Opinion
B291983
08-11-2020
THE PEOPLE, Plaintiff and Respondent, v. ANGEL GUEVARABELLO, Defendant and Appellant.
Jeralyn Keller, 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, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Ryan M. Smith, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. NA094422) APPEAL from a judgment of the Superior Court of Los Angeles County, Laura Laesecke, Judge. Affirmed. Jeralyn Keller, 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, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Ryan M. Smith, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
Angel Guevarabello appeals from the judgment entered after a jury convicted her of first degree murder and found true the allegation she used a deadly or dangerous weapon. Guevarabello contends the trial court abused its discretion and violated her constitutional right to present a defense by excluding expert testimony about police interview and interrogation training. Guevarabello also contends that the trial court violated her due process rights under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) by imposing certain fines and fees without determining her ability to pay them and that the rule in Dueñas should extend to direct victim compensation.
We conclude the trial court did not abuse its discretion or violate Guevarabello's constitutional rights in excluding the expert witness testimony Guevarabello sought to introduce. We also conclude that Guevarabello forfeited her challenge to the $3,000 restitution fine by failing to object at sentencing and that, by failing to object to the restitution fine, she forfeited her right to challenge the court operations and court facilities assessments. Finally, we conclude that Dueñas does not apply to direct victim restitution. Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Guevarabello Kills a Prostitute Working in Her Territory
In the early morning of January 2, 2012 Cristian Alvarez left home and drove to an area where she worked as a prostitute. A surveillance camera recorded her parked car and captured Alvarez walking in the area between 4:40 a.m. and 5:00 a.m. Between 4:45 a.m. and 5:30 a.m. a white car resembling a car driven by Guevarabello, a prostitute who also worked in the area, drove past the same surveillance camera three times.
At approximately 4:45 a.m. a resident in an apartment across the street from a nearby rail yard heard a woman scream and saw a car resembling Guevarabello's car parked at the yard. The resident saw and made eye contact with the driver, who the resident said looked like a Hispanic man in his 30s.
Guevarabello is a transgender person who identifies and usually presents as a woman. She sometimes wears her shoulder-length hair in a bun, so it appears shorter. With her hair pulled back, her features appear more masculine.
Later that day, a woman walking a dog discovered Alvarez's body in the rail yard. Investigators determined Alvarez died from blunt force trauma to the head and a deep knife wound to the neck.
Later in January Guillermo Urquieta was with Guevarabello for several hours in the parking lot at Guevarabello's house helping her clean out the inside of her car while a mechanic repaired a dent. After they finished cleaning the car's interior, Guevarabello told Urquieta about a fight she had with another prostitute over territory. Guevarabello said to Urquieta in Spanish, "Me la chingue," which means "I fucked her up" or "I screwed her over," while making a stabbing motion with her hand. When Urquieta asked Guevarabello what she meant, Guevarabello made an up-and-down stabbing motion with her closed fists, as if they were gripping something, and said she stabbed the woman in the chest and stomach with a kitchen knife. Guevarabello said she grabbed the woman by the hair, pulled her into the car, and dropped her on the train tracks.
B. A Jury Convicts Guevarabello of Murder
The People charged Guevarabello with murder (Pen. Code, § 187, subd. (a)). The People also alleged Guevarabello personally used a deadly or dangerous weapon (§ 12022, subd. (b)(1)).
Undesignated statutory references are to the Penal Code.
Before trial Guevarabello asked the court to preclude Urquieta from testifying and to exclude Urquieta's recorded interview with the police, two subsequent statements by him to the police, and his testimony at the preliminary hearing. Guevarabello argued the police coerced Urquieta into making the statements implicating her. The court denied the motion and ruled Urquieta's statements in the interviews were voluntary. The court stated, "There is nothing in this interview that I see that is remotely coercive."
Guevarabello also asked to introduce the testimony of Gary Steiner, a retired police detective with experience in police interviews and interrogations (but no formal training or degrees in psychology or psychiatry). Guevarabello sought to have Steiner testify about police training in interviewing and interrogation techniques and the relationship between those techniques and the reliability of witness statements. The People objected that Steiner was not qualified and that his testimony would be confusing and a waste of time. The court scheduled a hearing under Evidence Code section 402 to hear Steiner's proposed testimony.
At that hearing Steiner testified he worked in law enforcement from 1976 to 2008 and had hundreds of hours of training in interviewing and interrogation techniques. He stated he received training and learned techniques in how to obtain reliable and true confessions and statements from suspects and witnesses. He testified he was taught law enforcement should not use threats, express anger, or make "implied or explicit promises of leniency in order to get these statements" and should not provide subjects "with the information you want repeated [and] use a coercive technique that is likely to get someone to tell you what you want to hear rather than to tell you the truth." Steiner testified that he was trained to look "for things like verbal timing, speech language, [and] body language" and that he used the methods he was taught over 5,000 times.
At the end of counsel for Guevarabello's direct examination at the Evidence Code section 402 hearing, the court stated: "I think he is an expert in police interrogation techniques. I don't think he's an expert in false confessions." Counsel for Guevarabello stated, "Correct." The court asked, "So you're not going to be arguing in any way that the statement elicited is not truthful?" Counsel for Guevarabello responded: "Your Honor, the purpose of my bringing in Mr. Steiner is for him to inform the jury on an area that would be outside their realm of common knowledge, and that would be in the area of interrogation and interview. Based on his experience and based on his training, he would have the expertise in the methods of interviews and interrogation. That is the area and field that I would be using."
In response to the court's comment that it had "yet to hear any expertise in that those interrogations or those techniques lead to an unreliable statement," counsel for Guevarabello resumed questioning Steiner. Steiner testified police officers are taught to avoid certain conduct that could lead to "unreliable statements," such as threatening witnesses, yelling or cursing at them, and not treating them with respect and empathy. Steiner testified: "I'm saying if you don't use the techniques that you're taught to use, if you go contrary to that training, there is a very high potential that you can get unreliable statements up to and including a false confession."
At the conclusion of Steiner's testimony, counsel for Guevarabello argued: "What I am trying to do here is to put on a showing that would demonstrate the actual techniques that are employed by law enforcement that, according to the training, provides reliable statements and/or confessions, and at the same time, the types of methods and techniques that are given during these trainings that would or may produce unreliable statements and confessions. . . . Mr. Steiner would come in to testify as to the type of training that police officers go through, the types of techniques that are employed during the interrogation and/or interview, and the types that may provide reliable and unreliable statements." Counsel for Guevarabello stated, "This is a witness that is going to testify only as to the techniques, the training, and why they receive this training, and why the techniques are used to determine reliability and unreliability."
The court said to counsel for Guevarabello, "I want you to address what it is that you're putting [Steiner] on for. Because . . . I don't see any correlation with unreliability. There is no way that this witness can correlate it with it being unreliable. So what is it that you think he is going to teach this jury? Why do the jurors need to know, in general, whether or not best practices—which is essentially what Mr. Steiner can tell us—best practices is to do x, y, or z? It doesn't matter what best practices are. It matters in this interview, and there is nothing that is—I found legally coercive, and I'm not hearing anything about—you can't draw the conclusion that because the officer raised his voice that what the witness said is false. He cannot draw that conclusion." Counsel for Guevarabello responded: "He is going to tell the jury what training he received and why. If there is no purpose for the jury to hear this information, by the same token, there would be no reason for officers to have this sort of training. They're trained for a particular reason. They're . . . taught certain techniques to avoid unreliable statements."
The trial court ruled, "There is no correlation between the technique and the outcome that can be proven. . . . It's just whether it's best practice." The court stated it was also concerned Steiner's testimony was not proper expert testimony: "My problem is that there is no scientific basis for this opinion. . . . This is something that jurors can do. This is within absolutely common sense of jurors. We do this all of the time. Prosecutors do it. Defense attorneys do it. Jurors do it. . . . So I don't see it as something outside the purview of the jurors." The court excluded Steiner's proposed testimony.
The jury convicted Guevarabello of first degree murder and found the weapon allegation true. The court sentenced Guevarabello to 25 years to life on the murder conviction, plus one year for the weapon enhancement. The trial court also ordered Guevarabello to pay (1) a $40 court operations assessment (§ 1465.8, subd. (a)(1)), (2) a $30 court facilities assessment (Gov. Code, § 70373), (3) a $3,000 restitution fine (§ 1202.4, subd. (b)), and (4) $5,000 in restitution to the California Victim Compensation Board for funeral expenses (§ 1202.4, subd. (f)(4)(B)). Guevarabello did not object when the court imposed the fine and assessments and made the restitution award. Guevarabello appealed.
DISCUSSION
A. The Trial Court Did Not Err in Excluding the Expert Testimony About Police Interrogation Practices
Guevarabello does not argue the trial court erred in denying her motion to exclude Urquieta's statements to the police as coercive or her motion to preclude Urquieta from testifying at trial. Nor does Guevarabello argue substantial evidence does not support the jury's verdict. Instead, citing false confession cases, and even though counsel for Guevarabello admitted Steiner was not an expert on false confessions, Guevarabello argues the trial court abused its discretion in excluding Steiner's testimony and deprived Guevarabello of her right to present a defense. Guevarabello contends that, without Steiner's testimony, the jurors could not reach a "fair conclusion about the effect of the interrogation on the veracity and reliability" of Urquieta's statements to the police and his trial testimony. The trial court, however, did not err in excluding Steiner's testimony about police training in interviewing and interrogation.
1. The Trial Court Did Not Abuse Its Discretion in Excluding Steiner's Testimony
a. Applicable Law and Standard of Review
"Evidence Code section 801 'qualifies a matter as the proper subject for expert testimony if it is "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." That is not to say, however, that the jury need be wholly ignorant of the subject matter of the expert opinion in order for it to be admissible. [Citation.] Rather, expert opinion testimony "'will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when "the subject of inquiry is one of such common knowledge that [people] of ordinary education could reach a conclusion as intelligently as the witness."'"'" (People v. Dalton (2019) 7 Cal.5th 166, 236-237, italics omitted.)
The determination of a witness's credibility is within the province of the jury. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Hamlin (2009) 170 Cal.App.4th 1412, 1463; People v. Ramos (2004) 121 Cal.App.4th 1194, 1207 (Ramos).) "[T]he determination of credibility is not a subject sufficiently beyond common experience that the expert's opinion would assist the trier of fact; in other words, the jury generally is as well equipped as the expert to discern whether a witness is being truthful." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82.)
Evidence of the circumstances surrounding a confession is relevant to the confession's credibility and voluntariness. (Crane v. Kentucky (1986) 476 U.S. 683, 688 (Crane); see Ramos, supra, 121 Cal.App.4th at p. 1206.) Even if the trial court finds the statement was voluntary, "'evidence about the manner in which a confession was secured will often be germane to its probative weight, a matter that is exclusively for the jury to assess.'" (People v. Page (1991) 2 Cal.App.4th 161, 185 (Page).) The trial court may exclude expert testimony about false or coerced confessions in the absence of other evidence of a false admission or confession. (People v. Linton (2013) 56 Cal.4th 1146, 1182 (Linton).)
The trial court has broad discretion to admit or exclude expert testimony, and we review rulings on the admissibility of such testimony for abuse of discretion. (People v. McDowell (2012) 54 Cal.4th 395, 426.) Courts generally uphold trial court rulings on the admissibility of expert witness testimony about false confessions, police interrogations, and police tactics. (See, e.g., Linton, supra, 56 Cal.4th at p. 1183; Ramos, supra, 121 Cal.App.4th at p. 1207; People v. Son (2000) 79 Cal.App.4th 224, 241 (Son).)
b. Analysis
This case does not involve the admissibility of a purported false confession that the defendant claims was coerced by police. Guevarabello made her admissions to Urquieta, and she does not argue they were coerced; rather, she argues Urquieta's statement to the police about what Guevarabello told him may not have been reliable. Even assuming the false confession cases Guevarabello cites apply to statements by third party witnesses like Urquieta, however, the trial court did not abuse its discretion in excluding the expert testimony about police interrogation practices.
At trial, the jury saw the entire video recording of Urquieta's three-hour interview with the detectives and a 14-minute excerpt of Urquieta's prior interview with police. The jury was able to observe the physical environment of the interviews, the way the officers interacted with Urquieta, and whether the officers "cajoled, threatened, and browbeat" Urquieta, as Guevarabello argues. In the videotape of the longer interview, the jury saw the police officers suggest to Urquieta he was involved in Alvarez's murder, which Urquieta consistently denied, to get Urquieta to talk about what Guevarabello told him. The jurors saw and heard one of the detectives say to Urquieta, "[Guevarabello] said that you might be involved in [Alvarez's] death . . . . She's claiming you're involved in this—in this murder here." At trial, Urquieta testified that one of the detectives said a witness had identified Urquieta as present at the scene of the murder, but Urquieta stated that he did not believe the detective because he knew he was not there. The jury could reasonably infer, without Steiner's assistance, that the detective was lying to Urquieta to get him to implicate Guevarabello, and the jurors could evaluate with their own eyes and ears whether the officers' conduct made Urquieta's statement unreliable. (See Ramos, supra, 121 Cal.App.4th at p. 1206 [trial court did not err in excluding expert testimony on police interrogation tactics where the jury "was aware of the circumstances of the interrogation based on the videotape of [the defendant's] statement"]; Page, supra, 2 Cal.App.4th at pp. 185-186 [trial court did not err in restricting expert testimony on police tactics where the jurors received a "detailed picture of the physical and psychological circumstances of the interrogation," including evidence "the police lied to [the defendant] to extract his confession," the "officers made him feel guilty," the defendant "took and failed a polygraph exam," the defendant's "educational level and physical condition," and the "physical circumstances of the interrogation," such as "the size and layout of the interrogation room (through testimony and pictures), how long the interrogation sessions lasted, when [the defendant] ate, when he drank water, and used the restroom or the telephone"].)
Moreover, counsel for Guevarabello questioned Urquieta extensively about how he felt during the police interviews and why he said what he said. Urquieta testified he felt threatened and nervous (but not scared) during one of the interviews because the police were accusing him of something he did not do. Thus, not only did the jury observe the conditions of the interview, they heard Urquieta describe how he felt during and about the detectives' questioning. (See Ramos, supra, 121 Cal.App.4th at p. 1206 [trial court did not err in excluding expert testimony where the defendant called witnesses who testified the police officer who interviewed the defendant "threatened them and attempted to coerce statements from them and from" the defendant]; Page, supra, 2 Cal.App.4th at p. 185 [trial court did not err in restricting expert testimony on police tactics where "the trial court permitted [the defendant] and the prosecutor to thoroughly explore the physical and psychological environment in which the confession was obtained"].)
Nor did excluding Steiner's testimony prevent Guevarabello from attacking Urquieta's credibility. There were some inconsistencies in Urquieta's testimony, inconsistencies counsel for Guevarabello used to argue Urquieta was not credible. For example, during the police interview Urquieta said Guevarabello stabbed Alvarez before putting the body in her car. At trial, Urquieta initially testified Guevarabello did not say she put Alvarez's body in her car, but after the prosecutor refreshed his recollection with a prior statement, Urquieta testified Guevarabello said she put Alvarez in the car before taking her to the train tracks. Similarly, Urquieta testified Guevarabello told him she stabbed Alvarez in the stomach and the chest, but the supervising criminalist testified the victim was not stabbed in the chest. In addition, on direct examination, the prosecutor asked Urquieta what Guevarabello meant by "me la chingue," and Urquieta responded, "I asked her, 'What do you mean by that?' and she said, 'I stab [sic] her.'" But on cross-examination, Urquieta said Guevarabello "never mentioned the word 'stabbed.'" And the jury heard investigators found no blood or DNA evidence in Guevarabello's car to corroborate Urquieta's story.
Finally, there was no evidence the police's questioning caused Urquieta to make a false statement, and Steiner did not say he would testify that anything the officers in fact did or failed to do made Urquieta make false or unreliable statements in his interviews. (See Linton, supra, 56 Cal.4th at p. 1180 [trial court properly excluded expert testimony on false confessions where the proffered testimony was "'extremely speculative' because there was no 'basis or foundation' to indicate defendant's confession was false'"]; Son, supra, 79 Cal.App.4th at pp. 240-241 [trial court properly excluded testimony on police tactics resulting in false confessions because "there was no evidence that police engaged in tactics wearing down [the defendant] into making false admissions"].) Although his memory was not entirely consistent, Urquieta never recanted his basic account of what Guevarabello said. The core of Urquieta's statement—that Guevarabello said, "I fucked her up" or "I screwed her over," while making a stabbing motion—remained consistent in his police interviews, the preliminary hearing, and his trial testimony. (See Linton, at pp. 1180-1181 [trial court did not err in excluding expert testimony on false confessions and in finding there was no evidence indicating the defendant's confession was false because, among other reasons, the defendant never recanted his confession].)
2. The Trial Court Did Not Deprive Guevarabello of Her Constitutional Right To Present a Defense
As "'"a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense."'" (People v. Dalton, supra, 7 Cal.5th at p. 222; see People v. Westerfield (2019) 6 Cal.5th 632, 705.) Blanket exclusion of testimony about the circumstances of a defendant's confession, however, may deprive the defendant of a fair trial. (Crane, supra, 476 U.S. at p. 690; see People v. Cunningham (2001) 25 Cal.4th 926, 999 ["complete exclusion of evidence intended to establish an accused's defense may impair his or her right to due process of law"].) But limiting the way the defendant can present evidence about a confession is not a blanket exclusion. (Ramos, supra, 121 Cal.App.4th at p. 1206.) The exclusion of expert testimony does not constitute a "blanket exclusion of evidence concerning the circumstances of defendant's admissions" if the trial court admits other evidence concerning the circumstances of the statement. (Linton, supra, 56 Cal.4th at p. 1183; see id. at pp. 1181-1183 [exclusion of the defendant's "proffered expert testimony regarding false and coerced confessions" did not violate the defendant's right to present a defense where the jury heard audio recordings of the defendant's police interviews and testimony from police detectives].) We review Guevarabello's constitutional argument de novo. (See People v. Seijas (2005) 36 Cal.4th 291, 304; People v. Tapia (2018) 26 Cal.App.5th 942, 950.)
Although the trial court excluded Steiner's proposed testimony about police training in obtaining reliable statements from defendants and witnesses, the trial court admitted the video recordings of how the police obtained Urquieta's statement, and Urquieta testified about the interview. The exclusion of Steiner's testimony did not constitute a blanket exclusion of evidence of the conditions surrounding Urquieta's witness statement, nor did it foreclose Guevarabello's "efforts to introduce testimony about the environment in which the police secured" the statements or deprive Guevarabello of the ability "to describe to the jury the circumstances that prompted" the statements. (See Crane, supra, 476 U.S. at pp. 689, 691.) Unlike the defendant in Crane, on which Guevarabello principally relies, Guevarabello was not "effectively disabled" from arguing that the manner in which the police obtained Urquieta's statements "casts doubt on its credibility." (Crane, at p. 689.) Because the court's exclusion of Steiner's testimony only marginally curtailed Guevarabello's defense, the trial court's ruling did not deprive her of "'a meaningful opportunity to present a complete defense.'" (Id. at p. 690; see Ramos, supra, 121 Cal.App.4th at p. 1206 [because the jury saw a videotape of the defendant's police interview, the defendant was able to attack the reliability of his statement without expert testimony].)
In U.S. v. Hall (7th Cir. 1996) 93 F.3d 1337, also cited by Guevarabello, the defendant's "entire theory of defense" rested on the claim he had a personality disorder that made him susceptible to suggestion and vulnerable to falsely confessing. (Id. at p. 1341.) The court held the exclusion of expert witness testimony was erroneous "because juries are unlikely to know that social scientists and psychologists have identified a personality disorder that will cause individuals to make false confessions . . . ." (Id. at p. 1345.) Guevarabello did not argue Urquieta had a disorder that made him susceptible to suggestion or vulnerable to making false statements.
B. Guevarabello Forfeited Her Right To Challenge the Restitution Fine and Assessments, and Dueñas Does Not Apply to Direct Victim Restitution
1. Guevarabello Forfeited Her Challenge to the $3,000 Restitution Fine
Section 1202.4, subdivision (b), states: "In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record." A restitution fine under section 1202.4, subdivision (b), "is intended to be, and is recognized as, additional punishment for a crime." (Dueñas, supra, 30 Cal.App.5th at p. 1169; accord, People v. Belloso (2019) 42 Cal.App.5th 647, 655 (Belloso), review granted Mar. 11, 2020, S259755.) Under section 1202.4, subdivision (c), the trial court may not consider a defendant's ability to pay when imposing the minimum restitution fine of $300, but the court may consider the defendant's ability to pay if the court imposes a restitution fine above the minimum. (People v. Miracle (2018) 6 Cal.5th 318, 356; see § 1202.4, subd. (d) ["[i]n setting the amount of the [restitution] fine . . . in excess of the minimum fine," the court "shall consider any relevant factors, including, but not limited to, the defendant's inability to pay"]; Dueñas, at p. 1170, fn. 6 ["a trial court may . . . consider a defendant's ability to pay if the court is considering imposing a restitution fine in excess of the statutory minimum amount"].)
Because the $3,000 restitution fine the trial court imposed exceeded the statutory minimum of $300 by a factor of 10, Guevarabello had the opportunity to argue, and the court could consider whether, she was unable to pay it. By failing to object that she did not have the ability to pay the $3,000 restitution fine, Guevarabello forfeited the argument the court erred in imposing it without considering her ability to pay. (See People v. Miracle, supra, 6 Cal.5th at p. 356 ["[b]ecause [the] defendant did not object to the [restitution] fine at his sentencing hearing, he has forfeited his challenge"]; People v. Avila (2009) 46 Cal.4th 680, 729 ["in not adducing evidence of his inability to pay" a $10,000 restitution fine, the defendant "forfeited the argument"]; People v. Smith (2020) 46 Cal.App.5th 375, 395 ["a defendant forfeits a challenge to the trial court's imposition of a restitution fine above the statutory minimum for failing to consider his or her ability to pay if the defendant did not object in the trial court"]; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 [defendant "forfeited any ability-to-pay argument regarding the restitution fine by failing to object"].)
2. Guevarabello Forfeited Her Challenge to the Assessments Under Section 1465 .8 and Government Code Section 70373
Section 1465.8, subdivision (a)(1), provides, in part: "To assist in funding court operations, an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense." Government Code section 70373, subdivision (a)(1), provides, in part: "To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense . . . in the amount of thirty dollars ($30) for each misdemeanor or felony." In Dueñas this court held that "the assessment provisions of Government Code section 70373 and . . . section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair," that "imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution," and that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes [these] assessments." (Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1168; accord, Belloso, supra, 42 Cal.App.5th at pp. 654-655.)
Guevarabello, however, forfeited her argument the court violated her constitutional rights by imposing the assessments without determining her ability to pay, but not because she could or should have anticipated Dueñas, which was decided after the trial court sentenced Guevarabello. (See People v. Castellano (2019) 33 Cal.App.5th 485, 489 [defendant did not forfeit his contention the trial court violated his due process rights in imposing assessments under section 1465.8 and Government Code section 70373 without determining his ability to pay by failing to object]; see also Belloso, supra, 42 Cal.App.5th at p. 662; People v. Santos (2019) 38 Cal.App.5th 923, 932; People v. Johnson (2019) 35 Cal.App.5th 134, 137-138.) Guevarabello forfeited her right to challenge the court operations and court facilities assessments because she did not object to the $3,000 restitution fine. Guevarabello's failure to object to the $3,000 restitution fine, an amount over 40 times the $70 in court operations and court facilities assessments, leaves no doubt she would not have challenged the $70 in assessments even if she knew she had a right under Dueñas to request a hearing on her ability to pay the assessments. (See People v. Smith, supra, 46 Cal.App.5th at p. 395 [defendant forfeited his challenge to the assessments and fines because he "did not object in the trial court on the grounds that he was unable to pay, even though the trial court ordered him to pay the $10,000 statutory maximum restitution fine"]; People v. Gutierrez, supra, 35 Cal.App.5th at p. 1033 ["[a]s a practical matter, if [the defendant] chose not to object to a $10,000 restitution fine based on an inability to pay, he surely would not complain on similar grounds regarding an additional $1,300 in fees"]; but see People v. Taylor (2019) 43 Cal.App.5th 390, 400-401 [defendant did not forfeit Dueñas challenge to court operations and facilities assessments, even though he did not object to the maximum $10,000 restitution fine, because the "defendant's inability to pay is just one among many factors the court should consider in setting the restitution fine above the minimum"].)
Although the court in People v. Taylor, supra, 43 Cal.App.5th 390 at pages 400 to 401 pointed out a defendant's ability to pay the restitution fine is only one of the factors the court should consider in setting the restitution fine above the statutory minimum, there is nothing in the record here that shows Guevarabello failed to object to the restitution fine for a reason other than her ability to pay.
3. Dueñas Does Not Apply to the $5,000 Payment to the California Victim Compensation Board
Section 1202.4, subdivision (f), provides that, "in every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court." If the victim has received assistance from the California Victim Compensation Board, section 1202.4, subdivision (f)(2), requires the court to order the defendant to deposit the direct victim restitution in the Restitution Fund. (People v. Brasure (2008) 42 Cal.4th 1037, 1074-1075.) Section 1202.4, subdivision (g), states: "A defendant's inability to pay shall not be a consideration in determining the amount of a restitution order."
Guevarabello argues the reasoning in Dueñas should be extended to require the court to determine the defendant's ability to pay before ordering direct victim restitution. The rule in Dueñas, however, does not apply to direct restitution based on a victim's loss under section 1202.4, subd. (f). (Dueñas, supra, 30 Cal.App.5th at p. 1169; see People v. Evans (2019) 39 Cal.App.5th 771, 777 (Evans) [defendant's ability to pay direct restitution "is not a proper factor to consider in setting a restitution award" under section 1202.4, subdivision (f)(2)].)
A crime victim has a constitutional right to compensation that "cannot be bargained away or limited." (People v. Gross (2015) 238 Cal.App.4th 1313, 1318; see Walker v. Appellate Division of Superior Court (2017) 14 Cal.App.5th 651, 656 ["'[r]estitution is constitutionally and statutorily mandated in California'"].) Section 1202.4, subdivision (a)(1)(3)(B), states that direct victim restitution is enforceable "as if the order were a civil judgment," and courts have explained victim restitution is "intended 'as a civil remedy rather than a criminal punishment.'" (Evans, supra, 39 Cal.App.5th at p. 776; see People v. Harvest (2000) 84 Cal.App.4th 641, 647.) Unlike assessments designed to raise funds for the court system and restitution fines intended as additional punishment, direct restitution is designed to compensate crime victims for the harm they suffer. (Evans, at p. 777; Dueñas, supra, 30 Cal.App.5th at pp. 1165, 1169; People v. Holman (2013) 214 Cal.App.4th 1438, 1451-1452.) Thus, direct victim restitution serves a different purpose than the restitution fine addressed in Dueñas. (Evans, at p. 777.) The trial court's $5,000 restitution order to the California Victim Compensation Board reimbursed the fund for payments it made for the victim's funeral and burial expenses. (See § 1202.4, subd. (f)(4)(B).) Dueñas does not apply to direct victim restitution, and the trial court did not have to consider Guevarabello's ability to pay before ordering her to pay $5,000 to the California Victim Compensation Fund.
DISPOSITION
The judgment is affirmed.
SEGAL, J. We concur:
PERLUSS, P. J.
FEUER, J.