The PEOPLE, Plaintiff and Respondent, v. Stephen Darrell TAYLOR, Defendant and Appellant.
A jury convicted Stephen Darrell Taylor of numerous sex offenses against his adopted daughters, Jane Doe 1 and Jane Doe 2. In total, the jury convicted him on 12 counts. The trial court sentenced him to prison for a one-year determinate term and an aggregate indeterminate term of 165 years to life.
On appeal, Taylor argues that the court erred by admitting expert testimony on child sexual abuse accommodation syndrome (accommodation syndrome) and instructing the jurors that they could use that evidence to evaluate the victims' credibility. He also asserts several sentencing errors. He argues that the court erred by (1) imposing two indeterminate terms under the former “One Strike” law (Pen. Code,1 former Pen. Code, § 667.61, subd. (a)) for two offenses that occurred during a single occasion, (2) imposing multiple punishments for four counts of aggravated sexual assault and four counts of lewd acts arising from the same facts, and (3) imposing a restitution fine and court operations and facilities fees without an ability to pay hearing.
We agree that the court erred by imposing multiple punishments on four counts of aggravated sexual assault (counts 1 through 4) and four counts of forcible lewd acts (counts 5 through 8) that arose from the same conduct. Accordingly, we stay Taylor's sentence on counts 5 through 8. We also agree that the court should hold an ability to pay hearing, at least as to the court operations and facilities fees. We therefore reverse the order imposing those fees and remand for a hearing on Taylor's ability to pay them. As to the restitution fine, Taylor has forfeited his contention. We otherwise reject Taylor's arguments and affirm.
I. Offenses Against Doe 1
Doe 1 was 18 years old when she testified at trial. She and Doe 2 are sisters. Doe 1, Doe 2, and their younger brother and sister were placed in the Taylor household as foster children. Doe 1 was in preschool when she was placed with the Taylors. They adopted her, but she did not recall at what age. She was removed from their home in 2008, when she was about nine years old.
With respect to Doe 1, the amended information charged Taylor with four counts of aggravated sexual assault (rape) of a child (§§ 261, subd. (a)(2), 269, subd. (a)(1)), one count for each year between 2004 and 2008. It also charged him with four counts of forcible lewd acts on a child (§ 288, subd. (b)(1)), one count for each year between 2004 and 2008.
Doe 1 was five years old when Taylor first raped her, and he continued to do so approximately once per week until she was removed from his home. He would take off his clothes and insert his penis into her vagina. She tried to push him off of her sometimes but was unable to do so. She told Taylor that she was going to report his sexual abuse. He said no one would help her or believe her because she was a child.
Taylor and his wife physically abused Doe 1 by hitting her with belts, hangers, or spoons. Doe 1 told a social worker investigating the physical abuse about Taylor's sexual abuse. The social worker talked to Taylor's wife about it, and his wife “hit [Doe 1] for that.” Doe 1 was removed from the Taylor household because of the physical abuse.
Years later, in 2013, Doe 1 disclosed Taylor's sexual abuse to her foster mother. In March 2013, a forensic interviewer spoke with Doe 1, and a forensic pediatrician examined her. Detective Jason Frey of the San Bernardino County Sheriff's Department observed Doe 1's interview with the forensic interviewer. She reported that Taylor would remove his clothes, remove her clothes, and insert his penis into her vagina.
The forensic pediatrician concluded with reasonable medical certainty that Doe 1 had sustained a penetrating injury to her genitalia. The doctor discovered two abnormalities in Doe 1's genital area. She had a scar and tissue missing from her hymen. The abnormalities indicated that Doe 1 had suffered a penetrating injury that tore her hymen. Together with Doe 1's disclosures during interviews, the doctor's findings were “highly suspicious for sexual abuse.”
In April 2015, Detective Frey called Taylor and pretended to be a counselor who was treating Doe 1. The detective had his wife pretend to be Doe 1 on the phone call. The detective's wife confronted Taylor about the sexual abuse. Taylor did not directly acknowledge the abuse but did not deny it. When the detective's wife, acting as Doe 1, asked Taylor “if he hated her when he did the sex things to her,” Taylor said that he did not hate her, but he hated himself. He apologized to her more than once during the conversation. He also told her that he was sexually abused as a young boy, and “it took him many years to forgive that person.” He said that forgiving someone meant “ ‘[t]o forgive and never bring it up again.’ ”
In June 2015, Detective Frey and another officer interviewed Taylor at the sheriff's station. Taylor initially denied sexually abusing Doe 1 but then admitted to twice penetrating her vagina with his finger and twice penetrating her vagina with his penis.
Around this same time, Taylor's son confronted Taylor about Doe 1's and Doe 2's allegations of sexual abuse. Taylor said, “some of it was true,” and he specifically admitted to “ ‘penis penetration,’ ” but would say nothing further.
II. Offenses Against Doe 2
Doe 2 was 19 years old when she testified at trial. Taylor and his wife adopted Doe 2 at age five, and she was removed from their home at about age 10. She is deaf and learned sign language at age 11, after she left the Taylor household. Taylor and his wife did not know sign language. Doe 2 communicated with them using their “home language,” which she described as “very basic signs, very gesture-like.”
With respect to Doe 2, the amended information charged Taylor with three counts of lewd acts on a child (§ 288, subd. (a)) and one count of attempted forcible lewd act on a child (§ 288, subd. (b)(1)), all occurring between January 2003 and January 2008. This was roughly the five-year period during which Doe 2 lived in the Taylor household.
The prosecutor began by asking Doe 2 what Taylor did “when he touched [her] in a sexual way.” Doe 2 replied: “When I would get in my bed in my room he would come into bed with me. He would take off my clothes. I would tell him, no, no. And then his wife would come out and he quickly—when his wife would come in the bedroom he would quickly get out of my bedroom.” The prosecutor asked how many times that happened, and Doe 2 said twice. She said that he touched her breasts when he took off her clothes, and then explained that he did not completely take off her shirt, but just lifted it up and “cupped” her breast. He stopped because his wife arrived home. The prosecutor asked if she remembered telling an interviewer that Taylor had touched her breasts over her clothing. Doe 2 replied that she remembered telling the interviewer that, and the incident did occur. She did not remember anything more specific about that incident.
On cross-examination, Doe 2 specified that the first time Taylor touched her breasts, it happened in his bedroom during the afternoon. Taylor's wife was not home. Doe 1 was outside playing in the yard. Doe 2 was not sure where her two younger siblings were. The incident stopped when Taylor's wife came home. The second time he touched her breasts also occurred in his bedroom. It was the afternoon again, and Doe 1 and her other siblings were in the yard. Again, Taylor's wife was not home.
Doe 2 initially said that she did not remember Taylor engaging in any other “sexual touching” with her. But then the prosecutor asked if she remembered telling the interviewer that Taylor tried to make her touch his penis. She recalled telling the interviewer that and described the incident. Taylor's wife was not there on this occasion, and Doe 2's “brother and sister were out and about.” Taylor tried to “force [her] head down to him.” His pants were unzipped, but she did not see his penis because she closed her eyes. She said, “no,” and went to brush her teeth “because it smelt so bad.”
On cross-examination, defense counsel referred to the “third incident involving [Taylor] pushing [Doe 2's] head” and asked if Doe 2 recalled what year that happened. She did not recall, but it was probably summer. Doe 1 was at home watching television, but Doe 2 was unsure where her younger siblings were. Taylor's wife was again not home.
The prosecutor also asked Doe 2 if she remembered telling the interviewer about an incident in which Taylor “called [her] to go to his room and he was not wearing a shirt.” They had the following exchange:
“Q Do you remember what happened during that time?
“Q What happened?
“A That's what I was explaining before.
“Q I'm not sure what you mean. You were explaining what before?
“A Yeah, that's what I was telling you about the first story.
“Q The one where he touched your breasts?
“A When he touched my breasts.
“Q Do you remember also telling the interviewer that he tried kissing you on your face?
“Q Did that happen?
Detective Frey observed Doe 2's forensic interview, which took place in March 2013, like Doe 1's interview. According to Detective Frey, Doe 2 described two different incidents in which Taylor touched her breasts, once under her clothing and once over her clothing. He also testified: “Another occasion, she described Mr. Taylor was just wearing his boxers. He was not wearing any shirt and was kissing her on her face and then at that time, unzipped his zipper.” The prosecutor asked the detective whether Doe 2 described “any specific incident that occurred with respect to [Taylor's] penis.” The detective replied that Doe 2 said Taylor tried to put his penis in her mouth, and afterward, she went to the bathroom and brushed her teeth.
In 2008, like Doe 1, Doe 2 was removed from the Taylor household because of physical abuse. Doe 2 told social workers in 2008 about the physical abuse, but she did not report the sexual abuse until 2013. She did not report the sexual abuse initially because she was “very scared” and had difficulty trusting people. She tried to tell Taylor's wife about the sexual abuse when she lived in the Taylor household, but his wife did not believe her.
III. Accommodation Syndrome Evidence
Dr. Jody Ward is a clinical and forensic psychologist who testified about accommodation syndrome. The syndrome is a pattern of behaviors exhibited by many but not all children who have been sexually abused within an ongoing relationship. It is not a diagnosis but a therapeutic instrument to help children and their families understand children's reactions to sexual abuse. Dr. Ward had never met Doe 1 and Doe 2, had not read the police reports in the case, had not interviewed Taylor, and had not otherwise been provided with the facts of the case. Her purpose in testifying was not to diagnose anyone, and she had no opinion on the case. Her purpose was “just [to] help people understand children's behavior better in general.”
Accommodation syndrome consists of five elements: (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) delayed, unconvincing disclosure; and (5) recantation. Not all five elements are present in every case. Secrecy refers to children's tendency to keep sexual abuse a secret when the perpetrator is a family member or close friend of the family, even without threats or any direction at all from the perpetrator. Helplessness refers to the power differential between children and adults. Children are taught to obey adults and are completely dependent on adults for material and emotional needs. Entrapment and accommodation refers to the situation children find themselves in because of their powerlessness—they cannot provide for themselves and escape the adult who is abusing them, so they find other ways to cope with the abuse. Some children learn to acquiesce in or go along with the abuse as a way to survive, to keep the family together, to get their material and emotional needs met, or to protect other children in the home. They disassociate or “put themselves mentally somewhere else while the abuse is occurring.”
Delayed, unconvincing disclosure means that many child victims do not report sexual abuse until months or years after it happens, and many never report it at all. If they do report it, the disclosure initially tends to be hesitant or tentative in nature, and then they might disclose more over time, as they become more comfortable with the disclosure process. They may disclose the abuse once they are in a new home where they feel comfortable.
The last element, recantation, occurs less often than the other four elements. But occasionally, children disclose abuse and then later say they do not remember it or recant the allegations altogether. Some children feel pressure to recant when the disclosure causes family ruptures or results in removal from their home, or they have to endure a number of intrusive interviews by police officers, social workers, and mental health professionals.
I.-III.**[NOT CERTIFIED FOR PUBLICATION]
IV. Ability to Pay Hearing
At Taylor's sentencing hearing, the court imposed a $10,000 restitution fine, “given the circumstances of the crime” and “the facts surrounding it,” and $840 in court operations and facilities fees. (§§ 1202.4, subd. (b), 1465.8, subd. (a)(1); Gov. Code, § 70373, subd. (a)(1).) In supplemental briefing filed with our permission, Taylor argues that the court violated his constitutional rights by assessing those amounts without an ability to pay hearing. He relies on People v. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268 (Dueñas), which another appellate district decided while this appeal was pending. The People contend that Taylor forfeited this argument, and even if he did not, there was no Dueñas error. We conclude that Taylor forfeited the argument as to the $10,000 restitution fine but not as to the $840 in court operations and facilities fees. With respect to those fees, we reverse the order imposing them and remand for an ability to pay hearing.
A. The Dueñas Decision
Dueñas held that it violates due process under the federal and state Constitutions to impose the court operations and facilities fees without first determining the convicted defendant's ability to pay them. (Dueñas, supra, 30 Cal.App.5th at pp. 1168-1169, 242 Cal.Rptr.3d 268.) In addition, “to avoid serious constitutional questions” raised by the statutory restitution scheme, the court must stay execution of the mandatory restitution fine unless the court determines that the defendant has the ability to pay it. (Id. at p. 1172, 242 Cal.Rptr.3d 268.) 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. Castellano (2019) 33 Cal.App.5th 485, 490-491, 245 Cal.Rptr.3d 138 (Castellano) [remanding for an ability to pay hearing]; accord People v. Santos (2019) 38 Cal.App.5th 923, 934, 251 Cal.Rptr.3d 483 [on remand, the defendant must show his inability to pay, and the court may consider potential prison pay]; People v. Kopp (2019) 38 Cal.App.5th 47, 96, 250 Cal.Rptr.3d 852 (Kopp), review granted Nov. 13, 2019, S257844 [same].)
Since Dueñas, some courts have criticized Dueñas's due process analysis and have declined to follow it. (E.g., People v. Hicks (2019) 40 Cal.App.5th 320, 322, 327-329, 253 Cal.Rptr.3d 116, review granted Nov. 26, 2019, S258946 [holding that Dueñas was wrongly decided]; People v. Caceres (2019) 39 Cal.App.5th 917, 928, 252 Cal.Rptr.3d 709 [declining to apply Dueñas's “broad holding requiring trial courts in all cases to determine a defendant's ability to pay”].) Other courts have held that Dueñas was wrongly decided under due process principles, and that the Eighth Amendment's prohibition against excessive fines provides the proper framework for analyzing an ability to pay challenge. (E.g., People v. Aviles (2019) 39 Cal.App.5th 1055, 1069-1072, 252 Cal.Rptr.3d 727; see also Kopp, supra, 38 Cal.App.5th at pp. 96-97, review granted [applying Dueñas's due process analysis to the fees but holding that, on remand, an Eighth Amendment analysis should apply to the restitution fine, because it is punitive in nature].)
The California Supreme Court will resolve the split in authority, having granted review of the issues presented by Dueñas in Kopp, supra, 38 Cal.App.5th at page 47. The Court will decide whether courts must “consider a defendant's ability to pay before imposing or executing fines, fees, and assessments,” and if so, “which party bears the burden of proof regarding defendant's inability to pay.” (Kopp, review granted, Nov. 13, 2019, S257844.)3
Here, the People do not attack Dueñas's due process analysis, argue that Dueñas was wrongly decided, or argue that an Eighth Amendment analysis should apply as opposed to due process. Instead, they argue that Dueñas's due process concerns are not “at issue in this appeal,” either because Taylor forfeited the issue or for other reasons discussed in the following subparts. Given that no party has argued Dueñas was wrongly decided or briefed whether an Eighth Amendment analysis should displace the due process analysis, we do not address those issues and instead simply apply Dueñas's holding in this case.
This court recently considered and rejected the forfeiture argument in People v. Jones (2019) 36 Cal.App.5th 1028, 249 Cal.Rptr.3d 190 (Jones), an appeal that was also pending at the time Dueñas was decided. (Id. at p. 1030, 249 Cal.Rptr.3d 190.) We declined to find forfeiture of a claimed Dueñas error “[b]ecause a due process objection would have been ‘futile or wholly unsupported by substantive law then in existence.’ ” (Id. at p. 1033, 249 Cal.Rptr.3d 190.) We held that “[g]iven the substantive law in existence at the time of Jones's sentencing, Dueñas was unforeseeable.” (Ibid.) This conclusion applies with equal force to Taylor's case, at least as to the court operations and facilities fees. He did not forfeit an ability to pay objection to those fees.
The restitution fine is a different matter. Even before Dueñas, section 1202.4 permitted the court to consider Taylor's inability to pay. (Jones, supra, 36 Cal.App.5th at p. 1032, 249 Cal.Rptr.3d 190.) The statute mandates that the court impose a restitution fine “unless it finds compelling and extraordinary reasons for not doing so,” and “[a] defendant's inability to pay shall not be considered a compelling and extraordinary reason.” (§ 1202.4, subd. (c), italics added.) However, the court may consider the defendant's inability to pay “in increasing the amount of the restitution fine in excess of the minimum fine.” (Ibid.) In Jones, the court imposed the minimum restitution fine required by statute—$300 for a felony conviction. (§ 1202.4, subd. (b)(1); Jones, at p. 1030, 249 Cal.Rptr.3d 190.) “Because only the minimum amount was imposed, the statute strongly supported the conclusion that the trial court had no discretion to take ability to pay into account,” and an objection based on inability to pay would have been futile. (Jones, at p. 1032, 249 Cal.Rptr.3d 190.) Dueñas also involved the minimum restitution fine. (Dueñas, supra, 30 Cal.App.5th at p. 1162, 242 Cal.Rptr.3d 268; § 1202.4, subd. (b)(1).)
But in this case, the probation officer recommended that the court impose the maximum restitution fine of $10,000, and the court did so. (§ 1202.4, subd. (b)(1).) Taylor did not object or request an ability to pay hearing, even though the court could have considered the issue under the restitution statute. Jones is thus distinguishable on this point. The substantive law in existence at the time of Jones's sentencing would not have permitted the court to consider his inability to pay the minimum restitution fine (Jones, supra, 36 Cal.App.5th at p. 1032, 249 Cal.Rptr.3d 190), whereas the law would have permitted the court to consider Taylor's inability to pay the maximum fine. Consequently, Taylor forfeited the objection that the court failed to consider his ability to pay the restitution fine. (People v. Nelson (2011) 51 Cal.4th 198, 227 & fn. 22, 120 Cal.Rptr.3d 406, 246 P.3d 301.)4
We essentially approved this reasoning in Jones. There, we suggested that the result would have been different if the court had imposed a restitution fine above the minimum. (Jones, supra, 36 Cal.App.5th at p. 1033, 249 Cal.Rptr.3d 190.) We discussed People v. Frandsen (2019) 33 Cal.App.5th 1126, 245 Cal.Rptr.3d 658 (Frandsen), in which another court found a claim of Dueñas error forfeited, in part because the restitution fine in that case was the maximum $10,000. (Id. at p. 1154, 245 Cal.Rptr.3d 658.) We reasoned that Frandsen “was correct to conclude” that an objection to the restitution fine based on inability to pay “ ‘would not have been futile under governing law at the time of his sentencing hearing.’ ” (Jones, at p. 1033, 249 Cal.Rptr.3d 190.)
Some courts have suggested that the failure to object to a maximum restitution fine necessarily forfeits the Dueñas claim with respect to the court operations and facilities fees. Frandsen, for instance, concluded that the defendant “was obligated to create a record showing his inability to pay the maximum restitution fine, which would have served to also address his ability to pay the assessments.” (Frandsen, supra, 33 Cal.App.5th at p. 1154, 245 Cal.Rptr.3d 658.) And “[g]iven his failure to object to a $10,000 restitution fine based on ability to pay,” the defendant had “not shown a basis to vacate” $120 in fees. (Ibid.; accord People v. Aviles, supra, 39 Cal.App.5th at p. 1074, 252 Cal.Rptr.3d 727.) Other courts have similarly held a Dueñas objection to fees forfeited because, “[a]s a practical matter,” if a defendant does not object to a maximum restitution fine based on an inability to pay, the defendant “surely would not complain on similar grounds” regarding the additional fees. (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033, 247 Cal.Rptr.3d 850; accord People v. Jenkins (2019) 40 Cal.App.5th 30, 40-41, 252 Cal.Rptr.3d 782, review granted Nov. 26, 2019, S258729.)
We do not know why Taylor failed to object to the maximum restitution fine, but there could have been reasons unrelated to his inability to pay. The defendant's inability to pay is just one among many factors the court should consider in setting the restitution fine above the minimum. The court should also consider “the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the crime. Those losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime.” (§ 1202.4, subd. (d).) Taylor may have concluded that, given the seriousness of his offenses and the psychological harm to his two victims, any objection to the maximum fine would have been fruitless. Those factors, however, have no bearing on the court operations and facilities fees. Under Dueñas, the only question is whether the defendant has an inability to pay the fees, and Taylor did not have the benefit of Dueñas at the time of his sentencing. We therefore will not construe his failure to object to the maximum restitution fine as a forfeiture of the Dueñas claim with respect to the fees.5
For these reasons, Taylor has forfeited his claim of Dueñas error with respect to the $10,000 restitution fine but not with respect to the $840 in court operations and facilities fees. As to those fees, the substantive law in existence at the time of his sentencing “would have meaningfully foreclosed the argument he now seeks to advance.” (Jones, supra, 36 Cal.App.5th at p. 1034, 249 Cal.Rptr.3d 190.)
C. Reversible Error
The court did not determine Taylor's ability to pay the $840 in fees. Under Dueñas, this was error, and we must remand for an ability to pay hearing unless the error was harmless. (Jones, supra, 36 Cal.App.5th at pp. 1034-1035, 249 Cal.Rptr.3d 190.) Dueñas determined the error was of constitutional magnitude, so we inquire whether the failure to conduct an ability to pay hearing was harmless beyond a reasonable doubt. (Id. at p. 1035, 249 Cal.Rptr.3d 190.) We will find Dueñas error harmless if the record demonstrates, beyond a reasonable doubt, that the defendant cannot establish his or her inability to pay. (Ibid.)
The record here does not demonstrate that. According to the probation report, Taylor was 70 years old at the time of his sentencing. We have no information about his income-earning capacity before his conviction, other than the statements in the probation report that he has three years of college education and served four years in the Air Force. We do not know what jobs he has held or whether he has savings or assets to sell. And while the probation officer recommended that the court impose $750 in appointed counsel fees, the court declined to do so, finding that Taylor “lack[ed] the ability to pay” them. The court also rejected the probation officer's recommendation that Taylor reimburse the probation department $665 in presentence investigation costs. None of that information forecloses a meritorious inability to pay argument. On the contrary, if Taylor lacked the present ability to pay $750 in appointed counsel fees, it stands to reason that he lacked the present ability to pay $840 in other fees. (§ 987.8, subd. (b) [the court determines the “present ability” of the defendant to pay appointed counsel fees].)
Moreover, although the court may consider Taylor's potential prison wages (Castellano, supra, 33 Cal.App.5th at p. 490, 245 Cal.Rptr.3d 138), those also do not foreclose an inability to pay showing. “[E]very able-bodied” prisoner is required to work. (§ 2700; Cal. Code Regs., tit. 15, § 3040, subd. (a).) A prisoner's assignment to a paid position “is a privilege” that depends on “available funding, job performance, seniority and conduct.” (Cal. Code Regs., tit. 15, § 3040, subd. (k); accord People v. Rodriguez (2019) 34 Cal.App.5th 641, 649, 246 Cal.Rptr.3d 392.) Wages in prison range from $12 to $56 per month, depending on the job and skill level involved. (Cal. Code Regs., tit. 15, § 3041.2, subd. (a)(1).) Fifty percent of Taylor's wages and trust account deposits will be deducted to pay any outstanding restitution fine, plus another 5 percent for the administrative costs of this deduction. (§ 2085.5, subds. (a), (e); Cal. Code Regs., tit. 15, § 3097, subd. (f).)
We assume for the sake of argument that Taylor will secure a paying position earning the minimum monthly prison wage.6 Assuming also that the entire $10,000 restitution fine is outstanding, he will have at least $5.40 per month available to settle $840 in fees. At that rate, he will pay off the fees in 156 months, or 13 years. Taylor's sentence on counts 5 through 8 will be stayed, so he will be serving a one-year determinate term plus 105 years to life (minus a credit of 951 days for presentence custody and conduct). Taylor was 70 years old at the time of sentencing, however, and we know nothing about his health and whether he is capable of earning wages until he is 83 years old. Given that his ability to earn sufficient prison wages depends on those factors, we cannot say that potential prison work forecloses a meritorious inability to pay argument.
The People argue that “the record reveals no indication of an inability” to pay, and in particular, there is no indication Taylor “would be unable to perform prison work.” The argument lacks merit because it misallocates the burden of proof on appeal. On remand, it will be Taylor's burden to show his inability to pay. (Castellano, supra, 33 Cal.App.5th at p. 490, 245 Cal.Rptr.3d 138.) But it is not Taylor's burden on appeal to establish his inability to pay when the court did not hold an ability to pay hearing in the first place. (Jones, supra, 36 Cal.App.5th at p. 1035, 249 Cal.Rptr.3d 190.) Rather, it is the People's burden to show that the Dueñas error was harmless beyond a reasonable doubt. (People v. Stritzinger (1983) 34 Cal.3d 505, 520, 194 Cal.Rptr. 431, 668 P.2d 738 [the “beneficiary of the error” must prove that it was harmless beyond a reasonable doubt].) They cannot do that on this record, for all of the reasons just discussed.
The People further argue that, unlike the Dueñas defendant, Taylor has not identified any adverse consequences from nonpayment of the fees. According to the People, this “matters because it is the consequences of nonpayment that can potentially transform a court assessment into a due process violation.” The argument lacks merit. Taylor “need not present evidence of potential adverse consequences beyond the fee or assessment itself, as the imposition of a fine on a defendant unable to pay it is sufficient detriment to trigger due process protections.” (Castellano, supra, 33 Cal.App.5th at p. 490, 245 Cal.Rptr.3d 138.)
In sum, under Dueñas, the court may not assess $840 for court operations and facilities fees absent a determination that Taylor has an ability to pay them. The Dueñas error was not harmless on this record. We therefore must remand for an ability to pay hearing.
The order imposing the court operations (§ 1465.8, subd. (a)(1)) and facilities fees (Gov. Code, § 70373, subd. (a)(1)) is reversed. On remand, the court shall hold a hearing on Taylor's ability to pay the fees. If Taylor demonstrates an inability to pay them, the court shall not impose the fees. If he fails to demonstrate his inability to pay them, the court may impose them. (Castellano, supra, 33 Cal.App.5th at p. 491, 245 Cal.Rptr.3d 138.) In addition, Taylor's sentence on counts 5 through 8 is stayed. The court shall prepare an amended abstract of judgment and forward a copy to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
Appellant's petition for review by the Supreme Court was denied February 19, 2020, S259910.
1. Further undesignated statutory references are to the Penal Code unless otherwise indicated.
3. The Legislature attempted to codify Dueñas. It passed Assembly Bill No. 927 (2019-2020 Reg. Sess.), “requir[ing] a hearing on a defendant's ability to pay fines, fees, and assessments.” (People v. Belloso (Nov. 26, 2019, B290968) 42 Cal.App.5th 647, 659, fn. 9, 255 Cal.Rptr.3d 640, 2019 WL 6317269, at p. *7, fn. 9.) The governor vetoed the bill. (Ibid.) In his veto message, “he agreed there is a need to ‘tackle the issue of burdensome fines, fees and assessments that disproportionately drag low-income individuals deeper into debt,’ but noted the issue needed to be addressed in the budget process to ensure adequate funding for the courts and victim compensation.” (Ibid.)
4. In his supplemental reply brief, Taylor insists that his trial counsel rendered ineffective assistance by failing to object to the maximum restitution fine. “[W]e do not consider an argument first raised in a reply brief, absent a showing why the argument could not have been made earlier.” (People v. Newton (2007) 155 Cal.App.4th 1000, 1005, 66 Cal.Rptr.3d 422.) Taylor has not made such a showing here.
5. We note that at oral argument, the People expressly declined to take issue with the foregoing analysis, which was fully set forth in our tentative opinion.
6. At the ability to pay hearing on remand, the parties will have an opportunity to litigate the truth of this assumption, if they wish. It is possible, for example, that paid positions are relatively rare notwithstanding the statutory requirement that all able-bodied prisoners work. The record before us is, of course, silent on this issue.
Codrington, Acting P. J., and Raphael, J., concurred.
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