Fujisaki, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTSCalifornia Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51618206)
Defendant Elihu Ernesto Renderos appeals after a jury convicted him of first-degree residential burglary. On appeal, he contends the prosecution committed multiple acts of misconduct that denied him a fair trial. He further argues the trial court erred by failing to give the jury a unanimity instruction and by imposing fines, fees, and assessments without holding an ability to pay hearing. In a consolidated petition for writ of habeas corpus, defendant argues he was deprived of effective assistance of counsel during plea bargaining and sentencing. We affirm the judgment and deny the petition for writ of habeas corpus.
FACTUAL AND PROCEDURAL BACKGROUNDDefendant was charged by information with one count of first-degree residential burglary (Pen. Code, §§ 459, 460, subd. (a)), with a "hot prowl" allegation that a person was present in the residence during the commission of the burglary (§ 667.5, subd. (c)). The trial took place in November 2017, and the testimony established the following facts.
All further statutory references are to the Penal Code unless otherwise stated.
In March 2016, Chawnette Sneed woke up in her home around 9:00 a.m. She noticed the power was off, so she called her utility company. While on the phone, she saw an unfamiliar car in her driveway and defendant, whom she did not recognize, walking from the house to the car, which was packed neatly with items covered by towels and blankets. Sneed questioned defendant, who told her his friend had instructed him to come there. She began taking pictures of defendant and the car and eventually noticed that a case of water defendant was carrying and items in the trunk belonged to her. Sneed called the police, and defendant left.
Detective David Zuniga arrived at the scene and saw that the home's electrical panel was slightly open and that all of the circuit breakers were turned off. He did not see any signs of forced entry, but noticed a "doggy door" on the side of the garage.
Items taken from Sneed's garage included camping gear (three air mattresses, a tent, and coolers), jewelry, garage door openers, a backpack, ammunition and two gun clips, hats, and a used pregnancy test. Additionally, Sneed's car in the garage had been packed full of her own property, and there were bags and purses on the side of the house that were packed with items. Sneed also noticed that a baby picture of her daughter had been taped to the side of a box. In the garage, Zuniga found a ripped-up note that read, " 'Sorry for robbing your house. I really needed money to send to my mom in Central America.' "
Detective Kirk Sullivan determined from the photographs Sneed took that the car in the driveway was registered to defendant. About a month after the incident, Sullivan went to defendant's home and spoke with him. Defendant admitted that he was the person in Sneed's photographs and that he still had some of the stolen property, which he showed to Sullivan. Sullivan took defendant to the police station and interviewed him. Defendant told Sullivan that on the night of the incident, he had not slept and was "just driving around" while on methamphetamine. When asked how he wound up going to Sneed's house, defendant answered, "[p]ure necessity . . . [¶] . . . because [he had] to send money to [his] mother every month." He further said Sneed's garage "was open," and he "just got the things that [he] saw that [he] could cash for money and [he] took them." He denied turning off the power and claimed to have entered the garage through the doggy door. According to defendant, he was in the garage for four hours, and he admitted writing the apology note. He further stated that after he left Sneed's property, he went to his home and "started seeing what [he] could do to get money for [the items he took]." He was able to sell one of the gun clips "right away."
The defense offered the testimony of psychiatrist Dr. Anna Glezer. After holding an Evidence Code section 402 hearing on her proposed testimony, the trial court informed the jury that Dr. Glezer was "a qualified expert on the effects of methamphetamine on the human brain and on human behavior."
Dr. Glezer testified that methamphetamine can influence perception, and that some users will experience psychotic symptoms. She further testified that methamphetamine use can lead to fractured logic, hallucinations, and delusions, and can affect an individual's ability to form specific intentions. Dr. Glezer opined that defendant's acts of packing Sneed's car with her own property, taking a used pregnancy test, and taping up the picture of Sneed's daughter indicated irrational thinking. Additionally, defendant's act of staying in the garage for four hours was consistent with paranoia or fears of persecution that someone on methamphetamine might feel. As for defendant's confession to the police, Dr. Glezer opined that because the interview took place a month after the incident, defendant could have been attempting to retroactively apply logic to his irrational actions. During cross-examination, Dr. Glezer admitted that none of the peer-reviewed articles she had written had to do with methamphetamine or any other substances or their effect on the human brain.
Closing and Rebuttal Arguments
During his closing argument, defense counsel Zachary Linowitz argued that defendant lacked the requisite intent for the crime of burglary at the time he entered Sneed's garage because he was under the influence of methamphetamine. On rebuttal, the prosecutor criticized defendant's voluntary intoxication defense in three respects.
The crime of burglary requires an intent to commit grand or petit larceny or any felony at the time of entry. (§ 459; In re Leanna W. (2004) 120 Cal.App.4th 735, 741.)
First, the prosecutor argued that Dr. Glezer "told you herself she's not an expert in this field." After the trial court overruled Linowitz's objection to this statement, the prosecutor argued that Dr. Glezer admitted she had not written about how methamphetamine affects the human brain, and that she had only taken classes on the subject. The prosecutor continued, "Now, she's qualified as an expert in court but that's because to be an expert in court, you just need to have more information than the average person does." After Linowitz objected again, the trial court stated, "That is an inaccurate statement but I think the jurors understand[] what an expert witness is."
Second, the prosecutor argued that defendant's voluntary intoxication defense was "really just throwing spaghetti at the wall because ultimately what the law requires is that someone be so intoxicated that they either can't form the intent or that they have something so bizarre going on in their mind that they think they are under some kind of delusion that they didn't actually form the intent that's required." The trial court overruled Linowitz's objection to this statement.
Finally, the prosecutor argued that even if the jury believed defendant lacked the requisite intent upon his initial entry into the garage, there was evidence that he left the garage to pack up his car and then reentered the garage, and each reentry constituted a completed burglary under the law. After the trial court overruled Linowitz's objection, the prosecutor continued, "everytime you enter a room, if you enter that room with the intent to commit theft . . . then you committed a burglary." Linowitz objected that the argument was not based on the evidence and that the prosecutor had "sandbagged" the defense by presenting this new argument in rebuttal, but the objection was overruled.
Deliberation , Verdict , and Sentencing
During deliberation, the jury asked the trial court whether they were "allowed to consider the law on re-entry discussed in closing?" Linowitz argued it was not appropriate for the jury to be instructed on this new point of law so late in the process and that there was no evidence of additional entries. He further argued the court should declare a mistrial or tell the jury that the prosecutor had improperly raised this issue on rebuttal. The trial court posited whether it should "bring the jury back and have argument" but Linowitz responded, "I don't think additional argument is appropriate given that the jury has not requested it and that should be a last resort." The trial court ultimately answered the jury's question in the affirmative, saying "[a]ny entry with the requisite intent may support a conviction."
The jury found defendant guilty of first-degree residential burglary and the hot prowl allegation to be true.
At the sentencing hearing in May 2018, defendant was represented by new counsel, Edward Mario, who requested a sentence of probation and drug treatment as a condition of probation. The court responded, "If this case stood alone, Mr. Mario, I would agree that this would be a proper case for a probation case. The problem is that this case doesn't stand alone and there are three significant facts that play into this." The court then cited the following events: (1) after the November 2016 preliminary hearing, defendant "absconded" and "fled the jurisdiction and failed to appear"; (2) in August 2017, defendant was convicted in Merced County of attempted carjacking with a weapon; and (3) in November 2016, defendant was charged with forgery in a case that was still pending. Based on these circumstances, the trial court concurred with the prosecution's sentencing recommendation and sentenced defendant to four years in prison.
The trial court also imposed a restitution fine of $300 (§ 1202.4, subd. (b)), a court facilities assessment of $30 (Gov. Code, § 70373), and a probation report fee of $176 (§ 1203.1b). The court also imposed, but suspended, a probation revocation restitution fine of $300. (§ 1202.45.) In addition to these amounts, the abstract of judgment reflects the imposition of a $40 court operations assessment. (§ 1465.8, subd. (a)(1).)
Defendant appealed. He also filed a petition for a writ of habeas corpus, which we consolidated with the appeal.
DISCUSSIONA. Prosecutorial Misconduct/Error
"[T]he term prosecutorial 'misconduct' is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error." (People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 (Hill).)
On appeal, defendant contends the prosecutor committed prosecutorial misconduct by: (1) contradicting the trial court's finding that Dr. Glezer was an expert witness; (2) telling the jury that to be an expert, a witness simply needed to have more information than an average person; (3) confusing defendant's voluntary intoxication defense with an insanity defense; (4) mischaracterizing the voluntary intoxication defense as illegitimate; (5) impugning the integrity of defense counsel; (6) violating section 1093.5 by instructing the jury on the law of reentry; and (7) sandbagging the defense by arguing reentry for the first time in rebuttal.
We do not find, as the People contend, that defendant forfeited these arguments. Defendant timely objected to the statements he now challenges on appeal, and although both a timely objection and a request to admonish the jury are necessary to preserve a claim of prosecutorial misconduct (People v. Seumanu (2015) 61 Cal.4th 1293, 1328 (Seumanu)), the trial court's immediate overruling of defendant's objections left him no opportunity to make such a request. Under these circumstances, the absence of a request for a curative admonition did not forfeit the issue for appeal. (Hill, supra, 17 Cal.4th at p. 820.)
" 'Improper remarks by a prosecutor can " 'so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.' " [Citations.] Under state law, a prosecutor who uses deceptive or reprehensible methods to persuade either the court or the jury has committed misconduct, even if such action does not render the trial fundamentally unfair.' " (People v. Carter (2005) 36 Cal.4th 1114, 1204 (Carter).) " 'To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' " (Seumanu, supra, 61 Cal.4th at p. 1337.)
1. Defense Expert
As indicated, the prosecutor argued to the jury during closing that Dr. Glezer was not an expert on the effects of methamphetamine on the human brain and human behavior. Defendant contends this argument contradicted the trial court and caused the jury to question the integrity of the trial process. Viewed in context, however, the prosecutor's remarks pertained directly to what Dr. Glezer had said and how it lessened the value of her testimony. The prosecutor criticized "the quality of [Dr. Glezer's] opinion" because "[s]he told you herself she's not an expert in this field." The prosecutor went on to point out, accurately, that Dr. Glezer testified she has not written about the effects of methamphetamine on the human brain and had only taken some coursework on the issue. Considered in its entirety, the prosecutor's argument was appropriately based on the evidence at trial.
We agree, however, the prosecutor incorrectly stated that a witness need only have more information than an average person to be qualified as an expert. This remark seems to have conflated the limitations on the scope of expert testimony (Evid. Code, § 801, subd. (a)) with the standards for expert qualification (id., § 720, subd. (a)). Nevertheless, we perceive no resulting prejudice. Prior to closing argument, the trial court properly instructed the jury on the standards for expert qualification, and after the defense objected to the prosecutor's statement, the court expressly agreed that the remark was "inaccurate." On this record, we see no reasonable likelihood that the jury applied the prosecutor's remark in an improper or erroneous manner. (Seumanu, supra, 61 Cal.4th at p. 1337.)
2. Voluntary Intoxication
Defendant argues the prosecutor misstated the law on voluntary intoxication by remarking that "the law requires . . . that someone be so intoxicated that they either can't form the intent or that they have something so bizarre going on in their mind that they think they're under some kind of delusion that they didn't actually form the intent that's required." Defendant contends this statement confused voluntary intoxication with the defense of insanity and lessened the prosecution's burden of proof.
" '[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its obligation to overcome reasonable doubt on all elements.' " (People v. Centeno (2014) 60 Cal.4th 659, 666.) Likewise, it is improper to argue "a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence." (People v. Bradford (1997) 15 Cal.4th 1229, 1340.) Additionally, a prosecutor commits misconduct when he or she attacks the integrity of or casts aspersions on defense counsel. (Hill, supra, 17 Cal.4th at p. 832.)
Here, the record discloses no improprieties. Reasonably construed, the prosecutor's remarks were consistent with the applicable statutory language that evidence of intoxication pertains to whether or not the defendant actually formed the requisite specific intent for the charged crime. (§ 29.4, subd. (b).) Contrary to defendant's contention, the prosecutor made no mention of a defense burden of proof similar to that required for a defense of insanity. (See § 25, subd. (b).) That the prosecutor used the word "requires" is of no moment, as the prosecutor simply discussed what "the law requires" for evidence of voluntary intoxication to constitute a valid defense, and he did not suggest that defendant had a burden of proof or production in this regard.
Furthermore, we see no reasonable likelihood that the jury misapplied the law or the burden of proof. The trial court otherwise correctly instructed the jury on intoxication and the burden of proof, as well as the jury's duty to accept the law as stated by the court, not counsel. On this record, we presume the jury relied on these instructions, not the arguments, in convicting defendant. (People v. Morales (2001) 25 Cal.4th 34, 47.)
Defendant additionally contends the prosecutor's "throwing spaghetti at the wall" comment impugned defense counsel's integrity and mischaracterized the involuntary intoxication defense as illegitimate. "A criminal prosecutor has much latitude when making a closing argument. Her argument may be strongly worded and vigorous so long as it fairly comments on the evidence admitted at trial or asks the jury to draw reasonable inferences and deductions from that evidence." (Seumanu, supra, 61 Cal.4th at p. 1330.) Seumanu held that it was improper for a prosecutor to state that defense counsel " 'put forward' " a sham defense because "the argument improperly implied that counsel was personally dishonest." (Id. at pp 1337-1338.) The court distinguished such conduct from "simply argu[ing] the defense was unsupported by facts and thus a sham." (Ibid.)
Here, the prosecutor did not directly comment on the defense itself as being illegitimate. (Cf. People v. Peau (2015) 236 Cal.App.4th 823, 833 [describing defense as "loophole" was improper]; People v. Najera (2006) 138 Cal.App.4th 212, 220-221 [describing defense as "legal fiction" was misleading].) Instead, when viewed in its entirety, the challenged statement reflected a criticism on the strength of the evidence supporting defendant's intoxication defense. Specifically, after making the "throwing spaghetti at the wall" comment and describing the law on voluntary intoxication, the prosecutor continued, "Here [defendant] tells you exactly what he intended to do. He entered, he stole items, he turned around and sold them for cash." Put another way, the prosecutor argued that defendant's intoxication defense was weak in light of the evidence tending to show his intent to burglarize the home. This was simply vigorous argument based on a fair comment of the evidence. (Seumanu, supra, 61 Cal.4th at p. 1330.)
Finally, and in any event, we see no reasonable probability that the prosecutor's "throwing spaghetti at the wall" remark prejudiced defendant. (People v. Barnett (1998) 17 Cal.4th 1044, 1133 [applying Watson prejudice standard for prosecutorial misconduct claim].) There was strong evidence of defendant's intent to steal, not the least of which was his confession to Detective Sullivan. Although Dr. Glezer opined that defendant may have been simply attempting to retroactively apply logic to his actions, the evidence showed that defendant's actions at and around the time of the offense—i.e., leaving the apology note, selling off a stolen item "right away" after the burglary—were fully consistent with his later confession. And defendant's acts of packing Sneed's car with her own property and staying in the garage for hours, even if irrational, did not negate defendant's intent to steal, as defendant's theft of the garage openers suggests he intended to return for Sneed's car. Moreover, the trial court explicitly instructed the jury to consider the effects of intoxication on defendant's specific intent if the evidence supported it and to disregard any conflicting statements on the law by counsel. On this record, we see no reasonable probability that defendant would have obtained a more favorable result absent the prosecutor's remark.
3. Reentry
Defendant argues the prosecutor committed misconduct by arguing a point of law—i.e., that a burglary may be committed upon reentering a building with the intent to steal—without having previously submitted a corresponding jury instruction. Defendant argues this violated section 1093.5 because the prosecution effectively instructed the jury on this point of law, giving the prosecution an improper air of authority.
Section 1093.5 states that "all requests for instructions on points of law must be made to the court and all proposed instructions must be delivered to the court before commencement of argument. Before the commencement of argument, the court, on request of counsel, must: (1) decide whether to give, refuse, or modify the proposed instructions; (2) decide which instructions shall be given in addition to those proposed, if any; and (3) advise counsel of all instructions to be given. However, if, during the argument, issues are raised which have not been covered by instructions given or refused, the court may, on request of counsel, give additional instructions on the subject matter thereof."
Here, the prosecutor did not violate section 1093.5 or otherwise act in a way that gave him an improper air of authority. Rather, it is apparent that the jury did not accept the prosecutor's remarks as authoritative since it subsequently asked the trial court whether it could consider the law of reentry. And it was the trial court, not the prosecutor, that effectively gave the additional instruction on this point of law when responding to the jury's question in the affirmative.
Defendant further contends the prosecutor sandbagged the defense by raising the law on reentry for the first time on rebuttal. Here, however, the trial court afforded defense counsel an opportunity to respond to the prosecutor's rebuttal argument, but Linowitz refused. To counter this circumstance, defendant relies on People v. Sanchez (1978) 83 Cal.App.3d Supp. 1 (Sanchez) in contending that reargument would have been futile because the damage to Linowitz's credibility had already been done after the trial court permitted the prosecutor to raise the issue of reentry on rebuttal over the defense's objection in the jury's presence. We are not persuaded.
Sanchez did not involve a claim of prosecutorial misconduct and is otherwise factually distinguishable. The trial judge in that case changed her mind with respect to a point of law during defense counsel's argument. She interrupted counsel's argument and gave a modified instruction to the jury, thereby "requiring defense counsel to change the entire thrust of his argument (without any time to ponder it further or reflect upon the court's ruling)" and "destroying the credibility of the defense attorney in the eyes of the jury." (Sanchez, supra, 83 Cal.App.3d Supp. at p. 7.) Unlike the situation in Sanchez, the challenged point of law here was not suddenly and disruptively raised by the court during defense counsel's closing argument, and we cannot accept the sweeping proposition that overruling a defense objection during rebuttal in front of the jury operates to destroy defense counsel's credibility. Instead, there was an extended colloquy between the court and the attorneys outside the presence of the jury on how to respond to the jury's reentry question, and the trial court offered to reopen argument. During this colloquy, Linowitz argued there was insufficient evidence to support the inference of multiple entries, a point he could have raised to the jury had he accepted the court's offer to reopen argument.
Moreover, a review of the testimony at trial dispels any doubt that the defense was not unfairly surprised by the prosecutor's reentry argument. As recounted above, Sneed testified she confronted defendant when defendant's car had already been packed with items, and her purses and bags had been placed on the side of the house. At that point, she saw defendant walking to his already-packed car carrying only a case of water. Given defense counsel's closing argument that defendant lacked the requisite intent for burglary upon entering Sneed's garage because he was under the influence of methamphetamine, Sneed's undisputed testimony regarding all the items removed from her garage, and defendant's admission that he was at the crime scene for four hours, it was both logical and reasonable for the prosecutor to make a reentry rebuttal argument and to support the giving of an appropriate instruction. Tellingly, defendant does not contend on appeal that there was insufficient evidence to support the prosecutor's reentry argument.
On this record, we cannot say there was anything so egregious or reprehensible about the prosecutor's conduct that rendered the trial fundamentally unfair. (Carter, supra, 36 Cal.4th at p. 1204.)
B. Unanimity Instruction Error
Defendant argues the trial court erred because it failed to instruct the jury sua sponte with a unanimity instruction. According to defendant, because the prosecutor argued there were multiple entries into the garage but did not elect which acts comprised the charged count, the jurors had to be instructed that they must unanimously agree as to which acts constituted the crime in order to convict defendant.
Claims of instructional error are reviewed de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733.) "In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case." (People v. Martinez (2010) 47 Cal.4th 911, 953.)
Under the California Constitution, a jury verdict in a criminal case must be unanimous (Cal. Const., art. I, § 16), and "the jury must agree unanimously that the defendant is guilty of a specific crime." (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) " 'The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.' [Citation.] [¶] On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty. [Citation.] The crime of burglary provides a good illustration of the difference between discrete crimes, which require a unanimity instruction, and theories of the case, which do not. . . . If the evidence showed two different entries with burglarious intent, for example, one of a house on Elm Street on Tuesday and another of a house on Maple Street on Wednesday, the jury would have to unanimously find the defendant guilty of at least one of those acts. If, however, the evidence showed a single entry, but possible uncertainty as to the exact burglarious intent, that uncertainty would involve only the theory of the case and not require the unanimity instruction." (Id. at pp. 1132-1133.)
The instant matter is not a case of multiple burglaries at different times and places, as hypothesized in Russo. Although the People argued there were multiple entries that could support the burglary count, the facts did not involve two distinct criminal events (i.e., entry on different occasions or into two different residences). And defendant cites no authority for the proposition that uncertainty as to when the intent to steal arose in the course of a residential burglary requires a unanimity instruction. Since there was no dispute that defendant removed items from the garage, and the only question was whether he at some point made a qualifying "entry" with the intent to steal, there was no risk that the jury would "divide on two discrete crimes and not agree on any particular crime"; rather, there was simply a "possibility that the jury may divide, or be uncertain, as to the exact way [defendant] [was] guilty of a single discrete crime." (Russo, supra, 25 Cal.4th at p. 1135.) In these circumstances, a unanimity instruction was not required.
C. The Court's Imposition of Fines, Fees, and Assessments
Defendant raises a due process challenge to the imposition of the restitution fines, the probation report fee, and court facilities and operations assessments. He relies on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), a decision that was issued after his sentence but which, he contends, is retroactive to all cases not yet final. Dueñas held that due process principles prohibit a trial court from imposing court facilities and operations assessments on an indigent defendant and also requires staying execution of a restitution fine until the court determines that the defendant has the present ability to pay. (Id. at p. 1164.) Defendant concedes his failure to object at sentencing to the fines, fees, and assessments, but argues that an objection prior to the issuance of Dueñas would have been futile.
1. Probation Report Fee
We begin by focusing on the challenge to the probation report fee. (§ 1203.1b.) Defendant acknowledges that Dueñas did not involve such a fee but contends the due process right recognized in that case should still apply. We disagree.
In finding a due process right to an ability to pay hearing for court facilities and operations assessments, Dueñas noted that "[b]oth Government Code section 70373 and Penal Code section 1465.8 are silent as to the consideration of a defendant's ability to pay in imposing the assessments." (Dueñas, supra, 30 Cal.App.5th at p. 1166.) In contrast, section 1203.1b sets forth specific procedures for determining a defendant's ability to pay for all or part of a probation report fee. The statute provides that when a defendant is convicted and granted probation and has been the subject of any pre-plea or presentence investigation and report, the probation officer, taking into account other fines, assessments and restitution imposed, must make a determination of the defendant's ability to pay all or a portion of the reasonable cost of probation supervision and preparation of the presentence report. (§ 1203.1b, subd. (a).) The defendant has a right to a hearing before the trial court if he or she disagrees with the probation officer's assessment, and the probation officer must inform the defendant of his or her entitlement to such hearing. (Ibid.) A defendant's waiver of the right to a hearing must be "knowing and intelligent" (ibid.), and if the defendant fails to waive this right, the probation officer must refer the matter back to the trial court for the scheduling of a hearing to determine the amount of payment and the manner in which the payments shall be made (id., subd. (b)). The court shall order the defendant to pay the reasonable costs if it finds, based on the probation officer's report, he or she has the ability to pay them. (Ibid.)
Here, the probation report recommended imposition of a probation report fee of $176 pursuant to section 1203.1b. The report also included the probation officer's determination that defendant had the ability to pay the fee. Thus, defendant had sufficient notice that the fee might be imposed at sentencing. Although it is unclear whether the probation officer informed defendant of his right to an ability to pay hearing, the California Supreme Court has made clear that, notwithstanding section 1203.1b's procedural requirements, a defendant forfeits any claim that the probation report fee was imposed in a procedurally flawed manner by not objecting at sentencing. (People v. Trujillo (2015) 60 Cal.4th 850, 858-860; see also People v. Valtakis (2003) 105 Cal.App.4th 1066, 1069-1072 (Valtakis).) The exception to forfeiture for claims of an "unauthorized" sentence (i.e., a sentence that could not lawfully be imposed under any circumstance in a particular case) does not apply to claims that probation fees were imposed in a procedurally flawed manner. (Valtakis, supra, 105 Cal.App.4th at pp. 1072, 1076.)
In sum, defendant has forfeited his challenge to the probation report fee.
2. Dueñas Error
Relying on Dueñas, supra, 30 Cal.App.5th 1157, defendant argues that due process required that the trial court hold an ability to pay hearing before imposing the restitution fines and the court facilities and operations assessments.
Preliminarily, we note that several courts have disagreed with Dueñas's due process analysis. (See, e.g., People v. Aviles (2019) 39 Cal.App.5th 1055, 1060 (Aviles) [holding that constitutional challenge to imposition of fines, fees, and assessments should be based on excessive fines clause of Eighth Amendment].) Some courts have simply refused to extend Dueñas's holding to other contexts. (See, e.g., People v. Caceres (2019) 39 Cal.App.5th 917, 927-929); People v. Evans (2019) 39 Cal.App.5th 771, 777-779.) Additionally, opinions differ as to whether and to what extent Dueñas error is subject to the forfeiture rule. (Compare, e.g., People v. Johnson (2019) 35 Cal.App.5th 134, 137-138 (Johnson) [challenge to imposition of statutory minimum restitution fine was not forfeited because change in law caused by Dueñas was not reasonably foreseeable] with People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 [challenge to assessments and restitution fine in excess of statutory minimum was forfeited and "Dueñas was foreseeable. Dueñas herself foresaw it"].) Finally, we note that the issue raised in Dueñas is currently under review by the California Supreme Court. (People v. Kopp, review granted, Nov. 13, 2019, S257844.)
We will assume for the sake of argument that defendant's claim of Dueñas error, which is based in part on the imposition of the minimum statutory restitution fine under section 1202.4, subdivision (b), was not forfeited by his failure to request an ability to pay hearing in the trial court. (See Johnson, supra, 35 Cal.App.5th at p. 138, fn. 5 [noting that forfeiture rule may apply in cases involving above-minimum restitution fines].) We also need not weigh in on the split of authorities regarding the correctness of Dueñas, for even assuming defendant had a due process right as he claims, any error by the trial court in failing to conduct a pre-imposition ability to pay hearing was harmless beyond a reasonable doubt. (People v. Jones (2019) 36 Cal.App.5th 1028, 1035 [applying Chapman prejudice standard to claim of Dueñas error.)
While the total amount of fines and assessments imposed on defendant here ($370, with an additional $300 imposed but suspended) was not a nominal sum, we can infer from the record that defendant has the income-earning capacity to pay it. At the time of sentencing, defendant was approximately 22 years old, and unlike the record in Dueñas, nothing in the record here suggests he suffers from any physical or mental limitations that would interfere with his ability to earn an income. The nature of his crime, which involved driving a car, entering a garage through a doggy door, and loading his car with various items including camping gear and a case of water, suggests he is able-bodied. Additionally, the probation report in this case contains specific information setting forth defendant's ability to maintain employment and establish stable residence.
We acknowledge that the probation officer's determination under section 1203.1b, subdivision (a), is, strictly speaking, limited to the ability to pay presentence probation costs. Still, the probation officer's determination that defendant has the ability to maintain employment reasonably suggests an income-earning capacity that can absorb the additional fines and assessments. In defining "ability to pay," section 1203.1b allows for consideration of the defendant's "[r]easonably discernible future financial position" up to one year from the date of the sentencing hearing, as well as the "[l]ikelihood that the defendant shall be able to obtain employment" in that period (§ 1203.1b, subd. (e)(2), (3)), and nothing in the statute excludes consideration of prison wages (cf. § 987.8, subd. (g)(2)). Moreover, "ability to pay" does not require existing employment or cash, and the determination may be made based on the person's ability to earn where the person has no physical, mental or emotional impediment to finding and maintaining employment once his or her sentence is completed. (People v. Staley (1992) 10 Cal.App.4th 782, 783.) These relevant factors, presumably taken into account by the probation officer, suggest defendant's ability to pay not only the probation report fee but the other fines and assessments imposed.
Defendant emphasizes that the due process right recognized in Dueñas requires a hearing to consider present ability to pay, and thus, future wages should not be considered. Based on this premise, defendant points to evidence in the record of his current indigency, including the probation officer's finding that he has no listed assets, bank accounts, or property, and the fact that he qualified for appointed counsel at trial and on appeal.
We are not persuaded. "A defendant may lack the 'ability to pay' the costs of court-appointed counsel yet have the 'ability to pay' a restitution fine." (People v. Douglas (1995) 39 Cal.App.4th 1385, 1397.) " '[I]n determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant's present ability but may consider a defendant's ability to pay in the future.' [Citation.] This include[s] the defendant's ability to obtain prison wages and to earn money after his release from custody." (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837.) In accord, the same court that decided Dueñas has since clarified that in determining a defendant's ability to pay, the court "must consider all relevant factors," including "potential prison pay during the period of incarceration to be served by the defendant." (People v. Castellano (2019) 33 Cal.App.5th 485, 490-491.) Nothing in the record here suggests that defendant will be ineligible for prison work assignments during his four-year sentence, or that he cannot earn money after his release from custody.
Prison wages range from $12 to $56 per month, depending on the prisoner's skill level, and the state may garnish between 20 and 50 percent of those wages to pay the section 1202.4, subdivision (b) restitution fine. (Aviles, supra, 39 Cal.App.5th at p. 1076.) --------
In sum, there is no basis in this record to conclude the total amount of fines, fees, and assessments imposed on defendant "saddle[d] [him] with a financial burden anything like the inescapable, government-imposed debt trap" faced the probationer in Dueñas. (Johnson, supra, 35 Cal.App.5th at p. 139.) By all indications, defendant should be able to pay the amounts imposed against him, even if it takes some time do so. (Aviles, supra, 39 Cal.App.5th at p. 1077.) Thus, even assuming a due process violation occurred, any alleged error was harmless beyond a reasonable doubt.
3. Court Operations Assessment
Defendant argues the $40 court operations assessment should be stricken because it was not included in the oral pronouncement of judgment. We disagree. Under section 1465.8, subdivision (a)(1), a $40 court operations assessment "shall" be imposed on every conviction for a criminal offense. This fee is mandatory. (People v. Woods (2010) 191 Cal.App.4th 269, 272.) The trial court here did not orally pronounce the imposition of the section 1465.8 assessment, but it was included in the abstract of judgment. Although in general, where there is a discrepancy, a trial court's oral pronouncement controls over the abstract of judgment (People v. Mitchell (2001) 26 Cal.4th 181, 185-186), defendant cites no authority applying this rule to strike a mandatory assessment from an abstract of judgment. On the contrary, the appropriate recourse in this circumstance is to modify the oral pronouncement of judgment to reflect the imposition of the mandatory assessment. (See People v. Talibdeen (2002) 27 Cal.4th 1151, 1157 [appellate court may properly correct trial court's omission of mandatory fee].)
D. Habeas Corpus Petition
Defendant petitions for a writ of habeas corpus on the grounds that he was denied his constitutional right to effective assistance of counsel by attorney Linowitz during plea bargaining, and by attorney Mario during sentencing. We have reviewed these claims and deny the petition on the ground that defendant fails to state a prima facie case for relief.
DISPOSITIONThe oral pronouncement of judgment is modified to impose the mandatory $40 court operations assessment (§ 1465.8, subd. (a)(1)). The judgment is otherwise affirmed. The petition for writ of habeas corpus is denied.
/s/_________
Fujisaki, J. WE CONCUR: /s/_________
Siggins, P. J. /s/_________
Petrou, J.
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