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Filed 8/31/20 P. v. Hudson CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

THEODORE SMITH HUDSON III,

Defendant and Appellant.

 A155873

 (Sonoma County

 Super. Ct. No. SCR-696335-1)

Defendant Theodore Smith Hudson III appeals from a judgment after a 

jury found him guilty of multiple counts of theft from an elder. He contends 

that the trial court: (1) abused its discretion in excluding proposed 

impeachment evidence; (2) improperly imposed fines, fees, and restitution 

without determining his ability to pay them; and (3) failed to stay 

punishment under Penal Code section 654.1

On counts 3 through 6, defendant was convicted of theft of properties 

transferred by grant deed from the victim, Jane Doe, to defendant. On 

count 3, defendant was sentenced to prison for a total of nine years (four 

years plus consecutive five-year term for enhancement). On counts 

4, 5, and 6, defendant received concurrent four-year sentences. We conclude 

1 Unless otherwise indicated, all further section references will be to 

the Penal Code.
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that these concurrent sentences constitute multiple punishment proscribed 

by section 654. Accordingly, we modify the sentences on counts 4, 5, and 6 as 

set forth below and affirm the judgment in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

The following is a brief summary of some of the trial evidence, which 

we set out to provide context to the claims raised on appeal.

Starting in 2009, defendant was hired by an elderly couple, Jane Doe 

and Nick S., for intermittent work related to their personal residence and 

commercial properties. Jane and Nick then began paying defendant a 

monthly salary. Over the next several years, defendant’s role and 

responsibilities expanded. For example, defendant assisted Nick with the 

management of the commercial properties and drove the couple to medical 

appointments.

Defendant attended to Nick as his health deteriorated around 2014. 

According to Jane, defendant began threatening to quit and demanding 

money and property from the couple. According to defendant, his conduct 

was triggered by Jane’s refusal to get a caregiver for Nick and her 

interference with defendant’s personal life. Jane testified she wrote in her 

journal on January 21, 2015, that defendant “ ‘settled for $50,000’ ” and one 

of the couple’s properties, in Cloverdale, California. She testified that 

defendant made out a check to himself for $49,979.25 and brought it to her to 

sign.

Nick died in February 2015. The next month, Jane signed a trust 

providing that if defendant continued to care for Jane during her life, the 

Cloverdale property would go to defendant. According to Jane, defendant 

was unhappy with the trust because he would only get the property after her 

death and he would have to prove he had taken good care of her. According 
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to defendant, he felt that it was unfair that someone else could decide if he 

got the property or not and that Jane could be put in a home, which would 

prevent him from receiving the property. Jane testified that she revoked her 

trust in September 2015 in response to defendant’s complaints.

Jane testified that she began adding defendant to her various bank 

accounts, upon defendant’s assurances that he would never take any money 

out. She testified that defendant also started asking her repeatedly to sign 

over all of her commercial properties to him. In March 2016, defendant and 

Jane signed the grant deeds transferring ownership of 10 properties, 

including five properties in Sonoma County.

In May 2016, Jane signed a new will that left her entire estate to 

defendant. Jane testified that she signed the will because she was being “put 

against the wall” and “blackmailed” to leave everything to defendant.

In June 2016, defendant purchased a house. Defendant authorized 

wire transfers from Jane’s bank accounts for the purchase. According to 

Jane, she was “shocked” because defendant had previously promised that he 

would not touch the money in her accounts. According to defendant, Jane 

wanted him to use the money in those accounts to purchase the house.

The information charged defendant with 11 felony counts of theft from 

an elder under section 368, subdivision (d) related to the $49,979.25 check 

(count 1), the Cloverdale property (count 2), the other four Sonoma County 

properties transferred by grant deeds (counts 3–6), and the wire transfers 

(counts 7–11). The information specially alleged that the offenses set forth in 

each count “are related felonies, a material element of which is fraud or 

embezzlement, which involve a pattern of related felony conduct, and the 

pattern of related felony conduct involves the taking of more than Five 
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Hundred Thousand Dollars ($500,000)” under section 186.11, subdivision 

(a)(2).

The jury found defendant guilty on counts 3 through 11 and found each 

associated special allegation true. The trial court declared a mistrial on 

counts 1 and 2 after the jury could not reach a verdict on those two counts. 

The trial court sentenced defendant to a total of 10 years in prison: four 

years (count 3) plus five years (consecutive term for count 3 enhancement), 

plus one year (consecutive term for count 7). Concurrent four-year sentences 

were imposed on counts 4 through 6, as well as counts 8 through 11.2 This 

appeal followed.

DISCUSSION

Defendant makes three arguments on appeal. First, he argues that the 

trial court abused its discretion in excluding proposed impeachment evidence. 

Second, defendant argues that remand is required because the trial court 

improperly imposed fines, fees, and restitution without determining his 

ability to pay them. Third, he argues that the trial court failed to stay the 

sentences on counts 4, 5, and 6 in violation of section 654. We address each 

argument in turn.

I. EXCLUSION OF PROPOSED IMPEACHMENT EVIDENCE

Defendant argues that the trial court abused its discretion in excluding 

proposed impeachment evidence allegedly showing that Jane and Nick had 

committed tax fraud. We conclude that the trial court did not abuse its 

discretion.

2 Defendant does not challenge the sentences for count 3, the count 3 

enhancement, or counts 7 through 11 through this appeal.
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A. Additional Facts

At trial, defendant sought to introduce tax returns submitted by Jane

and Nick allegedly showing tax fraud in order to impeach Jane’s credibility. 

The prosecutor stated that defendant’s counsel gave her the documents after

the trial started. The trial court excluded the documents, finding that the

prosecutor was “never given notice that there was any question concerning

the validity” of the tax returns and, thus, the documents should not be

allowed in. The trial court also found that the validity of the tax returns was

“basically tangential and collateral and borderline irrelevant.” The trial

court explained that defendant could testify regarding his participation in the

preparation of tax documents and that evidence had already come in through

testimony by prosecution witness Richard Torkelson, an accountant who

testified regarding “some of the discounting of the properties for tax

purposes.” In the trial, defendant testified that he engaged in tax fraud in

writing out the $49,979.25 check to himself but that “Miss Doe made [him] do

it.”

On appeal, defendant argues that the trial court abused its discretion

in excluding the tax returns on both stated grounds: defendant’s untimely

disclosure of the returns and their lack of relevance. Neither argument is

persuasive.

As to the issue of timeliness, section 1054.3, subdivision (a)(2) provides

that a defendant and his or her attorney shall disclose to the prosecuting

attorney “[a]ny real evidence which the defendant intends to offer in evidence

at the trial.” Section 1054.7, paragraph 1 requires that such disclosures be 

made “at least 30 days prior to the trial, unless good cause is shown why a 

disclosure should be denied, restricted, or deferred.”
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Defendant offers no argument that the good cause exception applies 

and admits, “The record arguably shows that [the] disclosure was not timely.” 

Instead, he argues that the prosecutor forfeited her objection by “not raising 

the purported late discovery issue when it arose” and the trial court’s strict 

application of the timely disclosure rule “ ‘offended’ ” defendant’s

fundamental due process right to a fair trial. We disagree. The trial court 

exercised its discretion to exclude the tax returns upon the prosecutor’s 

objection in the trial, and such “proper exercise of a trial court’s discretion 

under section 1054.7 does not violate a criminal defendant’s confrontation or 

due process rights.” (People v. Thompson (2016) 1 Cal.5th 1043, 1105.)

As to the issue of relevance, the trial court has broad discretion under 

Evidence Code section 352 to determine whether impeachment evidence is 

subject to exclusion. (People v. Clark (2011) 52 Cal.4th 856, 931–932.) We 

review such an exclusion of evidence under an abuse of discretion standard. 

(People v. Holloway (2004) 33 Cal.4th 96, 134.) “Where, as here, a 

discretionary power is statutorily vested in the trial court, its exercise of that 

discretion ‘must not be disturbed on appeal except on a showing that the court 

exercised its discretion in an arbitrary, capricious or patently absurd manner 

that resulted in a manifest miscarriage of justice.’ ” (People v. Rodrigues

(1994) 8 Cal.4th 1060, 1124–1125, quoting People v. Jordan (1986) 42 Cal.3d 

308, 316.) We agree with the trial court that the proffered tax returns were

“basically tangential and collateral and borderline irrelevant.” The defense 

did not establish that Jane had any participation in the preparation of the 

tax returns, let alone knowledge of their contents.

Even assuming that the exclusion of the tax returns was erroneous, we 

reject defendant’s argument that such error was so prejudicial as to violate 

his constitutional rights or otherwise render his trial fundamentally unfair. 
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As the California Supreme Court explained, as long as the excluded evidence 

“would not ‘have produced “a significantly different impression of [the 

witness’s] credibility” ’ ” the confrontation clause and related constitutional 

guarantees do not limit the trial court’s discretion in this regard. (People v. 

Harris (2008) 43 Cal.4th 1269, 1292, quoting People v. Frye (1998) 18 Cal.4th 

894, 946.) Here, we conclude that the tax returns would not have created a 

significantly different impression of Jane’s credibility. This is particularly 

true because the trial court permitted defendant to testify that he engaged in

tax fraud at Jane’s instruction and evidence had already come in through

testimony by Torkelson regarding discounting of the properties for tax

purposes.

In sum, we conclude that the trial court did not abuse its discretion in 

excluding the tax return documents as proposed impeachment evidence.

II. IMPOSITION OF FINES, FEES, AND RESTITUTION

Defendant argues that remand is required because the trial court failed 

to determine defendant’s ability to pay before imposing fines, fees, and 

restitution. Defendant relies on People v. Dueñas (2019) 30 Cal.App.5th 1157 

(Dueñas). We conclude that defendant forfeited the argument.

A. Additional Facts

At the October 5, 2018 sentencing hearing, the trial court ordered 

defendant to pay a $10,000 restitution fine (Pen. Code, § 1202.4, subd. (b)); a 

$10,000 parole revocation restitution fine (id., § 1202.45), suspended unless 

parole is revoked; a $360 court security fee (id., § 1465.8); and a $270 

criminal conviction fee (Gov. Code, § 70373). On October 18, 2018, the court 

ordered defendant to pay $883,992.30 in direct restitution to Jane’s estate.
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B. Analysis

Defendant concedes that his trial counsel did not object to the 

imposition of fines, fees, and restitution, let alone raise any objection based 

on defendant’s ability to pay. A timely objection below, however, was 

required to preserve this claim. (See People v. Frandsen (2019) 33 

Cal.App.5th 1126, 1153 (Frandsen) [concluding that the defendant forfeited 

challenge where his trial counsel failed to object to assessments or restitution 

fine at sentencing]; People v. Trujillo (2015) 60 Cal.4th 850, 859 [explaining 

that constitutional nature of the defendant’s claim regarding his ability to 

pay did not justify a deviation from the forfeiture rule].)

Defendant fails to show an applicable exception to the doctrine of 

forfeiture. We disagree with defendant’s argument that Dueñas was an 

unforeseen change in the law. As explained in Frandsen, “Dueñas was 

foreseeable. Dueñas herself foresaw it. The Dueñas opinion applied ‘the 

Griffin–Antazo–Bearden analysis,’ ” flowing from cases Griffin v. Illinois

(1956) 351 U.S. 12, In re Antazo (1970) 3 Cal.3d 100, and Bearden v. Georgia

(1983) 461 U.S. 660. (Frandsen, supra, 33 Cal.App.5th at p. 1154, quoting 

Dueñas, supra, 30 Cal.App.5th at p. 1168.) Dueñas likewise observed: “ ‘The 

principle that a punitive award must be considered in light of the defendant’s 

financial condition is ancient.’ ” (Dueñas, at p. 1171.) Accordingly, “Dueñas

applied law that was old, not new.” (Frandsen, at p. 1155.)

We also disagree with defendant’s argument that his trial counsel’s 

failure to object was ineffective assistance of counsel. The test for ineffective 

assistance of counsel requires a criminal defendant to establish both that his 

or her counsel’s performance was deficient and that he or she suffered 

prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687.) “Judicial 
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scrutiny of counsel’s performance must be highly deferential.” (Id. at p. 689.) 

Defendant offers no evidence to satisfy either prong of the test.

Even assuming there was no forfeiture, we would reject defendant’s 

claim. As to the $10,000 restitution fine, $360 court security fee, and $270 

criminal conviction fee, courts have strongly criticized the substantive 

holding in Dueñas. (See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, 326–

329, review granted Nov. 26, 2019, S258946.) We need not offer our own 

opinion because even if the holding in Dueñas was correct, we would 

conclude, on this record, that the error was harmless beyond a reasonable 

doubt. (People v. Johnson (2019) 35 Cal.App.5th 134, 139–140.) A 

defendant’s ability to pay is not limited to his or her present financial 

situation but can also be based on his or her future ability to earn prison 

wages and money after release from custody. (People v. Hennessey (1995) 37 

Cal.App.4th 1830, 1837.) Here, the record shows defendant was 54 years old 

at the time of sentencing, had worked as a mason for 25 years, and had 

performed home repair and landscaping work for Jane and Nick for many 

years. Defendant will be serving time in prison and has the capacity to earn 

both during that time and after his release.

As to the $883,992.30 in direct restitution to Jane’s estate, it is 

fundamentally different from the fines and fees. As Dueñas explains, 

California law provides for two types of restitution: (1) direct restitution to 

the victim, which is based on the victim’s loss and is paid to the victim to 

compensate him or her for such loss; and (2) a restitution fine, which is set by 

the court and paid into a statewide victim compensation fund. (Dueñas, 

supra, 30 Cal.App.5th at p. 1169.) Moreover, section 1202.4, subdivision (g) 

expressly prohibits the consideration of a defendant’s ability to pay in 

determining the amount of a restitution order to the victim. Defendant cites 
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no cases that extend the holding in Dueñas to direct victim restitution, and 

we decline to do so here.

In sum, we reject defendant’s Dueñas claim.

III. MULTIPLE PUNISHMENT UNDER SECTION 654

Defendant argues that the trial court should have stayed punishment 

on counts 4, 5, and 6 pursuant to section 654. The People concede the merit 

of this argument. We agree.

A. Additional Facts

Defendant was convicted of four felony counts (counts 3–6) of theft from 

an elder related to four Sonoma County properties transferred by grant deeds 

in March 2016. At the sentencing hearing, the prosecutor stated, “We think 

654 applies to counts 3 through 6,” and counts “4, 5, and 6 should be stayed.” 

On count 3, the trial court sentenced defendant to nine years in prison: four 

years plus a consecutive five-year term for the enhancement. On counts 

4 through 6, instead of staying the sentences as the prosecutor recommended, 

the trial court imposed concurrent four-year sentences.

B. Analysis

Section 654, subdivision (a) provides in relevant part: “An act or 

omission that is punishable in different ways by different provisions of law 

shall be punished under the provision that provides for the longest potential 

term of imprisonment, but in no case shall the act or omission be punished 

under more than one provision.” In other words, section 654 proscribes 

multiple punishment for crimes arising from a single act. (People v. Harrison

(1989) 48 Cal.3d 321, 335 (Harrison).) This statutory protection has also 

been extended to proscribe punishment for multiple crimes arising from an 

indivisible course of conduct. (Ibid.) Here, defendant argues that the 

transfer of the four properties arose from an indivisible course of conduct.
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To determine whether a course of conduct is indivisible, we look at the 

“defendant’s intent and objective, not the temporal proximity of his 

offenses . . . .” (Harrison, supra, 48 Cal.3d at p. 335.) “[I]f all of the offenses 

were merely incidental to, or were the means of accomplishing or facilitating 

one objective, defendant may be found to have harbored a single intent and 

therefore may be punished only once.” (Ibid.) “If, on the other hand, 

defendant harbored ‘multiple criminal objectives,’ which were independent of 

and not merely incidental to each other, he may be punished for each 

statutory violation committed in pursuit of each objective, ‘even though the 

violations shared common acts or were parts of an otherwise indivisible 

course of conduct.’ ” (Ibid., quoting People v. Beamon (1973) 8 Cal.3d 625, 

639.) Where the relevant facts are conceded or undisputed, this is a question 

of law that we review de novo. (Harrison, at p. 335.)

Here, the People concede that defendant “stole all of the commercial 

properties in question at the same time, as part of a common plan or scheme 

to deprive [Jane] of all of her property.” Jane testified that prior to the 

transfer, defendant asked her repeatedly to sign over all of her commercial 

properties to him. When asked what she expected would happen once the 

grant deeds were signed, Jane testified that defendant explained to her “over 

and over again how he would, if he had the property, how he would run it, 

how he would continue to run it, and how it would all work out perfect.” 

Defendant’s indivisible course of conduct is supported by the jury verdict, 

finding that the offenses “are related felonies” and “involve a pattern of 

related felony conduct . . . .” Based on the undisputed evidence, we conclude 

that section 654 proscribes multiple punishment for counts 3 through 6.

The trial court’s imposition of concurrent sentences for counts 

4, 5, and 6 does not avoid this issue because a defendant is deemed to be 
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subjected to the term of all concurrent sentences, even though they are 

served simultaneously. (People v. Jones (2012) 54 Cal.4th 350, 353.) 

“Instead, the accepted ‘procedure is to sentence defendant for each count and 

stay execution of sentence on certain of the convictions to which section 654 is 

applicable.’ ” (Ibid., quoting People v. Miller (1977) 18 Cal.3d 873, 886.)

While defendant requests remand for resentencing to correct this 

section 654 error, the People ask this court to stay the sentences. An 

appellate court has the discretion to modify a judgment to stay sentences that 

should have been stayed. (See § 1260 [appellate court may reverse, affirm, or 

modify a judgment, or may remand for further proceedings “as may be just 

under the circumstances”].) In People v. Alford (2010) 180 Cal.App.4th 1463, 

1473, the appellate court exercised its discretion to modify a judgment where 

a new sentencing hearing would not have changed the defendant’s actual 

prison time, and thus the “futility and expense” of remand “militate[d] 

against it.” The same reasoning applies here: A new sentencing hearing to 

stay the concurrent sentences for counts 4, 5, and 6 would consume judicial 

resources without changing defendant’s prison time. Accordingly, we will 

exercise our discretion to modify the judgment to reflect that defendant’s 

concurrent sentences for counts 4, 5, and 6 are stayed.

DISPOSITION

The concurrent sentences on counts 4, 5, and 6 are stayed. The trial 

court is directed to forward to the Department of Corrections and 

Rehabilitation a new abstract of judgment that reflects the above 

modification. As modified, the judgment is affirmed.
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_________________________

Jackson, J.

WE CONCUR:

_________________________

Siggins, P. J.

_________________________

Petrou, J.

A155873/People v. Theodore Smith Hudson III