People v. Lopez CA2/1 ( 2023 )

Filed 4/28/23 P. v. Lopez CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B314158
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA480221)
v.
DAVID LOPEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Renee Korn, Judge. Affirmed as modified.
Gary V. Crooks, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and David A. Voet, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________________
David Lopez appeals from a judgment entered after a jury
found him guilty of two counts of criminal threats with personal
use of a deadly or dangerous weapon (a knife) and three counts of
assault with a deadly weapon (the knife). After Lopez admitted
he had a prior strike conviction, the trial court sentenced him to
six years in prison. He raises numerous contentions on appeal,
including (1) the prosecution failed to prove he did not act in self-
defense, (2) the court gave the jury “misleading” and “confusing”
instructions on self-defense and the weapon enhancement, (3) the
court erred in answering a question from the jury, and (4) the
court erred in imposing a restitution fine and assessments
without considering his ability to pay. For the reasons explained
below, we affirm the judgment, as modified to correct clerical
errors regarding assessments the trial court imposed.
BACKGROUND
I. Evidence of the Facts and Circumstances of the
Crimes as Presented at Trial
At night, on August 7, 2019, Paula Farfan, her friend
Luzangela Zelaya, Zelaya’s boyfriend Jeffrey Hernandez, and
Hernandez’s friend Pepe went to a bar.1 They drank alcohol
there and left after around an hour and a half. They walked to
the parking lot where Zelaya’s car was parked, with Hernandez
and Pepe each holding a skateboard. Defendant Lopez and his
friend (who was not identified at trial) were in a smoking area
outside the bar that was separated from the parking lot by
1 Farfan, Zelaya, and Hernandez testified at trial for the
prosecution. The defense did not present any witnesses. The
identity of Hernandez’s friend was not established at trial.
Zelaya testified that the friend used the nickname Pepe, so we
will refer to him by that name in this opinion.
2
fencing with a gate. An interaction and altercation between the
two groups was captured on surveillance video from the bar that
the prosecution played for the jury during the testimony of
Farfan, Zelaya and Hernandez. We have reviewed the
surveillance video.
According to the witnesses’ testimony, Zelaya walked up to
the fence and asked defendant Lopez and his friend for a
cigarette. Hernandez also asked someone behind the fence about
a vehicle that was blocking Zelaya’s car from exiting the parking
lot. Hernandez walked away, toward Zelaya’s car. Farfan
walked over to the fence to see what Zelaya was doing. Farfan
and Lopez introduced themselves to each other while Zelaya
talked to Lopez’s friend. Lopez asked Farfan for her telephone
number, which she declined to provide, telling him she would
give him contact information for her Instagram account instead.
According to Farfan, Lopez became angry and made a “snap
comment” back to her, and she walked away. She went to
Zelaya’s car and put her purse inside. Meanwhile, either Lopez
or his friend offered Zelaya the cigarette he was smoking and
joked that he had the herpes virus. This upset Zelaya and she
returned the cigarette. In response, Lopez or his friend called
Zelaya a “bitch.”2 Zelaya walked over to her car where Farfan
was waiting.
2According to Zelaya’s trial testimony, this exchange
regarding the cigarette, including use of the derogatory term, was
between her and Lopez. Hernandez also testified at trial that it
was Lopez who referred to Zelaya by the derogatory term.
According to Farfan’s trial testimony and Zelaya’s preliminary
hearing testimony (which the defense used to impeach Zelaya),
the exchange regarding the cigarette, including use of the
derogatory term, was between Zelaya and Lopez’s friend. This
3
Upon overhearing this exchange, Hernandez approached
Lopez and his friend (from the other side of the fence) and told
them not to be disrespectful and not to call Zelaya a “bitch.”
Then, Hernandez walked away, toward Zelaya’s car. Lopez and
his friend came around the fence into the parking lot and
approached Hernandez and Pepe. It appeared to Hernandez that
Lopez and his friend were mad and wanted to fight with
Hernandez. Lopez or his friend grabbed the skateboards away
from Hernandez and Pepe, and words were exchanged between
the two groups of men. Pepe took the skateboards back.
Lopez grabbed Hernandez, and Hernandez “pushed him
away warning him, like, dude, don’t. Just stop. Leave. I’ll really
do something.” Hernandez stated at trial that he “held [him]self”
back because Lopez was “not worth it.” He did not want to
engage in a physical altercation because he was on probation (for
a robbery), and he would get in trouble if he fought.3 Hernandez
retrieved his skateboard (presumably from Pepe). He stated that
he did not use it as a weapon. Zelaya pushed one of the men
(Lopez or his friend) away from Hernandez because she did not
want Hernandez to fight.4 Lopez pulled out a knife, held it down
at his side, and moved within an inch of Hernandez. Hernandez
inconsistency is not material to our resolution of the issues on
appeal.
3Between the time of the incident and trial, Hernandez
was convicted for a domestic violence incident with Zelaya. They
were no longer dating at the time of trial and a protective order
prohibited them from having contact with each other.
4 During her trial testimony, Zelaya sometimes used the
words “he” and “him,” without specifying whether she was
referring to Lopez or his friend.
4
backed up.5 Hernandez testified that he swung his skateboard at
Lopez but did not hit him with it, knowing that he could act in
self-defense to save his life.6 He was angry at that point about
the situation and was concerned about Zelaya and Farfan. He
shoved Lopez, and Lopez’s friend separated them. Hernandez
took off his shirt in preparation for a fight because he did not
want the blade to get caught on his shirt if Lopez tried to strike
him with the knife. Hernandez testified that he did not start the
fight.
At some point during the altercation between Hernandez
and the two men, Farfan told Lopez “to stop harassing [her]
friends.” According to Farfan’s trial testimony, Lopez came
within 12 to 18 inches of her, looked directly into her eyes, and
pointed the knife at her as he threatened to rape and kill her.
Lopez’s friend held him back as he moved toward her. She was
scared and believed Lopez would carry out the threats based on
his actions. At trial, the prosecutor showed Farfan a knife, and
she identified it as the knife Lopez used. As the prosecutor
played the surveillance video during her testimony, Farfan noted
the video depicted the point when she leaned back because Lopez
5 At trial, the parties agreed the knife could not be seen on
the video. As Hernandez watched the video on the stand, he
testified that the reason he backed up as depicted in the video is
because he saw the knife for the first time.
6 Later in his testimony, Hernandez stated he did not recall
if he had his skateboard in his hand at this point in the
altercation. At some point, he placed the skateboard in the trunk
of Zelaya’s car. The parties agreed at trial that the video does not
show Hernandez swinging his skateboard at Lopez (or using it
during the altercation).
5
pointed the knife at her. Farfan testified that she did not initiate
an altercation with Lopez.
According to Zelaya’s trial testimony, around the same time
Lopez threatened Farfan, Lopez looked Zelaya in the face and
threatened to kill her and rape her mother, with the knife raised
above his head and pointed toward the ground. Lopez was
around 12 to 18 inches away from Zelaya when he made these
threats and waved the knife.7 Lopez’s friend was holding him
back. Zelaya felt “scared for [her] life.” At trial, the prosecutor
showed Zelaya a knife, and she identified it as the knife Lopez
used. Zelaya testified that she did not do anything to provoke
Lopez’s conduct.
Farfan was standing behind Zelaya’s car after Lopez
threatened her. Thereafter, she walked around to the passenger
side, opened the car door, and retrieved her purse. She removed
a knife she carried in her purse and showed it to Lopez.8 She told
him to stop, but he continued threatening to rape and kill her as
he held his knife. She told him that if he hurt her, she would
hurt him.
Around 30 seconds later, Farfan took out her cell phone
and dialed 911 to report the incident. The prosecutor played the
audio of the 911 call at trial, and the court marked for
identification a transcript of the call. The 911 operator told
7At trial, Zelaya and Farfan each demonstrated the
distance between herself and Lopez at the time Lopez pointed the
knife and made the threats and, in each instance, the trial court
estimated the distance as 12 to 18 inches.
8 At trial, the parties agreed that neither the knife Farfan
testified she displayed, or the knife witnesses testified Lopez
used, could be seen on the bar’s surveillance video.
6
Farfan to find a safe place, and Farfan entered the front
passenger seat of Zelaya’s car. Zelaya got into the driver’s seat
and Hernandez and Pepe climbed into the backseat. As reflected
in a portion of the transcript of the 911 call, which the prosecutor
read into the record, Farfan informed the operator, “He is
literally coming at me right now. Oh my god, oh my god, oh my
god, no.” According to Farfan’s trial testimony, at this point,
Lopez opened the car’s front passenger side door and tried to pull
her out of the car. She resisted, pulling away from him. She
believed she saw the knife in his hand but was not positive.9
Hernandez testified that he exited the car, grabbed his
skateboard from the trunk, and swung it toward Lopez to get
Lopez to back up. Hernandez did not hit Lopez with the
skateboard.10
Los Angeles Police Department Officer Julio Aguilar, who
testified at trial, was on patrol near the bar where this incident
occurred. As he and his partner drove by in their patrol car,
Aguilar noticed a physical altercation in the bar’s parking lot.
Aguilar parked the car and exited. He heard people shouting,
9 When Farfan spoke to an officer at the scene that night,
she told the officer that Lopez opened the car door and tried to
grab her, but she did not believe he actually touched her. At
trial, after seeing the surveillance video, she recalled that Lopez
grabbed her and tried to pull her out of the car. Zelaya and
Hernandez testified at trial that Lopez actually pulled Farfan out
of the car, but Farfan testified that she remained in the car.
Again, such inconsistency is not material to our resolution of the
issues on appeal.
10As stated above, the parties agreed at trial that the video
does not show Hernandez ever swinging his skateboard at Lopez.
7
“ ‘He’s trying to stab me. He’s got a knife.’ ” They pointed toward
a man (later identified as Lopez). Lopez ran away, entering the
rear door of the bar and exiting out the front. Aguilar walked to
the corner and saw Lopez running. Aguilar ordered Lopez to
stop, but Lopez continued to run. Aguilar broadcast Lopez’s
description and location over his radio.
Officer Aguilar walked back to the bar’s parking lot and
interviewed witnesses. Zelaya stated at trial that she believed
she was the “most clearheaded” of her group to tell the officers
what happened. She tried to hide from the officers the fact that
she had been drinking alcohol that night. As Farfan was
speaking to officers, Zelaya covered Farfan’s mouth and told
Farfan to be quiet when Farfan indicated she (Farfan) was drunk
and did not know what was happening. Aguilar interviewed
Farfan separately, and Farfan disputed Zelaya’s account that
Lopez grabbed Farfan and pulled her out of the car. No one told
the police that Farfan had a knife. At trial, Farfan stated she
was “buzzed” but “lucid” during the incident.
Officer Emanuel Ramirez, who testified at trial, was on
patrol when he heard a radio call regarding the description and
general location of a suspect in an assault with a deadly weapon.
He and his partner responded and drove around, searching for
the suspect. Ramirez noticed a man (later identified as Lopez)
moving quickly through the parking lot of a shopping center.
Ramirez saw Lopez discard an unknown object. Lopez entered a
liquor store, and Ramirez and his partner detained him. Ramirez
smelled the odor of alcohol and believed Lopez was under the
influence. According to Ramirez, Lopez did not have any trouble
walking.
8
Officer Lawrence Langer, who also testified at trial,
assisted with the investigation after Lopez was detained. Officer
Ramirez asked Langer to search the area for the item Lopez
discarded. Langer observed a tall structure with a grate on top
and noticed an item on it. He climbed onto the roof of a patrol
vehicle in order to view the item. It was a knife, which was then
photographed as it sat on top of the grate. The photographs were
admitted into evidence. At trial, Langer opened a sealed
envelope and identified its contents as the knife he recovered
from the top of the structure. He could not recall if the knife was
rusty when he found it, but he recalled that the knife did not
appear “worn out” and it did not seem like the knife had been on
top of the structure for a long time. The prosecutor asked him if
he polished or cleaned the knife before collecting it as evidence,
and he said no.
Officer Aguilar interviewed Lopez at a police station. The
prosecutor played a DVD recording of the interview for the jury,
and a transcript of the interview was marked for identification.
Aguilar testified that Lopez appeared intoxicated at the time of
the interview. Lopez told Aguilar that he was not present at the
bar when the incident occurred.
II. Verdicts and Sentence
The jury found Lopez guilty of two counts of criminal
threats (Pen. Code,11 § 422, subd. (a)), count 1 against Farfan and
count 2 against Zelaya, and found true as to each count the
special allegation that Lopez personally used a deadly or
dangerous weapon (the knife) in the commission of the criminal
11 Undesignated statutory references are to the Penal Code.
9
threats (§ 12022, subd. (b)(1)).12 The jury also found Lopez guilty
of three counts of assault with a deadly weapon (§ 245, subd.
(a)(1); counts 4-6) against Farfan, Zelaya, and Hernandez.
Lopez waived a jury trial on prior conviction allegations
and admitted that a prior conviction for assault with a deadly
weapon constituted a strike (§§ 667, subd. (d) & 1170.12, subd.
(b)) and a serious felony (§ 667, subd. (a)). On March 11, 2020,
the trial court sentenced him to six years in prison: the low term
of two years for the assault with a deadly weapon on Farfan
(count 4), doubled to four years for the prior strike, plus one year
(one-third the middle term) for the assault with a deadly weapon
on Zelaya (count 5), and one year for the assault with a deadly
weapon on Hernandez (count 6). The court exercised its
discretion and dismissed the prior strike as to counts 5 and 6.
The court imposed and stayed the terms on counts 1 and 2 for the
criminal threats. Without objection from Lopez the trial court
imposed the minimum restitution fine of $300, as well as court
facilities (Gov. Code, § 70373) and court operations (§ 1465.8)
assessments on the convictions.
On June 29, 2020, while Lopez was awaiting transfer from
county jail to state prison, the trial court granted Lopez’s motion
for release on his own recognizance due to the COVID-19
pandemic. The court allowed Lopez to continue to work as a chef
during the time he was released. The court stayed his sentence
pending a future hearing. The parties and the court agreed there
would be no change to the sentence imposed on March 11, 2020,
unless he failed to appear as ordered. At hearings on October 26,
12The trial court dismissed count 3 for criminal threats
against Hernandez after the prosecution’s case-in-chief.
10
2020, January 15, 2021, and March 15, 2021, the court continued
Lopez’s release. Lopez continued to work as a chef at two
different restaurants. At a hearing on May 24, 2021, Lopez
surrendered to custody. He had a total of 873 days of custody
credit. As agreed, the court stated there would be no change to
the sentence the court announced on March 11, 2020, as specified
above.
DISCUSSION
I. The Record Includes Substantial Evidence
Supporting a Finding That Lopez Did Not Act in Self-
Defense
At trial, Lopez’s counsel argued to the jury that Lopez acted
in self-defense. The trial court instructed the jury on that theory
over the prosecution’s objection that the evidence did not support
it. On appeal, Lopez contends the prosecution presented
insufficient evidence for the jury to conclude beyond a reasonable
doubt that he did not act in perfect self-defense. In support of
this contention, he cites bits and pieces of evidence, taken out of
context and viewed in a light most favorable to him, in
contravention of the standard of review. Applying the
substantial evidence test, as set forth below, we must reject
Lopez’s challenge to the sufficiency of the evidence.
“It is the prosecution’s burden in a criminal case to prove
every element of a crime beyond a reasonable doubt. [Citation.]
To determine whether the prosecution has introduced sufficient
evidence to meet this burden, courts apply the ‘substantial
evidence’ test. Under this standard, the court ‘must 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
11
that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.’ [Citations.] The focus of the
substantial evidence test is on the whole record of evidence
presented to the trier of fact, rather than on ‘ “isolated bits of
evidence.” ’ ” (People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)
We “ ‘ “must presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence.” ’ ” (People v. Smith (2005) 37 Cal.4th 733, 739.) “The
credibility of witnesses and the weight accorded the evidence are
matters within the province of the trier of fact.” (People v. Ramos
(2004) 121 Cal.App.4th 1194, 1207.) “ ‘An appellate court must
accept logical inferences that the jury might have drawn from the
evidence even if the court would have concluded otherwise.’ ”
(People v. Halvorsen (2007) 42 Cal.4th 379, 419.) “Reversal on
this ground is unwarranted unless it appears ‘that upon no
hypothesis whatever is there sufficient substantial evidence to
support [the conviction].’ ” (People v. Bolin (1998) 18 Cal.4th 297,
331.)
As the trial court instructed the jury, to prove Lopez was
guilty of assault with a deadly weapon, one of the elements the
prosecution had to prove is Lopez did not act in self-defense.
(CALCRIM No. 875; People v. Saavedra (2007) 156 Cal.App.4th
561, 571 [“the prosecution has the burden to prove a defendant
did not act in self-defense, because self-defense negates an
element of the offense”].) The trial court also instructed the jury
with CALCRIM No. 3470 that “[s]elf-defense is a defense to
assault with a deadly weapon (Counts 4, 5, and 6) and the lesser
crime of assault. The defendant is not guilty of that crime if he
used force against the other person in lawful self-defense. The
defendant acted in lawful self-defense if: [¶] 1. The defendant
12
reasonably believed that he was in imminent danger of suffering
bodily injury or was in imminent danger of being touched
unlawfully; [¶] 2. The defendant reasonably believed that the
immediate use of force was necessary to defend against that
danger; [¶] AND [¶] 3. The defendant used no more force than
was reasonably necessary to defend against the danger.”
(CALCRIM No. 3470; see also People v. Minifie (1996) 13 Cal.4th
1055, 1064-1065; People v. Humphrey (1996) 13 Cal.4th 1073,
1082-1083.)
After hearing the victims’ testimony and watching the
altercation unfold on the bar’s surveillance video, the jury
rejected Lopez’s self-defense theory. On appeal, Lopez asks us to
reweigh the evidence and reappraise victim credibility, which we
are not permitted to do under the standard of review.
As a threshold matter, Lopez challenges the credibility of
evidence demonstrating he had a knife, although each victim
testified to this fact and Farfan and Zelaya identified at trial the
knife Officer Langer recovered from the area where Officer
Ramirez saw Lopez discard an item. The witnesses’ testimony
constitutes substantial evidence demonstrating Lopez had a
knife. The credibility of the testimony was a matter for the jury
to evaluate and resolve.
Lopez points to isolated bits of witness testimony and asks
us to view those pieces of evidence, and their chronology, in a
light most favorable to him. He presents a theory that, if he
pulled out a knife and “did an act with [it] that by its nature
would directly and probably result in the application of force to a
person” (CALCRIM No. 875), he did so because Hernandez used
the skateboard as a weapon against him and Farfan threatened
him with her knife. Therefore, he argued he acted in self-defense.
13
Lopez cites to Hernandez’s testimony indicating Hernandez
grabbed his skateboard before Lopez pulled out the knife.
Hernandez clarified throughout his testimony, however, that he
did not swing the skateboard at Lopez until after Lopez pulled
out the knife. It was for the jury to decide whether Lopez pulled
out the knife because of Hernandez’s actions with the skateboard
and, if so, whether Lopez acted in self-defense. The jury resolved
these factual questions against Lopez, and we have no cause to
disturb the jury’s verdicts.
Lopez asserts there is testimony indicating Farfan was
carrying her purse (containing her knife) during the entire
incident, and she did not retrieve her purse from the car after
Lopez threatened her with a knife, as she testified. Assuming for
purposes of his argument there is testimony that could be
interpreted in this manner, there is no evidence—only his
speculation—that Farfan showed her knife or referenced her
knife before Lopez threatened her with his knife.
The record contains sufficient evidence for the jury to
conclude beyond a reasonable doubt that Lopez did not act in self-
defense. Substantial evidence demonstrates that Lopez came
around the fence and grabbed Hernandez. After Hernandez
pushed Lopez away, and indicated he wanted Lopez to stop,
Lopez pulled out the knife and came within an inch of
Hernandez. Substantial evidence also demonstrates Lopez
pointed the knife at Farfan and Zelaya, although they posed no
danger to him. We may not reweigh the evidence or reevaluate
witness credibility in a light more favorable to Lopez.
14
II. The Trial Court Did Not Err in Instructing the Jury,
and Lopez Has Not Established Ineffective
Assistance of Counsel
A. CALCRIM No. 3471
At Lopez’s trial, the prosecution requested the court
instruct the jury with CALCRIM No. 3471, as follows:
“A person who starts a fight has a right to self[-]defense
only if:
“1. He actually and in good faith tried to stop fighting;
“AND
“2. He indicated, by word or by conduct, to his opponent, in
a way that a reasonable person would understand, that he
wanted to stop fighting and that he had stopped fighting.
“If the defendant meets these requirements, he then had a
right to self[-]defense if the opponent continued to fight.
“However, if the defendant used only non-deadly force, and
the opponent responded with such sudden and deadly force that
the defendant could not withdraw from the fight, then the
defendant had the right to defend himself with deadly force and
was not required to try to stop fighting, communicate the desire
to stop to the opponent, or give the opponent a chance to stop
fighting.”
Lopez objected to the use of CALCRIM No. 3471, arguing in
the trial court that a court may give this instruction only if the
defense (not the prosecution) requests it, and it is not
inconsistent with the defendant’s theory of the case. Lopez
asserted the instruction was inconsistent with his theory of the
case because he disputed he was the initial aggressor who started
the fight. The trial court overruled Lopez’s objection and gave
the instruction, finding that sufficient evidence supported the
15
prosecution’s theory of the case that Lopez was the initial
aggressor who started the fight.
On appeal, Lopez contends the trial court erred in
instructing the jury with CALCRIM No. 3471 for the reasons he
articulated in the trial court. He also asserts the instruction was
argumentative because it instructed the jury that he started the
fight, usurping the jury’s role as factfinder.
“A party is entitled to a requested instruction if it is
supported by substantial evidence. [Citation.] Evidence is
‘[s]ubstantial’ for this purpose if it is ‘sufficient to “deserve
consideration by the jury,” that is, evidence that a reasonable
jury could find persuasive.’ [Citation.] At the same time,
instructions not supported by substantial evidence should not be
given.” (People v. Ross (2007) 155 Cal.App.4th 1033, 1049-1050.)
“It is error to give an instruction which, while correctly stating a
principle of law, has no application to the facts of the case.”
(People v. Guiton (1993) 4 Cal.4th 1116, 1129.)
Substantial evidence presented at trial supported
CALCRIM No. 3471 because Lopez approached and grabbed
Hernandez as Hernandez was walking to Zelaya’s car.
Hernandez testified unequivocally that Lopez was the initial
aggressor who started the fight. Moreover, Farfan and Zelaya
testified that Lopez pointed the knife at them, although they had
done nothing to justify such an assault.
Lopez argues the trial court was precluded from giving this
instruction because he did not request it (he objected to it) and it
was inconsistent with his theory of the case. In support of this
argument, he cites the Bench Notes to CALCRIM No. 3471 which
state, in pertinent part, “The court must instruct on a defense
when the defendant requests it and there is substantial evidence
16
supporting the defense. The court has a sua sponte duty to
instruct on a defense if there is substantial evidence supporting it
and either the defendant is relying on it or it is not inconsistent
with the defendant’s theory of the case.” The Bench Notes
further state, “When the court concludes that the defense is
supported by substantial evidence and is inconsistent with the
defendant’s theory of the case, however, it should ascertain
whether defendant wishes instruction on this alternate theory.”
Lopez also referenced these Bench Notes in the trial court, in
objecting to the instruction.
We disagree with Lopez’s position that the Bench Notes
indicate the trial court was precluded from giving CALCRIM No.
3471 under the circumstances of this case. Lopez wanted to
present a self-defense theory, and the court granted his request
for jury instructions on that defense over the prosecution’s
objection. The prosecution requested a pinpoint instruction
regarding the well-known limitation on self-defense where the
defendant is the initial aggressor who starts a physical
altercation. As set forth above, substantial evidence supported
the instruction and it aligned with the prosecution’s theory of the
case. Lopez cites no authority, and we are aware of none, holding
that a trial court is precluded from instructing with CALCRIM
No. 3471 at the prosecution’s request when the instruction is
supported by substantial evidence. Having elected to pursue a
self-defense theory, Lopez is not entitled to veto instructions that
are applicable to that defense based on the evidence presented.
Lopez also argues CALCRIM No. 3471 was
“argumentative” because it instructed the jury that he started the
fight, usurping the jury’s role as factfinder. Not so. The trial
court instructed the jury with CALCRIM No. 200, which
17
provides, in pertinent part: “You must decide what the facts are.
It is up to all of you, and you alone, to decide what happened,
based only on the evidence that has been presented to you in this
trial. [¶] . . . [¶] Some of these instructions may not apply,
depending on your findings about the facts of the case. Do not
assume just because I give a particular instruction that I am
suggesting anything about the facts. After you have decided
what the facts are, follow the instructions that do apply to the
facts as you find them.” Thus, the jury was informed that if it
found Lopez did not start the fight, it should disregard CALCRIM
No. 3471 as inapplicable.
The trial court did not err in instructing the jury with
CALCRIM No. 3471.
B. CALCRIM No. 3470
Using CALCRIM No. 3470, which we quoted in full above,
the trial court instructed the jury, in pertinent part, “[s]elf-
defense is a defense to assault with a deadly weapon (Counts 4, 5,
and 6) and the lesser crime of assault.” On appeal, Lopez
contends the trial court had a sua sponte duty to instruct the jury
that self-defense is also a defense to criminal threats.13
We agree with the Attorney General that Lopez forfeited
this contention on appeal by failing to object to this instruction or
request clarifying or amplifying language below. While “[i]n
general, a defendant may raise for the first time on appeal
instructional error affecting his or her substantial rights,” a
“party may not argue on appeal that an instruction correct in law
was too general or incomplete, and thus needed clarification,
13At trial, Lopez presented another defense to the criminal
threats charges—that he lacked the specific intent to make a
criminal threat due to his intoxication.
18
without first requesting such clarification at trial.” (People v.
Buenrostro (2018) 6 Cal.5th 367, 428 (Buenrostro); § 1259.) If
Lopez believed his self-defense theory applied to the criminal
threats counts, it was incumbent upon him to request a
modification of CALCRIM No. 3470 so stating.
In any event, a trial court does not have a sua sponte duty
to instruct on a legal doctrine that is not well-established.
(People v. Molano (2019) 7 Cal.5th 620, 668-669 (Molano); People
v. Michaels (2002) 28 Cal.4th 486, 530.) A “ ‘legal concept that
has been referred to only infrequently, and then with “inadequate
elucidation,” cannot be considered a general principle of law such
that a trial court must include it within jury instructions in the
absence of a request.’ ” (Molano, at p. 668.) We are aware of no
authority, and Lopez has cited none, holding that self-defense, as
defined in CALCRIM No. 3470, is a defense to criminal threats.
In the alternative, Lopez contends defense counsel
rendered ineffective assistance in failing to request that the trial
court modify CALCRIM No. 3470 to reflect its application to the
criminal threats counts. He cannot make the requisite showing
of ineffective assistance of counsel: “(1) that defense counsel’s
performance fell below an objective standard of reasonableness,
i.e., that counsel’s performance did not meet the standard to be
expected of a reasonably competent attorney, and (2) that there is
a reasonable probability that defendant would have obtained a
more favorable result absent counsel’s shortcomings.” (People v.
Cunningham (2001) 25 Cal.4th 926, 1003, citing Strickland v.
Washington (1984) 466 U.S. 668, 687-694.) “ ‘If the record on
appeal fails to show why counsel acted or failed to act in the
instance asserted to be ineffective, unless counsel was asked for
an explanation and failed to provide one, or unless there simply
19
could be no satisfactory explanation, the claim must be rejected
on appeal.’ ” (Cunningham, at p. 1003.)
Given the lack of authority indicating self-defense is a
defense to criminal threats, we cannot conclude defense counsel
was incompetent for not requesting the modification to
CALCRIM No. 3470 that Lopez suggests here. Moreover, Lopez
cannot satisfy the prejudice element of an ineffective assistance
of counsel claim. The jury rejected his argument that he acted in
self-defense when he pointed the knife at Farfan and Zelaya, and
found him guilty of assault with a deadly weapon (after being
instructed that self-defense is a defense to this crime). There is
no reasonable probability the jury would have acquitted him of
criminal threats if the trial court had modified CALCRIM No.
3470 to reflect that it applied to the criminal threats counts.
Lopez made the threats at the same time he pointed the knife at
Farfan and Zelaya. The jury concluded it was not reasonable for
him to believe he “was in imminent danger of suffering bodily
injury or was in imminent danger of being touched unlawfully”
when it rejected his self-defense theory on the assault with a
deadly weapon counts. (CALCRIM No. 3470.)
There was no error here.
C. CALCRIM No. 221
Lopez contends CALCRIM No. 221, an instruction
pertaining to the deadly or dangerous weapon enhancement on
the criminal threats counts (counts 1 & 2) “was confusing and
misleading” and implied that the prosecution was not required to
prove the other counts (counts 4-6 for assault with a deadly
weapon) beyond a reasonable doubt. The contention lacks merit.
20
During a conference on jury instructions, the trial court
specifically asked the parties to review CALCRIM No. 221. After
doing so, defense counsel responded, “That looks good.”
Using CALCRIM No. 221, the trial court instructed the
jury as follows:
“The People are required to prove the allegations, as to
Counts 1 and 2, beyond a reasonable doubt.
“Proof beyond a reasonable doubt is proof that leaves you
with an abiding conviction that the allegation is true. The
evidence does not need to eliminate all possible doubt because
everything in life is open to some possible or imaginary doubt.
“In deciding whether the People have proved the allegation
beyond a reasonable doubt, you must impartially compare and
consider all the evidence that was received during this trial.
Unless the evidence proves the allegation beyond a reasonable
doubt, you must find that the allegation has not been proved and
disregard it completely.”
Immediately after the trial court read this instruction to
the jury, the prosecutor requested to approach the court. The
following exchange occurred at sidebar:
“[The prosecutor]: I apologize, Your Honor. I should have
caught it before. It appears [CALCRIM No.] 221, it says that
they have to find beyond a reasonable doubt in Counts 1 and 2.
It does not say 4, 5, 6.
“The Court: The special allegation is only alleged as to 1
and 2, I believe.
“[The prosecutor]: Is that only for the special allegation? I
apologize.
“The Court: The Court has shown the parties the felony
information in this case that the special allegations only apply to
21
Count 1 and 2.” Neither side requested any modification to the
instruction.
On appeal, Lopez argues the jury would not have known
CALCRIM No. 221 applied to the special allegations on the
deadly or dangerous weapon enhancement. He posits the jury
could have believed “allegations” referred to all charges or
elements of the charged offenses, and the jury therefore would
have interpreted this instruction to mean the prosecution only
needed to prove counts 1 and 2 beyond a reasonable doubt, and
not counts 4, 5, and 6. He asserts the trial court should have
inserted the word “enhancement” before the word “allegations” in
CALCRIM No. 221.
We agree with the Attorney General that Lopez forfeited
this contention on appeal by failing to object below or request an
additional or clarifying instruction. (See People v. Dennis (1998)
17 Cal.4th 468, 514; Buenrostro, supra, 6 Cal.5th at p. 428.) He
again asserts ineffective assistance of counsel, which he cannot
establish for the reasons set forth below.
Considering the entire charge, as we are required to do
when reviewing a claim of instructional error, we have no reason
to believe there was any confusion that affected the jury’s verdict.
(See People v. Musselwhite (1998) 17 Cal.4th 1216, 1248 [“ ‘ “the
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” ’ ”].)
CALCRIM No. 220, which the trial court read to the jury
right before CALCRIM No. 221, states in pertinent part,
“Whenever I tell you the People must prove something, I mean
they must prove it beyond a reasonable doubt.” Thus, there is no
reason to believe the jury did not understand the prosecution was
22
required to prove each element of each charge beyond a
reasonable doubt. (See also CALCRIM No. 355 [defendant “may
rely on the state of the evidence and argue that the People have
failed to prove the charges beyond a reasonable doubt”];
CALCRIM No. 359 [“You may not convict the defendant unless
the People have proved his guilt beyond a reasonable doubt”].)
During argument, the prosecutor explained to the jury that the
prosecution must prove each element of the charged offenses
beyond a reasonable doubt.
Moreover, the trial court and the prosecutor consistently
referenced the term “allegation,” as used in the now-challenged
CALCRIM No. 221, to refer to the deadly or dangerous weapon
enhancement allegations. CALCRIM No. 3145, which the trial
court read to the jury after CALCRIM No. 221, states in
pertinent part: “If you find the defendant guilty of the crimes
charged in Counts 1 and 2, or the lesser crimes of Attempted
Criminal Threats, you must then decide whether, for each crime,
the People have proved the additional allegation that the
defendant personally used a deadly or dangerous weapon during
the commission of that crime. You must decide whether the
People have proved this allegation for each crime and return a
separate finding for each crime.” (Italics added.)
During argument, the prosecutor stated: “And the last of
the laws that we’re talking about, it’s technically not a crime by
itself, it’s what’s called an allegation. It goes along with the
crime, okay. It gets attached to a crime. [¶] . . . [¶] So meaning
basically this: Let’s say you are back in the jury room, you are
voting on criminal threats. Let’s say you all decide, yeah, he is
guilty of criminal threats. You then move on to this allegation
which is attached to the criminal threats and you say whether or
23
not you think it was true that he used a deadly weapon, okay. I
hope that makes sense.” (Italics added.)
It was clear from the trial court’s instructions and the
prosecutor’s argument that “allegations,” as used in CALCRIM
No. 221, referred to the deadly or dangerous weapon
enhancement allegations on counts 1 and 2. Moreover, it was
clear from the jury instructions as a whole that the prosecution
was required to prove each element of each charge beyond a
reasonable doubt for the jury to return a guilty verdict.
CALCRIM No. 221 was not confusing or misleading, and there is
no reason to believe the jury misconstrued it in the manner Lopez
suggests. Accordingly, Lopez cannot show that the jury would
have reached a verdict more favorable to him if the trial court
had inserted the word “enhancement” before the word
“allegations” in CALCRIM No. 221. His ineffective assistance of
counsel claim fails.
III. The Trial Court Did Not Commit Reversible Error in
Responding to the Jury’s Question
A. Question and Response
During deliberations, the jury submitted the following
question to the trial court: “We would like to confirm whether
having a knife in a pocket while committing an assault is
considered an assault with a deadly weapon, or does it need to be
out and in his hand for it to be assault with a deadly weapon?”
The following exchange occurred between the trial court
and the parties regarding the appropriate response to the jury’s
question:
“[Defense counsel]: I think element no. 4, when he acted he
had the present ability to apply force with the weapon, I think it
answers that question.
24
“The Court: I would just refer them back to the jury
instruction. I don’t know if they are making a distinction as to an
assault at a point in time or they believe the weapon wasn’t out.
I don’t remember hearing testimony about [sic] other than
coming out of the pocket. So I don’t know if they are making a
finding regarding that, but it’s their determination. I mean, you
certainly could have assault with a deadly weapon with it in the
pocket depending on a whole bunch of factors. What they have to
find is that all the other links have been met, so what I would say
is --
“[Defense counsel]: Refer to the elements of the charge.
“The Court: Refer back to the instruction on assault with a
deadly weapon instruction [sic], and give me a second to pull it
up.
“[Defense counsel]: [CALCRIM No.] 875.
“The Court: [CALCRIM No.] 875. [¶] Does either side
want to be heard further?
“[The prosecutor]: No, Your Honor.
“[Defense counsel]: No, Your Honor.
“The Court: All right. Here is what I wrote: [¶] Please see
the definition for the crime of assault with a deadly weapon No.
875 in your instruction package. [¶] Anything else?
“[Defense counsel]: No.
“[The prosecutor]: No, Your Honor.” Shortly after the trial
court responded to the question, the jury returned the guilty
verdicts.
CALCRIM No. 875, as given in this case and referenced in
response to the jury’s question, provides as follows:
25
“The defendant is charged in Counts 4, 5, and 6 with
assault with a deadly weapon other than a firearm in violation of
Penal Code section 245.
“To prove that the defendant is guilty of this crime, the
People must prove that:
“1. The defendant did an act with a deadly weapon other
than a firearm that by its nature would directly and probably
result in the application of force to a person;
“2. The defendant did that act willfully;
“3. When the defendant acted, he was aware of facts that
would lead a reasonable person to realize that his act by its
nature would directly and probably result in the application of
force to someone;
“4. When the defendant acted, he had the present ability to
apply force with a deadly weapon other than a firearm to a
person;
“AND
“The defendant did not act in self-defense.
“Someone commits an act willfully when he or she does it
willingly or on purpose. It is not required that he or she intend to
break the law, hurt someone else, or gain any advantage.
“The touching can be done indirectly by causing an object to
touch the other person.
“The People are not required to prove that the defendant
actually touched someone.
“The People are not required to prove that the defendant
actually intended to use force against someone when he acted.
“No one needs to actually have been injured by defendant’s
act. But if someone was injured, you may consider that fact,
along with all the other evidence, in deciding whether the
26
defendant committed an assault, and if so, what kind of assault it
was.
“Voluntary intoxication is not a defense to assault.
“Great bodily injury means significant or substantial
physical injury. It is an injury that is greater than moderate or
moderate harm.
“A deadly weapon other than a firearm is any object,
instrument, or weapon that is inherently deadly or one that is
used in such a way that it is capable of causing and likely to
cause death or great bodily injury.” The instructions did not
define “inherently deadly.”
During argument to the jury, the prosecutor stated,
without objection by the defense, that “knives are inherently
dangerous by their very nature, by their very design, they can be
used for other things, sure, but their very nature is dangerous.”14
Lopez contends, for the first time on appeal, that the trial
court erred in responding to the jury’s question by referring the
jury back to CALCRIM No. 875. He argues, and the Attorney
General acknowledges, that CALCRIM No. 875 erroneously
permitted the jury to consider the knife as an inherently deadly
weapon. (See People v. Aledamat (2019) 8 Cal.5th 1, 3, 6
(Aledamat) [“Because a knife can be, and usually is, used for
innocent purposes, it is not among the few objects that are
inherently deadly weapons”].)
Lopez argues that the only valid theory of a deadly weapon
in this case—“one that is used in such a way that it is capable of
causing and likely to cause death or great bodily injury”
14Lopez made clear in his appellate briefing that he “is not
arguing for a reversal on grounds of prosecutorial misconduct.”
27
(CALCRIM No. 875)—“was eliminated by the jury question
itself.” He asserts that, based on the jury’s question and the trial
court’s referral back to CALCRIM No. 875 in response, there was
a “possibility that the jury could have concluded that a knife in
his pocket could constitute the ‘present ability to apply force with
a deadly weapon.’ ” He contends the error prejudicially affected
the guilty verdicts on the assault with a deadly weapon counts as
well as the deadly or dangerous weapon enhancement on the
criminal threats counts. We agree with the Attorney General
that any error was harmless in this case under our Supreme
Court’s rationale in Aledamat, as explained below.
B. Aledamat
In Aledamat, the defendant, like Lopez, was charged with
assault with a deadly weapon (§ 245, subd. (a)(1)) and making a
criminal threat (§ 422); and on the threat charge, there was an
allegation that the defendant used a deadly and dangerous
weapon (§ 12022, subd. (b)), a box cutter. The facts of the case, in
pertinent part, were that the “ ‘defendant pulled a box cutter out
of his pocket and extended the blade; from three or four feet
away, defendant thrust the blade at the [male victim] at waist
level, saying, “I’ll kill you.” ’ ” (Aledamat, supra, 8 Cal.5th at p.
4.)
The Supreme Court in Aledamat explained that the trial
court instructed the jury with CALCRIM No. 875, “present[ing]
the jury with two possible theories of guilt: (1) that the box
cutter was inherently deadly, and (2) that the defendant used the
box cutter in a deadly way. The first of these theories was
erroneous under the facts. A box cutter is, as a matter of law, not
inherently deadly. The second theory was correct.” (Aledamat,
supra, 8 Cal.5th at p. 3.)
28
As in this case, the jury in Aledamat was instructed with
CALCRIM No. 3145 regarding personal use of a deadly weapon.
(Aledamat, supra, 8 Cal.5th at pp. 4-5.) As given in Aledamat,
the instruction stated, in pertinent part: “ ‘[A] deadly or
dangerous weapon is any object, instrument, or weapon that is
inherently dangerous, . . . or one that is used in such a way that
it is capable of causing or likely to cause death or great bodily
injury. In deciding whether an object is a deadly weapon,
consider all of the surrounding circumstances including when and
where the object was possessed and any other evidence that
indicates whether the object would be used for a dangerous
rather than a harmless purpose.’ ” (Ibid.)15 And, as in this case,
the prosecutor argued to the jury in Aledamat that “the box
cutter was an ‘inherently deadly weapon.’ ” (Id. at p. 5.) The jury
found the defendant guilty of assault with a deadly weapon and
criminal threats and found the weapon enhancement to be true.
The Supreme Court concluded that the error in instructing
the jury on the inherently deadly weapon theory was harmless
beyond a reasonable doubt under the test in Chapman v.
California (1967) 386 U.S. 18, as it was “clear the error did not
contribute to the verdict.” (Aledamat, supra, 8 Cal.5th at p. 13.)
As set forth above, CALCRIM Nos. 875 and 3145 define a deadly
weapon as one that is inherently deadly or one that is used in
such a way that it is capable of causing and likely to cause death
15 The language in the version of CALCRIM No. 3145 given
in this case was a bit different: “In deciding whether an object is
a deadly weapon, consider all the circumstances, including when
and where the object was possessed and where the person who
possessed the object was going.” (Italics added to show
difference.)
29
or great bodily injury. The Supreme Court reasoned it was
“unlikely” the jury “view[ed] the instructions” to “permit such
separation” between the two ways of finding a deadly weapon,
despite the instructions’ use of “the disjunctive ‘or.’ ” (Id. at p.
13.) The Court pointed out that CALCRIM No. 3145 required the
jury “to consider all of the circumstances in deciding whether the
object was a deadly weapon, either inherently or as used. The
jury would likely view the ‘inherently deadly’ language in light of
this additional instruction that it had to consider all the
circumstances. Given this additional instruction, it seems
unlikely the jury would simply view the box cutter as inherently
deadly without considering the circumstances, including how
defendant used it.” (Id. at p. 14.)
The Supreme Court also referenced the parties’ arguments
to the jury, noting the box cutter’s status as a deadly weapon was
not a point of contention at trial. Although the prosecutor stated
during argument that the box cutter was inherently deadly,
defense counsel did not concede or contest the point. “Defense
counsel argued that defendant did not use the box cutter in a way
that would probably result in the application of force, that is, that
defendant did not assault the victim at all—an argument the jury
necessarily rejected when it found defendant guilty of that crime.
But counsel never argued that, if [the defendant] did assault the
victim with the box cutter, the box cutter was not a deadly
weapon.” (Aledamat, supra, 8 Cal.5th at p. 14.) The Court
reasoned defense counsel “could readily believe it would be
pointless for him to argue that even if (contrary to the argument
counsel did make) the jury found defendant assaulted the victim
with the box cutter, it was not a deadly weapon.” (Ibid.) While a
“box cutter is not inherently deadly because it is not designed for
30
that purpose,” if it is “used to assault someone, i.e., used as a
weapon, a box cutter is potentially deadly even if not designed for
that purpose.” (Ibid.)
The Supreme Court also set forth another way to determine
if the error is harmless beyond a reasonable doubt: “The
reviewing court examines what the jury necessarily did find and
asks whether it would be impossible, on the evidence, for the jury
to find that without also finding the missing fact as well”—the
missing fact here being that the weapon was used in such a way
that it is capable of causing and likely to cause death or great
bodily injury. (Aledamat, supra, 8 Cal.5th at p. 15.) The Court
explained that “under the instructions, the jury necessarily found
the following: (1) defendant did an act with a deadly weapon
(either inherently or as used) that by its nature would directly
and probably result in the application of force; (2) defendant was
aware of facts that would lead a reasonable person to realize that
his act by its nature would directly and probably result in the
application of force to someone; and (3) defendant had the present
ability to apply force with a deadly weapon to a person.” (Ibid.)
If the jury “applied its common understanding [of the term
inherently deadly] to find the box cutter deadly because it is
sharp and used for cutting,” the jury “would necessarily find the
box cutter deadly in the colloquial sense of the term—i.e., readily
capable of inflicting deadly harm—and that defendant used it as
a weapon.” (Ibid.) “ ‘No reasonable jury that made all of these
findings could have failed to find’ that defendant used the box
cutter in a way that is capable of causing or likely to cause death
or great bodily injury.” (Ibid.)
31
C. Analysis
Lopez argues the trial court committed reversible error in
responding to the jury’s question because the court referred the
jury to an instruction containing erroneous language. The
erroneous language in the instruction, however, was unrelated to
the jury’s question. Even if the jury found the knife was
inherently deadly, to find Lopez guilty of assault with a deadly
weapon, the jury still had to find he “did an act” with the knife
“that by its nature would directly and probably result in the
application of force to a person,” as set forth in CALCRIM No.
875. Moreover, to find Lopez personally used a deadly or
dangerous weapon within the meaning of the enhancement, the
jury had to find he intentionally “display[ed] the weapon in a
menacing manner,” as set forth in CALCRIM No. 3145. Having a
weapon in a pocket, and doing no act with that weapon, while
committing an assault and making criminal threats would not
satisfy either of these elements, regardless of whether the
weapon was inherently dangerous.
Presumably, the jury asked the question because the knife
was not visible on the bar’s surveillance video. Having received
an answer to the question, we have no reason to believe the jury
failed to apply the trial court’s instructions. Doing so, the jury
necessarily found Lopez used the knife. At trial, Lopez
challenged the credibility of the evidence indicating he had a
knife, and the evidence indicating he did not act in self-defense.
He did not argue, however, that if he pulled out the knife, he did
not use it “in such a way that it is capable of causing and likely to
cause death or great bodily injury.” (CALCRIM No. 875.) Nor
could he. The testimony was that he pulled out the knife during
a physical altercation with Hernandez, and then moved within an
32
inch of Hernandez; and that he pointed the knife at Farfan and
Zelaya while threating to kill them, rape Farfan, and rape
Zelaya’s mother.
“[A]fter examining the entire cause, including the evidence,
and considering all relevant circumstances,” we conclude any
error was harmless beyond a reasonable doubt. (See Aledamat,
supra, 8 Cal.5th at p. 13.) The jury’s question was unrelated to
whether the knife was a deadly weapon. And, having found
Lopez guilty of assault with a deadly weapon under the elements
of the crime set forth in CALCRIM No. 875, and having found he
personally used the knife by displaying it in a menacing manner,
it is inconceivable the jury did not find the knife was used in such
a way that it was capable and likely to cause death or great
bodily injury, based on the facts and circumstances of this case.16
IV. Lopez Forfeited His Contention Regarding
Imposition of the Restitution Fine and Assessments,
and He Has Not Established Ineffective Assistance of
Counsel
Citing People v. Dueñas (2019) 30 Cal.App.5th 1157(Dueñas), Lopez contends the trial court erred when it imposed a
restitution fine and assessments without a hearing to determine
his ability to pay. The Attorney General argues Lopez forfeited
this contention by failing to raise an objection in the trial court to
the imposition of the fine and assessments or request the court
consider his ability to pay them. We agree with the Attorney
General.
16We reject Lopez’s claim of cumulative error, as there was
only one error that we conclude was harmless beyond a
reasonable doubt.
33
The trial court imposed the fine and assessments on March
11, 2020, more than a year after Dueñas was decided. Lopez did
not argue he was entitled to an ability-to-pay hearing either
before or at that hearing. Nor did he make such a claim in the
following year when he appeared at three more hearings before
he ultimately surrendered to custody on May 24, 2021. Lopez
forfeited any contentions about the fine and assessments by
failing to raise them in the trial court. (See, e.g., People v. Avila
(2009) 46 Cal.4th 680, 729 [rejecting argument that, because the
defendant did not have the ability to pay, imposition of a
restitution fine in excess of the minimum resulted in an
unauthorized sentence not subject to the forfeiture rule]; People
v. Trujillo (2015) 60 Cal.4th 850, 859 [the constitutional nature of
the defendant’s claim regarding his ability to pay did not justify
deviation from the forfeiture rule].)
Lopez argues his trial counsel rendered ineffective
assistance by failing to object. He cannot make the requisite
showing: “(1) that defense counsel’s performance fell below an
objective standard of reasonableness, i.e., that counsel’s
performance did not meet the standard to be expected of a
reasonably competent attorney, and (2) that there is a reasonable
probability that defendant would have obtained a more favorable
result absent counsel’s shortcomings.” (People v. Cunningham,
supra, 25 Cal.4th at p. 1003, citing Strickland v. Washington,
supra, 466 U.S. at pp. 687-694.) “ ‘If the record on appeal fails to
show why counsel acted or failed to act in the instance asserted to
be ineffective, unless counsel was asked for an explanation and
failed to provide one, or unless there simply could be no
satisfactory explanation, the claim must be rejected on appeal.’ ”
(Cunningham, at p. 1003.)
34
The record before us does not demonstrate that Lopez had
an inability to pay or that there was no valid reason trial counsel
did not object to the fines and assessments. The court imposed
the minimum restitution fine of $300 under section 1202.4,
subdivision (b), $200 in court operations assessments ($40 per
conviction), as required under section 1465.8; and $150 in court
facilities assessments ($30 per conviction), as required under
Government Code section 70373, for a total of $650. The record
shows Lopez worked multiple jobs as a chef during the 11 months
he was released on his own recognizance, after the trial court
announced the fine and assessments. Based on the record before
us, Lopez cannot establish ineffective assistance of counsel
because he cannot show (1) there could be no satisfactory
explanation for his counsel’s decision not to object to the fines and
assessments (i.e., that he did have the ability to pay) or (2) the
outcome would have been more favorable if his counsel objected.
We note that the abstract of judgment and minute order
incorrectly state that the trial court imposed $120 in court
operations assessments and $90 in court facilities assessments,
although the reporter’s transcript of the March 11, 2020 hearing
clearly states the court imposed $200 in court operations
assessments ($40 for each of the five convictions) and $150 in
court facilities assessments ($30 for each of the five convictions).
The court did not make any changes to Lopez’s sentence or the
fines and assessments when Lopez surrendered to custody on
May 24, 2021.
The abstract of judgment or minute order “is not the
judgment of conviction; it does not control if different from the
trial court’s oral judgment and may not add to or modify the
judgment it purports to digest or summarize.” (People v. Mitchell
35
(2001) 26 Cal.4th 181, 185.) We order the trial court to correct
the clerical errors reflected in the March 11, 2020 minute order,
the March 20, 2020 abstract of judgment, and the May 25, 2021
amended abstract of judgment.17
DISPOSITION
The trial court is directed to correct the March 11, 2020
minute order, the March 20, 2020 abstract of judgment, and the
May 25, 2021 amended abstract of judgment to reflect the
imposition of $200 in court operations assessments under Penal
Code section 1465.8 and $150 in court facilities assessments
under Government Code section 70373. As so modified, the
judgment is affirmed. The clerk of the superior court is directed
17 In his opening appellate brief, Lopez contended the
matter should be remanded for the trial court to determine
whether to dismiss the weapon enhancements in light of Senate
Bill No. 81’s (2021-2022 Reg. Sess.; Stats. 2021, ch. 721, § 1)
amendments to section 1385, enacted after his sentencing
hearing. These amendments only apply to “sentencings occurring
after January 1, 2022.” (§ 1385, subd. (c)(7).) In his reply brief,
Lopez conceded the amendments to section 1385 “will only apply
if this case is remanded to the trial court on one of the grounds
asserted in appellant’s briefs.” No such ground warrants a
remand in this case.
36
to prepare an amended abstract of judgment and to forward it to
the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
37