Opinion
F080758
04-07-2022
THE PEOPLE, Plaintiff and Respondent, v. JOSUE ECHEVERRIA, Defendant and Appellant.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Ian Whitney, Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tuolumne County No. CRF57350. Kevin M. Seibert, Judge.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Ian Whitney, Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, P. J.
INTRODUCTION
On August 17, 2017, Josue Echeverria, an inmate at Sierra Conservation Center (a California state prison), was videotaped engaged in a group assault on another inmate, S.R., during a prison riot. Echeverria and other inmates kicked, punched, and stomped S.R., rendering him unconscious and causing him to be hospitalized. A jury convicted Echeverria of assault by an inmate likely to produce great bodily injury and battery causing great bodily injury, and found true the allegations that Echeverria personally caused great bodily injury on S.R. Echeverria contends on appeal that (1) the prosecutor committed misconduct during her closing argument when she vouched for the correctional officer witnesses by arguing that they would lose their jobs if they lied, and (2) the trial court erred in determining Echeverria had the ability to pay a $10,000 restitution fine.
We affirm the judgment.
PROCEDURAL BACKGROUND
The District Attorney of Tuolumne County filed an amended information on March 12, 2019, charging Echeverria and codefendants Jose Frausto, Jacob Ambriz, Cristian Barrera, and Samuel Delarosa (collectively defendants) with assault by a prisoner by means of force likely to produce great bodily injury (Pen. Code, § 4501, subd. (b); count 1) and battery causing serious bodily injury (§ 243, subd. (d); count 2). The amended information alleged that Echeverria personally and intentionally inflicted great bodily injury pursuant to section 12022.7, subdivision (a) (as to count 1) and sections 667.5, subdivision (c)(8) and 1192.7, subdivision (c)(8) (as to both counts). As to both counts, the amended information alleged that Echeverria had two prior serious or violent felony convictions within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(j), 1170.12) and two prior serious felony convictions (§ 667, subd. (a)(1)).
Undesignated statutory references are to the Penal Code.
On October 7, 2019, the trial court granted the prosecutor's motion to consolidate the trial of Echeverria's case with that of Andrew Roberson, whose charged crimes arose from the same incident.
After a four-day trial, the jury convicted Echeverria of both counts on October 30, 2019. The jury also found true that Echeverria personally inflicted great bodily injury as to count 1 (§ 12022.7, subd. (a)) and count 2 (§§ 667.5, subd. (c)(8), 1192.7, subd. (c)(8)). In a bifurcated proceeding on October 31, 2019, the trial court found true Echeverria's two prior serious or violent felony conviction allegations.
Frausto and Roberson were also convicted. Ambriz, Barrera, and Delarosa were acquitted of all charges.
On January 21, 2020, the trial court sentenced Echeverria to a term of 25 years to life in prison as to count 1 (§ 667, subds. (b)-(j)), plus three years (§ 12022.7, subd. (a)), plus 10 years (§ 667, subd. (a)(1)). As to count 2, the court sentenced Echeverria to a stayed term of 25 years to life in prison (former § 654, subd. (a); § 667, subds. (b)-(j)). Echeverria was sentenced to total term of imprisonment of 38 years to life. The trial court imposed a $10,000 restitution fine (former § 1202.4) and a suspended $10,000 parole revocation restitution fine (§ 1202.45, subd. (a)).
This timely appeal followed on February 7, 2020.
FACTS
The parties stipulated that defendants were in prison at the time of the offenses.
A. Lieutenant Michael Bullock
At the time of Echeverria's trial, Lieutenant Michael Bullock had been employed as a correctional officer for 17 years, serving the last 12 years at Sierra Conservation Center, and a member the investigative services unit for the last five years.
The prison was divided into three levels, including Level 2, which was involved in Echeverria's case. The Level 2 yard (the yard) was surrounded on all sides, including 30-man dorms and a concrete building. Level 2 housed approximately 1, 000 inmates. Approximately 300 to 500 inmates were released into the yard at any given time. The yard was shaped like the letter "D," with the dorms forming the outer perimeter. The yard was divided into areas for sitting and lounging, soccer, exercise, handball, and basketball, and these areas were surrounded by a track. Nine surveillance cameras monitored different areas of the yard.
On August 17, 2017, Lieutenant Bullock was on duty investigating a gang activity case. He responded to the unit office overlooking the yard after hearing a radio call of "code three," requiring that all available personnel respond. When he arrived, Lieutenant Bullock saw a full-scale riot whereby inmates were in "disruptive groups and fighting each other."
Lieutenant Bullock learned that an inmate had been injured and identified him as S.R. In attempting to identify the inmates responsible for S.R.'s injuries, Lieutenant Bullock reviewed videos from the nine surveillance cameras and concentrated on images from camera 2. The video from camera 2 (the video) was played for the jury, and Lieutenant Bullock described the video as it was played. The video showed that the riot initiated on the far right of the screen, in the area of the phone booths. Correctional officers observed the riot from a roof and deployed chemical agents. Inmates were ordered to "get down," and those not involved in the riot did so. The video showed S.R. being pulled by a group of inmates from behind a caged area used by the staff as a clothing room and medical area. After the initial group assaulting S.R. dispersed, approximately four more inmates ran up to his prone body and kicked him. Toward the end of the video, which was approximately 10 minutes long, S.R. was lying nonresponsive when several inmates carried him to a gate off camera where medical staff waited with an ambulance.
In conducting the investigation of S.R.'s assault, Lieutenant Bullock reviewed the surveillance videos at his computer desk. He explained that while the videos were slightly pixelated when viewed on his computer monitor, they became more pixelated and less clear when viewed on larger screens. Other officers reviewed the videos and filed reports regarding the identifications of inmates involved in S.R.'s assault. Lieutenant Bullock personally reviewed the identification badge of each inmate identified and compared their badge photographs to the video, thereby confirming the identifications. Inmate identification badge photographs were updated each time inmates' appearances changed so that their badges reflected their current appearances.
B. Leah Zoellner
Leah Zoellner had been employed as a registered nurse by the Department of Corrections and Rehabilitation and assigned to Sierra Conservation Center for more than 11 years. Zoellner was located at the back gate of the yard when the riot broke out. She observed inmates running and fighting and saw S.R. being assaulted by many other inmates until he fell to the ground. The inmates kicked S.R. and stomped on his head until he lost consciousness. S.R. went limp and stopped both moving and defending himself. Zoellner was approximately 300 feet from S.R. when she saw the assault.
Other inmates then dragged S.R. to her. He was still unconscious. After approximately two minutes, S.R. came to, sat up, and started talking. Zoellner placed a cervical collar on S.R., laid him on a backboard, and took his vital signs. S.R. was alert, orientated to person, place, and time but slow to respond. S.R. had multiple abrasions, swelling, and redness to his head, face, eyes, and mouth area. When asked about his pain, S.R. only moaned in response. S.R.'s respiratory rate was faster than normal, but his lungs were clear, and he had equal chest rise. Based upon S.R.'s loss of consciousness and injuries, Zoellner determined he needed a higher level of medical care, and an outside ambulance transported him to an outside hospital. She reported S.R.'s loss of consciousness to the emergency medical technicians.
C. Officer Michael Jennings
Michael Jennings had worked at Sierra Conservation Center for six years as a correctional officer. As part of his duties, Officer Jennings monitored inmate movements, ensured they made it to their jobs, and reviewed their passes. Officer Jennings was responsible for seven dormitories and interacted daily with the inmates assigned to them. Through such interaction, Officer Jennings became familiar with the inmates, including their appearances and mannerisms. At the time of the riot, Officer Jennings had worked with the inmates assigned to that area 40 hours a week for approximately eight months. The inmates were required to wear identification badges, and Officer Jennings regularly used the identification badges to identify the inmates during contact with them, including times when the inmates were permitted to move to and from the dormitories.
Officer Jennings reviewed videos of the riot in an attempt to identify the inmates responsible. Focusing primarily on the video from camera 2, Officer Jennings testified that he identified Echeverria as one of the inmates who kicked and stomped S.R. He had been familiar with Echeverria before the assault and was positive of his identification of Echeverria in the video. Echeverria stomped or kicked S.R. approximately 14 times. Officer Jennings testified that he first observed Echeverria kick S.R. at time stamp 09:55:17:3551. Echeverria continued to kick S.R. in the head until "93539656 [sic]"when he walked away. Echeverria returned to S.R. and continued kicking him. S.R. appeared to be nonresponsive when kicked. Echeverria was wearing a gray tank top.
The time stamp referenced is actually 09:55:39:656.
During the prosecution's rebuttal case, Officer Jennings used a pointer to indicate where Echeverria was in the video, commencing at time stamp 09:55:17 and continuing until Echeverria walked away from the assault. Officer Jennings again testified that he was 100 percent certain of his identification of the inmate in the video as Echeverria.
D. Identification of Defendants
Daniel Browning and Daron Hitchcock were also correctional officers working at Sierra Conservation Center. Both officers were assigned to sections of Facility B and had been for eight months and one year, respectively. They regularly interacted with the inmates and, through such interaction, became familiar with the inmates assigned to them. During these interactions, the officers regularly inspected the inmates' identification badges.
During some testimony, Level 2 was also referred to as Facility B.
Officers Browning and Hitchcock both reviewed videos of the riot, focusing on the video from camera 2, attempting to identify the inmates involved in S.R.'s assault. Officer Browning identified Roberson as involved in the assault after recognizing him in the video. He had been familiar with Roberson before the riot and had a one-on-one counseling session with him. Officer Hitchcock reviewed the video "a ton" of times and used a roster of inmates, which included their photographs. Through his review, Officer Hitchcock identified six of the inmates who assaulted S.R., including Ambriz, Barrera, Delarosa, and Frausto. He was certain these inmates assaulted S.R. as seen in the video.
Ambriz, Barrera, and Delarosa were acquitted by the jury. Frausto, Roberson, and Echeverria were convicted.
E. Medical Records
According to S.R.'s medical records, S.R. presented at the emergency room with severe facial pain, blurry vision, midback pain, a concussion, and facial swelling. S.R. was unable to open his eyes due to soft tissue swelling over his eyes and around his nose. Hemorrhaging was detected in his eyes. S.R. was admitted to a hospital where he underwent a computed tomography scan (CT scan). Testing confirmed facial fractures to S.R.'s nasal and ethmoid bones (the latter is also known as a right orbital fracture). While his scalp exhibited soft tissue thickening related to trauma, no brain damage was detected. Ocular pressure in his eyes was elevated. S.R. was advised to apply ice packs to his eyes for 20 minutes every one to two hours for 24 to 48 hours, keep his head elevated, refrain from blowing his nose for six weeks, and told that he would experience double vision that would lessen over time. After consulting with a surgeon, doctors concluded S.R.'s facial fractures were nonoperative but that he should follow up with plastic surgeons regarding nasal deformity.
F. Trial Exhibit 1, the Surveillance Video from Camera 2
Trial exhibit 1 contains nine videos, one from each of the nine surveillance cameras used to monitor the yard. The videos are each 10 minutes long and start at time stamp 09:50. The video was played to the jury because it has the best view of S.R.'s assault. At the beginning of the video, camera 2 points to the left of the facility showing the back of the dormitories that line the yard. Camera 2 pans across the yard showing, at the opposite side to the dormitories, a long building running alongside the interior running track. A covered sidewalk or walkway runs along the front of one building on the right, ending half-way (from bottom to top across the right side of the screen). Air conditioning units are located on the roof over the walkway. S.R.'s assault occurred under the walkway in the approximate area below the second air conditioner (counting from the topmost air conditioner seen on the screen).
At time stamp 09:51, the video shows inmates running from the area of the dormitories toward the far end of the yard where the riot started. Camera 2 pans to that area and shows smoke dispersing. The mob of inmates moves to the walkway in the center of the building on the right, under the first air conditioner. Over the next two minutes, the inmates converge at that area and then move back along the covered walkway toward the bottom right of the screen.
Lieutenant Bullock testified that the assault on S.R. converged at the caged area seen in the video on the bottom right of the screen, under the second air conditioner. The group of inmates move to this area at approximately time stamp 09:54. Camera 2 zooms in on this area at time stamp 09:54:32, zooms out briefly, then zooms in again at time stamp 09:54:49.
Camera 2 zooms in on where the walkway ends at the caged area (toward the bottom of the screen). Two inmates in red are standing at the edge of the walkway and cage, preventing several other inmates from accessing the area under the walkway where inmates appear to be fighting (this is the area where the assault on S.R. begins). As camera 2 zooms out, the group of inmates move off the walkway from under the covered area. When camera 2 zooms back in, inmates surround S.R. in a circle. The group of inmates separate briefly, and S.R. is visible in the center of the screen, curled into a ball, on the ground with his back exposed. An inmate in red sits on S.R. as other inmates continue to hit and kick him. The inmates enclose S.R. again, and then the group dissipates as inmates run off (toward the bottom of the screen.) Echeverria enters the video from the left center and joins the group of inmates assaulting S.R. on the left side. Echeverria is a shorter inmate who is bald, wearing a gray tank top and blue shorts. He appears to be kicking S.R., but only his head and shoulders are visible at this time.
Camera 2 zooms in on where the walkway ends at the caged area (toward the bottom right of the screen). Echeverria continues to assault S.R. near the walkway. Echeverria's first clear kick can be seen, and he kicks S.R. an additional eight times. The inmates pause their assault, and S.R. crawls onto his knees with his head to the ground. The assault on S.R. continues, and Echeverria kicks S.R. two times and then stomps on his head four times. Echeverria and the other inmates run away, leaving S.R. immobile on the ground as several other inmates kick him in passing.
II. Defense Case
Echeverria rested without presenting any evidence.
DISCUSSION
I. Prosecutorial Misconduct
A. Background
The prosecutor, in her initial closing argument, argued to the jury that they could believe the officers' identifications of defendants because the officers "spend their whole work li[ves] with these inmates," and their jobs are "to people read," "to watch people for safety and security," and "to know who is on their yard." She further argued:
"They have no dog in the show. They are just here to do their job[s]. Is this some grand conspiracy to convict these guys? Why aren't they up there to call all the people that were involved in the melee on the yard? They stated, ["]no.["] We only brought forward the ones we could identify 100 percent.
"Every one of these officers testified about each of these [identifications], about each of these six defendants was rock solid. There was nothing-they pointed them out. They talked about what they did.· They gave you specific timestamps about what each defendant did. They watched this video hundreds of times to be absolutely certain of their identifications.
"Think about this. If an officer lies-and, honestly, you have videos that people can go back and look-their career is over. A dishonest cop won't be a cop for long. They have no motive in this case to lie to you."
No defense counsel objected to the prosecutor's statements that "their career[s]" are over if they lie or a "dishonest cop won't be a cop for long."
During closing arguments, defense counsel all argued that the video evidence was not of sufficient quality to permit the correctional officers to identify defendants as involved in S.R.'s assault. In addition, defense counsel all argued that the video was the best evidence, the officers who identified defendants did so only from the video and were not eyewitnesses to the assault, and the jury could (and should) compare the inmates depicted in the video to defendants in the courtroom and determine for themselves whether the video was of sufficient quality to prove beyond a reasonable doubt that defendants were involved in the assault.
Defense counsels' argument did not challenge the veracity of the officers' testimony, but rather attacked the reliability of their identification of defendants in light of the low quality of the video. Echeverria's counsel attacked the quality of the video and argued that Officer Jennings's testimony was based only on the video. He urged the jury to watch it and determine whether it was of sufficient quality to permit anyone to identify any defendant. Echeverria's counsel explained:
" [N]ot guilty basically means not proven beyond a reasonable doubt. It's not the same as saying innocent. And it's also-and this is important. It's not saying that the officers or Lieutenant Bullock are lying. You can believe all of the witnesses. You can believe them all and say, yeah, I believe them.…
"You don't have to find that any of the officers [are] lying. It's perfectly consistent with not guilty that we believe what the officers have said."
In addition, Ambriz's counsel argued, "Now I'm not saying that Officer Hitchcock is a bad person. I'm not saying that he's lying, that this is some grand conspiracy. I believe that Officer Hitchcock is certain in his identification." Ambriz's counsel then explained that, nonetheless, the video's quality did not permit such an identification and the jury should make the comparison for themselves. Delarosa's counsel argued that the video was insufficient to permit an identification of Delarosa and, upon further review, the jury would not be able to determine how the officers could have identified Delarosa. Barrera's counsel similarly argued that the officers could only point out Barrera's head in the video. Frausto's counsel argued that the officers could say they were 100 percent certain, and that might be what they believe, but "the video is the actual evidence.… And you have to decide based upon what you can see and ascertain what the actual situation was."
In rebuttal, the prosecutor's closing argument addressed a number of issues raised by defense counsel's arguments. She reminded the jury that each officer testified they were 100 percent certain of their identifications and that the officers had a duty to know the inmates they were responsible for guarding. After explaining that the officers' jobs were to know the inmates and to identify them in surveillance videos, the prosecutor argued:
"These officers are here just to do their job[s]. They have no stake in this case. In fact, if they lie, they lose their entire livelihood. It's their job[s] to be certain if they are going to be certain."
No defense counsel objected to the argument.
The jury commenced deliberations at approximately 3:32 p.m. on October 25, 2019. The court arranged for the jury to have a laptop with which to watch the video. At approximately 3:40 p.m., the jury asked for photographs of defendants. Because no photographs were admitted into evidence, the court denied the request at 3:55 p.m. The jury requested the time stamp for when Ambriz appeared in the video at 4:13 p.m. At 4:28 p.m., before leaving for the day, the jury requested that they be able to view the video on the larger courtroom screen.
On the second day of deliberations, at approximately 9:21 a.m., the jury requested time stamps for when defendants appeared in the video, except for Ambriz. At approximately 2:25 p.m., the jury requested readback of Officer Hitchcock's testimony (relating to Delarosa) and Officer Jennings's testimony (relating to Echeverria). Readback ended at approximately 3:22 p.m. The jury returned their verdicts at 4:50 p.m. on October 30, 2019. The jury convicted Echeverria, Frausto, and Roberson but acquitted Ambriz, Barrera, and Delarosa.
B. Applicable Law
"' "The applicable federal and state standards regarding prosecutorial misconduct are well established. '" A prosecutor's … intemperate behavior 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.'"' [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves '" 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.'" '" '" (People v. Abilez (2007) 41 Cal.4th 472, 494.)
"' "[A] prosecutor is given wide latitude to vigorously argue his or her case"' [citation] and' "may make 'assurances regarding the apparent honesty or reliability of' a witness 'based on the "facts of [the] record and the inferences reasonably drawn therefrom." '"' [Citation.] 'Improper vouching occurs when the prosecutor either (1) suggests that evidence not available to the jury supports the argument, or (2) invokes his or her personal prestige or depth of experience, or the prestige or reputation of the office, in support of the argument.' [Citation.] Referring to facts not in evidence is 'clearly' misconduct 'because such statements "tend[] to make the prosecutor his own witness-offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, 'although worthless as a matter of law, can be "dynamite" to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence.' [Citations.]" [Citations.] "Statements of supposed facts not in evidence … are a highly prejudicial form of misconduct, and a frequent basis for reversal."' [Citation.] We 'view the statements in the context of the argument as a whole.'" (People v. Rodriguez (2020) 9 Cal.5th 474, 480, second, fourth, fifth, & ninth bracketed insertions added (Rodriguez).)
A prosecutor's argument that officers would not lie because they would not put their careers on the line or at risk constitutes impermissible vouching. (Rodriguez, supra, 9 Cal.5th at p. 481.) Such career-related arguments" 'convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant's right to be tried solely on the basis of the evidence presented to the jury.'" (Ibid.)
"To preserve a claim of prosecutorial misconduct for appeal, a defendant must object and seek an admonition if an objection and admonition would have cured the harm." (People v. Kennedy (2005) 36 Cal.4th 595, 618, disapproved on other grounds by People v. Williams (2010) 49 Cal.4th 405, 459.) The objection must be made on the same ground upon which the defendant now assigns error. (People v. Jones (2003) 29 Cal.4th 1229, 1262.) If a defendant fails to object, the misconduct claim is preserved for review only if an admonition would not have cured the harm. (People v. Cook (2006) 39 Cal.4th 566, 606.)
"In order to be entitled to relief under state law, [a] defendant must show that the challenged conduct raised a reasonable likelihood of a more favorable verdict. In order to be entitled to relief under federal law, [a] defendant must show that the challenged conduct was not harmless beyond a reasonable doubt." (People v. Blacksher (2011) 52 Cal.4th 769, 828, fn. 35, citing People v. Cook, supra, 39 Cal.4th at p. 608.)
C. Analysis
1. Forfeiture
We find Echeverria forfeited this issue by failing to make a timely objection. "[T]he initial question to be decided in all cases in which a defendant complains of prosecutorial misconduct for the first time on appeal is whether a timely objection and admonition would have cured the harm. If it would, the contention must be rejected .…" (People v. Green (1980) 27 Cal.3d 1, 34, abrogated on another ground by People v. Martinez (1999) 20 Cal.4th 225, 240-241.) "The reason for this rule, of course, is that 'the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the harmful effect upon the minds of the jury.'" (Id. at p. 27.) The failure to timely object and request an admonition will be excused if doing either would have been futile, or if an admonition would not have cured the harm. (People v. Hill (1998) 17 Cal.4th 800, 820, overruled on another ground by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
Echeverria acknowledges that no objection was made but argues the omission should be excused because an admonition would not have cured the harm. We are not persuaded. Generally, a prosecutor's statements that are not based on the evidence or related to a matter of common knowledge can be offset by an instruction or admonition by that court. (People v. Bell (1989) 49 Cal.3d 502, 539.) In Bell, the prosecutor made several statements to which Bell failed to object. (Id. at pp. 535-536.) The prosecutor made a technically misleading statement that an expert's opinions were worthless because he was not present at the scene, suggested that defense counsel withheld the contents of "many, many, many pages of police reports" during cross-examination of Bell's expert witness where such reports had not been admitted into evidence, analyzed the defense's strategy to suggest that defense counsel believed Bell was guilty, and misstated the effect of cocaine on an individual which was factually inaccurate and a matter not admitted into evidence. (Id. at pp. 535-539.) The court concluded, "In none of the instances of misconduct to which the defendant failed to object was the misconduct so egregious that a timely admonition would not have cured its impact." (Id. at pp. 539- 540; see People v. Centeno (2014) 60 Cal.4th 659, 674 ["prosecutor's misstatements of law are generally curable by an admonition from the court"].)
One exception to the forfeiture rule is found when misconduct is pervasive, defense counsel repeatedly but vainly objected to try to curb the misconduct, and the courtroom atmosphere was so poisonous that further objections would have been futile. (People v. Hill, supra, 17 Cal.4th at pp. 821, 836.) The California Supreme Court has described Hill as a limited exception to the forfeiture rule "[u]nder the unusual circumstances presented [in Hill]" where it "concluded that were counsel to continue to object, he risked further provoking the court's wrath over' "meritless" objections,' which would have been 'counterproductive to his client.'" (People v. Clark (2011) 52 Cal.4th 856, 960.) This case was not remotely close to that extreme. The trial atmosphere here was not poisonous, counsel failed to object to the single claimed instance of misconduct, and the record fails to establish that objections would have been futile. (People v. Hillhouse (2002) 27 Cal.4th 469, 501-502.) "The normal rule requiring an objection applies here, not the unusual one applied to the extreme circumstances of … Hill.…" (Id. at p. 502.)
In Green, the defendant claimed eight alleged instances of prosecutorial misconduct by the prosecutor in the course of his closing argument to the jury. (People v. Green, supra, 27 Cal.3d at p. 34.) They included remarks in which the prosecutor expressed his disbelief of the defendant's alibi, his denial of a conspiracy between his office and the prosecution witnesses, and his reason for not calling certain persons to testify, together with his partial misstatement of the law of reasonable doubt. (Ibid.) "Without deciding whether those remarks constituted misconduct, we have examined each in context and are of the view that any harm flowing therefrom could have been cured by appropriate admonition. There is accordingly no ground to excuse [the] defendant from the general requirement of a timely objection, and the point must be deemed waived. (Id. at pp. 34-35.)
Echeverria argues that the record demonstrates an objection would not have cured the harm because it occurred at the end of the prosecutor's rebuttal argument, the case was then submitted to the jury, and defense counsel had no opportunity to offer further remarks on Echeverria's behalf. Echeverria's argument erroneously assumes that defense counsel's further argument would be the only the way in which to counter the prosecutor's improper argument. In this case, the prosecutor argued that the officers who testified would risk losing their jobs by lying, but no evidence of this had been introduced at trial. Upon proper objection, however, the trial court could have sustained the objection, instructed the jury that there was no evidence to support the argument, and admonished the jury to disregard it. We do not believe that the prosecutor's argument was so prejudicial that a jury would have been unable to disregard the prosecutor's argument upon instruction by the trial court.
While we conclude that the prosecutor's stray comment in this case-that the officers would not risk their career by committing perjury-improperly referenced a matter outside the record, it was an isolated comment and not the focus of her argument. The prosecutor did not place the prestige of her office behind the officer's veracity or the strength of the charges against Echeverria. The case upon which Echeverria relies, People v. Alvarado (2006) 141 Cal.App.4th 1577, is inapt. There, a majority held that the prosecutor "impermissibly invited the jury to convict Alvarado based on her opinion that he was guilty and on the prestige of her office by responding: 'I have a duty and I have taken an oath as a deputy District Attorney not to prosecute a case if I have any doubt that that crime occurred. [¶] The defendant charged is the person who did it.'" (Id. at p. 1585.) In addition to that one statement, the court found that the prosecutor may have suggested to the jury that she had additional evidence of his guilt that had not been presented to the jury when she argued Alvarado may have committed similar crimes against other little kids, and this strengthened the improper inference that the jury should rely on the prosecutor's opinion and convict Alvarado on that basis. (Id. at p. 1586.) Thus, the comment in Alvarado concerned the guilt or innocence of Alvarado and implied that the prosecutor had information outside the record showing that guilt. Here, the prosecutor did not state that she only prosecuted people she believed were guilty and did not imply that she had knowledge of facts outside the record which would support the charges.
Therefore, we conclude Echeverria forfeited his claim of prosecutorial misconduct by not objecting below.
D. Ineffective Assistance of Counsel
Notwithstanding Echeverria's forfeiture of his prosecutorial misconduct claim, we may still grant relief if trial counsel's failure to preserve that claim constituted ineffective assistance. (See People v. Espiritu (2011) 199 Cal.App.4th 718, 725-726.) "In order to establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel's performance was deficient, and that the defendant suffered prejudice as a result of such deficient performance." (People v. Mickel (2016) 2 Cal.5th 181, 198, citing Strickland v. Washington (1984) 466 U.S. 668, 687-692.) "To demonstrate deficient performance, [a] defendant bears the burden of showing that counsel's performance '"' "fell below an objective standard of reasonableness … under prevailing professional norms." '"' [Citation.] To demonstrate prejudice, [a] defendant bears the burden of showing a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (Mickel, at p. 198.)
1. Reasonableness of Counsel's Performance
"[C]ertain practical constraints make it more difficult to address ineffective assistance claims on direct appeal rather than in the context of a habeas corpus proceeding." (People v. Mickel, supra, 2 Cal.5th at p. 198.) "The record on appeal may not explain why counsel chose to act as he or she did. Under those circumstances, a reviewing court has no basis on which to determine whether counsel had a legitimate reason for making a particular decision, or whether counsel's actions or failure to take certain actions were objectively unreasonable." (Ibid.) "Moreover, we begin with the presumption that counsel's actions fall within the broad range of reasonableness, and afford 'great deference to counsel's tactical decisions.' [Citation.] Accordingly, [the California Supreme Court] ha[s] characterized [a] defendant's burden as 'difficult to carry on direct appeal,' as a reviewing court will reverse a conviction based on ineffective assistance of counsel on direct appeal only if there is affirmative evidence that counsel had '" 'no rational tactical purpose'"' for an action or omission." (Ibid.)
The record before us does not reveal why defense counsel did not object to the prosecutor's arguments that the officers risked losing their jobs if they lied. There could have been legitimate reasons why defense counsel may have chosen not to object. Competent counsel may often choose to forgo even a valid objection. "[I]n the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jury's apparent reaction to the proceedings. The choice of when to object is inherently a matter of trial tactics not ordinarily reviewable on appeal." (People v. Frierson (1991) 53 Cal.3d 730, 749.)
Echeverria's counsel defended this case by attacking the quality of the video evidence and the reliability of the officers' identifications in light of the video's quality. All defense counsel stopped short of impugning the officers' veracity. No evidence had been introduced that any officer had lied, had a motive to lie, or had a reputation for lying. The prosecutor's offending argument vouched for the officers' honesty and improperly relied upon facts outside the record to suggest that they risked their jobs if they lied. However, given the strategy exhibited by Echeverria's counsel in his closing argument, he could have decided not to draw attention to the prosecutor's improper comments, which did not address the reliability of the officers' identifications. This decision was within the broad range of trial tactics that we may not second-guess. (See People v. Frierson, supra, 53 Cal.3d at p. 749.)
2. Prejudice
In addition, Echeverria has failed to demonstrate he suffered prejudice from his counsel's failure to preserve Echeverria's claim of prosecutorial misconduct. All defense counsel, including Echeverria's counsel, argued that the video was not of sufficient quality to permit the jury to find beyond a reasonable doubt that defendants committed the crime depicted therein. Defense counsel did not argue that the officers were lying or conspiring to convict defendants. Defense counsel specifically argued that the officers were mistaken and based their identifications on a video that did not prove defendants committed the crime. The prosecutor's vouching for the officers' veracity did not address or undermine defense counsel's argument that the officers were, nonetheless, mistaken.
The record demonstrates that the jury carefully considered the evidence and whether the video proved defendants committed the crimes. The jury commenced deliberations with a laptop that the court provided. Almost immediately, the jury requested photographs of defendants, indicating they intended to compare the video with defendants' appearances. The jury then requested time stamps for each of the defendants, indicating the jurors were making the comparisons that defense counsel argued the jurors should make. The jury also requested permission to review the video during their deliberations on the larger courtroom screen. Approximately four hours after viewing the video on the larger courtroom screen, the jury requested readback of two officers' testimony, one relating to Delarosa and the other relating to Echeverria. Approximately one hour and 20 minutes later, the jury returned their verdicts and acquitted three defendants despite the officers' identifications. Based upon the jury's questions and deliberations, we conclude the prosecutor's vouching for the officers' veracity was harmless. (Cf. Rodriguez, supra, 9 Cal.5th at pp. 486-487 [recognizing courts often find similar prosecutorial statements have limited prejudicial effect and disapproving People v. Rodriguez (2018) 26 Cal.App.5th 890 regarding import and effect of prosecutor's similar remark although expressing no view on court's conclusions that such statements were prejudicial in light of Attorney General's failure to argue harmlessness].)
Therefore, even had Echeverria's counsel objected to and sought an admonition regarding the prosecutor's offending statement, it is not reasonably probable that one or more of the jurors would have believed that the officers were lying about their identifications and rejected the officers' testimony on that basis. There was no evidence of bias on the part of any of the officers and, as we have concluded, the prosecutor's statements would not have prevented the jury from rejecting the officers' testimony if it concluded that the video did not support the identifications and the officers were simply wrong. It strains credulity to believe that, if trial counsel had objected to and sought an admonition concerning the prosecutor's claims that the officers would lose their jobs if they lied, any of the jurors would have concluded the officers were lying nonetheless or failed to test the testimony against their own conclusions regarding the quality of the video.
Echeverria does not dispute the People's observation that the complained of statement was "brief" and that the prosecutor did not repeat them. Furthermore, the trial court instructed the jury that "[i]t is up to all of you and you alone to decide what happened based only on the evidence that has been presented to you in this trial," "[i]f you believe that the attorneys' comments on the law conflict with my instructions, you must follow the instructions as I give them to you," "[n]othing the attorneys say is evidence," attorneys' remarks in opening statements and closing arguments "are not evidence," and "[y]ou alone must judge the credibility or believability of the witnesses."
These jury instructions and the brevity of the prosecutor's statements mitigate any theoretical prejudice Echeverria may have suffered from those statements. (Cf. People v. Blacksher, supra, 52 Cal.4th at pp. 838-839 [indicating that instructing the jury to rely only "on evidence presented in court and not treat counsel's comments as evidence" mitigated the impact of a prosecutor's suggestion that he had evidence in his possession supporting his case but did not present it]; People v. Medina (1995) 11 Cal.4th 694, 759- 760 [concluding that even if a prosecutor had improperly appealed to "the jury's passions and prejudices," that misconduct was harmless because the prosecutor's comments were "brief and isolated"].)
In short, Echeverria has not established a reasonable probability that his trial counsel's failure to object to or to request a curative instruction regarding the prosecutor's comments had any impact on the weight the jury accorded to the officers' testimony or the inferences the jury drew from comparing the video to defendants in evaluating the officers' identifications of Echeverria.
We conclude Echeverria has forfeited his prosecutorial misconduct claim, and he does not establish that we should exercise our discretion to excuse his forfeiture or that his trial counsel's failure to object to and to ask for an admonition regarding the prosecutor's statements constituted ineffective assistance of counsel. Therefore, he is not entitled to relief on this claim of error.
II. The Trial Court Did Not Abuse Its Discretion in Imposing Restitution Fines
Echeverria asserts due process required the trial court to have a hearing to determine his ability to pay before imposing the restitution fines and that the sentencing hearing was inadequate for this purpose because the trial court speculated as to his ability to earn while incarcerated. As the trial court conducted a hearing regarding Echeverria's ability to pay the restitution fines pursuant to former section 1202.4, we reject Echeverria's argument.
A. Background
The probation officer recommended Echeverria pay a $10,000 fine. His report indicated that Echeverria failed to provide any information regarding his finances but noted that Echeverria had completed the tenth grade. Echeverria committed the instant offense while in prison, having been sentenced to a three-year term of imprisonment in January 2016 and a five-year term of imprisonment in December 2016. In describing the aggravating circumstances of the offense, the report noted that the crime involved acts disclosing a high degree of cruelty, viciousness, or callousness and indicated a serious danger to society.
The report indicated that Echeverria was currently serving only the five-year term of imprisonment.
During Echeverria's sentencing, the prosecutor requested that the trial court determine whether Echeverria had the ability to pay the fines. Echeverria's counsel argued, "I do believe that in view of the fact that he's in prison-going to be in prison an awful long time, that the Court reduce or stay a substantial portion, if not all, of the [$]10, 000." The prosecutor pointed out that Echeverria would have the opportunity for employment while incarcerated. The court commented, "I also don't know what his personal net worth and so forth is." Echeverria's counsel argued that Echeverria qualified for a public defender, suggesting Echeverria had very little ability to pay. The court responded that oftentimes that decision is made with inaccurate information and the public defender can attempt to recoup the cost if its determined Echeverria has the ability to pay for counsel. The court concluded, "But I'm not going to waive the restitution fine without some information otherwise." At Echeverria's counsel's request, the court permitted Echeverria the opportunity to supply additional information, but the record does not contain any additional submission.
B. Standard of Review and Applicable Law
We review Echeverria's challenges to the validity of the trial court's determination that he had the ability to pay the restitution fines for abuse of discretion. (See People v. Lewis (2009) 46 Cal.4th 1255, 1321 (Lewis) [applying an abuse of discretion standard to a restitution fine]; see also People v. Potts (2019) 6 Cal.5th 1012, 1057 (Potts) [trial court "was permitted to conclude that the monetary burden the restitution fine imposed on the defendant was outweighed by other considerations"].)
Section 1202.4, which provides for imposition of a restitution fine, states in relevant part: "(b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. [¶] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000)." (§ 1202.4, subd. (b)(1).)
Former section 1202.4 was repealed by its own language and a new section 1202.4 reenacted effective January 1, 2022. Despite minor language changes, subdivisions (b) and (d) remain substantively unchanged. (See Stats. 2021, ch. 257, § 19 [repealed]; Stats. 2021, ch. 257, § 20 [reenacted].)
Section 1202.4, subdivision (b)(1) authorizes the trial court to impose a restitution fine of any amount between $300 and $10,000 in felony cases. Section 1202.4, subdivision (c) provides that the trial court shall impose the restitution fine unless it finds extraordinary or compelling reasons for not doing so and allows the court to consider a defendant's ability to pay only when considering whether to impose a fine greater than the statutory minimum.
Section 1202.4, subdivision (d) states that, as to the amount of the restitution fine, "the court shall consider any relevant factors, including, but not limited to, the defendant's inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the crime.… Consideration of a defendant's inability to pay may include the defendant's future earning capacity." (§ 1202.4, subd. (d).)
Section 1202.4, subdivision (d) also provides: "A defendant shall bear the burden of demonstrating the defendant's inability to pay. Express findings by the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required." (§ 1202.4, subd. (d).)
1. The Trial Court Afforded Echeverria a Hearing on the Amount of the Restitution Fines
Echeverria argues that the trial court imposed the restitution fines without complying with People v. Dueñas (2019) 30 Cal.App.5th 1157, which held that due process requires the trial court to hold an ability to pay hearing before imposing fines, fees, or assessments and that the burden to prove ability to pay is on the prosecution. (Id. at p. 1172.) We recognize that "[o]ther courts, including this court, have disagreed with Dueñas on these key principles." (People v. Keene (2019) 43 Cal.App.5th 861, 863; e.g., People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1072 [Dueñas was wrongly decided and an Eighth Amendment analysis is more appropriate to determine whether restitution fines, fees, and assessments in a particular case are grossly disproportionate and thus excessive]; People v. Cota (2020) 45 Cal.App.5th 786, 794-795; People v. Allen (2019) 41 Cal.App.5th 312, 326 ["[W]e would adopt the reasoning of the numerous courts that have rejected Dueñas's due process analysis."]; People v. Hicks (2019) 40 Cal.App.5th 320, 325-330, review granted Nov. 26, 2019, S258946; People v. Kopp (2019) 38 Cal.App.5th 47, 94-98, review granted Nov. 13, 2019, S257844 (Kopp).)
The California Supreme Court is currently considering the viability of Dueñas as it pertains to whether a trial court must consider a criminal defendant's ability to pay assessed fines and fees, and if so, which party bears the burden of proof. (Kopp, supra, 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.)
We need not delve into the broader issues of Dueñas, though, to address the issue before us in this case. Even before Dueñas, challenges to the imposition of a maximum restitution fine based on the inability to pay were expressly permitted by the statute. (former § 1202.4, subd. (d); People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033; Lewis, supra, 46 Cal.4th at p. 1321.) Section 1202.4, subdivision (d) instructs the court to consider all relevant factors, including the defendant's inability to pay. The statute also makes clear that the defendant has the burden of demonstrating his or her inability to pay. (§ 1202.4, subd. (d).) In cases since Dueñas, courts have clarified "it is [the defendant's] burden to make a record below as to their ability to pay these [fines, fees, and] assessments." (Kopp, supra, 38 Cal.App.5th at p. 96, review granted Nov. 13, 2019, S257844; People v. Santos (2019) 38 Cal.App.5th 923, 934 (Santos) ["it is the defendant's burden to demonstrate an inability to pay, not the prosecution's burden to show the defendant can pay, as the Dueñas decision might be read to suggest"]; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 ["Given that the defendant is in the best position to know whether he has the ability to pay, it is incumbent on him to object to the fine and demonstrate why it should not be imposed."].)
However, here, the trial court conducted a sentencing hearing and, as part of that hearing, determined whether Echeverria had the ability to pay the restitution fines imposed. After the prosecutor raised the issue and defense counsel argued against the fines, the trial court stated that there were no apparent barriers to Echeverria's ability to earn wages and specifically concluded that he would be able to earn money while in prison. To the extent Echeverria asserts the court's determination was somehow inadequate or that the exchange did not constitute a proper hearing on his ability to pay, he did not raise that issue or ask for a separate evidentiary hearing in the trial court. The trial court did agree to review any additional submissions by defense counsel relating to Echeverria's ability to pay, but there is no additional information in the record. Accordingly, Echeverria has forfeited the issue on appeal. (See People v. Scott (1994) 9 Cal.4th 331, 356 ["complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal"]; People v. Gutierrez, supra, 35 Cal.App.5th at p. 1033.)
Due process is satisfied so long as the defendant is afforded a meaningful opportunity to discharge the burden to prove inability to pay. (See Boddie v. Connecticut (1971) 401 U.S. 371, 377-379 [due process only requires only that "all individuals" be afforded "a meaningful opportunity to be heard"].) Nothing requires that an ability to pay hearing resemble a full-blown trial, nor that it must occupy its own setting on the court docket. Indeed, we conclude that it may properly occur-as it naturally would- during the formal sentencing hearing. Here, Echeverria was given the opportunity to present argument, evidence, and even to contest the court's ruling. His failure to take advantage does not defeat due process.
2. The Trial Court Did Not Abuse Its Discretion in Imposing the Restitution Fines
Echeverria asserts that the trial court engaged in speculation in finding that Echeverria could work while imprisoned to pay the restitution fines. He argues prison wages are neither guaranteed nor sufficient to pay the $10,000 fines the court imposed. Echeverria requests that we order the trial court to vacate the restitution fines, or alternatively, remand the matter with directions that the trial court conduct an ability to pay hearing. We decline to do so because we find no abuse of discretion.
Here, the trial court imposed the maximum restitution fine of $10,000 as to Echeverria's conviction of the serious offenses of assault with force likely to produce great bodily injury and battery causing serious bodily injury. The trial court's imposition of a $10,000 restitution fine is consistent with the suggested formula in section 1202.4, subdivision (b)(2), which states that "[i]n setting a felony restitution fine, the court may determine the amount of the fine as the product of the minimum fine pursuant to paragraph (1) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted." If the court had applied this suggested formula in the instant case, the restitution fine would have totaled $22,800 for Echeverria's 25 year-to-life plus 13-year sentence ($300, multiplied by 38 years, multiplied by two). The trial court would have then been required to reduce the fine to the maximum fine of $10,000 permitted under section 1202.4, subdivision (b)(1).
The court generally has discretion to determine the exact amount of restitution fine to impose. (See Lewis, supra, 46 Cal.4th at p. 1321.) Further, although the trial court determines whether the defendant has the" 'present ability to pay, '" the court may consider any relevant factors, including the defendant's "housing status, mental illness or disability, receipt of government benefits, and realistic ability to earn prison wages or obtain employment." (Santos, supra, 38 Cal.App.5th at p. 934.) It was Echeverria's burden to raise any factors relevant to his ability to pay (§ 1202.4, subd. (d); Kopp, supra, 38 Cal.App.5th at p. 96, review granted Nov. 13, 2019, S257844), and the only factor he raised was his own incarceration and the fact that he had court-appointed counsel. Because Echeverria did not raise any issue regarding his own ability to work or earn wages in prison, the trial court correctly concluded he could earn wages in prison and did have the ability to pay the fines. (Kopp, at p. 96; Santos, at p. 934 [discussing the relevant factors to be considered, including prison wages].)
Echeverria contends the trial court could not reasonably conclude he had a realistic ability to earn prison wages sufficient to pay the restitution fine because paid prison work is not guaranteed and the jobs that are available typically pay very low wages. (See Santos, supra, 38 Cal.App.5th at p. 934 [listing "realistic ability to earn prison wages" among factors for court to consider].) Not so. It is well settled that the trial court can consider the ability to earn prison wages, even if those wages are low, as well as the ability to earn additional wages after incarceration. (See People v. Aviles, supra, 39 Cal.App.5th at p. 1076; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [court may consider the defendant's ability to pay in the future, including the "defendant's ability to obtain prison wages and to earn money after his release from custody"]; People v. DeFrance (2008) 167 Cal.App.4th 486, 505 [the defendant did not show inability to pay $10,000 restitution fine simply because prison wages would make it difficult, it would take a long time, and the fine might never be paid]; People v. Ramirez (1995) 39 Cal.App.4th 1369, 1377 [a trial court may consider the defendant's future ability to pay, including his ability to earn wages while in prison].) While there may be no guarantee that Echeverria will receive a wage-paying job in prison, Echeverria has not raised any specific impediment to his ability to do so and, instead, the record suggests he is young and able-bodied; the probation report indicates Echeverria is 23 years old.
Moreover, even if Echeverria is not able to pay the entire $10,000 while in prison, he can continue to pay any remaining amount after his release. (See People v. Hennessey, supra, 37 Cal.App.4th at p. 1837.) Although the trial court did not specifically reference Echeverria's ability to earn wages after his release, it remains a relevant factor that we may consider on appeal. Echeverria's argument focuses solely upon his prison wages and provides no argument that he will be unable to earn wages after his release.
Even if a defendant is unable to pay the fine, a trial court does not abuse its discretion in imposing one. In Potts, the California Supreme Court upheld imposition of a $10,000 restitution fine even though the trial court had erroneously believed the defendant would be able to work during his life term of imprisonment. (Potts, supra, 6 Cal.5th at pp. 1055-1057.) The court concluded that the trial court would have imposed the same fine in absence of the error and the fine would have been lawful. The court held that a fine is not automatically invalid if a defendant is unable to pay it: "Inability to pay is a factor for the court to consider in setting the amount of a restitution fine, alongside 'any relevant factors including, but not limited to, … the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered any losses as a result of the crime, and the number of victims involved in the crime.' (Former § 1202.4, subd. (d); [citation].)" (Id. at p. 1056.)
A trial court is permitted to conclude that the monetary burden the restitution fine imposed on the defendant was outweighed by other considerations. (Potts, supra, 6 Cal.5th at pp. 1055-1057; see Lewis, supra, 46 Cal.4th at p. 1321.) In so ruling, the court relied upon Lewis in which it had held that the defendant's possible receipt of gifts from his family "contemplated that [the] defendant would have funds in the future from which restitution could be paid, and thus contradicted the view that [the] defendant would be unable to pay the fine." (Lewis, at p. 1321.) "The court clearly considered that possibility as a factor, but [the] defendant's assertion that he was unable to pay the fine did not compel the court to impose a lesser fine. In light of the offenses committed by [the] defendant and the harm he caused to the victim and her children, we find no abuse of discretion in the trial court's determination that a fine in the amount of $10,000 was appropriate." (Ibid.)
The seriousness and gravity of the offenses in this case and the circumstances of their commission (relevant pursuant to § 1202.4, subd. (d)), support the trial court's imposition of the maximum $10,000 restitution fine. Echeverria savagely assaulted S.R. while he was on the ground, surrounded by other inmates and unable to defend himself. S.R. posed no danger to Echeverria or anyone else at the time Echeverria joined the assault. Nonetheless, Echeverria joined in the assault, violently and repeatedly kicking and stomping S.R.'s head. As the probation report noted, the crime involved acts disclosing a high degree of cruelty, viciousness, and callousness and indicated Echeverria was a serious danger to society.
Under these circumstances, and even without evidence of Echeverria's inability to pay, we cannot conclude that the trial court acted arbitrarily or irrationally by imposing the statutory maximum restitution fine. We therefore conclude the trial court did not abuse its discretion in either imposing the $10,000 restitution fines or in determining Echeverria had the ability to pay them.
DISPOSITION
The clerk of the superior court shall prepare an amended abstract of judgment correcting the Penal Code section 12022.7, subdivision (a) enhancement as to count 1, which currently reflects Penal Code section "12077.7," subdivision (a), and forward it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: DETJEN, J., FRANSON, J.