) and three
counts of lewd and lascivious acts upon his daughter (§ 288, subd. (a); counts
2−4). The trial court sentenced him to an aggregate term of 16 years in state
prison.
On appeal, Bolanos contends the trial court erred by failing to instruct
the jury on the limited purpose of expert testimony regarding child sexual
abuse accommodation syndrome (CSAAS); his attorney provided ineffective
assistance of counsel by failing to object to the prosecutor’s
mischaracterization of the standard for reasonable doubt in her closing
argument; and the court improperly imposed certain fines and fees at
sentencing without holding a hearing on his ability to pay.
The People concede the instructional error but argue it was harmless
given that the jury was properly advised of the limited nature of CSAAS
testimony by the expert and by counsel during arguments, and evidence of
Bolanos’s guilt was overwhelming. The People also concede prosecutorial
error but argue defense counsel’s decision to not object during closing
arguments was tactical and, again, any error was harmless because defense
counsel and the court appropriately reinforced the correct standard of proof.
We agree with the People’s concessions and conclude both the
instructional and prosecutorial error were harmless. We also conclude
Bolanos has forfeited his claim to an ability to pay hearing and, even if he did
not, the trial court did not abuse its discretion by imposing the fines and fees.
Accordingly, we affirm the judgment.
1 All further undesignated statutory references are to the Penal Code.
2
FACTUAL AND PROCEDURAL HISTORY
In 2007, Bolanos began sexually abusing his daughter, Jane Doe, who
was 12 years old. Before Jane testified, the prosecution presented evidence
that, in 2008, Bolanos had sexually abused another under-age girl, Janice
Doe.2
Janice met Bolanos in early 2008, when she was 14 years old. She
played on a softball team with Jane at the time, and Bolanos was the team’s
assistant coach. Bolanos would give her rides to and from practice and she
would talk to him about problems she was having at home. Janice recalled
that Bolanos would often say nice things to her and would sometimes touch
her in a “weird” way. When the softball season came to an end, Janice began
meeting Bolanos at a park near her house. They would sit together in
Bolanos’s car and he would kiss her, rub her leg, and touch her breasts, and
have her touch his erect penis.
In July 2008, Bolanos went to Janice’s home while her parents were
out. He sat on Janice’s bed and kissed her. He then stood up, “pushed
[Janice] back onto the bed,” removed his pants, and asked Janice, “[a]re you
going to take your clothes off?” She removed her clothes, he got on top of her,
and he “began trying to shove it in.” Janice told him: “Please stop. It’s
hurting.” Bolanos did not stop, telling her: “Just be patient.” Bolanos
ejaculated into his shirt. Janice went to the bathroom and saw that she was
bleeding.
2 The prosecution introduced evidence of other uncharged sexual offenses
pursuant to Evidence Code section 1108, subdivision (a) which provides: “In
a criminal action in which the defendant is accused of a sexual offense,
evidence of the defendant’s commission of another sexual offense or offenses
is not made inadmissible by Section 1101, if the evidence is not inadmissible
pursuant to Section 352.”
3
Soon after, Janice’s parents found out about the relationship and
reported it to the police. The police asked Janice to make a pretextual phone
call to Bolanos, during which he admitted having sexual intercourse with her.
The prosecution played the call for the jury in Jane’s case.
Bolanos was arrested in July 2008 for sexual abuse of Janice. On
January 5, 2010, Bolanos was convicted of unlawful sexual intercourse with a
child under the age of 16 (§ 261.5, subd. (d)) and unlawful lewd and lascivious
act on a child under the age of 16 (§ 288, subd. (c)). Bolanos stipulated to the
fact of these convictions and the stipulation was read to the jury in Jane’s
case.
Jane testified that Bolanos began sexually abusing her in 2007, when
she was 12 years old. In the fall of 2007, Jane had just started middle school
and was living with Bolanos, her mother, and two younger siblings. Her
grandfather had recently moved into the house, so Jane was sharing a room
and a bed with her brother. Jane had to get up for school earlier than her
siblings and Bolanos left early in the morning for work, so he would wake her
before he left.
One morning, Bolanos came into the room earlier than usual. Jane’s
brother was asleep. Bolanos got into the bed and laid next to Jane. He put
his hand under Jane’s shirt and touched her breasts. Bolanos did this on at
least three other occasions. Jane started wearing a bra to bed in an attempt
to deter Bolanos, but he fondled her under her bra. Jane always pretended to
be asleep during the incidents, and Bolanos would eventually leave the room,
returning later to wake her up for school. On one occasion, Jane attempted to
roll over towards her brother, but Bolanos grabbed her hand and pulled her
so she was lying on her back. He then placed her hand on his erect penis,
4
over his clothes. On at least one other occasion, Bolanos kissed Jane on the
mouth and she felt his teeth graze against her lips.
The assaults suddenly stopped sometime around February 2008. Jane
recalled that she played softball and the regular “rec ball season” ended
around that same time. Jane remembered Janice being on the team. They
were not particularly close, but Jane recalled that Bolanos would sometimes
give Janice a ride home.
That July, Jane’s mother, C.B.,3 told Jane that Bolanos had been
arrested for “doing something with a minor.” Although Jane wondered if she
was that minor, she did not tell her mother what had happened to her.
Jane finally disclosed the abuse in 2012. She had started getting into
“really bad things” around the time Bolanos was released from “jail,” and
wanted to tell her mother what had happened so she could get help. Jane did
not disclose the abuse sooner because she was ashamed and embarrassed and
because she saw how the trial with Janice negatively affected her mother,
and how their family was broken apart as a result.
In 2017, when Jane was 21 years old, she discovered Bolanos had a new
girlfriend who was just a couple of years older than herself. Jane sent the
girlfriend the booking photo of Bolanos when he was arrested for the offenses
against Janice, and told her some details of what Bolanos had done to her.
C.B. testified and confirmed that Jane disclosed the abuse to her for the
first time in 2012. She said she confronted Jane because she could tell her
daughter was getting into trouble. Jane told her mother that she “wouldn’t
understand” because she did not know what had happened to her.
3 Pursuant to rule 8.90(b)(10) of the California Rules of Court, we refer to
private citizen witnesses by the initials of their first and last names only.
5
Eventually, Jane told C.B. that Bolanos had molested her when she was
younger.
C.B. immediately tried to confront Bolanos, but was unable to find him.
She then contacted the Riverside County Sheriff’s Department and detectives
interviewed Jane. Although C.B. called the Sheriff’s Department several
times to check on the status of the case, for unknown reasons, Bolanos was
not arrested for the offenses against Jane until 2017.
C.B. further testified that Bolanos contacted her in 2017 when Jane
began contacting his girlfriend. Bolanos told C.B. to tell her kids “to stop
putting stuff on Facebook, sending pictures of my mugshot to my friends.”
They exchanged several more messages and Bolanos never denied any of the
accusations Jane made in the exchanges with his girlfriend.
Bolanos testified in his own defense and denied he ever touched Jane in
an inappropriate manner. He claimed that Jane resented him because he did
not pay enough attention to her after he had left the family. He testified he
left C.B. because they were arguing. Bolanos admitted he had a relationship
with Janice, but despite admitting the prior conviction of unlawful sexual
intercourse with a minor, he denied they had sexual intercourse because his
definition of “sex” is “full intercourse, multiple times” for “about a half hour,
20 minutes, an hour, not for minutes.” In closing argument, defense counsel
argued C.B. and Jane made up the allegations because they were “scorned”
and seeking revenge.
DISCUSSION
I.
The Instructional Error Was Harmless
Dr. Jody Ward, a clinical and forensic psychologist, testified about
CSAAS in the prosecution’s case-in-chief. She clarified that she had never
6
met Jane, had not reviewed any information regarding her case, and was not
there to testify regarding Jane, specifically. Instead, she testified that
children, in general, that are sexually abused tend to display a pattern of
behaviors that has been identified as CSAAS, and that those patterns can
help adults understand why children respond to sexual assault in ways that
they might not expect. In particular, she identified and explained the
following five hallmarks of sexual assault response in children: secrecy,
helplessness, entrapment and accommodation, delayed and unconvincing
disclosure, and retraction or recantation. She further explained that CSAAS
starts with the presumption that the child has been sexually assaulted and
cannot be used as a diagnostic tool to determine whether or not a sexual
assault occurred in the first instance.
Expert testimony on CSAAS is admissible “ ‘for the limited purpose of
disabusing a jury of misconceptions it might hold about how a child reacts to
a molestation’ ” (People v. Wells (2004) 118 Cal.App.4th 179, 188, quoting
People v. McAlpin (1991) 53 Cal.3d 1289, 1300−1301), but it “may not be used
to corroborate the victim’s claims of abuse” (People v. Housley (1992) 6
Cal.App.4th 947, 955 (Housley)). Although there is disagreement concerning
whether a defendant is entitled sua sponte to an instruction specifically
limiting the jury’s use of this evidence,4 the trial court is required to provide
4 The Court of Appeal in Housley concluded trial courts have a sua
sponte duty to give a limiting instruction whenever an expert is called to
testify regarding CSAAS. (Housley, supra, 6 Cal.App.4th at p. 959.) Other
courts have disagreed and held the limiting instruction is necessary only
when requested. (See People v. Mateo (2016) 243 Cal.App.4th 1063,
1073−1074 (Mateo) [disagreeing with Housley and concluding, “[t]he
instruction need only be given if requested”]; People v. Stark (1989) 213
Cal.App.3d 107, 116 (Stark) [noting the instruction must be provided “if
requested”]; People v. Sanchez (1989) 208 Cal.App.3d 721, 735 [same]; People
v. Bothuel (1988) 205 Cal.App.3d 581, 587−588 [same].) We need not and do
7
such an instruction where one is requested. (See Mateo, supra, 243
Cal.App.4th at pp. 1073−1074; Stark, supra, 213 Cal.App.3d at p. 116; cf.
People v. Nudd (1974) 12 Cal.3d 204, 209 [Generally, “absent request by a
party, there is no duty to give an instruction limiting the purpose for which
evidence may be considered.”].)
Here, the prosecutor requested the trial court give a limiting
instruction regarding the CSAAS expert testimony,5 but, for reasons that are
not clear, the instruction was not given to the jury. On appeal, the People
concede the omission of the limiting instruction was error and we agree with
that concession. However, the parties dispute whether the error was
prejudicial, and which standard of prejudice we should apply.
The People contend that we should apply the Watson standard of
prejudice and consider whether “ ‘it is reasonably probable that a result more
favorable to the appealing party would have been reached in the absence of
the error.’ ” (See People v. Watson (1956) 46 Cal.2d 818, 837 (Watson).)
Bolanos asserts, to the contrary, that we should apply the harmless
beyond a reasonable doubt standard of prejudice articulated in Chapman v.
California (1967) 386 U.S. 18, 24 (Chapman). As he contends, the failure to
provide the limiting instruction relieved the prosecutor of its burden of proof
not address this issue in this case. As we discuss next, the prosecutor
requested a limiting instruction on CSAAS testimony, and the People concede
the trial court’s omission of the instruction was error.
5 CALCRIM No. 1193 provides the standard limiting instruction and
states: The expert’s “testimony about child sexual abuse accommodation
syndrome is not evidence that the defendant committed any of the crimes
charged against (him/her). [¶] You may consider this evidence only in
deciding whether or not [the alleged victim’s] conduct was not inconsistent
with the conduct of someone who has been molested, and in evaluating the
believability of (his/her) testimony.”
8
beyond a reasonable doubt, thereby violating his constitutional rights to due
process and a jury trial. However, he does not develop the argument or
provide any authority to support his conclusion.6 At most, he asserts, in a
conclusory fashion, that the jury “undoubtedly used the expert’s testimony as
evidence that appellant committed the charged crimes.” He then oddly relies
on Housley—in which the court applied a Watson standard of prejudice—
without any meaningful explanation as to why a different standard of
prejudice is appropriate in this case. (See Housley, supra, 6 Cal.App.4th at
pp. 958−959 [concluding the failure to provide a limiting instruction on
CSAAS expert testimony was harmless because “it [wa]s not reasonably
probable appellant would have received a more favorable verdict if an
appropriate limiting instruction had been given”].)
We are not persuaded that the failure to provide the limiting
instruction relieved the prosecutor of the appropriate burden of proof, or
otherwise infringed upon Bolanos’s constitutional rights. Accordingly, we
conclude the standard of prejudice articulated in Watson applies. Other
courts have similarly applied the Watson standard of prejudice with respect
to instructional errors involving CALCRIM No. 1193. (See People v. Munch
(2020) 52 Cal.App.5th 464, 474 [applying the Watson standard of prejudice to
a CALCRIM No. 1193 instructional error]; Mateo, supra, 243 Cal.App.4th at
p. 1074 [same]; People v. Bowker (1988) 203 Cal.App.3d 385, 395 [finding
error harmless under Watson].)
6 Bolanos cites People v. Larsen (2012) 205 Cal.App.4th 810, without
discussion, in his reply brief. Larsen does not support his assertion. There,
the court determined the Watson standard of prejudice applied where the
trial court failed to give a mental disorder instruction because the omission
“did not remove from the jury’s consideration or incorrectly define the intent
element of the [underlying] offenses.” (Id. at pp. 829−830.)
9
Regardless, though, we would find the error harmless under either the
Watson or Chapman standard. The purpose of the limiting instruction is to
ensure the jury does not improperly use the expert’s testimony regarding
CSAAS to corroborate the victim’s claims. (Housley, supra, 6 Cal.App.4th at
p. 958.) Here, Dr. Ward directly addressed that concern. She made clear
that she was not there to testify about Jane, that she had not spoken to Jane,
and that she had not reviewed any materials regarding Jane’s case. Instead,
her testimony was appropriately limited to “ ‘victims as a class.’ ” (See Stark,
supra, 213 Cal.App.3d at p. 117.) In addition, Dr. Ward explained that
CSAAS starts with the assumption that the child has been sexually abused
and that it cannot be used as a diagnostic tool to determine whether a
particular child had been abused.
The prosecutor also used Dr. Ward’s testimony in the manner
permitted. In her opening statement, she told the jury they would hear that
Jane did not initially disclose the abuse, but that Dr. Ward would explain
delayed disclosures were quite normal in such cases. In her closing
argument, the prosecutor reiterated that Dr. Ward testified about “dispelling
the myths or misconceptions of disclosure,” and explained how Jane’s stated
reasons for delaying disclosure were consistent with Dr. Ward’s explanation
of CSAAS. Moreover, both the prosecutor and defense counsel reiterated in
closing arguments that CSAAS starts with the assumption that the child was
sexually abused, further reinforcing that Dr. Ward’s testimony was not
proffered as evidence that the abuse actually occurred.
In addition, the trial court provided the jury with the more general
instructions regarding expert witness testimony pursuant to CALCRIM No.
332. The court instructed the jurors that they were not required to accept Dr.
Ward’s opinions as true, that it was up to them to determine the meaning
10
and importance of her opinions, and that they should evaluate the
believability of Dr. Ward in the same manner as any other witness.
CALCRIM No. 332, standing alone, has been found sufficient absent a
request for an additional limiting instruction specific to expert testimony on
CSAAS. (See Mateo, supra, 243 Cal.App.4th at pp. 1073−1074.)
Although the People concede the failure to give the additional limiting
instruction was error here, we consider the jury instructions as a whole when
determining whether there was a likelihood the jury was misled. (People v.
Sattiewhite (2014) 59 Cal.4th 446, 475.) Given the limited scope of Dr.
Ward’s testimony, the limitations placed on that testimony by both counsel’s
arguments, and the more general instruction on expert testimony, we
perceive no reason to doubt that the jury in this case considered the
testimony in an appropriate manner.
Bolanos contends the People’s reliance on Dr. Ward’s testimony to
bolster Jane’s credibility suggests prejudice under either standard. As
explained, though, the People relied on Dr. Ward’s testimony in a manner
consistent with the limiting instruction, that is, to rebut the defense’s
assertion that Jane’s delayed disclosure suggested her allegations were
fabricated. As Bolanos concedes, the court in Housley found the failure to
provide a limiting instruction was “clearly harmless,” primarily, because, as
here, the expert “told the jury she had not met the victim and had no
knowledge of the case” and “[h]er testimony was couched in general terms,
and described behavior common to abused victims as a class, rather than any
individual victim.” (Housley, supra, 6 Cal.App.4th at p. 959.) Although the
court in Housley went on to note that several witnesses explained the victim’s
retraction, that was not an issue here because Jane never retracted her
allegations. (Ibid.)
11
Further still, the evidence of guilt in this case was overwhelming.
Bolanos contends the entire case came down to Jane’s credibility as there
were no direct witnesses to the sexual abuse. To the contrary, the
prosecution presented compelling evidence of Bolanos’s prior sexual abuse of
Janice, from which the jury was entitled to infer that Bolanos “had a
propensity to commit such crimes, which in turn may show that he
committed the charged offenses” involving Jane. (People v. Falsetta (1999) 21
Cal.4th 903, 923; Evid. Code, § 1108.) Bolanos does not challenge the
admissibility of the propensity evidence, and instead asks us to reweigh the
evidence, asserting it was “not particularly relevant” because Janice was not
his daughter and “was not an unwilling participant.” We decline to do so.
Moreover, to the extent credibility was at issue, there was ample basis
for the jury to conclude Bolanos was not a credible witness. As the prosecutor
pointed out, he initially lied to the police about his conduct with Janice and,
even on the stand, continued to dispute what he had already admitted⎯in
both the recorded pretext call that was played for the jury and the stipulation
to his convictions for unlawful sexual intercourse with a minor. Further still,
he contested even trivial details he had previously admitted, such as whether
or not he was an assistant coach on Jane and Janice’s softball team. By
contrast, Jane was consistent and unwavering in her description of the sexual
abuse.
We therefore conclude the trial court’s omission of the limiting
instruction on expert testimony regarding CSAAS was harmless under either
the Watson or Chapman standard.
12
II.
Defense Counsel Did Not Provide Ineffective Assistance of Counsel
Bolanos contends defense counsel rendered ineffective assistance by
failing to object when the prosecutor mischaracterized the standard of
reasonable doubt during her closing argument. The People concede the
prosecutor did err in her explanation of reasonable doubt, but assert defense
counsel’s decision to not object was both tactical and not prejudicial. Again,
we agree with the People’s concession and conclude the error was not
prejudicial.
The prosecutor made the following statements regarding the burden of
proof during her closing argument:
“So my burden is to prove this case beyond a reasonable doubt,
not all possible doubt, not a shadow of a doubt. We’d never leave
if that were the case. Okay. So it’s beyond a reasonable doubt.
Is it reasonable that the defendant had sex with (Janice) -- excuse
me. Is it reasonable that the defendant didn’t have sex with
(Janice)? No.
“The law says you have to look at everything, the totality of the
evidence. You can’t just look at one fact in a vacuum. You have to
look at everything, and it’s not reasonable that he didn’t have sex
with (Janice) – absolutely not. The evidence does not show that.
“Is it reasonable that (Jane) made it up? No. Is it possible?
Sure. But not reasonable when taken into consideration with all
the evidence, the details of what she describes, her age now, her
consistency throughout the years. She’s never wavered. It’s
possible that she made it up, but it’s not reasonable.
“Is it reasonable that the defendant is a child molester?
Absolutely. Absolutely. That is what the evidence shows.”
Defense counsel did not object, but he did address the burden in his own
closing argument moments later. He stated:
13
“Ladies and gentlemen, . . . I’m going to read you the reasonable
doubt instruction. Remember, if one of the elements is not
proved beyond a reasonable doubt, the defendant is entitled to an
acquittal no matter if the other elements are proved. I believe
that’s Number 220. Proof beyond a reasonable doubt -- this is
220 -- leaves you with an abiding conviction that the charge is
true.”
To establish ineffective assistance of counsel, Bolanos must show
defense counsel performed below the standard of reasonableness under
prevailing professional norms and that there is a reasonable probability the
result would have been more favorable to him but for that substandard
performance. (Strickland v. Washington (1984) 466 U.S. 668, 686−688
(Strickland); People v. Mayfield (1993) 5 Cal.4th 142, 199.)
“Ineffective assistance of counsel claims are rarely cognizable on
appeal,” as we give deference to trial counsel’s tactical choices and the record
rarely provides information regarding trial counsel’s strategy. (People v.
Silvey (1997) 58 Cal.App.4th 1320, 1329; Strickland, supra, 466 U.S. at pp.
690−691; People v. Wilson (1992) 3 Cal.4th 926, 936; People v. Lewis (2001) 25
Cal.4th 610, 661 (Lewis) [“Because we accord great deference to trial
counsel’s tactical decisions, counsel’s failure to object rarely provides a basis
for finding incompetence of counsel.”].) Where the record is silent as to
counsel’s motivation, the reviewing court must reject an ineffective assistance
of counsel claim “unless counsel was asked for and failed to provide a
satisfactory explanation, or there simply can be no satisfactory explanation.”
(People v. Scott (1997) 15 Cal.4th 1188, 1212.)
“[T]he decision facing counsel in the midst of trial over whether to
object to comments made by the prosecutor in closing argument is a highly
tactical one.” (People v. Padilla (1995) 11 Cal.4th 891, 942 (Padilla),
overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
14
Objecting during the prosecutor’s argument runs the risk of annoying the
jury or drawing extra attention to the improper argument. (See People v.
Welch (1999) 20 Cal.4th 701, 754 [defense counsel “could reasonably have
determined that the risks of raising the objection and offending or annoying
the jury outweighed whatever benefit might have been obtained from
prosecutorial remarks that were little likely to prejudice his client”]; People v.
Ghent (1987) 43 Cal.3d. 739, 773 [“Counsel may well have tactically assumed
that an objection or request for admonition would simply draw closer
attention to the prosecutor’s isolated comments.”]; People v. Harris (2008) 43
Cal.4th 1269, 1290 [“while requesting an admonition was one tactical option,
counsel could also have decided that objecting would focus the jury’s attention
. . . in ways that would not be helpful to the defense”].)
Here, rather than run those risks, defense counsel made a reasonable
tactical decision to forego the objection and direct the jury to the court’s
explanation of the burden of proof. (See Lewis, supra, 25 Cal.4th at p. 661;
Padilla, supra, 11 Cal.4th at p. 942; People v. Johnsen (2021) 10 Cal.5th
1116, 1162−1163 [concluding defense counsel’s strategic decision to rely on
counterarguments, when possible, was not objectively unreasonable].) We
defer to counsel’s tactical decision and conclude he did not perform below the
standard of reasonableness under prevailing professional norms. Further,
there is not a reasonable probability the result would have been more
favorable to Bolanos if his counsel had objected. (Strickland, supra, 466 U.S.
at p. 694 [“defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would
have been different”].)
Bolanos relies on People v. Centeno (2014) 60 Cal.4th 659 (Centeno) to
assert there was a reasonable probability the prosecutor’s improper argument
15
caused one or more jurors to convict him based on a lower standard of proof.
In Centeno, our Supreme Court concluded it was improper for the prosecutor
to repeatedly suggest “that the jury could find [the] defendant guilty based on
a ‘reasonable’ account of the evidence,” and that defense counsel provided
ineffective assistance of counsel by failing to object. (Id. at pp. 673, 675,
italics omitted.) The Court noted the prosecutor made the improper
statements in her rebuttal argument, such that “defense counsel had no
opportunity to counter it with argument of his own,” and “[h]is only hope of
correcting the misimpression was through a timely objection and admonition
from the court.” (Id. at p. 676.) The Court then went on to further conclude,
“[g]iven the closeness of the case and the lack of any corrective action, there
is a reasonable probability that the prosecutor’s argument caused one or
more jurors to convict defendant based on a lesser standard than proof
beyond a reasonable doubt.” (Id. at p. 677.)
To the contrary, here, the prosecutor’s statements were not made in
rebuttal and defense counsel did take corrective action. Defense counsel
promptly redirected the jury to the appropriate instruction and clarified that,
“[p]roof beyond a reasonable doubt . . . leaves you with an abiding conviction
that the charge is true.” Moreover, as defense counsel’s arguments to the
jury suggest, the trial court instructed the jury regarding the appropriate
burden of proof just before the prosecutor’s closing argument. The court
instructed the jury that:
“We all know by now -- we talked about it a lot -- a defendant in a
criminal case is presumed to be innocent. This presumption
requires that the People prove the defendant guilty beyond a
reasonable doubt. So whenever I tell you the People must prove
something, like the elements of the charges, I mean they must
prove it beyond a reasonable doubt.
16
“Proof beyond a reasonable doubt is proof that leaves you with an
abiding conviction that the charge or charges are true. Evidence
need not eliminate all possible doubt because we know everything
in life is open to some possible or imaginary doubt.
“So in deciding whether the People have proved their case beyond
a reasonable doubt, you should impartially compare and consider
all the evidence that was received throughout the entire trial,
and unless that evidence proves the defendant guilty beyond a
reasonable doubt, he's entitled to an acquittal and you must find
him not guilty.”
Thus, the prosecutor’s single misstatement was bookended by a correct
statement of the prosecutor’s burden of proof from the court and defense
counsel’s reminder to the jury of the court’s instruction. In that context,
there is no reasonable probability the jury in this case convicted Bolanos
based on an incorrect understanding of the burden of proof beyond a
reasonable doubt. (See Centeno, supra, 60 Cal.4th at p. 676; Strickland,
supra, 466 U.S. at pp. 686−688.)
Bolanos further contends the failure to object was prejudicial because
this case was “a credibility contest” and any lessening of the burden of proof
made it easier for the jury to believe Jane’s version of the events. As we have
already discussed, we disagree. The prosecution presented compelling
propensity evidence and, overall, the evidence of guilt was strong. We
therefore conclude Bolanos has not met his burden to establish his trial
counsel provided ineffective assistance of counsel.
III.
The Trial Court Did Not Err by Imposing Fines and Fees
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas),
Bolanos asserts the trial court erred by imposing a $10,000 restitution fine
pursuant to section 1202.4, as well as several other lesser fines and fees,
without holding an ability to pay hearing. We conclude Bolanos forfeited the
17
claim, and, in any event, the trial court did not abuse its discretion in
determining he had the ability to pay the fines and fees it imposed.
In Dueñas, the Court of Appeal held that due process requires the trial
court to hold an ability to pay hearing before imposing fines, fees, or
assessments and that the burden to prove ability to pay is on the prosecution.
(Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1172.) The court further held
that execution of any restitution fine imposed under section 1202.4,
subdivision (b), must be stayed “until and unless” the trial court holds an
ability to pay hearing and the People demonstrate the defendant has the
ability to pay the restitution fine. (Ibid.) But “[o]ther courts, including this
court, have disagreed with Dueñas on these key principles.” (People v. Keene
(2019) 43 Cal.App.5th 861, 863; see, e.g., People v. Cota (2020) 45 Cal.App.5th
786, 795; People v. Allen (2019) 41 Cal.App.5th 312, 326 [“[W]e would adopt
the reasoning of the numerous courts that have rejected Dueñas’s due process
analysis.”]; People v. Hicks (2019) 40 Cal.App.5th 320, 326, review granted
Nov. 26, 2019, S258946; People v. Kopp (2019) 38 Cal.App.5th 47, 93−98
(Kopp), review granted Nov. 13, 2019, S257844.) Our Supreme Court is
currently considering the viability of Dueñas as it pertains to whether a trial
court must consider a criminal defendant’s ability to pay assessed fines and
fees, and if so, which party bears the burden of proof. (Kopp, supra, 38
Cal.App.5th 47, review granted Nov. 13, 2019, S257844.)
However, even before Dueñas, section 1202.4 expressly permitted
challenges to the imposition of a restitution fine in excess of the statutory
minimum of $300 based on the inability to pay. (§ 1202.4, subds. (b)(1), (d);
People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 (Gutierrez); People v.
Lewis (2009) 46 Cal.4th 1255, 1321.) Section 1202.4, subdivision (d) provides,
in relevant part: “In setting the amount of the fine pursuant to subdivision
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(b) in excess of the minimum fine pursuant to paragraph (1) of subdivision (b),
the court shall consider any relevant factors, including, but not limited to, the
defendant’s inability to pay[.]” (Italics added.) The statute also makes clear
that “[a] defendant shall bear the burden of demonstrating [his or her]
inability to pay.” (§ 1202.4, subd. (d).) In cases since Dueñas, courts have
clarified “it is [the defendant’s] burden to make a record below as to their
ability to pay these [fines, fees, and] assessments.” (Kopp, supra, 38
Cal.App.5th at p. 96; People v. Santos (2019) 38 Cal.App.5th 923, 934
(Santos) [“it is the defendant’s burden to demonstrate an inability to pay, not
the prosecution’s burden to show the defendant can pay, as the Dueñas
decision might be read to suggest”]; People v. Frandsen (2019) 33 Cal.App.5th
1126, 1154 [“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.”].)
When a defendant does assert an inability to pay certain fines and fees,
the trial court may consider any relevant factors, including defendant’s
“housing status, mental illness or disability, receipt of government benefits,
and realistic ability to earn prison wages or obtain employment.” (Santos,
supra 38 Cal.App.5th at p. 934.) We review the trial court’s determination
that a defendant does have the ability to pay the fines and fees imposed for
an abuse of discretion. (People v. Lewis, supra, 46 Cal.4th at p. 1321; People
v. Potts (2019) 6 Cal.5th 1012, 1057.)
Here, defense counsel objected to the imposition of the fines and fees,
including the $10,000 restitution fine pursuant to section 1202.4, “because
there was no evaluation of [Bolanos’s] ability to pay.” Defense counsel did not
request a separate hearing and the only factor counsel raised regarding
Bolanos’s ability to pay was that “[h]e’s been incarcerated for a long time.”
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The trial court addressed that concern by indicating the fines and fees “could
be collected from any earnings that he might have during his time in prison
or on parole.” Defense counsel did not pursue the issue further.
Bolanos contends the exchange did not constitute a proper hearing on
his ability to pay. Bolanos relies on Dueñas, in which the court concluded the
trial court has an obligation “to conduct an ability to pay hearing and
ascertain a defendant’s present ability to pay” before imposing certain fines
and fees, but Dueñas does not provide any further details regarding the
structure of the “ability to pay hearing” or otherwise indicate what qualifies
as a “proper” hearing. (See Dueñas, supra, 30 Cal.App.5th at p. 1164.)
Bolanos asserts the court must afford the defendant an opportunity to
present evidence regarding their ability to pay but Bolanos did not raise that
issue or ask for a separate evidentiary hearing in the trial court.
Accordingly, he has forfeited the issue on appeal. (See People v. Scott (1994)
9 Cal.4th 331, 356 (Scott) [“complaints about the manner in which the trial
court exercises its sentencing discretion and articulates its supporting
reasons cannot be raised for the first time on appeal”]; Gutierrez, supra, 35
Cal.App.5th at p. 1033.)
Regardless, we find no abuse of discretion in the trial court’s imposition
of the fines and fees. As the trial court stated, Bolanos had the ability to pay
from earnings he may receive “during his time in prison or on parole.”
Bolanos asserts he will not be able to pay the fines and fees from his prison
wages because prison wages are extremely low. However, his sentence is 16
years and, as the court noted, he can also earn wages after his release,
including while on parole. It is well settled that the trial court may rely on a
defendant’s ability to earn prison wages, even if those wages are low, as well
as the ability to earn additional wages after release, to find the defendant has
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ability to pay fines and fees imposed. (See People v. Hennessey (1995) 37
Cal.App.4th 1830, 1837 [court may consider defendant’s ability to pay in the
future, including “defendant’s ability to obtain prison wages and to earn
money after his release from custody”]; People v. DeFrance (2008) 167
Cal.App.4th 486, 505 [defendant did not show inability to pay $10,000
restitution fine simply because prison wages would make it difficult, it would
take a long time, and the fine might never be paid]; People v. Ramirez (1995)
39 Cal.App.4th 1369, 1377 [a trial court may consider the defendant’s future
ability to pay, including his ability to earn wages while in prison].)
Bolanos further asserts his income at the time of his arrest was not
sufficient to cover the cost of his living expenses and that he, therefore, will
not likely have the ability to pay the fines and fees after his release. Again,
Bolanos forfeited this issue by failing to raise it in the trial court. (See Scott,
supra, 9 Cal.4th at p. 356; Gutierrez, supra, 35 Cal.App.5th at p. 1033.)
Regardless, Bolanos asserts he was earning $14 an hour and his monthly
income was $600 at the time of his arrest, but those numbers suggest he was
only working approximately 43 hours per month. Bolanos could earn
additional wages by simply working additional hours upon his release. In
addition, Bolanos indicated he lived with his parents to provide financial
support to them, and, when asked if he was willing to pay restitution to Jane,
he did not raise any concerns about his ability to do so and, instead, stated,
“ ‘Yes, without a doubt, if she needs my help, I am there for her.’ ”
We therefore conclude the trial court did not abuse its discretion by
imposing the $10,000 restitution fine pursuant to section 1202.4 or any of the
various lesser fines and fees.
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DISPOSITION
The judgment is affirmed.
DO, J.
WE CONCUR:
HALLER, Acting P. J.
GUERRERO, J.
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