People v. Smith CA3

Filed 8/11/21 P. v. Smith CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, C089240
Plaintiff and Respondent, (Super. Ct. No. 17CF04196)
v.
JONATHAN DEWAYNE SMITH,
Defendant and Appellant.
Defendant Jonathan Dewayne Smith assaulted several women as they slept in
2014 and 2017. In 2014, as a house party was winding down, defendant lay down beside
a woman who had fallen asleep on the floor, pulled down her pants, and raped her. A
few years later, in 2017, defendant entered the homes of two other women as they slept,
entered their rooms, and climbed on top of them. But both women promptly awoke and
then convinced defendant, who neither knew, to leave their homes. Based on this
conduct, a jury convicted defendant of one count of raping an unconscious person and
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two counts of burglary. The trial court afterward found true several allegations that
lengthened the sentence for these offenses and then sentenced defendant to over 21 years
in prison.
On appeal, defendant raises four arguments. First, he contends the court wrongly
admitted testimony about a previous burglary that had never been charged. Second, he
asserts the court improperly instructed the jury to consider a witness’s level of certainty
when evaluating the witness’s testimony identifying defendant. He reasons that
psychologists have repeatedly found that a witness’s level of certainty about an
identification is, at best, a weak indicator of accuracy. Third, based on a recent change in
the law, defendant contends we should strike a one-year sentencing enhancement that the
trial court imposed based on his criminal history. And fourth, defendant claims the court
violated his due process rights when it ordered him to pay criminal fees and fines without
first holding a hearing to determine whether he had the ability to pay them.
We agree the challenged sentencing enhancement should be stricken. In all other
respects, we affirm.
BACKGROUND
I
Factual Background
The charges relevant to this appeal concern conduct from various dates in 2014
and 2017.
A. Rape of Jane Doe (Count 1)
In the summer of 2014, Jane Doe went to a party at her friend’s house in Chico.
Doe and her friends played a few drinking games at the house and then left to meet other
friends in downtown Chico, where they met defendant, who went by Ace. After visiting
a few house parties downtown, Doe, defendant, and others returned to Doe’s friend’s
house.
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In the early morning, as the party wound down, some people left and others—
including Doe and defendant—found places to sleep around the house. Doe slept on the
floor and defendant sat on a couch beside a woman who had passed out from drinking.
As others began falling asleep, defendant began rubbing the unconscious woman’s
leg. But another woman, who saw defendant, flashed her cell phone light on him, called
him “nasty,” and told him to move somewhere else. Defendant responded, “I didn’t do
anything,” and then moved to the floor near Doe.
Shortly after, Doe, who was lying on her stomach, awoke to sharp pain. Her pants
had been pulled down and she felt pain inside her vagina caused, she believed, by an
erect penis. She rolled over and saw defendant above her. Shocked and scared, Doe
screamed, kicked defendant, and ran to the backyard. Defendant pulled up his shorts and
said, “Oh, no. She just kicked me in the face. I didn’t try to rape her or nothing.” He
then left the house. Doe’s sister afterward took Doe to the hospital.
B. Burglary of Nicole D. (Count 4)
In August 2017, Nicole D. and a few of her friends were in her living room in
Chico when defendant, who introduced himself as Ace, walked in through the front door.
Defendant claimed he assisted another woman back to the house the week before, but
Nicole did not recognize him and, after becoming uncomfortable with defendant’s
presence, asked him to leave. Defendant complied. Shortly after, however, Nicole
briefly saw defendant peeking in through her living room window.
Later that night, after Nicole had gone to bed, she woke to defendant kissing her
neck. Nicole told him to leave and he complied. Nicole later called the police.
C. Burglary of Christina M. (Count 7)
A couple hours after Nicole told defendant to leave her house, another woman in
Chico, Christina M., was awoken by her bedroom door opening. Believing it was her
roommate’s boyfriend, Christina called out, “Matt?” After a man replied, “yes,”
Christina went back to sleep.
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But shortly after, she awoke with defendant on top of her, his legs straddling her
hips and his hands touching her “lower area.” As defendant tried to kiss her, Christina
told him to get off. At first, she believed defendant was someone she knew. But after
she grabbed her cell phone and turned on its light, she saw a man she had never seen
before. Scared now, she again asked defendant to get off her and leave. But rather than
leave, defendant asked if she wanted to use cocaine and hang out. Christina again asked
defendant to leave but he ignored her request. Eventually, after Christina woke up her
roommate and repeatedly asked him to leave, defendant finally left the house. Christina
and her roommate later woke their house manager, who called the police.
D. Burglary Involving Laptop Theft (Count 3)
In August 2017, Matthew Suttles, who was sitting on the porch of a friend’s house
waiting for the friend to return home, heard footsteps along the side of the house and
shortly after saw defendant round the corner of the house holding a laptop. Given
defendant’s location, Suttles believed that defendant must have come from inside the
house. After Suttles asked defendant what he was doing, defendant dropped the laptop
and walked away. Suttles retrieved the laptop—which he identified as his friend’s laptop
based on its distinctive stickers—and then noticed an open window along the side of the
house.
Suttles, a moment later, remembered defendant’s face from an earlier incident
involving the theft of his own laptop. A few months before, in April 2017, Suttles had
returned to his apartment to find his laptop missing and a cell phone on the floor. He
called the police and turned over the cell phone. A few months later, after Suttles
claimed the phone, the police returned the phone to Suttles. Suttles afterward learned the
number for the phone, entered it into Facebook, and connected the number to defendant’s
Facebook page.
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II
Procedural Background
In a consolidated information, as relevant here, the prosecution charged defendant
with one count of raping an unconscious person (Pen. Code, § 261, subd. (a)(4)—
count 1)1 and three counts of burglary (§ 459—counts 3, 4, & 7). For the first burglary
count (count 3), the prosecution proceeded on the theory that defendant entered the home
in that count to commit a theft; and for the remaining burglary counts (counts 4 & 7), the
prosecution proceeded on the theory that defendant entered the two homes in those
counts with the intent of raping an unconscious person. (See § 459 [any person who
enters a house (and certain other spaces) “with intent to commit grand or petit larceny or
any felony is guilty of burglary”].) For all counts other than count 1, the information
further alleged that defendant had a prior strike conviction (§§ 667, subds. (b)-(j),
1170.12), had served a prior prison term (§ 667.5, subd. (b)), and had previously been
convicted of a serious felony (§ 667, subd. (a)(1)).
Following trial, a jury found defendant guilty on counts 1, 4, and 7, and not guilty
on the remaining counts, including count 3. The trial court afterward, following a bench
trial, found true the allegations that defendant had a prior strike conviction, had served a
prior prison term, and had previously been convicted of a serious felony.
The court sentenced defendant to a total of 21 years eight months in prison. For
count 4 (burglary of Nicole), the court sentenced him to the upper term of six years,
doubled based on his prior strike conviction, for a total of 12 years. For count 1 (rape of
Jane Doe), the court sentenced him to one-third the middle term of six years for a total of
two years. And for count 7 (burglary of Christina), the court sentenced him to one-third
the middle term of four years, doubled based on his prior strike conviction, for a total of
1 Undesignated statutory references are to the Penal Code.
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two years eight months. Finally, the court sentenced defendant to five additional years in
prison based on his prior serious felony and one additional year in prison because he had
served a prior prison term. The court, however, stayed execution of the one-year
enhancement.
Defendant timely appealed.
DISCUSSION
I
Admission of Uncharged Burglary
Defendant first, for two reasons, contends the trial court abused its discretion in
allowing the prosecution to present evidence of an uncharged burglary—that is, a
burglary for which there was testimony but that was not charged in this case.
Before turning to his specific contentions, we start with some additional
background. Defendant’s argument here concerns the testimony of Matthew Suttles.
Before Suttles testified, the prosecutor told the court that he would testify about count
3—which, again, involved the theft of the laptop from Suttles’s friend’s house. But
Suttles, the prosecution added, would also testify that he recognized defendant from an
earlier incident involving the theft of his own laptop—which relates to the uncharged
burglary. A few months before Suttles encountered defendant at the friend’s house,
Suttles returned to his apartment to find his laptop missing and a cell phone on the floor.
He called the police, turned over the cell phone, and, a few months later, the police
returned the phone to Suttles. Suttles afterward learned the number for the phone,
entered it into Facebook, and then connected the number to defendant’s Facebook page—
which later allowed him to recognize defendant during the encounter at his friend’s
house.
Although defendant objected to the testimony concerning the theft of Suttles’s
laptop, calling it prejudicial and confusing, the trial court ultimately allowed it. It
reasoned that the testimony about the uncharged burglary was admissible under Evidence
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Code section 1101, which allows the introduction of a defendant’s uncharged offenses
“when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan,
knowledge, identity, [or] absence of mistake or accident . . .) other than his or her
disposition to commit such an act.” (Evid. Code, § 1101, subd. (b).) In the court’s view,
the testimony about the uncharged burglary was relevant to show identity, a common
scheme, and intent. The court further found it inappropriate to exclude the testimony
under Evidence Code section 352, which allows courts to exclude evidence if its
probative value is substantially outweighed by the probability that its admission would
“(a) necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.” Suttles afterward testified
as anticipated.
Following Suttles’s testimony, in closing arguments, the prosecutor contended the
uncharged burglary was relevant to show Suttles’s ability to accurately identify
defendant. In particular, she argued, Suttles already “knew who [defendant] was,” and so
was able to identify him during the burglary charged in count 3, “because a few months
prior his house ha[d] been broken into, his laptop was stolen, and he found a phone” that
had a number associated with defendant’s Facebook page. Consistent with the
prosecutor’s closing arguments, the court’s jury instructions also focused on the potential
relevance of the uncharged burglary to the issue of identity. The court instructed the jury:
“If you decide that the defendant committed the offenses, you may, but are not required
to, consider that evidence [concerning the uncharged burglary] for the limited purpose of
deciding whether” the “defendant was the person who committed the offenses alleged in
this case.”
With that background, we turn to defendant’s two contentions. First, defendant
asserts, the evidence of the uncharged burglary “had no tendency in reason to prove [his]
‘motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or
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accident’ to commit” the burglary charged in count 3 or any of the other charged
offenses. We disagree.
Evidence Code section 1101, subdivision (a) generally bars admission of evidence
of a defendant’s other acts or offenses to prove the defendant’s “conduct on a specified
occasion.” So, for example, a prosecutor seeking to persuade a jury that a defendant
committed theft on one “specified occasion” generally cannot introduce evidence that the
defendant was convicted of theft in the past. Evidence section 1101, subdivision (b)
however, “provides a limited basis for admission” of this type of evidence. (People v.
Williams (1988) 44 Cal.3d 883, 904.) As relevant here, it allows the introduction of a
defendant’s uncharged offenses “when relevant to prove some fact (such as motive,
opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or
accident . . .) other than his or her disposition to commit such an act.” (Evid. Code, §
1101, subd. (b).)
In this case, our focus is on the issue of identity. Although, again, the trial court
initially found the uncharged burglary relevant to show identity, intent, and a common
scheme, the prosecutor ultimately only relied on the uncharged burglary to show identity
and the court, similarly, only instructed on the issue of identity. We thus limit our
discussion to that topic.
The general standard for evaluating the relevance of other crimes’ evidence to
show identity—a standard that both parties focus on—is well established. “To be
relevant on the issue of identity,” courts have long explained, “the uncharged crimes must
be highly similar to the charged offenses. [Citation.]” (People v. Kipp (1998) 18 Cal.4th
349, 369.) In particular, the charged and uncharged offenses must be so similar that they
“display a ‘ “pattern and characteristics . . . so unusual and distinctive as to be like a
signature.” ’ [Citation.]” (Id. at p. 370.) The charged and uncharged offenses, in other
words, must be similar enough “to support the inference that the same person committed
both acts.” (People v. Ewoldt (1994) 7 Cal.4th 380, 403.)
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But although both parties look to this standard for evaluating the admission of the
uncharged burglary here, we find it a poor fit for our facts. In general, we agree, “the
uncharged crimes must be highly similar to the charged offenses” to establish relevance
on the issue of identity. (People v. Kipp, supra, 18 Cal.4th at p. 369.) That is because, in
these types of cases, courts are generally considering whether the charged and uncharged
offenses disclose a distinctive modus operandi that supports “a strong inference that the
defendant committed both crimes. [Citations.]” (People v. Bradford (1997) 15 Cal.4th
1229, 1316.) But the prosecutor’s theory of admissibility in this case did not turn on any
distinctive modus operandi. The prosecutor did not, for example, allege that the peculiar
characteristics of the uncharged burglary tended to show that defendant, and not some
other person, committed the burglary charged in count 3. She instead alleged that the
facts surrounding the uncharged burglary tended to show that Suttles could accurately
identify defendant. In particular, the prosecutor alleged, these facts tended to show that
Suttles already “knew who [defendant] was” and so could identify him at the scene of the
charged burglary.
Our facts, in this respect, have little to do with the typical case involving an
uncharged act admitted to prove identity. And on our somewhat usual facts—involving a
witness who was able to identify a defendant in the act of committing a crime on one
occasion because, on a prior occasion, the defendant committed a similar crime against
the witness—the test for admissibility is quite different. The California Supreme Court’s
decision in People v. Beamon (1973) 8 Cal.3d 625 (Beamon) demonstrates the point. The
defendant in that case pulled a gun on the driver of a delivery truck and took his truck.
“After the truck had been driven a few blocks [the witness] looked up at the [defendant].
Eighteen months earlier he had suffered a similar highjacking and he now recognized
[the] defendant as the person who had been tried for and acquitted of criminal charges
filed in connection therewith.” (Id. at p. 630.) After the defendant was charged for the
second truck robbery, the driver testified at trial about both the second robbery and the
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first robbery that had occurred some 18 months earlier. (Id. at p. 632.) On appeal, the
defendant contended the trial court wrongly admitted evidence of this prior wrongful
conduct. (Ibid.) But the California Supreme Court disagreed. The driver’s identification
of the defendant, the court explained, was “materially buttressed by evidence that the
victim was familiar with and able to recognize defendant because of observations made at
a time prior to the kidnaping and robbery. Evidence of the circumstances which made it
possible for the victim to identify defendant, although it disclosed a prior highjacking,
was thus relevant to establish the credibility of the identification.” (Ibid.)
The court in People v. Ellers (1980) 108 Cal.App.3d 943 (Ellers) reasoned
similarly. An informant in that case, working with the police, purchased heroin from a
drug dealer and then identified the defendant as the dealer. (Id. at p. 948.) In part to
bolster the informant’s identification, the informant at trial “testified he had known [the
defendant] for about ten years and had purchased heroin from him during those years.”
(Id. at pp. 952-953.) On appeal, the defendant contended the trial court wrongly admitted
evidence of these prior heroin sales. But the court disagreed, reasoning in part that “this
evidence was probative as to whether the informant indeed knew the identity of the man
who sold him the heroin.” (Id. at p. 953.)
We find similarly here. The prosecution, again, sought to introduce Suttles’s
testimony about the uncharged burglary to prove some fact other than his disposition to
commit burglaries—namely, to prove that Suttles could ably identify defendant based on
his past familiarity with defendant. Considering Beamon and Ellers, we conclude that the
court did not abuse its discretion in agreeing that Suttles’s testimony about the uncharged
burglary was admissible for this reason. To use the Beamon court’s language, Suttles’s
identification of defendant “is materially buttressed by evidence that [Suttles] was
familiar with and able to recognize [defendant] because of observations made at a time
prior to the [charged burglary]. Evidence of the circumstances which made it possible for
[Suttles] to identify [defendant], although it disclosed a prior [burglary], was thus
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relevant to establish the credibility of the identification.” (Beamon, supra, 8 Cal.3d at p.
632.)
Defendant next contends that, even if the uncharged burglary had some relevance,
“the court nonetheless erred by admitting the evidence because the weak probative value
was far outweighed by the powerful prejudice this negative character evidence had on
[defendant].” We reject this argument too.
Again, under Evidence Code section 352, evidence may be excluded if its
probative value is substantially outweighed by the probability that its admission would
“(a) necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.” We decline, however, to
find that the trial court abused its discretion in admitting Suttles’s testimony. Suttles’s
testimony about the uncharged burglary was clearly relevant to establish the credibility of
his identification of defendant—a critical issue for count 3. And although this testimony
was prejudicial to defendant to an extent—just as is true of all evidence of uncharged
offenses—we decline to find that it was unduly prejudicial. The testimony about the
uncharged burglary was brief (covering less than 10 pages of the transcript), required no
additional witnesses, and concerned a crime no more inflammatory than the burglary
charged in count 3. Considering these facts and viewing the evidence in the light most
favorable to the trial court’s ruling, we find no abuse of discretion.
II
Jury Instructions on Eyewitness Testimony
Defendant next takes issue with the trial court’s instructing the jury about
eyewitness testimony using CALCRIM No. 315. That instruction states: “You have
heard eyewitness testimony identifying the defendant. As with any other witness, you
must decide whether an eyewitness gave truthful and accurate testimony.” It then
instructs the jury, when “evaluating identification testimony,” to consider various
questions, including the following question: “How certain was the witness when he or
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she made an identification?” Taking issue with this instruction, defendant contends
“[e]volving case law and scientific research support the rejection of witness certainty as a
valid factor in evaluating eyewitness identification. The trial court’s instruction thus
authorized [defendant’s] conviction based upon unreliable evidence [that witness
certainty equals accuracy], in violation of his federal constitutional right to due process.”
Although we acknowledge that this instruction could mislead jurors, we find no violation
of defendant’s due process rights.
At the time of defendant’s trial, California Supreme Court precedent “specifically
approved” of a similar jury instruction on witness certainty. (People v. Sanchez (2016)
63 Cal.4th 411, 462.) But since then, the court has “acknowledg[ed] that this form of
instruction has the potential to mislead jurors.” (People v. Lemcke (2021) 11 Cal.5th 644(Lemcke).) The court reasoned that jurors often assume that a certain identification is
more likely to be accurate, an assumption that CALCRIM No. 315 tends to reinforce,
even though “[t]here is near unanimity in the empirical research that ‘ “ ‘under most
circumstances, witness confidence or certainty is not a good indicator of identification
accuracy.” ’ [Citations.]” (Lemcke, at pp. 665-666.)
But although, for these reasons, we acknowledge that CALCRIM No. 315 has the
potential to mislead jurors, we reject defendant’s contention that this instruction
“permitted the jury to base its verdict upon unreliable evidence that witness certainty
equals accuracy.” As the court in Lemcke explained in rejecting a similar challenge, “the
instruction does not direct the jury that ‘certainty equals accuracy.’ [Citation.] Nor does
the instruction state that the jury must presume an identification is accurate if the
eyewitness has expressed certainty. [Citation.] Instead, the instruction merely lists the
witness’s level of certainty at the time of identification as one of 15 different factors that
the jury should consider when evaluating the credibility and accuracy of eyewitness
testimony. The instruction leaves the jury to decide whether the witness expressed a
credible claim of certainty and what weight, if any, should be placed on that certainty in
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relation to the numerous other factors listed in CALCRIM No. 315.” (Lemcke, supra, 11
Cal.5th at p. 657.) As the Lemcke court also noted, another standard jury instruction,
which was offered here, further emphasizes the jury’s role in evaluating witness
credibility and deciding the weight of witness testimony, explaining that “[p]eople
sometimes honestly . . . make mistakes about what they remember” and that jurors are
responsible for “judg[ing] the credibility or believability of the witnesses.” (See id. at p.
659.)
Considering the jury instructions as a whole, together with the Lemcke court’s
construction of CALCRIM No. 315, we reject defendant’s contention that CALCRIM
No. 315 “permitted the jury to base its verdict upon unreliable evidence that witness
certainty equals accuracy.” (See Lemcke, supra, 11 Cal.5th at p. 661.) The instruction,
as discussed, has its shortcomings. But “ ‘ “not every ambiguity, inconsistency, or
deficiency in a jury instruction rises to the level of a due process violation. The question
is ‘ “whether the ailing instruction . . . so infected the entire trial that the resulting
conviction violates due process.” ’ ” ’ [Citation.]” (Id. at p. 655.) Because defendant has
not made this showing, we reject his argument.
III
One-Year Sentencing Enhancement
Defendant next contends we should strike his one-year prison enhancement
premised on section 667.5, subdivision (b). Again, the trial court imposed, but then
stayed, a one-year prison enhancement for defendant’s prior prison term. But according
to defendant, the one-year enhancement must be stricken for two reasons. First, he
asserts, the court had no authority to stay the enhancement. It either had to impose or
strike the enhancement, and, defendant argues, we should find that the court intended to
strike, not merely stay, the enhancement here. Second, he asserts, a recent amendment to
section 667.5, subdivision (b) applies retroactively and requires us to strike the
enhancement. We agree with his latter argument.
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At the time of sentencing, section 667.5, subdivision (b) required courts that were
sentencing a defendant to prison on a “new offense” to impose an additional year in
prison if the defendant “ ‘(1) was previously convicted of a felony; (2) was imprisoned as
a result of that conviction; (3) completed that term of imprisonment; and (4) did not
remain free for five years of both prison custody and the commission of a new offense
resulting in a felony conviction.’ [Citation.]” (People v. Buycks (2018) 5 Cal.5th 857,
889.) But following defendant’s sentencing, with the passage of Senate Bill No. 136, the
Legislature amended section 667.5, subdivision (b) to limit application of this sentencing
enhancement. No longer does it apply for all prison priors. It instead now applies only
for prison priors for “sexually violent offense[s] as defined in subdivision (b) of Section
6600 of the Welfare and Institutions Code.” (Stats. 2019, ch. 590, § 1.)
As both parties agree, had defendant been sentenced today, the court could not
have imposed the one-year enhancement under section 667.5, subdivision (b), because his
prison prior was not for a sexually violent offense. And as both parties further agree,
because the judgment in this case is not yet final, defendant is entitled to the benefit of
this statutory amendment retroactively. (See People v. Reneaux (2020) 50 Cal.App.5th
852, 876 [“Because [Senate Bill No.] 136 became effective before defendant’s judgment
became final, we agree with the parties that the amended law applies to him
retroactively”].) We thus strike the prison enhancement imposed under section 667.5,
subdivision (b).
IV
Fees and Fines
Finally, defendant contends the trial court violated his due process rights and
imposed excessive fines when it ordered him to pay criminal fees and fines without first
holding a hearing to determine whether he had the ability to pay them.
Defendant’s argument relies on the Second District Court of Appeal’s decision in
People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). The court there considered
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whether the due process clauses of the state and federal Constitutions limited a trial
court’s ability to impose assessments and fines on indigent defendants. It found they did.
According to the court, “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 Penal Code section 1465.8 and
Government Code section 70373.” (Id. at p. 1164.) And, the court went on, although a
statute imposing restitution fines (§ 1202.4) largely “bars consideration of a defendant’s
ability to pay . . ., 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.” (Dueñas, at p. 1164.) A
few months later, the same court that authored Dueñas clarified its ruling. Although in
Dueñas it indicated that a trial court must always conduct an ability to pay hearing before
imposing fees and fines, the same panel later clarified that a court must hold this hearing
only if the defendant first raises the issue. (People v. Castellano (2019) 33 Cal.App.5th
485, 490-491.)
Relying on Dueñas, defendant contends the trial court here violated his due
process rights in imposing fees and fines without first considering his ability to pay. As
he notes, the trial court ordered him to pay various fees and fines, including, for example,
a $300 restitution fine (§ 1202.4, subd. (b)), a $120 court security fee (§ 1465.8, $40 per
count), and a $90 conviction assessment fee (Gov. Code, § 70373, $30 per count). But
the court never held a hearing to determine if defendant could pay these amounts, and,
relying on Dueñas, defendant now takes issue with the court’s failure to do so.
Without needing to address the merits of Dueñas, we find defendant forfeited his
argument. Defendant was sentenced in March 2020, several months after the publication
of Dueñas. But even with the benefit of Dueñas’s reasoning, defendant never attempted
to argue that he lacked the ability to pay the imposed fees and fines at the trial level.
Although defendant contends this should not matter, reasoning that the prosecution had
15
the burden to prove his ability to pay, not the other way around, we find differently.
Consistent with most courts that have considered this issue, we find defendants have the
“burden to make a record below as to their ability to pay these assessments.” (People v.
Kopp (2019) 38 Cal.App.5th 47, 96, rev. granted Nov. 13, 2019, S257844; see also
People v. Castellano, supra, 33 Cal.App.5th at p. 490 [“Consistent with Dueñas, a
defendant must in the first instance contest in the trial court his or her ability to pay the
fines, fees and assessments to be imposed and at a hearing present evidence of his or her
inability to pay the amounts contemplated by the trial court.”].) A defendant, after all, is
clearly the best source of information about his or her own ability to pay a penalty, and so
“[i]t should be incumbent upon the defendant to affirmatively argue against application of
the fine and demonstrate why it should not be imposed.” (See People v. McMahan
(1992) 3 Cal.App.4th 740, 749-750 [“the most knowledgeable person regarding the
defendant’s ability to pay would be the defendant himself”].)
Those considerations in mind, because defendant failed to object at the trial level,
we find he forfeited his objection to the imposed fees and fines. (See People v. Nelson
(2011) 51 Cal.4th 198, 227 [the defendant forfeited his objection to a $10,000 restitution
fine based on “his ability to pay” by “failing to object at his sentencing hearing”].)
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DISPOSITION
The judgment is modified to strike the stayed one-year enhancement under section
667.5, subdivision (b). The trial court is directed to prepare an amended abstract of
judgment and to forward a certified copy to the Department of Corrections and
Rehabilitation. As modified, the judgment is affirmed.
/s/
BLEASE, Acting P. J.
We concur:
/s/
MURRAY, J.
/s/
KRAUSE, J.
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