Filed 1/22/20 P. v. Cooper CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

MARQUESE DAVION COOPER,

Defendant and Appellant.

E070962

(Super.Ct.No. BAF1700970)

OPINION

APPEAL from the Superior Court of Riverside County. Jeffrey Prevost, Judge. Affirmed and remanded with directions.

Jason L. Jones, 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, Assistant Attorney General, Melissa Mandel, Michelle Ryle and Stephanie Chow, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant and appellant Marquese Davion Cooper of first degree residential burglary. After finding true various sentencing allegations that defendant suffered prior convictions, including three “strike” convictions for purposes of sentencing under the three strikes law, the trial court sentenced defendant to a determinate term of 17 years in state prison, plus an indeterminate term of 25 years to life. The court also imposed various fees. On appeal, defendant contends: (1) the trial court erred by admitting evidence of his 2011 first degree residential burglary conviction; (2) we must remand this case for the trial court to consider whether to dismiss one or more of defendant’s five-year enhancements for serious prior felonies under statutory amendments enacted after he was sentenced (Pen. Code, §§ 667, subd. (a), 1385, subd. (b), as amended by Stats. 2018, ch. 1013, §§ 1, 2); and (3) various fees imposed at sentencing must be stricken. The People concede one of the fees must be stricken. In addition, the parties agree defendant’s two one-year prior prison term enhancements (Pen. Code, § 667.5, subd. (b), as amend. by Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020) must be stricken under a more recent statutory amendment.

We remand for resentencing and direct the trial court to strike two of defendant’s fees, to exercise its new discretion to determine whether to strike one or more of defendant’s five-year serious prior felony enhancements, and to strike both of defendant’s one-year prior prison term enhancements. In all other respects, we affirm the judgment.

I.

FACTS AND PROCEDURAL BACKGROUND

At 2:30 p.m., on August 25, 2017, A.B. left her Cabazon apartment to go to work. Her front door and windows were closed and locked when she left.

Around 5:00 p.m., J. and defendant visited J.W. (A.B.’s neighbor) at his apartment. J.W. and J. were friends, and J. would visit him three to four times a week. J.W. had never met defendant before. About 20 minutes later, defendant said he was going to walk home and left J.W.’s apartment. Defendant had a jacket with him, but no bag. J. stayed for another 25 minutes before leaving. J.W. walked J. to her car, which was parked in front of the apartment.

After J. drove away, J.W. walked over to see a neighbor. He saw a man with a jacket and a dark bag walk from behind the apartments. J.W. then noticed that a window screen to A.B.’s apartment had been pulled away, and the front door was open about an inch and a half. J.W. had driven by A.B.’s apartment an hour earlier and had not noticed the front door open or the window screen pushed in. As he continued walking in an attempt to discover who had come out from behind the apartments, J.W. saw defendant get into J.’s car. Defendant now had a bag with him.

A.B.’s sister, D.B., lived in a home next door. She was outside smoking a cigarette when she saw J. drive her black vehicle out of the driveway to the apartment complex with defendant in the passenger seat. D.B. recognized J. because of her frequent visits to J.W., and she knew defendant from high school. The dome light to the vehicle was illuminated, and D.B. saw defendant hunched over fiddling with something on the floorboard. A moment later, J.W. walked over and said A.B.’s front door was open. D.B. knew her sister was at work, and she knew of no reason why the front door would be open.

The two then walked to A.B.’s apartment. D.B. saw the front door open and called A.B. on the telephone to let her know. A.B. said she had not left her door open. D.B. and J.W. then entered the apartment. D.B. saw that a kitchen window screen had been pushed open, and a chair placed beneath the window had a shoe print on it. D.B. then exited the apartment and waited for her sister to come home. As she waited outside, D.B. saw J. drive back into the apartment complex, this time accompanied by her boyfriend. This was approximately 25 to 30 minutes after D.B. had seen J. drive away from the complex. D.B. approached J. and asked if she knew anything about the break-in, and J. once more drove off.

As she was returning home from work, A.B. saw J. and her boyfriend driving out of the complex. When she entered her apartment, A.B. saw that things had been thrown around, her window screen had been ripped, and her laptop computer was missing. She then locked her front door and went with D.B. to Banning to speak to J. and find out what she knew about the break-in. When they arrived at J.’s residence, A.B. and D.B. saw the black vehicle parked in the driveway with J.’s boyfriend in the driver’s seat. The boyfriend said J. had gone somewhere on a bicycle, and he was going to drive around and look for her. A.B. and D.B. followed. When the boyfriend stopped, J., who had been hiding in the back seat, threw a backpack containing A.B.’s laptop out the window and said: “I had nothing to do with it.” The sisters then followed J. and her boyfriend to Moreno Valley where they managed to flag down a police officer, who stopped the vehicle and notified Cabazon police about the break-in.

When she returned to her apartment, A.B. discovered that some of her clothing and shoes were missing, as well as $800 in cash. She then noticed the shoe print on a chair in the kitchen, which had not been there before, and an eyeglass case on the kitchen table, which was not hers. A police officer investigating the burglary opened the blinds to the kitchen window, and a screwdriver that did not belong to A.B. fell out. The shoe print on the chair had a diagonal tread, a distinct border, the letters A, S, and D, and the name Adidas.

Defendant was arrested a few days later at a casino after he was confronted by D.B. and fled on foot. He was wearing Adidas shoes with a diagonal tread and a definite border. A.B. had not given defendant permission to enter her apartment.

At trial, the parties stipulated that on April 19, 2011, defendant was convicted of first degree residential burglary in San Diego County. A jury convicted defendant on the sole felony count of first degree residential burglary. (Pen. Code, § 459.) In a bifurcated proceeding, the trial court found true the allegations that defendant had suffered three strike priors (Pen. Code, §§ 1170.12, subd. (c)(2), 667, subds. (c), (e)(2)(A)), three serious felony priors (Pen. Code, § 667, subd. (a)), and had served two prior prison terms (Pen. Code, § 667.5, subd. (b)).

The court denied defendant’s request pursuant to Romero to strike one or more of his “strike” convictions and sentenced him to a determinate term of 17 years in state prison (three five-year serious felony enhancements, plus two one-year prior prison term enhancements), plus an indeterminate sentence of 25 years to life under the three strikes law for the burglary conviction. The court imposed the following fees and fines: a $1,095 presentence probation report fee, but the court found defendant lacked the ability to pay and stayed the fee (Pen. Code, § 1203.1b); a $514.58 booking fee (Gov. Code, § 29550.2); a $1,500 incarceration fee, but stayed it (Pen. Code, § 1203.1c); a $30 conviction assessment (Gov. Code, § 70373); a $40 court operations assessment fee (Pen. Code, § 1465.8); a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)); and a $300 parole revocation restitution fine, to be stayed pending successful completion of parole and to be permanently stayed thereafter (Pen. Code, § 1202.45).

Defendant timely appealed.

II.

DISCUSSION

A. The Trial Court Correctly Admitted Evidence of Defendant’s Prior Conviction for First Degree Burglary.

Defendant argues the trial court erred prejudicially by admitting evidence of his 2011 conviction for first degree residential burglary pursuant to Evidence Code section 1101, subdivision (b) (§ 1101(b)), and by not excluding the evidence as overly prejudicial pursuant to Evidence Code section 352. We find no error and, even if we did, it was harmless.

“Only relevant evidence is admissible (Evid. Code, §§ 210, 350), ‘and all relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. (Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d).)’ [Citation.] ‘The test of relevance is whether the evidence tends “logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive.’” (People v. Harris (2005) 37 Cal.4th 310, 337.)

Evidence Code section 1101, subdivision (a), generally prohibits admission of evidence of a person’s character, including evidence of character in the form of specific instances of uncharged misconduct, “to prove his or her conduct on a specified occasion.” Section 1101(b) clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when it is relevant to establish some fact other than the person’s disposition to commit such an act, such as motive, intent, and absence of mistake or accident.

“The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] ‘[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 . . . .’ [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘“probably harbor[ed] the same intent in each instance.”’” (People v. Ewoldt (1994) 7 Cal.4th 380, 402.)

“The probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citation.]” (People v. Kipp (1998) 18 Cal.4th 349, 371.) “[E]vidence of uncharged misconduct ‘“is so prejudicial that its admission requires extremely careful analysis”’” under Evidence Code section 352. (People v. Lewis (2001) 25 Cal.4th 610, 637.) “‘The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’” (People v. Karis (1988) 46 Cal.3d 612, 638.)

“‘“Rulings made under [Evidence Code sections 1101 and 352 . . .] are reviewed for an abuse of discretion. [Citation.]” [Citation.] “Under the abuse of discretion standard, ‘a trial court’s ruling will not be disturbed, and reversal . . . is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’”’” (People v. Rogers (2013) 57 Cal.4th 296, 326.)

 

At trial, defense counsel argued that, unless defendant testified “and put[] it into issue,” evidence of defendant’s prior first degree residential burglary conviction was not relevant to prove intent because “intent won’t be an issue in this case.” On appeal, defendant correctly concedes the evidence of his 2011 conviction for first degree residential burglary was relevant for purposes of establishing intent pursuant to Evidence Code section 1101(b). By pleading not guilty, defendant “place[d] at issue all material allegations in the accusatory pleading ([Pen. Code,] § 1019).” (People v. John (2019) 36 Cal.App.5th 168, 175.) Therefore, he obligated the prosecutor to prove every element of the crime beyond a reasonable doubt and, absent a formal stipulation that the element of intent had been established, the prosecutor could seek to introduce Evidence Code section 1101(b) evidence to prove intent even though defendant did not dispute that element. (People v. Scott (2011) 52 Cal.4th 452, 470-471; People v. Lindberg (2008) 45 Cal.4th 1, 23; see Estelle v. McGuire (1991) 502 U.S. 62, 69.)

In addition, the probative value of defendant’s 2011 conviction was not substantially outweighed by its prejudicial impact, such that the trial court should have excluded it pursuant to Evidence Code section 352. Rather than introduce testimony about the circumstances of the 2011 offense to establish the similarity between the uncharged crime and the current offense, the prosecutor elected to introduce a bare-bones stipulation to the mere fact that defendant had previously been convicted of first degree residential burglary. While preserving his objection to admission of any Evidence Code section 1101(b) evidence, defendant stipulated: “Defendant was convicted of Penal Code Section 459, first-degree residential burglary, on April 19th, 2011, in San Diego County.” The stipulation—with absolutely no details of the prior crime—was much weaker and far less inflammatory than the strong direct testimony the prosecutor introduced about the circumstances of the charged crime. (See People v. Eubanks (2011) 53 Cal.4th 110, 144 [“The potential for such prejudice is ‘decreased’ when testimony describing the defendant’s uncharged acts is ‘no stronger and no more inflammatory than the testimony concerning the charged offenses.’”].) And neither the prosecutor nor defense counsel spent much time discussing the 2011 conviction during closing arguments. In other words, “[t]he evidence was presented quickly, and the parties did not dwell on it.” (People v. Jones (2011) 51 Cal.4th 346, 371.)

Finally, even if we were to conclude the trial court erred by admitting the evidence under section 1101(b), no miscarriage of justice resulted, meaning the error was harmless. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836; Evid. Code, § 353, subd. (b); see People v. Malone (1988) 47 Cal.3d 1, 22 [erroneous admission of § 1101(b) evidence subject to Watson harmless error analysis].) Under Watson, an error is reversible if there is a reasonable probability that the outcome of the trial would have been more favorable to the defendant in the absence of the error. (People v. Watson, supra, at p. 836.) A reasonable probability in this context means merely a reasonable chance, more than an abstract possibility. (People v. Wilkins (2013) 56 Cal.4th 333, 351.)

The trial court properly instructed the jury with CALCRIM No. 375 on how to evaluate the evidence of defendant’s 2011 conviction for first degree residential burglary. The jury was told it could consider defendant’s prior conviction only for the purposes of determining whether “defendant acted with the intent to commit theft.” When evaluating the prior conduct, the jury was instructed to “consider the similarity or lack of similarity between the uncharged act and the charged offense.” Finally, the jury was told the prior conduct was only one factor it could consider when deciding whether defendant was guilty of the charged burglary, that by itself the uncharged offense was not enough to establish guilt, and that the prosecutor still had to prove the current charge beyond a reasonable doubt. We must presume the jury understood and properly applied that instruction. (People v. Buenrostro (2018) 6 Cal.5th 367, 431; People v. Jones, supra, 51 Cal.4th at p. 371.)

Because the jury was not given any data whatsoever as to the circumstances of the prior burglary, it was unable to determine the similarity or dissimilarity between the current and prior offenses as directed by the instruction. A reasonable jury would not have placed much, if any, weight on the section 1101(b) evidence. In short, it is not reasonably probable defendant would have obtained a better result had the trial court excluded the evidence.

B. We Remand for the Trial Court to Consider Whether to Strike One or More of Defendant’s Five-year Serious Prior Felony Enhancements and to Strike Both of His One-year Prior Prison Term Enhancements.

Defendant contends we must remand for resentencing so the trial court may exercise its new discretion to strike one or more of his five-year serious felony enhancements under Senate Bill No. 1393 (2017-2018 Reg. Sess.). (See Pen. Code, §§ 667, subd. (a), 1385, subd. (b), as amended by Stats. 2018, ch. 1013, §§ 1, 2.) The People concede the new discretion applies to defendant’s nonfinal judgment but argue a remand would be futile. We agree the statutory amendments apply to defendant and conclude remand is appropriate.

“On September 30, 2018, the Governor signed Senate Bill [No.] 1393 which, effective January 1, 2019, amends [Penal Code] sections 667[, subdivision] (a) and 1385[, subdivision] (b) to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. [Citation.] Under the . . . versions of these statutes [applicable when the crimes in this case occurred and at sentencing], the court [was] required to impose a five-year consecutive term for ‘any person convicted of a serious felony who previously has been convicted of a serious felony’ (§ 667[, subd.] (a)), and the court ha[d] no discretion ‘to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.’ (§ 1385[, subd.] (b).)” (People v. Garcia (2018) 28 Cal.App.5th 961, 971.) In Garcia, this court, after applying the retroactivity rule set forth in In re Estrada (1965) 63 Cal.2d 740 and its recent Supreme Court progeny, concluded the Legislature intended the amendments to sections 667 and 1385 “to retroactively apply to the fullest extent constitutionally permissible—that is, to all cases not final when the statute becomes effective.” (Garcia, at p. 972.)

The People argue defendant will not benefit from the amendments to Penal Code sections 667 and 1385 because “the record clearly indicates that the trial court would not have exercised its discretion to strike the prior serious felony enhancement if it had the discretion to do so.” “We are not required to remand to allow the court to exercise its discretion if ‘the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] . . . enhancement’ even if it had the discretion.” (People v. Jones (2019) 32 Cal.App.5th 267, 272-273.) “The trial court need not have specifically stated at sentencing it would not strike the enhancement if it had the discretion to do so. Rather, we review the trial court’s statements and sentencing decisions to infer what its intent would have been.” (Id. at p. 273.)

At sentencing, the trial court denied defendant’s request pursuant to Romero to strike one or more of his “strike” convictions for purposes of indeterminate sentencing under the three strikes law. The court stated: “I believe that [defendant] does fall within the spirit and certainly the letter of the Three Strikes scheme. And I think it would be an abuse of discretion to strike any of the priors at this point.” But the court acknowledged defendant’s criminal history was “essentially without violence,” and that his eligibility for an indeterminate sentence of 25 years to life was premised on “the multiplicity of offenses” he had committed. That the trial court believed defendant fell within the spirit and letter of the three strikes law, and that it would have been an abuse of discretion to dismiss any of his strike offenses, does not necessarily mean the court would not have considered striking one or more of defendant’s five-year sentence enhancements for purposes of defendant’s determinate sentence. Nothing in the record leads us to conclude “there is no possibility the trial court would strike the enhancement were we to remand.” (People v. Jones, supra, 32 Cal.App.5th at p. 273.) Therefore, we conclude it is necessary to remand for the trial court to exercise its discretion and determine whether it is appropriate to strike one or more of defendant’s five-year serious prior felony enhancements.

In addition, on October 8, 2019, after the main briefs were filed in this appeal, the Governor signed into law Senate Bill No. 136 (2019-2020 Reg. Sess.) to amend Penal Code section 667.5, subdivision (b). At the time defendant was sentenced, “a one-year sentence enhancement under section 667.5, subdivision (b) [was] applied ‘for each prior separate prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended for any felony.’ ([Pen. Code,] § 667.5, subd. (b).)” (People v. Buycks (2018) 5 Cal.5th 857, 889.) But effective January 1, 2020, the one-year enhancement will only apply to prison terms served for conviction of a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (Pen. Code, § 667.5, subd. (b), as amend. by Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020.) Defendant did not serve a prior prison term for a sexually violent offense, and his judgment will become final well after Senate Bill No. 136 went into effect. (People v. Buycks, at p. 876, fn. 5 [“A judgment becomes final when the availability of an appeal and the time for filing a petition for certiorari with the United States Supreme Court have expired.”].) Therefore, if the amended statute applies retroactively, defendant’s two one-year prior prison term enhancements must be stricken.

We directed the parties to submit supplemental briefs addressing Senate Bill No. 136, and they agree it is an ameliorative amendment that applies retroactively to nonfinal judgments, such as this one. We agree. (People v. Lopez (2019) 42 Cal.App.5th 337, 340-343 [concluding Sen. Bill. No. 136 applies retroactively to nonfinal judgments]; People v. Jennings (2019) 42 Cal.App.5th 664, 680-682 [same].) Therefore, we remand for the trial court to resentence defendant. At that time, the court shall strike both of defendant’s one-year prior prison term enhancements.

C. Defendant Forfeited His Challenge to the Booking Fee, But We Direct the Trial Court to Strike the Presentence Probation Report and Incarceration Fees.

Defendant contends the trial court erred by imposing the booking and presentence probation report fees because the court had already concluded he lacked the ability to pay them, and the court erred by imposing an incarceration fee because he was not ordered to serve time in local custody. The People concede the incarceration fee must be stricken, but argue defendant forfeited his claims of error as to the other fees and his claims fail on their merits. We find defendant forfeited his challenge to the booking fee, but direct the trial court to strike the other two fees.

Imposition of the booking fee under Government Code section 29550.2, and the fee for presentence probation reports under Penal Code section 1203.1b, are both dependent on the trial court finding defendant “has the ability to pay.” (Gov. Code,

§ 29550.2, subd. (a); Pen. Code, § 1203.1b, subd. (b)(2).) The trial court imposed the presentence probation report fee on defendant but stayed it because it concluded defendant lacked the ability to pay. The court made no finding as to defendant’s ability to pay the booking fee when it imposed it.

As the People contend, defendant interposed no objection whatsoever to imposition of the booking and presentence probation report fees, let alone an objection that he lacked the ability to pay them. “The California Supreme Court has repeatedly held that when a court imposes fees and/or fines pursuant to statutes that specifically include ability to pay findings, the defendant must raise an objection at the sentencing hearing or forfeit the appellate claim that the court failed to make such a finding or there was no evidence of the defendant’s ability to pay the imposed amounts. (See People v. Gamache (2010) 48 Cal.4th 347, 409 . . . ; People v. Case (2018) 5 Cal.5th 1, 52-53 . . . ; People v. Avila (2009) 46 Cal.4th 680, 728-729 . . . ; People v. Nelson (2011) 51 Cal.4th 198, 227 . . . ; People v. McCullough (2013) 56 Cal.4th 589, 590, 598-599 . . . ; People v. Trujillo (2015) 60 Cal.4th 850, 858-861 . . . .)” (People v Aviles (2019) 39 Cal.App.5th 1055, 1073.)

Notwithstanding defendant’s failure to object to imposition of the presentence probation report fee, that fee must be stricken because it was not lawfully imposed. (See People v. Rivera (2019) 7 Cal.5th 306, 349 [“An unauthorized sentence is reviewable on appeal regardless of whether it was objected to at trial.”].) “Where, as in this case, a statute posits ability to pay as a precondition of a requirement to pay a fee comparable to the one at issue here—such as the booking fee authorized by Government Code section 29550.2, subdivision (a)—the defendant has the right to a determination of his ability to pay the fee before the court may order payment.” (People v. Neal (2018) 29 Cal.App.5th 820, 826, italics added.) Once the trial court made an express finding that defendant lacked the ability to pay the fee, it could not lawfully impose the fee and it lacked the authority to simply stay its imposition. (Cf. People v. Jefferson (2016) 248 Cal.App.4th 660, 662-663 [“There is no statutory authority to suspend the drug program fee. The proper course of action is to decline to impose the fee rather than impose and suspend it. If the accused cannot afford to pay the $ 150 drug program fee, it may not be imposed.”].)

By not objecting to imposition of the $514.58 booking fee on the ground he lacked the ability to pay it, however, defendant forfeited his claim that the trial court erred by not finding he had the ability to pay. Defendant contends his claim of error is not subject to forfeiture because the court made a general finding that he lacked the ability to pay fees yet imposed the booking fee anyway, so his challenge is a purely legal one not subject to forfeiture. Not so. The trial court made a specific finding that defendant lacked the ability to pay the $1,095 presentence probation report fee, a sum almost twice the booking fee. The court obviously concluded (albeit, implicitly) defendant had the ability to pay the booking fee, and defendant was required to object if he disagreed.

Finally, we accept the People’s concession that the incarceration fee must be stricken. A sentencing court may direct “a defendant [who] is convicted of an offense and is ordered to serve a period of confinement in a county jail, city jail, or other local detention facility as a term of probation or a conditional sentence” to pay the “reasonable costs of such incarceration” if it finds the defendant has the ability to pay. (Pen. Code, § 1203.1c, subd. (a).) Defendant was not sentenced to serve time in a local detention facility. Therefore, the incarceration fee simply could not be imposed on him. We will order it stricken on remand.

D. Imposition of Other Fees Without a Finding of Ability to Pay was Harmless.

Defendant contends we must strike the $40 court security fee, the $30 criminal conviction fee, the $300 restitution fine, and the $300 parole revocation fine because the trial court failed to make a finding that he had the ability to pay them, in violation of his due process rights as articulated in People v. Dueñas (2019) 30 Cal.App.5th 1157. As noted, ante, defendant interposed no objection whatsoever at sentencing to imposition of fees, so the People argue he has forfeited his claim of error. We conclude defendant did not forfeit his claim of Dueñas error, but we agree with the People that the trial court’s failure to make a finding of ability to pay was harmless beyond a reasonable doubt because defendant will have the ability to earn wages during his lengthy prison sentence and pay those fees.

People v. Dueñas, supra, 30 Cal.App.5th at pages 1168-1169, held a sentencing court violated the due process rights of a defendant who committed her acts out of poverty when it imposed certain mandatory fees and fines that lack a statutory exception without first making a finding the unemployed defendant (who suffered from cerebral palsy) had the ability to pay while she was on probation. A growing number of courts have concluded Dueñas was wrongly decided or should be limited to its extreme facts. (People v. Allen (2019) 41 Cal.App.5th 312, 318 [“[W]e agree with the analysis of numerous courts that have rejected Dueñas’s due process framework.”]; People v. Hicks (2019) 40 Cal.App.5th 320, 327, review granted Nov. 26, 2019, S258946 [“Is Dueñas’s expansion of due process in a manner that grants criminal defendants a protection not conferred by either its foundational pillars a correct interpretation? [¶] In our view, it is not.”]; People v. Kingston (2019) 41 Cal.App.5th 272, 279-282 [agreeing with Hicks’s rejection of Dueñas]; People v. Caceres (2019) 39 Cal.App.5th 917, 926-927 [“Although we do not reach whether Dueñas was correctly decided as to [its] extreme facts, in our view, the due process analysis in Dueñas does not justify extending its holding beyond those facts.”]; People v. Aviles, supra, 39 Cal.App.5th at pp. 1067-1068 [“We find that Dueñas was wrongly decided . . . .”].) The People do not contend Dueñas was incorrectly decided, so we need not reach that question today. (See People v. Jones (2019) 36 Cal.App.5th 1028, 1030 [“The People do not contend that Dueñas was wrongly decided.”].)

The People contend defendant forfeited his claim of Dueñas error by not objecting that the trial court failed to make a finding of ability to pay before it imposed the challenged fees and fines. A number of courts have concluded Dueñas error is subject to the forfeiture doctrine. (People v. Anderson (2019) 42 Cal.App.5th 780, 787; People v. Hicks, supra, 40 Cal.App.5th at p. 328, fn. 3; People v. Rodriguez (2019) 40 Cal.App.5th 194, 206; People v. Newman (2019) 40 Cal.App.5th 68, 72; People v. Jenkins (2019) 40 Cal.App.5th 30, 39-41; People v. Aviles, supra, 39 Cal.App.5th at pp. 1073-1075; People v. Torres (2019) 39 Cal.App.5th 849, 860; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155.) But, this court has already concluded in a published opinion that failure to object does not forfeit a claim of Dueñas error, so we reject the People’s argument. (People v. Jones, supra, 36 Cal.App.5th at pp. 1031-1034.)

 

In any event, we conclude imposition of the challenged fees and fines without a finding of ability to pay was harmless beyond a reasonable doubt. (People v. Jones, supra, 36 Cal.App.5th at pp. 1034-1035 [Dueñas error subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18]; People v. Johnson (2019) 35 Cal.App.5th 134, 139-140 [same].) “[U]nlike the probationer defendant in Dueñas, it is entirely appropriate [on appeal] to consider the wages [a] defendant may earn in prison on the inability-to-pay issue. (See People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 . . . [ability to pay may include a defendant’s prison wages]; § 2085.5 [outlining how a restitution fine balance may be collected from prison wages].)” (People v. Jenkins, supra, 40 Cal.App.5th at p. 41.)

“Wages in California prisons currently range from $12 to $56 a month. (Cal. Code Regs., tit. 15, § 3041.2, subd. (a)(1); Cal. Dept. of Corrections and Rehabilitation, Operations Manual, ch. 5, art. 12, § 51120.6, pp. 354-355 (Jan. 1, 2019) . . . .) And half of any wages earned (along with half of any deposits made into his trust account) are deducted to pay any outstanding restitution fine. (Pen. Code, § 2085.5, subd. (a); Cal. Code Regs., tit. 15, § 3097, subd. (f).)” (People v. Jones, supra, 36 Cal.App.5th at p. 1035.) Defendant was sentenced to state prison for a lengthy determinate term, plus an indeterminate term of 25 years to life. Although it will likely take him some time, defendant will have the opportunity during his lengthy prison sentence to pay his fees and fines through prison wages and gifts. (People v. Aviles, supra, 39 Cal.App.5th at p. 1077 [“While it may take defendant some time to pay the amounts imposed in this case, that circumstance does not support his inability to make payments on these amounts from either prison wages or monetary gifts from family and friends during his lengthy prison sentence.”]; People v. Jones, supra, at p. 1035 [“Given that the restitution fine is $300 and the assessments are $70, Jones will have sufficient time to earn these amounts during his [six-year] sentence, even assuming Jones earns nothing more than the minimum.”]; People v. Johnson, supra, 35 Cal.App.5th at p. 139 [finding error harmless beyond a reasonable doubt because “[t]he idea that [defendant] cannot afford to pay $370 while serving an eight-year prison sentence is unsustainable.”].)

In addition, there is nothing in the record to suggest defendant is physically unsound or is otherwise incapable of working while serving his sentence. (Pen. Code, § 2700 [“[E]very able-bodied prisoner” is required to work]; Cal. Code Regs., tit. 15, § 3040, subd. (a) [same]; see People v. Gentry (1994) 28 Cal.App.4th 1374, 1377, fn. 6 [“[C]onclusory statement” that defendant had a “bad back” and could not work in prison was insufficient basis for court “to conclude that appellant could not secure prison employment.”].) Granted, prisoners are not guaranteed paid labor. (See Cal. Code Regs., tit. 15, § 3040, subd. (k) [“An inmate’s assignment to a paid position is a privilege dependent on available funding, job performance, seniority and conduct.”]; id., § 3041.1 [criteria for assignment to vacant paid labor position]; People v. Rodriguez (2019) 34 Cal.App.5th 641, 648-649 [“Even assuming prison wages are relevant, there is no evidence paid work has been made available to [defendant].”].) But, in the absence of evidence to the contrary, we must presume defendant will become eligible for paid prison labor during his lengthy incarceration, and he will have the ability to pay his fines and fees.

III.

DISPOSITION

The matter is remanded for the trial court to resentence defendant. The court shall (1) strike the $1,095 presentence probation report fee and the $1,500 incarceration fee; (2) exercise its discretion in the first instance and determine whether it is appropriate to strike one or more of defendant’s five-year serious felony enhancements; and (3) strike both of defendant’s one-year prior prison term enhancements.

In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

MENETREZ

J.