Opinion
E070871
01-06-2020
THE PEOPLE, Plaintiff and Respondent, v. EDDIE LEE EVANS, Defendant and Appellant.
Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FWV17002253) OPINION APPEAL from the Superior Court of San Bernardino County. Ingrid A. Uhler, Judge. Affirmed. Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Eddie Lee Evans appeals from his first degree murder conviction. Evans contends that (1) the 17-year delay between the crime and his arrest, often referred to as precharging delay, deprived him of due process; (2) the evidence was insufficient to uphold the conviction; (3) statements he made in 2009 to his brother-in-law were improperly admitted; and (4) the trial court improperly imposed fines and fees without considering his ability to pay. We reject each of these contentions and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Robert Goodson was killed in his home in Rancho Cucamonga on February 16, 2000. He had moved into the home just a few months prior with his wife Arlene Goodson, their young daughter, and a friend, Patrick Gordon. Before, all had lived in Guam for a number of years.
For clarity, where multiple people share a last name, we refer to them individually by using their first name.
In January 2000, defendant approached the home and asked for someone whose name sounded like "Yolie." Gordon told defendant that no one by that name lived there, and defendant left. A week or two later, defendant returned and again asked for "Yolie." Gordon answered, again telling the man that no one by that name lived there. On either this visit or the first one, defendant handed Gordon a business card.
Around 12:30 p.m. on February 12, 2000, four days before Robert was killed, defendant appeared at the house a third time, again asking for "Yolie." Several people were in the house at the time. Gordon answered and again told defendant that "Yolie" did not live there. Defendant then became "loud," "very aggressive," and "threatening," saying: "Tell her to come out of the house. I know she's in there." According to Gordon, defendant also stated that "if we didn't get out of the house and produce Yolie . . . people were going to get hurt." Robert's father, Allen Goodson, pushed Gordon aside, stepped in front of defendant, and insisted that defendant leave.
Unbeknownst to the residents at the time, a woman named Yolanda Estrada dated a married man in the late 1990's whose mother once lived at that house. The woman, who goes by the nickname "Yolly," had once spent a night at the home.
Both she and the married man testified that they did not know defendant. Whether defendant or Robert had any greater connection to "Yolie" (other than the fact that "Yolly" once spent a night at the house) was not pressed at trial.
In the early afternoon on the day Robert was killed, Arlene was away at work, Robert was asleep on the couch, and Gordon, who often took care of Robert and Arlene's daughter, went to help a friend move, taking Robert and Arlene's daughter with him. Gordon usually did not lock the front door if there were others inside when he left. While driving to the friend's home, Gordon saw defendant walking on the street toward the home. When Gordon returned home sometime later, he found Robert dead on the couch. Robert had been shot in the head at very close range with a shotgun. No valuables had been taken from the home.
Law enforcement interviewed defendant on February 18 and March 16, 2000. During the March 16 interview, defendant denied ever being at the Rancho Cucamonga home; ever knowing Arlene, Gordon, or "Yolie"; or being in Rancho Cucamonga on the day of the murder. Defendant also stated that he was "[a]bsolutely not" in the Rancho Cucamonga area between 11:00 a.m. and 1:00 p.m. on February 12 and that he remained in the "general area" of his home in Glendora on the day of the murder. Defendant stated that his truck had been broken down and that he did not get rides from others during those times. When asked how his business card ended up at the house, defendant stated that he hands them out in "a lot of places." Defendant denied owning any firearms and stated that he had not shot a firearm in several years.
Late in the night after that interview—that is, in the early morning hours of March 17—defendant was arrested for carrying a loaded shotgun into a bar. When interrogated later that day, defendant told law enforcement: "I have a shotgun. I bought it from a friend." Defendant could not remember when he purchased the firearm, other than that it was "[a] while back" and that "[i]t's been a while." Defendant said he purchased it from Lawrence Kraus, although he did not know how to spell the name. Defendant denied owning the shotgun, saying "it doesn't belong to me," but did state that he "bought it from" Kraus.
A criminalist who examined the shotgun at the time observed that it had recently been cleaned and contained biological material which "very likely . . . came from a blow back event." The criminalist concluded that the ammunition recovered with defendant's shotgun was consistent with that recovered at the murder scene.
According to the analyst who first tested the biological material recovered from the shotgun in 2000, the biological material contained a "very low level of human DNA." Law enforcement also ran the serial number of defendant's shotgun through two databases in 2000, CLETS and NCIC, neither of which yielded results. Law enforcement did not run the serial number through the ATF database at the time.
In 2007, using updated techniques, another analyst also concluded that the biological material contained human DNA.
The lack of results may have been due to the fact that defendant did not know how to spell Kraus's name and that the detectives originally assigned to the case spelled it as "Krause." Law enforcement testified at trial that although databases such as NCIC could be searched at the time with a name, "pretty specific" information was required to narrow down the number of potential hits. It is not clear, however, whether law enforcement tried running Kraus's name through any databases in 2000.
In 2017, when the file for Robert's murder was reopened, a search of the serial number through the ATF database showed Kraus as the registered owner. Police then interviewed Kraus in May 2017, who said that he gave the shotgun to defendant in 1999 as partial payment for some carpentry work defendant had done for Kraus. Defendant was charged with the murder shortly thereafter.
Evidence of defendant's cell location on the day of the murder also contradicted his post arrest statements. Cell tower data showed that a call was made from defendant's number at 12:27 p.m. on February 12 within one to one and a half miles from a tower located in Rancho Cucamonga. Data also showed that defendant's number received or placed two calls on February 16, one at 11:14 a.m. near Glendora, and the other at 12:27 p.m. in the Rubidoux area. Furthermore, according to defendant's landlord at the time, defendant both had access to other vehicles when his truck was broken, and was seen with a shotgun in the months surrounding Robert's murder.
Rancho Cucamonga, where Robert was killed, is roughly halfway between Glendora, where defendant lived, and the Rubidoux area: the parties stipulated that Rancho Cucamonga is 17 miles from Rubidoux and 20 miles from Glendora, while Rubidoux is 33 miles from Glendora. Given the distances, defendant's cell phone traveled 33 miles in the span of roughly an hour on the day Robert was killed.
As well, the prosecution relied on statements defendant made about nine years after the murder. In 2009, defendant drove to Las Vegas with George Lewis, his brother-in-law; at the time, defendant and George were married to sisters. According to George, during the drive, defendant stated that he was having personal problems with his wife and "basically . . . said he wanted her whacked." Defendant stated that he was "going to do her that day," that he needed to "get on with his own life," that he "knew how to do it without being caught," and that he was "going to get drunk and take care of it." On the return drive, defendant thought aloud about how he was going to have his wife killed. When George objected, defendant stated something to the effect that "it was in his blood." On the phone a few days later, defendant told George that he "needed to go to bat for" defendant. Defendant also stated on that phone call that "it wasn't his first rodeo."
Defendant's theory at trial was that Gordon was the real killer. The defense asserted, for instance, that Gordon and Arlene began having an affair after moving to Rancho Cucamonga; that Robert and Arlene's marriage was deteriorating; that Gordon and Arlene had lunch together on Valentine's Day, two days before Robert's death; that Gordon recently inherited a large sum of money; and that Gordon and Arlene had sex two days after the murder.
The jury rejected the defense's theory, finding defendant guilty of first degree murder and finding true certain special allegations, including that defendant personally and intentionally discharged a firearm causing death. (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d).) The trial court sentenced defendant to a total term of 50 years to life. The trial court also imposed a $1,000 restitution fine (Pen. Code, § 1202.4, subd. (b)), a $40 court security fee (id., § 1465.8), and a $30 criminal conviction assessment (Gov. Code, § 70373).
II. ANALYSIS
We address each of defendant's four arguments in turn.
A. Precharging Delay
"The due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 15 of the California Constitution protect a defendant from the prejudicial effects of lengthy, unjustified delay between the commission of a crime and the defendant's arrest and charging." (People v. Cowan (2010) 50 Cal.4th 401, 430 (Cowan).) "Such prearrest or precharging delay does not implicate the defendant's state and federal speedy trial rights [citations], as those rights do not attach until a defendant has been arrested or a charging document has been filed." (Ibid.)
"When, as here, a defendant does not complain of delay after his arrest and charging, but only of delay between the crimes and his arrest, he is 'not without recourse if the delay is unjustified and prejudicial. "[T]he right of due process protects a criminal defendant's interest in fair adjudication by preventing unjustified delays that weaken the defense through the dimming of memories, the death or disappearance of witnesses, and the loss or destruction of material physical evidence."'" (Cowan, supra, 50 Cal.4th at p. 430.) "[A]lthough the federal constitutional standard for what constitutes sufficient justification for delay is unclear [citation], we have noted that 'the law under the California Constitution is at least as favorable for defendant in this regard' as federal law [citation]. Accordingly . . . we apply California law here." (Id. at pp. 430-431.)
"A defendant seeking to dismiss a charge on this ground must [first] demonstrate prejudice arising from the delay. The prosecution may [then] offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay." (People v. Catlin (2001) 26 Cal.4th 81, 107.) Any potential prejudice from a delay must be more than speculative. (See People v. Jones (2013) 57 Cal.4th 899, 923 [affirming denial of motion where the "evidence of prejudice is speculative"].)
"We review for abuse of discretion a trial court's ruling on a motion to dismiss for prejudicial prearrest delay." (Cowan, supra, 50 Cal.4th at p. 431.) "Under the abuse of discretion standard, 'a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.'" (People v. Hovarter (2008) 44 Cal.4th 983, 1004.) In reviewing for abuse of discretion, we "defer to any underlying factual findings if substantial evidence supports them." (Cowan, supra, at p. 431.)
In denying the motion, the trial court found that defendant "did not demonstrate any prejudice due to the delay." The trial court acted within its broad discretion in doing so because defendant fails to show that any potential prejudice resulting from the delay was more than speculative.
Defendant first contends that several "[m]aterial witnesses" died during the 17-year investigation: Shana Hebner, Vivian Cioni, Detective Duffy, Charlie Cioni, and Allen Goodson (Robert's father).
Defendant never elaborates on why Shana Hebner or Vivian Cioni would have been material witnesses or what exculpatory evidence they would have provided. Instead, he only mentions their name in passing in his opening brief and concedes in his reply brief that no argument was made regarding them. "When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived." (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) We need not address them further.
Defendant claims that Duffy was an important witness because he interviewed Arlene on the night of Robert's murder and defendant two days later. Defendant concedes that reports of those interviews were available but that prejudice results from Duffy not being able to testify as to his memories of those interviews. Defendant does not elaborate as to how Duffy's potential memories could have helped defendant in any way, so any potential prejudice from Duffy's inability to testify is speculative.
Charlie Cioni was one of Robert's friends and was present when defendant arrived at the house on February 12. Defendant contends that statements Charlie made to law enforcement prior to his death in 2006 show that his testimony at trial would have been exculpatory. For instance, according to defendant, Charlie told law enforcement that Robert was a drug dealer and may have been killed in connection with a drug deal; that the man who arrived at the house on February 12 was "polite" instead of threatening; and that Robert was verbally abusive to Gordon. However, the trial court found that those statements (as well as others Charlie made) would have been inadmissible as speculative or cumulative, and defendant makes no effort to argue here that that finding was incorrect. Furthermore, as the trial court found, and which defendant does not contest, defendant "for tactical reasons" chose not to introduce Charlie's statements to police at trial via a stipulation "because there were several statements uttered by Charlie that were detrimental" to defendant's case. For instance, Charlie identified defendant as the man who showed up to the home on February 12, which would have contradicted defendant's claim that he was "[a]bsolutely not" there. Thus, defendant has not even demonstrated it likely that Charlie would have, on balance, been helpful to defendant.
The same analysis applies to Allen, Robert's father. Although, according to defendant, Allen would have testified he believed Gordon and Arlene were having an affair and that they were responsible for Robert's death, the trial court ruled that such evidence would have been inadmissible, either because it was cumulative or because it was improper opinion evidence. Defendant does not challenge this on appeal. Allen also identified defendant as the man who showed up at the house on February 12 and had informed law enforcement that defendant made threats at that time. Any claim that Allen's or Charlie's testimony at trial, to the extent admissible, would have helped defendant is simply a guess.
Defendant next contends that prejudice arose from witnesses' "[m]emory loss" but provides no instances of any witnesses failing to recall facts (other than one from George that we consider below) or their potentially exculpatory effect. The argument is therefore waived. (Badie v. Bank of America, supra, 67 Cal.App.4th at pp. 784-785.) Defendant also argues that the delay resulted in "memory gain," in that Gordon and Arlene purportedly remembered more details at trial than they did when the investigation began, but we fail to see how this is relevant to a claim of precharging delay as opposed to an attack on witness credibility.
Defendant next claims that prejudice results from the fact that the Rancho Cucamonga home no longer exists and that phone records from the home phone were not preserved. Again, however, defendant makes no attempt to articulate what facts such physical evidence would have established or how they would have helped his defense. Photographs of the house, including many taken during the investigation, were shown at trial. Moreover, Officer Kenneth Wolf had testified at the preliminary hearing that he went through home phone call records during his initial investigation. Defendant made no attempt to ask Wolf about those records at trial. As the trial court noted, defendant "could have questioned" Wolf about those records "but decided not to." The loss of these items did not prejudice defendant.
Finally, defendant contends that he is prejudiced from the destruction of an audio recording of George's 2009 statement to law enforcement about defendant expressing an interest in killing his wife. According to a written report documenting the statement, George's mother, Eleanor Lewis, told George that defendant had an alibi for Robert's murder in 2000. At trial, George could not recall relaying Eleanor's statement to law enforcement, even after reading the contents of the written report on the witness stand.
Because the audio recording no longer exists, defendant claims he "has lost out on a possible avenue of establishing an alibi." Again, this is speculative. First, defendant would hardly have established an alibi at trial merely by showing he told others about one. Second, defendant was in a much better position to establish any specific details of an alibi than George, whom, if told any details about an alibi at all, would have heard it from a third person. And third, that third person, Eleanor, testified at trial and denied ever telling George that defendant had an alibi. Defendant fails to show how the loss of the audio recording harms him here.
We therefore find the trial court did not abuse its discretion in finding no prejudice. "Because we conclude the trial court acted within its broad discretion in finding defendant was not prejudiced by the delay in charging him . . . we need not address defendant's further argument challenging the prosecutor's multiple justifications for the delay or the trial court's acceptance of those reasons." (People v. Jones (2013) 57 Cal.4th 899, 924.)
B. Sufficiency of the Evidence
Defendant contends that he was convicted on constitutionally insufficient evidence. "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]
"Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]" (People v. Jones (1990) 51 Cal.3d 294, 314.) "The same standard applies when the conviction rests primarily on circumstantial evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1053.) "If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (People v. Jennings (2010) 50 Cal.4th 616, 639.) "It is well settled that 'unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.'" (People v. Ghobrial (2018) 5 Cal.5th 250, 281.)
Solid, reasonable, credible evidence supports defendant's conviction. For one, the evidence showed that defendant appeared at the Rancho Cucamonga house on multiple occasions in the weeks leading up to the murder, looking for someone who had a connection to the home and making threats. The fact that he was there was corroborated not only by Gordon's testimony, but by cell tower data as well. The evidence also showed that, despite defendant's claim that he was in the "general area" of Glendora on the day of the murder because and had no means of transportation, he had traveled at least 33 miles away and had access to other vehicles. Furthermore, the ammunition recovered with defendant's shotgun was consistent with that recovered at the murder scene, and the shotgun, which had been recently cleaned, was shown to contain human DNA which "very likely . . . came from a blow back event." Defendant's claim that he owned no gun despite evidence to the contrary also showed consciousness of guilt, as did his other statements, such as his whereabouts, that were contradicted by the evidence. And finally, defendant's statements in 2009 that "it wasn't his first rodeo" and that "it was in his blood," made in the context of wanting someone killed, is tantamount to an admission of involvement in a previous murder. No motive for the murder was ever established, but as defendant concedes, "motive is not an element of any crime." (People v. Daly (1992) 8 Cal.App.4th 47, 59). We therefore conclude on this record that defendant's conviction for first degree murder is supported by substantial evidence.
C. Defendant's Statements to George in 2009
At trial, George testified regarding the statements defendant made, described earlier, in 2009 during and after a trip to Las Vegas. Defendant makes two contentions regarding these statements. First, he contends that the statements "it was in his blood" and "it wasn't his first rodeo" were improperly admitted. Second, he contends that statements that he wanted someone to kill his wife were improperly admitted.
"We review for an abuse of discretion the trial court's rulings on the admissibility of evidence." (People v. McCurdy (2014) 59 Cal.4th 1063, 1095.) "[G]enerally, violations of state evidentiary rules do not rise to the level of federal constitutional error." (People v. Benavides (2005) 35 Cal.4th 69, 91.) As such, even when there is error, "a defendant must demonstrate that it is 'reasonably probable that a result more favorable to [the defendant] would have been reached in the absence of the error.'" (People v. Sivongxxay (2017) 3 Cal.5th 151, 178, citing People v. Watson (1956) 46 Cal.2d 818, 836.)
As an initial matter, because defendant did not object on these grounds at trial, he may not raise these issues on appeal. Evidence Code section 353, subdivision (a) precludes reversal for the erroneous admission of evidence unless "[t]here appears of record an objection to or a motion to exclude . . . the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion." Defendant concedes that "[h]ere, trial counsel made no specific on-the-record [objection] to admitting the evidence," and the defense's only motion in limine did not seek to exclude the 2009 statements.
Further undesignated statutory references are to the Evidence Code.
In any event, the arguments have no merit. (See People v. Williams (2000) 78 Cal.App.4th 1118, 1126 [addressing on appeal issue that would otherwise be forfeited to "forestall a petition for writ of habeas corpus based on a claim of ineffectual counsel."].)
Defendant first argues that the statements "it was in his blood" and "it wasn't his first rodeo" were inadmissible because they do not fall under either sections 1101, subdivision (b) or 1220 and because they should have been barred by section 352.
"Section 1101, subdivision (a) generally prohibits the admission of evidence of a prior criminal act against a criminal defendant 'when offered to prove his or her conduct on a specified occasion.' Subdivision (b) of that section, however, provides that such evidence is admissible when relevant to prove some fact in issue, such as motive, intent, knowledge, identity, or the existence of a common design or plan." (People v. Lindberg (2008) 45 Cal.4th 1, 22.)
We agree with defendant that the statements "it was in his blood" and "it wasn't his first rodeo" "pertain[] to the crime for which [defendant] was charged" and not to some other act. However, that does not mean, as defendant contends, that the statements are excludable under section 1101, subdivision (a) under the thinking that the subdivision (b) exception only applies to other acts. Rather, the statements are not character evidence at all. To state, in the context of wanting someone killed, that it is not your "first rodeo" and that it is "in [your] blood" is to suggest involvement in a previous killing. Uttering those statements make it more probable that the speaker was involved in the act of a prior killing (such as Robert's), whether or not he or she possesses any particular character trait. Put another way, the statements here were not meant to establish first that defendant is homicidal and second that he acted in accordance with that character trait. Instead, the statements go directly toward whether defendant committed the only homicide that the record shows actually occurred. By alluding to involvement in some previous murder, defendant's statements go directly to the question of whether defendant killed Robert. Accordingly, the statements are not character evidence that would be barred under section 1101, subdivision (a), regardless of whether they fall under the exception described in subdivision (b).
The record does not indicate what became of defendant's desire to kill his wife in 2009 or that, in 2009, he could have been alluding to killing someone other than Robert.
Section 1220 provides in part that "[e]vidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party." According to defendant, the statements that "it was in [defendant's] blood" and "it wasn't his first rodeo" are too speculative and tenuous to be deemed admissions. It is well settled, however, that "ambiguity regarding the meaning of a party's out-of-court statement [does not] automatically render the party admissions exception inapplicable." (People v. Cortez (2016) 63 Cal.4th 101, 125; see also People v. Prince (2007) 40 Cal.4th 1179, 1237; People v. Kraft (2000) 23 Cal.4th 978, 1035.) A statement need not be an explicit admission of guilt to be an admission. Section 1220 therefore did not bar the statements.
Defendant appears to concede this in his reply brief, stating that "whether those statements did refer to a murder and whether they referred to a murder of [Robert] was a question for the jury to decide."
Under section 352, a trial court "may exclude evidence if its probative value is substantially outweighed by the probability that its admission will," among other things, "create substantial danger of undue prejudice . . . or of misleading the jury." "'"Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent's position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice. Unless the dangers of undue prejudice, confusion, or time consumption '"substantially outweigh"' the probative value of relevant evidence, a section 352 objection should fail."'" (People v. Scott (2011) 52 Cal.4th 452, 490-491.)
As discussed above, defendant's statements to George that "it was in his blood" and "it wasn't his first rodeo" were highly probative on the question of whether he committed Robert's murder. The record does not indicate that defendant has been involved in any other murder, so when he alludes to involvement in 2009 to some prior murder, there is a strong possibility that he is referring to Robert's. Furthermore, the undue prejudice here would have arisen, according to defendant, from allowing the jury to rely on character evidence and ambiguous statements, but we have already rejected both of these premises. Given their strong probative value and the lack of any undue prejudice, the statements were not barred by section 352.
Defendant next contends that, outside of these two specific statements, statements that he wanted his wife killed should have been barred by section 1101, subdivision (a). We presume, as the trial court did, that these statements would not have been admissible. Defendant has not demonstrated, however, that it is "'reasonably probable that a result more favorable to [the defendant] would have been reached in the absence of the error.'" (People v. Sivongxxay, supra, 3 Cal.5th at p. 178.) Absent the statements about wanting his wife killed, and as discussed in part II.B above, there was substantial evidence of defendant's guilt, and it is not reasonably probable that the jury would have reached a different result had they been excluded. Accordingly, defendant provides no basis for reversal based on the admission of statements he made to George in 2009.
In ruling on a pretrial motion, the trial court noted that "[i]n terms of any type of desire to do in or get rid of his wife, again, the 352 and 1101(b), that wouldn't be proper evidence." The trial court then urged the parties to cooperate in finding a "way of understanding that" defendant's statement about not being his first rodeo was "in regards to a commission of a murder." As noted, however, when George testified at trial about defendant wanting to have his wife killed, defendant made no objection.
D. Fines and Fees
While this case was pending, another district of this Court of Appeal decided People v. Dueñas (2019) 30 Cal.App.5th 1157, which held that a trial court must "conduct an ability to pay hearing and ascertain a defendant's present ability to pay" before requiring a defendant to pay assessments under Government Code section 70373 and Penal Code section 1465.8 or a restitution fine under Penal Code section 1202.4. (People v. Dueñas, at p. 1164.) Defendant contends that the trial court improperly imposed a $1,000 restitution fine and $70 in fees under these statutes without first considering his ability to pay.
There is no reasonable argument that the $1,000 restitution fine was improper. To begin with, the amount is above the $300 minimum required for felony convictions. (Pen. Code, § 1202.4, subd. (b)(1).) Because it was above the minimum, the trial court had the ability to consider defendant's ability to pay. (Id., § 1202.4, subd. (c) ["Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine . . . ."].) Defendant did not object to the fine before the trial court, so he has forfeited his challenge to that fine here. (People v. Jones (2019) 36 Cal.App.5th 1028, 1033; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154.) Moreover, defendant acknowledges in his opening brief that the trial court "did both find he was unable to pay other fees and reduced his [Penal Code] section 1202.4 fine to $1,000 based on his inability to pay." Accordingly, there is no dispute that the trial court actually considered defendant's ability to pay with regard to the restitution fine. Defendant's argument here is thus based solely on the contention that the trial court did not conduct a separate hearing on his ability to pay. Defendant makes no attempt to explain why a separate hearing on the issue was necessary even though it is undisputed that the trial court considered the issue. The restitution fine here was proper.
The People originally requested that the restitution fine be set at $10,000, the statutory maximum. (See Pen. Code, § 1202.4, subd. (b)(1).)
With regard to the remaining $70, defendant was sentenced to 50 years to life with 376 days of credit for time served. "Wages in California prisons currently range from $12 to $56 a month. [Citations.] And half of any wages earned (along with half of any deposits made into his trust account) are deducted to pay any outstanding restitution fine. [Citations.]" (People v. Jones, supra, 36 Cal.App.5th at p. 1035.) With a minimum of $6 a month going to pay the restitution fine and the other half of monthly prison wages available to pay the remaining $70, defendant will be able to pay off the $70 in less than one year into his nearly 50-year sentence. Thus, even assuming that the fines were wrongfully imposed under Dueñas, the error was harmless beyond a reasonable doubt. (People v. Jones, at p. 1035.)
The issue is currently pending before the California Supreme Court. (See People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.)
III. DISPOSITION
The judgment of conviction is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J. We concur: CODRINGTON
Acting P. J. SLOUGH
J.