Filed 6/28/19

                    CERTIFIED FOR PARTIAL PUBLICATION*

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FOURTH APPELLATE DISTRICT

                                    DIVISION TWO



THE PEOPLE,

        Plaintiff and Respondent,                    E069873

v.                                                   (Super.Ct.No. FSB17003100)

CARL JONES,                                          OPINION

        Defendant and Appellant.



        APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill,

Judge. Affirmed with directions.

        Marilee Marshall, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Melissa Mandel, Meredith S.

White, Genevieve Herbert and Craig H. Russell, Deputy Attorneys General, for Plaintiff

and Respondent.

        *Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts I and II.A.

                                             1
       Defendant and appellant Carl Jones was convicted of sodomy of an unconscious

victim pursuant to Penal Code section 286, subdivision (f), a felony. The trial exhibits

included a video recording where Jones’s roommate recounted what she had observed to

an investigator. What the roommate said was hard to discern at times, and the parties

disputed whether she said she heard the victim tell Jones immediately before the incident

that “‘I’m a little horny.’” Whether the victim made such a remark would bear on

whether she was conscious and gave consent. On appeal, Jones contends that the trial

court erred by not providing the jury a version of the video’s transcript that contains the

line “‘I’m a little horny.’” The trial court correctly informed the jury, however, that the

video itself was the evidence, not any transcript purporting to indicate the contents of the

video. Therefore, in the unpublished portion of this opinion, we reject Jones’s contention

and affirm the conviction.

       In a supplemental brief relying on People v. Dueñas (2019) 30 Cal.App.5th 1157

(Dueñas), Jones contends that the trial court’s imposition of a $70 fee for “court

construction and court operations” as well as a $300 restitution fine violated his right to

due process absent a determination of his ability to pay. We hold that Jones has not

forfeited this argument despite his failure to raise it in the trial court but affirm the

imposition of the fine and fees on the record before us.

                                          I. FACTS

       A. The Incident

       N.G., the victim, first met Jones in 2016 when they were both “into” drugs and

prostitution. Although N.G. orally copulated Jones on one occasion several months

                                                2
before the incident took place, N.G. considered Jones as a friend, and the two had no

other sexual intercourse or relationship.

       Around July 2017, N.G. was homeless, and Jones offered to let N.G. stay at his

apartment. N.G., who had been awake for several days on cocaine, accepted. N.G. slept

in Jones’s bed with the understanding that they would not be sleeping “at the same time,

ever.” Jones had a roommate, Angela Gatlin, who slept on a couch in the living room.

       By August 4, 2017, N.G. had been in and out of sleep for several days. At one

point, she woke up with Jones’s erect penis in her anus. N.G. pulled Jones’s penis out of

her anus and exclaimed “[w]hat are you doing?” to which Jones replied, “I’m sorry. I

thought I was in your vagina.” N.G. ran into the bathroom screaming. N.G. had not

given Jones permission to put his penis in her anus or vagina.

       Initially, N.G. did not report the incident but rather continued to stay at Jones’s

and Gatlin’s apartment. N.G. testified that she “had nowhere to go” and that she “thought

it was [her] fault that [she] was in the situation.” On August 11, however, N.G. decided

to report the incident.

       B. The Investigation

       Officers Mauricio Becerril and Sergio Alvarez and Supervisor Sergeant Cardillo

responded to N.G.’s call on August 11. Becerril interviewed N.G. and Gatlin, while

Alvarez and Cardillo interviewed Jones. N.G. became emotional and started crying

during the interview. Becerril accompanied N.G. to the hospital where she was examined

by a Sexual Assault Response Team (SART) nurse. N.G. affirmed to the nurse that Jones

penetrated her anus with his penis.

                                              3
       Alvarez’s body camera recorded his and Cardillo’s interview with Jones. During

the interview, Jones stated that he was trying to “get some” and that N.G. was asleep:

       “[Jones]: I was trying, trying—I thought I was in the right hole. I was trying to

. . . what’s the word—trying to start something, I don’t know the word for it, but yeah, I

was trying to get some, but I was half asleep . . . .

       “[Alvarez]: Uh-hum . . . .

       “[Jones]: And she was asleep, I didn’t know I was in the wrong hole. And I

apologized and apologized. This is ridiculous. [¶] . . . [¶]

       “[Alvarez]: So, you were trying to put your penis in her vagina?

       “[Jones]: Right.

       “[Alvarez]: Okay. But she was knocked, she was knocked out, she was asleep?

       “[Jones]: We were both, we were both just sleep . . . .”

       Later, Jones stated:

       “[Alvarez]: So, why would you try to have sex with her this one time? Just cause

you were in the mood?

       “[Jones]: She was in my bed and I haven’t had a woman in a long time.

       “[Alvarez]: Alright. So, you were just trying to have sex with her? Did you tell

her you were trying to have sex with her?

       “[Jones]: She was, she sleep deep.

       “[Alvarez]: Alright.”

       Jones also stated that he and N.C. never had a sexual relationship in the past.



                                               4
       What Gatlin purportedly said or did not say during her interview with Becerril on

August 11 was heavily contested at trial and will be discussed separately below.

       C. The Trial

       At trial, Becerril testified that he interviewed Gatlin on August 11 but that “it was

very hard to understand what she was saying.” Gatlin testified that she could not

remember what she had told Becerril because she was drunk and “under the influence” at

the time. Gatlin was shown footage of her interview with Becerril, but even after

watching it, Gatlin could not discern what she had said. In particular, Gatlin could not

tell what she said after saying the phrase “‘Oh my God.’” Becerril also could not tell

what Gatlin said after “‘Oh my God.’”

       Initially, the trial court instructed the parties to prepare a transcript of Gatlin’s

interview and to note that certain portions were disputed. The next day, however, the

trial court stated that it would make a ruling as to the transcript’s contents if it could

figure out what was said during the disputed portions. After listening to the recording in

chambers “at high volume,” the trial court prepared the following transcript of the

pertinent portion of Gatlin’s interview, showed it to the jury, and marked it as Exhibit

4A:

       “Officer: You didn’t hear any yelling and screaming from that room on Friday,

last Friday?

       “Gatlin: [Unintelligible.] . . . Well I was on the phone, I was on the phone with

my, my medical IEHP and I heard her go, ‘Oh my God.’ . . . [Unintelligible.]

       “Officer: You heard her, like if they was having sex?

                                               5
         “Gatlin: No, like she was like, ‘What did you do?’ He’s like, ‘I didn’t know I did

that.’    She’s like, ‘Yes, you did . . .     [Unintelligible.]    You sodomized me.         You

sodomized me.” [Unintelligible.] . . . .

         “Officer: That was last Friday. Around what time?”

         The trial court noted to counsel that “[t]he transcript the jury is going to see is the

one I wrote.” The trial court informed the jury: “The recording is the evidence, not the

transcript. The transcript is simply to aid, help the jury listen to the recording. [¶] Some

of the language from what was on the recording is in dispute. Some of it is unintelligible;

okay. You’ll decide what’s on the recording, so just understand the transcript is not the

evidence. The recording, that is the evidence.”

         During closing argument, Jones played a portion of Gatlin’s interview again.

When Jones argued that Gatlin said that she heard N.G. say “‘My God, I’m a little

horny,’” implying that N.G. may have been awake and given Jones consent, the People

objected. The trial court initially sustained the objection but, once the video was replayed

again before the jury, reversed and overruled the objection. Later, outside the presence of

the jury, the trial court stated: “I heard it this time. I didn’t hear it during the trial.” The

trial court stated that it could “clearly hear [the words] during the argument” but that “the

discrepancy is, obviously, who’s saying I’m a little horny? Is it Mr. Jones or [N.G.]? In

that context we don’t really know.”

         Jones requested that Exhibit 4A be edited to indicate that Gatlin stated that N.G.

said “‘I’m a little horny.’” Another version of the transcript, marked as Exhibit 4B, was

prepared; Exhibits 4A and 4B are substantially identical except that, in Exhibit 4B, the

                                                 6
end of Gatlin’s first statement contains the line “‘I’m a little horny,’” italicized here for

reference:

       “Officer: You didn’t hear any yelling and screaming from that room on Friday,

last Friday?

       “Gatlin: [Unintelligible.] . . . Well I was on the phone, I was on the phone with

my, my medical IEHP and I heard her go, ‘Oh my God.’ . . . [Unintelligible.] ‘I’m a

little horny.’

       “Officer: You heard her, like if they was having sex?

       “Gatlin: No, like she was like, ‘What did you do?’ He’s like, ‘I didn’t know I did

that.’ She’s like, ‘Yes, you did. You know . . . [Unintelligible.] You sodomized me.

You sodomized me.” [Unintelligible.] . . . .

       “Officer: That was last Friday. Around what time?”

       Although the trial court previously had ruled that Exhibit 4A would go to the jury

room, it ultimately decided that the jury would not receive either Exhibit 4A or 4B.

Exhibit 4B was not shown to the jury. The trial court stated that the jury would “have the

recording without the transcripts.”

       The jury found Jones guilty. The trial court sentenced Jones to a term of six years

with a credit of 332 days for presentence custody and conduct. The trial court also

imposed a $70 fee for “court construction and court operations” as well as a $300

restitution fine (Pen. Code, § 1202.4).




                                               7
                                     II. DISCUSSION

       A. The Conviction

       Jones contends that the trial court’s refusal to provide the jury with Exhibit 4B, the

transcript containing the line “‘I’m a little horny,’” was reversible error. We disagree and

find no error.

       We review the trial court’s decision on whether or not to allow the use of a

transcript for abuse of discretion. (People v. Brown (1990) 225 Cal.App.3d 585, 599.)

When provided, transcripts of recordings may be prejudicial “if it is shown they are so

inaccurate that the jury might be misled into convicting an innocent man.” (Ibid.)

       The trial court acted well within its discretion in excluding Exhibit 4B. Cases

have repeatedly affirmed that—apart from a deposition offered in lieu of witness

testimony—where a transcript is provided with a tape or video recording to the jury, only

the recording itself is evidence, not the transcript. (People v. Jones (2017) 3 Cal.5th 583,

611; People v. Polk (1996) 47 Cal.App.4th 944, 952; People v. Brown, supra, 225

Cal.App.3d at p. 599; see also Judicial Council of Cal. Civil Jury Instructions (CACI) No.

5018 [“A [sound/video] recording has been admitted into evidence, and a transcription of

the recording has been provided to you. The recording itself, not the transcription, is the

evidence.”].) The fact that the trial court did not allow Exhibit 4B into the jury room

therefore did not deprive the jury of any potentially exculpatory evidence, as the

transcript was not evidence.

       Jones contends that by not allowing Exhibit 4B to go to the jury, he was deprived

of his only defense to the charge against him. The recording certainly was important to

                                             8
Jones’s defense. Jones did not dispute that he penetrated N.G.’s anus with his penis, so

trial largely focused on whether N.G. was unconscious or gave consent at the time.

Nothing prevented the jury, however, from concluding that Gatlin did tell Becerril that

she heard N.G. say “I’m a little horny.” The recording itself was admitted into evidence,

and the jury had the ability to review it. Jones in fact urged the jury to consider and

decide for itself whether Gatlin made the statement. As he stated during closing

argument: “You may decide what she said and you should listen to that tape, and you

should listen to it many, many times. Because if she said ‘My God, I’m a little horny’

she was awake before any penetration happened. That is important. That is maybe the

most important fact in this case.” Therefore, even without a transcript containing the line

“I’m a little horny,” the jury remained fully able to decide whether Gatlin made such a

statement, and Jones was therefore not deprived of any defense.

       Jones contends that not allowing Exhibit 4B into the jury room was error because

the trial court had earlier stated that, in Jones’s words, “those portions which were not

transcribed in Exhibit [4A], were not intelligible.” Implicitly, Jones is arguing that the

trial court’s characterization in Exhibit 4A of certain statements as unintelligible was

conclusive. But, as mentioned, the trial court admonished the jury that the transcript was

only an aid to help it listen to the recording, that only the recording itself was evidence,

and that it was up to the jury to decide what was said on the recording. The admonition

cuts against any suggestion that the trial court’s characterization of statements as

unintelligible was authoritative. Jones’s contention therefore lacks merit.



                                              9
       Jones also contends that the trial court erred by showing the jury “a transcript that

the court knew to be inaccurate.” The recording itself is not part of the record on appeal,

so we cannot review it independently. Even assuming, however, that Gatlin did in fact

tell Becerril that N.G. said “I’m a little horny”—and that Exhibit 4A was in this sense

inaccurate—we are not convinced that what the jury saw was “so inaccurate” that it

“might be misled into convicting an innocent man.” (People v. Brown, supra, 225

Cal.App.3d at p. 599.) Whatever Gatlin might have said immediately after “Oh my

God,” it is abundantly clear that what she said was hard to discern. The trial court

eventually concluded that Gatlin said, “I’m a little horny” but only after hearing the

recording during closing argument; when listening to the recording “at high volume” and

preparing Exhibit 4A, the trial court did not believe Gatlin made the statement. Tellingly,

neither Becerril nor even Gatlin herself could identify what she said after “Oh my God.”

Moreover, even after the trial court concluded that Gatlin said, “I’m a little horny,” it

noted that it was still unclear whether that statement was attributable to N.G. or Jones.

Given these circumstances, even assuming for the sake of argument that Gatlin did say

“I’m a little horny,” the transcript was not so inaccurate as to create prejudicial error.1

Whether she made that statement was an issue for the jury, and the parties were able to

litigate that issue fairly here.




       1  Because we find no error, we do not reach Jones’s argument, premised on an
error, that the conviction violated his due process rights or right to a jury trial.

                                              10
       B. Dueñas Error

       While this case was pending, another district of this Court of Appeal decided

Dueñas, which held that a trial court must “conduct an ability to pay hearing and

ascertain a defendant’s present ability to pay” before requiring a defendant to pay

assessments under Government Code section 70373 and Penal Code section 1465.8 or a

restitution fine under Penal Code section 1202.4. (Dueñas, supra, 30 Cal.App.5th at p.

1164.) In a supplemental brief, Jones contends that the trial court’s imposition of $70 in

fees and a $300 restitution fine without first holding an ability to pay hearing violated his

due process rights, which we will call Dueñas error.2 The People do not contend that

Dueñas was wrongly decided. Rather, the People first contend that Jones forfeited the

claim by failing to raise it below. The People then contend that any Dueñas error was

harmless because the record does not establish an inability to pay or any negative

consequences that would arise from a failure to pay.

       As we explain, although Jones did not object to the fine and fees below, he may

raise it for the first time on appeal because an objection prior to Dueñas “‘would have

been futile or wholly unsupported by substantive law then in existence.’” (People v.

Brooks (2017) 3 Cal.5th 1, 92.) It is not Jones’s burden to establish an inability to pay in


       2   The record does not specify the statute or statutes invoked in assessing the $70,
but it is apparently a combination of a $30 court facilities assessment (Gov. Code,
§ 70373, subd. (a)(1)) and a $40 court operations assessment (Pen. Code, § 1465.8, subd.
(a)(1)), both of which “shall be imposed on every conviction for a criminal offense”
subject to exceptions not applicable here. Because these amounts are not reflected in the
abstract of judgment, we order that the abstract of judgment be corrected to reflect these
amounts. (People v. Mitchell (2001) 26 Cal.4th 181, 188.)

                                             11
this appeal, because the issue was not litigated in trial court. Nevertheless, because Jones

will be able to earn the total amount imposed during his sentence of imprisonment, the

Dueñas error was harmless.

              1. Forfeiture

       “Reviewing courts have traditionally excused parties for failing to raise an issue at

trial 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.) Forfeiture in this

context has also been conceptualized as asking whether “‘the pertinent law later changed

so unforeseeably that it is unreasonable to expect trial counsel to have anticipated the

change.’” (People v. Black (2007) 41 Cal.4th 799, 810 (Black).) In determining whether

the objection would have been futile, “we consider the ‘state of the law as it would have

appeared to competent and knowledgeable counsel at the time of the trial.’” (Id. at p.

811; see also People v. De Santiago (1969) 71 Cal.2d 18, 23 [inquiry is guided “by

practical considerations as to what competent and knowledgeable members of the legal

profession should reasonably have concluded the law to be”].)

       At the time of Jones’s trial and sentencing, controlling case law on point

effectively foreclosed any objection that imposing the $300 restitution fine without

conducting an ability to pay hearing violated his due process rights. In People v. Long

(1985) 164 Cal.App.3d 820 (Long), the Court of Appeal rejected the defendant’s

argument that the “failure to consider his ability to pay the restitution fine deprived him

of due process of law,” concluding that “there [was] no constitutional infirmity in the

imposition by the trial court of a . . . restitution fine on defendant.” (Id. at pp. 826, 828.)

                                              12
       At bottom, Dueñas simply disagreed with Long’s due process analysis. (Dueñas,

supra, 30 Cal.App.5th at p. 1172, fn. 10.) While Dueñas noted that Long interpreted

statutes that were subsequently amended (Duenas, supra, at p. 1172, fn. 10), we do not

see the fact of amendments as having been decisive in Dueñas, nor changes that foretold

that decision. The amendments did not change the relevant bases for the fines. For

instance, Long noted that the restitution fine, then imposed under Government Code

section 13967, “is not restitution made directly to the victim of the offense but is a fine

imposed by law.” (Long, supra, 164 Cal.App.3d at p. 826.) The same is to be said for

the restitution fine imposed on Jones pursuant to Penal Code section 1202.4, subdivision

(b); it is distinct from direct victim restitution and is instead paid into the state’s

Restitution Fund. (Pen. Code, § 1202.4, subd. (e).) As well, Long emphasized that the

defendant cannot be incarcerated solely based on an inability to pay the restitution fine,

that any unpaid amounts would be deemed a debt owing to the state, and that the fine is

reduced by any amounts actually paid to the victim. (Long, supra, at pp. 827-828.) All

of these features remain under current law. (Pen. Code, § 1205, subds. (a), (f) [although a

“judgment that the defendant pay a fine . . . may also direct that he or she be imprisoned

until the fine is satisfied,” the section “shall not apply to restitution fines and restitution

orders”]; § 1202.43, subd. (b) [“A restitution fine shall be deemed a debt of the defendant

owing to the state . . . excepting any amounts the defendant has paid to the victim as a

result of the crime.”].) Long was therefore controlling at the time of Jones’s sentencing.

       Aside from Long, the Penal Code itself all but precluded Jones from meaningfully

contesting the restitution fine. Penal Code section 1202.4, subdivision (b)(1) states that

                                               13
“[i]f the person is convicted of a felony, the fine shall not be less than three hundred

dollars ($300),” which was the amount imposed here. Subdivision (c) of that section,

moreover, states that “[i]nability to pay may be considered only in increasing the amount

of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of

subdivision (b).” (Italics added.) Because only the minimum amount was imposed, the

statute strongly supported the conclusion that the trial court had no discretion to take

ability to pay into account.

       Similarly, the relevant statutes all but foreclosed any due process objections to the

court facilities or court operations assessments. As Dueñas noted, neither Government

Code section 70373 nor Penal Code section 1465.8 expressly requires that the pertinent

assessment be premised on an ability to pay. (See Dueñas, supra, 30 Cal.App.5th at p.

1166 [both sections are “silent as to the consideration of a defendant’s ability to pay in

imposing the assessments”].) Without language in those sections instructing courts to

condition the assessments on an ability to pay, Jones’s failure to object is excusable. (See

People v. Ellis (2019) 31 Cal.App.5th 1090, 1094 [“[T]here is no language in the statute

that provides the restriction that [appellant] asks us to impose. Moreover, it is not the

province of this court to insert words or add provisions to an unambiguous statute.”].)

       Because a due process objection would have been “futile or wholly unsupported

by substantive law then in existence” had it been raised to the trial court, Jones has not

forfeited the argument by failing to raise it below. (People v. Brooks, supra, 3 Cal.5th at

p. 92.) “The circumstance that some attorneys may have had the foresight to raise this

issue [in Dueñas] does not mean that competent and knowledgeable counsel reasonably

                                             14
could have been expected to have anticipated” Dueñas. (Black, supra, 41 Cal.4th at p.

812.) Given the substantive law in existence at the time of Jones’s sentencing, Dueñas

was unforeseeable. We therefore agree with and follow other courts that have similarly

declined to find forfeiture on an alleged Dueñas error. (People v. Castellano (2019) 33

Cal.App.5th 485, 489; People v. Johnson (May 10, 2019) __ Cal.App.5th __ [2019 Cal.

App. LEXIS 426 at *4].)

       In People v. Frandsen (2019) 33 Cal.App.5th 1126 (Frandsen), another district of

this Court reached a contrary result, holding that a failure to object to the same

assessments constituted forfeiture. (Id. at pp. 1153-1155.) Part of Frandsen’s reasoning

rested on the fact that the restitution fine there was $10,000, the maximum amount that

may be imposed under Penal Code section 1202.4, subdivision (b). (Frandsen, supra, at

p. 1153.) Because, as noted, even before Dueñas, the Penal Code indicated that inability

to pay may be considered in increasing the amount of the restitution fine above the $300

minimum, Frandsen was correct to conclude that “[s]uch an objection would not have

been futile under governing law at the time of his sentencing hearing.” (Frandsen, supra,

at p. 1154.)

       With regard to the court facilities and court operations assessments, however,

Frandsen stated that nothing prevented the defendant from “making the same request that

the defendant in Dueñas made . . . .” (Frandsen, supra, 33 Cal.App.5th at p. 1154.)

Frandsen disagreed that Dueñas was unforeseeable, stating: “Dueñas was foreseeable.

Dueñas herself foresaw it. The Dueñas opinion applied ‘the Griffin-Antazo-Bearden

analysis,’ which flowed from Griffin v. Illinois (1956) 351 U.S. 12 [100 L.Ed. 891, 76

                                             15
S.Ct. 585], In re Antazo (1970) 3 Cal.3d 100 [89 Cal. Rptr. 255, 473 P.2d 999], and

Bearden v. Georgia (1983) 461 U.S. 660 [76 L.Ed.2d 221, 103 S.Ct. 2064]. (Dueñas,

supra, 30 Cal.App.5th at p. 1168.) The Dueñas opinion likewise observed ‘“[t]he

principle that a punitive award must be considered in light of the defendant’s financial

condition is ancient.” (Adams v. Murakami (1991) 54 Cal.3d 105, 113 [284 Cal. Rptr.

318, 813 P.2d 1348].) The Magna Carta prohibited civil sanctions that were

disproportionate to the offense or that would deprive the wrongdoer of his means of

livelihood. [Citation.]’ (Dueñas, supra, 30 Cal.App.5th at p. 1170.)” (Frandsen, supra,

33 Cal.App.5th at pp. 1154-1155; see id. at p. 1155 [“Dueñas applied law that was old,

not new”].) In our view, this was incorrect.

       As discussed above, due to controlling authority in Long, it was reasonable for

Jones to conclude at the time of his sentencing that he could not meaningfully raise the

objection that ultimately prevailed in Dueñas. As our Supreme Court has explained,

“[t]he circumstance that some attorneys may have had the foresight to raise this issue

does not mean that competent and knowledgeable counsel reasonably could have been

expected to anticipate[]” the change in law. (Black, supra, 41 Cal.4th at p. 812.)

       Moreover, the fact that a new case relies on long-held principles or other

established law does not necessarily mean it was foreseeable. Black demonstrates this.

There, our Supreme Court considered whether a defendant forfeited a claim that he was

entitled to a jury trial on sentencing issues based on an argument that the United States

Supreme Court would eventually accept in Blakely v. Washington (2004) 542 U.S. 296

(Blakely). (Black, supra, 41 Cal.4th at pp. 810-812.) Black observed that “‘the Blakely

                                               16
court worked a sea change in the body of sentencing law’” and held that “a claim of

sentencing error premised upon the principles established in Blakely and Cunningham [v.

California (2007) 549 U.S. 270] is not forfeited on appeal by counsel’s failure to object

at trial.” (Black, supra, at p. 812.) In doing so, our Supreme Court was evidently

unmoved by the fact that Blakely relied on cases that had been decided by the time the

defendant was sentenced as well as diaries and letters from the Founding Fathers. (See

Blakely, supra, at pp. 301-305 [applying Apprendi v. New Jersey (2000) 530 U.S. 466];

see Blakely, supra, at pp. 305-306 [citing a diary entry from John Adams and a letter

from Thomas Jefferson].) The fact that Blakely relied, in its own words, on

“longstanding precedent” (id. at p. 305) played no part in Black’s analysis; Blakely was

still seen as an unforeseeable change in law. (Black, supra, at pp. 810-812.) Given that

our Supreme Court did not find Blakely foreseeable in Black, we will not characterize

Dueñas as foreseeable simply because it cited principles stretching back to the Magna

Carta.

         At the time Jones was sentenced, Long and the relevant statutes would have

meaningfully foreclosed the argument he now seeks to advance. Jones could not have

been expected to anticipate Dueñas, even though Dueñas applied principles first

articulated in other contexts long ago. Accordingly, he has not forfeited his claim.

                2. Harmless Error

         The People do not dispute that the trial court imposed the fees and restitution fine

without conducting an ability to pay hearing. The People thus concede that Dueñas error

occurred. Nevertheless, the People contend that any such error was harmless.

                                              17
       A “‘very limited class’” of federal constitutional errors are “subject to per se

reversal”; all others are “amenable to harmless error analysis.” (People v. Aranda (2012)

55 Cal.4th 342, 363; see also Rose v. Clark (1986) 478 U.S. 570, 578 [errors requiring

automatic reversal “are the exception and not the rule”].) Dueñas did not address

whether Dueñas error requires an automatic reversal. Jones does not contend that

Dueñas error requires automatic reversal. We therefore consider whether the error here

was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S.

18, 24 [to find constitutional error harmless, “the court must be able to declare a belief

that it was harmless beyond a reasonable doubt”].)

       Because no ability to pay hearing was held, it is not defendant’s burden on appeal

to establish his eligibility for relief. Nevertheless, we will find Dueñas error harmless if

the record demonstrated he cannot make such a showing. Here, he cannot do so.

Jones was sentenced to a term of six years with a credit of 332 days for presentence

custody and conduct. Wages in California prisons currently range from $12 to $56 a

month. (Cal. Code Regs., tit. 15, § 3041.2, subd. (a)(1); Cal. Dept. of Corrections and

Rehabilitation, Operations Manual, ch. 5, art. 12, § 51120.6, pp. 354-355 (Jan. 1, 2019)

<https://www.cdcr.ca.gov/ccjbh/wp-content/uploads/sites/172/2019/06/

Ch_5_2019_DOM.pdf> [as of June 26, 2019].) And half of any wages earned (along

with half of any deposits made into his trust account) are deducted to pay any outstanding

restitution fine. (Pen. Code, § 2085.5, subd. (a); Cal. Code Regs., tit. 15, § 3097, subd.

(f).) Given that the restitution fine is $300 and the assessments are $70, Jones will have

sufficient time to earn these amounts during his sentence, even assuming Jones earns

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nothing more than the minimum. (At $12 a month, Jones will have earned $720 after five

years, $300 of which will be deducted to pay for the restitution fine, leaving $420 to pay

the remaining $70.) In our view, this forecloses a meritorious inability to pay argument.

(See People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [court may consider ability

to earn prison wages in determining ability to pay].) Accordingly, on this record, we

conclude that the Dueñas error was harmless. (See also People v. Johnson, supra, 2019

Cal. App. LEXIS 426, at *7 [“The idea that [defendant] cannot afford to pay $370 while

serving an eight-year prison sentence is unsustainable.”].)

                                      III. DISPOSITION

       The judgment of conviction is affirmed. The trial court is directed to modify the

abstract of judgment to indicate the imposition of the assessments and restitution fine and

forward a copy of the amended abstract of judgment to the Department of Corrections

and Rehabilitation.

       CERTIFIED FOR PARTIAL PUBLICATION



                                                               RAPHAEL
                                                                                        J.
We concur:


       MCKINSTER
                       Acting P. J.

       MILLER
                                 J.




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