Opinion
B295566
05-28-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY CHHING, Defendant and Appellant.
Michelle T. LiVecchi-Raufi, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill, Deputy Attorney General, and Michael C. Keller, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. NA107465) APPEAL from a judgment of the Superior Court of Los Angeles County, Judith L. Meyer, Judge. Affirmed, but sentence modified. Michelle T. LiVecchi-Raufi, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill, Deputy Attorney General, and Michael C. Keller, Deputy Attorney General, for Plaintiff and Respondent.
* * * * * *
A jury convicted Anthony Chhing (defendant) of possessing personal identifying information of 10 or more people (Pen. Code, § 530.5, subd. (c)(3)) after he was found in possession of a spreadsheet with 716 identity profiles and a credit card scanner with his nickname written on it in permanent marker. On appeal, he raises several challenges to his conviction and ensuing four-year sentence; only one has merit. Accordingly, we affirm his conviction but order his sentence reduced to three years.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Late one night in September 2017, defendant was pulled over while driving a BMW with expired registration tags. Although the BMW was not registered to him, defendant was the driver and sole occupant. Inside the car's center console was a California driver's license belonging to someone else, an Amazon Prime Rewards Membership profile belonging to a different person, and a variety of prepaid VISA cards as well as fast food and restaurant debit and credit cards. On the floorboard of the rear passenger seat, but within arm's reach of the driver and "in plain view," was a 41-page spreadsheet that contained the profiles of 716 individuals, including their names, dates of birth, addresses, social security numbers, driver's license numbers, internet protocol addresses, and bank routing and account information. Atop the spreadsheet was a credit card skimmer capable of reading and writing information onto the magnetic strip of credit and debit cards. The skimmer was marked with defendant's nickname, "Yayoe." With the data in the spreadsheet, a person could apply for loans, open up credit accounts and make purchases, and apply for tax refunds; with the credit card skimmer, a person could then launder his ill-gotten gains by transferring the funds onto prepaid cards. Law enforcement verified that 10 of the profiles or cards were accurate and that defendant did not have permission to have them.
This was not defendant's first foray into identity theft. In February 2014, defendant possessed three credit cards in the names of people other than himself. Approximately one month later, in March 2014, law enforcement searched defendant's bedroom and found (1) a credit card embosser, which puts numbers and letters on credit and debit cards in raised type; (2) a foil press, which adds a patina of color to the raised type; and (3) a credit card skimmer, which reads and writes data on the magnetic strip of credit and debit cards. All three items had defendant's nickname "Yayoe" written on them. At that time, defendant told police that "people [came to] him with credit card information and . . . [paid] him . . . to make . . . credit card[s]."
II. Procedural Background
For the 2017 incident, the People charged defendant with a single count of possessing the personal identifying information of 10 or more people (§ 530.5, subd. (c)(3)). The People also alleged that defendant had served two prior prison terms for convictions (§ 667.5, subd. (b)) arising out of the 2014 incidents—that is, a conviction for unauthorized use of personal identifying information (§ 530.5, subd. (a)) and a conviction for theft of access cards account information (§ 484e, subd. (d)).
The matter proceeded to a jury trial, and a jury found defendant guilty. After defendant admitted his 2014 convictions, the trial court imposed a four-year sentence comprised of a high-end base sentence of three years plus one year for a prior prison term. The court also imposed a restitution fine of $300 (§ 1202.4), a court operations assessment of $40 (§ 1465.8, subd.(a)(1)), and a criminal conviction assessment of $30 (Gov. Code, § 70373).
Defendant filed this timely appeal.
DISCUSSION
I. Evidentiary Issue
The trial court ruled that the People could introduce the 2014 incidents to prove defendant's intent, motive and common scheme or plan. Consistent with this ruling, the court instructed the jury that it could consider the evidence for these purposes, but not to prove that defendant "has a bad character or is disposed to commit crime." Defendant argues that this ruling was in error. We review such evidentiary rulings for an abuse of discretion. (People v. Sanchez (2019) 7 Cal.5th 14, 39.)
Evidence Code section 1101, subdivision (b) authorizes the admission of uncharged acts to "prove some fact"—including intent, motive or common scheme or plan. (Evid. Code, § 1101, subd. (b).) When admitted to prove intent or motive, the uncharged and charged acts need only have "'sufficient similarities to demonstrate that in each instance the perpetrator acted with the same intent or motive.'" (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 827 (Daveggio), quoting People v. McCurdy (2014) 59 Cal.4th 790, 1097.) When admitted to prove a common scheme or plan, the acts must have a "'"concurrence of common features [such that] the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations." [Citation.]'" (People v. Kelly (2007) 42 Cal.4th 763, 784 (Kelly).)
To be admissible as so-called "1101(b) evidence," a court must find that (1) the purpose for which the uncharged act is offered is relevant to the pending case (People v. Daniels (1991) 52 Cal.3d 815, 857-858), (2) the uncharged act has the requisite degree of similarity (as delineated above), which ensures that it has a tendency to prove the purpose for which it is offered (People v. Lindberg (2008) 45 Cal.4th 1, 22 (Lindberg); People v. Ewoldt (1994) 7 Cal.4th 380, 402-403, superseded on other grounds; Evid. Code, § 1108), and (3) the probative value of the evidence is not substantially outweighed by the "substantial danger of undue prejudice, of confusing the issues, or of misleading the jury" (Evid. Code, § 352; Lindberg, at pp. 22-23).
Applying this standard, the trial court did not abuse its discretion in admitting the 2014 incidents for the purposes it specified. The 2014 incidents were relevant to prove defendant's "intent to defraud" (which is the relevant intent because it—not, as defendant argues, "intent to commit credit card forgery"—is the element of the charged crime), his motive for possessing the spreadsheet with the credit card information, and his common plan or scheme to commit identity theft. What is more, defendant put his intent, motive and plan squarely at issue when he called his girlfriend to testify that the spreadsheet and all the cards in the center console were hers. The 2014 incidents had the requisite degree of similarity because (1) his possession of cards in other people's names and the tools to manufacture credit and debit cards in 2014 was "'sufficient[ly] similar[]'" to his charged acts of possessing cards in other people's names, more than 700 identifying information profiles and a credit card skimmer capable of putting that information on credit and debit cards to establish that he "'acted with the same intent or motive'" (Daveggio, supra, 4 Cal.5th at p. 827), and (2) the 2014 incidents and charged acts are "'"naturally"'" "'"explained"'" as part of a "'"general plan"'" to use identifying information profiles to manufacture fraudulent credit and debit cards (Kelly, supra, 42 Cal.4th at p. 784). And the considerable probative value of this evidence to establish defendant's intent, motive and common scheme or plan was not substantially outweighed by "the substantial danger of undue prejudice, of confusing the issues, or of misleading the jury" in light of the court's carefully crafted limiting instruction.
Defendant offers two broad categories of reasons why the trial court's ruling was erroneous.
He argues that the 2014 incidents lack the requisite similarity to the charged act because (1) if his girlfriend's testimony is credited, he was innocently "driving a borrowed car that had a spreadsheet with identifying information in it," (2) there are many innocent reasons a person might have 716 identity profiles and the People's expert did not "mention" making false credit cards in his list of ways in which people could wrongfully use identifying information, (3) there was no proof that the credit cards he possessed in 2014 in other people's names were real people, and (4) there was no proof that he possessed personal identifying information in 2014. These arguments border on the frivolous. The first two arguments ask us to view the evidence in the light most favorable to defendant, but the law is squarely to the contrary. (People v. Edwards (2013) 57 Cal.4th 658, 711 [requiring courts evaluating a ruling under 1101(b) to "view the evidence in the light most favorable to the trial court's ruling"] (Edwards).) What is more, the expert's listing of some of the ways in which the profiles—and cards made from the profiles—may be wrongfully used necessarily implied that the profiles were used to make cards; and even if it did not, the trial court could on its own determine that a person could use those profiles to make fraudulent credit and debit cards, particularly in this case where defendant simultaneously possessed a credit card skimmer capable of manufacturing such cards. The last two arguments premise admissibility under section 1101, subdivision (b) on a finding that the uncharged acts and charged acts are carbon copies of one another; as noted above, that is not the law. To be sure, the 2014 incidents involved the actual manufacture of cards from identity information provided by others, while the charged act involved possession of that information. But all of the incidents were reasonably viewed as being in service of the same act and intent (namely, to use other people's information to create credit and debit cards to be used to commit fraud), much as a prior incident involving drug sales would be relevant to prove intent, motive and common scheme or plan in a later case charging drug manufacturing.
Defendant also argues that the 2014 incidents were too prejudicial due to the lack of similarity, due to the fact that the 2014 incidents were "far more egregious" than the charged act, and due to the danger the 2014 incidents would make it less likely that the jury would credit his "it was my girlfriend, not me" defense. We have already rejected his attacks on the similarity of the 2014 incidents. The 2014 incidents were not "far more egregious" than the charged act; they simply involved a different phase of his overall stratagem for using other people's information to make credit and debit cards to commit fraud. And the prejudice he complains of is the prejudice attendant to any evidence introduced by the People in a prosecution, not the "undue prejudice" that "'"poses an intolerable 'risk to the fairness of the proceedings or the reliability of the outcome'"'" prohibited by Evidence Code section 352. (Edwards, supra, 57 Cal.4th at p. 713.)
Because we conclude there was no error, we have no occasion to reach defendant's further argument that the evidentiary error also violated his federal constitutional rights.
II. Instructional Error
Defendant argues that the trial court erred in instructing the jury on consciousness of guilt. We independently review challenges to the jury instructions. (People v. Mitchell (2019) 7 Cal.5th 561, 579.)
A. Pertinent facts
Defendant called one witness, his girlfriend. As noted above, she testified that all of the cards in the BMW's center console as well as the spreadsheet with the 716 profiles were "hers." When it came to the specifics, she said her ex-boyfriend "probably" gave her the driver's license found in the console, that she was "not sure" where the prepaid cards came from, and that the spreadsheet came both from "[her] Google drive" and "[her] closet." She lamented that "it just so happened [defendant] just got caught at the wrong time or pulled over at the wrong time." (Italics added.) She admitted she loved defendant and did not want anything bad to happen to him, but insisted that she would not lie for him. She acknowledged that she had never come forward with her claims of ownership prior to testifying. And throughout her testimony, she was laughing, "smiling and smirking."
Without any objection, the trial court gave a consciousness of guilt instruction:
"If the defendant tried to create false evidence or obtain false testimony, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself.
"If someone other than the defendant tried to create false evidence, provide false testimony . . . that conduct may show the defendant was aware of his guilt, but only if the defendant was present and knew about that conduct, or, if not present, authorized the other person's actions. It is up to you to decide the meaning and importance of this evidence. However, evidence of such conduct cannot prove guilt by itself."
B. Analysis
A trial court may instruct a jury that it may infer a consciousness of guilt from proffering false testimony if there is "some evidence in the record that, if believed by the jury, would sufficiently support the suggested inference." (People v. Coffman & Marlow (2004) 34 Cal.4th 1, 102; People v. Hart (1999) 20 Cal.4th 546, 620. People v. Hannon (1977) 19 Cal.3d 588, 597-598.)
The trial court's consciousness of guilt instruction in this case was proper because there was some evidence in the record which, if believed by the jury, would support the inference that the girlfriend provided false testimony in defendant's presence and that defendant had tried to obtain her false testimony. The jury had ample basis to conclude that the girlfriend's testimony was false: She was biased in favor of defendant (Evid. Code, § 780, subd. (f) [bias is relevant to credibility], her testimony was inconsistent with itself (given, at one point, that she admitted he was "caught at the wrong time") as well as with her refusal to come forward with her claim of owning the cards and spreadsheet prior to testifying (id., § 780, subd. (h) [inconsistency among testimony]; see also In re Cordero (1988) 46 Cal.3d 161, 186), and her demeanor evinced a lack of credibility (Evid. Code, § 780, subd. (a) [demeanor is relevant to credibility].) It is undisputed that she testified in defendant's presence. And given their romantic relationship, the jury could also infer that defendant had tried to obtain her false testimony. (Accord, People v. Hunt (1982) 133 Cal.App.3d 543, 560 [consciousness of guilt may be inferred when defendant urges his fiancée to give false testimony].)
Defendant argues that the instruction was unwarranted for two reasons. First, he contends that there was "no evidence" that the girlfriend was testifying falsely. As explained above, the jury had before it evidence of the girlfriend's bias, inconsistencies in her testimony, and her demeanor; this impeachment evidence is evidence. To the extent defendant suggests that the People did not present conclusive evidence of the falsity of girlfriend's testimony or his role in procuring that testimony, he is applying a standard our Supreme Court has rejected. (People v. Alexander (2010) 49 Cal.4th 846, 921-922 [the "facts giving rise to an inference of consciousness of guilt" need not "be conclusively established" before an instruction is appropriate].) Second, he asserts that the instruction "told," "impl[ied]" and "sent the message" that the girlfriend's testimony was false. It did no such thing. The plain language of the instruction left it to the jury to decide (1) "if" it found that defendant had engaged in such conduct and (2) "the meaning and importance of this evidence." In no way did the court tell, suggest or otherwise hint that the girlfriend was lying or that defendant was involved in procuring her testimony.
In light of our conclusion that there was no instructional error, we have no occasion to reach defendant's alternative argument that his counsel was constitutionally ineffective for not objecting to that instruction.
III. Prosecutorial Misconduct/Errors
Defendant argues that the prosecutor committed three instances of misconduct during his closing argument.
As a general matter, prosecutorial misconduct can violate federal or state guarantees of due process. Federal due process is denied if the conduct "'"'infects the trial with such unfairness as to make the conviction a denial of due process.'"'" (People v. Adams (2014) 60 Cal.4th 541, 568.) Due process under state law is denied "'"'only if [the prosecutor's conduct] involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.' [Citation.]"'" (Ibid.) A prosecutor may commit misconduct during closing argument, but only when "'"in the context of the whole argument and the instructions," [citation], there was "a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner."'" (People v. Cortez (2016) 63 Cal.4th 101, 130 (Cortez).) We review claims of prosecutorial misconduct in closing argument for an abuse of discretion. (People v. Peoples (2016) 62 Cal.4th 718, 792-793.)
A. Appeal to Jurors' Passion
1. Pertinent facts
In his initial closing argument, the prosecutor started by describing the 716 profiles, why there was "not one legitimate reason why anybody would have all that . . . information," and why the theft of identifying information was unlike "taking" "your TV or perhaps your computer or your car." With respect to the last point, the prosecutor argued:
"Your social security number, it's out there. Your date of birth, it's out there. Your driver's license, it's out there. And it's out there to be sold on the black market . . . It's out there to be used to open accounts in your name. It's out there to make charges on your credit card, and it's out there and you can't get it back."Defendant did not object to this argument.
Although there was no objection, we exercise our discretion to reach the merits to obviate defendant's alternative complaint that his counsel was constitutionally ineffective.
2. Analysis
It is "generally improper" for a prosecutor to "appeal to sympathy for the victims by exhorting the jurors to step into the victims' shoes" and "imagine his or her suffering." (People v. Shazier (2014) 60 Cal.4th 109, 146; People v. Millwee (1998) 18 Cal.4th 96, 137; People v. Lopez (2008) 42 Cal.4th 960, 969.) Such an appeal is generally off limits because it "'"invites an irrational, purely subjective response[,]"'" as such "'appeals to the sympathy or passions of the jury are inappropriate at the guilt phase of a criminal trial.'" (People v. Vance (2010) 188 Cal.App.4th 1182, 1192, quoting People v. Redd (2010) 48 Cal.4th 691, 742; People v. Fields (1983) 35 Cal.3d 329, 362.)
While certainly not a "best practice," the prosecutor's argument did not appeal to the passions of the jury. To be sure, the prosecutor's choice of words to describe the more permanent consequences of identity theft by referring to "your social security number," "your date of birth," and "your driver's license" created a greater potential for his words to be construed as asking the jury to put themselves in the shoes of victims of identity theft than if the prosecutor had chosen a more neutral possessive pronoun. But the fundamental danger of "in the victim's shoes" arguments—that is, that the jurors are being asked to abandon logic for passion when they envision the victim's "suffering"—was not present in this case given that there was not much, if any, evidence of suffering by the persons whose identity information defendant possessed. (Cf. People v. Jones (1970) 7 Cal.App.3d 358, 361-362 [asking jurors to imagine what would happen to their children if they encountered defendant, who had committed an assault with an iron bar].)
And even if we assumed that the prosecutor's argument was improper, it was certainly not prejudicial. That is because a prosecutor's entreaty to view a crime from the victim's perspective is not prejudicial if it constitutes "a few remarks in a much longer closing argument" and if there is otherwise "strong evidence" of the defendant's guilt. (People v. Seumanu (2015) 61 Cal.4th 1293, 1344 (Seumanu).) Here, the prosecutor's reference was a few sentences in a much longer argument and, contrary to what defendant claims, the evidence of his guilt was overwhelming: While driving alone, he had a stack of 716 identity profiles within arm's reach and beneath a credit card skimmer emblazoned with his nickname. What is more, he was convicted of making false credit cards just a few years before. Contrary to what defendant hypothesizes, the jury's note asking for clarification of "possession [versus] ownership" casts no doubt on the sheer quantum of evidence supporting the jury's finding of guilt. The jury was also instructed not to let "sympathy" influence its decision, and we presume the jury heeded that instruction in the absence of any indication to the contrary (People v. Bramit (2009) 46 Cal.4th 1221, 1247).
B. Use of the word "moniker"
1. Pertinent facts
All four machines from the 2014 incidents and the charged offense had the name "Yayoe" marked on them. And various witnesses—including defendant's girlfriend—testified that Yayoe was defendant's "nickname" and the name "he goes by."
During his closing argument, the prosecutor was cataloguing the evidence tying defendant to the spreadsheet, including "his credit card reader with his moniker Yayoe, which his girlfriend told you, 'Yeah, that's his name, Yayoe. That's what he goes by.' [A law enforcement witness also] told you that." Defendant objected to "the use of 'moniker,'" and the trial court "sustained [the objection] as to that term." For the remainder of his closing argument, the prosecutor referred to Yayoe as defendant's "name" or "nickname." Defendant also moved for a mistrial based on the prosecutor's use of the word "moniker," which the trial court denied.
2. Analysis
The prosecutor's one-time use of the word "moniker" as a synonym for "nickname" was not improper. Although, as defendant points out, the word "moniker" is often used to describe the nicknames of gang members, it is not exclusively used in the gang context. More to the point, we do not find that there was "'"a reasonable likelihood"'" that the jury construed the prosecutor's single use of the word "moniker" as suggesting that defendant was a gang member, at least where there was no other indication of gang involvement in this case. (Cortez, supra, 63 Cal.4th at p. 130.) And even if we assumed that the one-time use of the synonym for nickname was improper, it was surely not prejudicial given that the trial court sustained the objection (Seumanu, supra, 61 Cal.4th at p. 1319 [sustaining objection "diminish[es] the possible prejudice"], the prosecutor never again used the term "moniker" (People v. Bennett (2009) 45 Cal.4th 577, 613 [prosecutor's adherence to ruling diminishes prejudice], and, as noted above, the evidence of defendant's guilt was overwhelming.
Griffin v. California (1965) 380 U.S. 609. --------
1. Pertinent facts
In his initial closing argument, the prosecutor used a PowerPoint presentation along with his remarks. At one point, the PowerPoint displayed a slide entitled, "What did the defense say?" and that had a rotating red question mark, and when the prosecutor next clicked the presentation, the slide displayed, "Defense Witnesses" and then listed defendant's girlfriend. As this slide was on the screen, the prosecutor argued:
"So the defense does not have to put on a case. That's very clear. They don't have to say anything. They don't have to put on any witnesses. The burden is all on me. However, they did put on a witness, and we heard from a witness. Who was that?"From there, the prosecutor argued why the girlfriend's testimony should not be believed.
At a subsequent sidebar, defendant objected to the PowerPoint slide because he "inferred" that the slide was criticizing defendant for not testifying. The trial court overruled the defendant's objection and accompanying motion for mistrial.
2. Analysis
The privilege against self-incrimination secures the right not to be "compelled to testify against oneself." (People v. Hardy (1992) 2 Cal.4th 86, 153-154.) A corollary of the privilege is that a prosecutor may not—directly or indirectly—comment upon a defendant's failure to take the witness stand. (People v. Hovey (1988) 44 Cal.3d 543, 572 (Hovey).) This corollary does not bar a prosecutor from commenting upon "the state of the evidence or upon the failure of the defense to introduce material evidence or to call anticipated witnesses." (People v. Bradford (1997) 15 Cal.4th 1229, 1339.) If, however, the evidence that the prosecutor faults the defense for not introducing can only come from the defendant himself, the prosecutor's argument functions as an indirect comment on the defendant's failure to testify and is accordingly impermissible. (People v. Thomas (2012) 54 Cal.4th 908, 945; People v. Johnson (1992) 3 Cal.4th 1183, 1229.)
The prosecutor's argument and accompanying PowerPoint presentation was nothing more than a comment upon "the state of the evidence." The slide asked, "What did the defense say?" - not what did the defendant say - and then proceeded to examine the sole defense evidence (that is, his girlfriend's testimony). The prosecutor simultaneously explained that the defense did not have to "put on a case" or "say anything" or "put on any witnesses." Viewed as a whole, the prosecutor did not directly or indirectly comment on defendant's failure to testify. (Cf. People v. Denard (2015) 242 Cal.App.4th 1012, 1020-1021 [argument that defendant "'put it upon [a government witness] to testify'" impermissibly commented upon defendant's failure to testify because it was that failure that "put it upon" the witness to take the stand].) Further, even if we assumed that this did somehow amount to Griffin error, it was harmless. That is because "[o]ur Supreme Court has held most indirect Griffin error[s] to be harmless" (id. at p. 1022), especially where, as here, the prosecutor's comment was "indirect, brief and mild" (Hovey, supra, 44 Cal.3d at p. 572).
Defendant makes two further arguments. First, he asserts that the prosecutor had "nothing . . . to rebut" because, in defendant's view, a prosecutor can only rebut a defense's case in the prosecutor's rebuttal closing argument, and not (as here) in the prosecutor's initial closing argument. This is nonsensical. The prosecutor did have to rebut the defendant's defense, and there is nothing in the law or common sense that requires a prosecutor to wait until his or her rebuttal argument to argue against the defense's case. Second, defendant cites cases indicating that PowerPoint presentations may be fraught with danger in closing arguments. However fraught they might be generally, the presentation here was not.
D. Cumulative error
Defendant contends that the individual prosecutorial remarks together create a holistic synergy of prosecutorial misconduct that warrants reversal. We have concluded that there was no error to cumulate. Moreover, the remarks—even together—are brief and isolated and in no way negate the overwhelming evidence of defendant's guilt.
IV. Sentencing Issues
A. Prison prior enhancement
Defendant asserts the one-year prison prior enhancement is no longer valid because our Legislature amended section 667.5, subdivision (b) to limit the one-year enhancement for prior prison terms only to terms for "sexually violent offense[s]" (Sen. Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590, §1), that he is entitled to the retroactive application of this ameliorative amendment to his non-final conviction (In re Estrada (1965) 63 Cal.2d 740), and that his 2014 convictions are not for "sexually violent offense[s]." As the People concede, defendant is correct. (E.g., People v. Lopez (2019) 42 Cal.App.5th 337, 339-342 (Lopez); People v. Winn (2020) 44 Cal.App.5th 859, 872-873; People v. Bermudez (2020) 45 Cal.App.5th 358, 378.) Accordingly, the imposition of a one-year enhancement pursuant to section 667.5, subdivision (b) is stricken. (Lopez, at p. 342 [striking the prison priors but not remanding for resentencing where trial court imposed maximum sentence].)
B. Restitution fine and assessments
Defendant argues that People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) requires us to vacate all of his restitution, fines, and fees. He is wrong for two reasons. First, the sole basis for his argument is Dueñas, and we have rejected Dueñas's reasoning. (See People v. Hicks (2019) 40 Cal.App.5th 320, review granted, S258946.) Second, and even if Dueñas were good law, the record contains evidence that defendant has in the past been employed as a cable TV operator and computer diagnostic technician. Because defendant "points to no evidence in the record supporting his inability to pay" (People v. Gamache (2010) 48 Cal.4th 347, 409), and hence no evidence that he would suffer any consequence for non-payment, a remand on this issue would serve no purpose.
DISPOSITION
The trial court is ordered to strike the one-year enhancement for a prior prison term. As modified, the judgment is affirmed. The superior court is directed to prepare a corrected abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, P.J.
LUI /s/_________, J.
CHAVEZ