Opinion
G056781
06-26-2020
THE PEOPLE, Plaintiff and Respondent, v. JIMMY HOANG TRUONG, Defendant and Appellant.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16ZF0003) OPINION Appeal from a judgment of the Superior Court of Orange County, Thomas M. Goethals, Judge. Affirmed. Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
After failing to comply with an attempted lawful traffic stop, Jimmy Hoang Truong led police officers on an hour-long chase. During the pursuit, he fired a single shot at an officer, and later, he fired another shot that hit a parked car. After running over some spiked strips, Truong eventually stopped, and was pinned between two armored vehicles. He twice pointed his gun at the officer in one of the armored vehicles, but did not fire his weapon. Hours later, he surrendered.
Following a jury trial, as to the first shot, Truong was acquitted of attempted murder (count 1; Pen. Code, §§ 664, 187; all further statutory references are to the Penal Code unless otherwise stated), but found guilty of assault with a firearm on a peace officer (count 2; § 245, subd. (d)(2)). As to the second shot, the jury acquitted him of assaulting a peace officer with a firearm, but found him guilty of the lesser included offense of assault with a semiautomatic firearm (count 3; § 245, subd. (b)). The jury also convicted Truong of assaulting a peace officer with a semiautomatic firearm (count 6; § 245, subd. (d)(2)). Truong also was found to have possessed a firearm while a felon (count 4; § 29800, subd. (a)(1)), and to have evaded officers while driving recklessly (count 5; Veh. Code, § 2800.2). On counts 2, 3, 5, and 6, the jury found Truong personally used a firearm (§ 12022.5, subd. (a)).
The trial court imposed a total sentence of 18 years in state prison. As part of the sentence the court imposed a consecutive term of three years, eight months, for evading while driving recklessly (count 6). It also imposed a $5,000 restitution fine (§ 1202.4, subd. (b)(1)), a $200 court operations assessment (§ 1465.8), and a $150 court facilities assessment (Gov. Code, § 70373). Truong did not object to the imposition of the restitution fine or assessments.
Truong appeals, raising numerous claims of error. He contends the trial court erred in denying his motion to dismiss the indictment on the basis of destroyed, deleted or altered evidence by the government. The trial court determined Truong had not shown potentially exculpatory evidence actually existed or that any destruction or alteration was done in bad faith. We agree and reject this claim.
Truong also challenges the sufficiency of the evidence to support his assault convictions, arguing he lacked the requisite intent. As discussed below, we conclude substantial evidence supports the convictions.
Truong further contends the trial court erred in rejecting his requested instructions on assault, but we conclude the trial court properly declined to give these instructions because they were erroneous, duplicative, or confusing.
Truong also claims the trial court erred in imposing, rather than staying, a consecutive sentence on count 5, evading officers while driving recklessly, because the evading and the assaults formed part of an indivisible course of conduct. We conclude substantial evidence supported the court's implied finding Truong harbored a different intent and objective when committing the evading offense.
Finally, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Truong contends the trial court violated his federal constitutional rights by imposing a fine and assessments without holding a hearing on his ability to pay. We conclude Truong forfeited his claim by failing to object below, and even if not forfeited, any Dueñas error is harmless beyond a reasonable doubt. Accordingly, we affirm the judgment.
I
FACTUAL BACKGROUND
On November 7, 2015, at 9:22 p.m., Santa Ana Police Officer Peter Beaumarchais observed Truong driving a sedan with illegally tinted windows and expired tags. He watched as Truong committed several traffic violations, including crossing into the opposing traffic lane and failing to stop at a stop sign. Beaumarchais, who was in a marked patrol vehicle, turned on his lights and sirens, but Truong did not pull over. Beaumarchais followed Truong, and several other officers, including Santa Ana Police Officer Britain Speakman, joined the pursuit.
After Truong drove into a parking lot and stopped, Beaumarchais used a loudspeaker to order Truong to turn off his engine and throw his car keys to the ground. Truong did not comply and sped out of the lot. Meanwhile, Speakman positioned his patrol vehicle in front of Truong's path, exited and pointed his gun at Truong's vehicle. Truong looked at Speakman, shook his head, and then drove past the officer. Truong drove onto a nearby freeway, accelerating to 90 miles per hour before slowing to exit the freeway. When he reentered city streets, he continued to drive erratically, failing to stop at red lights and crossing into opposing traffic lanes.
Truong then drove through a gas station parking lot on the corner of Euclid and Edinger streets. As Truong exited the parking lot, Beaumarchais spotted Truong extending his left arm outside the sedan's window, point back and fire a single shot. Beaumarchais could tell the gun was pointed at him based on the muzzle flash from the gun barrel. He explained he had seen other officers fire guns during practice training and observed how muzzle flashes look from behind. Beaumarchais swerved and reported the shot over police dispatch as he continued the pursuit.
Truong continued driving erratically. Around 10:30 p.m., he drove over spike strips placed by the police, which caused his tires to deflate. Truong continued driving on the wheel rims.
One minute after driving over the spikes, Truong fired another shot backward while driving past a car wash. Santa Ana Police Officer Moises Jimenez, who was blocking the nearby intersection, heard the gunshot and later recovered the expended casing. The bullet struck a parked car a quarter of a mile away.
At 10:37 p.m., Truong called 911 and was connected to Santa Ana Corporal Mauricio Estrada, a trained negotiator. Estrada was at the Santa Ana police station, listening to dispatch and watching the chase on the news broadcast. Truong said he wanted the pursuing officers to give him more space, and Estrada replied he would try to do this. Truong later make several more calls to Estrada.
After Truong stopped his car on Euclid near Fifth Street, Beaumarchais again ordered Truong to turn off his engine and throw his car keys to the ground. Truong did not comply. Estrada arrived on scene and spoke to Truong over a bullhorn. Truong's uncle, Anaheim Police Officer Long Cao, also arrived at the scene to persuade Truong to surrender.
During the pursuit, a helicopter, codenamed "Duke," arrived to provide air support at 9:38 p.m. Onboard were pilot Deputy Brian Fisher and Tactical Flight Officer Joseph Kantar from the Orange County Sheriff's Department. The Duke helicopter was equipped with an infrared camera (FLIR camera), but Kantar did not activate the FLIR camera until 10:47 p.m. Around 11:00 p.m., the Duke helicopter left to refuel and returned 25 minutes later. During this time, an Anaheim police helicopter, codenamed "Angel," took over air support and recorded the events. When the Duke helicopter returned, Kantar recorded police officers blocking Truong's car with two armored vehicles.
Santa Ana Police Officer Edward Gutierrez was drove an armored vehicle directly in front of Truong's car. Although the armored vehicle was bullet resistant, it was not bulletproof. At 11:45 p.m., Truong began spinning his wheel rims. At 11:46 p.m. and at 11:48 p.m., Truong pointed his gun at Gutierrez, who reported Truong's actions over dispatch.
Gutierrez saw Truong speaking on a cellular phone. When Truong pointed the gun at Gutierrez, Truong was holding the phone in his left hand and the gun in his right hand. Truong's finger was on the trigger during both incidents. Besides pointing the gun at Gutierrez twice, Truong also pointed the gun at his own head several times.
Because Truong was repeatedly spinning his wheel rims on the pavement, the grinding created a substantial amount of smoke. Fire personnel immediately doused Truong's vehicle with water. Truong finally exited his car and surrendered at 2:40 a.m.
About four hours later, Santa Ana police detectives Francisco Gomez and Jim Garcia conducted a videotaped interview of Truong. Truong explained he did not pull over when ordered because he had a gun in the car. He claimed an acquaintance had given him a partially loaded .45-caliber handgun a week before the incident, and that he later found additional .45-caliber bullets in a trash can. He also claimed he never fired a handgun before, but knew how to operate guns from reading magazine articles.
Truong admitted firing a single shot near the gas station and the car wash, but claimed he shot toward the ground and not at any peace officer, explaining he fired the shots so the officers would back off and give him more "space." Truong denied intentionally pointing a gun at Gutierrez, noting he was on the telephone with Estrada at the time. Truong also revealed he was hoping an officer would shoot him. Truong explained he had abused methamphetamine for the last 12 years, and had smoked some residue in a pipe before the police chase.
Truong's trial testimony was consistent with his recorded interview. He admitted he knew his possession of a handgun was illegal because he lacked a license for the gun and had prior felony convictions for identity theft and commercial burglary. Truong claimed he kept the fully loaded gun because he lived in a dangerous neighborhood, asserting he had been shot when he was 16 years old in a "random drive-by." He reiterated when he fired the single shot near the gas station he shot toward the ground and did not see anyone in his line of sight. When he fired the second shot near the car wash, he again did not see anyone in the line of fire. He thought the bullet would strike what he believed was a vacant store behind the car wash, but later acknowledged he did not have a clear view and that beyond the parking lot of the vacant store was an apartment complex. Truong claimed he could not see Officer Gutierrez in the armored vehicle, and denied "directly" pointing a gun at Gutierrez, but admitted he might have pointed a gun inadvertently at the officer.
Truong's uncle, Officer Cao, testified to Truong's good character, although Cao acknowledged Truong's living circumstances and was unaware of his prior convictions. Cao also testified as an expert witness, and opined it was not possible to tell where the shooter aimed a handgun simply by seeing a muzzle flash. He acknowledged that he did not know whether a muzzle flash looked different when observed from the front or side.
Lester Kozlowski, a defense expert on image sensors, testified about the encounter between Truong and Gutierrez based on his review of thermal images taken by the Duke helicopter. Based on the spotlights on Truong's car and the nighttime conditions, he opined it would be difficult and very unlikely for Truong to see Gutierrez inside the armored vehicle and for Gutierrez to see inside Truong's car. However, he acknowledged the armored vehicle's spotlights were off when it approached Truong's car.
Russell Darnell, an accident reconstruction expert, testified that Beaumarchais would not "have been in a position to see Mr. Truong's hand come out the window at the moment the shot was fired" near the gas station. Darnell acknowledged he based his opinion on calculations derived from statements by Beaumarchais and other officers and the relative distances and locations of the vehicles. He conceded Beaumarchais could have seen the gun if his time estimates were off by two seconds. Darnell also opined that based on the relative heights of the armored vehicle and Truong's car, a person sitting inside Truong's car would not have been able to see into the passenger compartment of the armored vehicle. But he acknowledged if Gutierrez could see Truong's face, Truong also could see Gutierrez.
II
DISCUSSION
A. The Trial Court Properly Denied Truong's Motion to Dismiss the Indictment
Truong contends the trial court erred in refusing to grant his motion to dismiss the indictment on the basis of destroyed, deleted or altered evidence by the government. We disagree.
1. Relevant Factual and Procedural Background
Truong filed a pretrial motion arguing the trial court should impose sanctions, including dismissal of the case, because the police altered or destroyed evidence, which he claimed violated his due process rights under California v. Trombetta (1984) 467 U.S. 479 (Trombetta) and Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood). Truong asserted law enforcement altered the 911 calls and dispatch recordings and file 4 of the Duke helicopter video recordings was missing.
The motion to dismiss the indictment claimed other evidence was deleted or altered, but on appeal Truong limits his claim of error only to the Duke file 4 and the altered 911 and dispatch calls.
The prosecution opposed the Trombetta/Youngblood motion, arguing the Duke file 4 never existed and if any evidence was destroyed, Truong could not show the evidence was exculpatory at the time of destruction, that law enforcement acted in bad faith or that he could not obtain the evidence he seeks by other reasonable means.
At the hearing on the motion, Deputy Kantar testified the missing footage covered a 20 minute period from 12:34 a.m. to 12:55 a.m., but nothing significant occurred during that time. Kantar believed file 4 never existed due to a malfunction with the FLIR camera, which had to be restarted. William Fitzgerald, an operations sergeant with the Air Support Services division of the Orange County Sheriff's Department, agreed that if the camera malfunctioned, it had to be rebooted and when a reboot occurred, it automatically created a new recording file.
As to the audio recordings of the 911 calls and the dispatch broadcasts, Santa Ana Police Communications Manager Lisa Barringer testified that when receiving a request for an audio file, she prepared the file using the "skip silence" option, which was standard Santa Ana Police policy for over 10 years. The "skip silence" feature eliminates silent pauses ("dead air time") in the file, but does not otherwise alter the recording. Barringer personally had prepared "thousands" of files over a decade in that manner, and was unaware of anyone requesting a recording that included silent pauses. She testified she never used the skip silence feature with the intent to eliminate exculpatory information, and noted the edited recording could be compared to the dispatch log for timestamps. Finally, although the recordings did not include a notation that silent pauses had been removed, the alteration would have been obvious from the length of the recording.
Defense expert Darnell testified he was unable to recreate the incident and plot the exact angles of the shots fired and their direction because of the missing dispatch recordings, the missing Duke video, and not having a Duke video from the beginning of the pursuit.
The trial court denied the request for sanctions, concluding Truong failed to produce sufficient evidence to warrant relief under Youngblood and Trombetta. As to the Duke video, the court was not convinced that "'file 4' of potential DUKE helicopter video ever actually existed," and concluded that "the evidence presented no reasonable scenario whereby 'file 4' was, or could have been, deleted intentionally or otherwise." As to the audio recordings, the court concluded Truong failed to demonstrate potentially exculpatory evidence had been lost or the use of the skip silence feature had been done in bad faith.
2. Analysis
"We review the trial court's decision on a Trombetta/Youngblood motion under the substantial evidence standard." (People v. Alvarez (2014) 229 Cal.App.4th 761, 774 (Alvarez).) "'In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible, and of solid value' in support of the court's decision. [Citation.]" (Ibid.) "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." (Ibid., internal quotations and citations omitted.)
The trial court found Truong did not show the Duke file 4 ever existed. Kantar's testimony supports the court's reasoning the time for any file 4 coincided with the malfunction of the FLIR camera. Fitzgerald's testimony, which explained that rebooting the FLIR camera creates a new file - file 5, also supports the court's ruling. Because Truong failed to show file 4 ever existed, he failed to make a prima facie case for relief under Trombetta and Youngblood.
We also conclude Truong has not shown the removal of the silent pauses on the audio recordings destroyed evidence possessing "exculpatory value that was apparent" when it was deleted. (See Trombetta, supra, 467 U.S. at pp. 488-489.) Rather, the destroyed evidence was, at best, "potentially useful" for the defense accident reconstructionist. (See Youngblood, supra, 488 U.S. at p. 58.) Moreover, Truong failed to show the removal of the silent pauses was done in bad faith. (See Alvarez, supra, 229 Cal.App.4th at p. 776 ["We review the trial court's finding on the existence or nonexistence of bad faith under the substantial evidence standard."].) As Barringer testified, the removal of the silent pauses was standard Santa Ana Police department policy for over 10 years, the skip silence feature did not otherwise alter the recording, and the timestamps could be checked with the dispatch log. Substantial evidence supports the trial court's finding the officers did not act in bad faith. In sum, we conclude the trial court properly denied Truong's Trombetta/Youngblood motion.
B. Substantial Evidence Supported Truong's Convictions
Truong contends the evidence was insufficient to support his convictions on counts 2, 3 and 6. On appeal, we review the record in the light most favorable to the judgment below. (People v. Elliot (2005) 37 Cal.4th 453, 466.) The test is whether substantial evidence supports the verdict. (Jackson v. Virginia (1979) 443 U.S. 307, 318; People v. Johnson (1980) 26 Cal.3d 557, 577-578.) Substantial evidence is defined as evidence that is reasonable in nature, credible, and of solid value. (People v. Albillar (2010) 51 Cal.4th 47, 60.) The uncorroborated testimony of a single witness is sufficient to sustain a conviction. (People v. Gammage (1992) 2 Cal.4th 693, 700 (Gammage).) It is the jury's exclusive province to weigh the evidence, assess the credibility of the witnesses, and resolve conflicts in the testimony. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330 (Sanchez).) The fact that circumstances can be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 932-933.) Consequently, an appellant "bears an enormous burden" in challenging the sufficiency of the evidence. (Sanchez, supra, at p. 330.)
As to count 2, firing on Officer Beaumarchais near the gas station, Truong argues the evidence showed it was physically impossible for him to fire at Beaumarchais if the officer was directly behind him, as the officer testified. He also notes his expert witness Darnell opined it was physically impossible for Beaumarchais to see the gun. However, Darnell acknowledged Beaumarchais could have seen the gun if his time estimate was off by two seconds. Consequently, the jury reasonably could find credible Beaumarchais's testimony he saw Truong fire the gun at him. Thus, Beaumarchais's testimony constituted substantial evidence to support the conviction on count 2. (Gammage, supra, 2 Cal.4th at p. 700 [testimony of a single witness is sufficient to sustain a conviction].)
As to count 3, firing the single shot past the car wash, Truong argues his testimony showed he did not see anyone in the line of fire and therefore he lacked awareness of facts "that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone." Truong, however, testified he fired the shot so the pursuing officers would back off and give him more space. In addition, he testified he was aware that past the car wash was a parking lot, and past the lot was an apartment complex. The evidence was sufficient to support the conviction. (Cf. People v. Riva (2003) 112 Cal.App.4th 981, 998 ["The facts in this case would lead a reasonable person to realize if he fired a gun at someone in a car at this time of day in this kind of neighborhood the bullet could strike a pedestrian and a battery would directly, naturally and probably result from his conduct"].)
Finally, Truong contends insufficient evidence supported count 6, assaulting Officer Gutierrez with a firearm, because the evidence showed he could not see the officer in the armored vehicle. The jury, however, reasonably could rely on evidence Gutierrez contemporaneously broadcasted he could see Truong pointing the gun at him, and Darnell acknowledged that if Gutierrez could see Truong, Truong had a line of sight to Gutierrez. Substantial evidence supported the conviction.
C. There Were No Instructional Errors
Defense counsel asked the trial court to modify CALCRIM No. 860, the standard assault instruction, to include a provision that the defendant could not be convicted of assault if his intent "was only an attempt to frighten or distract." Truong complains the trial court erred when it refused to give his requested modification on the attempt to frighten as it related to counts 2 and 3. We conclude no error occurred.
Assault is a general intent crime, and "a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct." (People v. Williams (2011) 26 Cal.4th 779, 788 (Williams).) Thus, a defendant could be convicted of assault even if he honestly believed his act was not likely to result in a battery. (Id. at p. 788, fn. 3.) The requested pinpoint instruction misstated the law because it suggested Truong was not guilty of assault if he merely attempted to frighten or distract the pursuing officers by firing the two shots. But, even if Truong had the subjective intent to frighten or distract, the jury could convict Truong of assault if it found that a reasonable person would realize firing the shots at pursuing officers or in the direction of an apartment complex would "directly, naturally and probably result" in a battery on an officer or apartment resident. (Ibid.) The trial court properly declined to give an erroneous or confusing instruction.
Truong also claims the trial court erred in refusing to augment CALCRIM No. 860 and CALCRIM No. 875, the standard instructions on the lesser included offense of assault with a deadly weapon, with a provision noting Truong could not be convicted of assault if he acted with criminal negligence or mere recklessness. The trial court declined to modify the instructions because "[i]f you have an intent, even though it is a general intent, you can't be found guilty based on negligence alone. One precludes the other as far as I am concerned."
We find no error because the requested pinpoint instructions were duplicative and confusing. The trial court instead instructed the jury that Truong could be convicted of assault only if he acted "willfully" and "was aware of facts that would lead a reasonable person to realize his act by its nature would directly and probably result in the application of force to someone." The instructions comported with the mental state required for assault set forth in Williams, supra, 26 Cal.4th at p. 788, which our Supreme Court concluded was not the same mental state as criminal negligence or mere recklessness. (See id. ["mere recklessness or criminal negligence is still not enough [citation], because a jury cannot find a defendant guilty of assault based on facts he should have known but did not know," fn. omitted].) In sum, the trial court properly declined the requests to modify CALCRIM No. 860 and CALCRIM No. 875.
D. The Trial Court Acted Within Its Discretion to Impose a Consecutive Sentence on Count 5
As noted, the trial court imposed a consecutive sentence on count 5, evading an officer. Truong did not object below, but now contends the trial court erred in failing to stay the sentence on count 5 under section 654 because the evading offense and first two assaults formed part of a single course of conduct. Alternatively, he contends the trial court should have imposed a concurrent term on that count because all of the crimes were committed during "a single period of aberrant behavior."
Section 654 precludes multiple punishments for a single act or indivisible course of conduct. (People v. Jackson (2016) 1 Cal.5th 269, 353-354.) "'"Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one."'" (People v. Capistrano (2014) 59 Cal.4th 830, 885, overruled on other grounds in People v. Hardy (2018) 5 Cal.5th 56, 104.) "A trial court's express or implied determination that two crimes were separate, involving separate objectives, must be upheld on appeal if supported by substantial evidence." (People v. Brents (2012) 53 Cal.4th 599, 618.)
Here, substantial evidence supported the trial court's implied finding that Truong harbored multiple intents when he committed the evading offense and the assaults. The court could find Truong's intent to evade pursuing officers was to avoid capture while his intent in assaulting the officers was to slow their pursuit so he could get rid of his gun. (See People v. Jimenez (2019) 32 Cal.App.5th 409, 425-426 [although defendant argued he harbored a single objective to avoid apprehension, substantial evidence supported implied finding he both intended to evade and tried to assault the pursuing officers].) The evading and assaults also required different physical actions to complete (driving vs pointing a gun out the window and firing). (Cf. People v. Jackson, supra, 1 Cal.5th at p. 354 [defendant harbored two different intents and objectives when he committed a burglary and murder against a single victim because the two crimes were "necessarily accomplished through separate actions: removing the cash from the envelope on one hand and doing violence to [the victim] on the other."].) The evidence also supports the court's implied finding Truong sought to initially evade apprehension but later intended to provoke the officers into killing him by firing his weapon at them. There was no sentencing error.
We also reject Truong's claim the trial court should have imposed a concurrent term on count 6. "Section 669 grants the trial court broad discretion to impose consecutive sentences when a person is convicted of two or more crimes." (People v. Shaw (2004) 122 Cal.App.4th 453, 458, citations omitted.) A single factor in aggravation is sufficient to justify a sentencing choice. (People v. Quintanilla (2009) 170 Cal.App.4th 406, 413.) The trial court found several aggravating factors, including that Truong had committed "a series of crimes of violence," and that he placed a "lot of people, including yourself, at great risk" of being killed. The trial court acted within its sentencing discretion.
E. Dueñas Error
Finally, relying on Dueñas, 30 Cal.App.5th 1157, which was issued after the trial court pronounced sentence, Truong argues his federal constitutional rights were violated when the court imposed a $150 court facilities assessment (Gov. Code, § 70373), a $200 court operations assessment (§ 1465.8), and a $5,000 restitution fine (§ 1202.4) without first determining whether he has the ability to pay them.
Truong forfeited his claim on the restitution fine because the fine exceeded the statutory minimum, and he could have, but did not, object at sentencing. (See People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 ["even if Dueñas was unforeseeable . . . , under the facts of this case [the defendant] forfeited any ability-to-pay argument regarding the restitution fine by failing to object."]; People v. Frandsen (2019) 33 Cal.App.5th 1126 (Frandsen) [before Dueñas, an objection to a fine above the statutory minimum would not have been futile]; see also People v. Avila (2009) 46 Cal.4th 680, 729 [defendant forfeited challenge to restitution fine greater than the minimum by failing to raise the argument below].)
As to the assessments, Truong arguably forfeited his claim of Dueñas error by failing to object. (See Frandsen, supra, 33 Cal.App.5th at p. 1154.) Even if not forfeited, any error was harmless beyond a reasonable doubt. Based on the record, we infer that, unlike the probationer defendant in Dueñas, Truong has the ability to pay the $350 in fine and assessments, including the money he will earn from prison wages. (See People v. Jones (2019) 36 Cal.App.5th 1028, 1035 (Jones) [noting prison wages range from a minimum of $12 to $56 per month depending on the prisoner's skill level].) The record does not disclose Truong suffers from any infirmity precluding him from work. Thus, he will be able to earn $350 during his prison sentence. (People v. Johnson (2019) 35 Cal.App.5th 134, 139-140 [concluding that "because [defendant] has ample time to pay it from a readily available source of income while incarcerated, the error is harmless beyond a reasonable doubt"]; Jones, supra, 36 Cal.App.5th at p. 1035 [finding any Dueñas error harmless because defendant "will have sufficient time to earn these amounts during his sentence, even assuming [defendant] earns nothing more than the minimum."].) Accordingly, we find any Dueñas error to be harmless beyond a reasonable doubt.
III
DISPOSITION
The judgment is affirmed.
ARONSON, J. WE CONCUR: O'LEARY, P. J. MOORE, J.