Filed 4/6/21 P. v. Aguil CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANCISCO RUFINO AGUIL,

Defendant and Appellant.

F078612

(Super. Ct. No. BF168785A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Judith K. 

Dulcich, Judge.

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Caely E. 

Fallini, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

A jury convicted Francisco Rufino1 Aguil (defendant) of committing sex crimes 

against an underage victim. This appeal concerns the admissibility of a recorded 

confession. Defendant alleges a violation of his constitutional rights under Miranda v. 

Arizona (1966) 384 U.S. 436 (Miranda) and further contends his statements were 

coerced. We conclude the confession was voluntarily given in response to noncustodial 

interrogation.

Defendant makes alternative claims of sentencing error based on the imposition of 

certain fines, fees, and assessments. The People make a partial concession, submitting 

the matter should be remanded for the trial court to identify the statutory basis for a total 

of $1,860 in assessments. We accept the concession and agree with the proposed 

remedy. The judgment is otherwise affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant and the victim are blood relatives. In May 2017, the victim (then age 

14) told her mother that defendant began molesting her when she was 12 years old and he 

was between the ages of 18 and 19. The abuse continued past her 13th birthday, 

progressing to acts of oral sex and intercourse. The allegations were reported to the

police on May 24, 2017.

On June 7, 2017, the police recorded a pretextual phone call made by the victim to 

defendant for the purpose of eliciting incriminating statements. The conversation was 

brief, and defendant denied having any memory of the events about which he was asked. 

On June 21, 2017, the police recorded another “pretext call” initiated by the victim’s 

mother. The mother’s approach was very aggressive and accusatory. Defendant told her 

the victim had “come on to [him],” i.e., tried to initiate physical intimacy, but he claimed 

to have rejected her advances. After approximately 45 minutes of repeating such denials, 

defendant finally admitted the allegations were true.

1

In the charging documents and abstract of judgment, defendant’s middle name is spelled 

“Rugino.” But from his birth certificate, located in the record, his middle name is actually 

“Rufino.” We will use that spelling and direct the trial court to correct the abstract.
3.

On June 22, 2017, two police detectives made an unscheduled visit to the home of 

defendant’s grandmother, where defendant was residing. The grandmother invited the 

detectives inside, and defendant agreed to speak with them. They activated an audio 

recording device prior to entering the home. After approximately 10 minutes of 

questioning, defendant incriminated himself. He was placed under arrest a few minutes 

later.

Defendant was charged with committing a lewd act upon a child under the age of 

14 (Pen. Code, § 288, subd. (a)) and continuous sexual abuse of a child under the age of 

14 (id., § 288.5, subd. (a); all undesignated statutory references are to the Penal Code). 

The case went to trial in September 2018, at which time defendant unsuccessfully moved 

to suppress evidence of his conversation with the detectives. The claims on appeal do not 

require a summary of the trial evidence.

Defendant was found guilty as charged. In December 2018, the trial court 

imposed a 14-year prison sentence. The notice of appeal was filed on the date of 

sentencing.

DISCUSSION

I. Admissibility of Defendant’s Interview Statements

A. Additional Background

The hearing on defendant’s motion to suppress included testimony by defendant’s 

grandmother and Detective Rick Wimbish of the Bakersfield Police Department. The 

trial court also listened to an audio recording of the interview. The following summary is 

derived from the witness testimony and our independent review of the recording.

On June 22, 2017, the day after the second pretext call, Detective Wimbish and his 

partner went to defendant’s residence. They pulled up to the house in an unmarked car, 

arriving shortly before 11:00 a.m. The detectives were not in uniform but wore 

professional attire, i.e., “dress slacks, dress shirt, and a tie.” Detective Wimbish wore a 

lanyard displaying his police identification and had a holstered firearm at his hip.
4.

The detectives knocked on the front door and proceeded to converse with the 

primary occupant, defendant’s grandmother. Detective Wimbish described the initial 

encounter: “[S]he said that [defendant] was sleeping, and she was going to go wake him 

up so he could speak with us. And then she came back to the door, and we spoke a little 

bit longer about—small talk until [defendant] arrived at the door.”

Detective Wimbish’s partner activated the recording device during the so-called 

“small talk.” It is evident from the recording that defendant’s grandmother knew why the 

detectives were there and was aware of the victim’s allegations. She stated, in reference 

to the victim’s mother, “I thought he [defendant] should have told her, ‘... I am not 

coming to your house no more ’cause, uh, [the victim] is [following] me around and 

touching me and won’t leave me alone.’ And so maybe that way she [the victim’s 

mother] would have believed him. But ... he was in special class in school for—he’s not 

that bright. Sometimes I tell him, ‘Give me the white clothes to go wash ’em.’ He give 

me [the] color one. I said that’s [color]—that’s not white.”2

Detective Wimbish interrupted the grandmother to ask again if defendant was 

home. We quote the salient parts of the recording (brackets indicate discrepancies 

between what can be heard on the recording and what appears in a written transcript of 

the same):3

“DET. WIMBISH: Is Francisco ... here?

2

In arguing the motion to suppress, the defense emphasized the fact defendant had been 

in special education classes in high school. However, the testimony of school personnel with 

knowledge of his education records established defendant had an IQ score of 93, which is within 

the range of “average” intelligence. Despite a learning disability in the areas of reading and 

writing, he graduated from Delano High School at the age of 18.

3The trial court noted there were unspecified “disagreements about the transcript.” For 

our purposes, the only material difference is the fact the grandmother can clearly be heard 

suggesting the detectives speak to defendant in a “bedroom.” Her statement is inaccurately and 

incompletely transcribed as “You say you got a room.” Next, someone says, “That’s fine.” The 

transcript attributes the statement to Detective Wimbish’s partner, but it sounds like defendant’s 

voice.
5.

“[GRANDMOTHER]: Uh, that’s him [right] there. Want to go outside 

or do you want to come inside?

“DET. WIMBISH: It doesn’t matter ... [—]

“[GRANDMOTHER]: Oh, come on in then.

“DET. WIMBISH: [—] He can come out or whatever [—]

“[GRANDMOTHER]: [Want in or out?]

“DET. WIMBISH: [—] Whatever’s more convenient for you. Is there 

a place we can talk privately in here?

“[DEFENDANT]: [[Unintelligible]]

“[GRANDMOTHER]: You [can go in] a room, [bedroom].

“[UNKNOWN]: That’s fine.

“DET. WIMBISH: [Okay, yeah, if that works for you.] [W]e 

appreciate it.”

The detectives followed defendant to his room. Defendant said, “sorry,”

apparently in reference to the state of the bedroom. The conversation continued:

“DET. WIMBISH: ... That’s fine. Hopefully, we won’t take too 

awfully long. Uh, there’s my card. I’m Detective Wimbish. I’m with the 

Bakersfield Police Department. This is Detective Tipton and I might just 

sit right here if that’s okay with you?

“[DEFENDANT]: Sure.

“DET. WIMBISH: Okay. And you’re Francisco?

“[DEFENDANT]: Yes.

“DET. WIMBISH: Is it okay if we sit here and talk for a little bit 

about some stuff?

“[DEFENDANT]: Yeah.

“DET. WIMBISH: Okay. Appreciate you’re inviting us—inviting us 

in ....”

Detective Wimbish asked for defendant’s full name, date of birth, and other 

identifying information, which defendant provided. Defendant also produced his Social 
6.

Security card. After reviewing the card, Detective Wimbish began what the parties agree 

was an interrogation. The interrogation starts at approximately six minutes and 10 

seconds into the recording:

“DET. WIMBISH: ... I’m sure you know why we’re here.

“[DEFENDANT]: Kind of ....

“DET. WIMBISH: What do you know about why we’re here today?

“[DEFENDANT]: [The victim’s mother and the victim] and 

everything. Yeah.

“DET. WIMBISH: Okay. Can you tell me some more about that?”

Defendant spent approximately seven minutes providing narrative statements 

about his family background and interactions with the victim during the relevant time 

period. His statements were apparently intended to be exculpatory. The victim was 

portrayed as having behaved in vaguely inappropriate ways toward him, culminating in 

her attempt to “blackmail” defendant by threatening to falsely accuse him of molestation 

unless he complied with her various demands.

Detective Wimbish listened passively, sometimes asking for clarification about 

locations and the identities of family members. He also asked whether the victim had 

ever “flirted” with defendant. Defendant answered, “Kind of yeah. Like there’s times 

but like I would just ignore it and like ’cause I didn’t—I’m not tryin’ to get in that kind of 

situation ’specially like with my family ....”

Defendant’s involuntariness claim is based on what occurred after he provided the 

exculpatory narratives, beginning at approximately 13 minutes and 25 seconds into the 

recording:

“DET. WIMBISH: Okay. Well you obviously know because we’re 

here that they’ve made a police report.

“[DEFENDANT]: Yeah.
7.

“DET. WIMBISH: Uh, so I’ve sat and talked with [the victim] and—

and she’s basically told [me] what happened and, uh, she’s basically told 

me that—that you forced [this] sex on her. So, my—my—my—one of my 

questions is you know was it you actually forcing her to do this or was it 

mutual? Was it consensual on both of your parts?

“[DEFENDANT]: I wanna say we’ve never had sex, but I never 

forced her to do nothing.

“DET. WIMBISH: Mm-hm.

“[DEFENDANT]: At all.

“DET. WIMBISH: So, the sex you [guys] had that was consensual 

then?

“[DEFENDANT]: We never had sex.

“DET. WIMBISH: Okay well I didn’t just get this report this morning 

or I didn’t [even] just get it yesterday. I got it about three to four weeks 

ago. So, I’ve been workin’ on this for quite a while. Okay? And I’ve also 

talked to your Uncle Robert. Okay? And he told me about the 

conversation that you guys had. Okay? And that’s all already documented 

in the report weeks ago the conversation you had talkin’ to him about 

having sex with [the victim]. Okay? So, again, one of my questions is 

because I’m trying to determine if this was consensual sex you had with 

[the victim] or if it was—or if you held her down and made her do it. I 

[mean you’re saying] she started flirting with you so I’m tryin’ to determine 

if it was consensual sex you had with [the victim] or if you forced her to do 

it.

“[DEFENDANT]: It was consensual.

“DET. WIMBISH: It was consensual[?] And I understand that the sex 

you had with [the victim] was on multiple occasions[.] And she ...

apparently has [some] clothes left from one of those times that there might 

be some DNA on. Uh, [we’re] gonna find your DNA on her clothes you 

think?

“[DEFENDANT]: I don’t know.

“DET. WIMBISH: Okay. So, she also says that you used a condom 

every time you guys had sex except for maybe once she wasn’t sure. Do 

you think you used a condom every time you had sex with her? No? Did 

you use condoms sometimes with her? Yeah. Uh, and then she said during 
8.

the oral sex you—you never used a condom. Is that correct? You’re 

shaking your head yes?

“[DEFENDANT]: Yes sir.

“DET. WIMBISH: Okay. How many times do you think you had oral 

sex with her?

“[DEFENDANT]: Every time I was asleep on the couch and she 

would come and bother me.

“DET. WIMBISH: Okay. [Talking like] five ten fifteen twenty times 

you think or less than twenty?

“[DEFENDANT]: Less than 10.

“DET. WIMBISH: Less than 10. And then how ’bout regular sexual 

intercourse. How many times you think that occurred?

“[DEFENDANT]: [As many times as] she bothered me in the middle 

of the night.

“DET. WIMBISH: Less than 20?

“[DEFENDANT]: Less than 10.”

The interrogation continued for another four minutes before defendant was placed 

under arrest.

The trial court found, in pertinent part: “[I]t [was] an interrogation; however, I 

don’t think there [are] any facts that support he was in custody. ... It appeared to be 

clearly consensual first by the grandmother and then by defendant.” Defendant’s 

statements were also found to have been voluntarily given. Accordingly, the motion to 

suppress was denied.

B. Miranda Claim

If a defendant is subjected to custodial interrogation without being advised 

pursuant to Miranda, statements made during the interrogation cannot be used in the

prosecution’s case-in-chief. (People v. Lessie (2010) 47 Cal.4th 1152, 1162; People v. 

Thornton (2007) 41 Cal.4th 391, 432.) “Under Miranda, police officers must warn a 

suspect before questioning that he or she has the right to remain silent and the right to the 
9.

presence of an attorney.” (People v. Case (2018) 5 Cal.5th 1, 20.) “In reviewing 

Miranda issues on appeal, we accept the trial court’s resolution of disputed facts and 

inferences as well as its evaluations of credibility if substantially supported, but 

independently determine from undisputed facts and facts found by the trial court whether 

the challenged statement was legally obtained.” (People v. Smith (2007) 40 Cal.4th 483, 

502.) “Where, as was the case here, an interview is recorded, the facts surrounding the 

admission or confession are undisputed and we may apply independent review.” (People 

v. Duff (2014) 58 Cal.4th 527, 551.)

In “Miranda case law, ‘custody’ is a term of art that specifies circumstances that 

are thought generally to present a serious danger of coercion.” (Howes v. Fields (2012) 

565 U.S. 499, 508–509.) “Interrogation consists of express questioning or of words or 

actions on the part of police officers that they should have known were reasonably likely 

to elicit an incriminating response.” (People v. Johnson (1992) 3 Cal.4th 1183, 1224.) 

The fact defendant was interrogated is not in dispute. However, in the absence of 

custodial interrogation “Miranda simply does not come into play.” (People v. Mickey

(1991) 54 Cal.3d 612, 648.)

“The key question is whether, under all of the objective circumstances, a 

reasonable person in the suspect’s position would have felt free to terminate the 

interrogation. [Citations.] But even if a person’s freedom of movement has been 

curtailed, an ‘additional question’ arises: ‘whether the relevant environment presents the 

same inherently coercive pressures as the type of station house questioning at issue in 

Miranda.’ [Citations].” (People v. Caro (2019) 7 Cal.5th 463, 491.) The Miranda case 

involved “incommunicado interrogation of individuals in a police-dominated 

atmosphere” where the suspects were “cut off from the outside world.” (Miranda, supra, 

384 U.S. at p. 445.)

“Relevant factors include the location of the questioning [citation], its duration 

[citation], statements made during the interview [citations], the presence or absence of 
10.

physical restraints during the questioning [citation], and the release of the interviewee at 

the end of the questioning [citation].” (Howes v. Fields, supra, 565 U.S. at p. 509.) 

“Additional factors are whether the suspect agreed to the interview and was informed he 

or she could terminate the questioning, whether police informed the person he or she was 

considered a witness or suspect, whether there were restrictions on the suspect’s freedom 

of movement during the interview, and whether police officers dominated and controlled 

the interrogation or were ‘aggressive, confrontational, and/or accusatory.’” (People v. 

Pilster (2006) 138 Cal.App.4th 1395, 1403–1404.)

There are factors weighing in favor of both defendant and the People. On the one 

hand, for example, Detective Wimbish made clear defendant was the subject of a 

criminal investigation and confronted him with evidence of his guilt. On the other hand, 

the questioning was brief and nonaggressive. Defendant was interrogated for less than 15 

minutes, beginning when he was asked “What do you know about why we’re here 

today?” and ending when he was told to follow the detectives to their car.

The location factor cuts both ways. In contrast to the “inherently coercive 

atmosphere” of a police station (People v. Montano (1991) 226 Cal.App.3d 914, 939; see 

Berkemer v. McCarty (1984) 468 U.S. 420, 438), a suspect “is more likely to be 

‘“confident, indignant, or recalcitrant”’ [citation] and ‘“more keenly aware of his rights 

and more reluctant to tell of his indiscretions or criminal behavior within the walls of his 

home.”’” (People v. Saldana (2018) 19 Cal.App.5th 432, 456, quoting Miranda, supra, 

384 U.S. at pp. 449–450.) If family members are nearby, “their presence [can provide] 

moral support.” (Miranda, at p. 450.) However, questioning defendant in his bedroom 

arguably restricted his freedom of movement. Defendant emphasizes this point, but it 

was his grandmother who suggested they go into the bedroom. The detectives had said, 

“[H]e can come out[side] or ... whatever’s more convenient for you.”

In People v. Linton (2013) 56 Cal.4th 1146, the questioning of a murder suspect 

inside of his home was determined to be noncustodial interrogation. (Id. at pp. 1167–
11.

1168.) After a detective and a deputy district attorney had asked to speak with him, the 

appellant “invited them into his house, taking them into his bedroom.” (Id. at p. 1167.) 

The appellant was not restrained, and there was “no evidence that they blocked [his] exit 

from the bedroom.” (Ibid.) The appellant was questioned “for about a half-hour,” and 

“[t]he nature of their questioning” was neither “aggressive [nor] particularly 

confrontational.” (Ibid.)

Few circumstances distinguish the interrogation in this case from the one in 

Linton. Defendant’s interview was shorter, which does not help his argument. The 

Linton interrogators carried no visible firearms, which is a detail weighing in defendant’s 

favor. (People v. Linton, supra, 56 Cal.4th at p. 1167.) Most significantly, the Linton

appellant was repeatedly told he was not under arrest and did not have to answer any 

questions. (Ibid.) Such assurances were not provided to defendant, but the general 

message was at least partially conveyed (albeit subtly) when Detective Wimbish asked, 

“Is it okay if we sit here and talk for a little bit about some stuff?” Defendant responded 

affirmatively, and the detective said he appreciated the fact defendant had invited them 

inside.

The audio recording tips the scale in favor of the People. It shows Detective 

Wimbish was calm and polite, and that he deferred to defendant and his grandmother 

with respect to where the interview took place. As observed by the trial court, the 

interactions come across as entirely consensual. After spending the first half of the 

interview listening to defendant’s narrative statements, the detective matter-of-factly 

disclosed what he had learned from the victim and her family. Defendant began to 

confess just a few moments later.

“‘[A]ccusatory questioning is more likely to communicate to a reasonable person 

in the position of the suspect[] that he is not free to leave’ than would general and neutral 

investigative questions. Thus, on the issue of custody, courts consider highly significant 

whether the questioning was brief, polite, and courteous or lengthy, aggressive, 
12.

confrontational, threatening, intimidating, and accusatory. [Citations].” (People v. 

Aguilera (1996) 51 Cal.App.4th 1151, 1164.) While not entirely free of accusations, 

Detective Wimbish’s conversation with defendant was brief, polite, courteous, and 

nonthreatening. Based on the totality of the circumstances, we conclude defendant’s 

confession was made in a noncustodial setting. As such, there was no Miranda violation.

C. Voluntariness Claim

Defendant further contends his statements were coerced. He makes three related 

arguments. Detective Wimbish is said to have exploited the circumstance of defendant 

being “a person of lower intelligence.” Because of his intellectual “deficiencies,”

defendant’s free will was allegedly overborne by “deceptive interrogation tactics.” He 

also claims there was an implied promise of leniency.

The People argue forfeiture. However, defendant raised the issue of voluntariness 

in a motion in limine and made several arguments regarding his intellect. The trial court 

ruled the evidence did not “give[] rise to a claim of involuntariness.” Assuming the claim 

was not forfeited, it fails on the merits.

“‘Both the state and federal Constitutions bar the prosecution from introducing a 

defendant’s involuntary confession into evidence at trial.’” (People v. Wall (2017) 3 

Cal.5th 1048, 1065.) It is the People’s burden to establish voluntariness by a 

preponderance of the evidence. (Id. at p. 1066.) The issue presents “a mixed question of 

law and fact that is nevertheless predominantly legal” and subject to de novo review. 

(People v. Mickey, supra, 54 Cal.3d at p. 649; accord, People v. Linton, supra, 56 Cal.4th 

at p. 1177.) “Our voluntariness determination rests on an ‘independent’ consideration of 

the entire record, including ‘“‘the characteristics of the accused and the details of the 

[encounter].’”’” (People v. Mendez (2019) 7 Cal.5th 680, 698.)

“A confession of a crime is not inadmissible merely because the accused was of 

subnormal intelligence, although subnormal intelligence is a factor that may be 

considered with others in determining voluntariness.” (In re Norman H. (1976) 64 
13.

Cal.App.3d 997, 1001; accord, People v. McWhorter (2009) 47 Cal.4th 318, 358.) 

Defendant was questioned two weeks prior to his 21st birthday. As discussed in footnote 

2, ante, defendant had an IQ score of 93, meaning he was/is a person of average 

intelligence. That is certainly how he comes across on the audio recording of the 

interrogation. The trial court was not persuaded by the lack of intelligence argument, and 

neither are we.

Next, defendant alleges Detective Wimbish “admitted that he told a series of lies, 

including that ‘Uncle Robert’ told him that [defendant] had talked about having sex with 

[the victim], and that he had potential DNA evidence.” The assertion is only partially 

correct. The detective did concede his remark about possible DNA evidence was a ruse. 

However, we agree with the People that he did not lie about his conversation with 

defendant’s uncle.

Detective Wimbish told defendant, “[I] talked to your Uncle Robert. Okay? And 

he told me about the conversation that you guys had.” Both statements were true. The 

detective then specified, “the conversation you had talkin’ to him about having sex with 

[the victim].” This statement is not disproven by the record. At the motion hearing, 

Detective Wimbish testified the uncle had told him defendant did not use the word “sex”

and did not say the victim’s name, but the uncle “stated that he believed they both knew 

what they were talking about.” The uncle claimed defendant had said “it” happened “a 

couple of times and that the last time it happened was last year.” Accordingly, during the 

interrogation, Detective Wimbish told defendant, “according to your Uncle Robert the 

last time that you told him was about a year ago.” Since defendant was necessarily aware 

of what he had told his uncle, he would have known if the detective was embellishing.

“‘Lies told by the police to a suspect under questioning can affect the 

voluntariness of an ensuing confession, but they are not per se sufficient to make it 

involuntary.’” (People v. Farnam (2002) 28 Cal.4th 107, 182.) “Deception does not 

undermine the voluntariness of a defendant’s statements to the authorities unless the 
14.

deception is ‘“‘of a type reasonably likely to procure an untrue statement.’”’ [Citations.] 

‘“The courts have prohibited only those psychological ploys which, under all the 

circumstances, are so coercive that they tend to produce a statement that is both 

involuntary and unreliable.”’” (People v. Williams (2010) 49 Cal.4th 405, 443.) For the 

reasons discussed, the statements about defendant’s uncle do not support the claim of 

involuntariness.

Defendant’s reliance on the DNA ruse, which actually originated in the pretext 

call between him and the victim’s mother,4is unavailing for two reasons. First, the 

deceptive nature of Detective Wimbish’s statement was not established until he was 

cross-examined at trial. “Our review, of course, is limited to the evidence before the 

court when it heard the motion.”

5

(People v. Hartsch (2010) 49 Cal.4th 472, 491.) 

Second, Detective Wimbish did not mention potential DNA evidence until after 

defendant had already admitted to having “consensual” sex with the victim. Therefore, 

even if the DNA ruse could be considered in this appeal, it would not change the result. 

(See People v. Maury (2003) 30 Cal.4th 342, 405 [“The statement and the inducement 

must be causally linked”]; People v. Chutan (1999) 72 Cal.App.4th 1276, 1280 [“Police 

officers are thus at liberty to utilize deceptive stratagems to trick a guilty person into 

confessing. The cases from California and federal courts validating such tactics are 

legion”].)

4The victim’s mother had told defendant, “You know, she still has the clothes that she 

wore when you guys had sex[.] [W]hat if I were to call the cops. Just to get them [tested] ... for 

a DNA or something.... [¶] ...[¶] You need to tell me the truth because I will [expletive] grab 

those clothes and [expletive] take it to the cops.”

5Defendant’s briefing seems to imply his trial counsel “renewed” the motion to suppress 

after the People rested their case. That did not happen. At most, defense counsel incorporated 

the arguments made in support of the motion into a trial objection interposed during direct 

examination of Detective Wimbush. But the defense never alleged any implied promises had 

been made and did not discuss the DNA remarks when arguing the suppression motion. In any 

event, the trial objection preceded the cross-examination testimony upon which defendant now 

relies.
15.

Finally, we consider the supposed promise of leniency. A confession motivated 

by a promise of leniency or some other benefit is inadmissible. (People v. Carr (1972) 8 

Cal.3d 287, 296.) “‘This rule raises two separate questions: was a promise of leniency 

either expressly made or implied, and if so, did that promise motivate the subject to 

speak?’” (People v. Tully (2012) 54 Cal.4th 952, 986.)

Defendant’s claim is based on Detective Wimbish’s focus on the issue of consent. 

In California, “a child under age 14 is legally incapable of consenting to sexual 

relations.” (People v. Soto (2011) 51 Cal.4th 229, 233.) Defendant argues the questions 

about whether his encounters with the victim were “consensual” implied he would not be 

prosecuted if he responded affirmatively. We disagree.

Although consent is not a defense to committing lewd acts upon a child, such 

crimes are punished more severely if they involve the use of force. A lewd act is 

ordinarily punishable “by imprisonment in the state prison for three, six, or eight years.”

(§ 288, subd. (a).) If the same act is committed by force, it is punishable “by 

imprisonment in the state prison for 5, 8, or 10 years.” (Id., subd. (b)(1).)

Detective Wimbish was not lying when he told defendant the victim had accused 

him of forcing her to participate in sexual activity. This was a permissible interrogation 

tactic. “‘Questioning may include exchanges of information, summaries of evidence, 

outline of theories of events, confrontation with contradictory facts, [and] even debate 

between police and suspect.’” (People v. Holloway (2004) 33 Cal.4th 96, 115.) The 

police may suggest “possible explanations of the events and offer[] defendant an 

opportunity to provide the details of the crime.” (People v. Carrington (2009) 47 Cal.4th 

145, 171.)

We conclude there were no implied promises of leniency. While the claim fails 

for this reason alone, defendant’s causation argument is also unconvincing. The first two 

times Detective Wimbish asked if the sex was consensual, defendant said they “never had 
16.

sex.” He confessed after learning Detective Wimbush had spoken to his uncle, which, as 

explained above, was a permissible interrogation technique.

II. Sentencing Issues

A. Additional Background

Defendant was sentenced to the middle term of 12 years for violating section 

288.5 and received a consecutive two-year term (one-third of the middle term) for 

violating section 288, subdivision (a). The trial court also imposed various financial 

obligations. At issue here is the imposition, for each conviction, of a $30 criminal 

conviction/court facilities assessment (Gov. Code, § 70373, subd. (a)(1)); a $40 court 

operations assessment (§ 1465.8, subd. (a)(1)); a $300 sex offender fine (§ 290.3); and a 

“penalty assessment” of $930 for reasons not specified on the record. The trial court 

imposed but stayed a $300 probation revocation restitution fine (§ 1202.45). Defendant 

was also ordered to pay a $300 restitution fine (§ 1202.4, subd. (b)(1).)

Defendant made no objections to the fines and assessments.

B. Failure to Identify Statutory Basis for Assessments

Case law holds “that penalty assessments must be (1) specified in the court’s oral 

pronouncement of judgment, and (2) specifically listed in the abstract of judgment.” 

(People v. Hamed (2013) 221 Cal.App.4th 928, 937, citing People v. High (2004) 119 

Cal.App.4th 1192, 1200–1201.) “If the abstract does not specify the amount of each fine, 

the Department of Corrections cannot fulfill its statutory duty to collect and forward 

deductions from prisoner wages to the appropriate agency. [Citation.] At a minimum, 

the inclusion of all fines and fees in the abstract may assist state and local agencies in 

their collection efforts.” (High, at p. 1200.)

Defendant claims, and the People concede, the trial court erred by failing to 

specify the statutory basis for the $930 in penalty assessments imposed for each 

conviction. Consequently, the required information is missing from the abstract of 

judgment. This is a “‘legal error[] at sentencing’ that can be reviewed on appeal 
17.

‘“regardless of whether an objection or argument was raised ....”’” (People v. Hartley

(2016) 248 Cal.App.4th 620, 637.)

The trial court could have satisfied the requirement by making “a shorthand 

reference in its oral pronouncement to ‘penalty assessments as set forth in the’ probation 

report.” (People v. Hamed, supra, 221 Cal.App.4th at p. 940.) No such references were 

made. Moreover, the trial court appears to have stricken (by interlineation) parts of the 

report wherein those calculations appear.6 We accept the People’s concession and will 

order a limited remand for the trial court to correct the error. (Accord, People v. Fromuth

(2016) 2 Cal.App.5th 91, 115.)

C. Dueñas Claim

Defendant separately alleges error based on People v. Dueñas (2019) 30 

Cal.App.5th 1157 (Dueñas), which holds “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 court facilities and court operations assessments under ... section 

1465.8 and Government Code section 70373.” (Id. at p. 1164.) Dueñas further holds that 

“although ... section 1202.4 bars consideration of a defendant’s ability to pay unless the 

judge is considering increasing the fee over the statutory minimum, the execution of any 

restitution fine imposed under this statute must be stayed unless and until the trial court 

holds an ability to pay hearing and concludes that the defendant has the present ability to 

pay the restitution fine.” (Ibid.)

This appeal was already pending when the Dueñas opinion was published. The 

People do not concede the claim. However, because the matter will be remanded for the 

limited purpose of addressing an issue involving assessments, they do not oppose giving 

defendant “the opportunity to request an ability to pay hearing on his fines and fees” on 

6The probation department arrived at $930 combining individual assessments of $300 

(§ 1464, subd. (a)(1)), $60 (§ 1465.7, subd. (a)), $150 (Gov. Code, § 70373, subd. (a)(1)), $210 

(id., § 76000, subd. (a)), $60 (id., § 76000.5, subd. (a)(1)), $30 (id., § 76104.6, subd. (a)(1)), and 

$120 (id., § 76104.7, subd. (a)).
18.

remand. (Italics added). We agree the sentencing court may entertain such a request if 

made upon remand.

The California Supreme Court will soon decide whether trial courts must consider 

a defendant’s ability to pay before imposing or executing fines, fees, and assessments; 

and if so, which party bears the burden of proof. (See People v. Kopp (2019) 38 

Cal.App.5th 47, 94–98, review granted Nov. 13, 2019, S257844.) However, this district 

has held that a defendant forfeits an “ability to pay challenge” by failing to object at the 

time of sentencing. (E.g., People v. Lowery (2020) 43 Cal.App.5th 1046, 1053–1054; 

People v. Aviles (2019) 39 Cal.App.5th 1055, 1073–1075; contra, People v. Son (2020) 

49 Cal.App.5th 565, 596–598.) There is a split of authority “regarding if, and under what 

circumstances, the forfeiture doctrine applies” (People v. Montes (2021) 59 Cal.App.5th 

1107, 1115), and in cases such as Lowery and Aviles, the appellants were challenging 

restitution fines in excess of the statutory minimum. (Lowery, at p. 1055; Aviles, at p. 

1061.)

Section 1202.4, subdivisions (c) and (d) permit defendants to raise an ability to 

pay objection when the court imposes a restitution fine above the statutory minimum of 

$300. Here, because the trial court imposed the minimum restitution fine of $300, 

defendant did not have a statutory right to object to it. But he did have an opportunity to 

challenge the $300 sex offender fine imposed pursuant to section 290.3, and that fine was 

presumably determinative of the additional $1,860 ($930 × 2) in penalty assessments (see 

fn. 6, ante, and statutes cited therein).

Section 290.3, subdivision (a) provides: “Every person who is convicted of any 

offense specified in subdivision (c) of Section 290 shall, in addition to any imprisonment 

or fine, or both, imposed for commission of the underlying offense, be punished by a fine 

of three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars

($500) upon the second and each subsequent conviction, unless the court determines that 

the defendant does not have the ability to pay the fine.” (Italics added.) The trial court’s 
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imposition of the $300 fine implies a finding of defendant’s ability to pay it. The implied 

finding is supported by the record, which indicates defendant had a monthly income of 

$1,300, owned a vehicle worth approximately $5,000, and had no debts or preexisting 

financial obligations except monthly car insurance premiums of $125.

In People v. McMahan (1992) 3 Cal.App.4th 740 (McMahan), the appellant’s 

sentence included a fine imposed under section 290.3. On appeal, this district considered 

whether the trial court “had a duty to determine he had the ability to pay the fine before 

its imposition.” (McMahan, at p. 748.) The opinion holds section 290.3 places “the 

burden upon the defendant to timely raise the issue.” (McMahan, at p. 749.) The 

appellant was thus deemed to have forfeited his claim by failing to object and/or present 

evidence of an inability to pay. (Id. at p. 750.)

Defendant acknowledges the McMahan case but argues it was recently questioned 

in People v. Acosta (2018) 28 Cal.App.5th 701. We are not persuaded. The Acosta

appellant conceded the issue of forfeiture but alleged ineffective assistance of counsel 

based on his trial attorney’s failure to object to a section 290.3 fine. (Acosta, at pp. 705–

706.)

In Acosta, the Sixth Appellate District opined “it is the better practice for the trial 

court to independently inquire at sentencing about the defendant’s ability to pay a sexual 

offender fine irrespective of whether the defendant—or his attorney—requests that the 

court do so.” (People v. Acosta, supra, 28 Cal.App.5th at p. 707.) However, the next 

paragraph of the opinion states: “We emphasize that we do not hold that a trial court is 

obligated to inquire into a defendant’s ability to pay a sex offender fine absent the 

defendant’s request.” (Ibid.)

We conclude defendant arguably forfeited all ability to pay arguments, including 

his Dueñas claim, by failing to object to the section 290.3 fine. (Cf. People v. Gutierrez

(2019) 35 Cal.App.5th 1027, 1033 [“As a practical matter, if [the appellant] chose not to 

object to a $10,000 restitution fine based on an inability to pay, he surely would not 
20.

complain on similar grounds regarding an additional $1,300 in fees”].) We thus decline 

to reach the merits of these claims in this appeal. On remand, defendant may raise these

issues in the first instance in the trial court.

DISPOSITION

The matter is remanded for the limited purpose of having the trial court identify 

the statutory basis for all imposed penalty assessments and conduct further proceedings 

consistent with this opinion. In all other respects, the judgment is affirmed. The trial 

court shall then prepare an amended abstract of judgment, which includes the correct 

spelling of defendant’s name (see fn. 1), and send a copy to the Department of 

Corrections and Rehabilitation.

PEÑA, J.

WE CONCUR:

HILL, P.J.

POOCHIGIAN, J.