Filed 9/13/19



                       CERTIFIED FOR PARTIAL PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FIFTH APPELLATE DISTRICT


 THE PEOPLE,
                                                                  F073846
            Plaintiff and Respondent,
                                                     (Tulare Super. Ct. Nos. VCF321552
                  v.                                           & VCF283307)

 LUIS ARRELLANES AVILES,
                                                                 OPINION
            Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T.
Montejano, Judge.
        S. Lynne Klein, under appointment by the Court of Appeal, for Defendant and
Appellant.
        Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Nora S.
Weyl, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
                                        -ooOoo-




        Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, only the
Introduction, Part VI of the Discussion, the Disposition, and the Concurring Opinion are
certified for publication.


                               SEE CONCURRING OPINION
                                      INTRODUCTION
       Appellant/defendant Luis Arrellanes Aviles led officers on a foot pursuit through
houses, garages, and backyards in a residential neighborhood. An officer found
defendant hiding inside a bedroom closet of a residence and ordered him to surrender; the
officer did not realize that defendant was in possession of a firearm. Instead of
complying with the officer’s orders to surrender, defendant fired multiple gunshots and
wounded two officers. One officer was shot four times, and the second officer was shot
once. The other officers at the scene returned fire, and defendant finally surrendered after
being wounded.
       Defendant was charged and convicted of counts 1 and 2, the attempted
premeditated murders of the two police officers (Pen. Code, §§ 664/187, subd. (a))1 with
firearm enhancements (§ 12022.53, subd. (d)); and count 3, possession of a firearm by a
felon (§ 29800, subd. (a)(1)). Defendant was sentenced to an aggregate term of 80 years
to life in state prison, plus a consecutive term of two years for his plea in a separate case
for assault with a deadly weapon – a cutting instrument – by means of force likely to
produce great bodily injury. (§ 245, subd. (a)(1)).
       We affirm defendant’s convictions in counts 1, 2, and 3 and the jury’s findings on
the firearm enhancements.
       In the published portion of this opinion, we address defendant’s reliance on People
v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) to argue that the trial court violated his
constitutional rights to due process and equal protection by ordering him to pay certain
fines, fees, and assessments without finding he had the ability to pay those amounts. We
find Dueñas was wrongly decided, and that a constitutional challenge to the imposition of
fines, fees, and assessments should be based on the Excessive Fines Clause of the Eighth
Amendment instead of the due process rationale utilized in Dueñas.

       1   All further statutory citations are to the Penal Code unless otherwise indicated.


                                               2.
       We will remand the matter for the trial court to address specific sentencing issues
as set forth in the unpublished portion of this opinion, and otherwise affirm defendant’s
convictions, the firearm enhancements, and the fines, fees, and assessments imposed.
                                         FACTS
       On May 16, 2013, Visalia Police Department Officers Collins and Alfano were on
patrol. They were members of the gang suppression unit and drove an unmarked police
cruiser that was a black Dodge with a light bar inside the front windshield.
       Officer Alfano testified that even though the vehicle was not marked, he knew that
gang members in the area recognized the car and knew the police were inside. Gang
members referred to the unit as the “black attack.” The officers were wearing black
uniforms and tactical vests that displayed their badges.
       Around 1:00 p.m., the officers were patrolling the “Holiday Homes” area of
Visalia. In their experience, the area recently had a large amount of gang activity and
gang-related drug sales and shootings. The officers also had numerous contacts with
Norteño gang members in the area.
       The officers turned onto North Cain Street and saw a black Hyundai Sonata
traveling in front of them. The vehicle turned very quickly into a residential driveway in
in the middle of the block. As the vehicle made the turn, it was going so fast that the
front end of the car hit the driveway’s pavement and the vehicle bounced.
       Officer Collins testified both doors of the car flew open and two people got out.
The two occupants were later identified as defendant and Phillip Marquez. Defendant got
out of the driver’s side and Marquez got out of the passenger side.
       Officer Alfano testified defendant “looked hard” in the officers’ direction, “held
the look for a moment,” and then began “to fast walk towards the front of the residence.”
Alfano testified defendant “wasn’t … just strolling up to the front door, he was walking

          See footnote, ante, page 1.


                                             3.
at a fast pace toward the gate on the north side of the residence.” Marquez also walked
towards the front of the residence.2
       The officers decided to stop and check out the vehicle; they pulled their car to the
curb in front of the residence.
Defendant Jumps the Fence
       Officer Collins testified that as soon as he got out of the patrol car, the driver of
the vehicle, identified as defendant, “looked at us and turned around, ran the other way
and hopped a fence.” Collins testified that he believed the driver “definitely saw us, and
that’s why he pulled into the driveway.”
       When defendant hopped the residence’s fence, Officer Collins scaled the same
fence and intended to follow him. Collins lost sight of defendant and returned to the
patrol car to call for backup assistance.
Detention of Marquez
       When defendant jumped the fence, Marquez was still standing in front of the
residence where defendant had stopped the car. Officer Alfano immediately ordered
Marquez to stop. Marquez complied with the order. Alfano detained Marquez,
conducted a patdown search, and placed him in the back of his patrol car.
       There was no evidence that Marquez was in possession of any contraband.
The Search for Defendant
       Numerous officers responded and set up a perimeter in the residential area where
defendant had jumped the fence, in the area between North Cain and North Stover
Streets. The officers contacted residents and obtained their permission to search their
homes and backyards.



       2The person who lived in the residence testified that she heard a loud noise and
saw the officers looking for someone. She did not recognize the car in her driveway, and
there was no evidence that she knew defendant or Marquez.


                                              4.
       A resident on North Cain heard noise like someone had jumped his fence. The
resident found a pair of white shoes in the backyard that did not belong to him and later
pointed them out to the police.
       A resident on North Stover Street saw someone with a gun run in front of her
house. The man was a police officer, but she did not realize it at the time. She became
frightened and hid in a closet with her children. After a short time, she thought she heard
someone try to open a door in the house. She stayed in the closet with the children.
About 10 minutes later, she decided to leave the closet since it had been quiet. She
walked through the house and everything seemed normal. She decided to lock the door
that led from her house into the garage. When she opened the door to the garage, she
found a man was in the garage, and he was holding a gun. He was wearing a beige T-
shirt and white or beige shorts with dark checkered squares. She did not see his face. He
was holding the doorknob and trying to keep the garage door closed. She screamed and
closed and locked the door. She ran to the front of her house, saw the police officers in
the street, and yelled that someone was in her garage with a gun.
       Officer Ferreira, who was searching the area, stood up on a fence at the house on
the corner of Douglas Avenue and North Stover Street. He saw a man in a white T-shirt
and black shorts jumping fences but could not follow him.
       Officer Ferreira and Sergeant Epp searched a residence on North Stover after
receiving permission from the occupants. They went through every room except one
bedroom where the door was locked. They did not find anything, checked the backyard,
and then went to another house.
Officer Collins Finds Defendant in the Closet
       After Officer Ferreira searched another property, he returned to the backyard of
the house he had just searched with Sergeant Epp on North Stover. He looked through
the windows of the house and discovered the bedroom door that had been locked when he



                                            5.
initially searched the house was now open. Ferreira told Officer Collins that they should
go back into the house and search that room.
       Officer Ferreira went into the bedroom that had been locked and did not find
anything. Officer Collins and Ferreira checked another bedroom, where the drapes were
closed, and it was dark. Ferreira did not find anyone and walked into the hallway.
       Officer Collins remained in that bedroom. He was holding his service weapon in
his hand. He opened the closet door and it was full of clothes and other items. He moved
some of the clothes around and realized he was looking at a person’s shoulder.
Defendant Shoots Officers Collins and Ferreira
       Officer Collins testified that someone was hiding in the closet. He stepped back,
identified himself as a police officer, and ordered whoever was in the closet to show his
hands. No one responded. Collins placed his service weapon in his holster because he
planned to use his hands to arrest the person in the closet.
       As Officer Collins reached into the closet, he heard a loud bang and felt a sharp
pain. The man in the closet, later identified as defendant, shot Collins under his right
shoulder.
       Officer Ferreira heard Officer Collins order someone to show his hands. He ran
back to the bedroom and saw the muzzle flash when Collins was shot.
       Officer Ferreira testified that he next saw the muzzle of the gun “[p]rotruding
through the clothes toward the bottom of the closet” and saw another muzzle flash.
Defendant was still in the closet and shot Ferreira in the left shoulder. Officer Collins
testified he saw the muzzle flash when Ferreira was shot.
       After he was shot, Officer Ferreira stumbled out of the bedroom because he
thought the gunman was tracking him. Ferreira went into the adjacent bedroom, closed
the door, and waited for the gunman to follow him.
       Officer Collins backed away from the closet, but defendant fired another shot, and
Collins was hit in the upper left arm.

                                              6.
       Officer Collins tried to reach for his service weapon, but his arm was injured.
Defendant fired another shot from the closet that hit Collins in the center of his chest.
Collins was wearing a bulletproof vest, and it stopped the bullet from entering his body.
       Officer Collins testified he could not see the gunman or his weapon in the closet,
and just saw “a dark mass coming out at me.” Collins realized that he had to reach for his
gun or the gunman was going to kill him. He managed to pull his service weapon and
returned fire into the closet.
       As Officer Collins raised his arm to fire, defendant fired another shot and hit
Collins a fourth time; the bullet entered under Collins’s armpit and went into his back.
       Officer Collins kept firing into the closet. He heard screaming and believed he hit
the gunman. Collins backed out of the bedroom as he returned fire.
Apprehension of Defendant
       The other officers rushed into the house when they heard the gunshots. Sergeant
Brown and other officers took position in the hallway. Brown testified the suspect, later
identified as defendant, emerged from the closet and appeared to be scooting out of the
bedroom door. The suspect tried to get into the hallway. Brown fired 13 shots until his
weapon was empty. The suspect was hit, spun around, and fell.
       Officer Ferreira came back into the bedroom and found defendant lying on his
back. Defendant was bleeding and moaning in pain. A revolver was on the floor.
Ferreira placed defendant in handcuffs. Ferreira testified defendant was wearing the
same clothing as the man who had been jumping fences.
       The officers moved defendant from the house to the sidewalk. The paramedics
arrived and treated defendant for gunshot wounds, and he was taken to the hospital.
       Defendant had been shot multiple times and was wounded in his left eye, left knee,
just below the pelvis, right thigh, left forearm, and right forearm.




                                              7.
The Officers’ Injuries
       Officers Collins was shot four times. He was in the hospital for two or three days,
and unable to return to work for eight months.
       Officer Ferreira was shot once and did not return to work for two months.
Evidence Recovered in the Area
       Defendant’s weapon was found on the bedroom floor. It was a .357-caliber
Magnum Ruger Blackhawk revolver. It contained six expended shell casings.
       The police searched the garage at the house on North Stover, where the resident
had seen the man with a gun. They found a glass smoking pipe and other items that
appeared to have been dumped in the garage and did not belong to the resident.
       The officers searched defendant’s clothing that the paramedics cut off his body
and left on the street when they treated him at the scene of the shooting. Defendant had
been wearing black and white cargo shorts. The pockets contained a bindle with a white
crystalline substance consistent with methamphetamine, keys, a wallet containing $191, a
California identification card, and a debit card in the name of Andrea Perez (later
identified as defendant’s wife).
       A damaged cell phone was in the front left pocket of defendant’s shorts. The cell
phone had apparently been in his pocket and was hit and damaged by a projectile from a
bullet. Defendant’s clothing included white boxer shorts with shamrocks, a red bandana,
a white sock, and a red belt with a buckle. The buckle had the letter “A” cut into the
buckle.
Defendant’s Tattoos
       An officer took photographs of defendant’s tattoos at the hospital. There was
“XIV” under the ring finger of his left hand; the letter “S” on his face, above his right
eyebrow; and “familia” on his right cheek. The letter “K” was on the left side of his face,
above the left eyebrow. There were four dots to the left side of his left eye.



                                             8.
       Defendant had the letter “S” tattooed on his neck; a Raider shield was under the
“S” and appeared to black out and cover another tattoo. “Familia” was on his face;
“Luis” was below his neck with the letter “S” crossed out. “RIP Anastasia” was on the
left side of his neck; “Noah” was on the left side of his neck with red shading; and “XIV”
was on the back of his head.
       Officer Collins testified defendant had a closely-shaved head that showed tattoos;
they were hidden by his hair length at the time of trial.
Marquez’s Clothing and Tattoos
       Detective Ford took photographs of Marquez on the day of the shooting. Marquez
was wearing red Nike Air Jordan shoes. A red bandana with solid creases on the top and
bottom was neatly folded in his left pocket. He was wearing red boxer shorts. His long
hair was in a “Mongolian” tail that was common among Norteño gang members.
       Marquez had “very prominent[]” tattoos of the letter “N” on the right side of his
face and the letter “S” on the left side of his face; the letters “SK” underneath his chin;
and four dots on the left side of his face. Ford testified the letters “SK” were significant
for Norteños.
       Marquez had tattoos of the letters “G” and “ST” on his right arm. Detective Ford
testified the letters represented Giddings Street, an area claimed by Norteños in Visalia.
On the web portion of his left hand, there were four dots, “666” and a star. The letters
“CA” were on the inside of his left arm and meant California, and there were four dots
above it. The words “can’t” and “stop” were on the left and right front sides of his chest.
“Visalia” was across his stomach. His name, “Marquez,” was tattooed in red. The letters
“T” and “C” were, respectively, on the inner portions of his left and right arms, so they
could be seen from behind when he was walking away.3

       3There is no evidence that Marquez was found in possession of a firearm or any
contraband. Marquez was not charged with defendant, and he did not testify at
defendant’s trial.


                                              9.
Defendant’s Wife
       Andrea Perez Aviles testified she had lived with defendant and was later married
to him. By 2013, they no longer lived together, but defendant still came around because
she was expecting his child.
       Ms. Aviles testified defendant had been a Norteño “[a]t one point in his life,” and
he belonged to the “East Side Delano” set. Ms. Aviles testified their last name was
spelled with an “S”, but defendant always spelled it “with a Z just throughout his life.”
Ms. Aviles knew Norteños did not like to use the letter “S,” and she assumed it was
because it stood for “Sureño.” Ms. Aviles testified defendant hung around with people
who claimed to be Norteño gang members, and she could tell they were Norteños based
on the way they talked and used terms such as “scrap.”
       Ms. Aviles testified defendant was supposed to turn himself in two years prior to
the shooting in this case. Defendant said he that he had been “on the run” for two years,
and “he just always told me he wasn’t gonna go back” to jail. Defendant never said that
he would use violence to prevent that from happening.
       Defendant told her that he was treated for depression and received medication
when he was in the Youth Authority. He later went for mental health treatment but never
followed up.
       Ms. Aviles testified that about two days prior to the shooting, she argued with
defendant because he did not have a job, and he was jealous of the father of her older
child. Defendant said that he did not want to live and was going to commit suicide if
they separated or she left him. Ms. Aviles moved out.4




       4 Ms. Aviles was interviewed by an officer on the night of the shooting, and the
officer testified that she never said defendant had threatened to kill himself a few days
earlier.


                                            10.
       Ms. Aviles admitted that she visited defendant in jail in June 2014. By the time of
trial, she had filed for divorce, moved for defendant not to have any visitation with their
child, and intended to sever all ties to him.
                      THE PROSECUTION’S GANG EVIDENCE
Gang Evidence5
       Officer Alfano testified that when he initially saw the two men run out of the car
that stopped in the residential driveway, “they had a look of being gang members of
having gang affiliation” by their tattoos and “what they were wearing,” which was the
“baggy dress style, loose clothing, a lot of times to conceal weapons and drugs.”
       Officer Alfano felt the incident was gang-related when it began because of “the
totality of the circumstances. It was the fact that one of them ran from us and hopped a
fence. The other one [Marquez] had gang-related tattoos upon me contacting that
individual, and the baggy clothing and … just it felt gang related to me…. It felt gang
related from my experience in my five years in the gang unit and even my experiences
prior to that working patrol.” Alfano conceded that if he was testifying as a gang expert
in the case, he would need more evidence than “just baggy clothing or just tattoos” to
reach an opinion of whether or not defendant and Marquez were gang members.
       Officers Collins testified he had two to three prior contacts with defendant
involving an arrest for domestic violence and a field interview. Collins never had any
problems with defendant, and defendant had never been aggressive toward law
enforcement.

          See footnote, ante, page 1.
       5The information alleged gang enhancements (§ 186.22, subd. (b)) for all three
counts. The jury found the gang enhancement was true for count 3, possession of a
firearm by a felon, but found the gang enhancements were not true for counts 1 and 2, the
attempted premeditated murders of Officers Collins and Ferreira.
      As we will discuss in parts I and II, defendant contends there is insufficient
evidence to support the gang enhancement for count 3.


                                                11.
The Gang Stipulations
       Just before the prosecution’s gang expert testified, the court advised the jury that
the parties had entered into two stipulations.
       The first stipulation was that the “Norteños are a criminal street gang within the
definition of … section 186.22.”6
       The second stipulation was that the shorts that were cut off from defendant and left
on the street by the paramedics had “an elastic type band and no belt loops.”7
The Prosecution’s Gang Expert8
       Visalia Police Officer Logan, a member of the Gang Suppression Unit, testified as
the prosecution’s expert on criminal street gangs.



       6  In part I, we will address defendant’s contention that this stipulation was
insufficient to support the gang enhancement found true for count 3, felon in possession
of a firearm.
       7 This stipulation was relevant to defense counsel’s claim that the red belt and the
buckle with the “A,” found in the pile of clothing on the street where defendant was
treated by the paramedics, did not belong to defendant because he was wearing cargo
shorts that did not have belt loops.
       8 Prior to the testimony from the gang expert, defense counsel argued the
prosecution could only ask hypothetical questions based on the evidence and did not
address the ultimate disputed questions.
       The prosecutor replied the expert’s testimony would be based on the evidence.
The prosecutor also stated that he would ask the expert “how would the attempting to
murder a police officer benefit a Norteño criminal street gang in any fashion? [¶] I’m
not asking about how this particular crime benefits – this particular type of crime benefits
the gang. That’s what I’m asking. I’m not asking if this one does but this particular type
of crime.”
        The court stated the question had to be in the form of a hypothetical “or you could
just ask generically … not about this particular case, but if someone were to kill a police
officer,” then how would it benefit their gang. The prosecutor said he would do that.
       Defense counsel objected to any evidence about whether Philip Marquez was a
gang member. The court overruled the objection and held the evidence was relevant on
the question of whether defendant acted “in association with” another gang member.

                                             12.
       Officer Logan testified the police department used 10 validation points to
determine if someone was a gang member. The validation points were if the person
admitted gang membership, admitted membership while in a custodial facility, involved
in a gang-related crime, named by a reliable source, writes or found in possession of gang
material, identified in or corresponds with gang members; wore gang clothing or attire,
and had gang associated tattoos.
       The common tattoos for Norteños were “one dot on the right arm, elbow, wrist,
hand and then four dots on the other side, X4, the number 14, the letter N, the word
Norte.” The number 14 represented the 14th letter of the alphabet, which was the letter N
that represented Nuestra Familia, the northern prison gang. “X4” or “XIV” stood for the
roman numeral version of “14.”
       Officer Logan testified the color red and red clothing and apparel were also
associated with Norteños, including Nebraska hats with the letter “N,” and Cincinnati
Reds hats with the letter “C.” The letter “C” stood for “catorce” which meant “14” in
Spanish. A Norteño gang member would carry a red bandana to actively identify himself
as a Norteño “so that other Norteños, if they’re in a different city, different neighborhood,
then they can be readily identified by their friends in that city as being Norteño gang
members or to identify themselves to rivals as being Norteño gang members.”
       Over the prior 10 to 15 years, active Norteño members have not obtained visible
gang tattoos or displayed red bandanas to be more discreet when committing
predetermined crimes and prevent the police from documenting them as active gang
members. They may still keep a red bandana inside a pocket.
       The Sureño gang was the “number one enemy” of the Norteños. Law enforcement
officers are also considered enemies of the Norteños.


       As we will explain below, however, the jury instruction on the gang enhancement
only defined the “benefit” element of the enhancement and excluded the “in association
with” aspect.

                                            13.
       Officer Logan testified the officers in this case were shot in the “Holiday Homes”
area of northeast Visalia. “It is predominately frequented by Norteño gang members.
More specifically, it’s considered North Side Visa Boys territory. This is a section of the
town that is dominantly controlled and where a lot of North Side Visa Boys grew up.”
There were two residences in the area occupied by people who were members of Sureño
gangs known as BTL and Vicky’s Town. As a result, other residents of the area who
were not in the gangs had been caught in the crossfire of shootings between rival gang
members.
       Officer Logan testified that no matter what gang a person was in, a member who
shoots at a police officer will raise his own status and the status of his gang.

       “It shows that you’re willing to use violence to uphold not only your own
       reputation, but the reputation of your … gang. [¶] Shooting at a cop is the
       most heinous crime that a gang member can commit, and that’s gonna [sic]
       boost the reputation of that gang as being violence. [¶] Violence – respect
       in the gang is obtained by violence. Dominance is obtained by violence.
       So the more violent they are, the more that you believe and rivals perceive
       them to be, the more respect they’re gonna [sic] get.”
       The gang member who shoots an officer will raise his own status “tremendously”
within the gang and “allows them to hold positions of power by elevating their status.
They have shown they are willing to commit the most heinous of acts for their gang.
This, in turn, later allows them to hold a position of power, give directives.”
       Officer Logan testified about members of different gangs being together:

              “Q. And what is the relevance of gang members hanging out with
       other gang members?

              “A. Back in the day, there used to be a lot of red on red violence,
       gang members from one neighborhood fighting with gang members from a
       different neighborhood. [¶] Now, it’s more organized so now you have
       association within the neighborhoods where they’ll go and commit crimes
       together.”




                                             14.
       Officer Logan testified that an active gang member would not associate with
someone if he knew or believed the other person was a dropout. Active members refer to
dropouts as “trash” and will not commit crimes with them. A Norteño dropout would not
want to advertise or openly display their gang tattoos or red colors because active
Norteños would take action on that person.
The Gang Expert’s Testimony About Defendant
       Officer Logan testified about several contacts between defendant and the Visalia
Police Department. On March 10, 2010, officers responded to the Blitz bar on a
disturbance call about a person brandishing a weapon. Defendant was apprehended after
he ran from a car. Defendant was wearing red boxers. Graciano Trevino, an active
Norteño gang member, was in the car, and a loaded .380-caliber handgun was in the
vehicle.
       On March 18, 2010, officers conducted a field interview with defendant, who was
carrying a red cell phone. Defendant was not arrested that day. Officer Logan testified
that defendant “admitted to being an East Side Delano Norteño gang member.”
Defendant said that if he was going to be incarcerated, “he would still be housed with
active gang members.”
       Officer Logan testified that on April 12, 2013, an officer conducted a field
interview with defendant. Defendant admitted gang membership, that he associated with
gang members, and he had gang-associated tattoos.
       Officer Logan testified that on August 2, 2010, Officer Alfano contacted and
arrested defendant for possession of methamphetamine. Defendant admitted to being “an
active East Side Delano Norteño gang member,” and he had the letters “SK” tattooed on
his neck. Defendant said the tattoo “stood for scrap killer,” and scrap was a derogatory
term for a Sureño gang member.




                                             15.
       Officer Logan testified that in his opinion, defendant was “an active Norteño gang
member” at the time of the shootings in this case, and that he “was functioning as an
active Norteño gang member in Visalia.”
The Gang Expert’s Testimony About Marquez
       Officer Logan also testified about Philip Marquez, who was the passenger in
defendant’s car and was arrested immediately after he exited the vehicle. Logan testified
Marquez had several gang tattoos that showed he identified himself as a Norteño.
       Officer Logan testified that on August 26, 2009, a deputy from the Tulare County
Sheriff’s Department arrested Phillip Marquez for battery with a gang enhancement.
Marquez admitted to “being an active North Side Visa, NSV gang member and that he
also associated with gang members during the time of the incident.”
       On January 3, 2010, Marquez was interviewed by the sheriff’s department as a
witness to a petty theft investigation. Marquez was with Ryan Lopez and Geronimo
Hernandez. Lopez was known as “Grinch” and an active MGB, “which is Mexican Gang
Bangers, Norteño gang member,” and Hernandez was also an active Norteño member.
       On March 17, 2010, Officer Pena contacted Marquez during a traffic stop.
Marquez said he “backs up north and that he has also fought in order to back up the north
in the past,” and that he would be housed with active Northerners if he was taken to
juvenile hall.
       On May 26, 2010, Marquez was contacted during a curfew violation. He was with
five men: Miguel Calderon, Joseph Marquez, Jesus Hernandez, Oscar Martinez, and
Rudy Dominguez, “all of which are active Northerners” in Visalia. Hernandez was an
active North Side Visa Youngster and Martinez was in the Northside Visa Boys.
       On September 12, 2010, Marquez was contacted by an officer during a traffic stop.
Marquez was wearing gang clothing and said he “affiliates” with Norteños.




                                           16.
Additional Stipulations
         The court advised the jury about two additional stipulations. The parties stipulated
to the admission of a Department of Justice laboratory report with an analysis of all of the
firearms that were fired, and shell casings and projectiles recovered from the shooting
scene.
         The parties also stipulated that defendant was convicted on December 1, 2010, in
case number VCF243623 for a felony violation of Health and Safety Code section 11377,
subdivision (a).9
                                    DEFENSE EVIDENCE
         Detective Sanchez, the lead investigator, was called as a defense witness and
testified there was no evidence defendant made any gang signs or uttered any gang slurs
during the course of this case.
         Sanchez testified that, at the time of trial, defendant was in custody. There were
three possible classifications for housing: Norteños, Sureños, and “keep separates.”
Defendant was housed with prisoners who are kept separate from others. The group
consisted of sex offenders, gang dropouts, those at risk from being with other people, and
a new and separate gang made up of dropout gang members.
         Detective Sanchez testified it was common after gang members were arrested for
committing crimes, that they learn about the gang enhancements and try to disassociate
themselves with their gangs afterwards.
Cross-examination
         On cross-examination, the prosecutor asked Detective Sanchez for his opinion
about various gang issues; the court found Sanchez qualified to testify as an expert.

         In part III, post, we will address defendant’s contentions that his attorney never
         9
entered into a valid stipulation on this matter, and whether this stipulation was sufficient
to prove an element of count 3, felon in possession of a firearm.
            See footnote, ante, page 1.


                                              17.
Sanchez testified that based on his experience, it was not common for gang members who
kill or attempt to kill police officers to yell out gang slurs before committing the crimes.
Sanchez testified that gang members usually yell out gang slurs when committing crimes
against rival gang members.
Defendant’s Trial Testimony
       Defendant testified on his own behalf.10 Defendant admitted he had a history of
selling drugs and had been incarcerated before.
       Defendant had previously received treatment for depression about five or six years
earlier, when he was in the Youth Authority. After he was released from the Youth
Authority, he was supposed to receive treatment at the mental health clinic but failed to
keep up with the schedule.
       Defendant had three children who had been removed from his custody and
adopted, and that was part of the reason for his depression.
       Defendant testified that he had attempted suicide four times. In 2010, he cut
himself, so he could bleed to death. On a second occasion, he took some codeine pills.
On a third occasion, he took about 100 codeine pills and was hospitalized.
       Defendant testified that his fourth suicide attempt occurred in this case because he
was trying to commit “suicide by cop.” About two days before this incident, his wife left
him. She was pregnant with his child and said she was taking his child away from him.
Defendant told her that he would find a way to get himself killed.
       Defendant testified that he was driving the car when he saw the officers “roll up”
on him. When he saw the officers, he decided that he wanted to have them kill him. He
was “tweaked out.” He pulled into a driveway and got out of the car. Defendant did not
have a gun with him. Defendant remembered that he ran from house to house. He was
hiding, “trying to figure out how to do it,” and looking for a weapon.

       10   Defendant said his last name was spelled “Avilez.”


                                             18.
       Defendant knew there was an outstanding warrant for his arrest, with a remand
date to report to jail to serve time for a prior offense.
       Defendant testified that he could not remember where he found the gun. “[Y]ou
heard what the detective said. He said that’s a place of crime, and I searched and I found
one.” Defendant remembered being in the bedroom closet. He was “blowing up on my
wife on the phone, kept on calling her, texting her, trying to see … if I can stop myself
before anything.” Defendant pointed the gun at himself because he was “thinking about
trying to do it myself,” but he did not have the nerve to pull the trigger.
       Defendant could not see clearly from the closet, but heard someone walk in. He
heard the radio and knew the police officers were there. Defendant heard them tell him
to come out and saw someone move the clothes. He thought the officers would kill him
since “the gun was in my face.” Defendant went blank and did not remember pulling the
trigger, aiming at the police, or shooting the officers. Defendant did not remember
getting shot.
       Defendant remembered backing out of the closet and bedroom, and he still held
the gun. “I pushed my way out [of] the room and they shot me again” when he was
outside the closet. Defendant never intended to hurt an officer and did not realize they
had been shot.
       Defendant remembered that he was dragged out of the room and became
unconscious. When he woke up, he was upset because he was still alive.
       Defendant was shot eight times and received medical treatment for his bullet
wounds in the arms, legs, knee cap, and pelvis. He also received treatment and
medication for depression and anxiety.
       Defendant testified that after he was arrested for the shootings, he was placed in
protective custody at the jail because he had already decided to stop gangbanging in
2011, prior to this incident.



                                               19.
         Defendant testified that when he was in custody, he wrote a Christian believer
testimony about his life and experience. He described that he had contemplated suicide,
and that as the bullets were piercing his body, he was in a sort of ecstasy because he had
finally succeeded at something. He wrote the testimony to help others and show that he
made a mistake. He sent it to a Christian magazine, which published the story in 2014.
         At the time of trial, defendant was in the “hole” for “allegedly” cutting his
cellmate. He denied that he cut his cellmate with a homemade weapon. Defendant
admitted that during a telephone call from the jail, he told a woman that he was in the
hole for stabbing his cellmate. Defendant said he was “faded” when it happened, which
meant he was drinking. Defendant testified that when he made these statements to the
woman, he was not admitting that he stabbed his cellmate but just explaining why he was
in the hole.
Defense Expert11
         Dr. Yosef Geshuri, an attorney and a psychologist, testified as a defense expert.
On May 23, 2014, Dr. Geshuri interviewed defendant, administered standardized tests,
and assessed defendant for psychological and mental deficiency issues. Defendant told
Dr. Geshuri that he had been “thrown into the streets” very early in life, he started a
pattern of criminal behavior from a young age, and he had been dealing drugs for some
years.
         Dr. Geshuri testified there were different grades of “mental retardation,” from
moderate to mild; then severe; and profound as the highest level.12 A normal average IQ


          In part IV, post, we will address defendant’s argument that the court abused its
         11
discretion at the sentencing hearing because it purportedly ignored the defense evidence
about defendant’s alleged intellectual disability when it imposed sentence in this case.
         12At trial and on appeal, the parties and witnesses used the term “mentally
retarded,” but “in accordance with current law and usage, this opinion uses the term
‘intellectually disabled’ except when quoting. [Citations.]” (People v. Townsel (2016)
63 Cal.4th 25, 33, fn. 1.)

                                              20.
would be 100. Defendant’s test results showed his IQ was around 60 or 61, which is
rated to be “in the middle mental retardation range.” A cognitive ability test showed
defendant’s overall age equivalent was about nine and a half years old. His vocabulary
was at the level of an eight-year-old. The tests showed defendant had long and short term
memory problems. His overall memory quotient was 59, where the average would be
100, which was the “[m]ild or even moderate level of retardation.”
       Dr. Geshuri administered “a brief screening for malingering,” and determined
defendant was “[n]ot likely to be malingering.” On cross-examination, Dr. Geshuri
conceded defendant said he did not know the meaning of certain words during the testing
process, and his failure to respond to the questions could raise the issue of whether he
was malingering.
       Dr. Geshuri testified that defendant had personality and emotional issues, severe
depression, anxiety, and the thought processes of a 10-year-old child. It was not unusual
for such a person to have suicidal ideations or to have attempted suicide.
       Defense counsel asked Dr. Geshuri to respond to the following hypothetical:

               “Q. You have a person who has mild retardation, severe depression,
       anxiety, thought disorder, who has attempted to commit suicide on many
       different occasions. What is the likelihood that they could form the intent
       to kill under any given situation?

              “A. Generally speaking, people who are in that level of
       diminished ability, both in terms of cognitively and emotionally, think more
       about killing themselves than killing others.”
       Dr. Geshuri conceded that someone with “mild mental retardation” could come up
with the idea of killing someone, it would be something within the realm of that person’s
thought processes, and that person would be able to act on those thoughts.
       On cross-examination, Dr. Geshuri testified that defendant said he wanted to die
and did not have the nerve to pull the trigger when he was in the closet. The prosecutor
asked additional hypothetical questions:


                                            21.
               “Q. If someone shot an officer four times from within a few feet,
       including a bullet that hit them right just left of the center of [the] chest …
       [¶] isn’t that an action that gives a suggestion of what the person is thinking
       when he pulled the trigger?

              “A. It’s an action, but it doesn’t necessarily say what a person is
       thinking. [¶] … [¶]

              “Q. Well, if the person shot the only other officer in the room, as
       well, does that not leave you with a thought that perhaps the person was
       shooting the officer so he wouldn’t get arrested; is that not a possibility in
       your mind?

              “A.    It’s a possibility. [¶] … [¶]

                “Q. Okay. So you have somebody who’s running on warrants,
       who’s saying I don’t want to go to jail, it just doesn’t cross your mind that
       when they shoot two police officers that they’re doing that to avoid going
       to jail?

             “A. It’s a possibility, but also [a] possibility that they really
       wanted to end it all right there and then.

             “Q. How do you end it all when you kill the two people who have
       guns? …. [¶] Two [officers] in the room … and you shoot both of ‘em,
       where’s the whole suicide by cop thing?

             “A. That’s what he reported to me, and that’s what I reported. I
       cannot say things that are not – that are speculated.”
       On further cross-examination, the prosecutor asked Dr. Geshuri about defendant’s
ability to make a false claim:

              “Q. Are you saying that the defendant is so mentally retarded that
       he could not come up with a claim that he was trying to commit suicide
       falsely after being arrested?

              “A.    I’m not saying that.”




                                             22.
                                 REBUTTAL EVIDENCE
       Deputy Robert Sarrae was assigned to the jail where defendant was held in
custody after his arrest in this case. On April 14, 2015, he received a note from
defendant’s cellmate that led to an investigation. It was discovered that defendant’s
cellmate had two small, superficial lacerations, on his wrist and his chest area, which
resulted in light bleeding.
       On April 26, 2015, defendant made a call from jail to a woman. A deputy
monitored the call and testified defendant told the woman that he was in the “ ‘hole.’ ”
The woman asked why. Defendant said, “ ‘I stabbed my cellie’ ” because defendant was
“ ‘faded,’ ” which meant that he was either drunk or under the influence of a controlled
substance. Defendant did not sound upset or bothered about the situation.13
                                PROCEDURAL HISTORY
The Information
       Defendant was charged with counts 1 and 2, the attempted premeditated murders
of Officers Collins and Ferreira, knowing that the victims were peace officers; and
count 3, felon in possession of a firearm.
       As to counts 1 and 2, it was alleged defendant personally used a firearm
(§ 12022.53, subd. (b)); personally and intentionally discharged a firearm (§ 12022.53,
subd. (c)); and personally and intentionally discharged a firearm that proximately caused
great bodily injury or death to Officers Collins and Ferreira (§ 12022.53, subd. (d)).

          See footnote, ante, page 1.
       13 Based on defendant’s act of stabbing his cellmate, he was charged in case
No. VCF321552 with count 1, assault with a deadly weapon, a cutting instrument, and by
means of force likely to produce great bodily injury on the victim (§ 245, subd. (a)(1)),
and that he personally used a dangerous and deadly weapon so that the offense was a
serious felony (§ 969, subd. (f)). On May 3, 2016, defendant pleaded guilty and admitted
the allegation for an indicated consecutive sentence of two years.
          See footnote, ante, page 1.


                                             23.
       Also, as to counts 1 and 2, it was further alleged the offenses were committed for
the benefit of a criminal street gang and were punishable by life in prison (§ 186.22,
subd. (b)(5)).
       A gang enhancement was separately alleged for count 3 (§ 186.22,
subd. (b)(1)(A)).14
Convictions and Sentence
       On July 28, 2015, after a jury trial, defendant was convicted of all three counts.
       The jury found the gang allegations were not true for counts 1 and 2, attempted
premeditated murder of the two officers, but that the allegation was true for count 3, felon
in possession of a firearm.
       The jury found true the allegations pursuant to section 12022.53, subdivision (d),
that defendant personally and intentionally discharged a firearm causing great bodily
injury to the victims.15
       The court sentenced defendant to 15 years to life for count 1, attempted
premeditated murder, plus 25 years to life for the section 12022.53, subdivision (d)
firearm enhancement; plus consecutive terms of 15 years to life for count 2, attempted
premeditated murder, and 25 years to life for the firearm enhancement, for an aggregate
term of 80 years to life; plus a consecutive term of two years for his plea to assaulting his
cellmate. The court stayed the terms imposed for count 3 and the attached gang
enhancement.




       14   The information also alleged defendant had one prior strike conviction. Prior to
trial, the court granted the People’s motion to dismiss the prior strike allegation.
       15 In part V, post, we will explain that the matter must be remanded to correct the
record as to the jury’s findings on the firearm enhancements.


                                             24.
                                         DISCUSSION

I.     Evidentiary Connection Between the Norteño Gang and Defendant’s Claimed
       Membership in the East Side Delano Norteños
       Defendant was charged and convicted in counts 1 and 2 with the attempted
premeditated murders of the two officers. While gang enhancements were alleged for
each count, the jury found the enhancements were not true for the attempted murder
convictions.
       Defendant was separately charged and convicted in count 3 with being a felon in
possession of a firearm. The jury found the attached gang enhancement true for that
count. The court stayed the terms imposed for count 3 and the gang enhancement.
       On appeal, defendant raises several arguments that the section 186.22, subdivision
(b)(1) gang enhancement for count 3 must be reversed for insufficient evidence as a
matter of law.
       First, defendant notes that the prosecution’s gang expert exclusively testified about
the Norteño gang in general, the parties stipulated the Norteños were a criminal street
gang, and the expert concluded that defendant was a member of the Norteño gang.
Defendant argues the evidence showed he had repeatedly admitted he was a member of
the East Side Delano Norteños, but the expert never testified about the East Side Delano
Norteños. Defendant contends that in the absence of such testimony, the People failed to
show an organizational or associative connection between the East Side Delano Norteño
set and the larger Norteño gang, as required by People v. Prunty (2015) 62 Cal.4th 59
(Prunty).
       Defendant next argues that even if the People’s evidence linked defendant’s set to
the larger Norteño gang, there is insufficient evidence of both the “gang-related” and




          See footnote, ante, page 1.


                                            25.
“specific intent” elements required by section 186.22, subdivision (b)(1) to support the
gang enhancement.
       In this section, we will address defendant’s argument that the People failed to
show a connection between the Norteño gang and defendant’s membership in the East
Side Delano Norteño set. We will address the “gang-related” and “specific intent”
elements in part II, post.
       A.     Section 186.22
       We begin with the underlying elements of the gang enhancement. Section 186.22,
subdivision (b)(1), enacted as part of the Street Terrorism Enforcement and Prevention
Act (the STEP Act) provides in pertinent part: “Except as provided in paragraphs (4) and
(5), any person who is convicted of a felony committed for the benefit of, at the direction
of, or in association with any criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members, shall, upon conviction of that
felony” be “punished by an additional term of two, three, or four years at the court’s
discretion.” (§ 186.22, subds. (b)(1), (b)(1)(A).)
       Section 182.22 defines a “ ‘criminal street gang’ ” as “any ongoing organization,
association, or group of three or more persons, whether formal or informal, having as one
of its primary activities the commission of one or more” certain enumerated offenses,
“having a common name or common identifying sign or symbol, and whose members
individually or collectively engage in, or have engaged in, a pattern of criminal gang
activity.” (§ 186.22, subd. (f).)
       A “ ‘pattern of criminal gang activity’ means the commission of, attempted
commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or
conviction of two or more of the [specified] offenses, provided at least one of these
offenses occurred after the effective date of this chapter and the last of those offenses
occurred within three years after a prior offense, and the offenses were committed on



                                             26.
separate occasions, or by two or more persons ….” (§ 186.22, subd. (e); People v. Loeun
(1997) 17 Cal.4th 1, 8.)
       “In considering a challenge to the sufficiency of the evidence to support an
enhancement, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence – that is, evidence that is reasonable,
credible, and of solid value – from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in
support of the judgment the trier of fact could have reasonably deduced from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.] ‘A reviewing court neither
reweighs evidence nor reevaluates a witness’s credibility.’ [Citation.]” (People v.
Albillar (2010) 51 Cal.4th 47, 59–60 (Albillar).)
       “ ‘Generally, an expert may render opinion testimony on the basis of facts given
“in a hypothetical question that asks the expert to assume their truth.” [Citation.]’
[Citation.]” (People v. Vang (2011) 52 Cal.4th 1038, 1045.) “ ‘[A] hypothetical question
must be rooted in facts shown by the evidence .…’ [Citation.]” (Ibid.) “ ‘[T]he expert’s
opinion may not be based on “assumptions of fact without evidentiary support [citation],
or on speculative or conjectural factors.” ’ [Citations.]” (Id. at p. 1046.)
       B.     Prunty
       In Prunty, supra, 62 Cal.4th 59, the court granted review to address the showing
“prosecutors must make when attempting to show that ‘multiple subsets of the Norteños
may be treated as a whole’ under section 186.22(f)” (id. at p. 71, fn. 2), and “what type of
showing the prosecution must make when its theory of why a criminal street gang exists
turns on the conduct of one or more gang subsets.” (Id. at p. 67.)
       Prunty held that the STEP Act requires the prosecution “to introduce evidence
showing an associational or organizational connection that unites members of a putative

                                             27.
criminal street gang. The prosecution has significant discretion in how it proves this
associational or organizational connection to exist;… But when the prosecution seeks to
prove the street gang enhancement by showing a defendant committed a felony to benefit
a given gang, but establishes the commission of the required predicate offenses with
evidence of crimes committed by members of the gang’s alleged subsets, it must prove a
connection between the gang and the subsets.” (Prunty, supra, 62 Cal.4th at pp. 67–68.)

       “[W]here the prosecution’s case positing the existence of a single ‘criminal
       street gang’ for purposes of section 186.22(f) turns on the existence and
       conduct of one or more gang subsets, then the prosecution must show some
       associational or organizational connection uniting those subsets. That
       connection may take the form of evidence of collaboration or organization,
       or the sharing of material information among the subsets of a larger group.
       Alternatively, it may be shown that the subsets are part of the same loosely
       hierarchical organization, even if the subsets themselves do not
       communicate or work together. And in other cases, the prosecution may
       show that various subset members exhibit behavior showing their self-
       identification with a larger group, thereby allowing those subsets to be
       treated as a single organization.

              “Whatever theory the prosecution chooses to demonstrate that a
       relationship exists, the evidence must show that it is the same ‘group’ that
       meets the definition of section 186.22(f) – i.e., that the group committed the
       predicate offenses and engaged in criminal primary activities – and that the
       defendant sought to benefit under section 186.22(b). But it is not
       enough … that the group simply shares a common name, common
       identifying symbols, and a common enemy. Nor is it permissible for the
       prosecution to introduce evidence of different subsets’ conduct to satisfy
       the primary activities and predicate offense requirements without
       demonstrating that those subsets are somehow connected to each other or
       another larger group.” (Id. at pp. 71–72, fns. omitted.)
       Prunty held the prosecution’s evidence must “permit the jury to infer that the
‘gang’ that the defendant sought to benefit, and the ‘gang’ that the prosecution proves to
exist, are one and the same.” (Prunty, supra, 62 Cal.4th at p. 75.)

       “[T]he prosecution need not demonstrate the precise scope of an alleged
       gang, but it must allow the jury to reasonably infer that the ‘criminal street
       gang’ the defendant sought to benefit – or which directed or associated


                                            28.
       with the defendant – included the ‘group’ that committed the primary
       activities and predicate offenses.” (Id. at p. 76, italics added.)
       Prunty offered examples of how the People could prove the necessary connection.
(Prunty, supra, 62 Cal.4th at p. 77.) Gang subsets could be linked together “as a single
‘criminal street gang’ if their independent activities benefit the same (presumably higher
ranking) individual or group,” or if “two seemingly unrelated Norteño cliques routinely
act to protect the same territory or ‘turf’ could suggest that they are part of a larger
association.” (Id. at p. 77.) There could also be evidence “that members of the various
subsets collaborate to accomplish shared goals. For instance, the evidence may show that
members of different subsets have ‘work[ed] in concert to commit a crime,’ [citation], or
that members have strategized, formally or informally, to carry out their activities.
Ultimately, this type of evidence will permit the inference that the subsets have some sort
of informal relationship….” (Id. at p. 78, fn. omitted.)

           “Even evidence of more informal associations, such as proof that
       members of two gang subsets ‘hang out together’ and ‘back up each other,’
       can help demonstrate that the subsets’ members have exchanged strategic
       information or otherwise taken part in the kinds of common activities that
       imply the existence of a genuinely shared venture. [Citations.] This type
       of evidence routinely appears in gang enhancement cases. [Citation.] In
       general, evidence that shows subset members have communicated, worked
       together, or share a relationship (however formal or informal) will permit
       the jury to infer that the subsets should be treated as a single street gang.”
       (Ibid., italics added.)
       C.     The Stipulation and Instruction
       As set forth above, the parties stipulated that the “Norteños are a criminal street
gang within the definition of … section 186.22.”
       The court instructed the jury with CALCRIM No. 1401, on the elements of the
gang enhancement:

               “To prove this allegation, the People must prove that the defendant
       committed or attempted to commit the crime for the benefit of a criminal
       street gang; [¶] And the defendant intended to assist, further or promote
       criminal conduct by gang members.

                                              29.
             “A criminal street gang is any ongoing organization, association or
       group of three or more persons, whether formal or informal.

               “It has been stipulated that Norteños are a criminal street gang….”
       (Italics added.)16
       D.     Analysis
       The People argue Prunty’s holding only applies when the prosecution relies on
evidence of predicate offenses committed by different gang subsets to establish a pattern
of criminal activity for a larger criminal street gang. The People contend Prunty is not
applicable to this case since the parties stipulated to the existence of the Norteños as a
criminal street gang, the People were not required to prove any predicate offenses, and
the prosecutor’s case did not turn on the existence and conduct of one or more gang
subsets to commit the predicate offenses or pattern of criminal activity to prove the
existence of a criminal street gang.
       The People are correct that given the nature of the stipulation, the prosecution was
not required to address the additional elements required to prove the Norteños were a
criminal street gang within the meaning of section 186.22, subdivision (f). As a result of
the stipulation, the prosecution was not required to prove a pattern of criminal activity
based upon predicate offenses committed by members of the Norteño gang or any
subsets.
       Defendant argues that despite the stipulation, there was an evidentiary gap because
the gang expert’s testimony did not show a connection between the subsets that defendant
and Marquez belonged to with the larger Norteño gang, or that their two subsets “were
united with the Norteños by collaborative activities or a collective organizational
structure” to infer the Norteños included the two subsets, as required by Prunty.



       16 In part II, post, we will address the modification of CALCRIM No. 1401 to only
include the “benefit” aspect of the enhancement and omit the “in association with”
language from section 186.22, subdivision (b)(1).


                                             30.
       However, Officer Logan testified about the significance of members of different
gangs being together.

              “Q. And what is the relevance of gang members hanging out with
       other gang members?

              “A. Back in the day, there used to be a lot of red on red violence,
       gang members from one neighborhood fighting with gang members from a
       different neighborhood. [¶] Now, it’s more organized so now you have
       association within the neighborhoods where they’ll go and commit crimes
       together.” (Italics added.)
       Officer Logan’s general testimony on this point satisfies one of the many
possibilities anticipated by Prunty to prove an associative connection between gangs:
“Even evidence of more informal associations, such as proof that members of two gang
subsets ‘hang out together’ and ‘back up each other,’ can help demonstrate that the
subsets’ members have exchanged strategic information or otherwise taken part in the
kinds of common activities that imply the existence of a genuinely shared venture.
[Citations.] This type of evidence routinely appears in gang enhancement cases.
[Citation.] In general, evidence that shows subset members have communicated, worked
together, or share a relationship (however formal or informal) will permit the jury to infer
that the subsets should be treated as a single street gang.” (Prunty, supra, 62 Cal.4th at
p. 78, italics added.)
       Based on this discussion in Prunty, Officer Logan’s testimony about the
significance of “red” gang members hanging out together showed how different Norteño
sets were associated and acted together to commit crimes. Logan’s testimony and the
parties’ stipulation constitutes substantial evidence to connect defendant and Marquez to
the larger Norteño gang and the stipulation reached by the parties that the Norteños were
a criminal street gang within the meaning of section 186.22, subdivision (f).




                                            31.
II.    Evidence About the “Gang-related” and “Specific Intent” Elements
       Defendant next contends that even if the People’s evidence showed an associative
connection, as required by Prunty, between the Norteños and the admitted membership of
defendant and Marquez in the two Norteño subsets, there was still insufficient evidence
to prove the “gang-related” and “specific intent” elements of the gang enhancement
attached to defendant’s commission of count 3, felon in possession of a firearm, as
required by section 186.22, subdivision (b)(1).
       A.       The Elements of the Enhancement
       As stated above, section 186.22, subdivision (b)(1) provides that an enhancement
shall be imposed for “any person who is convicted of a felony committed for the benefit
of, at the direction of, or in association with any criminal street gang, with the specific
intent to promote, further, or assist in any criminal conduct by gang members ….”
       “There are two ‘prongs’ to the enhancement. [Citation.]” (People v. Rios (2013)
222 Cal.App.4th 542, 561 (Rios).)
                1.     The Gang-related Prong
       “First, the prosecution is required to prove that the underlying felonies were
‘committed for the benefit of, at the direction of, or in association with any criminal
street gang,’ ” which has been described as “the gang-related prong.” (Rios, supra, 222
Cal.App.4th at pp. 561, 564, italics added.)
       “There is rarely direct evidence that a crime was committed for the benefit of a
gang. For this reason, ‘we routinely draw inferences about intent from the predictable
results of action. We cannot look into people’s minds directly to see their purposes. We
can discover mental state only from how people act and what they say.’ [Citation.]”
(People v. Miranda (2011) 192 Cal.App.4th 398, 411–412.)



          See footnote, ante, page 1.


                                               32.
       A crime is not “gang related simply because the perpetrator is a gang member with
a criminal history” who has committed a new offense. (People v. Perez (2017) 18
Cal.App.5th 598, 607.) “The gang enhancement cannot be sustained based solely on
defendant’s status as a member of the gang and his subsequent commission of crimes.
[Citation.]” (People v. Ochoa (2009) 179 Cal.App.4th 650, 663 (Ochoa).)
       “Expert opinion that particular criminal conduct benefited a gang by enhancing its
reputation for viciousness can be sufficient to raise the inference that the conduct was
‘committed for the benefit of … a[] criminal street gang’ within the meaning of section
186.22(b)(1). [Citations.]” (Albillar, supra, 51 Cal.4th at p. 63.)
       As a separate matter, a jury may reasonably infer “association” from membership:
“[I]t is conceivable that several gang members could commit a crime together, yet be on a
frolic and detour unrelated to the gang.” (People v. Morales (2003) 112 Cal.App.4th
1176, 1198.) However, a jury could “reasonably infer the requisite association from the
very fact that [a] defendant committed the charged crimes in association with fellow gang
members.” (Ibid.)
              2.      The Specific Intent Prong
       “Second, there must be evidence that the crimes were committed ‘with the specific
intent to promote, further, or assist in any criminal conduct by gang members,’ ”
described as “the specific intent prong.” (Rios, supra, 222 Cal.App.4th at pp. 561, 564.)
       Section 186.22, subdivision (b)(1) does not require evidence of the defendant’s
specific intent to promote, further, or assist a gang-related crime. (Albillar, supra, 51
Cal.4th at p. 67.) “The enhancement already requires proof that the defendant commit a
gang-related crime in the first prong – i.e., that the defendant be convicted of a felony
committed for the benefit of, at the direction of, or in association with a criminal street
gang. [Citation.] There is no further requirement that the defendant act with the specific
intent to promote, further, or assist a gang; the statute requires only the specific intent to
promote, further, or assist criminal conduct by gang members. [Citations.]” (Ibid.)

                                              33.
       “[W]e note as to the specific intent prong that ‘[i]ntent is rarely susceptible of
direct proof and usually must be inferred from the facts and circumstances surrounding
the offense.’ [Citation.] ‘Evidence of a defendant’s state of mind is almost inevitably
circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a
conviction.’ [Citation.]” (Rios, supra, 222 Cal.App.4th at pp. 567–568.)
              3.     Crimes Committed by Single or Multiple Gang Members
       As we will discuss below, a series of cases have addressed the sufficiency of the
evidence to prove the “gang-related” and/or the “specific intent” prongs. The requisite
evidence is further dependent on whether the underlying crime was committed by
multiple gang members or a single gang member acting alone.
       “Commission of a crime in concert with known gang members is substantial
evidence which supports the inference that the defendant acted with the specific intent to
promote, further or assist gang members in the commission of the crime. [Citation.]”
(People v. Villalobos (2006) 145 Cal.App.4th 310, 322; People v. Miranda, supra, 192
Cal.App.4th at p. 412; People v. Morales, supra, 112 Cal.App.4th at p. 1198 [the “very
fact that defendant committed the charged crimes in association with fellow gang
members” supported the enhancement].)
       While “[n]ot every crime committed by gang members is related to a gang”
(Albillar, supra, 51 Cal.4th at p. 60), it is also true that a “gang enhancement may be
applied to a lone actor.” (Rios, supra, 222 Cal.App.4th at p. 564; People v. Rodriguez
(2012) 55 Cal.4th, 1125, 1140–1141.)
       “[T]he typical close case is one in which one gang member, acting alone, commits
a crime.” (People v. Morales, supra, 112 Cal.App.4th at p. 1198.) “A lone gang member
who commits a felony will not go unpunished; he or she will be convicted of the
underlying felony. Further, such a gang member would not be protected from having that
felony enhanced by section 186.22(b)(1), which applies to ‘any person who is convicted
of a felony committed for the benefit of, at the direction of, or in association with any

                                             34.
criminal street gang, with the specific intent to promote, further, or assist in any criminal
conduct by gang members ....’ Because the gang enhancement … requires both that the
felony be gang related and that the defendant act with a specific intent to promote,
further, or assist the gang, these requirements provide a nexus to gang activity sufficient
to alleviate due process concerns. [Citation.]” (People Rodriguez, supra, 55 Cal.4th at
pp. 1138–1139; Rios, supra, 222 Cal.App.4th at p. 562.)
       B.     The Instruction Given in this Case
       In order to determine whether there is substantial evidence to support the gang-
related and specific intent elements of the enhancement, it is important to review the
instruction that was given in this case on the elements of the gang enhancement.
       As to the gang-related prong, section 186.22, subdivision (b)(1) states the gang
enhancement applies if the underlying felony was committed “for the benefit of, at the
direction of, or in association with any criminal street gang.” As we will explain below,
the prosecution could have relied on the theory that defendant committed the crime “in
association” with another gang member – Marquez – because they were members of the
same Norteño gang, they were in the car together, and defendant was already in
possession of the firearm.
       In this case, however, the court only instructed the jury on the “benefit” aspect,
and not the “association” aspect of the enhancement. As noted above, the court gave a
modified version of CALCRIM No. 1401, that defined the elements of the gang
enhancement that stated: “To prove this allegation, the People must prove that the
defendant committed or attempted to commit the crime for the benefit of a criminal street
gang; [¶] And the defendant intended to assist, further or promote criminal conduct by
gang members.” (Italics added.)
       The modified instruction did not state that defendant could have committed the
crime “in association with any criminal street gang,” as provided in section 186.22,
subdivision (b)(1), to prove the gang-related prong of the enhancement.

                                             35.
       The People concede the jury was only instructed on the “benefit” and not the
“association” aspect of the enhancement, and it was never instructed to consider whether
defendant committed the crime of possessing the firearm “in association with” another
gang member, Marquez.
       As a result of the modified instruction, we are thus limited to determining whether
there is substantial evidence of the gang-related and specific intent prongs of the
enhancement based on defendant’s commission, while acting alone, of the crime of being
a felon in possession of a firearm.
       C.     Evidence of the Gang-related and Specific Intent Elements
       As noted above, a series of cases have addressed the evidence required to prove
the elements of the gang enhancement when a defendant acted alone.
       In In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.), this court found
insufficient evidence for both the gang-related and specific intent prongs of the gang
enhancement, in a case where the underlying crime was committed by one person. A
minor was stopped by police after he ran a red light on his bicycle. He gave a false name,
and the officer found a concealed knife, a bindle of methamphetamine, and a red bandana
in his possession. (Id. at p. 1195.) The minor said he was attacked two days earlier and
“needed the knife for protection against ‘the Southerners’ because they feel he supports
northern street gangs.” (Ibid.) The minor said he had friends in the northern gangs and
listed himself as a Norteño affiliate during intake at the juvenile detention facility. (Ibid.)
The gang expert testified to her opinion that, based on this evidence, the minor was an
active Norteño and his possession of the knife benefitted the Norteños because “it helps
provide them protection should they be assaulted.” (Id. at pp. 1195–1196.)
       Frank S. reversed the true finding on the gang enhancement because “the expert
simply informed the judge of her belief of the minor’s intent with possession of the knife,
an issue reserved to the trier of fact. She stated the knife benefits the Norteños since ‘it
helps provide them protection should they be assaulted by rival gang members.’

                                              36.
However, unlike in other cases, the prosecution presented no evidence other than the
expert’s opinion regarding gangs in general and the expert’s improper opinion on the
ultimate issue to establish that possession of the weapon was ‘committed for the benefit
of, at the direction of, or in association with any criminal street gang ....’ [Citation.] The
prosecution did not present any evidence that the minor was in gang territory, had gang
members with him, or had any reason to expect to use the knife in a gang-related offense.
In fact, the only other evidence was the minor’s statement to the arresting officer that he
had been jumped two days prior and needed the knife for protection. To allow the expert
to state the minor’s specific intent for the knife without any other substantial evidence
opens the door for prosecutors to enhance many felonies as gang-related and extends the
purpose of the statute beyond what the Legislature intended.” (Frank S., supra, 141
Cal.App.4th at p. 1199.) The court acknowledged the evidence showed the minor was
affiliated with the Norteños but held that “membership alone does not prove a specific
intent to use the knife to promote, further, or assist in criminal conduct by gang members.
[Citation.]” (Ibid.)
       In People v. Garcia (2007) 153 Cal.App.4th 1499, the court held there was
sufficient evidence that the defendant, acting alone, possessed a firearm for the benefit of
a gang. (Id. at p. 1512.) The defendant was stopped for a traffic violation and officers
found an unregistered, loaded handgun on the driver’s side of his truck. There was
evidence that the defendant was an active gang member who had knowledge of the inner
workings of the gang, he had been in the gang for many years, and he had committed
enough street crimes to have gained respect within the gang. (Id. at pp. 1502–1504.) An
expert testified that guns were “huge” within the gang and that if a gang member
possessed a gun, all the other gang members would know about it and that the gang’s
status would benefit from a gang member’s reputation for carrying a firearm. (Id. at
p. 1506.) The expert explained guns were used to intimidate members of their own gang,
as well as other gangs and described “ ‘possession of the gun [as] power within the gang

                                             37.
itself.’ ” (Ibid.) In addition, the defendant told the police that another gang member gave
the gun to him for his own protection. (Id. at pp. 1509–1512; see also People v.
Margarejo (2008) 162 Cal.App.4th 102, 105–111 [the defendant possessed gun in
association with gang when he escaped from police and hid his gun with another gang
member]; Albillar, supra, 51 Cal.4th at pp. 63, 68 [three gang members acted with
association with each to commit forcible sexual assault].)
       In Ochoa, supra, 179 Cal.App.4th 650, the defendant was a gang member and
acted alone when he committed a carjacking with a shotgun. The offense did not occur in
his gang’s territory. He was convicted of carjacking and felon in possession of a firearm,
with gang enhancements. (Id. at pp. 653, 662.)
       Ochoa relied on Frank S., supra, 141 Cal.App.4th 1192 and held the evidence was
insufficient to support the gang-related prong of the enhancements. “[N]othing in the
circumstances of the instant offenses sustain[s] the expert witness’s inference that they
were gang related.” (Ochoa, supra, 179 Cal.App.4th at pp. 661–662.) “There was no
evidence that only gang members committed carjackings or that a gang member could not
commit a carjacking for personal benefit, rather than for the benefit of the gang. Indeed,
two of the People’s witnesses testified that gang members can commit crimes on their
own without benefitting the gang. While the sergeant effectively testified that carjacking
by a gang member would always be for the benefit of the gang, this ‘ “did nothing more
than [improperly] inform the jury how [the expert] believed the case should be
decided,” ’ without any underlying factual basis to support it. [Citation.]” (Id. at p. 662.)

               “Defendant did not call out a gang name, display gang signs, wear
       gang clothing, or engage in gang graffiti while committing the instant
       offenses. There was no evidence of bragging or graffiti to take credit for
       the crimes. There was no testimony that the victim saw any of defendant’s
       tattoos. There was no evidence the crimes were committed in [defendant’s]
       gang territory or the territory of any of its rivals. There was no evidence
       that the victim of the crimes was a gang member or a ... rival. Defendant
       did not tell anyone … that he had special gang permission to commit the


                                             38.
       carjacking. [Citation.] Defendant was not accompanied by a fellow gang
       member.

               “While the [expert] testified that the carjacking could benefit [the]
       defendant’s gang in a number of ways, he had no specific evidentiary
       support for drawing such inferences. Indeed, he admitted that there was no
       indication that defendant had used the vehicle to transport other gang
       members. There was no testimony that defendant used the vehicle to
       transport drugs or manifested any intention to do so. While the [expert]
       testified that defendant may have been motivated to commit the instant
       crimes in order to exact retaliation against another individual, he failed to
       provide any evidentiary support for this conclusion. There was never any
       suggestion that the alleged victim of the brandishing charge was a rival
       gang member or had committed any offenses against [the] defendant or his
       gang. The [expert’s], as to how defendant’s crimes would benefit [his
       gang], was based solely on speculation, not evidence.” (Id. at pp. 662–663,
       fns. omitted.)
       In re Daniel C. (2011) 195 Cal.App.4th 1350 (Daniel C.) held there was
insufficient evidence to support the specific intent prong. A minor entered a supermarket
with two other young men. After the minor’s companions left the store, the minor took a
bottle of whiskey and left without paying for it. A store employee confronted him. The
minor raised the bottle and it inadvertently broke. The minor hit the employee with the
broken bottle. (Id. at p. 1353.) The minor fled in a truck with three other young men.
The police located the truck with the minor and his three companions. All four of them
wore clothing with an element of red in it. (Id. at p. 1354.) The minor admitted going to
the store to get alcohol but said his friends did not know he intended to steal it. One of
his companions admitted they went to the store to obtain alcohol. (Ibid.) The minor was
a Norteño gang affiliate, one of his friends was a gang member, and another was a gang
associate. (Id. at pp. 1357–1358.)
       Daniel C. held there was insufficient evidence of the specific intent prong of the
gang enhancement. (Daniel C., supra, 195 Cal.App.4th at pp. 1357–1365.) Daniel C.
distinguished Albillar because there was no evidence the minor acted in concert with his
companions when he stole the whiskey and assaulted the store employee. The minor’s


                                            39.
companions left the store before he stole the liquor, they did not assist him in assaulting
the store employee, and there was no evidence they saw what happened after they left the
store or that the store employee knew they were gang members. (Daniel C., supra, at
p. 1361.)
       Daniel C. further held that since there was no evidence the minor’s companions
committed any crimes in connection with the theft of the whiskey, it could not be inferred
from the circumstances of the minor’s crime, standing alone, that his purpose was to
promote, further, or assist criminal conduct by gang members. (Daniel C., supra, 195
Cal.App.4th at p. 1361.) There was no evidence the minor or his friends did anything
while in the store to identify themselves with a gang, other than wear clothing with red on
it. No gang signs or words were used and there was no evidence anyone who witnessed
the crime knew gang members were involved. (Id. at p. 1363.) The court found no
evidence to support the gang expert’s opinion that the minor and his friends “planned or
executed a violent crime in concert … to enhance their respect in the community, or to
instill fear” (id. at pp. 1363–1364) since there was no evidence they entered the store with
the intent to commit a violent crime, and the juvenile court had found that “the breaking
of the bottle was ‘happenstance,’ ” and that the attack on the employee was a “spur-of-
the-moment reaction” to the employee’s attempt to recover the bottle. (Id. at p. 1363.)
       In Rios, supra, 222 Cal.App.4th 542, the court found insufficient evidence of the
specific intent prong. An officer conducted a traffic stop. The defendant was the sole
occupant of the car and did not have a driver’s license; the officers decided to impound
the car. They later discovered the car was stolen. The officers conducted an inventory
search of the car and found gang-related paraphernalia, and a loaded, unregistered gun
wrapped in a T-shirt under the front passenger seat. (Id. at pp. 547–552.) The defendant
was booked into custody and asked if he belonged to a gang. The defendant said he was
a Norteño and “a ‘Northerner associate.’ ” (Id. at pp. 549–550.) The defendant was
housed in “a dormitory for active Norteño gang members and their associates” without

                                             40.
incident. (Ibid.) At trial, the defendant denied that he was a gang member but said that
“he ‘hangs out’ with Norteños because he went to school with them.” (Id. at p. 554.)
The prosecution gang expert “opined that [one of] defendant’s … tattoo was gang related,
but that his other tattoos were not.” (Id. at p. 551.) In response to a hypothetical
question, the gang expert testified about the value and uses of a gun to a gang member,
especially an unregistered gun that “cannot be traced back to the gang member,” and that
“a gang member with a firearm promotes, furthers and assists felonious conduct by other
gang members.” (Id. at p. 573.) The defendant was convicted of carrying a loaded
firearm in a vehicle, and taking or driving a vehicle without a permission, with gang
enhancements.
       Rios held that while “a lone actor may be subject to the gang enhancement,” there
was insufficient evidence to support the enhancements in that case “absent evidence that
defendant acted in concert with other gang members ….” (Rios, supra, 222 Cal.App.4th
at p. 572.)

       “For example, the prosecution could have presented evidence that another
       gang member had directed defendant to steal a car to use in a robbery, or
       that defendant was transporting the loaded gun from one gang member to
       another to use in a robbery or driveby shooting. There was no such
       evidence. [D]efendant never admitted that he stole the car or transported
       the gun to promote, further, or assist in any criminal conduct by gang
       members.” (Id. at pp. 572–573.)
       Rios held “the expert testimony in response to the hypothetical in this case was
insufficient to support an inference that defendant carried the gun in the vehicle with the
specific intent required for the gang enhancement.” (Rios, supra, 222 Cal.App.4th at
p. 574.) “As in Daniel C., there was no evidence that any victim in this case or anyone in
the local community knew defendant was a gang member, was affiliated with a gang, or
was acting with a gang purpose.” (Id. at p. 573.)

              “And like Frank S. and Ochoa, there was no evidence that defendant
       was in Norteño territory or rival gang territory when he stole the car; that he


                                             41.
       called out a gang name, displayed gang signs or otherwise stated his gang
       affiliation; or that the victims of the car theft were rival gang members or
       saw his tattoos or gang clothing. Here, although there was evidence that
       auto thefts and illegal gun possession were among the primary activities of
       the Norteño gang in Salinas, that evidence alone was insufficient to support
       the inference that defendant stole the Chrysler and possessed the gun with
       the specific intent to promote, further, or assist in any criminal conduct by
       gang members.” (Id. at p. 574.)
       “[I]n a case such as this, where the defendant acts alone, the combination of the
charged offense and gang membership alone is insufficient to support an inference on the
specific intent prong of the gang enhancement” because “[o]therwise, the gang
enhancement would be used merely to punish gang membership.” (Rios, supra, 222
Cal.App.4th at pp. 573–574.) There was “no evidence that any victim in this case or
anyone in the local community knew defendant was a gang member, was affiliated with a
gang, or was acting with a gang purpose.” (Id. at p. 573; see also People v. Perez, supra,
18 Cal.App.5th at pp. 613–614 [insufficient evidence of gang-related element where gang
member acted alone by firing shots at college party where no one knew his gang
affiliation].)
       D.        Analysis
       The People argue there was sufficient evidence to support both the gang-related
and specific intent elements of the gang enhancement based on Officer Logan’s
testimony about the membership of defendant and Marquez in the Norteño gang,
evidence that the crime occurred in the “Holiday Homes” area that was “frequented
predominately by Norteños, specifically North Side Visa Boys Norteños,” frequent
shootings in the area since Sureños also lived in the neighborhood, and that “[s]hooting at
a police officer raises your status in a gang because it demonstrates a willingness to use
violence to uphold your reputation and that of our gang.”
       While the People acknowledge the jury was only instructed on the “benefit” and
not on the “association” aspect of the gang-related prong, they argue the enhancement
was supported by evidence defendant was “with a fellow self-identifying Norteño,

                                            42.
Marquez.” “The jury could infer that [defendant] possessed the gun to promote, further
or assist any criminal conduct by gang members based on the nature of the violent and
feuding area, his attire and tattoos at the time, the presence of his fellow Norteño, and
because possessing an inherently dangerous weapon would cause [defendant] and fellow
gang members to be perceived as dominating and violent – a benefit. His intentional
possession of a gun with a known member of a gang was sufficient evidence of requisite
specific intent.”
       As noted above, however, the People conceded the jury was only instructed on the
“benefit” aspect of the gang-related prong and not about the “association” aspect. As a
result of the instructional limitation, the jury could not find that defendant committed the
offense of being a felon in possession of a firearm in association with another member of
the Norteño gang. (Cf. Albillar, supra, 51 Cal.4th at pp. 63, 68; People v. Margarejo,
supra, 162 Cal.App.4th at pp. 105–111.)
       As explained in Rios, “a lone actor may be subject to the gang enhancement ….”
(Rios, supra, 222 Cal.App.4th at p. 572.) Defendant suddenly stopped the car and ran
from the officers in a neighborhood known as a Norteño area. As he jumped fences, he
did not call out gang slogans or make any gang signs. Instead, he sought to conceal
himself within various houses and buildings to evade detection. There was no evidence
that any of the residents who saw defendant jumping fences or hiding on their properties
were members of the Norteño gang.
       Officer Logan, the gang expert, testified generally about how shooting a police
officer would raise the prestige of a gang member and his gang. Logan’s testimony
focused solely on how shooting an officer would promote an individual gang member
and his gang, and never addressed the felon in possession charge. The jury rejected
Logan’s testimony about the gang-related nature of shooting the two officers because it
convicted defendant of two counts of attempted premeditated murder but found the gang
enhancements attached to those counts were not true. Thus, to the extent that a gang-

                                             43.
related purpose could be inferred from the expert’s opinion about defendant’s possession
and use of a gun, such an inference was refuted by the limitations of the expert’s
testimony to the crimes of attempted murder and the jury’s contrary findings on the gang
enhancements for those convictions.
          The evidence in this case was insufficient to support the enhancement as addressed
in Frank S., Ramon, Ochoa, and Daniel C. The expert testified that shooting a police
officer was gang-related but did not address the impact of a gang member carrying a
firearm. There was no evidence defendant was about to commit a shooting or other crime
when he stopped the car and ran away from the police. The jury could have inferred that
he ran because he was in possession of the firearm and the drugs that he abandoned in the
garage, but there was no evidence that either act was performed for the benefit of his
gang or that the act of selling drugs benefitted that particular Norteño gang.
          As for the specific intent prong, “where the defendant acts alone, the combination
of the charged offense and gang membership is insufficient to support an inference on the
specific intent prong of the gang enhancement” because “[o]therwise, the gang
enhancement would be used merely to punish gang membership.” (Rios, supra, 222
Cal.App.4th at p. 574.) As with the gang-related element, there was similarly no
evidence to support an inference that defendant carried the gun with the requisite specific
intent.
          We are thus compelled to conclude that while defendant and Marquez may have
been active members of a Norteño set, the jury was only instructed on the “benefit”
aspect of the gang enhancement and not the “in association with” element. There was no
evidence that defendant committed count 3 for the benefit of his gang and with the
specific intent to promote, further, or assist criminal conduct by gang members.17

          17
          A finding that the gang enhancement attached to count 3 is not supported by
substantial evidence will not affect the sentence imposed in this case since the court
stayed the terms imposed for both count 3 and the enhancement.


                                              44.
III.   Defendant Entered into a Valid Stipulation for Count 3
       In count 3, defendant was charged with felon in possession of a firearm (§ 29800,
subd. (a)(1)), having been convicted of a felony violation of Health and Safety Code
section 11377, subdivision (a) on December 1, 2010, in Tulare County Superior Court
case No. VCF243623.
       Before the defense rested, the court advised the jury that the parties stipulated
defendant was convicted on December 1, 2010, in case number VCF243623 for a felony
violation of Health and Safety Code section 11377, subdivision (a). The prosecution did
not introduce any additional evidence about a prior felony conviction. Defendant was
convicted of count 3.
       On appeal, defendant asserts defense counsel never entered into a valid stipulation
on his prior conviction and, as a result, his conviction in count 3 must be reversed for
insufficient evidence since the prosecution never introduced any evidence about a prior
felony conviction.
       As we will explain, there were lengthy discussions between the court, the
prosecutor, and defense counsel about the four stipulations that were entered during trial.
The entirety of the record shows the stipulation about defendant’s prior felony conviction
was valid, knowing, and intelligent.
       A.       Stipulations
       The elements of the crime of being a felon in possession of a firearm are
conviction of a felony and ownership or knowing possession, custody or control of a
firearm. (People v. Osuna (2014) 225 Cal.App.4th 1020, 1029, disapproved on other
grounds in People v. Frierson (2017) 4 Cal.5th 225, 240, fn. 8; § 29800, subd. (a)(1).)
       “[W]hen a defendant’s prior felony conviction is an element of a charged crime:
(1) The prosecution can prove the conviction in open court, and that proof can include

          See footnote, ante, page 1.


                                             45.
both the fact that the defendant has previously been convicted of a felony offense as well
as the nature of the felony involved; or (2) the defendant can stipulate to having a felony
conviction and thereby keep from the jury the nature of the particular felony.” (People v.
Sapp (2003) 31 Cal.4th 240, 261.)
       A stipulation is a binding agreement between the parties and is a substitute for
proof by evidence. (Palmer v. City of Long Beach (1948) 33 Cal.2d 134, 142; Greatorex
v. Board of Administration (1979) 91 Cal.App.3d 54, 58.) “An attorney has implied
authority to enter into stipulations affecting procedure in the trial, as distinguished from
those which go to the cause of action itself [citations] and a defendant may not assert on
appeal procedural rights which he waived at the trial. [Citations.]” (People v. Wilson
(1947) 78 Cal.App.2d 108, 120.)
       “It is, of course, well established that the defendant is bound by the stipulation or
open admission of his counsel and cannot mislead the court and jury by seeming to take a
position on issues and then disputing or repudiating the same on appeal [citations].”
(People v. Pijal (1973) 33 Cal.App.3d 682, 697.) “Unless the trial court, in its discretion,
permits a party to withdraw from a stipulation [citations], it is conclusive upon the
parties, and the truth of the facts contained therein cannot be contradicted. [Citations.]”
(Palmer v. City of Long Beach, supra, 33 Cal.2d at pp. 141–142; People v. Banda (2018)
26 Cal.App.5th 349, 365.)
       With this background in mind, we review the record that shows defense counsel
intended, and in fact did, enter into a valid stipulation for defendant about the existence
of the prior felony conviction for purposes of count 3.
       B.     The Four Stipulations in this Case
       During defendant’s trial, the court advised the jury that the parties had entered into
four stipulations:
       (1) That the “Norteños are a criminal street gang within the definition of …
section 186.22.”

                                             46.
       (2) The shorts that were cut off from defendant and left on the street by the
paramedics had “an elastic type band and no belt loops.”
       (3) The parties stipulated to the admission of a Department of Justice laboratory
report with an analysis of all of the firearms fired, and recovered shell casings and
projectiles; and,
       (4) That defendant was convicted on December 1, 2010 in case number
VCF243623 for a felony violation of Health and Safety Code section 11377,
subdivision (a).
       C.      The Court’s Discussion About the Firearms Report Stipulation
       Just before the prosecution’s gang expert testified, the jury was advised about the
first and second stipulations regarding the Norteños and defendant’s shorts.
       Toward the end of the prosecution’s case, the court and the parties reviewed the
exhibits outside the jury’s presence and discussed whether they had been accepted into
evidence.

              “[THE PROSECUTOR]: [Exhibit] 80 is the stipulated document
       that we haven’t read the stipulation to the jury but that’s the firearms report.

               “[DEFENSE COUNSEL]: Hm-hmm.

               “[THE PROSECUTOR]:          So we need to read that stipulation to the
       jury.

               “THE COURT:          So it’s not received yet.

              “[THE PROSECUTOR]: I’m asking it to be received, but we still
       need to read the stipulation to the jury.

               “THE COURT:          That’s fine.

               “[DEFENSE COUNSEL]: We stipulated already.

             “THE COURT:            All right. So that will be received.” (Italics
       added.)




                                             47.
          Defense counsel thus concurred that he stipulated to the admission of the firearms
report.
          D.       The Court’s Discussion About Defendant’s Prior Convictions
          The information alleged that defendant’s conviction for possession of a controlled
substance in case No. VCF243623 was the prior felony offense for purposes of count 3.
          Shortly after the parties discussed the firearms report, the prosecutor asked the
court to address defendant’s prior convictions outside the jury’s presence.
          During the course of this discussion, defense counsel moved to reduce certain
felony convictions to misdemeanors pursuant to the provisions of Proposition 47,
including case No. VCF243623.

                 “[THE PROSECUTOR]: Then the only thing left is the court was
          going to take judicial notice, but we need to do it in front of the jury about
          the defendant’s prior.

                 “THE COURT:          Yes, and do we have those files? What are
          those file numbers again, [asking the prosecutor]?

                   “[THE PROSECUTOR]:          Let’s see.

              “THE CLERK:      [Case Nos.] PCM2543323, VCF243623,
          TCM256950 and VCM 243293—39.

                “THE COURT:           Okay. So let’s see what was pled to. So in case
          254332, it looks like a DUI.

                   “[THE PROSECUTOR]:          The DUI wasn’t one of – I only asked for
          three.

                   “THE COURT:         Okay.

                   “[THE PROSECUTOR]:          DUI is not one of ‘em.

                   “THE COURT:         I was going to ask you.

                 “[THE PROSECUTOR]: No, no. One is a felony [Health and
          Safety Code section] 11377 which under Prop. 47 is reducible to a
          misdemeanor; however, that doesn’t obviate him of his firearm prohibition.



                                                48.
       [¶] In addition, there are two misdemeanors that also prohibit him from
       having a firearm. One is, I believe—

               “THE COURT:                Okay. So the purpose of this is not gang,
       it’s the firearm prohibition.

              “[THE PROSECUTOR]:          It’s the firearm, Count 3.

              “THE COURT:                 Okay. So [case No.] 243623 was
       convicted as a felony. I would agree that it is eligible to be reduced. You
       might want to – are you willing to have an oral petition [referring to the
       prosecutor]?

              “[THE PROSECUTOR]:          That’s fine by me.

             “THE COURT:                  Okay. So are you asking the court to –
       pursuant to [section] 1170.18 to reduce that at this time?

              “[DEFENSE COUNSEL]: Yes, your Honor.

              “THE COURT:                 All right. So based on the motion of the
       defense and the agreement of the People, in case 243623, at this time that
       will be reduced pursuant to section 1170.18, and the fines will also be
       adjusted to reflect misdemeanor fines.

              “[DEFENSE COUNSEL]: Credit for time served?

              “THE COURT:                 Credit for time served.” (Italics added.)
       Defense counsel thus agreed that defendant was previously convicted of a felony
in case No. VCF243623, and the court granted his request to reduce that conviction to a
misdemeanor under Proposition 47.
       At the time of the charged offense in this case, however, defendant had been
convicted of a felony in case No. VCF243623.
       E.     Further Discussions About the Stipulation
       During a break in the defense case, the court returned to the matter of the
stipulation about defendant’s prior conviction for count 3, outside the jury’s presence.

             “THE COURT:                 … Has the stipulation come in yet that
       [defendant] has a felony conviction?



                                            49.
              “[DEFENSE COUNSEL]: We stipulated.

               “[THE PROSECUTOR]: We stipulated. I think the court – let’s
       take a look at that instruction real quick, but I think the court can read that
       instruction, and that can be sufficient.

              “THE COURT:                 All right. So you both agree that the
       stipulation has already taken place?

              “[THE PROSECUTOR]:           Yes.

              “THE COURT:                  All right.

              “[THE PROSECUTOR]:           It was not done in the presence of the
       jury, but that’s why I said—

              “THE COURT:                  That’s why I said it needs to.

              “[THE PROSECUTOR]:           I think that if the court reads the
       instruction—

              “THE COURT:                  I think the stipulation needs to be in front
       on the jury.

              “[THE PROSECUTOR]:           Okay.

              “THE COURT:                   So you’re gonna want that stipulation in
       front of the jury in order for them to consider that.

              “[THE PROSECUTOR]: And we do have one other stipulation,
       and that is that the report, the Department of Justice Laboratory report,
       Exhibit 80, is also admitted into evidence.

              “THE COURT:                  Okay.

              “[THE PROSECUTOR]:           I have the wording for that stipulation.

              “THE COURT:                  Okay.” (Italics added.)
       Defense counsel did not object to the prosecutor’s statements about the stipulation
to the prior felony conviction.
       Defense counsel’s agreement to the stipulation about the prior conviction was
identical to his earlier agreement to the stipulation about the firearms report.



                                             50.
       F.      The Stipulation About the Firearms Report
       After the defense rested, the prosecutor said in front of the jury, “I don’t know if
we want to do the stipulations now or at the end.” The court asked the prosecutor to read
the stipulations to the jury. The prosecutor read the stipulation about the firearms report,
and the court asked for the next stipulation about the prior conviction.

               “THE COURT:         All right. Is there another stipulation?

              “[THE PROSECUTOR]:           I’ll let counsel state the second
       stipulation.

             “[DEFENSE COUNSEL]: Which one are we – I don’t know the
       case number. I don’t have it in front of me.

             “[THE PROSECUTOR]: Thought we were all ready, apologize,
       your Honor; I thought we already [sic].

               “THE COURT:                 It’s okay.

              “[THE PROSECUTOR]: This stipulation we should probably
       reserve and pull the court’s actual case number.

             “THE COURT:                   All right. We will do that.” (Italics
       added.)
       The trial resumed with the prosecution’s rebuttal witness.
       G.      The Stipulation About Defendant’s Prior Felony Conviction
       At the conclusion of the rebuttal evidence, the following statements were made in
front of the jury:

              “[THE PROSECUTOR]: The stipulation, I believe, is – that we
       were referring to a minute ago is that the – here; that the defendant has a
       felony conviction under – for purposes of Count 3 under case number
       VCF243623 for Health and Safety Code Section 11377(a), conviction date
       of December 1, 2010, out of the Tulare Superior Court.

              “[DEFENSE COUNSEL]: We make note to the court that that is a
       crime that is – falls under the auspices of Prop. 47 which in – without
       exception for this charge is reduced to a misdemeanor upon submission to
       the court.


                                             51.
             “THE COURT:                   All right. Thank you both.” (Italics
       added.)
       H.     The Instructions
       The jury was instructed with CALCRIM No. 2511 on the elements of count 3,
possession of a firearm by a person prohibited due to conviction.

               “To prove that the defendant is guilty of this crime, the People must
       prove that the defendant possessed a firearm; [¶] Defendant knew that he
       possessed the firearm; [¶] And the defendant had previously been convicted
       of a felony.

              “A firearm is any device designed to be used as a weapon ….

             “The defendant and the People have stipulated or agreed that
       defendant was previously convicted of a felony. This stipulation means that
       you must accept this fact as proved.” (Italics added.)
       I.     Analysis
       Defendant argues that his attorney never entered into a valid stipulation because he
never “clearly stated he ‘stipulated’ that [defendant] had a felony conviction or stated that
he agreed to the terms of the stipulation….” Defendant asserts that counsel’s statements
at the time of the alleged stipulation – that the prior conviction could be reduced to a
misdemeanor – showed that counsel never made a “clear agreement” that he had a prior
felony conviction.
       We first note that defendant cannot argue the stipulation was invalid because of
the court’s decision to grant his midtrial request to reduce his prior felony conviction for
possession of a controlled substance in case No. VCF243623, to a misdemeanor pursuant
to Proposition 47, or that defense counsel’s addendum about Proposition 47 somehow
undermined the validity of the stipulation.
       Section 1170.18 allows those who have already completed their sentences for
eligible felony convictions to petition to have their convictions “designated as
misdemeanors.” (§ 1170.18, subd. (f).) Section 1170.18, subdivision (k) states: “A
felony conviction that is recalled and resentenced under subdivision (b) or designated as a


                                              52.
misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes,
except that resentencing shall not permit that person to own, possess, or have in his or
her custody or control a firearm or prevent his or her conviction under Chapter 2
(commencing with Section 29800) of Division 9 of Title 4 of Part 6.” (Italics added.)
       In People v. Gilbreth (2007) 156 Cal.App.4th 53, the defendant was convicted of
being a felon in possession of a firearm. The defendant had previously been convicted of
a felony, but it had been reduced to a misdemeanor under section 17, subdivision (b),
prior to his commission of the charged offense of felon in possession. Gilbreth reversed
the defendant’s conviction of felon in possession because “[a]t the time [the defendant]
was charged in this case, [the] defendant had a prior misdemeanor conviction … and that
conviction could not be considered a felony to serve as the basis for a charge that
defendant had violated section 12021.” (Id. at p. 58; People v. Lewis (2008) 164
Cal.App.4th 533, 536.)
       In contrast to Gilbreth, the record in this case shows defense counsel
acknowledged defendant had a prior felony conviction when he committed the offenses
in this case. The court’s subsequent decision, in the midst of this trial, to reduce that
felony to a misdemeanor did not undermine the stipulation to that felony as an element of
count 3.
       Moreover, the entirety of the court’s discussions with the parties about the various
stipulations shows defense counsel intentionally and properly entered into the stipulation
about defendant’s prior felony conviction. During the defense case, after the court had
reduced the felony to a misdemeanor, the court asked the parties whether the stipulation
had been introduced that defendant “has a felony conviction.” Defense counsel replied,
“We stipulated,” using similar language to his earlier agreement to the stipulation about
the firearms report. The prosecutor clarified the stipulations still needed to be read to the
jury about defendant’s prior felony conviction and the firearms report.



                                             53.
       When the jury returned to the courtroom, the prosecutor read the stipulation about
the firearms report. The prosecutor then turned to defense counsel to state the stipulation
about the prior felony conviction. Defense counsel started to read the stipulation but
realized he did not have the correct case number. The court deferred the matter. Shortly
afterward, the prosecutor read the stipulation, followed by defense counsel’s statement
that the prior offense was reduced to a misdemeanor under Proposition 47.
       Defense counsel entered into a valid stipulation and defendant’s conviction in
count 3 is supported by substantial evidence.
IV.    The Court Did Not Abuse Its Discretion at the Sentencing Hearing
       Defendant contends the court abused its discretion at the sentencing hearing
because it refused to consider mitigating evidence that had been introduced at trial about
defendant’s alleged intellectual disability. Defendant asserts Dr. Geshuri’s trial evidence
about defendant’s “mild mental retardation” should have been treated as a mitigating
factor and the court’s failure to do so requires remand for the court to reconsider whether
to impose consecutive or concurrent terms for counts 1 and 2.
       A.       The Probation Report
       The probation report stated that the officer did not have access to the trial
transcripts but summarized the shootings of the two officers based upon the police
reports. The report did not address Dr. Geshuri’s trial testimony and his opinions about
defendant’s alleged intellectual disability.
       The report stated that prior to trial, defendant had been referred to two
psychiatrists to determine his sanity, defendant told the experts about his drug use and
suicide attempts and that he wanted to die, one expert diagnosed defendant with a
moderate major depressive disorder, and both experts found defendant did not meet the
criteria for a finding of not guilty by reason of insanity.

          See footnote, ante, page 1.


                                               54.
       The probation report stated there were no mitigating factors. The aggravating
factors were that defendant had engaged in violent conduct indicating a serious danger to
society; his prior convictions as an adult were numerous; he was on probation when the
crimes were committed; and his prior performances on probation and juvenile parole
were unsatisfactory. The factors affecting concurrent or consecutive sentences were that
the crimes were independent of each other; the crimes involved separate acts of violence;
and the offenses were committed at different times and places, referring to defendant’s
plea in the separate case for assaulting his cellmate.
       B.     The Sentencing Hearing
       The sentencing hearing was conducted by the same judge who presided over
defendant’s trial.
       At the sentencing hearing, defense counsel objected to the probation report’s
finding that there were no mitigating circumstances. Counsel complained the probation
officer did not read the trial transcripts and never considered Dr. Geshuri’s trial testimony
about defendant’s “mild mental retardation” and low level of intelligence. Counsel asked
the court to consider Dr. Geshuri’s testimony because defendant’s mental status should
be treated as a mitigating factor.
       The prosecutor argued there were no mitigating factors and the entirety of the
evidence refuted defendant’s claim that he wanted to commit suicide that day since he
was driving around with a gun, he ran from the police, and he fired multiple shots at two
officers.
       C.     The Court’s Ruling
       The court made the following findings:

       “The first thing the court’s gonna [sic] be commenting on is the issue of
       mitigating and aggravating factors.

              “The court does not – court had the benefit of listening to the trial in
       this particular case and does not adopt the suggestion of mitigating factors.


                                             55.
              “The court does find, though, that there are aggravating factors…
       Those include that the defendant had prior convictions and – many prior
       convictions, many of them involving violence as an adult, and those are
       numerous convictions. The defendant was on probation at the time that the
       crime was committed, and additionally, that the defendant’s prior
       performance on probation, as well as his Youth Authority parole, were both
       unsatisfactory.

              “And so with that, the court is ready to proceed with the
       sentencing….”
       The court sentenced defendant to an aggregate term of 80 years to life for counts 1
and 2, based on consecutive sentences for the attempted murder convictions and the
firearm enhancements, plus a consecutive term of two years in case No. 321552,
defendant’s plea to assaulting his cellmate.
       D.     Atkins
       Defendant argues the court abused its discretion at the sentencing hearing because
it should have considered evidence of his alleged intellectual disability as a mitigating
factor, based on Atkins v. Virginia (2002) 536 U.S. 304 (Atkins).
       In Atkins, the United States Supreme Court established a categorial rule that the
Eighth Amendment forbids the execution of an intellectually disabled person because
“they do not act with the level of moral culpability that characterizes the most serious
adult criminal conduct.” (Atkins, supra, 536 U.S. at p. 306.) Atkins defined intellectual
disability as “ ‘characterized by significantly subaverage intellectual functioning, existing
concurrently with related limitations in two or more of the following applicable adaptive
skill areas: communication, self-care, home living, social skills, community use, self-
direction, health and safety, functional academics, leisure, and work. Mental retardation
manifests before age 18.’ ” (Id. at p. 308, fn. 3.)
       Atkins also recognized that “[t]hose mentally retarded persons who meet the law’s
requirements for criminal responsibility should be tried and punished when they commit
crimes.” (Atkins, supra, 536 U.S. at p. 306; see also People v. Boyce (2014) 59 Cal.4th



                                               56.
672, 722 [Atkins has not been extended to “mental illness in general”]; People v.
Mendoza (2016) 62 Cal.4th 856, 909–910.)
       Atkins left to the states “ ‘the task of developing appropriate ways’ ” to ensure that
intellectually disabled defendants are not sentenced to death. (Atkins, supra, at p. 317, fn.
omitted; see also People v. Woodruff (2018) 5 Cal.4th 697, 777.) As a result, section
1376 was enacted and defines “ ‘intellectual disability’ ” as “ ‘the condition of
significantly subaverage general intellectual functioning existing concurrently with
deficits in adaptive behavior and manifested before 18 years of age.’ [Citation.]
CALCRIM No. 775 issued in response to section 1376 lists the adaptive behavior areas
and instructs the fact finder [in a capital case] that it must find deficits in two or more
areas. Once a defendant submits an expert declaration on intellectual disability, the court
orders a hearing to determine the issue. [Citation.] … The procedure for determining
intellectual disability is the same whether by a pretrial court hearing or a jury trial
following the guilt phase: Each side presents evidence and has the option to present
rebuttal evidence, and each side makes a closing argument. [Citations.]” (People v.
Woodruff, supra, at pp. 777–778.)
       E.     Analysis
       Atkins has been limited to capital cases and has not been extended to other
sentencing factors in noncapital cases. Nevertheless, defendant argues the court should
have treated Dr. Geshuri’s trial testimony about his “mild mental retardation” as a
mitigating factor at the sentencing hearing, and the matter must be remanded for the court
to reconsider whether to rely on this alleged mitigating factor to impose consecutive or
concurrent terms in this case.
       We note that the record indicates that shortly after the complaint was filed, the
court suspended proceedings and ordered an expert to examine defendant to determine
whether he was competent to stand trial. The expert determined he was competent, he
showed no evidence of psychosis or cognitive impairment, and he spoke in a lucid and

                                              57.
linear manner. While he was in the low range of academic functioning, he showed
minimal impairment on competency-related abilities.
       Defendant was subsequently examined by two experts to determine whether he
could enter a plea of not guilty by reason of insanity. The first expert reported in
December 2013 that there was no evidence of any type psychiatric disorder, neurological
symptoms, or psychosis to impair defendant’s concept of reality, and no clinical evidence
of bizarre, disorganized, or schizophrenic behaviors. Defendant was suffering “from a
psychiatric disorder best classified as substance abuse disorder (methamphetamines).”
Defendant was not legally insane at the time of the offenses, he was capable of knowing
and understanding the nature and quality of his act, differentiate right from wrong, and
had the capacity to form intent. The second expert reported in January 2014, that
defendant did not meet the criteria for an NGI finding, he could distinguish right from
wrong, and understood the nature and quality of his actions. There was no evidence of
psychosis at the time of the offense. Defendant’s thought process “was clear, logical, and
goal-directed. There was no evidence of a formal thought disorder.” “While there is
evidence he was suffering from a Major Depressive Disorder, this did not result in a loss
to his cognitive capacity such that he did not comprehend the criminality or wrongfulness
of his behavior.”
       As set forth above, Dr. Geshuri testified for the defense at trial that, in his opinion,
defendant’s test results indicated he had “mild mental retardation.” On cross-
examination, Dr. Geshuri conceded defendant could have failed to answer certain test
questions because he was malingering, that someone with “mild mental retardation”
could intend and carry out the plan to kill someone, and defendant was not so “mentally
retarded” that he could not have come up with a false claim that he wanted to kill himself.
       Based on Dr. Geshuri’s testimony, the jury was instructed with CALCRIM
No. 3428, mental impairment as a defense to specific intent or mental state: the jury
could consider evidence that defendant may have suffered from a mental disease, defect,

                                             58.
or disorder, only for the limited purpose of deciding whether he acted with intent or
mental state required for the charged offenses; the People had the burden of proving
beyond a reasonable doubt that defendant had the specific intent to kill for counts 1 and
2, attempted murder, he had knowledge the victims were acting as police officers, and/or
he intentionally fired a firearm; and if the People did not meet that burden, the jury had to
find defendant not guilty of attempted murder. The jury obviously rejected Dr. Geshuri’s
testimony about defendant’s alleged intellectual disability because it found defendant
guilty of the two counts of attempted premeditated murder of peace officers.
       “Only a single aggravating factor is required to impose the upper term [citation],
and the same is true of the choice to impose a consecutive sentence [citation].” (People
v. Osband (1996) 13 Cal.4th 622, 729; People v. Steele (2000) 83 Cal.App.4th 212, 226.)
“Sentencing courts have wide discretion in weighing aggravating and mitigating factors”
and “a trial court may ‘minimize or even entirely disregard mitigating factors without
stating its reasons.’ [Citation.]” (People v. Lai (2006) 138 Cal.App.4th 1227, 1258.)
       Contrary to defendant’s arguments, the court was well aware of the defense
evidence about defendant’s alleged intellectual disability, and defense counsel’s
complaints that the probation report failed to summarize Dr. Geshuri’s trial testimony and
refer to that evidence as a mitigating factor. The court considered and rejected defense
counsel’s argument to treat the defense evidence as a mitigating factor in this case. Even
if the court should have considered the defense evidence as a mitigating factor, the court
still found multiple aggravating circumstances to support its discretion to impose
consecutive indeterminate sentences for counts 1 and 2. We cannot say the court abused
its discretion in doing so and will not remand for the court to reconsider its decision to
impose consecutive sentences.




                                             59.
V.     The Parties’ Agreement to Remand for Specific Sentencing Issues
       In contrast to the court’s ruling on consecutive sentences, the parties agree that the
matter must be remanded for a new sentencing hearing on several specific issues. Given
the parties’ agreement about the need for remand, we will briefly summarize these issues
for the trial court to address.
       A.       Credits
       Defendant contends that while the court correctly awarded him 799 days of actual
credits for being in custody, it erroneously failed to award him any conduct credits.
       The People state that an addendum to the probation report excluded conduct
credits and the court had a plausible reason for not awarding any. Nevertheless, the
People concur that remand is necessary for the court to either correct its previous ruling
and award conduct credits or clarify why it denied the credits.
       B.       The Firearm Enhancements for Counts 1 and 2
       The parties agree that on remand, the court must correct the record about the
firearm enhancements.
       The information alleged as to counts 1 and 2, attempted murder, that defendant
personally used a firearm (§ 12022.53, subd. (b)); personally and intentionally discharged
a firearm (§ 12022.53, subd. (c)); and personally and intentionally discharged a firearm
that proximately caused great bodily injury or death to Officers Collins and Ferreira
(§ 12022.53, subd. (d)).
       As to counts 1 and 2, however, the jury was only instructed, received verdict
forms, and found true the allegations pursuant to section 12022.53, subdivision (d), that
defendant personally and intentionally discharged a firearm causing great bodily injury to
the victims.



          See footnote, ante, page 1.


                                             60.
       The jury was not instructed, did not receive verdict forms, or making findings for
the section 12202.53, subdivision (b) and (c) enhancements alleged in the information for
counts 1 and 2. As to the lesser offenses of attempted voluntary manslaughter for counts
1 and 2, the jury received verdict forms to determine whether defendant personally used a
firearm in violation of section 12022.5, subdivision (a). The jury found defendant guilty
of the greater offenses and did not fill in those forms.
       In the reporter’s transcript for the sentencing hearing, the court stated it was
imposing the firearm enhancements for counts 1 and 2 pursuant to section 12022.53,
subdivision (d), consistent with the information and the jury instructions.
       However, the May 26, 2016, minute order for the sentencing hearing and the
abstract of judgment state the court imposed the firearm enhancements for counts 1 and 2
pursuant to section 12022.53, subdivision (b), and that it stayed the enhancements for
section 12022.53, subdivision (d).
       Defendant requests and the People agree that on remand, the court must correct the
minute order and abstract of judgment to show that the firearm enhancements for
counts 1 and 2 were found true and the indeterminate terms were imposed pursuant to
section 12022.53, subdivision (d), and that no firearm enhancements were found true or
stayed under any other subdivision.18
       C.     Count 3
       Defendant was charged in count 3 with a violation of section 29800,
subdivision (a)(1), felon in possession of a firearm, and the jury was correctly instructed
on the offense.




       18 As we discuss below, the matter is also being remanded for the court to consider
whether to exercise its discretion to strike any of the firearm enhancements pursuant to
recent statutory amendments. The court must correct the abstract accordingly once it
decides whether or not to exercise this discretion on the firearm enhancements.


                                             61.
       The verdict form for count 3 erroneously stated that defendant was convicted of
possession of a firearm by a prohibited person in violation of “section 28900(a)(1)”
instead of the charged crime of section 29800, subdivision (a)(1).
       The May 26, 2016, minute order for the sentencing hearing and the abstract of
judgment incorrectly state that defendant was convicted in count 3 of violating
section “28900(A)(1).”
       Defendant concedes that he did not object to the verdict form and the error is
harmless.
       However, defendant requests and the People agree that on remand, the court must
correct the minute order and abstract of judgment to state the correct statutory violation
for count 3.

       D.      Hearing to Make a Record for an Eventual Youth Offender Parole
               Hearing
       Defendant filed a supplemental brief and requested remand for a hearing to make a
record of information relevant to an eventual youth offender parole hearing pursuant to
People v. Franklin (2016) 63 Cal.4th 261.
       The People agree that such a hearing is appropriate since defendant was 25 years
old when he committed the offenses in this case, and section 3051 has been amended to
require youth offender parole hearings for offenders who were 25 years of age or younger
at the time of the crime.
       E.      Section 12022.53
       Finally, defendant contends, and the People agree, that on remand, the court must
consider whether to exercise its discretion to strike any of the firearm enhancements
imposed pursuant to section 12022.53, subdivision (d), based on the recent statutory
amendments that have granted such discretion to sentencing courts.
       Therefore, on remand, the court shall consider whether to strike the indeterminate
terms imposed pursuant to the section 12022.53, subdivision (d) firearm enhancements.


                                            62.
We do not find that the court must strike the enhancements, but only that the court must
consider whether to exercise its discretion in furtherance of justice pursuant to the newly-
enacted statutory provision. (Stats. 2017, ch. 682, § 2 (Sen. Bill No. 620), eff. Jan. 1,
2018; People v. Woods (2018) 19 Cal.App.5th 1080, 1090–1091.)
VI.    The Court’s Imposition of Restitution Fines, Fees, and Assessments
       Defendant argues the court violated his constitutional rights to due process and
equal protection because it ordered him to pay restitution fines, fees, and assessments
without conducting a hearing to determine whether he had the ability to pay those
amounts. Defendant did not object to the court’s orders but argues he has not forfeited
review because any objection would have been futile under the statutory and case law at
that time, and the issue raises a pure legal question. Defendant requests this court remand
the matter for the trial court to conduct a hearing on his ability to pay so that it can either
strike or stay the amounts previously imposed.
       Defendant’s due process arguments are based on People v. Dueñas, supra, 30
Cal.App.5th 1157, that was decided after his sentencing hearing was held and while this
appeal was pending. We disagree with Dueñas’s due process analysis and find a
defendant’s constitutional challenge to the court’s imposition of such amounts should be
raised under the Eighth Amendment to the United States Constitution to determine
whether the fines, fees, and assessments are “grossly disproportional to the gravity of a
defendant’s offense” and thus “excessive.” (United States v. Bajakajian (1998) 524 U.S.
321, 334 (Bajakajian), superseded on other grounds as explained in U.S. v. Jose (1st
Cir.P.R. 2007) 499 F.3d 105, 110.)
       We also find that, to the extent defendant attempts to rely on Dueñas, he forfeited
review of his ability to pay argument by failing to object when the sentencing court
imposed restitution fines above the statutory minimum, and any error is harmless beyond
a reasonable doubt because the record shows he has the ability to pay the amounts
ordered in this case.

                                              63.
       A.      The Sentencing Hearing
       We begin with the sentencing hearing that was held in May 2016, before Dueñas
was decided.
       The court found multiple aggravating factors, no mitigating factors, and sentenced
defendant to an aggregate term of 80 years to life for two counts of attempted murder
with firearm enhancements, and one count of possession of a firearm by a felon. The
court followed the probation report’s recommendation and imposed the maximum
statutory restitution fine of $10,000 (§1202.4, subd. (b))19, and imposed and stayed the
parole revocation fine of $10,000 (§ 1202.45). The court also imposed the court



       19 Section 1202.4, subdivision (b) mandates the court to impose a “separate and
additional restitution fine” in “every case where a person is convicted of a crime,” unless
the court “finds compelling and extraordinary reasons for not doing so and states those
reasons on the record.” Upon conviction of a felony, the minimum fine is $300 and the
maximum fine is $10,000. (§ 1202.4, subd. (b)(1).) “In setting a felony restitution fine,
the court may determine the amount of the fine as the product of the minimum fine
pursuant to paragraph (1) multiplied by the number of years of imprisonment the
defendant is ordered to serve, multiplied by the number of felony counts of which the
defendant is convicted.” (§ 1202.4, subd. (b)(2).)
       “The court shall impose the restitution fine unless it finds compelling and
extraordinary reasons for not doing so and states those reasons on the record. A
defendant’s inability to pay shall not be considered a compelling and extraordinary
reason not to impose a restitution fine. Inability to pay may be considered only in
increasing the amount of the restitution fine in excess of the minimum fine pursuant to
paragraph (1) of subdivision (b)….” (§ 1202.4, subd. (c), italics added.)
       If the court sets the restitution fine in excess of the minimum amount, it shall
consider “any relevant factors, including, but not limited to, the defendant’s 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 as a result of the crime, and the number of victims
involved in the crime. …. Consideration of a defendant’s inability to pay may include his
or her future earning capacity. A defendant shall bear the burden of demonstrating his
or her inability to pay. Express findings by the court as to the factors bearing on the
amount of the fine shall not be required. A separate hearing for the fine shall not be
required.” (§ 1202.4, subd. (d), italics added.)

                                            64.
operations assessment of $120 (§ 1465.8)20 and the court facilities funding assessment of
$90 (Gov. Code, § 70373).21
       The court also sentenced defendant to a consecutive lower term of two years for
assault with a deadly weapon; the conviction was based on defendant’s assault on his
cellmate during the pendency of his trial. The court again followed the probation report’s
recommendation and imposed a restitution fine of $600, an amount above the statutory
minimum, and imposed and stayed the parole revocation fine of $600. The court also
imposed a $40 court operations assessment (§ 1465.8); and a $30 court facilities funding
assessment (Gov. Code, § 70373).
       Defendant was thus ordered to pay a total of $10,600 in restitution fines, $160 in
court operations assessments, and $120 in court facilities funding assessments. The court
did not order any victim restitution. Defense counsel objected to the court’s findings on
aggravating and mitigating factors but did not object to the court’s imposition of any of
the fines, fees, and assessments.
       The court stated the public defender’s office had requested reimbursement of
attorney fees in the amount of $50,000. The court denied the request because “[i]n light
of the life sentence that [defendant] has been sentenced to, I’m gonna [sic] find no ability
[to pay].”22

       20 Section 1465.8, the court operations assessment, requires the court to impose an
assessment of $40 on “every conviction for a criminal offense,” with certain exceptions,
“[t]o assist in funding court operations.” (§ 1465.8, subd. (a)(1).) It does not refer to a
defendant’s ability to pay.
       21 Government Code section 70373, the court facilities funding assessment,
requires the court to impose an assessment on every criminal conviction, with certain
exceptions, “[t]o ensure and maintain adequate funding for court facilities,” in the amount
of $30 for each misdemeanor or felony, and $35 for each infraction. (Gov. Code,
§ 70373, subd. (a)(1).) It does not refer to the defendant’s ability to pay.
       22 As we will discuss below, section 987.8, subdivision authorizes the court to
order a defendant to repay the courts of appointed counsel upon notice and a hearing, but
presumes a defendant sentenced to state prison does not have the ability to reimburse

                                            65.
       B.     Dueñas, Castellano, and Frandsen
       In Dueñas, supra, 30 Cal.App.5th 1157, an impoverished defendant had been
repeatedly convicted of driving with a suspended license. She lacked the financial means
to pay multiple fees imposed for her previous citations and clear her record to obtain a
valid license. She remained liable for court fees and the debts were sent to collection
agencies. (Id. at pp. 1160–1161.) The court subsequently placed the defendant on
probation on condition of serving 30 days and paying a $300 fine and offered to convert
the fine into an addition nine days in jail. Her attorney agreed because she did not have
the ability to pay. The court also ordered her to pay a restitution fine of $150, the
statutory minimum for a misdemeanor; $30 for the court facilities assessment (Gov.
Code, § 70373); and $40 for the court operations assessment (§ 1465.8). It did not
impose victim restitution. (Dueñas, supra, 30 Cal.App.5th at pp. 1162, 1169.)
       After the court imposed the fees and fines, it granted the defendant’s motion for a
hearing on her ability to pay the attorney fees she had previously been assessed with
under section 987.8, subdivision (b), and also to challenge the other fines and fees.
(Dueñas, supra, 30 Cal.App.5th at pp. 1162–1163.) The defendant introduced
uncontested evidence about her indigence. The court determined she lacked the ability to
pay the previously-ordered attorney fees and waived them. The court found the
assessments imposed under section 1465.8 and Government Code section 70373 were
mandatory regardless of her inability to pay. The court further found she failed to show
the “ ‘compelling and extraordinary reasons’ ” required by section 1202.4, subdivision (c)
to justify waiving the minimum $150 restitution fine. (Dueñas, supra, at p. 1163.) The
court rejected defendant’s argument that due process and equal protection required it to
determine her ability to pay the fees and fines or strike the orders. (Ibid.)


these costs absent unusual circumstances. (People v. Rodriguez (2019) 34 Cal.App.5th
641, 645–646.)


                                             66.
       Dueñas held the trial court’s imposition of these amounts without finding the
defendant had the ability to pay, and “using the criminal process to collect a fine she
cannot pay is unconstitutional” because “the only reason [the defendant] cannot pay the
fine and fees is her poverty.” (Dueñas, supra, 30 Cal.App.5th at p. 1160.)

       “We conclude that 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 court facilities and court operations assessments under …
       section 1465.8 and Government Code section 70373. We also hold that
       although … section 1202.4 bars consideration of a defendant’s ability to
       pay unless the judge is considering increasing the fee over the statutory
       minimum, the execution of any restitution fine imposed under this statute
       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.” (Id. at p. 1164, italics added.)
       In reviewing the fees and assessments, Dueñas found that section 1465.8 and
Government Code section 70373 were not enacted with the intent to be punitive in
nature, but they had been “parts of more comprehensive legislation intended to raise
funds for California courts.” (Dueñas, supra, 30 Cal.App.5th at p. 1165.) The
Legislature had provided “fee waivers for indigent litigants at the trial and appellate court
levels that excuse them from paying fees for the first pleading or other paper, and other
court fees and costs, including assessments for certain court investigations,” and listed
several statutory examples. These waivers lessened “the disproportionate burden that
these fundraising fees present to indigent litigants in the civil context.” (Id. at pp. 1165–
1166.) By comparison, the Legislature failed to enact “a corresponding safeguard for
assessments attached to a criminal conviction,” since both section 1465.8 and
Government Code section 70373 were silent as to the consideration of a defendant’s
ability to pay in imposing the assessments. (Dueñas, at p. 1166.)
       Dueñas held that, in the absence of such waivers and safeguards, the probationer
faced significant consequences “if she blamelessly fails to pay her assessments,” whether
those amounts are “considered as a criminal penalty or as a civil judgment.” (Dueñas,


                                             67.
supra, 30 Cal.App.5th at p. 1168.) “These additional, potentially devastating
consequences suffered only by indigent persons in effect transform a funding mechanism
for the courts into additional punishment for a criminal conviction for those unable to
pay.” (Ibid., italics added.)
       Dueñas reversed the two assessments because imposing them “upon indigent
defendants without a determination that they have the present ability to pay violates due
process under both the United States Constitution and the California Constitution.
[Citations.] These fees, assessed as part of a larger statutory scheme to raise revenue to
fund court operations, should be treated no differently than their civil counterparts
enacted in the same legislation and imposed only on those with the means to pay them.
[Citation.]” (Dueñas, supra, 30 Cal.App.5th at pp. 1168–1169, fns. omitted.)23
       As for the restitution fine, Dueñas recognized that it was intended to be additional
punishment, but it posed constitutional concerns where the fines are imposed as
conditions of probation. Any unpaid restitution fines remaining at the end of probation
are enforceable as a civil judgment, and the debt may be enforced by litigation or offset
against any amounted owed to the defendant by a state agency. (Dueñas, supra, 30
Cal.App.5th at pp. 1169–1170.) “[A]lthough … section 1202.4 permits the court to
waive imposition of a restitution fine if it finds ‘compelling and extraordinary reasons’
why the fine should not be imposed, the statute expressly states that inability to pay the
fine does not qualify” when the minimum fine is imposed. (Id. at p. 1170 and fn. 6.) As
a result, “the criminal justice system punishes indigent defendants in a way that it does
not punish wealthy defendants,” who may have the charges dismissed after the successful

       23 Dueñas relied on Griffin v. Illinois (1956) 351 U.S. 12, In re Antazo (1970) 3
Cal.3d 100, and Bearden v. Georgia (1983) 461 U.S. 660 to reach these conclusions, and
rejected the People’s argument that these cases were distinguishable because the
defendants therein faced imprisonment only on the basis on their poverty, while the
defendant in Dueñas was subject to a civil judgment she could not satisfy. (Dueñas,
supra, 30 Cal.App.5th at pp. 1167–1168.)


                                            68.
completion of probation. (Id. at p. 1170) “But if a probationer cannot afford the
mandatory restitution fine, through no fault of his or her own he or she is categorically
barred from earning the right to have his or her charges dropped and to relief from the
penalties and disabilities of the offense for which he or she has been on probation, no
matter how completely he or she complies with every other condition of his or her
probation.” (Ibid.)

               “The statutory scheme thus results in a limitation of rights to those
       who are unable to pay. The heart of the due process inquiry is whether it is
       ‘fundamentally unfair’ to use the criminal justice system to impose punitive
       burdens on probationers who have ‘made all reasonable efforts to pay the
       fine or restitution, and yet cannot do so through no fault of [their] own ....’
       [Citation.]” (Id. at p. 1171.)
       Dueñas remanded the matter to the superior court to stay execution of the
restitution fine “until and unless the People demonstrate that the defendant has the ability
to pay the fine.” (Dueñas, supra, 30 Cal.App.5th at pp. 1172–1173, italics added.)
       In People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano), the defendant
was convicted of possession of cocaine base for sale with prior conviction enhancements
and sentenced to six years, split between three years in local custody and three years on
mandatory supervised release. The court ordered him to pay the statutory minimum $300
restitution fine (§ 1202.4, subd. (b)) and other fees and assessments. The sentencing
hearing was held before Dueñas was decided. The defendant did not object to any of the
amounts imposed by the court. On appeal, after Dueñas was decided, the defendant
argued the fines and fees similarly violated his due process rights, and the appellate court
should strike the trial court’s orders because it failed to find he had the ability to pay.
(Castellano, at pp. 487, 488.)
       Castellano held the defendant did not forfeit appellate review of his ability to pay
claim, even though he did not object at the sentencing hearing, because Dueñas had not
yet been decided, “no California court prior to Dueñas had held it was unconstitutional to



                                              69.
impose fines, fees or assessments without a determination of the defendant’s ability to
pay,” and Dueñas was based on “a newly announced constitutional principle that could
not reasonably have been anticipated at the time of trial.” (Castellano, supra, 33
Cal.App.5th at p. 489.) In addition, the relevant statutory authority did not allow the
sentencing court to consider a defendant’s ability to pay since it imposed the minimum
restitution fine. (Ibid.)
       As to the merits, Castellano rejected the defendant’s assertion that Dueñas
required the summary reversal of the fees and fines that had been imposed at the
sentencing hearing. Castellano distinguished Dueñas since the probationer in that case
requested a hearing and presented credible evidence she lacked the ability to pay.
Castellano further held that Dueñas required “a defendant … in the first instance contest
in the trial court his or her ability to pay the fines, fees and assessments to be imposed
and at a hearing present evidence of his or her inability to pay the amounts contemplated
by the trial court.” (Castellano, supra, 33 Cal.App.5th at p. 490.)
       However, Castellano concluded that since the defendant’s conviction and sentence
were not yet final, Dueñas applied to his case, and the matter should be remanded to the
trial court “so that he may request a hearing and present evidence demonstrating his
inability to pay the fines, fees and assessments imposed by the trial court.” (Castellano,
supra, 33 Cal.App.5th at p. 491.)

       “If he demonstrates the inability to pay, the trial court must strike the court
       facilities assessment (Gov. Code, § 70373), the court operations assessment
       ([] § 1465.8) and the criminal laboratory analysis fee (Health & Saf. Code,
       § 11372.5); and it must stay the execution of the restitution fine. If [he]
       fails to demonstrate his inability to pay these amounts, the fines, fees and
       assessments imposed may be enforced.” (Ibid.)
       In People v. Frandsen (2019) 33 Cal.App.5th 1126 (Frandsen), the court
sentenced defendant to prison and imposed the statutory maximum restitution fine of
$10,000, in addition to other fees and assessments. The sentencing hearing was held



                                             70.
before Dueñas was decided, and the defendant did not object to the fees and fines.
(Frandsen, at pp. 1139, 1152–1153.) Frandsen held the defendant forfeited his appellate
arguments based on Dueñas about his ability to pay the fines and fees because he failed
to object at the sentencing hearing to the restitution fine that was imposed above the
statutory minimum, he was raising a question of fact and not of law, and there was
nothing in the record to indicate that he would have been foreclosed from making the
same objections as the probationer in Dueñas. (Frandsen, supra, 33 Cal.App.5th at
pp. 1153–1154.)
       Frandsen also “fundamentally” disagreed with Castellano on the assertion that
Dueñas was “ ‘a dramatic and unforeseen change in the law,’ ” since the defendant in
Dueñas “foresaw it” by raising the ability to pay issue based on existing cases.
(Frandsen, supra, 33 Cal.App.5th at p. 1154.) “Dueñas applied law that was old, not
new.” (Id. at p. 1155.)
       C.     Defendant’s Contentions
       In this appeal, defendant acknowledges that he did not object to the court’s
imposition of the fines, fees, and assessments at the sentencing hearing, or claim that he
lacked the ability to pay those amounts. However, defendant asserts that he is in the
same position as the defendant in Castellano, who also failed to object but still obtained
relief on the same issue. Defendant asserts that he did not forfeit appellate review since
he could not have anticipated the holding in Dueñas. Defendant argues that under
Castellano, the instant matter must be remanded to the trial court so that he can raise a
constitutional objection based on Dueñas, and the court can determine whether he has the
ability to pay the fines, fees, and assessments.
       Defendant’s argument is based on the supposition that Dueñas was correctly
decided. We disagree and find that it is more appropriate to rely upon the Eighth
Amendment to raise a constitutional challenge to the court’s imposition of statutorily
mandated fines, fees and assessments.

                                             71.
       Dueñas was Wrongly Decided24
       We find that Dueñas was wrongly decided and agree with Justice Benke’s
concurring opinion in People v. Gutierrez (2019) 35 Cal.App.5th 1027, petition for
review pending, petition filed on July 15, 2019,25 that Dueñas’s analysis is
“fundamentally flawed in that general ‘fairness’ grounds of due process and/or equal
protection principles do not afford a defendant a preassessment ability-to-pay hearing
before a trial court imposes fines and fees on him or her.” (Gutierrez, supra, at p. 1038
(conc. opn. of Benke, J.); see also People v. Kopp (2019) 38 Cal.App.5th 47, 81–83
(conc. opn. of Benke, J.) and People v. Santos (Aug. 15, 2019, H045518) __ Cal.App.5th
__ 2019 Cal.App. LEXIS 759, 18–27 (dis. opn. of Elia, J.).)

       “[I]n reaching its conclusions, Dueñas by judicial fiat inserted language
       into statutes that did not exist. That is, I note the adjective ‘present’ used
       by the Dueñas court in its ability-to-pay analysis is nowhere to be found
       in … sections 1202.4 and 1465.8, or in Government Code section 70373.
       [Citations.]

              “Perhaps more egregiously, Dueñas in its analysis completely
       disregarded unambiguous language in subdivision (c) of section 1202.4

       24 As noted in Castellano, a bill is currently pending in the Legislature that
“proposes the following factors be considered in determining a defendant’s ability to pay:
the defendant’s present financial circumstances; whether the defendant is receiving any
type of government benefits, including means-tested benefits; whether the defendant was
represented by court-appointed counsel; the defendant’s reasonably discernible future
financial circumstances; the likelihood the defendant will be able to obtain employment
within a six-month period from the date of the court’s consideration of the issue; the
amount of victim restitution ordered, if any; and any other factor that may bear upon the
defendant’s inability to pay. (Assem. Bill No. 927 (2019–2020 Reg. Sess.) § 1.)”
(People v. Castellano, supra, 33 Cal.App.5th at p. 490, fn. 5.) This bill has not yet been
enacted. In any event, we are compelled to address the issues raised by the defendant.
       25 The majority opinion in Gutierrez did not address whether Dueñas was
correctly decided. Instead, it found the defendant forfeited appellate review by failing to
raise an ability to pay objection under existing statutory law because the court imposed
the maximum restitution fine. Since the defendant chose not to object to the $10,000
restitution fine, “he surely would not complain on similar grounds regarding an additional
$1,300 in fees.” (Gutierrez, supra, 35 Cal.App.5th at p. 1033 (maj. opn. of Haller, J.).)

                                             72.
       stating that inability to pay cannot be considered when only the statutory
       minimum is imposed, as was the case there. Moreover, by also adding the
       word ‘present’ to the ability-to-pay analysis with respect to the restitution
       fine, Dueñas ignored section 1202.4, subdivision (d), which says the exact
       opposite: ‘Consideration of a defendant’s inability to pay may include his
       or her future earning capacity.’ (Italics added.) A court lacks the power to
       rewrite a statute either so as to make it conform to a presumed intention that
       is not stated, or to ignore a statute’s plain and unambiguous language.
       [Citation.]” (Gutierrez, supra, 35 Cal.App.5th at p. 1038 (conc. opn. of
       Benke, J.).)
       Dueñas’s due process and equal protection analysis was improperly based on a
series of cases that addressed the concern that “that due process and equal protection
guaranteed an indigent criminal defendant a free transcript of trial proceedings in order to
provide that defendant with access to a court of review, where he would receive an
adequate and effective examination of his criminal conviction. [Citation.]” (Gutierrez,
supra, 35 Cal.App.5th at p. 1039 (conc. opn. of Benke, J.).) Dueñas’s reliance on certain
statutes was also incorrect because “[t]hese statutes instead ensure that all people, without
regard to economic status, have equal access to our justice system.” (Gutierrez, supra, at
p. 1039 (conc. opn. of Benke, J.).) The fine and assessments imposed on the probationer
in Dueñas did not raise “an issue of access to our courts or justice system” or satisfy “the
traditional due process definition of a taking of life, liberty or property.” (Gutierrez,
supra, p. 1039 (conc. opn. of Benke, J.).)

       “[There is] no general due process and equal protection authority which
       requires a court to conduct a preassessment present ability-to-pay hearing
       before imposing any fine or fee on a defendant, as Dueñas seems to
       conclude. On a practical note, it takes little imagination to envision the
       potential expansion of the holding of Dueñas to a multitude of other fines
       or fees that were not the subject of that case, or the instant case. One such
       possible fine is victim restitution, which is encompassed in subdivision (f)
       of section 1202.4 – one of the same statutes at issue in Dueñas. Although
       that subdivision expressly requires a court to order ‘full restitution’ to the
       victim, should the constitutional basis of Dueñas stand, any restitution
       hearing might require a finding of present ability to pay victim restitution.”
       (Ibid.)



                                             73.
       Dueñas thus incorrectly relied upon a due process analysis to examine the
probationer’s constitutional objections to the court’s imposition of the fines, fees, and
assessments in that case. We further find Castellano incorrectly extended Dueñas’s due
process analysis to cases where a defendant is sentenced to prison and ordered to pay
such amounts.

       D.     The Eighth Amendment
       While we reject Dueñas’s due process analysis, a defendant who raises a
constitutional objection at a sentencing hearing, based on his or her inability to pay
statutorily mandated fines, fees, and assessments, is not without a remedy. Such a
challenge should be based instead on the prohibition against “excessive fines” contained
in the Eighth Amendment to the United States Constitution, as recently applied to state
action in Timbs v. Indiana (2019) ___ U.S. ___ [139 S.Ct. 682].)26
       “Like the Eighth Amendment’s proscriptions of ‘cruel and unusual punishment’
and ‘[e]xcessive bail,’ the protection against excessive fines guards against abuses of
government’s punitive or criminal-law-enforcement authority. This safeguard, we hold,
is ‘fundamental to our scheme of ordered liberty,’ with ‘dee[p] root[s] in [our] history
and tradition.’ [Citation.] The Excessive Fines Clause is therefore incorporated by the
Due Process Clause of the Fourteenth Amendment.” (Timbs v. Indiana, supra, 139 S.Ct.
at pp. 686–687, italics added.)
       An Eighth Amendment analysis is more appropriate because such an analysis
“allows for consistent and fair review of fines and fees imposed on individuals while they
are focused both legally and factually in the trial court, with the appeal process remaining



       26  The Eighth Amendment to the United States Constitution states: “Excessive
bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.” (Italics added.) Article I, section 17 of the California Constitution states:
“Cruel or unusual punishment may not be inflicted or excessive fines imposed.” (Italics
added.)

                                             74.
available for review.” (Gutierrez, supra, 35 Cal.App.5th at p. 1040 (conc. opn. of Benke,
J.).)
        “The Eighth Amendment prohibits the imposition of excessive fines. The word
‘fine,’ as used in that provision, has been interpreted to be ‘ “a payment to a sovereign as
punishment for some offense.” ’ [Citation.]” (Gutierrez, supra, 35 Cal.App.5th at
p. 1040 (conc. opn. of Benke, J.).) The determination of whether a fine is excessive for
purposes of the Eighth Amendment is based on the factors set forth in Bajakajian, supra,
524 U.S. 321. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th
707, 728.)
        “The touchstone of the constitutional inquiry under the Excessive Fines Clause is
the principle of proportionality: The amount of the forfeiture must bear some
relationship to the gravity of the offense that it is designed to punish. [Citations.] [A]
punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to
the gravity of a defendant’s offense.” (Bajakajian, supra, 524 U.S. at p. 334.)
        The California Supreme Court has summarized the factors in Bajakajian to
determine if a fine is excessive in violation of the Eighth Amendment: “(1) the
defendant’s culpability; (2) the relationship between the harm and the penalty; (3) the
penalties imposed in similar statutes; and (4) the defendant’s ability to pay. [Citations.]”
(People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at p. 728;
Gutierrez, supra, 35 Cal.App.5th at p. 1040 (conc. opn. of Benke, J.).) While ability to
pay may be part of the proportionality analysis, it is not the only factor. (Bajakajian,
supra, 524 U.S. at pp. 337–338.)
        In People v. Urbano (2005) 128 Cal.App.4th 396, the defendant was convicted of
assault by means likely to produce great bodily injury. (Id. at p. 400.) This court relied
on Bajakajian to reject the defendant’s claim that a $3,800 restitution fine (§ 1202.4,
subd. (b)(1)) was excessive under the state and federal Constitutions. “The record of a
completely unprovoked attack by a two-striker causing great bodily injury solely to

                                             75.
promote a criminal street gang amply justifies the amount at issue.” (People v. Urbano,
supra, at p. 406.)
       In Gutierrez, the defendant was convicted of nine counts of committing lewd and
lascivious acts upon a child, along with prior strike convictions, and sentenced to 35
years plus 100 years to life. (Gutierrez, supra, 35 Cal.App.5th at pp. 1028–1029 (maj.
opn. of Haller, J.).) The concurring opinion, having rejected Dueñas’s due process
analysis, found a constitutional objection to such amounts should be based on the Eighth
Amendment. It also found that based on defendant’s claimed inability to pay the $10,000
restitution fine, the $360 court security fee (§ 1465.8), the $270 fee under Government
Code section 70373, and the $154 criminal justice administration fee under Government
Code section 29550.1, an Eighth Amendment challenge would have been meritless
because those amounts were not “ ‘excessive’ ” in violation of either the federal or state
Constitutions based on the proportionality factors in Bajakajian. (Gutierrez, supra, 35
Cal.App.5th p. 1040 (conc. opn. of Benke, J.).)
              1.     Application of Eighth Amendment to Fees and Assessments
       We find an Eighth Amendment analysis is appropriate to address a defendant’s
constitutional challenge to both restitution fines as well as other fees and assessments
imposed after conviction.
       “The Excessive Fines Clause … ‘limits the government’s power to extract
payments, whether in cash or in kind, “as punishment for some offense.” ’ [Citation.]”
(Bajakajian, supra, 524 U.S. at p. 328.) Restitution fines imposed under section 1202.4,
subdivision (b) are recognized as criminal penalties and a form of punishment. (People v.
Hanson (2000) 23 Cal.4th 355, 361–363; People v. Harvest (2000) 84 Cal.App.4th 641,
647 (Harvest).)27

       27 In contrast to restitution fines, victim restitution imposed under section 1202.4,
subdivision (e) is not defined as punishment since it is paid to the victim as compensation
for loss and not to “ ‘a sovereign as punishment for some offense.’ ” (Harvest, supra, 84

                                            76.
       Dueñas recognized the court facilities and court operations assessments were not
enacted to be “punitive in nature,” but instead were part “of more comprehensive
legislation intended to raise funds for California courts.” (Dueñas, supra, 30 Cal.App.4th
at pp. 1164–1165.) As explained above, however, Dueñas also found a defendant could
raise a constitutional challenge to the imposition of fees and assessments because the
“potentially devastating consequences” suffered by indigent persons unable to pay those
amounts “in effect transform a funding mechanism for the courts into additional
punishment for a criminal conviction for those unable to pay.” (Id. at p. 1168, italics
added.) Dueñas essentially held that fees and assessments, like restitution fines,
constitute “punishment” for purposes of a constitutional challenge. (Ibid.)
              2.     Analysis Under the Eighth Amendment
       We may review de novo whether a fine is excessive under the Eighth Amendment.
(Bajakajian, supra, 524 U.S. at p. 336, fn. 10.)
       We find the $10,000 restitution fine, the court operations assessment of $120, and
the court facilities funding assessment of $90 are not grossly disproportionate to
defendant’s convictions for attempting to murder the two officers and possession of a
firearm by a felon. Defendant repeatedly refused to stop when the officers lawfully
ordered him to. He entered private residences without permission, concealed himself
inside rooms and within garages, and evaded detection until Officer Collins found him in
a bedroom closet. Collins holstered his service weapon and directed defendant to step


Cal.App.4th at pp. 647, 650; Gutierrez, supra, 35 Cal.App.5th at p. 1040 (conc. opn. of
Benke, J.).) The concurring opinion in Gutierrez cautioned that Dueñas’s due process
analysis could be extended to victim restitution orders. (Gutierrez, supra, at p. 1039
(conc. opn. of Benke, J.).) Indeed, in U.S. v. Dubose (9th Cir.1998) 146 F.3d 1141,
1144–1145, the court relied on Bajakajian and held that under the federal restitution law,
victim restitution awards are punishment and may be subject to the excessive fines clause
if they are grossly disproportional to the criminal offense. However, the court further
held proportionality between the defendant’s illegal activities and the victim’s loss is
inherent in a victim restitution order. (U.S. v. Dubose, at p. 1144–1145.)

                                            77.
outside. Instead of doing so, defendant fired multiple gunshots at point-blank range at the
officers who tried to take him into custody. He shot Collins in the shoulder, fired
additional shots when Officer Ferreira tried to assist Collins, shot Ferreira in the shoulder,
kept firing and hit Collins in the chest. Collins was shot four times and Ferreira was shot
once. Defendant continued to fire his weapon until additional officers arrived in the
small bedroom, returned fire, and wounded and disarmed him.
       We similarly find the $600 restitution fine, the $40 court operations assessment,
and the $30 court facilities funding assessment imposed for his assault conviction are not
grossly disproportionate under the relevant factors. According to the victim, who was
defendant’s cellmate, defendant became intoxicated after drinking “prison” alcohol and
stabbed him numerous times without provocation.
       The aggregate amounts of fines, fees, and assessments imposed in defendant’s two
cases are not grossly disproportionate to his level of culpability and the harm he caused,
and thus not excessive under the Eighth Amendment.28
       E.     Forfeiture
       Even if Dueñas applied to this case, defendant forfeited his ability to pay
challenge because he failed to object to the amounts imposed at the sentencing hearing.
(People v. Frandsen, supra, 33 Cal.App.5th at p. 1153; People v. Bipialaka (2019) 34
Cal.App.5th 455, 464.)




       28 If the probationer in Dueñas had raised a constitutional challenge based on the
Eighth Amendment, it would have surely led to the trial court’s conclusion that the fines
and fees imposed in that case were grossly disproportionate and excessive given the
undisputed facts about the probationer’s dire financial circumstances and minimal
criminal culpability. (Bajakajian, supra, 524 U.S. at p. 334; People ex rel. Lockyer v.
R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at p. 728.)

                                             78.
              1.     Futility
       Defendant asserts he did not forfeit review because any objection at the sentencing
hearing would have been futile based on case law and statutory authority that existed at
that time; and the Dueñas ruling was unforeseeable.
       “Reviewing 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. [Citations.]” (People v. Welch (1993) 5 Cal.4th 228, 237–238.) While
Dueñas had not been decided at the time of defendant’s sentencing hearing, defendant’s
futility argument is meritless because “[s]ection 1202.4 expressly contemplates an
objection based on inability to pay.” (Frandsen, supra, 33 Cal.App.5th at p. 1153.) In
both of defendant’s cases, the court imposed restitution fines above the statutory
minimum: $600 for his assault conviction, and $10,000 for his attempted murder and
felon in possession convictions. “[T]he trial court imposed the maximum restitution fine.
[The defendant] was thus obligated to object to the amount of the fine and demonstrate
his inability to pay anything more than the $300 minimum. Such an objection would not
have been futile under governing law at the time of his sentencing hearing. [Citations.]”
(Frandsen, supra, 33 Cal.App.5th at p. 1154.)
       The California Supreme Court has repeatedly held that when a court imposes fees
and/or fines pursuant to statutes that specifically include ability to pay findings, the
defendant must raise an objection at the sentencing hearing or forfeit the appellate claim
that the court failed to make such a finding or there was no evidence of the defendant’s
ability to pay the imposed amounts. (See People v. Gamache (2010) 48 Cal.4th 347, 409;
People v. Case (2018) 5 Cal.5th 1, 52–53; People v. Avila (2009) 46 Cal.4th 680, 728–
729; People v. Nelson (2011) 51 Cal.4th 198, 227; People v. McCullough (2013) 56
Cal.4th 589, 590, 598–599; People v. Trujillo (2015) 60 Cal.4th 850, 858–861.)
       Despite having the statutory ability to object, defendant did not raise an ability to
pay objection to the court’s imposition of two restitution fines that were well above the

                                             79.
statutory minimum amounts, and consistent with the amounts recommended in the
probation report. “Given that the defendant is in the best position to know whether he
has the ability to pay, it is incumbent on him to object to the fine and demonstrate why it
should not be imposed. [Citations.]” (Frandsen, supra, 33 Cal.App.5th at p. 1154.)
       As in Frandsen, we also reject the argument that any objections to the assessments
imposed under section 1465.8 and Government Code section 70373 would have been
futile. “Although both statutory provisions mandate the assessments be imposed, nothing
in the record of the sentencing hearing indicates that [the defendant] was foreclosed from
making the same request that the defendant in Dueñas made in the face of those same
mandatory assessments. [The defendant] plainly could have made a record had his ability
to pay actually been an issue. Indeed, [the defendant] was obligated to create a record
showing his inability to pay the maximum restitution fine, which would have served to
also address his ability to pay the assessments. Given his failure to object to [total
restitution fines of $10,600] based on inability to pay, [defendant] has not shown a basis
to vacate” the aggregate assessments imposed in this case of $280. (Frandsen, supra, 33
Cal.App.5th at p. 1154.)
              2.     Question of Law
       Another exception to the rule of forfeiture is when a defendant raises
constitutional claims on appeal that “involve pure questions of law that can be resolved
without reference to the particular sentencing record developed in the trial court.
[Citations.]” (People v. Welch, supra, 5 Cal.4th at p. 235.)
       Defendant has not raised a pure question of law based on undisputed facts, but his
contention instead seeks “a factual determination of his alleged inability to pay based on
a record that contains nothing more than his reliance on appointed counsel at trial.”
(Frandsen, supra, 33 Cal.App.5th at p. 1153.)
       Defendant cannot rely on the court’s finding that he lacked the ability to repay the
costs of his appointed counsel under section 987.8 as the factual basis for his challenge to

                                             80.
the fines, fees, and assessments. At the sentencing hearing in this case, the court denied
the public defender’s request for reimbursement of attorney fees in the amount of
$50,000 because “[i]n light of the life sentence that [defendant] has been sentenced to,
I’m gonna [sic] find no ability [to pay].”
       Section 987.8 is based on a different statutory scheme than those relied on to
impose the fines, fees, and assessments. Section 987.8, subdivision (b) states that in
considering the defendant’s ability to pay and reimburse the county for the costs of
appointed counsel, the court must give defendant notice that such costs may be assessed
and an opportunity to be heard. In addition, the court may consider both the defendant’s
“present financial position and his reasonably discernible financial position during the
following six months. [Citation.]” (People v. Rodriguez, supra, 34 Cal.App.5th at
p. 646.) “But there’s an important exception: If the defendant is sentenced to prison or
to county jail for more than 364 days, he ‘shall be determined not to have a reasonably
discernible future financial ability to reimburse’ defense costs ‘[u]nless the court finds
unusual circumstances.’ [Citation.] [¶] Put another way, there is ‘a presumption under
the statute that a defendant sentenced to prison does not have the ability to reimburse
defense costs.’ [Citation.] To rebut this presumption, there must be ‘unusual
circumstances.’ [Citation.]” (Ibid.)
       Rodriguez held the trial court’s order to reimburse the costs of appointed counsel
in that case was improper, and the defendant did not forfeit the error by failing to object,
since the defendant never received the requisite statutory notice of the proposed payment
order. In addition, the defendant was sentenced to state prison and not granted probation
and, based on the express language of the statute, he was presumed to be unable to pay
attorney fees and costs. (People v. Rodriguez, supra, 34 Cal.App.5th at pp. 647–648.)
       As applied to this case, the sentencing court’s finding that defendant lacked the
ability to reimburse the county for his public defender was correct under section 987.8
since he was sentenced to state prison. The court’s finding does not provide a factual

                                             81.
basis to overcome defendant’s failure to object to the imposition of the fines and fees
since he received notice of these amounts in the probation report.
                3.     Harmless Error; Ability to Pay
         Even if we agreed with Dueñas and Castellano and found defendant did not waive
his objections to the court’s failure to conduct a hearing on his ability to pay, we would
still reject his constitutional claims and find any error was harmless beyond a reasonable
doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Johnson (2019) 35
Cal.App.5th 134, 139–140; People v. Jones (2019) 36 Cal.App.5th 1028, 1030–1031,
petn. for review pending, petn. filed July 31, 2019.)
         As explained above, a court’s decision to deny a government request for
reimbursement of attorney fees under section 987.8 does not similarly mean the
defendant lacked the ability to pay the fines and fees imposed in this case. “[A]
defendant may lack the ‘ability to pay’ the costs of court-appointed counsel yet have the
‘ability to pay’ a restitution fine” or other fees imposed by the trial court. (People v.
Douglas (1995) 39 Cal.App.4th 1385, 1397.)
         “ ‘Ability to pay does not necessarily require existing employment or cash on
hand.’ [Citation.] ‘[I]n determining whether a defendant has the ability to pay a
restitution fine, the court is not limited to considering a defendant’s present ability but
may consider a defendant’s ability to pay in the future.’ [Citation.] This include[s] the
defendant’s ability to obtain prison wages and to earn money after his release from
custody. [Citation.]” (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837; People v.
Frye (1994) 21 Cal.App.4th 1483, 1487; People v. Ramirez (1995) 39 Cal.App.4th 1369,
1377.)
         We can infer defendant in this case has the ability to pay the fines and fees
imposed upon him from probable future wages, including prison wages. (People v.
Douglas, supra, 39 Cal.App.4th at p. 1397.) Prison wages range from $12 to $56 per
month, depending on the prisoner’s skill level. (Cal. Code. Regs., tit. 15, § 3041.2; Cal.

                                              82.
Dept. of Corrections and Rehabilitation, Adult Institutions Operations Manual (2019),
art. 12 (Inmate Pay), §§ 51120.1, 51120.6, pp. 354–356.) The state may garnish between
20 and 50 percent of those wages to pay the section 1202.4, subdivision (b) restitution
fine. (§ 2085.5, subds. (a), (c); People v. Ellis (2019) 31 Cal.App.5th 1090, 1094.)
       Defendant suggests the probation report supports an implied finding that he does
not have the ability to pay because of certain physical and mental conditions. This claim
is refuted by the record. Defendant’s mental status was extensively addressed during the
pretrial proceedings, he was found competent to stand trial, and he did not satisfy the
criteria to plead not guilty by reason of insanity. Defendant testified at trial that he
previously attempted suicide, and he was wounded when the officers returned fire. His
mental status was further addressed during the trial testimony of the defense expert about
his alleged intellectual disabilities. Defendant relied on the expert’s testimony for an
instruction on mental impairment – that the jury could consider evidence that he may
have suffered from a mental disease, defect, or disorder to decide whether he acted with
the specific intent to kill for the attempted murder charges. The jury rejected the defense
evidence because it found defendant guilty of the two counts of attempted premeditated
murder of the officers.
       The record shows defendant has the ability to pay the total fines, fees, and
assessments imposed by the court while he serves his aggregate prison term of 82 years
to life. There is no evidence he suffered any permanent disabilities as a result of the
gunshot wounds he received when the assisting officers returned fire. Defendant was
held in jail prior to and during his trial without any apparent limitations. Indeed,
defendant had the physical ability to attack his cellmate with a homemade weapon while
these proceedings were pending, which resulted in his assault conviction.
       Defendant’s circumstances are vastly different from the probationer’s situation in
Dueñas. While it may take defendant some time to pay the amounts imposed in this case,
that circumstance does not support his inability to make payments on these amounts from

                                              83.
either prison wages or monetary gifts from family and friends during his lengthy prison
sentence. (See, e.g., § 2085.5, subd. (a); People v. Potts (2019) 6 Cal.5th 1012, 1055–
1057; People v. Lewis (2009) 46 Cal.4th 1255, 1259; People v. DeFrance (2008) 167
Cal.App.4th 486, 505.)29
                                      DISPOSITION
       The gang enhancement found true for count 3 is reversed for insufficient evidence,
and the term imposed and stayed for that enhancement is stricken.30
       The matter is remanded for the court to correct and clarify the record on the
specific sentencing issues set forth in part V, ante.
       On remand, the court must determine whether to exercise its discretion to dismiss
the section 12022.53, subdivision (d) firearm enhancements and the indeterminate terms
imposed for those enhancements for counts 1 and/or 2, based on the recent statutory
amendments that have granted such discretion to sentencing courts.
       Also, on remand, the court shall conduct a hearing for defendant to make a record
of information relevant to an eventual youth offender parole hearing.
       In all other respects, the judgment as modified – including all fines, fees, and
assessments imposed by the trial court – is affirmed.


                                                            _________________________
                                                            POOCHIGIAN, Acting P.J.

I CONCUR:


________________________
DETJEN, J.

       29The same analysis would apply to the extent that ability to pay is one of the
proportionality factors in Bajakajian.
       30 Since the trial court stayed the term imposed for the gang enhancement, the
striking of that enhancement will not affect defendant’s aggregate prison sentence.


                                             84.
PEÑA, J., Concurring.
       I concur in the judgment and most of the reasoning employed in the majority
opinion. I am reluctant to consider, however, the question of whether People v. Dueñas
(2019) 30 Cal.App.5th 1157 (Dueñas) was wrongly decided or that the excessive fines
clause of the Eighth Amendment is the only constitutional basis for challenging fines if a
criminal defendant can establish his or her inability to pay the amount imposed.
       The majority opinion examines two cases relevant to the question of forfeiture,
People v. Frandsen (2019) 33 Cal.App.5th 1126 and People v. Castellano (2019) 33
Cal.App.5th 485, but then abruptly pivots to a multipage discussion about the Eighth
Amendment. I believe our analysis should begin and end with the forfeiture issue. Given
defendant’s forfeiture of the inability-to-pay claim, it does not matter whether the merits
of his claim could be resolved on due process, equal protection, or Eighth Amendment
grounds. (See People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 [failure to object to
various fines and fees resulted in forfeiture of the issue on appeal]; Frandsen, at pp.
1153–1154 [limiting analysis of forfeited Dueñas claim to dispositive issues of futility
and foreseeability].)
       Defendant raised no issues with the trial court regarding its imposition of fines and
fees. He also failed to present any evidence of an inability to pay the fines and fees.
Since no constitutional arguments were made below, the majority opinion’s musings
about the soundness of Dueñas and whether defendant’s forfeited claim should be
analyzed under the Eighth Amendment constitute dicta, if not an advisory opinion.
Because those questions are not properly before us, we should wait for a case in which
they are squarely presented and ripe for determination.
       My hesitation to criticize Dueñas is also based on the extreme set of facts and
circumstances involved in that case. The Dueñas defendant was an indigent and
homeless mother of two who relied on public aid for necessities due, in part, to her
cerebral palsy illness. (Dueñas, supra, 30 Cal.App.5th at pp. 1160–1161.) Her driver’s
license had been suspended because she was unable to pay $1,088 in assessments
stemming from three juvenile citations. (Id. at p. 1161.) She then suffered three
misdemeanor convictions for driving on a suspended license and “was offered the
ostensible choice of paying a fine or serving jail time in lieu of payment.” (Ibid.) With
no financial means to choose the first option, she was repeatedly incarcerated and her
outstanding debt continued to increase with each conviction.
       Following another misdemeanor conviction for driving on a suspended license, the
Dueñas defendant challenged the mandatory fees and fines imposed under Government
Code section 70373 and Penal Code sections 1465.8 and 1202.4. She also proved her
inability to pay the fines and fees. The trial court ruled her indigency was not a valid
consideration and thus ordered her to pay the imposed sum. However, the Court of
Appeal concluded “that 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 court
facilities and court operations assessments under [the applicable statutes].” (Dueñas,
supra, 30 Cal.App.5th at p. 1164.) Furthermore, “although Penal Code section 1202.4
bars consideration of a defendant’s ability to pay unless the judge is considering
increasing the fee over the statutory minimum, the execution of any restitution fine
imposed under this statute 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.” (Ibid.)
       Defendant Aviles is not similarly situated to the Dueñas defendant. Because the
trial court imposed the maximum restitution fine under Penal Code section 1202.4,
defendant had a statutory right to object to the fine based on a variety factors, including
his inability to pay it. (Id., subds. (c), (d).) No objections were made, which renders
superfluous any discussion of Dueñas, due process rights, and/or the Eighth Amendment.
(See People v. Johnson (2019) 35 Cal.App.5th 134, 138, fn. 5 [“The distinction between
minimum and above minimum restitution fines has consequences for the applicability of

                                             2.
[the] forfeiture doctrine”].) I would thus reserve consideration of those issues for a
proper case.

                                                         ___________________________
                                                                             PEÑA, J.




                                             3.
