Opinion
A155785
12-08-2021
THE PEOPLE, Plaintiff and Respondent, v. REMBER GENARO MOLINA, Defendant and Appellant.
NOT TO BE PUBLISHED.
San Mateo County Super. Ct. No. 17SF002494
POLLAK, P.J.
Defendant Rember Genaro Molina appeals a judgment convicting him of sexually abusing his niece, who was under the age of 10 at the time the crimes were committed. On appeal, defendant challenges the admissibility of expert testimony on the child sexual abuse accommodation syndrome and argues that the jury instruction incorrectly permitted the jury to find him guilty based on the expert's testimony. He also challenges the admissibility of the child's out-of-court statements regarding the abuse.
We find no evidentiary or instructional error. We also reject defendant's argument that various fees and fines were imposed in violation of his right to due process. Defendant argues correctly, however, that he was improperly convicted of both continuous sexual abuse under Penal Code section 288.5 and the specific sex offenses involving the child during the same time period. He has also identified several sentencing errors that must be corrected. Accordingly, we shall vacate defendant's conviction under section 288.5, correct his sentence on several of the remaining counts, and affirm the judgment in all other respects.
All statutory references are to the Penal Code unless otherwise noted.
Background
Defendant was charged by information with 10 counts arising out of his sexual abuse of R.D. between May 28, 2010 and May 27, 2016. Specifically, defendant was charged with sexual intercourse with a child 10 years of age or younger (§ 288.7, subd. (a) - count 1); sexual penetration of a child 10 years of age or younger (§ 288.7, subd. (b) - count 2); five counts of commission of a forcible lewd or lascivious act upon a child under 14 years (§ 288, subd. (b)(1) - counts 3, 5, 7, 8 and 9); two counts of attempted sexual penetration of a child 10 years of age or younger (§§ 664, 288.7, subd. (b) - counts 4, 6); and one count of continuous sexual abuse of a child under 14 years of age (§ 288.5, subd. (a) - count 10). Four of the five forcible lewd act charges (counts 3, 5, 7 & 8) and the continuous sexual abuse charge (count 10) included allegations that defendant had substantial sexual conduct with the child (§ 1203.066, subd. (a)(8)).
At the prosecutor's request, the five counts of forcible lewd acts under section 288, subdivision (b) were reduced at trial to five counts of nonforcible lewd or lascivious acts under section 288, subdivision (a).
Trial testimony established that R.D. lived with her mother, father and two siblings. Defendant, her uncle, would often spend several nights a week at their home. In September 2016, R.D.'s older sister disclosed to a teacher that defendant inappropriately touched R.D. This disclosure led to a police investigation. As part of the investigation R.D. was interviewed at the county's Child Abuse Listening, Interviewing, and Coordination Center (CALICO). Transcripts of the interviews were introduced at trial during R.D.'s testimony.
R.D., who was eight years old at the time of the interview, began by saying that her uncle was really nice to her. She knew that she was being interviewed because of things her sister had told the teacher. She expressed concern that she and her siblings would be removed from her parents' home because of the disclosures. She explained that her mother had told her and her sister to talk only to her and that if they said "something wrong," they would be taken away from their family. After being reassured by the interviewer that the interviewer was trying to keep R.D. safe, not remove her from her home, R.D. reported six incidents in which defendant sexually abused her.
The first occasion that R.D. could remember, she and defendant were "covered up with the blanket" on the bed in the bedroom. Defendant grabbed her shorts and underwear and pulled them down. He tried to put his finger inside her but she screamed and her mother and sister came in and defendant left. Another time, when she was seven, she awoke to find defendant reaching under her pants and underwear with his hand. He "tried to go inside [her] private part," but she slapped him and "kicked him out." On a different occasion when she was still seven years old, defendant pulled her pants and underwear off and touched her inside her "private part" with his finger. She told him to stop but "he didn't care, he just did it." On another occasion, while covered with a blanket watching a movie on the couch, defendant took his pants and underwear off and dropped her hand on his penis. On a separate occasion, defendant grabbed her hand and put it on top of his penis. It felt "round" and "wet." She saw defendant "shaking it" and "white stuff started to come out." Finally, on one occasion defendant took his pants and underwear off and stood in front of her as she sat on the couch. He held her legs up and penetrated her vagina with his penis.
After describing several of the incidents, R.D. also described how either her mother, sister or father was there and stopped the abuse. She also reported that she told her mother after several incidents, and her mother ordered defendant out of the house. Somewhat confusingly, she told the interviewer that after each incident, defendant left and she "never saw him again."
Shortly after her interview, R.D. spoke with a police investigator and told the investigator that everything she had reported was not "actually true." R.D.'s interview with the police investigator was recorded and played for the jury. In the recording, when asked about her descriptions of the incident in which defendant penetrated her on the couch, R.D. said, "It wasn't true, um, because I made it up." When asked why she would make it up, she said, "I don't know. [¶] . . . [¶] It just flew out my [sic] mind for no reason."
At trial, R.D., who was then 10 years old, testified that defendant is her favorite uncle and that he has never made her feel uncomfortable or touched her inappropriately. She claimed not to remember telling the interviewer about the incidents she had described previously. After the recording of her CALICO interview was played, R.D. said that she still did not remember telling the interviewer about the incidents and testified that the incidents did not happen. She testified that the things she had said were not true, she was sad that she had said them and that she wished she could take them back.
R.D.'s parents and older sister all testified that the older sister's initial report to her teacher was based on a misunderstanding. Defendant had kicked a ball towards R.D., hitting her near her "private part" so he rubbed the area to make her feel better. The older sister also testified that she was present when defendant held R.D.'s hand near his penis. He and R.D. had been playing and R.D. punched defendant in his penis. When R.D. went to hit him again, he covered his penis with his hand. He was holding her hand but not forcing her to touch him. R.D.'s mother testified that her daughters had reported other incidents to her, but explained, "When I talked to them and I asked them, 'Are you certain that he really did touch you?' they finally told me, 'No, Mom.' Because, honestly, they lie about many things. And that's why I asked them again if it was true that he had touched them; and then, after that, they told me, 'No, Mom.' "
Two experts testified about the child sexual abuse accommodation syndrome (CSAAS or the syndrome). The prosecutor's expert testified that the syndrome sets forth several behaviors commonly observed in children who report abuse that adults might not understand. She explained that the syndrome provides a "way of organizing the conversation" about child sexual abuse, but it does not operate "as a checklist to say, 'Yes, this kid's sexually abused or not sexually abused.'" As relevant here, she testified that sometimes a child might be inconsistent in relating details of the abuse and might include "implausible or fantastical" details in her report. Also, a child might disclose abuse and later recant if the child experiences the consequences of disclosure or if they have "poor maternal support."
Defendant's expert testified that was based on the initial author's observations, not empirical evidence, and that, as such, it has no "positive use . . . at all." He explained that the behaviors addressed in the syndrome could be present in a false allegation as well as a true allegation. He also cited studies that showed that 97 percent of children making true allegations of sexual abuse were consistent in describing the "core" details, 94 percent did not include "fantastical" details, and only 4 percent of children making true allegations recanted. He also emphasized that CSAAS theory was not intended to be "used in courtrooms to try to distinguish true allegations from false allegations" and that the theory does not have "discriminating power to differentiate true allegations from false allegations."
Defendant was convicted of all charges. The jury also found the allegations of substantial sexual conduct true.
Defendant was sentenced to 50 years to life in prison. Defendant timely filed a notice of appeal.
Discussion
1. The court did not abuse its discretion by admitting CSAAS evidence.
In People v. McAlpin (1991) 53 Cal.3d 1289, the California Supreme Court approved a series of appellate decisions establishing that while "expert testimony on the common reactions of child molestation victims is not admissible to prove that the complaining witness has in fact been sexually abused; it is admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident . . . is inconsistent with his or her testimony claiming molestation." (Id. at pp. 1300-1301 & fn. 4.)
Before trial, the defense filed a motion "to exclude certain evidence of myths and child accommodation syndrome and testimony on characteristics of molest victims." The prosecution filed a competing motion to authorize introduction of such evidence. The court permitted introduction of the expert testimony, "with the proviso that the expert will not render any opinion as to whether the victim was actually molested in this case . . . and not to render any opinion that the [alleged victim] suffers from the accommodation syndrome."
On appeal, defendant argues that admission of expert testimony on the syndrome violates the Kelly/Frye rule, which requires that the proponent of" 'expert testimony based on a new scientific technique . . . establish the reliability of the method and the qualifications of the witness" before the evidence is admitted. (People v. Munch (2020) 52 Cal.App.5th 464, 472.) He also argues that the evidence is irrelevant because jurors no longer harbor misconceptions that need correcting regarding how child victims of sexual abuse behave. Finally, he argues that the evidence was more prejudicial than probative and should have been excluded under Evidence Code section 352.
Frye v. United States (D.C. Cir. 1923) 293 Fed. 1013, 1014; People v. Kelly (1976) 17 Cal.3d 24, 30.
Initially, we reject defendant's argument that the expert testimony is subject to the Kelly/Frye rule. Defendant acknowledges that several California courts have rejected his argument. (See, e.g., People v. Munch, supra, 52 Cal.App.5th at p. 472 [Kelly/Frye rule does not apply to expert testimony regarding CSAAS]; People v. Harlan (1990) 222 Cal.App.3d 439, 449 [same]; People v. Gray (1986) 187 Cal.App.3d 213, 218-219 [same].) Nonetheless, defendant argues that these decisions are based on a misreading of precedent. We disagree.
The expert testimony concerning CSAAS admitted in the present case was not "new experimental scientific evidence' "not previously accepted in court." '" (People v. Munch, supra, 52 Cal.App.5th at p. 472.) The CSAAS evidence defendant challenges "has been ruled to be properly admitted by the courts of this state for decades." (Ibid., citing People v. McAlpin, supra, 53 Cal.3d at pp. 1300-1301.) As noted above, the evidence was not being used as scientific proof that a child had, in fact, been abused. Rather, the evidence was admitted under Evidence Code section 801 because it is" '[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.'" (People v. McAlpin, supra, 53 Cal.3d at p. 1299.) Such expert testimony meets "traditional standards for competent expert opinion, without need for additional screening procedures" under Kelly/Frye. (People v. Stoll (1989) 49 Cal.3d 1136, 1161.) Moreover, as noted in People v. Munch, defendant has ample means to challenge the validity of this expert testimony by cross-examination on the source materials and studies on which the expert relies. (52 Cal.App.5th at p. 473.) Here, defendant's attorney extensively cross-examined the prosecution's expert and introduced contrary testimony by defendant's own expert witness.
Similarly, while we acknowledge that courts in other jurisdictions have recognized that changes in public perception of the victims of child sexual abuse have questioned and even undermined the rationale for the admission of CSAAS evidence (see fn. 4, post), we are bound by the California Supreme Court's decision in People v. McAlpin, supra, 53 Cal.3d 1289. (See also People v. Brown (2004) 33 Cal.4th 892, 906; People v. Perez (2010) 182 Cal.App.4th 231, 245.)
Finally, insofar as expert testimony is admissible under California law to explain why child victims of sexual abuse might recant or include fantastical details in their reports of abuse, the testimony by the prosecution's expert was highly probative given the facts of this case. The court did not abuse its discretion under Evidence Code section 352 in admitting the expert testimony.
2. The jury was properly instructed on the use of CSAAS evidence under CALCRIM No. 1193.
The jury was instructed pursuant to a modified version of CALCRIM No. 1193 as follows: "You've heard testimony from Dr. William O'Donohue and Miriam Wolf, a licensed clinical social worker, about child abuse accommodation theory. [¶] Testimony about this syndrome is not evidence that the defendant committed any of the crimes charged against him. [¶] You may consider this evidence only in deciding whether or not [R.D.]'s conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony."
Defendant contends that the instruction "effectively instructs the jurors that they may take [the CSAAS] testimony as evidence of the defendant's guilt" thereby lessening "the prosecution's burden of proof in violation of [his] Fifth, Sixth and Fourteenth Amendment rights." He argues, "The problem with the modified CALCRIM No. 1193 is that it . . . is worded entirely in terms of the purposes for which the jury can use the testimony; it does not say that there is any purpose for which they cannot use it." We disagree. The pattern instruction expressly states that the expert's "testimony about [the syndrome] is not evidence that the defendant committed any of the crimes charged against him." Both experts also expressly warned that CSAAS is not a checklist or tool that can be used to say a child was abused.
Defendant also asserts that "using the CSAAS evidence as evidence that [R.D.] was 'believable', a use the instruction permitted, is indistinguishable from using it as evidence that [defendant] committed the crimes charged against him, which is not permissible." This argument has repeatedly been rejected by other courts. (See People v. Munch, supra, 52 Cal.App.5th at p. 474; People v. Gonzales, supra, 16 Cal.App.5th at p. 504.) In Munch, defendant made the argument that CALCRIM No. 1193" 'effectively instructs the jury that they may take [the expert's] testimony as evidence of the defendant's guilt'" because "instructing jurors that they may use it 'in evaluating the believability' of the child's testimony means they will improperly use it to find the defendant is guilty." (52 Cal.App.5th at p. 474.) The court disagreed, explaining," 'The purpose of CSAAS is to understand a child's reactions when they have been abused. [¶] A reasonable juror would understand CALCRIM No. 1193 to mean that the jury can use [the expert's] testimony to conclude that [the child'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 child] was, in fact, molested. The CSAAS evidence simply neutralizes the victim's apparently self-impeaching behavior. Thus, under CALCRIM No. 1193, a juror who believes [the expert's] testimony will find both that [the child's] apparently self-impeaching behavior does not affect her believability one way or the other, and that the CSAAS evidence does not show she had been molested. There is no conflict in the instruction.'" (Ibid., quoting People v. Gonzales, supra, 16 Cal.App.5th at p. 504.) We agree that CALCRIM No. 1193 is a correct statement of the law and sufficiently advises the jury that the syndrome evidence may not be used to prove that defendant committed any of the charged crimes. Nothing in the instruction permits the jury to conclude that because the victims' behavior is consistent (or not inconsistent) with that of other child victims of sexual assault, defendant necessarily committed such abuse.
This court noted in a recent, unrelated unpublished decision that "[a]lthough the instruction is literally accurate and consistent with prior decisions of California courts, we do perceive a possibility of it being misunderstood. We suggest that consideration be given to modifying CALCRIM No. 1193 to incorporate explicit language drawn from CALJIC No. 10.64 or from the CSAAS instruction given in New Jersey before the New Jersey Supreme Court limited use of CSAAS evidence (see State v. J.L.G. (2018) 234 N.J. 265), both of which tend to make the distinction between the proper and improper use of the evidence somewhat clearer. The limitations on the use of child sexual abuse accommodation evidence thoughtfully discussed in the New Jersey opinion also merits careful consideration by our Supreme Court." (People v. Reconco (Oct. 18, 2021, A157670) [nonpub. opn.].) We reiterate our concern.
3. The trial court did not abuse its discretion in admitting into evidence R.D.'s CALICO interview.
Before trial, the prosecutor filed a motion under Evidence Code section 1360 seeking permission to introduce R.D.'s out-of-court statements made during her CALICO interview as statements made by a sexual abuse victim under the age of 12 years. Defense counsel moved to exclude the out-of-court statements on the ground they lack sufficient indicia of reliability. The court viewed the video of the interview, found that R.D.'s CALICO statements were "reliable" and, therefore, would be admissible under section 1360 if R.D. testified. As set forth above, a recording of R.D.'s interview was played for the jury during her testimony.
On appeal, defendant contends the court erred in admitting R.D.'s out-of-court statements under Evidence Code section 1360. This section creates a limited exception to the hearsay rule for a child's statements describing acts of abuse "if all of the following apply: [¶] (1) The statement is not otherwise admissible by statute or court rule. [¶] (2) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability. [¶] (3) The child either: [¶] (A) Testifies at the proceedings. [¶] (B) Is unavailable as a witness, in which case the statement may be admitted only if there is evidence of the child abuse or neglect that corroborates the statement made by the child." (Evid. Code, § 1360, subd. (a); People v. Brodit (1998) 61 Cal.App.4th 1312, 1327.) Despite defendant's argument to the contrary, the introduction of R.D.'s statements under Evidence Code section 1360 did not implicate his confrontation rights under the 6th Amendment. (People v. Stevens (2007) 41 Cal.4th 182, 199, citing Crawford v. Washington (2004) 541 U.S. 36, 59, fn. 9 ["The Sixth Amendment confrontation clause does not bar hearsay statements of a witness who testifies at trial and is subject to cross- examination."].) Because the determination under section 1360 is purely a matter of state evidentiary law, questions of admissibility are reviewed for abuse of discretion. (See People v. Waidla (2000) 22 Cal.4th 690, 725.)
Initially, defendant contends the court erred by failing to hold an evidentiary hearing to determine the reliability of the statements. The statute, however, requires only that the court conduct a hearing outside the presence of the jury to determine the reliability of the statements. Here, the court watched the interview and counsel argued regarding its admissibility. Defendant did not proffer any additional evidence on the admissibility issue. Nor has defendant suggested in his appellate briefs what additional evidence might have been submitted. Hence, there was no violation of the statutory requirement.
Defendant also contends the court erred in admitting the statements "because the content and circumstances of the statements did not provide sufficient indicia of reliability." In determining whether a statement is reliable, California courts may consider the following nonexclusive factors: "(1) spontaneity and consistent repetition; (2) mental state of the declarant; (3) use of terminology unexpected of a child of similar age; and (4) lack of motive to fabricate." (People v. Brodit, supra, 61 Cal.App.4th at p. 1330, citing In re Cindy L. (1997) 17 Cal.4th 15, 29-30.) Based on the totality of the circumstances, the trial court reasonably found R.D.'s statements reliable.
While the statements were made during the CALICO interview, they were made in response to open-ended questions. The details of the abuse were provided by R.D., not the interviewer. The statements were spontaneous in that R.D. only disclosed the abuse after the interviewer indicated the interview was over: "Well, I don't have any more questions for you. And if there's nothing else you wanna talk to me about, whenever you're ready we can go out and see your family." Some of the details R.D. provided involved sexual content beyond what a child that age would be expected to have been exposed to, and she used age-appropriate words to describe those details. Finally, the record established that R.D. did not have a motive to fabricate the abuse. To the contrary, R.D. indicated she was fond of defendant and was hesitant to say anything because she was afraid she would be taken from her mother. She disclosed the abuse only after the interviewer assured her that the interviewer's job was to make sure she was safe and not to remove her from her family.
Defendant's arguments to the contrary are not persuasive. The fact that some of her statements regarding her parents and sister stopping the abuse might have been fantastical does not establish that all of her statements are necessarily unreliable. Similarly, the fact that R.D. recanted her statements shortly after returning to her mother's care does not necessarily render the statements unreliable. Defendant speculates that R.D. might have lied to the interviewer "in order to corroborate [her sister's] statements to the teacher to make sure [her sister] did not get in trouble for lying," but nothing in her statement supports this claim. Defendant's speculation that R.D.'s description of "ejaculate, masturbation and other sex acts" could have been based on her exposure to sexual matter at home is based on trial testimony received well after the evidentiary ruling in question. In any event, R.D.'s exposure to sexual content at home was evidence the jury could consider in evaluating the believability of her statements but does not necessarily render her CALICO interview unreliable.
Accordingly, the trial court did not abuse its discretion in admitting into evidence R.D.'s CALCIO interview.
As noted, Evidence Code section 1360 contains the rather odd provision that it applies only if the evidence is not admissible under another rule or statutory provision. (Evid. Code, § 1360, subd. (a)(1).) At trial, defendant argued that R.D.'s interview was not admissible under Evidence Code section 1235, and on appeal makes no argument that the interview was not admissible under section 1360 because it was admissible under some other section. Needless to say, it is not necessary to decide whether defendant was correct that the interview was inadmissible under section 1235 because either way the evidence was properly received.
4. Defendant's rights were not violated by the presentation of R.D.'s "false" trial testimony.
Defendant makes the surprising contention that the prosecutor violated his constitutional rights to due process and confrontation by knowingly introducing false testimony from R.D. that he did not abuse her, in order to admit her CALICO interview. Less surprising, defendant did not object to R.D.'s testimony at trial or argue that her testimony was false. In any event, defendant's argument fails because he was not prejudiced by the testimony he now claims to have been false. Moreover, although the prosecutor anticipated that R.D. might recant, admission of her CALICO interview under section 1360 did not require that she recant. It required only that she testify. Had she testified to abuse by defendant the CALICO interview would have corroborated her testimony. Because the admissibility of her CALICO interview was not dependent on her giving false testimony, defendant was not prejudiced by her testimony in his favor.
In light of this conclusion, we need not address defendant's additional argument that Evidence Code section 1235 improperly allows a prosecutor to use "deliberate perjury" to admit a prior unsworn statement. For the same reason, we need not reach defendant's argument that reversal is required under section 1473, subdivision (b)(1), which authorizes a defendant to file a petition for writ of habeas corpus on the ground that "[f]alse evidence that is substantially material or probative on the issue of guilt or punishment was introduced against a person at a hearing or trial relating to the person's incarceration." Putting aside the Attorney General's argument that section 1473 is not applicable in a direct appeal, defendant's guilt was not dependent in this case on R.D.'s false testimony. Finally, having found no substantive error with regard to defendant's convictions, we reject defendant's cumulative error argument.
5. Defendant's conviction for continuous sexual abuse of a child must be vacated.
Defendant was charged and convicted under count 10 with the continual sexual abuse of R.D. on or between May 28, 2010 and May 27, 2016, and charged and convicted under counts 1 through 9 with individual sex crimes committed during the same time period. On appeal, defendant contends his convictions violate section 288.5, subdivision (c), which prohibits dual convictions for continuous sexual abuse and additional sex offenses involving the same victim during the same period.
Section 288.5, subdivision (c) provides in relevant part that when the defendant is charged with continuous sexual abuse of a child, "[n]o other act of substantial sexual conduct [including sexual intercourse or lewd acts] involving the same victim may be charged in the same proceeding . . . unless the other charged offense occurred outside the time period [alleged with respect to the continuous sexual abuse charge] or the offense is charged in the alternative."
The Attorney General concedes the case was prosecuted in violation of section 288.5, subdivision (c), but argues defendant forfeited his right to invoke that provision because he did not demur to the charges below. We disagree.
The Attorney General relies on People v. Goldman (2014) 225 Cal.App.4th 950, 956-957 (Goldman), in which the court held a violation of section 288.5, subdivision (c) is a pleading defect that must be challenged by demurrer to preserve the issue for appeal. Goldman, however, is factually distinguishable. There, the information alleged only a one-month overlap between the period covered by the continuous sexual abuse and that of the specific sexual offense. (Id. at p. 955.) Here, the period alleged in count 10 encompassed all the dates alleged in counts 1 through 9. While the defect in Goldman could have been corrected by amendment, the same is not true in this case. More importantly, we disagree with the Goldman court that section 288.5, subdivision (c) is merely a "charging prohibition." (Id. at p. 956.) As the Supreme Court explained in People v. Johnson (2002) 28 Cal.4th 240, 245-248, by prohibiting multiple charges, section 288.5, subdivision (c) also prohibits multiple convictions for continuous sexual abuse of a child and for the discrete sexual offenses underlying the continuous sexual abuse conviction. (See also People v. Bautista (2005) 129 Cal.App.4th 1431, 1436 [interpreting Johnson to preclude multiple convictions under those circumstances]; People v. Torres (2002) 102 Cal.App.4th 1053, 1055 [same]; People v. Rojas (2015) 237 Cal.App.4th 1298, 1308-1309 [same].) Thus, defendant's challenge to the propriety of his convictions under section 288.5, subdivision (c) is not forfeited by the failure to raise the objection at the pleading stage.
In People v. Johnson, supra, 28 Cal.4th at page 245, the court agreed that where a defendant is erroneously convicted of both continuous sexual abuse and individual sexual offenses against a child taking place during the same time period, "either the continuous abuse conviction or the convictions on the specific offenses must be vacated." In People v. Torres, supra, 102 Cal.App.4th at page 1059 the court concluded the appropriate remedy, "in deciding which convictions to vacate . . . for a violation of the proscription against multiple convictions set forth in section 288.5, subdivision (c) [is to] leave appellant standing convicted of the alternative offenses that are most commensurate with his culpability." Despite wide acceptance by appellate courts of the Torres remedy (see, e.g., People v. Wilson (2019) 33 Cal.App.5th 559, 574; People v. Rojas, supra, 237 Cal.App.4th at pp. 1308-1309; People v. Bautista, supra, 129 Cal.App.4th at p. 1437), defendant asserts that all of his "convictions should be reversed and the case remanded to allow the prosecution to retry the case or, if the prosecution chooses not do so, for the trial court to reinstate the section 288.5 conviction only." We believe the Torres approach is sound and that given the number and seriousness of the individual convictions, the appropriate remedy is to reverse the conviction for violating section 288.5. Accordingly, we shall vacate defendant's conviction on count 10.
6. Defendant's sentence must be correct and the abstract of judgment must be amended on remand.
As set forth above, defendant was initially charged in counts 3, 5, 7, 8 and 9 with violations of section 288, subdivision (b) but the charges were reduced before the case was submitted to the jury. (See fn. 2, ante.) Accordingly, defendant was convicted under counts 3, 5, 7, 8 and 9 with having violated section 288, subdivision (a). The parties agree that the court improperly sentenced defendant to the low term of five years on each count as if he had been convicted under section 288, subdivision (b), rather than the low term of three years which is applicable to violations of section 288, subdivision (a). We agree with the parties that the proper remedy is to correct defendant's sentence to reflect imposition of consecutive three-year terms on each of these counts and to amend the abstract of judgment to reflect the new terms. At the same time, the abstract shall be amended to remove the incorrect notation that the sentence on count 3 is stayed.
The parties agree that the abstract also must be amended as to counts 4 and 6, under which defendant was convicted of attempted sexual penetration. For each count the court imposed the "lower term" without stating the term of years and stayed execution of sentence under section 654. On remand, the abstract shall be amended to reflect imposition of the lower term of five years each for counts 4 and 6 with a stay of execution imposed under section 654.
Finally, the Attorney General notes that counts 3, 4 and 6 are reflected in the abstract of judgment as indeterminate rather than determinate terms. This error should also be corrected on remand.
7. Any error with regard to the imposition of court fees and fines without a determination of defendant's ability to pay is harmless.
At sentencing, the court imposed a $500 sex-offender fine (§ 290.3), a $700 assessment for the forensic examination of the victim (§ 1203.1, subd. (h)(b)), a $400 criminal conviction assessment (Gov. Code, § 70373), a $300 court operations fee (§ 1465.8), and a $300 restitution fine (§ 1202.4). Defendant contends that the court violated his right to due process under the federal and state constitutions by imposing these fees and fines without making a finding as to his ability to pay. He relies on People v. Dueñas (2019) 30 Cal.App.5th 1157, 1164, in which the court held that imposition of a restitution fine without consideration of a defendant's ability to pay violates due process. Several decisions have disagreed with the due process analysis in Dueñas, and the California Supreme Court is currently considering the issue. (E.g., People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946; People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.) This court has previously declined to "join the courts that have declared Dueñas to have been wrongly decided" but has agreed that "[a] suitable framework for analyzing the constitutionality" of a minimum restitution fine imposed under Penal Code section 1203.4 "is the excessive fines prohibition in the Eighth Amendment and its counterpart under the California Constitution, article I, section 17." (People v. Cowan (2020) 47 Cal.App.5th 32, 42, review granted, June 17, 2020, S261952.) Although People v. Cowan was decided long before defendant filed his briefing in this case, defendant focuses his argument solely the failure to consider his ability to pay in violation of his due process rights under Dueñas.
We decline to analyze the propriety of defendant's individual fines and assessments based solely on his inability to pay, and defendant has forfeited any claim under the Eighth Amendment. We note briefly, however, that on the record before us, any error arising from the trial court's failure to make an ability to pay finding was harmless beyond a reasonable doubt because defendant has the ability to pay the fines, fees, and assessments over the course of his prison sentence. (People v. Johnson (2019) 35 Cal.App.5th 134, 139-140; People v. Aviles (2019) 39 Cal.App.5th 1055, 1076 [ability to pay fines includes consideration of wages that appellant may earn in prison].) At the time of sentencing, defendant was 29 years old and had no financial obligations in the community. The record reflects that he had worked regularly in construction prior to his convictions and nothing suggests that he is no longer capable of working while in prison. While it may take defendant some time to pay the amounts imposed in this case, defendant is serving a lengthy prison term and should, under reasonable circumstances, be able to satisfy his financial obligations.
Disposition
Defendant's conviction for continuous sexual abuse under section 288.5 is vacated. Defendant's sentence is corrected to reflect imposition of consecutive three-year terms on counts 3, 5, 7, 8 and 9. The trial court is also directed to correct the abstract of judgment as set forth in part 6 of this opinion. In all other respects, the judgment is affirmed. The trial court shall prepare a corrected and amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
WE CONCUR: BROWN, J. ROSS, J. [*]
[*] Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.