Opinion
B293721
03-17-2020
THE PEOPLE, Plaintiff and Respondent, v. JENIFER NOEMI ROBLES, Defendant and Appellant.
Katharine Eileen Greenebaum, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING CHANGE IN APPELLATE JUDGMENT THE COURT:*
The opinion in the above-entitled matter filed on March 17, 2020 is modified as follows:
1. On page 1, the first paragraph, delete the last sentence and replace it with: "Affirmed in part; reversed in part and remanded for resentencing with instructions."
2. On page 2, after the first paragraph, add the following new paragraph:
In a petition for rehearing, Robles also contends pursuant to Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136), we should strike the one-year sentence enhancement the trial court imposed based on Robles having served a prison term for a prior felony conviction. Senate Bill 136 eliminated the one-year enhancement for prior prison terms, effective January 1, 2020, except for those based on conviction of a sexually violent offense. The People concede Senate Bill 136 applies retroactively to Robles, but they argue we should remand for the trial court to exercise its discretion in resentencing Robles because she was not sentenced to the maximum term. We agree and remand for the trial court to strike the one-year sentence enhancement and resentence Robles.
3. On page 2, in the second paragraph that starts "Robles also contends," delete the last sentence and replace it with: "On remand the trial court should allow Robles to request a hearing and present evidence demonstrating her inability to pay the court assessments and restitution fines imposed by the court."
4. On page 16, add a new part C as follows:
A. Robles Is Entitled to the Benefit of Senate Bill 136
Robles contends, the People concede, and we agree that, pursuant to Senate Bill 136 (2019-2020), the one-year prison prior enhancement the trial court imposed under section 667.5, subdivision (b), must be stricken. We also agree with the People that remand is appropriate for the trial court to exercise its discretion in resentencing Robles.
Effective January 1, 2020, Senate Bill 136 (2019-2020 Reg. Sess.) amended section 667.5, subdivision (b), to provide for a one-year prior prison term sentence enhancement only for sexually violent offenses, as defined in Welfare and Institutions Code section 6600, subdivision (b). (People v. Jennings (2019) 42 Cal.App.5th 664, 681; People v. Lopez (2019) 42 Cal.App.5th 337, 340-341.) Senate Bill 136 applies retroactively to Robles because Robles's sentence was not final at the time the new law became effective on January 1, 2020. (Jennings, at p. 682 ["Senate Bill No. 136's amendment to section 667.5, subdivision (b) applies retroactively to all cases not yet final as of its January 1, 2020, effective date."]; Lopez, at pp. 341-342 [applying Sen. Bill 136
retroactively]; see In re Estrada (1965) 63 Cal.2d 740, 744-745 [Absent contrary legislative intent, "[i]f the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then, in our opinion, it, and not the old statute in effect when the prohibited act was committed, applies."].) Because Robles's prior prison term enhancement was based on a conviction of unlawful driving or taking a vehicle (Veh. Code, § 10851, subd. (a), which is not an enumerated sexually violent offense (Welf. & Inst. Code, § 6600, subd. (b)), Robles is entitled to have the prior prison term enhancement stricken.
However, because the trial court did not sentence Robles to the maximum sentence, instead sentencing her to the middle term of three years on count 1 for second degree robbery, remand is appropriate to allow the trial court to exercise its discretion in resentencing Robles. (Cf. People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15 ["Because the resentencing court had imposed the maximum possible sentence, regardless of whether the two-year on-bail enhancement was stricken, there is no need to remand the matter to the trial court to exercise its sentencing discretion anew."]; People v. Lopez, supra, 42 Cal.App.5th at p. 342 [striking the prison priors but not remanding for resentencing where trial court imposed maximum sentence].)
5. On page 17, in footnote 9, after the citation for People v. Hicks (2019) 40 Cal.App.5th 320, 326, delete "Sept. 14" and replace it with "Nov. 26."
6. On page 22, under the Disposition, delete the second sentence and replace it with: "We reverse the sentence and remand with instructions for the trial court to strike the one-year prison prior sentence enhancement and to resentence Robles. On remand the trial court should allow Robles to request a hearing and present evidence demonstrating her inability to pay the court facilities and court operations assessments, restitution fine, and parole revocation restitution fine."
7. Update all footnotes and subheading letters accordingly.
On April 1, 2020 Robles filed a petition for rehearing, in which she raised her entitlement to the benefit of Senate Bill 136 (2019-2020 Reg. Sess.). We requested the People file an answer to the petition. In their answer, the People concede the prior prison term enhancement should be stricken but request we remand for resentencing.
Appellant's petition for rehearing is denied.
There is a change in the appellate judgment. /s/_________
* PERLUSS, P. J. /s/_________
ZELON, J. /s/_________
FEUER, J.
NOT TO BE PUBLISHED IN THE 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. (Los Angeles County Super. Ct. No. PA090845) APPEAL from a judgment of the Superior Court of Los Angeles County, Cynthia L. Ulfig, Judge. Affirmed; remanded with instructions. Katharine Eileen Greenebaum, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Defendant Jenifer Noemi Robles appeals from a judgment of conviction entered after a jury trial for second degree robbery, dissuading a witness by force or threat, and second degree burglary. On three occasions Robles broke into the house and garage of her mother, Teresa Flores-Garcia, and took phones, a pair of shoes, and a certificate. Robles contends the trial court prejudicially erred in admitting evidence of her taking the shoes, which was never charged. She also asserts the trial court abused its discretion in excluding evidence Flores-Garcia had custody of Robles's two children, which Robles sought to introduce to show her intent in entering the house was to see her children, not to steal.
Robles also contends the trial court violated her right to due process by imposing certain fines and assessments absent evidence of her ability to pay. We affirm Robles's conviction but remand for the trial court to allow Robles to request a hearing and present evidence demonstrating her inability to pay the court assessments and restitution fines imposed by the court.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Information
An information charged Robles with second degree robbery (Pen. Code, § 211; count 1), dissuading a witness by force or threat (§ 136.1, subd. (c)(1); count 2), burglary (§ 459; count 3), and making criminal threats (§ 422, subd. (a); count 4). The information also alleged Robles suffered a prior conviction for which she served a prison term within the meaning of section 667.5, subdivision (b).
All further undesignated statutory references are to the Penal Code.
Robles pleaded not guilty and denied the special allegations. B. The Evidence at Trial
Robles did not call any witnesses.
Flores-Garcia was at home in her bedroom on April 15, 2018 when Robles knocked on her front door and bedroom window. Through the window, Flores-Garcia told Robles to "go away." Robles then entered the house. Flores-Garcia had previously forbidden Robles from entering the house for any reason, and Robles did not have a key. When Robles entered the bedroom, Flores-Garcia told her, "You know you aren't supposed to be here." Flores-Garcia added, "I'm going to call the police." Flores-Garcia picked up her phone from a bedside table, but when she began to dial, Robles grabbed the phone and took it away. Robles then grabbed Flores-Garcia by the hair and pushed her toward the bed. Flores-Garcia fled to the living room, and Robles followed. Robles slapped Flores-Garcia across the face and said, "I want to kill you."
Flores-Garcia exited the house to the front yard, and Robles followed. Robles repeated, "I want to kill you." Flores-Garcia responded, "Go ahead, do it," and Robles grabbed Flores-Garcia by the neck with both hands and squeezed hard. The two struggled, and Flores-Garcia moved Robles's hands from her neck. Robles then left, taking Flores-Garcia's phone with her. Flores-Garcia went to the police station and reported the incident.
The next day, Flores-Garcia noticed a pair of black tennis shoes were missing from her house. She had seen the shoes that morning. Later that evening she saw Robles attempting to enter the house. Flores-Garcia called the police. Robles did not enter the house, but Flores-Garcia heard her enter the garage. By the time the police arrived, Robles was gone.
On April 19 Flores-Garcia returned home in the early evening. Her next door neighbor, Lorenza Villalobos, came up to Flores-Garcia and told her, "[T]here is somebody in your garage." At around 3:00 p.m. earlier that day, Villalobos had seen a woman climbing over the fence surrounding Flores-Garcia's property. Villalobos also had heard noises coming from inside Flores-Garcia's garage. Flores-Garcia attempted to use a remote control to open her garage door, but it did not work. She returned to her car and called the police. While Flores-Garcia was waiting for the police to arrive, she observed Robles exit the front door of the house, carrying a gray bag. Robles then began watering the plants in the front yard.
At 6:55 p.m. Los Angeles Police Officer Kyle Griffin responded to Flores-Garcia's house. When he arrived, he found Robles at the scene. Based on his interaction with Robles, Officer Griffin believed she was under the influence of drugs or alcohol. Flores-Garcia looked through the items in the gray bag and identified old phones and a certificate that belonged to her. Flores-Garcia had stored the phones in a chest in the garage, and the certificate was in her mailbox. Flores-Garcia's garage had two doors on the side, one connecting to the kitchen of the house and another leading to the backyard. Flores-Garcia had earlier propped a mattress inside the garage against the door leading to the backyard, but the mattress had been knocked down onto the floor. When she left earlier that day, Flores-Garcia closed and locked the door leading into her kitchen, but when she returned, the lock was damaged and the door was open. The mechanical garage door was disconnected from the electrical outlet. Flores-Garcia observed a chest in the garage, where she had stored the phones, had been moved to the middle of the garage, and a drawer was open. Earlier that day the washing machine in the garage was empty. But when Flores-Garcia returned, Robles's clothes and the missing black tennis shoes were inside the washing machine.
At trial, Los Angeles Police Officer Alvaro Sanda, who had taken the police report from Flores-Garcia on April 15, testified about the condition of the door leading from the garage to the kitchen after the April 19 incident, as shown in two photographs. Officer Sanda testified the damage to the wood where the deadbolt would lock the door into place was "consistent with a pry tool having been wedged in there, thereby[] knocking the door off its location." C. The Verdict, Admission of Prior Conviction, and Sentencing
The jury found Robles guilty of second degree robbery (count 1), dissuading a witness by force or threat (count 2), and second degree burglary (count 3). The jury acquitted Robles of making criminal threats (count 4). Robles waived her right to a trial on the alleged prior conviction and admitted she suffered a prior conviction for which she served a prison term within the meaning of section 667.5, subdivision (b).
The trial court sentenced Robles to an aggregate state prison term of four years eight months. The trial court selected count 1 as the base term and imposed the middle term of three years. On count 2, the court imposed the middle term of three years, to run concurrent to count 1. On count 3, the court imposed a consecutive term of eight months (one-third the middle term of two years). The court imposed a consecutive term of one year for the prior prison term enhancement.
The trial court imposed a $90 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)) and a $120 court operations assessment (Pen. Code, § 1465.8, subd. (a)(1)) ($30 and $40 per count, respectively). The court imposed a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)) and imposed and suspended a parole revocation restitution fine in the same amount (Pen. Code, § 1202.45). The court also imposed a $29 penalty surcharge (Pen. Code, § 1464; Gov. Code, § 76000), a $10 crime prevention fee (Pen. Code, § 1202.5, subd. (a)), and a $2 "state" surcharge (Pen. Code, § 1465.7). Robles did not object to imposition of the assessments and fines or raise her inability to pay.
The court waived attorney's fees, finding Robles did not have the ability to pay. Robles timely appealed.
DISCUSSION
A. Admission of Uncharged Crimes Evidence
1. Proceedings below
Before trial, defense counsel moved to exclude evidence Robles took the black tennis shoes from Flores-Garcia's house on April 16, 2018. The prosecutor argued the evidence was admissible pursuant to Evidence Code section 1101, subdivision (b), to prove Robles's identity as the April 19 burglar and to show Robles's intent in entering Flores-Garcia's garage and house on April 19 was to steal, an element of the crime of burglary as charged in count 3. Defense counsel responded Robles's identity was not at issue because Villalobos witnessed Robles jumping over Flores-Garcia's fence on April 19 (although Villalobos identified her as a "woman") and Flores-Garcia later saw Robles at the house. As to intent, defense counsel argued the evidence was highly prejudicial and "minimally probative" because the shoes were "such a generic item" there was no basis for believing Robles had taken them. After reviewing the preliminary hearing transcript, the court found Flores-Garcia had sufficiently identified the black tennis shoes as belonging to her, and it denied the motion.
Evidence Code section 1101, subdivision (b), provides, "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity . . .) other than his or her disposition to commit such an act."
Section 459 provides in relevant part, "Every person who enters any house . . . or other building . . . with intent to commit grand or petit larceny or any felony is guilty of burglary."
The trial court instructed the jury with CALCRIM No. 375: "The People presented evidence that the defendant committed the offense of burglary that was not charged in this case. [¶] You may considered this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense. . . . [¶] . . . [¶] If you decide that the defendant committed the uncharged offense, you may, but are not required to, consider that evidence for the limited purpose of deciding whether: [¶] A. The defendant was the person who committed the offenses alleged in this case or [¶] B. The defendant acted with the intent to enter the building with the intent to commit a theft within this case."
2. Applicable law and standard of review
Evidence Code section 1101, subdivision (b), "authorizes the admission of 'a crime, civil wrong, or other act' to prove something other than the defendant's character. . . . The conduct admitted under Evidence Code section 1101[, subdivision] (b) need not have been prosecuted as a crime, nor is a conviction required." (People v. Leon (2015) 61 Cal.4th 569, 597 (Leon); accord, People v. Ewoldt (1994) 7 Cal.4th 380, 393 [Evidence Code section 1101, subdivision (b) "does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person's character or disposition."].)
"'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.'"'" (Leon, supra, 61 Cal.4th at p. 598, quoting People v. Ewoldt, supra, 7 Cal.4th at p. 402; accord, People v. Harris (2013) 57 Cal.4th 804, 841 [evidence of defendant's prior burglary of woman's apartment admissible to show defendant's larcenous intent as to charged burglary of other woman's apartment where crimes were sufficiently similar].) Greater similarity between the charged and uncharged offenses is required to prove the existence of a common design or plan, and "the greatest similarity is required to prove identity." (Leon, at p. 598; accord, Ewoldt, at p. 402.)
Additionally, "the uncharged act must be relevant to prove a fact at issue (Evid. Code, § 210), and its admission must not be unduly prejudicial, confusing, or time consuming (Evid. Code, § 352)." (Leon, supra, 61 Cal.4th at pp. 597-598.) Further, "evidence of uncharged acts cannot be used to prove something that other evidence showed was beyond dispute"; in that case, the prejudicial effect of the evidence of the uncharged crimes substantially outweighs the probative value. (People v. Lopez (2011) 198 Cal.App.4th 698, 715 [evidence of a prior car theft and burglary of a purse from a car that were linked to the defendant were not admissible to show the defendant's later intent to steal a purse from a house because his intent to take the purse was not reasonably in dispute]; cf. People v. Rocha (2013) 221 Cal.App.4th 1385, 1396 [admission of evidence of prior burglary of garage admissible to show the defendant entered the victim's garage with larcenous intent where there was "a bona fide dispute as to the mental element of the charged offense"].)
"'We review the trial court's decision whether to admit evidence, including evidence of the commission of other crimes, for [an] abuse of discretion.'" (Leon, supra, 61 Cal.4th at p. 597, quoting People v. Harris, supra, 57 Cal.4th at p. 841.)
3. The Trial Court Did Not Abuse Its Discretion in Admitting Evidence of Robles's Uncharged Burglary To Prove Intent
Robles contends the uncharged crime of breaking in to take Flores-Garcia's shoes was not sufficiently similar to the April 19 burglary for purposes of demonstrating intent or identity under Evidence Code 1101, subdivision (b). Robles asserts the uncharged crime involved only Robles's entry into the garage without use of force, without confrontation, and without entering the house itself. By contrast, the April 19 incident involved Robles disconnecting the mechanical garage door, doing her laundry, damaging the door to gain entry into the house without taking anything from inside the house, and later watering plants in the front yard. Robles's argument is not persuasive.
Robles's argument misreads the record in that Flores-Garcia testified the black tennis shoes were taken from her house, not the garage.
As the People argue, each of the three incidents involved Robles entering Flores-Garcia's garage or house and taking Flores-Garcia's property, all within the span of a few days (April 15, 16, and 19). On April 15 Robles entered Flores-Garcia's house and forcibly took her phone. On April 16 Flores-Garcia noticed a pair of black tennis shoes were missing from her house, then later saw Robles on the property and heard her enter the garage. On April 19 Robles entered Flores-Garcia's garage and took the old phones and a certificate. The same day, the black tennis shoes and Robles's clothing were recovered from the washing machine in the garage.
Robles argues that if her intent was to steal when she entered Flores-Garcia's garage on April 19, she could have taken items of greater value than the phones and certificate found in her possession. But the evidence demonstrated Robles's pattern of repeatedly returning to Flores-Garcia's property and taking relatively low-value items over the course of several days. Thus, the trial court did not abuse its discretion in determining the uncharged crime was sufficiently similar to the charged April 19 burglary to admit the evidence to prove Robles's intent under Evidence Code section 1101, subdivision (b). (People v. Rocha, supra, 221 Cal.App.4th at pp. 1395-1396.) B. Exclusion of Evidence Flores-Garcia Had Custody of Robles's Children
Robles also contends the uncharged crime evidence was not admissible to prove identity because identity was not at issue. The People do not argue otherwise on appeal. Although Robles is correct on this point (and the jury was improperly instructed it may consider the evidence to prove identity), the erroneous admission of evidence of uncharged crimes requires reversal of a conviction only where it is reasonably probable the defendant would have received a more favorable result had the evidence been excluded. (People v. Thomas (2011) 52 Cal.4th 336, 356, fn. 20 [concluding admission of prior uncharged crimes was harmless error]; People v. Williams (2017) 7 Cal.App.5th 644, 678 ["we see no reasonable probability that the jury would not have convicted [the defendant] if the evidence had been excluded"]; see People v. Watson (1956) 46 Cal.2d 818, 836.) Because the evidence was admissible to prove intent, any error in admitting the evidence to prove identity was harmless.
1. Proceedings below
During trial, defense counsel sought to introduce evidence Flores-Garcia had custody of Robles's two children, asserting the fact was "highly relevant [to show] the motivation for [Robles] being there on the 19th, and . . . to a certain degree on the 15th." Defense counsel added that if Robles were to testify, she would say she was there to see her children, not to steal. Defense counsel pointed out Robles was charged in count 3 with burglary, which required proof Robles entered the residence with the intent to commit a crime. After hearing further argument, the trial court ruled, "I think when we get to the point of whether . . . Robles is going to choose to testify, then we'll obviously discuss this, but during the direct and cross-examination of the other witnesses, who has the children and why . . . Robles is there is irrelevant. [¶] But if she should choose to take the witness stand, obviously, you'll be able to litigate that issue."
Defense counsel also argued he could prove Robles's intent was to see her children through a declaration supporting Flores-Garcia's request for a restraining order that a friend had translated into English. The trial court excluded evidence of the declaration unless the friend testified as to the accuracy of the translation. Robles does not argue on appeal the trial court erred in excluding the declaration.
Later, during Flores-Garcia's trial testimony, defense counsel again raised the custody issue outside of the presence of the jury. He stated he did not yet know whether Robles would testify, but requested "just to ask [Flores-Garcia] whether or not [Robles's] two young children reside in the residency." Defense counsel added, "I think it's only fair to the People that the jury knows that she has court-ordered custody, that she's not secreting them, or holding them away. [¶] I think those are fair questions. I think it will give the jury a much better impression, a more accurate impression of the circumstances." The prosecutor objected, arguing the information was "not really necessary for the jury." He acknowledged "if [Robles] does choose to testify, her intent on why she went over there on the 19th does become relevant and it may be necessary to be brought in depending on what [the] actual intent was." The prosecutor added that if Robles testified about Flores-Garcia having custody of the children, this issue would "need[] to be fully developed" as to the reasons why so the jurors do not "get the negative impression of [Flores-Garcia] that she's just not letting [Robles] see the children . . . ." Defense counsel responded, "I don't think the specifics need to be gone into. . . . But I think it is important that the jury understands that [Robles's] two young children are in the residence. And I think it's only fair that the jury know that [Flores-Garcia] has court-ordered custody."
The trial court sustained the People's objection, explaining, "[T]he fact that the children live there is irrelevant. Because I think it misleads the jury, as counsel just indicated, the jurors would suspect or know something was wrong. So, it's calling on them to speculate, and, again . . . the question would be excluded."
Later, in response to the playing of a body camera video of her interaction with the police officer on April 19, Flores-Garcia testified, "If you can hear, there are two children there, so I was . . . more concerned about those children, than looking inside the bag."
2. Applicable law and standard of review
"Only relevant evidence is admissible . . . . 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.' . . . The trial court has broad discretion in determining the relevance of evidence, but lacks discretion to admit irrelevant evidence . . . . We review for abuse of discretion a trial court's rulings on the admissibility of evidence." (People v. Benavides (2005) 35 Cal.4th 69, 90, citations omitted; accord, People v. Howard (2010) 51 Cal.4th 15, 31 ["Evidence is relevant if it 'ha[s] any tendency in reason to prove or disprove any disputed fact.' [Citations.] The trial court has broad latitude in determining relevance."].)
Further, a trial court has discretion to exclude relevant evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352; accord, People v. Riggs (2008) 44 Cal.4th 248, 290.) We review the exclusion of evidence under Evidence Code section 352 for an abuse of discretion. (People v. Mendez (2019) 7 Cal.5th 680, 708; People v. Trujeque (2015) 61 Cal.4th 227, 274; People v. Jennings (2000) 81 Cal.App.4th 1301, 1314 ["We will not overturn or disturb a trial court's exercise of its discretion under [Evidence Code] section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd."].)
3. The trial court did not abuse its discretion in excluding evidence Flores-Garcia had custody of Robles's children
Robles contends evidence Flores-Garcia had custody of her children was relevant because "the fact that [Robles's] children were living with Flores-Garcia establishes the most logical reason for [Robles's] presence at her mother's house on April 19th." The People argue the evidence was not relevant without testimony either from Robles or Flores-Garcia as to Robles's intent to see her children when she broke into the house. The People alternatively contend any probative value of the evidence was substantially outweighed by the potential for confusing the issues or misleading the jury. We agree with the People's latter contention.
No evidence was presented or proposed to show Robles wanted or attempted to see her children prior to entering Flores-Garcia's garage on April 19. Absent this evidence, the fact the children lived with Flores-Garcia had only minimal probative value to show Robles broke into Flores-Garcia's garage to see her children. Further, as the trial court noted, the fact of custody alone would lead to juror speculation as to why Flores-Garcia had custody of the children, potentially causing the jury to dwell on collateral issues such as Robles's drug use or whether Flores-Garcia was unduly depriving Robles of contact with her children.
To the extent Robles argues for the first time in her reply brief that she wanted to question Flores-Garcia about Robles's relationship with her children and desire to see them, Robles forfeited this contention by failing to make an offer of proof below as to this line of questioning. (People v. Anderson (2001) 25 Cal.4th 543, 580 ["In general, a judgment may not be reversed for the erroneous exclusion of evidence unless 'the substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means.'"], quoting Evid. Code, § 354, subd. (a); People v. Armstrong (2019) 6 Cal.5th 735, 791 [defendant forfeited argument evidence of murder accomplice's reputation was improperly excluded by failure to make offer of proof].)
Under the circumstances, the trial court did not abuse its discretion in determining whatever minimal probative value evidence of Flores-Garcia's custody of the children might have had was outweighed by its likelihood to mislead and confuse the jury. C. Robles Is Entitled to a Hearing on Her Ability To Pay the Assessments and Fines
Robles also contends that even if no single error warrants reversal, the cumulative effect of the trial court's errors requires reversal. "'Under the cumulative error doctrine, the reviewing court must "review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence."'" (People v. Mireles (2018) 21 Cal.App.5th 237, 249; accord, People v. Cunningham (2001) 25 Cal.4th 926, 1009 ["'[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.'"].) On the facts here, there was no cumulative error.
Robles requests we remand the case for the trial court to conduct an ability-to-pay hearing in accordance with our opinion in Dueñas because she was indigent at the time of sentencing. We agree Robles should have an opportunity on remand to request a hearing and present evidence demonstrating her inability to pay the assessments and restitution fines, but not the $10 crime prevention fine.
1. Dueñas and its progeny
In Dueñas this court concluded "the assessment provisions of Government Code section 70373 and Penal Code section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair; imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution." (Dueñas, supra, 30 Cal.App.5th at p. 1168; accord, People v. Belloso (2019) 42 Cal.App.5th 647, 654-655 (Belloso).) In contrast to court assessments, a restitution fine under section 1202.4, subdivision (b), "is intended to be, and is recognized as, additional punishment for a crime." (Dueñas, at p. 1169; accord, Belloso, at p. 655.) Section 1202.4, subdivision (c), expressly provides a defendant's inability to pay a restitution fine may not be considered as a "compelling and extraordinary reason" not to impose the statutory minimum fine. However, as this court held in Dueñas, to avoid the serious constitutional questions raised by imposition of such a fine on an indigent defendant, "although the trial court is required by . . . section 1202.4 to impose a restitution fine, the court must stay the execution of the fine until and unless the People demonstrate that the defendant has the ability to pay the fine." (Dueñas, at p. 1172; accord, Belloso, at p. 655.)
Several Courts of Appeal have applied this court's analysis in Dueñas (e.g., People v. Santos (2019) 38 Cal.App.5th 923, 929-934; People v. Kopp (2019) 38 Cal.App.5th 47, 95-96, review granted Nov. 13, 2019, S257844 [applying due process analysis to court assessments]; People v. Jones (2019) 36 Cal.App.5th 1028, 1030-1035). Others have rejected the due process analysis (e.g., People v. Kingston (2019) 41 Cal.App.5th 272, 279-281; People v. Hicks (2019) 40 Cal.App.5th 320, 326, review granted Sept. 14, 2019, S258946), or concluded the imposition of fines and fees should be analyzed under the excessive fines clause of the Eighth Amendment (e.g., People v. Aviles (2019) 39 Cal.App.5th 1055, 1061; Kopp, at pp. 96-97 [applying excessive fines analysis to restitution fines]). The Supreme Court granted review of the decision in Kopp to decide the following issues: "Must a court consider a defendant's ability to pay before imposing or executing fines, fees, and assessments? If so, which party bears the burden of proof regarding defendant's inability to pay?"
Our analysis of restitution fines under section 1202.4, subdivision (b), also applies to parole revocation fines under section 1202.45, because these fines must be imposed "in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4." (§ 1202.45, subd. (a).)
Dueñas did not address the penalty surcharges under Penal Code section 1464 and Government Code section 76000, the state surcharge under Penal Code section 1465.7, or the crime prevention fee under Penal Code section 1202.5. However, we agree with Robles that because the penalty and state surcharges are based on the amount of the assessments imposed, if the trial court on remand vacates the assessments based on Robles's inability to pay, it should also vacate the surcharges. Section 1464, subdivision (a)(1), provides "there shall be levied a state penalty in the amount of ten dollars ($10) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses . . . ." Government Code section 76000, subdivision (a)(1), similarly provides for imposition of a $7 additional penalty for every $10 of "every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses." Section 1465.7, subdivision (a), provides for a 20 percent state surcharge on the base fine used to calculate a state penalty assessment under section 1464. By contrast, section 1202.5, subdivision (a), provides for imposition of a $10 crime prevention fee in cases in which the defendant is convicted of theft-related offenses, including burglaries, "in addition to any other penalty or fine imposed." This provision is not dependent on the amount of the underlying assessment or fine.
2. We decline to find forfeiture of Robles's arguments under Dueñas, except as to the $10 crime prevention fine under section 1202 .5
The People contend Robles forfeited her objections to the trial court's imposition of the assessments and fines because she failed to object to their imposition at sentencing. However, at the time Robles was sentenced, Dueñas had not yet been decided, and we have generally declined to find forfeiture based on a defendant's failure to object to fines and fees prior to our opinion in Dueñas. As we explained in People v. Castellano (2019) 33 Cal.App.5th 485, 489 (Castellano), "[N]o California court prior to Dueñas had held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant's ability to pay. . . . When, as here, the defendant's challenge on direct appeal is based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial, reviewing courts have declined to find forfeiture." (Accord, Belloso, supra, 42 Cal.App.5th at p. 662; People v. Santos, supra, 38 Cal.App.5th at pp. 931-932; People v. Johnson (2019) 35 Cal.App.5th 134, 137-138; contra, People v. Ramirez (2019) 40 Cal.App.5th 305, 312 [defendant forfeited challenge by not objecting to the assessments and restitution fine at sentencing]; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 [same]; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154 [same].)
The People urge us to follow People v. Frandsen, supra, 33 Cal.App.5th at pages 1153-1154, in which Division Eight of this district found the defendant forfeited his challenge under Dueñas by failing to object at sentencing. But we disagree with Frandsen. As in Castellano and Belloso, we decline to find Robles forfeited her constitutional challenge to the imposition of the assessments and restitution fines.
In contrast to the criminal assessments, however, section 1202.5, subdivision (a), provides as to the crime prevention fee, "If the court determines that the defendant has the ability to pay all or part of the fine, the court shall set the amount to be reimbursed and order the defendant to pay that sum to the county in the manner in which the court believes reasonable and compatible with the defendant's financial ability." (Accord, People v. Castellanos (2009) 175 Cal.App.4th 1524, 1531 ["In setting the amount of the section 1202.5, subdivision (a) fine, the trial court must take into account the accused's ability to pay; 'the amount of any other fine'; and the amount of any restitution ordered paid to victims."].) By failing to object to imposition of the $10 crime prevention fee at sentencing, Robles forfeited her right to challenge the fee on appeal. (See People v. Aguilar (2015) 60 Cal.4th 862, 867-868 [defendant forfeited challenge to probation-related costs and reimbursement of attorneys' fees by failing to object at sentencing]; People v. Nelson (2011) 51 Cal.4th 198, 227 [defendant forfeited challenge to $10,000 restitution fine imposed under § 1202.4 by failing to object at his sentencing hearing]; People v. Acosta (2018) 28 Cal.App.5th 701, 705 [noting as to sex offender fine, including penalty assessments and administrative fees, "by failing to object to these fines at sentencing, [a defendant] has waived any claim on appeal that the trial court improperly imposed them"].)
3. On remand Robles is entitled to an opportunity to challenge imposition of the assessments and fines
The People contend the record does not support a remand for an ability-to-pay hearing because Robles failed to show in the trial court she did not have the financial ability to pay the assessments and fines and failed to show he lacked the future earning capacity to pay, including from wages she would earn while in prison. At the time of sentencing, Robles was 23 years old, suffering from drug addiction, and living at the "Amity Foundation." Robles broke into Flores-Garcia's house to steal small items. Additionally, the court waived attorney's fees, finding Robles did not have the ability to pay.
The People are correct Robles must in the first instance request an ability-to-pay hearing and present evidence of her inability to pay the assessments and restitution fines. (Castellano, supra, 33 Cal.App.5th at p. 490.) However, as discussed in the context of forfeiture, because Robles was not aware of her ability to challenge the assessments and restitution fines on due process grounds, she should have that opportunity on remand.
We reject the People's additional contention Robles has not shown a due process violation because she has not demonstrated adverse consequences from imposition of the assessments and fines. As we explained in Castellano, "the defendant need not present evidence of potential adverse consequences beyond the fee or assessment itself, as the imposition of a fine on a defendant unable to pay it is sufficient detriment to trigger due process protections." (Castellano, supra, 33 Cal.App.5th at p. 490.)
DISPOSITION
The conviction is affirmed. We remand to allow Robles to request a hearing and present evidence demonstrating her inability to pay the court facilities and court operations assessments, restitution fine, and parole revocation restitution fine. If Robles demonstrates her inability to pay the assessments, the trial court must vacate them. If the court vacates any of the assessments, it must vacate or reduce the penalty surcharges imposed under Penal Code section 1464, subdivision (a)(1), and Government Code section 76000 and the state surcharge under Penal Code section 1456.7. If the court determines Robles does not have the ability to pay the restitution fine and parole revocation restitution fine, it must stay execution of the fines.
FEUER, J. We concur:
PERLUSS, P. J.
ZELON, J. /s/_________
* PERLUSS, P. J. ZELON, J. FEUER, J.