People v. Montanez CA3 ( 2022 )

Filed 12/12/22 P. v. Montanez CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C094671
Plaintiff and Respondent, (Super. Ct. No. 06F00341)
v.
JAVIER MONTANEZ,
Defendant and Appellant.
Defendant Javier Montanez was charged with murder after he fatally stabbed
Clinton Poole through the heart during a street fight. At trial, defendant claimed self-
defense, but the jury found him guilty of second degree murder. The jury also found true
that defendant used a deadly weapon (a knife) in the commission of the offense.
Defendant was sentenced to an indeterminate term of 15 years to life.
On appeal, defendant argues the trial court erred by (1) failing to instruct the jury
sua sponte on the lesser included offense of involuntary manslaughter; and (2) issuing the
pattern instruction for contrived self-defense. (CALCRIM No. 3472.) Relying on People
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v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant also argues that the trial
court erred in imposing certain fines and fees without first holding a hearing to determine
his ability to pay them. Finally, defendant argues that his counsel was ineffective in
failing to make a record of mitigating youth-related evidence in anticipation of an
eventual youthful offender parole hearing. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Following the well-established rule of appellate review, we recite the facts in the
light most favorable to the judgment, drawing all reasonable inferences in support of the
conviction. (People v. Bogle (1995) 41 Cal.App.4th 770, 775.) Additional information
relevant to the claims raised on appeal is discussed below.
A. The prosecution
On the night of January 6, 2006, teenage brothers C.G. and B.G. held a party at
their home in Galt while their parents were out of town. Among the gathered friends
were Jennifer D. and defendant.
As the party progressed, a second, uninvited group of people arrived, and an
argument ensued over the type of music being played. The argument escalated into
fighting, which then spilled out onto the street. Witnesses estimated there were 40 to 50
people involved and described the scene as being “like a riot.”
The victim, Clinton Poole, lived across the street from C.G. and B.G. On the night
of the party, Poole was home with his girlfriend, Judy, and his friend, Daniel. The three
of them were socializing on Poole’s front porch when the fighting started.
Defendant, standing on the sidewalk near Poole’s home, saw Poole watching the
fighting. Defendant said to Poole, “What the fuck are you looking at?” or something to
that effect. Defendant appeared angry and his demeanor suggested he wanted to fight.
Poole told defendant that he was disrespecting the neighborhood and needed to
leave. Defendant retorted that “it was his neighborhood and his town.” Judy heard
defendant threaten that houses were going to “get shot up” and that he was going to stab
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Poole. Defendant and a group of other men then approached Poole, jumped him, and
started beating him on his front lawn. At some point, someone yelled, “He’s got a
shank,” and the attackers backed off. Poole got up and walked toward a dirt pile in front
of his garage.
Shortly after Poole walked away, defendant chased after him. Jennifer testified
that as defendant approached Poole, defendant was holding a knife in his hands. Judy did
not recall seeing a knife in defendant’s hands, but she told the police she heard defendant
say he was going to stab Poole.
Defendant and Poole squared off in front of Poole’s garage. By this time, both
defendant and Poole were armed with knives. Jennifer jumped on defendant’s back,
causing him to momentarily drop his knife. Defendant then picked up the knife and
stabbed Poole in the chest. Poole stumbled to his front door, went inside, and locked the
door behind him.
When officers arrived at the scene, they found Poole unresponsive. There was a
knife with a “gut hook” near him. Judy told officers that the knife belonged to Poole.
The autopsy of Poole revealed that he died from a single stab wound to his chest.
The pathologist identified no other major physical injuries. The stab wound occurred on
the left side of his chest, continued through his heart, passed the spine, and exited at the
back of his chest cavity. The wound was between five and seven inches deep. The
forensic pathologist who performed the autopsy testified that it would have taken a
“significant amount of force” to inflict the stab wound. The pathologist also confirmed
that the blade that caused the lethal wound had to have been at least five inches long, and
that a spatula or putty knife with a one-inch blade could not have made the wound in
Poole’s chest.
After the incident, law enforcement officers searched for defendant for months
without success. In September of 2018, nearly 12 years after Poole’s death, officers
located defendant in Mexico, extradited him, and arrested him for Poole’s murder.
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B. The defense
Defendant, testifying on his own behalf, claimed that he killed Poole in self-
defense. He claimed that he went outside to try break up a fight. As he did so, Poole’s
friend, Daniel, attacked him. Defendant testified that he punched Daniel. At about the
same time, defendant felt “something that was pulling [his] skin” on his neck. He turned
and saw Poole screaming at him with a knife in his hand.
As defendant backed away, he felt pain and saw blood on his hand where he had
touched his neck. Defendant testified he felt dizzy and knew he needed to go to the
hospital. He went to his car and opened the door but dropped his key. As he was
searching for the key, defendant saw Daniel approaching with a knife. Defendant
grabbed a “work tool”—which he described as a “pointy blade about an inch long”—and
ran behind his car. Defendant saw two individuals coming towards him, one of whom
was carrying a knife. As defendant turned to run, Poole stabbed him in the chest and cut
his bicep. In response, defendant “jabbed [his] blade” into Poole. Thereafter, defendant
received a ride to the hospital, where he received 182 stiches to treat extensive cuts to his
back, shoulder, arm, and side.
Defendant denied that he did anything to irritate Poole, instigate a fight, or seek
revenge. He denied ever being near the dirt pile in front of Poole’s garage. He claimed
that he stabbed Poole in self-defense, although he acknowledged that he never told police
that he acted in self-defense.
Defendant admitted that he fled the country within approximately 12 hours of
being released from the hospital. Defendant claimed to have fled because he was afraid
for his life. Defendant testified that visitors at the hospital told him someone died and
that he “better watch out . . . . They’re going to try to kill you . . . .” Defendant’s mother
testified that a few days after the incident, gunshots were fired into the wall of their
family residence.
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C. Jury instructions, conviction, and sentencing
In an amended information, defendant was charged with a single count of murder
(§ 187, subd. (a)—count one), and it was further alleged that he personally used a deadly
and dangerous weapon (a knife) during the commission of the offense. (§ 12022, subd.
(b)(1).)
The trial court instructed the jury on first and second degree murder (CALCRIM
Nos. 520 and 521), voluntary manslaughter based on provocation or sudden quarrel and
heat of passion (CALCRIM Nos. 522, 570), voluntary manslaughter based on imperfect
self-defense (CALCRIM No. 571), and self-defense. (CALCRIM Nos. 505, 3471, 3472,
3474.) Defendant did not request, and the trial court did not issue, an involuntary
manslaughter instruction. (CALCRIM No. 580.)
The jury found defendant not guilty of first degree murder, but guilty of second
degree murder. The jury also found true the allegation that he personally used a knife in
the commission of the crime. The trial court sentenced defendant to 15 years to life in
prison for the murder conviction, and imposed, but stayed, the one-year deadly weapon
enhancement. Defendant filed a timely notice of appeal.
DISCUSSION
I
Instruction on Involuntary Manslaughter
Defendant contends the trial court erred in failing to instruct the jury sua sponte on
the lesser included offense of involuntary manslaughter. We find no error.
A. Sua sponte instructions and the standard of review
It is settled that a trial court has a duty to instruct the jury sua sponte on all lesser
included offenses supported by substantial evidence. (People v. Breverman (1998) 19
Cal.4th 142, 154, 162 (Breverman); People v. Steskal (2021) 11 Cal.5th 332, 345.)
Substantial evidence in this context means evidence from which a jury reasonably could
conclude the defendant is guilty of the lesser, but not the greater, offense. (Breverman,
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supra, at pp. 162, 177; People v. Vargas (2020) 9 Cal.5th 793, 827.) Although there is no
duty to instruct on a lesser included offense when the evidence supporting such an
instruction is weak or based on speculation, instruction is required when the lesser
included offense is supported by “ ‘ “evidence that a reasonable jury could find
persuasive.” ’ ” (Steskal, supra, at p. 345.) This duty arises even when the lesser
included offense is inconsistent with the defendant’s trial theories or contrary to the
defendant’s wishes. (Breverman, at pp. 162-163.)
This sua sponte instructional requirement “ ‘ “prevents either party, whether by
design or inadvertence, from forcing an all-or-nothing choice between conviction of the
stated offense on the one hand, or complete acquittal on the other.” ’ ” (People v.
Brothers (2015) 236 Cal.App.4th 24, 29-30 (Brothers).) It protects the jury’s “ ‘truth-
ascertainment function’ ” (Breverman, supra, 19 Cal.4th at pp. 199-200) by encouraging
a verdict that is neither harsher, nor more lenient, than the evidence merits. (Brothers,
supra, at p. 30.)
On appeal, we independently review the question of whether the trial court
improperly failed to instruct on a lesser included offense, considering the evidence in the
light most favorable to the defendant. (Brothers, supra, 236 Cal.App.4th at p. 30.)
B. Legal principles of murder and manslaughter
In this case, defendant was charged with a single count of murder. This accusation
triggered the trial court’s duty to instruct on murder and any lesser included offenses
supported by the evidence. (People v. Campbell (2015) 233 Cal.App.4th 148, 158-159.)
Voluntary and involuntary manslaughter are both lesser included offenses of murder.
(Campbell, supra, at pp. 159-162.)
Murder is the unlawful killing of a human being committed with malice
aforethought. (§ 187, subd. (a).) Malice may be express or implied. (§ 188, subd. (a).)
Malice is express when there is a manifested, deliberate intention to unlawfully take the
life of another. (§ 188, subd. (a)(1).)
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Implied malice has both a physical and mental component. (People v. Chun
(2009) 45 Cal.4th 1172, 1181.) The physical component requires an “ ‘ “an act, the
natural consequences of which are dangerous to life . . . .” ’ ” (People v. Knoller (2007)
41 Cal.4th 139, 143.) The mental component requires that the act be deliberately
performed by a person who “ ‘ “knows that his conduct endangers the life of another and
who acts with conscious disregard for life.” ’ ” (Ibid.) “In short, implied malice requires
a defendant’s awareness of engaging in conduct that endangers the life of another—no
more, and no less.” (Ibid.)
In general, an unlawful killing committed with malice is murder. (People v. Lee
(1999) 20 Cal.4th 47, 59.) However, even if a defendant acts with an intent to kill or
conscious disregard for life, the element of malice may be “negated” by evidence that the
defendant acted upon (1) a sudden quarrel; (2) heat of passion; or (3) an unreasonable but
good faith belief in the need for self-defense (imperfect self-defense). (Ibid.; Brothers,
supra, 236 Cal.App.4th at p. 30.) In these circumstances, a homicide committed with
malice, which would normally constitute murder, is reduced to voluntary manslaughter.
(Brothers, at p. 30.)
Involuntary manslaughter is an unlawful killing of a human without malice.
(§ 192, subd. (b).) By statute, commission of the offense requires (1) “an unlawful act,
not amounting to a felony”; or (2) “a lawful act which might produce death, in an
unlawful manner, or without due caution and circumspection.” (§ 192, subd. (b).) But
courts have defined additional, nonstatutory forms of the offense based on the predicate
acts of (3) a noninherently dangerous felony accomplished without due caution and
circumspection; or (4) an inherently dangerous assaultive felony (not amounting to felony
murder). (People v. Butler (2010) 187 Cal.App.4th 998, 1006-1007, citing People v.
Burroughs (1984) 35 Cal.3d 824, 835-836, disapproved on other grounds in People v.
Blakeley (2000) 23 Cal.4th 82, 89; People v. Bryant (2013) 56 Cal.4th 959, 966;
Brothers, supra, 236 Cal.App.4th at pp. 31-33.) For any form of involuntary
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manslaughter, the mental state required is criminal negligence. (Butler, supra, at pp.
1006-1009; People v. Skiff (2021) 59 Cal.App.5th 571, 579; Brothers, at pp. 33-34.)
C. Analysis
The question before us is whether there was substantial evidence to support an
instruction on involuntary manslaughter as a lesser included offense of murder. If so, the
court had a sua sponte duty to give that instruction.
Defendant argues that there was sufficient evidence to warrant the instruction
based on his testimony that he jabbed his knife into Poole once, inflicting a single stab
wound, because Poole was attacking him with a knife. Defendant also relies on his
testimony that he did not engage Poole in a fight, was not seeking revenge, and merely
was trying to escape to go to the hospital. Defendant contends his testimony was
corroborated by witness testimony that Poole was holding a knife when defendant
approached him.
We are not persuaded that an involuntary manslaughter instruction was warranted.
Even viewing the record in the light most favorable to defendant, the evidence showed
that defendant, after being attacked by Poole with a knife, deliberately armed himself
with a blade in anticipation of another possible knife attack. When Poole thereafter
attacked defendant, defendant stabbed Poole in the chest, and did so with the express goal
of preventing the attack. Undisputed evidence shows that defendant stabbed Poole with a
significant amount of force, enough to cause the blade to pierce through Poole’s heart,
travel past his spine, and exit the back of his chest cavity, leaving a wound five to seven
inches deep.
On this record, a reasonable jury could have found defendant guilty of murder, or
voluntary manslaughter, or could have found him not guilty of any crime. But no
reasonable jury could have concluded that defendant stabbed Poole out of mere criminal
negligence. There is no evidence to suggest that defendant’s stabbing of Poole was
accidental or that defendant did not subjectively appreciate that his conduct—plunging a
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knife five to seven inches into Poole’s chest—was dangerous to human life. (See
Brothers, supra, 236 Cal.App.4th at pp. 34-35; People v. Cook (2006) 39 Cal.4th 566,
596-597; see People v. Lasko (2000) 23 Cal.4th 101, 110.)
“[W]hen, as here, the defendant indisputably has deliberately engaged in a type of
aggravated assault the natural consequences of which are dangerous to human life, . . .
and no material issue is presented as to whether the defendant subjectively appreciated
the danger to human life his or her conduct posed, there is no sua sponte duty to instruct
on involuntary manslaughter.” (Brothers, supra, 236 Cal.App.4th at p. 35.) As in
Brothers, there is no evidence here from which a jury reasonably could conclude that
defendant was guilty only of the lesser included offense of involuntary manslaughter.
Thus, the trial court did not err in failing to instruct the jury on involuntary manslaughter.
In any event, because the jury found defendant guilty of second degree murder
instead of the lesser included offense of voluntary manslaughter, the jury necessarily
found that defendant acted with malice. Thus, any error in failing to give an involuntary
manslaughter instruction was harmless; there is no reasonable probability that giving
such an instruction would have affected the result. (Breverman, supra, 19 Cal.4th at pp.
164-165, 174, 176; People v. Lewis (2001) 25 Cal.4th 610, 646, superseded by statute on
another matter as stated in People v. Sifuentes (2022) 83 Cal.App.5th 217, 230, fn. 4
[error in failing to instruct on a lesser included offense is harmless when the jury
necessarily decides the factual questions posed by the omitted instructions adversely to
defendant under other properly given instructions]; People v. Rogers (2006) 39 Cal.4th
826, 884 [same].) This is not a case in which the jury was provided an “all or nothing
choice.” The jury simply concluded that defendant was guilty of the greater, charged
offense.
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II
Instruction on Contrived Self-Defense (CALCRIM No. 3472)
Without objection from defense counsel, the trial court instructed the jury with
CALCRIM No. 3472, the pattern instruction on contrived self-defense, which provides:
“A person does not have the right to self-defense if he or she provokes a fight or quarrel
with the intent to create an excuse to use force.”
On appeal, defendant argues the trial court committed prejudicial error by
instructing the jury with CALCRIM No. 3472, because it misstated the law under the
facts of his case. Defendant contends that because the instruction made no allowance for
an intent to use only nondeadly force, it erroneously instructed the jury that defendant
forfeited his right to self-defense if he contrived to use any force, even if the victim
escalated the situation from a nondeadly confrontation into a deadly one. The Attorney
General responds that defendant forfeited this claim by failing to object in the trial court
and, in any event, the claim lacks merit or was harmless error.
We agree that defendant technically forfeited the issue by failing to object below.
(People v. Virgil (2011) 51 Cal.4th 1210, 1260.) Nevertheless, we exercise our discretion
to reach the merits because the error arguably affected defendant’s substantial rights.
(§ 1259; People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7; People v. Hudson (2006) 38
Cal.4th 1002, 1011-1012.)
Our task is to determine whether the trial court fully and fairly instructed the jury
on the general principles of law that were necessary to an understanding of the case.
(People v. Ramos (2008) 163 Cal.App.4th 1082, 1088; People v. Hudson, supra, 38
Cal.4th at p. 1012.) We independently determine whether a jury instruction correctly
states the law. (Ramos, supra, at p. 1088.) When reviewing a supposedly ambiguous or
potentially misleading instruction, we inquire whether there is a reasonable likelihood
that the jury misconstrued or misapplied the words of the instruction. (People v. Wade
(1995) 39 Cal.App.4th 1487, 1491.) A challenged instruction may not be judged in
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isolation but must be considered in the context of the instructions as a whole and the
entire trial record. (Ibid.; People v. Lopez (2011) 198 Cal.App.4th 698, 708.) “ ‘ “[W]e
assume that the jurors are intelligent persons and capable of understanding and
correlating all jury instructions which are given.” ’ ” (Ramos, at p. 1088.) “ ‘Instructions
should be interpreted, if possible, so as to support the judgment rather than defeat it if
they are reasonably susceptible to such interpretation.’ [Citation.]” (Ibid.)
In reviewing the instructions in this case, we begin with the observation that
CALCRIM No. 3472 has been found to be a generally correct statement of law. (People
v. Enraca (2012) 53 Cal.4th 735, 761-762 (Enraca); People v. Eulian (2016) 247
Cal.App.4th 1324, 1334 (Eulian).)
In Enraca, supra, 53 Cal.4th 735, our Supreme Court reaffirmed the principle that
the right of self-defense may not be invoked by a defendant “who, through his own
wrongful conduct . . . has created circumstances under which his adversary’s attack or
pursuit is legally justified.” (Id. at p. 761.) Enraca involved a defendant who, while
participating in a gang fight, shot and killed two victims, ostensibly because he believed
the victims were about to shoot him. (Id. at pp. 742-744.) At trial, the court instructed
the jury with CALJIC No. 5.55, the predecessor to CALCRIM No. 3472, which provided:
“ ‘The right of self-defense is not available to a person who seeks a quarrel with the
intent to create a real or apparent necessity of exercising self-defense.’ ”1 (Enraca, at p.
761.) On appeal, the defendant claimed there was no factual basis for the challenged
instruction. (Ibid.) The Supreme Court disagreed, concluding the trial court’s instruction
was legally correct and supported by the record. (Id. at pp. 761-762.) Implicit in the
1 The jury also was instructed under CALJIC No. 5.17, the predecessor to
CALCRIM No. 571, that “the principle of imperfect self-defense ‘is not available, and
malice aforethought is not negated, if the defendant[,] by his unlawful or wrongful
conduct[,] created the circumstances which legally justified his adversary’s use of
force.’ ” (Enraca, supra, 53 Cal.4th at p. 761.)
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court’s conclusion is that the jury could have found the defendant, through his unlawful
conduct in assaulting the victims with a gun, created the circumstances which legally
justified the victim’s use of deadly force. (Ibid.)
While Enraca involved the CALJIC predecessor to the instruction at issue here,
the language of the two instructions is “materially the same.” (Eulian, supra, 247
Cal.App.4th at p. 1333.) Thus, in Eulian, the Second Appellate District, Division Five,
cited Enraca for the proposition that CALCRIM No. 3472 is “generally a correct
statement of law, which might require modification in the rare case in which a defendant
intended to provoke only a nondeadly confrontation and the victim responds with deadly
force.” (Eulian, at p. 1334; accord, People v. Ramirez (2015) 233 Cal.App.4th 940, 947
(Ramirez) [“CALCRIM No. 3472 states a correct rule of law in appropriate
circumstances”].) We agree.
Relying on Ramirez, supra, 233 Cal.App.4th 940, defendant argues that
CALCRIM No. 3472 misstated the law by instructing the jury, categorically, that a
person who provokes a fight or quarrel, with the intent to create an excuse to use force,
has no right of self-defense. He contends the instruction failed to inform the jury that a
person who contrives to provoke a nondeadly quarrel may regain the right to self-defense
if the adversary escalated the situation by using deadly force. Thus, he argues the
instruction erroneously prevented the jury from considering his primary defense (self-
defense) because it established that he was not entitled to use self-defense if the jury
believed he intended to provoke a fight as an excuse to use any force, even nondeadly
force. We conclude that defendant’s reliance on Ramirez is misplaced. The case is
distinguishable on its facts and its holding is not applicable here.
In Ramirez, a divided court concluded that while CALCRIM No. 3472 states a
correct rule of law in “appropriate circumstances,” it misstated the law under the facts of
that case. (Ramirez, supra, 233 Cal.App.4th at pp. 945, 947-948.) The defendants in
Ramirez were gang members who provoked a fistfight with a rival gang. (Id. at pp. 944-
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945.) At trial, one of the defendants testified that he saw a rival gang member raise an
object that looked like a gun, so the defendant pulled out his gun and fatally shot him.
(Ibid.) The trial court instructed the jury with CALCRIM No. 3472, and the prosecutor
highlighted the instruction in closing, arguing that it precluded any claim of self-defense,
even if the defendants only intended to provoke a fistfight. (Id. at pp. 945-947.) Relying
on CALCRIM No. 3471, defense counsel argued in closing that an initial aggressor’s or
mutual combatant’s right of self-defense may be revived if an opponent in a nondeadly
confrontation suddenly resorts to deadly force. (Id. at pp. 946-948.) However, in
rebuttal, the prosecution insisted that CALCRIM No. 3472 precluded an initial aggressor
from regaining the right to use deadly force in self-defense. (Ibid.) In reaching its guilty
verdict, the jury circled CALCRIM No. 3472. (Id. at p. 947.)
On these unique facts, the Ramirez majority concluded that CALCRIM No. 3472
did not accurately state the governing law because it erroneously informed the jury that
contriving to use any amount of force forfeits the right of self-defense, even if the
defendant contrived to use only nondeadly force and the adversary responded with deadly
force. (Ramirez, supra, 233 Cal.App.4th at pp. 947, 949-950, 952-953.) In effect, the
majority held, the instructions and the prosecution’s arguments misstated the law because
they made no allowance for an intent to use only nondeadly force and an adversary’s
sudden escalation to deadly violence. (Id. at pp. 945, 953.)
In a vigorous dissent, Justice Fybel argued that the jury was properly instructed.
(Ramirez, supra, 233 Cal.App.4th at p. 954 (dis. opn. of Fybel, J.)) He argued that, by its
terms, CALCRIM No. 3472 only “applies to a subset of individuals who not only
instigate a fight, but do so with the specific intent that they contrive the necessity for their
acting thereafter in ‘self-defense,’ and thus justify their further violent actions.” (Id. at p.
954 (dis. opn. of Fybel, J.).) “Hence, if the initial aggressor simply provokes a fight
using nondeadly force—without an intent to create a larger conflict for the purpose of
covering for him or her to engage in further violence in the name of self-defense—he or
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she is not precluded from claiming self-defense or imperfect self-defense in responding to
the adversary’s response of deadly force.” (Id. at p. 955 (dis. opn. of Fybel, J.).)
The Attorney General argues that the dissent in Ramirez is correct and that the
majority opinion should not be followed. We conclude, however, that it is unnecessary
for us to decide whether the majority or dissent was correct because, even under the
Ramirez majority view, this was not the “rare case” in which a modification to
CALCRIM No. 3472 was required. (See Eulian, supra, 247 Cal.App.4th at p. 1334.)
First, there was no substantial evidence to support a theory that defendant had a
right to defend himself with deadly force because, despite contriving to provoke a
nondeadly confrontation, Poole unexpectedly responded with deadly force. Under the
prosecution’s version of the evidence, it was defendant, not Poole, who created the
deadly scenario, first, by provoking a violent group beating of Poole, and then later, by
attacking Poole with a knife. In contrast, under the defense version of the evidence, it
was Poole who attacked defendant with deadly force after defendant attempted to break
up a fight. Under no theory of the evidence did defendant provoke a nondeadly
confrontation only to have Poole escalate it to a deadly one.
Second, the other jury instructions in this case—in particular, CALCRIM No.
3471—accurately informed the jury that “if the defendant used only non-deadly force and
the proponent responded with such sudden and deadly force that the defendant could not
withdraw from the fight, then the defendant had the right to defend himself with deadly
force . . . .” And, unlike Ramirez, the prosecutor here did not repeatedly argue that
CALCRIM No. 3472 “obliterated all forms of self-defense . . . if the defendant contrived
to use any force.” (Ramirez, supra, 233 Cal.App.4th at p. 950.) Rather, the prosecutor
relied on the evidence admitted at trial to demonstrate that defendant did not act in self -
defense. Thus, we conclude the trial court’s instructions as a whole adequately
communicated the revived right of self-defense if an opponent in a nondeadly
14
confrontation suddenly resorts to deadly force. There is no reasonable likelihood that the
jury misconstrued or misapplied the court’s instructions to reach a contrary conclusion.
III
Ability to Pay Hearing
At sentencing, the trial court imposed the following fines and fees: a $10,000
restitution fine (§ 1202.4, subd. (b)), a suspended $10,000 parole revocation restitution
fine (§ 1202.45), a $40 court operations assessment (§ 1465.8, subd. (a)(1)), and a $30
court facilities assessment. (Gov. Code, § 70373.) Defendant objected to the fines and
fees based on inability to pay. Although defense counsel represented that defendant had
“no means of support,” defendant did not present any evidence to support his asserted
inability to pay. The trial court overruled defendant’s objection.
On appeal, citing Dueñas, supra, 30 Cal.App.5th 1157, defendant argues that
imposition of the fines and fees without a determination of his ability to pay violated due
process. Defendant contends that remand is required for an ability to pay hearing. 2 The
Attorney General responds that Dueñas was wrongly decided and that due process does
not require any determination of a defendant’s ability to pay before imposing the punitive
restitution fines. With respect to the nonpunitive assessments, the Attorney General
concedes Dueñas applies, but argues that any error was harmless because there is nothing
in the record to suggest defendant would be unable to pay the relatively minor fees.
Because we believe Dueñas was wrongly decided, not just in regard to the restitution
fines but also the nonpunitive assessments, we decline the Attorney General’s
concession.
2 To the extent defendant intended to raise a claim based on a violation of the
Eighth Amendment right against excessive fines, we deem the argument forfeited due to
his failure to raise it in a proper heading and support it with citation to relevant authority.
(Cal. Rules of Court, rule 8.204(a)(1)(B); Opdyk v. California Horse Racing Bd. (1995)
34 Cal.App.4th 1826, 1830, fn. 4.)
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In Dueñas, the Second Appellate District, Division Seven, 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 imposing court assessments under section
1465.8 and Government Code section 70373. (Dueñas, supra, 30 Cal.App.5th at p.
1164.) The court also held that “although . . . section 1202.4 bars consideration of a
defendant’s ability to pay unless the judge is considering increasing the fee over the
statutory minimum, the execution of any restitution fine imposed under this statute must
be stayed unless and until the trial court holds an ability to pay hearing and concludes that
the defendant has the present ability to pay the restitution fine.” (Dueñas, at p. 1164.)
Since Dueñas was decided, a split in authority has developed among the appellate
courts as to whether it was correctly decided. (See People v. Taylor (2019) 43
Cal.App.5th 390, 398 [discussing split]; People v. Belloso (2019) 42 Cal.App.5th 647,
649-650, review granted Mar. 11, 2020, S259755 [same].) Our Supreme Court is now
poised to resolve this question, having granted review in People v. Kopp (2019) 38
Cal.App.5th 47, review granted November 13, 2019, S257844, which followed Dueñas in
part. (Kopp, supra, at pp. 94-97, rev.gr.)
In the meantime, we join those courts that have found Dueñas to be wrongly
decided and hold that principles of due process do not require an ability to pay hearing
before such fines and fees are imposed. (People v. Kingston (2019) 41 Cal.App.5th 272,
279-282; People v. Hicks (2019) 40 Cal.App.5th 320, 326-329, review granted Nov. 26,
2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1069; People v.
Caceres (2019) 39 Cal.App.5th 917, 928; People v. Lowery (2020) 43 Cal.App.5th 1046,
1056-1057; People v. Adams (2020) 44 Cal.App.5th 828, 831-832; People v. Pack-
Ramirez (2020) 56 Cal.App.5th 851, 860-861; People v. Cota (2020) 45 Cal.App.5th 786,
793-795.) Thus, we reject defendant’s claim that due process entitles him to an ability to
pay hearing.
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IV
Ineffective Assistance of Counsel
Defendant’s final claim is that his counsel rendered ineffective assistance by
failing to provide mitigating youth-related evidence at sentencing. We deny the
contention, without prejudice.
A. Background
Defendant was convicted of an offense that was committed when he was 25 years
of age or younger and for which the sentence is a life term of less than 25 years to life.
He therefore is eligible for release on parole at a youth offender parole hearing during his
20th year of incarceration. (§ 3051, subd. (b)(2).) At such hearing, in reviewing
defendant’s suitability for parole, the Board of Parole Hearings shall be required to give
“great weight to the diminished culpability of youth as compared to adults, the hallmark
features of youth, and any subsequent growth and increased maturity of the prisoner in
accordance with relevant case law.” (§ 4801, subd. (c); In re Brownlee (2020) 50
Cal.App.5th 720, 725.)
In People v. Franklin (2016) 63 Cal.4th 261, the California Supreme Court held
that defendants who qualify for a youth offender parole hearing must be given an
opportunity to create a record of mitigating youth-related evidence relevant to such a
hearing. (Id. at pp. 283-284.) In Franklin, because the defendant was sentenced before
the enactment of section 3051 (Franklin, supra, at pp. 269, 284), the case was remanded
to the trial court for the limited purpose of determining whether the defendant “was
afforded an adequate opportunity” to make a record of information relevant to his
eventual youth offender parole hearing and, if not, to hold a proceeding for that purpose.
(Id. at pp. 286-287.)
In In re Cook (2019) 7 Cal.5th 439 (Cook), the Supreme Court clarified that an
offender entitled to a youth offender parole hearing may seek a Franklin proceeding even
if the offender’s sentence is otherwise final. (Cook, supra, at p. 451.) The court
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explained that “[n]othing about the remand[] in Franklin . . . was dependent on the
nonfinal status of the juvenile offender’s conviction. On the contrary, ‘[t]he statutory text
makes clear that the Legislature intended youth offender parole hearings to apply
retrospectively, that is, to all eligible youth offenders regardless of the date of
conviction.’ ” (Cook, at p. 450, original italics.) The court also explained that in cases
with final judgments, the proper mechanism to request a Franklin proceeding is by filing
a motion under section 1203.01. (Cook, at pp. 446-447, 452, 458-459.)
B. Analysis
Nothing in the record before us indicates that defendant lacked an adequate
opportunity at sentencing to create a record of mitigating evidence tied to his youth.
“Rather, it appears that he merely failed—whether by choice or by inadvertence—to
exercise it.” (People v. Medrano (2019) 40 Cal.App.5th 961, 967.) Thus, defendant
forfeited his right to create a record of mitigating, youth-related evidence at sentencing.
(Id. at p. 968, fn. 9.) Anticipating the forfeiture problem, defendant asserts ineffective
assistance of counsel.
To establish ineffective assistance, a defendant must show that counsel’s
performance fell below an objective standard of reasonableness under prevailing
professional norms, and that the deficient performance was prejudicial. (Strickland v.
Washington (1984) 466 U.S. 668, 687-688, 693-694 [80 L.Ed.2d 674, 693-694, 697-698];
People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) California courts have characterized
a defendant’s burden as “ ‘difficult to carry on direct appeal,’ ” as the defendant must
overcome the strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. (People v. Mickel (2016) 2 Cal.5th 181, 198.)
Where, as here, the record sheds no light on why counsel failed to act in the manner
challenged, defendant must show that there was “ ‘ “no conceivable tactical purpose” ’
for counsel’s act or omission.” (People v. Lewis, supra, 25 Cal.4th at p. 675.)
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On this record, we cannot conclude defense counsel’s performance necessarily fell
below a standard of reasonable competence. There is a conceivable satisfactory
explanation for counsel’s failure to present youth-related evidence: counsel may have
concluded that such evidence would not be helpful or that it would be damaging to the
defendant. As our Supreme Court observed in Cook, “[d]elving into the past is not
always beneficial to a defendant.” (Cook, supra, 7 Cal.5th at p. 459.)
Additionally, defendant cannot show prejudice. Defendant admits that he has filed
a postjudgment motion in the trial court requesting a Franklin proceeding under section
1203.01, but there is no indication from either party whether the motion has been heard
or decided. Thus, defendant still has remedies available in the trial court that would
negate any possible prejudice. (People v. Medrano, supra, 40 Cal.App.5th at p. 968
[declining remand for Franklin proceeding because defendant could file motion under
section 1203.01].)
For these reasons, we shall deny defendant’s ineffective assistance claim, but
without prejudice to defendant’s right to file a new appeal (or a petition for writ of habeas
corpus) should his section 1203.01 motion be denied by the trial court.
DISPOSITION
The judgment is affirmed. The requested remand for a Franklin proceeding is
denied without prejudice to defendant’s right to file a new appeal (or a petition for writ of
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habeas corpus) should his pending motion under section 1203.01 be denied by the trial
court.
KRAUSE , J.
I concur:
RENNER , J.
I concur; as to part III, I concur in the result:
MAURO , Acting P. J.
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