People v. Butchart CA2/7

Filed 9/16/20 P. v. Butchart CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B297507
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA444252)
v.
OMAR BUTCHART et al.,
Defendants and Appellants.
APPEAL from judgments of the Superior Court of
Los Angeles County, Robert J. Perry, Judge. Affirmed with
directions.
John Steinberg, under appointment by the Court of Appeal,
for Defendant and Appellant Omar Butchart.
David Andreasen, under appointment by the Court of
Appeal, for Defendant and Appellant Jose Urista.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, David E. Madeo, Acting Supervising
Deputy Attorney General, Thomas C. Hsieh, Deputy Attorney
General, for Plaintiff and Respondent.
________________________________
INTRODUCTION
Omar Butchart and Jose Urista appeal their convictions on
two counts of murder (Pen. Code, § 187, subd. (a)),1 assault with a
semiautomatic firearm (§ 245, subd. (b)), and shooting at an
occupied motor vehicle (§ 246). They contend (1) the trial court
abused its discretion in denying their motion for a mistrial after
the People’s gang expert testified about the significance of two
teardrop tattoos on Butchart’s face, (2) the trial court erred in
instructing the jury with CALCRIM No. 315, and (3) the trial
court erred in imposing certain fines and assessments without
determining their ability to pay, as required by People v. Dueñas
(2019) 30 Cal.App.5th 1157 (Dueñas). Urista separately contends
that the trial court failed to ask him under section 1200 if there
was any legal cause why the court should not pronounce
judgment and that the court’s failure to do so deprived him of a
fair hearing on his motion for new trial and for new counsel.
We conclude that the trial court did not abuse its discretion
in denying the motion for mistrial and that any error was
harmless. We also conclude that Butchart’s and Urista’s
challenge to CALCRIM No. 315 is forfeited and meritless and
that the trial court did not violate either defendant’s due process
rights under Dueñas. Finally, we conclude Urista has not shown
1 Undesignated statutory references are to the Penal Code.
2
the trial court’s failure to make the inquiry under section 1200
prejudiced him. Therefore, we affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Double Murder
Tiny Boys is a criminal street gang that operates in an area
east of downtown Los Angeles. Tiny Boys considers the Primera
Flats gang an ally, and the El Monte Flores gang a rival. Tiny
Boys uses the slur “Egg McMuffin” or “Muffin” to disparage
members of the El Monte Flores gang. Prospect Park is in the
territory claimed by Primera Flats.
On February 7, 2016 Henry Sanchez, Maria Cordova, and
Joshua Terrazas went to Prospect Park to smoke marijuana.
Sanchez and Terrazas both wore T-shirts displaying the words
“El Monte.” Sanchez also wore a Florida Marlins baseball team
hat with the letter “F” that the El Monte Flores gang had adopted
as its insignia. Sanchez was a member of the El Monte Flores
gang in high school, but was no longer an active member.
Terrazas felt unsafe wearing “El Monte” clothing in Prospect
Park because the park was not “El Monte Flores territory.”
While smoking, Terrazas noticed a black SUV circle the park.
Terrazas made eye contact with both the driver and the
passenger of the SUV. The driver and the passenger gave
Terrazas a “challenging stare.”
Terrazas had a “bad feeling,” and he, Sanchez, and Cordova
got into Cordova’s car and left the park. The black SUV followed,
and at a stop light the SUV pulled up next to Cordova’s car.
Butchart, armed with a gun, got out of the SUV and ran to the
passenger side of Cordova’s car. Sanchez, who was in the driver’s
3
seat, said, “I don’t want a beef with you fools.” Butchart replied,
“Fuck Muffins.” Sanchez said, “Don’t shoot me in front of
my . . . girlfriend.” Butchart opened fire at Sanchez, shooting
him three or four times. Sanchez “passed out,” Terrazas felt their
car speeding up because Sanchez’s foot was on the accelerator,
and Terrazas and Cordova tried unsuccessfully to stop the car.
The car careened “out of control,” traveling at a high rate of
speed, before it hit a van. Terrazas “passed out,” and when he
woke up, he found himself upside down in the car. Sanchez died
from two gunshot wounds to his chest. Cordova died from a
“massive skull fracture and neck fracture” she suffered in the car
crash.
B. The Investigation
Surveillance footage of the shooting showed a black SUV
stopping next to a white sedan at an intersection. The shooter
got out of the SUV with a gun in his right hand, ran to the
passenger side of the white sedan, fired shots into the car, and
ran back into the SUV. The surveillance video captured the
license plate of the black SUV, which detectives traced to Urista
as the registered owner. A gang expert recognized Butchart as
the shooter in the surveillance video. Urista, whose cell phone
listed Butchart in his contacts by his gang moniker, exchanged
text messages with Butchart a few days before the shooting.
Records of the signals transmitted by Butchart’s and Urista’s cell
phones showed the two phones were near each other and in the
area of Prospect Park at the approximate time of the shooting.
4
C. The Charges
The People charged Butchart and Urista with two counts of
murder (§ 187, subd. (a), counts 1 and 2), assault with a
semiautomatic firearm (§ 245, subd. (b), count 3), and shooting at
an occupied motor vehicle (§ 246, count 4).2 The People alleged
the special circumstances that Butchart committed more than
one murder (§ 190.2, subd. (a)(3)) and that he committed the
murders while an active participant in a criminal street gang and
to further the activities of the gang (§ 190.2, subd. (a)(22)). The
People also alleged Butchart and Urista committed the offenses
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 gang members, within the
meaning of section 186.22, subdivision (b).
As to counts 1, 2, and 4 the People alleged a principal
personally and intentionally used and discharged a firearm
causing death, within the meaning of section 12022.53,
subdivisions (b) through (e)(1). The People also alleged Butchart
personally and intentionally used and discharged a firearm
causing great bodily injury or death, within the meaning of
section 12022.53, subdivisions (b) through (d). As to count 3, the
People alleged Butchart personally used a firearm, within the
meaning of section 12022.5, subdivisions (a) and (d).
2 The People also charged Butchart with possession of
marijuana in a custodial facility (§ 4573.6, subd. (a), count 5), to
which Butchart pleaded guilty.
5
D. The Evidence at Trial
At trial Terrazas identified Butchart as the gunman and
Urista as the driver of the SUV. Terrazas testified that he made
eye contact with Butchart and Urista as the SUV drove by him
and his friends at the park and that he saw Urista stare into
Cordova’s car when Butchart shot Sanchez. Terrazas admitted
that he failed to identify either Butchart or Urista in previous
questioning by the police, but explained that he refused to
identify any of the participants in the shooting during the initial
investigation of his friends’ murders because he “was scared at
the time” of “the gangs in the neighborhood.”
Officer Jorge Talledo, a Los Angeles Police Department
gang expert, identified Butchart as the shooter in the
surveillance video of the shooting. Officer Talledo testified that
he had encountered Butchart eight to 10 times prior to the
shooting, that he could recognize Butchart on the street, and that
the tattoos, clothing, and “mannerisms” of the shooter on the
video matched Butchart’s tattoos, clothing, and mannerisms.
Officer Talledo testified he did not know of any other member of
the Tiny Boys gang or Primera Flats gang who had tattoos
similar to the “T” and “B” tattoos Butchart had on his calves.
Officer Steve Megliorino, another gang expert, testified
Tiny Boys gang members use (among other symbols) the letters
T and B to represent the gang. Butchart was a member of the
Tiny Boys gang, and Urista was an associate of the gang. Officer
Megliorino explained that a gang member commits a crime to
show loyalty or allegiance to the gang and that an associate
commits crimes for the gang to become a member of the gang.
Officer Megliorino testified, “The gang world . . . revolves around
intimidation and fear and respect.” If a young Hispanic male
6
wore a shirt that said “El Monte” in Prospect Park, a Tiny Boys
gang member would take it as a sign of disrespect and would
retaliate. If gang members did not retaliate when a rival gang
member encroached on their territory, “not only do they make
themselves look weak, they represent the gang and make the
gang look weak, and that can have bad consequences for that
gang.” Based on a hypothetical shooting that tracked the facts of
this case, Officer Megliorino testified the shooting was committed
for the benefit of the gang because committing a murder “gains
the ultimate respect and/or fear from other gang members and
fellow citizens.” Officer Megliorino explained the murder,
committed in “broad daylight,” “puts fear” in the community.
Officer Megliorino concluded, “A scared community is a
community that doesn’t call [the] police,” and “a community that
doesn’t call [the] police allows a gang as such to commit these
types of crimes unchecked.”
A federal agent testified the cell phone records of
Butchart’s and Urista’s cell phones “would support” the
prosecution’s theory that Butchart and Urista were together and
in the vicinity of Prospect Park and the scene of the crimes at the
time of the shooting. The agent also testified the cell phone
records showed Butchart and Urista moved geographically apart
from each other after the shooting.
The People presented evidence that, shortly after the
shooting, Butchart told his mother they needed “to move out
immediately,” but he did not give a reason. The police
apprehended Butchart in Mexico seven months later.
7
E. The Verdict and the Sentences
The jury found Butchart and Urista guilty on all counts
and found true all the allegations.3 The trial court sentenced
Butchart on count 1, the murder of Sanchez with the special
circumstance finding of multiple murders, to life in prison
without the possibility of parole, plus 25 years to life for the
firearm enhancement under section 12022.53, subdivision (d),
and 10 years for the gang enhancement under section 186.22,
subdivision (b). On count 2, the murder of Cordova with the
special circumstance finding of multiple murders, the court
sentenced Butchart to a consecutive term of life in prison without
the possibility of parole, plus 25 years to life for the firearm
enhancement under section 12022.53, subdivision (d), and
imposed but stayed under section 654 a term of 10 years for the
gang enhancement. On count 3, assault with a semiautomatic
firearm, the court imposed and stayed under section 654
execution of a sentence of nine years, and on count 4, shooting at
an occupied vehicle, the court imposed and stayed under section
654 execution of a sentence of seven years.
The trial court sentenced Urista on count 1, the murder of
Sanchez, to a prison term of 25 years to life, plus 25 years for the
firearm enhancement under section 12022.53, subdivisions (d)
and (e)(1). On count 2, the murder of Cordova, the court
sentenced Urista to a consecutive term of 25 years to life, plus 25
years to life for the firearm enhancement under section 12022.53,
subdivisions (d) and (e)(1). The court stated that, under section
186.22, subdivision (b)(5), Urista would not be eligible for parole
3 It does not appear the jury decided the special circumstance
allegation under section 190.2, subdivision (a)(22).
8
for 15 years on either count 1 or count 2.4 The court imposed and
stayed under section 654 execution of sentences of nine years on
count 3 and seven years on count 4. Butchart and Urista timely
appealed.
4 This was error. “A defendant who personally uses or
discharges a firearm in the commission of a gang-related offense
is subject to both the increased punishment provided for in
section 186.22 and the increased punishment provided for in
section 12022.53. In contrast, when another principal in the
offense uses or discharges a firearm but the defendant does not,
there is no imposition of an ‘enhancement for participation in a
criminal street gang . . . in addition to an enhancement imposed
pursuant to’ section 12022.53.” (People v. Brookfield (2009)
47 Cal.4th 583, 590; see § 12022.53, subd. (e)(2).) Because Urista
did not discharge a firearm, the court’s imposition of minimum
parole terms under section 186.22, subdivision (b)(5), resulted in
an unauthorized sentence and must be corrected. (See People v.
Anderson (2020) 9 Cal.5th 946, 962 [“[t]he unauthorized sentence
doctrine is designed to provide relief from forfeiture for ‘obvious
legal errors at sentencing that are correctable without referring
to factual findings in the record or remanding for further
findings’” and “applies when the trial court has imposed a
sentence that ‘could not lawfully be imposed under any
circumstance in the particular case’”]; People v. Zaldana (2019)
43 Cal.App.5th 527, 533 [where the defendant receives “an
unauthorized sentence, we must correct it”], review granted
Mar. 18, 2020, S259731.)
9
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in
Denying the Motion for a Mistrial
Butchart and Urista contend the “trial court erred
prejudicially by denying [their] motion for mistrial after a gang
expert testified that [Butchart’s] two teardrop tattoos signified he
had murdered two people.” Butchart and Urista argue the
“inadmissible opinion resulted in incurable prejudice, allowing
the jury to hear expert opinion testimony that [Butchart] had
murdered two people, in a trial for a double murder.” The trial
court did not err.
1. Relevant Proceedings
The prosecutor questioned Officer Talledo about several
tattoos on Butchart’s body. A photograph of Butchart taken after
February 2016 showed he had two tattoos on his face: one on his
forehead, above his right eyebrow, that spelled “Jayden” and
another by the corner of his left eye that appeared to be two
teardrops. Talledo testified that, prior to February 2016,
Butchart did not have these facial tattoos. The following
exchange occurred:
“[The Prosecutor]: Showing you . . . People’s [Exhibit] 68,
in your experience as a gang officer, what is the significance of a
gang member tattooing two teardrops next to their eye?
“[Counsel for Butchart]: Objection. Foundation.
“The Court: Overruled.
“[Officer Talledo]: In gang culture it signifies—it usually
signifies a murder that that person has committed.
“The Court: No. I’m going to strike that.
10
“[Counsel for Butchart]: Thank you.
“The Court: It signifies that he knows someone who has
been murdered, isn’t that your understanding?
“[Officer Talledo]: That is not my understanding.”
The trial court excused the jurors and expressed its dismay
Officer Talledo “suggested that . . . Butchart killed two people.
Now, he’s on trial for killing two people.” The court stated, “I am
very troubled by this.” The court explained that it had presided
over more than 300 murder trials and that the court “had it
explained on many occasions under oath by those gang experts
that the teardrop does not signify that someone killed someone,
but rather they are mourning the loss of a fellow gang member.”
The prosecutor responded, “I believed—my impression is that it
can signify someone has killed somebody. That’s my
understanding.” Counsel for Butchart moved for a mistrial and
argued that, had she known of this anticipated testimony, she
“would have objected . . . as overly prejudicial and inappropriate
in this case as an opinion.” Counsel for Urista joined in the
motion for a mistrial.
The court reiterated its concern about Officer Talledo’s
testimony: “I’m astonished that we’re having him say that the
fact that there are two teardrops on the cheek of the well-tattooed
defendant, who is on trial for a double murder, means he killed
two people.” The court stated that it disagreed with Officer
Talledo’s opinion, but that, if the tattoos meant that Butchart
had killed two people in this case or that Butchart put the tattoos
on his face intending to signify he was responsible for killing
people, the court would not have allowed Officer Talledo’s
testimony.
11
Counsel for Butchart stated she did not see how the court
could cure the “highly prejudicial, inappropriate testimony in this
case” because Butchart was on trial for multiple murders and
“the jury has now heard [Officer Talledo] say that these tattoos
mean that he murdered two people.” The court stated that
Officer Talledo “testified that he believes the tattoo means the
defendant has killed twice” and that “this is wholly inconsistent
with the court’s understanding based on the testimony of many
gang experts over the years.” The court observed, however, that
the People had “a very strong case” and concluded, “I do not think
it is significant [that] it requires a mistrial for the following
reasons: I think that I will strike the answer. I’m going to
instruct the People to get to the issue of the leg tattoos and that
this witness recognizes . . . the back of the calf tattoos, and then
we’re done with the witness. . . . The fact that it was well
established through cross-examination of the only eyewitness in
the case that tattoos were not seen[5] is, to me, the governing
factor here. Jurors are required to follow the court’s instructions.
I’m going to tell them to strike the testimony that the court
believes is of questionable validity regarding the significance of
the teardrop tattoos and we’re going to go on.”
The court instructed the jury: “I am striking testimony
that [Officer Talledo] gave and you may not consider this for any
reason. You can’t discuss it in the jury room. I am striking the
testimony he gave regarding the teardrop tattoos on the face of
Defendant Butchart. So just ignore that testimony. It’s not part
of the evidence in the case.”
5 Terrazas testified on cross-examination he did not see any
tattoos on the shooter.
12
2. Applicable Law and Standard of Review
“A court should grant a mistrial ‘“only when a party’s
chances of receiving a fair trial have been irreparably damaged.”’
[Citation.] This generally occurs when ‘“‘“the court is apprised of
prejudice that it judges incurable by admonition or
instruction.”’”’” (People v. Johnson (2018) 6 Cal.5th 541,
581.) “‘“Whether a particular incident is incurably prejudicial is
by its nature a speculative matter, and the trial court is vested
with considerable discretion in ruling on mistrial motions.”’”
(People v. Beck and Cruz (2019) 8 Cal.5th 548, 634.)
“‘“Although most cases involve prosecutorial or juror
misconduct as the basis for the motion [for a mistrial], a witness’s
volunteered statement can also provide the basis for a finding of
incurable prejudice.”’” (People v. Harris (2013) 57 Cal.4th 804,
848.) “Disclosing a defendant’s prior criminality to the jury can
prejudice the defendant’s case. But . . . courts have ‘considerable
discretion’ to determine whether such an error warrants granting
a mistrial or whether the error can be cured through
admonishment or instruction.” (People v. Perez (2018) 4 Cal.5th
421, 459.) ‘“Juries often hear unsolicited and inadmissible
comments and in order for trials to proceed without constant
mistrial, it is axiomatic the prejudicial effect of these comments
may be corrected by judicial admonishment; absent evidence to
the contrary the error is deemed cured.’” (People v. McNally
(2015) 236 Cal.App.4th 1419, 1428-1429.) “We review the trial
court’s refusal to grant a mistrial for abuse of discretion.” (People
v. Johnson, supra, 6 Cal.5th at p. 581.)
13
3. The Trial Court Did Not Abuse Its Discretion in
Denying the Motion for a Mistrial, and Any
Error Was Harmless
As a preliminary matter, the trial court’s recollection of
Officer Talledo’s testimony was not entirely accurate. When
discussing with counsel what appropriate curative action to take,
the court recounted that Officer Talledo “testified he believes it
[the two-teardrop tattoo] means the defendant has killed twice.”
The record, however, reflects the officer testified the tattoo of the
two teardrops in gang culture “usually signifies a murder that
that person has committed,” not two murders. Officer Talledo
never testified two teardrops meant Butchart committed two
murders.6
In light of Officer Talledo’s actual, more circumscribed
opinion, which the officer couched in general terms (“usually
signifies”) and did not tie to the specific facts of the case (the
murders of Sanchez and Cordova, or even two unspecified
murders), the trial court did not abuse its discretion in denying
the motion for a mistrial. The court also cured any prejudice by
striking the statement and admonishing the jury. We “presume,
as always, that the jury followed the court’s instructions.”
(People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 292; see
People v. Franklin (2016) 248 Cal.App.4th 938, 956 [“[b]ecause we
presume the jury followed [the] instructions [citation], we deem
any possible prejudice from [the] remarks [about the defendant’s
6 The trial court, in an (ultimately misguided) attempt to
clarify Officer Talledo’s testimony, also referred to what the court
believed the tattoo signified in the singular: “It signifies that he
knows someone who has been murdered, isn’t that your
understanding?”
14
criminal history] to have been cured”]; People v. McNally, supra,
236 Cal.App.4th at p. 1429 [‘“It is only in the exceptional case
that “the improper subject matter is of such a character that its
effect . . . cannot be removed by the court’s admonitions.”’”].)
Butchart and Urista argue Officer Talledo’s opinion
“constituted evidence of [Butchart’s] criminal propensity” and
“resulted in incurable prejudice.” Statements about a defendant’s
prior criminal conduct do not necessarily create incurable
prejudice requiring a mistrial. (See, e.g., People v. Dalton (2019)
7 Cal.5th 166, 240 [witness’s comment the defendant “had
molested [the witness’s] children was not ‘so incurably prejudicial
that a new trial was required’”]; People v. Johnson, supra, 6
Cal.5th at p. 581 [trial court did not abuse its discretion in
denying a motion for a mistrial based on a witness’s statement
the defendant, on trial for committing a double murder, “‘had
already beat two cases like this already’”]; People v. Perez, supra,
4 Cal.5th at p. 459 [trial court did not abuse its discretion in
denying a motion for a mistrial based on a codefendant’s
comment the defendant “‘just got out of the penitentiary’”]; People
v. Ledesma (2006) 39 Cal.4th 641, 682-683 [witness’s statements
the defendant had been on death row as a result of prior
proceedings in the same case did not warrant a mistrial].) And
when Officer Talledo gave his opinion about the significance of a
particular tattoo in gang culture, he did not refer to Butchart
specifically. Officer Talledo’s general comment, which the court
struck and instructed the jury to disregard, did not violate
Butchart’s and Urista’s due process rights or irreparably damage
their chances of receiving a fair trial. (See People v. McNally,
supra, 236 Cal.App.4th at p. 1429.)
15
Butchart and Urista also argue Officer Talledo’s statement
“was an inadmissible opinion on the ultimate issue at trial,
invaded the province of the jury, and violated [their] federal
constitutional rights to due process and a fair trial” because “[t]he
. . . opinion amounted to the gang expert’s opinion that [Butchart
and Urista] murdered the victims, or had murdered others.” The
record does not support that argument. Putting aside that the
court did not admit the allegedly inadmissible testimony and
instructed the jury to disregard it, Officer Talledo gave proper
opinion testimony about a subject in which he had “‘“special
knowledge, skill, experience, training, [and] education.”’” (People
v. Vang (2011) 52 Cal.4th 1038, 1044; see ibid. [“[t]he subject
matter of the culture and habits of criminal street gangs” is
“‘“sufficiently beyond common experience that the opinion of an
expert would assist the trier of fact”’”]; People v. Ochoa (2001) 26
Cal.4th 398, 437-438 [trial court did not abuse its discretion in
admitting a gang expert’s testimony that the “187” tattooed on
the defendant’s forehead after the homicides occurred referred to
the Penal Code section for murder]; People v. Williams (2009) 170
Cal.App.4th 587, 609 [“a properly qualified gang expert may
testify about a wide range of issues, including a gang’s territory,
retaliation, graffiti, hand signals, tattoos, and clothing”]; see also
People v. Sanchez (2016) 63 Cal.4th 665, 676 [“[a]n expert is also
allowed to give an opinion about what [case-specific] facts may
mean”].) Officer Talledo did not tell the jury that he thought
Butchart was guilty or that the two teardrop tattoos meant
Butchart killed the two victims in this case. In fact, neither the
prosecutor’s question nor Officer Talledo’s response mentioned
Butchart. (See People v. Prince (2007) 40 Cal.4th 1179, 1227
[rejecting the defendant’s contention an expert testified about the
16
ultimate issue of the defendant’s guilt because the expert “did not
testify that defendant was guilty, nor . . . tell the jury whom to
believe or direct the jury toward a specific conclusion on any
element of the charged crimes”].)
Urista separately argues Officer Talledo’s statements
“were . . . hearsay and no exception applied that would have
allowed their use against Urista.” Urista forfeited this argument,
however, by failing to make this objection at trial. (See People v.
Clark (2016) 63 Cal.4th 522, 574 [defendant’s failure to object to
the admission of alleged hearsay testimony forfeited his
argument on appeal].) Even if preserved, Urista’s argument fails.
The statements were not hearsay; they were admissible
statements of the gang expert’s opinion. (See People v. Anthony
(2019) 32 Cal.App.5th 1102, 1139 [gang expert’s “testimony about
the significance of . . . tattoos and gang signs was similar to that
identified as admissible background information in Sanchez[,
supra, 63 Cal.4th 665]”].) Moreover, as discussed, the trial court
cured any prejudice by striking Officer Talledo’s opinion and
admonishing the jury to disregard it, an admonition we again
presume the jury followed.
Finally, any error in denying the motion for a mistrial was
harmless under the standard of People v. Watson (1956) 46 Cal.2d
818, 836 (Watson). (See People v. Welch (1999) 20 Cal.4th 701,
749-750 [Watson harmless error standard applies to the denial of
motion for a mistrial based on erroneous admission of evidence];
People v. Harris (1994) 22 Cal.App.4th 1575, 1581 [same]; People
v. Williams (1981) 115 Cal.App.3d 446, 453 [same]; see also
People v. DeHoyos (2013) 57 Cal.4th 79, 120 [admission of expert
testimony the defendant knew the difference between right and
wrong was harmless because “there is no reasonable probability
17
the jury would have reached a more favorable verdict if the trial
court had not allowed [the expert witness] to answer this
question”].)7 As the trial court observed, the prosecution had “a
very strong case.” Terrazas, who made eye contact with Butchart
and Urista at the shooting, identified them at trial as the
individuals who killed his friends. Officer Talledo recognized
Butchart as the shooter in the surveillance video based on
Butchart’s tattoos, clothing, and demeanor. The SUV in the
surveillance video was Urista’s. Cell phone records placed
Butchart and Urista in the area of the park near the time of the
shooting. And there was evidence that there was a gang motive
for the shooting and that Butchart’s actions in telling his mother
they had to move immediately and in fleeing to Mexico
manifested a consciousness of guilt. It was not reasonably
probable that, even if Officer Talledo had not made the (stricken)
comment about Butchart’s teardrop tattoos, the result of the trial
would have been different. (See People v. Johnson, supra,6 Cal.5th at p. 582 [“the evidence that [the witness] feared
defendant was quite strong, even leaving aside the reference to
defendant having beaten ‘two cases like this already’”]; People v.
7 The more stringent harmless error standard of Chapman v.
California (1967) 386 U.S. 18, 24 [87 S.Ct. 824] does not apply
because the error Butchart and Urista contend the trial court
made did not rise to the level of a federal constitutional violation.
(Cf. People v. Dunn (2012) 205 Cal.App.4th 1086, 1092, 1100
[applying both Watson and Chapman standards to assess
prejudice where the defendant contended the trial court’s denial
of his motion for a mistrial based on the unexpected
unavailability of his expert witness “deprived him of the
opportunity to present evidence on a ‘critical element in the case,
in violation of [his] fair trial and due process rights’”].)
18
Dunn (2012) 205 Cal.App.4th 1086, 1100 [denial of a motion for a
mistrial “was harmless” where “[t]he evidence of [the defendant’s]
guilt, ‘though [partially] circumstantial, was tight and strong’”].)
Urista contends separately that Officer Talledo’s opinion
testimony about Butchart’s teardrop tattoos prejudiced him
because “Urista’s guilt was closely tied to Butchart’s,” and
“[a]part from his connection to Butchart, the evidence against
Urista . . . was subject to competing inferences and was not
especially strong.” The record does not support Urista’s
contention. Terrazas not only identified Urista at trial, but he
also stated he identified Urista in a prior court proceeding. The
surveillance video showed Urista’s SUV transporting the driver
and gunman to the site of the shooting. Cell phone data showed
Urista’s cell phone accessing cellular towers in the vicinity of the
crime scene before and after the shooting. Photographs showed
Urista’s association with the Tiny Boys gang. Although the
prosecution presented Butchart and Urista as partners in crime,
the jury heard considerable evidence of Urista’s individual guilt.
Butchart and Urista also contend the prosecutor
“exacerbated the error” by referring to the two teardrop tattoos in
closing argument. The record again does not support this
contention. The prosecutor referred to Butchart’s facial tattoos to
explain how Butchart changed his appearance after the murders
by getting facial tattoos, including a tattoo of the name “Jayden”
across his forehead, and wearing his hair longer (“pulled back in
a ponytail”) to avoid identification.8 The prosecutor did not
8 Terrazas told detectives the shooter “might have been
bald.” The prosecution introduced a photograph of Butchart from
August 2015 showing him with closely-cropped hair.
19
discuss or refer to the meaning of the teardrop tattoos in closing
argument. In any event, neither Butchart nor Urista objected to
the prosecutor’s argument about Butchart’s facial tattoos and
change of appearance, thus forfeiting the argument. (See People
v. Hoyt (2020) 8 Cal.5th 892, 952 [“‘to preserve any claim of
prosecutorial misconduct, there must be a timely objection and
request for admonition’”]; People v. Powell (2018) 6 Cal.5th 136,
171 [“‘To preserve such a claim for appeal, “a criminal defendant
must make a timely and specific objection and ask the trial court
to admonish the jury to disregard the impropriety.”’”].)9
B. The Trial Court Did Not Err in Instructing the Jury
with CALCRIM No. 315
1. Relevant Proceedings
The trial court instructed the jury with CALCRIM No. 315
regarding how to consider eyewitness identification evidence.
The court instructed: “You have heard eyewitness testimony
9 Butchart and Urista also argue the prosecutor committed
misconduct by intentionally eliciting the objectionable opinion
testimony from Officer Talledo. By failing to object on this
ground at trial, however, they forfeited the argument. (See
People v. Redd (2010) 48 Cal.4th 691, 746-747 [defendant
forfeited the argument the prosecutor “improperly introduced
evidence of future dangerousness” because the defendant did not
object on that basis, and “the objection must be made upon the
same ground as that which the defendant assigns as error on
appeal”]; People v. Sapp (2003) 31 Cal.4th 240, 279 [defendant’s
failure to object and request an admonition forfeited his
contention the prosecutor committed misconduct by eliciting
“propensity evidence” the defendant committed one or more
homicides].)
20
identifying the defendants. As with any other witness, you must
decide whether an eyewitness gave truthful and accurate
testimony. In evaluating identification testimony, consider the
following questions.” Among the 15 questions CALCRIM No. 315
lists for the jury to consider is the one challenged by Butchart
and Urista: “How certain was the witness when he or she made
an identification?” The instruction concludes with the reminder:
“The People have the burden of proving beyond a reasonable
doubt that it was the defendants who committed the crimes. If
the People have not met this burden, you must find the
defendants not guilty.” Butchart and Urista did not object when
the court instructed the jury with CALCRIM No. 315.
2. Butchart and Urista Forfeited Their Argument
Butchart and Urista argue CALCRIM No. 315 “authorized
[their] conviction[s] based upon unreliable evidence, in violation
of [their] federal constitutional right to due process.” Butchart
and Urista, however, forfeited their challenge to CALCRIM No.
315 because they did not object to the instruction at trial or ask
the trial court to delete the certainty factor from the instruction.
(See People v. Sanchez, supra, 63 Cal.4th at p. 461 [“If defendant
had wanted the court to modify the [predecessor to CALCRIM
No. 315], he should have requested it.”]; People v. Rodriguez
(2019) 40 Cal.App.5th 194, 199 [defendant’s failure to object to
CALCRIM No. 315 forfeited his challenge to the instruction on
appeal].) Contrary to the assertion by Butchart and Urista, the
trial court did not have a sua sponte duty to modify the
instruction. (See Sanchez, at p. 461; People v. Ward (2005) 36
Cal.4th 186, 213.)
21
3. CALCRIM No. 315 Accurately States Current
California Law
Even if preserved, the argument lacks merit. We review de
novo whether an instruction correctly states the law. (People v.
Rodriguez, supra, 40 Cal.App.5th at p. 199.) The California
Supreme Court has upheld and approved CALJIC No. 2.92, the
virtually identical predecessor to CALCRIM No. 315. (See People
v. Sanchez, supra, 63 Cal.4th at pp. 461-462; People v. Johnson
(1992) 3 Cal.4th 1183, 1230-1232.) As with CALJIC No. 2.92,
CALCRIM No. 315 lists the certainty factor in a “neutral”
manner and does “not suggest that certainty equals accuracy.”
(Sanchez, at p. 462; see Rodriguez, at p. 200 [trial court did not
err in instructing the jury on the certainty factor in CALCRIM
No. 315].)
Butchart and Urista acknowledge this authority but cite
the statement from Justice Liu’s concurring opinion in People v.
Sanchez, supra, 63 Cal.4th 411 that, “[i]n light of developments
in scientific research and recent case law, there is a substantial
question whether it is proper for trial courts to instruct that
witness certainty is a factor bearing on the accuracy of an
identification that juries should consider.” (Id. at p. 498
(conc. opn. of Liu, J.).) The California Supreme Court has
granted review in People v. Lemcke (June 21, 2018, G054241)
[nonpub. opn.] [2018 WL 3062234], review granted October 10,
2018, S250108, to decide whether instructing a jury with
CALCRIM No. 315 that it can consider an eyewitness’s level of
certainty in evaluating the reliability of the identification violates
a defendant’s due process rights. Until the Supreme Court
overrules Sanchez, it binds us.
22
C. The Trial Court Did Not Violate Butchart’s and
Urista’s Constitutional Rights by Imposing
Restitution Fines and Court Assessments Without
Determining Either Defendant’s Ability To Pay
Butchart and Urista argue the trial court violated their due
process rights under Dueñas by imposing fines and assessments
without determining either defendant’s ability to pay them. The
record, however, does not support their argument.
1. Relevant Proceedings
The trial court imposed on Butchart a $300 restitution fine
under section 1202.4, subdivision (b), a $40 court operations
assessment under section 1465.8, subdivision (a)(1), for each of
his five convictions, and a $30 court facilities assessment under
Government Code section 70373 for each of his five convictions.
The trial court stated, “The court is aware of the decision of the
appellate court that the defendant is entitled to an ability-to-pay
hearing. I frankly disagree with that decision and don’t find it
binding in a case like this. Because the defendant is getting such
a long time in prison, that other authorities say he will have time
to earn money toward the fines and any restitution that is
ultimately imposed.” Butchart did not object to the restitution
fine or the court operations and court facilities assessments the
trial court imposed or to the court’s finding he would be able to
earn money in prison to pay the fine and assessments.
The trial court imposed on Urista a $300 restitution fine
under section 1202.4, subdivision (b), a $300 parole revocation
fine of $300 under section 1202.45,10 a $40 court operations
assessment under section 1465.8, subdivision (a)(1), for each of
10 The trial court stayed this fine.
23
his four convictions, and a $30 court facilities assessment under
Government Code section 70373 for each of his four convictions.
The court stated, “And I do find that the defendant will have
enough time to earn money toward the payment of the fines and
fees imposed today given the length of the sentence the court has
imposed.” Urista did not object to the fines and assessments the
trial court imposed or to the court’s finding he would have time
and earning capacity to pay the fine and assessments.
2. Applicable Law
“[T]he assessment provisions of Government Code section
70373 and . . . section 1465.8, if imposed without a determination
that the defendant is able to pay, are . . . fundamentally unfair”
because “[t]hese additional, potentially devastating consequences
suffered only by indigent persons in effect transform a funding
mechanism for the courts into additional punishment for a
criminal conviction for those unable to pay.” (Dueñas, supra, 30
Cal.App.5th at p. 1168.) “[D]ue process of law requires the trial
court to conduct an ability to pay hearing and ascertain a
defendant’s present ability to pay before it imposes court facilities
and court operations assessments under . . . section 1465.8 and
Government Code section 70373.” (Dueñas, at p. 1164; see People
v. Santos (2019) 38 Cal.App.5th 923, 934; People v. Kopp (2019)
38 Cal.App.5th 47, 95-96, review granted Nov. 13, 2019,
S257844).)11 “[T]he execution of any restitution fine imposed
11 The Supreme Court granted review in Kopp to consider
these issues: Must a court consider a defendant’s ability to pay
before imposing or executing fines, fees, and assessments? If so,
which party bears the burden of proof regarding defendant’s
inability to pay?
24
under [section 1202.4, subdivision (b),] must be stayed unless and
until the trial court holds an ability to pay hearing and concludes
that the defendant has the present ability to pay the restitution
fine.” (Dueñas, at p. 1164; see People v. Belloso (2019) 42
Cal.App.5th 647, 655, review granted Mar. 11, 2020, S259755;
People v. Jones (2019) 36 Cal.App.5th 1028, 1030-1031.) A
“defendant must in the first instance contest in the trial court his
or her ability to pay the fines, fees and assessments to be imposed
and at a hearing present evidence of his or her inability to pay
the amounts contemplated by the trial court.” (People v.
Castellano (2019) 33 Cal.App.5th 485, 490; see Santos, at p. 934
[“it is the defendant’s burden to demonstrate an inability to pay,
not the prosecution’s burden to show the defendant can pay”].)
3. The Trial Court Considered Both Defendants’
Ability To Pay the Fines and Assessments
The trial court sentenced Butchart and Urista on March 13,
2019, approximately two months after we issued our decision in
Dueñas. When the court sentenced Butchart, the court stated it
disagreed with Dueñas and believed it was not binding.
Nevertheless, the court also found that, given Butchart’s long
prison sentence, he would have the ability to pay the fines and
assessments the court was imposing. The trial court made a
similar and more definitive finding regarding Urista. Thus, to
the extent Butchart and Urista did not forfeit their argument
under Dueñas, the trial court considered Butchart’s and Urista’s
potential to earn prison wages and determined they had the
ability to pay. (See People v. Kopp, supra, 38 Cal.App.5th at p. 96
[“the trial court should not limit itself to considering only
whether [the defendants] have the ability to pay at the time of
25
the sentencing hearing”]; People v. Castellano, supra, 33
Cal.App.5th at p. 490 [“The trial court . . . must consider all
relevant factors in determining whether the defendant is able to
pay the fines, fees and assessments to be imposed. Those factors
may include, but are not limited to, potential prison pay during
the period of incarceration to be served by the defendant.”].) In
addition to potential prison wages, there was evidence Urista
bought the SUV used in the crime, owned several cell phones,
and had “an employment history of sales and warehouse labor.”
D. The Trial Court’s Failure To Ask Urista if There Was
Any Legal Cause Why the Court Should Not
Pronounce Judgment Did Not Prejudice Him
At the sentencing hearing, the trial court gave counsel for
Urista the court’s indicated sentence and stated, “If you care to
comment on the court’s tentative, I’m happy to hear from you.”
Counsel for Urista replied, “I would submit on it, Your Honor.”
The court asked counsel for Urista, “I did ask you if you waived
arraignment for judgment and sentence?” Counsel for Urista
replied, “Yes, we do.” The trial court did not ask counsel for
Urista whether there was any legal cause why the court should
not pronounce the sentence. Neither counsel for Urista nor
Urista made any objections or motions before the court
pronounced the sentence.
1. Applicable Law
Section 1200 provides: “When the defendant appears for
judgment he must be informed by the Court . . . of the nature of
the charge against him and of his plea, and the verdict, if any
thereon, and must be asked whether he has any legal cause to
show why judgment should not be pronounced against him.” (See
26
People v. Evans (2008) 44 Cal.4th 590, 594.) Section 1201,
subdivision (b), states: “He or she may show, for cause against
the judgment: [¶] That he or she has good cause to offer, either in
arrest of judgment or for a new trial; in which case the court may,
in its discretion, order the judgment to be deferred, and proceed
to decide upon the motion in arrest of judgment or for a new
trial.”12
While the requirement under sections 1200 and 1201 “that
the question be asked is substantial and a failure to ask it is fatal
to the judgment if the defendant has been deprived of counsel
[citation], it is not fatal where defendant is present and
represented by counsel and no prejudice appears.” (People v.
Thomas (1955) 45 Cal.2d 433, 438; see id. at pp. 438-439 [trial
court’s failure to inquire under section 1200 did not prejudice the
defendant because the “[d]efendant’s counsel was fully advised of
all circumstances bearing upon the degree of the crime and
punishment to be imposed and had an opportunity to present
them at the hearing” and “no objection was made”]; People v.
Ornelas (2005) 134 Cal.App.4th 485, 488 [‘“Although [section
1200] is couched in mandatory language, lack of compliance has
been deemed fatal to the judgment on only rare occasions, in
12 “In legal parlance, the term ‘allocution’ has traditionally
meant the trial court’s inquiry of a defendant as to whether there
is any reason why judgment should not be pronounced.
[Citations.] In recent years, however, the word ‘allocution’ has
often been used for a mitigating statement made by a defendant
in response to the court’s inquiry.” (People v. Evans, supra, 44
Cal.4th at p. 592, fn. 2.) Urista’s contention the court failed to
comply with section 1200 concerns the traditional meaning of
allocution.
27
almost all of which [the] defendant was without counsel.’”];13
People v. Maese (1980) 105 Cal.App.3d 710, 724 [trial court’s
failure to ask the defendant if he had “‘any legal cause to show
why judgment should not be pronounced against him’” was “‘not
fatal’” because ‘“the defendant [was] present and represented by
counsel and no prejudice appears’”]; People v. Sanchez (1977) 72
Cal.App.3d 356, 359 [“Even the failure to ask [the] question
[stated in section 1200] does not require reversal where the
defendant is represented by counsel and no prejudice appears.”].)
2. The Trial Court’s Failure To Comply With
Section 1200 Did Not Prejudice Urista
Urista contends the trial court’s failure to ask him if there
was any legal cause why the court should not pronounce
judgment “denied [him] a fair hearing on his motion for a new
trial and new counsel.” The record does not support this
contention. The trial court explicitly informed the parties on
January 23, 2019 after dismissing the jury that on March 13,
2019 the court would sentence Urista and hear “any motions.”
Urista had seven weeks to file a motion for new trial. (See
§ 1182; People v. Braxton (2004) 34 Cal.4th 798, 807.) Nothing
about the trial court’s failure to make the inquiry under section
1200 precluded Urista from making a motion for new trial in that
13 See, e.g., People v. Skinner (1966) 241 Cal.App.2d 752,
757-758 (trial court’s failure to ask a self-represented defendant
whether he had legal cause to show why the court should not
pronounce judgment “was fatal to the judgment” because “no
motion for a new trial had yet been made” and, “[l]acking the
allocution required by section 1200, and lacking any other advice
as to his rights, it is clear that defendant was not made aware” a
motion for new trial “was open to him.”)
28
seven-week period before the sentencing hearing or even an oral
motion at the sentencing hearing. The allocution required by
section 1200 was not the only time Urista could have made a
motion for new trial.
Because Urista had the benefit of counsel, “it was the
function of that counsel, rather than of the defendant himself, to
address the court on [his] behalf.” (People v. Cross (1963) 213
Cal.App.2d 678, 682; see id. at p. 680 [defendant did not have a
right to personally address the court after counsel stated “there
was no legal cause” why judgment should not be pronounced]; see
also People v. Hamilton (1989) 48 Cal.3d 1142, 1163 [“[w]hen the
accused exercises his constitutional right to representation by
professional counsel, it is counsel, not defendant, who is in charge
of the case”].) Counsel for Urista chose not to make a motion for
new trial. When the trial court asked counsel for Urista if he
wanted to comment on the indicated sentence, counsel for Urista
submitted on the court’s tentative. As in People v. Thomas,
supra, 45 Cal.2d at page 438, counsel did not object he did not
have an opportunity to address the court before the court
pronounced the judgment. And Urista gave every indication at
the sentencing hearing (through his silence and failure to object
to the sentence) he was ready to have the court pronounce
judgment. Thus, it is not reasonably probable that, had the court
asked counsel for Urista if there was any legal cause why the
court should not pronounce judgment, counsel would have replied
in the affirmative. (See Cross, at p. 684 [applying Watson to the
trial court’s failure to allow counsel to make a supplemental
statement in mitigation after the court began pronouncing
judgment].)
29
The record also belies Urista’s assertion that, had the trial
court inquired under section 1200, Urista would have moved for a
new trial and for new counsel. Urista never suggested he wanted
substitute counsel. (See People v. Sanchez (2011) 53 Cal.4th 80,
87-88 [‘“[w]e do not necessarily require a proper and formal legal
motion, but at least some clear indication by [the] defendant that
he wants a substitute attorney’”]; People v. Lucero (2017)
18 Cal.App.5th 532, 539 [same].) As with his motion for new
trial, Urista had ample time and opportunity to make a motion
for new trial based on ineffective assistance of counsel or a
motion for substitute counsel, but he did neither. The court’s
failure to ask if there was any legal cause why the court should
not pronounce judgment did not curtail Urista’s right to bring a
motion for new trial or for new counsel, nor did it deprive him of
a “fair hearing” on any such a motion. “[N]o prejudice appears”
(People v. Thomas, supra, 45 Cal.2d at p. 438) from the trial
court’s failure to comply with section 1200.
30
DISPOSITION
The judgment in Butchart’s case is affirmed. The judgment
in Urista’s case is modified to strike the 15-year minimum parole
eligibility term on count 1 and count 2, and as modified, is
affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
31