Opinion
H035733
10-06-2011
THE PEOPLE, Plaintiff and Respondent, v. DANIEL MENDOZA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC760580)
On March 7, 2007, the body of Torrie Matthews was found in the area of Penitencia Creek Road and Dorel Drive in San Jose. Matthews was lying on his back in a pool of blood adjacent to a mailbox; he had visible injuries to his face and neck as well as on his hands. Police recovered a blood stained knife in the shrubs within a few feet of the body.
On July 9, 2009, the Santa Clara County District Attorney charged appellant Daniel Mendoza with murder. (Pen. Code, § 187.) The information contained an allegation that appellant personally used a deadly and dangerous weapon in the commission of the crime (Pen. Code, § 12022, subd. (b)(1)) and that appellant had two prior strike convictions within the meaning of Penal Code sections 667, subdivisions (b)-(i) and 1170.12, which were also serious felonies within the meaning of Penal Code section 667, subdivision (a).
On January 29, 2010, a jury returned a verdict of guilty of first degree murder and found true the knife enhancement. After appellant waived his right to a jury trial on the prior conviction allegations, the court found true both allegations. On April 23, 2010, the trial court sentenced appellant to state prison for 75 years to life consecutive to 11 years.
Appellant filed a timely notice of appeal.
On appeal, appellant challenges two jury instructions that were given and argues that the cumulative impact of the errors in the instructions denied him due process. In addition, he challenges the imposition of a criminal justice administration fee on the grounds that there was insufficient evidence to show the actual administrative costs or that he had the ability to pay. For reasons that follow, we affirm the judgment.
Facts and Proceedings Below
Amie Ruiz, who was 23 years old at the time of trial was good friends with appellant and Matthews. She testified pursuant to an agreement with the Santa Clara County District Attorney's Office. The parties stipulated that Ruiz was a defendant in this case and entered into a plea agreement; that Ruiz was charged with one count of murder; that the plea agreement required her to testify fully and truthfully at all proceedings against appellant; that in exchange for full and truthful testimony, Ruiz would plead guilty to one count of being an accessory to murder and admit a prior felony conviction and probation violation; that she would serve the upper term of six years in prison, which sentence could be imposed at anytime; and that if she failed to provide truthful testimony, the plea agreement would be nullified and murder charges would be reinstated.
Ruiz testified that she had dated Matthews for four years when she was 13 through 17 years old. Appellant spent time with Ruiz and Matthews; they "did drugs," in particular, they used "crystal" together. Ruiz explained that they "were just always running the streets together" and getting into trouble. They would break into cars to get money to buy drugs. After Matthew's and Ruiz's relationship ended, they would all still "hang out" together. Ruiz went to jail in 2004 for a robbery and therefore did not see appellant or Matthews. However, when she got out of jail she continued hanging out with appellant, "doing dope and running around."
Between 2005 and 2006, Ruiz dated Armando Delgado for about six to eight months. The two of them smoked methamphetamine with appellant. By January 2007, Ruiz and Delgado had stopped dating, but they still spent time with each other and appellant smoking methamphetamine in motel rooms. Delgado also met Matthews. In the months before Matthews was killed, Ruiz saw Matthews occasionally.
As far back as approximately 2003, appellant said that he thought Matthews had slept with Mitzi Chavez, who was the mother of appellant's children. Appellant was angry about this and he would bring up the topic occasionally over the years.
A couple of months before Matthews was killed, appellant starting uttering threats against Matthews. When appellant was high on methamphetamine and Matthews was not around, he would talk "shit" about Matthews sleeping with Chavez; appellant said that he was going to "kick his ass" or that "he was going to get him." Sometimes, appellant would say that he was "going to fuck [Matthews] up." According to Ruiz, in the months leading up to Matthews's death, appellant seemed angrier about Matthews.
For a few weeks before Matthews died, Delgado stayed at motels sometimes with appellant. Ruiz sometimes stayed as well. At times they drank, smoked methamphetamine or watched television. A couple of times, Delgado heard appellant say that Matthews had slept with Chavez. According to Delgado, appellant seemed a "little bit" upset. A couple of times, appellant said that Matthews "was going to get it" or something similar.
On March 6, 2007, appellant, Ruiz and Delgado rented a room at Motel 6. Matthews and someone called Adriana delivered drugs to them. However, Matthews left with Adriana. Later, appellant called Matthews to invite him to "hang." Ruiz spoke with Matthews about picking him up. While Ruiz was gone, appellant and Delgado watched television; a couple of times appellant said that something was going to happen that night. Delgado assumed appellant was referring to Matthews.
Ruiz picked up Matthews and brought him back to the motel room. At some point, according to Ruiz, she smoked methamphetamine with appellant, Delgado, and Matthews. However, initially, when Ruiz got into the room, appellant was getting out of the shower. Appellant wanted to borrow Ruiz's car, but she refused to let him, so he asked Ruiz to take him to his father's house. At this time, appellant seemed "pumped up." Appellant told Ruiz that he "wanted to fuck him [Matthews] up that night." Ruiz did not think that appellant was any more serious than he had been the previous time he had said something similar, but he was acting differently that night.
Delgado could not remember smoking methamphetamine during the time they were all at the Motel 6.
When appellant said out loud that he wanted to go to his father's house to get money, Matthews said that since they were going to that side of town he needed to go home. About 15 minutes later, Ruiz, appellant and Matthews left in Ruiz's car. Ruiz explained that she was interested in having sexual relations with Matthews so she planned to take appellant to his father's house. Then, she intended to "be with" Matthews and then drop him at his grandmother's house. She planned to pick up appellant after that. Ruiz sat in the driver's seat, Matthews sat in the front passenger seat and appellant sat in the back seat of Ruiz's two door sedan.
Ruiz drove toward the house where appellant's father lived. After leaving the highway, appellant called his father on the phone, but could not reach him. Appellant told Ruiz to keep driving. Appellant called his father a second time and learned that his father was sleeping. As Ruiz was attempting to turn around, she saw appellant's arm come around beside her two or three times and heard Matthews screaming out. Appellant made an up and down stabbing motion toward Matthews's shoulder area. She remembered that Matthews got into the back seat and was wrestling with appellant. Ruiz could not see a weapon, but saw blood. She heard appellant tell Matthews that he knew Matthews had slept with Chavez and to tell him he did so.
At some point, appellant and Matthews got out of the car onto Penitencia Creek Road and continued to fight. Ruiz testified that she was crying and yelling at them. Both were standing and fighting for a while, but then they would go down and get up again. Appellant kept yelling at Matthews to tell him that he slept with Chavez. Matthews told appellant that "it didn't have to go down like that." Appellant continued attacking Matthews. Ruiz saw a cut on Matthews's face. Ruiz saw Matthews go down and appellant kick him approximately three times. Ruiz got scared and got into her car, but heard her name being called so she froze. Appellant got into Ruiz's car and they "took off." Ruiz thought that Matthews was still alive while appellant was kicking him.
Ruiz testified that although she did not see an object, appellant's fast arm movement made her think that he threw something. Ruiz saw that the palm of appellant's right hand was cut. Ruiz was crying, but appellant told her to shut up and be quiet and "get out of there." Appellant asked Ruiz whether she heard Matthews tell him that he slept with Chavez. When they got close to the motel, appellant told Ruiz to pull over by the hotel and told her, "I fucked up." Appellant showed her his hand, which was cut open and bleeding. There was blood all over the car.
Meanwhile, Delgado stayed at the motel and a friend Vicky arrived. According to Delgado, Vicky received a phone call from Ruiz. He started packing up his things. He received a phone call from Ruiz telling him to get her things because she wanted to go home. Shortly thereafter, Ruiz and appellant arrived. Delgado saw that appellant's hand was wrapped in a shirt that was covered with blood. Ruiz testified that Delgado did not know what was going on; she just told him she had to get her things and leave. Ruiz had some of appellant's clothes in her trunk, which she gave to him and he changed clothes. Ruiz threw half of the clothes that appellant had been wearing into the motel garbage.
Delgado rode in Ruiz's car and appellant rode in Vicky's car to the house where Delgado's cousin lived. There, appellant attempted to wrap his hand. He refused to go to the hospital because he said he wanted to avoid Matthews and the police. Appellant and Delgado traded phones. Chavez came to pick up appellant and they left together. Ruiz and Delgado went to Morgan Hill. At a gas station they tried to clean Ruiz's car, including wiping blood from the windows. Delgado placed a sheet over the seats. Ruiz got rid of appellant's remaining clothes at the gas station. That night, Ruiz and Delgado stayed in Morgan Hill.
Ruiz heard from appellant that he was in Modesto with Chavez and he had gone to the hospital where his hand was bandaged. When Ruiz learned that Matthews had died, she and Delgado drove to Modesto to tell appellant. When she told appellant that Matthews was dead, he was not upset. Appellant started laughing. Ruiz drove appellant to Salinas, where they spent the night along with Delgado. Appellant asked Ruiz if she wanted to go to Mexico because he was on the run and the police were going to be after him. Appellant suggested that Ruiz burn her car because of the blood in it, but she refused.
Ruiz clarified on cross-examination that appellant laughed about something that she told him was said on the newscast concerning Matthews's death.
Subsequently, Ruiz, appellant and Delgado rented a room at the Days Inn in San Jose. On March 9, San Jose Police Officer David Yazzolino spotted appellant and Ruiz in a car in the parking lot of Chuck E. Cheese. As an unmarked police car approached, appellant got out of the car and ran through the parking lot. Appellant ran past Officer Yazzolino, who along with other officers, chased after him. Officer Vallejo told appellant that they were San Jose police officers and to stop. As appellant ran, Officer Yazzolino saw him do something in his left waistband area. Concerned because appellant was a murder suspect, Officer Yazzolino tackled him and told appellant to show him his hands. Appellant resisted and so Officer Yazzolino punched him the face. Appellant was taken into custody. When he was photographed later, appellant had some abrasions on his face and his right hand was heavily bandaged.
Officer McFadden processed the motel room at the Days Inn that was registered to Delgado. He photographed what appeared to be methamphetamine and a pipe. Officer McFadden took photographs of Ruiz's car. The back seat was covered with a white sheet. The sheet and seat had blood stains. There were blood stains on the front passenger door and front passenger seat headrest as well as the boot of the gear shift. The front passenger seat was severely stained. The police recovered a blood stained t-shirt and sweatshirt from the car. In addition, the police recovered a blood-stained knife from the shrubs located within a few feet of where Matthews's body was discovered. The knife was stainless steel with a three and one-half inch blade. The knife was in the open position and both the blade and handle were stained.
Dr. Joseph O'Hara, a forensic pathologist, performed the autopsy on Matthews. He concluded that Matthews died from multiple stab wounds to the head, neck and trunk. Matthews suffered 12 incised wounds—wounds that are longer than they are deep—and 17 stab wounds—wounds that are deeper than they are long. One of the stab wounds, which was two and three-quarter inches deep, perforated the earlobe, skin of the neck, the deep muscles of the neck and the vascular structures and nerves in the carotid cheek; the wound went through the carotid artery. There were four stab wounds to Matthews's head and face that were between three and three and one-half inches deep. Matthews also had lacerations and contusions from blunt force trauma to his head and face. The wounds suggested that a single-edge blade was used. All of Matthews's wounds were consistent with being inflicted by a knife that was recovered from the scene.
Ruiz testified that appellant usually carried a silver folding knife or red knife in his pocket. Delgado identified the knife found in the shrubs on Penitencia Creek Road as the knife that appellant carried.
Jeremiah Garrido from the Santa Clara County Crime Laboratory was designated an expert in forensic science, in particular DNA analysis. He analyzed a blood sample collected from Penitencia Creek and Dorel Drive. The sample contained a mixture of DNA from at least two individuals, with appellant and Matthews included as possible contributors.
Garrido put the probability that a random African American would be included in the mixture at one in 3.5 billion, the probability that a random Hispanic would be included at one in 5.4 billion and the probability that a random Caucasian would be included at one in 14 billion.
Discussion
CALCRIM No. 226
The court instructed the jury pursuant to CALCRIM No. 226 as follows.
"You alone ladies and gentlemen must judge the credibility or believability of the witnesses who testified. In deciding whether testimony is true and accurate, use your common sense and experience. You must judge the testimony of each witness by the same standard setting aside any bias or prejudice you may have. You may believe all, part, or none of any witness'[s] testimony. [¶] Consider the testimony of each witness and decide how much of it you believe. In evaluating a witness'[s] testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are how well could the witness see, hear or otherwise perceive the things about which the witness testified. [¶] How well was the witness able to remember and describe what happened? What was the witness'[s] behavior while testifying? Did the witness understand the questions and answer them directly? Was the witness'[s] testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or personal interest in how the case is decided? What was the witness'[s] attitude about the case or about testifying? Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony? How reasonable is the testimony when you consider all the other evidence in the case? Did other evidence prove or disprove any fact about which the witness testified? Did the witness admit to being untruthful? What is the witness'[s] character for truthfulness? [¶] Has the witness been convicted of a felony? Has the witness engaged in other conduct that reflects on his or her believability? Was the witness promised immunity or leniency in exchange for his or her testimony? Do not automatically reject testimony because of inconsistencies or conflicts. Consider whether those differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event, yet see or hear some things regarding that event differently. [¶] If the evidence establishes that a witness'[s] character for truthfulness has not been discussed among the people who know him or her, you may conclude from the lack of discussion that the witness'[s] character for truthfulness is good. If you do not believe a witness'[s] testimony that he or she no longer remembers something, that testimony is inconsistent with the witness'[s] earlier statement on that subject. If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything the witness says; or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest." (Italics added) During discussions on the issue of which jury instructions to give, defense counsel objected to the italicized language in the aforementioned instruction. Counsel argued that the italicized language should not be included because no specific character evidence had been introduced to which it would apply and without such evidence the language was inapplicable. The prosecutor took the position that it did apply and argued that neither the prosecutor nor the defense should have to prove a negative for every single witness— i.e. call people and say have you discussed their character. He argued that the language was there "so that if someone's character has not been discussed, you just assume that it's good." The court found that there was no reason to exclude it.
Appellant argues that the trial court prejudicially erred by instructing the jury with the italicized language because it allowed the jurors to conclude that Ruiz had a good character for truthfulness based on the absence of any evidence as to whether those who knew her had or had not discussed that character trait. He contends that the jury would have erroneously assumed the instruction was relevant and would have misinterpreted the instruction to mean that the absence of evidence of Ruiz's character for truthfulness was a factor making her testimony credible.
In essence, appellant's argument is that the italicized language was irrelevant because there was no evidence presented that Ruiz's character for truthfulness had not been discussed among the people that knew her. The People appear to concede that the italicized language was irrelevant.
Certainly, the advisement here was legally sound. However, " '[e]vidence' means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact." (Evid. Code, § 140.) Here no "evidence" was presented that Ruiz's reputation for truthfulness had not been discussed amongst the people that knew her. Simply put, unless counsel asks witness A. the question concerning witness B.'s reputation for truthfulness, and gets the answer back that witness B.'s reputation for truthfulness has never been discussed by people that know him or her, no evidence exists to which the italicized language applies.
"It is error for a court to give an 'abstract' instruction, i.e., 'one which is correct in law but irrelevant[.]' (5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Trial, § 2950, p. 3624.)" (People v. Rowland (1992) 4 Cal.4th 258, 282.)
Nevertheless, to the extent that the trial court may have erred, other instructions properly guided the jury. We evaluate a claim of instructional error by examining jury instructions as a whole and determining whether there is a reasonable likelihood the jury misunderstood the instructions in the manner suggested by appellant. (People v. Clair (1992) 2 Cal.4th 629, 662-663.) We presume jurors are intelligent people capable of understanding instructions and applying them to the facts of the case. (People v. Carey (2007) 41 Cal.4th 109, 130.)
Here, the court instructed the jury that some instructions "may not apply depending on your findings about the facts" and that they were "not [to] assume that just because" a particular instruction was given, the court was "suggesting anything about the facts." Further, the court told the jurors that "evidence includes sworn testimony of witnesses, the exhibits admitted into evidence and anything else" that the court had told them they could consider as evidence. Since no evidence was adduced concerning Ruiz's character for truthfulness, no reasonable juror would have assumed that the absence of such evidence was a factor making her testimony credible.
The giving of an irrelevant instruction "is usually harmless, having little or no effect 'other than to add to the bulk of the charge.' [Citation.] There is ground for concern only when an abstract or irrelevant instruction creates a substantial risk of misleading the jury to the defendant's prejudice." (People v. Rollo (1977) 20 Cal.3d 109, 123, superseded by statute on other grounds as stated in People v. Castro (1985) 38 Cal.3d 301.) If, as it appears, the italicized language was irrelevant the jurors would simply have ignored it. We see no possibility for prejudice.
As there was no substantial risk that the jury was misled as appellant claims, we reject his challenge to the giving of the italicized language.
CALCRIM No. 625
In discussing the jury instructions, defense counsel requested that the court give an instruction on voluntary intoxication pursuant to CALCRIM No. 625. Initially, the court refused; the court found that there was "no evidence of intoxication in this case." The court went on to explain that "[t]here was some testimony that some smoking occurred in the motel room, I believe by the defendant as well as other folks. [¶] However if one were to give it just because of the evidence of some smoking in the motel room at some point prior to the crime that allegedly occurred, then you have to give it in all cases where any drink was taken, any amount of smoking. [¶] Here we have no evidence at all of intoxication through any of the acts of the defendant, any of the words that he said, any witnesses testifying to a state of intoxication; anything at all that shows he could be under the influence of a substance which is altering his thinking."
Subsequently, in his opening argument, the prosecutor contended that there was "some evidence of premeditation, quite a bit as a matter of fact. When he finally decides to kill [Matthews], he just couldn't help himself. Could have been because he was smoking the drugs, could have been because he was all, as [Ruiz] testified, he was pumped up."
Thereafter, the court reconsidered its initial ruling on giving an instruction on voluntary intoxication and instructed the jury pursuant to CALCRIM No. 625 on voluntary intoxication and its effects on homicides crimes. Specifically, the court told the jury, "You may consider evidence[,] if any[,] of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill or acted with deliberation and premeditation."
Appellant contends that the trial court violated his right to due process by preventing the jury from considering the impact of whether he was under the influence of methamphetamine when determining whether he acted with the necessary intent for lying-in-wait-murder.
Initially, respondent asserts that appellant has forfeited his claim by failing to request a modification of this pinpoint instruction.
As the bench notes to CALCRIM No. 625 explain, "With the statutory elimination of diminished capacity as a defense, there is no sua sponte duty to instruct on the effect of voluntary intoxication on the mental states required for homicide. (Pen. Code, § 28(b); People v. Saille (1991) 54 Cal.3d 1103, 1119-1120 . . . .) However, subsequent cases affirm that voluntary intoxication can be used to negate an element of the crime that must be proven by the prosecution. (People v. Reyes (1997) 52 Cal.App.4th 975, 982 . . . ; People v. Visciotti (1992) 2 Cal.4th 1, 56-57 . . . .) Such an instruction is a 'pinpoint' instruction, which must be given on request when there is sufficient evidence supporting the theory. (People v. Saille, supra, 54 Cal.3d at p. 1120.)" (Judicial Council of California Criminal Jury Instructions (2011) p. 429.)
"An instruction on the significance of voluntary intoxication is a 'pinpoint' instruction that the trial court is not required to give unless requested by the defendant." (People v. Rundle (2008) 43 Cal.4th 76, 145 (Rundle), overruled on different ground in People v. Doolin (2009) 45 Cal.4th 390, 421.) "If the defendant in a particular case believes voluntary intoxication is an issue that could affect the jury's determination of the mental state elements of the charged crimes, he or she must request an instruction on that subject. Any lack of clarity regarding the consideration, if any, the jury should give to evidence of voluntary intoxication, in the absence of a request for an instruction on this subject, is of the defendant's doing, and on appeal he cannot avail himself of his own inaction. [Citation.]" (Rundle, supra, 43 Cal.4th at p. 145, italics added.)
" 'Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was . . . incomplete unless the party has requested appropriate clarifying or amplifying language.' " (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012.) If appellant thought that the instruction at issue here was incomplete or inadequate, he should have requested appropriate clarifying or amplifying language. As he did not, he cannot complain on appeal that the court erred.
Similarly, since appellant failed to raise a constitutional challenge to the instruction as given, he has forfeited his right to make such a claim. (In re Sheena K. (2007) 40 Cal.4th 875, 880-881.)
More importantly, appellant was not entitled to an instruction on voluntary intoxication. A trial court need not give a pinpoint instruction if it is not supported by substantial evidence. (People v. Bolden (2002) 29 Cal.4th 515, 558.) Here, the evidence of appellant's intoxication was non-existent. Ruiz testified that they smoked methamphetamine in the motel room before they left to drive to the house where appellant's father lived.
Prior to the statutory elimination of the defense, our Supreme Court addressed the modicum of intoxication evidence necessary to require a diminished capacity instruction. "Normally, merely showing that the defendant had consumed alcohol or used drugs before the offense, without any showing of their effect on him, is not enough to warrant an instruction on diminished capacity. [Citations.]" (People v. Pensinger (1991) 52 Cal.3d 1210, 1241 (Pensinger).) We find Pensinger instructive.
In Pensinger, supra, 52 Cal.3d 1210, 1229, the defendant was convicted of first degree murder, and the jury found true the special circumstance allegations the murder was committed in the course of a kidnapping, and the murder was intentional and involved the infliction of torture. The Supreme Court reversed the torture-murder special-circumstance finding because the trial court failed to instruct the jury that it must find intent to inflict torture. (Id. at pp. 1242-1243.) However, the court concluded the trial court did not err in failing to instruct sua sponte on diminished capacity because there was insufficient evidence to warrant the instruction. The court noted all the witnesses declared defendant did not seem intoxicated and the consumption of alcohol was relatively moderate. The court determined this evidence and the lack of evidence from independent witnesses, or from defendant's trial testimony that he may have been intoxicated, did not amount to substantial evidence defendant lacked the capacity to form the requisite mental state such that a diminished capacity instruction was required. (Ibid.)
We find some similarity to the facts before us. There were no witnesses who testified appellant seemed intoxicated. Ruiz said that appellant seemed "pumped up," but it appears from the record that this was before appellant smoked methamphetamine with Ruiz, Matthews and Delgado. Further, it is impossible to determine from the record whether smoking an unspecified amount of methamphetamine, at some point, some time before the killing would result in any significant degree of impairment to appellant because no expert testimony was offered on this point. (People v. Horton (1995) 11 Cal.4th 1068, 1119 [insufficient evidence for intoxication instructions where defendant did not present any evidence of effect of cocaine on ability to form requisite intents]; People v. Williams (1997) 16 Cal.4th 635, 677-678, [no substantial evidence of intoxication where a witness testified the defendant was probably spaced out and the defendant told police that around the time of the killings he was doped up and had been smoking heavily].)
At least the evidence in Pensinger showed the defendant in that case consumed some amount of drugs and alcohol on the day of his crimes. In appellant's case, the evidence was conflicting as to whether or not methamphetamine was smoked on the day in question. Even if we assume he did use drugs on that day, there is no evidence showing how much he ingested or the degree of intoxicating effect, if any, it had on him.
Contrary to appellant's assertions, there was no evidence supporting a voluntary intoxication instruction. Thus, appellant is unable to show that he was prejudiced by the instruction as given. Moreover, not being entitled to any such instruction, appellant will not be heard to complain of a deficiency in the instruction which, as given, actually benefitted him. Accordingly, we find no merit in appellant's due process challenge to the voluntary intoxication instruction.
We are mindful that in giving the version of CALCRIM No. 625 it did, the trial court implicitly determined substantial evidence existed to warrant an intoxication instruction. Nevertheless, an appellate court does not defer to the trial court's rulings and findings related to jury instructions. Instead, "[w]e apply the independent or de novo standard of review . . . ." (People v. Cole (2004) 33 Cal.4th 1158, 1218.) In determining de novo whether substantial evidence supports an instruction, we do not weigh the relevant evidence; rather we determine whether it is legally sufficient. (People v. Breverman (1998) 19 Cal.4th 142, 177.) Here it was not.
Cumulative Error
Appellant argues that the cumulative impact of the errors in the aforementioned jury instructions denied him due process of law and requires that we reverse his conviction.
The combined effects of multiple errors may indeed render a trial fundamentally unfair. (See People v. Cuccia (2002) 97 Cal.App.4th 785, 795.) However, since we have found none of appellant's claims of error meritorious and/or prejudicial, a cumulative error argument cannot be sustained. No serious errors occurred, which whether viewed individually or in combination, could possibly have affected the jury's verdict. (People v. Martinez (2003) 31 Cal.4th 673, 704; People v. Valdez (2004) 32 Cal.4th 73, 128.) To put it another way, since we have found no substantial error in any respect, appellant's claim of cumulative prejudicial error must be rejected. (People v. Butler (2009) 46 Cal.4th 847, 885.) Appellant was entitled to a fair trial, not a perfect one. (People v. Bradford (1997) 14 Cal.4th 1005, 1057.)
Criminal Justice Administration Fee
In sentencing appellant, the court imposed a criminal justice administration fee in the amount of $129.75 to be paid to the City of San Jose "pursuant to Government Code section 29550, et seq."
Appellant contends that the trial court erroneously imposed the criminal justice administration fee because there was insufficient evidence to show the actual administrative costs of the fee or that he had the ability to pay.
Respondent argues that appellant has forfeited his challenge to this fee.
We note that there is a conflict amongst the Courts of Appeal on whether or not a defendant forfeits a challenge to the criminal justice administration fee by failing to object below on the ground that he did not have the ability to pay. Recently, the California Supreme Court has agreed to resolve the conflict. (See People v. McCullough (2011) 193 Cal.App.4th 864, review granted on June 29, 2011, S192513.)
Just last year this court had occasion to discuss the criminal justice administration or "booking" fee in People v. Pacheco (2010) 187 Cal.App.4th 1392, 1399-1400 (Pacheco ). As we explained in Pacheco, Government Code sections 29550, 29550.1, and 29550.2 "govern fees for booking or otherwise processing arrested persons into a county jail." (Pacheco, supra, at p. 1399, fn. 6.) These three code sections vary to some degree based on the identity of the arresting agency. (Ibid.) Arrests made by a county are governed by section 29550; arrests made by a city and other named entities are governed by section 29550.1; and arrests made by any governmental entity not specified in section 29550 or 29550.1 are governed by section 29550.2. (Ibid.)
All unspecified section references are to the Government Code.
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"[S]ection 29550, subdivision (c) provides that if the county was the arresting agency, the fee 'shall not exceed the actual administrative costs' of booking. [Section 29550,] [s]ubdivision (d)(1) further provides that a 'judgment of conviction may impose an order for payment' of the fee and 'execution on the order may be issued in the same manner as a judgment in a civil action.' Subdivision (d)(2) further provides that '[t]he court shall, as a condition of probation, order the convicted person, based on his or her ability to pay,' to reimburse the county for the fee." (Pacheco, supra, 187 Cal.App.4th at pp. 1399-1400.)
Similarly, section 29550.2, which governs arrests "by any governmental entity not specified in Section 29550 or 29550.1," provides for the imposition of a criminal justice administration fee that does not exceed the "actual administrative costs" of booking. (Gov. Code, § 29550.2, subd. (a).) That same section also provides that if the person arrested "has the ability to pay, a judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee by the convicted person." (Ibid.)
Thus, sections 29550 and 29550.2 make the fees subject to a defendant's ability to pay and require that the fee shall not exceed the "actual administrative costs" of booking. In this case, however, the trial court identified the City of San Jose as the payee. Accordingly, the basis of the fee was section 29550.1.
Section 29550.1 states, "Any city, special district, school district, community college district, college, university, or other local arresting agency whose officer or agent arrests a person is entitled to recover any criminal justice administration fee imposed by a county from the arrested person if the person is convicted of any criminal offense related to the arrest. A judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee by the convicted person, and execution shall be issued on the order in the same manner as a judgment in a civil action, but the order shall not be enforceable by contempt. The court shall, as a condition of probation, order the convicted person to reimburse the city, special district, school district, community college district, college, university, or other local arresting agency for the criminal justice administration fee." As can be seen, nothing in the statute requires a determination of the defendant's ability to pay nor is there any mention that the fee shall not exceed the actual administrative cost of booking. Thus, the criminal justice administration fee imposed here was mandatory, not subject to ability to pay and lacking the requirement that there be evidence of the actual administrative cost of booking.
Thus, appellant's reliance upon Pacheco is erroneous. That case pertained to section 29550 or 29550.2 rather than section 29550.1. (Pacheco, supra, 187 Cal.App.4th at pp. 1399-1400.) Accordingly, appellant's challenge to the criminal justice administration fee must fail.
Finally, we note that even if we were to hold that there is an implied ability to pay requirement in section 29550.1, appellant is serving what is essentially a life term in prison. Since the record does not affirmatively show that he will not be able to obtain prison employment, we must assume that for purposes of the minimal booking fee he will be able so to do. (See People v. Frye (1994) 21 Cal.App.4th 1483, 1486-1487.) Penal Code section 2700 provides, in relevant part, "The Department of Corrections shall require of every able-bodied prisoner imprisoned in any state prison as many hours of faithful labor in each day and every day during his or her term of imprisonment as shall be prescribed by the rules and regulations of the Director of Corrections." This section requires that prisoners who perform assigned work be compensated. If appellant has any latent impediments such that he cannot work in prison, he would be in the best position to know of and develop that information in the trial court.
Disposition
The judgment is affirmed.
ELIA, J.
WE CONCUR:
RUSHING, P. J.
PREMO, J.