Filed 1/16/20 P. v. West 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

JERRY WEST, JR.,

Defendant and Appellant.

C084521

(Super. Ct. No. 15F05919)

Over a three-week period in 2015, defendant Jerry West, Jr., robbed and sexually assaulted several women in the Sacramento area using a gun or threats of violence. After the trial court denied defendant’s pretrial motion to sever the charged crimes, a jury found defendant guilty of multiple robbery, assault, and forcible and attempted forcible oral copulation offenses, and found true several associated firearm enhancements. He was sentenced to an aggregate determinate term of 115 years in state prison, plus an indeterminate term of 331 years to life.

On appeal, defendant contends that (1) the court abused its discretion in denying his motion to sever the charged crimes and try them separately; (2) he was denied effective assistance of counsel because his attorney failed to move to suppress one victim’s identification from an allegedly unconstitutionally suggestive field showup; (3) the matter must be remanded for resentencing to allow the trial court to exercise newly granted discretion to strike the firearm enhancements and the prior serious felony enhancements; (4) imposing the mandatory court operations and court facilities assessments without first determining his ability to pay violated his constitutional due process rights; and (5) the abstract of judgment incorrectly reflects the restitution fine orally imposed by the court. During our review, we also discovered that the abstract of judgment misidentifies the statutory basis for the firearm use enhancement found true in connection with count six.

We conclude the trial court did not abuse its discretion in denying severance, nor was defendant prejudiced by counsel’s failure to move to suppress the field showup identification. We also disagree that the trial court violated defendant’s due process rights by imposing mandatory assessments without determining his ability to pay. We will remand, however, to permit the court to decide whether to exercise its discretion to strike the firearm and prior serious felony enhancements. We shall further direct the court to correct the abstract of judgment to reflect the imposed restitution fine and the proper statutory basis for the firearm use enhancement on count six.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Sexual Assault and Robbery of G.W. (Counts One through Three)

In the early morning hours on August 31, 2015, G.W. parked her car outside a gated apartment complex in Sacramento where she lived with her mother. While gathering her things, she heard a “hard tap” on her driver’s side window. She looked over and saw an African-American man with a dark complexion wearing a red hooded sweatshirt with a red bandana covering his face; only the area around his eyes was visible. The man pointed a black semiautomatic handgun at her. He asked if she was “out there making some money” as a prostitute, called her a bitch, and ordered her out of the car.

G.W. opened the car door and the man put the gun to her forehead. The man demanded her cell phone. After she retrieved the phone, he rubbed her vaginal area over her clothing. He then said in a serious and aggressive tone, “[S]uck my dick, bitch right now or I’ll blow your brains out.” As he held the gun to her throat, he forced her to orally copulate him and swallow his ejaculate. The man then ordered G.W. out of the car, told her to tell her mother what happened, and drove away in her car.

G.W. ran to her mother’s apartment and her brother called police. G.W., her mother, and her brother then drove her mother’s car in the direction the man had taken G.W.’s car. They found her car parked around the corner at a nearby church.

While looking for her car, G.W. spoke with the 911 dispatcher; the recorded call was played for the jury. G.W. described the man as in his 20’s, with a medium build, and about five feet five inches or five feet six inches tall. She said she did not know who assaulted her. In the background, G.W.’s mother “told [G.W.] to stay away from him,” and said she “[did not] like him.” At trial, G.W. explained that she understood her mother to be referring to a man named Anthony. She denied that Anthony had sexually assaulted her.

Officers responded to where G.W. located her car, and Sacramento County Sheriff’s Deputy Robert Puga interviewed G.W. She reported that her attacker was an African-American man in his 20’s, who wore a red jacket with a hood, which had white writing or a logo on the back, and a red bandana covering his face. She described him as about five feet six inches tall and 160 pounds.

Sacramento County Sheriff’s Deputy Heather Emmons collected DNA buccal cheek swabs from G.W. at the scene. She also processed G.W.’s car for fingerprint evidence, and obtained multiple prints from the car. DNA testing revealed sperm cells on all four swabs taken from G.W.’s mouth, which matched defendant’s DNA with a random correspondence occurring only once in 96 sextillion of the African-American population.

During a subsequent interview with police, G.W. was shown a photographic lineup. She was unable to identify her attacker in the lineup, although she did recognize a man that lived in her apartment complex. While viewing the photographic lineup, she tried to focus on the men’s eyes. In a second photographic lineup, which contained defendant’s picture, G.W. was unable to identify a suspect. At trial, G.W. said she recognized defendant’s eyes.

B. The Sexual Assault, Assaults With a Deadly Weapon, and Robberies of T.C.

and J.A. (Counts Four through Nine)

Approximately three weeks after the attack on G.W., roommates T.C. and J.A. were sexually assaulted and robbed by an African-American man in a red shirt with a black semiautomatic handgun.

Sometime after 1:00 a.m. on September 22, 2015, T.C. and J.A. arrived at their apartment complex in the North Highlands area of Sacramento. J.A. pulled into an open parking spot, and T.C. opened the passenger door to throw out some trash in a nearby garbage can. As T.C. turned to get out of the car, she noticed a man approaching with a black or black and gray handgun. According to T.C., he was a dark-complected African-American man in his mid-20’s with a medium build and short hair; he was about five feet five inches or five feet six inches tall and wore a red shirt with writing on it, and may have been wearing a red and black hat. J.A. gave a similar description at trial of their attacker: an African-American male with a dark complexion wearing a red shirt, dark pants, with minimal facial hair; he was about five feet eight inches tall and in his 20’s.

T.C. told J.A. that the man had a gun, and she remained in the car and shut the passenger door. The man opened the door and pointed the gun at T.C.’s head, touching her right temple with the gun. T.C. put her hands up and the man demanded money and “stuff.” When J.A. asked, “[W]hat stuff?” the man leaned over T.C. and hit J.A. in the head with the gun, telling her he would blow her head off. J.A. pushed the gun away from her face and the man beat her with it, yelling, “[Bitch] don’t touch my [fucking] gun.” The force of the blows cut J.A.’s head near the top of her left ear and injured her wrist.

The women eventually gave the man their purses, which he threw on the ground beside the car. The man then demanded their phones and accused them of being “ho’s” or prostitutes in the neighborhood; he called them “bitches.” When T.C. told him she did not have a phone, he reached in the pocket of her shorts. He mentioned something about being from Oak Park, and then reached underneath her shorts and touched her vagina. He again leaned over T.C. to J.A. and rubbed J.A.’s vagina as well. When J.A. tried to look at him, he hit her in the head with the gun and said, “[Bitch], don’t you ever [fuckin’] look at me. I will kill you.”

The man then grabbed T.C. by her hair and tried to push her face towards his groin area while he fumbled with his pants. His exposed penis touched her lips, although she was able to keep her mouth shut. According to J.A., the man told T.C. to “suck his dick.”

At that point, the man started to fall backwards towards the ground. He pulled T.C. with him, and she ended up halfway out of the car, leaning against him. J.A. crawled from the driver’s side to the passenger side of the car and exited the vehicle. J.A. jumped on the man, trying to wrestle the gun away from him. While both of her hands were on the gun, she and the man struggled on the grass. She felt him pull the trigger twice and heard two shots go past her head.

Meanwhile, T.C. picked herself up from the ground and heard a loud boom, which she assumed was gunfire. She turned and saw J.A. wrestling with the man on the ground. T.C. grabbed the man, and screamed for help. J.A. gained control of the gun and ran away from the man. The man began chasing her. She fired the gun towards the man, but the gun jammed. She yelled for help. Several people emerged from the apartment complex, and the man picked up their purses from the ground and ran off.

Officers arrived a short time later. They found the car’s rear passenger window and rear windshield had holes in them. The rear windshield was bowed outward and a layer of “glass dust” covered the trunk area. The black semiautomatic handgun J.A. had taken from the man had a magazine containing two live rounds, and a spent casing was jammed backwards in the gun’s chamber, which rendered the gun inoperable.

Deputy Emmons processed the victims’ car for potential fingerprints or DNA evidence. Emmons also collected DNA samples from T.C. and J.A. DNA samples also were collected from the gun, its magazine, and the two live ammunition rounds. Testing revealed that defendant was a major contributor to a DNA mixture found on the magazine; the expected frequency of that DNA profile in the African-American population was one in 58 billion of unrelated persons. T.C. was included as a minor contributor and J.A. was excluded as a contributor. The DNA expert was unable to obtain a DNA profile from the two live rounds collected at the scene. For the gun, only a very small amount of DNA material was collected; one sample was inconclusive and another sample included both victims as possible contributors but excluded defendant as a possible contributor. Neither T.C. nor J.A. could positively identify defendant in either a photographic or live lineup.

C. The Sexual Assault and Robbery of E.W. (Counts 10 through 13)

Three days after the attack on T.C. and J.A., E.W. was sexually assaulted and robbed by an African-American man in a red shirt; the man did not have a gun.

Around 10:00 p.m. on September 25, 2015, E.W. left her home in Sacramento to walk to her friend’s house nearby. On the way, she saw an African-American man, approximately five feet six inches or five feet seven inches tall, with short hair. He was wearing a red shirt with some type of logo and baggy jeans.

The man was walking in the same direction as E.W., but across the street. As they walked, she noticed that the man matched her walking pace. They both turned on the same street and the man passed her. She eventually lost sight of him. E.W. stopped to text her friend that she was a few minutes away. She felt a man come up behind her and forcefully place his arm around her neck, covering her mouth. He told her not to say anything, and took her iPhone and purse.

The man asked E.W. whether she had any money or jewelry. She said no, but offered to give him her debit and credit cards and personal identification numbers. He responded, “[T]his is very bad for you,” and told her if she screamed, he would kill her.

The man forced E.W. towards a nearby park. The area was dark. They stopped under a grove of trees, and the man put his hand in her bra. He grabbed her buttocks and commented that he “love[d] white bitches.” The man instructed her to turn around, but not to look at him. At trial, E.W. testified that although she did not look at his face, she noticed he wore a red shirt with white writing on it. He then told her to “put your mouth on me. You know what to do.”

The man loosened his grip as E.W. turned towards him. He attempted to push her down on her knees, and again told her to put her mouth on him; she understood him to mean put her mouth on his genitals. As she was going down on her knees, she twisted away from him and ran away screaming for help. She left all her personal belongings behind, including her purse and phone. The man ran in the opposite direction.

E.W.’s parents lived nearby and she ran to their house. After telling them what happened, they walked her back to her house to call the police. Along the way, they stopped at the park and E.W. showed them where she had been accosted. They looked for her iPhone and purse, but the items were gone.

When they returned to her house approximately 30 minutes later, E.W. used an application on her iPad to track her cell phone. According to the tracking application, her phone was moving. She called 911 and reported that she was attacked by a medium-built, dark-complected African-American man who was about five feet five inches tall and in his mid-20’s. She said the man wore a red shirt that possibly had a logo on it, but, unlike her subsequent trial testimony, she did not mention anything about white writing on the shirt. E.W.’s 911 call was played for the jury.

Officers arrived at E.W.’s home a short time later and tracked her phone to a Sacramento light rail station. When officers arrived at the light rail station, they located defendant. He was the only person on the platform, and he matched the description of the suspect; he had on a red shirt and baggy jeans.

Video surveillance from the light rail station showed defendant throwing something white in a planter as officers arrived. Defendant was detained and searched. In defendant’s pants pockets, officers found a check with E.W.’s name, several plastic bags of marijuana, a baggy of aspirin, and a woman’s watch. E.W.’s iPhone was located in a nearby planter, a small purse containing her identification cards that she kept in her larger purse was found near another planter, and pepper spray was found close by on the ground.

Sacramento Police Officer Amber Hawley escorted E.W. and her mother to the light rail station to conduct a field showup with defendant. E.W. told Officer Hawley that she could identify the man who accosted her based on his clothing.

Before conducting the field showup, Officer Hawley read the language on the standard, police-issued “Field Show Up Admonition” card to E.W. E.W. was admonished: (1) You will be asked to view a person who has been contacted by the police; (2) The person you are going to view may or may not be the subject you observed commit the crime; (3) You are under no obligation to identify the person. If you identify the person as the subject you saw commit the crime, you will not be told if it is the person who is suspected of committing the crime; (4) Please keep an open mind when viewing the person and explain to the officer why or why not the person is the suspect; (5) Please do not take into consideration if the person is handcuffed or removed from a police vehicle; and (6) Please do not discuss the field showup with any other people.

Defendant was taken from a police car in handcuffs and shown to E.W. as she remained in Officer Hawley’s patrol car. He was about 15 feet away and in a well-lit area. She recognized defendant as the man she had seen walking and who had grabbed her from behind. She said she immediately recognized his baggy jeans and the red shirt with white writing on it; she also recognized that he was a little taller than her (she was five feet five inches tall) and that he was African-American with short hair. She and her mother did not speak during the identification, although they did talk before and after E.W. was shown defendant.

At trial, E.W. testified that while waiting in the back of the police car to view defendant, she was shown various pieces of property and asked whether any of the items were hers. Officer Hawley, however, testified that E.W. viewed defendant before she was shown any recovered items. According to Officer Hawley, E.W. was very emotional during the field showup.

E.W. recognized her iPhone and white phone case, pepper spray, as well as her wallet, driver’s license, credit cards, and a medical marijuana card. She also recognized a bag of medical marijuana, Advil, a watch, and a check paystub as items that were in her purse when it was taken.

When shown a photograph of defendant at trial taken on the night he was detained, E.W. identified him as her attacker. She conceded, however, that the writing on his red shirt was gray not white.

D. The Charges

Defendant was charged with committing 13 felonies against the four victims: forcible oral copulation (Pen. Code, former § 288a, subd. (c)(2), counts one & four); carjacking (§ 215, subd. (a), count two); robbery (§ 211, counts three, seven, nine & thirteen); assault with intent to commit oral copulation (§ 220, counts five & eleven); assault with a deadly weapon (semiautomatic firearm) (§ 245, subd. (b), counts six and eight); kidnapping with intent to commit robbery and/or oral copulation (§ 209, subd. (b)(1), count ten); and attempted forcible oral copulation (§664/former § 288a, subd. (c)(2), count twelve). For counts one and four, it was alleged that defendant personally used a dangerous or deadly weapon during the offenses (§ 667.61, subd. (e)(3)). For counts one through five, seven, and nine, it was alleged defendant personally used a firearm during the offenses (§ 12022.53, subd. (b)). For counts four, five, seven, and nine, it was alleged that defendant personally and intentionally discharged a firearm during commission of the offenses (§ 12022.53, subd. (c)), and for counts six and eight, it was alleged that defendant personally used a semiautomatic firearm (§ 12022.5, subds. (a), (d)). The information also alleged that defendant had two prior serious felony convictions (§ 667, subd. (a)), which qualified as strikes (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)).

E. Motion for Severance

Before trial, defense counsel moved to sever the counts charged in the information and try the crimes separately. Defendant argued that joinder would result in two weak cases (those involving T.C. and J.A., and E.W.) being joined with the stronger case in which DNA evidence in G.W.’s mouth linked him to her assault. He also argued that evidence of the three incidents was not cross-admissible, that trying the incidents jointly would result in prejudice under Evidence Code section 1101, subdivision (b) (Section 1101(b)) because the jury would likely view the combined charges as bad character or propensity evidence, and that he had different defenses for each of the incidents.

At the hearing on the motion, defense counsel argued that the similarity of the offenses did not justify a single trial under Section 1101(b) and Evidence Code section 1108, subdivision (a) (Section 1108(a)); he also claimed that because none of the charges had yet been proven beyond a reasonable doubt, they could not be used under either Section 1101(b) or Section 1108(a). Finally, defense counsel argued that the prejudicial effect of trying the charges jointly outweighed the probative value of a joint trial under Evidence Code section 352. The prosecutor countered that the evidence was cross-admissible and that none of the conduct alleged in a particular case was more prejudicial or inflammatory than the conduct in the other cases.

The court denied the severance motion, finding that the charges were of the same class of offenses and therefore properly joined under section 954, that each of the three cases was “strong,” that the evidence was cross-admissible, and that the similarity of the offenses lessened any danger that the jury would be inflamed by any particular conduct. In discussing cross-admissibility, the court found that evidence of the charged crimes would be admissible under Section 1101(b) “to show common scheme or plan or method of operation” as well as “propensity to commit sexual offenses” under Section 1108(a). Finally, the court found that joinder did not preclude defendant from asserting different defenses to the various charges if he testified, such as consent for G.W. and mistaken identity for T.C., J.A., and E.W. The probative value of trying the charges together thus outweighed any prejudicial effect on defendant.

F. The Verdicts and Sentence

The jury found defendant guilty as charged, and also found true each of the attached enhancement allegations. In a subsequent proceeding, the court found the prior conviction allegations true. The court sentenced defendant to an aggregate term of 115 years plus 331 years to life in prison. The sentence included consecutive terms of 75 years to life each for counts one and four; consecutive terms of 25 years to life each for counts seven, nine, ten, and eleven; and consecutive terms of 27 years to life each for counts two, six, and eight. The court imposed and stayed the sentences for counts three, five, twelve, and thirteen. For the firearm enhancements, the court imposed a total of 70 years, and a total of 45 years for the prior serious felony enhancements. Defendant timely appealed.

DISCUSSION

I

Motion for Severance

Defendant contends the trial court abused its discretion in denying his pretrial motion to sever the three separate sets of crimes for purposes of trial. Alternatively, defendant asserts that even if pretrial denial of severance was not an abuse of discretion, retrospectively, trying the charged crimes together violated due process. We find no abuse of discretion in trying the charges jointly, nor did a joint trial render the proceeding grossly unfair or deprive defendant of his due process rights.

Section 954 permits the joinder of “two or more different offenses connected together in their commission . . . or two or more different offenses of the same class of crimes or offenses.” (§ 954.) Whenever such offenses are joined together, the court, “in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. (Ibid.)

Our Legislature has expressed a preference for joint trials. (§ 954; see also § 1098 [“When two or more defendants are jointly charged with any public offense . . . they must be tried jointly, unless the court order[s] separate trials”].) Because joinder ordinarily promotes efficiency, it is “the course of action preferred by the law.” (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220 (Alcala).)

Defendant concedes the charged offenses were properly joined, but argues that the court erred in denying his severance motion because the evidence underlying the three sets of charges was not cross-admissible. He also claims that combining the “strong” evidence in G.W.’s case with the “weaker” evidence in the other two cases created a spillover effect that improperly bolstered all three cases, and that the sheer number of charges was likely to inflame the jury.

Because the statutory requirements for joinder have been met (§ 954), and consistent with legislative preference for joint trials, defendant can establish error in trying the charged offenses jointly only by making a “ ‘clear showing of prejudice to establish that the trial court abused its discretion in denying . . . defendant’s severance motion.’ ” (Alcala, supra, 43 Cal.4th at p. 1220.) Denying a motion to sever charged offenses amounts to a prejudicial abuse of discretion only if the court’s ruling falls outside the bounds of reason, considering the record before the court when it ruled on the motion. (Ibid.) Where a party seeks severance of properly joined charges, like defendant does here, he “ ‘must make a stronger showing of potential prejudice than would be necessary to exclude other-crimes evidence in a severed trial.’ ” (Id. at p. 1226, fn. 17, italics added; see also id. at p. 1221 [“ ‘The state’s interest in joinder gives the court broader discretion in ruling on a motion for severance than it has in ruling on admissibility of evidence’ ”].)

To assess prejudice, we consider the following factors: “ ‘(1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case.’ ” (Alcala, supra, 43 Cal.4th at pp. 1220-1221.) We then weigh these factors against the countervailing benefits to the state of joinder, which include “ ‘a single courtroom, judge, and court attach[és]. Only one group of jurors need serve, and the expenditure of time for jury voir dire and trial is greatly reduced over that required were the cases separately tried. In addition, the public is served by the reduced delay on disposition of criminal charges both in trial and through the appellate process.’ ” (People v. Soper (2009) 45 Cal.4th 759, 772 (Soper).)

The trial court did not abuse its discretion in denying severance.

A. Cross-Admissibility of the Evidence in Separate Trials

If evidence underlying the offenses in question would be cross-admissible in separate trials of the other charges, that normally is sufficient, standing alone, to dispel any prejudice and justify a trial court’s refusal to sever the charged offenses. (Alcala, supra, 43 Cal.4th at p. 1221.) Complete cross-admissibility, however, is not required. (Ibid.) “In other words, it may be sufficient, for example, if evidence underlying charge ‘B’ is admissible in the trial of charge ‘A’—even though evidence underlying charge ‘A’ may not be similarly admissible in the trial of charge ‘B.’ [Citations.]” (Ibid.)

Where, as here, the issue concerns whether charged crimes should be severed from a joint trial, the degree of similarity necessary to establish cross-admissibility exists on a continuum. (Alcala, supra, 43 Cal.4th at p. 1222.) That continuum, in turn, depends upon the purpose for which introduction of the evidence is sought. (Ibid.)

Ordinarily, other crimes evidence is not admissible to prove a predisposition to commit such conduct on a particular occasion. (Evid. Code, § 1101, subd. (a).) Under Section 1101(b), however, evidence that a person committed a crime or other act is admissible when relevant to prove some fact other than propensity to commit that act, such as motive, plan, identity, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented.

“ ‘The least degree of similarity . . . is required in order to prove intent’ ” whereas “[t]he greatest degree of similarity is required . . . to prove identity.” (Alcala, supra, 43 Cal.4th at pp. 1222, 1223, fn. 13.) To establish intent, the charged crimes “ ‘must be sufficiently similar to support the inference that the defendant “ ‘probably harbor[ed] the same intent in each instance.’ ” ’ ” (Id. at pp. 1222-1223.) “ ‘ “[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act.” ’ ” (Id. at pp. 1223-1224.) For identity, the charged offenses “ ‘must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts.’ ” (Id. at p. 1223, fn. 13.) “ ‘ “The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.” ’ ” (Ibid.)

The similarity needed to prove a “ ‘common design or plan’ ” falls between the relatively lenient requirement to prove intent and the more stringent requirement to prove identity. (Alcala, supra, 43 Cal.4th at p. 1225, fn. 13.) When offered for the purpose of establishing a common plan or scheme, the charged crimes “ ‘must demonstrate “not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.” ’ ” (Id. at p. 1223, fn. 13.) While “ ‘ “the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, . . . the plan thus revealed need not be distinctive or unusual.” ’ ” (Ibid.)

Defendant argues the charged crimes were not sufficiently distinctive to establish a common plan or scheme, as the trial court found. In his view, the crimes were only superficially similar. While he concedes all three incidents involved some type of robbery and forcible or attempted forcible oral copulation against women in the late night or early morning hours over a three-week period, he claims each crime was nothing more than one of opportunity and not the result of a distinctive plan. He stresses that (1) the perpetrator approached G.W. while she was in her car on the street; (2) the perpetrator approached T.C. and J.A. while they were in their car in an isolated parking garage; (3) E.W. was attacked from behind on the sidewalk and dragged to a park; and (4) the perpetrator used a gun during the attacks on G.W. and T.C. and J.A., but not during the assault on E.W.

But even with the comparatively higher degree of similarity required for using other crimes evidence to establish a common plan or scheme, “the standard can be met despite the existence of some factual differences between or among the charged offenses.” (Alcala, supra, 43 Cal.4th at p. 1225.) In People v. Kraft (2000) 23 Cal.4th 978 (Kraft), for example, the trial court did not abuse its discretion in finding evidence of 16 charged murders would be cross-admissible to show a common plan or scheme; our Supreme Court found it sufficient that “most” of the 16 charged murders shared substantial similarities, and that evidence underlying those 16 charged murders “generally” would have been admissible at separate trials. (Id. at pp. 1002, 1030.)

As the court in Kraft explained, the victims “shared certain characteristics, all being White males between the ages of 18 and 25, all but one being single, and most being, at the time of the offense, vulnerable by virtue of lack of transportation.” (Kraft, supra, 23 Cal.4th at p. 1031.) The method used to obtain control over the victims “was similar in most of the charged offenses: [the] [d]efendant generally supplied the victims with alcohol and drugs, often diazepam, to the point they could no longer resist, whereupon defendant generally bound their wrists with ligatures, frequently using shoelaces.” (Ibid.) After gaining control of the victims, defendant usually strangled them to death and dumped their bodies near a roadway. (Ibid.) “And each murder involved some type of arguably sexual activity or aberration, whether taking the form of sodomy, mutilation, or stripping the victim of clothing.” (Ibid.)

Here, while dressed in distinctive red clothing, the perpetrator approached four vulnerable women late at night or in the early morning hours and attacked them. He generally snuck up on the women and used a firearm or threats of violence or physical harm to gain compliance. He threatened to shoot or kill them, accused them of being prostitutes in two of the three instances, demanded their phones and money, and then forced or attempted to force them to orally copulate him. Each attack happened in that sequence. The attacks occurred in the Sacramento area over a short three-week period; E.W., in fact, was attacked only three days after T.C. and J.A. Each of the women described her attacker as an African-American male with a dark complexion wearing red clothing, who was in his 20’s, and somewhere between five feet five inches to five feet eight inches tall. The consistent descriptions matched defendant’s race, age, height, and the clothing he was wearing when apprehended by police with E.W.’s property the night of her attack. Defendant’s DNA also was found at two of the crime scenes and he was apprehended with the victim’s property from the third crime scene.

We conclude the above common features, including the nature of the victims, the manner and execution of the crimes, and the relatively short timeframe during which the crimes were committed, were sufficiently similar to each other to support an inference that the perpetrator acted according to a common design or plan. (People v. Thomas (1978) 20 Cal.3d 457, 465 [recognizing that evidence of prior sexual misconduct “committed with persons other than the prosecuting witness . . . is admissible to show a common design or plan where the prior offenses (1) are not too remote in time, (2) are similar to the offense charged and (3) are committed upon persons similar to the prosecuting witness”].) Evidence of each attack was therefore cross-admissible under Section 1101(b) to prove defendant committed the crimes according to a common plan or design.

People v. Grant (2003) 113 Cal.App.4th 579, which defendant cites, does not compel a different conclusion. The defendant in Grant was jointly charged with burglarizing a school and possessing computer equipment that had been stolen from a different school three years earlier. (Id. at pp. 583, 584-586, 589.) The court found that evidence of the two crimes was not cross-admissible to prove a common plan because, although similar, the evidence on each count did not share common marks sufficient to support a strong inference that the defendant committed both crimes. (Id. at p. 589.) The crimes in the instant case, however, did share distinctive, common marks sufficient to support the inference that defendant had a common plan in accosting each of the victims.

In addition to proving a plan or design, we also find that these common features meet the more stringent similarity requirements for establishing identity, sometimes referred to as a modus operandi. (Soper, supra, 45 Cal.4th at p. 786 (conc. & dis. opn. of Kennard, J.) [“it is the combination of features, and not any individual feature, that must be highly distinctive”], citing People v. Rogers (2006) 39 Cal.4th 826, 852; Kraft, supra, 23 Cal.4th at pp. 1061-1062 [discussing modus operandi and identity].) While it may be true, as defendant argues, that “[c]onsidered separately, none of these features is highly unusual or distinctive,” “the many common features, viewed together, form a pattern that is distinctive and unusual enough to be like a signature.” (Soper, at p. 786 (conc. & dis. opn. of Kennard, J.); see also id. at p. 779 (maj. opn. of George, C. J.).)

Here, (1) a dark-complected (2) African-American male (3) in his 20’s, (4) standing somewhere between five feet five inches and five feet eight inches tall, (5) approached and attacked (6) women who were alone and vulnerable (7) during the late night or early morning hours (8) in the Sacramento area (9) over a three-week period (10) while wearing distinctive red clothing; (11) he first demanded phones, purses, and money; (12) then threatened to kill or otherwise harm them; (13) accused three of them of being prostitutes; and (14) forced or attempted to force them to orally copulate him. DNA matching defendant was found in the mouth of the first victim who was forced to orally copulate the perpetrator at gunpoint, and on the magazine of the gun used during the attack on the next two victims, one of whom the perpetrator also forced to orally copulate him. When considered together, these features form a distinctive pattern akin to a signature. (Soper, supra, 45 Cal.4th at pp. 779, 786.)

That each of the attacks did not have precisely the same marks common to all charged counts does not mean the evidence underlying each attack would not be cross-admissible to prove modus operandi or identity. (Kraft, supra, 23 Cal.4th at pp. 1061-1062.) We do not look for dissimilar characteristics in order to disqualify a particular offense from consideration. (Id. at p. 1061.) Instead, as the Supreme Court recognized in Kraft, “the probative value of the evidence of one uncharged offense ‘[wa]s not significantly diminished by the presence of certain marks of dissimiliarity between uncharged and charged offenses.’ ” (Ibid.) Here, even though the victims were attacked under slightly varied circumstances, enough unique features were common to all of the attacks to infer that it was defendant, and not someone else, who committed each robbery and sexual assault.

The evidence showing defendant used a black semiautomatic handgun when he assaulted T.C. and J.A. would also be cross-admissible to show he used the same gun three weeks earlier when he assaulted G.W. (People v. Cox (2003) 30 Cal.4th 916, 955-957 [defendant’s possession of a weapon that could have been used to commit a previous crime is relevant and admissible], disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Gomez (1994) 24 Cal.App.4th 22, 25-26, 28 [whether there was a gun possessed and whether the defendant was the person with the gun were equal issues in both a robbery case and a felon-in-possession charge based on defendant’s arrest a few days after the robbery].) A DNA sample taken from the magazine of the gun left behind after the attack on T.C. and J.A. matched defendant’s DNA, and his DNA also was found in G.W.’s mouth following her sexual assault. Such evidence would be relevant and admissible in separate trials of those offenses because it tended to show that defendant was present and used a firearm during both attacks.

Finally, despite defendant’s argument to the contrary, the charged sexual offenses were relevant and admissible under Section 1108(a) to prove his propensity to commit forcible oral copulation. Not only did each of the charged crimes involve the exact same type of sexual conduct during a robbery, the probative value of the evidence outweighed any potential prejudicial effects.

Section 1108(a) provides an exception to the general rule in Evidence Code section 1101 that character evidence is not admissible to prove propensity. (People v. Falsetta (1999) 21 Cal.4th 903, 911 [“the Legislature enacted [Evidence Code] section 1108 to expand the admissibility of disposition or propensity evidence in sex offense cases”].) The statute states: “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.” (Evid. Code, § 1108, subd. (a); People v. Escudero (2010) 183 Cal.App.4th 302, 306 [such evidence is presumed to be admissible to assist the trier of fact in evaluating the credibility of the victim and the defendant].)

Here, evidence that defendant, during three separate robberies, forced or attempted to force women whom he did not know to orally copulate him under threat of death or physical harm falls squarely within the ambit of Section 1108(a). (See People v. Earle (2009) 172 Cal.App.4th 372, 397.) Each sexual assault would be cross-admissible for the purpose of proving his propensity to commit such sexual offenses.

The trial court, moreover, did not fail to weigh the probative value of the sexual offense evidence against its prejudicial effect under Evidence Code section 352, as defendant argues. After hearing extensive argument on probative value and prejudicial effect, the court expressly stated: “The Court also conducted an analysis under [Evidence Code s]ection 352 and finds that the probative value is not substantially outweighed by the prejudice.” (Cf. People v. Villatoro (2012) 54 Cal.4th 1152, 1168-1169 [finding evidence more probative of propensity to commit sexual offenses than prejudicial where defendant forced or lured each woman into his car, drove to a residential area, and forced them to submit to sexual acts by pointing a weapon at them].)

In any event, where the offenses are properly joinable under section 954 and none of the other three factors relevant to the severance issue demonstrate prejudice, a trial court does not abuse its discretion by denying severance even assuming the absence of cross-admissibility. (Alcala, supra, 43 Cal.4th at p. 1221 [noting that courts have repeatedly found that a trial court properly denied a severance motion where the evidence underlying the charges would not have been cross-admissible in separate trials]; id. at p. 1227.) As explained below, none of the other prejudice factors point to an abuse of discretion in denying defendant’s severance motion.

B. Inflammatory Nature of the Charges

Defendant concedes the sexual assaults and robberies at issue in all three attacks are not inflammatory when compared to one another since the facts and charges were similar in nature. He argues, however, that the sheer number of charges was likely to improperly inflame the jury against defendant. We again disagree.

In Kraft, the Supreme Court found the trial court did not abuse its discretion in denying the defendant’s motion to sever and try separately 16 homicide counts. (Kraft, supra, 23 Cal.4th at pp. 1029-1030.) All of the charges there involved the defendant killing the victims with drugs and ligature strangulation, and included some form of sexual activity, such as sodomy, mutilation, or stripping the victims of clothing. (Id. at p. 1031.)

While the joint trial here alleged 13 counts, the charges stemmed from four victims who were assaulted in three separate incidents. We cannot say that trying the charges jointly, which were nowhere near as gruesome or inflammatory as the 16 murder counts in Kraft, was likely to unusually inflame the jury against defendant. (See also Alcala, supra, 43 Cal.4th at p. 1227 [five different murders involving sexual assaults properly joined and not likely to unusually inflame the jury; the evidence underlying each of the five murder charges was “ ‘similar in nature and equally gruesome’ ”].)

C. Joining a Strong Case with a Weak Case

Defendant contends the T.C. and J.A. charges and the E.W. charges were relatively weak compared to the G.W. charges, and that the spillover effect of a joint trial would, and did, unfairly alter the outcome of one or all three of the groups of charges. According to him, there was an “ ‘extreme disparity’ ” in the strength of the evidence in each case. Not so.

At the time of the severance motion, DNA matching defendant was recovered from G.W.’s mouth almost immediately after she was forced to orally copulate her assailant while a black semiautomatic firearm was pointed at her head. She described him as an African-American man with a dark complexion, in his 20’s, between five feet five inches and five feet six inches tall, wearing red clothing, but did not otherwise identify a suspect.

DNA matching defendant was also recovered from the magazine in the black semiautomatic firearm J.A. wrestled away from the assailant who assaulted and robbed her and T.C. Both T.C. and J.A. described the man as African-American with a dark complexion, in his mid-20’s, with short hair, and between five feet five inches and five feet eight inches tall, wearing a red shirt. Like G.W., neither was able to positively identify defendant as their attacker.

While no DNA evidence linked defendant to E.W.’s assault, he was found a short time after the attack with her personal belongings. After tracking E.W.’s cell phone to the light rail station, officers located defendant; he was the only person there. Given that he was apprehended wearing a red shirt and baggy jeans—the same clothes described by E.W. to police—and he matched the description of the man who accosted her—an African-American man with a darker complexion, in his 20’s, about five feet six inches or five feet seven inches tall—the inference that he found her property that someone else had stolen was relatively weak. E.W., moreover, positively identified defendant as her attacker during the field showup.

Based upon the information before the trial court at the time it ruled on the severance motion, it was not clear that the evidence supporting the G.W. charges was significantly stronger than that underlying the other two attacks. As the trial court found, the proffered evidence was sufficiently strong in all three cases. (Cf. Soper, supra, 45 Cal.4th at p. 780 [strong evidence existed in both cases where the defendant’s fingerprints linked him to each victim’s campsite and witness testimony established that the defendant was at or near the site with the victims while acting aggressively shortly before the homicides].)

It is always possible, between any two charges, to point to individual aspects of one case and argue that one is stronger than the other. (Soper, supra, 45 Cal.4th at p. 781.) “A mere imbalance in the evidence, however, will not indicate a risk of prejudicial ‘spillover effect,’ militating against the benefits of joinder and warranting severance of properly joined charges. [Citation.]” (Ibid.) Even assuming that, when viewed as a whole, the G.W. evidence appeared somewhat stronger at the time of the severance motion, the proffered evidence was sufficiently strong in all three cases. Trying the charges jointly thus did not unfairly merge weak and strong cases.

D. Capital Offenses

Defendant was not charged with any capital offenses and joining the charged crimes did not convert the case to a capital one. This factor, then, weighs against any prejudice in trying the charged offenses jointly. (Cf. Williams v. Superior Court (1984) 36 Cal.3d 441, 454 [a case in which “it is the joinder itself which gives rise to the special circumstances allegations of multiple murder].)

E. Violation of Due Process

The Supreme Court has held that “ ‘even if a trial court’s ruling on a motion to sever is correct at the time it was made, a reviewing court still must determine whether, in the end, the joinder of counts . . . for trial resulted in gross unfairness depriving the defendant of due process of law.’ ” (Soper, supra, 45 Cal.4th at p. 783.) Although defendant asserts it is reasonably probable that joining the charged crimes influenced the jury to find him guilty of all the charges, we conclude defendant has not met his high burden of establishing that the trial was grossly unfair and that he was denied due process of law.

We have already rejected defendant’s arguments that the prosecution improperly joined weaker cases with a strong case, and that the evidence was not cross-admissible. And we are not persuaded that the prosecutor’s closing argument, which characterized the crimes as strikingly similar, resulted in gross unfairness. The argument, when considered in context, was proper.

The court’s instruction on how to consider the other crimes evidence, moreover, lessened any potential prejudice from trying the charges jointly. After the jury sent a note during deliberations asking whether “similar actions in each case, i.e.[,] [modus operandi], [could] be considered as circumstantial evidence in one case,” the court instructed the jury with a modified version of CALCRIM No. 375. As modified, the instruction stated that the jury could consider the evidence of the sexual offenses committed on each incident “only if the People have proved beyond a reasonable doubt that the defendant in fact committed the charged offense. Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. . . .”

The instruction further stated: “[I]f you decide that the defendant committed one of these charged offenses beyond a reasonable doubt, you may, but are not required to, consider that evidence for the limited purpose of deciding whether: [¶] The defendant was the person who committed the offenses alleged in this case; or [¶] The defendant had a common plan or scheme to commit the offense alleged in this case.” The jury was admonished “not [to] conclude from this evidence that the defendant has a bad character or is disposed to commit crime,” and that if it “conclude[d] that the defendant committed a charged offense beyond a reasonable doubt, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of another charged offense. The People must still prove every charge and allegation beyond a reasonable doubt.”

Ordinarily, CALCRIM No. 375 provides that a jury may consider other crimes evidence if the prosecutor proves the other crimes by a preponderance of the evidence. (See CALCRIM No. 375.) As the court’s modified instruction makes clear, however, the jury here had to find beyond a reasonable doubt that defendant committed a particular offense during any one incident before it could consider that for the limited purpose of deciding identity or a common plan or scheme. Thus, rather than lowering the prosecution’s burden of proof, the court required the highest burden of proof in this case.

We disagree with defendant’s contention that the jury’s note regarding “[modus operandi]” demonstrates jurors were having difficulty reaching a verdict in at least one of the cases. Rather, the jury simply inquired about how to evaluate the evidence presented, and the court responded appropriately by instructing the jury with a modified version of CALCRIM No. 375.

The counts in this case were properly joined. And joinder did not result in gross unfairness or otherwise deny defendant due process.

II

Ineffective Assistance of Counsel

Defendant contends his counsel was constitutionally ineffective for failing to move to suppress E.W.’s identification during the field showup, which he characterizes as unconstitutionally suggestive. He claims the failure to move to suppress the pretrial identification violated his due process rights.

Courts indulge “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” (People v. Maury (2003) 30 Cal.4th 342, 389.) To establish ineffective assistance of counsel, defendant bears the burden of showing, by a preponderance of the evidence, that his counsel’s representation fell below the standard of a competent advocate and a reasonable probability exists that, but for counsel’s errors, the result would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) “ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 333.) “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.” (Strickland v. Washington (1984) 466 U.S. 668, 697 [80 L.Ed.2d 674, 699].)

“Whether to object to arguably inadmissible evidence is a tactical decision; because trial counsel’s tactical decisions are accorded substantial deference, failure to object seldom establishes counsel’s incompetence. [Citation.]” (People v. Maury, supra, 30 Cal.4th at pp. 415-416.) In People v. Davis (1969) 270 Cal.App.2d 841, for example, the court found that counsel’s failure to object to a lineup procedure that was conducted without the presence of counsel may have been a legitimate tactical decision. (Id. at pp. 843-844.) Nevertheless, even if we assume, without deciding, that counsel should have moved to suppress E.W.’s pretrial identification, we conclude defendant has failed to establish the requisite prejudice from counsel’s omission. (See Strickland v. Washington, supra, 466 U.S. at p. 697.)

The California Supreme Court recently reiterated that a single photograph showup is not necessarily unfair; rather, all circumstances surrounding the showup must be considered. (People v. Sanchez (2019) 7 Cal.5th 14, 36 [showing minor victim a single photograph of suspect was not necessarily unfair although court acknowledged that a single photograph showup was at least to some extent inherently suggestive]; see also People v. Ochoa (1998) 19 Cal.4th 353, 413 [recognizing that a single person showup is not inherently unfair].) In Sanchez, the court found no due process violation because any inherent suggestiveness in showing a minor, who saw the man who murdered his mother and sister, a single photograph of the defendant was outweighed by other factors confirming the reliability of the minor’s identification. (Sanchez, at p. 36.) Among other things, the showup occurred mere hours after the murders, the minor victim had seen the defendant on another occasion, and the minor’s description of the killer’s facial hair matched the defendant when he was apprehended. (Id. at p. 37.)

To the extent the field showup here was suggestive because defendant was the only person shown to E.W., like in Sanchez, we conclude that such suggestiveness is outweighed by other factors confirming the reliability of her identification. (See Stovall v. Denno (1967) 388 U.S. 293, 302 [18 L.Ed.2d 1199, 1206] [finding no due process violation for showing the defendant to the victim in her hospital room based on totality of circumstances].)

Here, the field showup occurred shortly after E.W. was accosted, when the events and the perpetrator were still fresh in her mind. (In re Carlos M. (1990) 220 Cal.App.3d 372, 387 [recognizing single person showups for purposes of field identifications are encouraged because the element of suggestiveness inherent in the procedure is offset by the reliability of an identification made while the events are fresh in the witness’s mind, and because the interests of both the accused and law enforcement are best served by an immediate determination as to whether the correct person has been apprehended]; In re Richard W. (1979) 91 Cal.App.3d 960, 969-971 [same].) While E.W. had never seen defendant before, she testified that she noticed him walking on the opposite side of the street before he assaulted her. Thus, she was able to see his race, build, and clothing before the attack.

Furthermore, before conducting the field showup, police admonished E.W. that the person she was going to view may or may not be the subject she observed commit the crime; that she was under no obligation to identify the person; and to keep an open mind and explain why the person was, or was not, the suspect. E.W. also was told to disregard the fact that the person was removed from a police vehicle or was handcuffed. (In re Richard W., supra, 91 Cal.App.3d at pp. 969-971 [the mere presence of handcuffs on a detained person in a police car is not so unduly suggestive as to taint a field identification].) This admonition dispels the notion that law enforcement pressured E.W. into identifying defendant.

Although it is true that E.W. testified police showed her some of her recovered items before the field showup, Officer Hawley testified that the field showup was conducted before E.W. was shown any of the recovered items. Given that E.W. was admittedly traumatized by the experience, her sequence of events may have been somewhat muddled. She did, however, testify that the police did not tell her that they had “the guy” that accosted her. And she repeatedly denied that the police told her or implied that they had retrieved her items from the person they showed her.

We likewise are not persuaded by defendant’s argument that the field identification in this case is unreliable because E.W. is a different race than defendant. While some studies may have characterized cross-racial identifications as suspect, in this case E.W. was adamant she could identify her attacker based on his clothing—baggy jeans and a red shirt—as well as his general build. Thus, E.W. did not simply rely on defendant’s race in identifying him. Rather, it was his distinctive clothing that most stood out in her mind, and defendant was apprehended a short time later wearing clothing that matched her description.

The fact that E.W. did not describe defendant’s neck tattoos or facial hair does not make the pretrial identification unreliable. She did describe her attacker’s height, build, specific clothing, and race, which are all salient identification features. And while the suspect grabbed E.W. from behind, she testified that she initially noticed him on the opposite side of the street matching her stride and that he eventually passed right by her before she lost sight of him. E.W. therefore had an adequate opportunity to view her attacker before he snuck up behind her.

Our review of the totality of the circumstances (Manson v. Brathwaite (1977) 432 U.S. 98, 113-114 [53 L.Ed.2d 140, 153-154]) convinces us that E.W.’s pretrial identification was reliable rather than the product of an unduly suggestive field showup. Because the procedure used was not unnecessarily suggestive and the evidence against defendant was strong, even if we assume without deciding that counsel should have filed a motion to suppress, we are convinced that it is not reasonably probable that defendant would have received a more favorable outcome had counsel moved to suppress and the identification been excluded.

III

Firearm Enhancements

Defendant contends that under Senate Bill No. 620’s (2017-2018 Reg. Sess.) recent changes to section 12022.5 and section 12022.53, his case must be remanded so that the trial court can exercise newly granted discretion to decide whether to strike the firearm enhancements imposed here. The People concede the legislation applies retroactively to defendant because the judgment is not yet final, and that remand is proper under the circumstances. We agree.

As we have noted, the jury found true 13 firearm enhancements under section 12022.5 and 12022.53 (for a total of 70 years) that were attached to the counts related to G.W., T.C., and J.A. When defendant was sentenced, the trial court had no power to strike any of the firearm enhancements. (See, e.g., People v. Thomas (1992) 4 Cal.4th 206, 208.) Recent amendments to section 12022.5 and section 12022.53, which became effective January 1, 2018 (Stats. 2017, ch. 682, §§ 1 & 2; Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a)), now give trial courts the power “in the interest of justice pursuant to Section 1385 and at the time of sentencing, [to] strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.” (§§ 12022.5, subd. (c), 12022.53, subd. (h).) The amendments apply retroactively to judgments, like defendant’s, that are not yet final on the effective date of the legislation. (People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091.)

Because neither party argues that remand would be futile (cf. People v. Almanza (2018) 24 Cal.App.5th 1104, 1110), defendant should have an opportunity to argue to the trial court that it should exercise its newly granted discretion to strike the firearm enhancements. While defendant received a lengthy sentence—largely due to his strikes —that does not foreclose the possibility of the trial court exercising discretion on other sentencing matters, including whether to strike one or more of the firearm enhancements. We therefore remand for this purpose.

IV

Prior Serious Felony Enhancements

In addition to the multiple firearm enhancements, the court imposed nine 5-year prior serious felony enhancements under section 667, subdivision (a) for a total of 45 years. When sentencing defendant, the court had no discretion to strike a prior serious felony enhancement. (See former §§ 667, subd. (a), 1385, subd. (b).)

On September 20, 2018, the Governor signed Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393), which amended section 667, subdivision (a), and section 1385, subdivision (b), to allow a court to exercise its discretion to strike a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1 & 2.) The statutory amendments became effective January 1, 2019. (Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a); see People v. Camba (1996) 50 Cal.App.4th 857, 865.)

For reasons similar to those pertaining to Senate Bill No. 620 and the firearm enhancements, defendant argues, and the People concede, that Senate Bill 1393 applies retroactively here, and that remand is appropriate under the circumstances. Again, we agree. (See People v. Jones (2019) 32 Cal.App.5th 267, 272 [concluding Senate Bill 1393 applies retroactively to a judgment not final on the amendment’s effective date].) We therefore remand the matter to allow defendant to argue that the trial court should exercise its informed discretion to strike the prior serious felony enhancements.

V

Ability to Pay Mandatory Fees

Defendant contends the trial court violated his constitutional due process rights by imposing the assessments mandated by section 1465.8 and Government Code section 70373 without determining his ability to pay the fees. He asks that we strike the assessments and remand the case for an ability to pay hearing. To support his claim, defendant relies primarily on the decision in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).

A. Background

At sentencing, the court imposed $520 in court operations assessments ($40 per conviction) (§ 1465.8), and $390 in court facilities assessments ($30 per conviction) (Gov. Code, § 70373). The court also imposed a $5,000 restitution fine (§ 1202.4). Although defendant requested that the court impose the minimum fees and fines allowable, he did not object or otherwise request a hearing on his ability to pay, and presented no evidence concerning his inability to pay such fees and fines.

B. Analysis

Defendant argues, based on Dueñas, that the court erred in imposing the court operations assessment and the court facilities assessment without first determining his ability to pay the fees. The People, on the other hand, assert that defendant forfeited this claim, that defendant fails to show he will be unable to pay the fines and assessments, and that defendant will have ample time in prison to earn funds to pay them. Because we agree with other courts that Dueñas was wrongly decided, we reject defendant’s argument.

In Dueñas, an unemployed mother with cerebral palsy surviving on public assistance lost her driver’s license because she was unable to pay $1,088 assessed against her for three juvenile citations. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Thereafter she received multiple convictions related to driving with a suspended license, each accompanied by jail time and additional fees that she could not pay. (Id. at p. 1161.) After a fourth conviction of driving with a suspended license, the court placed Dueñas on probation and ordered her to pay mandatory fines and assessments under section 1465.8, section 1202.4, and Government Code section 70373. (Id. at pp. 1161-1162.) Dueñas asked the trial court to hold a hearing to determine her ability to pay those costs. (Id. at p. 1162.) Despite Dueñas’s uncontested declaration establishing her indigence, the trial court ruled that the assessments were mandatory and that Dueñas had not shown “ ‘compelling and extraordinary reasons’ ” to waive the restitution fine. (Id. at p. 1163.)

The Court of Appeal reversed, holding that due process requires the trial court to ascertain a defendant’s present ability to pay before imposing the court assessments and fines. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) In support of its due process rationale, the court analogized the assessments imposed on Dueñas to court fees imposed on civil litigants, which indigents are not required to pay. (Id. at pp. 1165-1166.) The court further reasoned that although the Legislature did not intend the assessments to be punitive, imposing unpayable assessments has “devastating consequences” on indigent defendants by subjecting them to a civil judgment for nonpayment and the associated consequences that flow therefrom. (Id. at p. 1168.) These additional consequences suffered only by indigent persons in effect transform the assessments into “additional punishment” based solely on the defendant’s inability to pay, which the court found to be “fundamentally unfair.” (Id. at p. 1168.)

As for the restitution fine, the court held that it too requires an ability to pay determination. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) Although restitution fines are intended to be additional punishment, the court held that such fines, when imposed on a probationer, punish indigent defendants in a way they do not punish wealthy defendants, namely, by limiting their rights to mandatory expungement under section 1203.4, subdivision (a)(1). (Dueñas, at pp. 1169-1170.) The court noted that probationers who pay their fines are entitled to have their charges dismissed under section 1203.4, subdivision (a)(1), whereas defendants who cannot pay, “[a]t best, . . . can try to persuade a trial court to exercise its discretion to grant them relief . . . .” (Dueñas, at pp. 1170-1171.) This too, the court held, is “ ‘fundamentally unfair.’ ” (Id. at p. 1171.)

Reactions to Dueñas have been mixed. Although some courts have followed its reasoning, others have strictly limited it to its facts or simply found that it was wrongly decided. Having reviewed these opinions, we agree with those opinions that have disagreed with Dueñas and therefore declined to follow it. (See People v. Aviles (2019) 39 Cal.App.5th 1055, 1068-1069, review den. Dec. 11, 2019, S258563 (Aviles); People v. Hicks (2019) 40 Cal.App.5th 320, 329, review granted Nov. 26, 2019, S258946; People v. Caceres (2019) 39 Cal.App.5th 917, 926-929, review den. Jan. 2, 2020, S258720; see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1034-1041 (conc. opn. of Benke, J.), review den. Sept. 18, 2019, S256881; People v. Santos (2019) 38 Cal.App.5th 923, 935-940 (dis. opn. of Elia, J.).)

We first observe that the facts in this case bear no similarity to the unique factual circumstances in Dueñas. Dueñas faced hardship because she was caught in a cycle of repeated criminal violations stemming from the loss of her driver’s license. (Dueñas, supra, 30 Cal.App.5th at pp. 1161-1162.) Her license was suspended because she was too poor to pay her juvenile citations. She then continued to offend because the escalating assessments and fines prevented her from having her license reinstated. (Ibid.) On these facts, the Court of Appeal concluded that Dueñas was being punished solely because of her poverty. (Id. at pp. 1163, 1166-1167, 1171.)

There is no similar harm to defendant here. Defendant is suffering fines and assessments because he committed a series of brutal crimes, not because he is trapped in a vicious cycle of debt due to poverty. Even if defendant does not pay the assessments and fines imposed by the trial court, he will suffer none of the “cascading consequences” faced by Dueñas. (People v. Caceres, supra, 39 Cal.App.5th at pp. 928-929; Dueñas, supra, 30 Cal.App.5th at p. 1163.)

In any event, we do not find the reasoning of Dueñas persuasive. We agree with the courts in Aviles and Hicks, and the concurring and dissenting opinions in Gutierrez and Santos, that the Dueñas approach is incorrect in concluding that the due process doctrine of “fundamental fairness” requires courts to conduct a preassessment ability-to-pay determination before imposing fines and fees on a criminal defendant. (Aviles, supra, 39 Cal.App.5th at pp. 1068-1069; People v. Hicks, supra, 40 Cal.App.5th at p. 329, review granted Nov. 26, 2019, S258946; People v. Gutierrez, supra, 35 Cal.App.5th at pp. 1034-1041 (conc. opn. of Benke, J.); People v. Santos, supra, 38 Cal.App.5th at pp. 935-940 (dis. opn. of Elia, J.).) Whether or not it is fundamentally unfair in a constitutional sense for a state to deprive a person of a driver’s license because of that person’s inability to pay a fine or fee, we are not persuaded that the mere potential an indigent defendant might be unable to pay a debt (and therefore suffer associated collection practices) rises to the level of a due process violation, especially where the defendant has not yet failed to pay or suffered any sanctions for doing so.

To the extent imposing potentially unpayable fees or fines on indigent defendants raises constitutional concerns, we agree that such challenges are properly analyzed under the excessive fines clause, which limits the government’s power to extract payments as punishment for an offense. (Aviles, supra, 39 Cal.App.5th at pp. 1069-1070.) Here, because defendant has not raised an excessive fines clause challenge, we do not address whether the fines, fees, and assessments imposed on him are unconstitutionally excessive. We simply conclude that defendant’s reliance on Dueñas is misplaced. Therefore, we affirm this aspect of the judgment.

VI

Correction of Abstract of Judgment

The parties agree that the abstract of judgment does not reflect the sentencing court’s oral pronouncement of judgment. We concur, and shall direct the clerk to correct the abstract of judgment.

At sentencing, the trial court imposed a $5,000 restitution fine (§ 1202.4) and an identical $5,000 parole revocation restitution fine, suspended unless parole was revoked (§ 1202.45). The abstract of judgment, however, lists a restitution fine and a parole revocation restitution fine of $10,000 each. This error should be corrected. (See People v. Zackery (2007) 147 Cal.App.4th 380, 385 [oral pronouncement controls]; People v. Rowland (1988) 206 Cal.App.3d 119, 123 [clerical error where minutes fail to reflect oral pronouncement may be corrected at any time].)

Finally, we note there is a clerical error on the abstract of judgment which indicates that the jury found true a firearm use enhancement in connection with count six under section 12022.53, subdivision (a). The correct reference should be to section 12022.5, subdivision (a). We direct the trial court to amend the abstract of judgment to reflect the correct section of the Penal Code.

DISPOSITION

Defendant’s convictions are affirmed. The matter is remanded to allow the trial court to exercise its discretion, if it so chooses, to strike the firearm enhancements and the prior serious felony enhancement. The trial court is directed to prepare an amended abstract of judgment which reflects the court’s oral pronouncement of judgment, including the correct restitution fine ($5,000), and the correct code section for the firearm use enhancement on count six (§ 12022.5, subd. (a)) and to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.

KRAUSE , J.

We concur:

HULL , Acting P. J.

HOCH , J.