1

Filed 6/8/21 P. v. Sansing CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

BENJAMIN ERIC SANSING,

Defendant and Appellant.

C088533

(Super. Ct. No. 18FE012224)

On June 22, 2018, at approximately 6:30 a.m., defendant attempted to enter S.F.’s 

house on Meadowview Road in Sacramento County through several windows. After 

police arrested defendant, they found one window screen on the ground that had been 

removed from a kitchen window. Later, S.F. found a portion of another screen that had 

been cut from a window on a door leading into the garage.

A jury found defendant guilty of one count of first degree residential burglary and 

found true the allegation that, during the commission of the offense, another person, other 
2

than an accomplice, was present in the residence during the commission of the burglary. 

The trial court sentenced defendant to the midterm of four years.

On appeal, defendant asserts (1) the evidence was legally insufficient to support 

the jury’s verdict because there was not substantial evidence he removed or cut any 

window screen, (2) the trial court erred in failing to instruct the jury, sua sponte, on the 

lesser included offense of attempted residential burglary, and, (3) relying on People v. 

Dueñas (2019) 30 Cal.App.5th 1175 (Dueñas), that the trial court violated his due 

process rights in imposing fines and fees without first conducting an ability to pay 

hearing.

We affirm.

FACTS AND HISTORY OF THE PROCEEDINGS

An amended information charged defendant with a single count of first degree 

residential burglary (Pen. Code, § 459 [statutory section references that follow are to the 

Penal Code unless otherwise stated]). The information further alleged that, during the 

commission of the offense, another person, other than an accomplice, was present in the 

residence during the commission of the burglary, within the meaning of section 667.5, 

subdivision (c)(21). 

The Prosecution Evidence

S.F. lived in a house she rented on Meadowview Road in Sacramento County. 

The house had a backyard that was enclosed by a wooden gate locked with a padlock. 

The windows of the house had slide locks, and most of them also had an additional screw 

lock “that prevents it from being jimmied open.” The windows were almost all covered 

with blinds, pillowcases, and, in one case, a shower curtain. 

S.F. arrived home from work at approximately 2:00 a.m. on the morning of 

June 22, 2018. S.F. went into the kitchen and took her dog out a kitchen door into the 

backyard. She did not notice anything unusual in the backyard. Asked if she observed 
3

the house windows when she was in the backyard, S.F. responded that everything 

appeared to be intact. “In other words, the screens were still on the windows. The 

windows were still closed.” She testified “it would have been blatantly obvious if they 

weren’t” intact “because I come out through the interior door off of the kitchen and I exit 

through this rear door and usually stand right here (indicating) . . . .” 

At approximately 6:30 a.m., S.F. was startled awake by her dog. The dog, a 

service dog, was “trained not to always bark.” Instead, the dog jumped on S.F.’s legs. 

The dog stood up, her ears perked up, listening. S.F. heard someone near the front of the 

house. Alarmed, S.F. got up.

S.F. heard someone wrestling with the iron security door at the front of the house. 

She then heard “tapping, like knocking at the windows.” S.F. looked out the peephole 

and saw defendant on her porch. Defendant was “going back and forth, looking in the 

windows.” S.F. did not see anything in defendant’s hands, but she also testified that she 

“honestly didn’t take note of his hands” because she “was really nervous.” Defendant 

then went out of view in the direction of the garage. 

S.F. then heard a very loud bang. S.F. “knew by the bang that he had busted the 

gate open.” By that time, S.F. was on the phone with 911. 

While she was on the phone with 911, S.F. moved from window to window, 

watching what defendant was doing. S.F. described much of what she was observing to 

the 911 operator. S.F.’s 911 call was played for the jury. 

S.F. reported that a man was banging on her door, she did not respond, and the 

man went to her side gate, kicked it open, and went into the backyard. S.F. reported the 

man was still in her backyard. S.F. repeated to the 911 operator more than once that the 

man remained in her backyard. S.F. reported that she did not see any weapons. 

Looking out her master bedroom window into the backyard, S.F. could see the 

casita (also referred to as a studio and a shed) that was used for storage. A separate 

entrance in the structure led to a full bath and shower. On the interior, there was a barrier 
4

wall between the storage area of the casita and the bathroom area; on the interior, one 

could not access the storage area from the bathroom. The storage area was locked, but 

defendant went into the bathroom, went through the bathroom cabinets, and went back 

and forth trying to gain access to the storage area. Defendant took items that were in the 

bathroom portion of the casita, including a five-gallon Home Depot bucket “and some 

other things.” Asked if defendant was holding anything in his hands during this time, 

S.F. responded that she did not “recall specifically like taking note of his hands. I was 

really afraid, and he was going back and forth. And then at some point I saw him remove 

some things from the bathroom.” 

At some point S.F. stopped watching defendant from the master bedroom window. 

Four minutes 30 seconds into the 911 call, S.F. reported the man was still in her 

backyard. S.F. and the 911 operator did not communicate for approximately 40 seconds. 

Then, five minutes 17 seconds into the call, S.F. reported: “Yeah, I’m not watching him 

in the back of the house anymore, I’m at the front of my house.” S.F. testified: “in my 

mind, it seemed like it was taking a really long time for local PD to respond. And I was 

afraid, and so I went back to check to see if they had arrived yet.” Thus, she went from 

the master bedroom in the back to the front of the house to see if police had arrived yet. 

S.F. and the 911 operator did not communicate for the next one minute 13 seconds, until 

the 911 operator asked if there was somebody at the house with S.F. The 911 operator 

then asked S.F. if the man had come out past her in the front yard, and S.F. responded 

that he had not. 

About 10 seconds later, seven minutes into the 911 call, S.F. said, “Oh, my God, 

he’s at my fucking window.” S.F. had just returned from the front of the house to the 

kitchen window to peer out to see where defendant was. And defendant was “right there” 

in one of the kitchen windows trying to enter the main house. S.F. testified: “This is the 

kitchen window that I -- when I came back from checking to see if PD had arrived yet. I 
5

was peeking -- I have a covering over it. I went to peek through the side, and [defendant] 

was standing right there, and it startled me.” 

S.F. reported to the 911 operator that the man was trying to open the kitchen

window. S.F. testified defendant had removed a screen, which she did not see him do, 

and she saw him attempting to open the window with his hands. S.F. testified: “I know 

he removed the screen from this window (indicating), and there were fingerprints on the 

window from the outside. So at some point he had tried to open that one. [¶] But I did 

see him try to open this, and he inevitably opened this one (indicating). He was trying to 

gain access from -- by any means necessary.” S.F. testified that window did have a screw 

on it. Defendant had removed the screen, but he could not manage to jimmy the window 

open. 

Asked if she saw him holding any tools in his hand when she saw him at the 

window, S.F. responded, “I was terrified. I don’t recall specifically looking for tools or 

weapons.” She testified, “I was at the point that I realized he was right there, and I was 

startled. I think I lost my composure. I was afraid.” 

With regard to another window, S.F. testified: “This is the garage entry door 

(indicating). There is an additional interior door to the house. But this has a slide-up 

window. And [defendant] cut the screen off of the window and proceeded to push that 

window up and open.” S.F. did not see defendant cut the screen. She did see him slide 

the window up.

Defendant “kept going back and forth, trying to find some way to enter.” S.F. 

testified on cross-examination that he attempted to enter her house through at least three 

windows. Asked about this again, S.F. testified: “I physically saw him at least with these 

two, the garage door entry window and the one right next to it. [¶] I did not actually see 

him at the kitchen window because that’s when I was afraid and backed away. And he --

but he removed the screen. And his -- his palm print, he tried to push that window up and 

open, but it has a screw. [¶] As to the two windows in the front of the house, one of 
6

which is the living room and one of which is the dining room, I did not physically see 

him manipulate the windows, but I heard him making noise at them attempting to open 

them.” She clarified that she did see defendant at the kitchen window and she backed

away, afraid. Asked if she ever made eye contact with defendant, S.F. replied, “I don’t 

believe he ever knew I was there.” 

S.F. testified she did not see anyone else with defendant when she first saw him. 

Nor did she see anyone in her backyard with defendant. Defendant was alone. 

Approximately 11 minutes elapsed between when S.F. first called 911 and when 

police arrived. Sacramento Police Department Officer Steven Halverson was among the 

officers who responded to S.F.’s house at approximately 6:45 a.m. When Halverson 

approached the house, S.F. reported that defendant was still in the backyard. Halverson 

and other officers proceeded through the broken and splintered gate into the backyard. 

Halverson saw defendant standing on a patio in the backyard. Halverson arrested 

defendant. 

After he placed defendant in his patrol vehicle, Halverson did a walkthrough with 

S.F. Halverson characterized S.F. as “scared or nervous.” 

S.F. inspected the wooden gate. The wood was splintered, there was a piece of 

wood on the ground, and the latch was broken away from the wood fence. 

S.F. also found a jagged-edged knife with a wooden handle in the backyard “at the 

base of the door.” According to Halverson, the knife, a 12-inch sheetrock knife, was in 

the location where he first saw defendant. S.F. testified that she would have noticed the 

knife had it been there the night before. She testified, “several hours earlier when I had 

taken the dog out, I came through this door and there was nothing there. [¶] Once the 

defendant had been arrested, there was a knife at the base of that door.” S.F. testified

that, as far as she knew, the knife did not belong to her. S.F.’s landlord testified he did 

not keep any knives or saws in storage in the casita. 
7

S.F. pointed out to Halverson a kitchen window where she had seen defendant. 

Halverson saw the screen had been removed. The screen was on the ground a few feet 

away. The screen had been bent to be removed from the kitchen window. S.F. testified 

she never experienced trouble with the screens falling off. 

Asked if she knew when or how the screen from the kitchen window was 

removed, S.F. testified: “It had to have been removed by the defendant that morning, 

because it was not like that when I took the dog out earlier.” Thus, according to S.F., the 

screen must have been removed at some time after 2:00 a.m. 

Halverson also saw what appeared to be a hand mark on the kitchen window, a 

“smudge from someone that attempted to push the window open.” Police did not call for 

a CSI team because Halverson’s training officer indicated that “latent prints would not be 

obtainable because of the smudge mark on them.” 

S.F. observed some baseball cards in a Home Depot bucket as well as a ball and 

other loose items defendant had taken from the bathroom side of the casita. S.F. testified 

that none of the loose items belonged to her. She testified the orange bucket had been 

taken from the bathroom area of the casita. She also testified more than once that the 

Home Depot bucket did belong to her. S.F.’s landlord testified he did not keep anything 

in storage in the bathroom portion of the casita other than a gas stove. He did not have a 

Home Depot bucket in the bathroom, although he may have had such items in the storage 

portion of the casita. Shown a photograph of various items and a Home Depot bucket, 

S.F.’s landlord testified that the items were not his. 

After police left, S.F. found another piece of screen that had been removed. She 

found it “in the back. In the grass near where the casita is.” This was from the screen on 

the window on the garage entry door. 

The defense presented no evidence.
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Verdict and Sentence

The jury found defendant guilty on count one, first degree residential burglary. 

(§ 459.) The jury also found true the allegation that, during the commission of the 

offense, another person, other than an accomplice, was present in the residence within the 

meaning of section 667.5, subdivision (c)(21). The trial court sentenced defendant to the 

midterm of four years. 

DISCUSSION

I

Sufficiency of the Evidence

Defendant asserts the evidence was legally insufficient to support his conviction of 

first degree residential burglary. His challenges to the sufficiency of the evidence relate 

solely to the window screens. Defendant acknowledges that penetration into an area 

behind a window screen amounts to entry of a building within the meaning of the 

burglary statute. However, according to defendant, the conclusion that he penetrated the 

window screen was wholly speculative. Defendant asserts that the evidence that he cut or 

removed a window screen was “wholly circumstantial.” Defendant emphasizes S.F.’s 

911 call, during which she narrated his activities. Defendant maintains that, with S.F. 

focused on him “for almost the entirety of the incident, it is unreasonable that she missed 

[defendant] cutting and discarding the screen behind the casita all while using the knife 

that was found in her backyard.” According to defendant, the evidence “supports a 

strong possibility that another person cut into the screen between the hours of 2:00 a.m. 

and the time [S.F.] saw [defendant] in her backyard.” 

Expanding on this third-party theory, defendant asserts: “[g]iven [defendant] was 

trying to get into every window, he reasonably avoided two step processes; explaining 

why [S.F.] found [defendant] attempting to slide open the window with the screen 

already cut into.” 
9

“The law governing sufficiency-of-the-evidence challenges is well 

established . . . . [Citations.] In reviewing a claim for sufficiency of the evidence, we 

must determine whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime 

. . . beyond a reasonable doubt. We review the entire record in the light most favorable to 

the judgment below to determine whether it discloses sufficient evidence—that is, 

evidence that is reasonable, credible, and of solid value—supporting the decision, and not 

whether the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither 

reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume 

in support of the judgment the existence of every fact the jury reasonably could deduce 

from the evidence. [Citation.] If the circumstances reasonably justify the findings made 

by the trier of fact, reversal of the judgment is not warranted simply because the 

circumstances might also reasonably be reconciled with a contrary finding.” (People v. 

Jennings (2010) 50 Cal.4th 616, 638-639 (Jennings).)

“The same standard of review applies to cases in which the prosecution relies 

mainly on circumstantial evidence . . . .” (People v. Maury (2003) 30 Cal.4th 342, 396 

(Maury).) “An appellate court must accept logical inferences that the jury might have 

drawn from the circumstantial evidence.” (Maury, at p. 396; see also People v. Bloom

(1989) 48 Cal.3d 1194, 1208 (Bloom) [“Evidence of a defendant’s state of mind is almost 

inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to 

support a conviction”].)

“ ‘A reversal for insufficient evidence “is unwarranted unless it appears ‘that upon 

no hypothesis whatever is there sufficient substantial evidence to support’ ” the jury’s 

verdict.’ ” (People v. Penunuri (2018) 5 Cal.5th 126, 142 (Penunuri), italics added.)

“Every person who enters any house . . . with intent to commit grand or petit

larceny or any felony is guilty of burglary.” (§ 459.) Thus, the “elements of first degree 

burglary in California are (1) entry into a structure currently being used for dwelling 
10

purposes and (2) with the intent to commit a theft or a felony.” (People v. Sample (2011) 

200 Cal.App.4th 1253, 1261 (Sample), citing §§ 459, 460 & People v. Anderson (2009) 

47 Cal.4th 92, 101.) “[P]enetration into the area behind a window screen amounts to an 

entry of a building within the meaning of the burglary statute even when the window 

itself is closed and is not penetrated.” (People v. Valencia (2002) 28 Cal.4th 1, 13, fn. 

omitted (Valencia), disapproved on another ground in People v. Yarbrough (2012) 

54 Cal.4th 889, 894.)

Here, at approximately 2:00 a.m., S.F. took her dog outside in her backyard. She 

noticed nothing unusual. With regard to whether she observed the house’s windows at 

this time, she testified that everything appeared to be intact. “In other words, the screens 

were still on the windows. The windows were still closed.” According to S.F., “it would 

have been blatantly obvious if they weren’t” intact. 

Approximately four and a half hours later, S.F.’s dog woke her up. S.F. heard 

someone manipulating the iron security door at the front of the house. She looked out the 

peephole and saw defendant on her porch “going back and forth, looking in the 

windows.” Defendant then broke through the wooden gate to the side and went into the 

backyard. S.F. called 911. 

Over much of the next nine minutes, S.F. observed defendant moving in and 

around the casita and from window to window of the main house trying to get in. S.F. 

narrated some of what she saw for the 911 operator.

Anxious and growing impatient waiting for police to arrive, at some point, S.F. 

abandoned the master bedroom window, where she had been watching defendant in the 

backyard, and went to the front of the house to see if police had arrived. At the latest, by 

five minutes 17 seconds into her 911 call, S.F. was at the front of the house. It was not 

until seven minutes into the 911 call, at least one minute 43 seconds after she left the 

master bedroom window to go to the front of the house, that S.F. returned and, shocked, 

found defendant on the other side of her kitchen window. 
11

While S.F. did not actually see defendant remove any screens, she could see that 

the screen had been removed from the kitchen window. She could also see him sliding 

the window on the garage entry door, which he could not have done unless at least part of 

that screen had been removed. 

Defendant continued “going back and forth, trying to find some way to enter.” 

S.F. observed defendant trying to get into the house through at least three windows. 

S.F. never saw anyone else with defendant. Defendant was alone. 

After police arrived and arrested defendant, S.F. found a jagged-edged, woodenhandled knife on the ground. According to Officer Halverson, the sheetrock knife was in 

the location where he first saw defendant. The knife had not been there when S.F. took 

her dog out several hours earlier. S.F. testified that, as far as she knew, the knife did not 

belong to her. S.F.’s landlord did not keep any knives or saws in storage in the casita. 

Halverson and S.F. found a window screen that had been removed. The screen 

had been bent to be removed from the kitchen window. After police left, S.F. found 

another piece of screen that had been cut from the window on the garage entry door. 

The foregoing is substantial evidence sufficient to support the jury’s verdict. It 

establishes that defendant was attempting to enter S.F.’s house over approximately 11 

minutes, representing the time from when S.F. was awakened to when police arrived.

Taking the elements in reverse order, the jurors could reasonably infer defendant’s 

“intent to commit a theft or a felony” (Sample, supra, 200 Cal.App.4th at p. 1261) from 

the foregoing circumstances of defendant persistently trying to enter into the occupied

house over the course of 11 minutes (see Bloom, supra, 48 Cal.3d at p. 1208 [“Evidence 

of a defendant’s state of mind is almost inevitably circumstantial, but circumstantial 

evidence is as sufficient as direct evidence to support a conviction”]). By even greater

force of reason, defendant’s actions in taking items from the bathroom of the casita 

demonstrated that intent.
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As for entry into the structure, as stated ante, “penetration into the area behind a 

window screen amounts to an entry of a building within the meaning of the burglary 

statute even when the window itself is closed and is not penetrated.” (Valencia, supra, 

28 Cal.4th at p. 13, fn. omitted.) Further distilling the evidence on this point, according 

to S.F., everything was normal and the windows and screens were intact as of 2:00 a.m. 

Four and a half hours later, defendant was attempting to enter the house through several 

windows. S.F. did not see him cut or remove the screens, but she saw him attempt to 

move the windows. Following defendant’s apprehension, S.F. and Halverson found the 

screen from the kitchen window defendant was attempting to enter, which had been bent 

to be removed. S.F. later found a part of the screen which had been cut away from the 

window on the garage entry door, where defendant had also been trying to enter. S.F. 

found a sheetrock knife in the area where, according to Halverson, he first saw defendant. 

The foregoing was more than substantial evidence from which the jurors could 

reasonably infer defendant cut and removed screens to enter the house.

Defendant asserts that, with S.F. focused on defendant “for almost the entirety of 

the incident, it is unreasonable that she missed [defendant] cutting and discarding the 

screen behind the casita all while using the knife that was found in her backyard.” This 

mischaracterizes the evidence. S.F. went to the front of the house as defendant was in the 

area of the casita and in her backyard. At five minutes 17 seconds into the 911 call, S.F. 

reported: “Yeah, I’m not watching him in the back of the house anymore, I’m at the front 

of my house.” She did not return to the kitchen window, and see defendant on the other 

side of it, until one minute 43 seconds later, 7:00 minutes into the 911 call. This was 

ample time for defendant to remove one screen and cut another.

Defendant also maintains that S.F. “memorialized everything she witnessed to the 

911 operator while [defendant] was in her backyard.” This, too, mischaracterizes the 

evidence. There were long pauses on the call, during which S.F. was not narrating 
13

whatever she was witnessing. Additionally, it is implausible to suggest that she conveyed 

to the 911 operator literally everything she observed.

In both his legal sufficiency argument and his jury instruction argument (see part 

II, post), defendant makes a point of characterizing the evidence that he cut or removed 

the screens as circumstantial, seeming to suggest its circumstantial quality renders it 

insufficient. The evidence he cut and removed the screens was indeed circumstantial; 

S.F. did not personally observe defendant cutting or removing the screens. However, 

with regard to our review for substantial evidence, “[t]he same standard of review applies 

to cases in which the prosecution relies mainly on circumstantial evidence . . . .” (Maury, 

supra, 30 Cal.4th at p. 396.)

We disagree with defendant’s contention that the evidence before the jury was 

only sufficient to raise a suspicion it was defendant who removed screens. (See generally 

People v. Draper (1945) 69 Cal.App.2d 781, 786 [“evidence that merely raises suspicion, 

no matter how strong, of the guilt of a person charged with a crime is not sufficient to 

sustain a verdict and judgment against him”].) Viewing the record in a light most 

favorable to the judgment, as we must, we conclude that the evidence marshalled ante

was more than sufficient to permit the jurors to infer defendant removed the screens. 

(See Jennings, supra, 50 Cal.4th at pp. 638-639.)

Based on the trial evidence, defendant’s somewhat fanciful contention that a third 

party must have been in S.F.’s backyard between 2:00 and 6:30, cut and removed the 

screens, and departed, undetected by S.F. or her dog, is neither plausible nor supported by 

any evidence in the record. In asserting “the evidence also supports a strong possibility 

that another person cut into the screen between the hours of 2:00 a.m. and the time [S.F.] 

saw [defendant] in her backyard,” defendant cites to one page of the trial transcript. 

However, of relevance on that page, S.F. only testified that the kitchen window screen 

must “have been removed by the defendant that morning, because it was not like that 

when I took the dog out earlier,” and that the screen was removed “[s]ometime after 
14

approximately 2:00 a.m.” This does not constitute evidence “support[ing] a strong 

possibility that” a third party removed the screen.

The trial court instructed the jury with CALCRIM No. 224 as follows: “Before 

you may rely on circumstantial evidence to conclude that a fact necessary to find the 

defendant guilty has been proved, you must be convinced that the People have proved 

each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you 

may rely on circumstantial evidence to find the defendant guilty, you must be convinced 

that the only reasonable conclusion supported by the circumstantial evidence is that the 

defendant is guilty. If you can draw two or more reasonable conclusions from the 

circumstantial evidence, and one of those reasonable conclusions points to innocence and 

another to guilt, you must accept the one that points to innocence. However, when 

considering circumstantial evidence, you must accept only reasonable conclusions and 

reject any that are unreasonable.” Defense counsel emphasized this instruction in his 

closing argument. “The jury is presumed to have followed the trial court’s instructions 

in the absence of any indication it was unwilling or unable to do so.” (People v. Letner 

and Tobin (2010) 50 Cal.4th 99, 196.)

The jury necessarily determined defendant removed the screens and that this was 

the only reasonable conclusion to be drawn from the circumstantial evidence. On appeal, 

“[w]e neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] 

We presume in support of the judgment the existence of every fact the jury reasonably 

could deduce from the evidence. [Citation.] If the circumstances reasonably justify the 

findings made by the trier of fact, reversal of the judgment is not warranted simply 

because the circumstances might also reasonably be reconciled with a contrary finding.” 

(Jennings, supra, 50 Cal.4th at pp. 638-639.)

Based on the evidence before the jury, we cannot say “ ‘ “ ‘that upon no 

hypothesis whatever is there sufficient substantial evidence to support’ ” the jury’s 

verdict.’ ” (Penunuri, supra, 5 Cal.5th at p. 142, italics added.)
15

II

Failure to Instruct on Lesser Included Offense of Attempted Residential Burglary

In the alternative to his first argument, defendant asserts the trial court erred in 

failing to instruct, sua sponte, on the lesser included offense of attempted residential 

burglary. Defendant asserts that, had he not removed the screen, “his offense would have 

constituted only attempted residential burglary because he never entered” the premises. 

He reprises his contention that the evidence he removed the screens was “wholly 

circumstantial.” Defendant asserts the instruction on the lesser included offense of 

attempt should have been given sua sponte notwithstanding the fact that defense counsel 

stated he was not asking that the jury be instructed on the lesser included offense. 

Before jury trial commenced, the trial court asked the attorneys, “Is anybody going 

to ask for a lesser, or is this all or nothing?” The prosecutor responded, “I am not asking 

for a lesser, but there may be a need for an attempt, depending on how the evidence 

comes out.” Defense counsel stated, “I’m not going to make the request. I think it 

depends on how the evidence comes out, but at this time I think it is more of an all-ornothing type case.” At the jury instruction conference following the close of all evidence, 

defense counsel again confirmed he was “not asking for a lesser.” 

“ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial 

court must instruct on the general principles of law relevant to the issues raised by the 

evidence. [Citations.] The general principles of law governing the case are those 

principles closely and openly connected with the facts before the court, and which are 

necessary for the jury’s understanding of the case.” [Citation.] That obligation has been 

held to include giving instructions on lesser included offenses when the evidence raises a 

question as to whether all of the elements of the charged offense were present [citation], 

but not when there is no evidence that the offense was less than that charged. [Citations.] 

The obligation to instruct on lesser included offenses exists even when as a matter of trial 
16

tactics a defendant not only fails to request the instruction but expressly objects to its 

being given. [Citations.] Just as the People have no legitimate interest in obtaining a 

conviction of a greater offense than that established by the evidence, a defendant has no 

right to an acquittal when that evidence is sufficient to establish a lesser included 

offense.’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154-155 (Breverman).)

The trial court is required to instruct on a lesser included offense “whenever 

evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to 

merit consideration’ by the jury.” (Breverman, supra, 19 Cal.4th at p. 162.) However, 

the court is not required to instruct on theories that are not supported by such substantial 

evidence. (Ibid.) “[T]he existence of ‘any evidence, no matter how weak’ will not justify 

instructions on a lesser included offense . . . .” (Ibid.) “ ‘ “Substantial evidence” in this 

context is “ ‘evidence from which a jury composed of reasonable [persons] could . . . 

conclude[]’ ” that the lesser offense, but not the greater, was committed.’ ” (People v. 

Romero (2008) 44 Cal.4th 386, 403 (Romero), quoting Breverman, at p. 162.)

“An attempt to commit a crime consists of two elements: a specific intent to 

commit the crime, and a direct but ineffectual act done toward its commission.” (§ 21a.)

We disagree with defendant’s contention that substantial evidence supported the 

conclusion that someone else cut and removed the screens and that the instruction on 

attempt was therefore required. Circumstantial evidence supported the conclusion that 

defendant cut and removed the screens. The screens were intact at 2:00 a.m. Defendant 

attempted to break into S.F.’s house at 6:30 a.m. He attempted to open the windows 

where screens were ultimately found to be missing. A jagged sheetrock knife was found 

where police encountered defendant. No one else was seen in the backyard that morning. 

Conversely, we find no evidence in the record whatsoever to support the premise 

that the screens were already removed before defendant’s arrival at S.F.’s house. On this 

record, such a conclusion would amount to pure speculation.
17

Defendant insists there was “plenty of evidence that [he] took advantage of the 

screen being already cut out of the window.” However, he does not identify any such

evidence, except that defendant cites to one page of the reporter’s transcript to support his

contention. That page contains S.F.’s testimony to the effect that she “didn’t actually see 

him cut this screen off, but it became evident,” she “didn’t see him cut it. I saw him open 

the window,” and related testimony. What does not appear on this page, however, is 

evidence supporting the premise that someone had previously removed the screens and 

that defendant took advantage of that fact. The fact that S.F. did not see defendant cut 

and remove the screens does not amount to evidence that someone else did so.

Otherwise, defendant does not specifically identify any evidence constituting substantial 

evidence that an unknown third party went into S.F.’s backyard between 2:00 a.m. and 

6:30 a.m., cut and removed two screens, did so undetected by S.F. and her dog, and then 

simply left.

Defendant also maintains that, “just as [the Attorney General] argues that it was 

unreasonable that someone cut through the screen of the window between a four hour 

window undetected by [S.F.] and her dog in the middle of the night, it was just as 

unreasonable that in under two minutes, [defendant] cut the screen and discarded part of 

it near the casita, all of which [S.F.] failed to see while capturing the events on the 911 

call.” (Fn. omitted.) We do not agree. The evidence establishes a period during the 911 

call of at least one minute 43 seconds during which S.F. was at the front of the house and 

not watching defendant. This was more than sufficient time for defendant, the only 

person seen in S.F.’s backyard that morning, to cut and remove two screens and discard 

them without being noticed. Moreover, while defendant asserts there “was clearly room 

for reasonable doubt as to whether it was [defendant] who cut through the screen,” that is 

not the question to be addressed on defendant’s failure-to-instruct claim. The question is 

whether sufficient substantial evidence supported the instruction defendant asserts should 

have been given. We have concluded it did not.
18

Defendant also raises the fact that, in closing, defense counsel argued that S.F. was 

lying in her testimony. However, on appeal, “[w]e neither reweigh the evidence nor 

reevaluate the credibility of witnesses. [Citation.] We presume in support of the 

judgment the existence of every fact the jury reasonably could deduce from the 

evidence.” (Jennings, supra, 50 Cal.4th at pp. 638-639.)

In short, we find no evidentiary support, let alone substantial evidence, for 

defendant’s theory that someone else cut and removed the screens and that defendant

merely attempted to enter S.F.’s house where those screens had already been removed. 

The trial court was not required to instruct on theories, such as defendant’s, that did not 

find substantial support in the evidence. (Breverman, supra, 19 Cal.4th at p. 162.) 

Accordingly, the trial court did not err in failing to instruct the jury, sua sponte, on the 

lesser included offense of attempted residential burglary.

III

Fines and Fees

At sentencing, the trial court imposed a $1,200 restitution fine (§ 1202.4, subd. 

(b)) and a $1,200 suspended parole revocation fine (§ 1202.45), a $40 court operations 

assessment (§ 1465.8), a $30 conviction assessment (Gov. Code, § 70373), and a $10 

Crime Prevention Program fine (§ 1202.5), and ordered victim restitution in an amount to 

be determined. Finding defendant indigent, the court waived the main jail booking fee 

and the main jail classification fee. The court also imposed a state surcharge assessment 

pursuant to section 1465.7, subdivision (a).

Relying on Dueñas, supra, 30 Cal.App.5th 1175, defendant asserts the trial court 

violated his due process rights by imposing fines and fees without conducting a hearing 

to determine his ability to pay. Defendant asserts we must remand the matter for the trial 

court to conduct an ability-to-pay hearing. Defendant also asserts the imposition of fines 

and fees absent an ability-to-pay determination amounts to the imposition of excessive 
19

fines in violation of the Eighth Amendment and article I, section 17, of the California 

Constitution. 

The Court of Appeal, Second Appellate District, Division Seven, filed Dueñas on 

January 8, 2019. The trial court sentenced defendant here approximately one month 

earlier. Thus, defendant at sentencing could not have objected pursuant to Dueñas. 

However, the Attorney General asserts defendant forfeited his claims because he never 

raised any due process objection or inability to pay claim in the trial court. Defendant 

asserts his claims are cognizable on appeal notwithstanding the fact that he did not object 

at sentencing for a number of reasons we need not enumerate here. We need not decide 

the forfeiture issue because we hold that Dueñas was wrongly decided regarding the issue 

of hearings on the ability to pay fines and fees before they are ordered by the trial court.

Defendant’s claims hinge on the Dueñas analysis finding due process principles 

require an ability-to-pay hearing before imposing fines and fees. We are not persuaded 

this analysis is correct. Our Supreme Court is now poised to resolve this question, having 

granted review in People v. Kopp (2019) 38 Cal.App.5th 47 (Kopp), review granted 

November 13, 2019, S257844, which agreed with the court’s conclusion in Dueñas that 

due process requires the trial court to conduct an ability-to-pay hearing and ascertain a 

defendant’s ability to pay before it imposes court facilities and court operations 

assessments under section 1465.8 and Government Code section 70373, but not 

restitution fines under section 1202.4. (Kopp, at pp. 95-96, review granted.)

In the meantime, we join several other courts in concluding that the principles of 

due process do not require determination of a defendant’s present ability to pay before 

imposing the fines and fees at issue in Dueñas and in this proceeding. (People v. Cota

(2020) 45 Cal.App.5th 786, 794-795; People v. Kingston (2019) 41 Cal.App.5th 272, 

279; People v. Hicks (2019) 40 Cal.App.5th 320, 329, review granted Nov. 26, 2019, 

S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069 (Aviles); People v. Caceres

(2019) 39 Cal.App.5th 917, 928.) To the extent defendant properly raises it, we conclude 
20

his claim that his right to equal protection was violated by the imposition of fines, fees, 

and assessments without conducting an ability-to-pay determination also lacks merit. 

(Aviles, at pp. 1068-1069.)

Nor has defendant persuaded us that imposition of the fines, fees, and assessments 

violated his Eighth Amendment right against excessive fines as that right was recently 

discussed by the United States Supreme Court in Timbs v. Indiana (2019) __ U.S. __ 

[203 L.Ed.2d 11], on which defendant relies. Defendant has cited us to no authority, nor 

have we discovered any on our own, to establish the fines, fees, and assessments imposed 

in this case are excessive based on “ ‘(1) the defendant’s culpability; (2) the relationship 

between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) 

the defendant’s ability to pay.’ ” (Aviles, supra, 39 Cal.App.5th at p. 1070, quoting 

People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728; see 

United States v. Bajakajian (1998) 524 U.S. 321, 334 [141 L.Ed.2d 314].)

DISPOSITION

The judgment is affirmed. 

 

HULL, Acting P. J.

We concur:

 

HOCH, J.

 

KRAUSE, J.