Filed 5/23/22 P. v. Triplett CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

A jury found defendant Thomas Andrew Triplett guilty of second degree murder and found he personally used a deadly and dangerous weapon in commission of the offense. The trial court found he had suffered two prior serious felony convictions. The court sentenced Triplett to an aggregate term of 45 years to life consecutive to 11 years in prison.

Triplett raises numerous claims on appeal. First, Triplett contends the trial court erred by excluding testimony from a defense expert witness about “lifestyle and situational factors” that put the victim at high risk of becoming a victim of violent crime. Second, Triplett contends the trial court erred by failing to instruct the jury on voluntary manslaughter based on imperfect self-defense and defense of others. Third, Triplett contends the trial court erred by failing to instruct the jury on a heat of passion theory of voluntary manslaughter. Fourth, he argues the cumulative effect of multiple errors requires reversal of his conviction. Fifth, he argues we must remand for resentencing to allow the trial court to exercise its discretion whether to strike the enhancements for prior serious felony convictions. Sixth, he contends the trial court erred by imposing various fines and fees without determining his ability to pay them under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). For the reasons below, we conclude these claims are without merit.

Triplett further contends we must correct clerical errors in the abstract of judgment and the minute order of the sentencing hearing, and he contends a criminal justice administration fee is no longer enforceable due to a recent change in the law. We will order the trial court to correct the clerical errors, and we will modify the portion of the judgment requiring payment of any balance on the criminal justice administration fee that was unpaid as of July 1, 2021. We will affirm the judgment in all other respects.

1. Factual and Procedural Background

1. Procedural Background

The prosecution first charged Triplett and codefendant Michael Gonzalez with the murder of Gilberto Reyes. (Pen. Code, § 187.)[1] The information further alleged Triplett personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)), and that he had suffered two prior serious felony convictions (§§ 667, subds. (a)-(i), 1170.12).

The case proceeded to a first trial in 2016. During jury deliberations, the trial court granted the prosecution’s request to dismiss the charge of first degree murder. The jury then deadlocked on the remaining charges and the trial court declared a mistrial. Gonzalez then entered a plea agreement for one count of conspiracy to commit an assault with a deadly weapon. (§ 182, subd. (a)(1).)

The second trial was held in November 2019. The jury found Triplett guilty of second degree murder and found the weapon enhancement true. In a bifurcated proceeding, the court found the prior conviction allegations true.

The trial court imposed an aggregate term of 45 years to life consecutive to 11 years in prison. The indeterminate term of 45 years to life consisted of the 15-years-to-life term for second degree murder tripled for the strike priors. The determinate term consisted of five years each for the two prior serious felony convictions plus one year for the weapon enhancement.

2. Facts of the Offense

In 2015, Gilberto Reyes lived in a house he rented from his mother. Joe Payan and his wife Nicole Yost lived in another bedroom of the house, and Charlie Erickson lived in the garage. Reyes and Erickson used methamphetamine, and the residents of the house got into arguments with Reyes. Payan and Yost thought Reyes was stealing from them. In August 2015, after Reyes failed to pay the rent and the city fined his mother for trash on the property, she gave him a 30-day notice of eviction. Reyes told Payan that he and his wife would have to move out, and Reyes and Payan got into arguments about it. The prosecution alleged that Triplett subsequently stabbed Reyes in the chest with a combat knife during one of these arguments at the house.

On the night of August 15, 2015, Payan and Yost met at a Denny’s restaurant with Triplett, Triplett’s friend Michael Gonzalez, Payan’s cousin, and a friend of the cousin. Payan appeared to be agitated about being evicted, and he and Yost were angry about Reyes stealing from them. The group decided to go to the house and help Payan and Yost move out. Gonzalez testified, “There was a conversation that was if [Reyes] got stupid, he would be dealt with.” They discussed the possibility of taking Reyes away from the house in the back of a pickup truck. Payan called a cousin who had a pickup truck, and Triplett talked to the cousin on the phone about bringing the truck. Around 11:00 p.m., the group left the Denny’s and went to Reyes’s house. At the house, Payan and Yost got into an argument with Reyes about the eviction, and Payan accused Reyes of lying about whether his mother was actually evicting them. Triplett, Gonzalez, and Erickson were also inside the house. Triplett had a military-style combat knife with a serrated edge and a handle wrapped in green paracord.

Gonzalez testified that he saw Payan and Yost standing in front of their bedroom door while Reyes was standing near his room when Triplett walked out of the kitchen area and approached Reyes in the hallway. At some point, the “argument became physical” between Triplett and Reyes while the two were standing in the hallway. Gonzalez heard “voices raised” and he heard a thud that “sounded like somebody got hit.” Gonzalez testified that he did not see Triplett stab Reyes because he (Gonzalez) was looking in the opposite direction towards the front door at the time, and Reyes was down the hallway around the corner. Payan then ran towards Reyes, and Yost came running from the kitchen. Yost exclaimed, “What the fuck? Did you just hit him?” Reyes then went into his bedroom and shut the door. Yost yelled at Reyes to open the bedroom door, but she could not get the door open. Triplett walked past Gonzalez to leave and said, “We gotta go.”

Gonzalez and Triplett then drove away in Triplett’s Pontiac Grand Am with Gonzalez seated on the passenger’s side. Gonzalez saw Triplett holding his knife and there was blood on Triplett’s right hand. Triplett told Gonzalez, “Don’t touch the knife.” They drove to a Jack in the Box restaurant, where Triplett went into the bathroom. When Triplett came out of the bathroom, the blood was cleaned off his hand. He used a rag to wipe the blood off the knife. Later, Gonzalez heard Triplett telling Erickson that there had been an altercation. Triplett said he stabbed Reyes.

Gonzalez talked about the incident with Erickson two days later when Erickson came over to Gonzalez’s house. Gonzalez told Erickson about meeting with Triplett and the others at Denny’s before going to Reyes’s house. Gonzalez showed Erickson a knife he (Gonzalez) had that was similar to the knife Triplett used, except Gonzalez’s knife did not have a serrated edge. Triplett arrived three or four hours later. Triplett talked about why he had gone to the house that night to help Payan and Yost move out. Triplett said Reyes was “out of line with the lying and the stealing” and said that “what had taken place that had finally broken out because he had spun around.”

Triplett said he was worried because he could not reach Payan and Yost. Triplett wanted to make sure they did not talk about him stabbing Reyes. Triplett said there was a Comcast video surveillance camera inside the house, and he asked Gonzalez to get the video console from inside the house. Gonzalez and Erickson went to the house to get the video console on two occasions. There was too much activity at the neighbor’s house so they did not go inside. Triplett also wanted Gonzalez to tear up the carpet at the house and put Reyes’s body into the back of a truck.

On August 24, 2015, Reyes’s sister and mother went to Reyes’s house along with two other people to check on him after not hearing from him for several days. They looked into his bedroom window and saw his decomposing body slumped against the bedroom door. They called the police, who arrived and searched the house. The police found a trail of blood droplets leading from the hallway into the bedroom, and there was blood on the carpet in front of the bedroom door. Reyes’s body was blocking the bedroom door, so police used a pry bar to remove the door from its hinges.

Police arrested Triplett a week later and searched his home and car. In Triplett’s Pontiac Grand Am, the police found a knife with a green nylon handle and three pairs of black pants, among other things. Samples of DNA matching Reyes’s DNA were found on the blade of the knife and in a blood stain in a pants pocket. The autopsy of Reyes’s body showed the cause of death was a stab wound to the trunk with perforation of the liver.

2. Discussion

1. Exclusion of Defense Expert Testimony Regarding “Victimology”

Triplett proffered the expert opinions of a criminalist to testify about deficiencies in the police investigation of the crime scene, among other topics. The expert’s pretrial report also opined that Reyes had an extremely high risk of becoming the victim of a violent crime based on a “victimology” analysis of Reyes’s lifestyle and “situational factors.” Triplett now contends the trial court erred in granting the prosecution’s motion to exclude this evidence. The Attorney General contends exclusion of this testimony did not constitute an abuse of discretion under Evidence Code section 352. As to Triplett’s claim of constitutional violations, the Attorney General contends Triplett forfeited this claim by failing to assert these grounds below.

1. Background

Triplett filed a pretrial report from his expert witness, Brent Turvey, that included a section labeled “VICTIMOLOGY” with subsections for “Victim Lifestyle Risk” and “Victim Situational Risk.” This section of the report described “victimology” as the analysis of information that “helps to establish and contextualize crime related behavior; and then further helps to establish viable motives and the investigative suspect pool. Victimology results in a determination of victim lifestyle and situational risk (aka exposure).” The report listed numerous factors considered as part of this analysis, including the fact that Reyes was estranged from his wife and living with a girlfriend; his girlfriend posted photos of marijuana plants on social media; Reyes had a chronic history of methamphetamine addiction and paranoia; the autopsy of Reyes showed he had a toxic level of methamphetamine in his system; two other household members had histories of criminal activity and drug addiction; drugs were being sold from the front door of the house; and Reyes’s housemates were angry at him for stealing their personal property or using it without permission. Based on this analysis, the report opined that “Reyes was at extreme risk of becoming a victim of a violent crime.” The report further concluded, “These factors also indicate a dramatically extended suspect pool that includes current and prior intimate relationship partners; housemates; their houseguests; and just about anyone visiting the house.”

The prosecution moved in limine to limit the scope of Turvey’s testimony. The prosecution argued Turvey’s victimology analysis was inadmissible as third-party evidence under Evidence Code section 352 and People v. Hall (1986) 41 Cal.3d 826 (for third-party evidence to be admissible, there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime) (Hall). The prosecution argued there was an insufficient foundation for any third-party culpability, and that Turvey’s victimology analysis was irrelevant, speculative, and likely to cause confusion or undue prejudice in jurors’ minds.

The trial court ruled that any evidence of third-party culpability would be admissible provided the defense made the requisite foundational showing, but the court excluded the victimology analysis set forth in Turvey’s report on the grounds it was irrelevant, confusing to the jury, and constituted bad character evidence of the victim.

2. Legal Principles

To be admissible, “third party evidence need not show ‘substantial proof of a probability’ that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant’s guilt.” (Hall, supra, 41 Cal.3d at p. 833.) However, “evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” (Ibid.)

Evidence Code section 352 gives trial courts discretion to “exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) “Rulings under Evidence Code section 352 come within the trial court’s broad discretion and will not be overturned on appeal absent a showing of an abuse of that discretion.” (People v. Brooks (2017) 3 Cal.5th 1, 43.)

3. The Exclusion of Victimology Evidence Was Not Erroneous

Triplett contends the trial court erred by excluding the victimology evidence in violation of his constitutional rights to due process and to present a defense under the Sixth and Fourteenth Amendments. He argues the evidence was not intended as third-party evidence, but rather that it was relevant and probative to show the failure by law enforcement to investigate numerous other leads. He argues the evidence was relevant to show “the police did not look at other possible suspects” and “did not properly examine the true cause of the stabbing.”

We are not persuaded. First, as the Attorney General points out, Triplett never asserted any constitutional grounds in his arguments below. Accordingly, he has waived those claims on appeal. (People v. Wilson (2008) 44 Cal.4th 758, 793.) But we find no error regardless of whether we consider the claim under state evidentiary rules or constitutional principles.

Although Triplett contends the evidence was not offered to show third-party culpability, there is no other theory of relevance to support introduction of the evidence. There is no dispute that Reyes was in fact killed by a stab wound to the chest. And the prosecution had no burden to establish a motive for the killing. It was irrelevant that Reyes’s lifestyle or situational factors put him at high risk of violence. The sole issue was the identity of the assailant. The actual point of the “victimology” evidence was to suggest one of the other housemates or guests committed the offense. Triplett’s trial counsel made this clear in arguing for admission of the evidence. Although trial counsel initially framed the relevance in terms of the inadequacy of the police investigation, he then stated, “When [the police] went about the task of investigating the case, how they jumped to a conclusion that included Mr. Triplett and Mr. Gonzalez as the only viable subjects, disregarded the possibility of Charles Erickson who was by many the last person in the residence, who had opportunity to have been the party responsible for it, as well as the lack of effort to locate—although subsequently they did locate—Joe [Payan] and Nicole [Yost], who are also likely—as likely to have been responsible for the death of Gilberto Reyes as Mr. Triplett. The fact that they did not pursue those lines of investigation are part and parcel of a poor investigation which takes away from the adequacy of the investigation that was presented.” Triplett echoes this theory of relevance in his opening brief, wherein he argues, “[T]he reason to attack the quality of the criminal investigation [ ] was to answer a question that may lurk in the minds of jurors: ‘If the defendant didn’t do it, then who did?’ ”

Triplett made no showing at trial that the excluded testimony would inculpate any specific third party, and he does not argue this ground on appeal. It was not an abuse of discretion for the trial court to exclude this testimony on the ground there was no evidence specifically linking a third person to the commission of the offense as required under Hall, supra, 41 Cal.3d at page 833. Furthermore, as the trial court ruled, and as Triplett acknowledges, the defense was allowed to explore alleged inadequacies in the police investigation. It simply was not allowed to introduce Turvey’s testimony concerning the supposed risk factors inherent in Reyes’s lifestyle.

Exclusion of this evidence was also not an abuse of discretion under Evidence Code section 352. Absent any sufficient basis for a theory of third-party culpability, the evidence had no probative value, and there was a substantial danger the jury would be unduly biased or misdirected by expert testimony about the victim’s “lifestyle factors”—e.g., Reyes’s drug use, stealing, or estrangement from his wife. The trial court accurately characterized this as prejudicial evidence of Reyes’s bad character. “The court is not required to admit evidence that merely makes the victim of a crime look bad.” (People v. Kelly (1992) 1 Cal.4th 495, 523.) The trial court did not exceed the bounds of its discretion in an “arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

Triplett’s claims of constitutional error also lack merit. “ ‘[W]e have long observed that, “[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s [state or federal constitutional] right to present a defense.” ’ ” (People v. Prince (2007) 40 Cal.4th 1179, 1243.) “While the Constitution thus prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.” (Holmes v. South Carolina (2006) 547 U.S. 319, 326.) Nothing in the trial court’s ruling rose to the level of unfairness or manifest injustice that would constitute a constitutional violation under the Sixth or Fourteenth Amendments.

For the reasons above, we conclude this claim is without merit.

2. Absence of Jury Instructions on Imperfect Self-Defense and Defense of Others

Triplett contends the trial court erred by not instructing the jury on the principles of imperfect self-defense and defense of others. The Attorney General contends the court properly declined to give those instructions because there was no evidence to support them.

1. Legal Principles

While the offense of murder requires a showing of malice, the lesser included offense of manslaughter lacks the element of malice. (People v. Rios (2000) 23 Cal.4th 450, 460.) Under an imperfect self-defense theory of manslaughter, the defendant commits a homicide absent malice because the defendant honestly believes it is necessary to kill in self-defense but that belief is objectively unreasonable. “If a person kills or attempts to kill in the unreasonable but good faith belief in having to act in self-defense, the belief negates what would otherwise be malice, and that person is guilty of voluntary manslaughter or attempted voluntary manslaughter, not murder or attempted murder.” (People v. McCoy (2001) 25 Cal.4th 1111, 1116.) The doctrine of imperfect self-defense of another follows logically from this rule. (People v. Randle (2005) 35 Cal.4th 987, 996, overruled on another ground by People v. Chun (2009) 45 Cal.4th 1172.) “[O]ne who kills in imperfect defense of others—in the actual but unreasonable belief he must defend another from imminent danger of death or great bodily injury—is guilty only of manslaughter.” (Randle, at p. 997.)

“[W]hen a defendant is charged with murder the trial court’s duty to instruct sua sponte, or on its own initiative, on unreasonable self-defense is the same as its duty to instruct on any other lesser included offense: this duty arises whenever the evidence is such that a jury could reasonably conclude that the defendant killed the victim in the unreasonable but good faith belief in having to act in self-defense.” (People v. Barton (1995) 12 Cal.4th 186, 201.)

“We review de novo the trial court’s failure to instruct on a lesser included offense [citations], and in doing so we consider the evidence in the light most favorable to the defendant [citations].” (People v. Woods (2015) 241 Cal.App.4th 461, 475.)

2. The Absence of Jury Instructions on Imperfect Self-Defense or Defense of Others Was Not Prejudicial Error

Triplett argues that substantial evidence obligated the trial court to instruct the jury on imperfect self-defense and defense of others because the evidence showed there was ongoing tension between Reyes, Payan, and Yost culminating in a loud argument that Triplett witnessed. Triplett contends testimony showed that as Reyes moved closer to Payan and Yost in the course of the argument, he (Triplett) approached the arguing parties, whereupon Reyes “turned quickly” towards Triplett and he stabbed Reyes. Gonzalez heard a loud thud and saw Triplett and Reyes locking arms. Triplett asserts that these facts were sufficient to support the theory that he or others were in imminent danger of being killed or suffering great bodily injury, and that he believed deadly force was necessary to defend against this danger.

The Attorney General refutes this characterization of the evidence. He argues the trial court properly denied Triplett’s request for an instruction on imperfect self-defense because Erickson’s testimony that Reyes “turned quickly” was unreliable hearsay with no tendency to prove Triplett was afraid of imminent injury or death. The Attorney General points out that Erickson subsequently retracted that testimony, and that it was inconsistent with Gonzalez’s version of what happened.

We agree with the Attorney General that the evidence was insufficient to justify instructions on self-defense or defense of others. Specifically, there was insufficient evidence that Triplett actually believed he or another person was in imminent danger of death or great bodily injury. There was no evidence Reyes had a weapon of any kind. Triplett’s argument hinges almost entirely on the assertion that the evidence showed Reyes turned quickly just before Triplett stabbed him. But Triplett himself never testified about why he stabbed Reyes, and as Triplett concedes, Gonzalez testified that he never actually saw the stabbing. Gonzalez said Reyes was standing behind a wall around a corner of the hallway when Triplett walked down the hallway and around the corner out of Gonzalez’s sight just before the stabbing happened. Gonzalez said he was looking in the opposite direction towards the front door of the house when he heard the thudding sound. Gonzalez testified that there were “voices raised” but he did not testify to any threats or threatening statements made by Reyes that might have suggested any need for self-defense. There is nothing in this testimony to support an inference that Triplett believed he was in imminent danger from Reyes at that point. Gonzalez also said he did not know where Yost was at that time, and when asked if Payan was “in the same vicinity as [Reyes] and Mr. Triplett,” Gonzalez responded, “Not that I know of, not that I can recall.”

Gonzalez subsequently testified that Triplett later told Erickson about what happened. Gonzalez described the conversation as follows: “They discussed it, why we had went over there to help move. Then the fact that he was out of line with the lying and the stealing his stuff like that and what had taken place that had finally broken out because he had spun around.” Erickson similarly testified that Gonzalez told him something to this effect. Erickson recounted Gonzalez’s description of the incident as follows: “[Gonzalez] told me they were arguing, and [Reyes] was arguing with [Payan] and [Yost]. [Triplett] was standing kind of to the side and behind him, and [Gonzalez], I guess, was close to the front door in the hallway or something. And [Gonzalez] said ‘[Reyes] turned quickly, and [Triplett] stabbed him.’ ” As the Attorney General points out, Erickson was repeating Gonzalez’s hearsay about what happened, and Gonzalez himself testified that he did not see the stabbing. But even assuming the jury believed this version of events, nothing in this testimony supports an inference that Triplett believed he or anyone else was in imminent danger of death or great bodily injury. The mere fact of the victim turning quickly does not support the theory that Triplett perceived imminent danger of death or serious bodily injury. Nor does it support an inference that Triplett believed deadly force was necessary to defend himself or others.

For the reasons above, we conclude the trial court had no duty to instruct the jury on the theories of imperfect self-defense or defense of others. This claim is without merit.

3. Absence of Jury Instruction on Heat of Passion

Triplett contends the trial court erred by failing to instruct the jury on a heat of passion theory of voluntary manslaughter. He argues he was provoked by Reyes’s aggressive conduct towards Payan and Yost. The Attorney General contends the trial court properly omitted a jury instruction on heat of passion because the evidence did not support the giving of such an instruction.

1. Legal Principles

Heat of passion is “a state of mind caused by legally sufficient provocation that causes a person to act, not out of rational thought but out of unconsidered reaction to the provocation.” (People v. Beltran (2013) 56 Cal.4th 935, 942.) “[T]he provocation must be one that would cause an emotion so intense that an ordinary person would simply react, without reflection.” (Id. at p. 949.) But the provocation is not required to be so great as to be “of a kind that would cause an ordinary person of average disposition to kill.” (Id. at p. 935.)

The provocation requirement has “ ‘both an objective and a subjective component. [Citation.] First, the defendant must actually, subjectively, kill under the heat of passion.’ ” (People v. Manriquez (2005) 37 Cal.4th 547, 584 (Manriquez).) The passion aroused need not be anger or rage, but may be any violent, intense, high-wrought, or enthusiastic emotion other than revenge. (People v. Breverman (1998) 19 Cal.4th 142, 163.) “ ‘But the circumstances giving rise to the heat of passion are also viewed objectively. As [the California Supreme Court] explained long ago . . ., “this heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances,” because “no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.” [Citation.]’ ” (Manriquez, supra, at p. 584.)

We independently review whether a trial court improperly failed to instruct on a theory of heat of passion. (People v. Souza (2012) 54 Cal.4th 90, 113.)

2. The Evidence Was Insufficient to Support an Instruction on Heat of Passion

Triplett contends the trial court erred by failing to instruct the jury on heat of passion because substantial evidence showed he was provoked by his prior knowledge of Reyes’s “aggressive conduct” and seeing Reyes shouting profanities at Payan and Yost while moving towards them. Triplett’s argument in support of this position is similar to the argument set forth above in his argument for instructions on imperfect self-defense and defense of others. He argues he was aware of the contentious disputes between Reyes, Payan, and Yost about their living situation, and that he (Triplett) witnessed the argument between them just prior to the stabbing.

As the Attorney General points out, there was no evidence Reyes was moving towards Payan and Yost in any threatening manner. Furthermore, there was no evidence Reyes engaged in any conduct that would cause an ordinary person of average disposition to kill him. While no specific kind of provocation is required, simply witnessing someone engage in a loud argument with others does not by itself constitute sufficient provocation for heat of passion. Nor does Triplett cite any case that would support this position. Triplett cites People v. Elmore (1914) 167 Cal. 205, for the proposition that sudden violent quarrel constitutes sufficient provocation. The facts of that case, which involved a threatening physical assault initiated by the victim upon the defendant, are distinguishable. There was no evidence Reyes initiated any kind of physical assault against Triplett prior to the stabbing. And simple assault by itself is generally insufficient to constitute provocation for heat of passion. (People v. Gutierrez (2009) 45 Cal.4th 789, 827 [simple assault does not rise to the level of provocation necessary to support a voluntary manslaughter instruction].)

For the reasons above, we conclude the evidence was insufficient to support a jury instruction on a heat of passion theory of voluntary manslaughter. This claim is without merit.

Triplett further contends cumulative prejudice from the errors asserted above requires reversal, but we find no errors from these claims and hence there is no prejudice to cumulate.

4. Remand for Resentencing on the Serious Felony Enhancements

In 2018, the trial court imposed an aggregate term of 45 years to life consecutive to 11 years in prison, which included two mandatory five year terms for prior serious felony convictions under section 667. Effective January 1, 2019, Senate Bill No. 1393 (Senate Bill 1393) amended section 667, subdivision (a) and section 1385, subdivision (b) to give trial courts the discretion to strike or dismiss a prior serious felony conviction at sentencing. (Stats. 2018, ch. 1013, §§ 1-2.) Triplett contends we must remand to allow the trial court to exercise its discretion whether to impose these terms based on a retroactive application of this change in law. The Attorney General concedes the change in law applies retroactively to Triplett, but the Attorney General argues no remand is necessary because the record shows the trial court would not have exercised its discretion to strike the enhancements.

As to the retroactivity of Senate Bill 1393, the Attorney General’s concession is well-taken. The change in law effected by Senate Bill 1393 applies retroactively under the logic of In re Estrada (1965) 63 Cal.2d 740. (See People v. Stamps (2020) 9 Cal.5th 685.) Triplett’s case is not yet final, so he is entitled to the benefit of the new law. But the Attorney General argues the trial court’s statements show it would not have struck the enhancements even if the court had the discretion to do so. (See People v. Almanza (2018) 24 Cal.App.5th 1104, 1110 [remand not necessary if it is not reasonably probable a more favorable sentence would be applied in the absence of error].) The Attorney General cites the trial court’s comments expressing sympathy for the family of the victim, and the court’s statement, “The court does believe the maximum sentence is appropriate and justified.” The court also denied Triplett’s Romero[2] motion. In doing so the court made numerous statements expressing its view on the violent and heinous nature of the offense; Triplett’s substantial criminal history; his failure to take advantage of prior opportunities for rehabilitation; and his lack of remorse in this case. The Attorney General further notes that the trial court declined to exercise its discretion to strike a one-year enhancement for the use of a deadly and dangerous weapon under section 12022, subdivision (b)(1). That the court would not even reduce Triplett’s sentence by one year suggests it would have declined to strike the more punitive enhancements as well.

Triplett argues the statements the trial court made in the course of denying the Romero motion should not be interpreted as an indication it would not have exercised its discretion under the new statute because the standard for the exercise of discretion is different in those applications. (See People v. Dryden (2021) 60 Cal.App.5th 1007, 1033 [inquiry under revised section 1385 is different from inquiry under Romero].) We agree that the inquiry is different under the new section 1385, requiring the court to consider whether a defendant’s sentence should be reduced in the interests of justice. But given the record in this matter, we agree with the Attorney General that the court would not have done so under the newer standard. The trial court made abundant statements establishing with near-certainty that it would not have reduced Triplett’s sentence if it had the newly-granted discretion to do so. And Triplett cites no mitigating factors that the court would be permitted to consider under the new inquiry that it failed to consider before.

Given the trial court’s statements at sentencing, we conclude the record shows remand for resentencing would be futile. This claim is without merit.

5. Imposition of Fines and Fees Under Dueñas

The trial court imposed various fines and fees including a $10,000 restitution fine (§ 1202.4, subd. (b)(2)); a suspended $10,000 parole revocation fine (§ 1202.45, subd. (a)); a $40 court operations fee (§ 1465.8); a $30 criminal conviction assessment fee (Gov. Code, § 70373, subd. (a)(1)); and a $129.75 criminal justice administration fee (Gov. Code, §§ 29550, 29550.1).[3] Triplett contends the court improperly imposed these fines and fees without determining his ability to pay them under Dueñas, supra, 30 Cal.App.5th 1157.[4] The Attorney General contends the trial court properly imposed the fines and fees, and that Triplett forfeited the claim by failing to object below.

We need not reach the issues of whether Triplett forfeited this claim. The trial court sentenced Triplett to 45 years to life consecutive to 11 years in state prison. Any wages he earns in prison may be used to pay the fines and fees, which forecloses any meritorious inability to pay argument. (People v. Jones (2019) 36 Cal.App.5th 1028, 1035, citing People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [court may consider ability to earn prison wages in determining ability to pay].) Triplett cites to a Legislative Analyst’s report analyzing wage amounts generally earned by prisoners, but the record contains no individualized evidence of Triplett’s prison wages. Accordingly, we conclude any error under Dueñas was harmless. (People v. Johnson (2019) 35 Cal.App.5th 134, 139-140 [error harmless beyond a reasonable doubt when defendant was sentenced to eight years in prison].)

However, as Triplett points out, a recent change in the law has made the criminal justice administration fee uncollectable. Effective July 1, 2021, Assembly Bill No. 1869 (Assembly Bill 1869) revised Government Code section 611, which now provides, “On and after July 1, 2021, the unpaid balance of any court-imposed costs pursuant to . . . [Government Code] [s]ections 29550.1 . . . as those sections read on June 30, 2021, is unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.” (Gov. Code, § 6111, subd. (a).) “[B]y its plain terms the ameliorative changes of Assembly Bill 1869 apply retroactively to make any unpaid portion of the identified assessments, as they existed on June 30, 2021, ‘unenforceable and uncollectible’ as of July 1, 2021. (Stats. 2020, ch. 92, §§ 11, 62.).” (People v. Greeley (2021) 70 Cal.App.5th 609, 626.) “[A]lthough the unpaid balance of the identified fees is no longer enforceable and collectible, the statute also mandates that any portion of a judgment imposing those fees be vacated. Accordingly, based on the plain language of the statute, the unpaid balance of the probation supervision and criminal justice administration fees must be vacated.” (Id. at pp. 626-627, fns. omitted.)

Accordingly, we will vacate the portion of the judgment requiring payment of any balance on the criminal justice administration fee that remained unpaid as of July 1, 2021.

6. Correction of the Abstract and Minute Order of the Sentencing Hearing

In its oral pronouncement of the sentence, the trial court incorrectly referred to section “12022.1(b)” of the Penal Code as grounds for imposing the one-year weapon enhancement. The abstract of judgment and minute order of the sentencing hearing incorporated this error. The enhancement is properly authorized by section 12022, subdivision (b)(1) instead. Triplett seeks correction of the abstract and minute order. The Attorney General concedes the abstract of judgment must be corrected but he argues the minute order should not be altered because it correctly recorded the trial court’s erroneous oral pronouncement.

Courts may correct clerical errors at any time. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We agree with Triplett that both documents require correction, as they constitute clerical errors subject to amendment. “The difference between judicial and clerical error rests not upon the party committing the error, but rather on whether ‘it was the deliberate result of judicial reasoning and determination.’ [Citations.] A correctable clerical error includes one made by the court which cannot reasonably be attributed to the exercise of judicial consideration or discretion.” (Aspen Internat. Capital Corp. v. Marsch (1991) 235 Cal.App.3d 1199, 1204.) The trial court here simply miscited the section number of the applicable statute, likely because the probation report contained a similar error; this was not the product of judicial consideration or discretion. Accordingly, we will order the trial court to correct the minute order and abstract of judgment.

3. Disposition

The judgment is modified to vacate any portion of the $129.75 criminal justice administration fee that remained unpaid as of July 1, 2021. As so modified, the judgment is affirmed. The clerk of the Superior Court is ordered to correct the abstract of judgment to reflect the modified criminal justice administration fee. The clerk shall also correct the abstract of judgment and the minute order of March 23, 2018, to show that a one-year enhancement was imposed under Penal Code section 12022, subdivision (b)(1), and not under “PC12022.1(b)”. The clerk is ordered to prepare and transmit the corrected abstract of judgment to the Department of Corrections and Rehabilitation.

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Greenwood, P. J.

WE CONCUR:

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Elia, J.

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Grover, J.

People v. Triplett

H045711

[1] Subsequent undesignated statutory references are to the Penal Code.

[2] People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

[3] The court also imposed a fine of $13,292 in victim restitution (§ 1202.4, subd. (f)). Triplett does not contest this fine.

[4] This issue is currently under review in the California Supreme Court in People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.