Filed 8/10/22 P. v. Hidalgo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E075992
v. (Super.Ct.No. FVI20000041)
ANTHONY MICHAEL HIDALGO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Tony Raphael,
Judge. Affirmed.
Kevin J. Lindsley, 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, Eric A. Swenson and Christine
Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
1 Anthony Hidalgo appeals his conviction for car theft, arguing the prosecution
presented insufficient evidence that he acted as an accomplice in helping his friends
commit the crime. He also argues that: (1) two of the jury instructions prejudicially
impeded his alibi defense; (2) the trial judge violated his due process rights as articulated
in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) by failing to hold an ability-
to-pay hearing before imposing a $300 restitution fine and $70 in assessment fees, and
(3) a recent amendment to felony sentencing laws requires us to remand for resentencing.
We conclude each of Hidalgo’s arguments lacks merit and affirm.
I
FACTS
Sometime between the late evening of November 19, 2019 and the early morning
of the following day, the victim was beaten and bound with an extension cord while his
assailants stole various items from his home and took his car. Over the course of the
investigation and at trial, the victim gave a number of accounts that conflicted on certain
details, including the precise time the home invasion took place. Hidalgo’s defense at
trial was that he couldn’t have been one of the assailants because he was in police
custody for nearly 12 hours on November 20, 2019—from about 3:45 a.m. to about 3:00
p.m.
A. Prosecution’s Case
The victim, who is 5'7'' and in his 60s, lives in Hesperia with his wife and son,
neither of whom was home when the incident occurred. The victim was acquainted with
2 Hidalgo (who is in his 30s) through his daughter, Rachel, and had spent time with him on
a few previous occasions. On November 19, Hidalgo stopped by the victim’s house to
hang out and asked if he could invite his friends over—two people later identified as
Jason Boggs and Cara Anderson. The four hung out and drank beers for some time, but
the details of what happened next vary with the victim’s telling.
According to the victim’s daughter Rachel, who testified at trial, her father called
her “in the middle of the night,” crying and shaken up, saying he had just been tied up
and robbed. She rushed over to her father’s house, where he told her that Hidalgo and
another man and woman had tied him up, blindfolded him, and taken his personal
property and car. She urged him to call the police, but he didn’t want to because he was
scared, so she ended up reporting the crime.
A Riverside County deputy interviewed the victim on November 21, 2019. He told
the jury the victim had visible injuries, appeared a little confused, and had some difficulty
remembering the incident. He said the victim told him he had been hanging out with
Hidalgo that evening when Hidalgo had invited Boggs and Anderson over. He said
Hidalgo left shortly after the couple arrived, probably sometime around 10:00 p.m., and
he (the victim) stayed up drinking and smoking marijuana with the couple for a few hours
before passing out from intoxication. He woke up in his kitchen at about 4:00 or 5:00
a.m. and heard voices behind him. Whoever was in his house tied him up and ransacked
his home for about two hours. He told the deputy he didn’t get a look at his assailants.
3 Several months later, in February 2020, the victim filed a claim with his insurance
company for the stolen property. In his sworn statement he said he had been robbed at
approximately 4:00 a.m. on November 20, 2019 by “three males and a female.” He said
when he answered the front door, the group pushed their way in, tied him up with an
extension cord, threw him down on the kitchen floor, and robbed him.
At trial, the victim said he didn’t know why he had written there were three males
because there were only two—Hidalgo and Boggs. He said he had drunk beers and
smoked cigarettes with Hidalgo, Boggs, and Anderson until 11:00 p.m., when everyone
left his house. He denied being intoxicated and said he went to sleep in his bedroom. The
sound of his doorbell woke him up, and he recalled looking at his bedside clock and
seeing it was around 4:00 a.m. When he answered the door, Hidalgo and Boggs forced
their way inside and pushed him into the kitchen. They punched and kicked him, and
Hidalgo said he was “sorry about this” as they tied him up with an extension cord and put
a hood over his head. They took the keys to his car and his safes from where he kept them
on his belt. For what seemed like a couple of hours, the victim could hear movement
around his house, then he heard his garage door open and close a few times.
When the house became silent and he believed the group had left, he untied
himself, surveyed the damage to his house and saw that his car, a 2003 Mitsubishi
Lancer, was missing. After a few hours, he called his son and daughter and told them
what happened.
4 The prosecution showed the jury photos the police had taken of the victim’s
injuries and his house after the incident. In addition to his car being stolen, several of his
safes had been opened and his coin collection and other memorabilia had been taken.
A few weeks after the incident, Anderson was caught in Fontana driving the
victim’s car. Aside from a few coins from the victim’s collection found inside the car, his
stolen personal property was never recovered.
When asked whether the details of his account would change if he learned Hidalgo
had an alibi beginning around 4:00 a.m. on November 20, the victim said his memory of
the timing could be mistaken. He said he’d been groggy when he answered the door but
was certain Hidalgo was one of the attackers.
B. The Defense
The defense recalled the investigating deputy, who confirmed he was unaware of
any DNA or fingerprint evidence collected from the crime scene implicating Hidalgo.
The defense also presented evidence that Hidalgo had been pulled over for a traffic stop
one town over, in Apple Valley, at 3:40 a.m. on November 20, 2019. Hidalgo was driving
a car registered to Boggs. Inside, the police found syringes but no property belonging to
the victim. Hidalgo was arrested for driving without a license and possession of drug
paraphernalia. He was taken to Adelanto Detention Center where he spent several hours
until his release later that afternoon, around 3:00 p.m.
5 C. Instructions, Closing Arguments, and the Verdict
The prosecution tried Hidalgo as a direct perpetrator of first degree robbery (Pen.
Code, § 211) and as an accomplice to car theft (Veh. Code, § 10851, subd. (a)). The trial
judge, Riverside Superior Court Judge Tony Raphael, instructed the jury on the
differences between the two kinds of liability, explaining among other things that
accomplice liability, unlike direct liability, does not require the defendant to be present
when the crime is committed. (CALCRIM No. 3400.) The trial court also instructed the
jury that the prosecution was not required to prove the crimes took place exactly on
November 20, 2019, “but only that [they] happened reasonably close to that day.”
(CALCRIM No. 207.)
During closing arguments, the prosecutor argued that Hidalgo had been the
group’s ringleader, hatching the robbery plan when he realized the victim was alone in
his home, then enlisting the help of his two friends. The prosecutor argued the group had
robbed the victim together, then Hidalgo left in Boggs’ car so that Boggs and Anderson
could steal the victim’s car. He told the jury that even though Boggs and Anderson had
been the ones to take the car, Hidalgo had acted as an accomplice by helping to “violently
force” the victim “into his kitchen where they tied him up” and by driving off in Boggs’
car so that Boggs and Anderson could take the victim’s. The prosecutor added, “we know
that . . . [Boggs and Anderson] left in the Mitsubishi Lancer belonging to [the victim], but
it was Mr. Hidalgo that was aiding and abetting during the course of the robbery.”
6 Defense counsel argued this was a case of mistaken identity—that Hidalgo was
not with Boggs and Anderson when they robbed the victim and stole his car, as proven by
the fact he was in custody during the time the victim said the incident occurred .
The jury found Hidalgo not guilty of robbery but guilty of aiding and abetting the
car theft. In a separate bench trial, the judge found he had suffered a prior serious violent
felony conviction and sentenced him to six years in prison—the upper term of three years
for the theft, doubled under the “Three Strikes” law because of the prior strike. (Pen.
Code, §§ 1170.12, subds. (a)-(d), 667, subd. (b).)
II
ANALYSIS
A. The Car Theft Conviction
Hidalgo argues his car theft conviction isn’t supported by the record because the
prosecution premised his guilt on his having committed the robbery, but the jury found
him not guilty of that crime. According to Hidalgo, because the prosecutor argued during
closing that Hidalgo aided and abetted the car theft “during the course of the robbery”
and the jury acquitted him on the robbery count, “there was no evidence that he aided and
abetted the [car] theft.” We disagree.
When considering a challenge to the sufficiency of the evidence to support a
conviction, we must review “the entire record in the light most favorable to the judgment
to determine whether it discloses evidence that is reasonable, credible, and of solid value
such that a reasonable jury could find the defendant guilty beyond a reasonable doubt.”
7 (People v. Rountree (2013) 56 Cal.4th 823, 852-853.) Because we are reviewing a paper
record whereas the jurors watched each witness testify, we do not reweigh the evidence.
(Ibid.) Instead, we “presume[] in support of the judgment the existence of every fact the
trier could reasonably deduce from the evidence” and will not reverse unless there is no
hypothesis under which a reasonable jury could find the defendant guilty. (People v. Beck
and Cruz (2019) 8 Cal.5th 548, 626.)
An accomplice to a crime (or an aider and abettor) is a person who, “‘acting with
(1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of
committing, encouraging, or facilitating the commission of the offense; (3) by act or
advice aids, promotes, encourages or instigates, the commission of the crime.’” (People
v. Prettyman (1996) 14 Cal.4th 248, 259.) Factors relevant to determining whether
someone has acted as an accomplice include the person’s presence at the scene of the
crime, their relationship with the codefendants, and their conduct before and after the
offense. (People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
Here, the trial record contains sufficient evidence to permit a reasonable jury to
find Hidalgo guilty as an accomplice in the theft of the victim’s car. While some aspects
of the victim’s account varied, he never wavered in his certainty that Hidalgo had been
the one to come over first, invite Boggs and Anderson over to the victim’s house, and
later to tie him up with an extension cord. Though he told the deputy shortly after the
incident that he didn’t see who his attackers were, the jury could reasonably conclude he
wasn’t reporting the entire incident out of fear, considering that his daughter testified he
8 had identified Hidalgo as one of his attackers immediately after the incident, was scared,
and didn’t want to talk to the police. The acts the victim ascribed to Hidalgo with
certainty during trial—inviting Boggs and Anderson over and tying him up—coupled
with the fact he had driven off in Boggs’ car (as evidenced by his early morning arrest),
reasonably support an inference that he knew his friends intended to steal the victim’s car
and intentionally helped them do so.
Hidalgo’s focus on the fact the jury acquitted him of the robbery charge is
misplaced. During closing argument, the prosecutor argued that Hidalgo aided and
abetted the car theft “during the course of the robbery” by tying up the victim and thereby
preventing his resistance. (Italics added.) This argument did not require the jury to find
Hidalgo guilty of robbery as a prerequisite to convicting him of aiding and abetting the
car theft. The reason being that the prosecution tried the two counts under different
theories of liability. To convict Hidalgo of robbery the jury had to find he was a direct
perpetrator of the crime; whereas, to convict him of car theft they need only find he was
an accomplice to the crime.
The prosecution’s theories of liability thus permitted the jury to find that while
Hidalgo had taken part in both offenses, he could be convicted of only one—the one for
which he was tried as an accomplice. For instance, the jury could reasonably find Hidalgo
had tied up the victim—an act that no doubt facilitated the robbery—while also
reasonably concluding he was not a direct perpetrator of the robbery because he didn’t
take any of the victim’s personal property. This conclusion is supported by the fact that
9 Hidalgo was not in possession of any of the victim’s belongings when he was arrested in
Boggs’ car. In short, the evidence presented at trial permitted the jury to find that Hidalgo
participated in and facilitated both the robbery and the car theft, but, because of the
nature of the charges, was guilty of the car theft only.
B. CALCRIM Nos. 3400 and 207
Hidalgo argues the trial judge erred by instructing the jury with CALCRIM Nos.
3400 and 207 because they weren’t supported by the record and impeded his ability to
present his alibi defense. We review claims of instructional error de novo. (People v.
Cole (2004) 33 Cal.4th 1158.) “The proper test for judging the adequacy of instructions is
to decide whether the trial court ‘fully and fairly instructed on the applicable law.’”
(People v. Martin (2000) 78 Cal.App.4th 1107, 1111.)
Although a trial judge has a sua sponte duty to instruct the jury on “all general
principles of law relevant to the issues raised by the evidence” (People v. Souza (2012)
54 Cal.4th 90, 115), it is “error to give an instruction which, while correctly stating a
principle of law, has no application to the facts of the case” (People v. Guiton (1993) 4
Cal.4th 1116, 1129). The general principles of law governing the case are ‘“those
principles closely and openly connected with the facts before the court, and which are
necessary for the jury’s understanding of the case.”’ (People v. Breverman (1998) 19
Cal.4th 142, 154.) Instructing the jury “as to an issue not predicated upon some theory
logically deducible from the evidence” is error because the instruction “presents for
10 consideration a question not properly determinable by them.” (People v. Eggers (1947)
30 Cal.2d 676, 687.)
We start with CALCRIM No. 3400, which informed the jury that they need not
find Hidalgo was present when the car theft was committed to be guilty as an accomplice.
Though this is a correct statement of accomplice liability, Hidalgo argues it was error to
give the instruction because it wasn’t supported by the record. According to Hidalgo, the
prosecution’s theory of accomplice liability required him to be present during the car
theft because they argued he facilitated the crime by committing the robbery.
This argument suffers the same flaw as the previous one: Hidalgo is over
interpreting the prosecution’s theory of accomplice liability. As we’ve explained,
Hidalgo’s act of tying up the victim (thereby immobilizing him and preventing his
resistance) is enough to aid and abet the car theft; the jury didn’t also have to find that he
personally took any of Hidalgo’s property. Having concluded the prosecution’s theory
did not require him to be present during the car theft, we now ask whether the evidence
so required and conclude it did not. After the victim was tied up and either hooded or
blindfolded, he couldn’t see what his assailants were doing. This leaves open the
possibility that Hidalgo drove off in Boggs’ car while Boggs and Anderson were still
ransacking the victim’s house—that is, before they took his car. As such, the instruction
was supported by the evidence and it was not error to provide it.
11 We now turn to CALCRIM No. 207, which advised the jury that the prosecution
was not required to prove the crimes took place exactly on November 20, 2019, “but only
that [they] happened reasonably close to that day.” We conclude Hidalgo forfeited his
challenge to this instruction by failing to object to it in the trial court. (People v.
Campbell (2020) 51 Cal.App.5th 463, 498-499.) But even if we were to reach the merits,
we would conclude the challenge fails.
As a general matter, the prosecution is not required to plead the exact time of
commission of an alleged offense. (Pen. Code, § 955.) However, when a defendant raises
an alibi defense, “the exact time of commission becomes critically relevant to the
maintenance of the defense.” (People v. Barney (1983) 143 Cal.App.3d 490, 497.) Thus,
to protect a defendant’s constitutional right to present a defense, a trial judge may not
provide an instruction like CALCRIM No. 207—which deflects the jury’s attention from
temporal detail—when “the evidence fixes the commission of the offense at a particular
time to the exclusion of any other time and the defendant has presented evidence of an
alibi as to that particular time.” (People v. Jones (1973) 9 Cal.3d 546, 557.)
The reason Hidalgo’s challenge to CALCRIM No. 207 fails is because the
prosecution’s evidence did not fix the time of the robbery and the car theft to the period
he was in custody. The victim said he thought the home invasion had occurred around
4:00 a.m. on November 20, but he admitted he was groggy when he woke up and his
recollection could be wrong. In addition, his daughter said he’d called her earlier, “in the
12 middle of the night,” and there was evidence he was still intoxicated when the home
invasion occurred.
For all of these reasons, the jury could reasonably conclude the victim’s memory
of when the robbery took place was compromised and that it could have happened any
time between the late evening of November 19 and the early morning of November 20.
The fact Hidalgo was pulled over around 3:40 a.m. does not provide a complete alibi for
that stretch of time. Because Hidalgo’s alibi is a partial one only, we conclude the judge
did not err by giving CALCRIM No. 207 and letting the jury decide whether Hidalgo was
present for the entire incident, none of it, or just part of it.
Because we conclude neither instruction was erroneous, we reject Hidalgo’s claim
that the cumulative effect of the instructional errors was prejudicial.
C. Dueñas
At sentencing, the trial judge imposed a $300 restitution fee, a $40 court
operations assessment, and a $30 criminal conviction assessment. Despite failing to raise
the issue during his sentencing hearing, Hidalgo now relies on Dueñas to argue the judge
erred by failing to determine whether he could pay the fees before imposing them.
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.) It
also held that “to avoid serious constitutional questions” raised by the statutory restitution
scheme, the trial judge must stay execution of the mandatory restitution fine unless they
13 determine the defendant has the ability to pay it. (Id. at p. 1172.) In a subsequent
decision, the Dueñas court held the defendant bears the burden of showing his or her
inability to pay, and the court “must consider all relevant factors,” including future
earnings and “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.)
Since Dueñas, some courts have criticized the decision and declined to follow it,
while others have concluded the Eighth Amendment’s prohibition against excessive fines
provides the proper framework for analyzing an ability to pay challenge to fines that are
punitive in nature, like restitution. (E.g., People v. Hicks (2019) 40 Cal.App.5th 320, 322,
327-329, review granted Nov. 26, 2019, S258946 [holding Dueñas was wrongly
decided]; People v. Kopp (2019) 38 Cal.App.5th 47, 96-97, review granted Nov. 13,
2019, S257844 [holding Eighth Amendment analysis applies to a restitution fine].) Our
Supreme Court has granted review of the issues presented by Dueñas and will resolve the
split of authority. (Kopp, review granted, Nov. 13, 2019, S257844.)
The merits of Dueñas aside, the problem with Hidalgo’s challenge is the threshold
one of forfeiture. While we traditionally excuse the failure to object where an objection
“would have been futile or wholly unsupported by substantive law then in existence”
(People v. Welch (1993) 5 Cal.4th 228, 237), Hidalgo cannot argue his failure to object
would have been futile because he had the benefit of Dueñas when his sentence was
imposed. The decision came out well before his sentencing hearing. We therefore
conclude his claim of error is forfeited. (See, e.g., People v. McCullough (2013) 56
14 Cal.4th 589, 593 [the failure to object in the trial court forfeits a claim on appeal, even
claims based on constitutional rights]; People v. Keene (2019) 43 Cal.App.5th 861, 864
[“The concept of forfeiture for failure to raise ability to pay fines, fees or assessments is
well established in our case law”].)
But even if he hadn’t forfeited his challenge and we were to conclude the judge
erred by not first determining his ability to pay the fees, we would nevertheless find the
error harmless. This is because the record demonstrates, beyond a reasonable doubt, that
Hidalgo will be able to pay the relatively minimal total of less than $400 with future
earnings because he is young, healthy, capable of holding a job (as demonstrated by the
fact he was gainfully employed for several years before his conviction), and will have an 1 opportunity to earn wages in prison. (See People v. Jones (2019) 36 Cal.App.5th 1028,
1035 [Dueñas error is harmless if the record demonstrates, beyond a reasonable doubt,
the defendant cannot establish their inability to pay].)
D. Senate Bill No. 567
While Hidalgo’s appeal was pending, the Governor signed Senate Bill No. 567
(2021–2022 Reg. Sess., Stats. 2021, ch. 731), which made significant changes to section
1170 and became effective on January 1, 2022. Where trial judges formerly had
discretion to select any term of imprisonment within the statutory range when sentencing
a convicted defendant, the new law makes the middle term the presumptive sentence and
1 According to the probation report, prior to his conviction, Hidalgo had been employed by Labor Finders for eight years, setting up tents for military training and earning $11.00 an hour, and by a company called Parexel, participating in research studies and earning $365 per day. 15 permits an aggravated sentence only where the defendant has either stipulated to the facts
underlying the aggravating circumstances or those facts have been found true beyond a
reasonable doubt. (Stats. 2021, ch. 731, § 1.3; Pen. Code, § 1170, subd. (b)(1)-(2).) There
is one exception to this rule, which is that a judge “may consider the defendant’s prior
convictions in determining sentencing based on a certified record of conviction without
submitting the prior convictions to a jury.” (Pen. Code, § 1170, subd. (b)(3); Stats. 2021,
ch. 731, § 1.1)
We allowed the parties to submit supplemental briefing regarding the new law’s
application to this case. Hidalgo argues the judge selected the upper term for his
conviction based on facts that were neither found true by the jury nor stipulated to, and as
a result, we must remand for resentencing. The People correctly concede the new law’s
ameliorative changes apply retroactively to Hidalgo. (See People v. Flores (2022) 73
Cal.App.5th 1032, 1039, citing People v. Superior Court (Lara) (2018) 4 Cal.5th 299,
308.) However, they argue the judge’s consideration of now improper facts was harmless
beyond a reasonable doubt because the judge made clear he would also base his decision
to select the upper term based solely on certified court records. We agree with the People.
The list of aggravating circumstances in California Rules of Court, rule 4.421,
includes case-specific factors—such as, the vulnerability of the victim, whether the crime
involved weapons, great violence, or a high degree of callousness, and whether the
defendant induced others to participate in the crime—and defendant-specific factors—
such as, whether the defendant has engaged in violent conduct that indicates a serious
16 danger to society, whether they have served a prior prison term, and whether their
performance on probation or parole was unsatisfactory. (Cal. Rules of Court, rule
4.421(a) & (b).)
At Hidalgo’s sentencing, the judge identified several aggravating circumstances
and observed that “any one of [those circumstances] by itself would be sufficient to
support the imposition of the aggravated sentencing term.” Among the case-specific
aggravating circumstances was that the 62-year-old victim was particularly vulnerable
and Hidalgo had induced Boggs and Anderson to participate in the crime. The judge also
identified defendant-specific aggravating circumstances, including that Hidalgo had
engaged in violent conduct that posed a public danger, had served prior prison terms, and
had performed unsatisfactorily on parole. These latter circumstances were based on
evidence from Hidalgo’s certified record of conviction, which the judge had admitted
into evidence and relied on during the bifurcated bench trial where he found, beyond a
reasonable doubt, that Hidalgo had suffered a prior strike conviction. The records
demonstrated Hidalgo had pled guilty to one count of robbery and one count of receiving
stolen property in April 2004. They also showed that he had served a prison term for
those convictions, was convicted of possessing controlled substances while on parole and
returned to custody for the violation, and was released again in 2011. Because these
defendant-specific aggravating circumstances were based on the record of conviction,
they are a proper basis for the decision to select the upper term under the new law.
17 Citing People v. Lopez (2022) 78 Cal.App.5th 459, Hidalgo argues the judge’s
reliance on proper circumstances doesn’t cure the error if the judge also relied on
improper circumstances in selecting the upper term. To the contrary, Lopez underscores
why the judge’s decision in our case complies with the new law. In that case, the trial
judge had relied on now improper circumstances in selecting the upper term as well as
circumstances that remained proper because they were based on the record of conviction.
The appellate court concluded it could not uphold the sentence based on the judge’s
consideration of proper circumstances because the judge had “offered no indication that
[he] would have selected an upper term sentence even if only a single aggravating factor
or some subset of permissible facts were present.” (Lopez, supra, at p. 468.)
Our case, in contrast, offers precisely such an indication. When identifying the
aggravating circumstances the judge explicitly stated that he considered any one of them
sufficient on its own to support the upper term. Thus, because the record does “clearly
indicate that the trial court would have exercised its discretion to impose an upper term
based on an aggravating factor” that remains proper under the new law, we conclude
Hidalgo’s sentence does not violate the recent amendments to Penal Code section 1170.
(Lopez, supra, 78 Cal.App.5th at p. 468.)
18 III
DISPOSITION
We affirm.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH J.
We concur:
McKINSTER Acting P. J.
MENETREZ J.