Opinion
A154783
11-05-2019
THE PEOPLE, Plaintiff and Respondent, v. KALVIN CRAVEN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 17CR024072)
Kalvin Craven appeals from a judgment sentencing him to prison after a jury convicted him of four counts of second degree robbery with firearm use enhancements. (Pen. Code, §§ 211, 12022.5, subd. (a), 12022.53, subd. (b).) He contends: (1) the trial court abused its discretion in admitting evidence of two videos taken from his cell phone that showed him in possession of a handgun; (2) his attorney was ineffective in failing to limit evidence of his prior arrest and identification by officers, and in failing to challenge the trial court's finding that his absence at trial was voluntary; (3) the trial court committed error under section 1138 when it failed to answer a juror's question during deliberations; and (4) the court violated appellant's right to due process by imposing various fines and fees without determining his ability to pay. We affirm.
Further statutory references are to the Penal Code unless otherwise indicated.
I. BACKGROUND
On August 10, 2017, at about 10:00 a.m., Nhat Ly, Guo Li, Xue Juan-Luo and Beumont Yung were walking door to door in Oakland distributing religious literature for the Jehovah's Witnesses. When they were across the street from the Champa Garden restaurant near East 21st Street and Eighth Avenue, they were approached by two men, one wearing a light-colored gray sweatshirt and carrying a handgun and the other wearing all black clothes. The man with the gun demanded the bags the group was carrying as well as their wallets. Ly and his colleagues handed over their money and bags.
Surveillance video from a security camera located at the Champa Garden restaurant captured the robbers pulling up in a silver Nissan Altima with license plate number 7SIK335, getting out, walking down the sidewalk and then, after being out of sight, fleeing the scene with a number of bags in their hand. The face of both men is clear on the video. Appellant was arrested with another man later that day wearing a gray hoodie, blue jeans, white shoes and sunglasses matching the clothing worn by one robber in the video. None of the victims could identify appellant at a field show-up, although three of the victims (Ly, Li and Yung) identified the men in the surveillance videos as the robbers and identified the bags they were carrying in the video as their (the victims') property. A cell phone taken from appellant following his arrest had two videos that depicted appellant with a handgun.
Appellant was charged by information with four counts of second degree robbery with a firearm use enhancement attached to each count. (§§ 211, 12022.5, subd. (a), 12022.53, subd. (b).) A jury trial was held outside appellant's presence, after he was found to have voluntarily absented himself. The primary defense at trial was mistaken identity.
Officer Bergeron of the Oakland Police Department testified that at about 4:00 p.m. on the day of the robbery, he was ordered to look for a silver Nissan Altima, license plate number 7SIK335, and was given photographs of the robbery suspects that were stills taken of the surveillance camera footage. He saw a group of men shooting dice and hanging out on Chestnut Street in Oakland, two of whom were wearing some clothing consistent with the description of the robbers, with the Nissan parked nearby. Officer Bergeron saw the Nissan when it was driven away and stopped by a marked patrol vehicle. He returned to the Chestnut Street area and then proceeded to MLK Boulevard and 29th Street, where he saw appellant. Officer Bergeron identified a photograph of appellant with his hands in the air and confirmed that it accurately showed how appellant looked on the date of the robbery. He also identified appellant in a photograph that was a still taken from the surveillance camera footage.
The prosecution also presented the testimony of Officer Mullens of the Oakland Police Department, who arrested appellant on the day of the robbery. He had received photographs of the robbery suspects and recognized one of them as appellant. Appellant was seen by other officers near MLK Boulevard and 29th Street and Mullens went to the area to make the arrest. Images from the body camera he was wearing at the time were introduced as evidence. Officer Mullens testified that restaurant surveillance camera images depicted appellant, as did the two videos taken from his cell phone. He had also arrested appellant on July 11, 2017, and spent 30 minutes to one hour with him on that date. Officer Mullens identified appellants' 2017 booking photograph.
Appellant was convicted of all counts and allegations. After he was arrested on a bench warrant and was returned to court, he was sentenced to an aggregate term of 28 years. This consisted of the five-year upper term on one of the robbery counts plus 10 years for the firearm enhancement, and consecutive terms of one year plus three years and four months (one-third the middle term) on each of the remaining three counts. (Pen. Code, §§ 211, 12022.53, subd. (b).)
Appellant was also alleged to have suffered a prior serious felony conviction that subjected him to the five-year enhancement under section 667, subdivision (a) and the three strikes law. That conviction was found true by the jury in a bifurcated proceeding, but was dismissed by the prosecution at sentencing after it became apparent that appellant had been convicted of a different offense than the information alleged, albeit one that still qualified as a serious felony.
II. DISCUSSION
A. Videos from Appellant's Cell Phone
The court admitted two short videos downloaded from appellant's cell phone that showed him sitting in a car with a handgun on his lap. The guns in each video were different. The court indicated that it had the discretion to exclude the videos as more prejudicial than probative under Evidence Code section 352, but it declined to do so. Appellant argues it was error to admit the videos because there was no definitive evidence as to when they were created and no evidence that either of the handguns in the videos were used in the charged robberies. We disagree.
Instances of a defendant's uncharged conduct are generally inadmissible to prove conduct on a specific occasion except when they are relevant to some fact in issue other than a defendant's disposition to commit the charged crime and when their probative value outweighs their prejudicial effect. (Evid. Code, §§ 352, 1101, subds. (a) & (b); People v. Gunder (2007) 151 Cal.App.4th 412, 416.) The trial court's evidentiary rulings, including rulings under Evidence Code section 352 and 1101, are reviewed for abuse of discretion. (People v. Foster (2010) 50 Cal.4th 1301, 1328-1329; People v. Jablonski (2006) 37 Cal.4th 774, 821; People v. Holford (2012) 203 Cal.App.4th 155, 167-168.) The trial court's exercise of that discretion may not be disturbed unless the ruling was arbitrary, capricious or patently absurd and resulted in a miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)
Here, there was no direct evidence that one of the guns possessed by appellant in the cell phone videos was the same gun used in the charged robberies. But such an inference could be drawn. An expert testified that the videos were created in May or June 2017, which would have been two or three months before the robberies. Although it is generally error to admit evidence that the defendant possessed a weapon that could not have been used in the charged crime, evidence that the defendant possessed a weapon that could have been used may be admissible as circumstantial evidence he committed the crime. (People v. Sanchez (2019) 7 Cal.5th 14, 55-56.) The possession of a firearm prior to the commission of the offense may be probative of the defendant's actual possession of a firearm during the offense. (People v. Cox (2003) 30 Cal.4th 916, 955-956, overruled in part on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Carpenter (1999) 21 Cal.4th 1016, 1052; People v. Neely (1993) 6 Cal.4th 877, 896.)
This was not a case in which the prosecution asserted the defendant used a different type of weapon during the offense. (Cf. People v. Barnwell (2007) 41 Cal.4th 1038, 1056; People v. Riser (1956) 47 Cal.2d 566, 577, overruled on other grounds in People v. Morse (1964) 60 Cal.2d 631.) Nor was it a case in which the only relevance of weapon possession on some other occasion was to prove the defendant's disposition to carry such a weapon. (People v. Riser, supra, at p. 578.) The trial court did not abuse its discretion in admitting the cell phone videos.
We also conclude that any error in admitting the videos was not prejudicial because it is not reasonably probable that a result more favorable to appellant would have been reached if they had been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); People v. Mullens (2004) 119 Cal.App.4th 648, 658-659.) The jury saw a surveillance video taken from across the street from the robbery which clearly shows a man dressed in a gray hoodie and blue jeans get out of the car with a companion, walk up the street, disappear from sight and then reappear carrying the victims' bags. The jury also saw body camera images of appellant being arrested the day of the robbery. Officer Mullens, who arrested appellant and had previously arrested him a month prior, identified appellant as the man wearing the gray hoodie in the surveillance video. The robbery itself was not captured on the tape, but all three victims who testified at trial identified the person wearing the lighter colored hoodie (the other robber was dressed in black) as the man carrying the gun. Even if the videotapes from appellant's cell phone had been excluded, the evidence of his guilt—including his personal gun use— was overwhelming.
To the extent appellant argues that the admission of the cell phone videos rendered the trial fundamentally unfair and violated due process, and suggests we should apply the more stringent harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), our conclusion that the ruling was a proper exercise of discretion disposes of appellant's constitutional claim. (People v. Thomas (2012) 54 Cal.4th 908, 935.) In any event, we would find any error in admitting the cell phone videos to be harmless under the Chapman standard given the overwhelming evidence of guilt. (People v. Flood (1998) 18 Cal.4th 470, 494.)
B. Ineffective Assistance of Counsel
Appellant argues his trial attorney rendered ineffective assistance of counsel in failing to make three objections: (1) to Officer Mullens's testimony about his prior arrest; (2) to Officer Bergeron's testimony identifying appellant in the surveillance video; and (3) to proceeding with the trial outside appellant's presence. He also argues that counsel should have pressed for a ruling on a motion in limine that raised the first two issues, and that assuming the motions in limine were sufficient to preserve the issues on appeal, the officers' testimony was both inadmissible and prejudicial. We disagree.
A defendant claiming ineffective assistance of counsel has the burden to show: (1) counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-218, 233.) Prejudice is shown when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694.) Where an ineffective assistance of counsel claim is based on trial counsel's failure to make a motion or render an objection, a defendant must prove not only the absence of a reasonable tactical explanation for the omission but also that the motion or objection would have been meritorious. (People v. Mattson (1990) 50 Cal.3d 826, 876; People v. MacKenzie (1995) 34 Cal.App.4th 1256, 1272.) If the second prong of prejudice is not established, the court may reject the claim without analyzing the first prong. (People v. Kipp (1998) 18 Cal.4th 349, 366-367.)
Turning first to counsel's performance with respect to Officer Mullens, appellant complains that trial counsel failed to object when the officer testified he had previously arrested appellant on July 17, 2017, spent 30 minutes to one hour with him, and identified his 2017 booking photo at trial. This testimony was relevant to Officer Mullens's familiarity with appellant and his ability to recognize him. The record does not suggest an objection would have been sustained when identification was contested by the defense at trial and appellant was not present at the trial to be viewed by the jury. Officer Mullens's ability to identify appellant was critical because he was the primary witness to state that appellant was the man in the surveillance video. "Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile." (People v. Price (1991) 1 Cal.4th 324, 387.)
As for Officer Bergeron's testimony, there is similarly no showing that an objection would have caused the court to limit the testimony. Officer Bergeron testified that he saw appellant on the day of the robbery, both on the street and at the time of his arrest. He identified appellant in a photograph of a subject with his hands in the air as well as in a still photograph taken from the surveillance camera. "A lay witness may offer opinion testimony if it is rationally based on the witness's perception and helpful to a clear understanding of the witness's testimony. (Evid. Code, § 800.) '[T]he identity of a person is a proper subject of nonexpert opinion . . . .' " (People v. Leon (2015) 61 Cal.4th 569, 601, citing People v. Mixon (1982) 129 Cal.App.3d 118, 127 & People v. Perry (1976) 60 Cal.App.3d 608, 612 (Perry).)
Appellant acknowledges that witnesses may identify defendants in surveillance footage or photographs, but argues that Officer Bergeron, unlike Officer Mullens, did not have sufficient contact with appellant before the crimes for his testimony to be helpful to the jury. This goes to the weight rather than the admissibility of the opinion. (See People v. Larkins (2011) 199 Cal.App.4th 1059, 1067-1068; Perry, supra, 60 Cal.App.3d at p. 613.) Moreover, even if we assume appellant is correct, he does not explain how Officer Bergeron's testimony on this point could have been prejudicial when Officer Mullens had already identified appellant as the man in the surveillance footage, and when the jury saw video footage from appellant's arrest which they could compare for themselves to the surveillance video. (See People v. Gray (2005) 37 Cal.4th 168, 208 [failure to object to testimony on work product grounds not prejudicial when other evidence that was not refuted implicated defendant as perpetrator].)
Finally, appellant complains that after he was taken into custody following the guilty verdicts, trial counsel should have moved for reconsideration of the court's determination of voluntary absence and established that his absence at trial was not in fact voluntary. He points out that when appellant reappeared in court after the verdicts were returned, having previously been declared voluntarily absent, he had the burden of providing an explanation and seeking reconsideration. (See People v. Concepion (2008) 45 Cal.4th 77, 84-85.) But he makes no showing that counsel failed to disclose pertinent facts to the court once he reappeared that would have adequately explained his absence at trial. Even now, he offers no reason for his absence that would have undermined the trial court's determination it was voluntary. (Ibid.) He has not demonstrated either deficient performance or prejudice on this point.
C. Violation of section 1138
Appellant contends the court violated section 1138 because it had "ex parte" communications with the jurors during deliberations and did not answer their question concerning an enhancement. He argues that this error calls for a reversal of the judgment in its entirety. We disagree.
During deliberations, the jury requested a readback of Officer Mullens's testimony and a replay of two videos. At 11:08 a.m. on Friday, December 15, 2017, the court and counsel met to discuss the jury requests and the logistics for the replay of the videos. Counsel stipulated that the readback and presentation of the videos would be done in their absence.
At 2:47 p.m. that same day, the jury submitted jury request number 3, then recessed for the evening at 3:47 p.m. Jury request number 3 asked for a readback of the testimony "Re: Gun" from victims Ly, Li and Yung.
On Monday, December 18, 2017, jury deliberations resumed at 9:36 a.m., and at 9:41 a.m., the court and counsel discussed jury request number 3 and counsel stipulated that the readback could be done in their absence. Subsequently, in the absence of counsel, the trial court informed the jury that the court reporter had assembled the testimony and would commence the readback. The record reflects the following colloquy before the readback occurred:
"THE COURT: Good morning, everybody. Good to see you.
"So we have received a request that you submitted regarding the testimony that you want to hear. Madam Court Reporter has been able to locate it. So just as the last time, we'll let you have the courtroom as part of your deliberations, and the testimony will be read to you, okay? The record should reflect both attorneys were here just moments ago, and they have waived their appearance to be present [sic].
"And as I said last time, this is considered part of your deliberations. So with that, I will leave you with Madam Reporter, who will read the testimony to you, okay?
"JUROR 12: So if we've come to a decision on the charges but we got hung on the enhancement, what would happen?
"THE COURT: You would—well, at some point, if you felt that you needed to inform me that you had reached a certain point with regard to that question, you would let me know. Okay?
"JUROR 12: Okay.
"THE COURT: So let me do this: Before you go on, why don't you write these down, perhaps, and that may give you a better—since the attorneys aren't here, I don't want to go too far down that road. I don't want to preclude you from asking those questions. So why don't we read this testimony, and after that's done, the attorneys will be back. Write out the questions for me, and then we'll address them, okay?
"JUROR 12: Thank you.
"THE COURT: I'm going to leave you with Madam Reporter. And when you are done, don't go back up. Stay here so we can address that point, okay? All right. Thank you."
At 10:17 a.m., following the readback, the jury returned to the jury room to deliberate. At 10:31 a.m., the jury reported that verdicts had been reached. No further mention was made of deadlock on the enhancements. The verdicts were returned.
Section 1138 provides, "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called." The statute " 'requires that any questions posed by the jury regarding the law or the evidence be answered in open court in the presence of the accused and his or her counsel, unless presence is waived.' " (People v. Hawthorne (1992) 4 Cal.4th 43, 69.)
Here, counsel waived their right to be present after the readback commenced, and it was at this juncture that Juror 12 asked what would happen if the jurors could not agree on the enhancement allegations. The court did not answer substantively, but indicated the jury should write out its questions so it could answer them after conferring with counsel, who were not then present. There was no improper communication outside defense counsel's presence.
The jury did not follow through with its questions about agreement on the enhancements because it reached a verdict instead; it may be that the subsequent readback answered the jury's questions. It was not for the court to tell the jury how to conduct its deliberations. (People v. Ayala (2003) 23 Cal.4th 225, 288.) Appellant argues the court should have answered Juror 12's question, but it could not have done so at the moment it was asked without engaging in a substantive discussion outside defense counsel's presence.
Appellant argues the trial court should have followed the same procedure as the court in People v. Jennings (1991) 53 Cal.3d 334, 383-385, and should have advised defense counsel that there had been communications between the judge and jury regarding possible disagreement on the enhancement. In Jennings, there were substantive communications between the judge and jury regarding the effect of a deadlock during juror deliberations, and the court thereafter advised defense counsel, asked him to review the court reporter's notes of the exchange, and asked counsel to let the court know whether counsel believed anything else should be done. (Ibid.) Here, there were no comparable substantive communications regarding the effect of a deadlock, only an advisement by the court that the jury should put any questions they might have in writing, which would then be shared with counsel.
In any event, even if we assume some technical error occurred in the communications between the court and jury, it was harmless beyond any reasonable doubt. (People v. Neufer (1994) 30 Cal.App.4th 244, 252.) The court's comments were a neutral effort to address any question the jury might have and to make sure counsel was informed and could provide input. There is no indication the jurors had any doubt or disagreement regarding the enhancements by the time the verdict was reached.
D. Ability to Pay Restitution Fine and Fees
In addition to the 28-year prison term, the court imposed a restitution fine of $10,000 (§ 1202.4), a parole revocation fine in the same amount (stayed pending successful completion of parole) (§ 1202.45), a court operation assessment of $160 (§ 1465.8) and a criminal conviction assessment of $120 (Gov. Code, § 70373). Appellant argues that the case must be remanded because the court did not determine he had the ability to pay these fines and fees, as it was required to do under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). He acknowledges he raised no issue concerning his ability to pay in the trial court. We conclude the argument is forfeited on appeal.
The substantive holding in Dueñas has been criticized. (E.g., People v. Aviles (2019) 39 Cal.App.5th 1055, 1059; People v. Caceres (2019) 39 Cal.App.5th 917, 928.) Because we conclude appellant has forfeited any challenge based on Dueñas, we need not determine whether that decision is correct.
In Dueñas, the trial court imposed on the defendant certain assessments and a $150 restitution fine—the minimum amount required for misdemeanors under section 1202.4, subdivision (b). The court rejected the defendant's argument that the imposition of the assessments and the fine without consideration of her ability to pay them violated her constitutional rights to due process and equal protection. (Dueñas, supra, 30 Cal.App.5th at p. 1163.) The Court of Appeal reversed, holding that "the assessment provisions of Government Code section 70373 and Penal Code section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair[, and] imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution." (Dueñas, at p. 1168.) The appellate court reversed the order imposing the assessments and directed the trial court to stay the execution of the restitution fine "unless and until the People prove that [the appellant] has the present ability to pay it." (Id. at p. 1173.)
The Attorney General contends appellant forfeited any challenge to the restitution fine and fees by failing to object or raise the issue below. This general rule of forfeiture is well-settled. (E.g., People v. Aguilar (2015) 60 Cal.4th 862, 864; People v. Avila (2009) 46 Cal.4th 680, 729.) Appellant argues the forfeiture rule should not apply because his sentencing occurred prior to Dueñas, and any objection would have been futile. We disagree.
Section 1202.4 subdivision (b)(1) provides for a restitution fine in the minimum amount of $300 and a maximum amount of $10,000 when the defendant is convicted of a felony. Section 1202.4, subdivision (c) specifies, "The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. A defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine . . . ." Thus, when the court imposes a fine in excess of the statutory minimum, the statute expressly permits it to consider the defendant's ability to pay.
In People v. Castellano (2019) 33 Cal.App.5th 485, 488, the court had imposed various fees and a restitution fine of $300 (the statutory minimum for a felony count). The appellate court held that the forfeiture rule did not apply to a defendant sentenced prior to Dueñas because no court had previously "held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant's ability to pay." (Castellano, supra, at p. 489; accord, People v. Johnson (2019) 35 Cal.App.5th 134, 138 [$300 minimum fine].)
In People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153 (Frandsen), the court rejected a Dueñas claim on the ground of forfeiture in a case where the trial court had imposed a $10,000 restitution fine, the statutory maximum. The appellate court concluded that an objection to this amount would not have been futile under the law that existed at the time, because it was a factor that could have been considered in setting the fine in excess of the minimum. (Id. at p. 1154; see also People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 [Dueñas issue forfeited where defendant failed to object to $1,000 fine].) The court in Frandsen also disagreed with the defendant's assertion that Dueñas constituted " 'a dramatic and unforeseen change in the law.' " (Frandsen, supra, 33 Cal.App.5th at p. 1154.)
More recently, the court addressed the forfeiture argument in People v. Gutierrez (2019) 35 Cal.App.5th 1027 (Gutierrez). In that case, the trial court imposed a restitution fine in the amount of $10,000 along with certain fees and assessments totaling $1,300. The court held that the defendant, who had been sentenced prior to Dueñas, had forfeited his right to raise an inability-to-pay argument on appeal by failing to raise the argument below. (Id. at p. 1029.) The court expressly avoided the "perceived disagreement" between Castellano and Frandsen about the foreseeability of Dueñas by explaining that, in the case before it, the trial court had imposed a restitution fine greater than the statutory minimum; indeed, it had imposed the maximum amount permitted by statute. (Id. at p. 1032.) Because "even before Dueñas" section 1202.4 permitted the court to consider a defendant's ability to pay when it imposed a fine above the statutory minimum, "a defendant had every incentive to object to imposition of a maximum restitution fine based on inability to pay" and the usual rules of forfeiture should apply. (Id. at p. 1033; see Avila, supra, 46 Cal.4th at p. 729 [defendant forfeited challenge to restitution fine greater than the minimum by failing to raise the argument below].) Regarding the lesser sum imposed for other fees and assessments, the court stated that the defendant's challenge to these amounts was also forfeited because, as "a practical matter, if [the defendant] chose not to object to a $10,000 restitution fine based on an inability to pay, he surely would not complain on similar grounds regarding an additional $1,300 in fees." (Gutierrez at p. 1033.)
The Gutierrez court's rationale applies here. Because the court imposed a maximum restitution fine of $10,000 rather than the $300 statutory minimum, appellant had the right, even before Dueñas, to request that the court consider his inability to pay that amount and "had every incentive" to do so. (Gutierrez, supra, 35 Cal.App.5th at p. 1033.) Because he failed to raise his inability to pay the $10,000 fine, appellant, like the defendant in Gutierrez, "surely would not complain on similar grounds" as to the relatively insignificant assessments of $120 and $160. (Ibid.; see also Frandsen, supra, 33 Cal.App.5th at p. 1154 [because the defendant failed to object to a $10,000 restitution fine based on inability to pay, he failed on appeal to show "a basis to vacate assessments totaling $120 for inability to pay"].) We conclude appellant has forfeited his arguments challenging the assessments and restitution fine.
The court also imposed a $10 theft fine and a $250 probation investigation fee which he does not challenge. (§ 1202.5, subd. (a), 1203.1, subd. (b).)
Appellant alternatively argues counsel was ineffective for failing to preserve the inability-to-pay issue on appeal. This claim is without merit because we cannot determine from the record why counsel failed to request a hearing on appellant's ability to pay. It is possible that appellant did have the ability to pay the fine and fees and that counsel made a rational decision not to raise the issue. And, in the absence of a record from which we could determine that appellant did not have the ability to pay, appellant has failed to establish a reasonable probability that, if counsel had raised the issue below, he would have obtained relief. (Strickland, supra, 466 U.S. at p. 694.) We therefore reject appellant's ineffective assistance claim.
By separate order filed this date, we have denied appellant's companion petition for writ of habeas corpus without issuing an order to show cause. (In re Kalvin Craven (Nov. 5, 2019, A157686.)
III. DISPOSITION
The judgment is affirmed
/s/_________
NEEDHAM, J. We concur. /s/_________
SIMONS, Acting P. J. /s/_________
BURNS, J.