Opinion
D075299
05-20-2020
THE PEOPLE, Plaintiff and Respondent, v. CARLOS ALEJANDRO, Defendant and Appellant.
Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew S. Mestman and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN389819) APPEAL from a judgment of the Superior Court of San Diego County, Michael D. Washington, Judge. Affirmed. Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew S. Mestman and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury found Carlos Alejandro guilty of attempting to unlawfully take or drive a vehicle valued at greater than $950 (Pen. Code, § 664; Veh. Code, § 10851, subd. (a); count 2). The jury was unable to reach a verdict on a charge of attempted receipt of a stolen vehicle (§§ 664, 496d; count 3). After the trial court declared a mistrial on count 3, the People dismissed this charge. In a bifurcated proceeding, Alejandro admitted having suffered one prior "strike" conviction (§ 667, subds. (b)-(i)). The trial court sentenced Alejandro to two years in prison, consisting of the middle term of one year, doubled. The court imposed a restitution fine in the amount of $600, a court security fee in the amount of $40, an inmate critical account need fee in the amount of $30, and a criminal justice administration fee in the amount of $154.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
Count 1 pertained to codefendant Amy Hamilton. Hamilton was not tried in this proceeding.
On appeal, Alejandro claims that the trial court abused its discretion in failing to suppress evidence related to DNA testing performed on two items that police collected from the victim's car. Alejandro contends that suppression of the evidence was required because the prosecutor "failed to timely request that evidence in their possession be processed" for DNA. Alejandro observes both that the prosecutor did not have the items tested for DNA until after a mistrial was declared in a previous trial in this case and that the prosecutor was unable to provide final DNA test results until just before the retrial.
We reject Alejandro's claim because he made no showing in the trial court that the prosecutor failed to timely request the DNA tests, nor did Alejandro demonstrate that suppression was an appropriate remedy for the alleged late production of the DNA test results. Alejandro also contends that the trial court's imposition of certain fines and fees without a determination of his ability to pay the fines and fees violated his constitutional rights. We reject this claim, as well. Accordingly, we affirm the judgment.
II.
FACTUAL BACKGROUND
On August 13, 2018, the victim went to a used car dealership in Escondido and purchased a car. The victim left his other car, a 2004 Suburban, parked on the street in front of the dealership. The Suburban was worth more than $950.
When the victim returned to retrieve the Suburban the following evening, he noticed that the driver's side door was slightly ajar. The victim opened the door and saw that the steering column was broken. He noticed various items in the car that did not belong to him, including a hat, a cigarette, and a screwdriver.
The victim called the police. Escondido Police Officer Paul Smyth responded to the dealership. Officer Smyth collected the hat and cigarette from inside the Suburban. Officer Smyth suspected that Alejandro might have been involved in the crime because he had seen Alejandro wearing a hat similar in appearance to the one found in the victim's car.
Officer Smyth also watched a video recorded on the dealership's surveillance cameras. In the video, Officer Smyth saw two people get into the Suburban. He recognized the individuals as Alejandro and Hamilton. Officer Smyth explained that he had previously contacted Alejandro and Hamilton together on many occasions.
Later that evening, Officer Smyth located Alejandro and Hamilton in an area that he knew they frequented. They were wearing clothing similar to that depicted in the security video footage.
Alejandro's DNA was found on the hat and cigarette found in the victim's car.
As noted in part I, ante, Alejandro claims that the trial court erred in failing to exclude the DNA evidence due to an alleged discovery violation. We consider the merits of Alejandro's claim in part III.A., post.
III.
DISCUSSION
A. The trial court did not abuse its discretion in denying Alejandro's request to suppress evidence related to the results of DNA tests performed on the hat and cigarette collected from the victim's car
Alejandro claims that the trial court abused its discretion in failing to suppress evidence related to DNA testing performed on the hat and cigarette collected from the victim's car.
1. Governing law and standard of review
a. The statutory scheme
Section 1054 et. seq. governs discovery in criminal cases. Section 1054.1 subdivision provides in relevant part:
"The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies: [¶] . . . [¶]
"(f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial."
Section 1054.5 provides in relevant part:
"(a) No order requiring discovery shall be made in criminal cases except as provided in this chapter. . . .
"(b) Before a party may seek court enforcement of any of the disclosures required by this chapter, the party shall make an informal request of opposing counsel for the desired materials and information. If within 15 days the opposing counsel fails to provide the materials and information requested, the party may seek a court order. Upon a showing that a party has not complied with Section 1054.1 or 1054.3 and upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.
"(c) The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted."
Section 1054.7 provides:
"The disclosures required under this chapter shall be made at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred. If the material and information becomes known to, or comes into the possession of,
a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why a disclosure should be denied, restricted, or deferred. 'Good cause' is limited to threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement."
b. Relevant case law
In People v. Rutter (2006) 143 Cal.App.4th 1349 (Rutter), the Court of Appeal considered a defendant's claim that his forgery conviction should be reversed because the prosecutor had failed to disclose to the defense a computer expert's 113-page report until just a few days before trial. (Id. at p. 1351.) The report summarized evidence taken from the defendant's computers that supported a finding that the defendant had forged the victim's name on a photo shoot release. (Id. at p. 1352.) The Rutter court described defense counsel's arguments in the trial court in favor of exclusion of the evidence as follows:
"[Defendant] moved to exclude any expert opinion testimony derived from the contents of the laptop on the ground prosecution's late disclosure of such testimony unfairly prejudiced his defense. [Defendant] did not contend the prosecution had acted in bad faith, and he conceded the prosecutor turned over the report 'the minute he got it.' He also acknowledged his own expert had access to and examined the same computers as the prosecution's expert. [Defendant] maintained, however, none of this was relevant. Prejudice did not arise from being denied access to the computers or to the report, he argued, but from being denied access to the expert's opinion the computer's hard drive showed evidence of the forgery. He explained that up until the time he reviewed the expert's report the prosecution's discovery disclosures led him to believe the only computer-related evidence of the alleged forgery was contained on the CD-ROM's seized from his apartment. [Defendant] intended to counter this evidence with evidence someone other than he placed the allegedly forged document on those disks. New evidence the forged document was found on [defendant's] laptop undercut this
defense because it tied the forged model release directly to [defendant]. Furthermore, [defendant] argued, allowing this new evidence meant he would have to retain a computer expert to again review the contents of the laptop and assess the validity of the prosecution's expert's opinion based on those contents. [Defendant] specifically rejected a continuance in order to have time to prepare a response to the prosecution's new evidence. A continuance would 'severely prejudice' him, [defendant] contended, because it would deny him his right to a speedy trial. He noted both sides had answered ready for trial and the jury had already been selected." (Id. at pp. 1352-1353.)
The prosecutor argued that the defendant had had access to the computers at issue for two years, that the People had advised the defendant that the prosecution retained the right to use " 'any file' " contained on the computers' hard drives, and that the prosecutor had given the expert's report to the defense the day after the prosecutor received it. (Rutter, supra, 143 Cal.App.4th at p. 1353.)
On appeal, the Rutter court rejected the defendant's contention that the trial court erred in failing to exclude the expert's opinion on the asserted ground that the prosecution "did not turn over the expert's report of his examination until a few days before trial." (Rutter, supra, 143 Cal.App.4th at p. 1353.) The Rutter court reasoned:
"In this case it is undisputed the prosecution immediately turned over its expert's report to [defendant]. Thus[,] the prosecution satisfied section 1054.7 as to the computer expert's report. Nothing in the record suggests the prosecution learned of its expert's opinion based on the laptop evidence prior to receiving his written report. Thus, [defendant] failed to establish a violation of section 1054.7 as to any statement by the expert prior to delivery of his report." (Id. at p. 1354.)
California case law also makes clear that, even where a party commits a discovery violation, "exclusion of testimony is not an appropriate remedy absent a showing of significant prejudice and willful conduct motivated by a desire to obtain a tactical advantage at trial." (People v. Jordan (2003) 108 Cal.App.4th 349, 358 (Jordan); see § 1054.5, subd. (c) [prohibiting courts from excluding a witness's testimony as a sanction for a discovery violation unless "all other sanctions have been exhausted"].) For example, in People v. Superior Court (Mitchell) (2010) 184 Cal.App.4th 451, 453 (Mitchell), the Court of Appeal concluded that the trial court had erred in precluding the People from presenting certain witness testimony as well as dog scent and gunshot residue evidence as a sanction for the People's failure to timely provide the defense discovery related to such evidence. (Id. at pp. 453, 455.) The Mitchell court reasoned in part:
"Though a trial court has discretion in these matters, that discretion is not unfettered. 'The court may prohibit the testimony of a witness pursuant to subdivision (b) [of section 1054.5] only if all other sanctions have been exhausted.' (§ 1054.5, subd. (c).) . . . . [¶] . . . The trial court did not consider or exhaust other sanctions before precluding the testimony of [two witnesses], and any testimony from the People's witnesses regarding discovery not previously provided. In doing so, the trial court failed to heed the procedure set forth in section 1054.5, subdivision (c). . . . [¶] Our analysis applies with equal measure to the exclusion of dog scent and gunshot residue evidence." (Id. at p. 459.)
In explaining why writ relief was appropriate to correct the trial court's error, the Mitchell court relied in part on the fact that the defendant had "invited the error by requesting preclusion instead of lesser sanctions." (Mitchell, supra, 184 Cal.App.4th at p. 459.)
c. Standard of review
We review the trial court's denial of Alejandro's request to suppress evidence of the DNA test results for an abuse of discretion. (See People v. Ayala (2000) 23 Cal.4th 225, 299 ["We generally review a trial court's ruling on matters regarding discovery under an abuse of discretion standard. [Citation.] In particular, 'a trial court may, in the exercise of its discretion, "consider a wide range of sanctions" in response to the prosecution's violation of a discovery order' "].)
2. Factual and procedural background
a. The impounding of a hat and cigarette from the victim's car
On August 14, 2018, Officer Smyth responded to a call regarding a vehicle burglary/attempted vehicle theft. While inspecting the victim's car, the officer collected a hat and cigarette from inside the car.
b. The prior trial
In October 2018, the People tried Alejandro on two counts: attempting to buy, receive, conceal, sell, or withhold a stolen vehicle (§§ 664, 496d), and attempting to unlawfully take or drive a vehicle valued at greater than $950 (§ 664; Veh. Code, § 10851, subd. (a)).
On October 25, after the jury was unable to reach a unanimous verdict on either count, the trial court declared a mistrial. That same day, the court set the matter for retrial, with a status conference set for November 30, 2018, and the trial set for December 12, 2018.
c. The hearing on the DNA evidence
After an unreported status conference on November 30, the trial court held a hearing on December 12, the date set for the commencement of the retrial. At the beginning of the hearing, the trial court indicated that the prosecutor had raised an issue concerning "outstanding discovery." The court invited the prosecutor to describe the issue for the record. The prosecutor responded:
The one-page minute order for the status conference hearing states nothing of relevance to this issue on appeal.
"After the mistrial was declared in this case[,] the People began the process for obtaining DNA results on two of the items that were impounded. That is a lengthy process, as alluded to by Officer Smyth who testified.[] The items were submitted. They began the testing process. And at the beginning of last week[,] the DNA analyst, Rebecca Bryant, contacted me and advised me of the preliminary results, that there was a strong inclusion of the defendant's DNA on the two items that were tested.
"In laymen's terms, this is a DNA case. It's direct evidence that the items belonged to Mr. Alejandro. But those results, at the preliminary stage, then have to go through several layers of approval and finalization.
"When she contacted me earlier last week I did then provide the information to [defense counsel] in an e-mail about the results of the testing, the name of the analyst. I later followed up with the analyst's [curriculum vitae] earlier this week, yesterday or the day before, and advised that once a finalized report was created we would then have the ability to obtain it and that finalized report
would be provided, which summarized the conclusions that were previously provided.
"When I spoke with Ms. Bryant yesterday[,] she advised that the report would not be ready until midmorning this morning. The report will, again, include the information that was provided to defense counsel last week.
"At this time[,] it has not been yet created. So[,] it could not be provided more than 30 days before trial. Because of this information the People still intend to proceed, would proceed with the DNA information.
"That being said, because the report is not ready, and I want to ensure that [defense counsel] has an opportunity to review it, although, we are ready with the preliminary results in mind, I would ask to trail the case within the current trailing period, which I believe no good cause is necessary to do, since we do have time remaining until the speedy trial rights run. I would ask to trail in order to obtain those soon to be created reports in order for both sides to have an opportunity to view them in writing, as well as follow up with the DNA analyst as necessary.
"Because this Court does not have juries on Thursday and Friday, I would ask instead of trailing it one or two days to instead trail it until Monday, December the 17th."
It is not entirely clear from the record which prior proceeding the prosecutor was referring to in referencing Officer Smyth's testimony. Officer Smyth testified in both the first trial and the retrial. However, because there is no reporter's transcript from the first trial in the record on appeal, we have no way of knowing what Officer Smyth might have stated concerning DNA testing at the first trial. Officer Smyth did not testify at the December 12 hearing concerning discovery of the DNA test results.
The court invited the defense's response. Defense counsel stated in relevant part:
"Your Honor, my position would be that the rules are pretty clear that discovery has to be turned over 30 days before trial. We're in trial today. And while I don't have any dispute with the timeline that [the prosecutor] laid out.
"The two items that she's speaking of, the ball cap and cigarette, functionally, have been in the People's and law enforcement's possession for many months.
"So that being the case, your Honor, I would ask the Court to simply say, in light of the fact that the defense does not have it 30 days before trial it will not come into evidence for the jury."
In response, the prosecutor argued in relevant part:
"[T]his information was not in the possession of the People within 30 days, which does slightly change the expectations under [section] 1054 because it has not been created."
"Second, when we're looking at evidence there [are] three remedies available. There is, one, time for defense to have ample opportunity to review the evidence. There is a curative instruction about late discovery. And finally, lastly, is exclusion of the evidence here.
"It's important to point out that, one, this is not exculpatory evidence. Two, not in the possession of the People. And three, defense had an opportunity at this point to have more time in order to review the evidence. So I don't think it's necessary to even get to a point where we exclude relevant inculpatory evidence that was just obtained due to the processing of the crime lab."
Shortly thereafter, the trial court addressed Alejandro directly. The court stated that it was going to grant the People's request to trail the case until the following Monday. The court continued:
"There is not a requirement that I need to find good cause for that request because it's still within your speedy trial rights from the time we reset this trial.
"But I'm going to say for the record I believe that there is good cause because there is additional information that's not currently in their possession that they have a right to try to obtain and make sure they get it to your attorney."
The court asked Alejandro whether he would prefer to begin the trial on the following Monday or to continue the trial until the end of January. After further discussions between the court and Alejandro, Alejandro stated that he wanted to begin the trial on the following Monday, explaining that he was in jail and that he was anxious to get the trial underway.
The court explained, "I say the end of January because I'm gone after next week until the end of January. I'm not back until January 28th."
Accordingly, the court stated that the trial would commence the following Monday, December 17.
d. The trial
On the first day of the jury trial, December 17, during a hearing outside the presence of the jury, the following colloquy occurred:
"[Defense counsel]: We discussed it, I guess, Thursday or Friday, but I will be making an objection to the admission of the DNA evidence based on timeliness. I understand the Court has ruled on that. Nonetheless, I will mention it one more time just when counsel first mentions it so that the record is clear that we're objecting. Thank you.
"The Court: Thank you, [defense counsel].
"And, again, the Court has previously ruled based on the fact that based on the information the Court has at this time the People turned over that information as soon as they received it. They did not have it in their possession 30 days before trial. And as a result the requirements for [section] 1054, as to that specific evidence does not apply. It would not be a basis for the Court to exclude that evidence."
The following day, the People called Bryant as a witness. Defense counsel renewed his pretrial objection to the introduction of DNA evidence taken from items found in the victim's car, but stated that he understood that the court had previously ruled on the objection.
The court thanked defense counsel and permitted Bryant to testify.
Bryant testified that DNA results demonstrated that it was extremely likely that Alejandro's DNA was present on a hat and a cigarette that had been found in the victim's car.
3. Application
Alejandro claims that the prosecutor committed a discovery violation by failing to timely request that a DNA analysis be performed on the hat and the cigarette found in the victim's car. We are not persuaded.
To begin with, the trial court reasonably determined that the prosecutor had not violated the requirement that "disclosures required under this chapter [i.e. pursuant to section 1054.1] shall be made at least 30 days prior to the trial." (§ 1054.7.) Section 1054.7 expressly provides that, "If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately. . . ." Since the DNA test results came into the possession of the prosecutor within 30 days of trial, and Alejandro does not contend that the prosecutor failed to immediately disclose the results upon receiving them, the trial court could have reasonably determined that the prosecutor had not violated sections 1054.1 and 1054.7. (See Rutter, supra, 143 Cal.App.4th at pp. 1352-1354 [rejecting defendant's argument that prosecutor violated § 1054.7 because prosecutor obtained report within 30 days of the trial and immediately turned over report to defendant as required by § 1054.7].)
Further, even assuming for purposes of argument that a prosecutor could violate sections 1054.1 and 1054.7 by failing to "timely request" DNA test results, the defense made no showing in the trial court that the prosecutor's DNA testing request was untimely. In the trial court, the prosecutor stated that "[a]fter the mistrial was declared in this case[,] the People began the process for obtaining DNA results on two of the items that were impounded." The prosecutor observed that obtaining DNA test results "is a lengthy process." The prosecutor also suggested that she had provided the defense with preliminary DNA test results that implicated Alejandro approximately two weeks prior to the commencement of the retrial.
In response, defense counsel stated that he had no "dispute with the timeline that [the prosecutor] laid out." While defense counsel stated that the "the ball cap and cigarette, functionally, have been in the People's and law enforcement's possession for many months," defense counsel did not contend that the prosecutor had not timely requested the DNA tests on such items.
Defense counsel's mere observation that the People had possession of the hat and cigarette for several months did not demonstrate that the prosecutor had failed to timely request the DNA results, particularly since, on appeal, Alejandro makes clear that he "does not argue the prosecutor was obligated to request DNA analysis[] prior to the first trial." (Italics added.) Defense counsel did not make any argument in the trial court as to when the prosecutor should have sought the DNA test information or discuss how long such testing should have been expected to take. Indeed, the defense did not even establish when the prosecutor had begun the process for obtaining DNA results, apart from the fact that the prosecutor requested DNA testing at some point after the mistrial. In short, absent evidence as to when the prosecutor sought DNA testing, it necessarily follows that Alejandro cannot establish that the trial court abused its discretion in not finding that the prosecutor failed to "timely request" such results.
Alejandro cites In re Littlefield (1993) 5 Cal.4th 122 and Zellerino v. Brown (1991) 235 Cal.App.3d 1097 for the proposition that, "[c]ourts have discouraged the practice of failing to learn information that must be disclosed pretrial, as it results in sandbagging and is inconsistent with the search for truth." Even assuming that the prosecutor had a duty to request the DNA testing and learn of the results in a timely manner (but see Littlefield, at p. 135 ["There is no general duty on the part of the police or the prosecution to obtain evidence, conduct any tests, or ' "gather up everything which might eventually prove useful to the defense" ' "]), Alejandro has failed to demonstrate that the prosecutor breached such a duty.
Moreover, in order for the trial court to have suppressed the DNA analyst's testimony as a sanction for failure to produce the DNA test results earlier, the trial court would have been required to first exhaust all other possible sanctions. (See § 1054.5, subd. (c).) Yet, defense counsel did not request any lesser sanction, or make any argument as to why a lesser sanction would be ineffective. (See Mitchell, supra, 184 Cal.App.4th 451 [trial court erred by not "consider[ing] or exhaust[ing] other sanctions before precluding [witnesses'] testimony," (id. at p 459) due to prosecutor's failure to "diligently provide discovery to the defense," (id. at p. 460) and stating that defense counsel "invited the error by requesting preclusion instead of lesser sanctions" (id. at p. 459).])
At the December 12 hearing, the prosecutor noted that a possible remedy for the failure to timely provide discovery is "a curative instruction about late discovery." However, defense counsel did not request a jury instruction informing the jury of the allegedly late discovery. Nor did defense counsel present any argument as to why such an instruction would be insufficient to cure any possible prejudice that the defense may have faced, given the timing of the disclosure of the DNA test results.
In his reply brief, Alejandro asserts, without citation to authority, that, "all other sanctions were not required to be exhausted first, . . . and delay for the defense was not the appropriate sanction." With respect to the first point, as noted in the text, section 1054.5, subdivision (c) expressly requires that "all other sanctions have been exhausted," prior to a trial court prohibiting a witness's testimony under section 1054.5, subdivision (b). With respect to the second point, the trial court did not find that the people had committed a discovery violation and thus, the court's offer to delay the trial did not constitute a "sanction," contrary to Alejandro's suggestion in his brief.
We also reject Alejandro's argument, unsupported by authority, that, "If the prosecution was not ready for a new trial after the mistrial was declared in the first trial, they should have delayed in refiling . . . ." We are unclear about the basis for Alejandro's suggestion that the People were required to "refile" a charging document against him after the mistrial, and none appears in the record. Section 1382, subdivision (a)(2) provides for a 60day period to retry a defendant after a mistrial. The retrial in this case occurred within the 60day period. Specifically, the court declared a mistrial on October 25, 2018 and the retrial commenced 53 days later, on December 17, 2018. There is no requirement that the prosecution refile a charging document prior to retrying a defendant on the same charges after a mistrial has been declared.
In addition, defense counsel made no argument, and thus did not demonstrate, that the defense suffered "significant prejudice," from the timing of the disclosure of the DNA test results. (Jordan, supra, 108 Cal.App.4th at p. 358; compare with Rutter, supra, 143 Cal.App.4th at pp. 1352-1353 [outlining defense counsel's argument on prejudice].) For example, defense counsel did not argue that the defense had inadequate time to request its own DNA analysis of the items or to prepare to cross-examine the People's expert. Nor did defense counsel argue that the discovery would necessitate the presentation of a different defense or require counsel to conduct additional investigation. Given that "a showing of significant prejudice" is required before a trial court may exclude a witnesses' testimony due to a discovery violation, this, too, supports the conclusion that the trial court did not abuse its discretion in denying Alejandro's request to suppress the DNA evidence. (Jordan, at p. 358.)
Finally, the defense did not contend that the prosecutor's purported discovery violation constituted "willful conduct motivated by a desire to obtain a tactical advantage at trial," as is also required to justify suppression of the DNA analyst's testimony. (Jordan, supra, 108 Cal.App.4th at p. 358.) In sum, Alejandro has not demonstrated that the trial court abused its discretion in failing to select the harshest possible sanction for the alleged failure to timely disclose the DNA results—the exclusion of critical evidence relevant to the jury's determination of the charges. Accordingly, we conclude that the trial court did not abuse its discretion in denying Alejandro's request to suppress evidence related to the results of DNA testing performed on the hat and cigarette collected from the victim's car. B. We decline to remand the matter for an "ability to pay" hearing because Alejandro has not demonstrated that the trial court's imposition of the fines and fees violated his constitutional rights
Alejandro claims that the trial court violated his constitutional rights in imposing certain fines and fees without first determining his ability to pay.
1. Factual and procedural background
At sentencing, the trial court imposed a restitution fine in the amount of $600 (§ 1202.4, subd. (c)), a court security fee in the amount of $40 (§ 1465.8), an inmate critical account need fee in the amount of $30 (Gov. Code, § 70373), and a criminal justice administration fee in the amount of $154 (id., § 29550).
Defense counsel did not object to the imposition of any of the fines or fees, or request an ability to pay hearing.
2. Analysis
The People contend that, by failing to raise the issue in the trial court, Alejandro forfeited his claim. Alejandro claims that, to the extent we consider his claim forfeited, defense counsel provided ineffective assistance. Because Alejandro also raises a claim of ineffective assistance of counsel based on his attorney's failure to object to the court's imposition of the fines and fees, we elect to consider Alejandro's claim on its merits, notwithstanding the possible forfeiture. (See People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [stating that an appellate court generally has discretion to consider unpreserved claims]; People v. Lewis (1990) 50 Cal.3d 262, 282 [considering claim on merits in order to forestall ineffective assistance claim].)
In People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168 (Dueñas), the court held that due process precludes a trial court from "imposing" certain assessments and fines when sentencing a criminal defendant, in the absence of a determination that the defendant has the "present ability to pay" those assessments and fines. Specifically, Dueñas held that "due process of law requires [a] trial court to . . . ascertain a defendant's present ability to pay before it imposes" (1) "court facilities and court operations assessments" (under § 1465.8 and Gov. Code, § 70373, respectively), or (2) a restitution fine (under § 1202.4). (Dueñas, at pp. 1164, 1167, 1172.)
More recently, another Court of Appeal opinion questioned whether "Dueñas's expansion of the boundaries of due process" to provide additional "protection not conferred by either [of Dueñas's] foundational pillars" is a "correct interpretation," and ultimately concluded that it is not. (People v. Hicks (2019) 40 Cal.App.5th 320, 327 (Hicks), review granted Nov. 26, 2019, S258946; see also People v. Aviles (2019) 39 Cal.App.5th 1055, 1076.) In considering the issue, the Hicks court noted that Dueñas rests on "two strands of due process precedent," the first of which "secures a due process-based right of access to the courts" (Hicks, at p. 326), and the second of which "erects a due process-based bar to incarceration based on the failure to pay criminal penalties when that failure is due to a criminal defendant's indigence rather than contumaciousness." (Id., at p. 325.) Hicks explains that neither of these strands "dictate[s]" Dueñas's result. (Id. at p. 326.)
We find the Hicks court's analysis of the due process issue to be persuasive, and for this reason, we adopt the holding in Hicks that "[n]either strand [of due process precedent] bars the imposition of [the] assessments and the . . . restitution fine" even as to a defendant who is unable to pay. (Hicks, supra, 40 Cal.App.5th at p. 329.) Like the defendant in Hicks, Alejandro has not, to date, been denied access to the courts nor does he face incarceration as a result of the imposition of these financial obligations. Accordingly, the imposition of the fines and fees in this case did not violate Alejandro's due process rights.
In discussing the court security fee, inmate critical account need fee and criminal justice administration fee, the People state that they do not "seek to uphold the imposition of . . . non-punitive [fees] on those who have no ability to pay." However, the People state that "any due process violation . . . was harmless beyond a reasonable doubt," because the record "strongly suggests [Alejandro] has the ability to pay the rather modest financial burden imposed on him."
We need not, and do not accept, the People's apparent concession with respect to the legal issue of whether principles of due process preclude the imposition of fees on indigent defendants. (See People v. Sanders (2012) 55 Cal.4th 731, 740 ["We decline to accept [the Attorney General's] concession].) We express no opinion with respect to the People's contention that the record "strongly suggests" that Alejandro has the ability to pay the court security fee, inmate critical account need fee and criminal justice administration fee.
Alejandro also asserts that the "imposition of the fines, fees, and assessments without an ability to pay finding violated . . . equal protection[] and the right to be free from excessive fines under the United States and California Constitutions." However, Alejandro does not develop either argument in his brief. For example, with respect to the equal protection claim, Alejandro provides no citation to authority nor any reasoned argument. With respect to the excessive fine contention, Alejandro does not apply the factors relevant to the determination of whether a fine is excessive. (See People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728 [stating that " '[t]he touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality,' " and listing four factors to be assessed in determining whether a fine is excessive, "(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"].) In short, Alejandro has failed to demonstrate that the imposition of the fines and fees in this case violated the equal protection clause or the excessive fines clause of either the state or federal constitution.
It is "not our role" to construct and address theories of constitutional invalidity that are not adequately presented for review. (People v. Stanley (1995) 10 Cal.4th 764, 793; see, e.g., People v. Guzman (2019) 8 Cal.5th 673, 683, fn. 7 ["Although defendant mentions due process in passing, he does not develop the argument, choosing instead to focus on his equal protection claim. We adopt the same focus and hold that any due process claim has been forfeited."]; People v. Nunez and Satele (2013) 57 Cal.4th 1, 51 [summarily rejecting defendant's equal protection claim where defendant "cites no authority . . . in support of this claim"]; In re Phoenix H. (2009) 47 Cal.4th 835, 845 [" ' "An appellate court cannot assume the task of discovering the error in a ruling and it is the duty of counsel by argument and the citation of authority to show the reasons why the rulings complained of are erroneous. Contentions supported neither by argument nor by citation of authority are deemed to be without foundation and to have been abandoned." ' "].)
Accordingly, we conclude that because Alejandro has failed to demonstrate that the trial court's imposition of the fines and fees was constitutionally infirm, no remand for an ability to pay hearing is proper.
While the Dueñas court did not address the criminal justice administration fee at issue in this case, Alejandro does not provide any distinct argument for reversal of the imposition of this fee. Accordingly, our rejection of Dueñas applies equally to all of the fines and fees that Alejandro challenges in this appeal. --------
IV.
DISPOSITION
The judgment is affirmed.
AARON, J. I CONCUR: HALLER, Acting P. J. Dato, J., concurring and dissenting.
I concur in that portion of the majority opinion that concludes the trial court did not abuse its discretion in denying defendant Carlos Alejandro's request to suppress evidence regarding DNA testing of a hat and cigarette. As to Alejandro's challenge to the imposition of certain fines and fees without a determination of his ability to pay them, I agree with my colleagues that we should not treat the argument as forfeited based on defense counsel's failure to raise the issue in the trial court. (Maj. opn., ante at p. 19.) Addressing the merits of the contention, for the reasons expressed in my concurring and dissenting opinion in People v. Cota (2020) 45 Cal.App.5th 786, I believe Alejandro is entitled to a hearing in the trial court where he can present evidence regarding the extent of his inability to pay the proposed fines and fees. (Id. at pp. 800-801; see also People v. Cowan (2020) 47 Cal.App.5th 32, 48.) At that point, on a proper factual record, he can develop his constitutional arguments with citations to appropriate authorities.
DATO, J.