Opinion
B293734
03-10-2020
THE PEOPLE, Plaintiff and Respondent, v. JORGE ALBERTO MENDOZA, Defendant and Appellant.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Joseph P. Lee and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Los Angeles County Super. Ct. No. PA088439 APPEAL from a judgment of the Superior Court of Los Angeles County, Hayden Zacky, Judge. Affirmed as modified. Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Joseph P. Lee and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
A jury convicted Jorge Alberto Mendoza of three counts of lewd acts with a child under 14 years of age and one count of continuous sexual abuse. We affirm the judgment as modified.
BACKGROUND
An information filed May 10, 2018 charged Mendoza with two counts of committing a lewd act upon Jessica S., a child under 14, in violation of Penal Code section 288, subdivision (a), on or about January 1, 2001 (count 1) and on or about May 31, 2002 (count 2); continuous sexual abuse of Jessica S. on or between January 2, 2001 and May 30, 2002, in violation of section 288.5, subdivision (a) (count 3); and one count of committing a lewd act upon Athena F., a child under 14, in violation of section 288, subdivision (a), on or between August 1, 2003 and March 21, 2004 (count 4).
Subsequent references are to the Penal Code unless otherwise indicated.
Mendoza pleaded not guilty. A jury found him guilty on all four counts. The trial court sentenced him to 30 years to life plus twelve years in state prison, and ordered him to pay fines, fees, and restitution.
1. Prosecution evidence
Both Jessica and Athena testified that Mendoza sexually abused them while he was in a relationship with their mothers, and while they lived together as family.
a. Mendoza's abuse of Jessica (counts 1-3)
Jessica, born in 1993, was 25 at the time of trial. Jessica's mother Shari D. met Mendoza at Modern Technology College, where they both worked, and they began dating when Jessica was eight or nine. A few months later they moved in together, living briefly in Tujunga and then moving to Canyon Country. Mendoza's 19-year-old daughter Mercedes lived with them off and on.
Jessica testified that when she was eight or nine years old and the family lived in Canyon Country, her "stepfather" Mendoza began to insert his fingers into her vagina about once a week. This went on for about a year. At night while Shari D. was asleep in the upstairs bedroom she shared with Mendoza, Mendoza would cross the hall to Jessica's bedroom, slide down her underwear, and put more than one finger, sometimes including his thumb, deep into her vagina. She also remembered Mendoza used his tongue on her vagina. More than once she told him to stop, but "I didn't shout." Mendoza never stopped. When Jessica came home from school, she sometimes saw Mendoza sprawled on the living room couch, naked and watching pornography. During the year that Mendoza abused Jessica, she told no one. She was scared that nobody, including her mother, would believe her, and she was embarrassed to tell her father.
Finally, a few days after Mendoza again touched Jessica's vagina, she confided in a close girlfriend who lived in the same apartment complex. Her friend's mother contacted the police, who came to Jessica's home that night, questioned her, and took her to the hospital for a medical exam.
Jessica's mother Shari D. testified she and Mendoza were in bed when Mercedes came upstairs from her downstairs bedroom to tell them the police were at the door. Shari D. roused Jessica from bed; Jessica was reluctant to talk to the police. After the police interview, Shari D. took Jessica to the hospital, and then to Jessica's father's house. Shari D. moved a week or two later, and ended her relationship with Mendoza. Jessica never wanted to talk about the abuse, and Shari D. did not want to force her.
On June 2, 2002, Los Angeles County Sheriff's Department Deputy Manuel Plasencia responded to the call from Jessica's friend's mother, who told him that something had happened to Jessica at home related to her "stepfather." He went to Jessica's home, interviewed Jessica, and arrested Mendoza. Jessica told Deputy Plasencia that Mendoza had been putting his finger into her vagina for about a year. Two days earlier, on May 31, 2002, Mendoza came into her bedroom around midnight, woke her up, and removed her bed covers and her panties. Mendoza, who was totally nude, spread Jessica's legs apart and put his right finger inside her vagina, sliding his hand in and out, and grabbing his penis with his left hand. After continuing for several minutes, Mendoza licked her vagina, and went back to his bedroom across the hall. Jessica did not tell Shari D. because she was afraid her mother would blame her, but she told her friend and her friend's mother.
The detective who investigated the case interviewed Jessica, Shari D., and Mendoza's daughter Mercedes. Jessica told the detective that Mendoza came into her bedroom, put his fingers in her vagina and licked her vagina every night for the last year and a half, and she didn't like him. Shari D. told the detective Jessica had been acting out ever since she told Jessica she was going to marry Mendoza. The detective took the evidence to the district attorney, but no charges were filed.
Marilyn Stotts was a sexual assault nurse examiner who had examined children since 1998. She had been trained in sexual assault examination, did case reviews, and mentored and taught new examiners. Early on the morning of June 3, 2002, Stotts first interviewed Shari D., who told her Mendoza had lived with her for a year and a half to two years. Stotts then examined nine-year-old Jessica. Jessica told her Mendoza had penetrated her vagina with his fingers and orally copulated her almost every night, and the abuse was painful. Jessica had seen, but not touched, Mendoza's penis, and had been exposed to pornography. Jessica said Mendoza had lived with them for two years, and the abuse began a month after he moved in. She had confided in her friend thinking her friend's mother could help her.
Stotts found no evidence of injury. She did not take any swabs because the last abuse had been two days earlier, and Jessica had bathed. The lack of injury was not unusual. Many kinds of sexual abuse (including touching and oral copulation) did not leave injuries. In Stott's experience, almost all the children presenting with allegations of sexual abuse showed no injury, consistent with a journal article stating the statistic was 97 to 98 percent. Jessica said she had felt pain, but reported no bleeding.
Mendoza continued to work at the medical college. Shari D. knew Mendoza had started to date a student, Andrya F., but she never told her about the allegations that Mendoza abused Jessica.
b. Mendoza's abuse of Athena (count 4)
Mendoza was Andrya F.'s teacher, and she started dating him in 2002. From August 2003 to March 2004, Mendoza lived with Andrya F., her four-year-old daughter Athena, and her three sons, in an apartment in Newhall. The bedroom Andrya F. shared with Mendoza was in the back, and Athena shared another bedroom with one of her brothers. Mendoza was sweet to Athena, doing her hair and dressing her.
After they had lived together for two or three months, Mendoza told Andrya F. his relationship with Shari D. had ended when Jessica falsely accused him of sexual misconduct, without giving details. Mendoza denied any abuse, and said he was going to sue the sheriff's department.
In March 2004, Mendoza suddenly moved out, telling Andrya F. he was losing his sight and needed to live where he could get around more easily. Later, he repeatedly emailed and called her, asking her to rekindle the relationship. She filed for a restraining order but never was able to serve Mendoza.
In October 2016, Athena told her mother she was having problems with intimacy, and she had remembered that Mendoza had touched her inappropriately. Andrya F. immediately took Athena to the police station.
The parties stipulated to a September 28, 2016 police report, stating Andrya told sheriff's deputies her daughter Athena was molested by Mendoza, her former boyfriend, when Athena was five years old, and reporting details consistent with Athena's testimony.
Athena was 20 at the time of trial. One day when she was five, Mendoza came into her bedroom. Andrya F., who worked nights, was asleep, and Mendoza told Athena to go lie in bed with her mother, who missed her. Athena, wearing underpants and pajamas, lay down next to the sleeping Andrya F. Mendoza lay down next to Athena. He rolled Athena on her back and started to touch her, putting his hand down her underpants, touching her vagina, and inserting a finger. Mendoza continued for a few minutes until Athena pushed his hand away. She was confused, and it hurt, but she was scared and stayed quiet. Mendoza told her not to tell anybody, and she left the bed and went back into her own room. Another time, Mendoza took her into a room, pulled down his pants, and made her put her hand on his penis. He again told Athena not to tell.
Athena did not meet Jessica until after the charges were filed, and did not know until 2016 about the prior allegations against Mendoza.
c. Expert testimony
Joyce Medley, a marriage and family therapist specializing in the treatment of sexual assault, testified as an expert on child sexual abuse accommodation syndrome (CSAAS). She had not read the police reports and had not spoken with Jessica or Athena. Medley described CSAAS as five behaviors often exhibited by a child victim of sexual abuse: secrecy, helplessness, entrapment and accommodation, delayed or unconvincing disclosure, and retraction. A victim would usually exhibit at least some of the five, and younger victims often exhibited secrecy and a sense of helplessness. When an abuser lived in the home, the child faced constant exposure and the fear of reprisal. Saying "no," and having the abuse continue, contributed to the child's feeling of helplessness. Children rarely reported the sexual abuse immediately, and they often disassociated during the abuse, resulting in a delay in remembering it. While CSAAS was not a diagnosis, it helped to explain why child victims behave in ways adults find hard to understand.
2. Defense evidence
Mendoza testified that while he lived with Jessica and Shari D., he taught from 8:30 a.m. to 1:30 p.m. and then from 5:30 p.m. to 10:45 p.m. After school, Jessica would go to her father's apartment, and her mother would pick her up after she got off work at 5:00 p.m. If Jessica was home in the afternoon, Mendoza's daughter Mercedes would be there so Jessica would not be alone when he left to teach his evening classes. He gave up driving in 2002 because he was losing his vision. After he lost his sight and could not drive, he would stay at work between the morning and afternoon classes, and Shari D. drove him back and forth.
Mendoza filled a parental role with Jessica, who had a sharp tongue and a disrespect for authority, and he regularly put her on time-out. After Shari D. told Jessica she and Mendoza planned to marry, Jessica's behavior changed drastically. She talked back and mouthed off to her mother, and they learned from her teacher that she did the same at school. He never touched her inappropriately. After Jessica alleged he abused her, Mendoza broke up with Shari D. and moved out.
Mendoza then moved into his own apartment in Pasadena and began dating his former student Andrya F. He moved in with her and her children in July 2003. Andrya F. drove him back and forth to the college, and she was the only person he told about Jessica's accusations. Soon after moving in with Andrya F., he decided to end the relationship, and he moved out after six months. He never invited Athena into the master bedroom. Andrya F. was still a student, and did not work nights.
Expert testimony
Gynecologist Dr. Charles Dubin had never treated child victims of sexual abuse, and prepubescent girls were less than one percent of his patients. Dr. Dubin reviewed Jessica's 2002 medical report. He believed that if someone put four fingers inside the vagina of a pre-pubescent girl, it would be painful and would tear the hymen. He agreed it was general knowledge that most sexually abused children do not show physical injury, and small scrapes or tears near the hymen heal very quickly.
3. Verdict and sentence
The jury found Mendoza guilty on all four counts, and found true the allegations that he committed the offenses before the victims' 18th birthdays, the prosecution began before the victims' 28th birthdays (§ 801.1, subd. (a)), and his convictions involved more than one victim. (§ 667.61, subds. (a), (e).) The trial court sentenced Mendoza to consecutive terms of 15 years to life on counts 1 and 4, a concurrent term of 15 years to life on count 2, and 12 years on count 3. The court granted presentence custody credit, and ordered Mendoza to pay a $1,000 restitution fine (§ 1202.4, subd. (b)), a $160 court operations assessment (§ 1465.8), a $120 criminal conviction assessment (Gov. Code, § 70373), a $400 sex offender fine (§ 290.3), and (in the minute order and abstract of judgment) a $1,160 penalty assessment. Mendoza filed a timely notice of appeal.
DISCUSSION
1. The failure to object to expert testimony about CSAAS was not ineffective assistance of counsel
Mendoza argues the court erred when it allowed Medley to testify about CSAAS. Mendoza did not object, so he has forfeited the issue on appeal. (Evid. Code, § 353; People v. Zapien (1993) 4 Cal.4th 929, 979-980.)
His alternative argument of ineffective assistance fails. Mendoza has not shown that counsel's representation fell below an objective standard of reasonableness, or that counsel's deficient performance prejudiced him, because an objection would have been meritless, given the evidence at trial. "Failure to raise a meritless objection is not ineffective assistance of counsel." (People v. Bradley (2012) 208 Cal.App.4th 64, 90.)
Expert testimony about CSAAS must be handled carefully by the trial court, which may admit it not to prove that a molestation occurred, but instead to "disabuse[e] a jury of misconceptions it might hold about how a child reacts to a molestation." (People v. Patino (1994) 26 Cal.App.4th 1737, 1744.) "Admission of evidence such as CSAAS is not error merely because it was introduced as part of the prosecution's case-in-chief rather than in rebuttal. The testimony is pertinent and admissible if an issue has been raised as to the victim's credibility," including why the victim did not report immediately. (Id. at p. 1745.)
Mendoza argues counsel should have objected that Medley's testimony was not relevant, because his defense did not focus on the victims' delay in disclosing the abuse. But Mendoza's counsel asked Jessica whether there was "a lot of friction" between Mendoza and Jessica's mother "towards the end when you decided to report this," putting in issue the timing of her disclosure of the sexual abuse. Mendoza's counsel asked her if she "tolerated this for anywhere from eight months to a year," asked her why she didn't tell her father, and asked her whether she told different people different stories. Defense counsel also asked Jessica whether she had been taught at school about inappropriate touching and whether her mother talked to her about it, implying that was inconsistent with her being "shy about this situation." Medley's expert testimony that child victims hide abuse and feel helpless, especially when the perpetrator lives in the child's home, was relevant to explain why Jessica did not disclose the continuing sexual abuse until she confided in her friend.
Mendoza's counsel also put Athena's belated memory at issue. On cross-examination, counsel asked Athena whether she had a relationship with her maternal grandmother when she was five and being sexually abused, and whether she ever talked to her grandmother about the abuse. In closing, counsel asked why what was happening "didn't affect [Athena] until years later," and attacked her credibility because she did not tell her mother about the sexual abuse when Mendoza left: "Nothing. 13 years later, reports only once but never again." He argued that neither victim promptly reported the abuse: "None reported even though it went on for a very long time." Medley testified that child victims often disassociate during the abuse, resulting in a delay in remembering it. This was directly relevant to Athena's testimony that she first remembered the abuse in 2016 when she told her mother, a delay that Mendoza used to impugn Athena's credibility.
Mendoza has not shown that counsel was deficient in failing to object to the relevant expert testimony. Nor has he shown he was prejudiced by counsel's failure to object, as the trial court properly limited the jury's use of the testimony. Using CALCRIM No. 1193, the trial court instructed the jury that Medley's testimony about CSAAS was not evidence that the defendant committed any of the charged crimes, and the testimony could be used only "in deciding whether or not Jessica and Athena's conduct was not inconsistent with the conduct of someone who has been molested in evaluating the believability of her testimony." "A reasonable juror would understand CALCRIM No. 1193 to mean that the jury can use [the expert's] testimony to conclude that [the victim's] behavior does not mean she lied when she said she was abused. The jury also would understand it cannot use [the expert's] testimony to conclude [the victim] was, in fact, molested. The CSAAS evidence simply neutralizes the victim's apparently self-impeaching behavior." (People v. Gonzales (2017) 16 Cal.App.5th 494, 504.)
Mendoza also argues Stotts's brief reference to a journal article was inadmissible hearsay. As above, he did not object to the statement and therefore has forfeited this claim. And counsel's failure to object was not ineffective assistance. Stotts testified that in her 20-year experience, almost all children coming in with a history of sexual abuse did not show injury. She then made one reference to a journal article reporting a statistic consistent with her experience. Counsel reasonably could have chosen not to highlight the testimony by objecting, and "[t]actical errors are generally not deemed reversible." (People v. Bradley, supra, 208 Cal.App.4th at p. 87.) Mendoza also has not shown he was prejudiced, as even his own expert, Dr. Dubin, testified that it was general knowledge that most sexually abused children do not present with any physical injuries.
2. The instructions as given did not mislead the jury
Mendoza argues that because count 1 alleged a lewd act committed on Jessica "[o]n or about January 1, 2001," and count 3 alleged his continuous sexual abuse of Jessica "[o]n or between January 2, 2001 and May 30, 2002," the court was required to instruct the jury that he could not be convicted of both counts based on the same act, or at least that the lewd act alleged in count 1 was not included in the period of continuous abuse alleged in count 3.
Under section 288.5, subdivision (a), a person who lives in the same home with a minor child and over a period of at least three months, "engages in . . . three or more acts of lewd or lascivious contact, as defined in section 288, with a child under the age of 14 years . . . is guilty of the offense of continuous sexual abuse of a child." Subdivision (c) states: "No other . . . lewd or lascivious acts, as defined in section 288, involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative."
None of the charges against Mendoza named an offense occurring on a specific date during the period alleged as continuous sexual abuse. But Mendoza argues the jury could have found he was guilty of a lewd act on or about January 1, 2001 (count 1) which occurred after January 1, 2001, and therefore fell within the period of continuous abuse on or between January 2, 2001 and May 30, 2002 (count 3). If the jury also used that lewd act as one of the three or more required to convict him of continuing sexual abuse, the jury would have convicted him twice for the same act. Mendoza also argues that the court compounded the error by giving CALCRIM No. 207, which told the jury the prosecution needed to prove only that the crime took place reasonably close to the dates in the information.
Mendoza did not request an instruction warning the jury not to use the lewd act charged in count 1 as one of the acts of continuing sexual abuse in count 3. Nor did he object to the giving of CALCRIM No. 207. In People v. Rojas (2015) 237 Cal.App.4th 1298, 1302-1304, the defendant was charged with sexual penetration or oral copulation of a child under 10 years on or about a certain date (count 1), and continuing sexual abuse of the child (count 3) beginning four years earlier and ending on the day before the offense charged in count 1. On appeal, the defendant argued that by giving CALCRIM No. 207, the court permitted the jury to convict him twice for the same criminal act. As here, however, the defendant did not object or ask for different language. " 'A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' [Citation.] CALCRIM No. 207 accurately states the general rule that when a crime is alleged to have occurred 'on or about' a certain date, it is not necessary for the prosecution to prove the offense was committed on that precise date, but only that it happened reasonably close to that date. [Citations.] Rojas could have asked for modification or clarification of the instruction he now challenges, and his failure to do so triggered the forfeiture rule. We thus review the alleged instructional error only to determine if his substantial rights were affected (§ 1259), i.e., whether the giving of CALCRIM No. 207 resulted in a miscarriage of justice." (Rojas, at p. 1304.) A miscarriage of justice occurs when, after examining the entire cause, including the evidence, it is reasonably probable a result more favorable to the appealing party would have been reached absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836.)
No miscarriage of justice occurred here. The evidence included Jessica's testimony that Mendoza inserted his fingers into her vagina about once a week for about a year, which would total at least more than fifty lewd acts during the seventeen-month period charged for continuous sexual abuse. Jessica told Deputy Plasencia the abuse went on for a year. She told the detective the abuse occurred every night for a year and a half, and she told Stotts the abuse occurred almost every night. The prosecutor characterized count 1 as the first act of abuse, and the continuous sexual abuse as "everything in between" that first act and the last act of abuse. It is not reasonably probable that the jury used the single act alleged in count 1, which alleged a lewd act occurring on or about the day before the beginning of the period of continuous abuse alleged in count 3, as one of the more than three acts required by section 288.5. All the evidence showed Mendoza abused Jessica at least fifty times for a period of at least a year. (See People v. Goldman (2014) 225 Cal.App.4th 950, 958.) In addition, the court gave an instruction that all the jurors must agree that Mendoza committed three or more acts over a period of at least three months, "but you do not all need to agree on which three acts were committed."
The prosecutor characterized count 1 as the first act of abuse, and the continuous sexual abuse as "everything in between" that first act and the last act of abuse.
Mendoza points to questions the jury sent during deliberations, asking for readbacks of "Jessica's testimony about the frequency of the accused lewd acts," and "Deputy Plasencia's record of Jessica's time frame of events and the same of [the detective]." These questions show the jury's proper focus on the frequency and duration of Mendoza's continued sexual abuse of Jessica. The questions do not justify an inference that the jury was concerned about the precise date of a single act of abuse.
For these reasons, we reject Mendoza's related argument that count 1 must be reversed as an impermissible dual conviction.
3. Sufficient evidence supports the conviction on count 1
Mendoza argues insufficient evidence supports his conviction on count 1 for a lewd act committed on Jessica "[o]n or about January 1, 2001," because her testimony did not specifically show that any of the abuse she described happened on or about January 1, 2001. We examine the entire record, viewing the evidence in the light most favorable to the judgment; conflicts do not justify reversal. (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
As we explained above, the jury was properly instructed that when the information alleges a crime occurred "on or about" a certain date, the prosecution does not need to prove the offense was committed on that precise date, but only that it happened reasonably close to that date. At trial, Jessica testified the abuse occurred in the Canyon Country apartment. She repeatedly testified she had trouble remembering the time frame of events that had happened 14 years earlier. Shari D. testified it was hard for her to remember dates, but her relationship with Mendoza lasted "[l]ess than two years[, m]aybe a year and a half." Asked whether January 1, 2001 to May 31, 2002 sounded about right, she said: "2000—somewhere between 2000 and 2002, yeah." Shari D. could not remember how long Mendoza lived in the Canyon Country apartment (where Jessica testified the abuse occurred). Deputy Plasencia testified Jessica told him on June 2, 2002 the abuse had gone on "[f]or approximately a year," but the investigating detective testified Jessica said Mendoza's nightly abuse "had been happening for the past year and a half." Stotts (who examined Jessica early the next morning) testified Jessica told her Mendoza began abusing her a month after he moved in. Stotts also testified Shari D. told her Mendoza had lived with them for a year and a half to two years, and Jessica told Stotts he moved in two years earlier.
This is substantial evidence to support a jury finding that Mendoza abused Jessica on or about January 1, 2001, seventeen months before the police came to the Canyon Country apartment on June 2, 2002. Jessica, whose memory about the timing of events was fuzzy at the time of trial 14 years later, told the investigating detective Mendoza had abused her for a year and a half, a period including the beginning of January 2001, and told the nurse who examined her Mendoza had lived with them for two years and the abuse began a month after he moved in. "While conflicting to a degree, there was sufficient evidence to support the verdict." (People v. Wood (1963) 214 Cal.App.2d 298, 303.) And " '[t]he law is clear that, when it is charged that an offense was committed "on or about" a named date, the exact date need not be proved unless the time "is a material ingredient in the offense" (Pen. Code, § 955), and the evidence is not insufficient merely because it shows that the offense was committed on another date.' " (People v. Garcia (2016) 247 Cal.App.4th 1013, 1022.) Mendoza does not argue time was a material ingredient of the offense charged in count 1.
4. The sex offender fine of $400 was unauthorized and the penalty assessment is incorrect
The trial court orally imposed a "$400 sexual offender fine" at the sentencing hearing. The court made no reference to a penalty assessment in its oral pronouncement. The minute order and the abstract of judgment ordered Mendoza to pay a $400 sex offender fine under section 290.3, and a penalty assessment of $1,160. Neither the minute order nor the abstract of judgment identified any statutory basis for the penalty assessment, and neither described the components of the $1,160 total amount. Mendoza does not challenge the imposition of the $400 sex offender fine, but argues we must strike the $1,160 assessment because it was not included in the court's oral pronouncement.
The oral pronouncement of a sentence constitutes the judgment in a criminal case. (People v. Mesa (1975) 14 Cal.3d 466, 471.) Penalty assessments, which are mandatory and " 'parasitic to an underlying fine' " (including the sex offender fine imposed here), must be specified in the court's oral pronouncement of judgment, and the abstract of judgment must identify the amount and statutory basis for each component of the overall penalty assessment. (People v. Hamed (2013) 221 Cal.App.4th 928, 935, 937 (Hamed); People v. Johnson (2015) 234 Cal.App.4th 1432, 1459; People v. High (2004) 119 Cal.App.4th 1192, 1200.) An abstract of judgment does not control if it is different from the trial court's judgment, and it may not add to or modify the judgment it summarizes. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
a. The sex offender fine
The court orally imposed a sex offender fine of $400. Section 290.3, subdivision (a) as now in effect requires the trial court to impose a fine of $300 for a defendant's first conviction of sex offenses listed in section 290, subdivision (c), and $500 for each subsequent offense, "unless the court determines that the defendant does not have the ability to pay the fine." But when Mendoza abused Jessica and Athena in 2001 through 2004, section 290.3, subdivision (a) required "a fine of two hundred dollars ($200) upon the first conviction or a fine of three hundred dollars ($300) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine," for any person convicted of any offense specified in subdivision (a) of section 290 as then in effect. (See former § 290.3, subd. (a), as amended by Stats. 1995, ch. 91, § 121.) The amount of the fine must be calculated under the statute as in effect on the date of the offense. (People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1248.) The fine applies per count, rather than per case, and each qualifying conviction in a single proceeding is a separate conviction for which a fine may be imposed. (People v. O'Neal (2004) 122 Cal.App.4th 817, 822.)
Mendoza was convicted of three counts of lewd act on a child under section 288, subdivision (a), and one count of continuous sexual abuse under section 288.5, subdivision (a). Both statutes were listed in former section 290, subdivision (a), and are now listed in section 290, subdivision (c). The court therefore could have imposed a $200 fine on count 1, and a $300 fine on each of the three remaining convictions, for a total fine of $1100. "[T]he language of section 290.3, subdivision (a) is not amenable to an interpretation granting a trial court discretion to impose a fine of less than the prescribed amount if it determines that the defendant does not have the ability to pay the full amount of the fine." (People v. Walz (2008) 160 Cal.App.4th 1364, 1369.) The trial court must impose the amount prescribed by the statute, or impose no fine at all if the defendant does not have the ability to pay the fine. (Id. at p. 1370.) If the court determines that the defendant can pay a fine on fewer than all of several convictions, it may impose the correct amount on one or more convictions, and no fines on the remaining convictions. (Id. at p. 1371.) In People v. Walz, the court imposed a fine on a first conviction, and imposed nothing on the other two convictions. On a silent record, the court presumed the trial court determined the defendant did not have the ability to pay the two additional fines. (Ibid.)
The trial court orally imposed a $200 fine, but the minute order and abstract of judgment imposed a $300 fine (the amount specified by the applicable version of section 290.3). Because the oral pronouncement governed, the sentence was unauthorized. The court of appeal remanded for a determination whether to impose one sex offender fine of $300, with mandatory penalty assessments and surcharges. (People v. Walz, supra, 160 Cal.App.4th at pp. 1370-1373.)
Here, former section 290.3 authorized a $200 fine on Mendoza's first conviction, and $300 for each subsequent conviction. The authorized fine for a single offense therefore was $200. We presume the court determined Mendoza had the ability to pay no more than $400, and he therefore did not have the ability to pay $500 or more, as would be required to pay one or more of the three additional fines.
b. The penalty assessments
The sex offender fine is subject to additional mandatory assessments, penalties, and a surcharge, often collectively called penalty assessments. (People v. Sharret (2011) 191 Cal.App.4th 859, 864.) The abstract of judgment must separately list the amount and statutory basis for each base fine and penalty assessment. (Hamed, supra, 221 Cal.App.4th at p. 940.) Penalty assessments cannot be imposed in violation of ex post facto laws, and must be determined as of the date of the offense. (People v. Voit (2011) 200 Cal.App.4th 1353, 1374-1375; Hamed, at p. 939.)
The authorized section 290.3 base fine was $200, and that amount is subject to the following penalty assessments as in effect at the time of the offenses: (1) a 100 percent state penalty assessment (former § 1464, subd. (a), as amended by Stats. 2000, ch. 248, § 1), equal to $200; (2) a 20 percent state criminal surcharge (former § 1465.7, subd. (a), as amended by Stats. 2003, ch. 365, § 4), equal to $40; (3) a 70 percent county assessment (former Gov. Code, § 76000, subd. (a), as amended by Stats. 2003, ch. 592, § 24), equal to $140; and (4) a 50 percent court construction penalty (former Gov. Code, § 70372, subd. (a), Stats. 2002, ch. 1082, § 4), equal to $100. The correct total penalty assessment amount is $480.
The court imposed an unauthorized fine amount and failed to specify how it arrived at the penalty assessments. "Since we may correct the error on appeal, there is no need to remand this matter to the sentencing court to orally pronounce the correct judgment. We will therefore direct the trial court clerk to prepare an amended abstract of judgment" including "the amounts of and statutory basis for the base fine and each of the penalty assessments that we order in this case." (Hamed, supra, 221 Cal.App.4th at p. 940.)
c. Mendoza has forfeited his Dueñas claim
The trial court also ordered Mendoza to pay a $1,000 state restitution fine under section 1202.4, subdivision (b) (while imposing and staying an identical parole revocation fine), a $40 court security fee under section 1465.8 on each count, and a $30 criminal assessment fine under Government Code section 70373 on each count. Mendoza did not object to any of these fines and fees.
On appeal, he first argues he cannot pay the restitution fine and assessments. We reject this argument. As Mendoza admits, no evidence in the record shows he does not have the ability to pay the restitution fine and the assessments.
Mendoza also argues we must remand for a hearing regarding his ability to pay under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). The California Supreme Court has granted review in People v. Kopp (2019) 38 Cal.App.5th 47, 96-97, review granted Nov. 13, 2019, S257844, and People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946, which disagreed with the analysis in Dueñas. (See People v. Aviles (2019) 39 Cal.App.5th 1055, 1073.)
However, unlike the defendant in Dueñas, Mendoza did not object to the imposition of the fines, fees, or assessments, or claim an inability to pay. Generally, a defendant who fails to object to a restitution fine based on inability to pay forfeits the issue on appeal. (People v. Avila (2009) 46 Cal.4th 680, 729.) We agree with our colleagues in Division Eight that this general rule applies to the restitution fine and the assessments. (People v. Bipialaka (2019) 34 Cal.App.5th 455, 464; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155; but see People v. Castellano (2019) 33 Cal.App.5th 485, 489 ). Other districts agree. (People v. Lowery (2020) 43 Cal.App.5th 1046, 1053-1054; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.) We therefore do not remand for an ability to pay hearing on the restitution fine, the court security fee, and the criminal assessment fine.
DISPOSITION
The judgment is modified to reduce the sex offender fine (former Pen. Code, § 290.3) to $200. In addition, defendant is ordered to pay the following penalty assessments: (1) a $200 state penalty assessment (former § 1464, subd. (a)); (2) a $40 state criminal surcharge (former § 1465.7, subd. (a)); (3) a $140 county assessment (former Gov. Code, § 76000, subd. (a)); and (4) a $100 court construction penalty (former Gov. Code, § 70372, subd. (a)). The total amount of penalty assessments on the sex offender fine is $480. In all other respects, the judgment is affirmed as modified.
The trial court shall issue an amended abstract of judgment to indicate the amount of and statutory basis for the sex offender fine and the amount of and statutory basis for each penalty assessment and surcharge as set forth above, and shall send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J. I concur:
EDMON, P. J. LAVIN, J., Concurring:
I concur in the judgment. I write separately because I disagree with the majority's suggestion that People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) was wrongly decided or foreseeable.
Ultimately, I agree with the majority that defendant forfeited his challenge to the restitution fine. Penal Code section 1202.4, subdivision (d) allows a court to consider a defendant's inability to pay if the restitution fine is more than the minimum fine of $300. (People v. Avila (2009) 46 Cal.4th 680, 729; § 1202.4, subds. (b)(1) & (d).) Defendant did not avail himself of this statutory remedy to challenge the imposition of the $1,000 restitution fine. Although defendant's sentencing occurred before Dueñas was decided, an objection to the $1,000 fine would not have been futile under governing law at the time of his sentencing hearing. (§ 1202.4, subds. (c) & (d); see also Avila, at p. 729.) By failing to object that he lacked the ability to pay the $1,000 restitution fine, defendant forfeited his challenge to that fine and to the much lower court operations and conviction assessments.
All undesignated statutory references are to the Penal Code.
As the majority explains, when a defendant is convicted of a sex crime listed in section 290, subdivision (c), the court must impose a fine under section 290.3 unless it "determines that the defendant does not have the ability to pay" it. (§ 290.3, subd. (a).) As applicable here, the fine was $200 for the first offense and $300 for each subsequent offense plus penalty assessments. (Stats. 1988, ch. 1134, § 1; People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1248-1249.) The fine applies per count rather than per case. (People v. O'Neal (2004) 122 Cal.App.4th 817, 822.) Thus, as defendant was convicted of four eligible sex offenses, the court was required to impose one $200 fine and three $300 fines, for a total of $1,100 plus penalty assessments.
As relevant here, "penalty assessments" includes the state surcharge.
Instead, the court imposed a single $400 sex offender fine under section 290.3 plus $1,160 in penalty assessments. On a silent record, the failure to impose all required sex offender fines implies a finding that the defendant lacks the ability to pay the fines the court did not impose. (People v. Stewart (2004) 117 Cal.App.4th 907, 911.) That is, by ordering defendant to pay $400 rather than $1,100, the court impliedly found that defendant could pay $400 in fines (plus penalty assessments) but could not pay more than that.
A defendant's ability to pay fines and fees is evaluated in light of his total financial obligations. (People v. Valenzuela, supra, 172 Cal.App.4th at p. 1249.) Total financial obligations include the conviction assessment (Gov. Code, § 70373), the operations assessment (§ 1465.8), the restitution fine (§ 1202.4), and victim restitution. (People v. Castellanos (2009) 175 Cal.App.4th 1524, 1531-1532.) I presume the court accounted for these obligations when it concluded defendant could pay a $400 fine and $1,160 in penalty assessments but could not pay the other required sex offender fines. (Ibid.) And, because the court concluded defendant had the ability to pay $1,560 more than the fine and fees he now challenges, it follows that the court found he had the ability to pay the challenged fine and fees as well.
As the court below has already made an ability to pay determination, there is no need to remand for the hearing defendant requests.
LAVIN, J.