Opinion
A153337
03-06-2020
PEOPLE, Plaintiff and Respondent, v. DAIN ROBINSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51605492)
Dain Robinson (defendant) appeals from a judgment entered after a jury found him guilty of five counts of lewd or lascivious acts on a child under 14 years of age (Pen. Code, § 288, subd. (a)) and found he committed the offenses against more than one victim (§ 667.61, subds. (b), (e), (j)(2)). The trial court found true various prior allegations, struck one of defendant's two prior strikes, and sentenced him to an aggregate term of 260 years to life in prison.
All further undesignated statutory references are to the Penal Code. --------
Defendant contends: (1) the trial court erred in allowing the testimony of one of the victim's sisters; (2) substantial evidence did not support two separate counts against one of the victims; (3) his sentence violates ex post facto principles; (4) the victim restitution orders must be reversed; (5) there are clerical errors on the abstract of judgment that must be corrected; (6) the matter must be remanded for resentencing in light of Senate Bill No. 1393; and (7) the court violated his due process rights by imposing certain fines and fees without finding he had the ability to pay.
We agree with three of defendant's contentions. First, defendant's sentence violates ex post facto principles and must be modified to reflect the penalty in effect at the time he committed three of his crimes. Second, there are clerical errors in the abstract of judgment that must corrected. Third, the matter must be remanded for resentencing in light of Senate Bill No. 1393. We reject his remaining contentions and affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
On September 25, 2017, an amended information was filed charging defendant with five counts of lewd or lascivious acts on a child under 14 years of age (§ 288, subd. (a)). The amended information alleged defendant committed the offenses against more than one victim under the One Strike law (§ 667.61, subds. (b), (e)(4), (j)(2)) and that he had two prior serious felony convictions (§ 667, subd. (a)(1)) that were prior strikes for purposes of the three strikes law (§§ 667, subds. (a), (d), (e); 1170.12, subds. (b), (e)). The amended information alleged defendant committed counts 1 and 2 against Jane Doe 1 (JD1) between August 1 and November 1, 2015, counts 3 and 4 against Jane Doe 2 (JD2) between January 22, 2003 and January 22, 2006, and count 5 against Jane Doe 3 (JD3) between June 18, 2003 and June 18, 2006.
JD1
Defendant and JD1's mother, M.H., were friends. In August 2015, when JD1 was seven years old, defendant regularly brought methamphetamine to M.H.'s home and he and M.H. did drugs together. At some point, M.H. became concerned that JD1 and defendant were "too close"; they were "interacting . . . too much." When M.H. would try to separate them by telling JD1 to go play by herself, defendant "wouldn't allow it." He would "go out of his way to be" where JD1 was and would be "just clinging to her. Real clingy." In November 2015, during a conversation between JD1 and M.H., JD1 referred to defendant as the "touchy-feely guy" and told M.H. that defendant "touched her all the time," including "between her legs." M.H. took JD1 to the police station.
At the station, JD1 "pointed to the front area of her crotch" and said defendant touched her "privates" over her clothing and rubbed her thighs as they sat on the couch together. On one occasion, JD1 was in the shower when defendant opened the bathroom door, looked in, then left. At the children's interview center, JD1 said she refers to defendant as the "touchy, feely guy" because "[h]e touches me." She said he "would usually, like, watch me do stuff" "[b]ut he mostly touches me." He would touch her with "his fingers" "[i]n my . . . private thingy" over her clothes and move his hand "back and forth." She circled the "groin area" of a picture of a little girl to show where he had touched her. She said that "usually . . . when he touches," she "move[s] away from him" and he looks around to see what JD1's mother is doing. JD1 said she would be scared to see defendant again and would "hide in my . . . space in my closet [which I call] my secret hideout . . . ."
At trial, JD1 testified that defendant touched her "parts" used for "[p]eeing" over her clothes "once or twice" and that she told her mother, " 'This guy is touching me in bad places.' " JD1 was living with her aunt, uncle, and cousins at the time of trial. JD1's aunt testified that JD1 was seeing a therapist and was afraid of and anxious around men, including her uncle with whom she lived. It took JD1 several months just to go near her uncle, and another several months before she spoke to him or hugged him goodnight. When there was a man around, JD1 would hide behind her aunt, look down and avoid eye contact with the man, and "just chew on her hands." JD1 also engaged in various obsessive behavior; when she showered, she would check to make sure the bathroom door was locked and would not go in if the door did not lock.
JD2
When JD2 was "younger than [nine] years old," she lived with her parents and her sisters—Amber, who was 16 or 17 years old, Jacqueline, who was 12 or 13 years old, and JD3, who was 3 or 4 years old. Amber began dating defendant, who lived in the same neighborhood, when she was about 16 years old and defendant was in his 40s. Amber testified defendant knew how old she was because she had told him her age. She and defendant would do "[w]eed and meth" together and had a sexual relationship. Defendant wore a dog tag around his neck that he marked every time they had sex. During sex, defendant would make sexual comments about JD2. He also looked at JD2 in "a sexual way." Defendant had pornography that he liked to watch in which there were "really childish, like little girls in it." Some of the girls had their hair in pigtails; some looked like they were in high school and others looked like they were in elementary school.
When Amber was 17 years old, she reported defendant to police after he became violent with her. She later recanted her report so defendant would not go to prison. Amber ultimately broke up with defendant because "he was inappropriately looking at [JD2] and talking about her when we were having sex."
JD2 testified that defendant often babysat her and JD3 when he was dating Amber. One day, when JD2 was in first grade, she ran to her parents' bedroom, hid in a closet, and "popped out" to try to scare defendant. Defendant "grabbed her," threw her onto her parents' bed, and "rub[ed] [her vagina] inappropriately" over her clothes. JD2 squirmed and told him to stop; defendant said "I'm just tickling you," as he rubbed her vagina. JD2 was afraid of defendant because Amber would come home with a black eye after fighting with defendant. JD2 told her sister Jacqueline what happened and Jacqueline said defendant had done the same thing to her. Jacqueline told their mother that defendant touched JD2, but the mother told JD2 she "was overreacting."
At trial, JD2 recalled only one incident when defendant touched her vagina. She had previously told Detective Thomas Norvell of the Contra Costa County Sheriff's Department that defendant touched her about three times. At the time of trial, JD2 still had trouble being with someone "in a happy way" and did not like being tickled because defendant had told her he was "tickling" her as he touched her vagina.
JD3
JD3 was almost four years old during the time defendant babysat her and JD2 "pretty often." Her parents would leave the younger children in Amber's care because Amber was the oldest, and when Amber "didn't want to watch us, she had [defendant] do it." Defendant was friendly, played games with them, and tickled them. Defendant would tickle JD3 up and down her whole body, then move to her inner thighs. He tickled her on her vagina, over her clothes, more than once; she thought it happened about four times. She saw defendant tickle JD2 the same way. She and JD2 told their parents about the touching but their mother "brushed it off." JD2 became "weird with tickling" because of defendant's touching; JD3 recently saw JD2 "freak[] out" when someone tried to tickle her in a playful manner.
Uncharged Act
B.P. and her mother lived in the same neighborhood as Amber's family and defendant. She remembered getting "weird" and "bad vibes" from defendant and feeling that the way he looked at children was "not right." "There was always a little bit of a creepiness as far as [him] wanting to be around the children more than the adults. . . ." When all of the parents were outside socializing, defendant would stay inside with the children. When B.P. was about 13 years old, there was a neighborhood barbeque and everyone was "hanging out." At one point, she found herself inside her home alone with defendant. She tried to mind her own business but he stood there asking her questions and made her feel uncomfortable. He then came "very close to [her]" and slid his fingers down her pants and touched her buttocks. She was startled and scared and left. She told her mother what happened and they went to the police station later that evening.
Defense
JD2's sister Jacqueline testified for the defense that defendant never touched her inappropriately. She also did not remember JD2 telling her defendant touched her and did not remember discussing any touching with her mother. Jacqueline did recall defendant commenting on how "beautiful" JD2 was, which she thought was "kind of weird because he's old."
Detective Norvell testified that when he interviewed JD2, JD2 said defendant touched her "three times." When she was asked to describe the other two times the touching occurred, JD2 responded, " 'I don't remember.' " When asked whether defendant touched other parts of her body, JD2 responded, " 'I don't think so, but maybe.' " Norvell also testified that when he interviewed JD3, JD3 said she "didn't think what was going on was anything but tickling" until she got older and realized defendant had molested her and her sisters. When asked whether she was touched once or more than once, JD3 said, " 'Don't really remember; I kind of blocked it out.' "
The Verdict and Sentencing
A jury found defendant guilty of all counts and found true the One Strike allegation. The trial court found true the prior strike and serious felony allegations, granted defendant's request to strike one prior strike (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), and sentenced him to an aggregate prison term of 260 years to life, consisting of five consecutive terms of 50 years to life (25 years to life, doubled) and two five-year enhancements for the two priors (§ 667, subd. (a)(1)). The court imposed statutory fines, fees, and assessments, $1,000 per count in victim restitution, and $50,000 in noneconomic victim restitution to JD1.
DISCUSSION
1. Amber's Testimony
Defendant contends the trial court erred in allowing Amber's testimony. We disagree.
Before trial, the prosecutor moved to admit Amber's testimony under Evidence Code section 1108. The prosecutor described Amber as a "hybrid" witness in that she would testify about defendant's interactions with JD2 and JD3 and his expressions of sexual desire toward JD2, and would also provide evidence about his sexual relationship with her, a minor. Defense counsel argued the evidence regarding defendant's relationship with Amber was too dissimilar to the charged offenses to be probative because the victims were much younger; he argued the evidence was also unduly prejudicial under Evidence Code section 352. The trial court ruled in favor of the prosecution, stating Amber's testimony did not describe conduct that would "evoke[] a visceral, emotional response from the jury." After further briefing and argument on the issue, the court ruled the evidence was admissible because it was neither inflammatory nor unduly prejudicial under Evidence Code section 352.
Propensity evidence is admissible in sex offense cases under Evidence Code section 1108, which provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense . . . is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." In other words, "[w]hen a defendant is accused of a sex offense, Evidence Code section 1108 permits the court to admit evidence of the defendant's commission of other sex offenses, thus allowing the jury to learn of the defendant's possible disposition to commit sex crimes." (People v. Cordova (2015) 62 Cal.4th 104, 132.) Such evidence "is presumed admissible and is to be excluded only if its prejudicial effect substantially outweighs its probative value in showing the defendant's disposition to commit the charged sex offense or other relevant matters." (Ibid.; Evid. Code, § 352 [evidence is excluded 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].)
We review a trial court's admission of evidence for abuse of discretion and conclude the trial court did not abuse its discretion in allowing Amber's testimony. (People v. Loy (2011) 52 Cal.4th 46, 61.) Amber provided evidence that defendant engaged in unlawful sexual intercourse with a minor (§ 261.5)—a "sexual offense" as provided in Evidence Code section 1108. Further, her testimony that defendant had sex with a 16-year-old girl, watched pornography depicting "really childish" "little girls," looked at JD2 in a sexual way, and talked about JD2 during sex, was highly probative because it showed defendant viewed young girls as objects of sexual desire and that he touched his victims with lewd intent.
Defendant asserts, as he did below, that his acts with Amber, a post-pubescent teenager, were too dissimilar to the charged offenses to be probative. Uncharged acts, however, do not need to be similar to the charged offenses to be admitted under Evidence Code section 1108: "The charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101 [character evidence is admissible when relevant to prove some fact such as motive or opportunity], otherwise, Evidence Code section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in section 1108." (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41.) Thus, in People v. Frazier, supra, it was not an abuse of discretion to admit evidence of the defendant's uncharged acts of sodomy and forcible oral copulation of his six-year-old cousin even though they were different from the charged act of touching the bare buttocks of his nine-year-old niece. (89 Cal.App.4th at p. 43.) Similarly, here, defendant's sexual relationship with Amber (a teenager decades younger than defendant), including the comments he made to her about JD2 during sex, demonstrated his sexual interest in young girls and was relevant to show he intended to touch his victims for sexual gratification.
We also conclude the testimony was not unduly prejudicial. "The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging." ' [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 638.)
Amber's testimony was highly relevant to the issues in the case and was not likely to "uniquely . . . evoke an emotional bias against" defendant. (Ibid.) Defendant asserts she depicted him as a "violent methamphetamine user," but Amber only testified that she and defendant used methamphetamine together—something that was not particularly inflammatory in light of the fact that JD1's mother had already testified regarding defendant's methamphetamine use. Amber testified she made a police report when defendant became violent with her, but this evidence was also not unduly prejudicial in light of JD2's testimony that she was scared of defendant because he would give Amber a black eye. The trial court properly considered Evidence Code section 352 and reasonably determined Amber's testimony was admissible under Evidence Code section 1108.
Defendant also asserts his counsel rendered ineffective assistance in connection with Amber's testimony. A defendant "bears the burden of establishing constitutionally inadequate assistance of counsel." (People v. Carter (2003) 30 Cal.4th 1166, 1211.) To prevail on such a claim, the defendant must prove: (1) "counsel's representation fell below an objective standard of reasonableness" in that counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment"; and (2) there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.)
"[A] court must indulge a 'strong presumption' that counsel's conduct falls within the wide range of reasonable professional assistance. . . ." (Bell v. Cone (2002) 535 U.S. 685, 702.) "It is not sufficient to allege merely that the attorney's tactics were poor, or that the case might have been handled more effectively. Rather, the defendant must affirmatively show that the omissions of defense counsel involved a critical issue, and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics." (People v. Blomdahl (1993) 16 Cal.App.4th 1242, 1248, internal quotation marks and citations omitted.) " 'A reviewing court will not second-guess trial counsel's reasonable tactical decisions.' " (People v. Riel (2000) 22 Cal.4th 1153, 1185.)
Further, as to prejudice, the defendant bears a "highly demanding" and "heavy burden" of establishing actual prejudice resulting from the alleged deficient performance. (Williams v. Taylor (2000) 529 U.S. 362, 394.) "The defendant must show that there is a reasonable probability that but for counsel's unprofessional errors, the result . . . would have been different." (Strickland v. Washington, supra, 466 U.S. at p. 694.) "[P]rejudice must be established 'as a "demonstrable reality", not simply speculation as to the effect of the errors or omissions of counsel.' " (People v. Montoya (2007) 149 Cal.App.4th 1139, 1151.)
Defendant asserts his counsel was ineffective because he not only failed to object to Amber's testimony regarding his drug use and violent acts, but he also "pour[ed] . . . gasol[i]ne on the flame started by that failure" by eliciting further details of those violent acts during cross-examination. In particular, after Amber testified that defendant was violent with her, counsel elicited testimony that she accused him of banging her head on the side of the wall with enough force to break a window. Counsel then asked, "And later on when you retracted your statement, you told them that you had used already existing bruises to create the story that he had hit you?" Amber did not recall making that statement but acknowledged saying she "made up the thing" because she was mad at defendant and wanted him to get "in as much trouble as possible."
We conclude defendant has not met his burden of showing deficient performance. Counsel may not have objected to Amber's reference to defendant's drug use because she testified she also used drugs. Counsel then used that information to defendant's advantage by suggesting Amber still used methamphetamine and to imply she was testifying against defendant in order to obtain a deal from the prosecutor on her own pending criminal matter. He also asked, "Is one of the reasons you want to be released from custody as soon as possible is so that you can smoke methamphetamine?" Although the trial court sustained the prosecutor's objections to questions relating to Amber's current methamphetamine use, counsel could have believed that evidence of her drug use would impact the juror's evaluation of her as a witness. Moreover, defendant used evidence of his own methamphetamine use to request and receive an instruction on voluntary intoxication as a defense. Thus, counsel could reasonably have decided not to object to Amber's reference to defendant's drug use because the evidence could have benefited defendant.
Counsel could have also decided not to object to testimony regarding defendant's violent conduct in order to emphasize the false statements Amber made to police. For example, counsel attempted to impeach Amber by showing she had no injuries consistent with her accusation that defendant banged her head on the side of the wall. He also elicited testimony that she showed officers pre-existing bruises on her arms and "made the thing up" because she was mad at defendant and wanted him to get in trouble. The record shows counsel could have reasonably made the tactical decision not to object, and to elicit details of the violent conduct, in order to show that Amber was willing to lie to police and that her testimony should not be credited. Defendant has not met his burden of showing his counsel's performance was deficient.
2. Substantial Evidence
Defendant contends substantial evidence did not support two separate counts against JD2 because she testified to only one incident of him touching her vagina. We reject this contention.
In considering a challenge to the sufficiency of the evidence, we "review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Albillar (2010) 51 Cal.4th 47, 60.) We resolve "neither credibility issues nor evidentiary conflicts. Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181, citations omitted.) Reversal for insufficiency of the evidence is unwarranted "unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.' " (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Here, as noted, JD2 described in detail one incident in which defendant threw her on the bed and touched her vagina. At the time of trial, she did not recall other incidents, but Detective Norvell testified she told him defendant touched her about three times when he interviewed her in 2016. Norvell's testimony provided support for the jury's finding that defendant touched JD2 more than once. (See People v. Tompkins (2010) 185 Cal.App.4th 1253, 1261 [sufficient evidence supported conviction for two counts of digital penetration where minor testified it happened " 'once, maybe twice' " but investigator testified victim previously recalled two to three occasions].) That JD2 was unable to recall the specifics of the other two incidents when interviewed and did not remember them at the time of trial did not necessarily render her statements to Norvell or his testimony less credible. (People v. Young, supra, 34 Cal.4th at p. 1181 [testimony of a single witness is enough to support a conviction, and we do not resolve credibility issues or reweigh the evidence].)
In addition to Norvell's testimony, there was testimony from JD3 that defendant touched her on her vagina and that she saw defendant touch JD2 in a similar way. Further, JD2 testified she did not think JD3 was there during the one incident she recalled in which defendant threw her on her parents' bed and touched her vagina. JD2 testified she ran downstairs to her parents' bedroom shortly before defendant touched her and that everyone else (including JD3, if she was home that day) had stayed in the living room on the upper floor. In light of JD3's testimony that she saw defendant touch JD2, and JD2's testimony that JD3 was not there during the one incident she described, a jury could reasonably deduce that the touching of JD2 that JD3 observed was a separate, second incident. We conclude this evidence, combined with Norvell's testimony, was sufficient to support two convictions as to JD2.
Defendant asserts Norvell only testified that JD2 said a "touching" occurred three times, which was insufficient to show that that the "touching" was of JD2's vagina. At trial, however, JD2 testified she could not remember defendant touching her anywhere other than her vagina. Norvell testified that JD2 recalled defendant "touching her in the ways that she described" about three times. The jury could reasonably find that Norvell's references to JD2's statements about "touchings" meant defendant's touching of JD2's vagina.
Defendant also argues his counsel rendered ineffective assistance in connection with Norvell's testimony by eliciting testimony from him "for the first time" that JD2 said defendant touched her "three times." The record shows, however, that the prosecutor first elicited that testimony from Norvell. Specifically, the prosecutor asked, "Going back briefly to the recorded interview that you had with [JD2] in this case, in that interview, did [JD2] tell you about how many times she recalled the defendant touching her in the ways that she described?" Norvell responded: "I recall she said three. About three times. If I can refer to my report for the interview." After refreshing his recollection with his report, Norvell said JD2 recalled "approximately three times" that defendant touched her.
During the defense case, defendant called Norvell as a witness and asked him about his interview with JD2 to try to impeach JD2. After confirming JD2 told Norvell that defendant touched her about three times, counsel elicited testimony that JD2 was unable to describe the other two incidents. Counsel also pointed out statements JD2 made to Norvell—and which she repeated at trial—that were contradicted by her sister Jacqueline. Because counsel did not elicit damaging testimony "for the first time," but instead tried to minimize the impact of harmful evidence, we conclude his performance was not deficient and that defendant has failed to show he received ineffective assistance of counsel.
3. Sentence on Counts 3 , 4 , and 5
Defendant contends his 25-year-to-life sentences on counts 3, 4, and 5 violate the constitutional prohibition against ex post facto laws because at the time of the offenses a One Strike sentence for his crimes was 15 years to life. The Attorney General concedes, and we agree, the sentence must be modified.
Counts 3, 4, and 5 involved lewd or lascivious acts committed between January 22, 2003 and June 18, 2006. The 25-year-to-life sentence provided for under current law was enacted in 2010. (See § 667.61, subd. (j)(2), as amended by Stats. 2010, ch. 219, § 16.) Before that, a violation of section 288 subdivision (a) against multiple victims carried a 15-year-to-life sentence. (See Stats. 2006, ch. 337, § 33.) Thus, ex post facto principles require that defendant's sentence be modified to conform to the sentencing requirements in effect at the time of his crimes—15 years to life each for counts 3, 4, and 5, doubled pursuant to the strike.
4. Victim Restitution
Defendant contends the trial court: (a) erred in awarding $5,000 ($1,000 per count) in victim restitution under section 1202.4 subdivision (f); and (b) abused its discretion by ordering him to pay $50,000 in noneconomic victim restitution to JD1.
(a) $5,000 Victim Restitution
A trial court has authority to order victim restitution under section 1202.4 subdivision (f), which provides: "[I]n every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court." Section 1202.4 subdivision (f)(3) provides that "[t]o the extent possible, the restitution order . . . shall identify each victim and each loss to which it pertains, and shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct. . . ." Where a criminal act has injured a victim, "restitution orders must not be limited to the amount of money that has been paid or lost prior to the restitution hearing." (People v. Giordano (2007) 42 Cal.4th 644, 658.) The loss can, for example, occur after sentencing in the form of medical or mental health counseling expenses incurred after a restitution hearing is held. (Ibid.) A restitution claim is forfeited by a defendant's failure to object. (People v. Brasure (2008) 42 Cal.4th 1037, 1075.)
Here, the probation report recommended that the trial court order $5,000 in victim restitution, and defendant did not object when the court stated it was going to follow the recommendation. Defendant argues he is entitled to raise the issue for the first time on appeal because the court's order, which was issued without a showing of economic loss as required by statute, was an "unauthorized" sentence. An unauthorized sentence, however, " 'constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal.' " (People v. Martinez (2017) 10 Cal.App.5th 686, 721.) "[A]n unauthorized sentence is one that could not lawfully be imposed under any circumstance in the particular case." (Ibid.) In contrast, failing to object to the amount of an award forfeits "any claim that the order was merely unwarranted by the evidence, as distinct from being unauthorized by statute." (People v. Brasure, supra, 42 Cal.4th at p. 1075.) Here, defendant is essentially claiming there was insufficient evidence to support the restitution amount the trial court awarded. This is a factual assertion that could have been addressed below. His failure to object therefore forfeits the claim.
Defendant asserts that if the claim is forfeited, his counsel was ineffective because there could be no reason not to object. The record, however, sheds no light on counsel's actions. Counsel could have known the underlying basis for the restitution amount and saw no reason to challenge it. The probation report indicated JD1 was receiving counseling through the Contra Costa County Victim Witness Office and that a victim advocate was in contact with JD2 and J3 to make them aware those services were available to them. Given that a defendant can be held responsible for future counseling costs incurred by a victim (People v. Giordano, supra, 42 Cal.4th at p. 658), counsel could have been concerned the court could award a higher amount if he challenged the recommended amount. " 'Where the record does not illuminate the basis for the challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a petition for habeas corpus.' " (People v. Avena (1996) 13 Cal.4th 394, 419.) We reject defendant's ineffective assistance of counsel claim and affirm the victim restitution award.
(b) $50,000 Victim Restitution for JD1
Section 1202.4 subdivision (f)(3)(F) authorizes victim restitution for "[n]oneconomic losses, including, but not limited to, psychological harm, for felony violations of Section 288, 288.5, or 288.7." "Noneconomic damages are 'subjective, non-monetary losses including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation.' " (People v. Smith (2011) 198 Cal.App.4th 415, 431.) " 'No fixed standard exists for deciding the amount' " of these damages. (Id. at p. 436.) "Unlike restitution for economic loss, . . . loss for noneconomic loss is subjectively quantified." (Ibid.) Under a standard similar to what a jury in a civil case employs for noneconomic loss, a trial court " 'us[es] [its] judgment to decide a reasonable amount based on the evidence and [its] common sense.' " (Id. at p. 436.) We review the amount ordered for an abuse of discretion and will "affirm a restitution order for noneconomic damages that does not, at first blush, shock the conscience or suggest passion, prejudice or corruption on the part of the trial court." (Ibid., [affirming $750,000 in noneconomic damages to a victim he molested for 15 years, representing $50,000 per year].)
Here, there was evidence to support a finding that JD1 had suffered significant emotional consequences as a result of defendant's actions. JD1 was afraid of men, including her uncle with whom she lived. It took her several months to go near her uncle, and another several months before she could speak to him. She would hide behind her aunt when there were men around, avoid eye contact with men, and "chew on her hands." She engaged in obsessive behaviors, checked the locks on doors, and refused to go in a bathroom or shower if the door did not lock. She was in therapy to learn to deal with what defendant had done to her. According to the probation report, JD1 was "emotional" during her police interview and often looked down at the ground. She was traumatized about having to testify, which caused her to begin wetting her bed. The trial court heard JD1's aunt's testimony regarding JD1's emotional state after the abuse, observed JD1 testify, and issued an award that does not "shock the conscience or suggest passion, prejudice or corruption on the part of the . . . court." (People v. Smith, supra, 198 Cal.App.4th at p. 436.)
5. Abstract of Judgment
Defendant contends the abstract of judgment must be corrected because it contains two clerical errors: (1) the date for all of his crimes is listed as 2015 when, in fact, counts 3, 4, and 5 took place between 2003 and 2006; and (2) the two, five-year enhancements imposed under section 667 subdivision (a)(1) is listed on the abstract as being authorized by the wrong subdivision—section 667 subdivision (e). The Attorney General acknowledges the two clerical errors, and we agree. The abstract of judgment shall be amended to correct the dates of the crimes for counts 3, 4, and 5, and to state that the two, five-year enhancements are authorized section 667 subdivision (a)(1). (People v. Mitchell (2001) 26 Cal.4th 181, 185 [reviewing court can order that an abstract of judgment be corrected].)
6. Senate Bill 1393
Defendant's sentence included two additional 5-year-terms imposed under section 667 subdivision (a)(1) for his two prior serious felonies. At the time of sentencing, the trial court did not have discretion to strike one or both of the five-year enhancements under this section. Senate Bill No. 1393 changed that by amending section 1385 subdivision (b) to remove a prohibition on striking sentence enhancements for prior serious felony convictions under section 667. (Sen. Bill No. 1393 (2017-2018 Reg. Sess.) § 2.) Thus, as of January 1, 2019, a trial court may "exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes." (People v. Garcia (2018) 28 Cal.App.5th 961, 971.)
In a first supplemental opening brief, defendant argues that Senate Bill No. 1393 applies to him retroactively and requests remand for resentencing. The Attorney General concedes, and we agree, that the statutory amendments made by Senate Bill No. 1393 apply to him retroactively. (E.g., People v. Garcia, supra, 28 Cal.App.5th at pp. 972-973 [Senate Bill No. 1393 applies retroactively to judgments not yet final as of its effective date].) Moreover, the record does not "show[] that the trial court clearly indicated when it originally sentenced [defendant] that it would not in any event have stricken [the section 667, subdivision (a)(1)] enhancement." (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) Accordingly, the matter shall be remanded for resentencing for the trial court to exercise its discretion whether to strike one or both of the five-year enhancements under section 667 subdivision (a)(1).
7. Ability to Pay
Defendant argues in a second supplemental brief that the trial court violated his due process rights by imposing fees and a fine without considering his ability to pay. He relies primarily on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). There, the defendant, "an indigent and homeless mother of young children" who suffers from cerebral palsy, is unable to work, receives public assistance, has limited education, and has been unable to pay prior citations and fees, was convicted of driving with a suspended license. (Id. at pp. 1160-1163.) At sentencing, she argued she did not have the ability to pay fees and fines, produced evidence of her inability to pay, and requested a hearing on the issue. (Id. at pp. 1162-1163.) The trial court struck some fees but imposed a $30 court facilities assessment under Government Code section 70373, a $40 court operations assessment under section 1465.8, and a $150 restitution fine under section 1202.4. (Id. at pp. 1162, 1163.)
The Court of Appeal concluded that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under [section 1465.8] and Government Code section 70373" and that while section 1202.4 "bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Id. at p. 1164.)
Here, the trial court imposed a court conviction fine of $30 per count (Gov. Code, § 70373), a court operations assessment of $40 per count (§ 1465.8), and a $300 restitution fund fine (§ 1202.4, subd. (b)). Unlike the defendant in Dueñas, defendant did not express any concern about his ability to pay, did not proffer any evidence that the fees or fine would impose an undue hardship, and did not request a hearing. He also did not raise a due process argument to the trial court. Thus, he has forfeited his claim. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 (Frandsen) [Dueñas challenge forfeited by failure to object to fines and assessments at sentencing]; People v. Avila (2009) 46 Cal.4th 680, 729 [rejected argument that, because the defendant did not have the ability to pay, imposition of restitution fine under section 1202.4 was an unauthorized sentence not subject to the forfeiture rule]; People v. Trujillo (2015) 60 Cal.4th 850, 859 [the constitutional nature of the defendant's claim regarding his ability to pay did not justify a deviation from the forfeiture rule].)
In any event, even assuming there was no forfeiture, we would conclude any error in this case was harmless beyond a reasonable doubt. Defendant reported he had "steady union work" throughout the years that enabled him to earn "a couple of million dollars" during the course of his career. There is nothing in the record indicating that he, like the defendant in Dueñas, has a past history of being unable to pay court assessments or that he has limited assets or income that he needs to devote to vital child-care needs. He has not pointed to any circumstances, such as a disability, that casts doubt on his ability to obtain the funds for payment in the future. A defendant's ability to pay does not require existing employment or cash on hand. (People v. Staley (1992) 10 Cal.App.4th 782, 785.) Rather, it can be based on a person's future ability to earn, including his ability to earn prison wages. (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837.) Here, defendant will be serving many years in prison and has the capacity to earn, unlike the defendant in Dueñas, who suffered from cerebral palsy and had no home nor job. Based on the record, any reasonable trial court would have imposed the relatively low amount of assessment and fines even if it had considered defendant's ability to pay under Dueñas. Accordingly, we conclude any error was harmless beyond a reasonable doubt.
DISPOSITION
Defendant's sentence on counts 3, 4, and 5 shall be modified to 15 years to life for each count, doubled, and the abstract of judgment shall be amended to reflect that sentence on those counts. In addition, the clerical errors on the abstract shall be corrected to show that the crimes for counts 3, 4, and 5 took place between 2003 and 2006 and that the two, five-year enhancements were imposed under section 667 subdivision (a)(1). Finally, the matter is remanded for resentencing in light of Senate Bill No. 1393. The judgment is affirmed in all other respects.
/s/_________
Petrou, J.
WE CONCUR:
/s/_________
Siggins, P.J.
/s/_________
Jackson, J.