Opinion
H045777
02-28-2020
THE PEOPLE, Plaintiff and Respondent, v. FRANK ISAAC GUTIERREZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. F1764495)
Appellant Frank Isaac Gutierrez was convicted by a jury of spousal battery (Pen. Code, § 243, subd. (e)), misdemeanor false imprisonment (§§ 236, 237, subd. (a)), and making criminal threats (§ 422). The trial court suspended imposition of sentence and placed Gutierrez on three years' probation subject to various terms and conditions. On appeal, Gutierrez argues that the trial court violated his Sixth Amendment right to confront witnesses by admitting the victim's preliminary hearing testimony without a sufficient showing of her unavailability, the trial court abused its discretion by excluding evidence regarding the seriousness of the victim's criminal warrants, CALCRIM No. 850 misstated the law and impermissibly lowered the prosecution's burden of proof, and the trial court erroneously imposed fines and fees without first determining his ability to pay. We modify the clerk's minutes of the sentencing hearing to accurately reflect the fines and fees imposed by the trial court, and, as modified, we affirm the order granting probation.
Unspecified statutory references are to the Penal Code.
BACKGROUND
1. The Information
On July 20, 2017, an information was filed charging Gutierrez with inflicting corporal injury on the mother of his children (§ 273.5, subd. (a); count 1), false imprisonment with violence or menace (§§ 236, 237; count 2), and making criminal threats (§ 422; count 3). It was further alleged that Gutierrez had a prior strike conviction (§§ 667, subds. (b)-(i); 1170.12).
2. The Prosecution's Case
a. Victim's Testimony
Before trial, the trial court found that the victim (victim) was unavailable as a witness under Evidence Code section 240. Due to victim's unavailability, portions of her preliminary hearing testimony were read to the jury and admitted into evidence.
During the preliminary hearing, victim testified that she was married to Gutierrez and had five children with him. Gutierrez, victim, and their children lived with victim's mother (mother) in Gilroy.
There was a history of domestic violence between Gutierrez and victim. In 2015, Gutierrez threw a plastic bottle at victim, hitting her above the eye and inflicting an injury that required six stitches. Victim and Gutierrez argued frequently, and Gutierrez sometimes physically assaulted her. Victim also hit Gutierrez on prior occasions. In the past, victim hit Gutierrez with a broom and bit him several times hard enough to break the skin.
Several days before the event in question, victim left her house to stay with a nearby friend (friend) in Gilroy. Victim and Gutierrez had been arguing, and victim had told Gutierrez that she did not want to be in a relationship with him anymore. Gutierrez had been physically and verbally abusive toward her.
On the morning of April 30, 2017, mother brought four of victim's children over to friend's house. Sometime later, victim saw Gutierrez approach friend's house through the front screen door. Gutierrez looked like he was "charging through the front door," so victim retreated to friend's father's room and locked the door. At the time, friend, friend's father, friend's brother, friend's boyfriend, and friend's children were all at friend's house. Victim saw Gutierrez let their children outside as he came into the house.
Gutierrez pounded on friend's father's door and told victim that she needed to go home to him and their children. Friend's brother told Gutierrez to leave, but Gutierrez said he was not going to leave until victim got "[her] ass out." Gutierrez pounded on the door for five or six minutes. During that time, Gutierrez put his face to the door and said, " 'Watch, bitch, when we get back to the house I'm going to [break] your fuck'n face.' " Gutierrez's statement frightened victim, and she believed he was capable of carrying out his threat.
Victim opened the door after the pounding stopped. Gutierrez grabbed victim's arm and tried to drag her out of the house onto the cement outside, scraping her knees and causing redness on her wrist and arm. Victim's son ran inside the house, and Gutierrez released victim's arm. Victim fled, and Gutierrez chased her around a picnic table that was outside. Victim saw some neighbors, and she told them to call the police. Nobody physically intervened between victim and Gutierrez. Eventually, Gutierrez caught up to victim at a fence and choked her for two or three minutes. Victim could still breathe while Gutierrez choked her, and she did not lose consciousness. Victim pushed on Gutierrez's wrists and tried to get him to release her. Four of victim's children were outside at the time.
Friend, who had been asleep when Gutierrez first arrived, yelled at Gutierrez from the front of her house, and Gutierrez released victim. Victim ran back inside friend's house while Gutierrez remained outside.
After victim's preliminary hearing testimony was read into the record, the trial court advised the jury of the following: "[Victim] has two outstanding warrants for her arrest. They are unrelated matters." The jury was also advised that victim had two prior criminal convictions, a 2008 misdemeanor conviction for debit card fraud (§ 484e, subd. (c)) and a 2007 felony conviction for grand theft (§§ 484, 487, subd. (a)).
b. Mother's Testimony
Mother testified about prior acts of domestic violence between Gutierrez and victim. One time, mother came home and saw victim on the floor in pain. Victim's son told mother that Gutierrez had hit victim. Mother asked victim what happened, and Gutierrez yelled at mother.
Another time, Gutierrez and victim went to a wedding. Mother, who was asleep when the couple came home, woke up when she heard scuffling sounds coming from the sunroom. She went over to see what was going on and saw Gutierrez pulling on victim's hair, hitting her. Another relative was trying to separate Gutierrez and victim, and Gutierrez was also hitting the relative.
Mother described an incident that happened after she came back from work. Mother walked into the house and heard victim's children crying. Victim said nothing happened, but her hair was "all messed up" and she had a bruise on her cheek.
Finally, mother described an incident where she heard Gutierrez kick victim. Mother was in another room at the time, and she heard the sound of a kick through the wall. Gutierrez denied that he kicked victim. The next day, victim had a large bruise on her shoulder.
Mother testified that victim always tried to protect Gutierrez. Whenever mother asked victim about the abuse, victim responded by telling mother to mind her own business. Mother did not call the police about Gutierrez's abuse and did not document the bruises that she saw on victim. She also did not try to formally evict Gutierrez.
c. Friend's Testimony
Friend was asleep when Gutierrez arrived at her house on the morning of April 30, 2017. Friend's children woke her up and told her that Gutierrez was outside. One of friend's younger daughters said that she thought that Gutierrez was killing victim. However, friend's oldest daughter said that Gutierrez and victim were "verbally having an argument."
Friend saw Gutierrez and victim arguing outside. Friend did not see Gutierrez physically hurt victim. She saw Gutierrez's hands "go[] up." She also heard him yell at victim that she should go home. Friend shouted at Gutierrez to stop. Friend got her children and victim's children back inside the house, and she saw Gutierrez "grab [victim]." Friend, however, did not see Gutierrez punch or strike victim.
During the altercation, friend called the police and reported that Gutierrez hit victim "by shaking her." Friend told the 911 dispatcher that Gutierrez was "really hurting [victim]" and was "beating her up."
d. C.T.'s Testimony
C.T., friend's neighbor, was outside the morning of April 30, 2017. He heard a man and a woman arguing near a picnic table outside a house that was across the street. C.T. later identified the man to be Gutierrez. The woman was holding a broom and was on one side of a picnic table, trying to fend off the man. Gutierrez said something to the woman that made C.T. think that he was trying to "kick [the woman] off of the land." C.T. heard Gutierrez say, " 'Get the F out of here.' " At one point, Gutierrez jumped over the picnic table, took the broom out of the woman's hand, and grabbed her arm, bear-hugging her. Gutierrez looked like he was physically trying to carry the woman off the property, and he managed to carry her approximately five feet. The woman did not look like she wanted to leave.
C.T. called the police after he saw that Gutierrez was involving a young boy (who C.T. initially believed was a girl) in the altercation. C.T. went inside his house to get his phone, and when he came out, the woman was sitting in front of the house. The woman said she wanted to get her belongings, and Gutierrez told her that she was not permitted to do so. The two were still arguing, but C.T. did not see any physical fighting. C.T. did not see Gutierrez or the woman strike each other; C.T. described that he saw "more of a grabbing and a pulling." C.T. believed Gutierrez was being aggressive toward the woman, and the woman was acting defensively.
When C.T. called 911, he reported that a man and a woman were "arguing, and [the man] keeps on grabbing [the woman]." C.T. explained that the man was "[t]rying to shove [the woman] in the street." The 911 dispatcher asked C.T. if he saw the man hit the woman. C.T. responded, "Mm, uh, he was definitely grabbing her." C.T. further explained, "And pushing her and stuff like that. I couldn't physically see her, but he did grab like her, her daughter . . . ." The dispatcher asked if C.T. saw the man push his daughter. C.T., either referring to the child that he saw or to the woman, replied, "And then trying to force her off, . . . he grabbed her by the arms and uh, tried to drag her off of his property."
e. Officer Brown-Delfino's Testimony
Gilroy Police Department Officer Dawn Brown-Delfino was dispatched to friend's house. Gutierrez flagged Brown-Delfino over as she arrived. Gutierrez told Brown-Delfino that victim was " 'trying to keep the kids here [at friend's house] with cockroaches and drugs and stuff like that.' " Gutierrez had bite marks on his body that were in various stages of healing. Gutierrez told Brown-Delfino that victim had barricaded herself in the room of the house and admitted that he grabbed her and told her to leave.
Victim was upset and crying, and she had fresh injuries including red marks on her arms, wrists, chest, and throat. Victim also had an abrasion and a small cut on her shin. Victim did not appear to be under the influence of drugs, and Brown-Delfino did not find any drugs in the house. Brown-Delfino, however, did not perform any drug tests on victim and did not search the house for drugs.
An edited portion of a video interview between Brown-Delfino and victim was admitted into evidence. During the interview, which took place on the date of the incident, victim told Brown-Delfino that Gutierrez used one hand to choke her, and the choking lasted approximately three to four seconds.
f. Officer Casey's Testimony
Gilroy Police Department Officer Diana Casey was also dispatched to friend's house. Casey went directly inside the house and spoke with victim, who was crying and upset. Victim had injuries, including redness on her arms, neck, and chest area. Victim also had weed and grass clippings on her feet, which was consistent with her being out in the front yard.
g. 911 Call from Unidentified Woman
The trial court admitted into evidence a 911 call made by an unidentified woman. During the call, the unidentified woman told the 911 dispatcher, "[The man] is trying to convince [the woman] to go home with him, and I think there's a policeman coming, he was saying just to call the cops." The woman said she did not see any weapons.
h. Expert Testimony on Intimate Partner Violence
Richard Ferry, a licensed marriage and family therapist, testified as an expert in domestic violence and the common experiences of recipients of intimate partner violence. Intimate partner violence is the term that is now commonly used to describe what used to be referred to as "domestic violence." Intimate partner violence involves a relationship between the victim and the abuser. Typically, there is a preexisting relationship that is significant, romantic, or intimate. Abuse can take different forms, including financial exploitation, imposing isolation on the victim, turning the children against the victim, harassment or stalking, making threats, physical violence, and sexual violence.
The goal of intimate partner violence is to demoralize, degrade, and control the victim. Intimate partner violence does not always result in physical injuries. Intimate partner violence can result in a paradoxical behavior where the victim returns to the abuser. On average, battered women return to their abuser five to seven times before they finally leave the relationship. Victims may refuse or fail to cooperate with the abuser's prosecution. Victims may stay with an abuser out of dependence. Commonly, abusers go through periods of kindness and consideration that are interspersed with periods of violence. Victims may be afraid of retaliation if they leave the abusive relationship.
3. The Defense Case
a. M.H.'s Testimony
M.H. lived next door to friend. In the past, M.H. noticed that people would come by friend's house at all hours of the day and night. M.H. believed this activity was consistent with friend's house being a drug house, and she sometimes heard disturbances coming from friend's house.
The morning of April 30, 2017, M.H. heard loud noises and screaming coming from friend's house. M.H. looked through her screen door and saw a man standing outside and a woman sitting on the cement. M.H. heard the man say, " 'Come on and go home. Take care of your kids.' " She also heard the man say, " 'You just want to—you just want to be in that drug house,' or 'mad house.' " M.H. did not see the man touch the woman. M.H. thought the woman seemed more annoyed than upset. M.H. heard the man say, " 'Someone call the police, please.' "
4. The Verdict and Sentencing
On October 19, 2017, the jury found Gutierrez not guilty of inflicting corporal injury on the mother of his children (§ 273.5, subd. (a)) but guilty of the lesser included offense of spousal battery (§ 243, subd. (e)), not guilty of false imprisonment with violence or menace (§§ 236, 237, subd. (a)) but guilty of the lesser included offense of misdemeanor false imprisonment (§§ 236, 237, subd. (a)), and guilty of making a criminal threat (§ 422). After a court trial, the trial court found Gutierrez's prior strike conviction to be true.
On March 2, 2018, the trial court granted Gutierrez's Romero motion and struck his prior strike conviction. The trial court suspended imposition of sentence and placed Gutierrez on three years' probation subject to various terms and conditions. The trial court also imposed various fines and fees, including a $300 restitution fine (§ 1202.4, subd. (b)) with a 10 percent administrative fee (§ 1202.4, subd. (l)), a matching $300 suspended probation revocation fine (§ 1202.44), a $40 court security fee (§ 1465.8), a $30 criminal conviction assessment (Gov. Code, § 70373), a $129.75 criminal justice administration fee payable to the City of Gilroy (Gov. Code, §§ 29550, 29550.1, 29550.2), a $450 presentence investigation fee (§ 1203.1b), and a $110 per month probation supervision fee (§ 1203.1b).
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
DISCUSSION
1. The Victim's Unavailability
Before trial, the trial court determined that victim was unavailable within the meaning of Evidence Code section 240. Subsequently, portions of victim's preliminary hearing testimony were read to the jury and admitted into evidence. On appeal, Gutierrez argues that the trial court erred when it found victim unavailable because the prosecution failed to show diligence in trying to secure her attendance at trial. As a result, he claims that admitting victim's preliminary hearing testimony violated his Sixth Amendment right to confront witnesses.
a. Background
i. The Initial Hearing and Ruling
Before the jury heard evidence in the case, the trial court held pretrial hearings on victim's unavailability. Several law enforcement officers testified about their efforts to locate victim. The hearings began on October 3, 2017.
A. Officer Brown-Delfino's Testimony
On September 15, 2017, approximately two weeks before the date of the hearing, Officer Brown-Delfino and several officers from the Gilroy Police Department attempted to find victim at her address of record at a mobile home park (mother's house). Nobody answered at the house. Shortly thereafter, the officers went to friend's house and spoke with friend's father. Friend's father said that victim was not there, and he had not seen victim for a while. Brown-Delfino did not ask for permission to go inside friend's house to speak with anyone else who might have been there, and Brown-Delfino knew that other individuals resided in the house.
Subsequently, Brown-Delfino asked an anti-crime team detective to be on the lookout for victim. Brown-Delfino showed victim's photograph to the detective and told him that victim was currently wanted on several outstanding warrants and the subpoena for the current case. Brown-Delfino did not receive any updates from the anti-crime team about victim's whereabouts.
On September 30, 2017, Officer Brown-Delfino and her partner checked approximately 13 different hotels and motels in Gilroy in an effort to locate victim. Brown-Delfino looked at registries and showed victim's photograph to the hotel clerks. Brown-Delfino did not check hotels in neighboring cities or weekly or long-term stay hotels.
On October 1, 2017, Officer Brown-Delfino requested that officers again try to reach victim at mother's house. Victim, however, was not at mother's house. At the time of the pretrial hearing, efforts to find victim were ongoing, and Brown-Delfino continued to check mother's house once a week. The anti-crime team remained on the lookout for victim, and victim's name was on a department-wide warrant list. There was no information that suggested that victim was no longer in Gilroy.
Officer Brown-Delfino did not try to contact mother, victim's children, or other family members. Brown-Delfino did not investigate victim's social media accounts for leads into her whereabouts, and she did not try to call victim.
B. Lieutenant Raymond Hernandez's Testimony
Lieutenant Raymond Hernandez received the prosecution's request to locate and serve victim with a subpoena. Hernandez assigned the task to Investigator Robert Bonsall. On September 16, 2017, Hernandez reviewed Gutierrez's jail phone calls, but the calls did not have any leads about victim's location.
C. Investigator Bonsall's Testimony
Investigator Bonsall completed an operations plan that outlined victim's criminal history, locations where she might be found, places where she had previously been arrested, and places where she had previously been contacted by police. On September 20, 2017, Bonsall went to mother's address at the mobile home park in Gilroy, but victim was not there and nobody answered when he knocked on the door. He remained at mother's house for an hour and a half before he moved on to an apartment complex where victim's aunt lived. Bonsall had received information from the anti-crime team that victim may be at the apartment complex. Bonsall did not have an apartment number, so he remained in the apartment complex's parking area for approximately two hours waiting for victim.
On September 21, 2017, Investigator Bonsall went back to the same apartment complex. Bonsall knocked on every door in the apartment complex and asked for victim. He then went to serve a subpoena on an individual who lived down the street from the apartment complex, and the individual informed Bonsall that he had not seen victim since the day she got into an altercation with Gutierrez. Bonsall returned to mother's house and knocked on the door, but nobody answered. Bonsall received information that victim may be at a different lot in the same mobile home park where mother's house was located. Bonsall went to the other lot and knocked on the door, but there was no answer. Bonsall continued to return to the mobile home park and the apartment complex several times over the course of the week and the following week. Sometimes Bonsall would stay for only an hour, and sometimes he would stay for three or four hours.
Investigator Bonsall explained that he did not always knock on the door when he was conducting surveillance for victim. He understood that victim knew that the police were looking for her and would not answer the door even if she was there. Bonsall used an unmarked surveillance car.
Later, Investigator Bonsall spoke to mother over the phone. Mother told Bonsall that she had not seen victim in a while, but she was watching victim's two oldest children. Mother said that victim's other children were with victim's sister in Los Banos. Mother told Bonsall that victim's sister had heard from victim several days ago, but victim called her sister using two different numbers that she had never used before. Victim's sister did not write down the phone numbers. Mother told Bonsall that she did not know of any other place where victim might be staying. Bonsall told mother to tell victim's sister to contact him if victim tried to contact her. He also told mother to contact him if victim tried to contact her. Bonsall left cards at the other house associated with victim in mother's mobile home park.
Investigator Bonsall searched for victim's social media accounts, but he could not find accounts that were associated with her. Bonsall used "different renditions of [victim's] name" and searched social media pages using victim's phone number. Bonsall also checked law enforcement databases to see if victim was in custody. Bonsall tried calling victim, but the call went directly to a message that said that the phone was out of service. He also checked local hospitals and the county coroner's office.
D. Additional Evidence
The trial court took judicial notice of the fact that victim appeared for the preliminary hearing in this case on July 17, 2017, appeared for the arraignment on July 30 and 31, 2017, and was later ordered to appear for a readiness conference on September 7, 2017. The parties also stipulated that Officer Casey checked hospitals in Santa Clara County, San Benito County, and Los Banos, but was unable to find victim. Officer Casey also checked the morgue and confirmed that victim was not in custody in San Benito, Santa Clara, or Merced counties.
E. The Trial Court's Ruling
After considering the evidence, the trial court determined that victim was unavailable under Evidence Code section 240 and that the prosecutor had used due diligence in attempting to secure her presence at trial.
ii. Additional Information from Defense Counsel
On October 6, 2017, during a break in the trial proceedings, defense counsel informed the trial court that he had come across victim's Facebook page after discovering that victim was friends with mother on Facebook. The Facebook page was maintained in victim's married name. Defense counsel claimed that the Facebook page contained updates from September 17, 2017. Defense counsel argued that this discovery called into question the prosecutor's due diligence in attempting to locate victim.
After considering defense counsel's argument, the trial court concluded, "I am satisfied that there has been due diligence in the attempt to locate [victim]. As indicated previously, there was hours and hours of surveillance. Going to the known home. Place of the incidents. The place to be on the lookout for the anti-crime team. Placed a warrant notification for the entire police department. Checked every hotel and motel in Gilroy that was not an extended stay. And hospitals. More jails. State databases, I feel that there was due diligence in the attempt and ongoing attempt to serve [victim]."
Nonetheless, after conferring with the parties, the trial court delayed the reading of victim's preliminary hearing for several days "with some hope that additional information might be able [to help] to locate [victim]."
Four days later, victim's preliminary hearing transcript was read to the jury. The trial court noted that it had previously delayed the transcript's reading in the hopes that victim could be located, but victim still had not been found. No details were provided about what efforts were made to locate victim over the past four days. Subsequently, the trial court held that its "previous finding of due diligence remain[ed]."
b. Governing Legal Principles and Standard of Review
Both the federal and state Constitutions guarantee a criminal defendant's right to confront the prosecution's witnesses. (U.S. Const., 6th Amend.; Cal. Const., art. 1, § 15.) However, the constitutional right of confrontation is not absolute. (Chambers v. Mississippi (1973) 410 U.S. 284, 295.) " 'Traditionally, there has been "an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant [and] which was subject to cross-examination . . . ." ' " (People v. Herrera (2010) 49 Cal.4th 613, 621 (Herrera).) Under this exception, a trial court may admit an unavailable witness's preliminary hearing testimony without violating a defendant's right to confrontation. (Ibid.) This exception is codified in Evidence Code section 1291, which provides that former testimony is admissible "by the hearsay rule if the declarant is unavailable as a witness" (id., subd. (a)) and "[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing" (id., subd. (a)(2)).
"A witness who is absent from a trial is not 'unavailable' in the constitutional sense unless the prosecution has made a 'good faith effort' to obtain the witness's presence at the trial." (Herrera, supra, 49 Cal.4th at p. 622.) The requisite " 'good faith' " effort requires that the prosecution use reasonable efforts to procure a witness if there is a possibility that affirmative measures may secure the witness's presence. (Ibid.)
Likewise, "[o]ur Evidence Code features a similar requirement for establishing a witness's unavailability." (Herrera, supra, 49 Cal.4th at p. 622.) Evidence Code section 240, subdivision (a)(5) defines an unavailable witness as a declarant that is "[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process." "Reasonable diligence, often called 'due diligence' in case law, ' "connotes preserving application, untiring efforts in good earnest, efforts of a substantial character." ' " (People v. Cogswell (2010) 48 Cal.4th 467, 477 (Cogswell).) "Relevant considerations include ' "whether the search was timely begun" ' [citation], the importance of the witness's testimony [citation], and whether leads were competently explored." (People v. Cromer (2001) 24 Cal.4th 889, 904 (Cromer).)
"The proponent of the evidence has the burden of establishing unavailability." (People v. Diaz (2002) 95 Cal.App.4th 695, 706 (Diaz).) "An appellate court 'will not reverse a trial court's determination [under [Evidence Code] § 240] simply because the defendant can conceive of some further step or avenue left unexplored by the prosecution. Where the record reveals, . . . that sustained and substantial good faith efforts were undertaken, the defendant's ability to suggest additional steps (usually, as here, with the benefit of hindsight) does not automatically render the prosecution's efforts "unreasonable." [Citations.] The law requires only reasonable efforts, not prescient perfection.' " (Ibid.) "That additional efforts might have been made or other lines of inquiry pursued" does not automatically undermine a finding of diligence. (People v. Cummings (1993) 4 Cal.4th 1233, 1298 (Cummings), abrogated on a different point as stated in People v. Merritt (2017) 2 Cal.5th 819, 831.)
"We review the trial court's resolution of disputed factual issues under the deferential substantial evidence standard [citation], and independently review whether the facts demonstrate prosecutorial good faith and due diligence." (Herrera, supra, 49 Cal.4th at p. 623.)
c. Analysis
Gutierrez argues that the prosecution failed to show due diligence in securing victim's presence at trial. As we explain, we disagree.
The record in this case reflects that the prosecution made " ' "untiring efforts in good earnest, efforts of a substantial character" ' " to try to locate victim. (Cogswell, supra, 48 Cal.4th at p. 477.) Two weeks before the date of trial, Officer Brown-Delfino attempted to find victim at mother's home. Brown-Delfino also went to friend's home, where she spoke with friend's father, who said that he had not seen victim. Investigator Bonsall made multiple visits to mother's home, the other lot associated with victim in mother's mobile home park, and the apartment complex where victim's aunt lived. Bonsall knocked on doors in the apartment complex. He spoke with mother, who said she did not know where victim was and did not know where she might be staying. Mother told Bonsall that victim's sister had heard from victim, but victim used a number that she had not used before and victim's sister did not write down the number that victim used. Bonsall told mother to contact him if victim contacted her or her sister. Moreover, officers checked hotels, hospitals, and jails, and reviewed Gutierrez's jail phone calls for information about victim's whereabouts.
Gutierrez characterizes the investigation into victim's whereabouts as limited and argues that officers merely visited and surveilled two locations—mother's trailer park and the apartment complex where victim's aunt lived. Gutierrez further claims that officers failed to take basic investigatory steps, such as speaking to victim's children, contacting friend, speaking to victim's sister directly, or asking mother additional questions. Pointing to defense counsel's discovery of victim's Facebook page, Gutierrez insists that the police made no real effort in finding victim's social media presence.
Essentially, Gutierrez argues that the prosecution could have made additional efforts or pursued other lines of inquiry. However, we " 'will not reverse a trial court's determination [under [Evidence Code] § 240] simply because the defendant can conceive of some further step or avenue left unexplored by the prosecution.' " (Diaz, supra, 95 Cal.App.4th at p. 706; Cummings, supra, 4 Cal.4th at p. 1298.) The prosecution's efforts were not perfect, but the law does not require perfection, only reasonable efforts. (Diaz, supra, at p. 706.)
Officers were aware that victim knew that the police were looking for her, and they likely had to balance their surveillance and search with their efforts to keep their presence hidden. Furthermore, friend's father had already told police that he had not seen victim for a while, implying that victim had not been staying with friend. Although officers did not directly speak with victim's sister, victim's sister had not seen victim, and her only contacts with victim were from phone calls made from unrecognizable numbers. Officers also told mother to inform them if victim contacted her sister and further advised mother to contact them if she heard from victim. Officers did not directly speak with victim's children, but victim's mother and victim's sister, the children's caretakers, both said that they had not seen victim. Mother also said she did not know where victim could be staying. Moreover, the Facebook page discovered by defense counsel did not contain recent updates; the updates on that page were already several weeks old by the time of trial.
Gutierrez analogizes his case to Cromer, supra, 24 Cal.4th 889. In Cromer, the victim of a robbery, Culpepper, failed to appear for the trial, and her preliminary hearing testimony was admitted under Evidence Code section 1291. (Cromer, supra, at p. 893.) Culpepper appeared to be cooperative at the preliminary hearing in June 1997, but, two weeks after the hearing, officers patrolling the neighborhood where Culpepper lived reported that it appeared that she no longer lived there. (Id. at p. 903.) Despite knowing that Culpepper had disappeared from her neighborhood, serious efforts were not made to locate her until six months had passed, in December 1997, when the trial was set for January 1998. (Ibid.) At that point, officers went to Culpepper's residence five or six times and were informed by a woman at the address that Culpepper no longer lived there. (Ibid.) Two days before the matter was set for trial, a man at Culpepper's former home told investigators that Culpepper was living with her mother. (Ibid.) Investigators did not follow up on this information until two days later, when they visited the mother's house. (Id. at pp. 903-904.) A woman at the house said that Culpepper's mother was not there but would be returning the next day. (Id. at p. 904.) The woman also said that she did not know where Culpepper was, and Culpepper did not live at the house. (Ibid.) Officers left a copy of the subpoena for Culpepper at her mother's house but did not return the next day to speak with Culpepper's mother or attempt to find other ways to contact Culpepper's mother. (Ibid.) Based on these undisputed facts, the Cromer court concluded that reasonable efforts were not made to secure Culpepper's presence at the trial. (Ibid.)
Cromer is distinguishable. Here, there is no evidence that the prosecutor had any reason to believe that victim was hiding or had disappeared until the initial efforts to serve the subpoena and to locate her were unsuccessful. The trial court took judicial notice of the fact that victim appeared for the preliminary hearing in this case, appeared for arraignment, and was later ordered to appear for a readiness conference. Moreover, unlike Cromer, where an obvious lead—Culpepper's mother—was ignored, the officers in this case spoke with mother, who victim had lived with, and surveilled mother's home multiple times.
After reviewing the record, we agree with the trial court's finding of due diligence and conclude that there was no error in admitting victim's preliminary hearing testimony.
2. Evidence of Victim's Warrants
Next, Gutierrez argues that the trial court abused its discretion and violated his right to present a defense by excluding evidence of the seriousness of victim's outstanding criminal warrants. The trial court agreed to inform the jury that victim was subject to warrants for her arrest but did not permit evidence of the dollar amounts of the warrants or whether the warrants were for felonies. Gutierrez claims that the admitted evidence failed to adequately convey the seriousness of charges that victim faced and precluded him from arguing that victim's warrants were the motivating factor for her failure to appear at trial.
a. Background
Before victim's preliminary hearing testimony was read to the jury, the prosecutor asked the trial court to admonish the jury that they were not to speculate about why the victim was not present. In response, defense counsel argued that victim was subject to "two outstanding bench warrants," and the jury would either "speculate that she's not [at trial] because she's afraid of Mr. Gutierrez or—or, frankly, they might speculate that she's recanted . . . ." Defense counsel then asked the trial court to take judicial notice that victim was "in bench warrant status on a pending felony case."
The trial court determined that the evidence that victim was subject to pending warrants was relevant "as a potential reason why she's not [at the trial]," which the jury should be able to consider. The prosecutor stated that the trial court had already ruled to exclude evidence that victim had been arrested in other pending cases. The trial court, however, determined that it was appropriate to take judicial notice that victim had "outstanding warrants for her arrest on several matters" without going into the "underlying facts of those matters." The trial court then explained that it intended to "take judicial notice that [victim] does have outstanding warrants for her arrest in the amounts indicated."
The prosecutor objected to admitting evidence of the dollar amounts of victim's warrants, arguing, "The jury is certainly not educated on what those amounts may mean. And I think given the high-dollar amounts, they're likely to speculate as to some wild—go down some roads that, frankly, Your Honor, we can't control. I think the fact of the warrants is sufficient to show a motive, perhaps, that she is not here. Not because she's a victim of domestic violence, but because she's attempting to avoid service of those warrants." Defense counsel disagreed, arguing that the amount of the warrants "shows the strength of the motivation that [victim] might have to—to stay way."
Ultimately, the trial court agreed with the prosecutor and determined that admitting evidence of the dollar amount of the warrants would "cause undue speculation."
Subsequently, the trial court advised the jury during trial of the following: "[Victim] has two outstanding warrants for her arrest. They are unrelated matters." The trial court did not mention that the warrants were for felony offenses.
b. Governing Legal Principles and Standard of Review
Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is any evidence that has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.)
Relevant evidence is subject to exclusion. Under Evidence Code section 352, the trial court retains the discretion to exclude evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." "Evidence is substantially more prejudicial than probative [citation] if, broadly stated, it poses an intolerable 'risk to the fairness of the proceedings or the reliability of the outcome.' " (People v. Waidla (2000) 22 Cal.4th 690, 724.) " '[P]rejudicial' is not synonymous with 'damaging,' but refers . . . to evidence that ' "uniquely tends to evoke an emotional bias against defendant" ' without regard to its relevance on material issues." (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)
We review the trial court's ruling on a motion to exclude evidence as substantially more prejudicial than probative for abuse of discretion. (People v. Thornton (2007) 41 Cal.4th 391, 426.) We do not reverse a trial court's ruling under Evidence Code section 352 unless it is shown that " ' " 'the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' " ' " (People v. Jones (2017) 3 Cal.5th 583, 609 (Jones).)
c. Analysis
Gutierrez argues the trial court abused its discretion when it excluded evidence about the seriousness of victim's warrants. He insists that informing the jury either that the warrants were for a particular dollar amount or were for felony crimes would not have been unduly prejudicial and would have consumed little time. We are not persuaded by Gutierrez's arguments.
The trial court agreed with defense counsel that evidence that victim had outstanding warrants was relevant and admissible to explain her absence at Gutierrez's trial. As a result, the trial court advised the jury that victim had two outstanding warrants for her arrest. The trial court's determination that admitting additional information about the warrants—such as the dollar amounts associated with the warrants or the fact that the warrants were for felony offenses—was not arbitrary, capricious, or patently absurd. (See Jones, supra, 3 Cal.5th at p. 609.) On the contrary, the trial court reasonably concluded that admitting additional information about the warrants would have caused the jury to speculate about the seriousness of victim's offenses, causing undue prejudice.
The trial court previously decided to exclude evidence of the arrests giving rise to the warrants, a ruling that Gutierrez does not challenge on appeal. Describing victim's offenses as felonies or vaguely explaining that a high dollar amount attached to the warrants meant that victim had been arrested for a more serious offense would have merely fueled speculation over what crimes victim purportedly committed. Felonies include violent and nonviolent offenses and crimes that involve moral turpitude and those that do not. " ' "[E]xclusion of evidence that produces only speculative inferences is not an abuse of discretion." ' " (People v. Peoples (2016) 62 Cal.4th 718, 743.)
Finally, we reject Gutierrez's argument that excluding the additional information about victim's warrants prevented him from presenting a defense. "In general, the ' "[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense." ' " (People v. Cunningham (2001) 25 Cal.4th 926, 998.) However, " 'Evidence Code section 352 must bow to the due process right of a defendant to a fair trial and to his right to present all relevant evidence of significant probative value to his defense.' " (People v. Babbitt (1988) 45 Cal.3d 660, 684.)
Evidence of victim's outstanding warrants was presented to the jury. Referencing to the dollar amounts of the warrants or explaining that the warrants were for felony offenses would not have been significantly probative. The trial court's ruling did not preclude Gutierrez from presenting evidence that victim had other reasons for failing to appear at the trial. As a result, the trial court's decision to exclude additional evidence about victim's warrants did not deprive him of his ability to present a defense.
3. CALCRIM No. 850
Gutierrez claims that CALCRIM No. 850 impermissibly lowered the prosecution's burden of proof by instructing the jury that it could use Ferry's expert testimony on the effect of intimate partner violence to evaluate victim's credibility.
a. Background
The trial court instructed the jury with CALCRIM No. 850 as follows: "You have heard testimony from Richard Ferry regarding the effect of Intimate Partner Violence. [¶] Richard Ferry's testimony about Intimate Partner Violence is not evidence that the defendant committed any of the crimes charged against him. [¶] You may consider this evidence only in deciding whether or not [victim's] conduct was not inconsistent with the conduct of someone who has been abused, and in evaluating the believability of her testimony."
b. Governing Legal Principles and Standard of Review
"We determine whether a jury instruction correctly states the law under the independent or de novo standard of review." (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) "In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights." (People v. Andrade (2000) 85 Cal.App.4th 579, 585 (Andrade).) " ' "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." ' " (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248; People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061.) "In addition, ' " 'we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.' " ' " (People v. Covarrubias (2016) 1 Cal.5th 838, 915.)
c. Analysis
Gutierrez argues that CALCRIM No. 850 conflicts with Evidence Code section 1107's prohibition against using expert testimony on intimate partner violence to prove that the abuse occurred. He insists that by informing the jury that it could use Ferry's testimony to evaluate victim's believability, CALCRIM No. 850 essentially permitted the jurors to consider Ferry's testimony as evidence that he committed the charged crimes.
Preliminarily, we agree with Gutierrez that the law prohibits the jury from directly using Ferry's expert testimony as evidence of his guilt. Expert testimony on intimate partner violence is subject to certain limitations as described in Evidence Code section 1107. Evidence Code section 1107, subdivision (a) states: "In a criminal action, expert testimony is admissible by either the prosecution or the defense regarding intimate partner battering and its effects, including the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge."
Nonetheless, we reject Gutierrez's claim that CALCRIM No. 850 circumvents Evidence Code section 1107. In People v. Brackins (2019) 37 Cal.App.5th 56 (Brackins), a different panel from this court considered an identical argument and rejected it, concluding that expert testimony on intimate partner violence "may be used indirectly to assist the jury in evaluating whether the alleged victim's statements are believable." (Id. at p. 71.)
In Brackins, we emphasized the distinction between impermissibly using expert testimony to evaluate whether the abuse occurred and permissibly using expert testimony to evaluate the credibility of an alleged abuse victim. (Brackins, supra, 37 Cal.App.5th at p. 71.) We presented the following example: expert testimony on how long it takes for strangulation to produce unconsciousness may be indirectly used to evaluate the believability of a victim's testimony about the length of time she was strangled before she was rendered unconscious. (Ibid.) The expert, however, is not testifying that the defendant strangled the victim. (Ibid.)
Likewise, when an expert on intimate partner violence generally testifies about some of the hallmark behaviors or reactions of abuse victims, the jury may permissibly use this testimony to evaluate whether an abuse victim's behavior is consistent with such behaviors and, therefore, more believable. (Brackins, supra, 37 Cal.App.5th at pp. 71-72.) The expert on intimate partner violence, however, is not impermissibly opining that the abuse actually occurred. (Id. at p. 72.)
In fact, CALCRIM No. 850 specifically admonishes the jury not to consider the expert testimony as evidence that the charged crime was committed. As we have observed, the version of CALCRIM No. 850 that was read to the jury stated, "Richard Ferry's testimony about Intimate Partner Violence is not evidence that the defendant committed any of the crimes charged against him." Read in context, it is not reasonably likely "that the jury understood the instruction in a manner that violated the defendant's rights" and used Ferry's testimony as substantive evidence that Gutierrez abused victim. (Andrade, supra, 85 Cal.App.4th at p. 585.)
Gutierrez cites to People v. Housley (1992) 6 Cal.App.4th 947 (Housley), which analyzed expert testimony on child sexual abuse accommodation syndrome (CSAAS), and argues the jury could easily misuse expert testimony on intimate partner violence. In Housley, the appellate court observed that CSAAS expert testimony can be "easily . . . misconstrued by the jury as corroboration for the victim's claims; where the case boils down to the victim's word against the word of the accused" and "such evidence could unfairly tip the balance in favor of the prosecution." (Id. at p. 958.)
Housley does not aid Gutierrez. Recognizing the potential for misuse of CSAAS evidence, the Housley court concluded that the jury must sua sponte be instructed that "(1) such evidence is admissible solely for the purpose of showing the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested; and (2) the expert's testimony is not intended and should not be used to determine whether the victim's molestation claim is true." (Housley, supra, 6 Cal.App.4th at p. 959.) The limiting instruction described in Housley largely echoes CALCRIM No. 850, which similarly advises the jury that it should not consider expert testimony on intimate partner violence as evidence that the abuse occurred. Thus, like the CSAAS expert testimony contemplated in Housley, expert testimony on intimate partner violence also presents a potential for misuse—but the potential for misuse is mitigated by CALCRIM No. 850's instruction on how to properly use the evidence.
Gutierrez also relies on Justice Brown's dissenting opinion in People v. Brown (2004) 33 Cal.4th 892. In her dissent, Justice Brown observed that the effect of using intimate partner battering expert testimony is that "it effectively evades application of [Evidence Code] section 1107 and, in particular, the express limitation on the use of [battered woman syndrome] evidence 'against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge.' " (Id. at p. 915 (dis. opn. of Brown, J.).) Justice Brown's dissent, however, is not controlling, and the majority of the California Supreme Court held in Brown that expert testimony on intimate partner battering was admissible for evaluating a victim's credibility. (Id. at pp. 895-896; see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [Supreme Court decisions are binding on appellate courts].)
Under these circumstances, the trial court did not misstate the law by advising the jury that it may use Ferry's testimony to evaluate victim's believability. (Brackins, supra, 37 Cal.App.5th at pp. 71-72; People v. Sexton (2019) 37 Cal.App.5th 457, 468 ["Reasonable jurors would not understand [CALCRIM No. 850] to mean that if they find the characteristics of intimate partner battering to be satisfied, this indicates that [the victim] was . . . telling the truth."].)
4. Inability to Pay Fines and Fees
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Gutierrez argues that the trial court erroneously imposed certain fines and fees without first determining his ability to pay.
a. The Challenged Fines and Fees
Citing to the clerk's minutes of the sentencing hearing held on March 2, 2018, Gutierrez argues in his opening brief that the trial court erroneously imposed fines and fees, including a "$120 court security fee, [a] $90 construction fee, and [a] $300 restitution fund fine." The clerk's minutes reflect that the trial court imposed a $90 "ICMF" assessment fee that likely relates to a criminal conviction assessment imposed under Government Code section 70373, a $120 "SECA" fee that likely relates to a court security fee imposed under section 1465.8, and a $330 restitution fine. (See People v. Hartley (2016) 248 Cal.App.4th 620, 636, fn. 6.)
The fines and fees reflected in the clerk's minutes are different than the fines and fees that were orally imposed by the trial court. During the sentencing hearing, the trial court imposed multiple fines and fees, including a restitution fine of $300 (§ 1202.4, subd. (b)) with a 10 percent administrative fee (§ 1202.4, subd. (l)), a $40 court security fee (§ 1465.8), and a $30 criminal conviction assessment (Gov. Code, § 70373).
"Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) Thus, the trial court did not impose a construction fund fine, as argued by Gutierrez, and imposed only a $40 court security fee (§ 1465.8) and a $30 criminal conviction assessment (Gov. Code, § 70373). Furthermore, the trial court did not impose a $330 restitution fine; it imposed a $300 restitution fine and a separate $30 administrative fee.
Given these discrepancies, we amend the clerk's minute to accurately reflect the fees and fines that were orally imposed. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts may correct clerical errors at any time].) For clarity, we direct the trial court to delete the references to the $90 "ICMF" assessment fee, the $120 "SECA" fee, and the $330 restitution fine, and include instead a $30 criminal conviction assessment under Government Code section 70373, a $40 court security fee under section 1465.8, and a $300 restitution fine under section 1202.4, subdivision (b) plus a $30 administrative fee under section 1202.4, subdivision (l).
The Attorney General acknowledges the discrepancies between the clerk's minutes and the trial court's oral pronouncement and proceeds to address the merits of Gutierrez's claims on the assumption that he challenges the $40 court security fee, the $30 criminal conviction assessment, and the $300 restitution fund fine. Gutierrez does not directly address this issue in his reply brief, but he appears to adopt the Attorney General's interpretation of his argument and insists that we should vacate "the court security fee, the construction fee [(the criminal conviction assessment)], and the restitution fund fine." We therefore address whether the trial court erred in imposing the $40 court security fee (§ 1465.8), the $30 criminal conviction assessment (Gov. Code, § 70373), and the $300 restitution fine (§ 1202.4, subd. (b)).
b. People v. Dueñas
In Dueñas, the defendant was an unemployed homeless probationer with cerebral palsy who spent her benefits and food stamps on her two children. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) The defendant had received juvenile citations when she was a teenager, which led to fines, which led to her driver's license getting suspended after she could not repay her debts. (Id. at p. 1161.) She was then convicted several times for driving with a suspended license, which resulted in her spending time in jail because she could not afford to pay the fines associated with her convictions. (Ibid.) After her most recent conviction of driving with a suspended license, the defendant requested that the trial court set a hearing to determine her ability to pay the attorney fees that had been previously assessed and other court fees. (Id. at p. 1162.) After an ability-to-pay hearing, the trial court determined that the defendant lacked the ability to pay attorney fees and waived them. (Id. at p. 1163.) The trial court, however, also determined that the criminal conviction assessment imposed under Government Code section 70373 and the court operations assessment imposed under section 1465.8 were mandatory regardless of the defendant's ability to pay, and the defendant had not shown the " 'compelling and extraordinary reasons' " required by section 1202.4, subdivision (c) to justify waiving the fine. (Dueñas, supra, at p. 1163.)
On appeal, the Second Appellate District reversed the trial court's order. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) With respect to the criminal conviction and court operations assessments, Dueñas first observed that both assessments were not intended to be punitive in nature. (Id. at p. 1165.) Dueñas then examined several California and United States Supreme Court decisions involving indigent defendants and fees: Griffin v. Illinois (1956) 351 U.S. 12, which held that due process and equal protection principles require that all people charged with a crime be treated equally, In re Antazo (1970) 3 Cal.3d 100, which invalidated the practice of requiring defendants to serve jail time if they were unable to pay a fine and penalty assessment, and Bearden v. Georgia (1983) 461 U.S. 660, which held that it violated the federal Constitution to revoke an indigent defendant's probation for failing to pay a fine and restitution. (Dueñas, supra, at pp. 1166-1169.) Relying on these three cases, Dueñas held that imposing the criminal conviction and court operations assessment without determining a defendant's ability to pay was fundamentally unfair and violated due process. (Id. at pp. 1168-1169.) With respect to the restitution fine under section 1202.4, subdivision (b), Dueñas held that the trial court must stay the execution of the fine until the People demonstrate that the defendant had the ability to pay the fine. (Dueñas, supra, at p. 1172.)
c. Application to Gutierrez's Case
During the sentencing hearing, Gutierrez raised concerns over his ability to pay the ordered fines and fees with the trial court. After the trial court finished imposing fines and fees, Gutierrez stated, "I just don't understand. How am I supposed to—excuse me—work and take care of all of these fees with five--[¶] . . .[¶]—five kids all . . . ." The trial court responded that payment plans could be set up for as low as $35 a month. The trial court then said that it was willing to "work with [Gutierrez]," and, acknowledging that "money's tight" and it would be "tough to get a job and all of that," advised Gutierrez to go to the department of revenue to arrange payments.
The trial court also told Gutierrez that it "[would] not accept an excuse that [he] did not have the fees to pay [his] 52-week domestic violence batterer's program," in reference to the fees that were ordered under section 1203.097. As conditions of his probation, the trial court imposed several fines and fees under section 1203.097, including a $500 domestic violence fund fee, a $100 payment to the battered women's shelter, and "all certified batterer's program participation fees." Gutierrez does not challenge these fees, which were ordered as conditions of his probation.
The Attorney General argues that even though Gutierrez voiced his concerns with the trial court, he forfeited his appellate arguments over his ability to pay fines and fees because he did not raise his constitutional arguments to the trial court, request a hearing on his ability to pay, or submit evidence of his inability to pay the fines and fees challenged on appeal. In his opening brief, Gutierrez concedes that he did not object on these grounds below, noting that "[t]here was no objection based on lack of ability to pay on this issue or a request for a hearing."
Assuming without deciding that Gutierrez did not forfeit his challenges to his fines and fees, we find Dueñas distinguishable and any error harmless beyond a reasonable doubt in this case. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Johnson (2019) 35 Cal.App.5th 134, 140 (Johnson); People v. Jones (2019) 36 Cal.App.5th 1028, 1035.)
Unlike the defendant in Dueñas, the record demonstrates that Gutierrez has the ability to pay the $370 (the $300 restitution fine, the $40 court security fee, and the $30 criminal conviction assessment) in challenged fines and fees. Gutierrez was 36 years old at the time he was granted probation and was living with his maternal grandmother. There is nothing in the record to indicate that he suffers from any physical or mental illness that would prohibit him from seeking employment. Additionally, as a condition of his probation, Gutierrez was ordered to "seek and maintain gainful employment or academic or vocational training" as directed by the probation department. According to his Romero motion, Gutierrez managed to maintain "steady employment" through "much of [his] 30s." He previously worked for four years as a laborer until he was laid off, and at the time of his arrest, he was working at a "temp agency." This information was corroborated by the social history information in the probation report, which reflected that Gutierrez had four years of experience as a laborer and had two months of experience at an "[e]mployment [p]rogram" that terminated only because of his arrest in this current case.
" '[A]bility to pay' . . . does not require existing employment or cash on hand. Rather, a determination of ability to pay may be made based on the person's ability to earn where the person has no physical, mental or emotional impediment which precludes the person from finding and maintaining employment once his or her sentence is completed." (People v. Staley (1992) 10 Cal.App.4th 782, 783.) While Gutierrez was represented by appointed counsel in both the trial court and on appeal, that alone does not demonstrate an inability to pay the challenged fees or the restitution fine. (People v. Douglas (1995) 39 Cal.App.4th 1385, 1397 ["a defendant may lack the 'ability to pay' the costs of court-appointed counsel yet have the 'ability to pay' a restitution fine"].) "[T]here is enough evidence in the trial record to conclude that the total amount involved here did not saddle [Gutierrez] with a financial burden anything like the inescapable, government-imposed debt trap . . . Dueñas faced." (Johnson, supra, 35 Cal.App.5th at p. 139.)
Based on the record before us, it is clear that Gutierrez will be able to earn the $370 to pay the challenged fees and, as a result, any error in the trial court's imposition of the fees without holding an ability-to-pay hearing was harmless.
Based on our conclusion, we do not reach the constitutional arguments raised by Gutierrez or the Attorney General.
DISPOSITION
The clerk's minutes of March 2, 2018, are corrected to strike the $90 "ICMF" assessment fee, the $120 "SECA" fee, and the $330 restitution fine, and to reflect a $30 criminal conviction assessment (Gov. Code, § 70373), a $40 court security fee (Pen. Code, § 1465.8), and a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)) plus $30 administrative fee (Pen. Code, § 1202.4, subd. (l)). As modified, the order granting probation is affirmed.
/s/_________
Premo, Acting P.J. WE CONCUR: /s/_________
Elia, J. /s/_________
Mihara, J.