Opinion
C088833
06-16-2020
THE PEOPLE, Plaintiff and Respondent, v. JAMES KENNEY III, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF182393)
Pursuant to the April 2018 search of an apartment, Yolo County Narcotics Enforcement Team (YONET) agents discovered drugs and ammunition. Agents arrested multiple people in connection with the search, including defendant James Kenney III and codefendant Christopher Moore. Defendant was not at the apartment during the search; he was detained at a nearby gas station after he had been seen driving away from the apartment immediately before the search. The prosecution charged defendant with possession for sale of heroin and cocaine, possession of ammunition by a prohibited person, and possession of methamphetamine. Defendant remained out of custody.
Moore is not a party to this appeal.
In August and September of 2018, agents again searched the same apartment as well as two additional residences, again locating drugs, guns, and indicia. Defendant was arrested across the street from one of the addresses searched. The prosecution had charged defendant only with crimes related to the April search, but the trial court permitted it to introduce evidence of the August and September searches and events leading thereto, as relevant to defendant's common scheme or plan and his intent to commit the charged offenses. The jury found defendant guilty as charged.
On appeal, defendant contends (1) the trial court abused its discretion by admitting evidence of the later, uncharged acts; (2) the prosecutor committed misconduct in closing argument; and (3) the case must be remanded for a hearing on defendant's ability to pay fines and fees. In supplemental briefing, defendant claims his prison prior must be stricken pursuant to Senate Bill No. 136. The Attorney General agrees with the last claim.
We agree with the parties that defendant's prison prior enhancement must be stricken, and we modify the judgment accordingly. We agree with the Attorney General's observation that the judgment should be modified to impose additional assessments, and we do so. We affirm the judgment as modified.
FACTS AND PROCEEDINGS
Evidence Directly Supporting the Charged Offenses
In February 2018 a police officer was dispatched to an apartment complex in West Sacramento following a report of an assault. While at the complex, the officer identified a person possessing a small amount of narcotics. The officer returned to the complex later that night and observed a black car parked in front of apartment F. The officer observed "short-stay" traffic at the apartment, and he saw a lighter activated "every couple minutes or so" in a car parked in front of apartment F. After 20 to 30 minutes, a person got out of that car and entered apartment F. Defendant arrived in a white GMC Yukon as the officer was about to leave, and he spoke with the officer. The Yukon was registered to Tequasha Jones, who listed apartment F as her address.
On April 16 Agent Shad Begley from YONET saw the Yukon parked outside apartment F and Moore sitting on a bench outside. A person left the apartment and drove away, and Moore walked back into the apartment. Moore then let several short-stay visitors into the apartment, including one carrying a small black plastic case.
On April 17 YONET agents executed a search warrant on apartment F. As the agents arrived, Begley observed the Yukon leaving the complex. Agents detained defendant, who was driving the Yukon, at a nearby gas station; he possessed a large amount of cash. Moore was detained inside the apartment.
On top of a dresser in the apartment's bedroom, agents found live ammunition, three digital scales, and a gambling hall player's card with the name "James K." In a nearby closet, agents found live ammunition wrapped in a document with Moore's name on it. On the ground outside an open bathroom window, agents found four packages containing 30.9 grams of heroin, 17.9 grams of cocaine, 1.9 grams of heroin, and 2 grams of methamphetamine.
Evidence of the Uncharged Acts
On August 14 agents executed a second search warrant on apartment F and found two digital scales containing heroin and methamphetamine residue, as well as a backpack containing methamphetamine and two small packages of heroin. Moore, defendant, and the Yukon were not present during the search. Defendant contacted Begley later that day; he said the apartment was still leased under his name, but he no longer lived there and only occasionally stopped by.
On September 4 agents followed defendant and Moore after they appeared in court. Tequasha Jones, Moore, and defendant left the courthouse in the Yukon. They briefly stopped at an insurance business before continuing to an Evans Avenue residence in Sacramento. Defendant and Jones entered the residence. While Jones and defendant were inside, agents observed a woman come out of the house and make a hand-to-hand drug sale. Jones and defendant left the house and got back into the Yukon. Defendant, Moore, and Jones continued to an apartment complex on Maple Street in West Sacramento. Defendant entered the building, and Moore entered shortly after carrying a black bag.
On September 21 agents executed search warrants at both the Evans Avenue and Maple Street residences. Upon arriving at Evans Avenue, agents observed defendant near a liquor store across the street from the apartment. Agents detained the people inside the apartment and seized 40 grams of methamphetamine, 17 grams of cocaine, and 74 grams of heroin, two loaded firearms, two digital scales, one of which contained heroin residue, an amusement park pass containing the name "James K.," and a rental document related to the Maple Street address. Defendant was arrested.
At Maple Street agents arrested Moore at the top of the stairs before entering the apartment. Agents found a loaded firearm, 2 grams of methamphetamine, 1.8 grams of heroin, court documents containing Moore's name, and a shirt Moore had previously worn to court. Agents answered phone calls to two different cellphones found in the apartment from people attempting to buy drugs. Multiple people were arrested at Maple Street.
Verdict and Sentence
The jury found defendant guilty of possession for sale of more than 14.25 grams of heroin (Health & Saf. Code, § 11351; Pen. Code, § 1203.07, subd. (a)(1); count 1 and count enhancement 1a), possession for sale of cocaine (Health & Saf. Code, § 11351; count 2), possession of ammunition by a person prohibited from owning or possessing a firearm (§ 30305, subd. (a); count 3), and misdemeanor possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count 4). In a bifurcated court trial, the court found true that defendant had a prison prior. (§ 667.5, subd. (b).)
Further undesignated statutory references are to the Penal Code.
The trial court sentenced defendant to six years eight months in prison: the upper term of four years on count 1, consecutive terms of one year on count 2 and eight months on count 3, a consecutive term of one year for the prison prior enhancement, plus a concurrent term of 180 days in county jail on count 4.
DISCUSSION
I
Evidence of Uncharged Acts
Defendant contends the trial court abused its discretion by allowing the prosecution to introduce evidence from the August and September searches and surveillance. Defendant asserts the evidence was inadmissible under Evidence Code sections 1101 and 352. He also contends admission of the evidence violated his federal constitutional rights and was error under state law.
A. Procedural Background
Before trial, the prosecution sought to introduce evidence of the August and September events described above as well as five other acts outside the charged offenses under Evidence Code section 1101, subdivision (b) to prove defendant's intent, common scheme or plan, absence of mistake or accident, and knowledge. The trial court disagreed the evidence was admissible to prove absence of mistake or accident, and the parties agreed to stipulate defendant and Moore were knowledgeable about the nature of the drugs. The trial court agreed the evidence was admissible to show intent and common scheme or plan, but limited the presentation to the August and September evidence.
B. Legal Background
"Evidence of crimes committed by a defendant other than those charged is inadmissible to prove criminal disposition or a poor character. '[B]ut evidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes. (Evid. Code, § 1101.) Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent. [Citation.]' " (People v. Lenart (2004) 32 Cal.4th 1107, 1123 (Lenart).)
"To be relevant to prove identity, the uncharged crime must be highly similar to the charged offenses, while a lesser degree of similarity is required to establish relevance to prove common design or plan, and the least similarity is required to establish relevance to prove intent. [Citations.]" (Lenart, supra, 32 Cal.4th at p. 1123.) To establish relevance on the issue of common design or plan, " 'the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.' [Citation.]" (People v. Kipp (1998) 18 Cal.4th 349, 371.) To establish relevance on the issue of intent, "the uncharged crimes need only be 'sufficiently similar [to the charged offenses] to support the inference that the defendant " 'probably harbor[ed] the same intent in each instance.' [Citations.]" ' [Citation.]" (Ibid.) " '[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act.' " (People v. Ewoldt (1994) 7 Cal.4th 380, 402, superseded by statute on other grounds as explained in People v. Falsetta (1999) 21 Cal.4th 903, 911-913.)
"Finally, for uncharged crime evidence to be admissible, it must have substantial probative value that is not greatly outweighed by the potential that undue prejudice will result from admitting the evidence. [Citations.]" (Lenart, supra, 32 Cal.4th at p. 1123.) "Without a doubt, evidence a defendant committed an offense on a separate occasion is inherently prejudicial. [Citations.]" (People v. Tran (2011) 51 Cal.4th 1040, 1047 (Tran).) But " '[e]vidence is substantially more prejudicial than probative . . . [only] if, broadly stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome" [citation].' [Citation.]" (Ibid.)
" 'On appeal, the trial court's determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion.' [Citation.]" (Lenart, supra, 32 Cal.4th at p. 1123.)
C. Common Design or Plan
Defendant argues the charged (April) and uncharged (August and September) crimes shared no distinctive similarities, and therefore the evidence was not admissible to show a common scheme or plan. But whether defendant's plan for selling controlled substances was distinctive is irrelevant. "To be relevant, the plan, as established by the similarities between the charged and uncharged offenses, need not be distinctive or unusual. Evidence that the defendant possessed a plan to commit the type of crime with which he or she is charged is relevant to prove the defendant employed that plan and committed the charged offense." (People v. Balcom (1994) 7 Cal.4th 414, 424.) "The circumstance that the uncharged offense occurred after the charged offense does not lessen its relevance in demonstrating the existence of a common design or plan." (Id. at p. 425.)
In the present case, the similarities between the charged offenses and the later uncharged offenses support the inference that defendant had a common scheme or design to sell heroin and cocaine from various residences in the Sacramento area, where firearms and ammunition were also possessed, without actually being tied down to any one residence. Defendant was charged with possessing for sale heroin and cocaine in apartment F. The other acts evidence tended to demonstrate that defendant was connected to not only that apartment but also to two other residences where people were actively engaged in distributing heroin and cocaine and possessing firearms in a manner similar to that at apartment F. As we have noted, agents observed defendant entering both the Evans Avenue and Maple Street residences, and defendant was observed across the street from the Evans Avenue residence moments before the search warrant was executed.
The trial court did not abuse its discretion in admitting the other acts evidence to show defendant's common plan or scheme.
D. Intent
Defendant contends the other acts evidence was inadmissible to prove his intent to commit the charged crimes because "there was no real dispute whether the drugs were possessed for sale or personal use." We disagree.
"The prosecution has the burden of proving beyond a reasonable doubt each element of the charged offense. [Citation.]" (People v. Cole (2004) 33 Cal.4th 1158, 1208.) For the purpose of deciding the admissibility of evidence under Evidence Code section 1101, a plea of not guilty places all of the elements of the offense in dispute, " 'unless the defendant has taken some action to narrow the prosecution's burden of proof.' " (People v. Ewoldt, supra, 7 Cal.4th at p. 400, fn. 4.) "[T]he prosecution's burden to prove every element of the crime is not relieved by a defendant's tactical decision not to contest an essential element of the offense." (Estelle v. McGuire (1991) 502 U.S. 62, 69.)
To establish defendant's guilt in this case, the prosecution had to establish, among other elements, that defendant intended to sell heroin and cocaine. While the parties stipulated to defendant's knowledge of the substances at issue, the parties did not stipulate as to defendant's intent. Although, as defendant states, his trial strategy might have been to focus on the issue of the identity of the possessor rather than the intent of the possessor, intent remained an element of the charged offense the prosecutor had the burden to prove.
As we have described, the uncharged acts evidence related specifically to other instances, very close in time, in which defendant was connected to the sale of heroin and cocaine and possession of firearms and ammunition at various residences. Evidence of the second search of apartment F, and defendant's call to Begley in which he admitted contact with apartment F, demonstrated defendant's continued connection to another location where drugs were sold and guns and ammunition were kept.
The uncharged acts were sufficiently similar to the charged offenses to support the inference that defendant, if found to possess drugs, harbored the same intent in each instance--to sell them. Further, in both the charged and uncharged acts, agents found ammunition and/or guns where drugs were being sold, also illustrating the similarity of the admitted acts. The trial court did not abuse its discretion in admitting the other acts evidence to prove defendant's intent to sell drugs.
Defendant next claims the uncharged acts evidence should have been excluded under Evidence Code section 352 because the evidence is substantially more prejudicial than probative. He contends admission of this evidence created the danger that the jury would find him guilty of the charged offense based on his perceived propensity to sell drugs and possess firearm. We disagree.
Our Supreme Court has identified several factors that might serve to increase or decrease the probative value or prejudicial effect of uncharged acts that are relevant to the Evidence Code section 352 weighing process: "The probative value of the evidence is enhanced if it emanates from a source independent of evidence of the charged offense because the risk that the witness's account was influenced by knowledge of the charged offense is thereby eliminated. [Citation.] On the other hand, the prejudicial effect of the evidence is increased if the uncharged acts did not result in a criminal conviction. This is because the jury might be inclined to punish the defendant for the uncharged acts regardless of whether it considers the defendant guilty of the charged offense and because the absence of a conviction increases the likelihood of confusing the issues, in that the jury will have to determine whether the uncharged acts occurred. [Citation.] The potential for prejudice is decreased, however, when testimony describing the defendant's uncharged acts is no stronger or more inflammatory than the testimony concerning the charged offense. [Citation.]" (Tran, supra, 51 Cal.4th at p. 1047.) However, the totality of the circumstances may support admitting the evidence although not all of the listed factors weigh in favor of admitting the evidence. (Ibid.)
As we discussed ante, the other acts evidence had substantial probative value in that it tended to show defendant's intent to sell controlled substances from multiple residences with which he was associated and a common plan or scheme to do the same, and to associate the sales with firearms. The trial court took steps to mitigate the prejudicial effect of the evidence by limiting by more than half the number of other acts the prosecution introduced at trial. (See Tran, supra, 51 Cal.4th at p. 1049 [although the trial court need not limit the prosecution's other acts evidence, the probative value decreases with each additional offense and the prejudicial effect increases].)
Additionally, the testimony describing the uncharged acts was no more persuasive or inflammatory than the testimony concerning the charged offenses. The agents' testimony was a straightforward recitation of the facts, and the facts themselves were similar to the facts of the charged offenses, thus unlikely to inflame the jury. The evidence in its entirety merely tended to show that defendant's intent was to deal drugs and his scheme to do so was to keep drugs and guns at multiple residences. Together with the other evidence, this tended to show that he was dealing drugs from and keeping guns at apartment F, as charged.
To further minimize the risk of prejudice, the trial court gave several limiting instructions. (See People v. Hendrix (2013) 214 Cal.App.4th 216, 247 [reviewing courts consider whether the trial court gave a limiting instruction, which can "ameliorate section 352 prejudice by eliminating the danger the jury could consider the evidence for an improper purpose"].) During Begley's testimony, the trial court instructed the jury with a truncated version of CALCRIM No. 375, which it later gave in full, that the August search evidence was permitted into evidence for the jury "to consider for the sole purpose and the limited purpose of proving a fact other than the disposition of either [defendant] or [Moore] to commit the crimes charged in this case. You can consider that evidence for what it is worth for a limited purpose only to prove facts such as intent or common plan or scheme. And you may consider it only for that limited portion and for no other."
The trial court again referred to that limiting instruction before another agent's testimony concerning the September acts and included the admonishment as well as the more general limiting instruction, CALCRIM No. 303, in the concluding instructions. We presume the jury understood and followed these instructions. (People v. Hovarter (2008) 44 Cal.4th 983, 1005.)
We acknowledge that defendant's uncharged conduct did not result in his conviction for that conduct, increasing the risk that the jury might punish defendant for the uncharged acts. Further, the uncharged acts evidence emanated from the same source as the evidence of the charged offenses. Nevertheless, we conclude the trial court did not abuse its discretion in admitting the evidence due to the substantial probative value of the evidence and the minimal prejudicial effect.
Defendant contends the other acts evidence "entailed substantial problems of proof due to the evidence of multiple participants, requiring the jury to conduct a "mini-trial" to determine who was dealing the drugs. But as we observed ante, the uncharged acts evidence showed defendant's association with various addresses from where drugs were dealt and where drugs and guns were kept. The jury was not tasked with deciding who was distributing the drugs or possessing the drugs and guns at any given time. It was tasked with deciding whether in April 2018 at apartment F defendant possessed certain drugs for sale. There is no evidence suggesting the prior acts evidence confused the issues or misled the jury in any way. Not only was the jury entitled to disregard the other acts evidence if it found it was not proven, it was instructed by the trial court to do so.
Finally, defendant contends the uncharged possession of firearms should have been excluded as unduly prejudicial because the evidence "portray[ed] him as a person who was probably a dangerous drug dealer." Defendant points to People v. Jefferson (2015) 238 Cal.App.4th 494 (Jefferson), but that case is inapposite.
In Jefferson, the defendant was charged with possessing a stolen firearm. The prosecution argued that the defendant's possession of legally registered firearms demonstrated he knew how to legally acquire firearms and should have known the charged firearm was stolen. (Jefferson, supra, 238 Cal.App.4th at p. 506.) The appellate court first observed that the evidence connecting the possession of legal firearms to the disputed evidence was "so attenuated as to be almost speculative." (Id. at p. 507.) The court noted that possession of the legal firearms "add[ed] next to nothing" to the other evidence. (Ibid.) The court stated the evidence prejudiced Jefferson by "painting him as a dangerous person in a dangerous neighborhood probably engaged in a dangerous profession, drug dealing." (Ibid.) The court concluded the evidence held little evidentiary value and created an emotional bias against Jefferson. (Ibid.)
The facts here are distinguishable from those in Jefferson. As we have discussed, here the other acts evidence has substantial probative value in showing defendant's intent and his common scheme and plan to possess ammunition and guns and to sell controlled substances from various residences. The other acts evidence was not attenuated, and tended to demonstrate that defendant intended to possess ammunition at apartment F, the charged offense. Thus, the evidence here is unlike that in Jefferson, where the other acts evidence had very little probative value and was almost entirely prejudicial.
The trial court did not abuse its discretion in admitting evidence of defendant's uncharged acts.
II
Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct during closing argument by inviting the jury to speculate, in the absence of evidence, that he was present and was selling drugs inside the residence before the charged crimes, and that he was masterminding a drug operation in the subsequent, uncharged crimes.
A. Standard of Review
"Under the federal standard, prosecutorial misconduct that infects the trial with such ' "unfairness as to make the resulting conviction a denial of due process" ' is reversible error. [Citation.] In contrast, under our state law, prosecutorial misconduct is reversible error where the prosecutor uses 'deceptive or reprehensible methods to persuade either the court or the jury' [citation] and ' "it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct" ' [citation]. To preserve a misconduct claim for review on appeal, a defendant must make a timely objection and, unless an admonition would not have cured the harm, ask the trial court to admonish the jury to disregard the prosecutor's improper remarks or conduct. [Citation.]" (People v. Martinez (2010) 47 Cal.4th 911, 955-956.)
Defendant is excused from making a timely objection and/or requesting an admonition if either would have been futile. (People v. Arias (1996) 13 Cal.4th 92, 159.) " '[T]he absence of a request for a curative admonition does not forfeit the issue for appeal if "the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request." ' [Citation.]" (People v. Seumanu (2015) 61 Cal.4th 1293, 1328-1329 (Seumanu).)
B. Prosecutor's Closing Argument
The prosecutor began her closing argument: "[I]f something I say is different from how you remember it, then you go with whatever you remember. As the judge reminded you, my comments are not evidence and Defenses' words are not evidence." She then summarized the testimony, described the elements of the charged offenses, and discussed the effect of circumstantial evidence in the context of intent to sell.
She then argued that on April 16, 2018, the day before the search warrant was executed, "I would speculate that based on the white Yukon being present that [defendant] is sitting inside of there." Defense counsel objected, "Improper argument. Speculation." The trial court overruled the objection, observing that it would give the attorneys from both sides "wide latitude in presenting arguments." The court noted, "The jury will decide what the facts are. And counsel may have latitude in making argument to the jury."
The prosecutor then resumed the argument, asserting, "I would speculate that Kenney is sitting inside of there being the one who is in the bedroom [doling] out the drugs." Defense counsel did not object. The prosecutor stated, "For Kenney, the white GMC Yukon was present on April 16, a vehicle that he is known to be associated with, has been seen driving on multiple occasions. He was present and then leaving in this white GMC Yukon just before the search warrant was served on April 17. And his player's club card was on the dresser that said James K."
The prosecutor then discussed the uncharged offenses. She speculated that Evans Avenue was "where [defendant] might keep large quantities of drugs and [dole] them out. He might put them in that Michael Kors backpack and drop it off at [apartment F]. He might put some in another backpack, take it over to the other place on Maple Street." Defense counsel did not object.
Finally, the prosecutor speculated that the Evans Avenue apartment was where appellant ran his drug operation: "Somebody like James Kenney could sit on his cell phone in the comfort of his own house on Evans Avenue and watch the drug deals go down. He could keep track of each one. He could keep track of his product, his people who are selling. He could see if his people are cheating him. He can see who is coming in and buying drugs. . . . This is the perfect place to sell drugs because it is not where he lives."
At the end of her argument, the prosecutor again reminded the jury: "You decide based only on the evidence that is presented. So what I say is not evidence and what the Defense says is not evidence. It is just argument. If there is anything that I or they say that you think I don't remember hearing about that from the mouth of one of these witnesses or from one of these pieces of evidence, then don't consider it."
C. Forfeiture
The Attorney General contends defendant forfeited several of his claims of prosecutorial misconduct. He argues defendant forfeited his constitutional claim by objecting only to improper argument and speculation, and forfeited his remaining claims of error because he failed to object.
Defendant argues his trial counsel was overruled on his first objection to speculation and was thereafter excused from further objections because such objection would have been futile. (See People v. Zambrano (2004) 124 Cal.App.4th 228, 237 [following trial court's erroneous ruling, further objections would have been futile].) Defendant has the better argument.
First, we observe that defendant's failure to request a curative admonition does not result in forfeiture because the trial court immediately overruled his objection. (See People v. Hill (1998) 17 Cal.4th 800, 820.) Second, defense counsel's objection to improperly speculative argument was sufficient to preserve both his federal and state claims of prosecutorial misconduct.
The Attorney General points to Seumanu, supra, 61 Cal.4th at pages 1330 to 1331 to argue that defendant's failure to make a "constitutional objection" forfeited his prosecutorial misconduct claim. But Seumanu is distinguishable; in that case, defendant failed to object entirely. (Id. at p. 1332.)
Finally, we agree with defendant that further objections would have been futile. Defendant objected to the prosecutor's invitation to the jury to speculate about defendant's conduct where that conduct was not admitted into evidence on the basis that the argument was improper and speculative. The remaining instances of prosecutor misconduct to which defendant points were the same type of speculative arguments that the trial court said it would allow. Because further objections to the alleged misconduct would have been futile, we conclude defendant did not forfeit those claims on appeal.
D. Analysis
" ' " ' "[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom . . . ." [Citation.]' " ' " (People v. Gamache (2010) 48 Cal.4th 347, 371.) However, a prosecutor may not deliberately or mistakenly misstate or mischaracterize the evidence. (People v. Hill, supra, 17 Cal.4th at p. 823.) The prosecutor commits misconduct if she argues facts not in evidence during closing argument "because such statements 'tend[ ] to make the prosecutor his own witness—offering unsworn testimony not subject to cross- examination. It has been recognized that such testimony, "although worthless as a matter of law, can be 'dynamite' to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence." ' " (Id. at p. 828.)
A prosecutor may not invite the jury to consider speculative and impermissible factors in reaching a verdict. For example, a prosecutor may not misstate or mischaracterize the evidence or give their personal opinion (see People v. Avena (1996) 13 Cal.4th 394, 420-421; People v. Lucas (1995) 12 Cal.4th 415, 472-473), nor may they imply the existence of evidence outside the record (People v. Kirkes (1952) 39 Cal.2d 719, 724). In Kirkes, the prosecutor argued a witness waited for defendant to be apprehended before coming forward because she feared for her safety. (Id. at pp. 722, 724.) The court concluded, "There is no evidence whatever upon which to base that statement. To picture [defendant] as a murderer who would kill again to cover his crime and so bold that he had threatened those who might testify against him was entirely unjustified." (Id. at p. 724.)
Although a defendant may "single[ ] out words and phrases, or at most a few sentences, to demonstrate misconduct, we must view the statements in the context of the argument as a whole." (People v. Dennis (1998) 17 Cal.4th 468, 522.) "The defendant generally need not show that the prosecutor acted in bad faith or with appreciation of the wrongfulness of his or her conduct, because the prosecutor's conduct is evaluated in accordance with an objective standard. [Citations.]" (People v. Bradford (1997) 15 Cal.4th 1229, 1333.)
We conclude the prosecutor's statements were inferences based on the evidence and therefore fair comments on the evidence. The prosecutor inferred based on the presence of the Yukon outside of apartment F on the day before the initial search where drugs were found that defendant was inside the apartment selling drugs. The comment was supported by the fact that defendant was observed multiple times in the Yukon, including twice at or near apartment F, where drug sales were occurring. The prosecutor then inferred that defendant ran his drug operation out of Evans Avenue. The inference was based on the evidence presented: defendant was observed going to each of those apartments after a court appearance, and agents found large quantities of drugs at Evans Avenue and a smaller quantity at Maple Street.
The argument was a fair comment on the evidence; whether the inferences were reasonable was for the jury to decide. (People v. Dennis, supra, 17 Cal.4th at p. 522.) No misconduct appears.
III
Ability to Pay
At sentencing, the court imposed a $300 restitution fine (§ 1202.4, subd. (b)(1)), a stayed $300 parole revocation fine (§ 1202.45), a $40 court operations fee (§ 1465.8), and a $30 conviction assessment fee (Gov. Code, § 70373), as well a $50 criminal lab analysis fee (Health & Saf. Code, § 11372.5), a $150 drug program fee (Health & Saf. Code, § 11372.7), and $465 in penalty assessments. Defendant contends this case must be remanded for a hearing on his ability to pay the fines and fees pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157. The Attorney General argues forfeiture.
We agree with defendant that an objection based on the due process argument accepted in Dueñas would be "based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial," and the failure to object on that basis is not forfeiture. (People v. Castellano (2019) 33 Cal.App.5th 485, 489; see contra, People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154-1155 .) However, under the law at the time of sentencing, defendant could object to the amount of the restitution fine and claim inability to pay in order to secure a reduction to the minimum fine. Ability to pay clearly may be considered in increasing the fine over the minimum. (§ 1202.4, subd. (c).)
The probation report recommended a $300 restitution fine, but the fine is set at the discretion of the court between $300 and $10,000, "commensurate with the seriousness of the offense." (§ 1202.4, subd. (b)(1).) The court may determine the amount by multiplying $300 by the number of years of imprisonment defendant is ordered to serve, multiplied by the number of felony counts of which defendant is convicted. (Id., subd. (b)(2).) Thus, for his three felony counts of conviction, defendant faced a statutorily recommended fine of $5,100. When the trial court invited comments before sentencing, defendant did not mention the amounts of any of the numerous fines and fees, or his inability to pay. Defendant requested the middle term for count 1, and he requested that the court sentence count 2 concurrently with count 1. Although the trial court imposed the minimum restitution fine, nothing in the record suggests defendant knew the court was contemplating disregarding the statutory guidelines we have discussed above. Defendant was in the best position to know his ability to pay, so it was incumbent on him to raise the issue if he could not pay any expected fines or fees. (See People v. Avila (2009) 46 Cal.4th 680, 729.)
We reached this figure by multiplying $300 by five years eight months (or five and two-thirds years) by three felony convictions.
Because defendant failed to raise the issue of his inability to pay when he could, he has forfeited the issue both with respect to the restitution fine and the fees.
The Attorney General contends that the trial court improperly failed to impose a $40 court operations assessment (§ 1465.8) and $30 conviction assessment (Gov. Code, § 70373) for each of defendant's three convictions. Defendant does not directly address this point in his reply. We observe that these assessments must be added for every conviction for a criminal offense, including misdemeanors. (Gov. Code, § 70373, Pen. Code, § 1465.8, People v. Shoeb (2005) 132 Cal.App.4th 861, 865-866.)
Here, defendant was convicted of four criminal offenses and is therefore subject to four $40 court operations assessments and four $30 conviction assessments. We modify the judgment to include these fees.
IV
Senate Bill No. 136
On October 8, 2019, the Governor signed Senate Bill No. 136 (2019-2020 Reg. Sess.) into law. The new law, which became effective on January 1, 2020, amends section 667.5, subdivision (b), which formerly imposed a one-year sentence enhancement for each separate prior prison term or county jail term imposed under section 1170, subdivision (h) where defendant had not remained free of custody for at least five years. (Former § 667.5, subd. (b).) Pursuant to Senate Bill No. 136, a one-year prison prior enhancement now applies only if a defendant served a prior prison term for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (See Stats. 2019, ch. 590, § 1.)
In supplemental briefing, the parties agree, as do we, that defendant is entitled to the ameliorative benefit of the amendment because his sentence was not final when Senate Bill No. 136 took effect and because his prior offenses were not for sexually violent felonies. (See People v. Vieira (2005) 35 Cal.4th 264, 306 [defendant entitled to retroactive application of criminal statute that takes effect during the time defendant has to appeal to the United States Supreme Court]; In re Estrada (1965) 63 Cal.2d 740, 742; People v. Lopez (2019) 42 Cal.App.5th 337, 341-342.) Therefore, we strike defendant's one-year prior prison term. We need not remand this matter for resentencing, as the trial court already imposed the maximum sentence available. (See id. at p. 342.)
DISPOSITION
The judgment is modified to strike the one-year prior prison term enhancement (§ 667.5, subd. (b)) and to impose the $40 court operations assessment (§ 1465.8) and $30 conviction assessment (Gov. Code, § 70373) for each of defendant's four counts of conviction. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
/s/_________
DUARTE, J. We concur: /s/_________
BLEASE, Acting P. J. /s/_________
KRAUSE, J.