California Court of Appeal Dec 11, 2023 No. E079600Unpublished
Filed 12/11/23 P. v. Wynne CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E079600
v. (Super.Ct.No. INF1801841)
ALEC WYNNE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Dean Benjamini, Judge.
Affirmed.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier, Sahar
Karimi and Arlyn Escalante, Deputy Attorneys General, for Plaintiff and Respondent.
1
I. INTRODUCTION
A jury found defendant and appellant Alec Wynne guilty as charged in two counts
of committing a lewd act on a child under the age of 14. (Pen. Code, § 288, subd. (a);1
counts 1-2.) The jury also found a multiple-victim enhancement allegation true.
(§ 667.61, subds. (e)(4), (j)(2).) The victims in counts 1 and 2, respectively, were
defendant’s step-granddaughters, sisters Jane Doe and Mary Doe. Defendant was
sentenced to concurrent terms of 25 years to life on counts 1 and 2. The court imposed a
$300 restitution fine (§ 1202.4, subd. (a)) and stayed a $300 parole revocation fine
(§ 1204.45, subd. (c)).
In this appeal, defendant claims the trial court prejudicially erred (1) in admitting
“two-year old fresh complaint evidence” on count 1, and (2) in instructing the jury on
child sexual abuse accommodation syndrome (CSAAS) pursuant to CALCRIM No.
1193. Defendant claims the fresh-complaint evidence was too old to be admissible as
such, and CALCRIM No. 1193 is unconstitutional on its face because it allows the jury to
consider CSAAS testimony in evaluating the credibility of the complaining witness.
Defendant further claims (3) the cumulative effect of the trial court’s errors
requires reversal, and (4) the $300 restitution fine must be stricken because the trial court
did not consider defendant’s inability to pay the fine due to his advanced age and
physical disability. At the time of sentencing on August 12, 2022, defendant was
1 Undesignated statutory references are to the Penal Code.
2
73 years old, and he was using a wheelchair due to a partial amputation in 1991 of his left
leg, below the knee. He formerly used a prosthetic leg.
We affirm the judgment in all respects.
II. FACTUAL BACKGROUND
A. Prosecution Evidence
1. Jane Doe (Count 1)
(a) Defendant’s Prior Lewd Act Against Jane
Jane testified that, when she five or six years old, she and her younger cousin Julie
Doe were staying the night at the home of her grandmother and defendant in Northern
California. That evening, Jane was lying on her stomach watching television on a bed in
the grandmother and defendant’s bedroom when defendant came into the room, put his
hand up Jane’s nightgown, and rubbed her bare buttocks. When the incident happened,
the grandmother and Julie were in the kitchen. Jane did not understand why defendant
touched her, and she was afraid of defendant. Jane called her mother and asked her
mother to pick her up, but her mother was unable to do so until the next day. Jane did not
tell her mother that defendant touched her. That night, to feel safe, Jane slept in a closet
with her cousin Julie.
(b) The Charged Lewd Act Against Jane
When Jane was 9 or 10 years old, defendant and Jane’s grandmother visited Jane’s
home in Desert Hot Springs. Jane was afraid defendant would touch her again. One
night, Jane slept on a bed next to her grandmother, in a bedroom, and Jane’s cousin Julie
slept on the floor. Defendant was sleeping on the couch in the living room. Jane awoke
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to find defendant lying on the bed next to her, with his finger inside her vagina,
underneath her clothes. Jane’s grandmother was still asleep on Jane’s other side. Jane
felt pain in her vaginal area. Jane got up from the bed, went to the restroom, and started
crying.
(c) Jane’s Additional Testimony
Jane had nightmares after defendant touched her bare buttocks when she was five
or six years old. After defendant put his finger inside her vagina at her home in Desert
Hot Springs when she was 9 or 10 years old, Jane would go to her aunt and uncle’s home
next door, and stay there all day when she knew her grandmother and defendant would be
visiting her home. Jane did not tell anyone about what defendant had done until she was
older. As she became older, she began learning in school about molestation “and
speaking up,” so she finally disclosed the molestations to her aunt, Sonia A. In a video-
recorded forensic interview, which was played for the jury, Jane described the
molestations and her disclosure to Sonia.
(d) The Fresh-complaint Evidence
Sonia testified that, when Jane was 13 years old and living next door to Sonia in
Desert Hot Springs, Jane told Sonia that defendant had touched Jane’s “private parts” on
multiple occasions. Jane also told Sonia (1) Jane knew defendant and her grandmother
were coming to visit Jane’s home in Desert Hot Springs, (2) Jane was afraid defendant
would touch her again during the visit, and (3) Jane had nightmares about the prior
molestations after they occurred. Soon thereafter, Sonia told Jane’s mother what Jane
had told Sonia.
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2. Mary Doe (Count 2)
Jane’s sister Mary is one year younger than Jane. Mary testified that, when she
was 8 or 9 years old, defendant and his wife (Mary’s grandmother) visited Jane and
Mary’s home in Desert Hot Springs. When Mary was alone in her room, defendant came
into the room, hugged Mary, stuck his tongue in Mary’s mouth to kiss her, and rubbed his
erect penis against Mary’s vaginal area. Defendant was standing when he did these
things; Mary knew defendant had a “metal” leg and had never known defendant to use a
wheelchair.
A few days after the incident, Mary told her mother about what defendant had
done. In a separate conversation a few days after the incident, Mary also told Jane about
the what defendant had done. Mary did not see defendant again until the time of trial. In
a video-recorded forensic interview, which was played for the jury, Mary discussed the
molestation incident and her disclosure of it to her mother.
3. Defendant’s Other Lewd Acts
Jane and Mary’s cousin Julie testified that, one night when she was six or seven
years old, Julie and Jane were visiting their grandmother and defendant’s home in
Northern California. Julie and Jane were sleeping next to each other on the floor in front
of the bed where their grandmother and defendant were sleeping. During the night, Julie
awoke to find defendant using his hand to rub Julie’s and Jane’s bare backs, underneath
their nightgowns. Defendant also rubbed Julie’s bare buttocks with his hand. Julie saw
that Jane’s underwear was pulled down past her knees. Julie did not see defendant touch
Jane’s bare buttocks, but she saw his hand “going down.” Later that night, Julie was in
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the restroom, and when she opened the door to leave defendant was “right there.”
Defendant picked up Julie slowly, and rubbed his penis against her stomach and her
vaginal area over her nightgown and underwear.
Jennifer Doe is Julie’s sister and also a cousin to Mary and Jane. When Jennifer
was five or six years old, defendant visited Jennifer’s home. During a game of hide and
seek with other children, Jennifer and defendant were alone in the backyard when
defendant asked Jennifer to give him a hug. Defendant picked up Jennifer and slowly
moved her up and down against his penis. Defendant also put his hands on Jennifer’s
breasts over her clothes and tried to put his hand on her chest through the neck of her
shirt.
Janice Doe is unrelated to Jane, Mary, Julie, and Jennifer. In October 2015, when
Janice was eight years old, Janice and her sister spent the night at the home of defendant
and his wife in Northern California. Janice and her sister were sleeping on a bed when
Janice awoke to find defendant rubbing Janice’s vaginal area under her pants and
underwear.
The next day at school, Janice wrote separate letters to her mother and defendant’s
wife, telling them defendant “put his hand down [her] pants under [her] underwear.” The
letter Janice wrote to her mother was admitted into evidence. Janice, Julie, and Jennifer
spoke to forensic interviewers about the molestations, and video-recordings of the
interviews were played for the jury. Defendant had a 2015 felony conviction for
committing a lewd act with an eight-year-old girl. (§ 288, subd. (a).)
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4. CSAAS Evidence
Dr. Veronica Thomas, a forensic psychologist, testified as an expert on child
sexual abuse accommodation syndrome (CSAAS) and its five features or components:
secrecy, helplessness, entrapment, disclosure, and retraction. Not all victims of child
sexual abuse exhibit all five features. CSAAS is not a diagnostic tool; it cannot be used
to determine whether a person has been sexually abused. CSAAS helps explain why
victims of child sexual abuse are “not going to be perfectly straightforward, open and
honest” about the abuse. Two forensic interviewers who testified for the prosecution also
discussed aspects of CSAAS, including delayed disclosure.
B. Defense Case
The defense did not present any affirmative evidence. The defense claimed that
Jane and Mary fabricated the charged molestations because they wanted to live with their
father instead of their mother.
III. DISCUSSION
A. The Trial Court Did Not Abuse its Discretion in Admitting Sonia’s Testimony as
Fresh-complaint Evidence on Count 1
Defendant claims the trial court abused its discretion in admitting “two-year old
‘fresh complaint’ evidence” on count 1 through the testimony of Jane’s aunt, Sonia.
Defendant argues that “Jane’s disclosure falls squarely outside of the ‘fresh complaint’
doctrine as articulated in People v. Brown (1994) 8 Cal.4th 746” because Jane did not tell
Sonia about the alleged molestations until two years after the most recent alleged
molestation occurred.
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1. The Motion in Limine to Admit Sonia’s Testimony
The People filed a motion in limine to allow Sonia to testify that Jane told Sonia
that defendant “touched [Jane] and made her uncomfortable” as fresh-complaint evidence
on count 1. At the hearing on the motion, the prosecutor explained that Jane made the
statement to Sonia in November 2017, two years after the charged lewd act in count 1
occurred; defense counsel argued the complaint was therefore too old to qualify as fresh-
complaint evidence. The court ruled that the circumstances in which Jane made the
complaint—when Jane was told her grandmother and defendant would be visiting Jane’s
home in Desert Hot Springs—weighed in favor of its admission because they lent it
sufficient credibility and weight. Thus, the court ruled that Sonia’s testimony about
Jane’s complaint to Sonia was admissible, subject to a limiting instruction that the
complaint was not to be used as proof of the truth of the matter asserted in the complaint,
namely, that defendant molested Jane.
2. Legal Principles
“The fresh-complaint doctrine originated with the 13th-century rule of ‘hue and
cry,’ which required victims of rape and other violent crimes to alert the community
immediately following the commission of the crime.” (People v. Brown (1994) 8 Cal.4th
746, 754 (Brown).) Under the ancient rule, the victim’s extrajudicial complaint was a
necessary element of, and was therefore admissible as part of, the prosecution’s case in
chief. (Ibid.) Later, in the 19th century, courts developed the hearsay rule which bars the
admission of extrajudicial statements to prove the truth of the matter asserted. (Ibid.) In
sexual assault cases, however, the fresh-complaint doctrine replaced the hue and cry rule
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and permitted the admission of evidence that the victim complained of a sexual assault
while excluding the details of the complaint. (Id. at pp. 754-755.)
Under the fresh-complaint doctrine, a victim’s extrajudicial complaint that a
sexual offense occurred was not admissible to show that the offense occurred; it was only
admissible to show that the victim promptly complained of the offense after it occurred.
(Brown, supra, 8 Cal.4th at p. 755.) Fresh-complaint evidence served to dispel the notion
in the minds of jurors that, if the victim did not complain of the offense to someone,
promptly after it occurred, then the alleged offense must not have occurred and the victim
must not be telling the truth in testifying at trial that the offense occurred. (Ibid.)
To be admissible under the old fresh-complaint doctrine, “the complaint must have
been truly ‘fresh’ or ‘recent,’ under the rationale that, if not volunteered promptly
following commission of the offense, the complaint no longer could negate legitimately
the inference that the victim had remained silent in the aftermath of the alleged offense.”
(Brown, supra, 8 Cal.4th at p. 756.) In more recent times, “one of the historical premises
of the fresh-complaint doctrine—namely, that it is ‘natural’ for the victim of a sexual
offense to disclose promptly the commission of the offense in the event it did occur—
largely has been discredited . . . .” (Id. at p. 759.)
In Brown, our Supreme court revised the fresh-complaint doctrine “to reflect a
more accurate understanding of the proper basis for the admission” of fresh-complaint
evidence. (Brown, supra, 8 Cal.4th at pp. 749, 757-758.) Brown held that, “under
principles generally applicable to the determination of evidentiary relevance and
admissibility, proof of an extrajudicial complaint, made by the victim of a sexual offense,
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disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose—
namely, to establish the fact of, and the circumstances surrounding, the victim’s
disclosure of the assault to others—whenever the fact that the disclosure was made and
the circumstances under which it was made are relevant to the trier of fact’s
determination as to whether the offense occurred.” (Id. at pp. 749-750.)
Under Brown, the timing or “ ‘freshness’ ”of a complaint that a sexual offense
occurred (whether the complaint was made promptly after the offense or at a later date)
and the circumstances under which the complaint was made (whether the complaint was
volunteered or was made in response to an inquiry) are not “essential prerequisites” to the
admission of the complaint as fresh-complaint evidence. (Brown, supra, 8 Cal.4th at
pp. 750, 763.) Rather, “evidence of the fact of, and the circumstances surrounding, an
alleged victim’s disclosure of the offense may be admitted in a criminal trial for
nonhearsay purposes,” provided the evidence is both relevant to the issues in the case and
is not subject to exclusion under Evidence Code section 352. (Brown, at p. 763.)
We review a trial court’s ruling on the admission and exclusion of fresh-complaint
evidence under the abuse of discretion standard. (People v. Thompson (2010) 49 Cal.4th
79, 128.) The court’s ruling “will not be disturbed except on a showing the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted
in a manifest miscarriage of justice.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
As we explain, the trial court here did not abuse its discretion in admitting Sonia’s
testimony as fresh-complaint evidence on count 1.
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3. Analysis
Defendant argues that Jane’s extrajudicial statement to Sonia that defendant had
molested Jane on prior occasions was inadmissible as fresh-complaint evidence because
it was not made “immediately following” the alleged molestations but was “preceded by
a very lengthy two-year delay.” Defendant argues that, although Brown “did not specify
a maximum acceptable time of delay” and held that a complaint may still be deemed
“ ‘fresh’ ” if there is “ ‘some delay’ ” between the sexual offense and the victim’s
complaint or disclosure, “common sense and fairness dictates there must be some outer
bound on the length of the delay before the complaint can no longer be considered a
‘fresh’ complaint within the meaning of Brown.” Defendant claims a two-year delay in
reporting the alleged offense exceeds this “outer bound.” We disagree.
As noted, under Brown, the admissibility of fresh-complaint evidence “does not
turn invariably upon whether the victim’s complaint was made immediately following the
alleged assault or was preceded by some delay, nor upon whether the complaint was
volunteered.” (Brown, supra, 8 Cal.4th at p. 763.) Rather, the fact of the complaint and
the circumstances surrounding its making “may be relevant for a variety of nonhearsay
purposes, regardless whether the complaint is prompt or delayed.” (Id. at p. 761.)
Here, the trial court reasonably concluded that Jane’s “two-year old” complaint to
Sonia was not too old to be admissible as fresh-complaint evidence given the
circumstances in which Jane made the complaint. As the court observed, Jane did not
make the complaint “out of the blue for no reason”; rather, Jane made the complaint to
her aunt Sonia after Jane learned that defendant was coming to visit Jane’s home in
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Desert Hot Springs and, Jane feared, might molest Jane again during the visit. Thus, the
court reasonably concluded that the circumstances in which the complaint was made lent
the complaint sufficient “credibility” and “weight” to make it admissible as fresh-
complaint evidence. Indeed, the circumstances surrounding Jane’s making of the
complaint showed that Jane made the complaint because Jane feared defendant would
molest Jane again during his upcoming visit to Jane’s home.
If the jury did not hear that Jane disclosed the alleged molestations to Sonia, two
years after the most recent alleged molestation occurred, and the circumstances in which
Jane made the disclosure, the jury could have been “left with an incomplete or inaccurate
view of all the pertinent facts.” (Brown, supra, 8 Cal.4th at p. 761.) The jury may have
inferred that the molestations did not occur based on the “factually erroneous inference”
that Jane never told anyone about the alleged molestations before her 2017 forensic
interview, which occurred more than two years after Jane was claiming that the most
recent and charged molestation occurred. Given the circumstances in which Jane made
the complaint, the fact of the complaint and its surrounding circumstances were highly
probative of whether Jane fabricated the molestations more than two years after they
occurred. (See Brown, at pp. 761-762.)
Further, there was no risk that the jury would use the fresh-complaint evidence for
an improper hearsay purpose. The jury only heard Sonia testify that Jane said defendant
had molested her on prior occasions; that Jane knew defendant and her grandmother were
coming to visit Jane’s home; that Jane was afraid defendant would touch her again during
the visit; and that Jane had had nightmares about the prior molestations. Sonia did not
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testify to any details of the alleged molestations—details that a trier of fact could have
used for the improper hearsay purpose of inferring that the molestations occurred.
(Brown, supra, 8 Cal.4th at pp. 760-762.)
Thus, the court “carefully limited the scope of Sonia’s testimony to fall within
Brown’s restrictions.” (Brown, supra, 8 Cal.4th at p. 762.) The court limited the fresh-
complaint evidence (Sonia’s testimony) to the fact a complaint was made and the
circumstances of its making. (Ibid. [“So long as the evidence that is admitted is carefully
limited to the fact that a complaint was made, and to the circumstances surrounding the
making of the complaint, thereby eliminating or at least minimizing the risk that the jury
will rely upon the evidence for an impermissible hearsay purpose, admission of such
relevant evidence should assist in enlightening the jury without improperly prejudicing
the defendant.”].) Lastly, no part of Sonia’s testimony was subject to exclusion under
Evidence Code section 352. (See Brown, supra, 8 Cal.4th at p. 763.) Thus, the trial court
did not abuse its discretion in admitting Sonia’s testimony as fresh-complaint evidence.
B. The Jury Was Properly Instructed on CSAAS Pursuant to CALCRIM No. 1193
Defendant claims the trial court violated his state and federal due process rights in
instructing the jury that it could consider CSAAS testimony in evaluating the credibility
of Jane’s and Mary’s testimony pursuant to CALCRIM No. 1193 (Testimony on Child
Abuse Accommodation Syndrome). We find no merit to this claim.2
2 The People argue defendant has forfeited his claim that CALCRIM No. 1193 was erroneously given because defendant did not object to the instruction in the trial court. We address the claim, given that the claim is that the instruction is not “correct in [footnote continued on next page]
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1. The Given Version of CALCRIM No. 1193
The trial court gave a modified version of CALCRIM No. 1193, in part to reflect
that three witnesses (Dr. Thomas and two forensic interviewers) testified about CSAAS:
about child sexual abuse accommodation syndrome is not evidence the defendant
committed . . . any of the crimes charged against him or any conduct or crime for which
he was not charged. You may consider this evidence only in deciding whether or not
(Jane Doe)’s and (Mary Doe)’s conduct was not inconsistent with the conduct of
someone who has been molested and in evaluating the believability of their testimony.”
(Italics added.) In lieu of the italicized phrase, the pattern instruction states: “and in
evaluating the believability of the alleged victim.” (CALCRIM No. 1193, italics added.)
The given version of CALCRIM No. 1193 also omitted the part of the official or
pattern instruction that states: “Child sexual abuse accommodation syndrome relates to a
pattern of behavior that may be present in child sexual abuse cases. Testimony as to the
accommodation syndrome is offered only to explain certain behavior of an alleged victim
of child sexual abuse.” (Ibid.)
2. Legal Principles
We review claims of instructional error de novo. (People v. Fiore (2014)
227 Cal.App.4th 1362, 1378.) “ ‘The proper test for judging the adequacy of instructions
is to decide whether the trial court “fully and fairly instructed on the applicable law
law” and that the alleged error in giving the instruction affects defendant’s substantial rights. (§ 1259; People v. Smithey (1999) 20 Cal.4th 936, 976-977, fn. 7.)
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. . . .” ’ [Citation.] ‘The California jury instructions approved by the Judicial Council are
the official instructions for use in the state of California.’ (Cal. Rules of Court, rule
on the common reactions of child molestation victims [(CSAAS testimony)] 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—e.g., a delay in reporting—is inconsistent with his or
her testimony claiming molestation. [Citations.] ‘Such expert testimony is needed to
disabuse jurors of commonly held misconceptions about child sexual abuse, and to
explain the emotional antecedents of abused children’s seemingly self-impeaching
behavior.’ ” (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1302.)
3. Analysis
Defendant claims that CALCRIM No. 1193, both in its official or pattern version
and as given here, violated his state and federal due process rights to a fair trial because it
allowed the jury to use CSAAS testimony to determine whether Jane’s and Mary’s
molestation claims were true. Defendant argues that, because CALCRIM No. 1193
allows the jury to use CSAAS testimony to evaluate “ ‘the believability’ ” of the alleged
victim, “it is almost certain the jurors would utilize the CSAAS testimony . . . as
supportive of the truth of the charges made against the defendant.”
A similar claim was rejected in People v. Gonzales (2017) 16 Cal.App.5th 494
(Gonzales). There, the defendant claimed that CALCRIM No. 1193 is internally
inconsistent because it states that CSAAS testimony “is not evidence” that the defendant
15
committed a charged [or uncharged] offense, but it also states that the jury may use
CSAAS testimony in evaluating the believability of the alleged victim’s testimony.
(Gonzales, at p. 503-504.) In rejecting the claim, Gonzales first observed that CALCRIM
No. 1193 has to be understood in the context of the CSAAS evidence in the case, which
showed that the purpose of CSAAS evidence “is to understand a child’s reactions when
they have been abused,” but that “CSAAS is not helpful in determining whether a child
has, in fact, been abused.” (Gonzales, at p. 504.)
In light of the CSAAS testimony, the Gonzales court concluded, “[a] reasonable
juror would understand CALCRIM No. 1193 to mean that the jury can use [the CSAAS]
testimony to conclude that [the victim’s] behavior does not mean [the victim] lied when
she said she was abused. The jury would also understand it cannot use [the CSAAS]
testimony to conclude [the victim] 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] CSAAS testimony will find both that [the
victim’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.” (Gonzales, supra, 16 Cal.App.5th at p. 504.)
We find Gonzales persuasive and follow its reasoning. The CSAAS evidence in
this case was similar to the CSAAS evidence in Gonzales. Here, Dr. Thomas explained
that CSAAS is not a diagnostic tool; it cannot be used to determine whether a child has
been sexually abused, but it can explain why child victims of sexual abuse are not going
“to be perfectly straightforward, open and honest” about the abuse. In addition, the two
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forensic interviewers who testified about CSAAS discussed its delayed disclosure aspect.
Thus here, as in Gonzales, the CSAAS evidence explained why CSAAS cannot be used
as evidence that a molestation occurred, and is only useful in explaining the apparently
self-impeaching behavior of child victims of sexual abuse. (Gonzalez, supra,
16 Cal.App.4th at pp. 503-504.)
Defendant claims Gonzales was wrongly decided and urges us not to follow it.
Again, he argues that CALCRIM No. 1193 is inconsistent because, “if the CSAAS
testimony is used to conclude that the complaining witness did not lie, then it is
necessarily being considered in support of that witness’s charge of molestation.” This
argument conflates evidence of a molestation, which is typically shown (as it was here)
by the victim’s testimony, pretrial statements, and actions, with expert testimony about
CSAAS, which merely explains why a child sexual abuse victim’s apparently self-
impeaching behaviors (e.g., delayed disclosure) are not necessarily inconsistent with the
victim’s claim of sexual abuse. The two concepts are consistent; they do not contradict
one another. In addressing both concepts, CALCRIM No. 1193 is not internally
inconsistent or self-contradicting. (Gonzales, supra, 16 Cal.App.5th at pp. 503-504;
People v. Munch (2020) 52 Cal.App.5th 464, 474; People v. Lapenias, supra,
67 Cal.App.5th at pp. 175-176; People v. Ortiz (2023) 96 Cal.App.5th 768, 816.)3
3 Further, on this record there is no reasonable likelihood that the jury misunderstood and misapplied CALCRIM No. 1193 as allowing it to use the CSAAS evidence in determining whether defendant committed any of the charged or uncharged crimes. (People v. Ramirez (2021) 10 Cal.5th 983, 1001-1002 [the correctness of a jury instruction is determined from the entire charge of the court].) CALCRIM NO. 1193, [footnote continued on next page]
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C. There Was No Cumulative Trial Error
Next, defendant claims the trial court’s evidentiary error in admitting Sonia’s
testimony as fresh-complaint evidence, together with the trial court’s instructional error
in giving CALCRIM No. 1193, had a cumulative prejudicial effect that requires reversal
of the judgment. (People v. Hill (1998) 17 Cal.4th 800, 844 [The cumulative prejudicial
effect of individual errors may require reversal].) Because we have found no individual
trial court error, there is no cumulative prejudicial error. (People v. Jablonski (2006)
37 Cal.4th 774, 810.)
D. There Was No Prejudicial Error in Imposing the $300 Restitution Fine
Defendant claims his $300 restitution fine (§ 1202.4, subds. (a)-(c)) must be
vacated because, in imposing the fine, the court did not consider defendant’s inability to
pay the fine based on defendant’s age and physical disability. (People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas).) We conclude there was no prejudicial Dueñas error in
imposing the restitution fine without an ability-to-pay hearing (id. at pp. 1169-1172),
because the record shows defendant is able to pay the fine over time, from prison wages
and other resources.
1. Background
At the time of sentencing on August 12, 2022, defense counsel, in arguing that
there were “circumstances in mitigation,” pointed out that defendant was 73 years old and
considered with the other instructions, did not permit the jury to use CSAAS testimony as evidence that defendant committed any offense. (Ibid. [jurors are presumed to be intelligent and capable of understanding and applying the court’s instructions.) Nothing in the record indicates that the jury misunderstood and misapplied CALCRIM No. 1193.
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had “a debilitating injury that he cannot navigate without the help of a wheelchair or a
prosthetic leg that he doesn’t have right now.” After defendant addressed the court, the
court imposed the concurrent 25-year-to-life terms on counts 1 and 2, noting that, given
the multi-victim enhancement, there was “ no place” for the court to consider any
aggravating or mitigating circumstances. (§ 667.61, subds. (e)(4), (j)(2).) The court then
imposed the $300 restitution fine (§ 1202.4) and imposed but stayed the $300 parole
revocation restitution fine (§ 1202.45), with no objection from defense counsel.
Defendant did not claim he was unable to pay the restitution fine or request an ability-to-
pay hearing to determine whether he was able to pay the fine.
The probation officer’s sentencing recommendation report confirms that defendant
is 73 years old and has a “lower left leg partial amput[ation] below the knee” from a
“trucking/train accident” in 1991. Defendant graduated high school in 1967. He worked
for a grocery store for 15 years until 1985, when he left the job due to a back injury.
Beginning in 1980, he sold life insurance, and in 1990 he began working as a truck
driver. He last worked as a truck driver in 2016, earning $18 an hour. Since 2016, he
had been collecting “disability benefits.” His mental health is “good;” but he has asthma,
high blood pressure, and high cholesterol. He qualified for appointed counsel on appeal.
2. The Dueñas Decision
Dueñas held that it violates due process under the federal and state Constitutions
to impose court operations and facilities fees without first determining that the defendant
has “the present ability to pay” them. (Dueñas, supra, 30 Cal.App.5th at pp. 1168-1169.)
The court must also stay the execution of any restitution fine (§ 1202.4) unless the court
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determines the defendant is able to pay the fine (Id. at p. 1172). “The same court that
decided Dueñas has since clarified that, at the ability to pay hearing, the defendant bears
the burden of showing his or her inability to pay, and the court ‘must consider all relevant
factors,’ including ‘potential prison pay during the period of incarceration to be served by
the defendant.’ ” (People v. Taylor (2019) 43 Cal.App.5th 390, 397-398.)
Several courts have concluded that Dueñas was wrongly decided and have
declined to follow it. (E.g., People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1068;
People v. Hicks (2019) 40 Cal.App.5th 320, 322, review granted Nov. 26, 2019,
S258946; People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v. Adams (2020)
44 Cal.App.5th 828, 831; see People v. Taylor, supra, 43 Cal.App.5th at p. 398
[discussing cases criticizing Dueñas].) Our Supreme Court is reviewing two questions
that lie at the heart of Dueñas: (1) whether the court is required to consider the
defendant's ability to pay before it may impose or execute fines, fees, and assessments;
and (2), if so, whether the defendant or the People bear the burden of proving the
defendant’s inability to pay. (People v. Kopp (2019) 38 Cal.App.5th 47, review granted
Nov. 13, 2019, S257844 (Kopp).) In deciding Kopp, our Supreme Court will resolve the
split in authority. (People v. Taylor, at p. 398.)
3. Analysis
As noted, defendant claims his $300 restitution fine (§ 1202.4, subds. (a)-(c)) must
be vacated because, in imposing the fine, the court did not consider defendant’s inability
to pay the fine based on his age and physical disability (Dueñas, supra, 30 Cal.App.5th
at pp. 1169-1172.) At sentencing, defendant did not object to the fine or request a
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hearing to determine his ability to pay the fine. But, for multiple reasons, defendant
claims the forfeiture doctrine does not apply to his claim of Dueñas error. Alternatively,
defendant claims his counsel rendered prejudicial ineffective assistance of counsel in
failing to object to the fine on Dueñas due process grounds.
The People do not argue that Dueñas was wrongly decided. Rather, they claim
(1) defendant has forfeited his claim that the fine should not have been imposed without a
judicial determination of his ability to pay it, given that he did not object to the fine or
request an ability to pay hearing at or before the time of sentencing; (2) Dueñas does not
apply to a statutory minimum, $300 restitution fine (§ 1202.4, subd. (a)-(c)); and (3) any
Dueñas error in imposing the fine was harmless beyond a reasonable doubt because the
record shows defendant is able to pay the fine over time. Thus, the People argue
(4) defendant cannot show he was prejudiced by his counsel’s failure to object to the fine.
Setting aside the question of forfeiture, we agree with the People that any Dueñas error in
imposing the minimum $300 restitution fine was harmless beyond a reasonable doubt.
(People v. Jones (2019) 36 Cal.App.5th 1028, 1035.) Thus, it is unnecessary to
determine whether the due process principles articulated in Dueñas apply to a $300
minimum restitution fine. (§ 1202.4, subds. (a)-(c).) And defendant cannot show his
counsel rendered prejudicial ineffective assistance in failing to object to the fine.
(Strickland v. Washington (1984) 466 U.S. 668, 694 [To establish a claim of ineffective
assistance of counsel, the defendant must show there is a reasonable probability that
counsel’s error affected the outcome of the case].)
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The entire record shows that defendant will be able to pay the $300 restitution fine
over time from wages he can earn in prison or from his “disability benefits.” (People v.
Jones, supra, 36 Cal.App.5th at p. 1035; People v. Aviles, supra, 39 Cal.App.5th at
p. 1076; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837.) Although defendant is
73 years old, and he must use a wheelchair if he does not have a prosthetic leg, he has no
other physical disabilities. His mental health is “good” and his social and employment
history shows he is intelligent. Thus, he can use his intelligence and his hands to work,
and earn wages in prison, even if he must use a wheelchair, and pay the fine from his
prison wages. He may also use his disability benefits to pay the fine over time. In sum,
on this record defendant cannot meet his burden of showing he is unable to pay the $300
restitution fine. (People v. Taylor, supra, 43 Cal.App.5th at pp. 397-398 [“[A]t the
ability to pay hearing, the defendant bears the burden of showing his or her inability to