Filed 12/6/13 P. v. Kruse CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,                                   A135642

v.                                                                   (Mendocino County
RICHARD FREDERICK KRUSE,                                             Super. Ct. No. SCUKCRCR 10-15372)
         Defendant and Appellant.


         A jury convicted defendant Richard Kruse of committing a forcible lewd or
lascivious act upon a child under the age of 14 years. (Pen. Code, § 288, subd. (b)(1).)1
The trial court sentenced him to a prison term of ten years. Defendant appeals upon
contentions that (1) evidence of uncharged lewd acts with another child was wrongly
admitted; (2) the trial court failed in its duty to instruct the jury on the lesser included
offense of a non-forcible lewd act; (3) there is insufficient evidence that force was used;
(4) the court erred in its admission and consideration of certain information during
sentencing; and (5) the court failed to provide defendant with a hearing on his ability to
pay before ordering him to pay $5,000 for legal assistance he received from the public
defender.
         We conclude that evidence of uncharged prior lewd acts was properly admitted but
that the trial court erred in failing to instruct the jury on the lesser included offense of a
non-forcible lewd act. We also find insufficient evidence that defendant used force,


1
    All further section references are to the Penal Code except as noted.


                                                             1
violence, duress, menace or fear in committing the act. There was no error in the court’s
consideration of certain information at sentencing and we conclude that defendant
forfeited his claim that legal costs were imposed upon him without a determination of his
ability to pay. We shall modify the judgment to reduce the conviction from commission
of a forcible lewd act to commission of a non-forcible lewd act and remand for
resentencing.
                                      Statement of Facts
         In 2008, defendant was a married, 65-year-old man who babysat two girls for a
few hours after school and on occasional sleep-overs. Defendant began babysitting J.H.2
when she was six years old. In May 2008, the police investigated a child protective
services report of possible child sexual abuse of J.H., who was then seven years old.
         J.H. had previously reported molestation in 2005 when she was five years old,
before having contact with defendant. At that time, J.H. identified her maternal
grandfather as a molester and described the molestation in detail to a social worker. The
incident was investigated but never prosecuted. In May 2008, the same social worker
interviewed J.H. about possible sexual abuse. J.H. told the social worker that defendant
touched her chest, buttocks, and vagina area.
         The police twice interviewed defendant in July 2008. Defendant said J.H. was
“definitely being molested” but not by him. Defendant described J.H. as “a very sexual
little girl” and described instances in which she exposed herself to him and once placed
his hand on her crotch, over her underwear. Defendant said J.H. asked him to “French
kiss” her and invited him to masturbate in front of her, but he told her “absolutely not.”
Defendant proceeded to admit “inappropriate behavior” with J.H., but denied it was
sexual. Defendant said he rubbed her arms, legs, back, abdomen and chest “skin to skin”
at her request. Defendant also once rubbed her buttocks, over her underwear. Defendant
understood one should not touch “somebody else’s minor child” but insisted he touched
J.H. because she liked it and it comforted her. Defendant described the rubbing as “a

2
    We use initials or first names to protect victim privacy.


                                                2
loving comfort thing” for J.H. Defendant said neither he nor J.H. were “aroused sexually”
by the activity.
       In November 2010, a complaint was filed charging defendant with committing a
forcible lewd or lascivious act upon a child (§ 288, subd. (b)(1)) between August 1, 2007
and May 30, 2008. Defendant was also charged with oral copulation or sexual penetration
of a child (§ 288.7, subd. (b)) during the same time period.
       J.H. was 11 years old at the time of trial in March 2012. J.H. testified that
defendant babysat her after school when she was seven years old. J.H. said defendant
touched her legs, chest and vagina with his hand, sometimes over her clothes and
sometimes reaching under her clothes. J.H. testified that defendant put his finger inside
her vagina. She said another child, her friend S.N., was sometimes present when
defendant touched J.H.’s vagina and that defendant did the same thing to S.N. J.H.
testified that she asked defendant not to touch her but he did anyway. J.H. said that when
defendant was touching her vagina he said, “If I told anybody, he would hurt me.” On
cross-examination, J.H. said she did not remember ever talking to the social worker about
her grandfather doing “the same thing” to her.
       A 40-year-old woman testified that defendant molested her when she was a child.
The woman, Sara P., said defendant was a family friend who babysat her when she was
six years old. She said defendant touched her vagina with his hand, reaching under her
clothes. Sara testified that defendant also masturbated in front of her. Sara said defendant
once cut her hair and held it as a keepsake. Sara testified she was afraid to tell anyone
about the molestation until she was an adult. In 1992 or 1993, when she was in her early
twenties, she told her mother and also confronted defendant. Sara said defendant denied
molesting her and told her things happened to her “at home” and that she was “a very
sexual child.” Sara did not report defendant’s sexual abuse to the police until 2010.
       A police officer testified that he searched defendant’s home in 2008, following
J.H.’s accusation of child molestation. The police found a lock of hair. The police asked




                                              3
defendant about it. Defendant said the hair belonged to his granddaughter Katie3 and was
kept for “sentimental reasons.” Defendant said J.H. gave him a lock of her hair but “[i]t
got thrown away.” Defendant was interviewed by the police in 2010 and, this time, said
the hair found in his house belonged to J.H. and was given to him by her. The police
asked defendant about Sara and defendant said she was molested but not by him. The
officer testified that he also spoke with Sara’s mother and confirmed that Sara, when a
young adult, had told the mother about defendant’s sexual abuse. Defendant’s videotaped
interviews with the police in 2008, summarized above, were played for the jury.
       Defendant did not testify. The defense presented the testimony of several
witnesses, including S.N., whom J.H. said witnessed her molestation and was herself a
victim. S.N. was 12 years old at the time of trial. She testified that defendant babysat her
and her friend J.H. when the girls were in the second grade. S.N. said she understood the
difference between “good touching and bad touching.” S.N. defined a “bad touch” as
touching in a “place where you would be covered by underwear or a bathing suit.” S.N.
said she never saw defendant “do a bad touch” to J.H. About herself, S.N. testified
defendant never touched her “in a private place.”
                                        Discussion
1. Evidence of prior sexual offenses was properly admitted.
       Sara’s testimony that defendant molested her 34 years earlier, when she was six
years old, was admitted under Evidence Code section 1108, subdivision (a): “In a
criminal action in which the defendant is accused of a sexual offense, evidence of the
defendant’s commission of another sexual offense or offenses is not made inadmissible
by Section 1101 [prohibiting the use of prior acts to prove criminal disposition], if the
evidence is not inadmissible pursuant to Section 352 [as more prejudicial than
probative].”




3
  Defendant previously told the police “I never had kids of my own” so Katie’s
relationship to defendant is unclear.


                                              4
       A. No due process violation
       Defendant asserts that “admission of character evidence to prove criminal
disposition under Evidence Code section 1108 violates Due Process.” Defendant raises
the claim to preserve it for federal review; he acknowledges that the California Supreme
Court has rejected the claim. In People v. Falsetta (1999) 21 Cal.4th 903, 917, the Court
held that a “trial court’s discretion to exclude propensity evidence under [Evidence Code]
section 352 saves [Evidence Code] section 1108 from defendant’s due process
challenge.” That determination is binding upon us. (Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455.)
       B. No ex post facto violation
       Defendant asserts that evidence of sexual offenses committed 20 years before
Evidence Code section 1108 was enacted in 1995 violates the constitutional prohibition
against ex post facto laws. (Stats. 1995, ch. 439, § 2.) The ex post facto clause does not
apply to the rule of evidence established by Evidence Code section 1108.
       “No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing
the Obligation of Contracts . . . ” (U.S. Const., art. 1, § 10, cl. 1.) The proscription against
ex post facto laws has long been held to apply to four categories: “ ‘1st. Every law that
makes an action done before the passing of the law, and which was innocent when done,
criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it
greater than it was, when committed. 3d. Every law that changes the punishment, and
inflicts a greater punishment, than the law annexed to the crime, when committed. 4th.
Every law that alters the legal rules of evidence, and receives less, or different, testimony,
than the law required at the time of the commission of the offence, in order to convict the
offender.’ ” (Carmell v. Texas (2000) 529 U.S. 513, 522 (Carmell), quoting Calder v.
Bull (1798) 3 U.S. 386, 390, italics omitted.)
       Defendant maintains that Evidence Code section 1108 fits within this last
category. We disagree. The United States Supreme Court has explained that not “every
rule that has an effect on whether a defendant can be convicted implicates the Ex Post
Facto Clause. Ordinary rules of evidence . . . do not violate the Clause.” (Carmell, supra,


                                               5
529 U.S. at p. 533, fn. 23.) Only laws that “lower the burden of proof and laws that
reduce the quantum of evidence necessary to meet that burden” implicate ex post facto
concerns. (Id. at p. 541.) Laws that “relate to modes of procedure only” without altering
the degree or amount of proof necessary to convict may be applied retrospectively. (Id. at
p. 544.)
       The Supreme Court has upheld retrospective application of a rule permitting
testimony by convicted felons (Hopt v. Utah (1884) 110 U.S. 574) and a rule permitting
the introduction of expert handwriting testimony (Thompson v. Missouri (1898) 171 U.S.
380). As the Court recently explained, changes to rules on witness competency and
evidence admissibility are outside the scope of the ex post facto clause provided the rules
leave untouched the amount or degree of proof essential to conviction. (Carmell, supra,
529 U.S. at pp. 1638-1640.) In Carmell, the court held that a law permitting conviction
for child sexual abuse upon the victim’s testimony alone, without corroboration as
previously required, changed the quantum of evidence necessary to sustain a conviction
and, thus, its retrospective application violated the ex post facto prohibition. (Id. at
pp. 516, 530.)
       Evidence Code section 1108 does not violate the proscription against the ex post
facto application of laws because it does not authorize a conviction on less evidence than
required when defendant’s conduct occurred. The statute enlarges the class of admissible
evidence; it does not alter the degree or amount of proof necessary to convict. The Ninth
Circuit Court of Appeals has affirmed the constitutionality of Evidence Code section
1108 against a challenge under the ex post facto clause. (Schroeder v. Tilton (9th Cir.
2007) 493 F.3d 1083, 1086-1088 (Schroeder).) The court held that a California trial court
that admitted evidence of prior sex offenses in a child molestation case, and the appellate
court that affirmed the judgment of conviction, “did not err in concluding that [Evidence
Code section] 1108 is an ‘ordinary’ rule of evidence that does not violate the Ex Post
Facto Clause.” (Id. at p. 1088.)
       California cases are in accord. People v. Flores (2009) 176 Cal.App.4th 1171,
1176-1181, held that a comparable provision, Evidence Code section 1109 permitting


                                               6
evidence of prior domestic violence, does not violate the ex post facto clause and, in
doing so, approved the reasoning of Schroeder. Our Supreme Court, while not directly
addressing the issue, has suggested that the admission of sexual offenses occurring before
Evidence Code section 1108’s effective date would not constitute an ex post facto
violation. (People v. Davis (2009) 46 Cal.4th 539, 603, fn. 6.) We conclude that the
admission of evidence of sexual offenses committed before Evidence Code section 1108
was enacted does not violate the constitutional prohibition against ex post facto laws.
       C. No abuse of discretion
       Defendant contends the trial court abused its discretion in admitting Sara’s
testimony of uncharged sexual offenses. As noted above, Evidence Code section 352
“gives the trial court discretion to exclude evidence if its probative value is substantially
outweighed by the probability that its admission will necessitate undue time consumption
or create substantial danger of undue prejudice, confusing the issues, or misleading the
jury. In exercising this discretion as to a sexual offense, ‘trial judges must consider such
factors as its nature, relevance, and possible remoteness, the degree of certainty of its
commission and the likelihood of confusing, misleading, or distracting the jurors from
their main inquiry, its similarity to the charged offense, its likely prejudicial impact on
the jurors, the burden on the defendant in defending against the uncharged offense, and
the availability of less prejudicial alternatives to its outright admission, such as admitting
some but not all of the defendant’s other sex offenses, or excluding irrelevant though
inflammatory details surrounding the offense.’ [Citation.] The court’s ruling under
section 1108 is subject to review for abuse of discretion.” (People v. Loy (2011) 52
Cal.4th 46, 61.)
       We agree with defendant that the prior offense was remote in time; it occurred
about 34 years before trial. But “[n]o specific time limits have been established for
determining when an uncharged offense is so remote as to be inadmissible.” (People v.
Branch (2001) 91 Cal.App.4th 274, 284.) As this court has observed, “[r]emoteness of
prior offenses relates to ‘the question of predisposition to commit the charged sexual
offenses.’ [Citation.] In theory, a substantial gap between the prior offenses and the


                                              7
charged offenses means that it is less likely that the defendant had the propensity to
commit the charged offenses. However, . . . significant similarities between the prior and
the charged offenses may ‘balance[] out the remoteness.’ [Citation.] Put differently, if the
prior offenses are very similar in nature to the charged offenses, the prior offenses have
greater probative value in proving propensity to commit the charged offenses.” (Id. at
p. 285.) A prior child sexual offense committed 30 years before the current offense was
held admissible where the two offenses were substantially similar. (Id. at pp. 284-285;
accord People v. Pierce (2002) 104 Cal.App.4th 893, 900 [prior 23-year-old rape
conviction properly admitted where substantially similar to charged offense].)
       There is a striking similarity between the prior and current offenses. In each
instance, it was alleged that defendant abused his position of trust as a babysitter to young
girls by reaching his hand under the girls’ clothes and rubbing their vaginas. There was
also evidence that, in each instance, defendant possessed a lock of hair as a keepsake. The
substantial similarities between the prior and current offenses balance out the remoteness
of the prior offense.
       Defendant maintains there is a low degree of certainty that the prior offense was
committed, noting that Sara did not report molestation to the police until 2010, after J.H.
had accused him. Defendant’s suggestion that Sara’s allegation was a recent fabrication is
refuted by evidence that Sara told her mother about the molestation and confronted
defendant on the matter many years earlier, before J.H. was born. Defendant asserts we
have only Sara’s testimony to prove this prior disclosure but that is incorrect. Detective
Porter testified that he spoke with Sara’s mother and the mother confirmed that Sara told
her about defendant’s sexual abuse and defendant admitted to the police that Sara
confronted him with charges of molestation. The trial court did not abuse its discretion in
admitting Sara’s testimony.
2. The trial court erred in failing to instruct the jury on the lesser included offense of a
non-forcible lewd act.
       Defendant contends the trial court failed in its duty to instruct the jury on the
lesser included offense of a non-forcible lewd act. We agree.


                                               8
        “ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial
court must instruct on the general principles of law relevant to the issues raised by the
evidence.” ’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154.) That obligation
includes “ ‘giving instructions on lesser included offenses when the evidence raises a
question as to whether all of the elements of the charged offense were present’ ” and
there is substantial evidence to support the lesser included offense. (Ibid.) “[T]he rule
protects both the defendant and the prosecution against a verdict contrary to the evidence,
regardless of the parties’ own perceptions of their strongest lines of attack or defense.
The rule’s purpose is not simply to guarantee some plausible third choice between
conviction of the charged offense or acquittal, but to assure, in the interest of justice, the
most accurate possible verdict encompassed by the charge and supported by the
evidence.” (Id. at p. 161, italics omitted.)
        “Under California law, a lesser offense is necessarily included in a greater offense
if either the statutory elements of the greater offense, or the facts actually alleged in the
accusatory pleading, include all the elements of the lesser offense, such that the greater
cannot be committed without also committing the lesser.” (People v. Birks (1998) 19
Cal.4th 108, 117.) A forcible lewd act is statutorily defined as a lewd act committed with
force. Section 288, subdivision (b)(1) punishes “[a]ny person who commits [a lewd act]
described in subdivision (a) by use of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person.” A non-forcible
lewd act under section 288, subdivision (a) is a lesser included offense of a forcible lewd
act under section 288, subdivision (b)(1). (People v. Ward (1986) 188 Cal.App.3d 459,
472.)
        The Attorney General asserts defendant “essentially objected to the trial court
giving the lesser offense instruction” and, in so doing, invited the error and may not
complain of it on appeal. (People v. Eilers (1991) 231 Cal.App.3d 288, 295-296.) The
record does not bear out the assertion. Initially, counsel requested instruction on a non-
forcible lewd act but, after consulting CALCRIM form jury instructions, came to the
mistaken belief that a non-forcible lewd act was not a lesser included offense to a forcible


                                                9
lewd act. CALCRIM No. 1111 lists the elements of a forcible lewd act. Its use notes list
only three lesser included offenses: attempted lewd act by force, simple assault, and
simple battery. (CALCRIM No. 1111 (2011 rev.).) Defense counsel told the court she
read the form jury instruction use notes and concluded that “unfortunately, with these
kind of charges they are all or nothing with the exception of the 240 [assault] and 242
[battery], which are lessers of Count 1” for a forcible lewd act. Counsel said she was “not
in a legal position to ask” for instruction on any lesser included offenses apart from
assault and battery. Counsel did not invite error; she made a mistake, and an
understandable one given the omission of a non-forcible lewd act from the list of lesser
included offenses in the CALCRIM use notes. Defense counsel did indicate that she
would have liked the court to give the instruction on the lesser offense but did not believe
the law entitled defendant to the instruction. Defense counsel was in error and the court
was equally at fault in accepting counsel’s incorrect understanding.
       The Attorney General next claims there was no duty to instruct on a non-forcible
lewd act because the offense was not supported by the evidence. “[T]he sua sponte duty
to instruct on a lesser included offense arises if there is substantial evidence the defendant
is guilty of the lesser offense, but not the charged offense. [Citation.] This standard
requires instructions on a lesser included offense whenever ‘ “a jury composed of
reasonable [persons] could . . . conclude[]” ’ that the lesser, but not the greater, offense
was committed. [Citations.] In deciding whether evidence is ‘substantial’ in this context,
a court determines only its bare legal sufficiency, not its weight.” (People v. Breverman,
supra, 19 Cal.4th at p. 177, italics omitted.)
       There is substantial evidence from which the jury could have concluded that
defendant was guilty of the lesser offense alone. J.H. testified that, on different occasions,
defendant touched her legs, chest and vagina. J.H. said that when defendant was touching
her vagina he said, “If I told anybody, he would hurt me.” When interviewed, J.H.
indicated only that defendant told her the conduct “was a secret.” The social worker did
not remember J.H. ever saying that defendant “threatened to harm her physically.”



                                                 10
Defendant admitted touching J.H.’s legs and chest, while denying sexual purpose, and
insisted he never intentionally touched J.H.’s vagina.
       This evidence permitted the jury to conclude that a non-forcible, rather than a
forcible, lewd act occurred. The jury could find the uncontested touching of J.H’s chest,
unaccompanied by any threat, was a lewd act; find defendant touched J.H.’s vagina but
did so without any threat of harm; or find there was a threat but it related to disclosure
and was not used to accomplish the lewd act itself. In fact, as we discuss next, J.H.’s
testimony about defendant threatening to hurt her if she told anyone about the
molestation was insufficient to support a finding of a forcible lewd act. The evidence, at
most, supported conviction for a non-forcible lewd act.
       The trial court erred in failing to instruct the jury on this lesser included offense,
and the error was prejudicial. There is a reasonable probability that, had the jury been
properly instructed, defendant would have been convicted of committing a non-forcible
lewd act. (People v. Watson (1956) 46 Cal.2d 818, 836.) We shall not, however, order a
new trial with proper instructions because we also conclude, in the following discussion,
that there is insufficient evidence to support the forcible lewd act conviction.
Accordingly, we shall modify the judgment to reduce the conviction from a forcible lewd
act to a non-forcible lewd act.
3. There is insufficient evidence to support the finding that a lewd act was committed by
the use of force, violence, duress, menace, or fear of immediate bodily injury
       The record here lacks substantial evidence of a forcible lewd act within the
meaning of the statute. Section 288, subdivision (a) “makes criminal any lewd and
lascivious act with a child under the age of 14 on the assumption and recognition that
such a child is incapable of consenting to the act. Subdivision (b) prescribes a separate
violation where such act is committed using force or duress.” (People v. Hecker (1990)
219 Cal.App.3d 1238, 1249.) While recognizing that “all sex crimes with children are
inherently coercive[,]” the Legislature has determined “that defendants who compound
their commission of such acts by the use of violence or threats of violence should be
singled out for more particularized deterrence.” (Id. at p. 1251.)


                                              11
       Section 288, subdivision (b)(1) sets heightened penalties for a lewd act committed
“by use of force, violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person.” “[C]onviction of forcible lewd acts on a minor
requires evidence of ‘physical force substantially different from or substantially greater
than that necessary to accomplish the lewd act itself.’ ” (People v. Griffin (2004) 33
Cal.4th 1015, 1026.) The record shows no such use of force.
       The Attorney General argues there is sufficient evidence that defendant used fear
of bodily injury and duress to accomplish lewd acts, and rests the argument on the
following portion of J.H.’s trial testimony: “Q. Did you ever ask [defendant] not to touch
you? [¶] A. Yes. [¶] Q. Do you remember how many times you asked him not to touch
you? [¶] A. A lot. [¶] Q. Did [defendant] ever say anything when he was touching your
vagina? [¶] A. Yes. [¶] Q. What did he say? [¶] A. If I told anybody, he would hurt me.
[¶] Q. Did you believe he would hurt you? [¶] A. Yes. [¶] Q. Did you tell somebody?
[¶] A. No. [¶] Q. Eventually did you tell somebody? [¶] A. Yes. [¶] Q. Who did you tell?
[¶] A. My parents. [¶] Q. Why did you tell your parents? [¶] A. Because I was scared.”
       The testimony fails to establish that defendant used fear of immediate bodily
injury or duress to accomplish the lewd act. The threatened harm was contingent, not
immediate, and used to obtain the victim’s silence after the lewd act was committed
rather than to facilitate the act. Duress is defined as “the use of a direct or implied threat
of force, violence, danger, hardship, or retribution sufficient to cause a reasonable person
to do [or submit to] something that he or she would not otherwise do [or submit to].”
(People v. Soto (2011) 51 Cal.4th 229, 246, fn. 9, italics omitted.) Duress “is measured by
a purely objective standard.” (Id. at p. 246.) The question is whether “the defendant used
threats or intimidation to commit a lewd act” regardless of “how the victim subjectively
perceived or responded to this behavior.” (Ibid.)
       The duress must be sufficient to cause a reasonable person to perform or acquiesce
in the lewd act itself. (People v. Leal (2004) 33 Cal.4th 999, 1004.) “Duress cannot be
established unless there is evidence that ‘the victim[’s] participation was impelled, at
least partly, by an implied threat.’ ” (People v. Espinoza (2002) 95 Cal.App.4th 1287,


                                              12
1321.) A threat to impel silence following the act is distinct from a threat to impel
submission to the act. A “threat of hardship directed at ‘later disclosure of the sex acts
and not [the failure to perform] the sex acts themselves’ ” does not, standing alone,
establish duress under section 288, subdivision (b)(1). (People v. Hecker, supra, 219
Cal.App.3d at p. 1251, fn. 7.) A threat to “kick [the child’s] ass” if she told anyone about
the molestation was found to be a threat directed to “later disclosure of the sex acts and
not the sex acts themselves.” (People v. Bergschneider (1989) 211 Cal.App.3d 144, 154,
fn. 8, disapproved on other grounds in People v. Griffin, supra, 33 Cal.4th at p. 1028.)
       Duress is judged under the totality of the circumstances and threatened retribution
may properly be considered when evaluating whether a defendant used duress to commit
molestation. (People v. Cochran (2002) 103 Cal.App.4th 8, 14-15.) A defendant who
threatens a child with violence if she reports molestation may obtain the child’s
submission to further molestation by an implied threat of violence if she resists. The
circumstances here, however, fail to support an inference that defendant’s threat to “hurt”
J.H. if she “told anybody” was used to obtain J.H.’s submission to future molestation.
J.H’s testimony fails to specify any details about the threat, including when the threat was
made. The record, viewed in its entirety, shows that defendant obtained J.H.’s submission
by posing as a caring babysitter rather than by force, fear or duress. The record fails to
support a finding of a forcible lewd act under section 288, subdivision (b)(1).
       “[A]n appellate court that finds that insufficient evidence supports the conviction
for a greater offense may, in lieu of granting a new trial, modify the judgment of
conviction to reflect a conviction for a lesser included offense.” (People v. Bailey (2012)
54 Cal.4th 740, 748.) We shall modify the judgment to reflect a conviction for the lesser
included offense of a non-forcible lewd act under section 288, subdivision (a) and remand
for resentencing.
4. Sentencing issues
       Defendant claims the trial court erred in its admission and consideration of certain
information during sentencing. We address these claims to provide guidance to the trial
court at resentencing.


                                             13
       Preliminarily, we note an error unremarked by the parties. The court sentenced
defendant under the law operative at the time of sentencing rather than the law in effect at
the time the crime was committed. The constitutional proscription of ex post facto laws
“protect against the later adoption of a statute that inflicts greater punishment than the
law in effect at the time of the commission of the crime.” (People v. Riskin (2006) 143
Cal.App.4th 234, 244.) The jury found that defendant committed a forcible lewd act
under section 288, subdivision (b)(1) sometime between August 1, 2007 and May 30,
2008. At that time, a violation was punishable by three, six, or eight years in prison.
(Stats. 2004, ch. 823, § 7.) In 2010, the Legislature lengthened the sentence range to five,
eight or ten years. (Stats. 2010, ch. 219, § 7.) This change in the law went unnoticed in
the trial court. The probation officer reported that the applicable sentencing range was
five, eight or ten years and the trial judge sentenced defendant to ten years as “the
maximum term of confinement I can impose for the conviction in this case.” In fact, the
maximum term of confinement was eight years. The error is of no impact here because
we are modifying the judgment to reduce the conviction from a forcible to a non-forcible
lewd act. At the time of defendant’s conduct, both offenses were punishable by the same
range of three, six, or eight years in prison, although the use of force carried additional
penal consequences. (Stats. 2004, ch. 823, § 7; see People v. Soto, supra, 51 Cal.4th at
p. 237 & fn. 4 [comparing present and prior punishment under section 288].) At
resentencing, the court shall use the sentencing scheme in effect at the time of the crime.
       Defendant claims the court erred when it accepted a probation officer’s report that
included Sara’s statement of prior, uncharged molestation by defendant and permitted
Sara to speak at the sentencing hearing. There was no error. “Well-established decisional
law in California allows the sentencing court to consider responsible out-of-court or
unsworn statements concerning the circumstances of the crime and/or the characteristics
of the defendant relevant to sentencing.” (People v. Mockel (1990) 226 Cal.App.3d 581,
587.) Moreover, the court focused its attention upon Sara’s sworn trial testimony and
struck portions of Sara’s statement going beyond the scope of her testimony.



                                             14
       Nor do we accept defendant’s argument that the court wrongly considered
defendant’s lack of remorse when choosing the aggravated term. It is true, as defendant
observes, that lack of remorse may not be used as a factor to aggravate a prison sentence
where “the defendant has denied guilt and the evidence of guilt is conflicting.” (People v.
Holguin (1989) 213 Cal.App.3d 1308, 1319.) To do so would be to penalize a defendant
for professing his innocence. We do not understand the court to have penalized defendant
for maintaining his innocence. The court focused on defendant’s admission of
inappropriate conduct with J.H., while denying sexual intent, and found that defendant
lacked “empathy,” “understanding” and insight into the consequences of his admitted
behavior. The court was entitled to consider these matters and may do so again at
resentencing.
       Defendant’s contention that the court erred in concluding that aggravating factors
outweighed mitigating factors need not be addressed at this juncture. The matter is being
remanded for resentencing on the lesser offense of committing a non-forcible lewd act.
At that time, defendant will have an opportunity to present his claim that an aggravated
term is inappropriate under the established facts.
5. Attorney fees
       As a final matter, defendant asserts the trial court failed to provide a hearing on his
ability to pay $5,000 for legal assistance he received from the public defender. “In any
case in which a defendant is provided legal assistance, either through the public defender
or private counsel appointed by the court, upon conclusion of the criminal proceedings in
the trial court, . . . the court may, after notice and a hearing, make a determination of the
present ability of the defendant to pay all or a portion of the cost thereof.” (§ 987.8, subd.
(b).) The hearing may be held at the pronouncement of judgment or within six months of
the pronouncement. (Ibid.)
       At the outset of the case, the public defender questioned defendant’s indigency.
The court appointed the public defender to provide representation but warned defendant
he could be compelled to pay for legal services if, at the conclusion of the case, it was
found he had the ability to pay. At sentencing, the court informed defendant: “you have


                                              15
the right to a hearing; however, at this time, I am imposing attorney’s fees in the amount
of $5,000.” Defendant did not request the referenced hearing or otherwise object to the
order.
         The court should have held a hearing on defendant’s ability to pay before ordering
defendant to pay for legal services. However, defendant’s failure to object in the trial
court forfeits his challenge on appeal. A right “may be forfeited in criminal as well as
civil cases by the failure to make timely assertion of the right before a tribunal having
jurisdiction to determine it. [Citation.] Ordinarily, a criminal defendant who does not
challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or
her right to raise the claim on appeal. [Citation.] The purpose of this rule is to encourage
parties to bring errors to the attention of the trial court, so that they may be corrected.
[Citation.] Additionally, [i]t is both unfair and inefficient to permit a claim of error on
appeal that, if timely brought to the attention of the trial court, could have been easily
corrected or avoided.” (People v. McCullough (2013) 56 Cal.4th 589, 593, internal
quotation marks omitted.) Under this reasoning, it has been held that a defendant may not
contest a trial court’s failure to determine his ability to pay a jail booking fee absent
objection in the trial court. (Id. at pp. 591, 599.) The same reasoning applies to the
assessment of legal fees at issue here.
         Were we to conclude the claim was not forfeited, defendant’s remedy would be
remand for a hearing on his ability to pay. Defendant is mistaken in his assertion that
section 987.8 imposes an absolute limit of six months from the pronouncement of
judgment to conduct such a hearing. The time limit “was not intended to limit the
authority of an appellate court to remand a case to the trial court for the correction of its
error in failing to give a defendant the notice and hearing required by the statute.”
(People v. Flores (2003) 30 Cal.4th 1059, 1068.) We see no basis to relieve defendant of
his forfeiture and remand the case for an assessment of defendant’s ability to pay. His
complaint rests upon the court’s procedural error in failing to hold a hearing rather than a
substantive claim that he is unable to pay the assessment. The Attorney General points to



                                              16
evidence in the record that defendant does have the ability to pay and defendant’s
briefing does not dispute that evidence.
                                       Disposition
       The judgment is modified to reduce the conviction on count one from a forcible
lewd act under section 288, subdivision (b)(1) to a non-forcible lewd act under section
288, subdivision (a). As modified, the judgment is affirmed. The case is remanded for
resentencing.




                                                 _________________________
                                                 Pollak, J.


We concur:


_________________________
McGuiness, P.J.


_________________________
Jenkins, J.




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