Opinion
E071538
01-06-2020
THE PEOPLE, Plaintiff and Respondent, v. AARON ALLEN FALLS, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina, Kristine A. Gutierrez and Lynne G. McGinnis, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1601225) OPINION APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge. Affirmed as modified. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina, Kristine A. Gutierrez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant was charged and convicted by a jury of kidnapping (counts 1 & 5; Pen. Code, § 207, subd. (a)), inflicting corporal injury on a spouse or cohabitant (counts 2 & 6; § 273.5, subd. (a)), witness intimidation (counts 3 & 8, § 136.1, subd. (c)(1)), false imprisonment (count 4 ; § 236), criminal threats (count 7; § 422), destroying a wireless communication device to prevent summoning assistance (count 9; § 591.5), and violating a protective order (count 10; § 166, subd. (c)(1)). In a bifurcated proceeding, the trial court found true allegations that defendant served three prior prison terms subject to one-year sentence enhancements under section 667.5, subdivision (b).
Unless otherwise noted, all undesignated statutory references are to the Penal Code.
Defendant was sentenced to a total of 24 years eight months in state prison, representing the upper term of eight years on count 1; one-third the midterm on count 2 (one year); the midterm of three years on count 3; the midterm of five years on count 5; one-third the midterm on count 6 (one year); one-third the midterm of two years on count 7 (eight months); the midterm of three years on count 8; and an additional one-year enhancement for each of the three prior prison terms found true, each term to run consecutively.
Defendant was also sentenced to jail terms of 180 days on count 9 and 365 days on count 10, both to run concurrently with his prison sentence. Additionally, the trial court imposed the midterm of two years on count 4, but stayed imposition of the sentence pursuant to section 654.
On appeal, defendant contends: (1) the prosecutor engaged in misconduct warranting reversal by filing an information containing inaccurate allegations regarding defendant's prior criminal convictions; (2) the admission of evidence regarding prior criminal convictions pursuant to Evidence Code section 1109 represented a violation of defendant's constitutional rights to due process and equal protection; (3) the trial court abused its discretion in admitting expert testimony on the subject of intimate partner battering; (4) his conviction for false imprisonment must be stricken because it is a lesser included offense to kidnapping; (5) the trial court abused its discretion in denying his request to withdraw his waiver of counsel after trial, but prior to sentencing; (6) the trial court's finding that he suffered two of the prison priors alleged pursuant to Penal Code section 667.5, subdivision (b) was not supported by sufficient evidence; and (7) his due process rights were violated when the trial court imposed monetary fines and assessments without conducting an ability to pay hearing. Additionally, in supplemental briefing, defendant contends that his three sentence enhancements pursuant to Penal Code section 667.5, subdivision (b) should be stricken in light of recent amendments to the statute embodied in Senate Bill No. 136.
We agree that the conviction on count 4 for false imprisonment, as well as the sentence enhancements pursuant to section 667.5, subdivision (b), should be stricken and modify the judgment accordingly. In all other respects, we affirm the judgment.
II. FACTS AND PROCEDURAL HISTORY
A. Facts and Charges
On August 5, 2015, a police officer for the City of Corona responded to a call of possible domestic violence. The officer met with C.P. in the parking lot of a commercial complex. C.P. reported that she had agreed to meet defendant in the parking lot despite breaking off a relationship with him. Following an argument, defendant forced C.P. into her car, drove her away against her wishes, and threatened to harm her if she called the police. After calming down, defendant eventually stopped the car, exited, and allowed C.P. to drive herself back to the parking lot. Since defendant's motorcycle was still parked in the lot, officers waited in the lot to see if he would return, but left after several hours of waiting.
After C.P. received notice that the People intended to press charges against defendant for the August 5, 2015, incident, she agreed to meet with an investigator for the Riverside County District Attorney's Office for an interview. During her interview, C.P. disclosed several other incidents of abuse by defendant, both prior to and subsequent to the August 5, 2015, incident. Specifically, C.P. reported an incident that occurred on July 28, 2016, in which she alleged defendant physically beat her, again forced her into a car, destroyed her cell phone so she could not call for help, and drove her around for several hours without her consent.
Ultimately, defendant was charged in a second amended information with kidnapping (count 1; § 207, subd. (a)), inflicting corporal injury on a spouse or cohabitant (count 2; § 273.5, subd. (a)), witness intimidation (count 3; § 136.1, subd. (c)(1)), and false imprisonment (count 4; § 236) arising out of the August 5, 2015, incident. Additionally, defendant was charged with kidnapping (count 5; § 207, subd. (a)), inflicting corporal injury on a spouse or cohabitant (count 6; § 273.5, subd. (a)), making criminal threats (count 7; § 422), witness intimidation (count 8; § 136.1, subd. (c)(1)), and destroying a wireless communication device to prevent summoning assistance (count 9; § 591.5) arising out of the July 28, 2016, incident. Finally, defendant was charged with violating a protective order on a subsequent occasion (count 10; § 166, subd. (c)(1)) and having served seven prior prison terms subject to sentencing enhancements under section 667.5, subdivision (b). B. Relevant Trial Proceedings
1. Admission of Evidence of Prior Convictions
Prior to trial, the People moved to admit evidence of defendant's prior convictions for purposes of impeachment, identifying 18 prior convictions allegedly involving crimes of moral turpitude dating back to 1987. Given the number of prior convictions, the People offered to narrow their request to only six prior convictions based on their classification as felonies. There is no indication that the prosecutor argued the admissibility evidence as to any prior conviction was premised on its classification as a misdemeanor or felony. The trial court ultimately granted the request as to three of the prior convictions. There was no indication that the trial court considered the classification of a prior conviction as a felony as the basis for concluding a prior conviction's admissibility for impeachment purposes.
In fact, during oral argument, the prosecutor specifically expressed the belief that any conviction involving moral turpitude was admissible regardless of whether it was a misdemeanor or felony.
2. Admission of Expert Testimony on Battered Intimate Partner Syndrome
Prior to trial, the People also moved to introduce expert testimony regarding the impact of intimate partner battering on a witness. The trial court deferred ruling on the request, indicating that it needed to first hear C.P.'s testimony before it could rule on the relevance of the proffered expert testimony.
At trial, C.P. was called to the stand and testified she had been in a relationship with defendant since 2015. C.P. recounted two prior incidents of alleged physical abuse by defendant during the course of their relationship which were not the subject of the charges against defendant. C.P. also described multiple unsuccessful attempts to break off her relationship with defendant. On cross-examination, C.P. admitted that she began a relationship with defendant despite knowledge of his violent reputation; that she continued to communicate with defendant even after she experienced an incident of physical abuse; that she could have but did not seek a restraining order earlier against defendant; that she voluntarily continued to meet and drink alcohol with defendant despite her knowledge of his violent tendencies; and that she never contacted police to report any of the alleged abuse until almost a year after the incidents occurred.
Following C.P.'s testimony, the People renewed their request to admit expert testimony regarding the effects of intimate partner battering on a witness. Defendant again objected on the ground that such testimony would be more prejudicial than probative. The trial court determined that expert testimony on the subject was relevant and granted the request. In doing so, the trial court specifically noted that defendant sought to challenge C.P.'s credibility in cross-examination by eliciting testimony of behaviors that might seem inconsistent with her allegations of abuse.
The People's expert testified that he was unfamiliar with the specific facts of defendant's case. Instead, the expert explained that domestic abuse cases often involve a cycle of violence in which tension builds, an explosive violent event occurs, and the abuser then manipulates the victim to convince the victim into believing the event was isolated or caused by forces other than the abuser. The expert also explained that it is common for domestic violence victims to attempt to maintain relationships in the hope the abuser will be a loving person without the abuse and common for victims to avoid taking steps which may further antagonize the abuser, such as obtaining a restraining order. Finally, the expert testified that in situations in which domestic violence victims do cut off ties, an abuser will go to great lengths to woo the victim back, but will often inflict even more severe abuse on subsequent occasions.
3. Conviction and Sentencing
On June 6, 2018, a jury found defendant guilty of each of the charged offenses. In a bifurcated proceeding, the trial court found true three of the alleged prior prison convictions subject to sentencing enhancements pursuant to Penal Code section 667.5, subdivision (b). Thereafter, defendant was sentenced to a total of 24 years eight months in state prison, representing the upper term of eight years on count 1; one-third the midterm on count 2 (one year); the midterm of three years on count 3; the midterm of five years on count 5; one-third the midterm on count 6 (one year); one-third the midterm on count 7 (eight months); the midterm of three years on count 8; and an additional one-year enhancement for each of the three prior prison terms found true, each term to run consecutively. The trial court further imposed a $300 restitution fine (Pen. Code, § 1202.4), a $300 parole revocation fine (Pen. Code, § 1202.45), a $40 assessment for each conviction for a total of $400 (Pen. Code, § 1465.8, subd. (a)(1)), and a $30 assessment for each conviction for a total of $300 (Gov. Code, § 70373). C. Procedural History of Defendant's Representation by Counsel
Because defendant challenges the trial court's denial of his request to withdraw a waiver of counsel after his jury trial but prior to sentencing, we briefly summarize the procedural history relevant to this issue.
The public defender's office was initially appointed to represent defendant at the time of his arraignment on September 6, 2016. On January 6, 2017, defendant discharged the public defender's office and elected to represent himself.
On September 20, 2017, defendant again requested the appointment of counsel and a new attorney was appointed for him.
On May 31, 2018, during the course of trial, defendant made a Marsden motion requesting that the trial court replace his court-appointed counsel. However, following a sealed hearing, the motion was denied.
People v. Marsden (1970) 2 Cal.3d 118.
On June 6, 2018, after the jury returned its verdict, defendant discharged his appointed counsel and again elected to represent himself. The trial court informed defendant that it would appoint new counsel if requested or that defendant could elect to represent himself. The trial court specifically informed defendant that there was still a court trial on the prison prior allegations pending as well as sentencing. Nevertheless, defendant elected to represent himself. The trial court then granted a continuance to allow defendant to prepare for future proceedings.
On October 12, 2018, defendant again sought to continue the remaining proceedings and sentencing. After extensive oral argument on various motions brought by defendant and denial of his request for a continuance, defendant informed the trial court that he wished to withdraw his waiver of the right to counsel on the ground that he was not sufficiently prepared for any further proceedings. The trial court denied the request.
On October 19, 2018, defendant filed a written motion seeking appointment of counsel. The trial court again denied the motion and noted that the written motion did not present any new considerations which had not already been raised in defendant's prior request.
III. DISCUSSION
A. Defendant Has Not Shown Prejudice Flowing from Alleged Prosecutorial Misconduct
Defendant contends the prosecutor engaged in reversible misconduct by filing an information which contained inaccurate allegations regarding his prior criminal convictions in support of sentencing enhancements pursuant to section 667.5, subdivision (b). Specifically, defendant takes issue with the prosecutor's representation that several of his prior convictions were felonies, despite the fact that those convictions had been reclassified to misdemeanors. We conclude defendant has not shown prejudice warranting reversal as nothing in the record suggests that this representation had any impact on defendant's trial or otherwise deprived defendant of a fair trial.
"'"A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.' [Citations.] . . . [T]he misconduct must be 'of sufficient significance to result in the denial of the defendant's right to a fair trial.'"'" (People v. Tully (2012) 54 Cal.4th 952, 1009.) "A prosecutor's misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.'" (Id. at pp. 1009-1010.) Furthermore, "'[a] defendant's conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. . . .'" (Id. at p. 1010.)
We decline to ascribe improper motives to the prosecutor simply because inaccurate information is alleged in an information. Nevertheless, even assuming, for the sake of argument, that the inaccurate information rose to the level of misconduct, defendant has failed to explain how he was prejudiced or otherwise denied a fair trial as a result. The special allegations involving defendant's prior prison sentences were tried in a bifurcated proceeding without a jury. Thus, the inaccurate allegations regarding defendant's prior convictions were never disclosed to the jury and could not have improperly influenced the jury's verdict.
Indeed, as the People correctly note, the prosecutor eventually informed the trial court of the error and it was corrected.
Defendant suggests that inaccurate information may have improperly influenced the trial court in exercising its discretion to admit evidence of prior convictions for impeachment purposes during trial. However, the record does not establish any connection between the allegations contained in the information and the trial court's decision to admit evidence of prior convictions for impeachment purposes. The issue was raised in a pretrial motion in which the People presented 18 different prior convictions as potential impeachment evidence. There is nothing to suggest that the People or the trial court relied on any allegations contained within the information during argument on this motion.
Further, even if the information had been referenced during argument on this motion, the classification of a prior conviction as a felony or misdemeanor has no direct bearing on whether evidence of the conviction is admissible. "Misconduct involving moral turpitude may suggest a willingness to lie [citations], and this inference is not limited to conduct which resulted in a felony conviction. . . . [T]here is no basis for a ruling that the court's discretion may never be exercised to admit nonfelonious conduct." (People v. Wheeler (1992) 4 Cal.4th 284, 295-296.) Instead, the trial court is to weigh impeachment evidence on its individual merit, considering: "(1) Whether the prior conviction reflects adversely on an individual's honesty or veracity; (2) the nearness or remoteness in time of a prior conviction; (3) whether the prior conviction is for the same or substantially similar conduct to the charged offense; and (4) what the effect will be if the defendant does not testify out of fear of being prejudiced because of the impeachment by prior convictions." (People v. Mendoza (2000) 78 Cal.App.4th 918, 925.)
Thus, it is unclear why defendant believes the mere classification of a prior conviction as a felony would improperly influence the trial court's exercise of discretion. The trial court was called upon to weigh the probative value of any evidence against the potential prejudicial impact of that evidence. "'"As an aspect of the presumption that judicial duty is properly performed [citation], we presume . . . that the court . . . is able to distinguish admissible from inadmissible evidence, relevant from irrelevant facts, and to recognize those facts which properly may be considered in the judicial decisionmaking process." [Citation.] Stated another way, a trial court is presumed to ignore material it knows is incompetent, irrelevant, or inadmissible.' [Citation.] 'Only proof that the evidence actually figured in the court's decision will overcome these presumptions.'" (Hayward v. Superior Court (2016) 2 Cal.App.5th 10, 60-61; see also People v. Crittenden (1994) 9 Cal.4th 83, 151 [even where trial court reviewed improper evidence, "we assume the court was not improperly influenced thereby, absent evidence in the record to the contrary."].) Accordingly, absent any evidence in the record to suggest otherwise, we presume the trial court properly weighed the probative value against the prejudicial impact of each prior conviction when ruling on its admissibility for impeachment purposes. There is no suggestion in the record that the classification of a conviction as a felony instead of a misdemeanor or the number of alleged prior felony convictions factored into the trial court's decision.
Moreover, the trial court here was presented with evidence of 18 different prior convictions or instances of prior conduct which could possibly be used to impeach defendant and not simply the seven prior convictions alleged in the information for sentence enhancement purposes. Given such, it is clear the trial court exercised its discretion in limiting the introduction of such evidence for impeachment purposes to three prior incidents. Irrespective of what the People initially charged in support of sentence enhancement allegations, it is not reasonably probable that the trial court would have exercised its discretion differently when ruling on the evidentiary issue before it. Absent a showing of prejudice, reversal is not warranted. B. Evidence Code Section 1109 Is Constitutional
Defendant also contends the trial court's admission of testimony by C.P. regarding two prior instances of domestic violence requires reversal. Defendant concedes that Evidence Code section 1109 makes evidence of uncharged prior acts of domestic abuse admissible so long as its probative value outweighs its prejudicial impact. Moreover, defendant does not argue that the prejudicial effect of the testimony was outweighed by its probative value. Instead, defendant facially attacks the constitutionality of Evidence Code section 1109 as a violation of his due process and equal protection rights.
"The constitutionality of a statute is a question of law, which we review de novo." (Vergara v. State of California (2016) 246 Cal.App.4th 619, 642.) Nevertheless, we need not engage in an extensive discussion on the constitutionality of Evidence Code section 1109. As explained below, we consider the question a settled proposition of law and decline defendant's invitation to reexamine the issue.
Generally, evidence of a person's character is inadmissible to prove his or her conduct on a specified occasion. (Evid. Code, § 1101.) Nevertheless, the Legislature has relaxed the rules of evidence in specified circumstances, allowing evidence of prior acts in cases involving sexual offenses, domestic violence, elder abuse, and child abuse. (Evid. Code, §§ 1108, 1109.) However, in each of these instances, the admission of evidence is still subject to the considerations of Evidence Code section 352, prohibiting admission of evidence where its prejudicial impact substantially outweighs its probative value. (Evid. Code, §§ 1108, subd. (a), 1109, subd. (a)(1), (2), (3).) Because of this safeguard, our Supreme Court specifically upheld the constitutionality of Evidence Code section 1108—a parallel statute to Evidence Code section 1109—against a due process challenge identical to the one raised by defendant here. (People v. Falsetta (1999) 21 Cal.4th 903, 917.)
While our Supreme Court has not specifically ruled on a due process challenge to Evidence Code section 1109, "[t]he Courts of Appeal . . . have uniformly followed the reasoning of Falsetta in holding [Evidence Code] section 1109 does not offend due process." (People v. Johnson (2010) 185 Cal.App.4th 520, 529, citing People v. Cabrera (2007) 152 Cal.App.4th 695, 703-704; People v. Price (2004) 120 Cal.App.4th 224, 240; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096; People v. James (2000) 81 Cal.App.4th 1343, 1353; People v. Jennings (2000) 81 Cal.App.4th 1301, 1309-1310; People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1028 and People v. Johnson (2000) 77 Cal.App.4th 410, 417-420.) We agree with the reasoning set forth in these opinions and consider the issue a settled question of law.
Defendant's contention that Evidence Code section 1109 violates his constitutional right to equal protection is equally unavailing. We note that equal protection challenges to Evidence Code section 1109 identical to the one made here have also been considered and rejected in multiple published opinions. (People v. Jennings, supra, 81 Cal.App.4th at pp. 1310-1313; People v. Price, supra, 120 Cal.App.4th at p. 240; see also People v Fitch (1997) 55 Cal.App.4th 172, 184-185 [upholding parallel provisions in Evid. Code, § 1108 against equal protection challenge].) We find the reasoning in these opinions sound and again decline to reexamine the issue. Accordingly, we find no merit in defendant's constitutional challenge to Evidence Code section 1109 and find no basis for reversal on this ground. C. The Trial Court Did Not Abuse Its Discretion in Admitting Expert Testimony
Defendant also contends the trial court abused its discretion in admitting expert testimony regarding the effects of intimate partner battering. We disagree.
"The effects of intimate partner battering, frequently, albeit inartfully, referred to as 'battered women's syndrome,' have been defined as '"'a series of common characteristics that appear in women [or men] who are abused physically and psychologically over an extended period of time by the dominant male [or female] figure in their lives.' [Citations.]"'" (In re Walker (2007) 147 Cal.App.4th 533, 545-546.) Such expert testimony "is relevant to explain that it is common for people who have been physically and mentally abused to act in ways that may be difficult for a layperson to understand." (People v. Riggs (2008) 44 Cal.4th 248, 293.) "The use of [intimate partner battering] evidence in this manner is statutorily authorized by Evidence Code section 1107." (Ibid.; Evid. Code, § 1107.) "'The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision as to whether expert testimony meets the standard for admissibility is subject to review for abuse of discretion.'" (People v. Jones (2013) 57 Cal.4th 899, 946.)
Here, the trial court granted the People's request to admit expert testimony regarding the effects of intimate partner battering on a witness. However, it did so only after hearing C.P.'s testimony describing a relationship with defendant which involved repeated instances of abuse and only after C.P.'s credibility was challenged on cross-examination. Specifically, C.P. was questioned regarding why she continued to communicate with defendant despite his alleged physical abuse; why she failed to report prior instances of abuse to police; and why she failed to obtain a restraining order against defendant earlier given her allegations.
The use of expert testimony on intimate partner battering to rehabilitate C.P.'s credibility after it was challenged is precisely the situation in which admission of such testimony has been upheld as appropriate. (See People v. Brown (2004) 33 Cal.4th 892, 906 [noting evidence may assist the jury in understanding why "trial testimony of an alleged victim of domestic violence is inconsistent with what the victim had earlier told the police . . . ."]; People v. Gadlin (2000) 78 Cal.App.4th 587, 594 [evidence admissible in situations where the victim's credibility is attacked either because of recanting prior testimony or because of acts indicating a desire to reunify with the alleged abuser].) Accordingly, we find no abuse of discretion in the trial court's admission of expert testimony on intimate partner battering. D. The Trial Court did Not Abuse Its Discretion in Denying Defendant's Request to Withdraw His Prior Waiver of Counsel for Sentencing
Defendant also argues that the trial court abused its discretion in denying his request to withdraw his waiver of counsel prior to sentencing. We do not believe that the record before us establishes an abuse of discretion.
While a timely, unequivocal invocation of the right to self-representation is nondiscretionary, a midtrial motion seeking to revoke in propria persona status and have counsel appointed is addressed to the sound discretion of the trial court. (People v. Lawrence (2009) 46 Cal.4th 186, 191-192.) When faced with such a request, "a trial court should consider, along with any other relevant circumstances, '(1) defendant's prior history in the substitution of counsel and in the desire to change from self-representation to counsel-representation, (2) the reasons set forth for the request, (3) the length and stage of the trial proceedings, (4) disruption or delay which reasonably might be expected to ensue from the granting of such motion, and (5) the likelihood of defendant's effectiveness in defending against the charges if required to continue to act as his own attorney.'" (Id. at p. 192.) However, "'"[w]hile the consideration of these criteria . . . is obviously relevant and helpful to a trial court in resolving the issue, they are not absolutes, and in the final analysis it is the totality of the facts and circumstances which the trial court must consider in exercising its discretion as to whether or not to permit a defendant to again change his mind regarding representation . . . ."'" (Ibid.)
"To establish an abuse of discretion, [a defendant] must demonstrate that the trial court's decision was so erroneous that it 'falls outside the bounds of reason.' [Citations.] A merely debatable ruling cannot be deemed an abuse of discretion. [Citations.] An abuse of discretion will be 'established by "a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. . . ."'" (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.)
Here, the record reflects ample grounds upon which the trial court could have relied to deny defendant's request to withdraw his waiver of counsel and have new counsel appointed. Defendant had a prior history both with substitutions of counsel and the desire to switch between self-representation and counsel representation, having discharged three prior attorneys and having elected to represent himself on two prior occasions during the proceedings. The trial court determined that granting defendant's request would disrupt the proceedings, since defendant's sentencing had already previously been continued 120 days and defendant waited until the week prior to his scheduled hearing to request appointment of counsel. Finally, the trial court did not find defendant's reasons for requesting counsel credible, given the fact that defendant had prepared, filed and argued numerous motions on his own for weeks only to request counsel after his request to again continue sentencing was denied. Thus, multiple factors weighed against granting defendant's request to withdraw his waiver of counsel. In light of such, the trial court's denial of defendant's request was not "outside the bounds of reason" and we find no abuse of discretion. E. The Conviction for False Imprisonment Must be Stricken
Defendant claims that his conviction on count 4 for false imprisonment must be stricken because it is a lesser included offense to the charge of kidnapping for which he was also convicted. The People do not contest this point. It is well established that "false imprisonment is a necessarily lesser included offense of kidnapping . . . ." (People v. Magana (1991) 230 Cal.App.3d 1117, 1121.) Upon conviction for both, the false imprisonment conviction should be stricken. (People v. Patrick (1981) 126 Cal.App.3d 952, 965.) Thus, we agree that defendant's conviction on count 4 for false imprisonment must be stricken in light of his conviction for kidnapping on count 1 and we modify the judgment accordingly. Additionally, because we strike the conviction for false imprisonment, we also modify the judgment to reduce defendant's court operations assessment pursuant to Penal Code section 1465.8, subdivision (a)(1) to $360 and reduce defendant's court facilities assessment pursuant to Government Code section 70373 to $270 in order to reflect defendant's reduced number of convictions. F. Prison Prior Enhancements Should be Stricken
Since defendant's conviction for false imprisonment is stricken, the court operations and court facilities assessment associated with that conviction are not authorized. "'[A]n unauthorized sentence may be corrected at any time even if there was no objection in the trial court. [Citations.] Such an unauthorized sentence may be corrected even when raised for the first time on appeal.'" (People v. Hamed (2013) 221 Cal.App.4th 928, 941.) --------
In supplemental briefing, defendant argues that his three 1-year sentencing enhancements should be stricken in light of recent amendments to section 667.5, subdivision (b) embodied in Senate Bill No. 136. The amendment became effective January 1, 2020, and precludes the imposition of one-year sentence enhancements for a prior prison term unless the prior offense was sexually violent in nature. (§ 667.5, subd. (b).) The People concede that the prior convictions underlying defendant's sentencing enhancements here would not qualify for an enhancement under the amended statute. Because the amendment is ameliorative in nature and defendant's conviction was not final at the time the amendment took effect, we agree that defendant's three 1-year sentence enhancements pursuant to section 667.5, subdivision (b) should be stricken. Further, because we strike all of defendant's one-year sentence enhancements on this ground, we need not address defendant's separate argument that his convictions on two of the enhancements are not supported by sufficient evidence. G. Remand for an Ability to Pay Hearing Is Unwarranted
Finally, defendant argues that the imposition of monetary fines absent a determination of his ability to pay violated his due process rights pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157, 1160. Here, the trial court imposed a $300 restitution fund fine pursuant to Penal Code section 1202.4; a $300 parole revocation restitution fine pursuant to Penal Code section 1202.45; $400 in court operations assessment fees pursuant to Penal Code section 1465.8; and $300 in criminal conviction assessment fees pursuant to Government Code section 70373. Given that defendant was sentenced to a lengthy term of imprisonment where he will be entitled to earn prison wages, we find no prejudice warranting remand even if defendant was entitled to an ability to pay hearing pursuant to Dueñas.
In Dueñas, our colleagues in the Second District held that imposing assessments pursuant to Penal Code section 1465.8 and Government Code section 70373, as well as restitution fines under Penal Code section 1202.4 without first conducting a hearing to determine a defendant's ability to pay, violates due process. (People v. Dueñas, supra, 30 Cal.App.5th at p. 1164.) We note that more recently, two published opinions have expressly disagreed with the conclusion reached in Dueñas. (See People v. Hicks (2019) 40 Cal.App.5th 320; People v. Aviles (2019) 39 Cal.App.5th 1055.) We need not resolve this split in authority here because defendant has not established prejudice warranting remand.
Error under Dueñas is not reversible per se, but instead subject to a harmless error analysis. (People v. Jones (2019) 36 Cal.App.5th 1028, 1034.) Since an alleged error under Dueñas involves a violation of due process, we consider whether the error was harmless beyond a reasonable doubt. (People v. Jones, supra, at p. 1034; see Chapman v. California (1967) 386 U.S. 18, 24.) With respect to a defendant's ability to pay, the trial court is not limited to considering only whether a defendant has the ability to pay at the time of sentencing, but may also consider the wages a defendant may earn in prison. (People v. Jones, supra, 36 Cal.App.5th at p. 1035.) Additionally, it is also appropriate for the trial court to consider the defendant's ability "to earn money after his release from custody." (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837.)
Here, the monetary assessments and fines imposed by the trial court total $1,300. However, defendant was sentenced to a lengthy term of 24 years in state prison. Even in light of the fact that we have stricken three 1-year sentence enhancements, defendant's prison sentence remains significant. Given such, we have no doubt defendant will have the ability to pay the assessments and fines at issue here. The suggestion that defendant will be unable to pay even if given the opportunity to earn prison wages for more than two decades has no merit, even when the potential for an award of conduct credits is considered. We conclude that any error under Dueñas was harmless.
IV. DISPOSITION
The judgment is modified to strike defendant's conviction on count 4 for false imprisonment and his three 1-year sentencing enhancements for prior prison terms pursuant to section 667.5, subdivision (b). The judgment is further modified to reflect a court operations assessment fee of $370 and court facilities assessment fee of $270. The clerk of the trial court is directed to issue a new and corrected abstract of judgment to reflect the judgment as modified and forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: SLOUGH
Acting P. J. MENETREZ
J.