People v. Aguilar CA6 ( 2021 )

Filed 4/30/21 P. v. Aguilar CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H046279
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1885976)
v.
SAUL VARGAS AGUILAR et al.,
Defendants and Appellants.
Defendants Saul Vargas Aguilar and Alonzo Jimenez appeal after a jury convicted
them both of being a prohibited person in possession of a firearm (Pen. Code, § 29800,
subd. (a)(1)1), carrying a loaded firearm (§ 25850, subd. (a)), and actively participating in
a criminal street gang (§ 186.22, subd. (a)). The jury found true allegations that the
firearm offenses were committed for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)). The trial court found true a prior prison term allegation (§ 667.5, subd. (b))
as to defendant Aguilar and a strike allegation (§§ 667, subds. (b)-(i), 1170.12) as to
defendant Jimenez, which was based on a prior juvenile adjudication.
The trial court sentenced defendant Aguilar to an aggregate prison term of six
years, and it sentenced defendant Jimenez to an aggregate prison term of four years eight
months.
1
Unspecified section references are to the Penal Code.
On appeal, defendants challenge the sufficiency of the evidence supporting the
gang allegations and the gang crime, on several grounds. They assert that the prosecution
failed to prove the Norteños were a criminal street gang under People v. Prunty (2015) 62
Cal.4th 59 (Prunty); that there was insufficient evidence of the Norteño gang’s primary
activities; that there was insufficient evidence defendants intended to benefit the Norteño
gang; and that there was insufficient evidence of active participation, knowledge of a
pattern of criminal gang activity, and promotion of felonious criminal conduct.2
Defendants also challenge the instruction on active participation in a criminal street gang
(CALCRIM No. 1400).
Defendant Aguilar contends his trial counsel was ineffective for failing to object to
testimony about a statement defendant Jimenez made during his gang registration. Both
defendants contend they received ineffective assistance of counsel because their trial
attorneys did not object when the gang expert testified that certain violent crimes were
among the Norteño gang’s primary activities, nor to a jury instruction that referred to
those same violent crimes.
Defendant Aguilar contends there was cumulative prejudice.
Defendant Jimenez contends that the true finding on his strike must be reversed
because he had no right to a jury trial in the underlying juvenile proceedings, and
defendant Aguilar contends that the one-year term for his prior prison term enhancement
must be stricken due to subsequent amendments to section 667.5, subdivision (b).
Both defendants contend that the trial court erroneously imposed a $500 restitution
fine and $339.75 in fees without finding they each had an ability to pay.
As we shall explain, we find substantial evidence supports both defendants’
convictions, and we find no ineffective assistance of counsel; we therefore find no
cumulative prejudice. We find no grounds for reversing the strike finding as to defendant
2
Defendants join most of each other’s arguments.
2
Jimenez, and we decline to remand for an ability to pay hearing as to the fees and fines,
but we agree with defendant Aguilar that his prior prison term enhancement must be
stricken. We will therefore affirm the judgment as to defendant Jimenez, but we will
reverse the judgment as to defendant Aguilar and remand his matter for resentencing.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. March 5, 2018 Incident
On the night of March 5, 2018, San Jose Police Officer Jared Yuen was on patrol
with his partner, Officer Hector Gonzalez. They were in the area of King Road and Tully
Road, which is “one of the most prominent gang and problem areas in the city.”
Officers Yuen and Gonzalez noticed a vehicle with two Vehicle Code violations:
all four of its windows were tinted, and one of its reverse lights was not working. The
vehicle was a blue Honda Civic with two occupants.
The officers followed the Honda as it went north on King Road, using their patrol
car’s lights and sirens to initiate a stop. The Honda slowed down to five or 10 miles per
hour, but it did not pull over. The Honda then pulled into a supermarket parking lot,
where it continued past open parking stalls before rolling to a stop. As the Honda
stopped, the front passenger—defendant Aguilar—got out and began running.
Officer Yuen pursued defendant Aguilar while Officer Gonzalez stayed with the
driver—defendant Jimenez. Officer Yuen could see that defendant Aguilar had a red
bandana in his back pants pocket. Officer Yuen caught up with defendant Aguilar, struck
defendant Aguilar with his baton, then handcuffed him.
Another officer arrived and searched defendant Aguilar, finding a fully loaded
silver .357 revolver in defendant Aguilar’s front pocket. The firearm was registered to a
person named Mary Miller.
3
At the time of the incident, both defendants were prohibited from possessing
firearms.3
B. Gang Evidence
1. Gang Expert Testimony: the Norteño Gang
San Jose Police Detective Justin Jantz had received training on gangs, including
Norteño gangs. He had participated in at least 300 gang investigations, many of which
involved Norteño gangs. He had spoken with several hundred Norteño gang members.
He had discussed gang trends with other officers in his department and with officers at
other agencies.
In San Jose, there are several thousand members of the Norteño criminal street
gang. The Norteño gang began in the 1960’s, as members of the Nuestra Familia prison
gang were released from custody.
Norteño gang members sometimes call themselves Northerners. The number 14 is
significant for Norteños because N is the fourteenth letter of the alphabet. Other common
Norteño gang signs and symbols include the huelga bird; XIV, which is the Roman
numeral for the number 14; X4, which is a mix of a Roman numeral and a standard
numeral; tattoos with one dot and four dots; and the color red.
The Norteño gang has “smaller hoods or gangs” called “subsets.” In San Jose, the
subsets include El Hoyo Palmas, West Side Mob, and San Carlos Boys. However, one
does not need to be a member of a subset in order to be a member of the Norteño gang.
“People claim Norteño all the time and don’t have subsets.”
The Norteño gang has “a general hierarchy,” but not a “direct structure.” Rather,
Norteños “take their overall cues and pay their dues” to the Nuestra Familia prison gang.
The area of King Road and Tully Road is a Norteño territory. The area is
controlled by the Varrio Meadowfair subset.
3
Outside the presence of the jury, defendants Aguilar and Jimenez both admitted
prior felony convictions.
4
Sureños are the main rivals of Norteños. Sureños represent themselves with the
number 13, the color blue, and the letter M.
Weapons are valuable to gang members because they provide control, respect, and
intimidation. Weapons assist gang members in protecting their territory and committing
crimes. Firearms are the most valuable weapon. A gang member with a firearm will be
“looked at with a little bit more respect.” Gang members often share guns. The guns are
not usually registered to a gang member, so there will be no connection between a gun
and a crime committed with that gun. Gang members will protect their guns because of
their value.
The primary activities of the Norteño criminal street gang are murder, attempted
murder, assault with a deadly weapon, carjacking, illegal firearm possession, possession
of a concealed firearm, and kidnapping.
2. Predicate Offense Evidence
In November 2013, Miguel Angel Ortega was convicted of possession of a
concealed firearm (§ 25400). In September 2015, Ortega admitted that he was a
“Northerner.” Ortega’s gang registration referred to “East Side San Jose,” which is “an
area of the city,” not a gang subset.
In April 2016, Alejandro Ariza was convicted of possession of a concealed firearm
(§ 25400). In September 2016, Ariza admitted that he was a “Northerner.” When asked
who he “kick[s] it with,” Ariza referred to “Mob” or “Hog,” which are subsets of the
Norteño gang.
Detective Jantz believed that Ortega was a Norteño based on photographs of
Ortega’s gang tattoos, Ortega’s admission to being a Northerner, and Detective Jantz’s
conversations with other officers. Detective Jantz believed that Ariza was a Norteño
based on photographs of Ariza’s gang tattoos, Ariza’s admission to being a Northerner,
and Ariza’s gang registration. Detective Jantz did not believe that either Ortega or Ariza
5
was a member of a subset. He believed they were both “general Norteños with no
allegiance to a subset.”
In February 2016, defendant Jimenez was convicted of possession of a concealed
firearm (§ 25400). In September 2017, a gang detective registered defendant Jimenez.
Defendant Jimenez said he was a Norteño. Defendant Jimenez’s tattoos included four
dots underneath his left eye and “X4” across his chest. Defendant Jimenez denied
belonging to a subset.
In March 2017, defendant Aguilar was convicted of being a prohibited person in
possession of a firearm (§ 29800). When meeting with his probation officer during the
two years prior to trial, defendant Aguilar would sometimes be dressed in what appeared
to be Norteño gang attire: his clothing included an oversized red t-shirt, a Sharks cap,
and a red belt. Also during that time period, defendant Aguilar had obtained tattoos that
appeared to be gang-related: the word “San” on one forearm, the word “Jo” on another
forearm, and the number 14 on his neck. Defendant Aguilar, however, told his probation
officer he was not a gang member.
3. Gang Expert Testimony: Opinions
Detective Jantz believed defendant Jimenez was a member of the Norteño criminal
street gang. That opinion was based on defendant Jimenez’s tattoos, defendant Jimenez’s
gang registration interview, and the facts of the present case. Detective Jantz explained
that having the one dot and four dot tattoos on his face was indicative of defendant
Jimenez being an active gang member, because the face is “not easily hidden.”
Detective Jantz believed defendant Aguilar was also a member of the Norteño
criminal street gang. That opinion was based on defendant Aguilar’s tattoos, the opinion
of another gang detective, the bandana he had at the time of his arrest, his association
with defendant Jimenez, and the facts of the present case.
Detective Jantz explained that his opinions were not affected by the fact that
defendants were in an area controlled by the Varrio Meadowfair subset. He explained
6
that a gang member does not “actually have to be a member of a subset” to hang out in
the subset’s territory, as long as the gang member is “on good terms with that subset at
the time.”
A hypothetical was provided to Detective Jantz that mirrored the facts of this case.
Detective Jantz opined that the unlawful firearm possession would benefit and be
committed in association with a criminal street gang. He explained, “The two gang
members are in association with one another at the time, and . . . they’re trying to keep
that firearm in their possession . . . . [T]hey’re working together to make sure that
firearm stays away from the police . . . .” The benefit to the gang would come from
“keeping possession of that firearm,” because the firearm would “help to further their
endeavors in the future.” Losing the firearm would also cause other gang members to
lose respect for the person entrusted with the firearm.
C. Verdicts and Sentencing
The jury convicted both defendants of being a prohibited person in possession of a
firearm (§ 29800, subd. (a)(1)), carrying a loaded firearm (§ 25850, subd. (a)), and
actively participating in a criminal street gang (§ 186.22, subd. (a)). The jury found true
gang allegations (§ 186.22, subd. (b)(1)) as to both defendants’ firearm counts.
The trial court found true a prior prison term allegation as to defendant Aguilar
and a strike allegation as to defendant Jimenez.
The trial court sentenced defendant Aguilar to an aggregate prison term of six
years, comprised of the two-year midterm for the violation of section 29800; a
consecutive three-year term for the gang allegation; and a consecutive one-year term for
the prior prison term allegation. The trial court stayed the term for the violations of
sections 25850 and 186.22, subdivision (a) pursuant to section 654.4
4
The abstract of judgment incorrectly reflects imposition of a concurrent term for
the violation of section 186.22, subdivision (a). As we are remanding for resentencing as
to defendant Aguilar, the trial court will have an opportunity to correct this error.
7
The trial court sentenced defendant Jimenez to an aggregate prison term of
four years eight months, comprised of the low term of 16 months for the violation of
section 29800, doubled to two years eight months due to the strike allegation; and a
consecutive two-year term for the gang allegation. The trial court stayed the terms for the
violations of sections 25850 and 186.22, subdivision (a) pursuant to section 654.
II. DISCUSSION
A. Sufficiency of the Evidence Claims
Defendants challenge the sufficiency of the evidence supporting both the gang
allegation (§ 186.22, subd. (b)(1)) and the substantive gang offense (§ 186.22, subd. (a)),
in several respects.
1. Standard of Review
When considering a challenge to the sufficiency of the evidence to support a
criminal conviction, we “review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence—that is, evidence
which is reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980)
26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 319-320.) “In
making this determination, we do not reweigh the evidence, resolve conflicts in the
evidence, or reevaluate the credibility of witnesses.” (People v. Cortes (1999) 71
Cal.App.4th 62, 71 (Cortes).)
2. Gang Organization
Defendants contend there was insufficient evidence to support the gang allegation
and substantive gang offense based on Prunty, supra, 62 Cal.4th 59, which requires the
prosecution prove that members of the same “ongoing organization, association, or
group” (§ 186.22, subd. (f)) committed the predicate offenses and the charged offense,
and that the same gang benefitted from the charged offense.
8
Section 186.22, subdivision (f) defines a criminal street gang as “any ongoing
organization, association, or group of three or more persons, whether formal or informal,
having as one of its primary activities the commission of one or more of [certain
enumerated] criminal acts . . . , having a common name or common identifying sign or
symbol, and whose members individually or collectively engage in, or have engaged in, a
pattern of criminal gang activity.”
In Prunty, the California Supreme Court addressed “what type of showing the
prosecution must make when its theory of why a criminal street gang exists turns on the
conduct of one or more gang subsets.” (Prunty, supra, 62 Cal.4th at p. 67.) The court
reviewed the definition of “criminal street gang” in section 186.22, subdivision (f) and
determined that “where the prosecution’s case positing the existence of a single ‘criminal
street gang’ . . . turns on the existence and conduct of one or more gang subsets, then the
prosecution must show some associational or organizational connection uniting those
subsets.” (Prunty, supra, at p. 71.)
Defendants contend that Prunty requires demonstration of an organizational or
associational connection among gang subsets. “The Prunty court, however, specifically
declined to hold that a broader ‘umbrella’ group such as the Norteños or Sureños could
not constitute a criminal street gang under section 186.22.” (People v. Pettie (2017) 16
Cal.App.5th 23, 49 (Pettie).)
Prunty explained that its rule applies only “where the prosecution’s theory of why
a criminal street gang exists turns on the conduct of one or more gang subsets, not simply
to those in which the prosecution alleges the existence of ‘a broader umbrella gang.’ ”
(Prunty, supra, 62 Cal.4th at p. 71, fn. 2.)
In Prunty, the evidence showed that the defendant identified as a Norteño and
claimed membership in a Norteño subset, the Detroit Boulevard Norteños. (Prunty,
supra, 62 Cal.4th at pp. 67-68.) The gang expert in that case testified about predicate
offenses committed by members of two other subsets: the Varrio Gardenland Norteños
9
and the Varrio Centro Norteños. (Id. at p. 69.) The prosecution did not introduce
evidence that either of the two subsets identified with a larger Norteño group, nor any
evidence that those subsets shared a connection with each other or with any other
Norteño-identified subset. (Ibid.; see People v. Nicholes (2016) 246 Cal.App.4th 836,
845-846 [evidence of primary activities and predicate offenses related to Norteño subsets
with no connection to the defendant’s subset].)
In contrast to Prunty, here the prosecution presented evidence of two predicate
offenses committed by “general Norteños with no allegiance to a subset.” The
prosecution’s theory was that the shooting was committed in association with and for the
benefit of the Norteño gang. The gang expert testified that defendants were Norteño
gang members and not members of any subset. Prunty is inapplicable to these facts.
Defendants challenge the expert’s testimony about Ortega and Ariza being
“general Norteños with no allegiance to a subset.” They point out that during his gang
registration, Ariza claimed to “kick[] it with” the Norteño subsets “Mob” or “Hog.” They
note that Ortega’s gang registration referred to “East Side San Jose,” and that despite the
gang expert’s claim that “East Side San Jose” is “an area of the city,” not a gang subset,
expert testimony in another case identified “Eastside San Jose” as “a ‘gang designated
area’ of San Jose.” (See Pettie, supra, 16 Cal.App.5th at p. 37.) However, it was the
jury’s job to weigh any conflicting evidence, including that presented by the gang expert.
(See Cortes, supra, 71 Cal.App.4th at p. 71; People v. Flores (2006) 144 Cal.App.4th
625, 633 [jury is to determine credibility and weight of expert testimony].) Here, the jury
could reasonably believe the gang expert when he testified that Ortega and Ariza were
“general Norteños” who were not members of any subsets.
3. Primary Activities
Defendants contend the prosecution presented insufficient evidence of the
“primary activities” element of section 186.22, subdivision (f). Defendants specifically
argue that there was no “factual foundation” for the gang expert’s testimony about the
10
primary activities of the Norteño gang. Defendants note that the gang expert did not
provide the details of any crimes nor specify whether his opinion was based on “highly
reliable sources, such as court records of convictions, or entirely unreliable hearsay.”
“The phrase ‘primary activities,’ as used in the gang statute, implies that the
commission of one or more of the statutorily enumerated crimes is one of the group’s
‘chief’ or ‘principal’ occupations.” (People v. Sengpadychith (2001) 26 Cal.4th 316,
323.) The Sengpadychith court explained that expert testimony can be sufficient in this
regard, such as in People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley).5 “There, a
police gang expert testified that the gang of which defendant Gardeley had for nine years
been a member was primarily engaged in the sale of narcotics and witness intimidation,
both statutorily enumerated felonies. [Citation.] The gang expert based his opinion on
conversations he had with Gardeley and fellow gang members, and on ‘his personal
investigations of hundreds of crimes committed by gang members,’ together with
information from colleagues in his own police department and other law enforcement
agencies.” (Sengpadychith, supra, at p. 324.)
Defendants compare this case to In re Alexander L. (2007) 149 Cal.App.4th 605.
In that case, the gang expert “did not directly testify that criminal activities constituted
[the gang’s] primary activities.” (Id. at p. 612.) Further, the gang expert in that case did
not explain the basis for his opinion: he did not, for instance, state that the opinion was
based on conversations with gang members, investigation of other gang crimes, and
information from other law enforcement officers. (Id. at p. 613; compare Gardeley,
supra, 14 Cal.4th at p. 620.)
In this case, the gang expert directly testified that the primary activities of the
Norteño criminal street gang are murder, attempted murder, assault with a deadly
weapon, carjacking, illegal firearm possession, possession of a concealed firearm, and
5
Gardeley was disapproved on other grounds by People v. Sanchez (2016) 63
Cal.4th 665, 686, footnote 13.
11
kidnapping. And significantly, the gang expert testified that the basis for his expertise
regarding the Norteño gang included his training on gangs, his participation in hundreds
of prior Norteño gang investigations, his discussions with hundreds of Norteño gang
members, and his discussions with other law enforcement officers. Under Gardeley and
Sengpadychith, this was sufficient evidence of the primary activities element.
4. Gang Enhancement–Benefit and Specific Intent
Defendants contend there was insufficient evidence to support a finding that they
committed the firearm offenses “for the benefit of, at the direction of, or in association
with any criminal street gang” and “with the specific intent to promote, further, or assist
in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).)
Defendants assert the instant case is similar to People v. Ramon (2009) 175
Cal.App.4th 843, in which the court found insufficient evidence that the defendant’s
crimes—possession of a stolen vehicle and various firearm possession offenses—were
committed for the benefit of, or with the specific intent to promote, a criminal street gang.
In Ramon, police found the defendant driving a stolen vehicle, and they found a handgun
under the driver’s seat. (Id. at p. 847.) The defendant and his passenger were gang
members. A gang expert testified that a stolen vehicle and a firearm could help a gang
commit other crimes. On appeal, the Ramon court found that the expert opinion was
improper because it was speculative to conclude that the defendant and his passenger
were acting on behalf of their gang at the time of their arrest. (Id. at p. 851.) The court
noted that its “analysis might be different if the expert’s opinion had included ‘possessing
stolen vehicles’ as one of the activities of the gang.” (Id. at p. 853.)
“ ‘Expert opinion that particular criminal conduct benefited a gang’ is not
only permissible but can be sufficient to support the Penal Code section 186.22,
subdivision (b)(1), gang enhancement.” (People v. Vang (2011) 52 Cal.4th 1038, 1048.)
In the instant case, the expert testimony supplied the type of information missing in
Ramon. Here, there was expert testimony that “illegal firearm possession” and
12
“possession of a concealed firearm” were among the primary activities of the Norteño
gang. In addition, here defendants attempted to avoid police detection of the firearm,
which supplied a factual basis for the expert’s opinion that it would benefit the gang if the
firearm was not found or confiscated. The firearm in this case was also not registered to
either defendant, which supplied a factual basis for the expert’s opinion that the gang
would benefit from having a gun that could not be easily connected to the person who
used it. This evidence also supported a finding that defendants had the “specific intent
to promote, further, or assist in any criminal conduct by gang members” (§ 186.22,
subd. (b)(1)), as a jury could reasonably find that by attempting to prevent the firearm
from being found and confiscated by the police, defendants intended to promote, further,
or assist the gang in its primary activities, which included firearm possession offenses.
Defendants assert that the gang expert in this case testified, in response to a
hypothetical mirroring the facts of this case, that the firearm offenses would benefit only
the two defendants—in other words, not the entire gang. Defendants point to the gang
expert’s testimony that possessing the firearm would benefit “the two of them that are
together.” However, just prior to that testimony, the gang expert specified that it was his
opinion that the crime would benefit and be in association with a criminal street gang.
He explained how firearms were very important to gangs, that firearms are typically
passed around among gang members, and how “other members” of the gang would lose
respect for a gang member who lost the firearm.
In sum, substantial evidence supports the jury’s finding that defendants committed
the firearm offenses “for the benefit of, at the direction of, or in association with any
criminal street gang” and “with the specific intent to promote, further, or assist in any
criminal conduct by gang members.” (§ 186.22, subd. (b)(1).)
13
5. Gang Crime—Active Participation, Knowledge, and Promotion of
Felonious Criminal Conduct
Defendants contend their convictions of the substantive gang offense must be
reversed because there is insufficient evidence they “actively participate[d]” in a criminal
street gang, had “knowledge that [the gang’s] members engage in, or have engaged in, a
pattern of criminal gang activity,” and “willfully promote[d], further[ed], or assist[ed] in
any felonious criminal conduct by members of that gang.” (§ 186.22, subd. (a).)
i. Active Participation
“[A]ctive participation in a criminal street gang” means “participation that is more
than nominal or passive.” (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130
(Rodriguez).) Sufficient evidence of active participation has been found where the
defendant has visible gang tattoos, the defendant admits gang membership and has a gang
moniker, the defendant commits a crime that is one of the gang’s primary activities, and
the defendant’s crime is committed in association with another gang member. (See
People v. Martinez (2008) 158 Cal.App.4th 1324, 1331.)
Here, defendants both had visible Norteño gang tattoos. Defendant Jimenez
admitted he was a Norteño. Defendant Aguilar dressed in what appeared to be Norteño
gang attire during his probation interviews, and he carried a red bandana at the time of
the charged offenses. Defendants committed firearm offenses that were among the
Norteño gang’s primary activities, and they did so in association with one another. This
evidence was sufficient to support the jury’s finding that they were both active
participants in a criminal street gang.
ii. Knowledge
“[J]ust as a jury may rely on evidence about a defendant’s personal conduct, as
well as expert testimony about gang culture and habits, to make findings concerning a
defendant’s active participation in a gang or a pattern of gang activity, it may also rely on
14
the same evidence to infer a defendant’s knowledge of those activities.” (People v. Carr
(2010) 190 Cal.App.4th 475, 489.)
Here, the jury could infer that defendants were aware of their own actions in
feloniously possessing and concealing the loaded firearm that was not registered to either
of them. The jury could also infer that defendants were aware of their own prior
convictions for illegal firearms possession. In addition, the jury could consider the
evidence of defendants’ Norteño gang membership along with the expert testimony about
the primary activities of the Norteño gang, and reasonably find that both defendants had
the requisite knowledge that the gang’s members engage in, or have engaged in, a pattern
of criminal gang activity.
iii. Furthering Felonious Criminal Conduct by a Gang
Section 186.22, subdivision (a)’s requirement that a defendant “willfully
promote[], further[], or assist[] in any felonious criminal conduct by members of that
gang” (italics added) means that a person must “commit an underlying felony with at
least one other gang member.” (Rodriguez, supra, 55 Cal.4th at p. 1134.)
Defendants reassert their Prunty argument: that the evidence failed to establish
that the Norteño gang met the elements of section 186.22, subdivision (f). However, as
we have previously concluded, there was substantial evidence to support a finding that
the Norteños are a criminal street gang and that both defendants were Norteño gang
members when they committed the charged offenses. Thus, the record contains sufficient
evidence of this element of the substantive gang offense.
B. Jury Instruction Claim
Defendants challenge CALCRIM No. 1400, the instruction on active participation
in a criminal street gang, as “internally contradictory.” They assert that the instruction
told the jury that “at least two members of the same gang must have participated in
committing the felony offense” while also stating that the prosecution did not have to
prove that a defendant “was an actual member of the gang.”
15
As given, the instruction provided in pertinent part: “[E]ach defendant is charged
in Count 4 with participating in a criminal street gang, in violation of Penal Code Section
186.22(a). To prove that a defendant is guilty of this crime, the People must prove that,
one, the defendant actively participated in a criminal street gang; two, when the
defendant participated in the gang, he knew that members of the gang engage in or have
engaged in a pattern of criminal gang activity; and three, the defendant willfully assisted,
furthered, or promoted felonious criminal conduct by members of the gang, either by, A,
directly and actively committing the felony offense, or B, aiding and abetting a felony
offense.
“At least two members of that same gang must have participated in committing the
felony offense. The defendant may count as one of those members if you find that the
defendant was a member of the gang.
“Active participation means involvement with a criminal street gang in a way that
is more than passive or in name only. The People do not have to prove that the defendant
devoted all or a substantial part of his time or efforts to the gang or that he was an actual
member of the gang.”
1. Forfeiture
The People assert that defendants forfeited their challenge to CALCRIM No. 1400
by failing to object at trial. (See People v. Guiuan (1998) 18 Cal.4th 558, 570
[“ ‘Generally, a party may not complain on appeal that an instruction correct in law and
responsive to the evidence was too general or incomplete unless the party has requested
appropriate clarifying or amplifying language.’ ”].) Defendants claim no objection was
needed because the error affected their substantial rights. (See § 1259.)
In order to forestall potential claims of ineffective assistance of counsel, we will
assume that the issue was not forfeited, and we will proceed to consider the merits of
defendants’ argument.
16
2. Standard of Review
We review the trial court’s instructions independently. (People v. Alvarez (1996)
14 Cal.4th 155, 217.) In doing so, we recognize “ ‘ “that jurors are presumed to be
intelligent and capable of understanding and applying the court’s instructions.”
[Citation.]’ [Citation.] ‘ “ ‘A defendant challenging an instruction as being subject to
erroneous interpretation by the jury must demonstrate a reasonable likelihood that the
jury understood the instruction in the way asserted by the defendant. [Citations.]’
[Citation.] ‘ “[T]he correctness of jury instructions is to be determined from the entire
charge of the court, not from a consideration of parts of an instruction or from a particular
instruction.” ’ ” ’ ” (People v. Covarrubias (2016) 1 Cal.5th 838, 905 (Covarrubias).)
3. Analysis
Defendants contend that CALCRIM No. 1400 was internally contradictory on the
facts of this case, which involved evidence that “only two individuals” committed the
underlying offenses. The instruction told the jury that two gang members must have
participated in the offenses, but also that the jury did not have to find that a defendant
was a gang member. Defendants contend that the jury could have convicted them despite
finding that one of them was not a gang member.
In telling the jury that a defendant did not have to be a gang member in order to be
found guilty of violating section 186.22, subdivision (a), the instruction correctly stated
the law. Section 186.22, subdivision (i) specifies that a conviction under subdivision (a)
does not require the prosecution to prove “that the person is a member of the criminal
street gang.” (See also Rodriguez, supra, 55 Cal.4th at p. 1130 [“A person who is not a
member of a gang, but who actively participates in the gang, can be guilty of violating
section 186.22(a).”].)
Here, a reasonable and intelligent juror would understand that they could not
convict defendants without finding them both to be gang members. A reasonable and
intelligent juror would understand that the instruction was generally applicable to all
17
cases involving charges of active participation in a criminal street gang. In other words, a
reasonable and intelligent juror would understand that when the instruction stated that
two gang members must have participated in the underlying offense and that the
defendant did not have to be an actual gang member, the instruction was covering cases
where there were more than two people involved in the underlying offense. Defendants
have failed to “ ‘ “ ‘demonstrate a reasonable likelihood that any jurors understood the
instruction’ ” ’ ” as not requiring them to find that both defendants were gang members at
the time of the offense. (See Covarrubias, supra, 1 Cal.5th at p. 905.)
C. Ineffective Assistance of Counsel Claims
Defendant Aguilar contends his trial counsel was ineffective for failing to object
when a gang detective testified that defendant Jimenez admitted he was a Norteño during
his gang registration. Defendants both contend their trial attorneys were ineffective for
failing to object to the listing of various violent crimes during the expert testimony about
the Norteño gang’s primary activities, as well as to the trial court’s recitation of those
crimes in a jury instruction.
1. Legal Standard
To establish ineffectiveness of counsel, a defendant must show that his or her
counsel’s representation fell below an objective standard of reasonableness and a
reasonable probability that, but for counsel’s deficient performance, the result of the trial
would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687
(Strickland).)
2. Admission of Jimenez’s statement
Defendant Aguilar contends that his trial counsel should have objected when a
gang detective testified that defendant Jimenez had claimed Norteño gang membership.
Defendant Aguilar asserts that the admission of that out-of-court statement by defendant
Jimenez, who did not testify at trial, violated his confrontation rights under the Sixth
18
Amendment pursuant to Bruton v. United States (1968) 391 U.S. 123 (Bruton) and
Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
The challenged testimony came in through the testimony of gang detective Sean
Santoro. When Santoro registered defendant Jimenez in September 2017, defendant
Jimenez said he was a Norteño. The trial court told the jury, pursuant to CALCRIM
No. 305, that it could only consider that statement against defendant Jimenez and not
against defendant Aguilar.6
Under Bruton, a non-testifying codefendant’s statement that implicates the other
defendant is inadmissible at a joint trial, even with a limiting instruction. (See Bruton,
supra, 391 U.S. at p. 137.) Crawford held that the confrontation clause bars the
admission of testimonial hearsay unless the declarant is unavailable and the defendant
had a prior opportunity for cross-examination. (Crawford, supra, 541 U.S. at p. 68.)
Crawford also explained that statements made during a police interrogation constitute
testimonial hearsay. (Ibid.)
With respect to the Bruton claim, the challenged statement was neither “facially
incriminating” nor “ ‘powerfully incriminating’ ” of defendant Aguilar, since it neither
mentioned defendant Aguilar nor implied that defendant Aguilar was an accomplice.
(See Richardson v. Marsh (1987) 481 U.S. 200, 207.) To the extent that the statement
was incriminating of defendant Aguilar when “linked with evidence introduced later at
trial” (id. at p. 208), the trial court’s limiting instruction was sufficient to protect
defendant Aguilar’s confrontation rights (id. at p. 211).
With respect to the Crawford claim, we agree with the People that the record is too
undeveloped to determine whether the challenged statement fell within a hearsay
6
The instruction provided: “You have heard evidence that Defendant Alonzo
Jimenez made a statement before trial. You may consider that evidence only against him,
not against Defendant Saul Aguilar.”
19
exception, such as admission by a party opponent (Evid. Code, § 1220) or declaration
against penal interest (Evid. Code, § 1230).
Even assuming that reasonable trial counsel would have objected to the admission
of Jimenez’s statement, defendant Aguilar fails to establish the prejudice prong of his
claim. The evidence of both defendants’ Norteño gang membership was strong; in
particular, they both had prominent Norteño gang tattoos that effectively proclaimed
themselves to be active Norteño gang members. There was evidence that defendant
Aguilar dressed in Norteño gang clothing. The evidence established that defendants both
had previously committed offenses that were among the Norteño gang’s primary
activities, and that they did so in the current case while they were associating with one
another. On this record, defendant Aguilar fails to demonstrate there is a reasonable
probability that the result of the trial would have been different if his counsel had
objected to, and the trial court had excluded, the challenged statement. (See Strickland,
supra, 466 U.S. at p. 687.)
3. References to Violent Crimes
As noted above, the prosecution’s gang expert testified that the primary activities
of the Norteño criminal street gang are murder, attempted murder, assault with a deadly
weapon, carjacking, illegal firearm possession, possession of a concealed firearm, and
kidnapping.
The trial court subsequently instructed the jury pursuant to CALCRIM No. 1401
that “[a] criminal street gang is an ongoing organization, association, or group of three or
more persons, whether formal or informal, . . . that has, as one or more of its primary
activities, the commission of any of the following offenses: Murder, Penal Code 187;
assault with a deadly weapon, Penal Code 245; possession of a concealed firearm, Penal
Code 25400; possession of a loaded firearm not registered to the person in a vehicle or on
the person, Penal Code 29800 . . . .”
20
Defendants contend that the violent crimes listed by the gang expert and in the
jury instruction had no relevance to the charged offenses and that the references to those
crimes was unduly prejudicial. Defendants contend that trial counsel should have
objected to the listing of crimes “that were not specific gun offenses relevant to this case”
under Evidence Code section 352. Defendants contend that the references to the violent
crimes invited the jury to speculate that the gun they possessed would be used for a future
violent crime.
Even assuming that reasonable trial counsel would have objected to the listing of
the violent crimes both by the expert and in the jury instruction, defendants have failed to
demonstrate the prejudice prong of their ineffective assistance claims. The references to
the violent crimes as included within the primary activities of the Norteño gang were
brief. (Compare People v. Albarran (2007) 149 Cal.App.4th 214, 227 [gang expert
testified “at length” about other gang members and the crimes they had committed].) The
evidence did not include inflammatory details of any such violent crimes. (Compare ibid.[gang expert testimony about other gang members’ threat to kill police officers].) The
evidence established that the Norteño gang included thousands of members, thereby
lessening the risk that the jury would speculate that defendants themselves were involved
in any crimes beyond their prior and current firearm offenses. And, as previously
explained, there was strong evidence supporting the gang enhancements and the gang
offenses. On this record, defendants fail to demonstrate there is a reasonable probability
that the result of the trial would have been different if their trial attorneys had objected to,
and the trial court had excluded, the challenged gang expert testimony and jury
instruction. (See Strickland, supra, 466 U.S. at p. 687.)
D. Cumulative Prejudice Claim
Defendant Aguilar contends the cumulative effect of the asserted evidentiary
insufficiencies, instructional error, and his trial counsel’s ineffective assistance were
“related errors” that deprived him of a fair trial and the ability to present a defense.
21
(See People v. Hill (1998) 17 Cal.4th 800, 844 [“a series of trial errors, though
independently harmless, may in some circumstances rise by accretion to the level of
reversible and prejudicial error”].)
We have found no merit to the evidentiary insufficiency claims, instructional error
claim, or the ineffective assistance of counsel claims. With no errors to aggregate, the
cumulative prejudice claim must fail.
E. Prior Conviction Claims
Defendant Jimenez challenges the trial court’s finding that he suffered a prior
“strike” conviction, while defendant Aguilar asserts that the one-year prior prison term
enhancement must be stricken.
1. Jimenez’s Strike
The information alleged that defendant Jimenez had a prior juvenile adjudication
that qualified as a strike: a robbery committed when defendant Jimenez was 16 years or
older. Defendant Jimenez waived his right to a jury trial on the allegation and, after a
court trial, the trial court found the allegation true. The documents submitted to prove the
juvenile adjudication included a Welfare and Institutions Code section 602 petition and a
“Juvenile Detention Disposition Report” reflecting that defendant Jimenez had admitted
the robbery allegation.
At the sentencing hearing, the trial court denied defendant Jimenez’s motion to
strike the strike allegation (see People v. Superior Court (Romero) (1996) 13 Cal.4th
497) and, pursuant to the Three Strikes law, doubled the 16-month low term for the
violation of section 29800 to 32 months. (See § 667, subd. (e)(1).)
Defendant Jimenez contends that “using a juvenile adjudication procured without
jury trial to increase punishment in a later proceeding violated [his] Sixth and Fourteenth
Amendment rights to jury trial and proof beyond a reasonable doubt” and that “the Due
Process Clause of the Fourteenth Amendment forbids the use of a prior juvenile
adjudication to subsequently enhance an adult sentence.”
22
Defendant Jimenez acknowledges that in People v. Nguyen (2009) 46 Cal.4th
1007 (Nguyen), the California Supreme Court held that juvenile adjudications may be
used as strikes. In Nguyen, the court considered whether the United States Constitution
permitted the use of a prior juvenile adjudication as a strike “even though there was no
right to a jury trial in the juvenile proceeding.” (Id. at p. 1010.) The prosecution had
alleged as a strike that the defendant had suffered a prior juvenile adjudication at age 16
for assault with a deadly weapon. (Id. at p. 1013.) The defendant waived his right to a
jury trial on that allegation, and the court found it true based on documents showing that
the defendant had admitted in the juvenile proceedings that he had committed an assault
with a deadly weapon. (Ibid.)
The California Supreme Court rejected the Nguyen defendant’s claim that
Apprendi v. New Jersey (2000) 530 U.S. 466 barred the use of a juvenile adjudication as
a strike. The court pointed out that “the literal rule of Apprendi . . . required only that a
jury in the current proceeding determine the existence of” the prior juvenile adjudication.
(Nguyen, supra, 46 Cal.4th at p. 1015.) Since the defendant had been afforded (but
waived) the right to a jury trial in the current proceeding on the question of whether he
had suffered the prior juvenile adjudication, the rule of Apprendi had not been violated.
(Ibid.) Nevertheless, the Nguyen defendant claimed that “the lack of a jury-trial right in
the prior juvenile proceeding precludes all use of the resulting adjudication to enhance
the maximum sentence for his current offense.” (Id. at p. 1016.) The court disagreed.
“Apprendi and its progeny concern an adult’s right to jury findings, in the adult case, of
all previously unadjudicated facts that bear upon the maximum sentence for the adult
offense.” (Id. at p. 1024.) Since the facts of the adult defendant’s juvenile offense had
been previously adjudicated in the prior juvenile proceedings, the use of the juvenile
adjudication as a strike did not violate the defendant’s Sixth Amendment rights. (Ibid.)
Defendant Jimenez claims that the California Supreme Court’s decision in Nguyen
has been fatally undermined by the United States Supreme Court’s decisions in
23
Descamps v. United States (2013) 570 U.S. 254 (Descamps) and Mathis v. United States
(2016) 579 U.S. __ [136 S.Ct. 2243, 2016 U.S. LEXIS 4060] (Mathis), and by the
California Supreme Court’s decision in People v. Gallardo (2017) 4 Cal.5th 120(Gallardo). The Second District Court of Appeal rejected similar arguments in People v.
Romero (2019) 44 Cal.App.5th 381, and, subsequent to Descamps, Mathis, and Gallardo,
the California Supreme expressly declined to reconsider Nguyen. (People v. Landry
(2016) 2 Cal.5th 52, 117, fn. 18.) As explained below, we also find the arguments
regarding Nguyen unpersuasive.
In Descamps, a case concerning the requirements of a federal statute, not the scope
of the Sixth Amendment right to a jury trial, the United States Supreme Court held that
the statute did not permit a court to make “its own finding about” a previously
unadjudicated fact concerning a prior conviction to increase a defendant’s maximum
sentence for a current offense. (Descamps, supra, 570 U.S. at p. 270.) One of the three
reasons forming the basis for the court’s statutory analysis was “avoid[ing] the Sixth
Amendment concerns that would arise from sentencing courts’ making findings of fact
that properly belong to juries.” (Id. at p. 267.) Consequently, the court found that the
federal statute precluded the sentencing court from making factual findings beyond the
elements of the prior offense. (Id. at p. 270.)
Mathis applied Descamps to a slightly different scenario under the same federal
statute, and again concluded that a court was precluded from making factual findings
beyond the elements of the prior offense. (Mathis, supra, 579 U.S. at pp. __ [136 S.Ct. at
pp. 2248-2252].) The court explained again that one of the three reasons for this rule was
that the Sixth Amendment required “[t]hat . . . a judge cannot go beyond identifying the
crime of conviction to explore the manner in which the defendant committed that
offense.” (Id. at p. __ [136 S.Ct. at p. 2252].)
Neither Descamps nor Mathis had any impact on the analysis applied in Nguyen.
The Nguyen decision held that a prior juvenile adjudication could be used as a strike
24
without violating the Sixth Amendment because its use did not require findings on any
previously unadjudicated facts. Both Descamps and Mathis were concerned with the use
of a prior conviction to enhance a sentence where its use required a finding on a
previously unadjudicated fact. The Nguyen decision’s reasoning was unaffected by those
holdings.
In Gallardo, the issue was whether a trial court could properly decide, based on a
preliminary hearing transcript, whether a conviction of former section 245, subdivision
(a)(1) had involved an assault with a deadly weapon (which would qualify as a strike) or
instead an assault by means of force likely to cause great bodily injury (which would not
qualify as a strike). The statutory definition of the offense included both means of
committing the offense, and the defendant had entered a guilty plea that did not specify
whether she had used a deadly weapon. (Gallardo, supra, 4 Cal.5th at pp. 123-125, 136.)
The trial court in Gallardo had reviewed the testimony of the victim at the preliminary
examination in the prior case and determined that the defendant had used a deadly
weapon to assault the victim in the prior case. (Id. at p. 126.) Based on Descamps and
Mathis, the California Supreme Court held in Gallardo that a court may not rely on its
own finding on a previously unadjudicated fact to increase the defendant’s sentence
without violating the Sixth Amendment. (Id. at pp. 132-134.)
The Gallardo decision too had no impact on the rationale of the Nguyen decision.
What the Gallardo decision proscribed was “judicial factfinding” about a previously
unadjudicated fact. (Gallardo, supra, 4 Cal.5th at p. 136.) The use of defendant
Jimenez’s prior juvenile adjudication as a strike did not require judicial factfinding about
a previously unadjudicated fact. The pertinent facts were adjudicated in the juvenile
proceedings when defendant Jimenez admitted the robbery allegation. No factfinding as
to the nature of defendant Jimenez’s prior offense was involved here.
Defendant Jimenez’s due process argument is based on McKeiver v. Pennsylvania
(1971) 403 U.S. 528, a plurality decision that ultimately found there is no right to a jury
25
trial in a juvenile proceeding. (See id. at p. 545.) The McKeiver court declined to find
that juvenile proceedings should be “equated” to a criminal trial. (Id. at p. 550; see id.
at p. 553 [conc. opn. of White, J.].) Defendant Jimenez asserts that in California, because
a juvenile adjudication can be used to enhance punishment at a criminal trial, the
reasoning of McKeiver should preclude the use of a juvenile adjudication as a strike.
Defendant Jimenez notes that the Supreme Court of Louisiana has reached that
conclusion based on Louisiana’s Habitual Offender Law. (State v. Brown (La. 2004) 879
So. 2d 1276, 1279, 1290.) However, “the overwhelming majority of courts” have
rejected the argument. (Nguyen, supra, 46 Cal.4th at p. 1020.) That majority of courts
includes our own California Supreme Court’s decision in Nguyen, which we remain
bound to follow. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
We therefore reject defendant Jimenez’s due process claim.
2. Aguilar’s Prior Prison Term
Defendant Aguilar contends, and the People concede, that his one-year prior
prison term enhancement should be stricken because, as amended by Senate Bill No. 136
(2019-2020 Reg. Sess.), section 667.5, subdivision (b) only applies where the prior prison
term was served for a sexually violent offense. (See Welf. & Inst. Code, § 6600,
subd. (b).) This change in law applies retroactively to all cases not yet final on the
operative date of the amendment, which was January 1, 2020. (People v. Lopez (2019)
42 Cal.App.5th 337, 341 (Lopez); see In re Estrada (1965) 63 Cal.2d 740, 742.)
Here, the trial court imposed a one-year section 667.5, subdivision (b) prior prison
term enhancement for a prior prison term defendant Aguilar previously served for a
conviction of section 29800, subdivision (a)(1), which is not a sexually violent offense as
defined in Welfare and Institutions Code section 6600, subdivision (b). On January 1,
2020, defendant’s case was not yet final. Therefore, as the parties agree, defendant
Aguilar is entitled to the ameliorative benefit of Senate Bill No. 136’s amendment to
section 667.5, subdivision (b).
26
In Lopez, the court explained that a remand for resentencing is unnecessary where
the trial court has imposed the maximum possible sentence, because in such cases there is
“no need for the court to again exercise its sentencing discretion.” (Lopez, supra, 42
Cal.App.5th at p. 342.) Here, the trial court did not impose the maximum sentence, and
therefore, we will order the prior prison term enhancement stricken and remand for
resentencing.
F. Ability to Pay Fines and Fees
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendants
contend the trial court erroneously imposed certain fees and fines without finding each
defendant had an ability to pay.
1. Proceedings Below
The probation report prepared for defendants’ sentencing hearing reflected that
defendant Aguilar was 21 years old and defendant Jimenez was 22 years old. Both
defendants declined to provide a social history, which would have included their
employment history, information about any health problems, and more. Both defendants
reported residence addresses, however.
The probation report recommended imposition of a $3,600 restitution fine as to
defendant Aguilar and a $4,200 restitution fine as to defendant Jimenez. (See § 1202.4,
subd. (b).) As to each defendant, the probation report recommended imposition of a $120
court facility fee (§ 1465.8, subd. (a)(1)), a $90 court operations assessment (Gov. Code,
§ 70373), and a $129.75 criminal justice administration fee (Gov. Code, §§ 29550,
29550.1, 29550.2) to the City of San Jose.
At the sentencing hearing held on September 21, 2018, the trial court imposed
identical fees and fines for both defendants: a $500 restitution fine, a $120 court facility
fee, a $90 court operations fee, and a $129.75 criminal justice administration fee to the
City of San Jose. Neither defendant objected to the fees and fines.
27
2. The Dueñas Case
The defendant in Dueñas was indigent, homeless, and unemployed due to a
disability. She was convicted of driving with a suspended license, placed on
misdemeanor probation, and ordered to pay a $150 restitution fine, a $40 court facility
fee, and a $30 court operations assessment. (Dueñas, supra, 30 Cal.App.5th at p. 1162.)
The trial court found that the latter two fees were mandatory and that the restitution fine
could only be waived if there were “compelling and extraordinary reasons” as defined by
section 1202.4, subdivision (c), which excludes “inability to pay” as a basis for waiver
(ibid.).
Dueñas found it unconstitutional to “us[e] the criminal process to collect” fines
and fees that the defendant could not pay due to her poverty. (Dueñas, supra, 30
Cal.App.5th at p. 1160.) The 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 Penal Code
section 1465.8 and Government Code section 70373” and “that although Penal Code
section 1202.4 bars consideration of a defendant’s ability to pay unless the judge is
considering increasing the fee over the statutory minimum, the execution of any
restitution fine imposed under this statute must be stayed unless and until the trial court
holds an ability to pay hearing and concludes that the defendant has the present ability to
pay the restitution fine.” (Dueñas, supra, at p. 1164.)
The Dueñas court noted that the court facility fee and the court operations
assessment were intended to generate funds for courts rather than to be “punitive.”
(Dueñas, supra, 30 Cal.App.5th at p. 1165.) However, that revenue goal is not furthered
by imposing such fees on people who are unable to pay. (Id. at p. 1167.) Moreover, a
person who cannot pay court fees can face additional consequences, such as collections
actions, which the court described as “additional punishment” that, if imposed without a
finding of ability to pay, would be “fundamentally unfair.” (Id. at p. 1168.)
28
The restitution fine, in contrast, is intended to be “additional punishment for a
crime.” (Dueñas, supra, 30 Cal.App.5th at p. 1169.) However, imposition of even a
minimum fine on an indigent defendant can result in disparate treatment of indigent and
wealthy probationers, because someone who can pay off the restitution fine and fulfills
all the other obligations of probation can often obtain dismissal of the charges pursuant to
section 1203.4. (See Dueñas, supra, at p. 1170.)
Courts of Appeal have not agreed whether Dueñas was correctly decided, and the
issue is pending before the California Supreme Court in People v. Kopp (2019) 38
Cal.App.5th 47, S257844, review granted November 13, 2019. Members of this court
have reached different conclusions on the issue. (See People v. Adams (2020) 44
Cal.App.5th 828, 831 [maj. opn]; id. at pp. 832-833 [dis. opn. of Premo, J.]; People v.
Petri (2020) 45 Cal.App.5th 82, 91-92 [maj. opn]; id. at p. 95 [dis. opn. of Premo, J.];
People v. Santos (2019) 38 Cal.App.5th 923, 933 [maj. opn.]; id. at p. 935 [dis. opn. of
Elia, J.].)
2. Forfeiture
Defendants’ sentencing occurred in 2018, prior to the 2019 Dueñas decision.
Defendants argue that their failure to object at sentencing does not forfeit their appellate
claims because the sentencing hearing predated Dueñas.
We need not determine whether defendants forfeited their constitutional claims
based on Dueñas. As explained below, we find defendants forfeited their challenges to
the $500 restitution fines because there was a statutory basis to object to these fines and
fees based on their inability to pay that existed prior to the Dueñas decision. Their failure
to make such an objection also implied that they were able to pay the $129.75 booking
fee, the $120 court operations fee, and the $90 court facilities fee.
Under section 1202.4, subdivision (b)(1), the trial court is required to impose a
restitution fine of not less than $300 and not more than $10,000. The statute provides
that the trial court may not consider a defendant’s ability to pay when imposing the
29
minimum fine of $300. (§ 1202.4, subd. (c).) However, if the court sets a restitution fine
in excess of the minimum, it must consider “any relevant factors, including, but not
limited to, the defendant’s inability to pay . . . .” (id., subd. (d).)
Here, the trial court imposed restitution fines of $500 as to each defendant. Since
$500 was “in excess of the minimum fine” (§ 1202.4, subd. (c)), defendants had statutory
grounds to object based on an inability to pay. “[E]ven before Dueñas a defendant had
every incentive to object to imposition of a maximum restitution fine based on inability to
pay because governing law as reflected in the statute (§ 1202.4, subd. (c)) expressly
permitted such a challenge.” (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.)
“Thus, even if Dueñas was unforeseeable . . . , under the facts of this case [defendants]
forfeited any ability-to-pay argument regarding the restitution fine by failing to object.”
(Ibid.)
In imposing the $129.75 criminal justice administration fee, the trial court
referenced the three booking fee statutes: Government Code sections 29550, 29550.1,
and 29550.2. The latter statute (Gov. Code, § 29550.2) includes an ability to pay
requirement, so at least arguably defendants also forfeited their challenges to that fine.
(See People v. McCullough (2013) 56 Cal.4th 589, 591 [a defendant’s failure to object to
imposition of a Gov. Code, § 29550.2, subd. (a) booking fee “forfeits the right to
challenge it on appeal”].) Because the trial court ordered the fees payable to the City of
San Jose, however, it appears that the proper statutory basis for the fee in this case was
Government Code section 29550.1, which does not include an ability to pay
requirement.7
7
It is not entirely clear whether defendants are challenging imposition of the
criminal justice administration fee. Defendant Aguilar mentions the criminal justice
administration fee in his second supplemental opening brief, but in his reply brief he does
not assert that the criminal justice administration fee should be stricken or stayed.
Defendant Jimenez joined in defendant Aguilar’s briefing on the issue. We will assume
defendants’ arguments encompass that fee.
30
Nevertheless, by failing to challenge the imposition of the $500 restitution fines,
which were $200 above the statutory minimum, defendants effectively forfeited any
argument that they had an inability to pay at least that amount. The record indicates that
neither defendant was homeless, and that both were young and apparently able-bodied.
Both defendants would likely be able to pay at least a portion of the fees and fines
through prison wages. (See People v. Johnson (2019) 35 Cal.App.5th 134, 139-140;
People v. Jones (2019) 36 Cal.App.5th 1028, 1035.) On this record, we conclude that the
trial court reasonably made an implied finding that, in addition to having the ability to
pay the $500 restitution fine, defendants had the ability to pay the additional $339.75—
consisting of the $129.75 criminal justice administration fee, the $120 court operations
assessment (§ 1465.8, subd. (a)(1)), and the $90 court facilities fee (Gov. Code, § 70373).
In other words, with defendants having failed to object to the imposition of restitution
fines that exceeded the minimum by $200, the trial court could reasonably infer that each
defendant had the ability to pay the additional fee amounts.
III. DISPOSITION
As to defendant Jimenez, the judgment is affirmed. As to defendant Aguilar, the
judgment is reversed and the matter is remanded with directions to strike the prior prison
term enhancement (Pen. Code, § 667.5, subd. (b)) and resentence defendant Aguilar.
31
Cogliati, J.*
WE CONCUR:
Greenwood, P.J.
Elia, J.
People v. Aguilar
H046279
*
Judge of the Santa Cruz County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.