Filed 1/15/20 P. v. Navarro CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE NAVARRO,

Defendant and Appellant.

G056410

(Super. Ct. No. 17WF2306)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed in part and reversed in part.

Sheila O’Connor, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, A. Natasha Cortina and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.

Jose Navarro appeals from a judgment after a jury convicted him of first degree residential burglary, violation of a protective order, and assault, and found the residence was occupied and the victim, Navarro’s father, was vulnerable. Navarro argues the following: the trial court erroneously excluded evidence to support a consent defense; the court erred by failing to instruct on consent because there was other evidence to support the instruction; insufficient evidence supported his first degree burglary conviction; and the matter must be remanded to determine whether he has the ability to pay assessments and fines. As we explain below, we reverse the court’s order imposing two assessments. In all other respects the judgment is affirmed.

FACTS

An information charged Navarro with the following: first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a), all further statutory references are to the Penal Code, unless otherwise indicated) (count 1); violation of a protective order with a prior conviction (§ 166, subd. (c)(4)) (count 2); misdemeanor battery on M.N. (Mother) (§ 242) (count 3); and misdemeanor assault on J.N. (Father) (§ 240) (count 4). As to count 1, the information alleged a non-accomplice was present during the residential burglary (§ 667.5, subd. (c)(21)), and the victim was vulnerable (§ 667.9, subd. (a)). The information alleged he suffered a prior serious and violent felony (§§ 667, subds. (d) & (e)(1), 1170.12, subds. (b) & (c)(1)), a prior serious felony (§ 667, subd. (a)(1)), and a prior prison term (§ 667.5, subd. (b)).

Before trial, the trial court denied Navarro’s motion to dismiss count 1 (§ 995) and the information (§ 654; Kellett v. Superior Court (1966) 63 Cal.2d 822). As relevant here, the court granted the prosecution’s motion to offer evidence of uncharged offenses pursuant to Evidence Code section 1101 as to counts 1 and 2. The prosecution’s theory as to count 1, burglary, was Navarro unlawfully entered his parents’ home with the intent to steal shower water.

I. Prosecution Evidence

Navarro was the subject of multiple court orders preventing him from contacting his parents. Navarro knew the terms of the orders and had the ability to follow them.

On September 11, 2017, officer Cecilia Martinez testified she responded to a call at Father and Mother’s home at 9:00 a.m. Mother told Martinez that Navarro was knocking on the front door and trying to enter at about 8:30 a.m. Father, who was

73 years old, told her that Navarro tried to enter about 5:30 a.m. Neither Mother nor Father answered the door, and they both told him to go away. Father closed and locked all the doors.

Navarro entered the house without Mother’s or Father’s permission. Both Mother and Father were afraid of Navarro.

Mother told Martinez that she heard the shower running and she knocked on the bathroom door and told Navarro to get out of the house. After the shower had been off for about 10 minutes, Mother knocked again and Navarro came out. With an open hand, Navarro pushed Mother on the shoulder, pinning her against the wall. Navarro began arguing with Father. Father told Navarro to leave. Navarro tried to push Father, but Father got out of the way.

When Mother was on the telephone with the police dispatcher, Navarro said “stupid bitch.” Father saw Navarro leave. Martinez and her partner looked for Navarro but they were unable to find him. Later that day, Martinez returned to the residence. Mother and Father told her that Navarro returned earlier that afternoon and threw chairs around the backyard.

The next day, Martinez returned to Mother and Father’s home. Father told Martinez that Navarro took the telephone into the bathroom and took another shower. When he left the bathroom, he cooked food. Father told Navarro to leave, but he refused. When Father told Navarro that he was going to call the police, Navarro left, and Father locked the door. Navarro kicked a hole in the front door. Martinez arrested Navarro nearby.

After Martinez advised Navarro of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, she interviewed him. Navarro admitted he was transient and was at his parent’s house recently to get clothes and personal belongings. When Martinez asked if he had a confrontation with his parents, Navarro replied, “it was a simple family dispute.” When Martinez asked about the hole in the front door, Navarro denied kicking it and called Father “a liar” and said, “he’s going crazy from old age.” When Martinez asked if Navarro knew he was not supposed to go into his parents’ house, Navarro said “he knew he was not supposed to be there.” He then said “somebody” gave him permission to go into his parents’ home.

The prosecution offered evidence of Navarro’s prior conduct. In May 2013, Navarro told Mother that he was going to set the house on fire. In February 2015, Navarro climbed through a window and Father could not get him to leave. In November 2015, Mother returned home to find Navarro inside the home. He began yelling erratic statements and throwing things around the house. In August 2017, Navarro sprayed Father in the chest with a garden hose and spit on his face.

Mother and Father testified through a Spanish language interpreter for the prosecution. Mother testified she could not remember much of the events on September 11, 2017, and she could not remember what she told Martinez. She stated the backdoor was always unlocked, and Navarro did enter and use the shower. She initially denied Navarro pushed her and later said it was an accident. She called the police to protect Navarro, not herself. She said police officers included information in reports that did not happen, and she refused to refresh her recollection with the reports.

On cross-examination, Mother testified Navarro had never taken anything without her permission and his personal belongings were at the house. Defense counsel asked Mother whether she let Navarro come into the house to take showers when there was a restraining order in place. The trial court sustained the prosecutor’s relevance objection. Defense counsel asked Mother whether she let Navarro come to the house when there was a restraining order in place. The court sustained the prosecutor’s relevance objection.

On redirect examination, Mother stated that on September 11, 2017, she told Navarro he was not allowed to come inside the house or use the shower, but he entered the house and used the shower.

On recross-examination, Mother testified she thought that by getting a restraining order, Navarro would be taken to a drug treatment program where he could get help. The following colloquy occurred:

“[Defense counsel]: When the police came to talk to you on [the date of the charged offense], you did not say anything to them about a theft, did you?

“[Mother]: No.

“[Prosecutor]: Objection, calls for a legal conclusion as to theft.

“[Trial court]: It is what she said, overruled.

“[Mother]: No. He has never stolen anything.

“[Defense counsel]: Despite everything that you and your son have gone through, you’ve never denied him water, have you?

“[Prosecutor]: Objection, relevance.

“[Trial court]: Sustained.

“[Defense counsel]: Despite everything that was happening on [the day of the charged offense], on that day you did not deny your son water?

“[Prosecutor]: Objection, misstates the witness’s testimony, relevance.

“[Trial court]: Sustained.

“[Defense counsel]: Despite everything that happened on [the day of the charged offense], your son did not take water that day without your permission?

“[Prosecutor]: Objection, relevance.

“[Trial court]: Well, sustained. She already testified he took a shower and she told him not to.

“[Defense counsel]: She, also, testified that he has never taken anything without permission.

“[Trial court]: Okay, that’s fine.

“[Defense counsel]: When . . . Navarro took a shower on [the day of the charged offense], even though you told him not to, you did not consider the taking of that water a taking without your permission, did you?

“[Prosecutor]: Objection, relevance.

“[Trial court]: Sustained. It makes no difference whether she considered it.

“[Defense counsel]: Consent, your [h]onor.

“[Trial court]: Sustained.

“[Defense counsel]: It is a defense to first degree.

“[Trial court]: I understand. Sustained.”

Father testified Navarro did not try to break into the house. He stated the back door was always unlocked. When the prosecutor asked if he told the police officer he locked all the doors, he admitted he did but said “[he] exaggerated everything to see if they would pay attention to [him].” He denied Navarro pushed him and again claimed he exaggerated to the police. He too claimed he called the police to protect Navarro, not himself.

II. Defense Evidence

At the close of the prosecution’s case-in-chief, the trial court denied Navarro’s section 1118.1 motion to dismiss count 1. Navarro did not offer any witnesses.

III. Jury Instructions, Jury Verdicts & Sentencing

During a discussion of the jury instructions and CALCRIM No. 375, “Evidence of Uncharged Offense,” defense counsel requested the trial court include bracket G of that instruction, which stated, “‘the defendant reasonably and in good faith believed that his parents consented to him being at the home.’” The court said there was no evidence his parents consented. Counsel asserted there was evidence he had a room in the home, his personal belongings were there, and his parents considered their home his home. After the court stated it would have the prosecutor include bracket G if counsel presented evidence his parents consented, counsel stated she believed there was sufficient evidence to support it. The court disagreed. The court instructed the jury with CALCRIM No. 375, but without bracket G.

The jury convicted Navarro of count 1 and found true the residence was occupied and the victim was vulnerable. The jury acquitted him on counts 2 and 3, but convicted him of the lesser included offenses of violating a protective order and assault. The jury acquitted him on count 4. For reasons not relevant here, the trial court dismissed the prior conviction allegations.

The trial court sentenced Navarro to four years on count 1 plus two years for the vulnerable victim enhancement for a total prison term of six years. The court imposed concurrent sentences on counts 2 and 3. The court ordered him to pay a $300 restitution fine (§ 1202.4), a $300 parole revocation fine (stayed) (§ 1202.45), a $40 court operation assessment (§ 1465.8), and a $30 conviction assessment (§ 70373). In imposing the latter two assessments, the court stated the $70 fee was “for each count convicted.” Later, when the court clerk inquired about the sentencing and probation report fees, and the public defender fees, the court concluded Navarro did not have the ability to pay. A couple months later, the trial court issued a nunc pro tunc order reducing the sentencing on the vulnerable victim enhancement to one year for a total prison term of five years.

DISCUSSION

I. Exclusion of Evidence & Jury Instruction

Navarro argues the trial court erred by excluding evidence to support a defense of consent and by failing to instruct the jury on consent. Neither claim has merit.

“The offense of burglary is committed when a person enters a building with the intent to commit a theft . . . . (§ 459.) However, a defense to a charge of burglary is available ‘when the owner actively invites the accused to enter, knowing the illegal, felonious intention in the mind of the invitee. [Citation.] But the invitation by the owner to enter must be express and clear; merely standing by or passively permitting the entry will not do. [Citation.] . . . [T]he owner-possessor must know the felonious intention of the invitee. There must be evidence “of informed consent to enter coupled with the ‘visitor’s’ knowledge the occupant is aware of the felonious purpose and does not challenge it.”’ (People v. Felix (1994) 23 Cal.App.4th 1385, 1397-1398, . . . (Felix).) ‘[T]he burglary law is designed to protect a possessory right in property against intrusion and the risk of harm.’ [Citations.] Lack of consent is not an element of burglary. [Citations.] The burden of proof regarding the consent defense is on the defendant, because the exonerating facts establishing the consent defense are particularly within the knowledge of the defendant. [Citation.] But the defendant’s burden is simply to raise a reasonable doubt as to the facts underlying the consent defense: (1) whether an owner/possessor invited defendant to enter; (2) whether the owner/possessor knew of defendant’s felonious intention; and (3) whether defendant knew the owner/possessor knew of defendant’s felonious intent. [Citation.] As the Felix court explained, the invitation to enter must be express and clear. [Citation.]” (People v. Sigur (2015)

238 Cal.App.4th 656, 667-668.)

A. Exclusion of Evidence

Navarro argues the trial court’s exclusion of Mother’s testimony prevented him from presenting a defense by demonstrating his parents consented to his entry and he lacked the specific intent to commit a theft. We disagree.

“[D]ue process requires state courts to admit reliable evidence that is critical to the defense in criminal cases. [Citation.]” (People v. Vines (2011) 51 Cal.4th 830, 864, overruled on other grounds in People v. Hardy (2018) 5 Cal.5th 56, 104.) Nonetheless, “‘“[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s right to present a defense.”’ [Citations.]” (People v. Lucas (2014) 60 Cal.4th 153, 270 (Lucas)), disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53-54, fn. 19.) Under California evidentiary rules, “[o]nly relevant evidence is admissible. [Citation.] Relevant evidence is broadly defined as that having a ‘tendency in reason to prove or disprove any disputed fact that is of consequence’ to resolving the case. [Citation.] Inferences drawn from the evidence must be logical and reasonable, not merely speculative. [Citations.]” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 405.) We review the trial court’s evidentiary ruling for an abuse of discretion. (Lucas, supra, 60 Cal.4th at p. 229.)

Here, the evidence established that on September 11, 2017, Navarro began trying to get into his parents’ home at 5:30 a.m. and continued until 8:30 a.m. Mother and Father both told Navarro to go away. Mother testified she told Navarro he was not allowed to come inside the house or use the shower. After Navarro entered the home and locked himself in the bathroom, Mother tried to get him out of the house. Evidence Mother may have previously and passively allowed Navarro to enter the home to obtain personal belongings or take a shower while there was a restraining order in place was irrelevant to what happened on September 11, 2017, when a restraining order prohibited him from entering the home and his parents told him he could not enter.

Contrary to Navarro’s claim, the court did not prevent him from presenting a defense, but instead simply excluded irrelevant evidence, and thus his due process rights were not violated. (Lucas, supra, 60 Cal.4th at p. 270.) The trial court did not abuse its discretion in excluding Mother’s testimony on these topics.

B. Jury Instruction

Navarro contends the trial court erred by denying his request to instruct the jury on consent. Not so.

The trial court must instruct the jury on a defense if requested by the defendant and if the defense is supported by substantial evidence. (People v. Nguyen (2015) 61 Cal.4th 1015, 1049.) “‘Substantial evidence is “evidence sufficient ‘to deserve consideration by the jury,’ not ‘whenever any evidence is presented, no matter how weak.’”’ [Citations.]” (People v. Wilson (2005) 36 Cal.4th 309, 331.) “In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether ‘there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt . . . .’ [Citations.]” (People v. Salas (2006) 37 Cal.4th 967, 982-983.) The court must resolve any doubts regarding the sufficiency of the evidence in favor of the defendant. (People v. Larsen (2012) 205 Cal.App.4th 810, 824.) We review the issue de novo. (Ibid.)

Here, because we conclude the trial court did not abuse its discretion by excluding portions of Mother’s testimony above, we must determine whether there was other evidence supporting instructing the jury with paragraph G of CALCRIM No. 375. Navarro asserts there was evidence to support giving the instruction, namely Mother testified the back door was always open, Navarro never took anything without permission, and his personal belongings were inside the house. This was not sufficient evidence supporting the instruction. Felix, supra, 23 Cal.App.4th 1385, is instructive.

In Felix, supra, 23 Cal.App.4th at page 1390, defendant entered his sister’s home and took valuable items. In rejecting defendant’s claim the trial court had a sua sponte duty to instruct on consent, the Felix court stated lack of consent was not an element of burglary, but there were occasions when an owner’s consent to enter could constitute a defense to burglary. (Id. at p. 1397.) One occasion was when an owner expressly and clearly invited the accused to enter knowing of the accused’s felonious intent. (Id. at pp. 1397-1398.) The court opined the latter point was “crucial[,]” explaining, “The occupant must know the person he is inviting into the home intends to interfere with his possessory rights; and the invitee must be able to show the occupant possesses this knowledge.” (Id. at p. 1398.) The court concluded defendant, through his and his sister’s statements, knew he did not have his sister’s express consent to enter. (Id. at p. 1399.) After stating it was defendant’s state of mind “that was pivotal,” the court concluded defendant knew he had no possessory interest in the items. (Id. at p. 1399.)

Here, like in Felix, there was no evidence Mother or Father expressly and clearly invited Navarro to enter the home. In fact, the converse was true. The evidence demonstrated Mother and Father both told Navarro he could not enter the house and Mother told him that he could not take a shower. Navarro’s statement to police proved this fact when he said, “he knew he was not supposed to be there.” He immediately changed his story and said “somebody” gave him permission, without explaining who that somebody was. There was no evidence it was his parents. “Parents have a right of possession in their home superior to the right of their children in that home.” (In re Richard M. (1988) 205 Cal.App.3d 7, 17 [“the law does not require them to submit to the adolescent tyranny of a drug addict son who seeks to enter the home for the purpose of committing a theft”].) The evidence the back door was always open and his belongings were there do not establish express and clear permission to enter. Also like in Felix, the evidence demonstrated Navarro knew he had no possessory interest in the shower water when his Mother told him he could not take a shower.

Navarro’s reliance on People v. Thomas (1977) 74 Cal.App.3d 320, is misplaced. In that case, there was evidence the store owner hired defendant to break into the store and take property either for safekeeping or because the owner was dealing in stolen property. (Id. at pp. 322-323.) Again, Navarro did not offer any evidence his parents expressly and clearly permitted him to enter the home. The trial court did not err by refusing to instruct the jury with paragraph G of CALCRIM No. 375.

II. Sufficiency of the Evidence

Navarro argues insufficient evidence supports his conviction for count 1. Again, we disagree.

“[We] review[] the denial of a section 1118.1 motion under the standard employed in reviewing the sufficiency of the evidence to support a conviction. [Citation.] ‘[W]e do not determine the facts ourselves. Rather, we “examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence . . . . [Citation.] “[I]f the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.” [Citation.] We do not reweigh evidence or reevaluate a witness’s credibility.’ [Citation.] Review of the denial of a section 1118.1 motion made at the close of a prosecutor’s case-in-chief focuses on the state of the evidence . . . at that point. [Citation.]” (People v. Houston (2012) 54 Cal.4th 1186, 1215.)

A person who enters a house, room, or apartment with the intent to commit larceny or any felony is guilty of burglary. (§ 459.) The burglary of an inhabited dwelling is first degree burglary. (§ 460, subd. (a).)

Here, substantial evidence supported Navarro’s conviction on count 1. There were multiple protective orders prohibiting Navarro from having contact with his parents. On the day of the charged offense, when Navarro knocked on the door, his parents did not open the door and told him to go away. Despite the protective order and his parents’ request that he leave, Navarro entered the house, locked himself in the bathroom, and took a shower. Navarro told the police officer he knew he was not supposed to go in the house, although he subsequently said a mystery person told him he could. Again, his parents did not give him permission to enter. Based on this evidence, the jury could reasonably conclude Navarro unlawfully entered the house with the specific intent to steal shower water.

Navarro relies on People v. Navarro (1979) 99 Cal.App.3d Supp. 1 (Navarro), to argue he had a claim of right to take a shower. Navarro is inapposite.

In Navarro, defendant was charged with grand theft for taking four wooden beams from a construction site. (Navarro, supra, 99 Cal.App.3d Supp. at pp. 2-3.) At trial, defendant testified he had a good faith belief the property was abandoned and he had the owner’s permission to take the property, and defense counsel requested two special mistake of fact instructions. (Id. at pp. 3, 5-6.) Although the trial court instructed on the mistake of fact defense, it modified defendant’s proposed instructions by instructing the good faith belief had to be reasonable. (Id. at p. 3.) The Navarro court reversed defendant’s conviction, explaining there was long precedent for a claim-of-right defense. (Id. at pp. 10-11.) The court reasoned that a defendant “‘does not have the required mental state and thus may not be convicted of the crime’” if “‘by a mistake of either fact or law did not know’” he had no right to take the abandoned property. (Id. at p. 10.)

Here, Navarro acknowledges he did not request a claim of right instruction. Indeed, there was no evidence he held a good faith belief he had a right to enter the house and take a shower. As we explain above, a protective order and his parents prohibited him from coming inside the house and showering. Additionally, Navarro told a police officer he knew he was not supposed to enter the house. The jury heard the evidence the back door was always open, Navarro never took anything without permission, and his personal belongings were inside the house, and still convicted him of burglary. We cannot reweigh the evidence and substitute our judgment for the jury’s. Sufficient evidence supports his conviction for count 1.

III. Assessments & Fines

A. People v. Dueñas

Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Navarro argues the trial court violated his due process rights by imposing fees and fines without conducting an ability to pay hearing. The Attorney General agrees concerning the section 1465.8 and Government Code section 70373 assessments but disagrees regarding the section 1202.4 restitution fine. As we explain below, we reverse the court’s order imposing the section 1465.8 and Government Code section 70373 assessments but affirm the order imposing the section 1202.4 restitution fine.

In Dueñas, supra, 30 Cal.App.5th at pages, 1160-1161, defendant was a married mother of two who suffered from cerebral palsy and was unemployed, homeless, and living on public assistance. As a juvenile, she suffered three juvenile citations and because she could not pay the $1,088 in fines, her driver’s license was suspended. (Id. at p. 1161.) She subsequently suffered three misdemeanor convictions for driving on a suspended license, and another conviction, and because she could not afford to pay those fines, she served jail time, but she remained liable for court fees and attorney fees. (Ibid.) After she suffered a fourth conviction for driving on a suspended license and could not obtain a driver’s license by the time of the sentencing hearing, the trial court suspended the sentence and placed her on three years of probation on the condition she serve

30 days in jail and pay $300, plus a penalty and assessment, or that she serve an additional nine days in jail. (Id. at p. 1162.) Defendant’s counsel indicted she did not have the ability to pay, and the court ordered her to serve the additional nine days. The court also imposed a $30 court facilities assessment (Govt. Code, § 70373), a $40 court operations assessment (§ 1465.8), and a $150 restitution fine (§ 1202.4). (Dueñas, supra, 30 Cal.App.5th at p. 1162.) Defendant requested an ability to pay hearing for the prior court and attorney fees. (Ibid.) At the ability to pay hearing, the court concluded she lacked the ability to pay the attorney fees and waived them. (Id. at p. 1163.) However, the court stated the $30 court facilities assessment (Govt. Code, § 70373), and $40 court operations assessment (§ 1465.8) were both mandatory regardless of her ability to pay. (Dueñas, supra, 30 Cal.App.5th at p. 1163.) In doing so, the court rejected her claim due process and equal protection required the court to consider her ability to pay. (Ibid.) As to the $150 restitution fine (§ 1202.4), the court concluded she had not shown the “‘compelling and extraordinary reasons’ required by statute to justify waiving the fine.” (Dueñas, supra, 30 Cal.App.5th at p. 1163.)

The Dueñas court reversed, holding due process prohibited a trial court from imposing a court facilities assessment (Govt. Code, § 70373), and court operations assessment (§ 1465.8), and required the trial court to stay execution of any restitution fines (§ 1202.4), until the trial court ascertained the defendant’s ability to pay those assessments and fines. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The Dueñas court noted the state may not deny access to the courts or inflict punishment on criminal defendants based solely on their poverty. (Id. at pp. 1165-1166.) As to the assessments, court funding mechanisms, the court explained imposing them without an ability to pay determination was additional punishment and fundamentally unfair because they could lead to “cascading” and “potentially devastating consequences,” including impeding reentry and rehabilitation, limiting employment opportunities, damaging credit, and interfering with other financial commitments. (Id. at pp. 1163, 1168 & fn. 4 [court based decision on due process but noted convergence of due process and equal protection principles].) With respect to the restitution fine, which was additional punishment, the court reasoned that by prohibiting the consideration of a defendant’s ability to pay the minimum fine, “the criminal justice system punishes indigent defendants in a way that it does not punish wealthy defendants.” (Id. at pp. 1169-1170.) The court opined imposing a restitution fine without an ability to pay determination on a probationer was fundamentally unfair because an unsatisfied restitution obligation necessarily deprives the indigent defendant of the opportunity to obtain mandatory expungement of the conviction as a matter of right whereas a wealthy defendant earns that right. (Id. at

pp. 1171-1172 & fn. 8 [court based decision on due process but noted due process sufficiently similar to federal and California ban on excessive fines].)

1. Forfeiture

The Attorney General argues Navarro “[a]rguably” forfeited review of this claim but acknowledges Navarro’s failure to object may have been due to inadvertence. The Attorney General addresses the merits and requests this court “reverse the order requiring him to pay the $70 fees” and conclude the restitution fine was proper. Because of the Attorney General’s request, we need not address forfeiture.

2. Merits

Much has been written about whether Dueñas was correctly decided. Some courts disagree with its holding (see People v. Hicks (2019) 40 Cal.App.5th 320, rev. granted Nov. 26, 2019 (S258946)), while agreeing the downward cascade of fines and fees on the poor is a serious problem that requires Legislative attention (id. at p. 329). We find it unnecessary to weigh in on this debate because the factual differences between the defendant in Dueñas and Navarro are significant. The defendant in Dueñas had cerebral palsy and was a married mother of two who was unemployed, homeless, and on public assistance. She suffered multiple misdemeanor convictions that resulted in fines and fees she could not pay. Because she was destitute, she chose to serve jail time instead of paying the fines and fees. As the Dueñas court noted, “‘“The ‘choice’ of paying [a] $100 fine or spending 30 days in jail is really no choice at all to the person who cannot raise $100. The resulting imprisonment is no more or no less than imprisonment for being poor . . . [.]” [Citation.]’ [Citations.]” (Dueñas, supra,

30 Cal.App.5th at pp. 1166-1167.)

Here, the Attorney General requests we reverse the order requiring Navarro to pay the $40 court operation assessment (§ 1465.8), and a $30 conviction assessment (Gov. Code, § 70373). We note the court imposed the $70 fee “for each count convicted.” Navarro suffered three convictions, and those assessments were required for each count. (People v. Calles (2012) 209 Cal.App.4th 1200, 1226 [Gov. Code, § 70373 requires fee imposed for each count]; People v. Schoeb (2005) 132 Cal.App.4th 861,

865-866 [§ 1465.8 requires fee imposed for each count].) Thus, the order imposing the section 1465.8 court operation assessment and the Government Code section 70373 conviction assessment is reversed.

As to the section 1202.4 restitution fine, the record does not include any evidence Navarro suffers from the same challenges as the Dueñas defendant. The record includes some evidence Navarro was indigent but he was not subject to mounting fines that forced him to choose between paying the fines or serving jail time. Simply put, Navarro was not similarly situated to the Dueñas defendant who was burdened by the “cascading” and “devastating consequences” of mounting fines and fees. (See People v. Johnson (2019) 35 Cal.App.5th 134, 139 (Johnson).) Thus, based on the facts in this case, we conclude the $300 restitution fine (§ 1202.4) did not amount to a due process violation. (People v. Caceres (2019) 39 Cal.App.5th 917, 926-928 [Dueñas’s “broad holding” limited to its “unique facts”].)

3. Prejudice

Assuming for purposes of argument Navarro suffered a due process violation, we conclude any error is harmless beyond a reasonable doubt. (Johnson, supra, 35 Cal.App.5th at pp. 139-140, citing Chapman v. California (1967) 386 U.S. 18, 24.)

“‘Ability to pay does not necessarily require existing employment or cash on hand.’ [Citation.] ‘[I]n determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant’s present ability but may consider a defendant’s ability to pay in the future.’ [Citation.] This include[s] the defendant’s ability to obtain prison wages and to earn money after his release from custody. [Citation.]” (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837; People v. Frye (1994) 21 Cal.App.4th 1483, 1487; People v. Ramirez (1995) 39 Cal.App.4th 1369, 1377.)

We can infer Navarro has the ability to pay the fines and fees imposed upon him from probable future wages, including prison wages. (People v. Douglas (1995)

39 Cal.App.4th 1395, 1397.) “Prison wages range from $12 to $56 per month, depending on the prisoner’s skill level. [Citations.] The state may garnish between 20 and 50 percent of those wages to pay the section 1202.4, subdivision (b), restitution fine. [Citations.]” (People v. Aviles (2019) 39 Cal.App.5th 1055, 1076.)

Although no hearing was held or requested, the record suggests Navarro had an ability to pay the $300 in fees and fines. The fact Navarro was represented in the trial court and on appeal by appointed counsel does not necessarily demonstrate an inability to pay the fines and fees. “[A] defendant may lack the ‘ability to pay’ the costs of court-appointed counsel yet have the ‘ability to pay’ a restitution fine[]” or other fees imposed by the trial court. (People v. Douglas (1995) 39 Cal.App.4th 1385, 1397.)

Although there was evidence Navarro was indigent and homeless, there is no indication Navarro, a 37-year-old felon sentenced to prison for four years, is in danger of becoming indigent while imprisoned such that he lacks the future ability to pay his fees and fines.

As evidenced by his probation report, although Navarro has a substance abuse problem, he has a “moderate[]” desire to seek treatment. Before his substance abuse problems, he worked in a grocery store, warehouse, and steel factory. He held other jobs, including, housekeeping, landscaping, and construction. His health is otherwise “average” and one of his hobbies is boxing. These facts demonstrate Navarro is physically capable of working and earning money in custody and will be able to pay a $300 restitution fine from his future prison wages. To the extent debt remains following his release, it is not reasonable to conclude he would be unable to pay that balance. Thus, Navarro will not be without the ability to pay fees and a fine while imprisoned.

B. Eighth Amendment

Navarro also contends the section 1202.4 restitution fine was excessive in violation of the Eighth Amendment. Not so.

The Eighth Amendment’s prohibition on excessive fines is incorporated to the states by the Fourteenth Amendment’s due process clause. (Timbs v. Indiana (2019) ___ U.S. ___, 139 S.Ct. 682.) A fine is excessive, and thus disproportionate, in violation of the Eighth Amendment: “(1) the defendant’s culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant’s ability to pay. [Citations.]” (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728, citing to U.S. v. Bajakajian (1998) 524 U.S. 321 (Bajakajian).) While ability to pay may be part of the proportionality analysis, it is not the only factor. (Bajakajian, supra, 524 U.S. at pp. 337-338.)

Section 1202.4, subdivision (b), requires a trial court to impose a restitution fine when a person is convicted of a crime. Section 1202.4, subdivision (c), prohibits a court from considering a defendant’s ability to pay the minimum $300 restitution fine. (Compare § 1202.4, subd. (d) [court may consider defendant’s ability to pay when imposing fine in excess of minimum fine].) Thus, there is a tension between the Eighth Amendment’s proportionality analysis and section 1202.4, subdivision (b), when a trial court imposes the minimum $300 restitution fine. We need not resolve this tension.

Navarro focuses entirely on the ability to pay factor. Although the trial court concluded Navarro did not have the ability to pay the sentencing and probation report fees, and the public defender fees, as we explain above we conclude he possesses the physical and job skills to work while in prison and satisfy the $300 restitution fine.

(§ 1202.4, subd. (c).)

DISPOSITION

We reverse the order imposing the section 1465.8 court operation assessment and the Government Code section 70373 conviction assessment. In all other respects, the judgment is affirmed.

O’LEARY, P. J.

WE CONCUR:

THOMPSON, J.

GOETHALS, J.