Filed 1/30/14 P. v. Dalton CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F063443
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F11901198)
                   v.

ALVIN HENRY DALTON,                                                                      OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. Gary R.
Orozco, Judge.
         S. Lynne Klein, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Ivan
P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                      INTRODUCTION
       In March 2011, defendant Alvin Dalton shot his next door neighbor, Danetta H.,
and her two teenage children, Dazhane H. and Dezmon H., after intervening in a physical
altercation involving defendantʼs girlfriend, Lora White. As a result of the shooting,
Danetta died from a gunshot wound to the head, Dazhane suffered serious injuries
requiring surgery, and Dezmon suffered superficial injuries.
       After defendantʼs first trial ended in a mistrial, a second jury convicted him of one
count of second degree murder (Pen. Code,1 § 187; count 1) and two counts of
unpremeditated attempted murder (§§ 187, 664; counts 2 & 3). The jury found true the
allegations that defendant personally used a handgun in the commission of each count
(§ 12022.5, subd. (a)) and that he intentionally discharged a firearm in the commission of
each count, causing death or great bodily injury in counts 1 and 2 (§ 12022.53, subds. (c);
count 3, (d); counts 1 & 2). The jury also found true the allegation that defendant
inflicted great bodily injury in the commission of count 2 (§ 12022.7, subd. (a).)
Defendant was sentenced to an aggregate term of 83 years to life.
       On appeal, defendant contends: (1) the prosecutor committed prejudicial
misconduct in closing argument by misstating the law regarding heat of passion; (2) the
trial court erred by failing to instruct the jury that the enhancement allegations required
proof of the union of act and intent; (3) the trial court erred in imposing a $296 probation
report fee without first making a determination of defendantʼs ability to pay; and (4) the
trial court erred in imposing a $10,000 restitution fine. Defendant also raises ineffective
assistance of counsel claims in connection with each of his contentions. We affirm.
                                            FACTS
       On March 2, 2011, around 11:30 a.m., Danetta and Dazhane were walking home
from a nearby store when Lora started spraying them with mace and another strong-

1      Further statutory references are to the Penal Code unless otherwise indicated.



                                               2.
smelling substance. Dazhane reacted by throwing Gatorade bottles and a water bottle
towards Lora, and Danetta sprayed Lora with a mixture of water and insect spray.
       Lora went inside her apartment and shortly remerged carrying a pot of steaming
hot water. Lora ran towards Danetta and poured the water on her. Lora then hit Danetta
multiple times with the pot. Dazhane ran over and grabbed Lora by the hair and hit Lora
multiple times in the head.
       Defendant, who had been outside fixing the lock on his door, went to grab
Dazhane and pull her off Lora. As he pulled Dazhane away from Danetta and Lora,
defendant said, “Let it be a one-on-one fight.” Dazhane continued to hit and kick
defendant as he moved her away from Danetta and Lora who were now both on the
ground.
       Dazhane was able to get away from defendant and called out for her brother,
Dezmon. A few seconds later, Dezmon ran out of their apartment and tried to pull Lora
off Danetta. In the meantime, defendant punched Dazhane in the face and she fell to the
ground. After defendant punched Dazhane, Dezmon asked, “You just going to hit my
sister?” Defendant replied, “yes.”
       Dezmon pushed defendant and punched him in the face. Defendant said, “Oh,
youʼre going to hit me, youʼre going to hit me?” Then defendant said, “Fuck this shit”
and pulled out a gun. After firing one shot into the air, defendant pointed the gun at
Danetta and shot her two to three times. After Danetta fell to the ground, defendant
pointed the gun at Dazhane and shot her twice. Defendant then pointed the gun at
Dezmon and fired two shots.
       Dezmon started walking towards defendant and said, “You shot my mom” and
“You killed my mom.” Defendant said “yes” to each statement. Dezmon became angry,
grabbed defendantʼs arm, and started wrestling with defendant standing up. As they were
wrestling, defendant touched Dezmonʼs chest with the gun and Dezmon heard a click.



                                             3.
Lora came up next to them and asked defendant to give her the gun. Defendant handed
Lora the gun and let go of Dezmon. Defendant then went into his apartment.


       The defense
       Defendant described living next door to Danetta as “constant terrorism.”
Defendant explained that Danetta had threatened him and his personal property many
times, and had vandalized his patio, car, and truck.
       On the night before the shooting, defendant came home to find his security screen
door covered with a “sludge material” including pasta. Lora had to let him in because he
could not get his key in the lock. Defendant got three pots of hot water and took them
outside to clean the door.
       Around 11:00 p.m., Danetta came out and said, “um-hum, youʼre going to be
cleaning all night” and “[m]e and my homeboys, weʼre going to jack you—you and your
car tonight,” referring to the Strothers Boys gang. Dazhane was standing next to Danetta
when she made this threat. Defendant took it to be a credible threat because Danetta had
carried out all her past threats.
       After Danetta threatened him, defendant immediately went inside his home and
armed himself. He then went back outside and threw hot water on the security screen
door. It took him about 30 minutes to clean the door. Defendant also called the police
that night. He estimated that there had been 50 such incidents in the past six months
where the police had been called.
       The next morning, defendant went outside to clean the lock on the security screen
door. Dazhane tried to follow Lora inside their apartment, but defendant stopped her. He
then turned his attention back to cleaning the lock. Next defendant heard Danetta and
Dazhane cussing and yelling at Lora. He turned around and saw Danetta and Lora
“tangled” on the ground, and saw Dazhane kicking and punching Lora in the head.
Defendant dropped what he was doing and ran over and pulled Dazhane off of Lora.

                                             4.
Dazhane punched defendant in the face, kicked him in the legs and groin area, and tried
to bite him in the chest.
       Defendant then saw Dezmon run over to Lora and start pulling her hair and hitting
her. Defendant ran over to protect Lora.2 Defendant saw Dezmon reach into his left
pocket. As defendant was looking down, Dezmon punched him. Defendant then reached
for his gun. Defendant explained he reached for his gun because he was in fear for his
life based on the threat Danetta had made to him the previous night. Defendant reiterated
that “every time she would make a threat, she would follow through with it.”
       According to defendant, before he reached for his gun, all three family members—
Danetta, Dazhane, and Dezmon—were hitting and kicking him. Defendant estimated he
was hit five to six times and kicked three or four times. When defendant pulled out his
gun, Danetta and Dazhane were standing facing him and Dezmon was behind him.
Defendant fired his gun because he was in fear for his life and was trying to escape to his
apartment.
                                      DISCUSSION
I.     Prosecutorial Misconduct
       Defendant claims the prosecutor prejudicially misstated the law regarding heat of
passion during closing argument. Alternatively, defendant argues that, to the extent his
claim was forfeited, his trial counsel provided ineffective assistance.
       We conclude defendant forfeited his claim of prosecutorial misconduct. “When a
defendant believes the prosecutor has made remarks constituting misconduct during
argument, he or she is obliged to call them to the court’s attention by a timely objection.
Otherwise no claim is preserved for appeal. [Citation.] [¶] Defendant made no objection

2       Defendant claimed he had never seen Dezmon before and did not recognize him at the
time of the incident. Dezmon, however, testified he and his family had lived next door to
defendant and Lora for three years and, although he never spoke to defendant, he often saw
defendant coming and going from his apartment.



                                             5.
to the prosecutor’s remarks and thus [forfeited] his claim.” (People v. Morales (2001) 25
Cal.4th 34, 43-44.)
       Defendant cites the following statement by the prosecutor as objectionable: “So I
guess, again, ask yourself: The fact that Dezmon took a swing at him, is that sufficient
provocation that a reasonable person would be provoked to pulling out a gun and firing at
Danetta, and then at Dazhane, and then Dezmon? Again, the evidence proves that it was
not sufficient provocation.”
       Defendant contends the same type of argument was deemed improper in People v.
Najera (2006) 138 Cal.App.4th 212. Najera explained that with the defense of heat of
passion, “[t]he focus is on the provocation—the surrounding circumstances—and
whether it was sufficient to cause a reasonable person to act rashly. How the killer
responded to the provocation and the reasonableness of the response is not relevant to
sudden quarrel or heat of passion.” (Id. at p. 223.)
       Defendant is correct that the prosecutor’s hypothetical question regarding whether
“a reasonable person would be provoked to pulling out a gun and firing” suggests an
incorrect test for determining whether defendant acted in the heat of passion. It asks how
a reasonable person would have acted in defendant’s position. “[P]rovocation is not
evaluated by whether the average person would act in a certain way: to kill. Instead, the
question is whether the average person would react in a certain way: with his reason and
judgment obscured.” (People v. Beltran (2013) 56 Cal.4th 935, 949, original italics.)
Here, the prosecutor’s statements effectively “suggest[ed] that the jury should consider
the ordinary person’s conduct and whether such a person would kill.… [T]his was not
the correct standard.” (Id. at p. 954, fn. omitted.)
       The question becomes whether defendantʼs trial counsel rendered ineffective
assistance of counsel by failing to object to the prosecutorʼs statement. The burden is on
defendant to establish ineffective assistance by a preponderance of the evidence. (People
v. Ledesma (1987) 43 Cal.3d 171, 218.) To do so, a defendant “must show both that trial

                                              6.
counsel failed to act in a manner to be expected of reasonably competent attorneys acting
as diligent advocates, and that it is reasonably probable a more favorable determination
would have resulted in the absence of counselʼs failings.” (People v. Cudjo (1993) 6
Cal.4th 585, 623, citing Strickland v. Washington (1984) 466 U.S. 668, 687-696.)
       On direct appeal, as here, this burden can be stringent. When the record on appeal
“‘“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,” the claim on appeal must be rejected.ʼ
[Citations.] A claim of ineffective assistance in such a case is more appropriately
decided in a habeas corpus proceeding.” (People v. Mendoza Tello (1997) 15 Cal.4th
264, 266-267, italics added; People v. Jones (2003) 29 Cal.4th 1229, 1254 [ineffective
assistance claim properly resolved on direct appeal only where record affirmatively
discloses no rational tactical purpose for counselʼs actions].)
       Our Supreme Court has cautioned that, if not for this standard, “appellate courts
would become engaged ‘in the perilous process of second-guessing.ʼ [Citation.]
Reversals would be ordered unnecessarily in cases where there were, in fact, good
reasons for the aspect of counselʼs representation under attack. Indeed, such reasons
might lead a new defense counsel on retrial to do exactly what the original counsel did,
making manifest the waste of judicial resources caused by reversal on an incomplete
record.” (People v. Pope (1979) 23 Cal.3d 412, 426, disapproved on another ground in
People v. Berryman (1993) 6 Cal.4th 1048, 1031, fn. 10.)
       Defendant cannot meet his burden to establish ineffective assistance because the
record is silent as to why his trial counsel did not object to the complained-of remarks by
the prosecutor. The failure to object to evidence or argument “‘rarely constitutes
constitutionally ineffective legal representation ....ʼ [Citation.]” (People v. Huggins
(2006) 38 Cal.4th 175, 252; see also People v. Ghent (1987) 43 Cal.3d 739, 772-773
[rejecting contention counselʼs failure to object during prosecutorʼs closing argument

                                             7.
amounted to ineffective assistance because counsel “may well have tactically assumed
that an objection or request for admonition would simply draw closer attention to the
prosecutorʼs isolated comments”]; People v. Beagle (1972) 6 Cal.3d 441, 458, superseded
by statute on other grounds as stated in People v. Rogers (1985) 173 Cal.App.3d 205,
208-209 [failure to make certain objections to evidence ordinarily within realm of trial
tactics over which court will not engage in “judicial hindsight”]; People v. Zimmerman
(1980) 102 Cal.App.3d 647, 658 [failure to object to evidence ordinarily “held
insufficient to establish an unconstitutional impairment of the right to effective
counsel”].)
II.    Instructions on Union of Act and Intent and Firearm Discharge Enhancements
       Next, defendant contends the trial court erred by failing to instruct the jury on the
requirement of finding a union of act and intent as it related to the section 12022.53
enhancements.3 Defendant argues he did not forfeit this claim because the error affects
his substantial rights. Alternatively, he argues his trial counsel rendered ineffective
assistance by failing to object or request modification to the allegedly incomplete
instructions.
       In determining whether error has been committed in giving or not giving jury
instructions, an appellate court must consider the instructions as a whole and assume
jurors are intelligent persons, capable of understanding and correlating all instructions
that are given. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) “Instructions

3       In his opening brief, defendant appears to argue that a union of act and intent was
required for all the enhancements. However, in his reply brief, defendant only addresses the
enhancements for the intentional discharge of a firearm (§ 12022.53 subds. (c) & (d)). He does
not refute respondentʼs argument that the personal firearm use enhancement (§ 12022.5, subd.
(a)) and great bodily injury enhancement (§ 12022.7, subd. (a)) did not require a union of act and
intent. We agree with respondent. (See People v. Poroj (2010) 190 Cal.App.4th 165, 173
[“section 12022.7, subdivision (a) is not required to contain, and by its terms does not contain, an
intent element in addition to the general or specific intent element of the underlying felony or
attempted felony to which it applies”].)



                                                 8.
should be interpreted, if possible, so as to support the judgment rather than defeat it if
they are reasonably susceptible to such interpretation.” (People v. Laskiewicz (1986) 176
Cal.App.3d 1254, 1258.)
       Here, the trial court informed the jury: “The crimes charged in this case require
proof of the union, or joint operation, of act and wrongful intent.” (CALCRIM No. 251,
italics added.) The section 12022.53 enhancement instructions clearly referred to the
enhancements as being part of the allegations in the substantive counts. For example, the
jury was told: “If you find the defendant guilty of the crimes charged in counts 1 and 2,
you must then decide whether, for each crime, the People have proved the additional
allegations that the defendant personally and intentionally discharged a firearm during
those crimes and, if so, whether the defendantʼs act caused great bodily injury or death.”4
(CALCRIM No. 3150, italics added.) Thus, the jury would have understood the union of
act and intent requirement applicable to the “crimes charged” (CALCRIM No. 251)
applied equally to the enhancements alleged in each count. Although it would be helpful
to include language that explicitly referred to accompanying enhancements, we see no
error in the instructions given here.
       Because the trial courtʼs instructions were not erroneous, we reject defendantʼs
related ineffective assistance claim based on his trial counselʼs failure to object or request
modification. It is well settled that trial counsel is not required to make tactical decisions,
undertake futile acts, or file meritless motions simply to withstand later claims of
ineffective assistance. (People v. Anderson (2001) 25 Cal.4th 543, 587; People v. Hines
(1997) 15 Cal.4th 997, 1038, fn. 5.)
III.   Probation Report Fee

4       Likewise, the jury was instructed: “If you find the defendant guilty of the crime charged
in Count[] 3, you must then decide whether the People have proved the additional allegation that
the defendant personally and intentionally discharged a firearm during that offense.”
(CALCRIM No. 3148, italics added.)



                                               9.
       Defendant contends there was insufficient evidence he could afford to pay the
$296 probation report fee imposed by the trial court. Alternatively, defendant argues
that, to the extent the issue is forfeited, his trial counsel provided ineffective assistance.
       The probation report fee was based on section 1203.1b, which authorizes the
recoupment of certain costs incurred for the preparation of presentence investigations and
reports on the defendant’s amenability to probation. (See People v. Valtakis (2003) 105
Cal.App.4th 1066, 1070 (Valtakis).) Section 1203.1b, subdivision (b) provides in
pertinent part: “The [trial] court shall order the defendant to pay the reasonable costs if it
determines that the defendant has the ability to pay those costs based on the report of the
probation officer, or his or her authorized representative.”
       We conclude defendant forfeited the issue by not objecting at sentencing.
(Valtakis, supra, 105 Cal.App.4th at pp. 1071-1072 [§ 1203.1b probation fee].) In People
v. McCullough (2013) 56 Cal.4th 589 (McCullough), our Supreme Court recently held
that the defendant’s failure to object to the imposition of a jail booking fee (Gov. Code,
§ 29550.2) forfeited the claim that he lacked the ability to pay the fee. The court
concluded that the defendant’s financial ability to pay the fee was a question of fact, not
law. (McCullough, supra, at p. 597.) “Defendant may not ‘transform … a factual claim
into a legal one by asserting the record’s deficiency as a legal error.’ [Citation.] By
‘failing to object on the basis of his [ability] to pay,’ defendant forfeits both his claim of
factual error and the dependent claim challenging ‘the adequacy of the record on that
point.’ [Citations.] … [B]ecause a court’s imposition of a booking fee is confined to
factual determinations, a defendant who fails to challenge the sufficiency of the evidence
at the proceeding when the fee is imposed may not raise the challenge on appeal.” (Ibid.)
       The same rationale applies to presentence probation report fee. Before sentencing,
defendant was in possession of the probation officer’s report, which recommended that
the court impose a $296 probation report fee pursuant to section 1203.1b. When the



                                              10.
court sentenced defendant and imposed the fee, defendant did not object to the fee and
thus challenges to the fee are forfeited on appeal.
       Moreover, defendant cannot meet his burden on his ineffective assistance of
counsel claim because the record is silent as to why his trial counsel did not object to the
probation report fee. (See Mendoza Tello, supra, 15 Cal.4th at p. 266.) Counsel may
have known facts outside the record that would have supported an ability-to-pay finding.
IV.    Restitution Fine
       Finally, defendant challenges the trial courtʼs imposition of a $10,000 restitution
fine based on a failure to consider defendantʼs ability to pay. Defendant relies on
Southern Union Co. v. United States (2012) 567 U.S. ___ [132 S.Ct. 2344] (Southern
Union), to argue that the determination of facts affecting the restitution fine amount
should have been decided by a jury. Alternatively, defendant again argues that, to the
extent his claims are forfeited, his trial counsel provided ineffective assistance.
       At the time of defendantʼs sentencing, section 1202.4, subdivision (b) required the
trial court to impose a restitution fine between $240 and $10,0005 in every felony case
unless “compelling and extraordinary reasons” exist for not doing so. (§ 1202.4, subd.
(b).) While a defendantʼs inability to pay can be considered when increasing a fine
beyond the statutory minimum, it “shall not be considered a compelling and
extraordinary reason not to impose a restitution fine.” (§ 1202.4, subd. (c).) When
determining the amount of the fine, the court must consider “any relevant factors,
including, but not limited to, the defendantʼs inability to pay, the seriousness and gravity
of the offense and the circumstances of its commission, any economic gain derived by the
defendant as a result of the crime, the extent to which any other person suffered losses
[tangible and intangible] as a result of the crime, and the number of victims involved in

5       As of January 1, 2014, section 1202.4, subdivision (b)(1) calls for the imposition of a
felony restitution fine between $300 and $10,000. (§ 1202.4, subd. (b)(1).)



                                                11.
the crime.” (§ 1202.4, subd. (d).) The court need not conduct a separate hearing to
determine the fine, nor make express findings regarding the factors considered in
determining the fine. (Ibid.) Indeed, the court may determine the amount of the fine by
formula. (§ 1202.4, subd. (b)(2).)6
       Although defendant forfeited most claims on this point by failing to object during
sentencing (see People v. Nelson (2011) 51 Cal.4th 198, 227 (Nelson)), we will consider
defendantʼs claim based on Southern Union because that case was decided after his
sentencing hearing. (Southern Union, supra, 567 U.S. ___ [132 S.Ct. 2344].)
       In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the United States
Supreme Court held that a jury must decide beyond a reasonable doubt any fact that
increases a criminal penalty beyond a statutory maximum. (Id. at p. 490.) In Southern
Union, the Court extended the Apprendi rule to monetary fines. (Southern Union, supra,
567 U.S. at pp. _____, [132 S.Ct. at pp. 2352, 2357].) Defendant argues the jury should
have decided the amount of the restitution fine because it increased his sentence.
Defendantʼs argument was recently addressed and rejected in People v. Kramis (2012)
209 Cal.App.4th 346, 351-352 (Kramis). Kramis explained that Apprendi and Southern
Union do not apply unless a court imposes a penalty that exceeds a statutory range.
(Kramis, at p. 351.) Because the trial judge imposed a $10,000 fine in Kramis, the court
held the fine was within the statutory range, did not implicate Apprendi or Southern
Union, and therefore did not need to be decided by a jury. (Kramis, at pp. 351-352.)
Like the fine in Kramis, the trial court here exercised discretion within the statutory range
and imposed a $10,000 restitution fine. Although the fine constitutes the statutory




6      Section 1202.4, subdivision (b)(2) allows the court to set the fine by multiplying the
minimum fine under section 1202.4, subdivision (b)(1), times the number of years of
imprisonment, times the number of convicted felony counts. (§ 1202.4, subd. (b)(2).)



                                               12.
maximum, it does not exceed the maximum and Southern Union therefore does not
apply.
         We need not determine whether trial counselʼs failure to object to the restitution
fine was defective because even assuming counselʼs performance was deficient,
defendant cannot demonstrate prejudice. Had trial counsel preserved an objection to the
amount of the restitution fine, the amount of the fine would be subject to an abuse of
discretion standard on appeal. (Nelson, supra, 51 Cal.4th at p. 227.) In reviewing the
amount of the restitution fine, numerous factors in section 1202.4, subdivision (d) support
the trial courtʼs decision. The crimes in this case—second degree murder and attempted
murder—were extremely serious. Defendant committed the crimes by intentionally
firing a handgun at three unarmed victims. The surviving victims are minors who lost
their mother as a result of defendantʼs violent actions. In light of all the circumstances in
this case, it was not an abuse of discretion for the trial court to impose a $10,000
restitution fine. Thus, defendant has not met his burden to show ineffective assistance of
counsel.
                                       DISPOSITION
         The judgment is affirmed.



                                                                  _____________________
                                                                               HILL, P. J.
WE CONCUR:


 _____________________
GOMES, J.


 _____________________
POOCHIGIAN, J.



                                              13.
