People v. Mendoza CA4/1 ( 2021 )

Filed 12/8/21 P. v. Mendoza CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078398
Plaintiff and Respondent,
v.
(Super. Ct. No. INF1600426)
CARLOS ANTONIO MENDOZA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Otis Sterling, Judge. Affirmed as modified.
Richard A. Levy, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A.
Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and
Respondent.
In April 2017, an information charged defendant Carlos Mendoza with
the murder of Cecelia Silva. (Pen. Code, § 187, subd. (a)).1 The information
also alleged that Mendoza committed the homicide by means of lying in wait
(§ 190.2, subd. (a)(15)); and that he personally used a deadly and dangerous
weapon (i.e., a knife) in its commission (§§ 12022, subd. (b)(1), 1192.7,
subd. (c)(23)).
In March 2020, the jury found Mendoza guilty of first degree murder
and found the special circumstance of lying in wait and the weapon
enhancement true. In July 2020, the trial court sentenced him to life in
prison without the possibility of parole, plus one year.
On appeal, Mendoza contends the trial court erred in admitting
inculpatory statements he made to police during his interrogations, including
confessing to Silva’s murder. Alternatively, he contends he was prejudiced
and denied due process of law when portions of his unredacted videotaped
interrogations were played for the jury.
Mendoza also contends his first degree murder conviction and the true
finding on the lying-in-wait special circumstance must be reversed for lack of
substantial evidence; the trial court erred in refusing to privately excuse a
prospective juror for cause; the prosecutor committed prejudicial error during
closing by referencing the oath taken by the jury; and the fines, fees, and
assessments imposed by the trial court should be stricken based on its failure
to make a threshold finding of ability to pay. Finally, Mendoza contends, and
the People concede, that the court erred both by imposing a parole revocation
restitution fine and in calculating his presentence custody credits.
1 Further undesignated statutory references are to the Penal Code unless
otherwise indicated.
2
In supplemental briefing, Mendoza contends that under recently
enacted Assembly Bill No. 1869 (2019-2020 Reg. Session) (Stats. 2020, ch. 92,
§ 2) (Assem. Bill No. 1869), the booking fee imposed by the trial court under
former Government Code section 29550, subdivision (c), and the presentence
probation report fee under former section 1203.1b, subdivision (j) should be
stricken.
As we explain, we agree with the parties that the trial court erred in
imposing the parole revocation restitution fine and in calculating Mendoza’s
presentence custody credits. We also agree that as of July 1, 2021, the
unpaid balance of the booking and presentence probation report fees are
vacated. In all other respects, we affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Events Leading Up to Silva’s Murder
Mendoza met Silva in January 2016 through a mutual friend, Ivan J.
Mendoza and Silva went on their first date on January 21. The following
day, Mendoza wrote in the calendar in his phone, “ ‘Second date at casino.
Fell for her.’ ” Mendoza on January 26 also wrote in his calendar, “ ‘Cecilia
and I are officially together’ ”; and on January 29, just eight days after their
first date, “ ‘[e]ngaged to Cecilia.’ ”
About a month after they met, Silva told Mendoza she wanted a break
from their relationship. Toward the end of February or early March 2016,
Silva began a romantic relationship with coworker Pascual M.
As a result of the breakup, Mendoza in late February 2016 went to a
county mental health facility in Indio (Indio facility). Mendoza over the years
had suffered from depression, and had previously attempted suicide. At the
Indio facility, Mendoza was evaluated, found to be a danger to himself as a
result of suicidal ideation, and placed on a 72-hour involuntary hold. (Welf.
3
& Inst., § 5150.) When that hold expired, he was involuntarily held for about
another 14 days. (Id., § 5250.) While hospitalized, he denied hallucinating or
being paranoid or delusional. The psychiatrist who treated Mendoza found
him to be “organized, linear, and goal-directed in regards to [his] thought
process.” On discharge on March 9, Mendoza was diagnosed with “[m]ajor
depressive disorder without psychotic features.” (Italics added.)
On March 17, Mendoza called Silva to say “goodbye,” telling her he was
going to kill himself. A day earlier, Mendoza had gone to Ivan’s home also to
say his “goodbyes,” asking Ivan if he wanted any of his “stuff.” Although
Mendoza appeared “really sad,” Ivan did not believe Mendoza was serious
about committing suicide.
On March 19, the day before Silva was murdered, Mendoza sent
flowers to her workplace. Silva’s coworkers testified she was very upset by
the flowers. She messaged Mendoza, “ ‘I don’t like it when you spend.’ ”
Later that day, they talked on the phone for about seven minutes.
Thereafter, Mendoza messaged Ivan, “ ‘It’s over.’ ”
B. Silva’s Murder
Silva was headed for work at about 5:00 a.m. on March 20. Silva’s
neighbor, Eduardo F., was awakened early that morning by “arguing between
a man and a woman.” “Maybe 30 seconds” later, Eduardo heard “very loud
awful screaming” lasting a “few seconds.” Initially he thought the yelling and
screaming had been a nightmare. Less than a minute later, he went outside,
quickly looked around, but did not see anything.
At 5:24 a.m. that morning, Mendoza messaged Ivan he was “ ‘going
back to the mental place.’ ” Ivan’s cousin, who worked at the Indio facility,
called Ivan a little later that morning, telling him to “ ‘[g]et over here’ ” as
Mendoza was outside the facility. When Ivan contacted Mendoza, he
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appeared “out of it.” Ivan also observed Mendoza was not wearing any shoes,
which he found “very weird [b]ecause . . . every time—and even my family
noticed that [h]e always had his super clean K-Swiss white shoes, always
clean. At that time, he wasn’t wearing his shoes, which was very awkward.”
Because the Indio facility was full, Mendoza was ultimately admitted at
Canyon Ridge Hospital in Chino (Canyon Ridge).
C. The Police Investigation
Riverside County Deputy Sheriff Dennis Klemme was dispatched to
Silva’s home at 6:25 a.m. on March 20. He found the driveway chain-link
fence and gate locked, and saw a female, later identified as Silva, lying in a
pool of blood in the driveway next to a car with its engine running. Deputy
Klemme estimated the fence was about six to eight feet high.
After the scene was secured, Deputy Klemme noticed bloody footprints
near Silva’s body. It appeared someone wearing only socks had stepped in
the blood because it was possible to see the outlines of the toes and some
fibers in the footprints. About nine such footprints were found at the murder
scene.
An autopsy was performed on Silva on March 21. It showed she had
suffered about 46 stab and incise wounds, including 11 wounds to her head
and neck, with the fatal wound severing her jugular vein and carotid artery.
The day after Silva’s murder, police executed a validly issued search
warrant at the home of Mendoza’s parents, where he had been living.
Officers observed a portion of the home’s garage had been converted into a
“martial arts studio,” and inside the studio they found a rubber “training
knife” on a shelf. Inside Mendoza’s bedroom, they found a receipt for flowers
Mendoza had sent Silva; a note in a lunch box with a heart written next to
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Silva’s name; several knives; and a mask similar to the one worn by “Bane,” a
character from a Batman movie.
Two days after Silva’s murder, police served a validly issued search
warrant on Mendoza while he was hospitalized at Canyon Ridge. Officers
took evidentiary swabs from Mendoza, and seized among other items his
clothing and cell phone. Content from Mendoza’s cell phone revealed that
late on the afternoon of March 16 he messaged Silva that he knew why she
did not want to see him anymore, and telling her “ ‘goodbye.’ ” When Silva
responded, “ ‘Where are you going?’ ” Mendoza messaged, “ ‘I’m not going to
wake up.’ ”
II. DISCUSSION
A. Suppression of Mendoza’s Postarrest Statements to Police
1. Voluntariness
a) Events Prior to the Confession
Pursuant to a validly issued warrant, police arrested Mendoza for
Silva’s murder at 5:15 p.m. on Tuesday, April 5, 2016, while he was
hospitalized at Canyon Ridge, and transported him to the police station.
Prior to interrogating him that evening, former Riverside County Sheriff’s
Department Detective Sean Freeman read Mendoza his rights under
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Mendoza acknowledged
receiving those rights and voluntarily agreed to speak with Freeman and
Detective Nelson Gomez. During the interrogation, Mendoza denied
murdering Silva, and claimed he could not remember what occurred in the
hours leading up to her murder because of a “blackout” he had experienced
due to his mental condition.
During the interrogation, Mendoza also claimed to having memory
lapses and hearing “voices” in his head, and noted he had been recently
6
hospitalized at the Indio facility for depression and suicidal ideation.
Because of these mental health issues, arrangements were made for a
neuropsychologist to meet with Mendoza the following morning. Freeman
informed Mendoza of this meeting during the interrogation, which ended
after midnight. The officers then transported Mendoza to a Riverside jail for
booking.
At about 9:00 a.m. the following morning, the detectives brought
Mendoza back to the police station. He again was given Miranda warnings
and, as he had done the night before, he voluntarily agreed to speak with the
detectives. They then introduced Mendoza to Dr. Martha Rogers, a forensic
neuropsychologist.
Dr. Rogers told Mendoza that she had been asked to meet with him
because during the interrogation the night before, he claimed he was
experiencing blackouts, memory problems, hallucinations, and reported
“feeling suicidal.” She explained she had been a neuropsychologist for about
35 years, specializing in the study of “brain and behavior relationships where
people are having problems such as learning disorders or memory loss or
head injuries.” She further explained that it was his choice, and his alone,
whether to go forward with the examination, at one point telling him, “You
don’t have to talk to me.” She also told him because he “did not have an
attorney assigned to him,” it might “be better for him to wait” to be evaluated
because the “advantage” would be the testing and results of the testing would
be “confidential.” She stated that if he agreed to the exam, she would seek to
obtain “reliabl[e]” information based on the testing and data, and her
conclusions would not be “slant[ed]” for one side or the other.
Although the detectives had told Mendoza the examination would be
private, Dr. Rogers was clear that there was no “private doctor/patient
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relationship” between her and Mendoza; and therefore, that anything he said
would be shared with law enforcement and the district attorney’s office, and
nothing would be kept “confidential.” She also explained that if he consented
to the examination, she would prepare a written report that also would not be
confidential. Mendoza agreed to go forward with the hours-long examination,
which involved a series of tests.
The detectives watched the examination from another room. Once
completed, Dr. Rogers concluded it was “highly likely” Mendoza was
“exaggerating his psychiatric complaints.” She found his memory function
was “pretty good,” he was “not experiencing memory loss that was
measurable or findable,” and his blackouts were likely alcohol-related. Dr.
Rogers first shared her conclusions with the detectives, then with Mendoza.
After the examination, the detectives confronted Mendoza, telling him
they did not believe “his story” about having a blackout in the hours leading
up to Silva’s murder. Mendoza asked for a cigarette break “before he went
down that road.” After taking as “much time” as he needed, Mendoza
confessed to the murder.
b) The Confession
Mendoza told the detectives that Silva ended their relationship once
and for all during their seven-minute telephone conversation on Saturday,
March 19, when she told him about Pascual. Mendoza claimed this was the
first time he had learned Silva was romantically involved with someone else.
After speaking with Silva and messaging Ivan that his relationship with
Silva was “over,” he packed a bag that included five pairs of socks, five pairs
of underwear, seven T-shirts, two pairs of jeans, razors and shave gel,
deodorant, and a blanket, among other items. He also packed a large knife in
his bag.
8
Mendoza told the detectives later that night he drove around for a
while. He then was wearing a black T-shirt, blue jeans, and white shoes. As
he drove, Mendoza heard voices in his head telling him to kill Silva, because
if he couldn’t have her, nobody else could. He knew Silva worked at 5:00 a.m.
on Sundays. Feeling “out of control,” he drove to the area where Silva lived
and parked around the corner from her home. He then was wearing black
nylon sweats, a black “hoodie,” tennis shoes, gloves, and a black neoprene
“Bane” face covering. Carrying the sheathed knife he had packed, he walked
to Silva’s home, “jumped the fence and waited” on the south side of the
property, under a covered patio area. While he waited for Silva, he
unsheathed the knife, and took off his shoes because they were “making too
much noise.”
Mendoza in “socked feet” next “ran up” to Silva as she headed to work,
after she had exited her car to unlock the driveway gate. Feeling as though
he was on “autopilot,” Mendoza attacked her with the knife. Silva screamed
for her mother two or three times but otherwise said nothing. Mendoza was
unsure if Silva recognized him because it was dark and his face was covered.
After the attack, Mendoza ran back to the patio area where he had
been “hiding,” grabbed the knife sheath and his shoes, jumped back over the
locked gate, and returned to his car. He took off the clothes and shoes he had
worn in the attack, including his mask and gloves, and placed them along
with the knife in a black plastic bag. Wearing just his “boxer[]” underwear,
he drove to an irrigation canal, scraped his feet in the “dirt” to remove any
blood, and threw the plastic bag containing the articles of clothing and the
9
knife into the water.2 Dressed in clean clothes but without shoes, he then
drove to the Indio facility where he had been recently hospitalized. At some
point later that day, Mendoza learned from Ivan that Silva was dead.
After confessing to the murder, Mendoza wrote a letter of apology to
Silva’s family. Mendoza also apologized to the detectives for being untruthful
during the previous night’s interrogation, adding, “I can’t lie. I won’t lie to
you guys. You guys are doing your job. You guys are treating me very well,
and I can’t do this to you guys and I can’t do this to [Silva].” Mendoza was
arraigned on Friday, April 8 for Silva’s murder.
c) Admission of Mendoza’s Confession
Mendoza filed a motion in limine to exclude the inculpatory statements
he made after his arrest on April 5 and his confession on April 6.3 He argued
under the totality of the circumstances that his statements were involuntary
based on the coercive nature of the detectives’ interrogations. He separately
argued that his April 6 confession should be suppressed because the state
violated the California Constitution and section 825 by unreasonably
delaying his arraignment.
The People filed their own in limine motion seeking to admit Mendoza’s
incriminating statements and the letter he wrote to Silva’s family.
2 The plastic bag and its contents were subsequently recovered by a
sheriff’s department dive team.
3 Mendoza also moved to suppress statements he made to police on
March 22, 2016, when police executed the search warrant and questioned
him without first giving him Miranda warnings. The court ruled Mendoza’s
March 22 statements violated Miranda and thus were involuntary, which
ruling is not the subject of this appeal.
10
Prior to ruling on the parties’ competing motions, the court held an
Evidence Code section 402 hearing.4 Freeman was the only witness to testify
at the hearing. During the hearing, Freeman described his first contact with
Mendoza at the hospital on March 22, noting Mendoza then appeared “semi-
incoherent” and claimed he was “dizzy” and “having trouble standing.”
Freeman, however, believed Mendoza was “faking his level of incoherence”
and symptoms.
Freeman’s next contact with Mendoza was on April 5, the night of his
arrest. During that interrogation, Mendoza was given multiple breaks,
including to use the bathroom and to smoke cigarettes. He denied murdering
Silva, but “left open [the possibility] that he could have done it[,] but had no
memory of it” due to his experiencing a blackout.
The following day Mendoza was transported back to the police station,
introduced to Dr. Rogers, and subsequently confessed to Silva’s murder.
Near the conclusion of the lengthy Evidence Code section 402 hearing,
Freeman on cross-examination stated he had no knowledge why Mendoza
had not been arraigned on April 6. This was the only question posed to
Freeman regarding the timing of Mendoza’s arraignment.
After the witness testimony and oral argument of counsel, the court
ruled Mendoza’s statements were voluntary and not the result of police
coercion. The court found that Mendoza received Miranda warnings before
each interrogation, and that he “clearly waived [those] rights by answering in
4 Subdivision (b) of Evidence Code section 402 provides: “The court may
hear and determine the question of the admissibility of evidence out of the
presence or hearing of the jury; but in a criminal action, the court shall hear
and determine the question of the admissibility of a confession or admission
of the defendant out of the presence and hearing of the jury if any party so
requests.”
11
the affirmative that he understood his rights and then proceeded to offer
whatever information he offered” during the interrogations.
The court next addressed the examination of Mendoza by Dr. Rogers,
noting: “She clearly laid out his options for him. I do understand that,
apparently, there was some discussion about the private discussion Mr.
Mendoza was going to have with the doctor. That clearly was cleared up with
him by the doctor when she told him, ‘This will not be confidential. Whatever
information you provide to me is going to go to the District Attorney; it’s
going to go to law enforcement; it’s going to go to your attorney. This is not
confidential. This is not, quote, “private.” ’ She informed him, ‘Your options
are talk to me now, don’t talk to me. Make the best decision for yourself.’
And Mr. Mendoza agreed to speak to her.”
The court found the duration of the interrogations was not excessive,
and during both, Mendoza was given multiple breaks and provided with food
and water. The court summarized its ruling as follows: “So considering the
totality of the circumstances relat[ing] to the interviews on April 5th, April
6th—the fact that he was Mirandized; the fact that he was told that it wasn’t
a confidential—it wasn’t going to be a private interview with the doctor; that
the information would go to all involved parties; the duration; the breaks; the
tone; and the tactics were not overly bearing such that this Court can say
that his subsequent statements were involuntary.”
After making its ruling, trial counsel asked the court to address
whether Mendoza’s detention was unlawful because of the timing of his
arraignment. The court confirmed Mendoza was arraigned within 48 hours.
Counsel argued the arraignment, while within the statutorily prescribed 48
hours (discussed post), was nonetheless unreasonably delayed. In rejecting
12
this argument, the court stated it had in fact considered the timing of
Mendoza’s arraignment in finding his confession was voluntary.
d) Guiding Principles
An involuntary confession is not admissible evidence. (People v. Linton
(2013) 56 Cal.4th 1146, 1176 (Linton); People v. Neal (2003) 31 Cal.4th 63, 79
(Neal) [“It long has been held that the due process clause of the Fourteenth
Amendment to the United States Constitution makes inadmissible any
involuntary statement obtained by a law enforcement officer from a criminal
suspect by coercion.”].) “The test for determining whether a confession is
voluntary is whether the defendant’s ‘will was overborne at the time he
confessed.’ ” (People v. Maury (2003) 30 Cal.4th 342, 404, quoting Lynumn
v. Illinois (1963) 372 U.S. 528, 534.) A confession is involuntary if
“ ‘ “extracted by threats or violence, obtained by direct or implied promises, or
secured by the exertion of improper influence.” ’ ” (Linton, at p. 1176.) In
determining the voluntariness of a confession, relevant factors include
“ ‘ “ ‘the crucial element of police coercion [citation]; the length of the
interrogation [citation]; its location [citation]; its continuity’ as well as ‘the
defendant’s maturity [citation]; education [citation]; physical condition
[citation]; and mental health.’ ” ’ [Citation.] No single factor is dispositive.”
(People v. Winbush (2017) 2 Cal.5th 402, 452.)
Moreover, a confession is involuntary only if the coercive police conduct
is “causally related” to a later confession. (People v. Williams (2010)
49 Cal.4th 405, 437 (Williams).) It must be a “ ‘motivating cause of the
decision to confess.’ ” (People v. Wall (2017) 3 Cal.5th 1048, 1066 (Wall).)
When a defendant challenges the admission of a statement on the
grounds that it was involuntarily made, the state bears the burden of
showing by a preponderance of the evidence that a defendant’s statement
13
was, in fact, voluntary. (See People v. Battle (2021) 11 Cal.5th 749, 790;
Linton, supra, 56 Cal.4th at p. 1176.) “ ‘On appeal, we conduct an
independent review of the trial court’s legal determination’ as to the
voluntariness of a confession. [Citation.] Although we rely on the trial
court’s factual findings to the extent they are supported by substantial
evidence, where, as here, ‘[t]he facts surrounding an admission or confession
are undisputed to the extent the interview is tape-recorded,’ those facts as
well as the ultimate legal question are ‘subject to our independent review.’ ”
(Wall, supra, 3 Cal.5th at p. 1066.)
e) Analysis
Mendoza on appeal makes a series of arguments regarding the alleged
coercive tactics police used during the interrogations that either singularly or
collectively rendered his statements and confession involuntary. We have
independently reviewed the transcripts of the April 5 and 6 interrogations.
For the reasons we discuss, we conclude from the totality of the
circumstances that Mendoza’s statements on April 5 and his confession on
April 6 were voluntary and not, as he contends, the product of coercive
interrogation tactics by police. (See Wall, supra, 3 Cal.5th at p. 1066.)
Interrogation and Mendoza’s Mental Health
Primary among Mendoza’s involuntariness argument is his contention
that the detectives “exploited” his “severe mental disorder” during the
interrogations, including when they introduced him to “their agent,” Dr.
Rogers, and when Freeman gave false information that he had a brother who,
like Mendoza, also suffered from depression.
First, we conclude Mendoza was given sufficient information by Dr.
Rogers to make a knowing and intelligent decision whether to submit to the
examination, after claiming he had a blackout and expressing suicidal
14
ideation. As pointed out by the trial court and as shown by our independent
review of the record, Dr. Rogers specifically told Mendoza that it was up to
him whether to go forward with the evaluation and that, if he decided to do
so, anything he said would be shared with law enforcement and the district
attorney’s office. Thus, while the detectives had previously told Mendoza
that his evaluation with Dr. Rogers would be private, the record shows Dr.
Rogers clearly disavowed him of this, when she stated there was no “private
doctor/patient relationship” between them and nothing he said would remain
“confidential.”
Second, we note the lack of any evidence in the record suggesting that
Dr. Rogers’s examination of Mendoza was in any way biased or “slanted,” or
that her findings and conclusions were not the result of an objective and
neutral assessment. Although Mendoza refers to Dr. Rogers as the
detectives’ “agent,” there is scant evidence in the record to support such a
finding.
Third, although Mendoza states he was suffering from a “severe mental
disorder” when he was interrogated by the detectives and evaluated by Dr.
Rogers, the record belies this assertion. As noted, Dr. Rogers determined it
was “highly likely” that Mendoza was “exaggerating his psychiatric
complaints” and he was “not experiencing memory loss that was measurable
or findable.” In addition, while hospitalized at the Indio facility just days
before the murder, Mendoza’s treating physician found him to be “organized,
linear, and goal-directed” in his “thought process”; and on discharge,
diagnosed Mendoza with “depressive disorder without psychotic features.”
(Italics added.)
Contrary to Mendoza’s assertions, there was sufficient evidence for the
court to conclude Mendoza was not suffering from a “severe mental disorder”
15
when he was interrogated and met with Dr. Rogers, but instead he was being
less than truthful about not remembering the events leading up to the
murder. This evidence also supports the conclusion Mendoza’s decision to
confess was an exercise of free will and not the result of coercive police tactics
that allegedly “exploited” his mental illness.
Fourth, we conclude Mendoza’s confession was not involuntary as a
result of false information Freeman gave about his brother also suffering
from depression, in an effort to build a rapport with Mendoza. Police may
use deceptive tactics, but “[s]o long as a police officer’s misrepresentations or
omissions are not of a kind likely to produce a false confession, confessions
prompted by deception are admissible in evidence.” (People v. Chutan (1999)
72 Cal.App.4th 1276, 1280; see People v. Thompson (1990) 50 Cal.3d 134, 167
[false claims that police had found soil samples, car tracks, and rope fibers
connecting the suspect to the murder did not invalidate confession]; People v.
Mays (2009) 174 Cal.App.4th 156, 166 [fake polygraph examination was not
likely to produce false confession when the defendant asked for the exam].)
Viewing Freeman’s statement about his brother under the totality of the
circumstances test, we cannot say this false information was likely to produce
a false confession. (See Chutan, at p. 1280 [noting that “subterfuge is not
necessarily coercive,” and that “[p]olice officers are thus at liberty to utilize
deceptive stratagems to trick a guilty person into confessing”].)
Other Interrogation Tactics Used by the Detectives
Mendoza also relies on several other “ploys” or “tactics” he contends the
detectives unlawfully employed to render his statements and confession
involuntary.
One such tactic is what Mendoza refers to as “maximization-
minimization” ploy. According to Mendoza, under this “technique the
16
interrogator convinces the suspect that his denials are futile, and his only
chance to save himself is to admit to a seemingly mitigated version of events,
which the detective proffers.” For support, Mendoza relies on In re Elias V.
(2015) 237 Cal.App.4th 568 (Elias V.).
Unlike the instant case, Elias V. involved the interrogation of a 13-
year-old juvenile who allegedly had sexually molested a three-year-old child.
(Elias V., supra, 237 Cal.App.4th at p. 571.) The Elias V. court found the
police interrogation of the juvenile to be “dominating, unyielding, and
intimidating” (id. at p. 586), and was “precisely the sort of forced-choice”
questioning “that can easily induce an adolescent . . . to falsely incriminate
himself when confronted with false evidence of his guilt.” (Id. at p. 589,
italics added.) Elias V. thus does not inform our analysis in this case.
Mendoza also contends the detectives’ statements that this was his
“last chance” to “tell the truth” were coercive. However, “ ‘mere advice or
exhortation by the police that it would be better for the accused to tell the
truth when unaccompanied by either a threat or a promise does not render a
subsequent confession involuntary. “[W]hen the benefit pointed out by the
police to a suspect is merely that which flows naturally from a truthful and
honest course of conduct,” the subsequent statement will not be considered
involuntarily made.’ ” (People v. Holloway (2004) 33 Cal.4th 96, 115
(Holloway); accord, People v. Carrington (2009) 47 Cal.4th 145, 170-172
(Carrington) [concluding an officer may extoll the psychological or moral
benefits of telling the truth]; People v. Davis (2009) 46 Cal.4th 539, 600
(Davis) [concluding an officer’s exhortation to “ ‘get it all out in the open’ ”
and to get everything “ ‘off [his] chest’ ” did not render a defendant’s
subsequent confession involuntary].)
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Nor do we find persuasive the cases Mendoza relies on to show police
coercion in making what he contends are similar types of pronouncements.
(See, e.g., Neal, supra, 31 Cal.4th at pp. 63, 68 [finding the confession of an
18-year-old defendant of limited education and low intelligence involuntary
after his interrogator deliberately violated Miranda by continuing to question
and badger the defendant, despite the defendant’s request during the
interrogation to speak with an attorney nine times and his invocation of the
right to remain silent]; United States v. Anderson (2d Cir. 1991) 929 F.2d 96,
97 [affirming the district court’s suppression of a defendant’s statement
based on a Miranda violation when, after the defendant had been Mirandized
but prior to making a statement, a government agent repeatedly told him,
“ ‘this [is] the time to talk to us, because once you tell us you want an
attorney we’re not able to talk to you and as far as I [am] concerned, we
probably would not go to the U.S. Attorney or anyone else to tell them how
much [you] cooperated with us’ ”]; and Commonwealth v. Novo (2004)
812 N.E.2d 116 [finding the defendant’s confession involuntary after his
interrogators told him at least 12 times that, if he did not give them a reason
for his conduct a jury would never hear it, thereby implicating the
defendant’s right to present a defense in a subsequent criminal trial].)
Mendoza also contends the detectives made an implied threat of
harsher punishment by stating that a jury would not believe his story about
having a blackout before Silva’s murder, and that it instead would view him
as a “monster,” or words to this effect, unless he confessed to the crime.
However, the detectives’ statements about how a jury might perceive him did
not include the possibility that he would be punished less severely if he
confessed. As noted, mere exhortation by police for a defendant to “tell the
truth,” without an express or implied promise of leniency, is not a deceptive
18
practice that renders the defendant’s attending statements involuntary. (See
Davis, supra, 46 Cal.4th at p. 600; Holloway, supra, 33 Cal.4th at p. 115; see
also Williams, supra, 49 Cal.4th at p. 444 [no impropriety by the police “in
pointing out that a jury probably [would] be more favorably impressed by a
confession and a show of remorse than by demonstrably false denials”];
accord, Carrington, supra, 47 Cal.4th at p. 174 [officers may comment on the
realities of a suspect’s position and the choices available to him, including by
informing the suspect that “full cooperation might be beneficial in an
unspecified way”]; cf. People v. Cahill (1994) 22 Cal.App.4th 296, 314 [finding
involuntary the confession of a young defendant when an investigator
provided a detailed discussion of California law and unmistakably conveyed a
clear, false message that the defendant could avoid being “tried for first
degree murder” and the death penalty if “he admitted that he was inside the
house and denied that he had premeditated the killing.”].)
Viewing these and the other statements of the detectives under the
totality of the circumstances test, we conclude they do not support Mendoza’s
claim that his confession was involuntary as a result of police coercion. (See
Neal, supra, 31 Cal.4th at p. 79 [“voluntariness does not turn on any one fact,
no matter how apparently significant, but rather on the ‘totality of [the]
circumstances’ ”].)
2. Illegal Detention
Mendoza separately contends the trial court erred in not excluding his
April 6 confession because he allegedly was not arraigned in a timely
manner.
a) Guiding Principles
The California Constitution requires arraignment of a person “without
unnecessary delay.” (Cal. Const., art. 1, § 14.)
19
Similarly, section 825 states in relevant part: “(a)(1) Except as
provided in paragraph (2), the defendant shall in all cases be taken before the
magistrate without unnecessary delay, and, in any event, within 48 hours
after his or her arrest, excluding Sundays and holidays.” Subdivision (a)(2) of
this statute further states in part: “When the 48 hours prescribed by
paragraph (1) expire at a time when the court in which the magistrate is
sitting is not in session, that time shall be extended to include the duration of
the next court session on the judicial day immediately following.”
b) Analysis
Mendoza does not dispute that under section 825 he was arraigned
within 48 hours of his arrest. The record shows he was arrested on Tuesday,
April 5, at 5:15 p.m. when the court was no longer “in session.” (See § 825,
subd. (a)(2).) Therefore, the time frame for his arraignment was extended “to
include the duration of the next court session on the judicial day immediately
following” his arrest, or Wednesday, April 6 (see ibid.); and he was in fact
arraigned on Friday, April 8.
Mendoza nonetheless claims that his arraignment was unreasonably
delayed, and that this delay was prejudicial because he should have been
arraigned on April 6, the day after his arrest. He further claims that, “but
for” the delay in his arraignment, he would not have confessed to Silva’s
murder.
There is no evidence to support Mendoza’s claim he could have been
arraigned on April 6. Mendoza’s arrest on April 5 came after the court was
closed and thus no longer “in session” within the meaning of section 825,
subdivision (a)(2), and he was not booked until well after midnight. No
evidence was presented to show the court could have included him on either
the morning or afternoon arraignment calendars on April 6. Because the
20
record is silent on this issue, any finding he could have been arraigned on
April 6 would be purely speculative. (See People v. Hord (1993) 15
Cal.App.4th 711, 725 [“ ‘Where the alleged misconduct is entirely speculative
in nature, it is settled that the denial of a constitutional right resulting in
essential unfairness must be established as a demonstrable reality, not as a
matter of speculation.’ ”].)
Mendoza also asserts his arraignment was unreasonably delayed when
the police allegedly engaged in improper investigation tactics to purposely
delay his arraignment on April 6. During the Evidence Code section 402
hearing, Freeman stated the purpose of having Dr. Rogers interview
Mendoza was to “obtain information” and to “assist in [the] investigation.”
Mendoza claims these statements establish the delay in his arraignment was
unreasonable because he confessed to the murder on April 6 during the
second interrogation. Citing among other cases People v. Pettingill (1978) 21
Cal.3d 231 (Pettingill) and People v. Powell (1967) 67 Cal.2d 32 (Powell),
Mendoza asserts that because he denied murdering Silva in his April 5th
postarrest interview, the officers were obligated to cease any further
interrogation of him, either directly or indirectly.
In Pettingill, the defendant and three companions were arrested for
burglary at 10 p.m. on a Saturday by Officer Berry of the Eureka Police
Department. The defendant was Mirandized, and, after acknowledging such
rights, refused to speak with Officer Berry. Two hours later, Berry “renewed
the interrogation of defendant at the Eureka police station. The officer
readvised defendant of his Miranda rights and ‘asked him again if he wished
to make a statement . . . .’ Again defendant replied that he did not want to
talk to the police, and he was transferred to the county jail.” (Pettingill,
supra, 21 Cal.3d at p. 235.)
21
Three days after his arrest, a detective from the Santa Barbara Police
Department initiated a third interrogation of the defendant, despite the fact
there had been no indication in the interim that the defendant had changed
his mind and wanted to talk to police and the detective knew the defendant
had twice invoked his right to remain silent. After telling the defendant that
all three of his companions had confessed to various burglaries in Santa
Barbara and had implicated him in those crimes, the detective again read the
“defendant his Miranda rights, established that he understood them, and
asked if defendant wanted to talk to him. This time defendant replied, ‘I
guess so, yeah.’ ” (Pettingill, supra, 21 Cal.3d at p. 236.) Thereafter the
defendant confessed to the burglaries.
The Supreme Court in Pettingill found the defendant’s confession
violated Miranda and his privilege against self-incrimination, and thus was
inadmissible. (Pettingill, supra, 21 Cal.3d at p. 237.) The court also rejected
the People’s argument that the defendant’s confession was sufficiently
attenuated to render the waiver valid. The court found this delay was not
“psychologically beneficial or even neutral,” but instead put more pressure on
the defendant to confess to “end his isolation from family, friends, or counsel.”
(Id. at p. 242.) It was within this context that the Pettingill court cited to
section 825 and the constitutional provisions of California law requiring “a
person arrested for or charged with crime be taken before a magistrate
‘without unnecessary delay.’ ” (Pettingill, at p. 242.)
Pettingill does not inform our analysis in this case. Unlike the
defendant there, Mendoza freely agreed to speak with the officers after
receiving Miranda warnings on April 5. He also freely agreed to speak with
22
Dr. Rogers after also receiving Miranda warnings on April 6, after she
obtained his informed consent to the examination.5
In addition, Pettingill is also factually distinguishable because in the
instant case the officers brought Mendoza back to the police station to meet
with Dr. Rogers as a result of mental health complaints he raised during the
previous night’s interrogation, including expressing suicidal ideation,
following his arrest that same night at a mental health hospital where he had
been undergoing treatment for about two weeks. The officers also knew that
just days prior to Silva’s murder, Mendoza had been hospitalized for about
two weeks, after being placed on an involuntary hold due to similar mental
health concerns; and that in the days leading up to the homicide, he had
informed both Silva and Ivan of his intent to commit suicide.
Under these circumstances, we cannot say it was unreasonable or
improper for the officers to have Mendoza evaluated by Dr. Rogers on April 6
to address his mental health issues. Thus, Mendoza has failed to show “there
was an essential connection between the [alleged] illegal detention and
admissions of guilt,” or that his will was overcome when he was asked to
speak with Dr. Rogers and then confessed. (See People v. Richardson (2008)
43 Cal.4th 959, 991, superseded by statute on another ground as stated in
People v. Nieves (2021) 11 Cal.5th 404, 509.)
In any event, even assuming the delay in Mendoza’s arraignment was
unreasonable, this is merely one of many factors we must consider in
5 For reasons similar to Pettingill, we find Powell inapposite. There, the
Supreme Court found the incriminating statements of the defendants were
inadmissible after they were held in custody for three days prior to
arraignment, were subjected to repeated interrogations, and (pre-Miranda)
were not adequately warned of their right to remain silent and the right to
counsel. (Powell, supra, 67 Cal.2d at pp. 58-60.)
23
determining whether Mendoza’s confession was voluntary. (See People v.
Thompson (1980) 27 Cal.3d 303, 329 (Thompson) [recognizing “[a] delay in
arraignment is treated ‘as only one of the factors to be considered in
determining whether the statement was voluntarily made’ ”].) We cannot say
any purported delay in Mendoza’s arraignment rendered his confession
involuntary, particularly in light of the fact that, after being given Miranda
warnings before both of his interrogations on April 5 and 6, he did not invoke
any such rights including the right to remain silent, but instead freely spoke
with the detectives and Dr. Rogers. Under these circumstances, even if
section 825 were violated, that would not render his confession involuntary.
(See Thompson, at p. 309.)
B. Admission of the Detectives’ Statements During the Interrogations
1. Events Before Trial
After the court found Mendoza’s confession admissible, his counsel
complained that certain statements by the detectives during the videotaped
interrogations were objectionable. The court suggested the parties review the
videotape (and accompanying transcript) and attempt to reach agreement on
whether to redact any material before it ruled on any specific objections.
The parties met and conferred and trial counsel thereafter made eight
objections to the April 5 interrogation, all of which involved statements by
the detectives that Silva had a four-year-old daughter. Counsel argued these
statements were irrelevant and highly prejudicial. The prosecutor disagreed,
arguing these statements were relevant and not unduly prejudicial, and were
not to be considered for the truth of the matter asserted but rather only for
Mendoza’s “response[s] to the [detectives’] investigatory and interviewing
techniques.” The court agreed with the People, ruling: “In all instances, the
Court does not feel that it is more prejudicial than it is probative. It places a
24
lot of the defendant’s answers in context. Most of it is clearly techniques on
the part of the officers to try to get Mr. Mendoza to discuss what happened,
and I think the jury would see it that way.”
2. Events During Trial
Outside the presence of the jury, trial counsel renewed his objection to
a statement by one of the detectives during the interrogation about Silva
having a young daughter. Claiming the remark was not only unduly
prejudicial but also constituted inadmissible hearsay, counsel asked the court
to admonish the jury that all questions and statements by the detectives
throughout the interrogations were not evidence. The court took the matter
under submission, noting it had never “admonished a jury with regard to
questions and/or statements made by an investigator during the course of
[his or her] interview with the suspect.”
The following day, the court stated it would not admonish the jury as
trial counsel had requested, but instead would give counsel “as much time
and as much leeway” as he needed in questioning Freeman “to clarify for the
jury what is accurate, what isn’t accurate, [and] what is a tactic” that was
used during Mendoza’s interrogations. When counsel again suggested that
an “easy solution to the problem” was for the court merely to admonish the
jury that all of the detectives’ questions and remarks were not evidence, the
trial court responded, “It would be easy to do that, but, also, it may be
confusing.”
The record shows during cross-examination, Freeman was asked a
series of questions about the interrogations. He admitted at some points
giving Mendoza false information, and questioning Mendoza using such
information. Thereafter, the court agreed to admonish the jury regarding
Freeman’s statements that they had heard from others that Silva felt
25
Mendoza was “ ‘suffocating’ ” her in their relationship; and that Mendoza’s
ex-wife believed he was responsible for the murder (or words to that effect).
The court admonished the jury as follows:
“Ladies and gentlemen, we did hear a videotape of an
interview that was conducted with Mr. Mendoza. One of the
interviews was with regard to an interview on April 5th.
During the course of the interview, there were certain
statements that were made by Investigator Freeman to Mr.
Mendoza. Certain of those statements are not being admitted
for the truth contained in the statement, but only its effect on
Mr. Mendoza and his answer. Those statements are the
following:
“During the course of the interview, Investigator Freeman
indicated that he had spoken to numerous people that [Silva]
told that she got flowers delivered to her and that she told a
person right next to her, ‘This guy’s suffocating me. I’m not
into him anymore.’ That is not being admitted for the truth
contained in that statement, but only its effect on Mr.
Mendoza, if any.
“During the course of the interview, there was also a portion
in the interview in which Investigator Freeman indicated that
he had spoken to Mr. Mendoza’s ex[-wife], that the ex[-wife]
also said that some of the things that Mr. Mendoza did or
showed to [Silva], that he showed to her, and that she
absolutely believes that he did that. That, also, is not being
admitted for the truth contained in the statement from Mr.
Mendoza’s ex[-wife], but only its effect on Mr. Mendoza, if
any.”
3. Guiding Principles
Under Evidence Code section 350, “[n]o evidence is admissible except
relevant evidence.” “ ‘Relevant evidence’ means evidence, including evidence
relevant to the credibility of a witness . . . , having any tendency in reason to
prove or disprove any disputed fact that is of consequence to the
determination of the action.” (Evid. Code, § 210.) A trial court may not
26
admit irrelevant evidence, but it has broad discretion in determining whether
evidence is relevant. (People v. Babbitt (1988) 45 Cal.3d 660, 681.) “When an
objection to evidence is raised under Evidence Code section 352, the trial
court is required to weigh the evidence’s probative value against the dangers
of prejudice, confusion, and undue time consumption. Unless these dangers
‘substantially outweigh’ the probative value, the objection must be
overruled.” (People v. Cudjo (1993) 6 Cal.4th 585, 609 (Cudjo).)
“ ‘Prejudice,’ as used in Evidence Code section 352, is not synonymous
with ‘damaging.’ [Citation.] Rather, it refers to evidence that uniquely tends
to evoke an emotional bias against the defendant as an individual, and has
little to do with the legal issues raised in the trial.” (People v. McCurdy
(2014) 59 Cal.4th 1063, 1095.) “A trial court’s exercise of discretion in
admitting or excluding evidence is reviewable for abuse [citation] and will not
be disturbed except on a showing the trial court exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
4. Analysis
We conclude the trial court did not abuse its discretion when it initially
overruled Mendoza’s eight objections to the detectives’ statements about
Silva having a young daughter. These statements along with the others by
the detectives were properly admitted for the nonhearsay purpose of giving
context to Mendoza’s responses, if any, during the interrogations. (See People
v. Maciel (2013) 57 Cal.4th 482, 524 (Maciel) [concluding that, contrary to the
defendant’s assertion, “the officers’ statements that defendant had ‘set . . . up’
the murders in this case” “served the nonhearsay purpose of giving context to
defendant’s responses.”].)
27
Moreover, we conclude the probative value of these statements was not
substantially outweighed by the possibility their admission would be unduly
prejudicial to Mendoza. (See Cudjo, supra, 6 Cal.4th at p. 609.) We note that
during the interrogations Mendoza himself talked about Silva having a
daughter, including when he confessed to the murder and said there was
nothing he could do to bring Silva “back” for her.
We also conclude the trial court properly exercised its broad discretion
when it refused to admonish the jury that all of the detectives’ statements
during the interrogations were not evidence. As noted, their statements
neither constituted inadmissible hearsay nor were they unduly prejudicial.
(See Maciel, supra, 57 Cal.4th at p. 524; Cudjo, supra, 6 Cal.4th at p. 609.)
And, we agree with the court that such an instruction could have been
“confusing”; that the jury, in any event, would have understood the
detectives’ statements in the context of which they were made—to obtain
information; and therefore, that it was not reasonably likely the jury would
have considered any such statements as bearing on the issue of guilt,
particularly after Freeman admitted on cross-examination using various
tactics—including giving false information—to get Mendoza to talk. (See
Maciel, at p. 524.)6
C. Substantial Evidence Supports the Lying-in-Wait Special
Circumstance
The prosecution presented two theories of Mendoza’s guilt of first
degree murder: premeditated, deliberate murder; and murder by means of
6 In light of our decision on the merits of this issue, we find it
unnecessary to address Mendoza’s contention that he received ineffective
assistance based on his counsel’s failure to object to these and other
statements by the detectives during the playback of the videotaped
interrogation.
28
lying in wait. As noted, Mendoza was also charged with the special
circumstance of lying-in-wait. (§ 190.2, subd. (a)(15).) The jury found
Mendoza guilty of first degree murder without indicating the theory, and, as
noted, found true the special circumstance of lying in wait.
Mendoza contends the testimony of Eduardo F., Silva’s neighbor,
establishes that Mendoza was not lying in wait when he killed Silva.
According to Mendoza, the gap of about 30 seconds between the sounds of a
man and a woman arguing and a woman screaming, ostensibly when the
attack commenced, meant there was no evidence of a “surprise attack on an
unsuspecting victim,” as required by lying-in-wait murder and the special
circumstance.
1. Standard of Review
In assessing the sufficiency of the evidence supporting a criminal
conviction, this court must “ ‘examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial
evidence—evidence that is reasonable, credible, and of solid value—such that
a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.’ ” (People v. Guerra (2006) 37 Cal.4th 1067, 1129.) “In determining
whether a reasonable trier of fact could have found [the defendant] guilty
beyond a reasonable doubt, we presume in support of the judgment ‘ “the
existence of every fact the trier could reasonably deduce from the
evidence.” ’ ” (People v. Nelson (2016) 1 Cal.5th 513, 550.) “When the
circumstances reasonably justify the jury’s findings, a reviewing court’s
opinion that the circumstances might also be reasonably reconciled with
contrary findings does not warrant reversal of the judgment.” (People
v. Mendoza (2011) 52 Cal.4th 1056, 1069 (Mendoza).)
29
In reviewing for substantial evidence, “[w]e neither reweigh the
evidence nor reevaluate the credibility of witnesses.” (People v. Jennings
(2010) 50 Cal.4th 616, 638.) “Resolution of conflicts and inconsistences in the
testimony is the exclusive province of the trier of fact.” (People v. Young
(2005) 34 Cal.4th 1149, 1181.) “Moreover, unless the testimony is physically
impossible or inherently improbable, testimony of a single witness is
sufficient to support a conviction.” (Ibid.)
2. Guiding Principles
“The requirements of lying in wait for first degree murder
under . . . section 189 are ‘slightly different’ from the lying-in-wait special
circumstance under . . . section 190.2, subdivision (a)(15). [Citation.] . . . We
focus on the special circumstance because it contains the more stringent
requirements. [Citation.] If, as we find, the evidence supports the special
circumstance, it necessarily supports the theory of first degree murder. [¶]
The lying-in-wait special circumstance requires ‘an intentional murder,
committed under circumstances which include (1) a concealment of purpose,
(2) a substantial period of watching and waiting for an opportune time to act,
and (3) immediately thereafter, a surprise attack on an unsuspecting victim
from a position of advantage. . . .’ [Citations.] ‘The element of concealment is
satisfied by a showing “ ‘that a defendant’s true intent and purpose were
concealed by his actions or conduct. It is not required that he be literally
concealed from view before he attacks the victim.’ ” ’ ” (People v. Carpenter
(1997) 15 Cal.4th 312, 388, (Carpenter); see People v. Cage (2015) 62 Cal.4th
256, 278 (Cage) [noting the “ ‘lying-in-wait special circumstance requires
intent to kill, while lying-in-wait murder requires only a wanton and reckless
intent to inflict injury likely to cause death,’ ” and therefore, “[w]here the
30
evidence supports the special circumstance, it necessarily supports the theory
of first degree murder”].)
“ ‘We have explained the elements of the lying-in-wait special
circumstance as follows. “ ‘ “The element of concealment is satisfied by a
showing ‘ “that a defendant’s true intent and purpose were concealed by his
actions or conduct. It is not required that he be literally concealed from view
before he attacks the victim.” ’ ” [Citation.]’ ” [Citation.] As for the watching
and waiting element, the purpose of this requirement “is to distinguish those
cases in which a defendant acts insidiously from those in which he acts out of
rash impulse. [Citation.] This period need not continue for any particular
length ‘ “of time provided that its duration is such as to show a state of mind
equivalent to premeditation or deliberation.” ’ [Citation.]” [Citation.] “The
factors of concealing murderous intent, and striking from a position of
advantage and surprise, ‘are the hallmark of a murder by lying in wait.’ ” ’ ”
(Cage, supra, 62 Cal.4th at p. 278.)
3. Analysis
Mendoza does not argue there is a lack of substantial evidence to
support the jury’s findings that he “intended to kill” Silva, or its findings on
the elements of “concealment of purpose” and “watching and waiting” for
purposes of lying-in-wait. (See Cage, supra, 62 Cal.4th at p. 278.) And for
good reason; based on the evidence from his confession summarized ante,
substantial evidence supports each of these findings. Instead, he contends
there is no substantial evidence to support the finding he launched a
“surprise attack on an unsuspecting victim.” We disagree.
First, Mendoza himself stated that he did not say anything to Silva,
much less that they had argued as Eduardo testified, when he ran up to her
from his place of hiding and, wearing all black clothing and a black face
31
covering, attacked her in the darkness at about 5:00 a.m., after she had
exited her car to unlock the driveway gate. Mendoza also stated that Silva
only cried out for her mother about three times as he attacked; and that he
was not even sure Silva recognized him as her attacker, given it was dark
and his face was covered. From this evidence, a rational jury could find that
Mendoza “made a surprise attack” on Silva “from a position of advantage.”
(See Cage, supra, 62 Cal.4th at p. 278.)
That Eduardo heard arguing between a man and woman just seconds
before hearing a loud scream suggests at most a conflict in the evidence
regarding whether Mendoza “surprised” Silva. As a court of review, we do
not reweigh the evidence or the credibility of the witnesses and make new or
contrary findings if the jury’s findings are supported by substantial evidence,
which, as we have found, is the case here. (See Mendoza, supra, 52 Cal.4th at
p. 1069.)
Second, even crediting Eduardo’s testimony that there was some
arguing between Mendoza and Silva about 30 seconds before he heard Silva
scream, a rational jury could nonetheless find that Mendoza’s attack
“surprised” Silva. For one thing, Eduardo could not recall what was said
during the argument, and thus, whether Silva even recognized Mendoza as
her attacker. For another thing, the attack followed within seconds after the
arguing, and the attack occurred inside a locked gate, which Deputy Klemme
estimated was about six to eight feet tall. A rational jury could deduce from
this evidence that Silva was startled when confronted by Mendoza,
particularly given the early hour of the attack, and that his actions “met the
requirement of an immediate attack on unsuspecting victim[ ] from a position
of advantage.” (Cage, supra, 62 Cal.4th at p. 280 [noting a “several minute[ ]”
delay between the time the defendant used a ruse to persuade the victim to
32
open the front door and the time he shot her and another occupant of the
house supported not only the watching and waiting element of lying in wait,
but also the “surprise” element of this special circumstance]; contra, People v.
Thomas (1945) 25 Cal.2d 880, 889 [reversing a first degree murder conviction
based on the theory of lying in wait because the evidence conclusively
established that the defendant walked up and confronted his wife, whom he
believed was cheating on him, with no attempt whatsoever to conceal his
attack against her, and which attack, the court found, arose out of “hot
anger” and occurred “without reflection”].)
Because substantial evidence supports the jury’s true finding on the
lying-in-wait special circumstance, which has more stringent requirements
than lying-in-wait first degree murder, by necessity we also reject his claim
there is insufficient evidence to support his first degree murder conviction
based on this same theory. (See Cage, supra, 62 Cal.4th at p. 278 [“[w]here
the evidence supports the special circumstance, it necessarily supports the
theory of first degree murder”]; Carpenter, supra, 15 Cal.4th at p. 388
[same].)
D. Refusal to Excuse a Prospective Juror
Mendoza next contends the court erred when it refused during voir dire
to excuse a retired superior court judge for cause. He further contends this
error was compounded because the court required him to exercise a
peremptory challenge in front of the remaining jury pool, despite his request
the prospective juror be privately excused.
1. Additional Background
During voir dire, one of the prospective jurors identified himself as a
retired judge from Riverside County. The retired judge nonetheless stated he
could be fair and impartial if left on the jury. The trial judge disclosed the
33
retired judge had been his former supervisor and mentor. It appears neither
the trial judge nor the retired judge nor the parties recalled that the retired
judge had actually presided over Mendoza’s preliminary hearing about three
years earlier.
Outside the presence of the prospective jurors, trial counsel asked the
court to excuse the retired judge for cause. When the court found there was
no reason to do so (again, not realizing the retired judge had presided over
Mendoza’s preliminary hearing), counsel stated he was willing to use one of
his several remaining peremptory challenges to excuse the retired judge, but
asked that it be done privately to avoid any potential prejudice to Mendoza.
The court rejected this request, ruling: “I don’t think that can be
avoided, unfortunately. Retired Judge E[.], he is a citizen and, you know,
hasn’t demonstrated any basis to excuse him for cause. So I think at this
point we have to leave it to you folks to decide who is a good fit and exercise
your peremptories based on, obviously, reasons outside of . . . biases and
things of that nature concerning . . . issues you can’t take into consideration.
But beyond that, I think I have to leave it up to you guys.”
When the proceedings recommenced, the court excused three
prospective jurors for cause, and then the parties alternated in exercising two
of their peremptory challenges, including one by the defense excusing the
retired judge from the panel.
2. Guiding Principles
Code of Civil Procedure section 225, which also applies to criminal
cases, provides for challenges by a party to individual potential jurors for
cause on certain grounds. It states: “A challenge is an objection made to the
trial jurors that may be taken by any party to the action, and is of the
following classes and types: [¶] . . . [¶] (b) A challenge to a prospective juror
34
by either: [¶] (1) A challenge for cause, for one of the following reasons: [¶] (A)
General disqualification—that the juror is disqualified from serving in the
action on trial. [¶] (B) Implied bias—as, when the existence of the facts as
ascertained, in judgment of law disqualifies the juror. [¶] (C) Actual bias—the
existence of a state of mind on the part of the juror in reference to the case, or
to any of the parties, which will prevent the juror from acting with entire
impartiality, and without prejudice to the substantial rights of any party. [¶]
(2) A peremptory challenge to a prospective juror.” (Code Civ. Proc., § 225.)
Code of Civil Procedure section 229 sets forth the only causes for which
a potential juror may be challenged for implied bias, including, as relevant
here: “(e) Having an unqualified opinion or belief as to the merits of the
action founded on knowledge of its material facts or some of them.” (Code
Civ. Proc., § 229, subd. (e).)
“Assessing the qualifications of jurors challenged for cause is a matter
falling within the broad discretion of the trial court. [Citation.] The trial
court must determine whether the prospective juror will be ‘unable to
faithfully and impartially apply the law in the case.’ ” (People v. Weaver
(2001) 26 Cal.4th 876, 910 (Weaver).) A trial court is in the best position to
determine whether a potential juror is sincerely willing and able to listen to
the evidence and the instructions, and render an impartial verdict based on
that evidence and those instructions. (People v. Hillhouse (2002) 27 Cal.4th
469, 488-489 (Hillhouse).) “A reviewing court must allow the trial court to
make this sort of determination. The trial court is present and able to
observe the juror itself. It can judge the person’s sincerity and actual state of
mind far more reliably than an appellate court reviewing only a cold
transcript.” (Ibid.)
35
3. Analysis
We conclude the court did not abuse its discretion when it refused to
excuse the retired judge for cause. First, it is clear from the record that the
trial judge did not know, nor did the retired judge and/or the parties recall,
that about three years earlier the retired judge had presided over Mendoza’s
preliminary hearing. Importantly, that was never disclosed to prospective
jurors during voir dire. Absent such knowledge, we cannot say the court
abused its discretion when it found the retired judge could be fair and
impartial. (See Hillhouse, supra, 27 Cal.4th at pp. 488-489; Weaver, supra,26 Cal.4th at p. 910.)
Second, in light of the information then available, the court could
reasonably believe the retired judge could decide the case based on the
evidence and instructions presented at trial and provide Mendoza a fair trial.
The trial court was in a far better position than this court to determine the
actual states of mind of the potential jurors, including the retired judge,
because of its ability to directly view them and hear their statements on voir
dire. (See Hillhouse, supra, 27 Cal.4th at pp. 488-489.)
Mendoza nonetheless contends the court erred by not allowing trial
counsel to privately exercise a peremptory challenge which, he further
contends, prejudiced him in front of the remaining jury pool. We note,
however, that the retired judge himself stated during voir dire that he had
never sat on a jury, adding, “Big surprise, huh?” and, “I have a lot of what I
consider to be close friends that are judges, attorneys. And then I have a lot
of people that I am acquainted with that have appeared before me.” Thus,
the potential prejudice to Mendoza was minimal if nonexistent because the
retired judge himself recognized that, although believing he was qualified to
sit as a juror in this case, it was unlikely he would remain on the panel.
36
Finally, even assuming the court erred in denying Mendoza’s challenge
for cause to the retired judge and/or in refusing to allow him to exercise his
peremptory challenge privately, we would nevertheless conclude Mendoza
has not carried his burden to show he was denied a right to a fair and
impartial jury. (People v. Crittenden (1994) 9 Cal.4th 83, 121 [“If a defendant
contends that the trial court wrongly denied a challenge for cause, he or she
must demonstrate that the right to a fair and impartial jury thereby was
affected,” and that to do so, “a defendant must establish that he or she
exercised a peremptory challenge to remove the juror in question, exhausted
the defendant’s peremptory challenges, and communicated to the trial court
the defendant’s dissatisfaction with the jury selected”].)
Although Mendoza was required to use one of his peremptory
challenges to excuse the retired judge from the panel, he had others
remaining, and he does not contend an incompetent juror was forced on him.
(See People v. Yeoman (2003) 31 Cal.4th 93, 114 [refusing to address the
defendant’s claim he was deprived of a fair trial when his challenge to four
prospective jurors for cause was denied and he was required to use
peremptory challenges that he eventually exhausted because the defendant
could not show prejudice, concluding “[n]one of the four prospective jurors
could possibly have affected the jury’s fairness because none sat on the
jury.”].) Nor did Mendoza then express dissatisfaction with the constitution
of the final jury. (Cf. Weaver, supra, 26 Cal.4th at p. 911.)
Here, Mendoza did not carry his burden to show that any of the final
jurors had an implied or actual bias against him. All of the jurors stated they
could be fair and impartial and make their decisions based on the evidence
and instructions presented at trial. Mendoza therefore was not prejudiced by
any alleged error by the court in either denying his challenge to the retired
37
judge for cause or requiring him to exercise a peremptory challenge in front of
the remaining jurors. (See People v. Hawkins (1995) 10 Cal.4th 920, 939,
disapproved on another ground as stated in People v. Lasko (2000) 23 Cal.4th
101, 110.)
E. Prosecutorial Error
1. Additional Background
During closing, trial counsel argued that Mendoza “is guilty of a
murder, but he’s not guilty of murder with premeditation and deliberation.
He’s not guilty of murder by lying in wait. And he’s not guilty of the special
allegation of lying in wait with the intent to kill someone by surprise. And
he’s also guilty of second-degree murder with a knife.” Later, counsel argued,
“We’re not saying that he didn’t kill her, and we’re not saying that he’s not
guilty of murder, but he did not premeditate or deliberate this murder. He
did not carefully plan any of this stuff.”
Immediately thereafter, the prosecutor in rebuttal argued: “[W]hen
you took your oath as jurors, you promised to consider all of the evidence in
this case. And in order to find for second-degree murder, you would have to
disregard so much evidence in this case, and that’s not the oath you took,
that’s not the job you do as jurors. [¶] You would have to disregard motive.
You’d have to disregard his actions. You’d have to disregard his words. Take
his confession completely out. Just completely disregard it. You would have
to take out the rational nature of how the crime was carried out. Disregard
that. You have to disregard the packed bag to go to mental health. All the
goal[-]directed behavior that made sense for how he envisioned and wanted to
commit the crime. You have to disregard his motivation to feign symptoms of
mental illness—hearing voices and psychosis—to come to a decision of
second-degree murder. Again, your job as jurors is to consider all the
38
evidence. And disregarding all these things would not be a true and trust[ed]
verdict.” (Italics added.)
Mendoza contends the prosecutor’s argument constituted prejudicial
misconduct because it suggested the jury was required to find him guilty of
first degree murder merely as a result of the oath of impartiality taken by
jurors. He further contends that, to the extent the issue is forfeited based on
his counsel’s failure to object, his counsel was ineffective.
2. Forfeiture
As a preliminary matter, we agree with the People that Mendoza
forfeited his claim of alleged prosecutorial error because he failed to “ ‘make a
timely and specific objection and ask the trial court to admonish the jury to
disregard the impropriety. [Citations.]’ ” (People v. Clark (2011) 52 Cal.4th
856, 960, quoting People v. Cole (2004) 33 Cal.4th 1158, 1201 (Cole); see also
People v. Dennis (1998) 17 Cal.4th 468, 521 (Dennis).)
However, even if Mendoza’s contention was not forfeited, we would
deny it on the merits.7
3. Guiding Principles
“A prosecutor’s misconduct violates the Fourteenth Amendment to the
United States Constitution when it ‘infects the trial with such unfairness as
to make the conviction a denial of due process.’ [Citations.] In other words,
the misconduct must be ‘of sufficient significance to result in the denial of the
defendant’s right to a fair trial.’ [Citation.] A prosecutor’s misconduct that
does not render a trial fundamentally unfair nevertheless violates California
7 In light of our decision to reach the merits of this issue, we deem it
unnecessary to decide whether Mendoza’s counsel was ineffective for failing
to object to this portion of the prosecutor’s rebuttal argument.
39
law if it involves ‘the use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury.’ ” (Cole, supra, 33 Cal.4th at p. 1202.)
Prosecutors have wide latitude during closing argument to argue
vigorously. (People v. Harrison (2005) 35 Cal.4th 208, 244 (Harrison).) We
will not reverse a conviction for prosecutorial misconduct “unless it is
reasonably probable that a result more favorable to the defendant would have
been reached without the misconduct.” (People v. Crew (2003) 31 Cal.4th 822,
839 (Crew).) “When the issue ‘focuses on comments made by the prosecutor
before the jury, the question is whether there is a reasonable likelihood that
the jury construed or applied any of the complained-of remarks in an
objectionable fashion.’ ” (Harrison, at p. 244.) We “view the statements in
the context of the argument as a whole.” (Cole, supra, 33 Cal.4th at p. 1203.)
We review de novo a defendant’s claim of prosecutorial misconduct. (People v.
Uribe (2011) 199 Cal.App.4th 836, 860.)
4. Analysis
Although perhaps inartfully stated, when viewed in context, the
prosecutor’s comment in rebuttal that the jury took an oath to consider “all
the evidence,” and therefore, should return a first degree murder conviction,
was merely a response to counsel’s argument that Mendoza did not
premeditate or deliberate when he committed the homicide. In making these
statements, the prosecutor nonetheless reminded the jury that its “job” was
to reach a “true and trust[ed] verdict” based on the entirety of the evidence.
In addition, we note the jury was specifically instructed with CALCRIM
No. 104, which states in part: “Nothing that the attorneys say is evidence.
In their opening statements and closing arguments, the attorneys will
discuss the case, but their remarks are not evidence.” We presume, in the
absence of evidence to the contrary, that the jury understands and follows
40
instructions from the trial court. (People v. Fauber (1992) 2 Cal.4th 792,
823.) We also presume that jurors treat the court’s instructions as
statements of law, and the arguments of the prosecutor as words spoken by
an advocate merely in an attempt to persuade. (People v. Thornton (2007)
41 Cal.4th 391, 441.)
In light of CALCRIM No. 104 and the vigorous argument during closing
regarding whether Mendoza was guilty of first or second degree murder, we
conclude no reasonable juror would have construed the complained-of remark
of the prosecutor as mandating he or she was required to find Mendoza guilty
of first degree murder merely based on the oath of impartiality. (See People
v. Wilson (2005) 36 Cal.4th 309, 338 [noting a court of review will not
“ ‘ “lightly infer” that the jury drew the most damaging rather than the least
damaging meaning from the prosecutor’s statements’ ”]; see also People v.
McDaniel (1976) 16 Cal.3d 156, 177 [concluding that a prosecutor’s argument
that “posed to the jury the proposition that if defendant did not commit the
crime, who did?” was not improper and noting, “that even otherwise
prejudicial prosecutorial argument, when made within proper limits in
rebuttal to arguments of defense counsel, do not constitute misconduct”]
(italics added).)
Moreover, even assuming the prosecutor’s remark was error, we further
conclude that error was not prejudicial. First, we conclude that error did not
render Mendoza’s trial fundamentally unfair. (See People v. Gionis (1995)
9 Cal.4th 1196, 1214-1215 [noting federal constitutional rights are implicated
if the prosecutor’s conduct renders the trial so fundamentally unfair that due
process is violated].) Second, given the overwhelming evidence of guilt, we
conclude it is not reasonably probable that a result more favorable to
Mendoza would have been reached absent the prosecutor’s alleged error. (See
41
Crew, supra, 31 Cal.4th at p. 839; People v. Milner (1988) 45 Cal.3d 227, 245,
disapproved on another ground as stated in People v. Sanchez (2016) 63
Cal.4th 665, 686, fn. 13.)
F. Correction of Sentencing Errors
Mendoza contends, and the People concede, that the parole revocation
restitution fine imposed and suspended by the court pursuant to section
1202.458 must be stricken because he is serving a sentence that does not
include a period of parole. (See People v. Carr (2010) 190 Cal.App.4th 475,
482, fn. 6 [noting because the defendant was serving a life sentence without
the possibility of parole, the parole revocation restitution fine, even if
suspended, is “unauthorized and must be stricken”].) We agree the parole
revocation restitution fine must be stricken.
Mendoza also contends he is entitled to 56 additional days of
presentence credit. The People also concede this issue. We agree with the
parties and conclude Mendoza should be awarded 56 additional days of
credit, based on his arrest date of April 5, 2016, and his sentencing date of
July 24, 2020 (i.e., 1572 days, and not 1516 as awarded by the trial court).
G. Fines, Fees, and Assessments
1. Restitution Fine
Mendoza contends the trial court erred in imposing the statutory
maximum $10,000 restitution fine. (See § 1202.4, subd. (b)(1).) At
sentencing, trial counsel asked the trial court to stay imposition of this fine—
8 Subdivision (a) of section 1202.45 provides: “In every case where a
person is convicted of a crime and his or her sentence includes a period of
parole, the court shall, at the time of imposing the restitution fine pursuant
to subdivision (b) of Section 1202.4, assess an additional parole revocation
restitution fine in the same amount as that imposed pursuant to subdivision
(b) of Section 1202.4.” (Italics added.)
42
as well as others, including two that, as discussed post, are the subject of the
parties’ supplemental briefing, arguing Mendoza had no ability to pay. The
record shows the trial court denied the stay, and ruled if Mendoza wanted an
ability to pay hearing, he should file a “formal” motion with “financial
services.”9
a) Guiding Principles
Section 1202.4, subdivision (b) governs restitution fines. It states in
part: “In every case where a person is convicted of a crime, the court shall
impose a separate and additional restitution fine, unless it finds compelling
and extraordinary reasons for not doing so and states those reasons on the
record. [¶] (1) The restitution fine shall be set at the discretion of the court
and commensurate with the seriousness of the offense. If the person is
convicted of a felony, the fine shall not be less than three hundred dollars
($300) and not more than ten thousand dollars ($10,000).” (§ 1202.4, subd.
(b)(1).) Subdivision (b)(2) of section 1202.4 states: “In setting a felony
restitution fine, the court may determine the amount of the fine as the
product of the minimum fine pursuant to paragraph (1) multiplied by the
number of years of imprisonment the defendant is ordered to serve,
multiplied by the number of felony counts of which the defendant is
convicted.”
Section 1202.4, subdivision (c) states: “The court shall impose the
restitution fine unless it finds compelling and extraordinary reasons for not
doing so and states those reasons on the record. A defendant’s inability to
pay shall not be considered a compelling and extraordinary reason not to
9 The record is silent regarding whether Mendoza made such a formal
request through “financial services.”
43
impose a restitution fine. Inability to pay may be considered only in
increasing the amount of the restitution fine in excess of the minimum fine
pursuant to paragraph (1) of subdivision (b).”
In the instant case, there was no showing of “compelling and
extraordinary reasons” for not imposing a restitution fine. (§ 1202.4, subds.
(b), (c).) While under section 1202.4, subdivision (c), inability to pay may be
considered when imposing restitution above the $300 minimum fine, inability
to pay alone is not determinative.
b) Analysis
Mendoza argues he does not have the ability to pay the $10,000
restitution fine because he is serving a life sentence without the possibility of
parole. However, at sentencing Mendoza did not present any evidence of his
inability to pay, despite the fact it is his burden to make this showing. (See
§ 1202.4, subd. (d); People v. Castellano (2019) 33 Cal.App.5th 485, 490 [“a
defendant must . . . contest in the trial court his or her ability to pay the
fines, fees and assessments . . . and at a hearing present evidence of his or
her inability to pay the amounts contemplated by the trial court”].)
Moreover, he was aware before sentencing that probation was recommending
imposition of the maximum restitution fine.
As the People correctly recognize, the evaluation of ability to pay must
include future ability to pay and may take into account wages that a
defendant may earn in prison. (People v. Cowan (2020) 47 Cal.App.5th 32,
49; People v. Kopp (2019) 38 Cal.App.5th 47, 96, review granted Nov. 13,
2019, S257844; accord § 1202.4, subd. (d).) Maximum monthly wages for
prison inmates range from $12 to $56, and the Department of Corrections
and Rehabilitation (Department) will deduct up to half of those wages to pay
any outstanding restitution fines. (§ 2085.5, subd. (a); Cal. Code Regs., tit.
44
15, § 3041.2, subd. (a)(1); see People v. Lowery (2020) 43 Cal.App.5th 1046,
1060.)
At the time of his sentencing, Mendoza was 41 years old, “in good
physical and mental health,” and denied having “any pre-existing physical
conditions.” Thus, despite his claim to the contrary, Mendoza’s ability to earn
prison wages while serving a life sentence without the possibility of parole
supports the tacit finding of the court of his ability to pay the maximum
restitution fine.
That the trial court did not make express findings concerning
Mendoza’s ability to pay does not mean it failed to consider this factor. (See
§ 1202.4, subd. (d) [stating in part: “Express findings by the court as to the
factors bearing on the amount of the fine shall not be required.”]; People
v. Nelson (2011) 51 Cal.4th 198, 227 (Nelson) [rejecting the defendant’s
contention the trial court erred in failing to consider ability to pay when
imposing a $10,000 restitution fine, noting that the defendant “ ‘points to no
evidence in the record supporting his inability to pay, beyond the bare fact of
his impending incarceration,’ ” and that, because “the trial court was not
obligated to make express findings concerning his ability to pay, the absence
of any findings does not demonstrate it failed to consider this factor’ ”],
quoting People v. Gamache (2010) 48 Cal.4th 347, 409 (Gamache).)
Finally, factors other than ability to pay supported imposition of the
$10,000 fine in this case. (See § 1202.4 (d) [providing a court in setting the
amount of the fine above the statutory minimum may also consider the
“seriousness and gravity of the offense and the circumstances of its
commission,” and “intangible losses” “such as the psychological harm caused
by the crime”].)
45
Here, prior to imposing the $10,000 fine, the court noted it had
presided over the trial, heard and considered the victim impact statements
from Silva’s family, and recognized there were “no less than 21 people [in the
courtroom] in support of” Silva. The court found Mendoza made the “choice”
to kill Silva; the killing was “cold,” “calculated,” “completely heartless and
undeterred”; the intent to “kill was vicious” and the killing “inhumane”; and
the killing by “lying in wait” was an act of cowardice.
In light of the seriousness of the offense, the circumstances
surrounding its commission, and the resulting psychological harm to Silva’s
family and friends as a result of her murder, and based on the formula
suggested for setting a restitution fine (see § 1202.4, subd. (b)(2) [the product
of $300 multiplied by the number of years of imprisonment of the defendant]),
we cannot say the court abused its discretion in imposing the maximum
restitution fine in this case. (See Nelson, supra, 51 Cal.4th at p. 227;
Gamache, supra, 48 Cal.4th at p. 409.)10
2. Booking and Presentence Probation Report Fees
At Mendoza’s July 2020 sentencing, the trial court also imposed a
$514.58 booking fee (Gov. Code, § 29550) and a presentence probation report
fee (former § 1203.1b, subd. (j)). While this appeal was pending, the
Governor signed Assembly Bill No. 1869 into law. Effective July 1, 2021,
newly enacted Assembly Bill No. 1869 eliminates many fines, fees, and
assessment under an array of statutes.
10 Our conclusion that Mendoza has the ability to pay the $10,000
restitution fine through prison wages also supports the tacit finding he has
the ability to pay the $40 court security fee (§ 1465.8) and the $30 criminal
conviction assessment (Gov. Code, § 70373).
46
The parties filed supplemental briefs addressing the impact of
Assembly Bill No. 1869 in this case. The People concede that any portion of
the booking and presentence probation report fees that were outstanding as
of July 1, 2021 must be vacated. Mendoza, however, appears to contend that,
because his conviction was not final when the statutory changes went into
effect, the two fees should be stricken in their entirety. We agree with the
People.
As this court recently explained in People v. Lopez-Vinck (2021)
68 Cal.App.5th 945, 953-954 (Lopez-Vinck): “Pursuant to the express terms
of [Government Code] section 6111, subdivision (a), [a defendant] is entitled
to the vacatur of that portion of the . . . fee [subject to Assem. Bill No.
1869] . . . that remains unpaid as of July 1, 2021, and to the modification of
his [or her] judgment consistent with such vacatur. Section 6111, subdivision
(a) [of the Government Code] provides not only that any costs imposed
pursuant to the listed statutory provisions that remain unpaid on and after
July 1, 2021 are ‘unenforceable and uncollectible,’ but also that ‘any portion
of a judgment imposing those costs shall be vacated.’ [Citation.] Thus, by its
express terms, [Government Code] section 6111 envisions that the referenced
costs are to be vacated, and it makes the vacatur mandatory through its use
of the word ‘shall.’ [Citation.] Although [this statute’s] reference to ‘those
costs’ is ambiguous, in that ‘those costs’ could refer to the entirety of the fee
imposed by the trial court [subject to Assem. Bill No. 1869], such that the
vacating of ‘those costs’ would eliminate the fee in its entirety, we conclude
that the statutory scheme supports interpreting the phrase ‘those costs’ as
referring only to that portion of [the] fee imposed by the court that remains
unpaid as of July 1, 2021.”
47
We find the reasoning of Lopez-Vinck persuasive and adopt it in this
case. We therefore vacate any remaining balance of the booking and the
presentence probation report fees as of July 1, 2021.
III. DISPOSITION
The unpaid balance of the $514.58 booking fee and the presentence
probation report fee outstanding as of July 1, 2021, are vacated. The $10,000
parole revocation restitution fine is stricken and Mendoza is entitled to an
award of 56 additional days of presentence custody credit. The clerk of the
superior court is directed to amend the abstract of judgment accordingly and
forward a copy of the amended abstract of judgment to the Department. As
amended, the judgment is affirmed.
HALLER, Acting P. J.
WE CONCUR:
AARON, J.
GUERRERO, J.
48