Opinion
D074171
02-10-2020
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM RAY CHISM, Defendant and Appellant.
Rachel M. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, A. Natasha Cortina and Annie Featherman Fraser, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD263541) APPEAL from a judgment of the Superior Court of San Diego County, Garry G. Haehnle, Judge. Reversed in part, affirmed in part and remanded with directions. Rachel M. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General for Plaintiff and Respondent.
A jury convicted William Ray Chism in San Diego Superior Court Case No. SCS294745 (case No. 745) of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 1) and three counts of making criminal threats (§ 422, counts 2, 3, & 5). As to counts 1 and 2, it found true allegations that Chism personally used a deadly and dangerous weapon, a knife, in violation of sections 12022, subdivision (b)(1) and 1192.7, subdivision (c)(23). In a separate case (San Diego Superior Court Case No. SCD263541 (case No. 541)), Chism's probation was revoked due to the above-referenced verdicts.
Undesignated statutory references are to the Penal Code.
For both cases, the court sentenced Chism to a total term of five years four months in prison. In case No. 745 the court imposed four years on count 1; two years on count 2 stayed under section 654; and eight months (one-third the midterm) each on counts 3 and 5, consecutive to count 1. It ordered Chism to pay a $120 criminal conviction assessment (Gov. Code, § 70373), a $150 court operations assessment (§ 1465.8), a $154 criminal justice administration fee (Gov. Code, § 29550 et seq.), and an $800 restitution fine (§ 1202.4, subd. (b)). It stayed another $800 restitution fine under section 1202.45. In case No. 541, the court revoked Chism's probation and resentenced him to the midterm of two years in state prison on counts 2 and 3 to run concurrent to each other and concurrent to his sentence in case No. 745. In that case, it ordered Chism to pay a $60 criminal conviction assessment (Gov. Code, § 70373), a $150 court operations assessment (§ 1465.8), a $154 criminal justice administration fee (Gov. Code, § 29550), and a $300 probation revocation restitution fine (which had been suspended pursuant to section 1202.44, but was ordered due).
The court originally sentenced Chism to six years four months on May 8, 2018. In September 2018, the court corrected Chism's sentence to strike the one-year punishment for the section 12022, subdivision (b)(1) allegation and amended the abstract of judgment to reflect the amendment.
The trial court referred to this assessment as an "ICNA fee." The People point out that the criminal conviction assessment fee funds are used for the Immediate and Critical Needs Account.
Chism contends: (1) insufficient evidence supports his conviction for assault with a deadly weapon; (2) the duplicate fees and assessments imposed in case No. 541 were unauthorized and must be stricken; and (3) the trial court violated his due process rights by imposing the fines, fees and assessments without first determining whether he has the ability to pay them. The People concede that some of the assessments and fees should not have been imposed when Chism's probation was revoked, and ask that the abstract of judgment be modified to reflect that the court reimposed those fees and assessments.
We conclude there is merit to Chism's challenge to the sufficiency of the evidence supporting his assault with a deadly weapon conviction. We hold as a matter of law the evidence does not establish Chism, who was wielding a knife, had a present ability to commit a violent injury on the victim within the meaning of the assault offense because 80 feet remained between him and the victim at all times, a position that was not within striking distance as required for the offense. Because that conviction must be reversed and the matter remanded for resentencing, Chism will have an opportunity to ask the trial court to conduct a hearing on his ability to pay any fines, fees and assessments he may be ordered to pay and the trial court will be able to properly address the previously imposed fees and assessments in connection with case No. 541.
FACTUAL AND PROCEDURAL BACKGROUND
One morning, D.B. was waiting at a trolley station to meet a friend for work when he heard a person ranting, raving and screaming and saw Chism coming toward him. Chism was about 75 to 85 feet away from D.B., and said to D.B., "I am tired of you niggers coming up in this town. I know everybody around here. I am a Hell's Angel." Chism was wielding a knife, pointing it forward at about eye level while yelling and walking towards D.B. D.B. kept his eyes on Chism and backed up as Chism came toward him. D.B. considered Chism's actions very threatening. Chism continued to yell: "This is my town. I know everybody here. I am a Hells Angel. Fucking niggers. Not come out here [sic]." He also told D.B. he would slice his throat and kill him. D.B. was scared and backing up quickly. He thought he could be stabbed and was worried for his safety. The incident lasted two to three minutes and Chism yelled threats at D.B. the entire time. According to D.B., Chism came about 80 feet from him at the closest point. Eventually sheriffs contacted Chism. Afterwards, D.B. was anxious and shaking, but glad the incident had stopped.
Two sheriff's deputies responded to calls concerning a male wielding a knife and threatening people on the trolley platform. They encountered Chism, who walked away from them as they commanded him to stop. Chism responded with a racial slur and expletive and told one of the deputies to shoot him. That deputy grabbed Chism and took him to the ground, and the deputies handcuffed him after a brief struggle. While on the ground, Chism used another expletive and racial slur and told the other deputy he would rape the deputy's wife. Deputies found a large knife with an approximately 5- to 6-inch blade inside a sheath on Chism's waistband. The deputies arrested Chism for making a criminal threat in violation of section 422. Chism made additional specific threats to deputies while en route to the sheriff's station, at the station, and on the ride to the downtown jail.
During closing arguments, the prosecutor told the jury that with respect to the assault with a deadly weapon offense: "[T]here is no distance requirement . . . . Nowhere in this element does it say that the defendant has to be five feet away, 10 feet away, 100 feet away. . . . So you just have the elements as it is [sic]." The prosecutor also argued Chism had the present ability to apply force: "[Chism] is telling [D.B.] he is going to stab him. He has the present ability to do so because he is holding a knife. He can actually execute his threat if he wants to. He has that ability to do so in the moment. [¶] . . . [¶] So an actual touching is not required. [¶] An injury is not required. [¶] All that matters is when the defendant acted, he had the present ability to apply the force. [¶] And, again, there is no distance requirement here. So the fact that [D.B.] was retreating and going away doesn't matter. . . . The defendant's actions still satisfy the element."
Defense counsel argued in response that "[Chism] never got closer than 80 feet away from [D.B.]. And how do you know that [Chism] wasn't actually trying to come after [D.B.] with that knife? [D.B.] was very careful to say . . . he didn't turn his back on [Chism] so he was watching him the whole time. So he can tell you exactly what his path of travel was. [¶] And [D.B.] was not traveling fast. [¶] . . . [¶] [Chism] kept the 80- feet distance between him the whole time. Right? He didn't try to go faster than [D.B.]. He didn't try to sneak around another way. He didn't throw that knife at him from across the parking lot. He walked, and he paced, and he stayed a distance away that would make it physically impossible to take a swing at him and have it connect. . . . [¶] . . . [¶] And . . . this would be a different story if [Chism] was out there with a gun. Distance doesn't matter. He had a knife, and he was never close enough to do anything with it. There was no physical possibility of the act."
DISCUSSION
I. Sufficiency of Evidence of Assault With a Deadly Weapon
Emphasizing he never got any closer than about 80 feet from D.B. and did not endeavor to close the gap between then, Chism contends there was insufficient evidence he had the present ability to commit an assault with a deadly weapon. He maintains his action—yelling at D.B. while holding a knife from 80 feet away—was not conduct that by its nature would probably result in the application of force, he was not in a position to commit battery, and he was too far away to have a present ability within the meaning of the offense. A. Standard of Review
On a claim of insufficiency of the evidence, " 'we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., 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. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] "Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]" [Citation.] A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support' " the jury's verdict.' " (People v. Penunuri (2018) 5 Cal.5th 126, 142; accord, People v. Manibusan (2013) 58 Cal.4th 40, 87; People v. Bollaert (2016) 248 Cal.App.4th 699, 708.) B. Legal Principles
To establish the crime of assault with a deadly weapon within the meaning of section 245, subdivision (a)(1), the People must prove as one element an assault, which the law defines as a "present ability[ ] to commit a violent injury on the person of another." (§ 240.) The California Supreme Court has stated that present ability to injure exists when a defendant " 'has attained the means and location to strike immediately.' " (People v. Chance (2008) 44 Cal.4th 1164, 1174 (Chance), quoting People v. Valdez (1985) 175 Cal.App.3d 103, 113; see also People v. Licas (2007) 41 Cal.4th 362, 366-367 [" 'Once a defendant has attained the means and location to strike immediately he has the "present ability to injure" ' "].) But " 'immediately' does not mean 'instantaneously.' It simply means that the defendant must have the ability to inflict injury on the present occasion.[] . . . "[A]n assault may be committed even if the defendant is several steps away from actually inflicting injury, or if the victim is in a protected position so that injury would not be 'immediate,' in the strictest sense of that term." (Chance, at p. 1168.) Thus, an intended victim's effective steps to avoid injury do not negate present ability. (Chance, at p. 1174; see also People v. Raviart (2001) 93 Cal.App.4th 258, 267 [defendant brought his gun into a position where he could have used it against two different officers even though he pointed it at only one who was around the corner of a building; "the fact that [the target] may have been sheltered, in whole or in part, by [a] building did not preclude [a] jury from finding defendant had the present ability to injure him"].)
In Chance, the California Supreme Court addressed whether a defendant had the present ability to inflict injury on a police officer where the defendant pointed his gun in the wrong direction (incorrectly believing the officer was in front of him, although the office had moved behind him) and the defendant could not fire his gun until he moved a new round into the firing chamber. (Chance, supra, 44 Cal.4th at pp. 1173, 1176.) The court limited the application of cases addressing the intent requirement for assault, stating, "Although temporal and spatial considerations are relevant to a defendant's 'present ability' under section 240, it is the ability to inflict injury on the present occasion that is determinative, not whether injury will necessarily be the instantaneous result of the defendant's conduct." (Id. at p. 1171.) According to Chance, later case law established that "when a defendant equips and positions himself to carry out a battery, he has the 'present ability' required by section 240 if he is capable of inflicting injury on the given occasion, even if some steps remain to be taken, and even if the victim or the surrounding circumstances thwart the infliction of injury." (Id. at p. 1172.)
People v. Williams (2001) 26 Cal.4th 779 and People v. Colantuono (1994) 7 Cal.4th 206.
Chance explored authorities dealing with the notion of "immediate" injury both in the context of using firearms and knives. (Id. at pp. 1171-1172.) One case, involving a defendant who threatened to shoot the victim with a gun pointed to the ground, held the relevant intention "must be to commit a present, and not a future injury," making clear that "any indirect preparation towards" violence such as drawing a sword or laying one's hand upon it sufficed; there was "no requirement that the injury would necessarily occur as the very next step in the sequence of events, or without any delay." (Chance, supra, 44 Cal.4th at p. 1172, discussing People v. McMakin (1857) 8 Cal. 547.) Another made clear that an unloaded gun does not confer present ability (Chance, at p. 1172 & fn. 7) but the present ability element was met by a defendant who wielded an automatic rifle with cartridges in the magazine even with an empty firing chamber since the defendant could remove a clip, dislodge a jammed cartridge, reinsert the clip, chamber a round, point the weapon, and pull the trigger. (Id. at pp. 1172, 1173, discussing People v. Ranson (1974) 40 Cal.App.3d 317.) The defendant in Chance was "further along the continuum of conduct toward battery" since he "needed only to transfer a shell to the firing chamber." (Chance, at p. 1173.)
In a third firearm case, the Court of Appeal upheld the assault conviction of a defendant who shot at a gas station attendant located behind a bulletproof window. (Chance, supra, 44 Cal.4th at p. 1173, citing People v. Valdez, supra, 175 Cal.App.3d at p. 106.) Chance agreed with some aspects of the Valdez court's reasoning: " 'Nothing suggests this "present ability" element was incorporated into the common law to excuse defendants from the crime of assault where they have acquired the means to inflict serious injury and positioned themselves within striking distance merely because, unknown to them, external circumstances doom their attack to failure. This proposition would make even less sense where a defendant has actually launched his attack—as in the present case—but failed only because of some unforeseen circumstance which made success impossible.' " (Chance, at p. 1174, quoting Valdez, at p. 112.) Chance adopted as "accurate" Valdez's reasoning that " '[o]nce a defendant has attained the means and location to strike immediately he has the "present ability to injure." The fact an intended victim takes effective steps to avoid injury has never been held to negate this "present ability." ' " (Ibid., quoting Valdez, at p. 113.)
A case involving use of a hatchet provided a further example. (People v. Chance, supra, 44 Cal.4th at p. 1174, citing People v. Yslas (1865) 27 Cal. 630 (Yslas).) There, a defendant committed assault where he "approached within seven or eight feet of the victim with a raised hatchet, but the victim escaped injury by running to the next room and locking the door." (Chance at p. 1174.) This was the case even though the defendant never closed the distance between himself and the victim or swung the hatchet. (Ibid., citing Yslas, at pp. 631, 633-634.) In Yslas, the court explained: "It is not indispensable to the commission of an assault that the assailant should be at any time within striking distance. If he is advancing with intent to strike his adversary and come sufficiently near to induce a man of ordinary firmness to believe, in view of all the circumstances, that he will instantly receive a blow unless he strike in self-defense or retreat, the assault is complete." (Yslas, 27 Cal. at p. 634.)
Applying these authorities, Chance held the defendant's "loaded weapon and concealment behind the trailer gave him the means and the location to strike 'immediately' at [the officer], as that term applies in the context of assault. [The officer's] evasive maneuver, which permitted him to approach defendant from behind, did not deprive defendant of the 'present ability' required by section 240." (Chance, supra, 44 Cal.4th at pp. 1175-1176.) It equated the circumstances to a case where a defendant fired a shot through a hole in the roof knowing an officer was upon it; because the officer " 'was sufficiently near to be killed from a bullet from the pistol' " defendant committed an assault despite his mistake as to the officer's exact location. (Chance, at p. 1176, citing People v. Lee Kong (1892) 95 Cal. 666, 670.)
In People v. Nguyen (2017) 12 Cal.App.5th 44, the court applied the principles of Chance and Yslas to an assault involving a knife. The defendant in Nguyen was approximately 10 to 15 feet away from police officers when he pointed an approximately 12- to 15-inch long knife in their direction and took a step toward them. (Id. at pp. 46-47.) Fearing for their safety, one of the officers fired his gun at the defendant, taking him down. (Id. at p. 47.) The defendant argued he could not be convicted of assault because a person with a knife 10 to 15 feet away could never, as a matter of law, have the present ability to commit a battery. (Id. at p. 48.) The Court of Appeal acknowledged Chance's statement that "[w]hen a defendant equips and positions himself to carry out a battery, he has the 'present ability' required . . . if he is capable of inflicting injury on the given occasion, even if some steps remain to be taken, and even if the victim or the surrounding circumstances thwart the infliction of injury.' " (Ibid., quoting Chance, supra, 44 Cal.4th at p. 1172.) The Nguyen court declined to distinguish Yslas's seven- to eight-foot separation between the perpetrator and victim from the 10- to 15-foot distance at issue in that case. (Nguyen, at p. 49.) It held it was within the jury's province to find as a factual matter the defendant committed an assault, either by having the present ability to inflict an injury or committing an act that by its nature would probably and directly result in application of physical force against another. (Ibid.) C. Analysis
The foregoing principles require us to reverse Chism's assault with a knife conviction for insufficient evidence of his "present ability to commit a violent injury" on victim D.B. The question is whether Chism had " 'attained the means and location to strike immediately' " as explained in Chance (supra, 44 Cal.4th at p. 1174). Under Chance, Chism's "temporal and spatial" positioning are relevant (Chance, at p. 1171), as is whether Chism had "positioned [himself] within striking distance . . . ." (Id., at p. 1174; see also People v. Licas, supra, 41 Cal.4th at pp. 369-370, discussing People v. Valdez, supra, 175 Cal.App.3d at p. 113.) The evidence is undisputed that while Chism had pointed his knife forward at D.B., he always remained approximately 80 feet from him; and, when Chism took steps toward D.B., D.B. stepped back correspondingly. There is no evidence Chism had any special ability to throw knives or that the weapon was a unique type of throwing knife. When a defendant holding a knife comes no closer than 80 feet away from a victim, the defendant has not put himself within "striking distance" of the victim, nor has he "position[ed] himself to carry out a battery" using that type of weapon. (Chance, at p. 1172.) The circumstances are unlike either Nguyen or Yslas, involving cutting weapons and distances of seven to eight feet and 10 to 15 feet. In both of those cases, a knife or hatchet-wielding defendant is only "several steps away" (Chance, at p. 1168) from the victim, and need only take a few steps to close in and inflict physical injury. That is simply not the case where 80 feet separate the defendant and victim.
The People maintain that the evidence shows Chism had the present ability to injure D.B., pointing out he was approaching D.B. with the knife raised while D.B. backed up. They rely on the notion that an assault may occur even when infliction of injury is prevented by environmental conditions. (Chance, supra, 44 Cal.4th at p. 1174.) They point out a person may commit assault "even if some steps remain to be taken and even if the victim or the surrounding circumstances thwart the infliction of injury." (Id. at p. 1172.) The People argue Chism was "only prevented from getting closer because [D.B.] was backing away . . . ." We would evaluate these arguments and view the evidence differently if this were an assault with a firearm case, given the travel distance of a bullet. They do not persuade us in a case involving a hand-held knife. Chance makes clear that an injury need not necessarily be the "very next step" in the sequence of events (id. at p. 1172) or the "instantaneous result" of the defendant's conduct." (Id. at p. 1171.) But in the above-discussed cases, the perpetrators had placed themselves in locations within striking distance but were prevented by some unknown external factor (a victim's movement, or bulletproof glass) from inflicting a violent physical injury. "[A] necessary requirement of 'present ability' [for purposes of assault] is the attainment of the means and location to strike immediately." (People v. Licas, supra, 41 Cal.4th at p. 370, citing in part People v. Valdez, supra, 175 Cal.App.3d at pp. 112-113 ["acquired the means to inflict serious injury and positioned themselves within striking distance"; "attained the means and location to strike immediately"; "acquired the means and maneuvered into a location to immediately injure his victim"].) Such is not the case where the knife-wielding defendant remains 80 feet from the victim.
We conclude as a matter of law that on "no hypothesis whatever" (People v. Penunuri, supra, 5 Cal.5th at p. 142) could the jury reasonably find Chism had the "ability to inflict injury on the present occasion" or that his conduct otherwise met the present ability element required for assault with a deadly weapon. The assault conviction is therefore reversed. When a defendant's conviction is reversed because as a matter of law the evidence was insufficient to support it, the defendant may not be retried. (See People v. Eroshevich (2014) 60 Cal.4th 583, 591.)
II. Fines, Fees and Assessments
A. Claim of Unauthorized Sentence
When the trial court in January 2016 originally sentenced Chism in case No. 541, it imposed fines "as recommended by the Probation Department." The minute order reflects that those fees constituted an $80 court operations assessment fee (§ 1465.8), a $60 criminal conviction assessment (Gov. Code, § 70373), and a $154 criminal justice administration fee (Gov. Code, § 29550). In May 2018, the court stated: "As to [case No. 541], I will impose the restitution fine of $300. As to both counts a second [section] 1202.45 [restitution fine] of $300 . . . . [¶] . . . The court security fee [now known as a court operations assessment] of [$]150. And ICNA [fee] of [$]60. Criminal justice administration of [$] 154. [¶] Restitution in that case, the Court will reserve jurisdiction on that. [¶] All fines and fees and restitution are to be paid forthwith or pursuant to [section] 2085.5 of the Penal Code."
In addition to the restitution fines, the abstract of judgment, which encompasses case Nos. 745 and 541, reflects one $150 court operations assessment, a $180 conviction assessment fee under Government Code section 70373, and $308 for "other" fees under Government Code section 29550.
Chism asserts that the abstract of judgment omits for case No. 541 the orally imposed duplicate $60 Government Code section 70373 fee and $154 criminal justice administration fee under Government Code section 29550. The abstract of judgment appears to include those fees: $180 in fees under section 70373 ($120 in case No. 745 plus $60 in case No. 541) and the $154 fee within the $308 "other" fees pursuant to Government Code section 29550 ($154 + $154 = $308). In any event, the abstract of judgment is not itself the judgment of conviction and cannot prevail over the court's oral pronouncement of judgment if they conflict. (People v. Delgado (2008) 43 Cal.4th 1059, 1070.) Here, the problem is not with the abstract of judgment; it is with the court's oral imposition of additional fines not included in its original January 2016 sentence. --------
Chism contends that the trial court's May 2018 imposition of the $60 Government Code section 70373 criminal conviction assessment and $154 criminal justice administration fee for case No. 541 constitutes an unauthorized sentence because the trial court duplicated the same fees and assessments it had imposed in January 2016. Pointing out that those fees can only be assessed upon conviction, Chism maintains imposition of the assessment and fee in May 2018 was not merely a confirmation of the previously imposed fees as permitted in People v. Cropsey (2010) 184 Cal.App.4th 961 because the court grouped them with an increased restitution fine and court security fee, and the court assertedly stated its intention to reimpose new fines, not to restate previously-assessed fines. Although the People concede that the abstract of judgment should be amended to reflect only the "previously imposed" fines and fees, Chism disagrees. He asks that this court strike as unauthorized the booking fee and court facilities assessment imposed in May 2018.
In People v. Chambers (1998) 65 Cal.App.4th 819, the court held that "a restitution fine imposed at the time probation is granted survives the revocation of probation." (Id. at p. 820; see People v. Guillen (2013) 218 Cal.App.4th 975, 985-988.) Thus, a trial court may not impose a fine as a condition of probation and impose another fine when the defendant is sentenced. (Chambers, at pp. 821-822 [court imposed a $200 restitution fine when the defendant was placed on probation, but imposed a $500 restitution fine after his probation was revoked and he was sentenced to state prison].) In People v. Cropsey, supra, 184 Cal.App.4th 961, the Court of Appeal distinguished Chambers in a case where following a third probation violation the trial court "reimpose[d]" restitution and probation violation fines, and added a $200 restitution fine that was suspended unless parole was revoked. (Cropsey, at p. 964.) On the defendant's contention that the trial court had erred in imposing two restitution fines under Penal Code sections 1202.4, subdivision (b) and 1202.44, the Court of Appeal found Chambers inapposite. According to Cropsey, the trial court was attempting to comply with Chambers by stating the fines were "reimposed" (id. at p. 965) and thus it was apparent the trial court was not imposing a "new, prohibited second fine." (Ibid.) This was confirmed by the fact the clerk wrote "previously imposed" in the minutes adjacent to the restitution fines. (Ibid.) The appellate court rejected the defendant's suggestion that all references to the restitution fines should be deleted from the minutes as "infeasible because it sets the stage for an extant but unpaid fine to be overlooked." (Ibid.)
The Cropsey court went on to state, however, that the trial court's use of the phrase " 'reimpose the restitution amounts' " was inconsistent with Chambers's principles. (Cropsey, supra, 184 Cal.App.4th at p. 965.) The survival of the restitution fines "made it unnecessary to 'reimpose' those still extant 'restitution amounts.' " (Id. at p. 966.) "Where a restitution fine(s) has been previously imposed, the trial court should simply say, 'The abstract of judgment should reflect the restitution fine(s) previously imposed.' " (Ibid.)
In May 2018, the trial court did not use the term "reimpose" when ordering imposition of the challenged fee and assessment in case No. 541. The sentencing minutes do not include any notation they had been previously imposed. It is not entirely clear whether the trial court intended to list a second set of fines. We need not analyze the court's action, however, because upon our remand for resentencing the trial court will have the opportunity to comply with the principles set forth above in Chambers and Cropsey. (See Cropsey, supra, 184 Cal.App.4th at pp. 965-966 [recommending that the trial court state that the " 'abstract of judgment should reflect the . . . fine(s) previously imposed' "].) B. Claim of Due Process Violation
Chism contends the trial court violated his due process rights by imposing the fines, fees and assessments without first determining his ability to pay them. He relies on People v. Dueñas, supra, 30 Cal.App.5th 1157, in which the court held due process requires a trial court before imposing certain assessments (criminal conviction and operation assessments under Government Code section 70373 and Penal Code section 1465.8) to determine whether the defendant is able to pay them. (Dueñas, at pp. 1171-1172.) Chism did not object to the trial court's imposition of his assessments, fines and fees at the time of sentencing. We need not decide whether Chism forfeited the issue (see, e.g., People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 [holding forfeiture resulted from defendant's failure to object to imposition of fines without ability-to-pay hearing in part because "Dueñas was foreseeable" and the defendant in Dueñas "herself foresaw it"]) or even whether Dueñas is correctly decided. At his resentencing hearing on remand, Chism will have an opportunity to object and request a hearing on his ability to pay any fines, fees and assessments imposed by the court.
DISPOSITION
We reverse for insufficient evidence Chism's count 1 conviction for assault with a deadly weapon in San Diego Superior Court Case No. SCS294745. Chism's remaining convictions are affirmed. The matter is remanded to the trial court for resentencing consistent with this opinion. Upon resentencing, the trial court shall prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
O'ROURKE, J. WE CONCUR: HUFFMAN, Acting P. J. AARON, J.