1

Filed 5/18/21 P. v. Aguirre CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Siskiyou)

----

THE PEOPLE,

Plaintiff and Respondent,

v.
ANDREW JAMES AGUIRRE,

Defendant and Appellant. C089878 (Super. Ct. No. SCCRCRF2017795)

A jury found defendant Andrew James Aguirre guilty of all counts set forth in a
26

- count information charging him primarily with sex acts committed against minors. The trial court sentenced defendant to an aggregate term of 41 years four months plus 60 years to life.
On appeal, defendant asserts that the trial court erred in denying his motion to dismiss counts 11 through 20 because, in this procedurally convoluted prosecution, those charges had previously been dismissed t hree times and therefore they were barred by the2

general rule in Penal Code section 1387 barring prosecution for the same felony offense
that has been twice dismissed ( statutory section references that follow are found in the
Penal Code unless otherwise stated ). Defendant further asserts the judgment must be
reversed because the trial court’s admission of evidence of prior sexual offenses under Evidence Code section 1108 deprived him of his due process and equal protection rights. Finally, relying on People v. Dueñas (2019) 30 Cal. App.5th 1157 ( Dueñas ), defendant

asse rts the trial court violated his constitutional rights in imposing fines, fees, and
assessments without first making an ability to pay determination.
We affirm the judgment

.



### F ACTS AND 

### P ROCEDURAL 

### H ISTORY
The third consolidated informa tion, the operative i nformation, charged defendant with: lewd act on a child, N.C.C., under the age of 14 ( § 288, subd. (a); count 1); three
counts of lewd act on a child, B.B., under the age of 14 ( § 288, subd. (a); counts 2

- 4 ); six
counts of lewd act upon a child, L.M.D., under the age of 14 ( § 288, subd. (a); counts 5

- 10); f ive counts of sexual penetration by a foreign object against a child, L.M.D., under the age of 14 ( § 289, subd. (j); count s 11 , 13, 15, 17, 19 ); five counts of or al copulation of a child, L.M.D. , under the age of 14 ( former § 288a, subd. (c)(1); counts 12, 14, 16, 18, 20); two counts of lewd act upon a child, L.M.D., who was 14 years old ( § 288, subd. (c)(1); count s 21

- 22); two counts of possession of matter depicting a minor engaging in
sexual c onduct ( § 311.11, subd. (a); counts 23

- 24); using a minor, “Confidential Victim,” for sex acts ( § 311.4, subd. (c); count 25); and unauthorized invasion of privacy against Confidential Victim ( § 647, subd. (j)(3); count 26).
As to counts 1 through 4 , the information alleged that, within the meaning of
secti o n 667.61, subdivisions (b) and (e), defendant committed an offense specified in subdivision (c) of that section against more than one victim within the meaning of subdivision (e) (4) of that section. As to counts 11 through 20, the information alleged3

that, while the acts alleged occurred in North Carolina, the offenses fell within the jurisdiction of the court within the meaning of section 778a in that “it was commenced
within th e County of Siskiyou when the defendant groomed and molested the victim as a young child.” Section 778a, subdivision (a), provides: “Whenever a person, with intent to commit a crime, does any act within this state in execution or part execution of that
i ntent, which culminates in the commission of a crime, either within or without this state, the person is punishable for that crime in this state in the same manner as if the crime had been committed entirely within this state.” As to count 24, the informat ion alleged defendant possessed more than 600 images
which constituted violations of section 311.11 and 10 or more images involving a prepubescent minor or a minor who had not attained 12 years of age within the meaning of subdivision (c)(1) of that sectio n. As to count 26, the information alleged, in part, that “defendant groomed [and] photographed the Confidential Victim when she was under the age of 18.”
The Prosecution Evidence
Dawn C

. (Dawn) married defendant in 1997. Defendant joined the military the year before they were married. The y lived in Washington for approximately a year after
which defendant was reassigned to Germany. While they were living in Germany, the couple would come back to the United States to visit approximately once a year. They returned from Germany to the United States in or about August 2001. While defendant
train ed in Georgia, Dawn and the couple’s son lived in Yreka. After his training in Georgia, defendant was stationed at Fort Bragg, Nort h Carolina , where Dawn and the couple’s son joined him

. In January 2003, the couple had another son and i n 2005 they had a daughter.
As discussed in greater detail post , in North Carolina in 2005, A.M., a young girl
from across the street , made an allegation against defendant after coming over to defendant’s house to watch a movie

. At some point, in 2006 or 2007, after a second child4

made an allegation against defendant, the military investigated. There was a court
martial

. According to Dawn, def endant was “held responsible for some of that,” but that result was ultimately overturned on appeal

. Dawn testified that, during the marriage, she had a prescription for Ambien for
insomnia. W hen she slept, defendant would take photographs of her of a s exual nature and show them to her later. She testified that this happened too many times to count. She also testified defendant committed spousal rape when she was using Ambien.
Dawn left defendant in 2012 and t he couple divorce d in 2013. 1. Victim L.M.D. (Counts 5

- 22)
L.M .D. was the daughter of Dawn’s half sister. She was bor n in July 1988.
L.M.D. recalled an incident that occurred when she was 1 0 years old. She was at a family graduation party in Yreka watching a movie. Defendant came in and sat next to her on the couch . They were alone in the room. Defendant placed his fingers between L.M.D.’s legs and moved his fingers around, up and down and in a circular motion on the outside of her vagina underneath her clothes

. She was scared and sho cked, and she did
not know what to do. D efendant eventually stopped. He told her not to say anything or she would get in trouble. After they moved away, defendant and Dawn would visit California approximately once a year. L.M.D. testified that sexual incidents occurred on those
visits

. According to L.M.D., defendant would enter her bedroom and insert his fingers in her vagina. At some point after Dawn and defendant returned from Germany, they obtained guardianship of L.M .D. L.M.D. joined Dawn, defendant, and the couple’s son in North
Carolina in Ju ne 2002 , when she was 13 years ol d.
L.M. D. acknowledged that, when she previously spoke to law enforcement, she said she was younger when she went to North Carolina, because she “got [her] times5

mixed up of when [she] went to North Carolina. [She] thought [she] was a lot younger than what [she] was.” This is discussed in detail in part I of the Discussion, post

. L .M.D. remembered going to church with defendant and Dawn while in North
Carolina. D efendant would point out “what little girls he thought were hot.” L .M.D. estimated the ages of the se girls to be nine to 11 years old. She also testified defendant always told her how cute he thought she was, and that he thought she had a nice body.
D ays after L.M.D. arrived in North Carolina, defendant began to touch her again

. On the first occasion, she was sleeping in he r room when d efendant came in, kissed her,
and stuck his hands down her pants. L.M.D. testified: defendant “would come into my
bedroom before he went to work because he would leave like 5:00 or 5:30 in the morning. He would come and wake me up and kiss me and put his hands between my legs again through my underwear, touch me there. And then once in a while I would
suck his penis.” She testified defendant would put his fingers inside her vagina. According to L. M

. D ., “[i]t was like couple days a week fo r each thing .” D efendant inserted his fingers in her vagina approximately four or five days a week, and had her orally copulate him approximately “every two days.” This went on each week for as long

as she was in North Carolina. She stayed in North Caro lina approximately three weeks to a month and left before her 14th birthday at the end of July. T hese incidents continued “up until the day [she] left.”
L. M.D. saw defendant again at her grandmother’s house approximately six months
after she left North Carolina. Defendant asked her if she wanted to have intercourse and she responded that she did not know. Defendant lay on the bed and “inserted it.” L.M.D. testified: “I remember being in my grandparent’s room and I was just wearing a shirt and then we had intercourse in my grandparents’ bed.” L.M.D. obtained her driving permit when she was 15 and d efendant would take her driving. He would put his hand o n her crotch, sometimes on the inside of her pants,
sometimes on the outside. Defendant took her driving “pretty much on a daily basis” or6

two to three days a week and he touched her vaginal area, although not every time they

went driving. He touched her at least once a week over a period of four to six months. Even after their last sexual contact, d efendant “[w]ould contact [ L.M.D. ] on

. . . Yahoo Messenger asking about sexual intercourse again or he would text [her] cell phone and ask for nude picture s.” According to Dawn, defendant was “always on the computer.” She became suspicious. Upon investigating Yahoo Messenger messages on the computer, Dawn “discovered inappropriate conversations between [L.M.D.] and the defendant.”
L.M.D. testified that, at one point, defendant was trying to get his military benefits reinstated following the court martial. Dawn’s sister contacted L.M.D. and said she would give L.M.D. $100 if she would write a letter saying nothing ever happened
between defendant and L.M. D

. L.M.D. , who, for a time, had turned to drugs to “numb a lot of the pain,” testified that, “at that point in my life I was really low, I could use a hundred dollars.” So she wrote and sent the letter. 2. Victim A.M. (Evidence Code Section 1108 Witness)
A.M

. ’s father was in the military and for some time they lived at Fort Bra gg, North Carolina. Defendant’s family lived across the street. O ne day, when A.M. was about six years old, she went over to defendant’s house to watch a movie. Defendant sat

next to her on the couch and put his hands on her. He placed his hands on her upper leg and then put his hand up the pantleg of her shorts. Defendant touched A.M. on her vagina under her shorts but over her underwear. A.M. tried to move away but defendant persisted. When A.M. was 10, she testified in defendant’s court martial. She was frightened when she testified and she could not bring herself to identify defendant as the person who
abused her

. She believed defendant was found not guilty at the court martial. A t this7

trial, A.M. testified defendant was the person who abused her, and she had no doubt
about that. 3. Vic tim N.C.C. (Count 1)
Dawn’s brother Michael and his wife Adrienne had a daughter, N.C.C. She used to spend time with her cousin, defendant and Dawn’s daughter, and sometimes would spend the night at t he i r hou se. One night, in the summer of 2012, when she was eight years old, N.C.C. was sleeping over. She and her cousin shared the same bed. At one point, N.C.C. woke up to find defendant sitting next to the bed

. H e had his hand in her
underwear and was touch ing her vagina under her clothing. N.C.C. rolled away but defendant “kept continuing.” Every time she tried to move away, defendant would stop, but when she stopped moving, he would resume

. Finally, N.C.C. said , “stop” very quietly and d efendant stopped.
N. C.C. initially did not tell anyone what happened , and then defendant moved to
another state

. However, after a while, defendant moved back and N.C.C. “figured it was time I should tell everyone what happened.” She could not figure ou t how to tell people

. Ultimately, s he wrote a letter and gave it to her mother. After reading the letter,
Adrienne called Dawn and read the letter to her

. Dawn called the police

. N.C. C. read the letter to the jury at trial. Sheriff’s Deputy Mireya Ca bron met with Dawn and N.C.C., and took the letter.
Dawn informed Cabron about another relative who claimed defendant had sexually
abused her. Cabron then went with Dawn to L.M.D.’s house

. L.M.D. told Cabron
defendant had sexual intercourse with her and, in North Carolina, had her perform oral
sex on him

. 4. Victim B.B. (Counts 2

- 4)
B.B

. was 11 years old at trial and was born in July 2007. Her mother was Jacki (Jacqueline) and her step father was Mikey (Michael), defendant’s brother. D efendant8

s tayed with them in Yreka. B.B. testified that, on one occasion, she got in trouble and was supposed to go to her room. She got bored and went into the room where defendant was staying at the time. B.B. asked if she could play on his phone. While B.B. p layed on defendant’s phone, he called her hot and told her not to tell anyone , and then he tried to touch B.B.’s private parts, which she also referred to at trial as “the pee spot.” B.B. backed up before defendant could touch her. Eventually, however, d efendant did touch
B.B. ’s private part.
On anot her occasion, B.B. was in the living room. Defendant was sitting o n the couch and B.B. was doing somersaults on the couch. D efen dant put his hand up “[s]o he was like trying to touch [her] privates.” At one point, he did touch B.B.’s privates with
his arm

. She testified that he probably touched her private part twice while they were on
the couch.
Michael acknowledged that, at some point, defendant offered to show him photographs of Dawn naked. Jacqueline observed defendant at his apartment having “candy parties” where he
would have lots of kids over, mostly girls. She also saw him at Walmart buying
elec tronics for three girls whom Jacqueline estimated to be between 10 years old and in the eighth grade. 5. Victim B.W.
B.W . was born in July 1999. W hen she was 14, defendant sent her a Facebook message stating that she went to school with his kids. They began messaging over Facebook and then communicated by phone calls and text messages. Then they started to spend time together. Defendant would take B.W. to and from school and help her with
her homework. He also bought her things she could not afford like a phone and fast food.
Over time, the messages defendant sent to B.W. became sexual in nature

. Defendant sent her pictures, including a picture of a girl without clothes and said he9

wanted to have sex with her. B. W. sent 20 or more pictures to defendant , including pictures of herself in underwear and completely naked

. She was between 14 and 16 years old at the time

. At some point, B.W. discovered d efendant was involved in a relationship with an underaged girl she knew, A.D. , which both defendant and A.D. confirmed.
6. Victim A.D. (Evidence Code Section 1108 Witness) A.D. was 17 years old at trial. B. W. introduced A.D. to defendant when A.D . was 14 years old. A. D.’s mother was hospitalized, and the first time she met defendant, he gave her a ride, and they started hanging out together. They would spend time together at parks, at the library, at A.D.’ s house, and defendant would take A.D. to school.
A sexual dimension to the relationship began shortly after A.D. and defendant

met. On the first day of school, defendant offered to give A.D. a ride. He picked her up to take her to school, but they wen t to a park first. When they got to the park, defendant
kissed A.D.
On another occasion, A.D. was with defendant in his car and he touched her vaginal area. He first touched her over her clothes, and then touched her under her clothing. He touched her both on the outside and inside of her vagina. She recalled that this sort of touching occurred at four to six places including a hotel and at her mother’s
house.
O n other occasions, defendant asked A.D. to touch his “private part,” and she did so. Asked how many times this occurred, A.D. responded, “[t]oo many,” and more than
20 times.
A.D. testified that defendant had intercourse with her “[m]any” times.
A.D. recalled a time when s he was staying in a hotel with defendant and law enforcement came to the room. They asked her questions about whether anything sexual10

was happening. A.D. told law enforcement , on more than one occasion, there was nothing sexual going on between her and defendant.
Yreka Police Officer Scott Daugherty testified that, o n October 9, 2016, he was dispatched to a hotel room in Yreka. He knocked on the hotel room door and defendant
answered. Defendant claimed he was there alone. Daugherty told defendant there was a report o f a female juvenile with him against her will. Daugherty asked for consent to search the room, but defendant refus ed. Daugherty told defendant he would simply wait
and see who came out of the hotel room. Defendant then stood back and A.D. came to
the do or. Daugherty believed A.D. was 14 or 15 at the time. A.D. told Daugherty nothing sexual was going on between her and defendant. Daugherty testified th is “was not the first time that we’ve talked about this with” her.
A fter defendant’s arr est, A.D. had hi s car keys. She collected defendant’s possessions from his car , including a laptop and hard drives. A.D.’s godmother found the
electronics and turned them in to the police.
7. Additional Testimony Concerning the Investigation and Defendant’s Electronics Doug Dahmen, an Investigator with the Siskiyou County District Attorney’s office, testified about his review of a report concerning defendant’s hard drives. He found some personal information as well as photos, videos, and documents. A number of the images and videos “had a TOR Browser attached to them , ” which allows one to
access the “ dark web. ” Dahmen testified that more than 264,000 items had the TOR signature.
Detective Matthew Thoma examined defendant’s laptop and hard drives

. On both the laptop and an external hard drive, Thoma found a large number of images of what he
believed to be child pornography. The laptop included TOR clients used to access the
dark web.11

District Attorney Investigator Yves Pike reviewed a flash drive prepared by Thoma containing material extracte d from defendant’s electronic devices. Pike reviewed text messages and photos exchanged between defendant and B.W. Pike also found a number of photographs of another girl, J.F. , “that appeared to have been taken surreptitiously of [her] in states of part ial undress and/or asleep by” defendant.
Pike testified that, between the laptop and hard drive, there were approximately 385,000 still images and 7,800 videos of child pornography. Pike testified: “We found images of a pornographic nature ranging from a month or two old up to adults.” Pike also described two guides he found on how to safely have sex with young girls. Defense Evidence
D efendant ’ s daughter testified s he did not recall ever being woken up by her father coming into the room when N.C.C. was sleeping over. Defendant denied sexually abusing the alleged victims and soliciting naked photos
from B.W

. He also denied raping Dawn. Defendant also denied ever accessing the dark web or downloading child pornography.
Defendant acknowledged having a sexual relationship with J.F., but he believed
she was 18 at the time. H e acknowledged taking photos of her , although he testified she
ha d been aware he was doing so. Defendant acknowledged that, at one point, A.D. was in a hotel room with him.
She came to the room and told him she had been in a fight with her mother because there was nothing to eat at her house , and her mother kicked her out. Defendant did not let A.D. stay the night, but she returned the following morning. Defendant got her breakfast,
and s he ate it in the hotel room. He recalled law enforcement coming to his room and h e denied telling them he was alone. He clarified that law enforcement said there was someone being held against her will and he responded that there was no one there against
their will. He denied engaging in any sexual activity with A.D.12

Defenda nt testified that six charges were asserte d against him at the court martial.
T he results of the court martial were: “Not guilty on all counts except for one, there was
a lesser i ncluded account of assault and battery; and the jury convicted [defendant]

. . . and [ he ] was sentenced for that one lesser included assault and battery.” However, that
conviction was overturned on appeal. Defendant testified that all of the alleged victims who had accused him had lied. Verdict and Sentence The jury found defendant guilty on all counts. The jury also found true all enhancement allegations with the exception of the allegation attached to c ount 26 that the
victim was a minor at the time of the offense and defendant knew the victim was a minor. The trial court sentenced defendant to an aggregate term of 41 years four months plus 60 years to life calculated as follows: 15 years to life cons ecutive on counts 1 through 4, the upper term of eight years on count 5 , the principal term , consecutive two

year term s, one third the midterm , on counts 6 through 20 , consecutive eight

- month terms, one third the midterm, on counts 21 through 25, and a concurrent term of 180 days
on count 26. 

### D ISCUSSION 

### I
Section 1387 and the Two Dismissal Rule Section 1387, subdivision (a), provides, in part and with four enumerated exceptions not relevant here: “An order terminating an action pursuant to this chapter, or Section 859b, 861, 871, or 995, is a bar to any other prosecution for the same offense if it is a felony .

. . and the action has bee n previously terminated pursua nt to this chapter, or Section 859b, 861, 871, or 995.

. . .” “This commonly is called in felony cases the two dismissal rule.” ( People v. Mason (2006) 140 Cal. App.4th 1190, 1195

. )13

Defendant’s contentions , summarized post , relate solely to counts 11 thr ough 20 of the third consolidated information. These are the counts alleging conduct committed against L.M.D. in North Carolina in 2002. To analyze defendant’s contentions, we must
trace the evolution of c harges alleging conduct against L.M.D. in North C arolina. We limit our discussion to only those counts relevant to this analysis. Case No. SCCR

- CRF

- 2017

- 368 The prosecution filed a felony complaint in case No. SCCR

- CRF

- 2017

- 368, accusing defendant of two counts of lewd act on a child under 14 ( § 288, subd. (a) and
one count of lewd act on a child aged 14 years old ( § 288, subd. (c)(1)). The victims were
ident ified as Jane Does 1 through 3. The acts were alleged to have occurred in or about May 2012 ( c ount 1), March 16, 2017 ( c ount 2), and September 2016 ( c ount 3). There was no reference to North Carolina or acts occurring there.
T he prosecut ion moved to amend the complaint , among other things, to add c ounts 4 and 5 , violations of sections 288.5, subdivision (a), and 288 subdivision (c)(1)

. The prosecution stated , “the victim of the newly amended counts 4 and 5 was mentioned in the discovery provided to t he defendant. However, it appeared as though her victimization took place outside the jurisdiction of this Court. Further investigation determined that jurisdiction here is proper and the amendment is appropriate.” We note that section 778a, subdivision (a), provides: “Whenever a person, with intent to commit a crime, does any act within this state in execution or part execution of that intent, which culminates in the commission of a crime, either within or without this state, the person is punishable f or that crime in this state in the same manner as if the crime had been committed entirely within this state.” The prosecution filed an amended felony complaint on April 11, 2017 , charging defendant, insof

ar as relevant here, with continuous sexual abuse of L.M.D , a child under the age of 14 ( § 288.5, subd. (a); count 4) , alleging defendant engaged in three or more14

lewd and lascivious acts as defined in section 288 on or about “June to August 1996 and
1997

. ” The amended felony complaint alleged: “[t]hese crimes took place in the State of North Carolina but are within the jurisdiction of the County of Siskiyou pursuant to .

. . section 778a.” Also on April 11, 2017 , the trial court conducted a preliminary hearing. D eputy Cabron testified that L.M.D. , who was born in July 1988, told her that when she was 14, “she had gone to North Carolina to stay with [defendant] and Dawn and [defendant] had touched her inappropriat ely multiple times and asked her to suck his dick every day before he would go to work.” According to Cabron , L.M.D. indicated she had stayed in
North Carolina , and this conduct continued, for approximately three months. Cabron testified that, in a follo w
- up interview with L.M.D., she clarified that the incidents in North Carolina occurred when she was nine or 10 years old, in 1996 or 1997. L.M .D.
told Cabron that, during this time, “defendant would come into her bedroom in the morning and take her pants off and insert one or two of his fingers into her vagina

. . . .” L.M.D. told Cabron defendant “would also ask her to suck his dick.” Following the preliminary hearing, the trial court concluded: “The Court is .

. . persuaded that there is adequate reason to believe that there is a violation of .

. . section 288.5(a) as a felony as alleged in count four and that although the acts occurr ed in North Carolina that the nature of the acts are such that they are within the jurisdiction of Siskiyou County pursuant to” section 778a. The court held defendant to answer on count
4. The prosecution filed an information on April 24, 2017. T he information charged
defendant with continuous sexual abuse of a child under the age of 14 ( § 288.5, subd. (a); count 3) occurring “[o]n or about June to August 1996 and 1997.” The information echoed the complaint’s jurisdictional basis under section 778a.
On June 20, 2017, the prose cution announced it was ready to proceed . A
discussion was then held off the record. Ther e after, when the court asked if the15

prosecution was ready to proceed, the prosecutor responded: “The People are ready to proceed, howev er, I understand that there have been arrangements made in this trial. The People will honor that. And that arrangement involves at this point the People to dismiss the case subject to refiling, which I’m prepared to do right now.” The court stated it w as dismissing the information , to which defense counsel offered a cursory speedy trial objection

. The Attorney General asserts that a subsequent filing “shed some light” on the nature of these “arrangements.” The passage on which the Attorney General rel ies states: “The People moved to continue the trial at the victim’s request

. . . . When this motion was denied the trial was trailed behind another felony trial being conducted by [defendant’s] attorney. The People agreed to trail this trail [ sic ] with the understanding, and upon the prosecutor’s representation, that the case would be dismissed and refiled if the other trial went forward and eclipsed the defendant’s time waiver period. The Peop le agreed to this because the Bureau of Investigation was s till conducting follow

- up investigation.” Case No. SCCR

- CRF

- 2017

- 795
On the same day, June 20, 2017, the prosecution filed a felony complaint in case
No. SCCR

- CRF

- 2017

- 795. In count 3, the felony complaint charged defendant with
continuous sexual abuse of a child under the age of 14 ( § 288.5, subd. (a); count 3) occurring “[o]n or about June to August 1996 and 1997.” The information alleged that

t hese crimes took place in North Carolina but jurisdiction was proper pursuant to section
778a. Deput y Cabron again testified at the July 7, 2017, preliminary hearing that L.M.D., born in July 1988, stayed with defendant and Dawn in North Carolina for a

summer. L.M.D. reported this was when she was 14 years old. Cabron testified that L.M.D. reported tha t, while she was staying at defendant’s house in North Carolina, he16

would come into her room and ask her to “ ‘[s]uck his dick,’ ” and she complied.
Defendant would also take her pants off and insert his fingers in her vagina. L. M.D. reported these incidents occurred at least 10 times. As she had at the prior preliminary hearing, Cabron testified that, in a subsequent conversation, L.M.D. stated that the
incidents in North Carolina , occurring in 1996 or 1997 , occurred when she wa s younger than previously indicated. Investigator Pike subsequently testified at the preliminary hearing that, in an interview on June 20, 2017, L.M.D. was uncertain about the exact year the molestation in
North Carolina occurred, but “it was during the time that Dawn .

. . and [defendant] had custody of her, legal guardianship.” Pike then verified defendant and Dawn obtained guardianship of L.M.D. on February 13, 2002

. T he prosecutor noted that there had been quite a bit of discussion about the time
f rame and that, given L.M.D.’s age and the length of time that has passed since the events, “it’s understandable the dates would be a little unclear to her.” T he prosecutor stated: “I don’t have an explanation of why she was saying 1996 to ’97, we did sen d our investigators back to try to establish that. Established that in 2002 guardianship was given to the defendant, that she went there at that time or shortly thereafter, and was 13
until June [ sic ] 27 , 2002, when she turned 14.” Thus, the prosecutor stated, “I think Count 3 should be amended to say June to July 27th, or 26th

-- to July 26th, 2002. And that would accurately reflect the testimony.” Defense counsel noted that section 288.5, subdivisio n (a), “says that the duration of the events needs to be not less than three months, so the amendment itself vaguely doomed the charge because the time frame is less than three months.” Defense counsel also objected to count 3 on section 778a grounds.
T he prosecutor replied, “[h]e is obviously right about Count 3 in terms of the
three

- month time period. So what we will do is we will be filing an Information with all of the 288s from July of that year laid out , ” thus indicating the prosecution’s intentio n to17

abandon the section 288.5 continuous sexual abuse theory in favor of discrete section 288 allegations

. The trial court found probable cause as to all counts of the felony complaint except
count 3. The court concluded: “Count 3 has not been adequate ly proven based on the
time frame. The fact that there was no evidence that three or more months passed
between the first and last acts

. . . . ” On July 21, 2017 , the prosecution filed a 19

- count information. Counts 5 through
1 6 pertained to L.M.D. With regard to the incidents occurring in North Carolina, the information alleged five counts of sexual penetration by a foreign object ( § 289, subd. (j); counts 7, 9, 11, 13, 15) and five counts of oral copulation of a person under 1 4 (former § 288a, subd. (c)(1); counts 8, 10, 12, 14, 16). Each pair of counts, consisting of one sexual penetration count and one oral copulation count, alleged the incidents occurred during a specified week between June 16, 2002, and July 26, 2002. The information alleged section 778a as the basis for jurisdiction

. Defendant moved pursuant to section 995 to set aside the information. With regard to the counts charging conduct in North Carolina, defendant’s motion was premised on jurisdiction and sect ion 778a . Defendant asserted : “[n]o evidence presented at the preliminary hearing or in discovery establishes contact with [L.M.D.] before she moved to North Carolina. Because there is no evidence of some preparatory act

. . . in California, the general rule prohibiting prosecution of conduct that occurred outside its borders deprives this court of jurisdiction over the North Carolina conduct reflected in
counts 7

- 15.” It would appear defendant unintentionally omitted count 16. The trial court granted defendant’s section 995 motion as to counts 5 through 16. As to counts 7 to 16, the court concluded there was not “any basis of fact of the preliminary events that would be necessary to be established having taken place in Siskiyou County so that the North Carolina events could be charged based on the record from the preliminary hearing.”18

Case No. SCCR

- CRF

- 2017

- 1271
T he prosecutor next filed a felony complaint in case No. SCCR

- CRF

- 2017

- 1271 which incorporated the counts stricken from case No. SCCR

- CRF

- 2017

- 795. Each of the 12 counts in the felony complaint pertained to L.M.D. Counts 3 through 12 pertained to conduct occurring in North Carolina between June 16, 2002, and July 26, 2002. They essentially duplicated counts 7 through 16 of the information in case No. SCCR

- CRF

2017

- 795. Following the preliminary hearing testimony of Invest igat or Pike, the trial
court held defendant to answer on all 12 counts. Subsequently, the prosecution filed a 16

- count information. Counts 7 through 16 corresponded to the counts in the felony complaint concerning conduct against L.M.D. in
North Carolin a

. Defendant’s Motion to Dismiss Pursuant to Section 1387
D efendant filed a motion pursuant to section 1387 to dismiss “the above entitled

matter because the charges have been twice dismissed, and there is no exception which allows the prosecution to file the charges a third time, or otherwise continue with its prosecution of said charges.” Defendant asserted the “charges in question have already been dismissed twice, once by the prosecution on June 20, 2017, and then via .

. . Section 995, on August 31, 2017.”
The prosecution opposed the motion , asserting that counts 7 through 16 had not
been dismissed twice. The prosecutor asserted, “Count 3 i n docket 17

- 368 alleged a
violation of .

. . § 288.5(a) with L.M.D. as the victim, having taken place in North Carolina between June 1996 and August 1997. Counts 7 through 16 are acts of sexual abuse against victim L.M.D. in North Carolina in June and Jul y 2002. Such allegations
were never made in docket 17

- 368. They first made the appearance in counts 7

- 16 of
docket 17

- 795 and are now charged in docket 17

- 1271.” The prosecution further asserted that even if the charges had been twice dismissed, the sec ond dismissal did not fall under
section 1387. The prosecutor asserted: “The charges contained in counts 7 through 16 in19

docket 17

- 1271 are based upon evidence underlying previous charges that were
dismissed as counts 7

- 16 in docket 17

- 795 by the Court f or lack of jurisdiction . This dismissal does not qualify as an ‘interest s of justice’ dismissal pursuant to section 1385.
Therefore it is not a dismissal ‘ as defined in Section 1387’ as required by that section and is not subject to the two dismissal rul e.” Finally, the prosecutor asserted that refiling of these counts was permissible under the doctrine of excusable neglect. (See § 1387.1

. )
In a supplemental filing , d efendant asserted the June 20, 2017, dismissal of the continuous sexual abuse charges in case No. SCCR

- CRF

- 2017

- 368 on the prosecution’s
motion constituted the first dismissal. T he second dismissal occurred in case No. SCCR

CRF

- 2017

- 795. “At the prelimin ary hearing, which was held for 17

- 795, on July 7, 2017, count three,” continuous sexual abuse of L.M.D. “was again dismissed when the magistrate did NOT hold the defendant to answer on that count.” Defendant asserted: “The result of the prosecution’s di smissal of 17

- 368 (including count 3

— continuous sexual abuse), when combined with the magistrate’s decision NOT to hold to answer on the same allegations in the subsequent filing of 17

- 795 (including count 3

— continuous sexual abuse), is that a prosecution of that charge/allegation is barred. The ultimate result is that the corresponding allegations in our current complaint, case number 17

- 1721, are barred and must be dismissed.” At oral argument before the trial court, t h e prosecutor argued: “This isn’t nearly as complicated as is being suggested. [Defense counsel] was present for the last preliminary hearing that led to this, and at that preliminary hearing supervising investigator Pike testified that these all came from the subsequent interviews. The se hav e nothing to do with that original 288.5” Further, the prosecution argued that dismissal on the section 995 motion was jurisdictional and thus did not effect a dismissal within the meaning of section 1387. The trial court denied defendant’s motion to dismiss.20

On January 9, 2018, the t rial court granted the prosecution motion to consolidate
case No. SCCR

- CRF

- 2017

- 795 with case No. SCCR

- CRF

- 2017

- 1271, consolidating
under the former . On January 16, 2018, the prosecution filed a 23

- count consolidated
information under case No. SCCR

- CRF

- 2017

- 795

. Case No. SCCR

- CRF

- 2018

- 560 On April 17, 2018, the prosecution filed a felony complaint in case No. SCCR

CRF

- 2018

- 560, charging defendant with one count of possessio n of matter depicting a minor engaging in sexual conduct. ( § 311.11, subd. (a).) The trial court granted the prosecution’s motion to consolidate this count with case No. SCCR

- CRF

- 2017

- 795. On April 11, 2019, the prosecution filed the operative 26

- count third consolidated
information under case No. SCCR

- CRF

- 2017

- 795. Defendant’s Contentions Defendant asserts that counts 11 through 20 have been dismissed three times, they
are thus procedurally barred pursuant to section 1387, and the trial court erred in denying
his motion to dismiss those counts. According to defendant, t he first dismissal occurred on June 20, 2017, in case No.
SCCR

- CRF

- 2017

- 368 , when , on the prosecution’s reques t , count 3 of the information, charging defendant with the continuous sexual abuse of L.M.D. occurring “[o]n or about June to August 1996 and 1997” in North Carolina in violation of section 288.5 was dismissed.
Defendant asserts t he second dismissal occu rred in case No. SCCR

- CRF

- 2017

- 795, when the trial court found probable cause lacking as to count 3 of the felony information, charging one violation of section 288.5. The court concluded: “Count 3 has not been adequately proven based on the time frame

. The fact that there was no evidence that three or more months passed between the first and last acts

. . . . ”21

The third dismissal, by defendant’s count, occurred when the trial court granted that branch of defendant’s motion which was to dismiss counts 5 through 16 of the information pursuant to section 995, all pertaining to L.M.D. as the victim. C ounts 7 through 16 alleged conduct occurr ing in North Carolina. Section 778a provided the basis for jurisdiction. The alleged acts occurred between June 16, 2002, and July 26, 2002. In granting defendant’s motion, the trial court concluded there was not “any basis of fact of the preliminary event s that would be necessary to be established having taken place in Siskiyou County so that the North Carolina events could be charged based on the record from the preliminary hearing.” Analysis The charge dismissed on June 20, 2017, on the prosecution’s request, in case No.
SCCR

- CRF

- 2017

- 368, was a n alleged violation of section 288.5, subdivision (a), based
on continuous sexual abuse of L.M.D. in North Carolina. This continuous sexual abuse was alleged to have occurred “[o]n or about June to August 1996 and 1997

. ” Defendant asserts this constituted the first dismissal for purposes of section 1387. The Attorney
General counter s that this count “implicated a materially different timeframe” than the subsequently filed counts, including the current counts, alleging conduct occur ring in June and July of 2002.
The operative charges at issue here consist of five counts of sexual penetration by a foreign object against a child, L.M.D., under the age of 14 ( § 289, subd. (j); counts 11, 13, 15, 17, 19) , and five counts of oral copulation of a child, L.M.D., under the age of 14 (former § 288a, subd. (c)(1); counts 12, 14, 16, 18, 20). These acts allegedly occurred in
North Carolina between June 16, 2002, and July 2 7 , 2002. These statutory violations on these 2002 dates were first specifically alleged as such in the July 21, 2017, information
in case No. SCCR

- CRF

- 2017

- 795.22

Thus, w e must consider whether the section 288.5 count allegedly occurring in
1996/1997 as charged in case No. SCCR

- CRF

- 2017

- 368 , on the one hand, and the
violations of section 289 and former section 288a in 2002, on the other, are the “same offense[s]” as that term is used in section 1387

. “What the Legislature means by ‘same offense’ ” in section 1387 “is far from clear.” ( People v. Juarez (2016) 62 Cal. 4th 1164, 1169 ( Juarez ).) Section 1387 does not “automatically ‘apply to all charges arising from the same conduct or behavior of the defendant.’ ” ( Juarez , at p. 1172, quoting People v. Traylor (2009) 46 Cal. 4th 1205,
1213 , fn. 6.) Our high court in Juarez stated that its prior case s interpreting section 13 87 “make clear that in interpreting what is and what is not the ‘same offense’ under section 1387, courts must consider the statute’s purposes.” ( Juarez , at p. 1173.) “Section 1387 implements a series of related public policies. It curtails prosecutorial harassment by placing limits on the number of times charges may be refiled. [Citations.] The statute also reduces the possibility that prosecutors might use the powe r to dismiss and refile to
forum sho p. [Citations.] Finally, the statute prevents the evasion of speedy trial rights through the repeated dismissal and refiling of the same charges.” ( Burris v. Superior
Court (2005) 34 Cal. 4th 1012, 1018 ( Burris ) ; accord, Juarez , at p. 1170.)
In Juarez , our high court considered whether attempted murder and conspiracy to commit murder were the same offense for purposes of section 1387. ( Juarez, supra , 62 Cal. 4th at p. 1169.) Initially, our high court noted that whether the charges at issue contained identical elements was “only part of the question.” ( Id . at p. 1170.) However,
the court also stated that, “when the later offense contains the same elements as the twice

dismissed charge, it is the same offense.” ( Id . at p. 1173.) Our high court subsequently stated: “examining the statutory elements is not the only method to determine whether one crime is included in another. In many circumstances where we are seeking to identify a lesser and necessarily includ ed relationship, ‘we apply either the elements test or the accusatory pleading test. “Under the elements test, if the statutory elements of the23

greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former.” ’ ” ( Id . at p. 1174.) Our high court noted that, in Dunn v. Superior Court (1984) 159 Cal. App.3d 1110 ( Dunn ), the Court of Appeal applied the accusatory pleading test in the context of section
1387. ( Juarez, supra , 62 Cal. 4th at p. 1174 .) In Dunn , the Court of Appeal stated t hat, “[a]lthough every robbery does not include an auto theft, the concept of necessa rily included offenses permits reference to the facts in the accusatory pleading.” ( Dunn , at
p. 1118.) The court concluded that “the essence of the auto theft and robber y is the same since the robbery was specifically alleged to be the taking of the same automobile.” ( Dunn . at p p. 1118

- 1119.) Following its discussion of Dunn , our high court in Juarez

stat ed, “respecting multiple felony offenses

. . . if, as pleaded, eit her charge is necessarily included in the other charge, the new charge is the same of fense under section 1387.” ( Juarez , at p. 1174.) Thus, in Juarez , our high court concluded: “Applying this test, the conspiracy to commit murder charges, as pleaded, are the same offenses as the previously dismissed attempted murder charges. The element of attempted murder that is missing from conspiracy to commit mu rder is a direct but ineffectual act toward accomplishing the intended killing. The felony complaint in this case alleged several overt acts regarding each conspiracy charge, including actu ally shooting the intended victim of each alleged conspiracy. All eging an actual shooting of the intended victim necessarily also alleges a direct act toward accomplishing the intended killing. Accordingly, as pleaded, the conspiracy charges include all of the elements of the previous attempted murder charges, thus mak ing them the same offenses as the previous charges.” ( Ibid .) Defendant maintains that the later charged cou nts under forme r section 288a (now § 287) and section 289 are lesser included offenses of the earlier

- charged section 288.5. Subdivision (a) of section 288.5 requires the prosecution to prove that a defendant “who24

either resides in the same home with the minor child or has recurring access to the child,

. . . over a period of time, not less than three months in duration, engage[d] in three or

more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivi sion (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense

. . . .” “[S]ubstantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066” ( § 288.5, subd. (a)) “ means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any forei gn object, oral copulation, or masturbation of either the victim or the offender” ( § 1203.066, subd. (b )). For pr esent purposes, based on the foregoing guidance from our high court, we

a ssum e , as a general matter, the alleged violatio ns of former section 288a (now § 287)
and section 289 would properly be characterized as lesser included offenses of section
288.5

. Ho wever, we agree with the Attorney General that the factual allegations , specifically with regard to the time frame of the alleged offenses, preclude a determination that these were the “same offense[s]” within the meaning of section 1387.
N either party has directed us to any case law directly on point on this issue, and our independent research has not reveal ed any. Nevertheless, based on the language of the statute, the legislative purposes as described by our high court, and additional ca se law, we conclude the allegations of continuous sexual abuse occurring in North Carolina in 1996 or 1997 were not the “same offense[s]” within the meaning of section 1387 as the subsequent allegations of violations of section 289 and former section 288a (now § 287) occurring in North Carolina in 2002.
T he prosecution alleged in the felony complaint in case No. SCCR

- CRF

- 2017

- 368 that the charged conduct occurred on or about “June to August 1996 and 1997.” At the April 11, 2017, preliminary hearing , Deput y Cabron testified that L.M.D., who was born25

in July 1988, told her that when she was 14, “she had gone to North Carolina to stay with [defendant] and Dawn and [defendant] had touched her inappropriately multiple times and asked her to suck his dick every day before he would go to work.” Cabron testified that, in a follow

- up interview, L.M.D. clarified the incidents in North Carolina occurred when she was nine or 10 years old, in 1996 or 1997. Hence, based on L.M.D. ’s statements to law enforcement, the pr osecution charged defendant with conduct occurring on or about “June to August 1996 and 1997.” A subsequently filed information charged defendant in count 3 with a violation of section 288.5 occurring “[o]n or about June to August 1996 and 1997.” This is the information that was dismissed in case No. SCCR

CRF

- 2017

- 368. As the Attorney General notes, when the prosecution filed the accusatory
instruments in case No. SCCR

- CRF

- 2017

- 368, based on the evidence, it had no basis whatsoever to allege conduct by defendant against L.M.D. in North Carolina occurring in
2002. Rather , the prosecution charged the offenses as occurring in 1996 or 1997 based
on the facts before it. This was no mere typographical error. At this point, the evidence only supported charging defendant with crimes occurring against L.M.D. in North
Carolina i n 1996 or 1997. Defendant emphasizes Deputy Cabron testified at the preliminary hearing on April 11 , 2017, that L.M.D. reported the incidents occurred when she was 14 and that she
was born in 1988. However, Cabron also testified at th at preliminary heari ng that, in a
follow

- up interview , L.M.D. “ clarified that it was when she was nine or ten years old,”
and she “stated it was in 1996 or 1997.” Defendant asserts it was incumbent upon the prosecution to resolve this “obvious discrepancy.” However, Cabron’ s testimony that L.M.D. subsequently clarified the incidents took place when she was nine or 10 and occurred in 1996 or 1997 did not give rise to a discrepancy

. Rather, it seemingly
resolved a discrepancy presented by Cabron’s testimony that L.M.D., who w as born in 1988, reported that the incidents occurred in 1996 or 1997 when she was 14

.26

T h us , when the accusatory instruments were filed in case No. SCCR

- CRF

- 2017

- 368, the prosecution could not possibly have charged defendant with offenses against
L.M.D. in North Carolina in 2002. When the true facts came to light and the prosecution charged defendant with similar conduct , it charged him with conduct alleged to have
occurred at a time five to six years l ater. W e conclude that these were not the “same offense[s]” within the meaning of section 1387. The next dismissal, according to defendant, occurred in case No. SCCR

- CRF

2017

- 795, when the trial court found probable cause lacking as to count 3 of the fel ony information, charging one violation of section 288.5. The court concluded: “Count 3 has not been adequately proven based on the time frame . The fact that there was no evidence that three or more months passed between the first and last acts

. . . . ” However, again, at the time of this colloquy on Ju ly 7 , 2017, and the trial court’s resulting dismissal of coun t 3 charging defendant with violation of section 288.5, the felony complaint alleged that the conduct at issue occurred “[o]n or about June t o August 1996 and 1997.” The prosecutor did state: “I think Count 3 should be amended to say June to July 27th, or 26th

-- to July 26th, 2002. And that would accurately reflect the testimony.” However, on this record, the prosecutor did not actually mo ve to amend
count 3 and the trial court did not rule on any such motion. In his opening brief, defendant asserts that the prosecutor moved to amend to reflect the correct time period. However, while the prosecutor noted that count 3 should be amended, there is no oral or
written motion in the record to amend the felo ny compl aint, nor is there any court ruling
on such a motion

. Nor does the record support defendant’s contention in his reply brief that “the record is clear that all the parties considered the complaint amended to reflect the new time frame.” That the parties c ontemplated the legal sufficiency of the evidence concerning the new time frame in reference to the section 288.5 “not less than three months in duration” element does not establish th e parties deemed the count amended to27

reflect the 2002 time frame, or, m ore importantly, that the court granted a motion to
amend

. Accordingly, with regard to what defendant asserts to be the second dismissal, the same analysis applies as did to the first dismissal: these offenses were alleged to have
occurred in 1996 and/or 1997, and were not the “same offense[s]” for purposes of section 1387 as those charged in subsequent charging instruments as occurring in 2002. E very accusatory instrument filed after this point in time , including the operative third consolidated information, alleged defendant’s offenses against L.M.D. committed in
North Carolina occurred in 2002. According to defendant, the third dismissal occurred when the trial court granted
hi s motion which was to dismiss counts 7 through 16 of th e information in case No.
SCCR

- CRF

- 2017

- 795 pursuant to section 995. The court s tat ed there was not “any basis of fact of the preliminary events that would be necessary to be established having taken place in Si skiyou County so that the North Carolina eve nts could be charged based on the
record from the preliminary hearing.” In other words, the court determined that there was no evidence in the preliminary hearing to satisfy the jurisdictional requirement of section
778a that defendant committed some act in Siskiyou County, in execution or part execution of the intent to commit a crime, which culminated in the commission of a
crime in North Carolina.
The Attorney General, relying on Casey v. Superior Court (1989) 207 Cal. App.3d 837 ( Casey ), asserts a dism issal for lack of territorial jurisdiction is not the termination of
an action within the meaning of section 1387 , and that this was such a dismissal notwithstanding that it came about through defendant’s section 995 motion

. In Casey , the petitioner asserted her prosecution was barred by section 1387 because of two prior dismissals. ( Casey, supra , 207 Cal. App.3d at p. 839.) She contended “she was twice charged with the April 6, 1984, sale of methamphetamine and
that on both occasion s the San Joaquin County Municipal Court dismissed the charges ‘in28

the furtherance of justice,’ i.e., pursuant to section 1385.” ( Casey , at p. 84 1 .) Notwithstanding th e clerk’s designation of the dismissal as one in the interest of justice pursuant to se ction 1385 ( Casey , at p p. 840

- 841, 843, 845) , one of the two prior
dismissals was for lack of territorial jurisdiction ( i d

. at p. 841 )

. The Court of Appeal
stated that the “essential issue presented is whether a dismissal of a complaint in one county for lack of jurisdiction because the crime charged occurred in another county is a dismissal within the parameters of section 1387.” ( Casey , at p. 839.) The court rejected
the petitioner’s contention that it was , concluding: “a dismissal for lack of jurisdiction is not a dismissal in the interest of justice within the meaning of section 1385.” ( Casey , at
p p. 841

- 842.) The court stated, “we do not view a dismissal for lack of territorial jurisdiction as a dismissal in the furtherance of justice w ithin the meaning of section 1385, notwithstanding the clerk’s notation labelling it as such.” ( Casey , at p. 843.) T he court noted: “A dismissal for lack of territorial jurisdiction is qualitatively different from
those situations in which dismissals in the furtherance of justice have been approved. In the former situation, the court is not empowered to hear the case; in the latter it chooses to dismiss the case because other factors outweigh its authority to act.” ( Id . at p. 844. ) Thus, the court con cluded that the charges against the petitioner had “not been twice dismissed within the meaning of section 1387.” ( Casey , at p. 846.) Defendant distinguishes Case y , asser ting that this case does not involve a dismissal pursuant to section 1385, but rather a dismissal pursuant to section 995, which is among those statutes expressly invoked in section 1387.
As stated ante , section 1387, subdivision (a), provides, in part, that, with specified exceptions, “[a]n order terminating an action pursuant to this chapter, or Section 859b, 861, 871, or 995, is a bar to any other prosecution for the same offense if it is a felony .

. . and the action has been previously terminated pursuant to this chapter, or Section 859b, 861, 871, or 995

. . . .” On its face, section 1387 counts section 995 motions a mong those that qualify as prior terminations for purposes of the two dismissal rule.29

When defendant filed his motion pursuant to section 9 95, he was moving to set
aside an information

. T herefore subdivision (a)(2) of section 995 applied. Section 995 , subdivision (a)(2), provides: “(a) Subject to subdivision (b) of Section 995a, the indictment or information shall be set aside by the court in which the defendant is arraigned, upon his or her motion, in either of the following cases: [¶]

. . . [¶] (2) If it is
an inform ation: [¶] (A) That before the filing thereof the defendant had not been legally committed by a magistrate. [¶] (B) Th at the defendant had been committed without reasonable or probable cause.” As the Attorney General notes, section 1004, subdivision ( 1), is the appropriate vehicle for a challenge to the information premised on a lack of jurisdiction. Unlike section 995, section 1004 is not one set forth in section 1387, subdivision (a), in reference to the two dismissal rule. We are inclined to agree with the Casey court that a d ismissal in substance for lack of jurisdiction is not a dismissal for purposes of section 1387. ( Casey, supra , 207 Cal. App.3d at p p. 842

- 846.) Lack of jurisdiction is not a ground supporting a section
995 moti on by its terms, and the section that does au thorize a demurrer for such defect is not among the provisions section 1387 sets forth as constituting a prior termination of an action thus subject to the two dismissal rule. In any event, even if we were to r each a contrary conclusion, the result would be
the same . As discussed ante , the prior two dismissals on which defendant relies were not for the “same offense[s]” within the meaning of section 1387 , but were for alleged offenses occurring years earlier

. Accordingly, for purposes of section 1387 and the presently charged crimes , the dismissal denominated as one pursuant to section 995 was the first, and the two dismissal rule is therefore not implicated. While “ [n]o finding of malfeasance or additional investigation into the prosecutor’s motivat ion in the specific case is required or warranted” ( Juarez, supra , 62 Cal. 4th at p. 1175), we further note that the policies underlying the enactment of section 1387 are not implicated here. Prosecutorial harassmen t was not implicated where30

defendant was being prosecuted for sex offenses against minors , including L.M.D., whether or not the counts involving conduct against her in North Carolina were refiled. Forum shopping was not implicated in any manner . Finally, while defendant asserts, in a somewhat c onclusory fashion, that the prosecution compromised his speedy trial rights , on this record, we are no t persuaded . (See generally Juarez , at p. 1170; Burris, supra , 34 Cal. 4th a t p. 1018.) The parties both address section 1387.1. Section 1387.1 “provides an exception to the ‘two

- dismissal rule’: it permits the prosecution to file a violent felony charge a third time if either of the prior dismissals were due to ‘excusable neglect,’ and the prosecution
did not act in ‘bad faith.’ ” ( People v. Trujeque (2015) 61 Cal. 4th 227, 255

- 256.) Subdivision (a) of that section provides: “Where an offense is a violent felony, as defined in Section 667.5 and the prosecution has had two prior dismissals , as defined in Section 1387, the people shall be permitted one additional opportunity to refile charges where either of the prior dismissals under Section 1387 were due solely to excusable neglect. In no case shall the additional refiling of charges prov ided under this section be permitted where the conduct of the prosecution amounted to bad faith.” In light of our
conclusion that the “same offense[s]” had been dismissed, at most, once prior to the filing of the currently charged offenses, we need not ad dress the parties’ arguments as to
whether the prosecution was permitted to file charges a third time because prior
dismissals were the result of excusable neglect within the meaning of section 1387.1

. II Evidence Code Section 1108 Propensity Evidence
Defendant asserts that his convictions must be reversed because the trial court’s admission of propensity evidence pursuant to Evidence Code section 1108

— the evidence concerning A.M. and A.D.

— deprived him of his due process right to a fair trial

. The Att orney General asserts defendant has forfeited his constitutional challenges
to Evidence Code section 1108. Defendant replies that objection would have been futile.31

(See generally People v. Boyette (2002) 29 Cal. 4th 381, 432 [one exception to the general rule of forfeiture is that a defendant will be excused for failure to object or request an admonition if doing so would be futile].) Assuming defendant’s objection would have been futile in light of established case law discussed post , we address the meri ts of defendant’s contentions.
Defendant asks us “ ‘ to re

- examine ’ the California Supreme Court’s reasoning in People v. Falsetta (1991) 21 Cal. 4th 903, 917 [( Falsetta )] , where it held that admitting prior conduct evidence to prove a propensity to commit s ex crimes under Evidence Code section 1108 does not violate due process.”
In False tta , our high court was faced with a due process challenge to section 1108 on the ground that it allows for the admission of propensity evidence . Our high court “conclude[d], consistent with prior state and federal case law, that section 1108 is constitutionally valid.” ( Falsetta , supra , 21 Cal. 4th at p. 907.) W e are bound by
Falsetta . (

Auto Equity Sales, Inc. et al. v .Superior Court (1962) 5 7 Cal. 2d 450.) I n any event, o ur high court has very recently declined an invitation similar to defendant’s here.
In People v. Baker (2021) 10 Cal. 5th 1044 ( Baker ) , our high court stated: “We held in [ Falsetta ] that ‘the trial court’s discretion to exclude propensity evidence under section 352 save[d] [Evidence Code] section 1108 from’ a ‘due process challenge.’ [Citation.] Defendant concedes as much, but asks us to ‘revisit the issue,’ observing that
he must raise his objection now to preserve the issue for federal review. We see no persuasive reason to revisit Falsetta and reject his claim on the merits.” ( Baker , at
p p

. 1089

- 1090 , fn. omitted .)
Defendant also asserts that section 1108 violates his equal protection rights. However, he acknowledges several courts have rejected such a challenge. (See People v.
Fitch (1997) 55 Cal. App. 4th 172, 184 ; People v. Waples (2000) 79 Cal. App.4th 1389,
1394

- 1395 .) “Neither the federal nor the sta te constitution bars a legislature from distinguishing among criminal offenses in establishing rules for the admission of32

evidence; nor does equal protection require that acts or things which are different in fact be treated in law as though they were the same.” ( People v. Jennings (2000)
81 Cal. App.4th 1301, 1311 [equal protection challenge to Evid. Code, § 1109].) “The Legislature determined that the nature of sex offenses, both their seriousness and their
secretive commi ssion which results in trials th at are primarily credibility contests, justified the admission of relevant evidence of a defendant’s commission of other sex
offenses . This reasoning provides a rational basis for the law.” ( Fitch , at p. 184.) Defendant’s con tention that a higher level of scrutiny should be applied is premised on
his claim , rejected by our high court, that section 1108 violates due process, and therefore
his contention is without merit. S ection 1108 does not violate his right to equal protection of the law.
III Fi nes, Fees, and Assessments At sentencing, the trial court imposed a restitution fine ( § 1202.4, subd. (b)(2)) and a suspended parole revocation restitution fine ( § 1202.45) both in the amount of $10,000, a $70 AIDS education program fee ( § 264), co st of t he presentence report in the amount of $420 ( § 1203.1b), a $40 court security fee for each conviction, totaling $1,040 ( § 1465.8, subd. (a)) , a $30 criminal conviction assessment for each conviction, totaling $780 (Gov. Code, § 703 73), a nd a $148 booking fee (Gov. Code, § 29550). The court inquired about an appointed counsel fee ( § 987.8) , and , while counsel requested 100 hours, he further state d, when asked by the court, that defendant did not have the ability to pay, so the court did not impose that fee. Relying on Dueñas, supra , 30 Cal. App.5th 1157, d efendant asserts that the imposition of any fines, fees, or assessments without conducting a hearing to determine
hi s ability to pay violates due process under the federal and California Constitutions , as well as the Eighth Amendment’s protection against excessive fines. Defendant asserts we must stay all fines, fees, and assessments pending an ability to pay determination.33

Defendant acknowledges his failure to raise the issue in the trial court, but asserts that we may nonetheless reach the issue

. Defendant also asserts that, if he forfeited his contention, he was deprived of the constitutionally effective assistanc e of counsel. The Court of Appeal, Second Appellate District, Division Seven, filed Dueñas on January 8, 2019. The trial court here s entenced defendant on May 30 , 2019, a lmost five
months later. As defendant acknowledges, he did not raise Dueñas , due process , or the Eighth Amendment in relation to fines, fees, and assessments at sentencing

. Defendant’s
failure to raise these matters f orfeits his argument s by operation of normal rules of appellate review. ( People v. Scott (1994) 9 Cal. 4th 331, 351

- 354 ( Scott ) [to preserve a sentencing issue for appellate review, it must be raised in the trial court] .) This is so notwithstanding the fact that defendant’s claims are constitutional in nature. (See People v. Trujillo (2015) 60 Cal. 4th 850, 859 [constitutional exception to forfeiture rule did not apply to claim concerning failure to obtain express waiver of an ability to pay hearing];
In re Sheena K . (2007) 40 Cal. 4th 875, 880

- 881 [“ ‘ “a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a trib unal having jurisdiction to determine it” ’ ”]; see also People v. Baker (2018) 20 Cal. App.5th 711, 720 [Eighth Amendment claim of cruel/unusual punishment is fact

- specific and is therefore forfeited if not raised in the trial court].)
Defendant makes othe r arguments seeking to avoid the forfeiture rule. He argues: the trial court’s failure to exercise its discretion requires reversal; the trial court’s imposition of fines and fees without conducting an ability to pay analysis was unauthorized; and he may raise a contention concerning the deprivation of fundamental
constitutional rights for the first time on appeal. In light of our consideration of defendant’s contentions in the context of defendant’s ineffective assistance of counsel claim, and in light of our substantive determinations, we reject these contentions as moot and/or lacking in merit.34

Thus, we proceed to defendant’s ineffective assistance of counsel claim. To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. ( Strickland v. Washington (1984) 466 U.S . 668, 691

- 692 [80 L.Ed.2d 674, 696] ; People
v. Ledesma (1987 ) 43 Cal. 3d 171, 216

- 217 ( Ledesma ).) To demonstrate prejudice, defendant must show a reasonable probability that he would have received a more favorable result had counsel’s performance not been deficient. ( Strickland , at p p. 693

- 6 94; Ledesma , at p p. 217

- 218.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” ( Strickland , at p. 694; accord, Ledesma , at
p. 218.)
The Dueñas court held 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.” ( Dueñas, supra , 30 Cal. App.5th at p. 1164.) That court also held that, “although []section 1202.4 bars consideration of a defendant’s ability to pay [a restitution fine] unless the judge is considering increasing the fee over the

sta tutory minimum, the execution of any restitution fine imposed und er this statute must be stayed unless and until the t rial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine.” ( Dueñas , at p. 1164.) Defendant asserts “[t]he same rationale applies to all fines, fees, and assessment[s].”
Defendant ’ s arguments hinge on the analysis in Dueñas finding an ability to pay hearing is required before imposing fines and fees

. We are no t persuaded that this analysis is correct. We join the courts concludi ng Dueñas was wrongly decided and hold due process does not require determination of a defendant’s present ability to pay before imposing the fines and fees at issue for the reasons set forth in those cases . (See People v. Kingston (2019) 41 Cal. App.5th 2 72, 279; People v. Hicks (2019) 40 Cal. App.5th 320,35

review granted Nov

. 26, 2019, S258946; People v. Aviles (2019) 39 Cal. App.5th 1055 ( Aviles ) ; People v. Caceres (2019) 39 Cal. App.5th 917, 923

- 929.) Our high court has granted review in Hicks , as well as in People v. Kopp (2019) 38 Cal. App.5th 47, review granted November 13, 2019, S257844, on the issue of whether a trial court 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 regarding defendant’s inability to pay

. W e may still consider the se cases as persuasive authority. (Cal. Rules of Court, rule 8.1115(e)(1).) We find the reasoning in Hicks and these other cases persuasive and reject the holding in Dueñas . We thus conclude the imposition of fines, fees, and assessments on an indigent defendant does not violate due process and there is no due process requirement the trial court conduct an ability to pay hearing prior to imposing these fines,
fees , and assessments. In light of this determination, defendant’s trial attorney’s performance was not deficient for failure to raise the claim that due process required determination of a defendant’s ability to pay before imposing fines , fees , and

assessments . ( People v. Ochoa (1998) 19 Cal. 4th 353, 463 ( Ochoa ) [counsel is not constitutionally ineffective for failing to raise a meritless objection]; People v. Price (1991) 1 Cal. 4th 324, 387 ( Price ) [“Counsel does not render ineffective assistance b y failing to make motions or objections that counsel reasonably determines would be futile”].) To the extent defendant raises it , we conclude hi s claim that his right to equal protection was violated by the imposition of fines, fees, and assessments witho ut conducting an ability to pay determination lacks merit ( Aviles, at p p. 1068

- 1069 ), and
therefore defense counsel was not ineffective for failing to raise it ( Ochoa , at p. 463;
Price , at p. 387). Nor has defendant persuaded us that imposition of the fines , fees , and assessments
violated his Eighth Amendment right against excessive fines as that right was recently described by the United States Supreme Court in Timbs v. Indiana (2019) __ U.S. __ [203 L.Ed.2d 11], on wh ich defendant relies. Defendant h as cited us to no authority, nor36

have we discovered any on our own, to establish the fines , fees , and assessments imposed
in this case are excessive based on “ ‘(1) the defendant ’ s culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant’s ability to pay.’ ” ( Aviles, supra , 39 Cal. App.5th at p. 1070, quoting People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal. 4th 707, 728; see United States v. Bajakajian (1998) 524 U.S. 321, 334 [141 L.Ed.2d 314]. ) Thus , counsel was not constitutionally ineffective for failing to raise defendant’s Eighth Amendment claim in the trial court. ( Ochoa, supra , 19 Cal. 4th at p. 463; Price, supra , 1 Cal. 4th at
p. 387.)
In conne ction with his argument concerning fines, fees, and assessments, defendant in his reply brief requests that we take judicial notice of statements on the California Department of Corrections and Rehabilitation website. We deny defendant’s request for judic ial notice “ ‘because the proffered material is unnecessary to our decision.’ ” ( City of Grass Valley v. Cohen (2017) 17 Cal. App.5th 567, 594, fn. 13.) 

### D ISPOSITION The judgme nt is affirmed.

HULL, J.

We concur:

RAYE, P. J.37

HOCH, J.