People v. Verdugo CA5 ( 2021 )

Filed 2/2/21 P. v. Verdugo CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F077101
Plaintiff and Respondent,
(Super. Ct. No. BF162018A)
v.
GABRIEL VERDUGO, JR., OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C.
Twisselman II, Judge.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General,
Clara M. Levers and Henry J. Valle, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
SEE CONCURRING AND DISSENTING OPINION
INTRODUCTION
This case arises out of a fatal shooting at a bar. The jury convicted defendant
Gabriel Verdugo, Jr. of one count of willful, deliberate and premeditated murder with
attached sentence enhancements for the personal use of a firearm in the commission of a
felony and for the personal and intentional discharge of a firearm causing great bodily
injury or death. (Pen Code., §§ 187, subd. (a), 189, subd. (a), 12022.5, subd. (a),
12022.53, subd. (d).)1 The trial court sentenced defendant to a term of 25 years to life for
first degree murder, enhanced by a consecutive term of 25 years to life for the personal
and intentional discharge of a firearm under section 12022.53, subdivision (d). Pursuant
to section 12022.5, subdivision (a), the court also imposed and stayed the upper term of
10 years for personal use of a firearm (§ 12022.53, subd. (f); People v. Gonzalez (2008)
43 Cal.4th 1118, 1129–1130). In addition, the trial court imposed the minimum
restitution fine of $300 under section 1202.4, subdivision (b)(1); a parole revocation
restitution fine of $300 under section 1202.45, subdivision (a), suspended; a court
operations assessment of $40 under section 1465.8, subdivision (a); and a court facilities
assessment of $30 under Government Code section 70373.
On appeal, defendant claims that the prosecutor misstated the law during closing
argument with respect to the issue of deliberation, trial counsel’s failure to object to the
misstatement constituted ineffective assistance of counsel, the trial court erred in its
instruction to the jury on voluntary intoxication and, cumulatively, the errors violated his
rights. Defendant also claims, pursuant to the postsentencing decision in People v.
Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), that he is entitled to relief from the fines
and assessments imposed until and unless the People demonstrate he has the ability to
pay. Finally, defendant requests correction of a clerical error in the minute order from
the sentencing hearing.
1 All further statutory references are to the Penal Code unless otherwise specified.
2.
The People agree the clerical error in the minute order requires correction, but they
otherwise dispute defendant’s entitlement to any relief on his claims.
We reject defendant’s claims of prosecutorial error, ineffective assistance of
counsel, instructional error, and cumulative error, but we order correction of the clerical
error in the minute order. With respect to defendant’s Dueñas claim, we conclude, in
accordance with our recent decision in People v. Montes (Jan. 15, 2021, F078357) ___
Cal.App.5th ___ [2021 Cal.App. Lexis 44] (Montes), that defendant did not forfeit review
of his claim and, given the undeveloped record, we remand the matter to allow the parties
to address the issues and develop the record.
FACTUAL SUMMARY2
The victim in this case, Elvis G., arrived at the El Escorpion bar in Bakersfield
around 10:45 p.m. one night in August 2015 and sat at the service counter. The manager,
Lorena G., knew Elvis from the bar. Lorena hired women to serve male customers drinks
and keep them company, and Aricema S., a friend of Lorena’s who also knew Elvis from
the bar, was working that night, along with several other new employees. Aricema and
Elvis had a friendly relationship but just began talking again that night after some sort of
falling out several days earlier, and Aricema testified that Elvis was buying another
woman drinks to make her jealous.
Ariana S., who was defendant’s girlfriend and shares two children with him, was
working that night, as was a woman named Rumor. Both were newly hired. Ariana did
not care for the job because it made her uncomfortable, and she thought about leaving
several times, telling Lorena at one point that she needed to leave because her baby was
ill. She stayed, however, and she sat with Elvis at the service counter. They talked and
he bought her some drinks. At around 12:20 a.m., Elvis grabbed Ariana’s hand and
asked her to dance. She said no and he immediately dropped her hand. Ariana testified
2 The defense rested without presenting evidence.
3.
Elvis touched her only that one time, he was fine when she said no to dancing, and he did
not act disrespectfully toward her.
Defendant arrived at the bar around 1:00 a.m. to pick Ariana up, and he handed
Lorena a business card for a marijuana dispensary and left another business card on the
bar top. He played pool with some men he appeared to know and drank some beer.
Lorena and Aricema were somewhat concerned because defendant and his friends looked
like they might have some gang involvement.
Ariana testified that at some point after defendant’s arrival, the group of women
working had an argument or discussion regarding Elvis going behind the service counter
and touching Lorena, and although Ariana did not see Elvis go behind the bar or touch
Lorena, she told the others that Lorena liked it. However, Aricema was not aware of any
complaints about Elvis, and Lorena denied that there was any argument or conversation
regarding Elvis or that he touched her. Lorena said Elvis went into the office with her for
a few minutes, but he just wanted to say good-bye. He told her he would not be seeing
her again and to be careful because the women she just hired “were not good.”
Ariana denied she told defendant that Elvis had grabbed her hand earlier and asked
her to dance, but sometime after 1:30 a.m., Lorena saw defendant and his friend, Rumor,
leave the bar. They then returned, and Lorena heard Rumor tell defendant that Elvis was
disrespectful to her and to kill him.
At approximately 1:39 a.m., defendant, along with some other men, approached
Elvis and defendant confronted him. Aricema, who was on the other side of the bar
counter from Elvis, said defendant sounded upset and asked Elvis why he was talking to
and touching defendant’s girl. Elvis looked at defendant, laughed it off, said “[w]hat the
fuck?” and “pretty much ignor[ed] him.” Aricema told defendant that Elvis was with her,
but defendant pulled a gun from his waistband, racked the slide, placed the muzzle near
Elvis’s left eye, and fired. Elvis fell to the ground and the coroner testified that he died
instantly.
4.
Evidenced by footage from various surveillance cameras, defendant left the bar
with Ariana after shooting Elvis and handed the gun to another man, who concealed it
and walked out of view. Defendant and Ariana left in his car, and he took her to her
mother’s house. Later that morning, defendant picked her up and, against her will, drove
to a motel out of town. After a few days, Ariana arranged for someone to pick her up and
take her home. She denied defendant said anything about the shooting or told her why he
shot Elvis, and she denied that he threatened her, although she conceded he had gang
connections that concerned her.
After the shooting, Lorena locked the bar and left with Aricema. A friend of
Aricema’s picked her up from Lorena’s house, and Lorena contacted a friend who is an
attorney for advice. Lorena’s friend called 911, and the two of them met sheriff’s
deputies at the bar around 3:00 a.m.
The bar had multiple surveillance cameras and defendant was quickly identified as
the suspect through the camera footage and the business cards he left behind. Defendant
was thereafter identified in a photo lineup by multiple witnesses, including Ariana, but
almost two years passed before he was located and arrested in Mexico.3
DISCUSSION
I. Prosecutorial Error
A. Background
The jury convicted defendant of willful, deliberate and premeditated murder. On
appeal, defendant argues that the prosecutor misstated the law with respect to the
definition of deliberation, reducing the prosecution’s burden of proof, and that the error
was prejudicial under any standard of review. The People contend that defendant
3 At trial, Ariana denied she saw defendant shoot Elvis or that she saw a body on the floor
when she left the bar, testifying that she “blacked out that night.” She admitted that she heard a
gunshot, however, and that she initially lied to deputies when she told them she was at the sink
and did not see the shooting. She said she realized defendant shot Elvis only after deputies
showed her the surveillance video.
5.
forfeited review of his claim because counsel failed to object at trial, the prosecutor did
not misstate the law, and even assuming error, it was harmless.
The trial court instructed the jury on first degree murder pursuant to CALCRIM
No. 521 as follows:
“The defendant is guilty of first-degree murder if the People have
proved that he acted willfully, deliberately, and with premeditation. The
defendant acted willfully if he intended to kill. The defendant acted
deliberately if he carefully weighed the considerations for and against his
choice and, knowing the consequences, decided to kill. The defendant
acted with premeditation if he decided to kill before completing the act that
caused death.
“The length of time the person spends considering whether to kill
does not alone determine whether the killing is deliberate and premeditated.
The amount of time required for deliberation and premeditation may vary
from person to person and according to the circumstances.
“A decision to kill made rashly, impulsively, or without careful
consideration is not deliberate and premeditated. On the other hand, a cold,
calculated decision to kill can be reached quickly. The test is the extent of
the reflection, not the length of time.”
Relevant to defendant’s claim of error, during closing argument, the prosecutor
relied on a yellow traffic light analogy to illustrate a rapid but deliberate and
premeditated decision; and during rebuttal the prosecutor referred to deliberation while
addressing voluntary intoxication. Placed in context, the portions of argument defendant
objects to are as follows:
“A common example that is used in describing issues of
premeditation and deliberation, making a choice, thinking about the
consequences, and being able to do it almost instantaneously, is something
that probably everyone has done at some point.
“You are driving on the road. Maybe you are late for work. You are
coming up to a traffic signal. It’s green. You think you are going to make
it, but then the light turns yellow. And you have a decision. You know you
have enough time to stop, but you are late and you want to make it. So
within an instant you make a choice. Do I slow down, play it safe, maybe
6.
be a little bit late for work, or do I risk a ticket, risk an accident, and go
through the light knowing it's going to turn red right before I go through the
intersection.
“People make those choices instantaneously. You consider the
consequences of your actions. You know the consequences of your actions,
and you make a choice. That’s how quickly premeditation and deliberation
can happen. All that is required is the ability and the amount of time to
make that type of decision, to make a decision to weigh the consequences
of the action and to make the decision to follow through with it. Clearly,
that’s what we have in this case.
“The defendant has ample time before he even approaches Elvis …
to decide what he is going to do. He has ample time to go to his car and get
a gun. He has time to go up to Elvis … and start talking to him to confront
him. He has time to hear Elvis … kind of brush him off, which is pretty
much what happens because what the defendant is saying is so ridiculous.
Because you can watch the video, and I encourage you to watch it all the
way through.” (Italics added.)
During rebuttal, the prosecutor argued:
“So you can consider the voluntary intoxication evidence, if any, to
decide whether the defendant was capable of doing that. Was the defendant
so drunk that he couldn’t have possibly realized the considerations for and
against his choice, not knowing the consequences of his choice?
“Do you really think the defendant was so drunk that he didn’t know
that shooting Elvis … in the head would kill him? Of course not. He knew
very well what was going on. He wasn’t too drunk to understand that, and
you can tell by what he does afterwards. Because he knows what he’s done
is wrong. He knew it when he did it, and he knew it immediately after.
That’s why he goes to the car, that’s why he hands off the gun, and that’s
why he flies out of that parking lot as fast as he can. Because he knows the
choices that he’s made, and he knows the consequences for them. He’s
already thought about them. He knew about it well before he acted. He’s
not too drunk to get what he is doing is the point. That’s the deliberation.
“You can also consider voluntary intoxication to determine whether
the defendant acted with premeditation which is—premeditation is deciding
to kill before completing the act that caused death. [¶] So was the
defendant so drunk that he hadn’t actually decided to kill Elvis before
pulling the trigger? There’s no reason to pull the trigger when you have the
gun against his head. He wasn’t too drunk to form the intent required for
7.
murder, the intent to kill. He wasn’t too drunk to understand the
consequences of his choice, to make decisions that led to deadly
consequences to Elvis .… The law doesn’t allow a pass for people who
have a few beers before they commit a public execution.” (Italics added.)
B. Legal Standard
The legal standard governing claims of prosecutorial error is well established.4
“Under the federal Constitution, a prosecutor’s behavior deprives a defendant of his
rights ‘when it comprises a pattern of conduct “so egregious that it infects the trial with
such unfairness as to make the conviction a denial of due process.”’” (People v.
Gamache (2010) 48 Cal.4th 347, 370–371; accord, People v. Peterson (2020) 10 Cal.5th
409, 464; People v. Hill, supra, 17 Cal.4th at p. 819.) “Conduct that falls short of that
standard ‘may still constitute misconduct under state law if it involves the use of
deceptive or reprehensible methods to persuade the trial court or the jury.’” (People v.
Gamache, supra, at p. 371; accord, People v. Peterson, supra, at p. 464; People v. Hill,
supra, at p. 819.) “‘To prevail on a claim of prosecutorial misconduct based on remarks
to the jury, the defendant must show a reasonable likelihood the jury understood or
applied the complained-of comments in an improper or erroneous manner.’” (People v.
Gamache, supra, at p. 371; accord, People v. Beck and Cruz (2019) 8 Cal.5th 548, 657;
People v. Centeno (2014) 60 Cal.4th 659, 667.)
C. Analysis
“To preserve a claim for appeal under either state or federal law, a defendant must
raise a contemporaneous objection at trial and seek a jury admonition. [Citation.] In the
absence of an objection, any claim is forfeited unless an exception applies.” (People v.
Gamache, supra, 48 Cal.4th at p. 371; accord, People v. Peterson, supra, 10 Cal.5th at
4 The terms error and misconduct are used interchangeably in California, although the
California Supreme Court recognized that “the term prosecutorial ‘misconduct’ is somewhat of a
misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A
more apt description of the transgression is prosecutorial error.” (People v. Hill (1998) 17
Cal.4th 800, 823, fn. 1.)
8.
pp. 464–465; People v. Hill, supra, 17 Cal.4th at p. 820.) As the People point out,
defense counsel did not object to the portions of closing argument now at issue on appeal
and defendant does not defend this omission based on any exception to the general rule of
forfeiture. However, because defendant advances a related claim that counsel rendered
ineffective assistance by failing to object, we elect to resolve the issue of prosecutorial
error on the merits.
Defendant argues that “[w]hether purposeful or not, the [prosecutor’s] argument
was designed to persuade the jury to disregard [his] defense that there was reasonable
doubt as to whether he deliberated. The prosecutor’s comments were not benign; they
were a calculated attempt to persuade the jury that [his] decision to put a bullet in the
chamber of his gun and fire a single shot alone was proof beyond a reasonable doubt of
deliberation.” We disagree with defendant that the prosecutor misstated the law during
closing argument, and even if we assume error for the sake of argument, it was harmless.
1. No Error
The prosecutor’s reliance on a yellow light analogy to illustrate the concept of
deliberation and premeditation was not unique. (People v. Avila (2009) 46 Cal.4th 680,
715 [rejecting prosecutorial error claim relating to yellow light analogy]; People v. Son
(2020) 56 Cal.App.5th 689, 698–700 [same]; People v. Wang (2020) 46 Cal.App.5th
1055, 1086–1087 [same]; People v. Henderson (2020) 46 Cal.App.5th 533, 548–551,
review granted Dec. 23, 2020, S265172 [finding prosecutorial error claim forfeited and
rejecting claim that trial counsel’s failure to object to yellow light analogy was
ineffective or prejudicial].)5 Although the prosecutor used the terms “almost
instantaneously” and “within an instant,” viewed in context, the prosecutor clearly argued
that killing with premeditation and deliberation is similar to running a yellow light in that
5 Review was granted in People v. Henderson, supra, 46 Cal.App.5th 533 on another
ground.
9.
the decision or choice may be made very rapidly but after reflecting and weighing the
consequences. Critically, the argument did not have the effect of undermining the trial
court’s instruction to the jury that “defendant acted deliberately if he carefully weighed
the considerations for and against his choice and, knowing the consequences, decided to
kill.”
Further, defendant’s argument was recently considered and rejected by two
appellate courts. The Court of Appeal in People v. Wang explained, “Consistent with the
law, the prosecutor used the traffic light illustration to explain the concept of
premeditation and deliberation as a weighing of options that can happen very quickly.
(CALJIC No. 8.20 [‘“deliberate” means formed or arrived at or determined upon as a
result of careful thought and weighing of considerations for and against the proposed
course of action’]; People v. Pearson (2013) 56 Cal.4th 393, 440.) The illustration was
consistent with the law.” (People v. Wang, supra, 46 Cal.App.5th at p. 1085; accord,
People v. Son, supra, 56 Cal.App.5th at pp. 699–700.) We agree and reject defendant’s
contention that the prosecutor’s argument misled the jury into believing that an
instantaneous decision made without weighing considerations and consequences suffices
to show premeditation and deliberation.
We also reject defendant’s contention that the prosecutor’s yellow light analogy
“trivialized [the issue] to the blink of an eye.” (People v. Avila, supra, 46 Cal.4th at
p. 715 [prosecutor did not equate decision whether to stop at yellow light with cold,
calculated judgment of murder, but instead used assessment of circumstances as an
example of a judgment that is cold and calculated but quick].) Although we agree
prosecutors must exercise caution to ensure their word choice does not suggest action that
is instantaneous and without reflection, the record in this case does not support the
interpretation that the prosecutor misled the jury by trivializing or dismissing the
deliberative process required to support a finding of willful, deliberate and premeditated
murder.
10.
2. Any Error Harmless
Moreover, even if we assume for the sake of argument that the prosecutor erred,
any error was harmless. As previously stated, where, as here, an error does not rise to the
level of a due process violation by rendering the trial fundamentally unfair, we ask
whether there is a “‘a reasonable likelihood the jury understood or applied the
complained-of comments in an improper or erroneous manner.’” (People v. Gamache,
supra, 48 Cal.4th at p. 371; accord, People v. Beck and Cruz, supra, 8 Cal.5th at p. 657;
People v. Centeno, supra, 60 Cal.4th at p. 667.)
The evidence shows that after playing pool for a while, defendant left the bar with
Rumor and then returned. As they reentered, Rumor told defendant that Elvis had
disrespected her, although Lorena, Aricema and Ariana all testified that Elvis was not
disrespectful and he did not touch any of the women other than picking up Ariana’s hand
when he asked her to dance with him. Defendant approached with several other men and
confronted Elvis about “touching his girl.” Elvis did not react aggressively, did not reach
for anything, and essentially ignored defendant other than laughing and saying, “What the
fuck?” Defendant removed a gun from his waistband; racked the slide, ejecting a live
round that was recovered from the floor by law enforcement; placed the gun against
Elvis’s face; and fired one shot.6 Defendant’s actions, which amounted to a coldblooded
execution of someone who was unresisting and nonthreatening, were captured on
surveillance camera. This allowed the jury to see the crime as it occurred and to evaluate
defendant’s actions in that context.
6 During oral argument, defendant’s counsel suggested that the presence of the live round
on the floor indicated defendant did not understand how to operate the gun, undermining the
prosecutor’s theory that he acted with premeditation and deliberation. We disagree with that
interpretation of the evidence. The murder weapon was a semiautomatic handgun and Sergeant
Levig explained to the jury that if a semiautomatic handgun is racked when there is already a live
round in the chamber, the live round will be ejected. Ejection of the live round through what the
evidence shows is a routine mechanical function does not support a reasonable inference that
defendant did not know how to operate the gun.
11.
Moreover, the jury was instructed with the definition of deliberation and
premeditation, instructed that it must follow the court’s instructions to the extent the
attorneys’ comments conflicted with those instruction, and instructed that the attorneys’
remarks are not evidence. The admonitions regarding the need to follow the court’s
instructions and that the attorneys’ remarks are not evidence were repeated when defense
counsel objected during the prosecutor’s rebuttal argument. The prosecutor also
reviewed the definition of deliberation and premeditation during argument using
language that mirrored the jury instruction. We are unpersuaded that under these
circumstances, there is a reasonable likelihood the jury applied the prosecutor’s yellow
light illustration in a manner not permitted under the law. Accordingly, even if we
assume error, it was harmless.7
II. Instructional Error
A. Background
With respect to the issue of voluntary intoxication, section 29.4 provides:
“(a) No act committed by a person while in a state of voluntary
intoxication is less criminal by reason of his or her having been in that
condition. Evidence of voluntary intoxication shall not be admitted to
negate the capacity to form any mental states for the crimes charged,
including, but not limited to, purpose, intent, knowledge, premeditation,
deliberation, or malice aforethought, with which the accused committed the
act.
“(b) Evidence of voluntary intoxication is admissible solely on the
issue of whether or not the defendant actually formed a required specific
intent, or, when charged with murder, whether the defendant premeditated,
deliberated, or harbored express malice aforethought.
“(c) Voluntary intoxication includes the voluntary ingestion,
injection, or taking by any other means of any intoxicating liquor, drug, or
other substance.”
7 Our conclusions that there was no error and that any assumed error is harmless render
defendant’s ineffective assistance of counsel claim moot.
12.
The trial court instructed the jury on the issue with CALCRIM No. 625, the
pattern instruction for voluntary intoxication in homicide cases:
“You may consider evidence, if any, of the defendant’s voluntary
intoxication only in a limited way. You may consider that evidence only in
deciding whether the defendant acted with an intent to kill and whether the
defendant acted with deliberation and premeditation.
“A person is voluntarily intoxicated if he becomes intoxicated by
willingly using any intoxicating drug, drink, or other substance, knowing
that it could produce an intoxicating effect or willingly assuming the risk of
that effect.
“You may not consider evidence of voluntary intoxication for any
other purpose.” (Italics added.)
Relying on the Court of Appeal’s decision in People v. Stevenson (1978) 79
Cal.App.3d 976 (Stevenson), defendant claims that CALCRIM No. 625 misstates the law
by instructing the jury that it may consider evidence of voluntary intoxication rather than
must consider the evidence, which shifted the prosecutor’s burden of proof and violated
his right to a fair trial. He concedes he did not object to the instruction in the trial court,
but he contends that no objection was required because the error was not invited and it
affected his substantial rights. (§ 1259; People v. Delgado (2017) 2 Cal.5th 544, 572,
fn. 15; People v. Townsel (2016) 63 Cal.4th 25, 59–60.) As discussed, we reject
defendant’s claim of instructional error and, therefore, we do not reach the issue of
whether the forfeiture doctrine applies here. (People v. Johnson (2016) 62 Cal.4th 600,
639; accord, People v. Covarrubias (2016) 1 Cal.5th 838, 919.)
B. Standard of Review
We review allegations of instructional error de novo. (People v. Waidla (2000) 22
Cal.4th 690, 733; People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) “In criminal
cases, even in the absence of a request, a trial court must instruct on general principles of
law relevant to the issues raised by the evidence and necessary for the jury’s
understanding of the case.” (People v. Martinez (2010) 47 Cal.4th 911, 953.)
13.
“[I]nstructions are not considered in isolation. Whether instructions are correct and
adequate is determined by consideration of the entire charge to the jury.” (People v. Holt
(1997) 15 Cal.4th 619, 677; accord, People v. Thomas (2011) 52 Cal.4th 336, 356.) “If
the charge as a whole is ambiguous, the question is whether there is a ‘“reasonable
likelihood that the jury has applied the challenged instruction in a way” that violates the
Constitution.’” (Middleton v. McNeil (2004) 541 U.S. 433, 437 (per curiam).) Jurors are
presumed to have understood and followed the trial court’s jury instructions. (People v.
Sandoval (2015) 62 Cal.4th 394, 422.)
C. Analysis
1. No Error
At the time Stevenson was decided, California recognized the defense of
diminished capacity, under which “‘[m]alice aforethought could be negated by showing
that a person who intentionally killed was incapable of harboring malice aforethought
because of a mental disease or defect or intoxication.’” (In re Christian S. (1994) 7
Cal.4th 768, 774, quoting People v. Saille (1991) 54 Cal.3d 1103, 1110, italics added.)
The Court of Appeal concluded in Stevenson that the trial court’s multiple instructional
errors were prejudicial because the instructions failed to “proper[ly], full[y] and
complete[ly]” instruct on the issue of diminished capacity, which deprived the defendant
of “a jury trial on all the issues presented by the evidence.” (Stevenson, supra, 79
Cal.App.3d at p. 986.) Relevant to defendant’s claim in this case, the court in Stevenson
noted that on remand, former CALJIC No. 3.35, which instructed the jury it must
consider evidence of voluntary intoxication in determining whether he had specific intent,
should be given instead of CALJIC 4.21, which instructed the jury that it should consider
the evidence of voluntary intoxication. (Stevenson, supra, at p. 987.)
We find defendant’s reliance on Stevenson misplaced. The defense of diminished
capacity was abolished by the Legislature in 1981 and evidence of voluntary intoxication
is limited to the issue of whether a defendant actually formed the requisite intent.
14.
(People v. Mendoza (1998) 18 Cal.4th 1114, 1125; People v. Saille, supra, 54 Cal.3d at
pp. 1111–1112; § 29.4.) Defendant’s argument that it is error to instruct the jury it may
consider evidence of voluntary intoxication rather than it must consider the evidence was
rejected by the California Supreme Court in the context of an analogous limiting
instruction. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1225 (Hajek and Vo),
abrogated in part on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216.)
In Hajek and Vo, the defendant challenged the limiting instruction regarding
mental impairment evidence and advanced the same argument defendant does here: “the
use of ‘should’ and ‘may’ in the mental disease or defect instructions … permitted the
jury to disregard entirely his mental impairment defense.” (Hajek and Vo, supra, 58
Cal.4th at p. 1224.) The court “presume[d] the jurors were capable of reading,
understanding, and applying the instruction in this commonsense manner rather than in
[the defendant’s] hypertechnical manner,” and pointed out the “instruction was a limiting
instruction that, after referencing [the defendant’s] mental impairment evidence, told the
jury that its use was confined to determining whether [he] actually formed the requisite
mental state for the charged crimes. That is the meaning of the use of the word ‘may’ in
the instruction, as is made clear by the word ‘solely’ that follows it: ‘You may consider
such evidence solely for the purpose of determining whether [the defendant] actually
formed the mental state [sic] premeditated, deliberated which is an element of the crimes
charged .…’ (Italics added.) Thus, contrary to [the defendant’s] reading, the instruction
did not authorize the jury to disregard his mental impairment evidence.” (Id. at p. 1225.)
A similar claim was also rejected by the court in People v. Lucas, which
concluded, “It is pure speculation to believe the jury ignored certain evidence simply
because an instruction advised the jury that it ‘should’ or ‘may’ consider that evidence,
instead of commanding the jury to consider that evidence.” (People v. Lucas (2014) 60
Cal.4th 153, 291, disapproved on another ground in People v. Romero and Self (2015) 62
Cal.4th 1, 53, fn. 19.) Decisions from our high court are binding (People v. Letner and
15.
Tobin (2010) 50 Cal.4th 99, 197–198), and defendant advances no arguments that
distinguish his claim here from those previously rejected by the California Supreme
Court. No error is shown. (People v. Lucas, supra, at p. 291; Hajek and Vo, supra, 58
Cal.4th at p. 1225.)
2. Asserted Error Harmless
Although we reject defendant’s claim that CALCRIM No. 625’s use of the word
“may” is erroneous, it bears mention that the evidence of intoxication was weak in this
case. At the time of the crime, defendant was heavyset and described as large, and while
the evidence showed he drank some beer that night at the bar, the quantity is unclear.
Lorena testified she served him “[m]any” but estimated four or five when pressed and
none of the eyewitnesses testified that he appeared intoxicated. There was also no
evidence of defendant’s blood alcohol level given that he fled after the shooting and
remained at large for almost two years. The jury was able to evaluate defendant’s actions
and watch the killing via the video surveillance footage, and both parties addressed the
issue of voluntary intoxication during closing argument, informing the jury that the
evidence of intoxication was relevant to its determination whether defendant formed the
intent to kill and whether he acted with premeditation and deliberation.
Under these circumstances, the claimed ambiguity was harmless. (People v.
Nelson (2016) 1 Cal.5th 513, 548 [even assuming use of word “may” in limiting
instruction regarding mental condition was error, “[I]t is not reasonably likely the jury
would have seized upon the use of ‘may’ in the instruction as license to disregard
evidence of the effect [the defendant’s] mental condition [had] on the charged
offenses.”].) Even under the more stringent federal standard of review, we find beyond
“reasonable doubt that a rational jury would have rendered the same verdict absent the
error.” (People v. Merritt (2017) 2 Cal.5th 819, 831, citing Neder v. United States (1999)
527 U.S. 1, 18.)
16.
III. Cumulative Error
Defendant claims that cumulatively, the errors committed by the trial court
resulted in prejudice to him. “In examining a claim of cumulative error, the critical
question is whether [the] defendant received due process and a fair trial. [Citation.] A
predicate to a claim of cumulative error is a finding of error.” (People v. Sedillo (2015)
235 Cal.App.4th 1037, 1068.) We have determined there was neither prosecutorial nor
instructional error and, therefore, defendant’s claim of cumulative error necessarily fails.
(People v. Williams (2013) 56 Cal.4th 165, 201, disapproved on another ground by
People v. Elizalde (2015) 61 Cal.4th 523, 538, fn. 9; People v. Sedillo, supra, at p. 1068;
People v. Leeds (2015) 240 Cal.App.4th 822, 837.)
IV. Dueñas Claim
A. Background
As previously set forth, the trial court imposed the statutory minimum restitution
fine of $300 under section 1202.4, subdivision (b)(1); a parole revocation restitution fine
of $300 under section 1202.45, subdivision (a), suspended; a court operations assessment
of $40 under section 1465.8, subdivision (a); and a court facilities assessment of $30
under Government Code section 70373. Relying on the Court of Appeal’s decision in
Dueñas, supra, 30 Cal.App.5th 1157, defendant claims that the imposition of fines and
court assessments without a determination that he has the present ability to pay violates
his right to due process and the People bear the burden of demonstrating his ability to
pay.
Citing People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153–1154, which
involved imposition of the statutory maximum restitution fine of $10,000, the People
contend that defendant forfeited his constitutional challenge based on his failure to object
in the trial court. On the merits, they contend that his challenge to the restitution fine
should be limited to and found constitutional under the federal and state excessive fines
clauses. They further contend that Dueñas wrongly decided imposition of the restitution
17.
fine implicates a fundamental liberty interest and in the absence of a fundamental liberty
interest, the statute survives a rational basis review. Finally, they concede the court
operations and court facilities assessments implicate due process and should not be
imposed on those unable to pay, but they contend the error was harmless beyond a
reasonable doubt given defendant’s age and work history.8
In reply, defendant disputes that that restitution fine should be viewed “solely
under the lens of the excessive fines clause,” but he argues that even if so, reversal is still
required.
For the reasons set forth in our recent decision in Montes, we reject the People’s
forfeiture argument and remand the matter to the trial court for the limited purpose of
allowing defendant to raise the issue of his ability to pay the fines and court assessments,
and to make a record on those issues. (Montes, supra, ___ Cal.App.5th at p. ___ [2021
Cal.App. Lexis 44, *17–21, 23–28].)
B. Forfeiture
As we recognized in Montes, “the failure to object in the trial court generally
forfeits a claim on appeal and this principle is applicable to constitutional claims.
(§ 1259; People v. McCullough (2013) 56 Cal.4th 589, 593; In re Sheena K. (2007) 40
Cal.4th 875, 880–881.) There are exceptions to this general rule, however, and courts of
review have the discretion to consider an issue notwithstanding the failure to object.
(People v. McCullough, supra, at p. 593; In re Sheena K., supra, at p. 887, fn.7.)”
(Montes, supra, ___ Cal.App.5th at p. ___ [2021 Cal.App. Lexis 44, *15–16].)
Relevant here, “[t]he restitution statute [expressly] provides that the inability to
pay is not a ‘compelling and extraordinary reason not to impose a restitution fine[]’
(§ 1202.4, subd. (c)), but where … a trial court imposes a restitution fine above the
statutory minimum, the court may consider the defendant’s inability to pay in setting the
8 Defendant was 23 years old at the time of the crime.
18.
fine (§ 1202.4, subd. (d)).” (Montes, supra, ___ Cal.App.5th at p. ___ [2021 Cal.App.
Lexis 44, *16–17], italics added.) Because the trial court here imposed a minimum
restitution fine of $300, defendant was precluded from objecting to the fine based on his
inability to pay. (Id. at p. ___ [2021 Cal.App. Lexis 44, *17], citing § 1202.4, subd. (c).)
Additionally, “‘[r]eviewing courts have traditionally excused parties for failing to
raise an issue at trial where an objection would have been futile or wholly unsupported by
substantive law then in existence.’ (People v. Welch (1993) 5 Cal.4th 228, 237; accord,
People v. Gomez (2018) 6 Cal.5th 243, 286–287; People v. Black (2007) 41 Cal.4th 799,
810.)” (Montes, supra, ___ Cal.App.5th at p. ___ [2021 Cal.App. Lexis 44, *17–18].)
“In cases … involving the imposition of the statutory minimum restitution fine and
mandatory court assessments, the decision in Dueñas constituted a marked departure
from existing law” (id. at p. ___ [2021 Cal.App. Lexis 44, *18]), and “[g]iven the
statutory language of section 1202.4 and the state of the substantive law prior to Dueñas,
we conclude that [the] defendant did not forfeit his Dueñas claim by failing to object to
the minimum restitution fine and court assessments in the trial court” (id. at p. ___ [2021
Cal.App. Lexis 44. *21]; accord, People v. Son (2020) 49 Cal.App.5th 565, 596–597;
People v. Jones (2019) 36 Cal.App.5th 1028, 1031).9
C. Remand Appropriate Due to Undeveloped Record
As explained in Montes, “[w]here … a defendant advances a claim premised on a
significant and unforeseeable development in the law that occurred after sentencing and
9 In light of this determination, we do not consider defendant’s other arguments directed at
addressing his failure to object in the trial court: the decision in Dueñas constitutes a
clarification of existing law (Griffith v. Kentucky (1987) 479 U.S. 314, 328), the trial court failed
to exercise informed discretion under the law (People v. Leon (2016) 243 Cal.App.4th 1003,
1023), the imposition of fines and fees without an ability-to-pay determination constitutes an
unauthorized sentence (People v. Anderson (2010) 50 Cal.4th 19, 26), a challenge to the
sufficiency of evidence is not forfeited by failure to object (People v. Rodriguez (1998) 17
Cal.4th 253, 262), and certain fundamental constitutional rights may be raised in the absence of
an objection (People v. Linton (2013) 56 Cal.4th 1146, 1166).
19.
during the pendency of the appeal; there was no statutory right to object to the restitution
fine and court assessments at issue; and the record is wholly undeveloped on the issue, a
limited remand is appropriate to allow the parties to address the issue in the trial court in
the first instance.” (Montes, supra, ___ Cal.App.5th at p. ___ [2021 Cal.App. Lexis 44,
*23–24].) “Discretion to determine an appropriate fine amount rests with the trial court
and the court is free to consider, among other factors, any money received by a
defendant, be it in the form of prison wages or gifts. (People v. Potts (2019) 6 Cal.5th
1012, 1055–1056 [concluding trial court could lawfully impose $10,000 restitution fine
despite condemned inmate’s categorical ineligibility to earn prison wages and his receipt
of only occasional small gifts of money from family, and rejecting argument ‘that a fine
is automatically invalid if a defendant is unable to pay it’].)” (Id. at p. ___ [2021
Cal.App. Lexis 44, 24–25].)
We acknowledge the People’s argument that based on evidence that defendant was
employed at the time of the crime, owned a car and a cell phone, and was able to fund
flight to an out-of-town motel and then Mexico for almost two years, imposition of $370
in fines and court assessments did not “saddle [him] with a financial burden anything like
the inescapable, government-imposed debt-trap” faced by the defendant in Dueñas.
Defendant is no longer gainfully employed, however, and in the absence of any record
regarding defendant’s present and future ability to pay, the People’s position is founded
on conjecture. Defendant is serving an indeterminate life term and there is no evidence
either that he is or will be able to earn prison wages, or that he receives any monetary
gifts from friends or family. (Montes, supra, ___ Cal.App.5th at p. ___ [2021 Cal.App.
Lexis 44, *25–26].) Therefore, we cannot deem the error harmless on the present record.
(Ibid.)
V. Clerical Error in Sentencing Hearing Minute Order
Finally, the parties point out that the trial court’s minute order from the sentencing
hearing held on February 6, 2018, refers to the denial of defendant’s motion to strike his
20.
prior convictions, filed on February 1, 2018. Instead, defendant filed a motion to strike
the firearm enhancements on February 1, 2018, and it was denied on February 6, 2018.
“Any discrepancy between the judgment as orally pronounced and as recorded in
the clerk’s minutes or abstract of judgment is presumed to be the result of clerical error”
(People v. Leon (2020) 8 Cal.5th 831, 855, citing People v. Mesa (1975) 14 Cal.3d 466,
471), and we may order correction on review (People v. Mitchell (2001) 26 Cal.4th 181,
185, citing In re Candelario (1970) 3 Cal.3d 702, 705). We agree with the parties that
the reference to a motion to strike prior convictions was clerical error and we order the
trial court to correct the error in its minute order from the sentencing hearing.
DISPOSITION
This matter is remanded to the trial court to allow defendant the opportunity to
raise the issue of his ability to pay the fines, fees and assessments imposed; and if any
change to the judgment results, the trial court shall forward an amended abstract of
judgment to the appropriate authorities. The trial court shall also correct the clerical error
in the minute order from the sentencing hearing held on February 6, 2018, to reflect that
the court denied defendant’s motion to strike the firearm enhancements. The judgment is
otherwise affirmed.
MEEHAN, J.
I CONCUR:
DeSANTOS, J.
21.
POOCHIGIAN, Acting P.J., Concurring and Dissenting.
I concur with the majority opinion and the direction to correct the clerical error in
the minute order, but respectfully dissent to the decision to remand the matter for
defendant to challenge the imposition of the restitution fine and other fees and
assessments.
As explained in People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles), I believe
People v. Dueñas (2019) 30 Cal.App.5th 1157 was wrongly decided and an Eighth
Amendment analysis is more appropriate to determine whether restitution fines, fees, and
assessments in a particular case are grossly disproportionate and thus excessive. Under
that standard, the fines and fees imposed in this case are not grossly disproportionate to
defendant’s level of culpability and the harm he inflicted, and thus not excessive under
the Eighth Amendment. (Aviles, at pp. 1068–1072.)
To the extent it is argued Dueñas applies to this case, I agree with the majority
opinion that defendant did not forfeit review of the issue. Section 1202.4, subdivisions
(c) and (d) permit a party to raise an ability to pay objection when the court imposes a
restitution fine above the statutory minimum. The court imposed the statutory minimum
fine of $300, and defendant lacked the statutory ability to object to the court’s order. (Cf.
People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153–1154.)
Even if I agreed with Dueñas, I would not remand the matter, and would instead
reject defendant’s constitutional claims and find any error arising from the court’s failure
to make an ability to pay finding was harmless beyond a reasonable doubt, since
defendant has the ability to pay the fines and fees imposed in this case. (Chapman v.
California (1967) 386 U.S. 18, 24; Aviles, supra, 39 Cal.App.5th at pp. 1075‒1077;
People v. Jones (2019) 36 Cal.App.5th 1028, 1030–1031.)
“ ‘ “Ability to pay does not necessarily require existing employment
or cash on hand.” [Citation.] “[I]n determining whether a defendant has
the ability to pay a restitution fine, the court is not limited to considering a
defendant’s present ability but may consider a defendant’s ability to pay in
the future.” [Citation.] This include[s] the defendant’s ability to obtain
prison wages and to earn money after his release from custody. [Citation.]’
[Citations.]” (Aviles, supra, 39 Cal.App.5th at p. 1076.)
It can be inferred from the instant record that defendant has the ability to pay the
aggregate amount of fines and fees from probable future wages, including prison wages.
(Aviles, supra, 39 Cal.App.5th at p. 1076; People v. Douglas (1995) 39 Cal.App.4th
1385, 1397; People v. Ellis (2019) 31 Cal.App.5th 1090, 1094.)
The majority opinion observes that not all inmates are able to work, and that an
inmate’s circumstances may change while serving his or her term. While we await the
California Supreme Court’s ruling on this issue, I believe People v. Potts (2019) 6
Cal.5th 1012 (Potts) is persuasive on this particular point. The trial court in Potts ordered
a defendant convicted of capital murder to pay the statutory maximum restitution fine of
$10,000, partially based on the probation officer’s erroneous statement that a condemned
inmate would be assigned a job in prison. At the time of the hearing, the applicable
restitution statute permitted the court to consider the defendant’s inability to pay but
defendant did not object. (Id. at p. 1055.) The defendant filed a postjudgment motion for
the court to reduce the fine because of the court’s mistake and his inability to pay and
argued his own source of income in prison was limited to small financial gifts from
family and friends. The court denied the motion and found that seizing even a small part
of the defendant’s income was a minimal burden considering the incredible loss he
inflicted to the victim’s family. (Id. at pp. 1055–1056.)
Potts held the trial court abused its discretion when it imposed the fee based on the
erroneous belief that a defendant sentenced to death would be permitted to work.
However, Potts held the error was harmless beyond a reasonable doubt based on the
court’s findings when it denied the post-judgment motion to modify the fine. (Potts,
supra, 6 Cal.5th at pp. 1055, 1056.) Potts explained that the defendant’s alleged inability
to pay because he lacked a prison job would be “blunted by the fact that he would retain
at least some of the money sent to him” by family and friends. (Id. at p. 1056.) The trial
2
court was “permitted to conclude that the monetary burden the restitution fine imposed
on defendant was outweighed by other considerations,” such as the seriousness and
gravity of the offense, and the circumstances of its commission. (Id. at pp. 1056–1057.)
There is nothing in the record to show that the defendant in this case would be
unable to satisfy the total of $370 in fines and fees imposed by the court while serving his
prison term of 50 years to life, even if he fails to obtain a prison job. While it may take
defendant some time to pay the amounts imposed in this case, that circumstance does not
support his inability to make payments on these amounts from either prison wages or
monetary gifts from family and friends during his prison sentence. (See, e.g., Potts,
supra, 6 Cal.5th at pp. 1055–1057; People v. Lewis (2009) 46 Cal.4th 1255, 1321; People
v. DeFrance (2008) 167 Cal.App.4th 486, 505.)
I would order correction of the clerical errors in the minute order as identified in
the majority opinion, and otherwise affirm.
POOCHIGIAN, Acting P.J.
3