Opinion
E071789
03-05-2020
THE PEOPLE, Plaintiff and Respondent, v. SEAN DEREK WINTER, Defendant and Appellant.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI17000076) OPINION APPEAL from the Superior Court of San Bernardino County. Corey G. Lee, Judge. Affirmed. Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant and appellant, Sean Derek Winter, was driving over 90 miles per hour on the freeway with codefendant, Samantha Ross-Blume, in the passenger's seat when California Highway Patrol (CHP) officers tried to pull him over. Defendant exited the freeway and the CHP officers activated their lights and sirens. Defendant then shot about 30 rounds from an AK-47 in the direction of the officers' vehicle. The officers slowed down and lost sight of the vehicle. Defendant abandoned the vehicle, fled on foot, and broke into a nearby house, where he spent the night.
A jury convicted defendant of two counts of attempted murder of a police officer (Pen. Code, §§ 187, subd. (a), 664 subd. (e)-(f); counts 1 & 2); two counts of assault on a peace officer with an assault weapon (§ 245, subd. (d)(3); counts 3 & 4); one count of shooting at an occupied motor vehicle (§ 246; count 5); one count of evading an officer (Veh. Code, § 2800.2, subd. (a); count 6); one count of residential robbery (§§ 459, 460, subd. (a); count 7); one count of assault with a firearm (§ 245, subd. (a)(2); count 9); and one count of possession of a firearm by a felon (§ 29800, subd. (a)(1); count 11). The jury also found true various firearm enhancement allegations, but did not find true the allegation that counts 1 and 2 were premeditated. The jury also found defendant not guilty of a second count of residential robbery (§§ 21, 212.5, subd. (a); count 8). The trial court sentenced defendant to a determinate term of 22 years 4 months, followed by an indeterminate term of 7 years to life. The trial court also imposed a $300 restitution fine (§ 1202.4) and $560 in assessments (§ 1465.8; Gov. Code, § 70373).
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant raises eight contentions on appeal: (1) there was insufficient evidence for the jury to convict him of attempted murder; (2) the trial court erred by denying defendant's motion for a mistrial; (3) the trial court improperly failed to hold a hearing on whether jurors considered defendant's decision not to testify in reaching a verdict; (4) the trial court erred by not granting defendant's motion to disclose juror contact information; (5) the trial court erroneously denied defendant's motion for a new trial; (6) the trial court improperly instructed the jury on evading a peace officer; (7) the trial court improperly instructed the jury on flight; and (8) the trial court improperly imposed the fines and assessments without considering defendant's ability to pay. We reject defendant's contentions and affirm the judgment.
Defendant also contends his attorney provided him with ineffective assistance of counsel. We reject this argument because we conclude the trial court did not prejudicially err.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Around 2:00 a.m., CHP officers saw a Chevrolet Impala speeding on the freeway in a remote desert area in San Bernardino County. The officers pursued and matched its speed of over 90 miles per hour. The vehicle exited the freeway. The officers followed and activated their vehicle's lights and sirens. The Impala ran a stop sign, reentered the freeway, and sped off, reaching 95 miles per hour.
As the officers pursued the Impala, they "saw projectiles" and heard "a loud noise" that was consistent with gunshots being fired. The officers heard more than 30 rounds shot rapidly as if they were shot from a machine gun, and saw sparks directly in front of their car caused by the rounds hitting the asphalt. One round hit and damaged the officers' vehicle's windshield. The officers slowed down to increase their distance from the Impala and eventually lost sight of it. The officers found the Impala stopped in the center divider. The officers then set up a perimeter.
Upon inspecting the Impala, the officers observed that its rear window had been "shot out." The officers found two firearms and a 30-round magazine for an AK-47. A subsequent analysis found 28 expended rifle casings on the car floor and determined that the rounds had been shot from the passenger seat. The officers also found a cell phone that appeared to belong to Ross-Blume, which had photographs of defendant holding an AK-47.
Ross-Blume testified that defendant was driving the Impala and she was in the passenger seat when they passed the CHP officers. Defendant handed her a gun and told her to shoot at the officers, but she refused, so he directed her to change seats with him and drive while he shot at them.
Ross-Blume explained that the Impala got stuck in a ditch, so she and defendant exited the vehicle and ran. Defendant took the AK-47 with him. They slept in the desert and waited for the sun to rise. When daylight broke, they walked in the desert for about five or six hours until they found a house. They got into an unlocked parked car on the property and took a nap. When they woke up, they went into the property, used the bathroom, and drank and ate. Defendant found some guns in the house and brought them into the bedroom, put one under each pillow, and put the AK-47 on the floor.
Defendant and Ross-Blume were woken up by T.C. When T.C. reached for his cell phone, defendant and Ross-Blume pointed guns at him. After T.C. left, defendant and Ross-Blume went to the vehicle outside the house and went back to sleep. Law enforcement arrived later that day and arrested them.
III.
DISCUSSION
A. Substantial Evidence Supports Defendant's Convictions for Attempted Murder
Defendant argues his convictions for attempted murder must be reversed because there was no substantial evidence that he intended to kill the CHP officers. We disagree.
To determine whether there is sufficient evidence to uphold a conviction, we review the entire record to determine whether it discloses reasonable and credible evidence to allow a rational trier of fact to determine guilt beyond a reasonable doubt. (People v. Smith (2005) 37 Cal.4th 733, 738-739.) The conviction must be based on substantial evidence—evidence that is reasonable, credible, and of solid value. (People v. Cravens (2012) 53 Cal.4th 500, 508.) We "review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (People v. Zamudio (2008) 43 Cal.4th 327, 357.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (Ibid.)
The elements of attempted murder are "specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Lee (2003) 31 Cal.4th 613, 623.) Intent usually must be inferred from the circumstances of the attempt. (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) An inference of an intent to kill arises when the defendant purposefully uses a lethal weapon with lethal force against a victim. (People v. Smith, supra, 37 Cal.4th at p. 742.)
Here, substantial evidence supports the jury's finding that defendant acted with the intent to kill. "'The act of firing toward a victim at a close, but not point blank, range "in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill."'" (People v. Smith, supra, 37 Cal.4th at p. 741.) The record shows that defendant shot at the officers with an AK-47 approximately 30 times. This was more than enough for the jury to find that defendant acted with the requisite intent to kill. (See People v. Lashley (1991) 1 Cal.App.4th 938, 945 ["The very act of firing a .22-caliber rifle toward the victim at a range and in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill under the circumstances presented here."]; People v. Vang (2001) 87 Cal.App.4th 554, 563-564 ["The jury drew a reasonable inference, in light of the placement of the shots, the number of shots, and the use of high-powered, wall-piercing weapons, that defendants harbored a specific intent to kill every living being within the residences they shot up."].) We therefore reject defendant's contention that there was insufficient evidence for the jury to convict him of attempted murder.
B. The Trial Court Did Not Abuse its Discretion by Denying Defendant's Mistrial Motion
1. Background
During closing argument, Ross-Blume's counsel argued she was credible because she testified at trial. Counsel stated, "[Ross-Blume] has [an] absolute right to sit there and not get on that stand. And she chose to tell her story. And she's quite credible. Quite credible." Counsel also noted that Ross-Blume's testimony was consistent with what she had told the police, and repeated that "she got on the stand, was very credible, and told her story." Counsel continued to argue Ross-Blume's testimony was credible because "this is her testimony, and we haven't heard any evidence to contradict it," "[s]he chose to tell her story," "she has no reason to lie," and "[y]ou heard her testify on the stand." Counsel did not mention that defendant did not testify.
Defendant moved for a mistrial based on Ross-Blume's counsel's line of argument. In defendant's view, the argument improperly suggested that "because [defendant] didn't testify perhaps [Ross-Blume] had nothing to hide." Ross-Blume's counsel argued it was proper "to mention as much as possible [Ross-Blume's] right to not take the stand, and the fact that she did" because "it goes toward her credibility and trustworthiness, and her reasons why she did take the stand."
The trial court denied the motion. Although the trial court found that Ross-Blume's counsel did not intend to comment on defendant's failure to testify, counsel's argument "indirectly may have impinged on [defendant's] right not to testify." The trial court concluded, however, that any error could be cured by giving jury instruction CALCRIM No. 355, which directs the jury not to consider "for any reason . . . the fact that the defendant did not testify."
2. Applicable Law and Standard of Review
"'"'[A] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.'"'" (People v. Leavel (2012) 203 Cal.App.4th 823, 831.) We review the trial court's denial of defendant's mistrial motion for an abuse of discretion. (Ibid.)
3. Analysis
The trial court did not abuse its discretion in denying defendant's motion for a mistrial based on Ross-Blume's counsel's closing argument. "[I]n a joint trial a defendant's individual right to present a vigorous defense may justify making arguments that could seem to implicate the other defendants' constitutional rights, even though similar comments would be improper had they been made by a prosecutor. For instance, when a particular defendant has chosen to testify and others have not, the testifying defendant is permitted to ' emphasize to the jury that his credibility is strong because he took the stand and submitted to cross-examination.'" (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 388.) This is precisely what Ross-Blume's counsel's argued. He emphasized Ross-Blume was credible because she voluntarily took the stand. "[A] comment by the defense regarding that defendant's own choice to testify properly urges that his or her testimony is worthy of belief because it was freely given and subject to adversarial testing. The jury will not necessarily interpret such a statement by one defendant as calling into question, or even referring to, the guilt or innocence of the other defendants." (Ibid.) Because Ross-Blume's counsel's argument was permissible, the trial court did not err in denying defendant's mistrial motion.
In any event, Ross-Blume's counsel did not mention defendant's failure to testify, so his argument amounted to, at worst, an oblique or indirect comment on defendant's failure to testify, which we conclude was harmless because the evidence of defendant's guilt was overwhelming. (People v. Hardy (1992) 2 Cal.4th 86, 158 ["Thus, the rule permits a codefendant to emphasize to the jury that his credibility is strong because he took the stand and submitted to cross-examination. In addition, if such argument indirectly or obliquely refers to a codefendant's silence, the error is generally found harmless."].) Ross-Blume consistently testified that defendant was driving when the officers began pursuing them, defendant shot the AK-47 rounds at the officers (and defendant offered no evidence to dispute or undermine her testimony), her cell phone recovered at the scene had a photograph of defendant holding an AK-47, and defendant, a convicted felon, had the AK-47 on him when he was arrested after he was found sleeping inside a private residence. And even if Ross-Blume's counsel's argument was improper, any resulting harm was cured by jury instruction CALCRIM No. 355, which directed the jury not to consider defendant's not testifying for any purpose and which we presume the jury followed. (Id. at p. 208; People v. Myles (2012) 53 Cal.4th 1181, 1212.)
C. The Trial Court Did Not Err by Denying Defendant's Motion for a New Trial and Juror Contact Information Without a Hearing
1. Background
Defendant's counsel stated that when speaking with jurors after the trial, one stated, "'[W]e really wanted to hear from your client. We wanted to hear his side of the story.'" When counsel asked the jurors whether they considered defendant's "failure to testify as a basis in their decision, one juror hesitated and said not necessarily, while the three others reaffirmed they 'really wanted to hear from your client.'" Counsel then asked the jurors if would they have found defendant guilty had he testified, "to which the jurors responded, 'not necessarily.'" Defendant argued the jurors' statements showed the jury committed misconduct—by considering defendant's failure to testify in reaching its decision—so an evidentiary hearing or new trial was appropriate. Defendant alternatively requested that the court disclose the jurors' contact information so he could "communicate with jurors for the purpose of developing a motion for new trial."
The trial court denied the motion in its entirety. The trial court reasoned an evidentiary hearing was unnecessary because (1) it was undisputed what the jurors said, (2) defendant's counsel's declaration about the jurors' statements was inadmissible under Evidence Code section 1150, (3) there was no evidence the jurors took defendant's failure to testify into consideration, and (4) there was no good cause to release the jurors' contact information.
a. Denial of evidentiary hearing
"[W]hen a new trial motion in a criminal case is based on allegations of juror misconduct, the trial court may conduct an evidentiary hearing to determine the truth of the allegations." (People v. Hedgecock (1990) 51 Cal.3d 395, 415.) Though a defendant is not entitled to one, "a hearing should be held only when the trial court, in its discretion, concludes that an evidentiary hearing is necessary to resolve material, disputed issues of fact." (Ibid., italics added) The hearing is therefore appropriate "to determine the truth or falsity of allegations of jury misconduct." (Id. at p. 419.) The hearing should not be used as a "'fishing expedition'" to search for possible juror misconduct, but should be held only if the defendant has submitted evidence demonstrating a strong possibility that prejudicial misconduct has occurred. (Ibid.) We review a trial court's decision whether to hold an evidentiary hearing for an abuse of discretion. (Ibid.)
The trial court did not abuse its discretion by declining to hold an evidentiary hearing. As the trial court noted, the People did not dispute the substance of defendant's counsel's account of what the jurors told him after the trial. Because "the truth of the material allegations was not in question, the trial court did not abuse its discretion in denying defendant's motion for a Hedgecock hearing." (People v. Hord (1993) 15 Cal.App.4th 711, 724; accord, People v. Lavender (2014) 60 Cal.4th 679, 693.)
b. Denial of Request for Juror Identifying Information
Under Code of Civil Procedure section 206, "[p]ursuant to [Code of Civil Procedure] [s]ection 237, a defendant or defendant's counsel may, following the recording of a jury's verdict in a criminal proceeding, petition the court for access to personal juror identifying information within the court's records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose. This information consists of jurors' names, addresses, and telephone numbers." (Code Civ. Proc., § 206, subd. (g).)
A petition for the release of juror identifying information must establish good cause. (People v. Wilson (1996) 43 Cal.App.4th 839, 852.) "Good cause, in the context of a petition for disclosure to support a motion for a new trial based on juror misconduct, requires 'a sufficient showing to support a reasonable belief that jury misconduct occurred . . . .' [Citations.] Good cause does not exist where the allegations of jury misconduct are speculative, conclusory, vague, or unsupported. [Citation.]" (People v. Cook (2015) 236 Cal.App.4th 341, 345-346 [Fourth Dist., Div. 2].) The alleged misconduct must be "'of such a character as is likely to have influenced the verdict improperly.'" (People v. Jefflo (1998) 63 Cal.App.4th 1314, 1322.) "[T]he defendant simply has to prove that talking to the jurors is reasonably likely to produce admissible evidence of juror misconduct." (People v. Johnson (2013) 222 Cal.App.4th 486, 493.) A jury commits misconduct by violating a trial court's instruction not to consider a defendant's failure to testify. (People v. Leonard (2007) 40 Cal.4th 1370, 1425.) Such "misconduct gives rise to a presumption of prejudice, which 'may be rebutted . . . by a reviewing court's determination, upon examining the entire record, that there is no substantial likelihood that the complaining party suffered actual harm.' [Citations.]" (Ibid.)
"Discovery of juror names, addresses and telephone numbers is a sensitive issue which involves significant, competing public-policy interests." (People v. Rhodes (1989) 212 Cal.App.3d 541, 548.) Accordingly, "[t]rial courts have broad discretion to manage these competing interests by allowing, limiting, or denying access to jurors' contact information. [Citations.]" (People v. Tuggles (2009) 179 Cal.App.4th 339, 380.) A trial court's denial of a motion for release of juror identifying information will not "'be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
The trial court did not abuse its discretion in denying defendant's request for juror identifying information. As the trial court correctly observed, there was "no statement or indication whatsoever that [the jurors] even took [defendant]'s nontestimony into consideration or talked about it during deliberations." That some jurors stated they wanted to hear the defendant testify, without more, does not constitute prejudicial juror misconduct. (See People v. Loker (2008) 44 Cal.4th 691, 749 ["It is natural for jurors to wonder about a defendant's absence from the witness stand."]; People v. Avila (2009) 46 Cal.4th 680, 727 ["'Transitory comments of wonderment and curiosity' about a defendant's failure to testify, although technically misconduct, 'are normally innocuous, particularly when a comment stands alone without any further discussion.'"].)
Defendant emphasizes that one juror stated the jury did "not necessarily" consider defendant's failure to testify in reaching their decision. Although this statement could suggest the jury impermissibly considered the fact that defendant did not testify in reaching its decision, there is nothing in the record that expounds on the juror's statement or reasoning.
People v. Munoz (2019) 31 Cal.App.5th 143 (Munoz) is instructive. There, after the jury convicted the defendant of second degree murder for killing someone while driving drunk, the trial court received two letters from juror two. (Id. at p. 165.) In one of them, juror two stated, "'Some of us did entertain reasonable doubt, but most found [the defendant] guilty more because of their reaction to the brutal death of [the victim] and not, necessarily, the details of the Law! [My opinion']." (Id. at p. 166.) The trial court found this statement to be "'[t]he closest thing to misconduct,' but noted Juror Two's statement that it was [j]uror [t]wo's 'opinion,' with no specific details in support." (Id. at p. 167.) The appellate court concluded that "[j]uror [t]wo's opinion alone, with no additional evidence, is 'speculative' and 'unsupported,'" and therefore held the trial court did not abuse its discretion in denying defendant's request for juror contact information based on juror two's letters to the court. (Ibid., italics added.)
On the other hand, in People v. Johnson, supra, 222 Cal.App.4th 486, "there was admissible evidence that the jurors considered defendant's failure to testify, which constituted misconduct." (Id. at p. 495.) After trial, defense counsel spoke with several jurors, one of whom said, "'at least half of the jurors . . . raised the question if [defendant] is innocent why he didn't take the stand to defend himself.'" (Ibid.) The trial court denied the defendant's motion for disclosure of juror contact information under Code of Civil Procedure section 237 because it did "not seem to have realized that the declarations showed that the jurors had improperly considered defendant's failure to testify." (Ibid.) The appellate court therefore reversed the trial court's denial of the defendant's motion and remanded because if the juror's statement was true, "defendant was entitled to disclosure of the jurors' identifying information." (Id. at p. 499.)
This case is more similar to Munoz than Johnson. Here, there is no evidence the juror who made the "not necessarily" comment considered defendant's failure to testify in reaching his or her decision. Nor is there any evidence that other jurors did so. The juror did not tell counsel that the jury discussed defendant's failure to testify or considered it as evidence of guilt. In other words, the juror's statement provides no facts or evidence to support defendant's contention that the jury considered his failure to testify in reaching its verdict.
As it stands, the juror's "not necessarily" statement is, at best, his or her speculative and unsupported opinion as to how the jury reached its verdict like Juror Two's statement in Munoz. Accordingly, we conclude the juror's vague, unexplained "not necessarily" statement was insufficient to establish good cause for the disclosure of juror contact information. (Munoz, supra, 31 Cal.App.5th at p. 163; People v. Cook, supra, 236 Cal.App.4th at pp. 345-346.)
Further, the jurors were instructed with CALCRIM No. 355, which explained that they were not to consider defendant's failure to testify for any reason, and there is no evidence that they ignored this instruction. Indeed, the jury found defendant not guilty on count 8 and found the allegations that count 1 and 2 were premeditated were not true. If the jury had based its decision on defendant's failure to testify, it is more likely that it would have convicted defendant of all counts and would have found the premeditation allegations true. (Cf. United States v. Young (1985) 470 U.S. 1, 18, fn. 15 [finding no prejudicial error based partially on the fact that the jury acquitted defendant on most serious charge]; accord, United States v. Barragan (9th Cir. 2017) 871 F.3d 689, 709 ["[T]he jury acquitted [the defendant] of one of the two charges against him, indicating that they reviewed the evidence objectively."].) On this record, we conclude the trial court did not abuse its discretion in finding that defendant had not made a showing of good cause and denying his motion for the release of juror identifying information. (See People v. Granish (1996) 41 Cal.App.4th 1117, 1131 "[A showing] of jury misconduct [is] the predicate for obtaining the jurors' names and addresses."].)
c. Denial of motion for new trial
"'When a party seeks a new trial based upon jury misconduct, a court must undertake a three-step inquiry. The court must first determine whether the affidavits supporting the motion are admissible. [Citation.] If the evidence is admissible, the court must then consider whether the facts establish misconduct. [Citation.] Finally, assuming misconduct, the court must determine whether the misconduct was prejudicial.'" (People v. Bryant (2011) 191 Cal.App.4th 1457, 1467.) We review the trial court's ruling on a motion for a new trial for an abuse of discretion. (Ibid.)
The only evidence defendant proffered was his counsel's declaration outlining his discussion with jurors and what they said to him. In other words, the only evidence defendant provided was the jurors' hearsay statements. "Upon seeking a new trial based on jury misconduct, the moving party must present admissible evidence that misconduct occurred." (People v. Von Villas (1992) 10 Cal.App.4th 201, 251.) In particular, "properly executed juror affidavits are required to establish jury misconduct." (People v. Bryant, supra, 191 Cal.App.4th at p. 1468.) For that reason, "[a] trial court does not abuse its discretion in declining to hold an evidentiary hearing or denying a motion for a new trial when the only basis to grant such a hearing or trial is, as in this case, a defense attorney's hearsay assertions." (People v. Mora and Rangel (2018) 5 Cal.5th 442, 518; accord, People v. Hayes (1999) 21 Cal.4th 1211, 1256 [holding trial court properly denied mistrial motion based on alleged juror misconduct where only evidence was counsel's statement regarding juror's out-of-court comments when juror did not submit declaration].) We therefore conclude the trial court did not abuse its discretion by denying defendant's motion for a new trial based on juror misconduct because defendant failed to support the motion with any evidence beyond counsel's inadmissible hearsay statements.
Although defendant implicitly concedes in his reply brief that the jurors' hearsay statements were insufficient to support his mistrial motion, he argues—without citing any authority—that the motion should have been granted due to Ross-Blume's counsel's allegedly improper argument. We reject defendant's contention because, as explained above, counsel's argument was proper.
D. The Trial Court Properly Instructed the Jury on Evading a Peace Officer
As part of its instructions related to count 6, evading an officer (Veh. Code, § 2800.2, subd. (a)), the trial court instructed the jury with CALCRIM No. 2181, which provides in relevant part: "'Driving with willful or wanton disregard for the safety of persons or property, includes, but is not limited to, causing damage to property while driving, or committing three or more violations that are each assigned a traffic violation point.'" Defendant argues the trial court erred in giving the jury this instruction because it imposed a "mandatory presumption" that "relieved the prosecution of its burden of proving an essential element of the offense—'willful and wanton disregard for the safety of persons or property.'" We disagree.
At the outset, we agree with the People that defendant forfeited the argument by failing to object to the instruction in the trial court—an argument defendant does not dispute in his reply brief. (People v. Covarrubias (2016) 1 Cal.5th 838, 906, 911.) Regardless, as defendant acknowledges, every California appellate court to address defendant's argument has rejected it. (People v. Taylor (2018) 19 Cal.App.5th 1195, 1204; People v. Mutuma (2006) 144 Cal.App.4th 635, 641; People v. Laughlin (2006) 137 Cal.App.4th 1020, 1027-1028; People v. Williams (2005) 130 Cal.App.4th 1440, 1446; People v. Pinkston (2003) 112 Cal.App.4th 387, 392-393.) We find no compelling reason to "chart a different course" from these persuasively reasoned decisions, as defendant urges. We therefore conclude the trial court did not err in instructing the jury with CALCRIM No. 2181.
E. The Trial Court Did Not Improperly Instruct the Jury on Flight
The trial court instructed the jury with CALCRIM No. 372, which provides in relevant part: "If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he or she was aware of his or her guilt. If you conclude that the defendant fled it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself." Defendant contends the trial court erred in doing so "because flight or driving away in the car is an element of the felony evading offense," so "the giving of the flight instruction was tantamount to an instruction consciousness of guilt could be inferred by the mere fact of [defendant's] driving from the police without proof of any other elements." We disagree.
First, we agree with the People that defendant forfeited the issue by failing to object to the instruction in the trial court. (People v. Covarrubias, supra, 1 Cal.5th at pp. 906, 911.) Second, the instruction did not "undermine the presumption of innocence." "'In general, a flight instruction "is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt." [Citations.]'" (People v. Leon (2015) 61 Cal.4th 569, 607.) This is true even when the defendant is charged with an offense that includes flight as an element. For instance, in Leon, the California Supreme Court held the trial court properly instructed the jury on flight where the defendant was charged with evading a police officer with willful disregard for safety, which includes a flight element, and robbery murder, which did not include a flight element. (Ibid.) The court reasoned that the defendant's flight was relevant to his consciousness of guilt for the robbery and murder charges. (Ibid.)
Leon controls here. Defendant was charged not only with evading a peace officer, but also attempted murder. His flight from the officers was relevant to his consciousness of guilt for the attempted murder charges. The trial court therefore did not err in giving CALCRIM No. 372. (People v. Leon, supra, 61 Cal.4th at p. 607; People v. Henry (1937) 23 Cal.App.2d 155, 165 [jury instruction on flight proper when defendant tried for two offenses, only one of which included flight as an element, because defendant's flight was relevant to defendant's guilt as to other offense].)
Because we find no error in the trial court's jury instructions, we reject defendant's argument that his counsel was ineffective for failing to object to the instructions.
F. Fines and assessments
The trial court imposed a $300 restitution fine (§ 1202.4) and a $70 assessment for each count (§ 1465.8; Gov. Code, § 70373), for a total of $560 in assessments. Relying on People v. Dueñas, supra, 30 Cal.App.5th 1157 (Dueñas), defendant asserts the trial court violated his due process rights by imposing the fine and assessments without determining whether he had an ability to pay them. Because the trial court did not determine whether defendant could pay the $860 in fees, "[u]nder Dueñas, this was error, and we must remand for an ability to pay hearing unless the error was harmless." (People v. Taylor (2019) 43 Cal.App.5th 390, 401 [Fourth Dist., Div. Two].) The People argue defendant forfeited his Dueñas argument and, in any event, the trial court constitutionally imposed the fine and assessments without assessing defendant's ability to pay them. We need not address these contentions because we agree with the People that the error, if any, was harmless.
According to the probation report, defendant was 36 years old and in good health at the time of his sentencing. He owned two vehicles, had no debt, and did not owe child support. At the time of his arrest, he had owned his own "Handyman Services" business, which performed "[m]ajor [h]ome [r]emodeling," for nine years. However, defendant had no income at the time of sentencing, and the court found that he could not pay the fees associated with his counsel and a presentence investigation.
"'[E]very able-bodied' prisoner is required to work. (§ 2700; Cal. Code Regs., tit. 15, § 3040, subd. (a).) A prisoner's assignment to a paid position 'is a privilege' that depends on 'available funding, job performance, seniority and conduct.'" (Cal. Code Regs., tit. 15, § 3040, subd. (k); accord, People v. Rodriguez (2019) 34 Cal.App.5th 641, 649.) Wages in prison range from $12 to $56 per month, depending on the job and skill level involved. (Cal. Code Regs., tit. 15, § 3041.2, subd. (a)(1).) Fifty percent of [defendant's] wages and trust account deposits will be deducted to pay any outstanding restitution fine, plus another 5 percent for the administrative costs of this deduction. (§ 2085.5, subds. (a), (e); Cal. Code Regs., tit. 15, § 3097, subd. (f).)." (People v. Taylor, supra, 43 Cal.App.5th at p. 401.)
Given that the restitution fine is $300 and the assessments are $560, defendant "will have sufficient time to earn these amounts during his sentence, even assuming [he] earns nothing more than the minimum." (People v. Jones (2019) 36 Cal.App.5th 1028, 1035.) At $12 a month, the minimum defendant can earn in prison, he will have earned $860 in six years—with 23 years of his sentence remaining—and he will be 65 years old when released. We therefore conclude defendant will be able to pay the $860 in fines and assessments. (Ibid.; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [court may consider defendant's future earnings in prison and after release in determining defendant's present ability to pay]; People v. Ramirez (1995) 39 Cal.App.4th 1369, 1377 [a trial court may consider the defendant's future ability to pay, including his ability to earn wages while in prison]; People v. DeFrance (2008) 167 Cal.App.4th 486, 505 [defendant sentenced to prison did not show absolute inability to pay $10,000 restitution fine even though prison wages would make it difficult for him to pay the fine, it would take a very long time, and the fine might never be paid].) On this record, any Dueñas error was harmless beyond a reasonable doubt. (People v. Jones, supra, at p. 1035.)
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: FIELDS
J. RAPHAEL
J.