Filed 1/24/20 P. v. Pridmore-Ybarra 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

JEREMY XAVIER PRIDMORE-YBARRA,

Defendant and Appellant.

C083332

(Super. Ct. No. 15F01251)

Defendant Jeremy Xavier Pridmore-Ybarra shot and killed John and Breeze. On appeal, he contends the trial court erred in instructing the jury with CALCRIM Nos. 3471 (mutual combat/initial aggressor) and 3472 (contrived self-defense). He also argues his counsel was ineffective for failing to object to alleged instances of prosecutorial misconduct. Defendant further requests we correct an error in the abstract of judgment and the trial court’s calculation of custody credits. Defendant also asks that we remand the case to permit the trial court to exercise its discretion and strike his firearm enhancement pursuant to Penal Code section 12022.53, subdivision (h). The People concede section 12022.53, subdivision (h) applies retroactively, but argue it would be futile to remand the matter.

In supplemental briefing, defendant claims that pursuant to the holding in People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168, 1172 (Dueñas), we must strike the fees, stay imposition of the restitution fine, and remand the matter for an ability to pay hearing.

We will modify the judgment to include certain mandatory fees and fines, order the abstract of judgment corrected, and remand the matter for the trial court to reconsider the custody credits and firearm enhancement. We will otherwise affirm the judgment.

I. BACKGROUND

From September to October 2014, Olga M. lived with John and Breeze in the house they shared. John introduced Olga to defendant, and the two began dating and eventually moved in together. Prior to the shooting, defendant complained to Olga at least 10 times that John had “disrespected” him and said he wanted to kill John. At trial, defendant testified he performed criminal “jobs” with John, but John had “cheated him” on three jobs and owed him $5,400 for one of the jobs. Olga testified during trial that defendant was a “gun nut” and always carried a gun with him.

On December 11, 2014, defendant’s friend Alejandro agreed to drive Olga from San Joaquin County to Sacramento. They met up with defendant and traveled together to John and Breeze’s house. Before getting out of the car to go inside alone, defendant told Alejandro he was going to “teach this guy a lesson,” “ not to mess with him,” and he was “going to handle this, this fool doesn’t cross me.”

Five minutes later, defendant returned to the car and asked Alejandro and Olga to come inside with him. As they were walking to the door, defendant handed Alejandro a semiautomatic gun. Scared, Alejandro put it in his pocket. They went inside and sat with John in the living room. Defendant began to argue with John about John’s failure to pay defendant for the criminal job defendant did for him.

John apologized but said “it had to be done.” John laughed, and defendant grew upset. John offered defendant some methamphetamine, and defendant accepted. With the tension in the room now relaxed, John went to the bedroom, explaining he was going to get a pipe to smoke the methamphetamine. Breeze was in the bedroom.

John returned a few minutes later, and defendant, at close range, shot John twice in the head, once at the temple and once near the ear. John fell face first onto the floor and died from his wounds. Defendant stepped over John’s body and walked into the bedroom. Breeze gasped in surprise and screamed. Defendant shot her three times: once in the chest, once in the arm, and once in the head. Breeze also died from her wounds; the police found her lying on the bed.

Defendant returned to the living room and instructed Alejandro to check if Breeze was dead. When Alejandro returned, the three left the house and returned to Lodi. After the shooting, defendant told Olga that John had threatened his parents.

At trial, Olga testified that she neither saw nor heard “anything” that John said or did that would have justified the shooting. She never had the impression that, when John said he was going to the bedroom to get the methamphetamine pipe, he was actually going to get a weapon. Similarly, Alejandro testified that he did not see John or Breeze with a gun that evening. Responding police officers did not find a gun, knife, or other weapon on John or in the home. Olga testified that defendant had told her he was afraid of what John might do to him or his family, but she was unsure if he said this before or after the shooting.

During trial, defendant testified that he met John a year before the shooting, but their relationship had soured six months before the shooting because John started “being shady.” Defendant also felt John started cutting him out of jobs. Olga warned defendant that John was planning to rob him. Defendant felt threatened when a bag he had left at John’s house turned up in the back of his step-father’s truck, with a note saying, “You need to call me.” Defendant assumed the note was from John. Defendant testified he had never given his step-father’s address to either John or Olga.

Defendant testified that he was angry and decided to confront John and brought Alejandro and Olga with him to “defuse” any conflict. He also brought a gun with him, although he considered himself a gun collector and usually carried a gun. Defendant was aware that John possessed “a lot” of guns and had even purchased some from him. Defendant testified that he believed John could become violent when he was angry.

Defendant further testified that, as he and John were talking the evening of the shooting, John suddenly became angry and left the room. From the bedroom, John asked Breeze to “[h]urry up and hand me that right now.” Scared John was going to shoot him, defendant stood up and pulled out his gun. John came back, and defendant saw John lift something in his hand. Defendant could not see what John was holding, but he assumed it was a weapon and shot John. There was a commotion in the bedroom, and defendant found Breeze holding a “grayish object” in her hand and “coming towards [him] on the bed.” Scared, defendant shot Breeze as well. He testified he was acting in self-defense.

In February 2015, police arrested defendant in a car in a motel parking lot. He was wearing a shoulder holster containing a nine-millimeter handgun and three magazines. Police also found a safe containing a gun barrel. Defendant was a convicted felon and could not legally possess firearms.

Defendant was charged with two counts of first degree murder (§ 187, subd. (a)), three counts of being a felon in possession of a firearm (§ 29800, subd. (a)(1)), two counts of violating probation by possessing a firearm (§ 29815), one count of unlawful possession of silencer (§ 33410), and one count of transportation for sale of assault weapons (§ 30600, subd. (a)). With respect to the murder charges, a special circumstance was alleged that defendant committed multiple murders. (§ 190.2, subd. (a)(3).) It was also alleged defendant personally used a firearm. (§ 12022.53, subds. (b)-(d).)

During the hearing regarding jury instructions, defendant requested instructions on self-defense (CALCRIM No. 505) and voluntary manslaughter/imperfect self-defense (CALCRIM No. 571), and the trial court agreed to give them. The prosecutor requested giving instructions on mutual combat/initial aggressor (CALCRIM No. 3471), and defense counsel stated, “I have no position. I don’t care.” The prosecutor also requested giving instructions on contrived self-defense (CALCRIM No. 3472), and defense counsel again submitted on the matter. The court agreed, and the jury was so instructed.

The jury was further instructed that “[s]ome of these instructions may not apply depending on your findings about the facts of the case. . . . After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.”

Prior to trial, defense counsel moved to exclude testimony from defendant’s ex-girlfriend regarding a home invasion robbery allegedly committed by defendant, John, and two other individuals. They allegedly took marijuana, jewelry, and money. Defense counsel argued the evidence was speculative and prejudicial. The court tentatively ruled it was not admissible unless the testimony at trial made it relevant. The court asked the prosecutor and defense counsel to reach an agreement about how to introduce evidence that defendant and John committed crimes together, without referring to the home invasion robbery.

During direct examination at trial, defendant testified that John had been robbing former friends. When asked, defendant said he was invited to join in on those activities but declined to do so. Defense counsel asked, “[d]id you join in any home robberies with [John]?” Defendant responded, “No.”

During cross-examination, the prosecutor asked defendant about his criminal activities with John. Defendant denied that he had ever robbed a house. The prosecutor asked if it were true that he and John were “involved in a home invasion robbery.” Defendant replied, “No.” The prosecutor asked if defendant remembered whether marijuana had been taken from a house in Elk Grove, and going with John and a friend to commit a home invasion robbery in Elk Grove. Defendant responded, “No.” The prosecutor then asked whether defendant had told his ex-girlfriend that he was “involved in a home invasion robbery, that [he] robbed a house with marijuana in Elk Grove” “I did not,” replied defendant.

During closing argument, the prosecutor argued defendant committed two counts of first degree murder. The prosecutor argued defendant’s story of self-defense was unbelievable, and that he had intended to kill John because John disrespected him: “And because of that, there is no self-defense.”

The prosecutor then went on to explain the instructions regarding initial aggressor (CALCRIM No. 3471) and contrived self-defense (CALCRIM No. 3472): “Now the law won’t allow [defendant to successfully assert self-defense because] there are two ways in which he isn’t allowed. The initial aggressor or a mutual combatant, a person who engages in mutual combat, who starts a fight, has a right to self-defense only if he actually believed he tried to stop the fight, by word of conduct indicated to his opponent that he stopped fighting, gives an opponent a chance to stop. [¶] The defendant here went over to John’s house with a loaded gun. He took the fight to John. He took the gun and the fight to [John’s house]. And as the person who started this fight, he doesn’t get to claim self-defense. He doesn’t get to put a square peg in a round hole. In self-defense, [it] cannot be contrived. That’s another rule of self-defense. A person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use force.” The prosecutor reminded the jury that defendant had testified that he intended to confront John and prepared for the possibility that John might get violent by bringing a gun. “You don’t get to go over to somebody’s house, instigate a fight and then claim self-defense.”

The prosecutor then analogized that a person does not get to sue if he gets burned from a fire at his neighbor’s, where the person brought a can of gasoline and poured it over an existing “little fire” in the fireplace, causing the whole house to catch on fire. “And the same way [defendant] doesn’t get the right to self-defense by going over to somebody’s house, and knowingly instigate the situation so that he can take a gun out to kill a man.”

In September 2016, a jury found defendant guilty of second degree murder of John and first degree murder of Breeze. The jury found the firearm enhancements and special circumstance to be true. The jury also found defendant guilty of the remaining counts.

In October 2016, as to the murders, the trial court sentenced defendant to state prison for life without parole, plus 65 years to life, as follows: (1) for the first degree murder of Breeze, life without the possibility of parole plus 25 years to life for the firearm enhancement; (2) for the second degree murder of John, 15 years to life plus 25 years to life for the firearm enhancement. (§§ 190, subd. (a), 12022.53, subd. (d).) The trial court imposed an aggregate state prison term of eight years eight months for the remaining counts, including the midterm stayed pursuant to section 654 for each of the two counts of possession of a firearm in violation of probation. (§ 29815.) The abstract of judgment lists the term for each of these two unlawful firearm possession counts as zero and states they were stayed pursuant to section 654.

During the sentencing hearing, the trial court stated it was “significant” that defendant had expressed remorse to the probation department, especially since this was a “murder case where the murders were so cold, so cold-blooded.” The court continued, “I have done a lot of murder cases, and this one was particularly cold. [¶] There are aspects of people who present, you know, in connection with crimes that are the worst aspects, and this could not be worse. Two people have lost their lives. I will reflect on the fact that there is evidence in virtually every life, and including yours, that there are redeeming aspects.”

The abstract of judgment notes that the trial court also imposed a $10,000 restitution fine (§ 1202.4, subd. (b)), a corresponding $10,000 parole revocation fine, suspended unless parole is revoked (§ 1202.45), a $360 court operations fee (§ 1465.8), a $270 court facilities fee (Gov. Code, § 70373), a $384.94 jail booking fee (Gov. Code, § 29550.2), and a $64.82 jail classification fee (§ Gov. Code, 29550.2). However, the trial court failed to state during the oral pronouncement of judgment that it was imposing the parole revocation fine, the court operations fee, or the court facilities fee. Defendant did not object to the fees and fines imposed, and he did not alert the court to any issues relating to his ability to pay.

In addition, the trial court ordered “$5,000 as to John C., $5,000 ordered to be paid to the Victim Compensation Board.” (§ 1202.4, subd. (f).) The probation report clarified that John’s brother had paid $7,000 in funeral costs, and the Victim Compensation Board had paid him $5,000; the brother was not interested in compensation for the remaining balance. The abstract of judgment lists different sums with respect to the victim restitution: In one section, it lists $13,000 in victim restitution per section 1202.4, subdivision (f), but in a separate section it states $5,000 was awarded to the Victim Compensation Board and $7,000 to John C. (totaling $12,000).

The trial court did not discuss custody credits during the sentencing hearing. The abstract of judgment lists 618 days of custody credit.

II. DISCUSSION

A. Jury Instructions

Defendant contends the trial court erred in instructing the jury with CALCRIM Nos. 3471 (mutual combat/initial aggressor) and 3472 (contrived self-defense). Defendant initially argues that there was no factual support for the instructions. Despite the fact that the jury was instructed pursuant to CALCRIM No. 3471 that a person who starts a non-deadly fight has a right to self-defense, defendant also contends that that the contrived self-defense instruction confused the jury because it conflicted with the self-defense instructions, conflicted with his self-defense argument, and relieved the prosecution of its burden to affirmatively disprove self-defense beyond a reasonable doubt. Citing People v. Ramirez (2015) 233 Cal.App.4th 940 (Ramirez), defendant further argues the error was compounded with respect to the contrived self-defense instruction because the prosecutor misstated the law during closing argument.

In the alternative, defendant argues he received ineffective assistance of counsel because his lawyer failed to object to the challenged instructions. In a related argument, defendant further argues the prosecutor’s description of the law of the challenged self-defense instructions during closing argument was misleading and constituted prosecutorial misconduct, and defense counsel was ineffective in failing to object.

Although the People concede the mutual combat/initial aggressor instruction was not supported by the evidence, the People argue defendant forfeited his arguments regarding the two challenged instructions by failing to object during trial. In the alternative, the People contend any error was harmless.

Under section 1259, an appellate court may “review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” An instructional error affects a defendant’s substantial rights only if it is reasonably probable that the defendant would have obtained a more favorable outcome absent the error. (People v. Elsey (2000) 81 Cal.App.4th 948, 953, fn. 2; see People v. Shoals (1992) 8 Cal.App.4th 475, 490-491 [claim of instructional error pertaining to the elements of the crime is not forfeited by the failure to raise the issue in the trial court].) It is error to give an instruction that has no application to the facts of the case; there must be substantial evidence to support the instruction. (People v. Cross (2008) 45 Cal.4th 58, 67; People v. Campbell (1994) 25 Cal.App.4th 402, 408.)

We conclude defendant’s substantial rights were not affected with respect to each of the challenged self-defense instructions because it is not reasonably probable that defendant would have obtained a more favorable outcome.

It is not reasonably probable defendant would have obtained a more favorable outcome had the mutual combat/initial aggressor instruction not been given. Neither party argues the instruction was contrary to the law, and an instruction correctly stating a principle of law but not applicable to the facts of the case is usually harmless, having little or no effect “other than to add to the bulk of the charge.” (People v. Sanchez (1947) 30 Cal.2d 560, 573.) The jury presumably disregarded the legally correct but irrelevant instruction, especially since they were instructed to do so. (See People v. Olguin (1994) 31 Cal.App.4th 1355, 1381 [harmless error in giving correct but irrelevant instruction on contrived self-defense]; see also People v. Carey (2007) 41 Cal.4th 109, 130 [we presume the jurors understood, correlated, and correctly applied the instructions].)

As courts have recognized, CALCRIM No. 3472 “states a correct rule of law in appropriate circumstances.” (Ramirez, supra, 233 Cal.App.4th at p. 947; see also People v. Eulian (2016) 247 Cal.App.4th 1324, 1334.) “[W]hen a defendant contrives a ‘deadly’ assault [citation], there can be no incommensurate or unjustifiable response by the victim; he or she is fully entitled to use deadly force and the defendant has no right to claim self-defense against those deadly measures.” (Ramirez, supra, at p. 947.)

According to defendant, it is reasonably probable he would have obtained a more favorable outcome because the prosecutor misstated the law regarding contrived self-defense during closing argument. Relying on Ramirez, defendant contends the prosecutor erroneously told the jury that defendant forfeited the right of self-defense merely because he provoked a confrontation with John.

In Ramirez, the defendants were gang members who felt harassed by a rival gang. They enlisted a fellow gang member to assist them in confronting and fighting the rival gang. (Ramirez, supra, 233 Cal.App.4th at p. 944.) When the trio encountered members of the rival gang, they provoked a fistfight. One of the defendants testified at trial that one of the rival gang members raised an object that looked like a gun, so he pulled out his gun and shot and killed the rival gang member. (Id. at p. 945.)

The Ramirez court instructed the jury with CALCRIM No. 3472. (Ramirez, supra, 233 Cal.App.4th at p. 945.) The prosecutor stressed the instruction during closing argument, stating it precluded any claim of self-defense even if the defendants only intended a fistfight. (Id. at p. 946.) The appellate court reversed the jury’s finding of first degree murder. (Id. at p. 943.) Combined with the prosecutor’s misstatement of the law of self-defense, the instruction “erroneously required the jury to conclude that in contriving to use force, even to provoke a fistfight, defendants entirely forfeited any right to self-defense.” (Id. at p. 953.) “A person who contrives to start a fistfight or provoke a nondeadly quarrel does not thereby ‘forfeit[ ] . . . his right to live.’ [Citation.] Instead, he may defend himself ‘even when the defendant set in motion the chain of events that led the victim to attack the defendant.’ [Citation.]” (Id. at p. 943.)

Defendant’s reliance on Ramirez is misplaced. There was sufficient evidence that defendant prepared for and intended a deadly attack when he went to John and Breeze’s home. In addition to previously threatening to kill John and saying he was going to “teach [John] a lesson” as he walked into the home, defendant brought his gun and armed one of his two companions. Although the prosecutor correctly stated much of the criteria for the initial aggressor and contrived self-defense laws, he failed to explain that contrived self-defense is inapplicable if a person has used only nonlethal force and the other party suddenly escalates the fight by using lethal force. Viewed in isolation, the prosecutor’s description of when a person may defend himself if he has used only nonlethal force was incomplete at best. But it did not rise to the level of prejudice in Ramirez, where the prosecutor actively misled the jury by incorrectly arguing that it did not matter whether the victim “escalated a nondeadly conflict to deadly proportions.” (Ramirez, supra, 233 Cal.App.4th at p. 950.)

Moreover, viewing the prosecutor’s statements in context, we find no reasonable likelihood that jurors understood them as defendant asserts, especially since the jury was instructed pursuant to CALCRIM No. 3471 that, if the jury found that “defendant used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting, communicate the desire to stop to the opponent[,] or give the opponent a chance to stop fighting.” (See People v. Cortez (2016) 63 Cal.4th 101, 131; see also People v. Carey, supra, 41 Cal.4th at p. 130 [we presume the jurors understood, correlated, and correctly applied the instructions].)

Given our conclusions, we also reject defendant’s related argument that the prosecutor’s comments during closing arguments regarding contrived self-defense constituted prosecutorial misconduct, regardless of whether defendant forfeited the issue by failing to object at trial. (People v. Friend (2009) 47 Cal.4th 1, 29 [“When a claim of misconduct is based on the prosecutor’s comments before the jury, ‘ “the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion” ’ ”].)

To establish a claim of ineffective assistance of counsel, a defendant must prove that (1) trial counsel’s representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficiency resulted in prejudice to defendant, meaning there is “a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.” (See People v. Mai (2013) 57 Cal.4th 986, 1009; see also Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674].) Because defendant has failed to establish prejudicial instructional error, we reject defendant’s contention that his counsel was ineffective in failing to object to the contrived self-defense and mutual combat/initial aggressor instructions.

Given our conclusions, we also find without merit defendant’s related argument that his counsel was ineffective in failing to object to the prosecutor’s description of the law related to the challenged self-defense instructions.

B. Testimony Regarding the Home Invasion Robbery

According to defendant, the prosecutor violated the trial court’s in limine order and questioned defendant about a home-invasion robbery that had been ruled inadmissible. As defendant acknowledges, his lawyer failed to object to these questions, and a defendant generally “ ‘may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.’ ” (People v. Nunez and Satele (2013) 57 Cal.4th 1, 31.)

Defendant argues his counsel was ineffective in failing to object and also failing to preserve this issue for appeal. We find defendant’s contentions without merit.

A testifying defendant may properly be impeached with evidence that includes prior uncharged unlawful acts that would be otherwise inadmissible. (Evid. Code, §§ 780, 1101, subd. (c); cf. People v. Humiston (1993) 20 Cal.App.4th 460, 479-480 [witness’s admission to drug use permits prosecution to inquire into the facts and circumstances surrounding that admission for impeachment purposes].) A testifying defendant may also be impeached with evidence that tends to contradict testimony given on direct examination, even if that evidence would not otherwise be admissible. (People v. Lang (1989) 49 Cal.3d 991, 1017, abrogated on other grounds in People v. Diaz (2015) 60 Cal.4th 1176, 1190; Evid. Code, § 780, subd. (i).)

Although the trial court tentatively ruled the evidence regarding the home-invasion robbery was not admissible, defendant’s testimony on direct that he did not “join in any home robberies with [John]” made the issue relevant. Defendant’s statement was broad and was not necessarily limited to the robberies John committed against people he knew. It was not improper for the prosecutor to attempt to impeach defendant by asking him about his involvement with the home-invasion robbery as described by his ex-girlfriend, especially since the prosecutor’s questions were based on a good faith belief. (See People v. Friend, supra, 47 Cal.4th at p. 80 [a prosecutor may not ask questions of a witness that suggests facts harmful to a defendant if he lacks a good faith belief that such facts exist].)

Given that the prosecutor’s questions regarding any home-invasion robbery were not improper, we find defendant has failed to establish ineffective assistance of counsel. (See People v. Bradley (2012) 208 Cal.App.4th 64, 90 [“[f]ailure to raise a meritless objection is not ineffective assistance of counsel].)

C. Firearm Enhancement

Effective January 2018, section 12022.53, subdivision (h) now provides that a trial court may, in the interests of justice, strike an enhancement pursuant to this section. (See Stats. 2017, ch. 682, § 2.) As both parties acknowledge, the amendment to section 12022.53 is retroactive and applies to cases like defendant’s which are still on appeal and not yet final. (People v. Woods (2018) 19 Cal.App.5th 1080, 1091.) The People contend remand is inappropriate because the trial court indicated that it would not strike the enhancement when it described the murders as “particularly cold[-blooded]” and imposed consecutive sentences for each count subject to determinate sentencing. We disagree.

The discretionary power lies with the sentencing court. (See People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) Accordingly, the appropriate remedy is to remand the matter, unless the trial court clearly indicates that, had it known that it had discretion to lessen the sentence by striking a firearm enhancement, it would not have done so. (People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081.)

D. Abstract and Custody Credit

We now turn to defendant’s contentions of error in the abstract of judgment and the calculation of custody credits.

Defendant contends the abstract of judgment does not accurately reflect the victim restitution, and the People concede. During the sentencing hearing, the trial court ordered $5,000 in victim restitution pursuant to section 1202.4, subdivision (f), but the abstract of judgment lists a different sum. The record indicates that the figure represented the amount paid by the victim compensation board for John’s funeral costs. It has long been held that where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001), 185.) We will order the error corrected.

Defendant also challenges the trial court’s calculation of custody credits. Although the abstract of judgment lists 618 days of custody credit, the trial court failed to address custody credits during the sentencing hearing. We shall remand for the trial court to correct this error. (See People v. Mitchell, supra, 26 Cal.4th at p. 185 [an abstract of judgment “does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize”]; see also People v. Taylor (2004) 119 Cal.App.4th 628, 647 [“A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered”].) Given our conclusion, we need not reach defendant’s contention that the trial court erred in calculating custody credits.

We noted an error in the abstract of judgment during our review of the record. Despite the trial court imposing the midterm on the two counts of possession of a firearm in violation of probation (§ 29815), stayed pursuant to section 654, the abstract of judgment lists the term for these two sentences as zero. We shall order the trial court to correct the abstract to reflect the term imposed.

E. Fines and Fees

Finally, we will address defendant’s argument that the court violated his right to due process by imposing fines and fees without holding a hearing to determine his ability to pay them. This argument relies primarily on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which held “due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant’s present ability to pay before it imposes court facilities and court operations assessments under []section 1465.8 and Government Code section 70373.” (Id. at p. 1164.) The Dueñas court also held “that although []section 1202.4 bars consideration of a defendant’s ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine.” (Ibid.) Defendant requests that we strike the court facility fee, the court operations fee, and the jail fees, and stay imposition of the restitution fine unless and until the People have shown that defendant has the ability to pay. In the alternative, defendant seeks remand for a hearing regarding his present ability to pay.

The People argue defendant forfeited his claim by failing to object on due process grounds or even express any concern about inability to pay in the trial court. The arguments defendant advances in support of his assertion that his claim is not forfeited presuppose that Dueñas was correctly decided. We are not persuaded the analysis used in Dueñas is correct.

Our Supreme Court is now poised to resolve this question, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47 (Kopp), review granted November 13, 2019, S257844, which agreed with the court’s conclusion in Dueñas that due process requires the trial court to conduct an ability to pay hearing and ascertain a defendant’s ability to pay before it imposes court facilities and court operations assessments under section 1465.8 and Government Code section 70373, but not restitution fines under section 1202.4. (Kopp, supra, at pp. 95-96.)

In the meantime, we join several other courts in concluding that the principles of due process do not require determination of a defendant’s present ability to pay before imposing the fines and assessments at issue Dueñas and this proceeding. (People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, 329, review granted Nov. 26, 2019, S258946 (Hicks); People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Caceres (2019) 39 Cal.App.5th 917, 928.)

The Dueñas opinion relies on a line of authorities beginning with Griffin v. Illinois (1956) 351 U.S. 12, which itself rested on the “constitutional guaranties of due process and equal protection” and struck down a state practice of granting appellate review only to individuals who could afford a trial transcript. (Griffin v. Illinois, supra, at pp. 13, 17; see Dueñas, supra, 30 Cal.App.5th at pp. 1166-1169.) As recent appellate court cases have illustrated, the authorities Dueñas cites involving the right of access to courts are inapplicable because the imposition of the fine and assessments at issue in Dueñas and in this proceeding do not deny defendants access to the courts. (Hicks, supra, 40 Cal.App.5th at p. 326, rev. granted; People v. Aviles, supra, 39 Cal.App.5th at pp. 1068-1069; People v. Caceres, supra, 39 Cal.App.5th at p. 927; see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1039 (conc. opn. of Benke, J.).) Griffin also stated broadly, “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” (Griffin, supra, at p. 19.) Another line of cases relied upon by Dueñas utilizes this “principle of ‘equal justice’ ” and prohibits imprisonment based on the failure to pay criminal penalties where the nonpayment was due to indigence. (Bearden v. Georgia (1983) 461 U.S. 660, 661-662, 664; accord In re Antazo (1970) 3 Cal.3d 100, 103-106, 109-110; see Dueñas, supra, at pp. 1166-1168.) The fine and assessments at issue in Dueñas and this appeal subject an indigent defendant “only to a civil judgment that she [or he] cannot satisfy.” (Dueñas, supra, at p. 1167; see also id. at p. 1169.) Further, defendant has been sentenced to life without parole for his crimes. Unlike the defendant in Dueñas, he does not face incarceration because of an inability to pay a fine or assessment. Thus, the authorities prohibiting incarceration for indigence alone are also inapplicable. (Hicks, supra, at p. 326; People v. Caceres, supra, at p. 927.)

We agree with those who have described “the fundamental policy question presented in Dueñas [as] a nettlesome one—namely, under what circumstance is it appropriate to require criminal defendants, many of whom are people of little or no means, to pay assessments that help defray the costs of operating the court system and restitution fines that pour into a statewide fund that helps crime victims?” (Hicks, supra, 40 Cal.App.5th at p. 328, rev. granted.) This “is a question to which . . . the federal and California Constitutions do not speak and thus have left to our Legislature.” (Id. at p. 329.) The question has yet to be resolved. (See Governor’s veto message to Assem. on Assem. Bill No. 927 (Oct. 9, 2019) (2019-2020 Reg. Sess.).) While the legislative and executive branches consider the policy questions raised by Dueñas, we will not grant remand to require a hearing on these issues.

We join those authorities that have concluded that the principles of due process do not supply a procedure for objecting to the fines and assessments at issue in Dueñas and in this proceeding based on the present ability to pay. (Hicks, supra, 40 Cal.App.5th at p. 329, rev. granted; People v. Aviles, supra, 39 Cal.App.5th at p. 1069; People v. Caceres, supra, 39 Cal.App.5th at p. 928.) Defendant’s claim pursuant to Dueñas is without merit.

Our review of the record revealed that the abstract of judgment lists a $10,000 parole revocation fine, suspended unless parole is revoked (§ 1202.45), a $360 court operations fee (§ 1465.8), and a $270 court facilities fee (Gov. Code, § 70373), even though the trial court did not impose these fees and fines during the sentencing hearing. Generally, an oral pronouncement of judgment controls (People v. Mitchell (2001) 26 Cal.4th 181, 185), but, where fees and fines are mandatory, “their omission may be corrected for the first time on appeal.” (People v. Castellanos (2009) 175 Cal.App.4th 1524, 1530; see also People v. Smith (2001) 24 Cal.4th 849, 853 [whenever a sentence includes a period of parole, a parole revocation fine equal to the restitution fine “must” be imposed]; People v. Woods (2010) 191 Cal.App.4th 269, 272 [court operations fee and court facilities fees are mandatory].) We shall order the judgment corrected.

III. DISPOSITION

The judgment is modified to impose a $10,000 parole revocation fine, suspended unless parole is revoked (§ 1202.45), a $360 court operations fee (§ 1465.8), and a $270 court facilities fee (Gov. Code, § 70373). The matter is remanded and the trial court shall exercise its discretion under section 12022.53, subdivision (h), and, if appropriate following exercise of that discretion, to resentence defendant accordingly. On remand, the trial court shall also recalculate custody credits. Consistent with this opinion, the trial court shall prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.

/S/

RENNER, J.

I concur:

/S/

HULL, Acting P. J.

Robie, J., Concurring and Dissenting.

I concur in all parts of the Discussion except the majority’s “Fines and Fees” analysis in part E. I conclude defendant forfeited his challenge to the general restitution fine and the jail fees because our Supreme Court has already determined an objection necessary to challenge the imposition of the fine and fees. (People v. Nelson (2011) 51 Cal.4th 198, 227 [court’s failure to consider ability to pay a restitution fine is forfeited by failure to object]; People v. McCullough (2013) 56 Cal.4th 589, 596-597 [challenge to evidence supporting the imposition of a booking fee imposed under Government Code section 29550.2 forfeited by failure to object].)

As to the court facility fee and court operations fee, I agree with Dueñas that principles of due process would preclude a trial court from imposing such fees if the defendant demonstrates he or she is unable to pay them. (People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168.) As stated in Castellano, however, a trial court is required to determine a defendant’s ability to pay only if the defendant raises the issue, and the defendant bears the burden of proving an inability to pay. (People v. Castellano (2019) 33 Cal.App.5th 485, 490.) In the absence of authority invalidating the challenged fees on inability to pay at the time the trial court imposed them, defendant could not have reasonably been expected to challenge the trial court’s imposition thereof. (People v. Welch (1993) 5 Cal.4th 228, 237 [“[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence”].) As such, because defendant’s conviction and sentence are not yet final, I believe a limited remand under Dueñas is appropriate to permit a hearing on defendant’s ability to pay the court facility fee and the court operations fee. (See Castellano, at pp. 490-491.)

/S/

ROBIE, J.