1

Filed 11/16/20 P. v. Kruckenberg 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Yolo)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DUSTIN JAY KRUCKENBERG et al.,

Defendants and Appellants.

C089917

(Super. Ct. No. CRF18-7107)

In the course of a week, defendants Dustin Jay Kruckenberg and Edward Phillip 

Farris committed three thefts from the same store, and a jury found them guilty of grand 

theft. On appeal, Farris contends: (1) as to the theft that would alone support a grand 

theft conviction based on the value of the property taken, there was not substantial 

evidence they took property with the specific intent to deprive the owner of possession; 

(2) there was insufficient evidence to find a common plan or scheme so as to permit 

aggregation of the value of the property taken in the three thefts; and (3) the trial court 

erred in instructing the jury it could aggregate the value of multiple thefts to reach the 

felony threshold. Both Kruckenberg and Farris contend their prior prison term 
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enhancements should be stricken. In supplemental briefing, Kruckenberg also contends 

the matter should be remanded for an ability to pay hearing on fines and assessments. 

We conclude that defendants’ prior prison term enhancements must be stricken, and that 

Kruckenberg’s case must be remanded for resentencing. In all other respects, we affirm 

the judgment.

BACKGROUND

On July 30, 2018, Kruckenberg and Farris went to a Target store in Davis. Video 

surveillance showed Kruckenberg pushing a shopping cart through the store and Farris 

walking next to him. Kruckenberg put an air mattress and vacuum cleaner in the cart, 

while Farris added another vacuum cleaner and two tents. Kruckenberg pushed the cart 

past the café and out of the store, bypassing the checkout area. Farris left the store with 

no merchandise. The value of the merchandise taken was approximately $579.95. 

On the morning of August 5, 2018, video surveillance showed Kruckenberg 

pushing a shopping cart through the same Target store with Farris at his side. 

Kruckenberg put a toaster oven and vacuum cleaner in the cart, to which Farris added a 

second vacuum cleaner. Kruckenberg again pushed the cart past the café and left the 

store. Farris again left the store with no merchandise. The approximate value of the 

merchandise taken was $599.97. 

Later that same day, Kruckenberg and Farris returned to the store. Kruckenberg 

pushed the cart with Farris next to him. Aaron Demar, a loss prevention officer, saw 

Kruckenberg pushing a cart full of merchandise near the café, past the checkout area. 

Farris was standing near the checkout area. Demar approached Kruckenberg about 10 

feet from the exit and asked for his receipt. Kruckenberg said he was still shopping. 

Kruckenberg then pushed the cart into the women’s department, abandoned it, and he and 

Farris left the store. Inside the cart was a vacuum cleaner, a fan, and a digital air fryer, 

the approximate value of which was $979.97. 
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Demar did not detain Kruckenberg because store policy is to apprehend the person 

only after they have left the store with merchandise. Demar also acknowledged 

sometimes customers go to the café before they finish shopping, but noted Kruckenberg 

was near the exit with the cart aimed toward the door.

PROCEDURAL HISTORY

A jury found both defendants guilty of grand theft exceeding $950 (Pen. Code, 

§§ 484, subd. (a), 487, subd. (a)).1 In bifurcated proceedings, the trial court found true 

the allegations that each defendant had served two prior prison terms (§ 667.5, subd. (b))

and each sustained a prior strike conviction (§ 667, subds. (c) & (e)(1)). It sentenced 

Farris to an aggregate term of eight years: the upper term of three years, doubled for the 

strike, plus two consecutive one-year terms for the prior prison term enhancements. The 

trial court sentenced Kruckenberg to an aggregate term of four years eight months: the 

lower term of 16 months, doubled for the strike, plus two consecutive one-year terms for 

the prior prison term enhancements. As to both defendants, the trial court imposed a $30 

criminal conviction assessment (Gov. Code, § 70373), a $40 court operations assessment 

(§ 1465.8), a $300 restitution fine (§ 1202.4), and an identical parole revocation 

restitution fine, suspended unless parole is revoked (§ 1202.45). The trial court also 

ordered defendants to pay direct victim restitution to Target in the amount of $1,504.91. 

DISCUSSION

I

Substantial Evidence

Farris contends that substantial evidence does not support his conviction for grand 

theft. Specifically, he argues there is insufficient evidence of a taking with the requisite 

intent as to the third incident, in which the value of the merchandise was over $950. He 

1 Undesignated statutory references are to the Penal Code.
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further argues that there is insufficient evidence of an overarching scheme between the 

three thefts to permit aggregation of the values of the property taken. 

In reviewing the sufficiency of the evidence, “ ‘we review the whole record in the 

light most favorable to the judgment to determine whether it discloses substantial 

evidence—that is, evidence that is reasonable, credible, and of solid value—from which a 

reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” 

(People v. Cravens (2012) 53 Cal.4th 500, 507.) “We must presume in support of the 

judgment the existence of every fact that the trier of fact could reasonably deduce from 

the evidence. [Citation.]” (People v. Medina (2009) 46 Cal.4th 913, 919.) “The 

conviction shall stand ‘unless it appears “that upon no hypothesis whatever is there 

sufficient substantial evidence to support [the conviction].” ’ [Citation.]” (Cravens,

supra, at p. 508.) The standard is the same in cases in which a conviction is based 

primarily on circumstantial evidence. (People v. Clark (2016) 63 Cal.4th 522, 625.)

Theft is divided into two degrees, grand theft and petty theft. (§ 486; People v. 

Ortega (1998) 19 Cal.4th 686, 696, overruled on another point in People v. Reed (2006) 

38 Cal.4th 1224, 1228.) There are not separate offenses, but simply different degrees of 

the crime of theft. (Ortega, supra, at p. 696.) “The demarcation between grand and petty 

theft is now $950. When the value of the property taken exceeds $950, the crime is grand 

theft. [Citations.]” (People v. Rader (2014) 228 Cal.App.4th 184, 199; § 487, subd. (a).) 

“Theft in other cases is petty theft.” (§ 488; People v. Romanowski (2017) 2 Cal.5th 903, 

908.)

A. Defendants’ convictions for grand theft based upon the third incident is 

supported by substantial evidence

A defendant may be convicted of grand theft upon evidence proving “ ‘(a) 

embezzlement, (b) larceny or (c) obtaining property under false pretenses. . . .’ ” (People 

v. Hunter (1957) 147 Cal.App.2d 472, 475.) “The elements of theft by larceny are well 

settled: the offense is committed by every person who (1) takes possession (2) of 
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personal property (3) owned or possessed by another, (4) by means of trespass and 

(5) with intent to steal the property, and (6) carries the property away. [Citations.]” 

(People v. Davis (1998) 19 Cal.4th 301, 305.) Grand theft by larceny requires 

asportation. (People v. Williams (2013) 57 Cal.4th 776, 787.)

Asportation requires the property be (1) severed from the possession of the true 

owner; (2) in the complete possession of the thief; and (3) moved, however slightly. 

(People v. Shannon (1998) 66 Cal.App.4th 649, 654 (Shannon); People v. Edwards

(1925) 72 Cal.App. 102, 114-115, disapproved on another point in In re Estrada (1965) 

63 Cal.2d 740, 748.) “Asportation within the meaning of the statute prohibiting theft 

may be fulfilled by wrongfully and unlawfully removing property from the possession or 

control of the owner, against his will with the intent to steal it, even though the property 

may be retained by the thief but a moment. [Citations.] The fact that the thief is 

frustrated in his attempt to carry stolen property away . . . does not relieve him of the 

consequence of the theft.” (People v. Quiel (1945) 68 Cal.App.2d 674, 679.) Put another 

way, where the defendant takes possession of the property with the intent to steal it, and 

moves it around a store, the theft is complete. That the defendant was unsuccessful in 

removing the property from the store, whether through frustration of purpose or a change 

of his mind, does not absolve the defendant of liability for the theft. (People v. Tijerina

(1969) 1 Cal.3d 41, 47; Quiel, supra, at p. 679; see In re Aaron J. (2018) 22 Cal.App.5th 

1038, 1059.)

Farris argues there is not substantial evidence supporting the grand theft 

conviction as to the third incident because neither he nor Kruckenberg left the store with 

the merchandise, and there was only a speculative inference that they had the requisite

intent when they took possession of the property. And, he contends, this case is “vastly 

different” from other “asportation” cases, as there was no evidence either defendant “took 

the step of actively attempting to deprive the store of its money by exchanging 

merchandise they had never bought for cash or trying to hide merchandise to pay less 
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than what it was worth.” Accordingly, he argues no rational juror could find that they 

intended to commit a taking with the requisite intent.

Contrary to Farris’s argument, his case is not that different from other asportation 

cases. From two cases, Shannon, supra, 66 Cal.App.4th 649, and People v. Khoury

(1980) 108 Cal.App.3d Supp. 1 (Khoury), Farris attempts to engraft a requirement onto 

the asportation element, i.e., that the defendant must hide or conceal the property in order 

to satisfy the element of asportation, or receive money in a wrongful refund exchange. 

Farris reads too much into these cases.

In Shannon, the defendant entered a department store, took clothes from a rack, 

hid them in a bag, and went to the cashier. Store personnel had seen defendant hide the 

clothes and knew he had taken them from the rack. The defendant asked the cashier to 

exchange the clothing for a cash refund. The cashier complied and the defendant was 

apprehended as he left the store. (Shannon, supra, 66 Cal.App.4th at p. 652.) The court 

held the theft by larceny was complete when the defendant dropped the clothes in the bag 

with the intent to falsely exchange them for monetary value. (Id. at pp. 655-656.)

In Khoury, the defendant was observed for several hours pushing a cart around a 

store. He eventually pushed the cart with a large chandelier box on it to a checkstand.

The cashier noticed the box was loosely taped and said he would have to open the box 

and check its contents before allowing the defendant to pay the marked price and remove 

the box from the store. The defendant abruptly left the checkstand and walked back into 

the store, leaving the box with the cashier. The defendant was arrested by security 

personnel after the box was opened and store officials found more than $900 worth of 

batteries, tools, and chainsaws, but no chandelier. (Khoury, supra, 108 Cal.App.3d Supp. 

at p. 3.)

In both cases, the surrounding circumstances, which included the facts of 

concealment and wrongful refund, provided evidence of the defendant’s intent to steal the 

merchandise. But the cases did not require those facts to establish the intent to steal. 
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Rather, the cases held only that asportation requires a defendant to take possession of the 

property and move it slightly with the intent to deprive the owner of it permanently. 

(Shannon, supra, 66 Cal.App.4th at p. 654; Khoury, supra, 108 Cal.App.3d Supp. at p. 4.)

As in Shannon and Khoury, here, the intent to steal may be inferred from the 

surrounding circumstances (People v. Dukes (1936) 16 Cal.App.2d 105, 109; People v. 

Thompson (1958) 158 Cal.App.2d 320, 323; People v. Buonauro (1980) 113 Cal.App.3d 

688, 692), and defendants’ pattern of conduct, which give rise to reasonable inferences 

about their intent. Two times before, within a week, which included once earlier on 

August 5, defendants went to the same store, walked around together, and put vacuums,

small appliances, and other items in a shopping cart. Kruckenberg pushed the cart with

Farris alongside, adding items to the cart. Both times, Kruckenberg bypassed the 

checkout area, pushed the cart past the café, and left the store without paying for the 

merchandise. These acts provided circumstantial evidence of defendants’ intent when,

for the third time, they went into the store together, with Kruckenberg pushing a shopping 

cart around, while they put a vacuum cleaner and small appliances in the cart, walked

past the café and checkout area, and headed toward the exit without paying for the 

merchandise. (See People v. Robbins (1988) 45 Cal.3d 867, 879 [as to the admissibility 

of prior misconduct, “[w]e have long recognized ‘that if a person acts similarly in similar 

situations, he probably harbors the same intent in each instance’ ”]; see also Evid. Code,

§ 1101, subd. (b).) When Demar asked for Kruckenberg’s receipt, he claimed he was still 

shopping, turned away from the exit, and went back into the store. But Kruckenberg and

Farris did not, in fact, continue shopping. Rather, they abandoned the cart in the store, 

and left without purchasing anything. It is reasonable to infer from this conduct that upon 

being confronted by the security guard, and understanding they were being watched, they 

abandoned their plan to steal the merchandise. The surrounding circumstances give rise 

to the reasonable inference that defendants intended to steal the items in the cart when 
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they took possession of them and moved them around the store. There was substantial 

evidence supporting a grand theft conviction based solely on the third incident.

B. Aggregation of the thefts was appropriate

Farris contends there was not substantial evidence of an overarching plan to steal 

property so as to allow the jury to aggregate the thefts to meet the grand theft threshold. 

We again disagree. “[W]here a number of takings, each less than [the threshold dollar 

amount for grand theft,] but aggregating more than that sum, are all motivated by one 

intention, one general impulse, and one plan, the offense is grand theft.” (People v. 

Bailey (1961) 55 Cal.2d 514, 519 (Bailey); see CALCRIM No. 1802.)2 “The question of 

whether multiple takings are committed pursuant to one intention, general impulse, and 

plan is a question of fact for the trier of fact based on the particular circumstances of each 

case. [Citation.]” (People v. Nilsson (2015) 242 Cal.App.4th 1, 13.)

Evidence of a defendant’s state of mind is often circumstantial, but circumstantial 

evidence is sufficient to support a conviction. (People v. Bloom (1989) 48 Cal.3d 1194, 

1208.) “[T]he following types of evidence are relevant in determining whether a 

defendant acted pursuant to a single intent in committing a series of thefts: whether the 

defendant acted pursuant to a plot or scheme [citations]; whether the defendant stole a 

defined sum of money or particular items of property [citation]; whether the defendant 

committed the thefts in a short timespan [citation] and/or in a similar location [citation]; 

and perhaps most significantly, whether the defendant employed a single method to 

commit the thefts.” (People v. Jaska (2011) 194 Cal.App.4th 971, 984-985.)

These defendants employed a single method to commit all three thefts. Each time 

they walked into the same retail store together, filled a cart, and rolled the cart out of the 

2 Farris also challenges the propriety of CALCRIM No. 1802 and the continuing 

validity of Bailey. We are not persuaded by these contentions and address them in part II 

below.
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store without paying for the merchandise. Each time they stole vacuum cleaners and 

small appliances. They committed the offenses close in time, with two of the offenses 

being committed on one day. That is, in the span of one week, defendants (1) went to the 

same store, (2) took the same type of merchandise; and (3) used the same method to take 

the merchandise. The jury reasonably could find that defendants’ conduct was part of a 

single plan and a single intent. Accordingly, substantial evidence supports the jury’s 

verdict of grand theft based on aggregating the amounts of the thefts.

II

Jury Instructions

Farris contends the trial court violated his due process rights by instructing the 

jury with CALCRIM No. 18023 over his objection, because it misstated the law of theft. 

CALCRIM No. 1802 follows the holding in Bailey, and allows the jury to aggregate 

multiple petty thefts to reach the grand theft threshold if the thefts were committed 

against one victim pursuant to a single plan. Farris contends on appeal, as he did at the 

trial court, that Proposition 47, the Safe Neighborhoods and Schools Act, changed the law 

of theft and made it improper to base a finding of grand theft on the aggregate amount of 

multiple takings. He argues neither the amendments added by Proposition 47, adding a 

shoplifting offense, or the statute defining grand theft, explicitly provide for aggregation 

of the value of items taken in the shoplifting context. 

3 CALCRIM No. 1802, as given, provides: “If you conclude that the defendants

committed more than one theft, you must then decide if the defendant[s] committed 

multiple petty thefts or a single grand theft. To prove that the defendants are guilty of a 

single grand theft, the People must prove that: One, the defendant[s] committed theft of 

property from the same owner or possessor on more than one occasion; two, the 

combined value of the property was over $950; [and, three,] the defendants obtained the 

property as part of a single[,] overall plan or objective. [¶] If you conclude that the 

People have failed to prove grand theft, any multiple thefts you have found proven are 

petty thefts.” 
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We determine whether a jury instruction is a correct statement of law under the 

independent or de novo standard of review. (People v. Posey (2004) 32 Cal.4th 193, 

218.) “ ‘Review of the adequacy of instructions is based on whether the trial court “fully 

and fairly instructed on the applicable law.” ’ [Citation.]” (People v. Turner (2019) 

37 Cal.App.5th 882, 887.)

In Bailey, the defendant made a misrepresentation to the welfare office and 

received a series of payments to which she was not entitled. The payments totaled an 

amount that satisfied the threshold for charging grand theft. (Bailey, supra, 55 Cal.2d at 

pp. 515-516, 518-519.) The Supreme Court concluded that a single conviction of grand 

theft was proper, holding: “[W]here a number of takings, each less than [the threshold 

dollar amount for grand theft] but aggregating more than that sum, are all motivated by 

one intention, one general impulse, and one plan, the offense is grand theft.” (Id. at 

p. 519.) The court went on to state, “Whether a series of wrongful acts constitutes a 

single offense or multiple offenses depends upon the facts of each case, and a defendant 

may be properly convicted upon separate counts charging grand theft from the same 

person if the evidence shows that the offenses are separate and distinct and were not 

committed pursuant to one intention, one general impulse, and one plan. [Citation.]” 

(Ibid.)

Based on that language in Bailey, numerous Courts of Appeal have held that 

Bailey not only allowed aggregation, but barred multiple grand theft convictions when 

the individual thefts arose from a single plan or scheme, even though each theft was 

separate and distinct and involved property exceeding the amount needed to establish 

grand theft. (People v. Whitmer (2014) 59 Cal.4th 733, 735, 739.) In Whitmer, the 

defendant arranged the fraudulent sale of 20 vehicles, each valued at over $9,000. Thus, 

each theft was individually over the threshold amount for grand theft. (Whitmer, supra, 

at p. 735.) The Whitmer court explicitly clarified the meaning of the language in Bailey 

and held that “a serial thief should not receive a ‘ “felony discount” ’ if the thefts are 
11

separate and distinct even if they are similar. Accordingly, we conclude that a defendant 

may be convicted of multiple counts of grand theft based on separate and distinct acts of 

theft, even if committed pursuant to a single overarching scheme.” (Whitmer, at pp. 740-

741, italics added.) Whitmer did not consider the issue presented here of aggregating 

multiple petty thefts committed pursuant to a single scheme into a single grand theft.

Later in 2014, voters enacted Proposition 47, the Safe Neighborhoods and Schools 

Act, which reduced the penalties for certain theft and drug offenses by amending existing 

statutes and by adding several new provisions. (People v. Gonzales (2017) 2 Cal.5th 858, 

863.) As relevant here, Proposition 47 added section 490.2, which provides, in part:

“Notwithstanding Section 487 or any other provision of law defining grand theft, 

obtaining any property by theft where the value of the money, labor, real or personal 

property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty 

theft and shall be punished as a misdemeanor . . . .” (§ 490.2, subd. (a).) Neither section 

487, subdivision (a), nor section 490.2 address aggregation.

Farris relies on People v. Salmorin (2016) 1 Cal.App.5th 738 (Salmorin) to

support his claim that the values of the property taken cannot be aggregated to determine 

whether the theft exceeded $950. In Salmorin, the court concluded that the value of 

forged checks could not be aggregated to deny resentencing relief under section 473, 

subdivision (b). (Salmorin, supra, at p. 745.) In reaching this conclusion, the court relied 

on the plain language of section 473, subdivision (b), which “provides that ‘any person 

who is guilty of forgery relating to a check, . . . where the value of the check . . . does not 

exceed [$950], shall be punishable by imprisonment in a county jail for not more than 

one year.’ [Citation.] In referring to ‘a check’ and ‘the value of the check,’ the language 

of the statute distinguishes misdemeanor forgery from felony forgery based on the value 

of any single check the person is guilty of forging, not the aggregate value of two or more 

checks.” (Salmorin, at p. 746.)
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Salmorin relied on the principle stated in People v. Neder (1971) 16 Cal.App.3d 

846, 851-853, that the Bailey doctrine was developed for the crime of theft, and does not 

apply to forgery and other nontheft offenses. (Salmorin, supra, 1 Cal.App.5th at p. 749.) 

The Neder court explained the reason for this distinction: “The essential act in all types 

of theft is taking. If a certain amount of money or property has been taken pursuant to 

one plan, it is most reasonable to consider the whole plan rather than to differentiate each 

component part. [Citation.] The real essence of the crime of forgery, however, is not 

concerned with the end, i.e., what is obtained or taken by the forgery; it has to do with the 

means, i.e., the act of signing the name of another with intent to defraud and without 

authority, or of falsely making a document, or of uttering the document with intent to 

defraud. Theft pursuant to a plan can be viewed as a large total taking accomplished by 

smaller takings. It is difficult to apply an analogous concept to forgery.” (Neder, supra, 

at pp. 852-853.)

Salmorin does not help Farris. First, the statute at issue in Salmorin explicitly 

defined misdemeanor forgery based on the value of a single check. (Salmorin, supra, 

1 Cal.App.5th at p. 746.) By contrast, the plain language of sections 490.2, subdivision 

(a) and 484 do not limit the definition of grand theft to the value of a single item. In 

addition, the Bailey doctrine does not apply to forgery offenses. The doctrine was 

explicitly created in the context of theft, and as noted by Neder, given the nature of each 

offense, there are sound reasons for distinguishing between forgery and theft offenses for 

this purpose.

Finally, Farris argues that with respect to Proposition 47 and the petty theft statute 

(§ 490.2), “the drafters and voters knew how to aggregate the value of multiple items 

taken at different times to increase a petty theft under section 490.2 to grand theft, but 

chose not to use that approach.” In support of this argument, Farris relies on section 

476a, subdivision (b), which pertains to the punishment for passing a check with 
13

insufficient funds, and People v. Salmorin, supra, 1 Cal.App.5th 738, interpreting 

Proposition 47 in the context of forgery. 

The flaw in this reasoning is that the amendment to section 476a, subdivision (b) 

only raised the felony threshold amount from $450 to $950. It did not add or delete 

language regarding aggregation; that already was part of the statute. (See former § 476a, 

Stats. 2012, ch. 43, § 19 (Sen. Bill No. 1023), eff. June 27, 2012.) Hence, the law of 

aggregation was left unchanged.

Farris has provided us with no authority and no compelling reason why we should 

conclude the drafters and voters intended to change the long-standing law with regard to 

aggregation of amounts as to grand theft in section 487. The principle articulated in 

Bailey is that where a number of takings, committed pursuant to a single scheme or plan, 

are each less than the felony grand theft amount, but aggregated reached that amount, the 

offense is grand theft. (Bailey, supra, 55 Cal.2d at p. 519.) “The electorate ‘is presumed 

to be aware of existing laws and judicial construction thereof.’ [Citation.]” (People v. 

Gonzales, supra, 2 Cal.5th at p. 869.) There is nothing in the statutes or Proposition 47 

that indicates an intent to change existing law regarding aggregation under the Bailey 

doctrine, or that when committed pursuant to a single plan, a grand theft may be based on 

a series of petty thefts. We therefore conclude that Proposition 47 did not overrule 

Bailey. Accordingly, CALCRIM No. 1802 remains a correct statement of law and the 

trial court did not err in instructing the jury with it.

III

Senate Bill No. 136

In October 2019, the Governor signed Senate Bill No. 136 (2019-2020 Reg. Sess.) 

(Senate Bill 136), which amended section 667.5, effective January 1, 2020 (Stats. 2019, 

ch. 590, § 1). Senate Bill 136 narrowed eligibility for the one-year prior prison term 

enhancement to those who have served a prior prison sentence for a sexually violent 

offense, as defined in Welfare and Institutions Code section 6600, subdivision (b). 
14

(§ 667.5, subd. (b).) The amendment applies “retroactively to all defendants whose 

judgments are not yet final as of that date.” (People v. Petri (2020) 45 Cal.App.5th 82, 

94.)

As the People concede, both defendants are entitled to have the one-year prior 

prison term enhancements stricken. Defendants’ cases were not yet final on Senate Bill 

136’s effective date. In addition, their prior prison term enhancements were not based on 

prior terms for sexually violent offenses.

With respect to Farris, because the trial court imposed the maximum term, we 

need not remand the matter for resentencing. (People v. Francis (2017) 16 Cal.App.5th 

876, 887 [remand unnecessary where court could not alter sentence to compensate for the 

loss of enhancements].) As to Kruckenberg, because the trial court imposed the lower 

term at sentencing, it is appropriate to remand this matter for resentencing to allow the 

trial court to revisit its sentencing choices in light of the changed circumstances. (See 

People v. Jennings (2019) 42 Cal.App.5th 664, 682 [remanding for resentencing 

following striking of enhancements in light of Senate Bill 136].)

IV

Ability to Pay Fines and Assessments Hearing

In supplemental briefing, relying on People v. Dueñas (2019) 30 Cal.App.5th 

1157, Kruckenberg4 argues due process requires that we strike the fines and assessments 

4 Farris did not file a supplemental brief or raise a Dueñas claim in any briefing. In 

his opening brief, he stated he was incorporating by reference arguments made by 

Kruckenberg in his opening brief, to the extent they were applicable and accrued to his 

benefit. (Cal. Rules of Court, rule 8.200(a)(5).) Since Kruckenberg had not yet filed his 

opening brief, Farris could not identify such arguments with specificity, as required. 

(People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363-364.) Farris stated he 

would specifically identify any arguments he wished to join in his reply brief or 

supplemental opening brief. He did not do so. Accordingly, he has not joined in this 

argument and it is forfeited as to him. (Ibid.)
15

imposed or remand the matter for a hearing on his ability to pay them. Kruckenberg 

concedes that he did not object to the imposition of the fines and assessments, even 

though he was sentenced five months after Dueñas was decided. We decline 

Kruckenberg’s invitation to excuse his failure to object and instead conclude he has 

forfeited the issue on appeal.5 

DISPOSITION

The trial court is directed to strike defendants’ prior prison term enhancements. In 

all other respects, the judgment is affirmed. With respect to defendant Farris, the trial 

court shall prepare an amended abstract of judgment reflecting his new sentence and 

forward a certified copy to the Department of Corrections and Rehabilitation. As to 

defendant Kruckenberg, the matter is remanded for resentencing. Upon resentencing, the 

trial court is directed to prepare an amended abstract of judgment and to forward a 

certified copy to the Department of Corrections and Rehabilitation.

 KRAUSE , J.

We concur:

 RAYE , P. J.

 BLEASE , J.

5 Even if defendant had preserved the issue for appeal, his arguments would be 

meritless because we would join the courts that have concluded that Dueñas was wrongly 

decided. (See, e.g., People v. Kingston (2019) 41 Cal.App.5th 272; People v. Hicks

(2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946; People v. Aviles

(2019) 39 Cal.App.5th 1055; People v. Caceres (2019) 39 Cal.App.5th 917, 923-929.)