People v. Urrutia CA2/8 ( 2021 )

Filed 3/30/21 P. v. Urrutia CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B305371
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA083810)
v.
DIEGO GUADALUPE URRUTIA
Defendant and Appellant.
APPEAL from the judgment of the Superior Court of
Los Angeles County. Martin L. Herscovitz, Judge. Affirmed.
Alan Siraco, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr. and David A.
Wildman, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________
INTRODUCTION
Appellant challenges his conviction of second degree
murder. On appeal, he argues: (1) the trial court failed to
instruct the jury sua sponte that a victim’s suicide can be an
intervening cause of death; (2) the omission of an intervening
cause of death instruction permitted the prosecutor to argue an
incorrect legal theory; and (3) the trial court’s imposition of fines
and fees without an ability-to-pay hearing violated his due
process rights.
We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In an Information filed February 15, 2019, appellant Diego
G. Urrutia was charged with the murder of Daniel Hernandez-
Pineda, a violation of Penal Code1 section 187, subdivision (a),
and arson, a violation of section 451, subdivision (c). Appellant
entered pleas of not guilty to both counts.
On December 3, 2019, the People moved to dismiss the
arson count. The motion was granted. Trial by jury commenced.
A. Prosecution Evidence
Appellant, his grandmother, his sister Iliana, Iliana’s two
children, and Iliana’s boyfriend Daniel resided in an apartment
located on Woodman Avenue. The apartment building had a
carport accessible by tenants from an alley on the side of the
building.
Appellant and Daniel met each other in high school and
had a “good” friendship. According to Iliana, appellant and
Daniel “started having problems” when she began dating Daniel.
1 All further undesignated references are to the Penal Code.
2
By June 2016, Iliana and Daniel had been dating for about four
years. Iliana had actually kicked appellant out of their
apartment on a previous occasion because of issues between him
and Daniel.
On June 30, 2016, Daniel drove Iliana to work; while she
worked from 5:00 a.m. until about 2:00 p.m., Daniel slept in the
car. After work, they drove home. Appellant asked Iliana and
Daniel if either of them could “take him to buy some shoes” and
Daniel agreed. The two men left around 3:00 p.m.
Appellant returned to the apartment alone, sometime
between 5:00 and 6:00 p.m. He told Iliana Daniel was “outside in
the garage.” Iliana found Daniel “outside the car, just walking
around”; he appeared “drunk” and “smelled like beer.” Iliana saw
a few open beer cans in the car. The car was backed into the
parking spot, with the front of the car facing the alley. Iliana told
Daniel to come into the apartment, but he refused.
Rafael Torres, another resident of the apartment building,
heard the couple arguing while he was walking in the alley next
to the carport. He asked Iliana to “stop yelling” and told Daniel
“to calm down and go into his car.” According to Torres, Iliana
and Daniel “were always outside yelling at each other or he was
getting yelled out. And he would spend hours and hours at a
time in his car.” Iliana was “always . . . berating him, yelling at
him.” Iliana “would call [Daniel a] homosexual. She would call
him a piece of shit. She would say horrible things.” Daniel
thanked Torres and went to his vehicle.
Daniel sat in the driver’s seat and started smoking a pipe of
methamphetamine. Iliana testified Daniel’s behavior would
change when he smoked methamphetamine. He became
“nervous” and would say he was depressed and wanted to die.
3
Iliana got angry and threw out the pipe. Daniel then threw
something at the front windshield, creating a big crack.
Heraclio Montalvo, a resident of the same apartment
building, saw Daniel and Iliana arguing as he arrived home from
work. He heard Iliana tell Daniel “he had to leave.” He referred
to Iliana and Daniel as a couple known to argue “regularly.”
Around 7:00 p.m., Maria Arriaga, the resident manager of
the apartment building, arrived home to drop off her brother and
son. When driving down the alley next to the carport, Arriaga
noticed “a couple were arguing.” Arriaga’s car window was down,
enabling her to hear what was being said. She heard Iliana
argue with Daniel, “using harsh words” and “cussing at him,”
telling him: “ ‘You motherfucker, get out of the car; otherwise,
you’ll pay for this.’ ”
After dropping off her brother and son, Arriaga parked her
car and walked toward the alley. She told Iliana “to stop fighting
with her boyfriend,” to which Iliana responded, “ ‘This son of a
bitch is going to pay for this.’ ” Iliana became “furious” and said
if Daniel “didn’t get out of the car, she was going to call her
brother.” Iliana then left and “head[ed] down the alley.”
Iliana went into the apartment and informed appellant
“what had happened, that Danny didn’t want to come in and that
he had broken the windshield.” She accused appellant of starting
fights between her and Daniel; appellant replied with, “I don’t
give a fuck.”
According to Iliana, she returned to the carport,
accompanied by appellant. Appellant appeared “furious” and
“angry.” He yelled at Daniel (sitting in the driver’s seat) to “get
the fuck out of the car” but Daniel refused. Appellant told Daniel
“if he didn’t get out of the car, he was going to go get the
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gasoline.” He told Daniel three times, “Get the fuck out of the car
before I burn you inside alive.” Daniel remained in the car and
said he was not going to leave. Appellant said, “Oh, yeah, fool?”
and went inside.
After appellant left, Daniel started crying. He told Iliana
“about how he wanted to die; that no one cared about him” and
that “he didn’t want to be here.” Iliana tried to open the car
doors, but Danny had locked them.
About two minutes later, appellant returned with a plastic
container carrying a “liquid that was greenish/yellowish.”
Appellant “grabbed” Daniel from his neck and chest area, pulled
him out of the car, and “slammed him” against the wall of the
carport. Daniel was “wobbling” and had blood all over his face.
Appellant next grabbed the plastic container and “doused”
Daniel with its liquid content. He then put Daniel in the car and
“poured the rest of what was left of the gasoline” on the car.
Iliana yelled, “Stop, Diego, stop, don’t burn him” and “don’t kill
him.”
Torres heard Daniel screaming “no, no.” He saw appellant
“throwing liquid on [Daniel] in the car.” He then saw “a spark
coming from [appellant’s] right hand” and ignite the fire.
Similarly, Arriaga saw something in appellant’s hand with “a
light or a glow”, and she watched as appellant threw “something”
into the car. She did not know whether it was “a lighter or
matches.”
Iliana testified she saw appellant “pulled out something
white,” but did not know what. She “only saw that [her] brother
had something in his hand.” Iliana also saw Daniel “opening the
glove compartment” just before the fire started, “but [didn’t]
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know what he was doing, whether he was looking for
something.”2
“Right away, everything got into a fire.” The whole car and
Daniel were engulfed in flames. Torres ran towards the burning
car, reached in, grabbed Daniel by the shirt, and pulled him out.
Montalvo, who was crossing the alley, came face to face
with Iliana, who “came out crying” and asked for his help. He
went toward the commotion and saw the car on fire inside the
carport. He saw Daniel “rolling near the wall” and “trying to put
himself out.” He also saw appellant trying to put out flames on
his own forearms and clothes. He ran to his apartment to bring
water.
A moment later, Montalvo returned with a five-gallon
container filled with water. Daniel’s clothes had burned off and
his hair was on fire. Montalvo “doused” Daniel’s hair with water.
Montalvo believed appellant appeared “indifferent” and “not
interested.” Iliana said to appellant, “What have you done?”
Appellant’s shirt was burned. He walked away from
Arriaga toward the alley. Arriaga asked appellant whether she
should call the police or the paramedics. Appellant told her,
“Don’t get involved. It’s not your problem.”
Arriaga called 911, requesting paramedics. She said that
“a couple guys” were “fighting”, a car is burning, and “somebody’s
in the car.”
2 Iliana had seen a green and black colored lighter in the car
earlier that day.
6
At 7:09 p.m., firefighters Matthew Jackson, Matthew
Corral, and others arrived at the apartment. Appellant ran out
to the firefighters, and told firefighter Corral: “Hey, I need your
help. Why aren’t you helping me out? I’m burnt.” Firefighter
Jackson noticed appellant had burns on his arms. Firefighter
Corral then noticed Daniel down the alley, lying on his back.
Daniel had “severe burns to the majority of his body” and was
suffering “agonal respirations”—meaning, a “very hard time
breathing.”
At 7:12 p.m., the paramedics arrived. Paramedic Andrew
Guzzard described Daniel as “critically burned” and it “appeared
as though his entire body had been burnt from head to toe.”
Daniel had “partial thickness and full thickness burns”, “skin
sluffing and char everywhere.”3 The paramedics tried to pick up
the patient, but “it was very hard to do so, because as [they]
grabbed his arms, legs, [etc.], the skin was just kind of coming
right off with [their] hands.” Daniel was taken by ambulance to
Holy Cross Hospital.
According to Robert McLoud, an arson investigator with
the Los Angeles Fire Department, even if a lighter in the car had
been plastic, the metal components of the top portion would
survive a fire. McLoud did not find anything in the vehicle
resembling a lighter or parts of a lighter. Based on his
3 “[A] superficial burn would be first degree. Partial
thickness would be . . . second degree. You’d see blisters,
reddening. And then third degree, or full thickness burns, would
be burns that burnt past the first two layers—or first layer of
skin, the dermis, down into the subcutaneous tissue and into the
muscle, deadening nerve cells, nerves, [etc.].”
7
background, training, and experience, McLoud opined the fire
was “intentionally set.”
Around 11:00 p.m. that evening, Detective Luis Romero
interviewed an “emotional” Iliana, who cried several times during
the interview, “constantly asking about how the victim was
doing.” Iliana told the detective appellant and Daniel “were
constantly arguing and fighting over the relationship between
her and [Daniel].” She had specifically taken Daniel to her
workplace that day “because she didn’t want him being alone
with” appellant. She also told the detective that right before the
fire started, she saw appellant “extend his right arm as he was
holding a lighter.” She, however, did not tell the detective about
Daniel smoking methamphetamine in the car. Nor did she tell
him Daniel had cried and said he wanted to die.
Detective Daryn Dupree traveled to Holy Cross Hospital
where Daniel and appellant, who had substantial burns on his
right and left hands, were being treated. The detective examined
Daniel’s clothing (only portions of his pants had survived the fire)
and did not find any lighter or matches. The detective’s partner
examined appellant’s clothing and found a Bic lighter.
Appellant was arrested.
Daniel died the next day, on July 1, 2016.
On July 5, 2016, forensic pathologist David Whiteman
autopsied Daniel. Based on his background, training, experience,
and examination of the body, he opined Daniel’s cause of death to
be “from both smoke inhalation and thermal injuries” and
manner of death “to be homicide.” He also observed a series of
scars across Daniel’s left forearm—“older cuts that were healed.”
He opined the cuts were “a marker of depression or some other
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problems about the adolescent.” Whiteman ruled out self-
immolation as a cause of death.
B. Defense Evidence
Toxicologist John Treuting found amphetamine in Daniel’s
blood, which meant Daniel’s liver had metabolized the
methamphetamine he had ingested to amphetamine. Treuting
explained methamphetamine is a “central nervous system
stimulant drug” that causes the individual to “feel superman-
like” and “hyperalert”; their inhibitions get lower and there is
“increased risk-taking phenomena.” The individual could become
“very anxious” or “paranoid.” Trueting testified the amount of
methamphetamine and amphetamine in Daniel’s body indicated
he would have experienced a “significant disruption in normal
brain function.” He could not rule out suicide.
Dr. Odey Ukpo, a deputy medical examiner with the Los
Angeles County Coroner’s Officer, reviewed the toxicology report,
autopsy report, and coroner’s file. Based on his review, Dr. Ukpo
opined Daniel’s cause of death was thermal injuries. He also
opined the manner of death is “undetermined”—he considered it
“a 50/50 chance” that it was either homicide or suicide. He
considered “suicide as a possible manner of death” based, in part,
on the fact that Daniel had scars of previously inflicted incise
wounds on his wrist; “these wounds are what you see in someone
trying to commit suicide.” Dr. Ukpo noted that individuals with a
history of taking methamphetamine also have “a history of
depression.”
C. Verdict and Sentencing
At trial, the People argued the evidence showed appellant
lit the fire after threatening Daniel and dousing him and the car
with gasoline. Alternatively, the People argued appellant was
9
guilty because Daniel’s death was the natural and probable
consequence of dousing him with gasoline and then lighting an
open flame. In contrast, the defense argued that while appellant
poured the gasoline, it was Daniel who lit the fire causing his
own death. The defense argued appellant committed battery by
pouring gasoline on Daniel with criminal negligence, but that
Daniel’s death was the suicide of “a young man [who] was
traumatized and depressed.”
On December 12, 2019, a jury found appellant not guilty of
first degree murder and guilty of second degree murder.
On February 26, 2020, appellant was sentenced to a term of
15 years to life. The court imposed a $40 court security fee per
section 1465.8, subdivision (a)(1), a $30 criminal conviction
assessment per Government Code section 70373, a $300
restitution fine per section 1202.4, subdivision (b), and a $300
parole restitution fine per section 1202.45, which was stayed.
Appellant timely appealed.
DISCUSSION
Appellant contends the trial court’s instructions to the jury
were correct but inadequate in two respects. First, he argues the
instructions failed to address “the causal relationship necessary
to impose murder liability on a defendant when the victim
commits suicide.” While “there was no meaningful conflict in the
evidence” as to whether appellant poured gasoline on Daniel, “the
evidence was in dispute [as to] whether [appellant] ignited the
gasoline or whether [Daniel] did.” He argues the dispute as to
whether appellant or Daniel lit the fire “raised the question
whether [appellant]’s act of dousing [Daniel] with gasoline was
itself a sufficient legal cause of death.”
10
Second, appellant argues the trial court erred by failing to
instruct the jurors on the principle of independent intervening
cause, as Daniel’s alleged suicide could constitute an independent
intervening cause absolving appellant of criminal liability.
A. Relevant Proceedings
On December 10, 2019, the trial court indicated to
appellant and counsel it would instruct with CALCRIM No. 620
as edited, and stated: “I’m going to give 620 the way I have it
written. There’s no question that the defendant had to have
killed the victim in order to be guilty.” The court also noted it did
not “think we’re bound by the coroners distinguishing between
manner of death and cause of death.” Appellant did not state an
objection to CALCRIM No. 620 on that date. The next day, on
December 11, 2019, the trial court specifically asked both counsel
if there are “any objections to the instructions that are given this
morning in their final state”, to which both counsel (including
appellant’s) replied, “No.”
The trial court gave the following jury instructions:
CALCRIM No. 620: “There may be more than one cause of
death. An act causes death only if it is a substantial factor in
causing the death. A substantial factor is more than a trivial or
remote factor. However, it does not need to be the only factor
that causes the death. [¶] If the defendant’s act was a
substantial factor causing the death, then the defendant is legally
responsible for the death. This is true even if Daniel . . . would
have died in a short time as a result of other causes. [¶] If you
have a reasonable doubt whether the defendant’s act caused the
death, you must find him not guilty.”
11
CALCRIM No. 520: “To prove that the defendant is guilty
of [murder], the People must prove that: One, the defendant
committed an act that caused death of another person; and two,
when the defendant acted, he had a state of mind called malice
aforethought. [¶] There are two kinds of malice aforethought,
expressed malice and implied malice. Proof of either is sufficient
to establish the state of mind required for murder. The
defendant has express malice if he unlawfully intended to kill.
The defendant had implied malice if: One, he intentionally
committed the act; two, the natural and probable consequences of
the act were dangerous to human life; three, at the time he acted,
he knew his act was dangerous to human life; and four, he
deliberately acted with a conscious disregard for human life.
[¶] . . . [¶] An act causes death if the death is a direct, natural,
and probable consequence of the act and the death would not
have happened without the act. A natural and probable
consequence is one that a reasonable person would know is likely
to happen if nothing unusual intervenes. In deciding whether a
consequence is natural and probable, consider all the
circumstances established by the evidence. [¶] If you decide that
the defendant committed murder, it is murder of the second
degree unless the people have proved beyond a reasonable doubt
that it is murder of the first degree . . . .” (Italics added.)
During closing argument, the prosecutor argued if a juror
“think[s] . . . at that very . . . same time the defendant comes back
after making the threats, comes back with the gasoline and at
that, very time, the victim lit himself, the defendant is still liable
for murder. [¶] And you’re going to have jury instruction 620
because in dousing the victim with gasoline, basically, the
defendant is creating a situation for the victim to kill himself and
12
he’s not allowed to do that. It reads, ‘If the defendant’s act of
dousing the victim with gasoline is a substantial factor for
causing death, then the defendant is legally responsible.’ ”
(Italics added.)
Near the end of closing, the prosecutor maintained
appellant had both express and implied malice. As to implied
malice, he posited to the jury: “[I]f for some reason you don’t
think [appellant] knew that dousing someone with gasoline and
then using an open flame that he didn’t intend to kill, well, of
course the natural and probable consequences of such an act is
dangerous to human life. So implied malice is there as well.
That’s second degree murder.”
B. Standard of Review
De novo review applies to whether the trial court has a sua
sponte duty to give a particular instruction. (People v. Simon
(2016) 1 Cal.5th 98, 133; People v. Guiuan (1998) 18 Cal.4th
558, 569.)
C. Applicable Law
In criminal cases, a trial court has a duty to instruct on
general principles of law relevant to the issues raised by the
evidence, that are closely and openly connected to the facts, and
that are necessary for the jury’s understanding of the case.
(People v. Anderson (2011) 51 Cal.4th 989, 996; People v. Carter
(2003) 30 Cal.4th 1166, 1219; People v. Breverman (1998)
19 Cal.4th 142, 154.) In other words, there must be substantial
evidence to support giving a particular instruction. (People v.
Crew (2003) 31 Cal.4th 822, 835; People v. Nguyen (2015)
61 Cal.4th 1015, 1049.) Indeed, a trial court “may properly refuse
an instruction offered by the defendant . . . if it is not supported
13
by substantial evidence.” (People v. Moon (2005) 37 Cal.4th 1, 30;
see generally, People v. Marshall (1997) 15 Cal.4th 1, 39–40.)
D. Waiver
First, the People assert appellant waived any claim of
instructional error because he did not object to CALCRIM
No. 620 or request modification to address what appellant alleges
are issues affecting proximate and intervening cause. (Cf. People
v. San Nicolas (2004) 34 Cal.4th 614, 669 [defendant forfeited
any instructional error by not objecting below and instead
approving modified instruction]; (People v. Lee (2011) 51 Cal.4th
620, 638 [failure to request clarification of an otherwise correct
instruction forfeits claim of error].) Appellant does not deny this,
but argues “the claim is statutorily preserved” via section 1259.
We need not address section 1259 because our review of the
record reveals the following exchange between the trial court and
appellant. Though appellant did not object to CALCRIM No. 620
per se, appellant did object and raise the issue of instructing on
the effect of “who lit the flame” in response to the court’s second
degree murder instructions. When the trial court asked
appellant why it should not give the second degree murder
instruction, defense counsel replied: “I think there can be a
confusion on the part of the jury if they find that pouring gasoline
on someone in [and] of itself, even if [appellant] isn’t the one who
lit the fire, is enough to substantiate the second degree murder
charge.” The court explained that the jury “can find that’s
implied malice. If I pour gasoline all over somebody and they
happen to be sitting next to a hot water heater or something, it
sounds like implied malice to me.” Following this, appellant
stated it was “just to note [his] objection for the record.” We
14
conclude appellant did not forfeit his claim of instructional error
and proceed to address the merits of his arguments.
1. The Evidence Did Not Impose an Obligation on the
Trial Court to Instruct the Jury Sua Sponte on
Intervening and Proximate Cause
Appellant argues the trial court erred in failing to instruct
the jury, sua sponte, that if Daniel ignited the fire, appellant was
not the proximate cause of Daniel’s death and the suicide attempt
was an intervening cause of his death. Preliminarily we note
appellant acknowledges, and we agree, the instructions as given
by the trial court correctly stated the law. He also acknowledges
he never proposed specific modified or additional instructions for
the trial court’s consideration. Nevertheless, appellant argues
the trial court, sua sponte, should have given more specific
instructions explaining the concepts of proximate causation and
intervening cause of death as those concepts relate to a victim’s
suicide. Appellant argues more detailed instructions were
necessary because some jurors might have decided that
appellant’s dousing gasoline on Daniel, without more, was
sufficient to impose murder liability on appellant.
We reject defendant’s argument that the trial court was
required to further instruct sua sponte on the issues of proximate
cause or intervening cause as they relate to suicide, to wit, if
Daniel lit the flame, appellant was not guilty of murder. Our
review of the record shows the evidence of suicide is insufficient
to trigger such an obligation. (See People v. Maury (2003)
30 Cal.4th 342, 424.)
15
Arriaga testified she heard Iliana yell, “Stop, Diego, stop,
don’t burn him” and “don’t kill him.” She testified she had seen
something in appellant’s hand with “a light or a glow”, and then
watched appellant throw “something” into the car—but did not
know whether it was “a lighter or matches.” Torres testified he
saw appellant “throwing liquid on [Daniel] in the car.” He then
saw “a spark coming from [appellant’s] right hand” and ignite the
fire. Iliana saw appellant “pulled out something white,” but did
not know what. She “only saw that [her] brother had something
in his hand.” Iliana had told Detective Romero that right before
the fire started, she saw appellant “extend his right arm as he
was holding a lighter. Torres testified he heard Daniel scream,
“no, no” when appellant was dousing him and the car with
gasoline. The arson investigator found no evidence of a lighter in
the burnt car or in Daniel’s clothes.
In contrast, the only evidence circumstantially supporting
the possibility that Daniel caused the fire himself is Iliana’s
testimony that she saw Daniel “opening the glove compartment”
just before the fire started, “but [didn’t] know what he was doing,
whether he was looking for something.” However, this testimony
suggests only that Daniel may have been looking for something;
it suggests nothing more. Iliana also testified that after
appellant threatened Daniel and left the garage, Daniel had cried
and said he wanted to die, statements he had often made in the
past when he smoked methamphetamine. Iliana did not,
however, testify that Daniel had previously attempted suicide, a
significant evidentiary gap given the couple had been dating for
four years at the time of Daniel’s death. Neither do the old
cutting scars on Daniel’s wrist support an inference that he was
actually suicidal on the day of the fire. We conclude this
16
circumstantial evidence is too tenuous, stale, and speculative to
impose upon the trial court a further obligation to instruct the
jury sua sponte on suicide as an intervening or proximate cause
of Daniel’s death. As a result, we see no need to discuss the case
authorities appellant cites to distinguish between suicides that
break the chain of causation and suicides that do not.
2. Appellant’s Failure to Object During Closing
Argument Forfeited His Claim that the People
Misstated the Law.
Notwithstanding his concession that the instructions as
given were “correct in themselves,” appellant contends the trial
court’s instructional omissions “set the stage for the prosecutor to
present a legally invalid theory of proximate causation to the
jury”, to wit, that appellant was guilty of murder if he created a
situation that facilitated Daniel’s suicide.
Given the lack of substantial evidence of a suicidal act by
Daniel, we reject this argument. Moreover, appellant’s failure to
object to the prosecutor’s argument forfeits this claim. (People v.
Centeno (2014) 60 Cal.4th 659, 674 [generally, a “ ‘ “defendant
may not complain on appeal of prosecutorial misconduct unless in
a timely fashion, and on the same ground, the defendant objected
to the action and also requested that the jury be admonished to
disregard the perceived impropriety” ’ ”].)
3. Appellant Forfeited His Claim that He Was Entitled
to an Ability-to-Pay Hearing as to the Imposition of
Fees, Fines, and Assessments.
Appellant argues the trial court violated his federal and
state right to due process of law by imposing a $40 court security
fee per section 1465.8, subdivision (a)(1), a $30 criminal
conviction assessment per Government Code section 70373, and a
17
$300 restitution fine per section 1202.4, subdivision (b), without
determining whether he had the present ability to pay.4
Appellant requests we vacate the assessments and stay the
imposition of the restitution fine under People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas) and People v. Aviles (2019)
39 Cal.App.5th 1055 (Aviles).
The trial court sentenced appellant on February 26, 2020,
more than 13 months after the decision in Duenas and more than
five months after the decision in Aviles. Despite this, appellant
did not object to the fees, assessments, or the restitution fine
imposed. We find his challenge forfeited and we decline to
exercise our discretion to adjudicate this forfeited issue. (People
v. Yeoman (2003) 31 Cal.4th 93, 117–118.)
Appellant argues if his claim was forfeited, his trial counsel
rendered ineffective assistance by not objecting. We disagree.
Ineffective assistance of counsel may be shown on direct appeal
where counsel’s performance falls below an objective standard of
reasonableness. (People v. Sepulveda (2020) 47 Cal.App.5th
291, 301.) The fines and fees total $370. Appellant bore the
burden of establishing that he would not be able to pay that
amount over the following 15 years in custody. His sole
argument in support of ineffective assistance is that he “gained
no benefit from counsel’s omission” and that there was “no
conceivable tactical basis for omitting objection to imposition to
fines without a hearing on [his] ability to pay.” Appellant fails to
explain his argument beyond the conclusory statement quoted
above. Appellant has not shown that his counsel’s failure to ask
4 On appeal, appellant does not challenge the $300 parole
restitution fine per section 1202.45, which was stayed.
18
for an ability-to-pay hearing fell below an objective standard of
reasonableness.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
BIGELOW, P. J.
GRIMES, J.
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