Opinion
C085051
05-04-2020
THE PEOPLE, Plaintiff and Respondent, v. JOHN ANTHONY BUNCH, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F06536)
On September 28, 2015, Walter Gibson went to a Natomas shopping center parking lot with two pounds of marijuana to sell. Defendant John Anthony Bunch traveled from the Bay Area with Jason Alexander Brown to meet Gibson. Defendant and Brown attempted to rob Gibson at gunpoint. In the ensuing gunfight, Gibson was fatally shot, and defendant sustained a gunshot wound to his leg. Cellphone records tracked defendant's movement from the Bay Area to the shopping center and then to the hospital where he was treated, surveillance video at the scene of the murder showed defendant with a leg wound, and bullet fragments recovered from defendant's leg were consistent with ammunition from Gibson's gun. When contacted by the police in the hospital, defendant stated he had "no idea" how he had been shot.
Codefendant Brown died before trial.
A jury convicted defendant of murder during the special circumstance of an attempted robbery (Pen. Code, §§ 187, subd. (a), 664/190.2, subd. (a)(17)), and possession of a firearm by a felon (§ 29800, subd. (a)(1)). In a bifurcated proceeding, the trial court found true the allegation that defendant had a prior serious felony conviction. (§ 667, subds. (b)-(i) & 1170.12.) The trial court sentenced defendant to serve life in prison without parole for the murder and a two-year stayed term for the firearm possession. Among other fees and fines, the trial court imposed a $3,000 parole revocation fine and a $80 court operations assessment.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends (1) the evidence was insufficient to show an attempted robbery of Gibson, (2) for lack of sufficient evidence of attempted robbery, the felony-murder special circumstance was not proven, (3) for lack of evidence that defendant "was present at the homicide," the murder conviction must be reversed, (4) the evidence was insufficient to prove defendant possessed a firearm, (5) the trial court abused its discretion by admitting evidence that one of Gibson's marijuana customers told him that he had been recently robbed at gunpoint by two men from the Bay Area, (6) the trial court should have granted defendant's Marsden (People v.Marsden (1970) 2 Cal.3d 118) motion due to a failure of defendant's trial attorney "to challenge a statement obtained by exploiting apparent post-operative incapacitation," (7) the prosecutor committed misconduct during closing arguments by misrepresenting the evidence to the jury, (8) the California Supreme Court erred in deciding People v. Abilez (2007) 41 Cal.4th 472 (Abilez), (9) the trial court erred in imposing a parole revocation fine, and (10) the trial court imposed fees and fines without first determining ability to pay as required under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
We conclude substantial evidence shows defendant participated in the attempted robbery and murder of Gibson. Substantial evidence also establishes defendant's constructive possession of a firearm during the attempted burglary. The trial court did not err in allowing evidence relating to Gibson's state of mind that showed why Gibson carried a gun on the evening of his murder. Even if defendant's trial attorney had a duty to object to the admission of defendant's statements to police in the hospital, the lack of objection was harmless in light of other evidence in the record. The prosecutor did not engage in misconduct during closing arguments but instead drew reasonable inferences from the evidence introduced at trial. We reject defendant's challenge to the California Supreme Court's decision in Abilez, supra, 41 Cal.4th 472. We accept the concession of the Attorney General on the issue of the parole revocation fine and strike the fine. As to defendant's challenge to fines and fees, we conclude Dueñas, supra, 30 Cal.App.5th 1157 was wrongly decided and therefore reject defendant's claim on that basis. Accordingly, we affirm defendant's convictions and sentence but order the parole revocation fine stricken.
FACTUAL AND PROCEDURAL HISTORY
Prosecution Evidence
On September 28, 2015, Gibson worked as a maintenance supervisor at a winery. On the side, Gibson grew medical marijuana plants. Before 5:30 p.m. that day, a cellphone that was assigned the number (510) 355-7414 (defendant's phone) connected with cell reception towers in Oakland. Between 4:30 p.m. and 5:30 p.m., another cellphone assigned the number (510) 640-3311 (the 3311 phone) connected with the same cell tower in Oakland as defendant's phone.
Evidence at trial connected defendant with the cellphone assigned the number (510) 355-7414. The receipt for the purchase of this cellphone -- a white iPhone -- from MetroPCS was found in defendant's wallet along with his social security card, a photo identification card, and a business card with defendant's name on it. The police recovered the wallet from a silver BMW parked outside the emergency room where defendant sought treatment for a gunshot wound to his leg. Defendant's cellphone was also recovered from the BMW.
Over the course of the day on September 28, 2015, defendant's and the 3311 phones traveled simultaneously from Oakland to San Francisco to Vallejo to Davis to Sacramento.
That afternoon, Gibson met with a marijuana-sales customer, W.C., who related he had been robbed of his marijuana in July 2015. W.C. described the robbers as two male Black adults with dreadlocks who drove a blue Mercedes. The robbers took W.C.'s marijuana at gunpoint at their meeting location on Hurley and Fulton Avenues in Sacramento. W.C. warned Gibson "to be careful." Regarding W.C.'s testimony on this point, the trial court informed the jury: " 'The parties agree and stipulate that with respect to the earlier robbery suffered by William W.C. a few months prior to [Gibson]'s death' -- that is referring to the Hurley location incident -- '[defendant] was not in Sacramento at the time of the incident and was not one of the two suspects.' "
On the evening of September 28, 2015, Gibson went to the Natomas Walmart parking lot to conduct a marijuana sale. Gibson took approximately two pounds of marijuana with him in a five-gallon bucket. Gibson had listed the marijuana for sale in an online ad for $100 per ounce.
Around 7:00 p.m., Gibson called his wife from a fast food restaurant and told her he would be home soon.
Video taken at the Carquinez Bridge tollbooth appeared to show defendant in the passenger seat of a charcoal gray BMW with a red racing stripe (the red racing stripe BMW) driving toward Sacramento at 7:30 p.m. Defendant was wearing white pants. Surveillance video would later capture images of defendant wearing white pants after sustaining a gunshot wound to the leg.
This case involves two BMW sedans. The evidence showed the red racing stripe BMW was driven to Sacramento while occupied by defendant. The second BMW, a silver model, would later be found outside San Francisco General Hospital where defendant was admitted to the emergency room.
At 8:30 p.m., T.G. was outside a PetSmart store on Truxel Avenue in Natomas. She saw two cars parked with the driver-side windows facing toward each other. One of the cars belonged to Gibson, and the other was a dark color car. T.G. heard someone yell, "No. No. No. What's this? Hell no. Fuck this shit. Nope. This isn't happening." The argument was between two male voices. When asked about the argument, T.G. testified: "Just a lot of angry, you know -- you really want my opinion? It sounded like a deal gone bad." T.G. then heard, "pop-pop-pop." She saw a flash come from the driver's side of the dark color car. She saw a male in his early 20s with dark, long hair come running out of the passenger side of one of the vehicles and into the garden section of a Home Depot. This male appeared to stumble or limp. He looked over his shoulder and said, "Oh shit."
At that time, A.J. was working in the same shopping center parking lot as a cart collector for Walmart. He saw two cars parked next to each other in close proximity. One was a white Scion with the driver's side door open and the other was possibly a gray Mercedes. A man was standing next to the Scion. A dark-skinned man was standing next to the passenger door of the other vehicle. A.J. observed this dark-skinned man "reaching into the passenger door of the white car." The bucket containing marijuana was on the floor next to the front passenger seat in Gibson's Scion. The person next to the Scion "ran about five or eight feet." A.J. then saw that another "individual raised his hands up in front of him, as if in a shooting position." Although A.J. could not see anything in the hands of the man from his distance, "it was at that point in time that [A.J.] hear[d] gunshots." A.J. also saw a flash. When he heard gunshots, A.J. ducked behind a car. He heard the other man who was standing next to the Scion yell, "Help." After the gunfire, he saw a car "peel out" and leave.
D.N. was in the same parking lot in front of the Home Depot at 8:30 that night. She heard shots. Shortly thereafter she saw a man running toward a vehicle in front of the Home Depot store. The man who ran had a limp that "looked like it was painful." D.N. assumed he was bleeding. The man jumped into a dark color four-door sedan.
P.S. was also in that shopping center parking lot at 8:30 p.m. His girlfriend was reversing their car when he heard gunshots. P.S. "go[es] shooting a fair amount" and immediately recognized the sounds as gunshots. He looked in the direction of the shooting and saw "one individual trying to fire a gun at another individual." There was a ehicle between them. P.S. thought he might have seen someone get shot three times and fall backward. P.S. also saw someone else outside the white car who was shooting.
Gibson died of gunshot wounds caused by three to six bullets -- the exact number was difficult to determine because bullets could have exited and reentered the body. Gibson died at the scene. His gun was found near his body.
Telephone records showed that shortly before the shooting, the 3311 phone contacted Gibson's cell phone. After Gibson was shot, defendant's cellphone and the 3311 phone traveled in tandem back to Oakland.
Defendant's cellphone connected with three cellphone towers in San Francisco shortly after 10:00 p.m. At 10:46 p.m., defendant's cellphone connected with a tower near San Francisco General Hospital.
The parties stipulated that: • San Francisco Police Department Officer Jennifer Foxworth was dispatched to San Francisco General Hospital at 10:55 p.m. • Foxworth obtained gunshot residue from defendant's hands. • The silver BMW was parked near the emergency room entrance. • The following were found inside the silver BMW: a wallet containing documents in defendant's name, a white iPhone, a live .9 millimeter round inside the front passenger door compartment, a live .9 millimeter round underneath the gas pedal.
Testimony also established the police found a locked BLU cellphone in the silver BMW.
Sacramento County Police Department Detective Jason Kirtlan interviewed defendant in the recovery area of the hospital at noon on September 29, 2015. Defendant had gunshot wounds to his right arm and left knee. Defendant was quite groggy at the time, and the detective offered to come back later. However, defendant agreed to talk. Initially, defendant said "that the injury he had was from being shot in San Francisco." Then defendant "said he wasn't sure." Clothes collected from defendant on his admission to the hospital were a white shirt and black shorts, but no white pants. Bullet fragments removed from defendant's body during surgery were consistent with bullets test-fired from Gibson's gun. Defendant's gunshot wound to his leg was consistent with the blood stain shown on the perpetrator's leg in surveillance video taken from the scene of the shooting.
On October 25, 2015, a police officer saw the red racing stripe BMW parked behind a residence at 963 Center Street, Apartment A, in Oakland. A warrant was obtained, and the vehicle was searched. Several bullets were observed to have hit the vehicle. Bullet fragments retrieved from the BMW were consistent with those fired from Gibson's gun. Partial DNA profiles from swabs taken of what appeared to be blood found in the front passenger area of the BMW were "consistent with the genotypes at all the different markers" of defendant. The red racing stripe BMW also had numerous pieces of paper in it with Brown's name on them.
DISCUSSION
I
Sufficiency of the Evidence for Felony Murder and Possession of a Firearm
Defendant argues his convictions are unsupported by sufficient evidence. Specifically, he argues the evidence was insufficient to prove he attempted to rob Gibson, that he was present at the murder scene or that he possessed a firearm. On this record, the contentions are devoid of merit.
A.
Substantial Evidence Standard of Review
Under the substantial evidence standard of review, we view the record in the light most favorable to the verdict. (People v. Smith (2005) 37 Cal.4th 733, 738-739.) "In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one. ' "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." '
" ' "Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." ' " (People v. Smith, supra, at pp. 728-739, quoting People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
B.
Sufficiency of the Evidence for Attempted Robbery
As the California Supreme Court has explained, "An attempted robbery requires a specific intent to commit robbery and a direct, ineffectual act (beyond mere preparation) toward its commission. ([People v.] Dillon [(1983)] 34 Cal.3d [441,] 455-456; People v. Vizcarra (1980) 110 Cal.App.3d 858, 861.) Under general attempt principles, commission of an element of the crime is not necessary. (See ante, at [p. 693].) As such, neither a completed theft (People v. Bonner (2000) 80 Cal.App.4th 759, 764) nor a completed assault (see Vizcarra, supra, 110 Cal.App.3d at pp. 862-863), is required for attempted robbery." (People v. Medina (2007) 41 Cal.4th 685, 694-695 (Medina).)
Here, defendant argues the evidence showed "[n]o eyewitness reported hearing words indicating a robbery or attempted robbery occurred." And defendant points out that Gibson's marijuana and $1,200 in his wallet were not taken. We reject the argument.
Gibson told his wife he was going to the shopping center to sell marijuana. He took two pounds of marijuana with him. At the shopping center, he met with defendant and Brown. A loud and angry exchange ensued, and defendant was seen by an eyewitness reaching into the passenger side of Gibson's vehicle -- right where Gibson had the marijuana. The reasonable inference is that defendant and Brown attempted to rob Gibson of his marijuana at gunpoint. T.G.'s testimony confirms this inference in that she said it "sounded like a deal gone bad." Defendant cites no authority in support of the proposition that evidence of the exact language employed during a robbery is required for conviction. In any event, we reject the proposition because robbery may be committed without the exchange of any words. (See, e.g., People v. Burns (2009) 172 Cal.App.4th 1251, 1255, 1259 [affirming robbery conviction where purse was taken with force but without any words used by the defendant in committing the offense].)
The fact defendant and Brown did not get away with Gibson's marijuana or cash does not render the evidence insufficient for an attempted robbery. A direct but ineffectual act of the theft suffices for an attempted robbery conviction. (Medina, supra, 41 Cal.4th at pp. 694-695.) Defendant's reaching into Gibson's vehicle toward the bucket of marijuana constitutes a direct but ineffectual act of attempted robbery. That defendant left the marijuana and cash behind when the shooting started does not negate the attempted robbery. (Ibid.)
C.
Sufficiency of the Evidence for Special Circumstance Felony Murder
Defendant next advances a related claim. He argues that the lack of substantial evidence in support of the attempted robbery requires reversal of the special circumstance felony murder because the murder conviction was based on the commission of the murder during the attempted robbery. Having rejected defendant's challenge to the sufficiency of the evidence of attempted robbery, we also reject this argument in light of the substantial evidence of the attempted robbery.
D.
Murder
Defendant next argues, "[t]he evidence does not support a finding that [he] was the killer." In support of this argument, defendant points out there was no evidence he possessed a gun and his clothes at the hospital did not match those in the surveillance tape at the murder scene. We are not persuaded by the argument.
A conviction for felony murder may be supported by proof of an attempt to commit a felony that is inherently dangerous to human life. (People v. Dillon (1983) 34 Cal.3d 441, 453.) In Dillon, the high court held that attempted robbery constitutes a felony that is inherently dangerous to human life and that supports a felony murder conviction. (Id. at p. 455.) The felony murder in Dillon involved an attempt by the defendant and his companions to rob a marijuana farm. (Id. at p. 455.) The Supreme Court held that the defendants in that case "must have known they would probably be required to use force to reach their goal" because they armed and disguised themselves, made their way past "no trespassing" signs, and carried "means of forcibly subduing any opposition." (Id. at p. 456.)
A person may be convicted of felony murder even without committing the fatal act him or herself because "a person who aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts." (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) "Aider-abettor liability exists when a person who does not directly commit a crime assists the direct perpetrator by aid or encouragement, with knowledge of the perpetrator's criminal intent and with the intent to help him [or her] carry out the offense. (People v. Beeman (1984) 35 Cal.3d 547, 560-561.) '[W]hile mere presence at the scene of an offense is not sufficient in itself to sustain a conviction, it is a circumstance which will tend to support a finding that an accused was a principal. [Citations.]' (People v. Laster (1971) 18 Cal.App.3d 381, 388.) ' "[C]ompanionship, and conduct before and after the offense" ' are also relevant to determining whether a defendant aided and abetted a crime." (People v. Miranda (2011) 192 Cal.App.4th 398, 407.)
As in Dillon, supra, 34 Cal.3d 441, the evidence shows defendant and Brown armed themselves and acted in concert in attempting to steal marijuana. (Cf. id. at pp. 453-455.) Defendant and Brown traveled from Oakland to Sacramento together in the same vehicle. They brought a gun along to facilitate the robbery. Defendant was the one who attempted the theft by reaching into Gibson's vehicle where the marijuana was located. At the same time, Brown pointed the gun at Gibson. After the murder, defendant and Brown got back into the same car and returned to Oakland together. Substantial evidence showed defendant to be acting in concert to accomplish the attempted robbery that resulted in Gibson's death.
We separately address defendant's contention he did not possess a firearm in part I E., below. --------
Defendant's assertion that the evidence was insufficient to place him at the scene of the murder is refuted by the record. Defendant's cellphone traveled from the Bay Area to the scene of the attempted robbery/murder. Surveillance cameras captured images of defendant running through the parking lot after the shooting while wearing the same white pants he wore when crossing the Carquinez Bridge on the way to Sacramento. The surveillance footage also showed defendant with a wound to his leg that matched the gunshot wound for which he was treated at the hospital. His movement from the scene of the murder to the hospital was tracked by his cellphone as it traveled from Sacramento to the cellphone tower nearest San Francisco General Hospital. Blood found inside the red racing stripe BMW was consistent with defendant's blood.
In short, the evidence established defendant traveled to Sacramento with Brown to rob Gibson at gunpoint. Defendant attempted to take the marijuana while Brown pointed a gun. The record shows they acted in concert from the time they started traveling to Sacramento from Oakland to the time when they returned to Oakland. Defendant acted with the necessary mental state for the attempted robbery and is therefore guilty of Gibson's murder.
II
Substantial Evidence of Possession of Firearm
Defendant next argues the evidence was insufficient to prove he possessed a gun in the commission of the attempted robbery and murder. Defendant largely premises the argument on the fact no eyewitness saw him holding a gun. We reject the argument.
A.
Section 29800Section 29800, subdivision (a)(1), provides that "[a]ny person who has been convicted of . . . a felony . . . and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony." Constructive possession of a firearm suffices under section 29800. (In re Daniel G. (2004) 120 Cal.App.4th 824, 831.) "Constructive possession means the object is not in the defendant's physical possession, but the defendant knowingly exercises control or the right to control the object. (People v. Pena (1999) 74 Cal.App.4th 1078, 1083-1084.) Possession of a weapon may be proven circumstantially, and possession for even a limited time and purpose may be sufficient." (Ibid.) As defendant acknowledges, "Firearm-possession may be proved by evidence of joint dominion and control over a firearm." (People v. Nieto (1966) 247 Cal.App.2d 364, 366-367.)
B.
Defendant's Constructive Possession of Firearm
The evidence supported defendant's conviction of being a felon in possession of a firearm based on a theory of constructive possession. The parties stipulated at trial that defendant was a convicted felon at the time of Gibson's murder. And testimony at trial established defendant's constructive possession of the firearm that killed Gibson.
Forensic evidence showed Gibson died of multiple gunshot wounds he received at the scene of his meeting with defendant and Brown. A.J. - who was only 40 feet away - saw Brown making a pointing motion at Gibson immediately before he saw flashes and heard gunshots. Brown shot Gibson at almost exactly the same time as defendant attempted to steal Gibson's marijuana. As we explained in part I D., above, defendant and Brown acted in concert in attempting to rob Gibson at gunpoint. The evidence also established Gibson's fatal wounds were caused by the same type of bullet found in the red racing stripe BMW in which defendant was riding on the way to the murder scene. The reasonable inference is that defendant knew they had a firearm in the vehicle when he and Brown drove together to Sacramento. Moreover, it is also a reasonable inference defendant and Brown coordinated their attempt to steal Gibson's marijuana by having Brown point the gun at Gibson while defendant was responsible for taking the marijuana. In carrying out the armed robbery attempt on Gibson, defendant had constructive possession of the firearm.
Defendant's constructive possession of the firearm renders irrelevant his assertion that no one saw him holding a gun. He constructively possessed the firearm when acting in a coordinated robbery attempt on Gibson with Brown. (People v. Nieto, supra, 247 Cal.App.2d at pp. 366-367.) So too, the fact the murder weapon was never found does not undermine the evidence showing Brown killed Gibson by firing multiple times at Gibson. Defendant's conviction of section 29800 is supported by substantial evidence.
III
Evidence of Prior Robbery of W.C.
Defendant argues the trial court erred reversibly in allowing the prosecutor to introduce evidence that W.C. had been robbed at gunpoint two months prior to Gibson's death by two men from the Bay Area. We are not persuaded.
A.
Evidence at Trial
The prosecution filed an in limine motion to introduce evidence under Evidence Code section 1101, subdivision (b), to show Brown was connected with five robberies other than the attempted robbery in this case. The evidence was offered to show defendant and Brown intended to rob Gibson because all of the other robberies involved marijuana thefts at gunpoint in public places and involving cellphones linked to Brown. Defendant's trial attorney objected that the prior crimes evidence could not prove defendant was involved in the charged attempted robbery/murder and that the prior crimes evidence was unduly prejudicial. The trial court allowed the prosecution to elicit W.C.'s testimony he told Gibson that W.C. had been robbed by someone who offered to buy marijuana from him. The trial court further allowed W.C. to testify that the same perpetrators contacted him to set up a second marijuana sale at the Home Depot shopping center parking lot in Natomas. This was the same parking lot in which Gibson was fatally shot.
Before W.C. testified, the trial court explained to the jury that it would hear about a robbery in which W.C. was the victim. As to this testimony, the trial court instructed the jury: "This evidence may be considered by you solely for the effect this information would have had on [Gibson]'s state of mind. You may not consider this evidence for any other purpose. You may not, for example, consider this as evidence that the Defendant and/or Jason Brown had any involvement in the robbery of [W.C.]. [¶] By permitting this evidence, I am not making any findings about the effect this information would have had on [Gibson]'s state of mind. The weight and significance of the evidence on [Gibson]'s state of mind is solely within your purview, as the triers of fact in this case."
W.C. testified that on September 28, 2015, he related to Gibson that he had been robbed at gunpoint of marijuana a few months earlier by men from the Bay Area. W.C. warned Gibson to be careful.
Defendant's trial attorney moved for a mistrial on grounds W.C.'s testimony exceeded the scope of what the trial court had allowed in ruling on the in limine motion. Defense counsel stated defendant was in custody when W.C. had been robbed in July 2015. Defense counsel suggested that a stipulation "would cure the violation." The trial court denied the motion for a mistrial. In doing so, the trial court informed the jury that the parties stipulated: defendant did not participate in the robbery of W.C. and was not in Sacramento at the time of W.C.'s robbery.
During closing argument, the prosecutor referred to W.C.'s testimony to explain why Gibson had uncharacteristically carried a gun with him on September 28, 2015. The prosecutor also cautioned jurors, "Now, you, as triers of fact, have to be careful in how you consider that evidence. There's a stipulation in place to make it quite clear that the Defendant was not one of the people who ripped off [W.C.]. He was not in Sacramento on that particular occasion."
B.
State of Mind Evidence
Evidence Code section 1250, subdivision (a)(2), provides that "evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when . . . [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant." A trial court has broad discretion in determining whether state of mind evidence is admissible. "This is particularly true where, as here, underlying that determination are questions of relevancy, the state of mind exception to the hearsay rule and undue prejudice. (People v. Rowland (1992) 4 Cal.4th 238, 264.) The lower court's determination will be reversed only upon a finding of abuse." (People v. Ortiz (1995) 38 Cal.App.4th 377, 386.)
Here, the prosecution introduced W.C.'s testimony to show why Gibson took a gun with him to the marijuana sale on the evening of September 28, 2015. Gibson's possession of a gun was relevant because his decision to carry a weapon showed the perilous nature of illicit marijuana transactions. As in Dillon, supra, evidence indicating that use of a weapon in the robbery of marijuana showed the undertaking to be inherently dangerous to human life. (34 Cal.3d at p. 456.) The trial court did not abuse its discretion in admitting W.C.'s testimony for the limited purpose of showing Gibson's state of mind.
Defendant argues W.C.'s testimony "served to suggest predisposition to commit robbery to support an inference, unsupported by percipient witnesses, that robbery or attempted robbery accompanied the homicide." We disagree. The evidence was admitted only after the trial court admonished the jury that W.C.'s testimony could be considered only for the effect it had on Gibson's state of mind. The parties also stipulated that defendant was not in Sacramento at the time W.C. was robbed. The prosecutor highlighted this stipulation during closing argument. We presume the jury heeded these multiple admonishments about the limited use it could make of W.C.'s testimony. (People v. Forrest (2017) 7 Cal.App.5th 1074, 1083.) In his reply brief, defendant asserts the limiting instruction was ineffective, but without analysis or citation to any authority in support. Defendant's undeveloped and unsupported assertion does not meet appellant's burden to demonstrate error. (In re S.C. (2006) 138 Cal.App.4th 396, 408.)
IV
Marsden Motion
Defendant argues the trial court committed reversible error by denying his Marsden motion "challenge to [defendant's trial] counsel's failure to challenge a statement obtained by exploiting apparent post-operative incapacitation."
This argument invites multiple layers of analysis. The trial court erred in denying the Marsden motion if defendant showed he received ineffective assistance of counsel. (People v. Watts (2018) 22 Cal.App.5th 102, 117 (Watts) [trial court should consider post-trial claim of ineffective assistance of counsel].) Defendant received ineffective assistance of counsel if conduct by defendant's trial attorney, Pete Harned, fell below the standard and was prejudicial. (Ibid.) Defendant's trial attorney's conduct fell below the standard if an objection to defendant's statements in the hospital could have been suppressed and there was no rational tactical purpose for not making a suppression motion. (Id. at p. 118.) Defendant can show his statements to the officers in the hospital should have been suppressed if defendant's will was overborne so that his statements were not voluntary. (People v. Perdomo (2007) 147 Cal.App.4th 605, 616 (Perdomo).)
We conclude defendant cannot demonstrate prejudice even if his trial attorney should have moved to suppress defendant's statements to the police while in the hospital. Accordingly, the trial court did not err in denying the Marsden motion.
A.
Defendant's Motion
After the jury convicted defendant, he made a Marsden motion. During the hearing, defendant asserted that his trial attorney had been ineffective, among other reasons, for failure to make a motion to suppress his statements to the police while he was in the hospital. Given the opportunity to respond to defendant's motion, defendant's trial attorney stated: "With regard to the critical motion I didn't file, I did not feel that a Miranda motion was appropriate regarding [defendant's] statement, which, by the way, was introduced by the Prosecution, as the Court noted, not by me. I would not have introduced it at all, were it my choice. But [defendant] was not under arrest at the time. He was not in custody, therefore, I saw no grounds to file the Miranda motion. [¶] He was under the influence of narcotics from the surgical procedure, which is not a basis to exclude the statement. It is, I think, an issue . . . regarding the weight and how it should be interpreted. I used that, I hoped to my advantage, to establish that he was intoxicated, didn't understand what he was being asked and had he been more sober or coherent, he probably could have addressed things. That's how I handled that."
The trial court denied the motion, finding defense counsel had done "everything he possibly could have" done for defendant. The trial court also found defendant had not shown a breakdown in the attorney-client relationship that warranted substitution of appointed counsel.
B.
Right to Effective Assistance of Counsel
Indigent criminal defendants are entitled to competent legal representation by their appointed counsel. (People v. Smith (1993) 6 Cal.4th 684, 690 (Smith).) If a defendant moves to substitute appointed counsel based on ineffective assistance, "substitute counsel should be appointed when, and only when, necessary under the Marsden standard, that is whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel (People v. Webster [(1991)] 54 Cal.3d [411,] 435), or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result . . . ." (Smith, supra, at p. 696.)
As the California Supreme Court has explained, "To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel's performance was deficient and that the deficient performance prejudiced the defense. (Strickland [v. Washington (1984) 466 U.S. 668,] 687-688, 693 [(Strickland)]; [People v.] Ledesma [(1987) 43 Cal.3d 171,] 216 [(Ledesma)].) Counsel's performance was deficient if the representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland, at pp. 687-688.) Prejudice exists where there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. (Id. at pp. 693-694.)" (People v. Benavides (2005) 35 Cal.4th 69, 92-93.)
C.
Analysis
Even assuming defendant's statements in the hospital were involuntary, we conclude their admission was harmless.
At the Marsden hearing, Harned explained he did not move to suppress defendant's statement to the police while in the hospital because defendant was not in custody at the time and he voluntarily agreed to talk. In Perdomo, supra, 147 Cal.App.4th 605, the Court of Appeal held admissible statements that a defendant made to police while lying in the intensive care unit of a hospital while receiving morphine and a sedative. (Id. at p. 616.) The Perdomo court affirmed the admissibility of the statements in that case even though, "[a]ccording to the interrogating officers, [the defendant] appeared to be in pain and also appeared to still be under the influence of the narcotic pain medication." (Ibid.) The evidence showed the defendant in Perdomo was lucid and understood the nature of the statements he made to the police. (Ibid.) The Perdomo court noted, however, it is possible that a level of narcotics and pain can render statements involuntary. (Id. at p. 17.) We need not resolve the question of whether the narcotic effect of defendant's medications in this case rendered his statements involuntary because the evidence establishes that even if his statements were erroneously admitted, their effect was harmless.
Any impact on the jury from defendant's statements in the hospital to Sacramento County Police Detective Jason Kirtlan, paled by comparison to the other evidence in the case that established defendant as an accomplice in Gibson's murder. Defendant denied any involvement in Gibson's murder. Defendant stated he remembered being shot somewhere in San Francisco, but could not remember the details. He denied having gunshot residue on his hands. In short, defendant's statements to the police did not connect him with the attempted robbery but gave only a groggy and vague account of being shot somewhere in San Francisco.
By contrast, defendant's leg wound spoke for itself. The wound for which defendant was treated in the hospital matched the wound on the limping suspect in the surveillance video taken from the scene of the murder. The bullet fragments were consistent with the type of bullets fired by Gibson's gun. Defendant's cellphone traveled to Sacramento and then back to the Bay Area on a timeline that corresponded with the timing of the murder. Defendant's denials of involvement in Gibson's murder were, in comparison, relatively unimportant to the prosecution's case. At most, the statements showed defendant did not tell a coherent story about how he was shot. In any event, defense counsel effectively cross-examined Detective Kirtlan to establish defendant was interviewed shortly after surgery at a time when he was groggy and frequently nonresponsive.
Considering the evidence as a whole, the possible exclusion of defendant's responses to Detective Kirtlan while in the hospital would not have made a difference in the outcome. The other evidence of defendant's participation in the attempted robbery/murder of Gibson was compelling. Consequently, any shortcoming by defendant's trial attorney regarding defendant's hospital statements was nonprejudicial. Based on the nonprejudicial nature of the claimed deficiency, the trial court did not err in denying defendant's Marsden motion.
V
Prosecutorial Misconduct
Defendant contends the prosecutor engaged in misconduct during closing argument by misrepresenting the evidence presented at trial. He recognizes his trial attorney did not object to the prosecutor's comments. Thus, defendant claims he received ineffective assistance of counsel for the lack of objection. We are not persuaded.
A.
Prosecutorial Misconduct in the Absence of Timely Objection
Misconduct by the prosecution during trial requires reversal of a conviction "when it infects the trial with such unfairness as to make the conviction a denial of due process." (People v. Morales (2001) 25 Cal.4th 34, 44 (Morales).) Prosecutors have "wide latitude to draw inferences from the evidence presented at trial," however, "mischaracterizing the evidence is misconduct." (People v. Hill (1998) 17 Cal.4th 800, 823.) A timely objection is necessary to preserve a challenge based on prosecutorial misconduct. (Morales, supra, at pp. 43-44.) Defendant's claim has not been preserved for appeal because there was no objection at trial on the basis of prosecutorial misconduct. To escape forfeiture of this issue, defendant argues he received ineffective assistance of counsel in that his trial attorney failed in his duty to object to the claimed misconduct.
As we have noted above, a defendant can prevail on a claim of ineffective assistance of legal counsel if he or she can demonstrate that this attorney's performance fell below an objective standard of reasonableness and he or she suffered prejudice as a result. (Strickland, supra, 466 U.S. at p. 688.) In reviewing a claim of constitutionally defective representation, we "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (People v. Maury (2003) 30 Cal.4th 342, 389.)
Defendant bears a substantial burden in demonstrating ineffective assistance for failure to object to closing argument by the prosecutor. This is because, "[g]enerally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight. (People v. Lanphear (1980) 26 Cal.3d 814, 828.) 'When a defendant makes an ineffectiveness claim on appeal, the appellate court must look to see if the record contains any explanation for the challenged aspects of representation. If the record sheds no light on why counsel acted or failed to act in the manner challenged, "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation" (People v. Pope [ (1979) 23 Cal.3d 412, 426] ), the contention must be rejected.' (People v. Jackson [(1990)] 49 Cal.3d [1170,] 1188.) A reviewing court will not second-guess trial counsel's reasonable tactical decisions." (People v. Kelly (1992) 1 Cal.4th 495, 520.)
B.
Comments During the Prosecutor's Closing Argument
1. Change of Clothes
Defendant contends the prosecutor misrepresented the evidence at trial by urging the jury to find defendant demonstrated consciousness of guilt after the shooting by changing his clothes before he went to the hospital. Specifically, defendant points to the following statement by the prosecutor to the jury:
"And His Honor is also going to tell you if the Defendant tried to hide evidence, that conduct may show that he was aware of his guilt. [¶] As an example of this, the People would submit, is the trousers. You saw the pictures of the clothing that was cut off [defendant] at the hospital. White pants aren't there. He actually changed clothes before he showed up at San Francisco General Hospital. Whatever happened to those white pants? [¶] Well, he knew that was not a wise thing to bring in to a place that might ultimately report his injury to law enforcement, so he took the precaution of actually changing his trousers before he showed up at the hospital. And, as we know, he's showing up in a different car, too. [¶] All of these things are evidence of a consciousness of guilt. It's basically common sense distilled and you, as jurors—as triers of fact, can use it for those purposes."
These statements to the jury by the prosecution were fair comments on the evidence presented at trial. A surveillance camera showed that the passenger in the red racing stripe BMW was wearing white pants when crossing the Carquinez Bridge heading toward Sacramento shortly before the murder. Surveillance video from the scene of the murder showed defendant running in white pants with an injury to his leg. Defendant got into the red racing stripe BMW and headed back to the Bay Area. However, when defendant was admitted into the San Francisco General Hospital, he was wearing black shorts.
"Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial. (People v. Lucas (1995) 12 Cal.4th 415, 473.) Whether the inferences the prosecutor draws are reasonable is for the jury to decide." (People v. Dennis (1998) 17 Cal.4th 468, 522.) Here, a reasonable inference based on the evidence at trial is that defendant changed his clothes after the murder and before he went to the hospital. In suggesting a change of clothes after the murder but before defendant's hospital admission, the prosecutor did not misstate the facts or go beyond the record. (Ibid.)
2. Bullet Fragment Match
Defendant next argues the prosecutor engaged in misconduct by arguing to the jury that the bullet fragments taken from defendant's leg wound "matched" the gun used by Gibson at the time of his murder. Specifically, defendant points to the prosecution's rhetorical question: "What do you think the chances are that you've got a bullet in your leg that matches [Gibson]'s gun?" We are not persuaded. Viewed in context, the prosecutor's comment encompassed the following statements to the jury on surrebuttal:
"I'm just going to deal with some of the arguments [defense counsel] dealt with, in terms of looking at specific items of evidence. And, again, I'm not going to talk about all of them but, for example, he argues with regard to the ballistics, what it does and does not mean and, for example, he points out that [the prosecution's ballistics expert] could not identify the bullet from the [defendant's] leg as having been fired from [Gibson]'s gun. [¶] That's quite true. It's an accurate statement of fact but, again, that's explaining away one item of evidence. [¶] What do you think the chances are that you've got a bullet in your leg that matches [Gibson]'s gun? And we have a similar situation with a bullet that's actually found in Jason Brown's car and you've got the Defendant's DNA in that car. I could go on and on but you get the idea." (Italics added.)
The prosecutor did not commit misconduct by misrepresenting the evidence at trial. To the contrary, the context of the prosecutor's comment shows an express acknowledgment of the "accurate statement of fact" regarding the bullet fragments by defendant's trial attorney. Defendant's objection to the prosecutor's use of the word "match" to describe the relationship between the bullet fragments and the rifling characteristics of Gibson's gun draws a distinction without a meaningful difference. It might have been more accurate to refer to the ballistics expert's testimony as showing the bullet fragments from defendant's leg as "not inconsistent" with the rifling characteristics of Gibson's gun. However, coming immediately after an express acknowledgment of the accuracy of defense counsel's assertions regarding the bullet fragments, we perceive no error by the prosecutor. Certainly, the jury had the means by which to evaluate the evidence regarding the bullet fragments because jurors themselves heard the testimony of the ballistics expert.
3. Drug Deal Gone Bad
Defendant next argues the prosecutor mischaracterized the evidence at trial by arguing "that [T.G.] said the incident involved a soured drug deal." In particular, defendant focuses on the following statement of the prosecutor to the jury: "This was, as [T.G.] explained, a drug deal gone bad. That's what it was. These people tried to rip [Gibson] off of his dope, he was armed, he was prepared to resist, he tried to resist, and they gunned him down in consequence."
As defendant notes, T.G. did not testify that this was a drug deal. However, T.G. did testify that -- based on her observations -- the interaction between Gibson and the other men "sounded like a deal gone bad." The evidence also showed Gibson told his wife he was going to the shopping center to sell marijuana. And Gibson took about two pounds of marijuana with him. Taken together, these facts supported the reasonable inference the incident was a drug deal that had gone bad.
In sum, all of the three statements to the jury by the prosecutor to which defendant now objects for the first time on appeal were fair comments on the evidence. Defendant's trial attorney was not ineffective for failure to object to the three statements because the statements were well within the prosecutor's wide latitude to draw reasonable inferences from the evidence at trial.
VI
Special Circumstance Murder
Defendant argues that "[t]he lack of a rational basis for distinguishing between first degree felony-murder and the felony-murder special circumstance is a constitutional defect." In so arguing, he acknowledges the California Supreme Court has rejected this argument in People v. Abilez, supra, 41 Cal.4th 472, at page 528; People v. Catlin (2001) 26 Cal.4th 81, at page 158; People v. Millwee (1998) 18 Cal.4th 96, at page 164; People v. Marshall (1990) 50 Cal.3d 907, at page 946; and People v. Coleman (1989) 48 Cal.3d 112, at page 153. In raising this argument, defendant seeks "to preserve this claim for federal review in the event that relief is not obtained in state court." The California Supreme Court has reiterated its rejection of the argument advanced by defendant (People v. Abilez, supra, 41 Cal.4th at p. 528), and we are bound by that holding. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455.) Nonetheless, defendant's issue is preserved for further review if he chooses to pursue it.
VII
Parole Revocation Fine
Defendant argues the trial court erred in imposing a parole revocation fine because he was sentenced to serve life without parole. The Attorney General agrees the parole revocation fine imposed under section 1202.45 must be stricken.
Here, the trial court imposed the parole revocation fine under section 1202.45. However, "[w]hen there is no parole eligibility, the [parole revocation] fine is clearly not applicable. The statutory language [of section 1202.45] itself is clear, the additional restitution fine is only imposed in a 'case' where a sentence has been imposed which includes a 'period of parole.' (§ 1202.45.)" (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183.) Because defendant's sentence does not include a period of parole, the parole revocation fine must be stricken.
VIII
Imposition of Fines and Fees
Relying on Dueñas, supra, 30 Cal.App.5th 1157, defendant seems to contend the trial court erred in imposing a $3,000 restitution fine under section 1202.4, a parole revocation fine under section 1202.45, and "fines pursuant to . . . section 1465.8 and Government Code section 70373." The trial court did impose a $80 court operations assessment under section 1465.8. However, the trial court expressly waived the court facilities fee under Government Code section 70373. Notably, defendant's record citation appears to refer to the trial court's imposition of a $367.81 main jail booking fee and a $67.03 main jail classification fee. However, defendant's briefing makes no mention of these jail fees and offers no argument relating to them. In other words, defendant's record citations do not match his arguments.
The Attorney General responds, inter alia, by noting defendant had been convicted of recklessly evading a police officer, demanding money from a casino cashier, and leading police on a high-speed chase. None of these facts or analysis relate to this case.
We recognize the current frequency of challenges to fees and fines under Dueñas, supra, 30 Cal.App.5th 1157. Nonetheless, counsel can assist this court by clearly identifying the fines and fees actually subject to challenge and by ensuring the discussion of the facts relates to the current case.
We construe defendant's challenge as encompassing the restitution fine under section 1202.4 and court operations assessment under section 1465.8. In part VII, we ordered the parole revocation fine stricken. Accordingly, we need not consider that fine. And we need not consider the court facilities fee the trial court expressly waived. Because defendant's argument discusses no other fees and fines, any other fees and fines are not properly presented for review. "To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error." (In re S.C. (2006) 138 Cal.App.4th 396, 408.)
We conclude Dueñas was wrongly decided and therefore reject defendant's claim on that basis.
A.
Dueñas
We begin by discussing Dueñas, supra, 30 Cal.App.5th 1157. In Dueñas, the defendant (Dueñas) was an indigent and homeless young mother with cerebral palsy who pleaded no contest to driving with a suspended license, a crime she committed after losing her license because she was unable to pay certain fines associated with three juvenile citations. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) The trial court granted Dueñas probation and, among other things, imposed various mandatory fines and fees. (Id. at pp. 1161-1162.) Dueñas asked the trial court to set a hearing to determine her ability to pay. (Id. at p. 1162.) At the hearing, the trial court found Dueñas lacked an ability to pay but nevertheless confirmed imposition of court facilities and court operations assessments, noting both were "mandatory regardless of Dueñas's inability to pay them," and also confirmed imposition of a restitution fine in the minimum amount, finding, "Dueñas had not shown the 'compelling and extraordinary reasons' required by statute (. . . § 1202.4, subd. (c)) to justify waiving this fine." (Id. at p. 1163.) The trial court also rejected Dueñas's constitutional arguments that due process and equal protection prohibited imposition of these fines and fees without a determination she possessed the ability to pay them. (Ibid.)
Our colleagues at the Second Appellate District reversed. With respect to the court facilities and court operations assessments, the court held, "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 [these] assessments." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The court noted the constitutional guarantees of due process and equal protection prohibit a state from "inflict[ing] punishment on indigent convicted criminal defendants solely on the basis of their poverty." (Id. at p. 1166, citing Griffin v. Illinois (1955) 351 U.S. 12, 17 (Griffin).) Analogizing the imposition of these mandatory assessments without first determining an ability to pay to the situation in which a convicted defendant is required to serve jail time if he or she is unable to pay a fine and penalty assessment (invalidated by our Supreme Court in In re Antazo (1970) 3 Cal.3d 100, 103 (Antazo)) and the situation in which an indigent convicted defendant's probation is automatically revoked upon his or her failure to pay a fine and restitution (invalidated by the United States Supreme Court in Bearden v. Georgia (1983) 461 U.S. 660, 667-668 (Bearden)), the Dueñas court stated: "Imposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further the legislative intent, and may be counterproductive. A fine on indigent people 'is not imposed to further any penal objective of the State. It is imposed to augment the State's revenues but obviously does not serve that purpose; the defendant cannot pay because he [or she] is indigent . . . .' [Citations.] Poor people must face collection efforts solely because of their financial status, an unfair and unnecessary burden that does not accomplish the goal of collecting money." (Dueñas, supra, at p. 1167.) The court concluded such a burden "in effect transform[s] a funding mechanism for the courts into additional punishment for a criminal conviction for those unable to pay." (Id. at p. 1168.)
With respect to the minimum restitution fine, the Dueñas court held imposition of this fine without first determining ability to pay, while done in accordance with the statutory scheme, also violated due process; execution of such a fine "must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The court noted the restitution fine is recognized to be "additional punishment for a crime" and concluded the statutory prohibition on considering ability to pay when imposing the minimum fine is fundamentally unfair because it "punishes indigent defendants in a way that it does not punish wealthy defendants." (Id. at pp. 1169-1170.)
B.
Forfeiture
The Attorney General argues defendant's challenges to the fees and fines are forfeited for failure to raise ability to pay in the trial court. Defendant acknowledges his trial counsel did not object to any fines and fees on the basis of indigency. Thus, the first question we must answer is whether this failure forfeits the Dueñas claim on appeal.
There is presently a split of authority with respect to whether or not a defendant who did not object to the trial court's imposition of mandatory fines and fees based on inability to pay, like defendant in this case, forfeits a Dueñas claim. (Compare People v. Frandsen (2019) 33 Cal.App.5th 1126 (Frandsen) [finding forfeiture] with People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano) [no forfeiture].) We conclude defendant's challenge to the restitution fine and parole revocation restitution fine are forfeited and decline to address the forfeiture issue with respect to the remainder of his Dueñas claim because, even if properly preserved for review, there was no constitutional violation.
Beginning with the restitution fine, as previously mentioned, section 1202.4 allows consideration of a defendant's ability to pay when determining whether to increase the restitution fine above the statutory minimum. (§ 1202.4, subd. (c).) That statutory minimum is $300. (§ 1202.4, subd. (b)(1).) Thus, there was a statutory basis for defendant to object to the $3,000 restitution fines imposed on him based on his purported inability to pay this amount. Thus, defendant could have objected to this fine based on inability to pay but failed to do so, forfeiting his challenge to this fine on those grounds in this appeal. (See People v. Avila (2009) 46 Cal.4th 680, 729 [challenge to restitution fine based on inability to pay forfeited where trial court imposed maximum fine and defendant did not object on that basis below]; Frandsen, supra, 33 Cal.App.5th at p. 1153; see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1032-1033.)
Turning to the remainder of defendant's Dueñas claim, we note that in Frandsen, the appellate court rejected the defendant's argument that his challenge to the court facilities and court operations assessments was not forfeited because an objection to these assessments based on inability to pay would have been futile prior to Dueñas, supra, 30 Cal.App.5th 1157, an argument accepted by a different division of that same court in Castellano. (Compare Frandsen, supra, 33 Cal.App.5th at p. 1153 with Castellano, supra, 33 Cal.App.5th at p. 489.) We need not weigh in on this forfeiture issue here because, as we explain immediately below, even assuming the remainder of this claim is properly preserved for review, there was no constitutional violation.
C.
No Constitutional Violation
Reactions to the new constitutional principle articulated in Dueñas, supra, 30 Cal.App.5th 1157 have been mixed. Although many courts have followed its reasoning, others have distinguished (see People v. Caceres (2019) 39 Cal.App.5th 917) or disagreed with the opinion (see People v. Hicks (2019) 40 Cal.App.5th 320 (Hicks); People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1068). We join the latter group and limit our discussion of the matter to rejecting Dueñas outright.
In Hicks, our colleagues at the Second Appellate District rejected the Dueñas court's reliance on "two strands of due process precedent" in "fashioning" a new constitutional principle requiring an ability to pay determination before imposing the fine and assessments challenged therein. (Hicks, supra, 40 Cal.App.5th at p. 325.) The first strand, starting with Griffin, supra, 351 U.S. 12, 17 , "secures a due process-based right of access to the courts." (Hicks, supra, p. 325.) This strand of precedent, however, "does not dictate Dueñas's bar on imposing fees because the imposition of assessments, fines and fees does not deny a criminal defendant access to the courts." (Ibid.) The second strand of due process precedent relied upon by the Dueñas court (see, e.g., Antazo, supra, 3 Cal.3d 100 and Bearden, supra, 461 U.S. 660, described above) "erects a due process-based bar to incarceration based on the failure to pay criminal penalties when that failure is due to a criminal defendant's indigence rather than contumaciousness." (Hicks, supra, at p. 325.) This strand "also does not dictate Dueñas's bar on imposing fees because their imposition, without more, does not result in incarceration for nonpayment due to indigence." (Ibid.)
Finally, the Hicks court also concluded Dueñas erred in expanding due process protections in the manner it did, explaining: "Dueñas does more than go beyond its foundations; it announces a principle inconsistent with them. Our Supreme Court in Antazo, supra, 3 Cal.3d 100, . . . expressly declined to 'hold that the imposition upon an indigent offender of a fine [or] penalty assessment, either as a sentence or as a condition of probation, constitutes of necessity in all instances a violation of the equal protection clause.' [Citation.] Antazo refused to prohibit the imposition of fines and assessments upon indigent defendants for good reason, which the United States Supreme Court explained best: 'The State . . . has a fundamental interest in appropriately punishing persons—rich and poor—who violate its criminal laws,' such that '[a] defendant's poverty in no way immunizes him [or her] from punishment.' (Bearden, supra, 461 U.S. at pp. 669-670 . . . .) To confer such an immunity, that Court has said, 'would amount to inverse discrimination [because] it would enable an indigent [defendant] to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other . . . .' (Williams[ v. Illinois (1970)] 399 U.S. [235,] 244[ (Williams)].) By adopting an across-the-board prohibition on the very imposition of assessments and fines on indigent defendants, Dueñas prohibits a practice that Antazo sanctioned (albeit under a different constitutional provision). What is more, Dueñas mandates the very type of 'inverse discrimination' condemned by the Court in both Bearden and Williams." (Hicks, supra, at p. 327.)
We agree with the Hicks analysis in its entirety. The strands of precedent relied upon by the Dueñas court in expanding due process protections to require an ability to pay determination before imposing a mandatory fine, fee, or assessment do not support, and indeed run contrary to, such an expansion. Imposition of the challenged financial obligations has not deprived defendant of access to the courts. Nor has defendant been incarcerated because of his inability to pay. Rather, he is incarcerated because he shot another human being to death. He was sentenced to a lengthy prison sentence for this crime and will have an opportunity to attempt to pay these obligations, e.g., from prison wages if he obtains employment while in prison. "Should they remain unpaid at the end of his [prison term], the trial court will have to decide whether it was due to his indigence or to a lack of bona fide effort. At this point in time, however, due process does not deny defendant the opportunity to try." (Hicks, supra, at p. 329.)
DISPOSITION
Defendant's convictions and sentence are affirmed. The parole revocation fine imposed under Penal Code section 1202.45 is stricken. The clerk of the superior court shall prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
/s/_________
HOCH, J. I concur: /s/_________
RAYE, P. J. ROBIE, J., Concurring and Dissenting.
I concur fully in all parts of the Discussion except sections IV C. and VIII. As to section IV C., dealing with defendant's Marsden motion, I concur in the result but not the analysis. The majority bypasses the question of whether defendant's trial counsel's performance was deficient, instead concluding any deficiency in failing to move to suppress evidence of defendant's statements in the hospital was harmless. (Maj. opn. ante, at Discussion IV C.) I conclude defendant failed to show his trial counsel's performance was deficient.
To establish ineffective assistance of counsel, "the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (People v. Mai (2013) 57 Cal.4th 986, 1009.) On direct appeal, a judgment will be reversed for ineffective assistance "only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (Ibid.)
Deficient performance is rarely shown if there was a tactical reason for trial counsel's conduct. (See People v. Cruz (1980) 26 Cal.3d 233, 255-256 ["except in rare cases, an appellate court should not attempt to second-guess trial counsel as to tactics"]; People v. Bolin (1998) 18 Cal.4th 297, 317 [no reversal when alleged failure to object "may well have been 'an informed tactical choice within the range of reasonable competence' "].) Here, defendant's trial counsel explained the tactical reasons he did not file the motion to suppress. His reasons appear eminently reasonable. Thus, defendant's trial counsel's performance was not deficient, and defendant's ineffective assistance of counsel claim fails.
As to section VIII, "Imposition of Fines and Fees," I concur and dissent. I concur in the majority's conclusion that defendant's challenge to the $3,000 restitution fine is forfeited. (Maj. opn. ante, at Discussion VIII B.) Our Supreme Court has already determined an objection necessary to challenge the imposition of those fines in excess of the mandatory minimum. (People v. Nelson (2011) 51 Cal.4th 198, 227.) I dissent to the majority's discussion in section VIII C. because I disagree with the conclusion that Dueñas was wrongly decided. (People v. Dueñas (2019) 30 Cal.App.5th 1157.) I agree with Dueñas that principles of due process would preclude a trial court from imposing the court operations assessment at issue in this case if a defendant demonstrates he or she is unable to pay them. (Id. at p. 1168.) I do not find the analysis in Hicks to be well-founded or persuasive and believe the majority has it backwards -- it is Hicks that was wrongly decided, not Dueñas. (People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946.)
Defendant did not forfeit his challenge to the court operations assessment, as the People contend. I agree that, as stated in Castellano, a trial court is required to determine a defendant's ability to pay only if the defendant raises the issue, and the defendant bears the burden of proving an inability to pay. (People v. Castellano (2019) 33 Cal.App.5th 485, 490.) In the absence of authority invalidating the challenged assessment on inability to pay at the time the trial court imposed it, however, defendant could not have reasonably been expected to challenge the trial court's imposition thereof. (People v. Welch (1993) 5 Cal.4th 228, 237 ["[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence"].)
I believe a limited remand under Dueñas is appropriate to permit a hearing on defendant's ability to pay the challenged assessment because his conviction and sentence are not yet final. (See People v. Castellano, supra, 33 Cal.App.5th at pp. 490-491.)
/s/_________
Robie, J.