Filed 1/11/22 P. v. Simon CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E075656
v. (Super. Ct. No. FSB19003159)
JAMES DARWIN SIMON II, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. J. David Mazurek,
Judge. Affirmed.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and
Appellant.
Matthew Rodriguez, Acting Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and
James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
1 I.
INTRODUCTION
Defendant and appellant, James Simon, appeals from the judgment entered 1 following jury convictions for second degree robbery (Pen. Code, § 211 ; count 1),
assault with a firearm (§ 245, subd. (a)(2)), and felon in possession of a firearm (§ 29800,
subd. (a)(1)). The jury also found true allegations defendant suffered two strike priors
(§ 1170.12, subd. (a)(d)) and two prior serious felony convictions (§ 667, subd. (a)(1)).
The court sentenced defendant to 35 years to life in prison.
Defendant contends the trial court committed instructional error by not instructing
the jury on the lesser included offense of simple assault. Defendant also argues his trial
attorney failed to provide effective representation by failing to request the court not to 2 impose enhancements for his two prior serious felony convictions. In addition,
defendant contends the trial court violated his state and federal due process rights by
imposing fines and fees without determining whether he had the ability to pay them and
without holding an ability-to-pay hearing. We reject defendant’s contentions and affirm
the judgment.
1 Unless otherwise noted, all statutory references are to the Penal Code. 2 Defendant has also filed a habeas corpus petition alleging that his trial attorney provided constitutionally deficient representation based on the same grounds raised in the instant appeal (Simon v. Brown, case No. E076307). We have addressed the writ petition by separate order.
2 II.
FACTS
During the afternoon of September 6, 2019, M.R., a refrigeration technician,
provided refrigeration services at a fast food restaurant. While on his ladder, he noticed
codefendant Sarah Beurmann waiting to enter the restaurant bathroom. She was only
wearing underwear. M.R. asked Beurmann if she would like a ride and would entertain
him with an “exotic dance.” Beurmann said yes, and the two went to a nearby motel.
Beurmann said she was homeless and requested a new phone and some clothing items.
M.R. and Beurmann shopped at nearby stores for the items she requested. M.R. was
carrying $1,800 in cash, some of which he used to pay for the motel room and the items
purchased for Beurmann.
When M.R. and Beurmann returned to the motel room, they talked for about 40
minutes. M.R. told Beurmann about his marriage. Defendant knocked on the motel
room door. Beurmann answered the door. Defendant stood at the door staring at M.R.
and then left. M.R. wondered if Beurmann had ordered some drugs.
Beurmann asked M.R. to give her a ride down the street to “see a friend and get
something.” M.R. gave Beurmann a ride, waited for her, and drove her back to the motel.
M.R. noticed Beurmann had some drugs and syringes. Beurmann gave M.R. a backwash
in the shower. Afterwards, Beurmann put on lingerie and the two attempted sexual
relations. Then Beurmann went into the bathroom and remained there alone for over an
3 hour. When Beurmann came out of the bathroom, she gathered her belongings and left.
M.R. locked and barricaded the door.
A few minutes later, M.R. heard a knock on the door and let Beurmann in.
Beurmann sat on the bed near the door. A few minutes later someone knocked on the
door. M.R. told Beurmann not to open the door. Beurmann jumped up from the bed,
pushed M.R. aside, and opened the door. M.R. testified he tried to push the door shut but
defendant pushed it open and walked in with a gun. Defendant pointed the gun at M.R.’s
head and demanded M.R. give him his money. M.R. told defendant he could take
whatever he wanted. At gunpoint, defendant ordered M.R. to sit on the bed while
Beurmann gathered M.R.’s belongings. Fearing for his life, M.R. complied.
Defendant and Beurmann then left with M.R.’s pants. M.R. saw Beurmann with
his pants get into a truck in the parking lot. M.R. pleaded for his pants. M.R.’s wallet
with $1,800 in cash and two sets of keys were in his pants pockets. After Beurmann
rummaged through M.R.’s pants, she tossed them from the truck. Defendant walked up
to M.R. and handed him his phone, which M.R. did not realize had been taken.
Defendant told M.R. in a threatening tone, “‘Answer the phone.’” M.R. understood this
to mean he should expect a call from defendant possibly trying to extort money from him.
Immediately after defendant and Beurmann drove away, M.R. called 911, fearing
defendant might harm his family. M.R. reported he had been robbed.
4 Shortly after M.R. called 911, police officers noticed defendant and Beurmann
sitting in a truck a quarter mile from the motel. An officer saw defendant reach under the
seat. The police took defendant and Beurmann into custody. The police found $1,908 in
cash in defendant’s pocket, a methamphetamine pipe in Beurmann’s bra, and 12.36
grams of methamphetamine in the truck. The police also found a loaded gun and M.R.’s
wallet under the seat. The police transported defendant and Beurmann to the motel,
where M.R. identified them.
Beurmann was charged with robbery and pled guilty to a lesser crime of being an
accessory after the fact to the robbery. Before pleading guilty, Beurmann had intended to
testify, consistent with her previous statements to the police, that there was no robbery.
Her plea bargain required her to state under oath that there had been a robbery. After
doing so, she was released from jail and five misdemeanors against her were dismissed.
Beurmann testified she and defendant robbed M.R. “at gunpoint.” Defendant
always carried a gun. At the time of the robbery, Beurmann was a prostitute to support
her drug habit. M.R. had bought her things and paid Beurmann cash, which she used to
buy drugs. Beurmann became disgusted with M.R. She texted defendant to come get
her. When defendant picked her up, she told him M.R. was carrying a lot of cash.
Defendant and Beurmann then returned to the motel. Beurmann testified she saw
defendant with a gun in M.R.’s motel room.
5 Defendant testified he went to the motel solely because Beurmann told him she
was in trouble. After he picked up Beurmann at the motel, Beurmann said she forgot
something. Defendant took her back. Beurmann went inside M.R.’s motel room and the
door closed. Concerned for her safety, defendant knocked on the door to get Beurmann.
When the door opened, defendant told Beurmann to get her belongings and leave.
Defendant acknowledged he was carrying a gun but testified it remained tucked in the
front of his waistband at all times. Defendant stated, “I believe that it was visible from
the front of my pants because I had my shirt kind of lifted in a way to where it could be
seen.” Defendant was unaware Beurmann took M.R.’s pants containing M.R.’s
belongings. When defendant learned Beurmann had taken M.R.’s phone, defendant gave
it back to M.R.
Defendant further testified that the night of the charged offense, he had about
$2,300 in his wallet, which included $900 he borrowed from T.M. and $1,100 he
borrowed from J.P. Defendant was planning to use the money to pay for retrieving his
impounded car.
Defendant’s girlfriend, T.M., testified that, with her consent, defendant withdrew
$900 in cash from her bank account on August 30, 2019. J.P., a business associate of
defendant, testified he loaned defendant $1,100 but did not remember when.
6 III.
THERE WAS NO INSTRUCTIONAL ERROR
Defendant contends the trial court committed prejudicial error by failing to
instruct the jury sua sponte on the offense of simple assault (§ 240), a lesser included
offense of the charged offense of assault with a firearm (§ 245, subd. (a)(2); count 2).
We disagree.
The trial court is required to instruct the jury “‘“on all general principles of law
relevant to the issues raised by the evidence, whether or not the defendant makes a formal
request.”’ [Citation.] ‘Conversely, even on request, the court “has no duty to instruct on
any lesser offense unless there is substantial evidence to support such instruction.”’
[Citation.] This substantial evidence requirement is not satisfied by
‘“any evidence . . . no matter how weak,”’ but rather by evidence from which a jury
composed of reasonable persons could conclude ‘that the lesser offense, but not the
greater, was committed.’ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 704-705.)
We review de novo whether the trial court erred in failing to instruct on a lesser included
offense. (Id. at p. 705; People v. Cole (2004) 33 Cal.4th 1158, 1215.)
It is undisputed that simple assault is a lesser included offense of assault with a
firearm. (People v. McDaniel (2008) 159 Cal.App.4th 736, 747.) “An assault is an
unlawful attempt, coupled with a present ability, to commit a violent injury on the person
of another.” (§ 240.) Defendant argues the trial court was required to instruct on simple
assault because there was evidence that could have persuaded a reasonable juror that he
7 was guilty of only simple assault (§ 240), and not assault with a firearm (§ 245, subd.
(a)(2)). The only evidence defendant cites is evidence (1) M.R. could not describe the
gun to the 911 operator, (2) M.R.’s statement to the 911 operator that the gun was loaded,
and (3) defendant’s testimony that he never pointed a gun at M.R.
We conclude this evidence was insufficient to support instruction on the lesser
included offense of simple assault. Although M.R. testified he told the 911 operator he
could not describe the gun, defendant explained that at that time he was “traumatized.”
Defendant had just pointed a gun at him, threatening his life. M.R. noted he told the 911
operator the gun was a revolver. Also, when M.R. testified, he recalled the gun’s handle
was brown. M.R. said he could see the handle when defendant was holding it. Evidence
that M.R. was unable to describe the gun to the 911 operator does not provide sufficient
evidence to support a reasonable finding defendant did not use a gun when assaulting
M.R.
M.R.’s statement to the 911 operator that the gun was loaded also is insufficient to
support instruction on the lesser included offense of simple assault. Defendant argues
that M.R. lied to the 911 operator that he knew the gun was loaded. M.R. acknowledged
at trial that he told the 911 operator the gun was loaded but could not tell this from
looking at the revolver. M.R. explained he merely assumed the gun was loaded because
defendant confronted him with it. M.R.’s statement the gun was loaded was nothing
more than a reasonable assumption under the circumstances, and was insufficient to
support an instruction on simple assault.
8 The only evidence supporting a finding that defendant did not use a gun during the
assault was his own self-serving testimony denying he used a gun. Such testimony was
insufficient to support a lesser included offense instruction on simple assault because
defendant also denied assaulting M.R. Defendant testified he went to the motel twice to
pick up Sarah. The first time he did not go to the motel room. He waited in his truck for
Sarah. Defendant testified that the second time, after he returned with Sarah, he waited
for Sarah in the truck while she went to the motel room to retrieve her belongings. After
waiting for her for a while, he became concerned about Sarah and went to the motel
room. He told Sarah to get her belongings and they left. Defendant further testified that,
before leaving, he discovered Sarah had M.R.’s phone and gave it back to him.
Defendant admitted he was carrying a gun in his pants waistband but testified he did not
remove it or use it while he was at the motel.
Because defendant’s testimony did not support a finding of simple assault, his
testimony that he did not use a gun while in the motel room was insufficient to support
instruction on simple assault as a lesser included offense of assault with a firearm. The
evidence supported either finding that defendant did not assault M.R., based on
defendant’s testimony, or defendant assaulted M.R. using a gun, based on M.R. and
Sarah’s testimony. The evidence either supported a reasonable finding defendant
assaulted M.R. with a gun or he did not assault M.R. at all. The court therefore did not
err in not instructing sua sponte on simple assault.
9 IV.
INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends his trial attorney provided ineffective representation by failing
to request the trial court to exercise its discretion to dismiss two five-year serious felony
conviction enhancements pursuant to Senate Bill No. 1393 (Legis. Counsel’s Dig., Sen.
Bill No. 1393 (2017-2018 Reg. Sess.) Stats. 2018, ch. 1013, §§ 1, 2.)
Defendant argues it is reasonably probable the trial court would not have imposed
at least one of the two serious felony conviction enhancements had his attorney requested
the court to exercise its discretion and not impose the enhancements because of the age of
the prior serious felony convictions and the trial court’s leniency in imposing concurrent
sentencing on count 3 (possession of a firearm by a felon; § 29800, subd. (a)(1)).
The two prior serious felony convictions were for a 2001 conviction for robbery
(§ 211) and attempted robbery (§§ 211, 664), and for a 2014 conviction for violating
parole on a 2001 conviction for first-degree residential burglary (§ 459). Both the 2001
and 2014 convictions arose out of offenses defendant committed in 2001. The 2014
conviction was for an old warrant discovered when defendant was serving his sentence
on the 2001 conviction for burglary.
Defendant filed a Romero motion (People v. Superior Court (Romero) (1996) 13
Cal.3d 497), requesting the court to strike one or both of his strike priors, which are based
on the same convictions as his two serious felony conviction enhancements. Defendant
argued in his motion and during the sentencing hearing that his strike priors were based
10 on offenses almost 20 years old and were committed when he was 18 or 19 years old.
Defendant asserted that he had overcome drug addiction, was self-employed, and had
become a more mature person.
The trial court denied defendant’s Romero motion, explaining that the court chose
not to exercise its discretion to strike any of defendant’s strike priors because defendant
had spent a large portion of his life in custody, with a criminal record beginning when he
was a juvenile in 1996. The court noted that defendant was convicted in 1997 of robbery
with a firearm, was paroled, violated parole, and then went to prison. After that he
committed an attempted robbery in 2001 and was sentenced to 14 years in prison. When
released, he violated his parole. Defendant then committed the charged offenses in 2019.
The trial court concluded defendant had not learned anything from his prior convictions.
He continues to engage in the same type of conduct and acted in concert with another
person to set up the victim for a robbery. The court stated: “[T]he Court thinks that the
defendant has earned a life sentence in this case based upon his prior conduct and his
conduct in this case. [¶] So the Court doesn’t think that the defendant would be deemed
outside the spirit in whole or in part. And the Court will deny the motion to strike the
prior.”
After the court denied defendant’s Romero motion, the parties submitted, with no
request by defense counsel to dismiss defendant’s two prior serious felony convictions.
The court sentenced defendant to 35 years to life, which included 25 years to life under
the “Three Strikes” law on count one and a consecutive 10 years for the two five-year
11 enhancements for the two prior serious felony convictions. The court stayed punishment
on count 2 under section 654, and imposed a concurrent six-year term on count three
(possession of a firearm by a felon).
A. Applicable Law and Standard of Review
In order to establish a claim for ineffective assistance of counsel (IAC), a
defendant must show that his or her counsel’s performance was deficient and that the
defendant suffered prejudice as a result of such deficient performance. (Strickland v.
Washington (1984) 466 U.S. 668, 687-692.) To demonstrate deficient performance, the
defendant bears the burden of showing that counsel’s performance fell below an objective
standard of reasonableness under prevailing professional norms. (People v. Lopez (2008)
42 Cal.4th 960, 966.) To demonstrate prejudice, the “defendant bears the burden of
showing a reasonable probability that, but for counsel’s deficient performance, the
outcome of the proceeding would have been different.” (People v. Mickel (2016) 2
Cal.5th 181, 198.)
“On appeal, we do not second-guess trial counsel’s reasonable tactical decisions.”
(People v. Lucas (2014) 60 Cal.4th 153, 278.) “[A] defendant’s burden [is] ‘difficult to
carry on direct appeal,’ as a reviewing court will reverse a conviction based on
ineffective assistance of counsel on direct appeal only if there is affirmative evidence that
counsel had ‘“‘no rational tactical purpose’”’ for an action or omission.” (People v.
Mickel, supra, 2 Cal.5th at p. 198, quoting People v. Lucas, supra, (1995) 12 Cal.4th 415,
437.)
12 The California Supreme Court has “repeatedly stressed ‘that “[if] the record on
appeal sheds no light on why counsel acted or failed to act in the manner
challenged[,] . . . unless counsel was asked for an explanation and failed to provide one,
or unless there simply could be no satisfactory explanation,” the claim on appeal must be
rejected.’ [Citations.] A claim of ineffective assistance in such a case is more
appropriately decided in a habeas corpus proceeding.” (People v. Mendoza Tello (1997)
15 Cal.4th 264, 266-267, quoting People v. Wilson (1992) 3 Cal.4th 926, 936; accord,
People v. Johnson (2016) 62 Cal.4th 600, 653.)
B. No Showing of Prejudice
On September 30, 2018, the Governor signed Senate Bill No. 1393 (2017-2018
Reg. Sess.) which, effective January 1, 2019, amends sections 667 and 1385 to give trial
courts the discretion to dismiss five-year sentence enhancements under section 667,
subdivision (a). (See Legis. Counsel’s Dig., Sen. Bill No. 1393 (2017-2018 Reg. Sess.)
[“This bill would delete the restriction prohibiting a judge from striking a prior serious
felony conviction in connection with imposition of [a] 5-year enhancement”].)
Although during the sentencing hearing on August 28, 2020, defense counsel
could have requested the trial court to dismiss defendant’s two prior serious felony
convictions under section 1385, defendant has not demonstrated his attorney’s failure to
do so was prejudicial. Defendant has not met his burden of showing a reasonable
probability that, but for counsel’s deficient performance, the outcome of the proceeding
would have been different.” (People v. Lopez, supra, 42 Cal.4th at p. 966; People v.
13 Mickel, supra, 2 Cal.5th at p. 198.) Defendant argues the trial court’s imposition of a
concurrent sentence on count 3 demonstrates that the court was lenient when sentencing
him. Defendant asserts this leniency shows it is “reasonably possible” the court would
have also been lenient had defense counsel asked the court to dismiss his prior serious
felony convictions. This is speculative, not reasonably probable. While it may be
possible, defendant has not shown it is reasonably probable.
Defendant argues it was reasonably possible the trial court would have dismissed
one or both serious felony enhancements, despite denying his Romero motion, because
the trial court demonstrated leniency when sentencing defendant and the trial court has
far greater discretion to dismiss prior serious felony convictions than to dismiss strike
priors under the Three Strike law. (See People v. Williams (1998) 17 Cal.4th 148, 161.)
In support of this proposition, defendant requests this court to take judicial notice of the
legislative history of Senate Bill No. 1393, which defendant argues shows that the law
was intended to prevent “inappropriately t[ying] a judge’s hands” and forcing imposition
of enhancements for prior serious felony convictions, which may have already been used
as a strike prior. (Senate Committee on Public Safety Analysis of Senate Bill No. 1393,
dated Apr. 2, 2018, p. 5.)
Defendant’s request for judicial notice of the Senate Bill No. 1393 legislative
history is granted under Evidence Code sections 459, subdivision (a) and 452,
subdivision (c), as an official act of the legislature, consisting of a document produced by
14 the Senate Committee on Public Safety Analysis of Senate Bill No. 1393, dated April 2,
2018.
Although Senate Bill No. 1393’s legislative history shows that the Legislature
intended to provide the trial court with discretion to dismiss prior serious felony
convictions, particularly when already used as strikes, there is no showing it is reasonably
probable the trial court would have done so had counsel requested it. Furthermore, the
trial court’s stated reasons for denying defendant’s Romero motion demonstrate that,
even if requested, it is not reasonably probable that the trial court would have granted
dismissal of one or both of defendant’s prior serious felony convictions.
In addition, we must presume the trial court was aware of its discretionary
authority to dismiss defendant’s prior serious felony convictions, even in the absence of
defense counsel making such a request. (People v. Coddington (2000) 23 Cal.4th 529,
623; People v. Reyes (2016) 246 Cal.App.4th 62, 82.) The law authorizing such
discretion had been in effect for 20 months at the time of sentencing. “In the absence of
evidence to the contrary, we presume that the court ‘knows and applies the correct
statutory and case law.’” (People v. Thomas (2011) 52 Cal.4th 336, 361, quoting People
v. Coddington, supra, at p. 623; see People v. Reyes, supra, at p. 82.)
The burden is on defendant to demonstrate that the court misunderstood its
sentencing discretion. (People v. Reyes, supra, 246 Cal.App.4th at p. 82.) Defendant has
not met this burden or demonstrated prejudice. He has not shown that it is reasonably
15 probable the trial court would have dismissed one or both of defendant’s prior serious
felony convictions had defense counsel requested the court to do so.
V.
ABILITY TO PAY FINES AND FEES
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant
argues that that this court must strike the court operations and facilities fees and stay the
restitution fine because the fines and fees were imposed without an ability-to-pay hearing
or any finding of ability to pay. We disagree. If there was any Dueñas error, the error
was harmless.
During sentencing, the court indicated it had reviewed defendant’s probation
report. The probation department recommended the court find defendant had the ability
to pay $750 for appointed counsel; $727 for investigation costs; $120 for the court
operations fee (§ 1465.8); $90 for the court construction fee (Gov. Code, § 70373); a
$10,000 restitution fine (§ 1202.4); and a stayed $3,000 parole revocation restitution fine
(§ 1202.45).
The court stated during sentencing that it found that “the defendant does not have
the present ability to pay for appointed counsel fees nor for the cost of conducting the
presentence investigation report.” Without stating any additional findings on ability to
pay, the court ordered defendant to pay other fines and fees totaling $3,210. Those fines
and fees included a court operations fee of $120 ($40 per count), a court construction fee
16 of $90 ($30 per count), a $3,000 restitution fine, and a stayed $3,000 parole revocation
restitution fine.
Dueñas held that defendants have a due process right under the federal and state
Constitutions to a hearing on their ability to pay court operations and facilities fees.
(Dueñas, supra, 30 Cal.App.5th at p. 1164.) 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.) The same court that decided Dueñas has since clarified that, at
the ability to pay hearing, defendants bear the burden of showing their 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[s].” (People v. Castellano 3 (2019) 33 Cal.App.5th 485, 490-491.)
The People argue that defendant forfeited his Dueñas objections to the fines and
fees by not objecting in the trial court. Defendant contends that if he forfeited the issue,
his attorney’s failure to object constitutes IAC. We need not decide the issues of
forfeiture, IAC, or Dueñas error because, even assuming there was Dueñas error, the
error was harmless beyond a reasonable doubt because the record shows defendant had
the ability to pay from prison wages the court-ordered fines and fees totaling $3,210.
3 The California Supreme Court has granted review of the issues presented by Dueñas in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844.
17 (People v. Jones (2019) 36 Cal.App.5th 1028, 1035; Chapman v. Cal. (1967) 386 U.S.
18, 24; People v. Kipp (1998) 18 Cal.4th 349, 377.) Defendant was sentenced to a term
of 35 years to life. He was 40 years old at the time of his sentencing. According to the
probation report, he was in good health, graduated from high school, and had been self-
employed as a handyman for the past four years, earning approximately $3,500 a month.
Also, although he had no assets, he also had no debts.
We may consider defendant’s potential prison wages in evaluating the prejudicial
effect of alleged Dueñas error. (People v. Jones, supra, 36 Cal.App.5th at p. 1035;
People v. Taylor (2019) 43 Cal.App.5th 390, 402.) “[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, People v. Taylor, supra, 43
Cal.App.5th at p. 402.) 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 defendant’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); People v.
Taylor, supra, at p. 402.)
18 Earning the $12 monthly minimum prison wage, defendant will be able to pay off
his $3,210 in fines and fees in less than 25 years. Given defendant’s age, the length of
his sentence, and his employment history, we are persuaded beyond a reasonable doubt
that he has the ability to pay the fines and fees imposed. We therefore conclude any
Dueñas error or deficient performance by counsel was harmless.
VI.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
MILLER Acting P. J.
RAPHAEL J.