People v. Temme

Duarte, J.

NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17FE005228)

This case involves the fatal shooting of defendant Rebecca Irene Temme's former girlfriend during an armed robbery perpetrated by defendant and her then-boyfriend, James Baca. After a joint trial, a jury found defendant, who was not the shooter, guilty of two counts of robbery (Pen. Code, § 211) and first degree murder (§§ 187, subd. (a), 189, subds. (a), (e)), finding true the special circumstance allegation that the murder occurred during the commission of a robbery (§ 190.2, subd. (a)(17)(A)). The trial court sentenced her to life without the possibility of parole (LWOP) for the murder conviction, plus consecutive six-year terms for the robbery convictions, one of which was stayed under section 654. This timely appeal followed.

Undesignated statutory references are to the Penal Code.

On appeal, defendant contends her murder conviction and one of her robbery convictions must be reversed for insufficient evidence. She further contends the trial court erred in imposing the maximum restitution fine of $ 10,000. Finally, she contends the special circumstance finding must be stricken because the enactment of Senate Bill No. 1437 rendered the felony-murder special circumstance enhancement unconstitutionally vague as to aiders and abettors. We will modify the judgment to impose the mandatory court operations assessment and court facilities assessment the trial court failed to impose. As modified, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

We only recite the facts and procedural detail necessary to the resolution of this appeal. Additional information relevant to the claims raised on appeal is discussed below.

The Robbery and Murder

In March 2017 defendant was dating Baca, who was a tattoo artist and drug dealer. Defendant and her former girlfriend, Leonora Montoya, assisted Baca in selling cocaine and methamphetamine. Baca always carried a loaded gun for protection. In March 2017 he carried a .45 caliber handgun.

On March 18, 2017, defendant and Montoya got into a "heated" argument in the presence of Baca and defendant's aunt, Melodie Clark. Immediately after Montoya left the area, defendant said, "I am going to kill that bitch." Baca replied, "Baby, we can make that happen," and then pulled out a gun from his waistband. Thereafter, Clark, who was Montoya's friend, warned her to stay away from defendant, explaining that Baca had a gun and that he and defendant might do something to her.

Three days earlier, defendant sent Baca a text message that read: "This bitch is really fucking pushing me so just know I do love you and I'm so sorry that shits been crazy tonight, but I'm beyond . . . good and I'm not about to be in this car with her anymore I'll do something stupid." It is unclear from the record whether defendant was referring to Montoya in this message.

On March 6, 2017, Montoya sent Baca a message on Facebook indicating that she thought it was great that he and defendant were friends but noted that defendant was her "wife." In response, Baca said that he did not want to have sex with defendant, explaining that he did not "love her like that" and would not disrespect Montoya. During their exchange of messages, Baca told Montoya that he "sell[s] drugs [and] shoot[s] people."

The next morning, Montoya hung out with her friend, Katherine Archuleta. They drank alcohol, used drugs together, and talked about Montoya being on the "outs" with defendant. At one point, Archuleta mentioned that she wanted a tattoo. In response, Montoya indicated that Baca was a good tattoo artist and showed her some photographs of his work. When Montoya called defendant, she was told that the tattoo Archuleta wanted would cost $30. Thereafter, Montoya contacted defendant, who arranged for Baca to give Archuleta a tattoo and to sell Montoya and/or Archuleta drugs.

Later that day, Montoya drove Archuleta and her friend Ikon to a gas station to meet up with defendant and Baca. They arrived around 8:30 p.m. Defendant approached Montoya's car and said that Baca would not give Archuleta a tattoo because Montoya and Archuleta "weren't supposed to bring anybody with [them]." After Montoya dropped Ikon off at a nearby convenience store, she drove to a different gas station and picked up defendant and Baca. At defendant's direction, Montoya eventually drove the group to Baca's motel room at the Surf Motel in Sacramento. They arrived at 9:07 p.m. Baca entered the motel room first, followed in order by defendant, Archuleta, and Montoya. After Montoya entered the room and sat down in a chair, defendant closed the door. As soon as the door was shut, Baca pulled out a gun, pointed it in the direction of Montoya and Archuleta, and ordered them to place their cell phones on the table. According to Archuleta, defendant did not seem surprised by Baca's actions.

After Archuleta placed her cell phone on the table, defendant said, "car key," which Baca repeated as he approached Montoya with his gun pointed at her. As Montoya started to speak, Baca shot her in the face. Defendant and Baca immediately went through Montoya's pockets. When Baca turned and looked at Archuleta, she gave him all the money she had. Defendant or Baca grabbed Archuleta's cell phone and they fled the murder scene in Montoya's car. At Baca's direction, defendant drove to the San Francisco Bay Area. According to Archuleta, Montoya did not do anything to provoke the shooting.

Apprehension of Defendant and Baca

The following morning, Archuleta spoke with homicide detectives from the Sacramento County Sheriff's Department about the shooting. Around 5:10 p.m., a detective with that department spotted Montoya's car in Redwood City; defendant was driving and Baca was riding in the front passenger seat. When a Redwood City police officer attempted to effect a traffic stop, defendant sped off. A high-speed chase ensued, during which Baca threw a cell phone out the window. When defendant's path was blocked by a patrol car, defendant and Baca got out of Montoya's car and fled on foot. They were apprehended shortly thereafter. A loaded firearm magazine was found on Baca's person and a loaded handgun was found along the route Baca had taken while fleeing on foot. Three cell phones were found in the back of Montoya's car.

The Investigation

When homicide detectives responded to the scene of the shooting, Montoya was slumped over in a chair holding a closed pocketknife in her right hand. An autopsy revealed that she died of a single gunshot to the head. A .45 caliber spent bullet casing was found in the motel room. A firearms expert determined that the casing and the bullet that killed Montoya had been fired from the gun found when Baca and defendant were apprehended.

A review of security camera footage revealed that defendant, Baca, Montoya, and Archuleta arrived at the Surf Motel in Montoya's car at 9:07 p.m. on the evening of the shooting. Montoya, who was the last person to enter Baca's motel room, entered the room at 9:08 p.m. Less than a minute after defendant closed the door, defendant and Baca left the room and fled the area in Montoya's car. At 11:27 p.m., Baca sent a text message to someone using the name "Los Cervantes" indicating that he needed help "really bad." The following afternoon, Baca sent another text message to Los Cervantes stating that he needed "plates."

During a jail visit following the shooting, defendant admitted to Clark (her aunt) that she took everything Montoya had on her person, including her car key. Defendant also said that she loved Baca and that Archuleta was only alive because she had instructed Baca not to harm her. As for Montoya, defendant stated: "I don't give a shit about that bitch. Fuck her."

In late April 2019, defendant passed two notes to other inmates, instructing them to warn Archuleta that she was aware Archuleta intended on testifying against her and Baca, and that she would be "catching up with [Archuleta] real soon." Defendant referred to Archuleta as a "lame snake ass snitching ass bitch" and stated that she would be "gunnin" for Archuleta. Beginning on May 1, 2019, Archuleta testified as a prosecution witness. At that time, Archuleta was in custody for a felony she committed in 2018.

The letters were written by "Harliquinn Baby Girl" and "B.G." Defendant went by the nickname "Baby Girl."

Baca's Account of Events

Baca testified on his own behalf at trial. He claimed that he shot Montoya in self-defense during a drug deal gone bad. He denied that the shooting occurred during a robbery of Montoya and Archuleta.

Baca gave the following account of the shooting and the events leading up to the shooting: In the early evening of March 19, 2017, defendant told him that she had arranged a drug deal with Montoya and for him to give another person a tattoo. When he and defendant met Montoya at a gas station, he became upset and walked away because he thought he was being set up, as he believed the two people with Montoya (i.e., Archuleta and Ikon) were men. After Montoya dropped Ikon off, she and Archuleta met up with defendant and Baca at a different gas station. At defendant's direction, Montoya eventually drove the group to Baca's motel room at the Surf Motel. Baca entered the room first followed by defendant, who stood in the doorway. Although Baca was still worried that he was being set up, he weighed out some drugs and then started setting up his tattoo equipment. At that moment, Archuleta entered the room, threw $30 on the bed, and grabbed the drugs. Montoya then entered the room and defendant closed the door. Montoya sat down in a chair and said, "Break yourself," which Baca understood to mean "give up what you got." Montoya then reached toward her right side and started to stand up. Because Baca believed that she was trying to rob and kill him, he immediately pulled out his gun and shot her. Baca then grabbed his tattoo equipment, the $30 Archuleta had thrown on the bed for the drugs, and the key to Montoya's car, which was on a table. He and defendant then fled to the San Francisco Bay Area in Montoya's car. Defendant drove and he sat in the front passenger seat.

During his testimony, Baca explained that he had been the victim of two attempted robberies during drug deals. In one of those incidents, he was shot in the leg and one of his friends was shot and killed. In the other incident, he was shot in the ankle.

As for his apprehension the next day, Baca explained that a high-speed car chase ensued after he instructed defendant to "get up outta here" when police officers started to follow them. He further explained that he fled on foot from the pursuing officers after defendant stopped Montoya's car. He admitted that he tossed his gun during the foot chase because it was "slowing [him] down."

Charges, Verdicts, and Sentencing

In January 2018 defendant was charged by felony information with two counts of robbery (§ 211) and one count of first degree murder (§ 187, subd. (a)), with the special circumstance that the murder was committed during the commission of a robbery (§ 190.2, subd. (a)(17)(A)). In May 2019 a jury found her guilty on all counts and found true the special circumstance allegation. In June 2019 the trial court sentenced her to LWOP on the murder conviction, plus consecutive six-year terms on the robbery convictions, one of which was stayed under section 654. This timely appeal followed.

"Murder is the unlawful killing of a human being . . . with malice aforethought." (§ 187, subd. (a).) "All murder that is perpetrated by . . . willful, deliberate and premeditated killing . . . or that is committed in the perpetration of, or attempt to perpetrate" certain specified felonies, including robbery, "is murder of the first degree." (§ 189, subd. (a).) "Felony murder and premeditated murder are not distinct crimes, and need not be separately pleaded." (People v. Nakahara (2003) 30 Cal.4th 705, 712.)

Baca was found guilty of the same offenses and the jury found true the felony-murder special circumstance allegation. In addition, Baca was found guilty of a firearm offense and the jury found true firearm enhancement allegations. We do not review his conviction on this appeal.

DISCUSSION I Sufficiency of the Evidence

Defendant contends her convictions for the murder of Montoya and the robbery of Archuleta must be reversed for insufficient evidence. We disagree.

A. Standard of Review

" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] We determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.] In so doing, a reviewing court 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (People v. Edwards (2013) 57 Cal.4th 658, 715.)

" 'The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.] We do not reweigh evidence or reevaluate a witness's credibility.' " (People v. Houston (2012) 54 Cal.4th 1186, 1215.)

The jury is entitled to draw reasonable inferences based on the evidence (People v. Livingston (2012) 53 Cal.4th 1145, 1166), and we must accept all logical inferences the jury might have drawn from the evidence, even if we would have concluded otherwise (People v. Salazar (2016) 63 Cal.4th 214, 242). " 'Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.]' " (People v. Zamudio (2008) 43 Cal.4th 327, 357-358.) "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." (Id. at p. 357.)

B. Murder Conviction

Defendant was prosecuted for first degree murder under two theories: premeditated and deliberate murder as an aider and abettor and felony-murder as an aider and abettor of an armed robbery. The verdict form submitted to the jury instructed the jurors, if necessary, to select the theory upon which they found defendant guilty of murder. In finding defendant guilty of first degree murder, the jury concluded that she was guilty of that crime under a felony-murder theory.

On appeal, defendant contends her murder conviction must be reversed for insufficient evidence. She argues, among other things, that the record lacks substantial evidence showing that she was a major participant in the robbery and acted with reckless indifference to human life. We disagree. Because we conclude that the record contains sufficient evidence from which a reasonable jury could have found defendant guilty on this theory of felony-murder liability, we need not and do not address defendant's sufficiency of the evidence contention regarding the alternative theory of liability, aiding and abetting. (People v. Rundle (2008) 43 Cal.4th 76, 141 [" '[W]e need not consider [a sufficiency of the evidence] claim . . . when the court can determine from the record that the verdict rested on a theory which is supported by sufficient evidence.' "], disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

1. Applicable Legal Principles

Prior to the statutory amendments enacted by Senate Bill No. 1437, which went into effect on January 1, 2019 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 4), when the defendant or an accomplice killed someone during the perpetration of or attempt to perpetrate certain enumerated felonies, including robbery, the defendant was liable for first degree murder under the felony-murder rule. (People v. Gonzalez (2012) 54 Cal.4th 643, 654; § 189, subd. (a).) Felony-murder liability did not "require an intent to kill, or even implied malice, but merely an intent to commit the underlying felony. [Citation.]" (Gonzalez, at p. 654.) " 'The felony-murder doctrine, whose ostensible purpose [was] to deter those engaged in felonies from killing negligently or accidentally, operate[d] to posit the existence of that crucial mental state—and thereby to render irrelevant evidence of actual malice or the lack thereof—when the killer is engaged in a felony whose inherent danger to human life renders logical an imputation of malice on the part of all who commit it.' [Citation.]" (People v. Bryant (2013) 56 Cal.4th 959, 965.)

"Independent of the felony-murder rule, the natural and probable consequences doctrine rendered a defendant liable for murder if he or she aided and abetted the commission of a criminal act (a target offense), and a principal in the target offense committed murder (a nontarget offense) that, even if unintended, was a natural and probable consequence of the target offense. [Citation.] ' "Because the nontarget offense [was] unintended, the mens rea of the aider and abettor with respect to that offense [was] irrelevant and culpability [was] imposed simply because a reasonable person could have foreseen the commission of the nontarget crime." ' [Citation.]" (People v. Lamoureux (2019) 42 Cal.App.5th 241, 248.)

"Senate Bill 1437 was enacted to 'amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.' [Citation.] Substantively, Senate Bill 1437 accomplishes this by amending section 188, which defines malice, and section 189, which defines the degrees of murder, and as now amended, addresses felony murder liability." (People v. Martinez (2019) 31 Cal.App.5th 719, 723.)

"As amended, section 188 limits a finding of malice: 'Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.' (§ 188, subd. (a)(3).) As added by [Senate Bill No.] 1437, subdivision (e) of section 189 reads: 'A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) [including robbery] in which a death occurs is liable for murder only if one of the following is proven: [¶] '(1) The person was the actual killer. [¶] '(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] '(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.' " (People v. Ramirez (2019) 41 Cal.App.5th 923, 928.) Thus, following the enactment of Senate Bill No. 1437, aider and abettor liability for the felony-murder offense is indistinguishable from aider and abettor liability for the felony-murder special circumstance. (See §§ 189, subds. (a), (e), 190.2, subds. (a)(17), (c) & (d); see also CALCRIM No. 540B (Felony Murder: First Degree-Coparticipant Allegedly Committed Fatal Act); CALCRIM No. 703 (Special Circumstances: Intent Requirement for Accomplice After June 5, 1990—Felony Murder); CALCRIM No. 730 (Special Circumstances: Murder in Commission of Felony).

Prior to the statutory amendments enacted by Senate Bill No. 1437, to determine whether a defendant was culpable of first degree murder on an aider and abettor theory, our Supreme Court differentiated the elements required for first degree felony-murder from those required for felony-murder special circumstance. (People v. Clark (2016) 63 Cal.4th 522, 615 (Clark).) These different charging options subject a defendant to different penalty options (cf. § 190, subd. (a) [conviction for first degree felony-murder may result in the death penalty, LWOP, or a prison term of 25 years to life]; § 190.2, subd. (a) [a conviction for felony-murder special circumstance may result in the death penalty or LWOP]).

The Clark court explained that, in contrast to first degree felony-murder, "the actus reus for the felony-murder aider and abettor special circumstance requires more than simply being an aider and abettor of the underlying felony under section 31. The special circumstance requires that the defendant be a ' "major participant" ' in the underlying felony. [Citation.] Likewise, the mens rea requirement for the felony-murder aider and abettor special circumstance is different from that required for first degree felony murder. The special circumstance requires that the defendant have ' "reckless indifference to human life" ' rather than ' "simply the specific intent to commit the underlying felony." ' " (Clark, supra, 63 Cal.4th at p. 615.)

The major participant requirement means a defendant's personal involvement must be "substantial" and greater than the actions of an ordinary aider and abettor to an ordinary felony-murder. (People v. Banks (2015) 61 Cal.4th 788, 798, 802 (Banks).) The ultimate question "is 'whether the defendant's participation "in criminal activities known to carry a grave risk of death" [citation] was sufficiently significant to be considered "major" [Citation].' " (Clark, supra, 63 Cal.4th at p. 611.)

Our Supreme Court identified the following list of nonexclusive factors to consider when analyzing whether a defendant acted as a major participant: (1) " 'What role did the defendant have in planning the criminal enterprise that led to one or more deaths?' "; (2) " 'What role did the defendant have in supplying or using lethal weapons?' "; (3) " 'What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants?' "; (4) " 'Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inactions play a particular role in the death?' "; and (5) " 'What did the defendant do after lethal force was used?' " (Clark, supra, 63 Cal.4th at p. 611, quoting Banks, supra, 61 Cal.4th at p. 803.) No single factor is necessary, but neither is any one of them necessarily sufficient. Instead, "[a]ll may be weighed in determining the ultimate question, whether the defendant's participation 'in criminal activities known to carry a grave risk of death' [citation] was sufficiently significant to be considered 'major' [citations]." (Banks, supra, 61 Cal.4th at p. 803.)

The Banks court discussed these factors in relation to a non-shooter aider and abettor in an armed robbery that resulted in a murder. (Banks, supra, 61 Cal.4th at p. 805.) In Banks, the court concluded that the defendant was ineligible for the death penalty because the record established he was "no more than a getaway driver." (Ibid.) In so concluding, the court noted that no evidence was introduced establishing the defendant's role in planning the robbery or in procuring weapons, and that during the robbery and murder he was absent from the scene, sitting in a car and waiting. (Ibid.)

As for the mens rea requirement of reckless indifference to human life, our Supreme Court has explained that a defendant must be " ' "subjectively aware that his or her participation in the felony involved a grave risk of death." ' " (Banks, supra, 61 Cal.4th at p. 807.) The question is "whether a defendant has ' "knowingly engag[ed] in criminal activities known to carry a grave risk of death." ' [Citations.] The defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, demonstrating reckless indifference to the significant risk of death his or her actions create." (Id. at p. 801.) This requires more than the foreseeable risk of death inherent in any armed crime. (Id. at p. 808; see also Clark, supra, 63 Cal.4th at pp. 617-618 [participation in an armed robbery, alone, does not demonstrate reckless indifference to human life].) Instead, the defendant must consciously disregard a substantial and unjustifiable risk to human life. (Clark, at p. 617.) In addition to a subjective component, the recklessness indifference element also encompasses an objective component; a reviewing court asks whether the defendant's behavior was a " 'gross deviation' " from what a law-abiding person would have done under the circumstances. (Ibid.) The issue is whether the defendant exhibited a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant did not specifically desire for death to occur. (Ibid.)

Recognizing the overlap between the major participant and reckless indifference elements (Clark, supra, 63 Cal.4th at pp. 614-615), our Supreme Court has considered the following list of nonexclusive factors in determining whether a defendant acted with reckless indifference to human life: (1) a defendant's knowledge of weapons, and use and number of weapons; (2) a defendant's physical presence at the crime and opportunities to restrain the crime and/or aid the victim; (3) the duration of the felony; (4) a defendant's knowledge of the cohort's likelihood of killing; and (5) a defendant's efforts to minimize the risks of the violence during the felony. (Id. at pp. 618-623.) Like the factors for the major participant element, no particular factor is necessary nor is any one necessarily sufficient. (Id. at p. 618.)

Applying the foregoing factors, the Clark court vacated robbery-murder and burglary-murder special circumstance findings where the defendant was "the mastermind who planned and organized the attempted robbery and who was orchestrating the events at the scene of the crime." (Clark, supra, 63 Cal.4th at pp. 612, 623.) There, the defendant and his brother and cousin conducted surveillance of a computer store, studying the number of employees and their activities around closing time. The defendant also secured use of a U-Haul truck by having another person rent the truck using a false driver's license defendant helped her procure. (Id. at pp. 536, 612.) The plan was for one man, Ervin, to enter the store around closing time with a gun, which was "apparently [supposed] to be unloaded," and handcuff the remaining employees in the restroom so no one could call the police. (Id. at p. 613.) Then, while the defendant sat in the parking lot in a car, his brother and another man, who apparently believed the store belonged to the defendant, were to help Ervin remove computers from the store and load them into the U-Haul that was parked nearby. However, before any computers could be removed, the mother of one of the handcuffed employees came into the store. Ervin shot her in the head and fled to the defendant's car. The defendant drove away, leaving Ervin to be apprehended in the parking lot by an officer who heard the gunshot while on patrol near the store. The gun Ervin used to murder the victim had been loaded with one bullet. (Id. at pp. 536-538, 613.)

Beginning with the major participant factors, the court stated: "[W]e can conclude that defendant had a prominent, if not the most prominent, role in planning the criminal enterprise that led to the death of [the victim]. No evidence was presented about defendant's role in supplying the weapon, although inferences can be drawn from [the evidence] that use of a weapon was part of his plan for the robbery. No evidence was presented about defendant's awareness of the particular dangers posed by the crime, beyond his concern to schedule the robbery after the store's closing time. No evidence was presented about his awareness of the past experience or conduct of Ervin, the shooter. Defendant was in the area during the robbery, orchestrating the second wave of the burglary after Ervin secured the store, but defendant was not in the immediate area where Ervin shot [the victim]." (Clark, supra, 63 Cal.4th at pp. 613-614.) The court then noted it previously upheld a major participant finding where "the defendant, although not present at the murder, was 'the founder, ringleader, and mastermind behind' a criminal gang engaged in carjacking," and gave "his subordinate gang members . . . 'a carjacking tutorial and instructed them that a resisting victim was to be shot.' " (Id. at p. 614, quoting People v. Williams (2015) 61 Cal.4th 1244, 1281.) However, the court declined to decide whether the defendant qualified as a major participant, concluding instead "the evidence was insufficient to support that he exhibited reckless indifference to human life." (Clark, at p. 614.)

In reaching this conclusion, the court explained that while the defendant knew a gun would be used, this fact alone was insufficient to establish reckless indifference. The only gun used during the attempted robbery was carried by Ervin, not the defendant, and that gun was loaded with only one bullet. (Clark, supra, 63 Cal.4th at pp. 618-619.) The court further explained that the defendant was in his car in the parking lot when the victim was shot and was not provided with an opportunity to provide a restraining influence on his murderous cohort. (Id. at p. 619.) While the court acknowledged that the jury may have inferred the defendant was aware the victim had been shot when he drove from the scene, indicating a "desire to flee the scene as quickly as possible, without regard for [the] welfare . . . of the shooting victim," the court found this level of culpability less than in circumstances where a defendant would not have known that help was on the way in the form of police intervention. (Id. at p. 620.)

With respect to duration of the interaction between victims and perpetrators, the court noted the defendant planned the robbery for closing time, when most employees would be gone, and those who remained would be handcuffed in the bathroom. Thus, while the robbery would take some time to complete, "the period of interaction between perpetrators and victims was designed to be limited." (Clark, supra, 63 Cal.4th at p. 620.) At the same time, the court explained, "[b]ecause the robbery was planned for a public space and involved the prolonged detention of employees, the crime did involve the risk of interlopers, such as [the murder victim]. But overall, the evidence was insufficient to show that the duration of the felony under these circumstances supported the conclusion that defendant exhibited a reckless indifference to human life." (Id. at pp. 620-621.) There was no evidence Ervin was known to have a propensity for violence or the defendant had any knowledge of such a propensity. (Id. at p. 621.)

Finally, the court considered the defendant's "apparent efforts to minimize the risks of violence," i.e., (1) the robbery was planned for closing time when most employees would be gone, (2) the gun was apparently supposed to have been unloaded, and (3) the gun was loaded with only one bullet (Clark, supra, at pp. 621-622), and concluded: "Defendant's culpability for [the victim's] murder resides in his role as planner and organizer, or as the one who set the crime in motion, rather than in his actions on the ground in the immediate events leading up to her murder. But also relevant to his culpability as planner, there is evidence supporting that defendant planned the crime with an eye to minimizing the possibilities for violence. Such a factor does not, in itself, necessarily preclude a finding of reckless indifference to human life. But here there appears to be nothing in the plan that one can point to that elevated the risk to human life beyond those risks inherent in any armed robbery. Given defendant's apparent efforts to minimize violence and the relative paucity of other evidence to support a finding of reckless indifference to human life, we conclude that insufficient evidence supports the robbery-murder and burglary-murder special circumstance findings, and we therefore vacate them." (Id. at p. 623.)

2. Analysis

Here, the underlying felony for purposes of first degree felony-murder liability was the armed robbery of Montoya and Archuleta at the Surf Motel. Robbery is defined as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) As relevant here, the People were required to prove: (1) defendant took property that was not her own; (2) the property was in the possession of another person; (3) the property was taken from the other person; (4) the property was taken against that person's will; (5) defendant used force or fear to take the property or prevent the person from resisting; and (6) when defendant used force or fear, she intended to deprive the owner of the property permanently. (CALCRIM No. 1600 [Robbery].) Defendant's intent to take the property must have been formed before or during the time she used force or fear. (CALCRIM No. 1600.)

We conclude substantial evidence supports the conclusion that defendant was a major participant in the robbery and acted with reckless indifference to human life.

Applying the relevant factors identified by our Supreme Court, a rational jury could have reasonably concluded that defendant was a major participant in the robbery. There was evidence that defendant lured Montoya and Archuleta to Baca's motel room under the pretense that Baca would give Archuleta a tattoo and sell one or both women drugs. While there was no evidence that defendant supplied Baca with the gun used to shoot Montoya, the evidence showed that she knew Baca carried a gun and was willing to kill Montoya, as he had recently displayed a gun and assured her that he would kill Montoya if she wanted him to do so. The evidence also showed that defendant was in a position to facilitate or prevent Montoya's murder; she was present in the motel room when Baca pulled out a gun and demanded the women's cell phones. There was evidence that defendant was not surprised when Baca pulled out his gun and that she actively encouraged the robbery by demanding Montoya's car key while Baca had Montoya at gunpoint. Immediately after Baca shot Montoya, defendant went through her pockets and took everything she had, including her car key. Thereafter, Archuleta gave all her money to Baca, and either defendant or Baca took her cell phone. Rather than aid Montoya or call for help, defendant fled the scene with Baca in Montoya's car. The next day, defendant attempted to elude the police as the driver in a high-speed car chase and she ran after a patrol car blocked the car. Finally, during a jail visit with Clark after the shooting, defendant implied that she could have prevented Montoya's death by claiming that Archuleta was only alive because she had told Baca not to harm her. From this evidence, a reasonable inference arises that defendant was in on a plan to rob Montoya and Archuleta in an armed ambush that would involve physical violence. Also a reasonable inference is that defendant told Baca to harm Montoya. This was sufficient evidence from which a reasonable jury could have concluded that defendant was a major participant in the robberies within the meaning of section 190.2, subdivision (d).

Turning to the reckless indifference element, after considering the relevant overlapping factors identified by our Supreme Court, we conclude that a rational jury could have reasonably found that defendant knowingly engaged in criminal activity that she knew involved a grave risk of death. As we have already explained, there was evidence supporting the conclusion that defendant was in on a plan to rob Montoya and Archuleta and lured them to Baca's motel room for that purpose under the pretense that Baca would supply a tattoo and drugs. The record strongly supports the inference that defendant knew a gun would be used in the robbery, and there was evidence defendant knew that Baca was likely to kill during the robbery. The day before the shooting, defendant and Montoya got into a "heated" argument. Thereafter, defendant said that she wanted to kill Montoya. Displaying a gun, Baca said that he could "make that happen." Defendant was at the scene of the crime and had the opportunity and apparent ability, given her comment about Archuleta, to stop Baca prior to the fatal shooting. Rather than do so, defendant, appearing unsurprised, encouraged the robbery by demanding Montoya's car key while Baca was pointing a gun at her. Further, defendant could have rendered or summoned aid for Montoya after the shooting. Instead, she took items from Montoya's person and then fled the scene in Montoya's car with Baca, who took all of Archuleta's money. One of the two also took Archuleta's cell phone after the shooting.

We recognize that the duration of the interaction between the perpetrators and victims in this case was brief, but unlike Clark, supra, 63 Cal.4th 522, where this factor weighed in favor of that defendant because he planned for limited interaction between the robbers and a limited number of victims during what would be a fairly extended period of time they would be robbing the store, thereby minimizing the risk of violence, here the robbery itself was immediate upon defendant's closing the motel room door, trapping the victims at gunpoint. Under these circumstances, the brief duration does not weigh in favor of defendant and is arguably irrelevant. Notably, also unlike Clark, no steps were taken to minimize the risk of violence. To the contrary, the decision to conduct the robbery in a motel room, using a gun, tends to show that resistance and violence were anticipated. Finally, during a jail visit with Clark following the shooting, defendant displayed no remorse for Montoya's death, further exhibiting a disregard for her life. When the deceased Montoya was mentioned, defendant stated, "I don't give a shit about that bitch. Fuck her." Defendant also implied that she could have prevented Montoya's death but decided not to. Sufficient evidence supports the jury's conclusion that defendant acted with reckless indifference within the meaning of section 190.2, subdivision (d).

C. Robbery Conviction

Defendant contends her robbery conviction as to Archuleta must be reversed for insufficient evidence. She argues that the record does not contain substantial evidence supporting the conclusion that she aided and abetted the robbery of Archuleta, since the evidence failed to show that she intended to rob Archuleta or did anything to facilitate the robbery of Archuleta. We disagree.

" 'All persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed.' [Citations.] Thus, a person who aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts." (People v. McCoy (2001) 25 Cal.4th 1111, 1116-1117.) To establish aider and abettor liability, the prosecution must prove that a defendant: (1) acted with knowledge of the perpetrator's unlawful purpose; (2) had the intent or purpose of committing, facilitating or encouraging commission of the crime; and (3) by act or advice, aided, promoted, encouraged or instigated, the commission of the crime. (People v. Nguyen (2015) 61 Cal.4th 1015, 1054.) " 'Whether a person has aided and abetted in the commission of a crime ordinarily is a question of fact. . . . [¶] . . . [¶] Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.' " (Nguyen, at p. 1054; see also People v. Lara (2017) 9 Cal.App.5th 296, 322 [noting that flight after the commission of the offense is a relevant consideration].) " 'Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction.' " (Nguyen, at p. 1055.)

As previously indicated, robbery involves the taking of personal property in the possession of another, from his person or immediate presence, and against his will, with the intent to permanently deprive accomplished by means of force or fear. There are two aspects to the taking element: "caption" (gaining possession of the victim's property) and "asportation" (carrying the property away). (People v. Gomez (2008) 43 Cal.4th 249, 255.) "[T]he commission of a robbery for purposes of determining aider and abettor liability continues until all acts constituting the robbery have ceased. The asportation, the final element of the offense of robbery, continues so long as the stolen property is being carried away to a place of temporary safety. Accordingly, in order to be held liable as an aider and abettor, the requisite intent to aid and abet must be formed before or during such carrying away of the loot to a place of temporary safety. Therefore, a getaway driver who has no prior knowledge of a robbery, but who forms the intent to aid in carrying away the loot during such asportation, may properly be found liable as an aider and abettor of the robbery." (People v. Cooper (1991) 53 Cal.3d 1158, 1161.)

Here, there was ample evidence from which a jury could reasonably have concluded that defendant was an aider and abettor of the robbery of Archuleta. Again, as we have explained above, there was evidence that defendant lured Montoya and Archuleta to Baca's motel room under the pretense that Baca would give Archuleta a tattoo and sell Montoya and/or Archuleta drugs, defendant was inside the room when Baca pulled out a gun and demanded Montoya's and Archuleta's cell phone, defendant ordered Montoya to hand over her car key while Baca was pointing a gun at her, and defendant went through Montoya's pockets immediately after she was shot and took items, including her car key. There was also evidence that defendant did not seem surprised when Baca pulled out a gun and demanded Montoya's and Archuleta's cell phone, and that, following the shooting, Archuleta gave Baca all of her money, either defendant or Baca took Archuleta's cell phone, and defendant and Baca fled the scene in Montoya's car. At Baca's direction, defendant drove to the San Francisco Bay Area. Finally, there was evidence that defendant attempted to evade police officers the following day while driving with Baca and then on foot, and that defendant told Clark during a jail visit that Archuleta was only alive because she had told Baca not to harm her. From this evidence, a reasonable inference arises that defendant was in on a plan to rob Montoya and Archuleta in an armed ambush that would involve physical violence. Taken as a whole, defendant's conduct before, during, and after the robbery was sufficient to support her robbery conviction as to Archuleta. A rational trier of fact could have found her guilty of this crime beyond a reasonable doubt.

II Restitution Fine

Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, defendant contends that her due process rights were violated when the trial court imposed the statutory maximum restitution fine of $10,000 without holding a hearing requiring the prosecution to prove her ability to pay this fine. Alternatively, she contends the trial court abused its discretion in imposing the maximum restitution fine because there was no evidence in the record showing she could pay it. We find no basis for reversal.

A. Additional Background

Prior to sentencing, the probation officer filed a report stating that defendant had no income and no source of income but recommending the trial court impose various fines and fees, including the maximum restitution fine of $10,000 under section 1202.4, subdivision (b). At sentencing, defense counsel asked the trial court to impose a restitution fine in an amount "closer to $2,000" and to waive all other fines and fees that were waivable because defendant was indigent and would not be able to pay a fine in the amount of $10,000. In making this request, counsel noted that defendant had recently been released from prison and her future prison earnings would not be enough to pay a $10,000 fine during her term of incarceration. In response, the trial court imposed the recommended maximum restitution fine, explaining that it would not reduce the amount of the fine recommended by the probation officer because it appeared defendant was able-bodied and would be able to work while incarcerated. The court stated: "I know that it's a huge fine, but I think it's commensurate to the crime. [¶] The Court will waive all other fines and fees in this matter in light of this . . . large fine I am imposing."

B. Analysis

Defendant's initial contention that the trial court "fail[ed] to hold an ability to pay hearing" is confusing. To the extent she argues a separate hearing on her ability to pay the restitution fine was required, we disagree. Section 1202.4, subdivision (d) expressly provides, "[a] separate hearing for the fine shall not be required." Dueñas provides nothing to the contrary.

To the extent defendant argues the trial court did not hold an actual hearing on the ability to pay issue (i.e., a procedural due process argument), we find no merit in her contention. As we have outlined above, defense counsel said at the sentencing hearing that he had received the probation report recommending the $10,000 fine and was comfortable going forward on the issue. Counsel was then given the opportunity to argue why the recommendation was excessive; the court considered the argument but found defendant was able-bodied and would be able to work while incarcerated. Dueñas requires no more. Defendant's procedural due process rights were not violated. (See People v. Blankenship (1989) 213 Cal.App.3d 992, 997 ["A defendant's due process rights are protected when the probation report gives notice of the amount of restitution expected to be ordered . . . , and the defendant has an opportunity to challenge the figures in the probation report at the sentencing hearing"].)

Finally, to the extent defendant argues her substantive due process and equal protection rights were violated because Dueñas provides the trial court was required to affirmatively find that she had the ability to pay the $10,000 restitution fine before imposing it, we disagree. First, we may infer from the court's statement regarding defendant's ability to work that the court found she was able to pay the fine. Second, Dueñas does not support defendant's position.

It is true, as defendant notes, that the Dueñas court explained its holding to encompass "that although Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (People v. Dueñas, supra, 30 Cal.App.5th at p. 1164.) Read in the abstract, this sentence appears to support defendant's position. But looking to context, the Dueñas court took issue with "section 1202.4, subdivision (c)'s prohibition on considering the defendant's ability to pay the minimum fine" (Dueñas, at p. 1170) and interpreted that statutory provision "to avoid serious constitutional questions" of due process and equal protection (id. at p. 1172) because the prohibition "punishes indigent defendants in a way that it does not punish wealthy defendants" (id. at p. 1170). Dueñas did not consider or interpret the statutory provision at issue here--section 1202.4, subdivision (d)--which expressly lays out various factors, including ability to pay, to be considered in setting the amount of the fine. Section 1202.4, subdivision (d) does not involve the prohibition at issue in section 1202.4, subdivision (c) and, thus, Dueñas is inapposite and we do not address its merits. (In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388 [cases are not authority for propositions not considered].)

Here, the record makes clear that, in deciding to impose the maximum restitution fine, the trial court complied with section 1202.4 by considering defendant's inability to pay and the seriousness and gravity of her offenses. These are relevant factors expressly identified by section 1202.4 subdivision (d). Defendant does not dispute, and numerous courts have held, that a trial court can look at prison wages to determine a defendant's ability to pay fines and fees. (See, e.g., People v. Jones (2019) 36 Cal.App.5th 1028, 1035; People v. Johnson (2019) 35 Cal.App.5th 134, 139.)

We also reject defendant's alternative contention that the trial court abused its discretion in imposing the maximum restitution fine because there was no substantial evidence that she could pay this fine during her term of incarceration. Nothing in the record suggests that defendant would not be able to work while serving her lengthy LWOP sentence. At the time of sentencing, defendant was 37 years old. The trial court's inference that she has the ability to pay the restitution fine imposed in this case from probable future prison wages was not an abuse of its discretion. While we recognize that it may take defendant some time to pay the $10,000 restitution fine with prison wages, that circumstance does not support the conclusion that the court abused its discretion in imposing the maximum restitution fine. Defendant has not shown an absolute inability to ever pay the fine or that imposition of the fine was improper based on the relevant statutory factors, including the seriousness of her offenses. (People v. DeFrance (2008) 167 Cal.App.4th 486, 505 (DeFrance) [no abuse of discretion in imposing maximum restitution fine where the trial court considered not only inability to pay but also the seriousness of the crime and no inability to ever pay the fine was shown]; People v. Lewis (2009) 46 Cal.4th 1255, 1259, 1321 [no abuse of discretion in imposing maximum restitution given defendant's crime (special circumstances rape-murder) and evidence he would have funds in the future to pay the fine].)

Under California law, every able-bodied prisoner is required to work. (§ 2700; Cal. Code Regs., tit. 15, § 3040, subd. (a).) Prison wages range from $12 to $56 per month, depending on the prisoner's skill level. (Cal. Code. Regs., tit. 15, § 3041.2, subd. (a)(1)-(2).) Fifty percent of a prisoner's wages and any trust account deposits are deducted to pay any outstanding restitution fine, plus an administrative fee to cover the cost of this deduction, not to exceed 10 percent of the amount collected. (§ 2085.5, subds. (a), (e); Cal. Code Regs., tit. 15, § 3097, subd. (f).)

Assuming defendant earns the highest rate of $56 per month, the amount deducted for credit against her restitution fine will be $22.40 per month. At that rate, it would take her a little more than 37 years to repay the fine.

Defendant's suggestion that a restitution fine is automatically invalid if a defendant is unable to pay it is without merit. (People v. Potts (2019) 6 Cal.5th 1012, 1055-1057 (Potts).) Although ability to pay is one of the factors a trial court must consider in imposing a restitution fine above the statutory minimum of $300, it is not the only factor. Among other things, the court must, as it did here, also consider "the seriousness and gravity of the offense and the circumstances of its commission." (§ 1202.4, subd. (d); see also DeFrance, supra, 167 Cal.App.4th at p. 505; Potts, supra, 6 Cal.5th at p. 1056.) Here, there is no question that defendant's crimes were serious and grave. She was involved in an armed robbery of two victims that resulted in the fatal shooting of one of those victims, so the seriousness of the crime supported the maximum fine. (DeFrance, supra, 167 Cal.App.4th at pp. 489, 505 [seriousness of the crime supported maximum restitution fine where defendant was convicted of first degree murder with a robbery special circumstance]; Potts, supra, 6 Cal.5th at pp. 1055-1057 [where defendant was precluded from working in prison because he was sentenced to death for the robbery and murder of two people, the trial court was "permitted to conclude that the monetary burden the [maximum] restitution fine imposed on defendant was outweighed by other considerations," such as the seriousness and gravity of the offense, and the circumstances of its commission].)

On this record, we find no abuse of discretion in the trial court's decision to impose a maximum restitution fine of $10,000, as the amount was within the statutory range and justified by the relevant statutory considerations.

Because we have rejected defendant's arguments on the merits, we do not reach the People's forfeiture argument. In any event, as we have described, defendant counsel clearly expressed his opinion that his client was indigent and asked for a lower restitution fine and a waiver of all other fines and fees. --------

III Constitutional Challenge to Special Circumstance Statute

Defendant contends the special circumstance finding must be stricken because the enactment of Senate Bill No. 1437 rendered the felony-murder special circumstance enhancement unconstitutionally vague as to aiders and abettors, since aider and abettor liability for felony-murder special circumstance is now identical to aider and abettor liability for the felony-murder offense. Defendant argues that prosecutors have unfettered discretion to choose whether to charge a felony-murder special circumstance enhancement, and therefore the same crime can result in different penalties, depending on how the prosecutor exercises his or her discretion; these circumstances expose aiders and abettors to arbitrary enforcement of the special circumstance that can be based on impermissible factors such as race. Defendant acknowledges that a similar argument was rejected in People v. Andreasen (2013) 214 Cal.App.4th 70, 79-82 (Andreasen), but urges us not to not follow that case. Because we find Andreasen persuasive, we conclude that defendant's constitutional challenge is without merit.

"A defendant may raise a substantive due process challenge based on a vague statute that fails to provide reasonable notice or creates a danger of arbitrary application. [Citations.] To pass constitutional muster, a statute must be definite enough to provide notice about what conduct is prohibited, and to provide standards for its application and adjudication to avoid arbitrary and discriminatory enforcement." (Andreasen, supra, 214 Cal.App.4th at pp. 79-80; see also Williams v. Garcetti (1993) 5 Cal.4th 561, 567-568.) Challenges to statutes on grounds of vagueness that do not threaten First Amendment interests are examined in light of the facts of the case at hand, and "the statute is judged on an as-applied basis." (Maynard v. Cartwright (1988) 486 U.S. 356, 361.)

As previously indicated, the penalty for an aider and abettor of first degree felony-murder is death, LWOP, or imprisonment for a term of 25 years to life. (§ 190, subds. (a), (e).) In contrast, the penalty for felony-murder aider and abettor special circumstance is death or LWOP. (§ 190.2, subd. (a)(17), (d).) Following the enactment of Senate Bill No. 1437, aider and abettor liability for the felony-murder offense is indistinguishable from aider and abettor liability for the felony-murder special circumstance. (See §§ 189, subds. (a), (e), 190.2, subds. (a)(17), (c) & (d); see also CALCRIM No. 540B (Felony Murder: First Degree-Coparticipant Allegedly Committed Fatal Act); CALCRIM No. 703 (Special Circumstances: Intent Requirement for Accomplice After June 5, 1990—Felony Murder); CALCRIM No. 730 (Special Circumstances: Murder in Commission of Felony).

In Andreasen, the defendant asserted a constitutional challenge to the felony-murder special circumstance enhancement. He claimed that as applied to the actual perpetrator of the killing, the felony-murder offense (§ 189, subd. (a)) is indistinguishable from the felony-murder special circumstance (§ 190.2, subd. (a)(17)). (Andreasen, supra, 214 Cal.App.4th p. 79.) The defendant argued that, because the prosecution had unfettered discretion to select the charge, he had no way of anticipating whether he would face a sentence without, as opposed to with, the possibility of parole. (Ibid.) After reviewing the relevant statutes, the Andreasen court concluded that the statutes "provided defendant with notice that if he commits a statutorily-specified felony and kills someone during that felony, he could be subjected to a sentence of 25 years to life with the possibility of parole, [LWOP], or death. Defendant had notice as to the proscribed conduct and potential punishment." (Id. at p. 80.) The court further concluded, "The mere fact that the prosecution has discretion to select which punishment it will seek does not render a statute unconstitutionally vague or create an improper risk of arbitrary enforcement of a criminal statute." (Ibid.)

We agree with the reasoning of Andreasen and reject defendant's constitutional challenge. As in Andreasen, the relevant statutes provide a defendant with clear notice as to the proscribed conduct and potential punishment. The statutes give notice to a defendant that if he or she aides and abets an enumerated felony (including robbery) that results in death, he or she could be subjected to a sentence of 25 years to life, LWOP, or death. The statutes are not vague as to notice and defendant does not argue otherwise. Moreover, contrary to defendant's contention, the prosecutor's discretion to select the charge against a defendant does not render the felony-murder special circumstance enhancement unconstitutional for arbitrary enforcement purposes. (See Andreasen, supra, 214 Cal.App.4th at p. 80.) In United States v. Batchelder (1979) 442 U.S. 114, 125, the United States Supreme Court observed, "[T]here is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements. In the former situation, once he determines that the proof will support conviction under either statute, his decision is indistinguishable from the one he faces in the latter context. The prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause. [Citations.]" (See also People v. Carter (2005) 36 Cal.4th 1215, 1280.)

IV Court Operations and Court Facilities Assessments

Finally, we note that the trial court failed to impose the $40 court operations assessment (§ 1465.8) and the $30 court facilities assessment (Gov. Code, § 70373) for each of defendant's three convictions. These assessments are mandatory "and may be added on review." (People v. Rodriguez (2012) 207 Cal.App.4th 1540, 1543, fn. 2.) We shall modify the judgment accordingly.

DISPOSITION

The judgment is modified to impose a $120 court operations assessment under section 1465.8, and a $90 court facilities assessment under Government Code section 70373. As modified, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.

/s/_________

Duarte, J. We concur: /s/_________
Robie, Acting P. J. /s/_________
Hoch, J.