Opinion
F076886
05-07-2020
THE PEOPLE, Plaintiff and Respondent, v. CARLOS ANTHONY GALLEGOS, Defendant and Appellant.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14CR-00155)
OPINION
APPEAL from a judgment of the Superior Court of Merced County. Mark V. Bacciarini, Judge. Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Carlos Anthony Gallegos was charged with first degree murder (Pen. Code, §§ 187, subd. (a), 189 [count 1]), robbery (§ 211 [count 2]), burglary (§ 459 [count 3]), and vehicle theft (Veh. Code, § 10851, subd. (a) [count 4]). As to count 1, the information alleged he committed the murder while he was perpetrating a robbery (§ 190.2, subd. (a)(17)), intentionally and personally discharged a firearm and proximately caused death (§ 12022.53, subd. (d)), and served a prior separate prison term (§§ 667.5, subd. (b), 668).
Unless otherwise indicated, subsequent statutory citations refer to the Penal Code.
Following trial, the jury found defendant guilty of the lesser included offense of second degree murder on count 1, deadlocked on counts 2 through 4 as well as the felony-murder special-circumstance allegation, and found not true the firearm discharge and prior prison term allegations. The trial court struck the felony-murder special-circumstance allegation on its own motion and granted the prosecution's motion to dismiss counts 2 through 4. Defendant was sentenced to 15 years to life. He was ordered to pay a $10,000 restitution fine (§ 1202.4, subd. (b)), a $40 court operations assessment (§ 1465.8), and a $30 court facilities assessment (Gov. Code, § 70373).
In his opening brief, defendant makes several contentions. First, the prosecution erred by asking a witness for his opinion on who killed the victim; eliciting testimony regarding defendant's character; presenting evidence of defendant's gang affiliation; and repeatedly alluding to defendant's refusal to testify. Second, the trial court improperly admitted into evidence defendant's two prior convictions for vehicle theft. Finally, the cumulative effect of the aforementioned errors deprived defendant of due process., For the reasons set forth below, we conclude the purported errors—individually and collectively—were not prejudicial.
In the event an argument is deemed forfeited, defendant alternatively contends defense counsel rendered ineffective assistance of counsel.
To the extent defendant raises additional claims in his brief but fails to state them under a separate heading or subheading, we will not address them. (See, e.g., People v. Schnabel (2007) 150 Cal.App.4th 83, 84, fn. 1; People v. Wallace (2004) 123 Cal.App.4th 144, 151, fn. 7.)
In a supplemental brief, defendant argues the trial court should have conducted an ability-to-pay hearing pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) before imposing the assessments. He also argues the restitution fine was unconstitutionally excessive. For the reasons set forth below, we reject these claims.
STATEMENT OF FACTS
I. Prosecution's case-in-chief
In connection with this case, Cervantes pled guilty to first degree robbery and admitted she served a prior separate prison term. In exchange for leniency, she agreed to testify.
Cervantes is not a party to this appeal.
Cervantes and the victim Jorge Zamora lived in Los Banos in 2010. They were acquaintances since 2009. Cervantes "would always ask [Zamora] for rides" and "he was always there for [her]."
Cervantes met defendant for the first time on May 11, 2010, when she sold methamphetamine to him. Thereafter, they frequently got together to ingest drugs and/or engage in sexual intercourse.
On June 26, 2010, Cervantes and defendant "got in an argument" and defendant "wanted to go back to Salinas," where he lived with his mother. Cervantes contacted Zamora, who offered to let her borrow $40 to purchase a bus ticket for defendant. At around 2:00 or 3:00 p.m., Cervantes and defendant went to a friend's house and smoked methamphetamine. At around 10:00 p.m., they went to another friend's house and smoked more methamphetamine. At around 11:30 p.m., Cervantes and defendant arrived at Zamora's apartment. Initially, only Cervantes entered the residence. Zamora gave her the money and the two spoke for roughly 10 minutes. However, when Cervantes tried to leave, defendant entered and forced her to stay inside. He was armed with a gun. Defendant wanted to take Zamora's car, a blue Chevy Cavalier. He told Cervantes, "Bitch, go get the keys to the car." She panicked and "just started looking everywhere." As Cervantes found the keys in the bedroom, she heard a loud gunshot. She ran down the hallway and heard Zamora utter, "Why?" Cervantes and defendant departed.
On June 27, 2010, Cervantes and defendant returned to the apartment and took the Chevy Cavalier. Cervantes drove defendant to his mother's house in Salinas. There, defendant dismantled the vehicle.
On July 6, 2010, Cervantes came across a news article about Zamora's death online. In a text message, Cervantes asked defendant's sister M.G. "[t]o have [defendant] call [her] because [she] had seen the homicide on the Internet" and maintained she "would not tell on him." Later, Cervantes received a communication from defendant advising her to "[s]top calling [him]" because "[t]hey're listening."
Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their first names or initials. No disrespect is intended.
Cervantes was subsequently taken into custody. On August 27, 2010, in an interview with Detective Melden of the Los Banos Police Department (LBPD), she told him "[t]he truth" about what had occurred on June 26, 2010.
b. Kathleen O.
In 2009, Kathleen met defendant through M.G., her drug dealer. Kathleen and defendant got together daily to smoke methamphetamine and/or engage in sexual intercourse.
Sometime after June 26, 2010, defendant visited Kathleen at her home. He appeared "[u]pset" and revealed he and "Yadi" "did something bad."
On July 4, 2010, Kathleen and defendant met at a motel in Marina, where defendant recounted the events of June 26, 2010. Defendant stated he and Cervantes had planned to take Zamora's "gold piece" when they went to his apartment. Defendant waited outside while Cervantes entered the apartment. After Cervantes failed to answer his phone calls, defendant entered the apartment "to see what was going on." Defendant encountered Zamora, who was sitting down, and told him "not to get up" and "just stay there." Zamora, however, headed for the kitchen. Defendant and Zamora were "wrestling around" when defendant's gun "went off" and a bullet struck Zamora's chest. Cervantes emerged from a room and said, "Why did you do that?" Defendant and Cervantes left and took Zamora's Chevy Cavalier to Salinas.
At some point, Kathleen, defendant, and M.G. convened at a motel in Salinas. Defendant showed Kathleen the revolver that had been used in the incident. After defendant and M.G. wrapped the gun in a black canvas bag, Kathleen drove them to a nearby "forest area," where M.G. deposited the bag in a ditch. However, the following day, the trio returned and retrieved the bag. Kathleen drove the siblings to their uncle's house. There, defendant gave the revolver to his uncle.
Sometime before June 26, 2010, Kathleen purchased .22-caliber ammunition and gloves for defendant. According to Kathleen, defendant admitted he had worn the gloves at the time of the shooting and "had to get rid of [them]." He also stated he needed to disassemble and dispose of the Chevy Cavalier.
c. R.B.
R.B. lived across the street from defendant's mother's house. Sometime in June or July 2010, he saw defendant sitting inside a blue Chevy Cavalier.
d. Detective Melden
On June 29, 2010, Melden—the lead investigator—arrived at Zamora's apartment after officers found the victim's body earlier in the day. Melden observed blood stains all over the kitchen. Zamora, who had been shot in the chest, was next to the front door.
The parties stipulated to the admission of two July 2010 reports authored by Bradley Swanson of the Department of Justice. One of the reports read:
"The relative positions of the blood stain pattern, the autopsy's findings as reported to us by LBPD, and the final location of the victim as reported to us by LBPD, suggests the victim was shot within just inside the kitchen at or near the oven. After being shot, the victim moved in the direction of the front door. The victim most likely lost consciousness due to a catastrophic drop in blood pressure dropping on the floor where he quickly bled to death."
On July 3, 2010, law enforcement discovered Zamora's missing Chevy Cavalier near defendant's mother's address in Salinas. Melden canvassed the locals, including R.B., and learned (1) Cervantes had originally brought the vehicle to the neighborhood; and (2) both Cervantes and defendant had been seen inside the vehicle. Eventually, defendant's mother arrived. She informed Melden that defendant lived with her. Melden obtained a search warrant for the residence. Officers found various parts of Zamora's vehicle, a broom bearing Zamora's full name, a sawed-off shotgun, and .22- and .25-caliber ammunition.
On July 8, 2010, defendant and Cervantes were taken into custody. At the police department, Melden advised defendant of his Miranda rights and conducted an interview. Defendant initially denied any involvement in Zamora's shooting but later admitted he "was present when the vehicle was taken." Melden also interviewed Cervantes, Kathleen, and C.T.
Miranda v. Arizona (1966) 384 U.S. 436.
To distinguish between the witness and the municipality, we refer to the former as "Officer Salinas."
On July 8, 2010, at around 1:41 a.m., Officer Salinas of the Salinas Police Department encountered defendant near the front entrance of a motel. Officer Salinas called out, "Hey. I need to talk to you." Defendant "started running." Officer Salinas chased defendant until the latter went into a ditch and surrendered. Defendant said, "[I] only have a pipe on me." Officer Salinas conducted a patdown search and found over a gram of methamphetamine, a "small amount" of marijuana, and other drug paraphernalia. He advised defendant of his Miranda rights and asked him "what he was doing at the [m]otel" and "why he ran." Defendant stated he "was there to meet up with somebody by the name of 'Yadira' " and acknowledged he had been "on the run."
On November 16, 2010, C.T. pled guilty to transportation of cocaine and admitted he committed a qualifying "strike" offense and served two prior separate prison terms. In exchange for leniency, he agreed to testify.
Between July 9, 2010, and October 21, 2010, C.T. and defendant were housed in the same Monterey County jail pod. The two spoke "[f]our or five times a day." On one occasion, defendant told C.T. he was accompanied by "Yadira" when he shot a man in Los Banos with a .22-caliber revolver. Defendant took the victim's car "back to his place" and hid the weapon. He mentioned the police "were investigating him for [the] murder" but "didn't have shit on him."
g. Forensic evidence
Zamora's Chevy Cavalier was analyzed for DNA and fingerprints. A "mixture of DNA from at least three individuals consistent with one major contributor and two minor contributors" was extracted from the steering wheel. With respect to the two minor contributors, defendant "c[ould] be included" while Cervantes "was excluded." On the other hand, the major contributor's DNA profile needed to be uploaded to the Combined DNA Index System. The database identified D.G. as the donor. Testing of a cotton swab found in the car revealed "a low level mixture of DNA from at least three individuals." Defendant "could not be excluded as a contributor to that mixture." Two latent palmprints lifted from "outside of the driver's door window" belonged to Cervantes. A latent fingerprint lifted from "the exterior of the right rear window" belonged to D.G.
h. Evidence of prior crimes
On December 4, 2005, at around 10:00 p.m., Officer Elordi of the Salinas Police Department spotted a vehicle matching the description of one that had been reported stolen. Following a high-speed pursuit, that vehicle crashed. Defendant, the driver, attempted to flee but "appeared to get tangled in the seat belt." Elordi searched the vehicle and found a .22-caliber revolver.
On May 18, 2006, at around 2:40 p.m., Sergeant Soratos of the Salinas Police Department observed a "burgundy-colored car" moving at a "high rate of speed." The vehicle eventually crashed into some parked cars. Defendant, the driver, fled on foot to a nearby school, where he ultimately surrendered. Soratos conducted a patdown search and found a methamphetamine pipe. Soratos later learned defendant had been driving a stolen vehicle.
II. Defense's case-in-chief
a. M.G.
M.G. testified Cervantes brought the blue Chevy Cavalier to her and defendant's mother's house in late June 2010, but she never saw her brother inside the car. In addition, defendant did not have any firearms at the time of the shooting.
In 2010, M.G. met Kathleen through defendant. The two women occasionally drank alcohol and smoked methamphetamine together. Following defendant's arrest, M.G. was told about Zamora's death by her mother and relayed this information to Kathleen. She denied rendezvousing with defendant and Kathleen at a Salinas motel, attempting to hide a firearm, and visiting an uncle.
On cross-examination, M.G. acknowledged she was once "caught for . . . petty theft" and identified herself as "D[.G.]" to an officer.
Both defendant and M.G. maintain D.G. is a cousin.
b. Alfredo V.
Sometime in June 2010, during the day, Alfredo drove defendant and Cervantes to Zamora's apartment "to check" "if they could open" a "blue car" "with [a] key." There, Cervantes tried to unlock the vehicle but to no avail. She told Alfredo "her friend had not given her the correct key." After leaving the scene, defendant asked Alfredo for a ride to Salinas.
Later, at night, Alfredo drove defendant and Cervantes back to Zamora's apartment because Cervantes procured "the right key." After dropping her off, defendant instructed Alfredo to "put some gas in [his] car so that [they could] leave" for Salinas. He "didn't want [Cervantes] to take him because he could have some problems with his girlfriend." Alfredo complied and drove to a nearby gas station. A few minutes later, Cervantes pulled up in the blue car. Defendant exited Alfredo's vehicle and conversed with Cervantes. Afterward, he told Alfredo, "I'm going to have to go with her. I have to go with her . . . so that there won't be any problems with her."
DISCUSSION
I. Prosecutorial error
"[Prosecutorial] error occurs, as a matter of state law, when a prosecutor 'engage[s] in deceptive or reprehensible tactics in order to persuade the trier of fact to convict.' [Citation.] Federal constitutional error occurs only when the prosecutor's actions 'comprise a pattern of conduct that is serious and egregious, such that the trial is rendered so unfair that the resulting conviction violates the defendant's right to due process of law.' [Citation.] 'In order to be entitled to relief under state law, defendant must show that the challenged conduct raised a reasonable likelihood of a more favorable verdict.' [Citation.] Under federal law, relief is not available if 'the challenged conduct was . . . harmless beyond a reasonable doubt.' [Citation.]" (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 854.)
Defendant contends the prosecution erred by (1) asking Melden for his opinion on who killed Zamora; (2) eliciting testimony from Cervantes regarding defendant's character; (3) presenting evidence of defendant's gang affiliation; and (4) repeatedly alluding to defendant's refusal to testify in its summation. We address each allegation.
a. Melden's testimony
i. Background
On direct examination of Melden, the following exchange transpired:
"Q. During the course of your investigation, did you determine who it was that committed the homicide?
"A. Yes, sir.
"Q. And who was that?
"[DEFENSE COUNSEL]: Objection. Assuming facts not in evidence.
"THE COURT: Overruled. [¶] . . . [¶]
"Q. And who was that, sir?
"A. It was [defendant].
"Q. Is [defendant] present here in court today?
"A. Yes, sir, he is.
"Q. Can you please point him out for the jury, identify where he's sitting and what he's wearing?
"A. Yes, sir. He's between defense counsel. He's wearing a plaid shirt, dark-colored pants.
"THE COURT: The witness has identified [defendant]."
Outside the presence of the jury and before direct examination of Melden resumed, the following colloquy took place:
"THE COURT: . . . [¶] . . . [¶] Counsel, there's one issue I need to bring up with you, and this was something that occurred yesterday during the testimony or direct examination of . . . Meld[e]n. The question was asked, 'Did you learn who killed the [v]ictim?' And I think the proper objection was made, foundation, correct? Which was then overruled and the witness was allowed to answer. I think that the question was, in fact, objectionable, but not for the reasons stated. [¶] . . . [¶]Thereafter, the court told the jury:
"[DEFENSE COUNSEL]: My grounds were assuming facts not in evidence. [¶] . . . [¶]
"THE COURT: Okay. Assumes facts not in evidence.
"[DEFENSE COUNSEL]: Underlying that would be foundation.
"THE COURT: Exactly. And going even further than that, I think . . . it was an improper opinion, at least at this point in the trial, as to . . . one of the ultimate issues of fact . . . . [¶] So I thought long and hard about this. I believe those grounds were incorrect, . . . either foundation/personal knowledge and/or invades the providence of the jury. [¶] I'm all ears, Counsel.
"[PROSECUTION]: I think it's easily cured, Your Honor. [¶] . . . [¶] . . . I think the jury knows, and it's plainly obvious that . . . Meld[e]n, himself, did not witness the crime, and it's based on things that the witnesses are all going to come in and say. . . . [¶] . . . [¶]
"[DEFENSE COUNSEL]: Can you admonish the jury today about that statement?
"THE COURT: I could."
"During yesterday's . . . direct examination of . . . Meld[e]n by the Prosecutor, . . . there was a question asked, 'At some point did you learn who the killer of [Zamora] was.' And there was an objection interposed that that question assumed facts not in evidence.
"The Court properly overruled that objection on those grounds. However, the question in my mind—and I thought about this all afternoon
and late in to the evening last night—may have been objectionable and probably was on a couple of grounds: Number one, foundation, at least at this point in trial; and, number two, to the extent that it suggests that it relieves you of your duty to determine what happened in this case, whether a homicide occurred, who committed it, and, if a homicide occurred, what kind of homicide it was. That is a question for you, the jurors, the ultimate finder of fact, not the opinion of an officer.Afterward, on direct examination, Melden testified he interviewed defendant, Cervantes, Kathleen, and C.T.
"All right? So I just want to make sure, if any of you thought, 'Well, we don't have to worry about that anymore,' it's your job to evaluate all [of the] evidence that is received throughout this entire trial to determine what the facts are."
ii. Analysis
"A witness may not express an opinion on a defendant's guilt. [Citations.] The reason for this rule is not because guilt is the ultimate issue of fact for the jury, as opinion testimony often goes to the ultimate issue. [Citations.] 'Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.' [Citation.]" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77.) "A prosecutor has the duty to guard against statements by his witnesses containing inadmissible evidence." (People v. Warren (1988) 45 Cal.3d 471, 481.)
In the instant case, while the prosecution improperly elicited Melden's opinion on defendant's guilt, the error was not prejudicial. At the outset, we note "the jury would hardly have been surprised that [the lead investigator] had concluded that [the accused] was guilty." (People v. Woodruff (2018) 5 Cal.5th 697, 762.) "[Melden]'s testimony that he believed defendant was guilty as charged . . . did not present any evidence to the jury that it would not have already inferred from the fact that [Melden] had investigated the case and that defendant had been charged with the crimes." (People v. Riggs (2008) 44 Cal.4th 248, 300 (Riggs).) Furthermore, Melden subsequently testified he interviewed Cervantes, Kathleen, and C.T. These three individuals appeared as prosecution witnesses and their respective testimonies incriminated defendant. (See ibid. ["There was no implication . . . that [the investigator's] opinions were based upon evidence that had not been presented to the jury."].) Finally, in its admonition, the court reminded the jury of its obligation to "evaluate all [of the] evidence that is received throughout this entire trial to determine what the facts are" and that it could not look to Melden's opinion. (See People v. Holt (1997) 15 Cal.4th 619, 662 ["Jurors are presumed to understand and follow the court's instructions."].) "[W]e see nothing in the record that would lead us to conclude that the jury was likely to disregard the instructions it received concerning its duty to decide the issue[] of . . . guilt based upon its own assessment of the evidence, not the opinions of any witness." (Riggs, supra, at p. 300.) "To the extent that there was any misconduct in eliciting [Melden's opinion], under the state standard there is no likelihood that without the misconduct defendant would have achieved a better result; under the federal standard, the trial was not infected with such unfairness as to result in a denial of due process." (Id. at p. 301.)
Having considered the merits of this argument, we need not address either the Attorney General's claim of forfeiture or defendant's claim of ineffective assistance of counsel. (See ante, fn. 2.)
b. Cervantes's testimony
i. Background
On direct examination of Cervantes, the following exchange transpired:
"Q. . . . . Was there ever an occasion at a hotel where you and [defendant] got into an argument?
"A. Yes.
"Q. What happened on that occasion?
"A. We were at a motel, and his phone kept ringing. So when his phone kept ringing, I answered it, and it was his girlfriend, and so I got mad, and I took his car keys, and I took his phone, and I took everything that belonged to him, and I took off. I left him in the hotel. He was asleep.
"Q. What happened next?
"A. After that, I was just driving back and forth, driving back and forth, and I get a call on his phone from my sister.
"Q. So you're driving around Los Banos?
"A. Yes, I was.
"Q. And you got a call?
"A. From my sister.
"Q. And what happened next?
"A. She was just telling me . . . to get back because he was at the house asking for his stuff, so I took it back.
"Q. Okay. Took it back to the hotel?
"A. Yes. [¶] . . . [¶]
"Q. Do you remember him getting mad on that occasion?
"A. I do.
"Q. What - when you returned with his car and his stuff, what happened?
"A. We went back inside the hotel room. I can't say that we were fighting, but he was upset, and as we were laying on the bed, he pulled out a gun, and he shot it right by my head into the mattress. [¶] . . . [¶]
"Q. Okay. Do you remember what date that happened on?
"A. I think it was, like, around June 17th, maybe 19th.
"Q. Why would you remember that particular day?
"A. Or was it the 14th? I think it was my daughter's birthday party that day.
"Q. Okay. So it was June 14th.
"A. Um-hum. [¶] . . . [¶]
"Q. What happened - what did you do after that? Did you -
"A. I jumped up. I jumped up. At the time it was fun and games, you know.
"Q. And did you run out of the room?
"A. I didn't.
"Q. You just thought that was funny?
"A. Honestly, yes.
"Q. Were you and him on meth at the time?
"A. We were.
"Q. So even though he shot at you, you thought that was funny? [¶] . . . [¶]
"[A.] I did. [¶] . . . [¶]
"Q. . . . . [¶] Had you ever seen him use a gun before?
"A. No.
"Q. Never seen him use a gun in Salinas at his home?
"A. Upstairs bedroom, yeah.
"Q. Okay. What did you see - . . .
"A. He shot into the backyard.
"Q. Shot out the window?
"A. Um-hum.
"Q. Is [defendant] a dangerous man?
"A. I would say yeah.
"Q. Okay. Do you fully trust him?
"A. No."
ii. Analysis
In general, "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." (Evid. Code, § 1101, subd. (a).) "However, the evidence may be admitted when it is relevant to prove another issue in the case such as opportunity, intent, knowledge, identity, or absence of mistake." (People v. Malone (1988) 47 Cal.3d 1, 17, citing Evid. Code, § 1101, subd. (b).) "A prosecutor has the duty to guard against statements by his witnesses containing inadmissible evidence." (People v. Warren, supra, 45 Cal.3d at p. 481.)
Here, the testimony at issue consists of two types of character evidence: (1) defendant's "uncharged misconduct" or "uncharged bad acts" (see People v. Ortiz (2003) 109 Cal.App.4th 104, 110) on June 14, 2010; and (2) Cervantes's opinion that defendant is dangerous and untrustworthy.
As to the "uncharged misconduct" evidence, we find no prosecutorial error. Pursuant to Evidence Code section 1101, subdivision (b), this evidence was admissible to demonstrate defendant had the opportunity and means to fatally shoot Zamora in June 2010, a fact the defense contested via M.G. (Cf. People v. Thomas (1992) 2 Cal.4th 489, 520-521 [evidence the accused enjoyed playing a game in which he would "sneak up on people and then sneak away without their ever being aware of his presence" was admissible to show opportunity to kill the victims].)
As to Cervantes's opinion, which was inadmissible and thus improperly elicited, we find no prejudice.
The jury convicted defendant of second degree murder. " 'Second degree murder is defined as the unlawful killing of a human being with malice aforethought, but without the additional elements—i.e., willfulness, premeditation, and deliberation—that would support a conviction of first degree murder.' [Citations.] 'Malice may be either express or implied.' [Citation.] It is express 'when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.' [Citation.] It is implied 'when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his [or her] conduct endangers the life of another and who acts with conscious disregard for life.' [Citation.]" (People v. Jimenez (2015) 242 Cal.App.4th 1337, 1358; see People v. Olivas (1985) 172 Cal.App.3d 984, 988 ["[T]he state of mind of a person who acts with conscious disregard for life is, 'I know my conduct is dangerous to others, but I don't care if someone is hurt or killed.' "].) Because the jury found not true the allegation defendant intentionally and personally discharged a firearm and proximately caused Zamora's death, it necessarily convicted him of second degree murder based upon a theory of implied malice.
" 'Implied malice is determined by examining the defendant's subjective mental state to see if he or she actually appreciated the risk of his or her actions.' [Citation.] 'It is not enough that a reasonable person would have been aware of the risk.' [Citations.] 'It is unnecessary that implied malice be proven by an admission or other direct evidence of the defendant's mental state; like all other elements of a crime, implied malice may be proven by circumstantial evidence.' [Citations.]" (People v. Jimenez, supra, 242 Cal.App.4th at p. 1358.) Even in the absence of Cervantes's opinion, which itself was brief, the record demonstrates defendant entered Zamora's apartment with a loaded firearm. He encountered Zamora and ordered him to stay put. When the victim refused to comply, defendant pursued him to the kitchen and a struggle ensued. As a result, the firearm discharged and a bullet fatally struck Zamora in the chest. (See People v. Nieto Benitez (1992) 4 Cal.4th 91, 109-110 ["[W]here the defendant obtains a lethal weapon and then engages the victim in an argument, malice may be implied—from the circumstances leading to the killing—to support a conviction of second degree murder."]; People v. Benson (1989) 210 Cal.App.3d 1223, 1227, 1228-1231 [finding of implied malice proper where the accused entered the victim's bedroom while brandishing a loaded pistol and said pistol discharged during an argument].) "To the extent that there was any misconduct in eliciting [Cervantes's opinion], under the state standard there is no likelihood that without the misconduct defendant would have achieved a better result; under the federal standard, the trial was not infected with such unfairness as to result in a denial of due process." (Riggs, supra, 44 Cal.4th at p. 301.)
Defendant claims the jury was so swayed by the character evidence it "resolve[d] any doubts they might have by considering that [defendant] had gone unpunished for th[e] dangerous incident" and was "so put off by that offensive character that they would be pre-disposed to disbelieve any defense evidence." We disagree. As noted, the jury found defendant guilty of the lesser included offense of second degree murder on count 1, deadlocked on counts 2 through 4 and the felony-murder special-circumstance allegation, and found not true the firearm discharge and prior prison term allegations. "The jury returned a reasoned and reasonable verdict that was clearly the result of a careful examination of the evidence." (People v. Robertson (2012) 208 Cal.App.4th 965, 994.)
Again, having considered the merits of this argument, we need not address either the Attorney General's claim of forfeiture or defendant's claim of ineffective assistance of counsel.
c. Gang evidence
i. Background
On October 6, 2017, outside the presence of the jury, the following colloquy took place:
"[PROSECUTION]: . . . [W]e have a witness coming in this afternoon who's a classification person from the Monterey County Jail, and she mentioned that the pod that [defendant] and [C.T.] were housed in was . . . in 2010 . . . for Norte[ñ]o dropouts. I don't know if she's going to say that, or I could tell her not to say that.
"THE COURT: I'd tell her not to say that. The relevance to her testimony is that they were housed together.Later that day, on cross-examination of [C.T.], the following exchange transpired:
"[PROSECUTION]: Okay. I'll tell her not to say that.
"THE COURT: And they had access to one another. And so they could have. I'm not saying they did. Could have spoke to one another. No status as -
"[PROSECUTION]: And then I have a couple records that shows that, but it doesn't say anything about—it doesn't say anything about them being—
"THE COURT: I'd exclude that as being unduly prejudicial, not probative and unduly time consuming. . . . [¶] . . . [¶] . . . Dropout status is irrelevant in my mind. The relevant part or testimony would be that these are records where inmates were kept, and these dates [C.T.] and [defendant] were housed together in a cellblock."
"Q. And you had—your first interview with [Melden and Detective Parker] was on August 16th of 2010?
"A. I can't recall the exact date.
"Q. But you did have a conversation with him, correct?
"A. Correct. [¶] . . . [¶]
"Q. Okay. Do you remember saying 'I was an informant before, but I guess Seaside Police terminated my contract'? Do you remember saying that?
"A. No.
"Q. I have a transcript here. You want to look at it and maybe it will help you remember?
"A. (No response.)
"Q. Should I ask that question again? [¶] Would you like to see . . . a writing as to what was said between yourself and the detectives who interviewed you in late August of 2010?
"A. (Shaking head.)
"Q. You don't want to see that?
"A. (Shaking head.) [¶] . . . [¶]
"Q. I'll go back to one of my questions. I don't know if you answered it. [¶] I asked you, have you ever worked for law enforcement in the past other than this case?
"A. (No response.)
"Q. You worked for law enforcement before, haven't you?
"A. (No response.) [¶] . . . [¶]
"THE COURT: . . . . [¶] [C.T.], it's a yes or no answer. [¶] Have you ever worked for law enforcement before this case?
"[C.T.]: Yeah.
"[DEFENSE COUNSEL]: You worked for them before. Okay. [¶] . . . [¶]
"Q. And did you work specifically for a Salcedo or Diaz?
"A. Yes.
"Q. Okay. That was with what agency? Is that Seaside P.D.?
"A. Yeah."
On October 10, 2017, outside the presence of the jury and before resuming cross-examination of C.T., the following colloquy took place:
"[DEFENSE COUNSEL]: Your Honor, there's an issue that came up, if I may raise it?
"THE COURT: Um-hum.
"[DEFENSE COUNSEL]: With respect to when we were in chambers talking about the cross-examination by myself of [C.T.]—
"THE COURT: Yes.
"[DEFENSE COUNSEL]: —and then there was talk that the [prosecution] was going to redact a 23-page interview with [C.T.]—
"THE COURT: All right.
"[DEFENSE COUNSEL]: —dated 8-16-2010, and the [prosecution] was going to edit that to 23 pages.
"THE COURT: Right.
"[DEFENSE COUNSEL]: . . . [The prosecution] informed me that they were going to . . . edit out some Northern Rider stuff, other gang stuff, stuff he thought wasn't applicable.
"THE COURT: Right.
"[DEFENSE COUNSEL]: I asked [the prosecution for] . . . an advanced copy. I didn't get a copy until about ten minutes ago.
"THE COURT: Okay.
"[DEFENSE COUNSEL]: Basically it's boiled down to four pages, and it's four pages of everything that the [prosecution] wants to introduce, and nothing that I wanted the jury to see with respect to questions like [C.T.] was working for Seaside PD.
"THE COURT: For what now?
"[DEFENSE COUNSEL]: Seaside PD.
"THE COURT: Okay.
"[DEFENSE COUNSEL]: I mean, all of that stuff is out. All of the stuff that I deemed to be valuable is out. I was under the impression that only the gang stuff and a few other items . . . was going to be left out, redacted out.
"THE COURT: Okay.
"[DEFENSE COUNSEL]: I can't accept this.
"THE COURT: Counsel?
"[PROSECUTION]: Well, that's fine. He doesn't have to accept it. It's our redirect. . . . I wasn't trying to imply that that was the only thing we were going to edit. We edited out personal information. We edited out information that we thought was prejudicial. We edited out attorney-client privilege information. We took a section from the middle of the interview
that had the relevant information that we want to put in on redirect, and that's what it is. [¶] . . . [¶]
"THE COURT: How does . . . the redaction impact your ability to cross-examine [C.T.]?
"[DEFENSE COUNSEL]: To cross-examine? This is stuff that I brought up with respect to, 'Are you working for Sal[cedo] and Diaz, Seaside PD?'
"THE COURT: Right.
"[DEFENSE COUNSEL]: And [C.T.] denied all of this on the record during my cross-examination. So it's in this report with . . . Melden that he said these things. I believe the jury should have that.
"THE COURT: Well, you're free to play it; right?
"[PROSECUTION]: They already know from his cross-examination—they already know he said those things.
"[DEFENSE COUNSEL]: But he denied them all.
"[PROSECUTION]: No, I don't believe so. I think . . . eventually he said, 'Yes, I did work for the police. Yes, I did work for these guys,' . . . . [¶] And, I mean, going back to the original discussion, we fulfilled our discovery obligation. We gave him a copy of the tape. The transcript is the local rule, if you want to play the tape or any portion of it to the jury, and we're proposing to play this middle section to the jury. We didn't have to edit anything in the middle of the section that we're playing. We . . . took stuff out from the beginning, took stuff out from the back that, again, had to do with these three various areas I was talking about. [¶] But really this is redirect. We could have edited it any way we wanted to as long as we weren't misleading the jury, and we haven't done that because, like I say, the part that we're playing, it's fully intact. There's no edits in the part we're playing. We just took stuff out prior, and we took stuff out after, but the part we're playing is fully intact. [¶] . . . [U]nder the rule of completeness we do have a full transcript that we transcribed, and we do have the full entire recording, but if he wants us to play other sections that we didn't include and have this kind of selective snippetting out, it's much better to have the entire thing come in if we're going to go down that road.
"[DEFENSE COUNSEL]: I would ask the entire thing come in.
"THE COURT: Warts and all?
"[DEFENSE COUNSEL]: I'm sorry?After concluding redirect examination of C.T., the prosecution played the entire audio recording of the August 16, 2010 interview for the jury and distributed an unredacted transcript. During this interview, C.T. stated defendant was a "Northern Rider" gang member.
"THE COURT: Warts and all?
"[DEFENSE COUNSEL]: Yes."
Later that day, on direct examination of Officer Salinas, the following colloquy transpired:
"Q. Did you at some point interview [defendant]?
"A. Yes. [¶] . . . [¶]
"Q. And did you ask him anything else of significance? [¶] . . . [¶]
"A. I spoke with him about his gang affiliation.
"Q. And did he say anything with respect to that?
"A. Yes, he did.
"Q. What did he say?
"A. He stated that he used to be a Northerner or Norte[ñ]o gang member. I noted he had some scars on his person. When I asked him about his scars, he stated that he was, quote, 'removed,' end quote, while in the Monterey County Jail, I believe.
"Q. Did you ask him about any of his tattoos?
"A. Yes.
"Q. What did you ask him?
"A. I questioned him regarding the Playboy bunny tattoo he had on—I don't recall which hand he has it on—but there's a Playboy bunny on one of his hands. I know based on my training and experience the Playboy bunny is a symbol that's commonly utilized by Northern Rider prison gang members.
"Q. And what did he say about that?
"A. He . . . made mention of Monterey County Jail attempt[ing] to classify him as Northern Rider, and he did say that the significance in why it's believed that's a Rider tattoo is because the Playboy bunny upside down is the letter R for Rider."
ii. Analysis
" 'The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made . . . at his behest. If defense counsel intentionally caused the [error], the appellant cannot be heard to complain on appeal. . . . [I]t also must be clear that counsel acted for tactical reasons and not out of ignorance or mistake.' In cases involving an action affirmatively taken by defense counsel, we have found a clearly implied tactical purpose to be sufficient to invoke the invited error rule. [Citations.]" (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 49.)
In the instant case, the court preemptively disapproved any remarks on defendant's status as a Norteño dropout as "irrelevant," "unduly prejudicial," and "unduly time consuming." Yet, defense counsel subsequently complained about the prosecution's redacted transcript of the August 16, 2010 interview between C.T. and Melden, which omitted, in part, gang references. To ensure the jury would hear about C.T.'s history as a police informant, defense counsel affirmatively asked for the complete audio recording of the interview to be played for the jury and an unredacted transcript thereof to be distributed, "[w]arts and all." Thus, gang evidence was introduced prior to Officer Salinas's testimony. Because defense counsel induced the purported error, defendant is estopped from asserting reversal on the basis of that error.
Moreover, we reject any claim of ineffective assistance of counsel. To establish this claim, "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, defendant bears the burden of showing that counsel's performance ' " ' "fell below an objective standard of reasonableness . . . under prevailing professional norms." ' " ' [Citation.]" (People v. Mickel, supra, at p. 198.) "To demonstrate prejudice, 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. [Citations.]" (Ibid.) " 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " (People v. Ledesma (1987) 43 Cal.3d 171, 218, quoting Strickland v. Washington, supra, at p. 694.) Here, defense counsel strategically elected to have the jury listen to the entirety of the August 16, 2010 interview, in which C.T. commented on his status as a police informant and defendant's gang affiliation. Defense counsel apparently believed the benefit of the jury hearing the former, which could undermine C.T.'s credibility, outweighed the detriment of the jury hearing the latter. Since defense counsel actively accepted the introduction of gang evidence, he unsurprisingly did not object to Officer Salinas's testimony on that topic. (See People v. Jones (2003) 29 Cal.4th 1229, 1254 [" ' "[T]here is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' " ' "].) In addition, we cannot conclude the outcome of the proceeding would have been different but for defense counsel's tactical decision. As previously discussed, the record supports defendant's conviction for second degree murder. (See ante, at pp. 16-18.) While defendant suggests the gang evidence inflamed the jury, we again point out the jury found defendant guilty of the lesser included offense of second degree murder on count 1, deadlocked on counts 2 through 4 and the felony-murder special-circumstance allegation, and found not true the firearm discharge and prior prison term allegations. "If the jury had been inflamed . . . and rendered a verdict that was based on passion, it would have convicted [defendant] of all charges [and found true the special allegations]. Yet, it did not do so." (People v. Robertson, supra, 208 Cal.App.4th at p. 994.)
d. Prosecution's summation
i. Background
Prior to closing arguments, the court read to the jury CALCRIM No. 355 (Defendant's Right Not to Testify):
"A defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue the People have failed to prove the charges beyond a reasonable doubt. [¶] Do not consider for any reason at all the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way."
During summation, the prosecution contended:
"And in this case, we'll start with . . . Cervantes. She said . . . defendant went to the apartment. She said that. [Alfredo] said it. Melden says [defendant] confessed this. [Kathleen] says [defendant] confessed. [C.T.] says . . . defendant confessed this. [¶] And . . . defendant didn't impeach this fact. He was at the apartment. He was at the crime scene where a murder happened. . . . [D]efendant came in with a gun in his hand. That's what [Cervantes] said, he had a gun in his hand. . . . [Kathleen] said that [defendant] confessed it. [C.T.] says that [defendant] confessed.
"This victim was shot by a single gunshot. That was the testimony and the evidence from the autopsy report. Defendant did not impeach that. There is no evidence to the contrary that . . . defendant came in with a gun in his hand. [¶] . . . [¶]
". . . Elo[rdi] and . . . Soratos testified . . . defendant has stolen cars in the past. You may consider that evidence for the limited purpose of figuring out what his intent was to do with this car, and I submit to you, given his past record for stealing cars, that he intended in this case to steal the car. [¶] Defendant did not impeach this fact, and there's no evidence to the contrary." (Italics added.)
". . . Defendant shot . . . Zamora. This is the testimony of . . . Cervantes. [Kathleen] says that [defendant] confessed this. Shot him in the upper chest. [C.T.] says that [defendant] confessed this. [¶] 'I killed that fool from Los Banos.' The victim was murdered by a single gunshot wound, not to the arm, not to the leg, but to the chest. Defendant didn't impeach this, and there's no evidence to the contrary. [¶] . . . [¶]
"[C.T.] said that [defendant] said he brought [Cervantes] with him. We know that [Cervantes] said that she and . . . defendant were both in the apartment. [Kathleen] says that [defendant] confessed that he and [Cervantes] were together when this happened. Melden said that [defendant] confessed that he went to the apartment. . . . [D]efendant did not impeach this fact, and there's no evidence to the contrary." (Italics added.)
ii. Analysis
"The Fifth Amendment to the United States Constitution provides that '[n]o person . . . shall be compelled in any criminal case to be a witness against himself,' and the [United States Supreme C]ourt has interpreted this provision to 'forbid[] either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.' " (People v. Thompson (2016) 1 Cal.5th 1043, 1117 (Thompson), quoting Griffin v. California (1965) 380 U.S. 609, 615.) "The constitutional prohibition against compelled self-incrimination is a right that has been incorporated to apply against the states [citations], and [the California Supreme Court] ha[s] accordingly held ' "a prosecutor is prohibited from commenting directly or indirectly on an accused's invocation of the constitutional right to silence" ' [citation]." (Thompson, supra, at p. 1117.) However, a prosecutor may comment " ' " 'on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses.' " [Citation.]' [Citations.]" (People v. Carter (2005) 36 Cal.4th 1215, 1266-1267.)
Assuming, arguendo, the disputed portions of the prosecution's summation were improper, we find no prejudice. "[I]n order for Griffin error to be prejudicial, the improper comment . . . must either 'serve to fill an evidentiary gap in the prosecution's case,' or 'at least touch a live nerve in the defense . . . .' " (People v. Vargas (1973) 9 Cal.3d 470, 481; accord, People v. Garnica (1981) 121 Cal.App.3d 727, 736.) Here, there was ample corroborating evidence that defendant and Cervantes were at Zamora's apartment, defendant's gun fired the bullet that fatally struck Zamora in the chest, and defendant committed vehicle theft on at least two prior occasions. As "[t]here was no need for the prosecution to stress [defendant]'s failure to deny" on the witness stand, "[i]t reasonably can be said that the prosecutor's remarks did not fill an evidentiary gap for the prosecution or strike a live nerve in the defense." (People v. Garnica, supra, at p. 737.) Furthermore, the court issued CALCRIM No. 355. "Jurors are presumed to understand and follow the court's instructions." (People v. Holt, supra, 15 Cal.4th at p. 662; see Thompson, supra, 1 Cal.5th at p. 1118.) "Considering these circumstances, we conclude that any Griffin error flowing from the [prosecution]'s comment[s] w[ere] harmless beyond a reasonable doubt." (Thompson, supra, at p. 1118.)
There is no need to address either the Attorney General's claim of forfeiture or defendant's claim of ineffective assistance of counsel as we have considered the issue on the merits.
II. Evidence of defendant's two prior vehicle theft convictions
a. Background
The prosecution filed a motion in limine asking the court to admit into evidence defendant's 2005 and 2007 vehicle theft convictions "to show evidence of intent" in connection with the vehicle theft charge on count 4. Defense counsel alleged the jurors would convict defendant "because of his past." The court pronounced:
"I do find it to be highly probative on the issue of intent. Certainly there is prejudicial effect. There's no question about that, like all of the evidence that the People want to get in is prejudicial somewhere or another. We all understand that. [¶] What I'm going to do is admit it with a limiting instruction. It is not to be considered for anything other than . . . defendant's intent. That's the Court's ruling."
Prior to deliberations, the court issued its modified rendition of CALCRIM No. 303 (Limited Purpose Evidence In General):
"During the trial certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other. [¶] . . . [¶]
". . . Ladies and gentlemen, there was testimony in this case about some prior convictions for auto theft that [defendant] has suffered. You are not to consider that testimony to conclude that [defendant] is predisposed to commit crime or is a bad or evil person. The only purpose you're to consider that for is whether he had the intent to commit auto theft in this case."The parties stipulated the modified instruction accurately reflected the law.
b. Analysis
"Evidence that a defendant has committed crimes other than those currently charged is not admissible to prove that the defendant is a person of bad character or has a criminal disposition; but evidence of uncharged crimes is admissible to prove, among other things, . . . the intent with which the perpetrator acted in the commission of the charged crimes." (People v. Kipp (1998) 18 Cal.4th 349, 369, citing Evid. Code, § 1101.) "Evidence of uncharged crimes is admissible to prove . . . intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of . . . intent." (People v. Kipp, supra, at p. 369.) "On appeal, the trial court's determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion." (Ibid.)
Defendant argues the court "abused its discretion in allowing evidence of [his] priors . . . ." Assuming, arguendo, this is true, such error was harmless. "[T]he jury did not convict defendant of [vehicle theft], and thus evidence of the [two prior convictions for vehicle theft] could not have prejudiced him with respect to . . . count [4]." (People v. Harris (2013) 57 Cal.4th 804, 842.)
III. Cumulative error
"[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill (1998) 17 Cal.4th 800, 844.) "A claim of cumulative error is in essence a due process claim . . . ." (People v. Rivas (2013) 214 Cal.App.4th 1410, 1436.) " 'The "litmus test" for cumulative error "is whether defendant received due process and a fair trial." ' " (Ibid.) "[T]he reviewing court must 'review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to [the] defendant in their absence.' " (People v. Williams (2009) 170 Cal.App.4th 587, 646.)
Having reviewed and analyzed each alleged error, we cannot conclude the cumulative effect was such that defendant was deprived of due process and a fair trial. Therefore, we reject the argument.
IV. Restitution fine and assessments
At the sentencing hearing, the court ordered defendant to pay the statutory maximum restitution fine of $10,000 (§ 1202.4, subd. (b)), a court operations assessment of $40 (§ 1465.8), and a court facilities assessment of $30 (Gov. Code, § 70373). Defendant did not object to the fine or assessments.
In a supplemental brief, defendant contends the court improperly imposed the assessments without determining whether he had the ability to pay them. He also contends the court imposed an excessive restitution fine.
Defendant's first argument is based on Dueñas, which was decided after the aforementioned sentencing hearing and while this appeal was pending. In that case, Division Seven of the Second Appellate District held that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay" before it imposes any fines or assessments. (Dueñas, supra, 30 Cal.App.5th at p. 1164; accord, People v. Castellano (2019) 33 Cal.App.5th 485, 488-489.) However, other courts have disagreed. This court has held that 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. (See People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1072, review denied Dec. 11, 2019 (Aviles).) Presently pending before our Supreme Court is People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844, in which review is limited to (1) whether a court must consider a defendant's ability to pay before imposing or executing fines, fees, and assessments, and (2) if so, which party bears the burden of proof regarding defendant's inability to pay.
Assuming, arguendo, Dueñas applies to this case, we find defendant forfeited any claim as to his alleged inability to pay the assessments. The court ordered him to pay the statutory maximum restitution fine of $10,000 under section 1202.4, subdivision (b). When the court imposes a restitution fine greater than the statutory minimum amount of $300, "[s]ection 1202.4 expressly contemplates an objection based on inability to pay." (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153; accord, Aviles, supra, 39 Cal.App.5th at p. 1073.) While Dueñas had not been decided at the time of defendant's sentencing hearing, defendant had the statutory right to object to the $10,000 restitution fine and demonstrate his inability to pay. "Although [section 1465.8] and [Government Code section 70373] mandate the assessments be imposed, nothing in the record of the sentencing hearing indicates that [defendant] was foreclosed from making the same request that the defendant in Dueñas made in the face of those same mandatory assessments. [Defendant] plainly could have made a record had his ability to pay actually been an issue. Indeed, [he] was obligated to create a record showing his inability to pay the maximum restitution fine, which would have served to also address his ability to pay the assessments. Given his failure to object to a $10,000 restitution fine based on inability to pay, [defendant] has not shown a basis to vacate assessments totaling $[7]0 for inability to pay." (Frandsen, supra, at p. 1154; accord, Aviles, supra, at p. 1074.) Hence, we reject the argument "any objections to the assessments imposed pursuant to . . . section 1465.8 and Government Code section 70373 would have been futile." (Frandsen, supra, at p. 1154.) Finally, even if defendant did not forfeit his claims, any error under Dueñas is necessarily harmless since defendant has the ability to pay the fine and assessments over the course of his long prison sentence. (See Aviles, supra, 39 Cal.App.5th at pp. 1075-1077.)
Having found forfeiture, our analysis ends there.
DISPOSITION
The judgment is affirmed.
DETJEN, Acting P.J. WE CONCUR: SNAUFFER, J. DE SANTOS, J.