People v. Talamantes CA2/4 ( 2021 )

Filed 10/28/21 P. v. Talamantes CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B303557
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA471338)
v.
JOSE LUIS TALAMANTES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Richard S. Kemalyan, Judge. Affirmed as
modified.
Vincent C. Chan, 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, Steven D. Matthews and J. Michael Lehmann,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
The Los Angeles County Sheriff’s Department (LASD)
raided a commercial building where the defendant, Jose Luis
Talamantes, lived in one of the suites. Deputies found drugs,
drug paraphernalia, firearms, and ammunition in the building,
including in the suite where defendant was living and in a nearby
suite with a desk bearing defendant’s gang moniker. Defendant
had a large amount of cash in his pocket when he was detained.
A jury found defendant guilty of possession of a firearm by a felon
(Pen. Code, § 29800, subd. (a)(1)1), possession of
methamphetamine for sale (Health & Saf. Code § 11378), and
unlawful possession of ammunition (§ 30305, subd. (a)(1).) The
court sentenced defendant to nine years in prison.
On appeal, defendant asserts four errors. First, he
contends the trial court erred in limiting its review of the
investigating deputy’s personnel records under Pitchess v.
Superior Court (1974) 11 Cal.3d 531 (Pitchess), and he asks us to
conduct an independent review of the in-camera Pitchess hearing
to determine if any relevant personnel records were incorrectly
withheld. We find the court did not limit review of the personnel
records, nor did it abuse its discretion in the Pitchess hearing.
Second, defendant contends the court erred in allowing the
investigating deputy to testify that he received certain
information from a confidential informant. We find that if any
error occurred in the admission of this testimony, it was invited
by defense counsel and it was harmless.
Third, defendant contends he is entitled to one extra day of
custody credit; the Attorney General concurs. We agree
1All further statutory references are to the Penal Code
unless otherwise indicated.
2
defendant is entitled to the additional day of custody credit, and
therefore order that the abstract of judgment be amended to
reflect this correction.
Fourth, defendant contends the trial court should not have
imposed fines and fees without first holding a hearing to
determine defendant’s ability to pay. We find that defendant
forfeited this contention by failing to assert it below.
We therefore order that the abstract of judgment be
amended to reflect the corrected custody credits, and in all other
respects affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The People filed an information on January 4, 2019,
charging defendant with five felonies: possession of a firearm by a
felon (§ 29800, subd. (a)(1), count 1); possession of a controlled
substance (methamphetamine) for sale (Health & Saf. Code §
11378, count 2); possession of a controlled substance while armed
with a firearm (Health & Saf. Code § 11370.1, subd. (a), count 3);
unlawful possession of ammunition (§ 30305, subd. (a)(1), count
4); and second degree commercial burglary (§ 459, count 5). For
each count, the information included a gang allegation (§ 186.22,
subd. (b)(1)(A)), a prior strike allegation (§§ 667, subds. (b)-(j),
1170.12, subds. (a)-(d)), and an allegation that defendant had
served three prior prison terms (§ 667.5, subd. (b)).
Defendant pled not guilty. The burglary charge, count 5,
was dismissed before trial. Defendant filed a Pitchess motion
before trial, which we discuss in further detail below. The
following evidence was presented at trial.
A. Prosecution evidence
Diego Robles, defendant’s probation officer, testified that
beginning in 2018, defendant reported that his address was 4532
3
East Whittier Boulevard, unit 201. Defendant said he was
working at the building as a manager; Robles assumed the
property was an apartment complex. Defendant also told Robles
that he used to be part of the Marianna Maravilla gang, his
moniker was “Slayer,” and he was no longer active in the gang.
LASD deputy Juan Sanchez testified that he had contacted
defendant approximately 20 times over the past three and a half
years. Defendant told Sanchez he was in the Marianna
Maravilla gang and his moniker was Slayer. Sanchez also
observed Marianna Maravilla gang tattoos on defendant’s body.
LASD sergeant and gang expert Rafael Rufino testified that the
Marianna Maravilla gang engaged in graffiti, vandalism, theft,
possession of firearms, narcotics sales, shootings, assaults,
murder, mayhem, “and other violent crimes.”
LASD deputy Ricardo Munoz testified that he is a member
of LASD’s Special Enforcement Bureau, which “is a fancy way of
saying SWAT.” Munoz was involved in the search of 4532 East
Whittier on September 11, 2018. He testified that LASD had a
warrant to search approximately six units in the building.
Munoz testified that 30 to 40 SWAT deputies participated in
serving the warrant and securing the building; another group of
investigating deputies was also there to search the building. The
Special Enforcement Bureau was asked to serve this search
warrant “because it rose to a high-risk level,” which typically
occurred when a person was wanted for a serious felony or the
person was known to be armed. Munoz continued, “And in this
case, because of the building and the crimes, we were asked to
serve the search warrant.” Munoz explained that his team
“would not touch any evidence. That’s not our purpose for being
there. We are looking for persons or bodies. We’re there to make
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the location secure for investigating officers to be able to come in
and conduct their searches.”
Munoz testified that the LASD team arrived at 4:30 a.m. on
September 11, 2018. The team realized they “had been
compromised” when a person “in the second floor stairwell door . .
. saw the armed vehicles coming down the alley and ran inside
and closed the door behind him.” Munoz and the other team
members “made our way up the stairs as quicky as we could.”
Munoz’s team entered the building through a door on the second
floor, while other teams went in though other entrances.
Munoz testified that the door to suite 202, the corner suite,
was “ajar approximately 56 inches,” and no one was inside.
Munoz and his team cleared the even-numbered suites on the
west side of the building; they found people in suites 204 and 208.
Other teams cleared the remaining suites. Approximately 20
people in total were detained at the site.
LASD detective Michael Deschamps, the investigating
officer for the case, testified that he was a member of the
Operation Safe Streets Bureau, which investigates gang-related
cases. Deschamps had been at 4532 East Whittier several times:
while investigating gang-related shootings at the location,
responding to calls from patrol officers after gang members with
firearms disappeared into the building, and executing a previous
search warrant. Deschamps authored the search warrant in this
case and was present when the warrant was served on September
11, 2018. Defendant was “one of the main subjects” of the search;
deputies were also looking for “gang members from Marianna
Maravilla who are in possession of firearms and narcotic[s].”
Deschamps testified that the warrant was based on information
from “a credible, reliable informant.”
5
Deschamps testified that he and other gang unit detectives
“provided the containment” while Munoz and other special
enforcement bureau members entered the building. The building
was cleared within about 20 minutes; defendant and his
girlfriend, who lived together in suite 201, were among the people
detained. Deschamps and a team of about 10 investigators then
searched the building, including the suites on the first and second
floors. In suite 201, he found a woman’s purse that held what
appeared to be methamphetamine, glass pipes, a cellular
provider receipt with defendant’s name, and a bail bond receipt
with defendant’s name. Deschamps testified that the room had
ceiling tiles that were “displaceable” in that they could be pushed
upward. Above the ceiling tiles of suite 201 was a black bag
containing baggies of a crystalline substance that appeared to be
methamphetamine, glass vials of liquid that appeared to be PCP,
a glass pipe, and tobacco or marijuana “wraps.”
Deschamps testified that suite 202 was a large corner suite
15 or 20 feet away from suite 201. A desk in suite 202 had on it a
birthday-style banner with letters spelling out “Slayer,” and a
globe that had the name Slayer. A placard on the desk stated,
“Dungeon Apartments General Manager, Slayer. Fuck what
you’re going through. No llores.” Deschamps testified that “no
llores” means “no crying.” The desk contained glass
methamphetamine pipes, digital scales, clear plastic baggies,
heroin, a firearm, ammunition of various calibers, and an
electronic benefits transfer (EBT) card with defendant’s name on
it. The firearm in the desk was an operable and loaded .45
caliber Sig Sauer, which was inside an unlocked gun case in a
desk drawer. The gun was shown to the jury. On a shelf five or
six feet away from the desk was a clipboard displaying gang
6
graffiti and a list of the monikers of Marianna Maravilla
members, including Slayer. Several of the people listed on the
clipboard were detained during the search. Above the ceiling
tiles of suite 202 was a gallon-size bag containing about a pound
of methamphetamine, and a butane lighter with “Slayer”
engraved on it. Deschamps explained that butane lighters are
commonly used to smoke methamphetamine, and the hard plastic
of the lighter is used to break large chunks of methamphetamine
into smaller pieces for sale.
Deschamps testified that he also searched defendant’s
person. In defendant’s right front pants pocket was
approximately $1,500 in cash, including many $20 bills that were
“folded by themselves and stacked on top of other folded 20’s and
turned in different directions.” Deschamps believed the
individually folded $20 bills were likely “received in exchange for
an amount of methamphetamine” because “$20 is a common
denominator [sic] when selling small amounts of
methamphetamine to others.” The pound of methamphetamine,
scales, empty baggies, glass pipes, and cash led Deschamps to
believe that the methamphetamine was possessed for sale.
In suite 211, Deschamps witnessed a “male Hispanic adult
that was reaching in the ceiling tile,” and it looked like “he was
either retrieving or placing an object within the ceiling tile.”
Upon searching the ceiling, Deschamps found a loaded 12-gauge
shotgun wrapped in a blanket. In suite 204 Deschamps found a
“blank firearm,” a movie prop that looks and sounds like a real
firearm, but uses blank bullets and has a “hard metal object
within the barrel” to prevent anything from going through the
barrel. Deschamps also testified that as deputies entered the
building, a man jumped from a second-floor window to the roof of
7
the adjacent building. The man, a member of Marianna
Maravilla, had a black bag that contained methamphetamine and
three glass pipes.
On the rear of the building there was graffiti, about 15 feet
long by five feet high, reading “MMV.” Deschamps testified that
MMV was an abbreviation for Marianna Maravilla. Deschamps
also testified generally about gang culture, gang monikers, and
the Marianna Maravilla gang. The jury was shown photographs
of defendant’s tattoos, including two Ms and “MMV,” which
Deschamps testified showed that defendant was a member of the
Marianna Maravilla gang. Deschamps also provided information
from defendant’s Facebook account, which included defendant’s
name; his moniker, Slayer; photographs of him; the tag line “Life
is marvelous, baby”; and other posts including the word
“marvelous.” Deschamps testified that “Life is marvelous” and
other uses of the word “marvelous” are common tag lines for
Marianna Maravilla gang members. Deschamps opined
defendant was a member of the Marianna Maravilla gang and
the crimes committed were for the benefit of the gang.
On cross-examination, Deschamps admitted that he did not
know who placed any items in any of the suites. This testimony
is discussed in further detail below. Deschamps agreed that suite
202 was cluttered, and the desk drawers were unlocked.
Deschamps said he did not ask any of the detained people about
the clipboard found in suite 202. Deschamps agreed that
defendant’s Facebook page included information that defendant
had worked as a carpenter and plasterer.
B. Defense evidence
Alondra Lomeli testified that she was the assistant
program director for a DUI education program that had operated
8
out of suite 210 of the 4532 East Whittier building from 2004 to
March 2019. Lomeli testified that another business had operated
out of suite 203. Lomeli testified that she was typically in the
building from 9:00 a.m. to 5:00 p.m., Monday through
Wednesday. She said she knew defendant; the building owner
had introduced him as the manager of the building. When asked
about defendant’s role at the property, Lomeli replied, “If I
needed anything through the office, anything that is related to
the office or outside restrooms or parking, to contact him.”
Lomeli testified that defendant had the restrooms cleaned and
stocked, addressed parking issues near the building, painted and
touched up the hallways, addressed plumbing issues, and tore out
carpets so tile could be installed. Lomeli said defendant had been
the manager for about a year, and he was “always professional.”
Lomeli said she was aware that some people lived in the
building; she did not know whether defendant lived there. She
did not observe any illegal activity in the building. Lomeli stated
that she once went into suite 202 “to get water because
sometimes [defendant] had water and a microwave, a coffee mug
for everyone to go in there if we needed anything.” She said suite
202 contained “the tools that [defendant] worked with, paint, just
stuff to work in the building.” Lomeli testified that the door was
always open and she would see people go in and out of the suite.
She could not remember what month or year she entered suite
202, but thought it was before September 11, 2018. When shown
a picture of the desk in suite 202, Lomeli did not recognize it.
She said that when she had looked into the room, it was clean
and not cluttered.
Gang expert Martin Flores testified about the history of the
various Maravilla gangs in east Los Angeles. He stated that in
9
gangs generally, “you have both a criminal aspect of the gang,
then you have the noncriminal aspect,” which involves social
interaction. Flores said a small percentage of gang members
commit the majority of crimes, but he did not know specific
percentages. He also testified that not all members of gangs
remain members for life. Flores said gangs sometimes move into
abandoned buildings, but it would be uncommon for a gang to
take over “an active functioning building.” He also stated that a
person can be an active gang member but not engage in criminal
activity. He further testified that not all crimes committed by
gang members are committed for the benefit of the gang. On
cross-examination, Flores admitted that in gang cases he has
testified only for the defense.
Defendant did not testify.
C. Verdict and sentence
The jury found defendant not guilty of possession of a
controlled substance while armed with a firearm (Health & Saf.
Code § 11370.1, subd. (a), count 3), and guilty of the remaining
three counts: possession of a firearm by a felon (§ 29800, subd.
(a)(1), count 1); possession of a controlled substance
(methamphetamine) for sale (Health & Saf. Code § 11378, count
2); and unlawful possession of ammunition (§ 30305, subd. (a)(1),
count 4). On counts 1, 2, and 4, the jury found the gang
allegations true. (§ 186.22, subd. (b)(1)(A).) Defendant admitted
his prior convictions and strike.
The court denied defendant’s Romero2 motion, and
sentenced defendant to a prison term of nine years, calculated as
follows: on count 1, the high term of three years, doubled
2 See People v. Superior Court (Romero) (1996) 13 Cal.4th
497.
10
pursuant to the Three Strikes law, plus three years for the gang
allegation; on count 2, a concurrent term of three years, plus
three years for the gang allegation; and on count 4, a concurrent
term of three years, plus three years for the gang allegation. The
court gave defendant credit for 428 actual days of custody. The
court imposed various fines and fees, which are discussed in
further detail below.
Defendant timely appealed.
DISCUSSION
Defendant asserts four main errors on appeal. First, he
contends the trial court erred in limiting its review of deputy
Deschamps’s personnel records under Pitchess; second, he
contends the court erred in allowing certain testimony from
Deschamps; third, he argues he is entitled to one additional day
of custody credit; and fourth, he contends the trial court should
not have imposed fines and fees without first holding a hearing to
determine defendant’s ability to pay. We find that defendant was
entitled to one additional day of custody credit, and reject his
remaining contentions.
A. Pitchess
1. Background
Before trial, defendant filed a Pitchess motion asserting
that Deschamps had engaged in acts of misconduct, and seeking
discovery of personnel files “relating to accusations that
[Deschamps] engaged in acts of excessive force, bias, dishonesty,
coercive conduct or acts constituting a violation of the statutory
rights of others.” Defendant asserted that Deschamps wrote in
his incident report that when he interviewed defendant after the
raid on September 11, 2018, defendant said the desk in suite 202
and all of its contents were his. Defendant argued that
11
Deschamps “was being untruthful” regarding the contents of the
desk and defendant’s statements. The People opposed the
motion, asserting that defendant failed to show good cause for the
discovery or materiality of the records requested, and that the
requested categories of documents were overbroad. (See Warrick
v. Superior Court (2005) 35 Cal.4th 1011, 1019 [a motion for
discovery of officer personnel records must show good cause for
the discovery “by demonstrating the materiality of the
information to the pending litigation”]; § 1043, subd. (b)(3).)
At the hearing on the motion, defense counsel offered to
provide the court with the recording of Deschamps’s September
11 interview with defendant. The court declined, stating, “The
reason I don’t need to listen to it is that it is set forth in the
opposition [sic] that Mr. Talamantes denied what is set forth in
the report in many respects. So I don’t really see the necessity of
having to listen to it. I accept the representation set forth and
filed by” defendant. The court continued, “I’ll review the records
in the following categories: false report writing and because he
testified at the preliminary hearing of perjury. The other
categories I do find to be appropriate.”
At the in-camera hearing, an LASD custodian of records
was sworn and testified that she searched for all relevant
records. The court reviewed the information produced, and found
it was not applicable. The court sealed the record of the
proceeding.
In open court, the court stated, “Following the in-camera
review of the records that were determined to be appropriate for
the in-camera hearing, the court has found no discoverable
information.” The minute order for the hearing states that the
court “finds good cause has been shown for in camera review of
12
the requested information as specified by the court,” and, “After
in-camera review of the documents, the court finds no hits.”
2. Analysis
Defendant asserts the court “erred in limiting the scope of
in camera review to ‘false report writing and perjury – refusing to
include reports of bias or dishonesty as requested in the motion.”
The Attorney General asserts that defendant’s position is based
on a misreading of the record, because “[n]othing in the record
indicates the trial court limited its review of the detective’s
personnel file in any way.” “Pitchess rulings are reviewed for
abuse of discretion.” (People v. Winbush (2017) 2 Cal.5th 402,
424.)
We agree defendant’s contention is not supported by the
record. In granting defendant’s motion, the court stated, “I’ll
review the records in the following categories: false report writing
and because he testified at the preliminary hearing of perjury.
The other categories I do find to be appropriate.” Although the
court’s statement as transcribed is somewhat awkward, the court
stated that it found the categories “appropriate.” The minute
order also stated that “good cause has been shown for in camera
review of the requested information.” The court did not state
that the motion was being partially denied, nor it did state that
any requested category of information would not be reviewed.
Defendant has not demonstrated that the trial court limited its
review of the personnel records or abused its discretion in
granting the Pitchess motion.
Defendant also asks that this court conduct an independent
review of the in-camera hearing to determine if any relevant
personnel records were incorrectly withheld. The Attorney
General does not oppose this request.
13
“When a defendant shows good cause for the discovery of
information in an officer’s personnel records, the trial court must
examine the records in camera to determine if any information
should be disclosed.” (People v. Winbush, supra, 2 Cal.5th at p.
424.) At an in-camera Pitchess hearing, “[t]he trial court should .
. . make a record of what documents it examined before ruling on
the Pitchess motion. . . . [T]he court can . . . state for the record
what documents it examined.” (People v. Mooc (2001) 26 Cal.4th
1216, 1229.) An appellate court independently examines the
record made by the trial court “to determine whether the trial
court abused its discretion in denying a defendant’s motion for
disclosure of police personnel records.” (People v. Prince (2007)
40 Cal.4th 1179, 1285.)
We have reviewed the sealed transcript of the in-camera
hearing. The court complied with the procedural requirements
for a Pitchess hearing, including providing an adequate
description of the documents reviewed. The court did not abuse
its discretion in finding no discoverable information.
B. Deschamps’s testimony about the firearm in the desk
Defendant asserts the trial court erred in allowing
Deschamps, “a professional witness,” to “blurt[ ] out devastating
hearsay – that he had heard from multiple sources that
[defendant] had placed the gun in Suite 202.” Defendant
contends this error was “amplified by the trial judge’s erroneous
rulings” with respect to the testimony and defense counsel’s
attempts to further question Deschamps about the confidential
informant. The Attorney General asserts that the trial court’s
rulings were not erroneous, and to the extent any error occurred,
that defendant invited it and it was harmless. “We review a
14
ruling admitting evidence over a hearsay objection for abuse of
discretion.” (People v. Roberts (2021) 65 Cal.App.5th 469, 477.)
1. Background
At the preliminary hearing in December 2018, Deschamps
testified that about a week before the warrant was served, the
owner of the building reported to LASD that he was having
problems with Marianna Maravilla gang members living in the
building. In May 2019, just before trial began, the court and
parties were discussing whether the owner of the building was
going to testify. The prosecutor noted, “[T]he comments from the
owner, . . . that was just one of the factors that went into the
search warrant. The majority of which was the fact that they had
gotten news that there were individuals who had guns and drugs
at this location.”
On direct examination at trial, the prosecutor asked
Deschamps what led to LASD obtaining the search warrant for
the building. Deschamps stated that defendant was “one of the
main subjects” of the search warrant, as well as other “gang
members from Marinna Maravilla who are in possession of
firearms and narcotic[s].” The prosecutor asked, “What
information did you get that caused you to write this search
warrant and then execute it?” Deschamps briefly discussed how
LASD gang investigators gather intelligence relating to gang
activity, and stated, “Sometimes people give us anonymous tips,
but in this case, I had what we call a credible, reliable informant
who gave me this information.” Defense counsel did not object.
On cross-examination, defense counsel focused heavily on
Deschamps’s lack of personal knowledge about how the various
items arrived at the places they were found. For example,
defense counsel asked, “You don’t know who placed those items in
15
the suite that were not found on people’s persons. You don’t
know how those were placed there, do you?” Deschamps replied,
“I mean, no, I don’t.” Referring to the gun found in suite 202,
defense counsel asked, “Do you know for sure how that gun got in
that suite?” Deschamps replied, “I don’t.” Counsel also had
Deschamps admit that he did not know when the ammunition
was put in the desk, who put the digital scales in suite 202, who
owned the glass pipes, or what the other detained people had
been doing before deputies arrived. Deschamps agreed that the
door to suite 202 was open when he arrived and that the desk
drawers were unlocked, implying that others had access to the
suite and desk.
The following exchange also occurred on cross-examination:
“Q [by defense counsel] And you don’t know when the gun
that was placed in suite 202 that was found in the desk was
placed there?
“A [by Deschamps] I do not know.
“Q You don’t know if it was there for days; correct? You
don’t know?
“A No, I don’t.
“Q You don’t know if it was there for months?
“A Well --
“Q Do you?
“The court: Let him answer the question before you ask
another one, please.
“The witness: I know it was there for approximately a day.
“Q How do you know it was there for approximately a
day?
“A Because the information I obtained was that the
defendant had just obtained that firearm.”
16
Defense counsel then said, “Objection.” The prosecutor pointed
out that defense counsel had asked the question. The court said,
“Your objection to the witness’s testimony is overruled based on
the fact that you opened the door by asking the question.”
Defense counsel continued:
“Q Are you going to tell us the source of your
information?
“A No.
“Q So we have no way of knowing?
“A For their protection, no.
“Q Is the information simply that you yourself are
suspicious of Mr. Talamantes?
“A No, not at all.”
After discussing the ammunition found in the desk, defense
counsel again asked Deschamps to confirm that he did not
personally witness the gun being placed in the desk. Deschamps
said, “That is correct.” Defense counsel then asked, “We have no
basis of determining how reliable your source is because you don’t
want to name the source; correct?” The court interrupted,
stating, “I’m sorry. That’s an inappropriate question.” The court
then ordered the noon recess.
When cross-examination resumed that afternoon, defense
counsel asked Deschamps, “You said that you had some prior
knowledge of Mr. Talamantes based on information you received
from a source you wanted to protect; is that correct?” Deschamps
began to answer, “From many sources. . . .” but the court
interrupted, “I think the – I prefer you not tread into this area. . .
. It is not necessarily the witness’s preference. It is also perhaps
a legal requirement, and it is legally protected.”
17
2. Analysis
Defendant argues that Deschamps’s statement that
defendant had recently obtained the firearm was inadmissible
hearsay, and the trial court erred in overruling his objection on
the basis that defendant opened the door by asking the question.
Because the trial court prevented defense counsel from
questioning Deschamps about the confidential informant
thereafter, defendant asserts that the court “compounded the
error when it protected the secrecy of the source without so much
as a hearing on disclosure.” He also asserts that the information
should have been provided in discovery.3
The Attorney General asserts that any possible error was
invited when defense counsel asked Deschamps a question that
“called for a response based on hearsay.” The Attorney General
also contends the trial court acted within its discretion by
instructing defense counsel to refrain from questioning
Deschamps about privileged information.
“‘The doctrine of invited error is designed to prevent an
accused from gaining a reversal on appeal because of an error
made by the trial court at his behest. If defense counsel
3 Defendant also contends, in a single sentence, that “this
tactic” violated the Confrontation Clause of the United States
Constitution (U.S. Const. Amend. VI), and People v. Sanchez
(2016) 63 Cal.4th 665 (Sanchez). It appears that “this tactic”
refers to maintaining the confidentiality of the informant.
Defendant does not include any further discussion supporting
these points. “If a party’s briefs do not provide legal argument
and citation to authority on each point raised, ‘“the court may
treat it as waived, and pass it without consideration.”’” (People v.
Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363-364.) We
therefore do not consider these contentions.
18
intentionally caused the trial court to err, the appellant cannot be
heard to complain on appeal. . . . [I]t also must be clear that
counsel acted for tactical reasons and not out of ignorance or
mistake.’” (People v. Coffman and Marlow (2004) 34 Cal.4th 1,
49.) “In cases involving an action affirmatively taken by defense
counsel, we have found a clearly implied tactical purpose to be
sufficient to invoke the invited error rule.” (Ibid.)
To the extent any error occurred in Deschamps’s cross-
examination, it was invited. The Attorney General relies on
People v. Penunuri (2018) 5 Cal.5th 126 (Penunuri), in which the
defendant was charged with crimes relating to multiple incidents.
An accomplice, Delaloza, had already been convicted of crimes
committed in two of those incidents; his appeal was pending. (Id.
at p. 156.) Delaloza was supposed to testify at the defendant’s
trial, but after arriving at court he invoked his right to remain
silent. (Ibid.) Following a discussion, the court agreed to play a
recording of Delaloza’s interview with police. (Id. at p. 154.)
“[T]he defense asked the trial court to inform the jury that
Delaloza ‘has been convicted in this case, so that they can
properly judge his testimony.’ The court agreed and informed the
jury that Delaloza had been convicted” of the other crimes, and
that his appeal was pending. (Id. at p. 156.)
In the Supreme Court, the defendant asserted that the trial
court erred in disclosing to the jury that Delaloza had been
convicted in relation to two of the incidents. (Penunuri, supra, 5
Cal.5th at p. 157.) The defendant argued that “revealing an
accomplice’s conviction or guilty plea can at least under some
circumstances be error, ‘tantamount to inadmissible hearsay
evidence.’” (Ibid.) The Supreme Court rejected this contention:
“Assuming it was error, the error was invited. As noted, it was
19
defense counsel who requested that the jury be told about
Delaloza’s convictions ‘so that they can properly judge his
testimony.’ Thus, counsel made a strategic judgment that the
revelation of Delaloza’s convictions would more likely benefit
than harm his client by impeaching Delaloza’s credibility.
Because any error was invited by the defense, it cannot now be
asserted as a basis for relief.” (Ibid.)
The Court of Appeal reached a similar conclusion regarding
invited error in People v. Williams (2009) 170 Cal.App.4th 587(Williams). In that case, police went to a house to serve an arrest
warrant on the defendant. Six other people were inside the house
at the time of the arrest. During a search of the house, officers
found methamphetamine, drug paraphernalia, weapons, and
ammunition. (Id. at p. 596.) Defense counsel told the jury in
opening statements that 10 people had been at the house on the
day of the search; all of them had access to and could have
possessed the guns and methamphetamine. (Id. at p. 619.)
During various cross-examinations, defense counsel elicited the
opinions of four police officers that the drugs and guns belonged
to the defendant. (Ibid.)
On appeal, the defendant argued it was error to admit the
testimony of the four officers “about who possessed the guns,
drugs, and ammunition found” at the house. (Williams, supra,
170 Cal.App.4th at p. 618.) The Court of Appeal found that any
error was invited: “As set forth above, the testimony about which
defendant now complains was elicited by his own counsel. Thus,
any error was invited, and defendant may not challenge that
error on appeal.” (Id. at p. 620; see also People v. Bell (2020) 47
Cal.App.5th 153, 193 [“any Sanchez error was invited because the
20
challenged testimony was elicited by [the defendant’s] own
lawyer”].)
Defendant urges us to follow People v. Arends (1957) 155
Cal.App.2d 496 (Arends), but the circumstances of that trial were
different. In Arends, the deputy district attorney who initially
planned to try the case, Ritzi, instead was called “as a witness on
behalf of the People and testified concerning an offer made by
appellant to plead guilty.” (Id. at p. 506.) On cross-examination,
defense counsel asked Ritzi about refusing to accept the
defendant’s guilty plea and deciding to take the case to trial
instead. Ritzi testified, “From my examination of the file, from
my talks with [the unrepresented defendant], and from my talks
with the investigators, it was my considered opinion that the
defendant was guilty.” (Id. at p. 507 [emphasis in Arends].)
The Court of Appeal found the admission of Ritzi’s
testimony to be erroneous, and no “admonition the court could
have given to the jury could have effectively removed the
prejudice engendered by the testimony of the deputy district
attorney that he had ‘studied’ the case, ‘was prepared to try it’,
and was ‘convinced’ that appellant was guilty.” (Arends, supra,
155 Cal.App.2d at p. 508.) The People argued the error was
invited, because the most prejudicial testimony had been elicited
by defense counsel on cross-examination. The Court of Appeal
rejected this contention: “That such testimony was immaterial
and highly prejudicial is manifest. Therefore, the argument that
[the defendant’s] counsel ‘opened the gates’ is unavailing. . . .
Legitimate cross-examination does not extend to matters
improperly admitted on direct examination. Failure to object to
improper questions on direct examination may not be taken
advantage of on cross-examination to elicit immaterial or
21
irrelevant testimony. The so-called “open the gates” argument is
a popular fallacy.” (Id., at pp. 508-509.)
Here, the prosecution did not introduce improper
testimony, as in Arends, that defense counsel later explored in
further depth on cross-examination. Instead, as in Penunuri,
Williams, and Bell, the purportedly improper testimony was
elicited by defense counsel alone when she asked Deschamps how
he received certain information, and then questioned him about
the source of that information.
Defendant asserts that the question—“How do you know
[the gun] was there for approximately a day?”—did not call for
hearsay. He contends “the question is of the type that obviously
asks [Deschamps] to explain how he obtained personal
knowledge; the question does not ask about what someone else
knows, and was not an invitation to extemporize on inadmissible
secret evidence and witnesses.” We disagree. On cross-
examination defense counsel focused heavily on establishing that
Deschamps did not have personal knowledge about who placed
the gun in the desk or when it was placed there. In addition,
defense counsel knew from pretrial discussions and Deschamps’s
direct testimony that LASD obtained and executed the search
warrant based on information from a confidential informant.
Nevertheless, defense counsel asked Deschamps how he knew the
gun had been in the desk for only a short time. It was foreseeable
that Deschamps’s response would be based on information
received from the confidential informant. To the extent
defendant now asserts the response to this question included
inadmissible hearsay, any error was invited.
The same rationale applies to defense counsel’s continued
attempts to question Deschamps about the confidential
22
informant. Defendant argues that Deschamps “testifie[d] to
secret evidence by multiple secret sources and refuse[d] to even
identify those sources, implying danger.” In fact, Deschamps did
not testify about the sources of LASD’s information; each time
defense counsel attempted to question Deschamps about the
confidential informant, the trial court intervened to bar the line
of questioning. To the extent any inadmissible information
reached the jury as a result of this questioning, it was invited
error.
Defendant further asserts that the trial court erred when it
“protected the secrecy of the source without so much as a hearing
on disclosure.” He also argues that “this information, which
inculpates Mr. Talamantes[,] should have been provided in
discovery” under section 1054.1. Not so. Under certain
circumstances, the identity of a confidential informant is
privileged. (Evid. Code, § 1041.) When “a party demands
disclosure of the identity of the informant on the ground the
informant is a material witness on the issue of guilt, the court
shall conduct a hearing at which all parties may present evidence
on the issue of disclosure.” (Evid. Code, § 1042, subd. (d).)
Defendant does not dispute that any information regarding the
confidential informant met the privilege requirements. In
addition, he does not assert that the informant was a material
witness on the issue of guilt, and nothing in the record suggests
that defendant sought this information before or during trial. We
find no error in the court’s rulings limiting defense counsel from
asking about the confidential informant.
Moreover, to the extent any error occurred, it was
harmless. (See People v. Duarte (2000) 24 Cal.4th 603, 619 [the
harmless error standard of People v. Watson (1956) 46 Cal.2d
23818, 836-837 applies to state law error in the admission of
hearsay].) There was ample evidence supporting the jury’s
conclusion that the firearm and other contraband were in
defendant’s possession. Deschamps testified that the desk in
suite 202 displayed multiple signs referring to “Slayer,”
defendant’s moniker, including one placard referring to him as
the “General Manager.” Defendant’s EBT card was also found in
the desk. In the ceiling, accompanying the bag of
methamphetamine, there was a lighter with “Slayer” engraved on
it. Defense witness Lomeli testified that defendant acted as a
manager in the building, and suite 202 contained the materials
he used in that role. The jury was shown multiple photographs of
the evidence, as well as the firearm itself. Defense counsel had
ample opportunity to argue that others had access to suite 202
and could have placed items there. This was not a case of “weak
inference,” as defendant asserts. It is not reasonably probable
that the exclusion of Deschamps’s statement about the firearm
would have led to a different result, and therefore any error in
admitting Deschamps’s statements was harmless.4
C. Presentence custody credits
Defendant asserts he is entitled to receive one additional
day of presentence custody credit. The Attorney General agrees.
At the time of sentencing, defendant was given 428 days of
custody credit. A defendant is entitled to actual time credits both
for the day of arrest and the day of sentencing. (See People v.
4 Defendant also asserts that to the extent any hearsay
objection is deemed forfeited as a result of defense counsel’s
failure to articulate the basis of her objection, that forfeiture
constituted ineffective assistance of counsel. Because we do not
make a determination of forfeiture, we do not address this
argument.
24
Browning (1991) 233 Cal.App.3d 1410, 1412; People v. Smith
(1989) 211 Cal.App.3d. 523, 526.) The parties agree that
defendant was arrested on September 11, 2018, and sentenced on
November 13, 2019—a total of 429 days. Defendant is therefore
entitled to one additional day of custody credit.
D. Imposition of fines and fees
At the time of sentencing, the court imposed a restitution
fine of $400 (§ 1202.4), criminal conviction facilities assessment
fees totaling $90 (Gov. Code, § 70373), court operations
assessments totaling $120 (§ 1465.8, subd. (a)(1)), and a crime lab
fee of $50 (Health & Saf. Code, § 11372.5). The court also
imposed and stayed a parole revocation fine of $400.
Defendant asserts the trial court erred in imposing these
fines and fees without holding a hearing as to defendant’s ability
to pay them. Defendant relies on People v. Dueñas (2019) 30
Cal.App.5th 1157 (Dueñas), in which Division Seven of this 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” certain fines and fees. (Dueñas,
supra, 30 Cal.App.5th at p. 1164.) The Attorney General asserts
that defendant forfeited the issue by failing to object to the
imposition of the fines and fees in the trial court. We agree.
The Dueñas opinion was issued on January 8, 2019.
Defendant was sentenced in November 2019, but he did not
object on Dueñas grounds. Defendant argues that his contention
has not been forfeited, because under Dueñas, “the government
must find an ability to pay before imposing a fine.” Dueñas does
not so hold. Division Seven, which decided Dueñas, has stated,
“Consistent with Dueñas, a defendant must in the first instance
contest in the trial court his or her ability to pay the fines, fees
25
and assessments to be imposed. . . .” (People v. Castellano (2019)
33 Cal.App.5th 485, 490; see also People v. Kopp (2019) 38
Cal.App.5th 47, 96 (Kopp), [“It is the defendant who bears the
burden of proving an inability to pay”], rev. granted Nov. 13,
2019, S257844.5) Defendant’s failure to object on the basis of
Dueñas forfeited his challenge.
Even before Dueñas, defendants had a statutory right to
challenge the imposition of a restitution fine exceeding the
statutory minimum of $300. Under section 1202.4, a defendant’s
inability to pay “may be considered only in increasing the amount
of the restitution fine in excess of the minimum fine [of $ 300].”
(§ 1202.4, subd. (c).) Here, the court imposed a $400 restitution
fine, and defendant did not object on the basis that he was unable
to pay the fine or that he was entitled to present evidence on his
ability to pay. “Given that the defendant is in the best position to
know whether he has the ability to pay, it is incumbent on him to
object to the fine and demonstrate why it should not be imposed.”
(People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154, citing
People v. Avila (2009) 46 Cal.4th 680, 729.)
Moreover, because defendant did not object to the $400
restitution fine based on his inability to pay it, “he surely would
not complain on similar grounds regarding an additional [$260]
in fees.” (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.)
Because defendant did not object to the imposition of fines or fees
5 According to the Supreme Court’s website, in Kopp the
court limited review to the following issues: “(1) Must a court
consider a defendant’s ability to pay before imposing or executing
fines, fees, and assessments? (2) If so, which party bears the
burden of proof regarding the defendant’s inability to pay?”
26
based on his inability to pay them, his appellate challenge on this
basis has been forfeited.6
DISPOSITION
The judgment is modified to add one day of presentence
custody credit, for a total of 429 actual days. In all other respects
the judgment is affirmed. The trial court is directed to prepare
an amended abstract of judgment reflecting the modified
presentence custody credit and forward a copy to the Department
of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J.
CURREY, J.
6 Defendant contends that he may assert this argument for
the first time on appeal, citing an unpublished case from 2010.
This authority does not support defendant’s contention; an
opinion “that is not certified for publication or ordered published
must not be cited or relied on by a court or a party in any other
action.” (Cal. Rules of Court, 8.1115(a).)
27