Opinion
B315983
05-04-2023
THE PEOPLE, Plaintiff and Respondent, v. JOSE DE JESUS HERNANDEZ, Defendant and Appellant.
J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Nos. A709291, A709780, Hayden A. Zacky, Judge. Affirmed.
J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
STONE, J. [*]
In 1986 and 1987, appellant Jose De Jesus Hernandez sexually molested his nieces Angelina, Maria, and Ramona. After being charged and held to answer for the sexual abuse of Angelina, appellant fled to Mexico. Thirty-one years later, appellant surrendered in court in San Fernando. A jury subsequently convicted appellant of seven lewd acts upon a child (Pen. Code, § 288, subd. (a)), and appellant was sentenced to a term of 16 years in state prison.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, appellant raises numerous issues, contending: (1) insufficient evidence supported the jury's verdict on count 10, against victim Ramona; (2) the trial court prejudicially erred by allowing expert testimony regarding female anatomy; (3) trial counsel was ineffective for failing to (a) call an expert witness on female anatomy, (b) request a jury instruction as a sanction for belated discovery, and (c) object to a reading of Maria's statement to the police; (4) the prosecutor committed Griffin error during closing argument by indirectly commenting on appellant's failure to take the stand; (5) the prosecutor committed prejudicial misconduct during closing argument by arguing facts not in evidence; (6) the case must be remanded for resentencing in light of Assembly Bill No. 124 (2020-2021 Reg. Sess.; Stats. 2021, ch. 695, § 5) (AB 124), which amended section 1170 to presumptively require the low term be imposed; and (7) any fines and fees imposed in contravention to Assembly Bill No. 1869 (2019-2020 Reg. Sess.; Stats. 2020, ch. 92, § 2 (AB 1869), and Assembly Bill No. 177 (2021-2022 Reg. Sess.; Stats. 2020, ch. 92, § 2 (AB 177), must be stricken.
Griffin v. California (1965) 380 U.S. 609 (Griffin).
We conclude, and respondent concedes, that the case must be remanded for resentencing pursuant to AB 124's amendments to section 1170 and for modification of the judgment in relation to several fines and fees. Discerning no reversible error in the remaining claims, we affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
A. Prosecution Evidence
1. Initial Charges and Appellant 's Flight to Mexico
In 1986 and 1987, appellant lived with the family of his brother, Lucio H., in Sylmar. Lucio and his wife Rachel shared daughters Angelina, Maria, and Ramona, along with several other children. In 1987, Angelina disclosed that appellant had sexually abused her earlier that year, and appellant was arrested. Appellant was born in October 1968, making him 18 years old at the time of the alleged abuse.
In 1987, Los Angeles County Deputy District Attorney Meredith Evans filed a felony complaint against appellant in case No. A709291, charging him with lewd act upon a child as to Angelina. Angelina testified at the preliminary hearing. Appellant was present at that hearing with a deputy public defender and assisted by a Spanish language interpreter. The court held appellant to answer and ordered him to appear for trial on February 16, 1988. Appellant was out on bail. Prosecutor Evans subsequently filed another felony complaint against appellant in case No. A709780, alleging sexual abuse as to Maria and Ramona.
On February 16, 1988, appellant did not appear for trial, and the court issued a bench warrant. Because appellant fled to Mexico, prosecutor Evans initiated a request for extradition from Mexico. Appellant was never extradited.
On August 14, 2019, 31 years after he had been ordered to appear for trial, appellant surrendered in court in San Fernando. Appellant told Lucio he had found an attorney who was going to help him "beat the case," as a long time had gone by and Angelina had passed away in 1999. Appellant never mentioned a case regarding Maria or Ramona, and nor did Lucio know of such a case. However, appellant told Lucio he felt bad about what he had done to "two of [Lucio's] daughters."
2. Angelina's Testimony (Counts 2, 4, 6)
Since Angelina was unavailable for trial in 2021 because she had passed away, a redacted version of her 1987 preliminary hearing testimony was read into evidence. At the time of the preliminary hearing, Angelina was 11 years old and in sixth grade.
At that hearing, Angelina testified that around February of 1987, when she was 10 years old, appellant, her father's brother nicknamed Chuy, came to live in the house she shared with her family. In April or May appellant began touching Angelina. She recalled that she had chicken pox in May 1987, and she remembered the abuse occurred around that time.
The first incident of abuse took place one evening after dinner. Appellant took her into her room, took off her pants, and touched her bare vagina; she told him not to. Appellant put his penis in her vagina four times in May 1987. The third time it hurt, and Angelina kicked him. In mid-June, when she no longer had chickenpox, appellant again put his penis in her vagina. He also touched her vagina without putting his penis inside her on another one or two occasions. Appellant moved out of the house in August 1987.
In September, while at school, Angelina told her best friend about the abuse and then told a teacher. Her principal called the police.
3. Maria's Testimony (Counts 7 through 9)
Angelina's sister Maria was 41 years old at the time of trial. Maria testified that appellant molested her when she was six or seven years old. Maria told her mother about the abuse after someone came to their house to speak with Angelina, and Maria overheard something that "sparked [her] to feel . . . like it was okay" to tell her mother what happened. Maria's mother took her to the police station, and Maria spoke to a detective. Maria did not remember what she told the detective.
The prosecutor showed Maria a Los Angeles Police Department (LAPD) report entitled "Preliminary Investigation of Crime against Child." The document was dated January 12, 1988. It did not refresh Maria's recollection of the events. However, Maria confirmed that when she talked to the detective, she told the truth, and the events were fresh in her memory.
Pursuant to Evidence Code section 1237, the hearsay exception for a "past recollection recorded," the court permitted Maria to read the contents of the police report into the record:
"I.O. interviewed victim, [Maria], at Foothill station. Victim Maria told I.O. that above suspect is her uncle, whom she calls 'Chuy.' He came to live at their house and later started touching her. I.O. asked her, 'Where [sic] was the first time he touched you?' Victim stated 'when my little sister,' victim [Ramona] 'started walking.' Victim's mother established the date to be, approximately, July 1st, 1986.
“....
"Victim Maria said her mother sent her to her bed to take a nap. When she got to her bedroom, suspect was there listening to his tapes. She got on the top bunk to take a nap and he told her to get on the bottom bunk. Victim Maria then moved to the bottom bunk.
"Suspect then told victim to take her pants off and she complied. Suspect then . . . 'started touching my bottom and he put his finger in.'
"I.O. asked victim to point to where the suspect touched her. Victim Maria stood up and pointed to her vagina stating 'my bottom front.' Victim told suspect to 'stop it' and pulled her pants back on. Victim Maria stated suspect touched her a few other times, but she could not remember any exact dates. She stated that several times . . . he took out his weewee, penis out, and asked her to touch it. Victim refused and covered her eyes with her hand."
Maria also had some independent recollections of the abuse. She testified: "I remember being in the kitchen with my family eating and I was typically the first one to get done eating. [¶] . . . [¶] . . . It was dinnertime .... I would sit in the sofa and [appellant] would stand in the hallway, kind of dark.... He would give me a sign so that I knew to go over to the room with him. [¶] He would move his tongue up and down in a fast motion and I would get up and eventually follow him in the room."
While in Maria's room, appellant had Maria lie on the bottom bunk bed. Appellant took off Maria's underwear, spread her legs, and orally copulated her. Maria felt "[e]motionally numb." Appellant also tried to make Maria touch his erect penis but she pulled her hand away.
Maria did not remember how many times appellant orally copulated her. However, she believed it was more than once. Maria explained: "I felt like it was more than once only because of the memory I have of him telling me to go to the room. It was something I was already familiar with. It was already established."
As a result of the sexual abuse, Maria became promiscuous. She "didn't really have good relationships" when she started to date. The effects of the abuse "carried in [Maria's] adulthood and in [her] own marriage."
4. Testimony Regarding Ramona's Abuse (Count 10)
In 1986, Ramona was one or two years old. Evidence of appellant's abuse against Ramona was introduced through the same 1988 LAPD police report read into evidence during Maria's testimony, which recorded the following:
"Victim Maria also told I.O. that suspect had been touching her sister, [Ramona]. I.O. asked victim M[.] how she knew that suspect was touching her sister. She said she had seen suspect looking at victim R[.] when she did not have any Pampers on. She also . . . [¶] . . . [¶] observed suspect touching Ramona's vagina on several occasions. He would rub her vagina and put his finger into her. Suspect also touched victim Ramona's breasts. I.O. asked victim [Maria] 'when was the last time he touched you?' Victim [Maria] answered, 'When my Aunt Martha was leaving the house.' Victim's mother established the date to be, approximately, January 30th, 1987, when he got married."
5. Testimony of Lucio H., Father of the Victims
Lucio H. testified that appellant lived with him and his family in Sylmar from 1986 to 1987. In 1987, Angelina told Lucio that appellant was abusing her, and appellant was arrested. Appellant then left for Mexico. Appellant told Lucio that he felt badly about what he had done "to two of my daughters." Appellant also told Lucio he felt very sad for what he had done to Maria.
6. Forensic Nurse Examiner Sandra Wilkinson
No evidence was introduced regarding a medical examination of Angelina. Forensic nurse examiner Sandra Wilkinson detailed her experience with pre-pubescent exams and testified that pre-pubescent hymens are elastic and thin and that in 87 percent of cases, virginity is not detectible by an examination of the hymen. Wilkinson also said it was rare to see scars, bleeding or tearing on a child's hymen, making it difficult to discern if it has been penetrated.
B. Defense Evidence
Appellant did not testify, but a number of family members testified in his defense.
Martha Hernandez, appellant's sister, testified that from 1986 to 1987, she lived at her other brother Lucio's house and slept in a room with Maria. Martha never saw appellant go into Angelina's or Maria's bedrooms. According to Martha, appellant was honest, very quiet, and serious.
Juan Lujano, appellant's nephew, also lived at Lucio's house. He said he and appellant slept together on a pullout couch in the "second living room." Lujano never saw appellant go into Angelina's or Maria's rooms. He also never saw any unusual interactions between appellant and Angelina; however, Juan worked in the evenings and on weekends, and hardly ever ate at home. Juan and appellant both left the house in July 1987.
Elizabeth Estrada, appellant's ex-wife, testified they had five children, four girls and one boy. Estrada never noticed anything unusual between appellant and their daughters. According to Estrada, during their 28-year marriage, appellant never cheated or lied. Appellant told Estrada about his pending case. Estrada testified they intended to save money and hire an attorney so they could "go forward with . . . anything [they] had to do" regarding that case. On cross-examination, Estrada admitted instead she and appellant bought a house and cars and went to Disneyland.
Gregorio Herrera, appellant's brother-in-law, testified that when appellant arrived from Mexico in 1986, he lived at Herrera's house for about three months. Herrera had five young children, three girls and two boys. Appellant did not interact with the children. According to Herrera, appellant was a very good person.
Simon Hernandez, appellant's brother, testified appellant lived with him from August to November 1987. Simon had two young daughters. Appellant did not have any interaction with the children. According to Simon, appellant was honest.
Maria Trujillo, appellant's niece, testified appellant was trustworthy, and he respected her and her sisters. Most of the family members attended Angelina's funeral. Appellant did not attend.
Blanca Hernandez, appellant's current wife, went with appellant to talk to an attorney because appellant "wanted to correct his situation." Blanca testified, "[Appellant] talked to me and explained to me and I supported him." Blanca insisted that Lucio was lying when he said that appellant confessed to him that he felt guilty for molesting Lucio's daughters.
Elizabeth Hernandez, appellant's daughter, testified appellant wanted to turn himself in to prove his innocence. However, when he went to attorneys, appellant "always had financial problems, so they couldn't help."
C. Charges and Jury Verdicts
Appellant was charged by amended information with committing seven acts of lewd act on a child under the age of 14 (§ 288, subd. (a)). Three counts were alleged as to Angelina (counts 2, 4 and 6), three as to Maria (7, 8 and 9), and one as to Ramona (count 10). The offenses were alleged to have occurred no earlier than October 4, 1986 and no later than May 31, 1987.
Previously charged counts 1, 3, and 5 were dismissed on the prosecution's motion.
A jury convicted appellant of all seven counts as charged. The trial court sentenced appellant to an aggregate term of 16 years in state prison, consisting of the mid-term of six years on count 2; one-third the mid-term (two years) on counts 4, 6, 7, 8, and 9; and a concurrent six-year term on count 10.
DISCUSSION
I. Sufficiency of the Evidence to Support the Conviction on Count 10
Appellant contends there was insufficient evidence to support his conviction on count 10 for the lewd touching of Ramona. Appellant emphasizes that Ramona did not testify during trial or report any act of molestation by appellant. He further asserts that Maria testified that appellant did not molest her sister Ramona. However, Ramona's testimony was not necessary for a conviction, and appellant misstates Maria's testimony.
A. Relevant Legal Principles
In reviewing a sufficiency of the evidence claim, "[w]e view the evidence in the light most favorable to the prosecution, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Griffin (2004) 33 Cal.4th 1015, 1028.) In so doing, we neither question the credibility of witnesses nor reweigh the evidence. (People v. Navarro (2021) 12 Cal.5th 285, 302.) We must affirm the conviction if the circumstances reasonably support the jury's findings, even if the circumstances might also be reconciled with a contrary finding. (People v. Jiminez (2019) 35 Cal.App.5th 373, 392.)
B. Maria's Testimony Was Sufficient to Establish the Molestation Charged in Count 10
Appellant points out that Ramona did not testify during trial or report any act of molestation by appellant to anyone else. But given that Ramona was one or two years old at the time of the abuse, it is not surprising that she did not report it at the time, or that she may not have remembered it later. Moreover, Maria's testimony based on her observations of appellant's abuse of Ramona was sufficient evidence. (People v. Jones (2013) 57 Cal.4th 899, 963 [testimony of single witness sufficient to establish a fact unless physically impossible or inherently improbable]; accord, People v. Richardson (2008) 43 Cal.4th 959, 1030-1031.)
Appellant incorrectly claims that Maria testified that appellant did not molest her sister Ramona. Maria testified merely that she had no present recollection of appellant molesting Ramona. However, Maria did remember talking to a detective about Ramona. She further confirmed that when she talked to the detective she told the truth and the events were fresh in her memory, which, pursuant to Evidence Code section 1237, permitted the reading of Maria's statement to police, including her firsthand recollection of appellant molesting Ramona. We thus reject appellant's contention that "the corpus delicti of [count 10] was not established." The corpus delicti rule merely requires "some evidence that a crime occurred" that is "independent of the defendant's own statements." (People v. Ledesma (2006) 39 Cal.4th 641, 721.) This evidence was provided through Maria's statements to the police.
Evidence Code section 1237 provides:
"(a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which:
"(1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness' memory;
"(2) Was made (i) by the witness himself or under his direction or (ii) by some other person for the purpose of recording the witness' statement at the time it was made;
"(3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and
"(4) Is offered after the writing is authenticated as an accurate record of the statement.
"(b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party."At trial, defense counsel objected to the reading of Maria's statement on the ground of lack of authentication of the police report. The trial court overruled the objection, and appellant does not challenge that ruling here. As discussed in section III, appellant contends defense counsel provided ineffective assistance to appellant by failing to challenge the "freshness" of the recorded recollection, but we reject the argument as meritless.
Appellant also argues that given nine people lived in Lucio's house, someone would have noticed appellant's abuse of Ramona if it had occurred. Appellant further contends it is "unlikely that an infant would have been left alone with a teenager (appellant) for sufficient time and in a sufficiently clandestine location for him to put his finger in her vagina 'several times,' as Maria purportedly told police that he did."
Appellant's arguments are premised on his own subjective views of the evidence and, as such, are no more than an invitation for us to reweigh the evidence. "[I]t is the jury, not the appellate court, which must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] Therefore, an appellate court may not substitute its judgment for that of the jury." (People v. Ceja (1993) 4 Cal.4th 1134, 1139.) Only where "'upon no hypothesis whatever is there sufficient substantial evidence to support'" the judgment is reversal warranted. (People v. Bolin (1998) 18 Cal.4th 297, 331.) Appellant cannot meet this standard and we therefore affirm his conviction on count 10.
II. Admission of Expert Testimony Regarding Female Anatomy
Appellant contends the trial court prejudicially erred by allowing the prosecution to present expert testimony about "pre-pubescent hymens" and the likelihood of tearing or injury during penile penetration. Appellant argues that because no medical examination reports were introduced at trial, this testimony was irrelevant and "served only to suggest that Angelina was telling the truth." For the reasons explained below, we disagree.
A. Proceedings in the Trial Court
Prior to trial, the prosecutor indicated she was unable to locate the doctor who performed the SART examination on Angelina. The report indicated there were no "physical findings," i.e., no tears or abrasions on Angelina's hymen, but did not find penetration had not occurred. The trial court excluded the SART report on hearsay grounds and ordered there be no mention of it.
"SART" stands for sexual assault response team. (People v. Ramirez Ruiz (2020) 56 Cal.App.5th 809, 817, fn. 7.)
Defense counsel stated he had located the physician's address, but did not know if she was still alive. Defense counsel subsequently informed the court that the physician had passed away.
In his opening statement, defense counsel told the jury, "[M]ost of the[ ] allegations the evidence will indicate are not proven. For example, there will be no medical evidence whatsoever."
After Angelina's preliminary hearing testimony was read to the jury, the prosecutor stated she wished to present testimony by forensic nurse Malinda Wheeler "about the anatomy of a young girl" and the elasticity of a "prepubescent vagina." The prosecutor explained the testimony was now relevant based on defense counsel's suggestion in his opening statement that the lack of medical evidence undermined Angelina's claim she had been penetrated multiple times. Further, at Angelina's preliminary hearing, prior defense counsel had asked Angelina, "Did you see anything after [appellant] put his penis in your vagina? Did you see anything on your underwear?" The defense would undoubtedly point to the absence of blood as evidence that Angelina was not raped.
Over defense counsel's objection, the court permitted the prosecution to call the nurse, finding that her testimony was relevant and would not necessitate an undue consumption of time under Evidence Code section 352. The court explained: "I think it is relevant, because it goes to prove or disprove a fact in question, which is whether or not there was sexual penetration of Angelina H. by [appellant's] penis, because her testimony that was read yesterday indicated that there was no fluids or anything that were seen . . ., so is it relevant to prove that if a person who is an 11-year-old girl, who is a virgin, if they did not bleed after having sexual intercourse for the first time, is that something that the jury should know? Does it happen? Does it not happen? And what is the frequency?"
Defense counsel stated that if Nurse Wheeler testified, the defense needed their own expert on the issue. The trial court offered to provide a list of experts, but defense counsel stated he already had the list. The trial court told defense counsel the court could give him "a day or two to get prepared," or the court could give a jury instruction as a sanction for the late discovery from the prosecution.
On direct examination, Nurse Wheeler testified that the majority of the time (around 75 percent) there is no pain or bleeding the first time a female has sexual intercourse. Evidence of a torn hymen is only found in 10 to 20 percent of sexual abuse cases. Nurse Wheeler also testified that "children and teens and even adults don't fight back when they are being violated. They're more compliant because they don't want to be hurt, so they will just lay there, so that also helps protect against injury."
The trial court delayed Nurse Wheeler's cross-examination and excused her subject to recall. Because Nurse Wheeler was unable to return for crossexamination, the court struck her testimony.
The court told the jury: "[W]hat that means is you cannot consider it for any purpose, like I just erased it all. [¶] [The prosecutor] may call another witness, though, in lieu of that. I'm telling you procedurally what I've done, I've stricken . . . her entire testimony, so . . . you're ordered to treat it as if she never testified in this courtroom."
Later, over a defense relevance objection, Nurse Wilkinson testified for the prosecution in lieu of Nurse Wheeler. Nurse Wilkinson also discussed pre-pubescent hymens and told the jury that it is not common to see "an injury as a result of penetration." Nurse Wilkinson testified that 87 percent of the time there is no bleeding or injury the first time a female has sexual intercourse.
During a discussion on jury instructions, the trial court indicated it was going to give CALCRIM No. 306 (the standard instruction for the untimely disclosure of evidence). However, the trial court subsequently reported: "I just want to put on the record that [the prosecutor] asked to have the language in the late discovery instruction also applied to a defense witness. [¶] As a result of that, both attorneys have stipulated that the court need not give 306, late discovery instruction." Counsel agreed this was correct.
B. Standards of Review
The trial court has broad discretion in determining the relevance of evidence. (People v. Crittenden (1994) 9 Cal.4th 83, 132.) The trial court also has discretion to exclude otherwise admissible 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. (Evid. Code, § 352.) We review the trial court's rulings on the admission and exclusion of evidence for abuse of discretion. (People v. Morales (2020) 10 Cal.5th 76, 97 [expert testimony]; People v. Kipp (2001) 26 Cal.4th 1100, 1123 [relevance]; People v. Greenberger (1997) 58 Cal.App.4th 298, 352 [Evid. Code, § 352].) We will not disturb the trial court's rulings on the admission of evidence or expert testimony unless it acted in an arbitrary, capricious or patently absurd manner. (People v. Morales, supra, 10 Cal.5th at p. 97.)
C. The Evidence Was Relevant and Properly Admitted
As a threshold matter, any complaint about Nurse Wheeler's testimony fails because the trial court struck her entire testimony and ordered the jury to "treat it as if she never testified in this courtroom." The court also instructed the jury after the close of the evidence: "If I ordered testimony stricken from the record, you must disregard it and must not consider that testimony for any purpose." "We presume that a jury follows the court's admonishments." (People v. Schultz (2020) 10 Cal.5th 623, 673.)
Appellant relies heavily on Nurse Wheeler's observation that children "don't fight back when they are being violated" (in order to avoid pain or injury), to bolster his claims of error and prejudice. However, Nurse Wheeler's testimony was stricken, and we therefore do not consider these statements in our analysis.
Appellant argues that Nurse Wilkinson's subsequent testimony about female genitalia had no relevance because it "served only to rebut the SART evidence" which was not admitted. We disagree.
Here, at Angelina's preliminary hearing, prior defense counsel asked her:
"Question: After he stuck his penis in your vagina, did you see anything on yourself?
"Answer: No.
"Question: Did you see anything on the floor?
"Answer: Huh-uh.
"Question: Did you see anything on him?
"Answer: No."
Appellant states that "[a]lthough Angelina said she never 'saw anything' on her, appellant, or the floor after he penetrated her, it is not clear what she meant by this." However, one fair inference of this line of questioning (and responsive testimony) was that Angelina had neither blood nor semen on her. Moreover, during his opening statement, current defense counsel pointed out to the jury that there was no medical evidence corroborating Angelina's account. As such, Nurse Wilkinson's testimony- that it was uncommon for virgins to bleed or sustain injuries from intercourse-was relevant to dispel the myth and/or suggestion that any penetration would necessarily result in such physical injuries. (Cf. People v. Julian (2019) 34 Cal.App.5th 878, 885 [child sexual abuse accommodation syndrome [CSAAS] testimony was relevant to "'"disabuse jurors of commonly held misconceptions"'"]); People v. Duong (2020) 10 Cal.5th 36, 60 [explaining that "'[a]n expert may express an opinion on a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact'"].)
Appellant similarly fails to establish prejudice. The alleged erroneous admission of expert testimony only warrants reversal if it is reasonably probable a result more favorable to the defendant would have been reached in the absence of the error. (People v. Pearson (2013) 56 Cal.4th 393, 446.)Appellant asserts the expert testimony was prejudicial because it "served only to suggest that Angelina was telling the truth" and tended to "evoke an emotional bias against defendant." Not so. The brief testimony merely served to dispel certain myths about virgins; it did not suggest that the absence of injury meant the abuse actually occurred or that the alleged victim was credible.
To the extent appellant argues that the error implicates his federal constitutional rights, we disagree. (People v. Albarran (2007) 149 Cal.App.4th 214, 229-230 & fn. 13 [admission of evidence violates due process only if no permissible inference may be drawn from it].)
Accordingly, we discern no abuse of discretion or prejudice. (People v. Bell (2007) 40 Cal.4th 582, 607 [because evidence was clearly tied to relevant issue rather than to creation of prejudicial emotion, court's choice to admit it was neither arbitrary nor capricious], disapproved on another point by People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13; see also People v. Pearson, supra, 56 Cal.4th at p. 446.)
III. Ineffective Assistance of Counsel
Appellant contends his trial counsel rendered ineffective assistance by failing to: (1) object to the reading of Maria's police statement as past recollection recorded; (2) call his own expert witness on female anatomy; and (3) request an instructional sanction for the prosecutor's discovery violation. Appellant has failed to make the requisite showing to warrant relief on direct appeal.
A. Relevant Legal Principles
A defendant bears the burden of demonstrating ineffective assistance of counsel. (People v. Mickel (2016) 2 Cal.5th 181, 198.) "'[A] defendant claiming a violation of the federal constitutional right to effective assistance of counsel must satisfy a two-pronged showing: that counsel's performance was deficient, and that the defendant was prejudiced, that is, there is a reasonable probability the outcome would have been different were it not for the deficient performance.'" (People v. Woodruff (2018) 5 Cal.5th 697, 736.)
In determining whether counsel's performance was deficient, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing norms. (People v. Johnson (2016) 62 Cal.4th 600, 653.) Reversal is permitted "'only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.'" (People v. Arredondo (2019) 8 Cal.5th 694, 711.) Regarding the second prong, "prejudice must be affirmatively proved; the record must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" (People v. Bolin (1998) 18 Cal.4th at p. 333.)
"Rarely is ineffective assistance of counsel established on appeal since the record usually sheds no light on counsel's reasons for action or inaction." (People v. Woodruff, supra, 5 Cal.5th at p. 736.)
B. Analysis
Appellant has failed to demonstrate that trial counsel had no rational tactical purpose for failing to act on the three grounds he asserts.
1. Failure to Challenge Maria's Police Statement Read into Evidence
First, with regard to the reading of Maria's police statement, appellant does not contest that the statutory criteria for the hearsay exception for a recorded recollection were met under Evidence Code section 1237. (See fn. 4, ante.) Instead appellant relies on People v. Royal (2019) 43 Cal.App.5th 121 (Royal), to argue that in this case, more was needed to establish the "freshness" element because the 33-year time gap between the police report and trial was "too long under Evidence Code section 1237." Appellant's reliance on Royal is misplaced.
In Royal, the Court of Appeal held the trial court erred in admitting statements as past recollection recorded when the statements were made six years after the events in question. (Royal, supra, 43 Cal.App.5th at pp. 138139.) The Royal court stated: "Although we stop short of concluding that a six-year gap between the incident and the recorded statements is too long under Evidence Code section 1237 as a matter of law, such a considerable gap of time requires a party trying to admit the subject statements to lay a sufficient foundation to show that the incident or facts were 'fresh' in the declarant's mind at the time the statements were recorded.... Below, that was lacking." (Id. at p. 145, italics added.)
Under Royal, then, the relevant time gap is the time between the incident and the recorded statements-not the time from the written report to trial, as argued by appellant. Here, appellant targets Maria's statements to police regarding Ramona-i.e., that Maria saw appellant touching Ramona's vagina several times. Although Maria did not tell police exactly when she saw appellant touching Ramona, Maria spoke with police on January 12, 1988; Ramona was born on August 28, 1985. Thus, the longest possible time gap between her observations and statements to police would be two and a half years. Further, it can reasonably be inferred that Maria's recollections of appellant's abuse of Ramona were from the same timeframe of her own abuse by appellant, which she stated was around the time Ramona began walking.
Royal expressly acknowledged that courts have found Evidence Code section 1237 applicable to statements made up to three years after the relevant event-which is greater than the outer limit at issue here. (Royal, supra, 43 Cal.App.5th at p. 145.) Further, in Royal, the court pointed out that the prosecution failed to ask the witness whether the facts were "fresh" in her mind at the time she spoke to police. The Royal court explained that while no "specific incantation" or "magic words" were necessary to establish this element, in the case of an extensive time gap such as six years, a more clear indicia of "freshness" was needed. (Id. at p. 145.) By contrast, the prosecutor here did ask Maria, "Were you telling [the officer] things that were fresh in your memory at the time?" Maria responded, "yes, at that time." (Italics added.)
Appellant has failed to demonstrate that counsel's conduct was deficient in his failure to object to the "freshness" of Maria's recollection-or that he suffered prejudice from the inaction. (See People v. Arredondo, supra, 8 Cal.5th at pp. 711-712; People v. Carrasco (2014) 59 Cal.4th 924, 982.)
2. Failure to Call Defense Expert
Appellant's second contention-that counsel was ineffective in failing to call his own expert witness-is also without merit. As indicated earlier (see section II, ante), defense counsel told the trial court that if Nurse Wheeler testified, "we need our own expert on this issue." The court offered to "pull up the list" so that counsel could "call [his] own expert," and defense counsel responded that he had the expert list.
Appellant argues defense counsel rendered ineffective assistance "when he failed to procure an expert from the list, which would have countered the prosecution's expert testimony on female anatomy." Appellant's contention assumes too much.
That is, appellant presumes that if defense counsel had called his own expert, the expert would have, in fact, contradicted Nurse Wilkinson 's testimony. However, "[o]n direct appeal, a claim of ineffective counsel cannot be established by mere speculation regarding the 'likely' testimony of potentially available witnesses. [Citation.] We cannot assume from a silent record that particular witnesses were ready, willing and able to give mitigating testimony, nor can we speculate concerning the probable content or substance of such testimony." (People v. Medina (1995) 11 Cal.4th 694, 773 (Medina).) Accordingly, appellant has failed to demonstrate that counsel was incompetent. (People v. Waidla (2000) 22 Cal.4th 690, 749, fn. 1 [noting an appeal, unlike habeas proceedings, is limited to the four corners of the appellate record].)
3. Failure to Request Instruction to Sanction Late Discovery
Appellant's third and final challenge is that defense counsel had "no tactical basis for failing to secure" an instruction regarding the prosecutor's discovery violation. To the contrary, the record reflects defense counsel had a tactical basis for withdrawing his request for CALCRIM No. 306-namely that the instruction would also be applied to a defense witness.
As previously noted (see section II, ante), the record reflects the trial court stated its intention to give CALCRIM No. 306. However, the trial court subsequently stated on the record that both attorneys had stipulated the court need not give the late discovery instruction because it also applied to a defense witness. Both counsel agreed the court's statement was correct.
In his reply brief, appellant asserts the following: "Counsel did fail to timely discover any of his witnesses. Thus, no conceivable harm would have ensued to the defense from a jury instruction on late discovery and respondent's contention is baseless and absurd." Assuming the first sentence contains a scrivener's error and appellant meant to say "counsel did not fail to timely discover any of his witnesses," appellant fails to cite to any portion of the record that proves this assertion, while the record contains a statement by counsel affirming the opposite. As such, if appellant has a factual basis for this claim, it would need to be pursued in a habeas corpus petition. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268; People v. Waidla, supra, 22 Cal.4th at p. 703, fn. 1 [a "habeas corpus petition is not confined to the record on appeal"].)
We express no opinion on the merits, if any, of such a petition.
IV. Griffin Error
Appellant contends that the prosecutor committed Griffin error during closing argument by improperly commenting on appellant's failure to take the stand.
A. General Legal Principles
"[T]he Fifth Amendment . . . forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." (Griffin, supra, 380 U.S. at p. 615; see People v. Lewis (2001) 25 Cal.4th 610, 670.) "Although the Griffin case involved direct reference to the defendant's failure to testify, the decision has been interpreted as prohibiting the prosecution from so much as suggesting to the jury that it may view the defendant's silence as evidence of guilt." (People v. Guzman (2000) 80 Cal.App.4th 1282, 1287-1288 (Guzman).) Thus, Griffin "'error is committed whenever the prosecutor . . . comments, either directly or indirectly, upon defendant's failure to testify in his defense.'" (Id. at p. 1288; see Medina, supra, 11 Cal.4th at p. 755.)
"[T]he rule prohibiting comment on defendant's silence does not extend to comments on the state of the evidence, or on the failure of the defense to introduce material evidence or to call logical witnesses." (Medina, supra, 11 Cal.4th at p. 755; see People v. Mayfield (1993) 5 Cal.4th 142, 178; People v. Szeto (1981) 29 Cal.3d 20, 34.) "'As a general principle, prosecutors may allude to the defense's failure to present exculpatory evidence.'" (People v. Lewis (2004) 117 Cal.App.4th 246, 257.) However, "'a prosecutor may commit Griffin error if he or she argues to the jury that certain testimony or evidence is uncontradicted, if such contradiction or denial could be provided only by the defendant, who therefore would be required to take the witness stand.'" (People v. Thomas (2012) 54 Cal.4th 908, 945, quoting People v. Bradford (1997) 15 Cal.4th 1229, 1339; see People v. Bloom (2022) 12 Cal.5th 1008, 1055 (Bloom) ["While a prosecutor does not violate the Griffin rule by commenting on the absence of certain evidence, a Griffin error does occur when the only possible source of such evidence would have been the defendant"]; People v. Johnson (1992) 3 Cal.4th 1183, 1229 [prosecutor errs by referring to evidence as "uncontradicted" or "unrefuted" when the defendant, who elects not to testify, is the only person who could have refuted it]; People v. Hughes (2002) 27 Cal.4th 287, 371 [same].) "[P]rosecutors must walk a fine line when treading in this area." (Guzman, supra, 80 Cal.App.4th at p. 1289.)
B. Underlying Facts
During closing argument in this trial, the prosecutor argued:
"So the sworn testimony, the evidence in this case, the only evidence that you have in this case is that [appellant] sexually abused Angelina, Maria and Ramona. You have no other evidence to refute that. None.
"The defense called in a multitude of witnesses. Every single one of the defense's witnesses, none of them had any personal knowledge of what happened. They all admitted, [']I was not in the room.['] .... They all admitted that if the defendant were to do anything sexual, especially to children, he was going to do it in private.
"They all admitted that none of them talked to Angelina about it to confirm whether it was true or not, or to get her side of the story. None of them talked to Maria to confirm or to ask questions or to see if she was okay. None of them.
"So the only people who knows [sic] what happened in that room, in Angelina's room, is [appellant] and Angelina. Angelina's dead." (Italics added.)
Defense counsel objected, and the trial court admonished the jury: "Remember, [appellant] has a right not to testify. I read that jury instruction to you. You are not to consider his silence for any purpose. It shall not even be discussed in the jury deliberation room."
Prior to closing arguments, the trial court instructed the jury pursuant to CALCRIM No. 355: "A defendant has an absolute constitutional right not to testify. He may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way."
The prosecutor resumed her argument: "My point is that the only people that knows [sic] what happened in Angelina's bedroom is Angelina and [appellant]. And we heard from Angelina. That's the evidence. [¶] The only people that know what happened in Maria's bedroom is Maria and [appellant]. And we heard from Maria. That is the evidence before you. [¶] And you must base your decision in this case based on the evidence in this case. Not speculation. Not what if this. What if that. Not attorneys' comments. Not attorneys' stories. But the evidence. And that is the evidence before you. And not a single witness has refuted that that is the case. That's the evidence." (Italics added.)
At a break in the prosecutor's argument, defense counsel moved for a mistrial. The trial court heard the motion after the jury retired for deliberations. Defense counsel argued the prosecutor twice committed Griffin error by stating that only two people knew what happened and only one of them (not appellant) gave testimony. The prosecutor disagreed with this characterization, explaining that she was simply pointing out the "obvious"- i.e., "that the witnesses that the defense called cannot say that it did not happen because they were not present." The trial court denied the mistrial motion, finding that the comments did not "rise[] to the [level] of Griffin error."
The trial court also denied appellant's subsequent new trial motion, finding no Griffin error, and, even assuming the prosecutor's comments constituted error, it was cured by the instructions and admonitions given by the court.
C. The Trial Court Cured the Prosecution's Indirect Griffin Error by Admonishing the Jury
We conclude the prosecutor crossed the Griffin line by commenting that (1) the only people who knew what happened in Angelina's room were appellant and Angelina, and that the jury had heard from Angelina; (2) only Maria and appellant knew what happened between them, and the jury had heard from Maria; and (3) "not a single witness has refuted" Angelina's and Maria's testimony. As the prosecutor emphasized to the jury, no other witness besides the victims and appellant had personal knowledge of what happened. Thus, only appellant could have refuted Angelina's and Maria's testimony about their respective abuse by appellant. As set forth above, a Griffin error occurs when a prosecutor comments on the absence of a piece of evidence, when "the only possible source of such evidence would have been the defendant." (Bloom, supra, 12 Cal. 5th at p. 1055.)
In Bloom, supra, our Supreme Court found the prosecutor committed Griffin error in a similar way. Referencing the argument the defendant had with his father before the defendant killed him, the prosecutor argued, "We will never know what they were talking about out there." Because only the defendant could have testified about the conversation given his father was dead, the Supreme Court concluded the prosecutor's remarks were impermissible under Griffin. (12 Cal.5th at pp. 1054-1055; see People v. Gioviannini (1968) 260 Cal.App.2d 597, 604-605 [finding prosecutor committed Griffin error where prosecutor told jury that two people know what happened, the defendant and the victim, and the victim was dead].)
The prosecutor may have intended, as the Attorney General suggests, merely to comment on the lack of evidence supporting appellant's innocence. The prosecutor was certainly entitled to observe in his closing, as he did, that none of the witnesses called by the defense had personal knowledge of the events or had spoken to Maria or Angelina about any of their reports or accusations. However, the prosecutor should have left it there. Calling attention to the fact that only one person-appellant-could controvert the girls' accounts could have led the jury to "consider [appellant's] failure to testify as proof that his actions were criminal," because unlike Angelina and Maria, appellant "was not willing to explain his side of the story in court." (Guzman, supra, 80 Cal.App.4th at p. 1288.)
We find, however, that reversal is unwarranted here in light of the prompt and clear admonition given by the trial court to the jury that they could not consider appellant's silence for any purpose. (See People v. Carr (2010) 190 Cal.App.4th 475, 484 (Carr).) The trial court also referenced its prior instruction on the issue, wherein the court had fully instructed the jury with CALCRIM No. 355. (See fn. 11, ante.) By doing so, the trial court obviated any Griffin-related concerns. (See Carr, at p. 484 [trial court's admonition to the jury to ignore comment that may have constituted misconduct under Griffin cured any error]; People v. Sandoval (1992) 4 Cal.4th 155, 184-185 [prompt admonition to jury sufficient to alleviate Griffin concerns]; People v. Vargas (1973) 9 Cal.3d 470, 479 [Griffin error harmless where remark was brief, mild and indirect and followed by prompt admonition]; see also People v. Caldwell (2013) 212 Cal.App.4th 1262, 1274, disapproved on another ground by People v. Rodriguez (2020) 9 Cal.5th 474, 485 [presuming the jury followed the trial court's curative instruction given immediately after prosecutor's Griffin error and thus finding error harmless].) Even though the prosecutor's comments crossed the line into Griffin territory, any prejudice was (on this record) dispelled.
We note "[o]ur Supreme Court has held most indirect Griffin error to be harmless" even in the absence of a curing instruction. (People v. Denard (2015) 242 Cal.App.4th 1012, 1022; see, e.g., Bloom, supra, 12 Cal.5th at p. 1055 [finding Griffin error did not prejudice defendant where prosecutor's comment "was brief and did not overtly call attention to [defendant']s failure to take the stand"]; but see Griffin, supra, 380 U.S. at p. 612 [finding error was prejudicial where both the prosecutor and the court directly informed the jury they could take into consideration the defendant's failure to testify in deciding his guilt].)
V. Prosecutorial Misconduct
Appellant also contends that by arguing facts not in evidence, the prosecutor engaged in prejudicial misconduct, necessitating reversal. Although the prosecutor did commit misconduct, we do not find the error prejudicial.
A. Underlying Facts
As previously indicated (see section II, ante), during opening statements, defense counsel told the jury that "most of the[] allegations the evidence will indicate are not proven. For example, there will be no medical evidence whatsoever." During closing argument, defense counsel stated: "But remember what Lucio H[.] said. He said, my daughters, after all this, they went to the doctor. [¶] . . . [¶] They went to the doctor, ladies and gentlemen. We have no evidence of any of that."
In her rebuttal argument, the prosecutor countered: "I want to also talk about what . . . the defense attorney said about why didn 't you hear from any medical personnel in this case. I will tell you something, ladies and gentlemen. If this trial were to have occurred 34 years ago, I guarantee that this trial would have been very, very different.... You would have heard from doctors."
The prosecutor subsequently argued: "So for the defense to argue that is disingenuous. And for the defense to use it as a shield to say, oh, well, the prosecution didn't bring in the doctors when they know that the doctors are dead or cannot be located." Defense counsel interjected an objection for "assuming facts not in evidence," which the trial court sustained. The prosecutor finished her statement, "it's just not fair to the prosecution." The court then ordered the prosecutor's remarks stricken. Defense counsel sought no admonishments to the jury on the issue.
Although appellant repeatedly asserts that the prosecutor's remark - that the physician had since passed away-was a false statement, the record reflects that defense counsel had previously informed the court that the doctor who performed the SART examination on Angelina was deceased.
B. Relevant Legal Principles
A "prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record." (People v. Frye (1998) 18 Cal.4th 894, 971, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390.) "'A prosecutor's conduct violates a defendant's constitutional rights when the behavior comprises a pattern of conduct so egregious that it infects "'the trial with unfairness as to make the resulting conviction a denial of due process.'" (People v. Hamilton (2009) 45 Cal.4th 863, 920.) Even if the behavior does not reach that level of egregiousness, it may still violate California law if it involves the "'use of "deceptive or reprehensible methods" when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted.'" (People v. Dykes (2009) 46 Cal.4th 731, 760.)
C. Analysis
Although appellant is correct (and the Attorney General concedes) that the prosecutor's reference to facts not in evidence constituted misconduct (People v. Kirkes (1952) 39 Cal.2d 719, 724), the error here was cured when the trial court struck that portion of the prosecutor's argument. (See People v. McNally (2015) 236 Cal.App.4th 1419, 1428-1429 ["'it is axiomatic the prejudicial effect of . . . comments may be corrected by judicial admonishment; absent evidence to the contrary the error is deemed cured'"]; see also People v. Riggs (2008) 44 Cal.4th 248, 299 [court's admonishment to jury to disregard any mention of objectionable material "was adequate to eliminate any possible prejudice because we assume the jury followed the admonishment"].)
Appellant insists the prosecutor's remark "concerned key facts, namely, the dearth of any corroborative physical evidence supporting the claimed molestations." However, the prosecutor never suggested that doctors could have provided corroborative (or inculpatory) evidence had they been available. Indeed, the prosecution's expert, Nurse Wilkinson, testified it was rare for a virgin to sustain injuries or bleed as a result of sexual penetration. Thus, the prosecutor's statement, at most, countered the defense's misleading suggestion that the girls were never examined by a physician after they reported the abuse. Particularly given that the comment was struck by the trial court, we cannot conclude that the prosecutor's comment infected the trial with unfairness so as to make the conviction a denial of due process, or that it was reasonably probable the result would have been more favorable to appellant without the remark. (See People v. Flores (2020) 9 Cal.5th 371, 403.)
To the extent appellant seeks to combine any perceived prejudice from his assertions of Griffin error and prosecutorial misconduct, our conclusion remains the same. (Cf. People v. Samayoa (1997) 15 Cal.4th 795, 844 [alleged instances of prosecutorial misconduct did not require reversal "whether considered singly or together"]; People v. Bell (1989) 49 Cal.3d 502, 534 [considering "the cumulative impact of the several instances of prosecutorial misconduct" before finding such impact harmless].)
VI. Resentencing in Light of AB 124
On October 28, 2021, the trial court sentenced appellant on count 2, the base term, to the middle term of six years. Effective January 1, 2022, AB 124 amended section 1170 in several ways. Among other things, it provides that that the court shall order the imposition of the lower term if the defendant was under the age of 26 years at the time of the offense, unless the aggravating circumstances outweigh the mitigating circumstances such that imposition of the lower term would be contrary to the interests of justice. (Stats. 2021, ch. 695, § 5; §§ 1170, subd. (b)(6)(B); 1016.7.) As such, AB 124 "made a low-term sentence presumptively appropriate" when a defendant is under 26 years of age at the time of the offense. (People v. Gerson (2022) 80 Cal.App.5th 1067, 1095; § 1170, subd. (b)(6)(B).)
The parties agree, as do we, that the provisions of AB 124 identified above apply retroactively to appellant's case. (People v. Gerson, supra, 80 Cal.App.5th at p. 1095; People v. Banner (2022) 77 Cal.App.5th 226, 240.)
Respondent further concedes that the case must be remanded for resentencing to allow the trial court to consider the new statutory provisions. We accept respondent's concession. A remand for resentencing would not be an idle act because the trial court rejected the prosecution's request to impose the high term in this case and imposed the middle term instead. (See People v. Banner, supra, 77 Cal.App.5th at p. 242 ["The record here does not make it clear the court would have selected the middle term when pronouncing judgment had Assembly Bill 124 been in effect at the time"]; People v. Flores (2022) 73 Cal.App.5th 1032, 1039 [noting § 1170 does not require imposition of low term in every case in which the defendant was under age 26, but merely establishes a presumption in favor of such a term unless contrary to the interests of justice; as such, resentencing for consideration of new provisions is the appropriate remedy].)
Accordingly, we remand this matter to the trial court to apply the newly amended provisions of section 1170.
VII. Fines and Fees
At sentencing, the trial court imposed the following fines and assessments: a $300 restitution fine pursuant to section 1202.4, subdivision (b); a $300 suspended parole revocation fine pursuant to section 1202.45; a $280 court operations assessment ($40 per count) pursuant to section 1465.8; a $210 conviction assessment ($30 per count) pursuant to Government Code section 70373; and a "$300 sexual offender fine [pursuant to § 290.3], plus penalty assessments . . . as to each count."
The abstract of judgment incorrectly reflects this amount as "$120."
In enacting AB 1869 on September 18, 2020, and AB 177 on September 23, 2021, the Legislature sought to eliminate the range of administrative fees that agencies and courts are authorized to impose to fund elements of the criminal legal system and sought to eliminate all outstanding debt incurred as a result of the imposition of administrative fees. (Stats. 2020, ch. 92, § 2; Stats. 2021, ch. 257, § 2.)
The passage of AB 1869 and AB 177 resulted in the enactment of section 1465.9, which now provides as follows:
"(a) The balance of any court-imposed costs pursuant to Section 987.4, subdivision (a) of Section 987.5, Sections 987.8, 1203, 1203.1e, 1203.016, 1203.018, 1203.1b, 1208.2, 1210.15, 1463.07, 3010.8, 4024.2, and 6266, as those sections read on June 30, 2021, shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.
"(b) On and after January 1, 2022 the balance of any court-imposed costs pursuant to Section 1001.15, 1001.16, 1001.90, 1202.4, 1203.1, 1203.1ab, 1203.1c, 1203.1m, 1203.4a, 1203.9, 1205, 1214.5, 2085.5, 2085.6, or 2085.7, as those sections read on December 31, 2021, shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.
"(c) On and after July 1, 2022, the balance of any court-imposed civil assessments pursuant to Section 1214.1 imposed prior to that date shall be unenforceable and uncollectible and any portion of a judgment imposing those assessments shall be vacated." (§ 1465.9, subd. (b); see People v. Qualkinbush (2022) 79 Cal.App.5th 879, 892-893; People v. Greeley (2021) 70 Cal.App.5th 609, 625.)
Appellant contends that any fines and fees imposed in contravention of AB 1869 and AB 177 must be stricken, and respondent agrees. However, it does not appear that the trial court imposed any costs or assessments targeted by section 1465.9. Indeed, neither side identifies any such fees while appellant simply argues that the trial court's oral pronouncement was ambiguous, because the court did not expressly cite to the accompanying statute for each fine or fee. However, both the minute order and abstract of judgment list each statute associated with the fines and fees imposed by the court.
Nevertheless, given that we are remanding this matter for resentencing-and in light of the interlocking nature of fines, fees, and the sentence imposed-the parties are free to raise any AB 1869 and AB 177-related concerns in the trial court. (See, e.g., People v. Rosas (2010) 191 Cal.App.4th 107, 117-121 [restitution and parole revocation fines are not a severable part of a judgment and are within scope of a remand for resentencing]; People v. Buycks (2018) 5 Cal.5th 857, 893 [explaining the full resentencing rule].) As relevant to this point, respondent states that, upon remand, it is not opposed to appellant raising a claim based on People v. Duenas (2019) 30 Cal.App.5th 1157 [defendant's inability to pay fines or fees].) Neither are we.
Respondent points out that former section 1202.4, subdivision (l) and former section 2085.5, subdivision (e)- repealed by AB 177-permitted a county's board of supervisors and the California Department of Corrections and Rehabilitation (CDCR) to charge an administrative fee in collecting the amount owed for a restitution fine. Respondent then states: “While the trial court did not impose such administrative fees here, respondent agrees that, in light of AB 1869 and AB 177, any outstanding administrative fees assessed in connection with appellant's restitution fine must be vacated.” However, neither party suggests that appellant has been subject to such administrative fees. (Cf. People v. Rodriguez (2021) 66 Cal.App.5th 749, 774-775 [stating trial court must order any administrative fee for collection of restitution fines at time of sentencing].)
We express no opinion on the merits of any such claim but note that our high court granted review in People v. Kopp (2019) 38 Cal.App.5th 47, 96 (Kopp), review granted Nov. 13, 2019, S257844, to address whether a trial court must consider a defendant's ability to pay before imposing fines, fees, or assessments, and if so, who bears the burden of proof on such a claim.
Finally, respondent points out two additional errors that require correction: (1) the $210 assessment imposed by the trial court pursuant to Government Code section 70373, is mistakenly reported as $120 in the abstract of judgment; and (2) appellant's sex offender fine must be vacated because the statute under which it was imposed, section 290.3, was enacted in 1988 (Stats. 1988, ch. 1134, § 1)-a year after appellant committed his crimes. We agree that both errors require correction and direct the trial court, upon resentencing, to modify the abstract of judgment accordingly. (See People v. Zackery (2007) 147 Cal.App.4th 380, 385 ["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. Voit (2011) 200 Cal.App.4th 1353, 1372 [reducing § 290.3 fine "to avoid being ex post facto"].)
DISPOSITION
The conviction is affirmed. The sentence is vacated and the matter is remanded for resentencing under the amended version of section 1170, subdivision (b). The sex offender fine imposed pursuant to section 290.3 is vacated under ex post facto principles. The abstract of judgment should also be amended to correctly reflect the total Government Code section 70373 conviction assessment as $210.
We concur: CURREY, Acting P. J., COLLINS, J.
[*]Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.