People v. Marty CA2/3 ( 2021 )

Filed 7/22/21 P. v. Marty CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B306632
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA145980)
v.
LYKEEM NEFTALI MARTY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Ricardo R. Ocampo, Judge. Affirmed.
Janyce Keiko Imata Blair, under appointment by the Court
of Appeal, for Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Noah P. Hill and Steven E.
Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
——————————
Following a jury trial, appellant Lykeem Neftali Marty was
convicted of one count of first degree premeditated murder with
special circumstances (Pen. Code,1 §§ 187, subd. (a), 190.2,
subds. (a)(21), (a)(22)), three counts of attempted murder (§§ 664,
187, subd. (a)), one count of shooting at an occupied vehicle
(§ 246), and one count of shooting at an inhabited dwelling (§
246). The jury also found true firearm enhancement (§ 12022.53,
subds. (d), (e)(1)) and gang enhancement (§ 186.22, subd. (b))
allegations. On appeal, Marty argues the trial court (1) violated
his Sixth Amendment right of confrontation by admitting
testimonial hearsay; (2) erred in instructing the jury on the
defense of duress; and (3) imposed certain fines and assessments
at sentencing without determining his ability to pay. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Evidence at Trial
This case arises out of a series of drive-by shootings
committed by members of the Grape Street Crips. Marty and
six codefendants were charged with murder, attempted murder,
and other related crimes in connection with two of the shootings.
Marty and codefendant Dushawne Smith were jointly tried on
the charges before separate juries. Two other codefendants,
Karnell Lawson and Deanthony Bradford, testified against Marty
and Smith as part of plea agreements for reduced sentences.2
1Unless otherwise stated, all statutory references are to
the Penal Code.
2Under their respective plea agreements, Lawson and
Bradford would each receive reduced sentences in all cases
pending against them in exchange for their truthful testimony.
Lawson, who was 18 years old at the time of the shootings, would
2
The Grape Street Crips are a large gang in South Los
Angeles. One of the gang’s main rivals are the Bounty Hunter
Bloods. Nickerson Gardens is a housing project located in an
area controlled by the Bounty Hunter Bloods. Jordan Downs is
another housing project about a mile away, and is a stronghold
of the Grape Street Crips. A few weeks before the shootings in
this case, a high-ranking member of the Grape Street Crips was
murdered by a member of the rival Bounty Hunter Bloods.
On the night of August 3, 2016, a group of Grape Street
gang members, including Marty, Smith, Lawson, and Bradford,
gathered near Jordan Downs. Vernon Williams, a leader and
shot caller for the gang, came up with a plan to retaliate against
the Bounty Hunters by shooting and killing one or more of their
members. At Williams’s direction, the group got into three cars
and stayed in communication using their cell phones. Williams
and Bradford were in a Mercedes, the lead car, and looked for
potential targets. Three other men were in a Lexus, the decoy
car, that would try to draw the attention of any police officers
responding to the shooting. Marty, Smith, and Lawson were in a
Nissan, the designated shooting car and the only one containing
firearms. Marty drove the Nissan, and Smith and Lawson sat in
the backseat. All three occupants of the Nissan were armed.
The group first drove in a caravan to the Howard Hughes
Center in Culver City where Williams believed they would find
Bounty Hunter Bloods. Williams directed the group to the driver
of a Maserati whom he identified as a rival gang member. Marty,
be sentenced to a total determinate term of 28 years, making him
eligible for parole in 13 years. Bradford, who was 19 years old at
the time of the shootings, would be sentenced to a nine-year term.
3
Smith, and Lawson all shot at the Maserati’s occupants. The
driver of the Maserati was treated for multiple gunshot wounds.
Following this shooting, the group retrieved an AK-47
assault rifle. Because Williams was not satisfied with the
shooting, all three cars then headed to Nickerson Gardens
searching for another target. After scouting the area a few times,
Marty stopped the Nissan near a field where a group of people
had congregated. Lawson fired a pistol at the group until the
chamber was empty. Several bullets hit a nearby home. Smith,
who had been given the AK-47, struggled to cock the rifle and
was unable to fire any shots. No injuries were reported as a
result of that shooting.
The caravan of cars next went to a nearby park. Williams
told the group that they were not done because no one had been
killed. After Williams helped Smith cock the AK-47, the group
headed toward a gas station across the street from Nickerson
Gardens. From the Mercedes, Williams or Bradford identified
the driver of a white Chrysler at the gas station as another
potential target.
Cordero Dougal was the driver of the Chrysler and his
girlfriend, Ijeoma Chukwudi, was also in the car. A third person,
Paul Richmond, was standing nearby. Smith said, “[W]hat’s up,
cuz?” and then immediately opened fire with the AK-47, killing
Dougal and wounding both Chukwudi and Richmond.
Shell casings were recovered from the scenes of all three
shootings. Ballistics testing showed the casings found at the
Howard Hughes Center and those found at Nickerson Gardens
were fired from the same gun. A casing recovered from the gas
station was consistent with the type of ammunition often used
in AK-47 assault rifles.
4
The police also obtained security camera footage of the
Nickerson Gardens and gas station shootings. The footage of the
Nickerson Gardens shooting captured a Nissan, Mercedes, and
Lexus driving through the area and the Nissan then speeding
away as a crowd of people suddenly fled. The footage of the gas
station shooting showed the same three cars driving in tandem
on a nearby street and the Nissan pulling into the station with
the barrel of a rifle pointed out the window. Immediately after
the shooting, the Nissan left the gas station and drove away from
the area followed by the two other vehicles.
At trial, the prosecution’s gang expert opined that, based
on a hypothetical drawn from the facts of the case, the Nickerson
Gardens and gas station shootings would have been committed
for the benefit of, at the direction of, or in association with a
criminal street gang with the specific intent to promote, further
or assist in criminal conduct by its members.
Jury Verdict and Sentencing
The jury found Marty guilty on all counts, and found true
the special circumstance allegations that the murder of Dougal
was committed by discharging a firearm from a vehicle with the
intent to inflict death (§ 190.2, subd. (a)(21)), and to further the
activities of a criminal street gang in which the shooter was an
active participant (§ 190.2, subd. (a)(22)). The jury also found
true the enhancement allegations that a principal personally and
intentionally discharged a firearm causing death or great bodily
injury (§ 12022.53, subds. (d), (e)(1)), and that the offenses were
committed for the benefit of, at the direction of, or in association
with a criminal street gang and with the specific intent to
promote, further, or assist in criminal conduct by gang members
(§ 186.22, subd. (b)).
5
The trial court sentenced Marty to a term of life without
the possibility of parole plus 25 years to life for the murder of
Dougal; consecutive life terms plus 25 years to life for the
attempted murders of Chukwudi and Richmond; a consecutive
life term plus 20 years to life for the attempted murder of an
unnamed victim in the Nickerson Gardens shooting; and a
consecutive term of 15 years to life for shooting at an inhabited
dwelling. The court stayed the sentence for shooting at an
occupied vehicle pursuant to section 654.
Marty filed a timely appeal.
DISCUSSION
Admission of Chukwudi’s Extrajudicial Statement
About the Grape Street Crips
On appeal, Marty asserts the trial court erred in admitting
evidence that, as Chukwudi was exiting the courtroom following
her trial testimony, she said, “Fuck Fake Street,” a derogatory
reference to the Grape Street Crips. Marty argues admission
of the statement violated his Sixth Amendment right of
confrontation because it constituted testimonial hearsay.
At trial, Chukwudi was an uncooperative witness and
refused to provide any substantive testimony. When the trial
court excused Chukwudi as a witness, the following exchange
took place in open court in the presence of the juries:
“The court: Subject to recall, Ms. Chukwudi, you are now
excused.
“[Chukwudi]: No. I’m going to ask my questions now. So
I’m excused now? You just told me I can ask questions. So
what’s their name?
6
“The court: You can ask your questions in a different
environment.
“[Chukwudi]: What’s their—so now I’m excused. Okay.
“The court: Bailiff—
“[Chukwudi]: So now I can’t get no questions. But y’all are
going to sit up here and question me all fuckin’ day.
“The court: Ma’am, you can ask the questions of them at
another time.
“[Chukwudi]: No. I might as well walk out this way now.
“The bailiff: You can go that way.
“[Chukwudi]: Shit, get the fuck out my way.
“The bailiff: Hey, watch your language, though.
“[Chukwudi]: I ain’t got to watch shit. I need faces too. I
need families to keep in touch too. Fuck Fake Street.
“The court: Ready with your next witness? People may call
their next witness.”
At that time, neither the court nor counsel commented on
Chukwudi’s outburst. The following court day, however, the
prosecutor sought to introduce Chukwudi’s “Fuck Fake Street”
comment into evidence. Marty’s counsel objected, stating, “I
think it was nonresponsive and I think it should be stricken. It’s
out of context, unless we want to bring her back in and cross-
examine her about it. I think it’s irrelevant.” Smith’s counsel
joined in the objection, adding, “The other problem that I see is if
we get it introduced, then the next step is what’s the admonition
to the jury . . . going to be regarding how they should view it?”
The trial court noted that, while Chukwudi’s remark had
been recorded by the court reporter, it was not made on the
witness stand, and thus, was an out-of-court statement for
hearsay purposes. However, the court confirmed with the
7
prosecutor that the statement was not being offered for the truth
of the matter asserted, but rather, it “just goes to her state of
mind.” The court stated, “So based on that, I think it would be a
reflection of her state of mind of what she feels about Grape
Street because I understand that that term . . . it’s a derogatory
statement against Grape Street, which would also impeach her
testimony that she doesn’t know anything about gangs or
anything about—so that would be the offer of proof; correct . . . ?”
The prosecutor agreed.
The trial court ruled that it would allow introduction of the
statement through the lead detective in the case, who had heard
Chukwudi make the statement as she was leaving the courtroom.
The court also indicated that it would instruct the jury that the
statement was being offered as evidence of Chukwudi’s state of
mind and not for any other purpose.
During the detective’s testimony, the prosecutor asked him
about Chukwudi’s statement. The detective testified that the last
thing Chukwudi said as she was leaving the courtroom was “Fuck
Fake Street.” He further testified that Fake Street was “a term
that the rivals of Grape Street Crips use as a sign of disrespect.”
Later, the prosecution’s gang expert also explained that Fake
Street was a derogatory term used by rivals to describe the Grape
Street Crips. The trial court never instructed the jury about the
limited purpose for which Chukwudi’s statement was admitted,
nor was any such instruction requested by the prosecution or the
defense.
A trial court has broad discretion in ruling on the
admissibility of evidence. (People v. Fayed (2020) 9 Cal.5th 147,
189.) “ ‘We review a trial court’s decision to admit or exclude
8
evidence ‘for abuse of discretion, and [the ruling] will not be
disturbed unless there is a showing that the trial court acted
in an arbitrary, capricious, or absurd manner resulting in a
miscarriage of justice.” ’ ” (People v. Young (2019) 7 Cal.5th 905,
931; accord, People v. Caro (2019) 7 Cal.5th 463, 503 [we “review
evidentiary rulings, including ultimate rulings on whether
evidence should be excluded as hearsay, for abuse of discretion”].)
Hearsay is “evidence of a statement that was made other
than by a witness while testifying at the hearing and that is
offered to prove the truth of the matter stated.” (Evid. Code,
§ 1200, subd. (a).) Unless subject to an exception, hearsay
evidence is inadmissible. (Id., subd. (b).) There are two theories
under which out-of-court statements of a declarant’s state of
mind can be admitted: “(1) as hearsay under the Evidence Code
section 1250 exception for the declarant’s present state of mind,
and (2) as nonhearsay circumstantial evidence of a declarant’s
state of mind.” (People v. Clark (2016) 63 Cal.4th 522, 590–591,
fn. omitted.) Under the second theory, a statement which does
not directly declare the speaker’s mental or emotional state, but
is merely circumstantial evidence of it, is not hearsay. (People v.
Dalton (2019) 7 Cal.5th 166, 232; People v. Cox (2003) 30 Cal.4th
916, 962, disapproved on another ground in People v. Doolin
(2009) 45 Cal.4th 390, 421, fn. 22.) Such evidence “ ‘is not
received for the truth of the matter stated, but rather whether
the statement is true or not, the fact such statement was made
is relevant to a determination of the declarant’s state of mind.’ ”
(Cox, at p. 962.)
In Crawford v. Washington (2004) 541 U.S. 36, 53–54, the
United States Supreme Court held that the Sixth Amendment
right of confrontation bars the admission of a witness’s
9
testimonial hearsay unless the witness is unavailable, and the
defendant had a prior opportunity for cross-examination. In
general, a witness’s “hearsay statement is testimonial if made
‘with a primary purpose of creating an out-of-court substitute for
trial testimony.’ ” (People v. Fayed, supra, 9 Cal.5th at p. 168,
quoting Michigan v. Bryant (2011) 562 U.S. 344, 358.) Only
statements that are both hearsay and testimonial are subject to
the confrontation clause. (Davis v. Washington (2006) 547 U.S.
813, 821; Fayed, at p. 168.) The confrontation clause does not
“bar the use of testimonial statements for purposes other than
establishing the truth of the matter asserted,” that is, for
nonhearsay purposes. (Crawford, at p. 59, fn. 9.)
Marty contends Chukwudi’s derogatory comment about the
Grape Street Crips constituted testimonial hearsay in violation of
his Sixth Amendment right of confrontation because Chukwudi
made the statement in open court in the presence of the juries,
and for the purpose of proving Marty’s guilt of the gang-related
crimes. As the Attorney General asserts, Marty forfeited his
confrontation clause claim by failing to raise it in the trial court.
(See People v. Arredondo (2019) 8 Cal.5th 694, 710 [defendant
“forfeited his claim under the confrontation clause by failing
to object at trial”]; People v. Redd (2010) 48 Cal.4th 691, 730
[although defendant objected to testimony on hearsay grounds,
he “did not raise an objection below based upon the confrontation
10
clause, and therefore has forfeited this claim”].) Even if not
forfeited, however, the claim fails on the merits.3
As the trial court correctly ruled, Chukwudi’s “Fuck Fake
Street” statement was not hearsay because it was not offered to
prove the truth of the matter asserted. Rather, it was offered to
show Chukwudi’s state of mind as she was exiting the courtroom
in an agitated state after being excused from the witness stand.
Chukwudi’s state of mind was relevant to her credibility as a
witness because, throughout her trial testimony, she refused to
provide any substantive responses to the questions asked by both
the prosecution and the defense. Instead, Chukwudi repeatedly
answered that she did not know or could not recall in response
to the questions posed, including those related to whether she
feared for her safety if she testified truthfully. At one point,
Chukwudi stated, “Let’s just let the streets handle it. That’s
all. I don’t got nothing else to say.” She also stated that forcing
her to testify was “endangering a lot of people’s [lives] as far
as the streets,” but refused to elaborate further. Because
Chukwudi’s disparaging remark about the gang accused of
3 The Attorney General also argues that Marty forfeited
any claim that Chukwudi’s statement was inadmissible hearsay
because his trial counsel only objected to the statement on the
grounds that it was nonresponsive and irrelevant. However, the
trial court immediately responded to the defense objection by
addressing whether the statement was hearsay, and ruled that
it was not hearsay because it was not being offered for its truth.
Under these circumstances, there was no forfeiture of a state law
hearsay claim. (People v. Anderson (2018) 5 Cal.5th 372, 403 [no
forfeiture of hearsay claim where defendant objected to admission
of evidence on other grounds but “the court anticipated a hearsay
objection and ruled on it”].)
11
committing the shootings was offered as circumstantial evidence
of her then existing state of mind, its admission did not violate
California hearsay law.
Admission of Chukwudi’s statement also did not violate
Marty’s Sixth Amendment right of confrontation. “Crawford
made clear that there are no confrontation clause restrictions
on the introduction of out-of-court statements for nonhearsay
purposes.” (People v. Cage (2007) 40 Cal.4th 965, 975, fn. 6;
accord, People v. Fayed, supra, 9 Cal.5th at p. 168 [“admission
of nonhearsay statements . . . ‘raises no Confrontation Clause
concerns’ ”].) Because Chukwudi’s statement was admitted for
the nonhearsay purpose of showing her state of mind at trial
after she refused to answer questions, it did not run afoul of
the confrontation clause. Moreover, the statement was not
testimonial within the meaning of Crawford. To be testimonial,
“ ‘the out-of-court statement must have been made with some
degree of formality or solemnity,’ ”and “the primary purpose
of the statement must ‘pertain[ ] in some fashion to a criminal
prosecution.’ ” (People v. Leon (2015) 61 Cal.4th 569, 603.) While
Chukwudi’s “Fuck Fake Street” remark was captured on the
record by the court reporter, it was made after she had already
been excused as a witness and was being escorted from the
courtroom. Chukwudi did not make the disparaging comment
with any degree of formality or solemnity, nor is there anything
in the record to suggest that her primary purpose was related
to the pending criminal prosecution. Instead, it appears the
statement was a spontaneous outburst that was not directed
at anyone in particular, and was simply intended to serve as
an insult of the Grape Street Crips. Chukwudi’s statement
12
accordingly was neither testimonial nor hearsay, and the
trial court did not err in admitting it.
Marty argues that, even if the evidence of Chukwudi’s
statement was offered for a nonhearsay purpose, the jury was
allowed to consider it for the truth of the matter asserted because
the trial court failed to give a limiting instruction. “Absent a
request, a trial court generally has no duty to instruct as to the
limited purpose for which evidence has been admitted.” (People
v. Cowan (2010) 50 Cal.4th 401, 479; see Evid. Code, § 355
[“When evidence is admissible . . . for one purpose and is
inadmissible . . . for another purpose, the court upon request
shall restrict the evidence to its proper scope and instruct the
jury accordingly”].) Although the trial court had indicated that
it would instruct the jury about the limited purpose for which
Chukwudi’s statement was admitted, it did not did so. However,
defense counsel did not remind the court of its intended limiting
instruction when the detective testified about the statement or
at any other time. Nor did defense counsel submit a proposed
instruction about the limited purpose of the statement for the
court’s consideration. Because the defense did not request
a limiting instruction at the appropriate time, the court had no
sua sponte duty to give one. (Cowan, at p. 480 [although trial
court agreed to give limiting instruction, it did not err in failing
to do so where “defense counsel did not remind the court that it
had agreed to give a limiting instruction either at the time the
testimony was read, or when discussing jury instructions”];
People v. Freeman (1994) 8 Cal.4th 450, 495 [defendant forfeited
claim that trial court erred in failing to comply with offer to
instruct jury on limited purpose of proffered evidence because
13
defendant “did not . . . request such an instruction” and court
had “no sua sponte duty to so instruct”].)
In any event, even assuming the trial court erred in failing
to instruct the jury on the limited purpose for which Chukwudi’s
statement was admitted, any such error was harmless because
it is not reasonably probable that Marty would have obtained a
more favorable result had the instruction been given. (See People
v. Nguyen (2015) 61 Cal.4th 1015, 1042 [applying state law
harmless error standard to failure to give limiting instruction];
People v. Williams (2013) 58 Cal.4th 197, 271 [same].) There
was overwhelming evidence that Marty aided and abetted the
two gang-related shootings that gave rise to the charges in this
case. Both Lawson and Bradford testified that Marty was the
driver of the Nissan in the shootings that took place at Nickerson
Gardens and the nearby gas station. They also testified that the
purpose of the shootings was to seek revenge against the rival
Bounty Hunter Bloods for the prior killing of a fellow member of
the Grape Street Crips. The surveillance video of the shootings
captured the Nissan at the scene of each crime, and was largely
consistent with the accounts provided by Lawson and Bradford.
In addition, the testimony about Chukwudi’s “Fuck Fake Street”
comment was brief and limited in scope. The prosecutor also
made clear in his closing argument that Chukwudi’s statement
was merely offered to show that “in her mind, this is a gang case,
and it’s scary to come testify in a gang case.” Given the totality of
the evidence, Marty has failed to show prejudicial error in the
admission of Chukwudi’s statement.
Jury Instruction on Duress
Marty contends the trial court violated his constitutional
right to due process and a reliable verdict by refusing to instruct
14
the jury that duress may negate premeditation and deliberation
for the crimes of murder and attempted murder.
At trial, both Lawson and Bradford testified about the
Grape Street gang’s practice of disciplining its own members by
subjecting them to beatings and other acts of violence. Lawson
recounted that Smith and Marty were subject to discipline from
the gang because they had been involved in a prior altercation
with Lawson, and as a result, the men had to prove themselves
by participating in the shootings. Bradford similarly testified
that Smith, Marty, and Lawson each “got [their] card pulled” for
not following the rules of the gang, and were “trying to redeem
themselves” by agreeing to be placed in the shooting car.
Based on the evidence that Smith and Marty may have
acted under the fear of being disciplined by their fellow gang
members, the trial court instructed the jury on the defense of
duress with a modified version of CALJIC No. 4.40: “A person
is not guilty of a crime other than murder or attempted murder
when he engages in conduct, otherwise criminal, when acting
under threats and menaces under the following circumstances:
[¶] 1. Where the threats and menaces are such that they would
cause a reasonable person to fear that his life would be in
immediate danger if he did not engage in the conduct charged,
and [¶] 2. If this person then actually believed that his life was
so endangered. [¶] This rule does not apply to threats, menaces,
and fear of future danger to his life, nor does it apply to the
crimes of murder or attempted murder.”
The trial court overruled Marty’s objection to CALJIC
No. 4.40, and denied Smith’s request that the instruction be
further modified to provide that “duress may not be a defense to
15
murder[,] but it may be a defense to premeditation or implied
malice.” Citing People v. Landry (2016) 2 Cal.5th 52 (Landry)
and People v. Hinton (2006) 37 Cal.4th 839 (Hinton), the court
explained that duress does not negate malice, although it may
negate premeditation to reduce a murder from first to second
degree. The court concluded this concept was adequately covered
by CALJIC Nos. 8.20 and 8.30, the standard instructions defining
first degree premeditated murder and second degree
unpremeditated murder.
Marty argues the trial court erred in refusing to further
modify CALJIC No. 4.40 to provide that duress may negate
premeditation because the proposed modification was an accurate
statement of the law and supported by the evidence. He further
asserts the instructions given by the court failed to adequately
address the defense of duress because they did not inform the
jury that duress could negate the elements of premeditation
and deliberation. We conclude this claim lacks merit.
“The trial court must instruct the jury ‘on general
principles of law that are closely and openly connected to the
facts and that are necessary for the jury’s understanding of the
case.’ ” (People v. Anderson, supra, 5 Cal.5th at p. 413.) A
defendant also has a right to a pinpoint instruction on the theory
of the defense. (People v. Homick (2012) 55 Cal.4th 816, 890.)
The court, however, may properly refuse a defense instruction if
it incorrectly states the law, is argumentative, duplicative, or
potentially confusing, or if it is not supported by substantial
evidence. (People v. Bivert (2011) 52 Cal.4th 96, 120.)
16
“ ‘The defense of duress is available to defendants who
commit crimes, except murder, “under threats or menaces
sufficient to show that they had reasonable cause to and did
believe their lives would be endangered if they refused.” ’ ”
(People v. Powell (2018) 6 Cal.5th 136, 164; see § 26.) “ ‘[D]uress
is not a defense to any murder’ [citation] and, in particular, does
not negate malice.” (Hinton, supra, 37 Cal.4th at pp. 882–883;
accord, Landry, supra, 2 Cal.5th at p. 91 [“duress is not a defense
to murder, nor does duress reduce murder to manslaughter”].)
Although duress does not categorically negate premeditation and
deliberation, if a person obeys an order to kill without reflection,
a jury might find no premeditation and thus convict only of
second degree murder. (Hinton, at p. 884.) However, “this
circumstance is not due to a special doctrine of duress but to the
legal requirements of first degree murder.” (People v. Anderson
(2002) 28 Cal.4th 767, 784.) A “killing ‘upon a sudden heat of
passion or other condition precluding the idea of deliberation’
would not be premeditated first degree murder.” (Ibid., italics
omitted.) But “a malicious, premeditated killing, even under
duress, is first degree murder.” (Ibid.)
In Hinton, supra, 37 Cal.4th at pages 847 to 848, for
instance, the defendant was convicted of first degree murder with
special circumstances. In addition to giving CALJIC No. 4.40 on
duress, the trial court instructed the jury that when “ ‘a person
commits a crime punishable with death, it is not a defense that
he committed the act or made the omission under threats or
menaces of immediate death or bodily harm.’ ” (Id. at p. 882.)
On appeal, the defendant argued the instructions erroneously
prohibited the jury from considering whether threats to his life
could negate the mental state elements of first degree murder.
17
(Ibid.) In concluding there was no instructional error, the
Supreme Court explained that the instructions “correctly
informed the jury that threats and menace do not constitute a
defense to murder.” (Id. at p. 883.) The court also noted that
“[n]othing in these instructions barred the jury from considering
whether these threats—or any other facts—prevented defendant
from premeditating and deliberating.” (Ibid.)
Here, as in Hinton, the trial court properly instructed the
jury on duress. The version of CALJIC No. 4.40 given by the trial
court correctly informed the jury that threats and menace do not
constitute a defense to murder or attempted murder. In addition,
CALJIC Nos. 8.20 and 8.30 accurately defined the mental state
elements of first degree premeditated murder and second degree
unpremeditated murder. There was nothing in the instructions
that precluded the jury from considering whether Marty acted
without premeditation and deliberation when he aided and
abetted his confederates in committing the Nickerson Gardens
and gas station shootings. The jury was thus free to determine
whether any threats made to the defendants on the night of the
shootings caused them to obey their gang’s order to kill without
reflection, thereby negating the mental state required for
premeditated murder.
Marty nevertheless asserts that CALJIC Nos. 8.20 and
8.30 did not sufficiently inform the jury that duress could negate
premeditation and deliberation. The Supreme Court rejected a
similar argument in Landry because CALJIC No. 8.20 (deliberate
and premeditated murder) instructs the jury that a killing upon a
sudden heat of passion or other condition precluding the idea of
deliberation is not first degree premediated murder. (Landry,
supra, 2 Cal.5th at pp. 93–94.) In this case, the jury was properly
18
instructed with CALJIC Nos. 8.20 and 8.30, and found Marty
guilty of first degree premediated murder and attempted
premediated murder. There was no instructional error.
Imposition of Restitution Fine and Assessments
At Marty’s July 10, 2020 sentencing hearing, the trial court
ordered him to pay a $6,000 restitution fine (§ 1202.4), $240 in
court operations assessments (§ 1465.8), and $180 in court
facilities assessments (Gov. Code, § 70373). Relying on People v.
Dueñas (2019) 30 Cal.App.5th 1157, Marty argues the imposition
of these fines and fees without determining his ability to pay
violated his constitutional right to due process and equal
protection of the law.
Decided in January 2019, People v. Dueñas, supra,
30 Cal.App.5th at page 1164, 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 facilities or court operations assessments or a restitution
fine. Although Marty’s sentencing hearing was held 18 months
after the Dueñas decision, he did not object to the imposed
restitution fine or assessments in the trial court. Typically, a
defendant who fails to object to the imposition of fines, fees, and
assessments at sentencing forfeits the right to challenge them on
appeal. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864;
People v. Trujillo (2015) 60 Cal.4th 850, 856–859; People v.
McCullough (2013) 56 Cal.4th 589, 596–597.) Applying this
general rule, we conclude Marty forfeited his ability-to-pay claim
in this case.
Marty asserts his claim was not forfeited because there is
a split among appellate courts as to whether an ability-to-pay
challenge is forfeited by the failure to raise it in the trial court.
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(Compare People v. Castellano (2019) 33 Cal.App.5th 485, 489
[claim not forfeited]; People v. Johnson (2019) 35 Cal.App.5th
134, 138 [same] with People v. Frandsen (2019) 33 Cal.App.5th
1126, 1153–1155 [claim forfeited]; People v. Bipialaka (2019)
34 Cal.App.5th 455, 464 [same].) The cases on which Marty
relies, however, all involved sentencing proceedings that took
place before Dueñas was decided, and are therefore inapplicable
here.
Marty also attempts to excuse his failure to object to the
imposed fines and fees by arguing that “there was not enough
time realistically for the practicing trial bar, and perhaps trial
courts, to be informed of the change in the law brought about
by Dueñas’[s] holding.” Given the significant constitutional
principles announced in Dueñas and resulting conflict among
appellate courts regarding its propriety, we disagree. Moreover,
irrespective of the holding in Dueñas, Marty had an opportunity
to object to the $6,000 restitution fine based on an inability to pay
because the statute authorizing the fine expressly permitted such
a challenge. (See § 1202.4,subds. (b)(1), (c) [defendant’s inability
to pay may be considered in increasing the restitution fine above
the $300 statutory minimum]; id., subd. (d) [defendant bears the
burden of demonstrating his or her inability to pay a restitution
fine in excess of the statutory minimum].) Marty never claimed
he was unable to pay the amount of the restitution fine imposed.
Marty’s failure to object to the $6,000 restitution fine at
sentencing leaves no doubt that he would not have objected to the
$240 in court operations assessments and the $180 in court
facilities assessments, regardless of whether he was aware of the
constitutional principles articulated in Dueñas. (See People v.
Gutierrez (2019) 35 Cal.App.5th 1027, 1033 [“if [defendant] chose
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not to object to a $10,000 restitution fine based on an inability to
pay, he surely would not complain on similar grounds regarding
an additional $1,300 in fees”].)
Marty further contends the forfeiture rule should not apply
in this case because his claim raises a pure question of law based
on undisputed facts, and it would have been futile to object to the
imposed fines and fees in the trial court. This contention likewise
fails. In challenging the imposition of the restitution fine and
assessments, Marty requests a factual determination of his
alleged inability to pay based on facts that are not conclusively
established by the record. The fact that Marty was represented
at trial by a public defender, and is represented on appeal by
appointed counsel, is insufficient, standing alone, to establish
indigency. (See People v. Frandsen, supra, 33 Cal.App.5th at
p. 1153 [rejecting defendant’s request to determine his alleged
inability to pay fines and fees “based on a record that contains
nothing more than his reliance on appointed counsel at trial”].)
Further, a timely objection to the restitution fine based on an
inability to pay would not have been futile under governing law,
which as discussed, clearly contemplates such an objection.
(§ 1202.4, subd. (d); see People v. Gutierrez, supra, 35 Cal.App.5th
at p. 1033.) Because Marty failed to object to the imposed fines
and fees in the trial court, he has forfeited this claim on appeal.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
KALRA, J.*
We concur:
EDMON, P. J.
LAVIN, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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