People v. Mitchell CA4/3

Filed 3/23/21 P. v. Mitchell CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G058856
v. (Super. Ct. No. 19CF2693)
TORY BRIAN MITCHELL, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Michael
A. Leversen, Judge. Affirmed as modified.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson,
Kristine Gutierrez and Felicity Senoski, Deputy Attorneys General, for Plaintiff and
Respondent.
* * *
A jury convicted appellant Tory Brian Mitchell of assault with a deadly
weapon — a bicycle chain with an attached metal carabiner. (Pen. Code, § 245, subd.
(a)(1).)1 The trial court separately found true prior conviction allegations of two serious
felonies, two strikes, and three prison commitments. (§§ 667, subds. (a)(1), (d) &
(e)(2)(A), 1170.12, subds. (b) & (c)(2)(a), and 667.5, subd. (b).) It sentenced Mitchell to
an 11-year term, comprising a doubled two-strike midterm of six years for the assault,
plus an additional five years for one serious felony prior. One strike, one serious felony
prior, and all three prison priors were stricken.
Mitchell raises four claims on appeal: (1) The trial court prejudicially erred
by allowing the prosecution to introduce hearsay evidence of witnesses who identified
Mitchell as the assailant and initial aggressor; (2) insufficient evidence showed the chain
Mitchell used was a deadly weapon or one likely to cause great bodily injury; (3) the
prosecutor committed misconduct during her closing arguments; and (4) several
postconviction costs and fee assessments must be stricken because the court failed to
orally impose them at the time of judgment.
We reject the first three contentions, but partially agree with the fourth.
Mitchell affirmatively waived any impropriety in the two mandatory fee assessments he
now questions on appeal. Mitchell, however, did not waive his objection to a
nonmandatory booking fee and it must be stricken. Further, the abstract of judgment
must be corrected to reflect the actual restitution and parole revocation fines the court
orally imposed. The judgment is therefore affirmed as modified.
I
FACTUAL BACKGROUND
One September afternoon, F. Ortiz was standing near her mother’s Santa
Ana house, talking on her cell phone. Across the street Ortiz saw a group of homeless
1
All further undesignated statutory references are to the Penal Code.
2
people sitting together. Among them were two men Ortiz identified in a photograph
shown to her at trial. One was a shirtless man, Mitchell, and the second was an “older
man,” Brian B.
Ortiz heard Mitchell scream at the older man, telling him he had to buy
Mitchell a beer because the older man had spilled Mitchell’s beer. She said, “He was
saying, ‘Bitch, buy me my beer. After you spilled my beer, you didn’t want to buy one –
you don’t want to buy a beer for me.’”
Ortiz watched as Mitchell then took a bicycle chain out of his backpack and
repeatedly beat the older man with it 6 to 10 times. The older man tried to shield himself,
first with his hands and then with a bicycle. He tried to walk away, but fell with the
bicycle on top of him. While he was down, Mitchell “started kicking him.” Someone
helped the older man get up, but Mitchell pushed him back down. Police arrived in about
10 minutes. Ortiz testified she spoke to several police officers that day, and told them
what she observed.
At about the same time, M. Sanchez was driving by when she saw one man
being struck with a chain, and the man being hit pick up a bicycle to shield himself. She
pulled over and called 911. Sanchez testified that when police arrived, she “point[ed] out
who was involved . . . [;] the shirtless man as the man with the chain and . . . the other
man as the man being hit.”
Along with other officers, Santa Ana police officers James Babinski and
Mike Nolan responded. Babinski found a bicycle chain in the shrubbery near where
Mitchell had been instructed to sit on the curb.
Paramedics treated Brian B. for minor injuries. There was redness and
irritation to his back and head, some “surface” blood, and an abrasion to his knee. The
redness on his back showed clear impressions of a bicycle chain. Brian B. declined an
offer to take him to the hospital. Mitchell had no visible injuries.
3
II
DISCUSSION
A. Hearsay
Mitchell first contends the trial court erred “in admitting hearsay testimony
by Officer Nolan that witnesses at the scene told him [Mitchell] was the perpetrator, and
that [Brian B.’s] statement was consistent with the 911 call.” The first claim is forfeited
for a failure to object, but even on the merits, any purported evidentiary error was
harmless. As for the second claim, no error occurred because the court sustained defense
counsel’s objections to the prosecutor’s multiple unsuccessful attempts to elicit evidence
of Brian B.’s statements to police.
1. Additional Background
Brian B. did not testify. At trial, Ortiz described the initial assailant as a
tall man, with “light skin,” and wearing pants but no shirt. Sanchez also testified the man
with the chain was shirtless. There was no evidence of any other shirtless men at the
scene except Mitchell.
The prosecutor showed Ortiz a photograph of two men, and she testified it
depicted the two men involved in the incident.2 She said Mitchell in the photograph was
the “man who took the chain out,” and the older man in the photo was the one “that
shirtless guy was yelling at.”
Sanchez was shown the same photograph at trial, and she also identified the
two people depicted in the photograph as the same two men involved in the incident. She
testified Mitchell in the photo was the man wielding the chain, and “the person that was
being hit is the man with a shirt on.” Sanchez added that when police arrived, she
“verbally” “point[ed] out who was involved[;] . . . the shirtless man [was] the man with
2
The photograph, admitted as People’s Exhibit 2, is a “[c]olor photograph depicting
two males; one male without a shirt and the other male wearing a blue shirt sitting on a
cement ledge. . . .”
4
the chain and . . . the other man [was] the man being hit.” Neither Ortiz or Sanchez was
asked to identify Mitchell in court as the shirtless man.
Babinski testified he was called to the scene of an assault and on arrival
contacted Mitchell, among others. At trial, he testified he took the photograph shown to
Ortiz and Sanchez, explaining it was a still photo taken from his body camera video. He
also pointed out Mitchell in court as the shirtless man depicted in the photo. No
objection was lodged to this identification.
Babinski explained he spoke to several witnesses at the scene and, in doing
so, he was “pointed to an alleged victim and an alleged aggressor,” both of whom he said
were depicted in the body camera photo. Again, Mitchell lodged no objection.
Nolan testified he also was called to the scene. When shown the photo
exhibit shown to the other witnesses, he too identified Mitchell in court as the shirtless
man depicted in the photo.
The prosecutor then asked Nolan a question calling for a “yes” or “no”
answer: “Did you learn while you were there that someone had been a potential
aggressor in a fight?” Defense counsel objected on foundational and hearsay grounds.
The court asked the prosecutor, “What’s it offered for?” and the prosecutor responded,
“To explain his next steps, you honor.” The court overruled the objection, stating “It’s
not offered for the truth that this person he talked to was actually the aggressor.” (Italics
added.)
The prosecutor reframed the question and asked: “And so someone was
pointed out then as a potential aggressor . . . correct?” Nolan replied, “That’s correct.”
No objection was made to this question and answer.
The prosecutor then inquired as to who had been pointed out as the
potential aggressor: “Did you contact that [potential aggressor]?” Nolan replied he did.
The prosecutor asked Nolan whether he saw that person in court, and he identified
Mitchell. Again, defense counsel did not object to these questions and answers.
5
Thus, Nolan testified the person he talked to, Mitchell, was the aggressor
solely based on who was “pointed out” to him while he was “talking to witnesses on the
scene.” And despite the court’s earlier ruling on the simple question as to what Nolan did
next, the prosecutor had gone much further, eliciting evidence that Mitchell was the
person “pointed out” as the assailant. In other words, she elicited this testimony for its
truth. Although Nolan’s basis for testifying Mitchell was identified at the scene as the
aggressor was hearsay, defense counsel did not object to this line of questioning or to
Nolan’s responses.
The prosecutor then asked Nolan whether the second person depicted in the
photograph, Brian B., “was described to you as the potential or alleged victim in the
case.” Nolan did not answer because the trial court sustained a hearsay objection.
The prosecutor rephrased her question, “Did you talk to the second person
depicted in [the photo]?” and Nolan replied he did. The prosecutor asked, “And in
talking to that [second person], was that consistent with what you were told that person’s
role was on scene?” Defense counsel’s hearsay objection was overruled because it called
for a yes or no answer, not for what was said. When the prosecutor repeated the question,
the court sustained defense counsel’s relevance and vagueness objections.
The prosecutor tried again, but ended up with the same results: Nolan
talked to the second person, who told Nolan what happened. But when asked whether
this person’s statement to Nolan was “consistent with what the other officers had told
[Nolan] had occurred . . . when [Nolan] arrived on the scene,” and whether it was
“consistent with the call for service,” the trial court sustained hearsay objections.
The prosecutor sought to use other photo exhibits, which depicted Brian
B.’s injuries, to slip in the fact Brian B. was “identified in this investigation” as “the
6
victim,” but defense counsel’s objection was again sustained.3 The prosecutor finally
gave up and moved on.
2. The Nonhearsay Ruling
We review a trial court’s ruling overruling a hearsay objection for an abuse
of discretion. (People v. Fields (1998) 61 Cal.App.4th 1063, 1067.) The prosecutor
asked Nolan a simple yes or no question: “Did you learn while you were there that
someone had been a potential aggressor in a fight?” This called for a nonhearsay
response because it did not ask Nolan to state what he had learned, how he learned it, or
who that “someone” was.
Evidence Code section 1200, subdivision (a), defines hearsay as “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.” The question to which defense
counsel made her hearsay objection did not solicit “evidence of a statement” from an out
of court declarant, let alone a statement offered for its truth. The trial court properly
overruled the objection, stating “It’s not offered for the truth that this person that he
talked to was actually the aggressor.” The only responsive answer Nolan could give to
the prosecutor’s question would have been “Yes.” Such an answer in this case involved
neither an out of court declarant nor a statement admitted for its truth. The court
therefore did not abuse its discretion.
Simply put, defense counsel’s objection was premature; it was the next set
of questions and answers that solicited and obtained hearsay-based responses. But
Mitchell did not object to these questions.
3
Later in Nolan’s testimony, the prosecutor tried to return to the subject and asked
him, “[B]ased on your investigation, did you make a determination as to who the
aggressor was in this case?” Defense counsel objected on foundational and hearsay
grounds, and the objection was sustained. Similarly, the trial court also sustained a
hearsay objection when the prosecutor tried to get Nolan to say why he arrested Mitchell,
and Nolan responded it was because Mitchell was the “dominant aggressor,” “based on
the information that was presented.” (Italics added.)
7
3. Forfeiture
“‘“[A]s a general rule, ‘the failure to object to errors committed at trial
relieves the reviewing court of the obligation to consider those errors on appeal.’
[Citations.]” This rule applies equally to any claim on appeal that the evidence was
erroneously admitted, other than the stated ground for the objection at trial.’” (People v.
Landry (2016) 2 Cal.5th 52, 86; accord, Evid. Code, § 353.) The rule “applies to claims
based on statutory violations, as well as claims based on violations of fundamental
constitutional rights.” (In re Seaton (2004) 34 Cal.4th 193, 198; see Peretz v. United
States (1991) 501 U.S. 923, 936-937.) Accordingly, Mitchell forfeited his newly minted
hearsay claims regarding what Nolan testified to after the trial court’s initial nonhearsay
ruling.
Mitchell seeks to avoid forfeiture by arguing any “[f]urther objections
would have been futile, because the objection had already been overruled.” The record
belies this claim because the trial court sustained every subsequent well-taken hearsay
objection. The only overruled hearsay objection in this part of Nolan’s testimony
involved the question, “Did you learn while you were there that someone had been a
potential aggressor in a fight?” As noted, this question did not call for a hearsay answer,
and it was relevant for the nonhearsay purpose of showing how the investigation
progressed. Our review of the record, and how the court ruled on proper objections,
leaves no doubt the court would have sustained objections to the prosecutor’s hearsay-
based follow-up questions posed to Nolan had they been made. Mitchell’s futility
argument is itself futile. His belated hearsay objections to the subsequent questions and
answers is not properly before us because he did not object below. The claim is therefore
forfeited.
8
4. Any Assumed Error Was Harmless
Forfeiture notwithstanding, even if we assume the trial court erred in
admitting Nolan’s testimony regarding who was pointed out to him as the “potential
aggressor,”4 any purported error was harmless.
Mitchell argues the purported error was prejudicial because “[t]here was no
properly admitted in[-]court identification of [Mitchell] as the perpetrator in this case.”
Not so. There were four witnesses who provided in-court testimony circumstantially
identifying Mitchell as the shirtless man who was the initial aggressor and assailant —
Ortiz, Sanchez, Babinski, and Nolan. Tying these four witnesses together was the key
piece of evidence: the photo depicting the shirtless Mitchell and Brian B. taken at the
scene soon after the assault.
Both Ortiz and Sanchez testified about what they saw before police arrived,
both identified the shirtless man in the photograph as being the assailant, and both were
cross-examined extensively. Babinski authenticated the photo as a still taken from his
body camera footage on the day of the incident. Both he and Nolan positively identified
Mitchell in-court as the shirtless man depicted in the photo, and Brian B. as the victim of
the assault. Both officers also were cross-examined extensively.
Mitchell minimizes these interconnected pieces of evidence, stating “this
was only circumstantial evidence which fell short of proof beyond a reasonable doubt.”
(Italics added.) This not only misstates the evidentiary equivalence of direct and
circumstantial evidence, but it ignores the strength of the circumstantial evidence in this
case. (See CALCRIM No. 223.)
4
The record does not reflect why the prosecutor did not ask Ortiz or Sanchez if they
saw the shirtless man in court. But even if they could not identify Mitchell at trial,
sufficient foundation was laid to admit their on-scene identifications under the prior
identification exception to the hearsay rule. (See Evid. Code, § 1238; People v. Garceau
(1993) 6 Cal.4th 140, 201, disapproved on another ground in People v. Yeoman (2003)
31 Cal.4th 93, 117-118.)
9
In comparison, the hearsay evidence Nolan testified to regarding why he
spoke to Mitchell at the scene — because Mitchell was identified by witnesses as being
the “potential aggressor” — was of marginal evidentiary value; both Ortiz and Sanchez
had testified they told police who the “aggressor” was in the incident. Nolan’s statement
was superfluous in light of the other, much stronger, testimonial evidence and the
unifying photograph. It is not “reasonably probable that a result more favorable to
[defendant] would have been reached in the absence of the error.” (People v. Watson
(1956) 46 Cal.2d 818, 836.) Any purported error in the admission of Nolan’s statement was
therefore harmless.
Mitchell raises a corollary constitutional claim, and argues admission
through Nolan of the “potential aggressor” hearsay evidence violated his Sixth
Amendment right to confrontation. Because Mitchell did not object, on any ground let
alone a constitutional ground, the constitutional claim is likewise forfeited. (In re Seaton,
supra, 34 Cal.4th at p. 198.)
It is also meritless. Although Mitchell does not specify who he was not
able to confront, it is reasonable to infer the information Nolan received as to the
“potential aggressor” came from Ortiz and Sanchez. Such hearsay would not have run
afoul of the Sixth Amendment, however, because both were available at trial, testified,
and were subject to cross-examination. “[W]hen the [hearsay] declarant appears for
cross-examination at trial, the Confrontation Clause places no constraints at all on the use
of [her] prior testimonial statements.” (Crawford v. Washington (2004) 541 U.S. 36, 59,
fn. 9.) As for the trial court’s original nonhearsay ruling on whether Nolan “learned”
who the potential aggressor was, “[t]he [Confrontation] Clause also does not bar the use
of testimonial statements for purposes other than establishing the truth of the matter
asserted.” (Ibid.) There was no Sixth Amendment violation.
10
5. Brian B.’s Statements
Finally, Mitchell misreads the record concerning Brian B.’s statements to
the officers. The prosecutor failed to introduce these hearsay statements because all her
attempts to do so were thwarted by properly sustained hearsay objections.5 Simply put,
what Brian B. told the officers, and whether it was consistent with other information, was
never admitted into evidence. There was no evidentiary error, statutory or constitutional,
in this respect, and Mitchell’s claim is without merit.
B. The Bike Chain as a Weapon Likely to Produce Great Bodily Injury
Mitchell next contends we must reverse his conviction because “a bike
chain is not an inherently dangerous weapon,” and there was insufficient evidence
Mitchell “used sufficient force with the bike chain making it likely to inflict great bodily
injury.”
1. Additional Background
Mitchell was charged with “willfully and unlawfully commit[ting] an
assault upon the person of Brian B. with a deadly weapon and instrument, namely a chain
with metal carabiner.” (Capitalization omitted.) The trial court instructed the jury it
could not convict Mitchell unless it found beyond a reasonable doubt Mitchell willfully
did an act with a deadly weapon, not in self-defense, that by its nature would directly and
probably result in the application of force, and Mitchell had the present ability to apply
force with a deadly weapon. Actual injury was not required, “[b]ut if someone was
injured, you may consider that fact.” A deadly weapon “is any object, instrument, or
weapon that is inherently deadly or one that is used in such a way that it is capable of
causing and likely to cause death or great bodily injury,” which was defined as
“significant or substantial physical injury . . . greater than minor or moderate harm.”
(CALCRIM No. 875, italics added.)
5
Further reinforcing our previous conclusion it would not have been futile if
Mitchell had lodged hearsay objections earlier in the trial.
11
In addition, the court gave a defense-requested pinpoint instruction: “Great
bodily injury . . . means significant or substantial injury. Because the [offense refers to]
the capability of inflicting significant injury, neither physical contact nor actual injury is
required to support a conviction. [¶] However, if injuries do result, the nature of such
injuries and their location are relevant facts for consideration in determining whether an
object was used in a manner capable of producing and likely to produce great bodily
injury.”
2. Standard of Review
Our inquiry is limited to whether substantial evidence supports the jury’s
finding that Mitchell used the bicycle chain as a deadly weapon. (In re B.M. (2018)
6 Cal.5th 528, 533; see In re Raymundo M. (2020) 52 Cal.App.5th 78, 87 [“Whether a
perpetrator . . . uses an object in a manner that renders it a deadly weapon [is a]
question[] for the trier of fact, the resolution of which we review for substantial
evidence”].)
“‘When considering a challenge to the sufficiency of the evidence to
support a conviction, we review the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of
the judgment the existence of every fact the trier of fact reasonably could infer from the
evidence . [Citation.] If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither
reweighs evidence nor reevaluates a witness’s credibility.’” (People v. Covarrubias
(2016) 1 Cal.5th 838, 890.)
“A reversal for insufficient evidence ‘is unwarranted unless it appears “that
upon no hypothesis whatever is there sufficient substantial evidence to support”’ the
12
jury’s verdict. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Simply put,
Mitchell “bears an enormous burden” to prevail on his sufficiency of the evidence claim.
(People v. Sanchez (2003) 113 Cal.App.4th 325, 330.)
3. Legal Background
The parties agree the bicycle chain in this case was not an inherently deadly
weapon. Rather, the prosecution’s theory was that Mitchell used the chain in a manner
capable of and likely to produce great bodily injury.
A “‘“deadly weapon” is “any object, instrument, or weapon which is used
in such a manner as to be capable of producing and likely to produce, death or great
bodily injury.”’ [Citation.] . . . ‘In determining whether an object not inherently deadly
or dangerous is used as such, the trier of fact may consider the nature of the object, the
manner in which it is used, and all other facts relevant to the issue.’” (In re B.M., supra,
6 Cal.5th at pp. 532-533.)
“Although it is inappropriate to consider how the object could have been
used as opposed to how it was actually used, it is appropriate in the deadly weapon
inquiry to consider what harm could have resulted from the way the object was actually
used. Analysis of whether the defendant’s manner of using the object was likely to
produce death or great bodily injury necessarily calls for an assessment of potential harm
in light of the evidence. . . . [A] mere possibility of serious injury is not enough. But the
evidence may show that serious injury was likely, even if it did not come to pass.” (In re
B.M. supra, 6 Cal.5th at p. 535, italics added.) “[A]lthough it is appropriate to consider
the injury that could have resulted from the way the object was used, the extent of actual
injury or lack of injury is also relevant. ‘[A] conviction for assault with a deadly weapon
does not require proof of an injury or even physical contact’ [citation], but limited injury
or lack of injury may suggest that the nature of the object or the way it was used was not
capable of producing or likely to produce death or serious harm.” (Ibid.) Nevertheless,
“an aggressor should not receive the benefit of a potential victim fortuitously taking a
13
defensive measure or being removed from harm’s way once an assault is already
underway.” (Id. at p. 537.)
4. Analysis
Initially, we note Mitchell does not contend the bicycle chain was
incapable of producing great bodily injury. Instead, his claim is limited to a contention
the evidence failed to support the jury’s conclusion that the manner in which he used it
was likely to produce great bodily injury. His somewhat circular argument for why it was
unlikely to do so is because it did not do so. We are not persuaded.
Mitchell relies on In re B.M., supra, 6 Cal.5th 528 to support his
sufficiency claim. We find it factually distinguishable.
“In In re B.M. [citation], the California Supreme Court clarified what it
means for an object to be ‘“‘used in such a manner as to be capable of producing and
likely to produce, death or great bodily injury.”’” (In re Raymundo M., supra,52 Cal.App.5th at p. 86.) The court found insufficient evidence to show the minor’s use
of a butter knife in that case was likely to cause death or great bodily injury: “[T]he
butter knife was not sharp; the minor thrusted it only at her sister’s blanket-covered legs
and not more vulnerable body parts; the minor used such ‘moderate pressure’ that the
knife neither ‘pierce[d] the blanket’ nor ‘cause[d] serious bodily injury’ to the sister; and
the record did not support that the sister used the blanket defensively (rather, she had
already covered her legs with it because she had just gotten out of the shower and was
trying to cover herself).” (Id. at pp. 86-87.) “On these facts, the Supreme Court found it
‘questionable’ whether the knife was ‘capable of causing great bodily injury’ [citation],
and that there was insufficient evidence to support that the minor’s use of the knife was
‘likely to do so.’” (Id. at p. 86, citing In re B.M., supra, 6 Cal.5th at pp. 536-537; see also
In re Brandon T. (2011) 191 Cal.App.4th 1491, 1497-1498 [butter knife was not
“capable” even when used with sufficient force to break the knife yet did not penetrate
the victim’s skin].)
14
Here, the metal bicycle chain with an attached metal carabiner is
qualitatively different from the butter knife used in In re B.M. — both in terms of the way
it was used and its resulting effects. Mitchell used the chain to injure Brian B. by striking
him in the head, neck, and back, leaving distinctive marks and some bleeding despite
Brian B.’s attempts to shield himself. Furthermore, Mitchell swung the chain six to ten
times, and inflicted multiple blows. In re B.M. does not alter our conclusion substantial
evidence supports the jury’s verdict.
Mitchell also relies on People v. Beasley (2003) 105 Cal.App.4th 1078(Beasley), but it too is factually distinguishable, and for the same reasons.
In Beasley, supra, 105 Cal.Ap.4th 1078, the court reversed two aggravated
assault convictions: one in which the defendant used a broomstick to strike the victim,
and one in which the defendant used a vacuum cleaner attachment to strike the victim.
The reversals were based on the prosecution’s failure to present evidence concerning the
nature of the broomstick and vacuum cleaner attachment. The prosecution had not
introduced the actual weapons into evidence, or photographs of them. (Id., at pp. 1087-
1088.) Moreover, the victim’s testimony regarding those weapons and the force used
was “cursory,” establishing only that she suffered pain and bruising on her arms and
shoulders. (Id. at p. 1087.) The record failed to disclose whether the broomstick was
made of wood or plastic, whether it was hollow, or anything else regarding its
“composition, weight, and rigidity.” (Id. at pp. 1087-1088.) The court concluded, “The
jury therefore had before it no facts from which it could assess the severity of the impact
between the [broom]stick and [the victim’s] body.” (Id. at p. 1088.) As for the vacuum
cleaner attachment, the victim’s testimony only established that it was made of plastic
and hollow, but was otherwise “vague” on its size and shape. (Ibid.) The Beasley court
found the evidence of bruising “insufficient to show that [defendant] used the attachment
as a deadly weapon” and further held that “[s]triking an adult’s shoulder and back with a
15
hollow plastic instrument is not likely to produce significant or substantial injury.”
(Ibid.)
In contrast, here there was more than “cursory” evidence regarding the
chain and the severity of the blows with which Mitchell struck Brian B. The chain itself
was introduced into evidence, and eyewitness testimony from Ortiz and Chavez described
how Mitchell used the chain to repeatedly strike Brian B. multiple times, how Mitchell
held the chain, and how he swung it. Although Brian B. was able to block some of the
blows with his hands, and used a bicycle as a shield, Mitchell still managed to hit him
and cause injury. Brian B. was not just superficially bruised. Indeed, his back showed
the distinct pattern of the chain itself, and there was evidence of bleeding.
Moreover, Mitchell’s conduct cannot be minimized merely because Brian
B. took evasive action and shielded himself with the bicycle, thereby partially thwarting
the assault and avoiding more serious injuries. (See People v. Chance (2008) 44 Cal.4th
1164, 1173 [“an assault may occur even when the infliction of injury is prevented by
environmental conditions or by steps taken by victims to protect themselves”]; cf. People
v. Bernal (2019) 42 Cal.App.5th 1160, 1168 [“a jury could reasonably conclude that the
[victim] would likely have been touched with the knife had he not moved out of the
way”]; In re B.M., supra, 6 Cal.5th at p. 537 [“an aggressor should not receive the benefit
of a potential victim fortuitously taking a defensive measure or being removed from
harm’s way once an assault is already underway”].)
In People v. Montes (1999) 74 Cal.App.4th 1050, a different panel of this
court upheld a jury’s guilty verdict on an assault with a deadly weapon charge where the
weapon employed was a doubled-over three-foot-long chain, “‘kind of thick’” and
“‘bigger than a wallet chain,’” swung at a rival gang member, striking him once on the
shoulder. (Id. at p. 1053.) We concluded that, even though a chain is not an inherently
deadly weapon, when “[u]sed in this manner, the chain was capable of producing and
16
likely to produce great bodily injury. The jury was therefore entitled to find it constituted
a deadly weapon.” (Id. at p. 1054.) So too here.
Mitchell reiterates the relatively minimal nature of Brian B.’s injuries,
pointing out he declined to go to the hospital and did not need extensive medical
assistance at the scene. Although the nature of the injury may be relevant in some
situations, the statute focuses on the use of the deadly weapon, not the harm suffered by
the victim. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) Furthermore, the jury
reasonably could infer Brian B.’s lack of serious injuries was attributable to his defensive
actions than to whether or not the chain was likely to cause greater injury but for those
protective maneuvers.
In the end, we are not free to reform a jury’s verdict simply because the
facts could support another conclusion. (People v. Jackson (2016) 1 Cal.5th 269, 345.)
“Whether a reasonable trier of fact could reach a different conclusion based upon the
same facts does not mean the verdict is not supported by sufficient evidence.” (People v.
Mora and Rangel (2018) 5 Cal.5th 442, 490.)
Here the trial court correctly instructed the jury, and Mitchell does not take
issue with those instructions. Rather, he argues the jury simply got it wrong based on the
facts. This misconstrues the standard of review and, in essence, asks us to reweigh the
evidence. Substantial evidence supports the jury’s finding the bike chain was a weapon
used in a manner capable of and likely to produce great bodily injury.
C. Prosecutorial Misconduct
Mitchell next alleges several instances of prosecutorial misconduct during
the prosecutor’s closing arguments. We address them individually below, and conclude
there was no prejudicial misconduct.
1. Legal Background
“To prevail on a claim of prosecutorial misconduct based on remarks to the
jury, the defendant must show a reasonable likelihood the jury understood or applied the
17
complained-of comments in an improper or erroneous manner. [Citations.] In
conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging
rather than the least damaging meaning from the prosecutor’s statements. [Citation.]”
(People v. Frye (1998) 18 Cal.4th 894, 970 (Frye), disapproved on other grounds in
People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
“A prosecutor who uses deceptive or reprehensible methods to persuade the
jury commits misconduct, and such actions require reversal under the federal Constitution
when they infect the trial with such ‘“unfairness as to make the resulting conviction a
denial of due process.”’” (People v. Alfaro (2007) 41 Cal.4th 1277, 1328, quoting
Darden v. Wainwright (1986) 477 U.S. 168, 181.) “‘“A prosecutor’s misconduct that
does not render a trial fundamentally unfair nevertheless violates California law if it
involves ‘the use of deceptive or reprehensible methods to attempt to persuade either the
court or the jury.’”’” (People v. Hoyt (2020) 8 Cal.5th 892, 943 (Hoyt).)
“It is not, however, misconduct to ask the jury to believe the prosecution’s
version of events as drawn from the evidence. Closing argument in a criminal trial is
nothing more than a request, albeit usually lengthy and presented in narrative form, to
believe each party’s interpretation, proved or logically inferred from the evidence, of the
events that led to the trial. It is not misconduct for a party to make explicit what is
implicit in every closing argument.” (People v. Huggins (2006) 38 Cal.4th 175, 207.)
“‘“‘[A] prosecutor is given wide latitude during argument. The argument may be
vigorous as long as it amounts to fair comment on the evidence, which can include
reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear
that counsel during summation may state matters not in evidence, but which are common
knowledge or are illustrations drawn from common experience, history or literature.’”’”
(People v. Hill (1998) 17 Cal.4th 800, 819-820 (Hill).)
18
2. Allegations of Misconduct
a. Burden-Shifting and Evidence Outside the Record
Mitchell first argues the prosecutor engaged in burden-shifting when she
told jurors the defense had “equal subpoena power” under the law. Further, he argues the
prosecutor’s comments regarding “subpoena power,” were an improper reference to
matters outside the record because they suggested the defense could have presented
exonerating evidence but did not, or there was no exonerating evidence because it had not
been presented.
“Comments on the state of the evidence or on the defense’s failure to call
logical witnesses, introduce material evidence, or rebut the People’s case are generally
permissible. [Citation.] However, a prosecutor may not suggest that ‘a defendant has a
duty or burden to produce evidence, or a duty or burden to prove his or her innocence.’”
(People v. Woods (2006) 146 Cal.App.4th 106, 112.)
Although Mitchell “singles out particular sentences to demonstrate
misconduct, we must view the statements in the context of the argument as a whole.”
(People v. Cole (2004) 33 Cal.4th 1158, 1203.) Taken in context, here the prosecutor’s
comments about “equal subpoena power” were in direct response to defense counsel’s
earlier argument: “[Defense counsel]: This case is only half a story. The D.A. failed to
call logical witnesses. Obviously, you would want to hear from [Brian B.], and even
[another homeless man in the group] . . . . So [the prosecutor] might say that I have the
subpoena power to call witnesses, but that’s not my burden. I don’t have to put anything
on.”
In rebuttal, the prosecutor did indeed tell the jury about what she called a
“[f]ailure to call logical witnesses.” However, she prefaced it by saying, “Defense has no
burden of proof. As I said in voir dire, I love my burden. The burden is on me to prove
this case beyond a reasonable doubt.”
19
Notably, after the defense objected to the prosecutor’s “subpoena power”
remark, the trial court admonished the jury, telling them: “[The prosecutor] has already
told you she’s not arguing that the defense has any burden of proof at all, and that’s the
law. The defense does not have any burden of proof. [¶] As I’ve said before, this is
counsel’s argument. You can consider it, accept it, or reject it.” When the prosecutor
tried to return to her “subpoena power” argument, and defense counsel objected again,
the court told the prosecutor to “move on,” and reiterated that the defense had no burden
of proof. We perceive no error and if there were any, the court’s admonishments cured it.
Mitchell also complains about the prosecutor’s reference to her discovery
obligations that required her to give the defense “all the evidence I have, not just all the
evidence I use, . . . evidence that helps me convict and evidence that could help
exonerate, all of that I have I have to turn over. I have to give it to the defense.” He
argues this improperly referred to matters outside the record and “improperly suggested
there was evidence the defense could have presented but did not, and also implied the
defense had no exculpatory evidence.” The trial court rejected defense counsel’s
argument that the prosecutor’s remark about exonerating evidence implied the existence
of that evidence, stating “I don’t think it implies anything like that.” We concur. In
essence, the prosecutor’s remarks merely pointed out that a failure to call logical
witnesses can run both ways.
The prosecutor’s remarks were a further explication of her arguments to
rebut the defense suggestion the prosecution failed to call all the possible witnesses in the
case. Her point was simply that the defense also could have called those witnesses
because both sides have the same access to the same information. While she technically
referred to “facts” outside the record, these “facts” were not evidence, nor did she suggest
otherwise. It is not reasonably probable the jury was influenced or misled by these
relatively harmless remarks, made within the context of the prosecutor’s permissible
20
rebuttal regarding the defense’s ability to call the same witnesses it faulted the
prosecution for not calling.
Moreover, from the outset, the prosecutor repeatedly “reiterated that the
prosecution had the burden of proof by sufficient evidence to establish defendant’s guilt,
and that defendant had no duty or burden to produce any evidence. [Citation.] A
distinction clearly exists between the permissible comment that a defendant has not
produced any evidence, and on the other hand an improper statement that a defendant has
a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.”
(People v. Bradford (1997) 15 Cal.4th 1229, 1340.) The prosecutor’s comments about
“subpoena power” fairly suggested that if there was more to the story, as defense counsel
told the jury, the defense could have told it. There was no impropriety in doing so. The
jury was not likely to misconstrue the prosecutor’s rebuttal comments about Mitchell’s
ability and failure to call witnesses. (Cole, supra, 33 Cal.4th at pp. 1202-1203.)
b. Vouching
“As a general matter, ‘[i]mpermissible “vouching” may occur where the
prosecutor places the prestige of the government behind a witness through personal
assurances of the witness’s veracity or suggests that information not presented to the jury
supports the witness’s testimony.’ [Citation.] . . . Similarly, it is misconduct ‘“to suggest
that evidence available to the government, but not before the jury, corroborates the
testimony of a witness.” [Citation.] The vice of such remarks is that they “may be
understood by jurors to permit them to avoid independently assessing witness credibility
and to rely on the government’s view of the evidence.’”” (People v. Seumanu (2015)
61 Cal.4th 1293, 1329-1330.) In the context of closing argument, “‘“[s]o long as a
prosecutor’s assurances regarding the apparent honesty or reliability of prosecution
witnesses are based on the ‘facts of [the] record and the inferences reasonably drawn
therefrom, rather than any purported personal knowledge or belief,’ [her] comments
cannot be characterized as improper vouching.” [Citation.]’” (Id. at p. 1330.)
21
In response to defense counsel’s closing arguments pointing out
inconsistencies within and between Ortiz’s and Sanchez’s testimony, the prosecutor
discussed how two witnesses may perceive events differently, and mere inconsistencies
need not lead the jury to reject a witness’s testimony (see CALCRIM No. 226). The
prosecutor suggested that when two people see the same thing, they will describe it
differently. She said, “[m]inor inconsistencies when it comes to civilian witnesses, that’s
the hallmark of civilian witness credibility.” Defense counsel objected, stating the
prosecutor was vouching for Ortiz and Sanchez. The trial court overruled the objection,
stating “This is just argument.”
This was not improper vouching or referring to evidence not before the
jury. The prosecutor “nowhere suggested that [she formed her] opinion based on
‘“‘evidence available to the government, but not before the jury.’”’ [Citation.] Nor did
[she] imply the jury should adopt the prosecution’s view because of its ‘“‘prestige,
reputation, or depth of experience.’”’” (People v. Krebs (2019) 8 Cal.5th 265, 344
(Krebs).)
Similarly, she did not suggest she had other evidence, not given to the jury
to support Ortiz’s and Sanchez’s credibility (compare People v. Turner (2004) 34 Cal.4th
406, 433 [prosecutor improperly vouched for the credibility of expert witnesses by
referring to the prosecutor’s personal knowledge and prior use of them]), or that she
personally believed the witnesses independent of the evidence.
Mitchell cites People v. Rodriguez (2018) 26 Cal.App.5th 890, review
granted November 18, 2018, S251706, in support, but it is not on-point. In Rodriguez, an
inmate assaulted two correctional officers in the hallway of a prison facility. (Id. at
pp. 895-897.) The prosecutor improperly vouched for the credibility of his prison guard
witnesses, arguing that “the likelihood of being fired or prosecuted . . . would deter the
officers from lying,” when there was no evidence presented at trial of any such
“likelihood.” (Id. at p. 903.)
22
Here, the prosecutor’s comments simply pointed out the jury need not
determine the credibility of witnesses solely by whether they completely agreed on how
they perceived events. Moreover, civilians, as opposed to trained police officers, are not
professional witnesses, and it is “common knowledge” or “common experience,” that two
lay persons will often see or recollect events differently. (Hill, supra, 17 Cal.4th at pp.
819-820, internal quotation marks omitted.) Indeed, the jury was instructed on just this
fact with CALCRIM No. 226.6
The prosecutor’s remarks about civilian witnesses “would not be
understood to refer to facts available solely to the government or to the prosecutor’s
personal knowledge or beliefs or the prestige of her office.” (People v. Mendoza (2016)
62 Cal.4th 856, 907 (Mendoza).) “Accordingly, there was neither impermissible
vouching nor reliance on evidence outside the record.” (Krebs, supra, 8 Cal.5th at
p. 344.)
c. Misstating the Evidence
“It is well settled that it is misconduct for a prosecutor to base argument on
facts not in evidence.” (Mendoza, supra, 62 Cal.4th at p. 906.)
Mitchell argues, “The prosecutor misstated the evidence by stating Ortiz
said she’s never called the cops, but she did in this case because it was so bad. The
record reveals Ortiz never reported a crime, however it was Sanchez who called 911.”
The Attorney General agrees, but argues it was a “mistaken reference to the wrong
witness.”
Mitchell insists “it was still a misstatement of the evidence, and constituted
prosecutorial error,” and even though he “does not suggest this was anything other than
6
“Do not automatically reject testimony just because of inconsistencies or conflicts.
Consider whether the differences are important or not. People sometimes honestly forget
things or make mistakes about what they remember. Also, two people may witness the
same event yet see or hear it differently.” (CALCRIM No. 226.)
23
an honest mistake, [Mitchell] was prejudiced by it nonetheless.” He offers no authority
or argument for how he was prejudiced by this misstatement in closing argument, which
had nothing to do with the evidence or with the witnesses’ actual testimony.7 As noted,
“[t]o prevail on a claim of prosecutorial misconduct based on remarks to the jury, the
defendant must show a reasonable likelihood the jury understood or applied the
complained-of comments in an improper or erroneous manner.” (Frye, supra, 18 Cal.4th
at p. 970, italics added.) Here, Mitchell merely has pointed out a harmless misstatement,
but he has not shown how it prejudiced him or how it likely led the jury to consider the
remark in an improper or erroneous manner.
This “honest mistake” in closing argument, regarding which of two
witnesses called 911, “did not substantially misstate the facts or go beyond the record.”
(People v. Dennis (1998) 17 Cal.4th 468, 522, italics added.) “Ultimately, the test for
misconduct is whether the prosecutor has employed deceptive or reprehensible methods
to persuade either the court or the jury.” (Ibid.) The prosecutor’s comment does not
constitute misconduct.
d. Speculation
A prosecutor may not ask the jury to speculate about evidence not
presented at trial. (Yeoman, supra, 31 Cal.4th at p. 149.)
In her opening remarks, the prosecutor displayed the bicycle chain to the
jurors and asked them to consider what would happen if the “victim got beat” with it “in
a different manner,” explaining “that’s why this is a deadly weapon.” Defense counsel
objected because it “calls for speculation.” The trial court sustained the objection, and
admonished the jury, “[T]his is just counsel’s argument. As I told you before, what
7
Sanchez testified she called 911 that day, and a recording of her 911 call was
played in court; Sanchez identified her voice on the 911 call. The recording of Sanchez’s
911 call, and a transcript, were entered into evidence as exhibits 4 and 4A. The jury was
not likely to have misconstrued who made the 911 call.
24
comes out of counsel’s mouth is not evidence. It’s her take on the facts and how they
apply to the law. What really counts in the end is your take on the facts and the law.”
Mitchell renews the argument here, but again provides no argument or
authority for how he was prejudiced by the remark or how it improperly influenced the
jury.
Moreover, immediately after this admonishment, the prosecutor “prudently
amended [her] remarks” (Yeoman, supra, 31 Cal.4th at p. 149), and clarified that,
“[W]hen I say that if used in a more aggressive manner, what I’m saying is that great
bodily injury does not have to occur. For a weapon to be a deadly weapon . . . [i]t just
has to be capable of causing G.B.I. Capable. When you beat someone with a chain like
that . . . it is capable of causing G.B.I.” In context, the prosecutor’s comments suggested
to the jury that they examine the chain and determine whether it was capable of
producing great bodily injury even though it did not do so in this case. Moreover, the
trial court immediately admonished the jury that argument is not evidence. Thus, even if
the prosecutor’s original remark was improper, we find no “reasonable likelihood that the
jury construed or applied” the prosecutor’s remarks “in an objectionable fashion.”
(People v. Morales (2001) 25 Cal.4th 34, 44.)
3. Conclusion
“Prosecutorial misbehavior ‘violates the federal Constitution when it
comprises a pattern of conduct “so egregious that it infects the trial with such unfairness
as to make the conviction a denial of due process.”’” (People v. Rhoades (2019)
8 Cal.5th 393, 418.) “Under state law, a prosecutor’s action that does not cause
fundamental unfairness is prosecutorial misconduct only if it involves ‘“‘“the use of
deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’”’
[Citation.]” (People v. Duong (2020) 10 Cal.5th 36, 69.)
Mitchell does not claim the prosecutor used “‘“deceptive or reprehensible
methods”’” in an attempt to persuade the jury, or that her statements ‘“so infected the
25
trial with unfairness as to make the resulting conviction a denial of due process.’”
(People v. Riggs (2008) 44 Cal.4th 248, 298.) In addition, Mitchell makes no allegation
the trial court misinstructed the jury and points to nothing concrete in the record
indicating the jury understood or applied the prosecutor’s closing arguments in any
improper or erroneous manner.
In reviewing “the prosecutor’s comments to the jury, we determine whether
there was a reasonable likelihood that the jury construed or applied any of the remarks in
an objectionable fashion.” (People v. Booker (2011) 51 Cal.4th 141, 184-185.) “[W]e
presume that the jury relied on the instructions, not the arguments, in convicting
defendant. ‘[I]t should be noted that the jury, of course, could totally disregard all the
arguments of counsel.’ [Citation.] Though we have focused on the prosecutor’s closing
arguments, we do not do so at the expense of our presumption that ‘the jury treated the
court’s instructions as statements of law, and the prosecutor’s comments as words spoken
by an advocate in an attempt to persuade.’ [Citation.] The trial court emphasized this
rule when . . . it instructed the jury to follow its instructions and to exalt them over the
parties’ arguments and statements.” (Morales, supra, 25 Cal.4th at p. 47.)
That is what happened here. Before closing arguments began, the trial
court pre-instructed the jury. The instructions included CALCRIM Nos. 200 and 222,
which told the jury it was to base its decision only on the evidence presented, that the
attorneys’ arguments were not evidence, and that the jury must follow the law as stated
by the court, even if the attorneys’ comments conflicted with the court’s instructions.
In the context of the prosecutor’s entire closing arguments, the court’s
admonishments, and the instructions the court gave to the jury, Mitchell has failed to
“show a reasonable likelihood the jury understood or applied the complained-of
comments in an improper or erroneous manner.” (Frye, supra, 18 Cal.4th at p. 970.)
Therefore, either individually or collectively, “we conclude none infected the trial with
26
unfairness or deceived the court or jury.” (Hoyt, supra, 8 Cal.5th at p. 943.) There was
no prejudicial prosecutorial error.8
4. Fines, Fees, and Court Assessments
Lastly, Mitchell contends “[t]he $40 court operations assessment (§ 1465.8)
and $30 conviction assessment (Gov. Code, § 70737) noted on the abstract [of judgment]
must be stricken because they were not orally pronounced by the trial court.” We
disagree.
After imposing Mitchell’s prison term, the court levied $320 restitution and
parole revocation fines, suspending the latter upon successful completion of parole. The
court then stated, “All mandatory criminal and court cost[s] and fees are hereby
imposed.” The court specifically inquired of defense counsel, “Does the defense counsel
waive recitation of those fines and fees?” (Italics added.) She replied, “Yes, your
honor.” Moving on, the court declined to assess Mitchell with the costs of preparing the
probation and sentencing report, finding he had no ability to pay for it. No other fines,
fees or assessments were mentioned by either counsel or by the court.
The court’s minutes and the abstract of judgment show a restitution fine of
$300 (§ 1202.4), a parole revocation fine of $300 (§ 1202.45), a court operations fee of
$40 (§ 1465.8), and a criminal conviction assessment of $30 (Gov. Code, § 70373, subd.
(a)(1) . The minutes also show a booking fee assessed in the amount of $249.27.
Generally, the failure to object to the imposition of court fees forfeits a
subsequent claim on appeal. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864
8
For the first time on appeal, defendant argues the prosecutor’s closing
arguments also denied him his federal constitutional rights to due process and
confrontation. However, “a defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion — and on the same ground — the defendant made
an assignment of misconduct and requested that the jury be admonished to disregard the
impropriety.” (People v. Samayoa (1997) 15 Cal.4th 795, 841, italics added.) Here,
defendant “made no objections expressly or even impliedly referring to the federal
Constitution and thus forfeited the issue.” (Seumanu, supra, 61 Cal.4th at p. 1332.)
27
[probation-related costs and cost of appointed counsel]; People v. Trujillo (2015)
60 Cal.4th 850, 853-854 [booking fee]; People v. Nelson (2011) 51 Cal.4th 198, 227
[restitution fine]; cf. People v. Avila (2009) 46 Cal.4th 680, 729 [inability to pay more
than the statutory minimum restitution fine].) However, here there is a more fundamental
concern.
We are not confronted in this case with a question of forfeiture because
Mitchell expressly waived any right he had to a verbal accounting of his fines and fees.
As the United States Supreme Court has explained: “Waiver is different from forfeiture.
Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the
‘intentional relinquishment or abandonment of a known right.’ [Citations.]” (United
States v. Olano (1993) 507 U.S. 725, 733.)
Mitchell contends the trial court erred by not orally imposing all the fines
and fees and, consequently, they must be stricken. However, “[d]eviation from a legal
rule is ‘error’ unless the rule has been waived.” (United States v. Olano, supra, 507 U.S.
at pp. 732-733, italics added.) Phrased differently, if a legal rule has been waived,
deviation from that rule is not error.
Mitchell argues he “assumed the fees and fines imposed would be legal,
would be calculated correctly, and would take into account his ability to pay, but they did
not.” (Italics added.) There is nothing in the record to support this purported
“assumption.” More importantly, such an “assumption” is predicated upon a premise
there were sentencing errors in this regard, but there was no error precisely because
Mitchell waived the purported error at his sentencing hearing.9
9
Mitchell inaptly analogizes to People v. Penoli (1996) 46 Cal.App.4th 298, where
the court held a defendant cannot prospectively waive future conduct credits for the time
she would later be serving in a residential drug program as a condition of probation.
There, in that case, the defendant objected to that term of probation when it was imposed,
i.e. the defendant did not waive her right to challenge the probation term at the time of
sentencing. (Id. at pp. 301-302.) Mitchell’s citation to Hicks v. Oklahoma (1980)
447 U.S. 343 is also misplaced because it has nothing to do with waivers.
28
For the first time in his reply brief, Mitchell argues his fines and fees also
must be stricken because he was unable to pay them due to his indigency, citing People v.
Dueñas (2019) 30 Cal.App.5th 1157. Not only did Mitchell fail to raise this issue in the
trial court,10 he also failed to raise it in his opening brief. “[P]oints raised for the first
time in a reply brief on appeal will not be considered, absent good cause for failure to
present them earlier.” (Nordstrom Commission Cases (2010) 186 Cal.App.4th 576, 583.)
Here, “no reason whatever is given for this departure from the ordinary method of
presenting a case in this court.” (Kahn v. Wilson (1898) 120 Cal. 643, 644.) We
therefore find the People v. Dueñas claim forfeited, and do not consider it here.
The Attorney General argues the abstract of judgment must be amended to
include the booking fee. Mitchell responds the court erred in imposing a booking fee
without a factual determination of his ability to pay it and proof that the amount
requested did not exceed the actual cost of booking. He is correct.
A booking fee is not mandatory, and instead is contingent on a defendant’s
ability to pay and the “actual administrative costs” incurred. (Govt. Code, § 29550.2,
subd. (a).) Neither of those determinations were made here. Moreover, Mitchell’s
waiver of a verbal “recitation” of the mandatory costs and fees did not encompass the
nonmandatory booking fee.
Normally, a failure to object to the imposition of booking costs in the trial
court forfeits the claim on appeal. (People v. McCullough (2013) 56 Cal.4th 589, 591.)
Here, the court did not orally impose any booking costs at the time judgment was entered,
and therefore Mitchell had no opportunity to object. The booking costs order must be
stricken. (Cf. People v. Rodriguez (2019) 34 Cal.App.5th 641, 648 [same for attorney’s
fees].)
10
Mitchell cannot claim he was unable to raise the claim in the trial court. People v.
Dueñas was decided on January 8, 2019, and Mitchell was sentenced on February 7,
2020. (Duenas, supra, 30 Cal.App.5th at p. 1157.)
29
Finally, as noted ante, the court verbally imposed $320 restitution and
parole revocation fines, but the court minutes and abstract of judgment instead reflect
$300 fines. “Where there is a discrepancy between the oral pronouncement of judgment
and the minute order or the abstract of judgment, the oral pronouncement controls.”
(People v. Zackery (2007) 147 Cal.App.4th 380, 385.) Moreover, “an abstract of
judgment must reflect a restitution fine a sentencing court has orally imposed. . . .”
(People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) We may “correct[] clerical errors in
the abstract of judgment without a request from either party.” (Id. at p. 187.) We do so
here. (See § 1260.)
III
DISPOSITION
The judgment is affirmed as modified. Upon issuance of the remittitur, the
superior court is directed to strike the booking costs order, to prepare an amended
abstract of judgment that reflects the trial court’s oral imposition of $320 restitution and
parole revocation fines, and to forward a certified copy to the Department of Corrections
and Rehabilitation. In all other respects, the judgment is affirmed.
ARONSON, J.
WE CONCUR:
MOORE, ACTING P. J.
GOETHALS, J.
30