Filed 8/24/20 P. v. Martinez CA2/6

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                         DIVISION SIX


 THE PEOPLE OF THE STATE                                        2d Crim. No. B291678
 OF CALIFORNIA,                                                (Super. Ct. No. 1481236)
                                                               (Santa Barbara County)
 Plaintiff and Respondent,

 v.

 VICTOR AURELIANO
 RAMIREZ MARTINEZ,

      Defendant and Appellant.



      Victor Aureliano Ramirez Martinez appeals the judgment
entered after a jury convicted him of first degree murder (Pen.
Code,1 §§ 187, subd. (a), 189). In addition to finding that the
murder was willful, deliberate, and premeditated, the jury also
found true special circumstance allegations that appellant
committed the murder while engaged in the commission of a


       All statutory references are to the Penal Code unless
         1

otherwise stated.
burglary, robbery, and rape with an instrument (§ 190.2, subd.
(a)(17)). The jury further found that in committing the murder
appellant used a deadly weapon, i.e., a hammer (12022, subd.
(b)(1)). The trial court sentenced him to life without the
possibility of parole (LWOP) plus one year. Appellant raises
claims of insufficient evidence and instructional error. He also
contends the court erred in ordering him to pay certain
assessments and fees without first determining his ability to pay
them, as contemplated in People v. Dueñas (2019) 30 Cal.App.5th
1157 (Dueñas). We affirm.
                     STATEMENT OF FACTS
                            Prosecution
       On the morning of July 24, 2015, Marilyn Pharis called 911
to report that she had been attacked while sleeping in her home
in Santa Maria. Pharis said she had been awakened by the
assailant, who repeatedly hit her with his fists and a hammer he
had taken from her garage. The man also choked her and pulled
down her pajama bottoms. Pharis said, “He was trying to get to
my ass. I think he came on the back of my pants.” She also
reported that she had bitten her assailant’s arm and pulled off
his rosary necklace during the attack.
       When the police arrived at Pharis’s residence, she was
holding a hammer and had swelling on her eye, mouth and face.
Her head was bleeding, her pajamas were bloody, and her face
appeared asymmetrical. There was also a wet spot on the back of
her pajamas. When she was being treated in the hospital
emergency room, she told a physician she “woke up to find a man
on top of her strangling her” and that “there were three distinct
episodes where she was strangled” and lost consciousness.




                                2
       Appellant was apprehended a few hours after the attack
outside a house about a mile away. At the time of his arrest he
was carrying a backpack that held a container of approximately
$200 worth of change, a knife, a glass pipe, a rosary necklace, and
other items that had been taken from Pharis’s residence. He also
had a human bite mark on his arm and red marks on the back of
his neck.
       When appellant was interviewed later that day, he first
claimed that another man he knew as Juan2 had committed the
crime and had coerced appellant to hit Pharis to knock her out.
Appellant later admitted that he acted alone. After smoking
methamphetamine, appellant and Juan used a stake to pry open
the locked door to Pharis’s garage. As appellant was at the
unlocked door leading from the garage to the house, Juan told
him to be quiet because someone was inside the house.
       Appellant told the police that Pharis, who was sleeping on
a mattress in the closet of her bedroom, woke up after Juan made
noise putting a container of change from Pharis’s bedroom into
his backpack. Juan told appellant to attack Pharis, so he
grabbed her by the neck and began choking her. He also
repeatedly hit her with a hammer he had taken from Pharis’s
garage and punched her with his fists. According to appellant, he
accidentally put two of his fingers in Pharis’s vagina when she
tried to stand up; he denied that he attempted to rape her.
Appellant attacked Pharis “[b]ecause she saw me and because
[Juan] told me he was going to get in trouble with his friends.



      2 Jose Villagomez was tried jointly with appellant for the
murder of Pharis. Before the prosecution had completed its case-
in-chief, Villagomez pleaded guilty to first degree murder.




                                3
And since I’m always by myself and then she saw me, and I didn’t
want problems with the police . . . .”
       After Pharis was examined in the hospital emergency room,
she was determined to be in critical condition due to severe, life-
threatening trauma. She had multiple fractures of the face, a
fractured hyoid bone, bruising across her thyroid cartilage area
as the result of severe strangulation, extensive swelling around
her eyes and under her jaw and neck, and one of her eyes was
swollen shut.
       Later that day, Pharis was examined by Dr. Thomas
Bosshardt, a trauma surgeon. Dr. Bosshardt’s main concern was
possible complications from internal bleeding. The possibility of
a deep vein thrombosis (DVT) was of particular concern. DVT’s,
which are blood clots that typically form in the lower extremities
of the body, do not form immediately and usually take several
days to develop. Preventative measures include ambulating the
patient when possible and the wearing of compression socks on
the lower extremities. Although physical therapy can also help
prevent a DVT, it was not a proper treatment for Pharis during
the acute phase of her trauma due to the risk of bleeding and
breathing problems. Dr. Bosshardt determined that Pharis could
not be given blood-thinning medication due to the risk of internal
bleeding from her injuries. If Pharis had not suffered trauma,
she would have had a very low risk of developing a DVT.
       Pharis was 64 years old at the time of the attack and had a
history of intermittent atrial fibrillation, i.e., an irregular
heartbeat. The day after the attack she was experiencing atrial
fibrillation, her heart rate was 180 to 190, and she complained of
significant chest pain. Pharis did not report any pain in her legs
and there was no other evidence of a DVT. Dr. Roman Winter,




                                4
who also treated Pharis while she was in the hospital, did not see
anything in Pharis’s chart to suggest she might have formed a
blood clot in either of her legs.
       On the afternoon of July 27th, Pharis’s oxygen requirement
had increased. She was also unable to walk and complained of
chest pain. Three or four days after the attack, she began
physical therapy but had difficulty walking 75 feet. Pharis,
however, did not complain of any pain in her legs and there was
no evidence of a DVT.
       Five days after the attack, Pharis’s condition was
improving and her heart rhythm was normal. Dr. Mark
Sandquist, who was treating Pharis at that time, planned to keep
her in the hospital for one more day to ensure that her heart
rhythm remained normal. Because Pharis was only able to walk
about 75 feet, Dr. Sandquist also wanted to determine if she
could improve her ability to walk and eliminate the need for
supplemental oxygen. During physical therapy, Pharis
complained for the first time about pain in her left leg. Dr.
Sandquist examined the leg and found no signs of swelling.
Pharis had “a negative Homans’ sign, which is a particular test to
see if there’s a clot evident.”
       The following night, a nurse noticed that Pharis’s left leg
appeared swollen. The nurse paged the emergency room doctor
who was on call that night but received no response. The next
morning, Dr. Sandquist was notified of the swelling. Because the
leg was so swollen and painful, the compression device on
Pharis’s leg had been removed. An ultrasound scan revealed a
blood clot in the leg and Pharis was given blood-thinning
medication. She subsequently became unconscious and was
transferred to the critical care unit. While she undergoing




                                5
additional treatment, the blood clot traveled to her lungs and she
suffered a fatal cardiac arrest.
       Dr. Manny Montez, who conducted the autopsy of Pharis,
testified that she died as a result of the blood clot that travelled
from her leg to her lungs. Dr. Montez explained that the clot
developed “because [Pharis] was in the hospital immobile during
the treatment of her assault, and she was at risk for developing a
leg blood clot, which she did, and [it] broke off. Since [Pharis
was] in the hospital for an assault, it is the assault that becomes
the cause of the pulmonary emboli.” The doctor opined that
Pharis would not have developed the blood clot had she not been
immobilized due to the attack. Doctors Sandquist, Winter,
Bosshardt, and Ourieff offered similar expert opinions.
       Dr. Montez also considered whether “from [Pharis’s]
admission until the time [she] die[d], [was] . . . a continuous
sequence unbroken by any other sufficient intervening cause.”
Although gross negligence by hospital staff would have broken
the causal chain, Dr. Montez “[didn’t] see anything in the medical
record[s] that falls under neglect or malpractice . . . .” When
presented with a hypothetical tracking the prior testimony of the
medical staff who participated in Pharis’s treatment, Dr. Montez
opined that there was an absence of medical malpractice. The
doctor also opined that the initial response to the swelling of
Pharis’s leg had “no bearing on her cause of death.”
                               Defense
       Dr. Enrique Lopez, a neuropsychologist, testified that
appellant had a mild neurocognitive disorder. Dr. Lopez opined
that as a result of this disorder, appellant had difficulty
understanding verbal communications and thus may have given




                                 6
inaccurate responses to the questions he was asked during his
police interview.
                           DISCUSSION
                                  I.
                   Sufficiency of the Evidence
      Appellant contends that his conviction of first degree
murder must be reversed because the evidence is insufficient to
prove (1) that the murder was willful, deliberated, and
premeditated; and (2) that his attack on Pharis proximately
caused her death. Neither contention has merit.
      In reviewing claims of insufficient evidence, we “must
review the whole record in the light most favorable to the
judgment to determine whether it contains substantial
evidence—i.e., evidence that is credible and of solid value—from
which a rational trier of fact could have found the defendant
guilty beyond a reasonable doubt.” (People v. Nguyen (2015) 61
Cal.4th 1015, 1054-1055, internal quotation marks omitted.) We
“presume in support of the judgment the existence of every fact
the jury could reasonably have deduced from the evidence.”
(People v. Zamudio (2008) 43 Cal.4th 327, 357.) “A reversal for
insufficient evidence ‘is unwarranted unless it appears “that
upon no hypothesis whatever is there sufficient substantial
evidence to support’” the jury’s verdict.” (Ibid.)
      As the People note, appellant’s claim that the evidence is
insufficient to support the finding that the murder was willful,
deliberate, and premeditated fails because all three of the jury’s
felony-murder special circumstance findings—none of which
appellant challenges—are each independently sufficient to
support his conviction of first degree murder. (See People v.
Sanchez (2001) 26 Cal.4th 834, 851 [“Ordinarily, if an alternative




                                7
theory of criminal liability is found unsupported by the evidence,
the judgment of conviction may rest on any legally sufficient
theory unaffected by the error, unless the record affirmatively
demonstrates that the jury relied on the unsupported ground”];
see also, e.g., People v. Payton (1992) 3 Cal.4th 1050, 1061-1062
[any error in instructing the jury on willful, deliberate, and
premeditated murder was harmless where the jury also found
true the special-circumstance allegation that the murder was
committed in the course of a rape or attempted rape].)
       In any event, the evidence, when viewed in the light most
favorable to the judgment, is sufficient to support the jury’s
finding that the murder was willful, deliberate, and
premeditated. Our Supreme Court has identified three
categories of evidence relevant to establishing premeditation and
deliberation. (People v. Anderson (1968) 70 Cal.2d 15, 26-27;
People v. Brooks (2017) 3 Cal.5th 1, 58-59; People v. Houston
(2012) 54 Cal.4th 1186, 1216.) The categories include events
occurring before the killing that indicate planning, motive to kill,
and manner of killing that reflects a preconceived design to kill.
(Anderson, at pp. 26-27.) The factors are neither exclusive nor
invariably determinative. (Brooks, at pp. 58-59; Houston, at
p. 1216.) Evidence of each category is not required to affirm a
judgment of first degree murder. (People v. Mejia (2012) 211
Cal.App.4th 586, 605.) The factors are merely a guide in
determining whether the evidence supports an inference that the
killing occurred as a result of preexisting reflection rather than a
rash impulse. (Brooks, at p. 59.)
       Appellant attacked Pharis while she was sleeping in her
bed. He climbed on top of her, repeatedly hit her with a hammer
and his fists, and sexually assaulted her. He then strangled her




                                 8
three times; each time she regained consciousness after passing
out, he strangled her again. Moreover, appellant admitted that
he hit and strangled Pharis “[b]ecause she saw [him]” and he
“didn’t want problems with the police . . . .” From this evidence,
the jury could reasonably find that appellant had the intent to
kill Pharis and that he acted with deliberation and
premeditation. (See, e.g., People v. Memro (1995) 11 Cal.4th 786,
863, overruled on other grounds in People v. Gaines (2009) 46
Cal.4th 172, 181, fn. 2 [sufficient evidence of deliberation and
premeditation where defendant tied victim’s hands with masking
tape and strangled him, and the jury “could also have determined
that [the victim] was killed to prevent him from later identifying
[appellant] as his captor and sexual exploiter, a motive requiring
calculation and reflection”]; see also, e.g., People v. Thomas (1992)
2 Cal.4th 489, 519 [“[t]he jury could conclude that defendant
deliberately and premeditatedly killed [one victim] because he
either had witnessed, or was about to witness [another victim’s]
murder”].)3
       The evidence is also sufficient to prove that appellant’s
attack on Pharis was the cause of her death. Appellant’s claim to


      3 Citing to People v. Collins (1961) 189 Cal.App.2d 575, 590,
appellant also contends “that the prosecution is bound by its
presentation of the defendant’s statement as to how the killing
occurred in the ‘absence of proof to the contrary.’” Suffice to state
that this doctrine does not apply where, as here, “‘there is . . .
other competent and substantial evidence which could establish
guilt.’ [Citation.] . . . [I]f there is any ‘“well established
circumstances’” that is ‘“incompatible”” with the defendant’s
exculpatory statement, then the jury may consider all the
evidence is determining whether to convict. [Citation.]” (People
v. Burney (2009) 47 Cal.4th 203, 248.)




                                  9
the contrary is based on the unsubstantiated premise that gross
medical negligence was the superseding cause of Pharis’s death.
       A homicide conviction requires proof that the defendant’s
conduct proximately caused the victim’s death. (People v. Butler
(2010) 187 Cal.App.4th 998, 1009 (Butler).) Proximate cause in a
criminal case is determined by ordinary principles of causation
and is a question of fact for the jury. (People v. Armitage (1987)
194 Cal.App.3d 405, 420; People v. Harris (1975) 52 Cal.App.3d
419, 427.) The cause of death includes any “‘act or omission that
sets in motion a chain of events that produces as a direct, natural
and probable consequence of the act or omission the [death] and
without which the [death] would not occur.’” (People v. Schmies
(1996) 44 Cal.App.4th 38, 48.) When there are concurrent causes
of death, the defendant is still criminally responsible if his or her
conduct was a substantial factor contributing to the result.
(Butler, at p. 1009.)
       When the victim’s death is the result of an independent
intervening act by a third party, that act may amount to a
superseding cause absolving the defendant of criminal liability
for a homicide. (See People v. Funes (1994) 23 Cal.App.4th 1506,
1523.) “However, in order to be ‘independent’ the intervening
cause must be ‘unforeseeable . . . [and] an extraordinary and
abnormal occurrence, which rises to the level of an exonerating,
superseding cause.’ [Citation.] On the other hand, a ‘dependent’
intervening cause will not relieve the defendant of criminal
liability.” (Ibid.) “‘If an intervening cause is a normal and
reasonably foreseeable result of defendant’s original act the
intervening act is “dependent” and not a superseding cause, and
will not relieve defendant of liability. . . . The precise
consequence need not have been foreseen; it is enough that the




                                 10
defendant should have foreseen the possibility of some harm of
the kind which might result from his act.” [Citation.]’
[Citation.]” (Ibid.)
       “If a person inflicts a dangerous wound on another, it is
ordinarily no defense that inadequate medical treatment
contributed to the victim’s death. [Citations.]” (People v. Roberts
(1992) 2 Cal.4th 271, 312.) “The defendant remains criminally
liable if either the possible consequence might reasonably have
been contemplated or the defendant should have foreseen the
possibility of harm of the kind that could result from his act.”
(People v. Crew (2003) 31 Cal.4th 822, 847.) “[W]hen medical
treatment is grossly improper, it may discharge liability for
homicide if the maltreatment is the sole cause of death and hence
an unforeseeable intervening cause. [Citation.]” (Roberts, at
p. 312, italics added.)
       The evidence in this case showed that Pharis was severely
beaten and repeatedly strangled by appellant in her own home.
After Pharis was transported to the hospital, she was determined
to be in critical condition as the result of the severe trauma
appellant had inflicted upon her. While she was being treated for
her injuries, she suffered a DVT that led to a fatal pulmonary
embolism. Dr. Montez, the forensic pathologist who conducted
the autopsy of Pharis and reviewed the medical records
associated with her injuries and treatment, opined that the
attack on Pharis was “the cause of the [fatal] pulmonary emboli.”
The doctor concluded that “[the time] from [Pharis’s] admission
until the time [she] die[d]” was a “continuous sequence unbroken
by any other sufficient intervening cause.” Dr. Montez also
testified that “[i]n my opinion, I don’t see anything in the medical
record that falls under neglect or malpractice or misadventure.”




                                11
The four doctors who treated Pharis similarly opined that Pharis
would not have suffered the fatal pulmonary embolism but for
the trauma she suffered as a result of appellant’s attack on her.
       Dr. Montez also opined, in response to a hypothetical
tracking the evidence presented in the case, that no medical
malpractice occurred. The doctor further opined that even if
there had been medical malpractice, it would not alter his
conclusion that the attack on Pharis was the medical cause of her
death. According to Dr. Montez, the nurse’s response to the
swelling on Pharis’s leg six days after the attack had “no bearing
on her cause of death.” The doctor then reiterated that “the
cause of death clearly dates back to the assault, but [the
pulmonary embolism] would be the mechanism in play.”
       Dr. Montez’s expert testimony provided substantial
evidence that Pharis’s death was caused by the violent acts
appellant committed against her. It is the jury’s sole province to
determine whether the doctor’s expert testimony was persuasive.
(See People v. Mercer (1999) 70 Cal.App.4th 463, 466-467.)
       Appellant makes no meaningful effort to challenge Dr.
Montez’s expert opinion. He offered no expert testimony that
Pharis’s death was caused by medical negligence, much less gross
medical negligence, or that such negligence was the sole cause of
her death. (See Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523
(Kelley) [expert testimony generally required to show that a
medical practitioner failed to meet the prevailing standard of
care, except in cases where the negligence is obvious to
laypeople].) His arguments also disregard the standard of
review, which requires us to view the evidence in the light most
favorable to the judgment. (People v. Zamudio, supra, 43 Cal.4th
at p. 357.) Under this standard of review, a conviction cannot




                               12
reversed “‘unless it appears “that upon no hypothesis whatever is
there sufficient substantial evidence to support’” the jury’s
verdict.” (Ibid.)
       In this case, the only expert testimony on the pertinent
issue demonstrated that appellant’s attack on Pharis was the
cause of her death. As the prosecutor persuasively argued to the
jury, “The only reason [Pharis] is not here today is because
[appellant] broke into her house while she was sleeping, went
right to her room, stole from her, beat her with weapons and
hands, strangled her and took her breath away causing her to go
unconscious three separate times, and sexually assaulted her
while she was unconscious, landing her in the hospital, which
caused the development of a D.V.T., which led to a pulmonary
embolism, killing her on August 1st, 2015. [Appellant] is not only
a substantial factor in her death, he is the reason she is not alive
today.” Appellant’s claim that the jury was effectively compelled
to find otherwise fails.
                                  II.
                        Instructional Error
       a. Burglary
       The trial court instructed the jury on burglary pursuant to
CALCRIM No. 1700.4 Over appellant’s objection, the court also


      4 The jury was instructed as follows: “Burglary is one of the
theories of First Degree Felony Murder and is a charged Felony
Murder Special Circumstance. [¶] To prove that the defendant is
guilty of this crime the People must prove that: [¶] 1. The
defendant entered a room within a building; [¶] AND [¶] 2.
When he entered a room within a building, he intended to
commit theft or sexual penetration with [a] foreign or unknown
object. [¶] To decide whether the defendant intended to commit




                                13
gave the following pinpoint instruction: “The intent required for
first degree burglary as defined in other instructions need not be
in the mind of the defendant at the time of the initial entry into
the structure, if he subsequently forms the intent and enters a
room within the structure and if the subsequently entered room
provides a separate and objectively reasonable expectation of
protection from intrusion relative to the larger structure.”
Appellant contends the court erred in giving this pinpoint
instruction. We are not persuaded.
       A trial court should grant a request for a pinpoint
instruction if it is supported by substantial evidence, it correctly
states the law, and it is not argumentative or confusing. (People
v. Wilkins (2013) 56 Cal.4th 333, 347.) “‘We determine whether a
jury instruction correctly states the law under the independent or
de novo standard of review.’ [Citation.] The pertinent inquiry is


theft or sexual penetration with [a] foreign or unknown object,
please refer to the separate instructions that I will give you on
that crime. [¶] A burglary was committed if the defendant
entered with the intent to commit theft or sexual penetration
with [a] foreign or unknown object. The defendant does not need
to have actually committed theft or sexual penetration with [a]
foreign or unknown object as long as he entered with the intent to
do so. The People do not have to prove that the defendant
actually committed theft or sexual penetration with [a] foreign or
unknown object. [¶] Under the law of burglary, a person enters
a building if some part of his body penetrates the area inside the
building’s outer boundary. [¶] The People allege that the
defendant intended to commit theft or sexual penetration with [a]
foreign or unknown object. You may not find the defendant
guilty of burglary unless you all agree that he intended to commit
one of those crimes at the time of the entry. You do not all have
to agree on which one of those crimes he intended.”




                                14
whether the instructions as a whole fully and fairly set forth the
applicable law. [Citation.] In making that determination, we
assume that jurors are intelligent persons capable of
understanding and correlating all jury instructions which are
given and, where reasonably possible, we interpret the
instructions to support the judgment. [Citation.]” (People v. Jo
(2017) 15 Cal.App.5th 1128, 1152.)
       Section 459 defines burglary in relevant part as
accomplished by “[e]very person who enters any house, room,
apartment, tenement, shop, warehouse, store, mill, barn, stable,
outhouse or other building, . . . with intent to commit grand or
petit larceny or any felony . . . .” (§ 459.) The requisite intent to
commit theft or any felony must be formed at the time of entry
into the statutorily specified structures. (People v. Holt (1997) 15
Cal.4th 619, 669.)
       In People v. Sparks (2002) 28 Cal.4th 71, our Supreme
Court held that a defendant, who entered the victim’s home upon
her invitation and who later raped the victim when she retreated
into a separate bedroom within the house, could be guilty of
burglary even though he lacked the intent to commit a felony
upon first entering the house. (Id. at pp. 74-75, 87.) The court
concluded that “treating the entry at issue here as an entry for
burglary is consistent with the personal security concerns of the
burglary statute, because entry, from inside a home, into a
bedroom of the home ‘raise[s] the level of risk that the burglar
will come into contact with the home’s occupants with the
resultant threat of violence and harm.’ [Citation.] . . .
Accordingly, consistent with California decisions construing
section 459 . . . , and consistent with the common law and the
history of section 459, we conclude that the unadorned word




                                 15
‘room’ in section 459 reasonably must be given its ordinary
meaning.” (Id. at p. 87.)
       Here, the burglary felony murder special-circumstance
allegation was premised on the theories that appellant entered
Pharis’s residence with the intent to commit a theft and a rape.
As in Sparks, the jury could reasonably find that appellant
formed his intent to rape Pharis after he entered her residence,
but before he entered her bedroom. This fact pattern is correctly
reflected in the pinpoint instruction. On the other hand, if
defendant formed the intent to commit a theft before he entered
the residence, this fact pattern would be supported by CALCRIM
No. 1700. Contrary to appellant’s claim, the pinpoint instruction
was not redundant, nor did it “water down” the requirement that
he had to form the requisite intent to commit a crime before he
entered Pharis’s bedroom. The instructions, as a whole, make
this clear.
       In any event, any error in giving the challenged pinpoint
instruction would not compel a reversal of appellant’s conviction.
“Giving an instruction that is correct as to the law but irrelevant
or inapplicable is error. [Citation.] Nonetheless, giving an
irrelevant or inapplicable instruction is generally ‘“only a
technical error which does not constitute ground for reversal.”’
[Citation.]” (People v. Cross (2008) 45 Cal.4th 58, 67.)
       In light of the evidence, any reasonable juror would have
found beyond a reasonable doubt that appellant entered Pharis’s
residence with the intent to commit a theft. Moreover, appellant
does not challenge the special circumstance findings that he
committed the murder in the course of a rape with an instrument
and a robbery. Any error in giving the challenged instruction
was thus harmless.




                                16
      b. Causation
      Without any objection from the defense, the jury was
instructed on the issue of causation pursuant to CALCRIM Nos.
2405 and 620.6 Appellant contends that the latter instruction was

      5 The jury was instructed: “An act causes death if the
death is the direct, natural, and probable consequence of the act
and the death would not have happened without the act. A
natural and probable consequence is one that a reasonable person
would know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider
all the circumstances established by the evidence. [¶] There may
be more than one cause of death. An act causes death, only if it is
a substantial factor in causing the death. A substantial factor is
more than a trivial or remote factor. However, it does not have to
be the only factor that causes the death.”

      6 The jury was instructed in accordance with CALCRIM No.
620 as follows: “There may be more than one cause of death. An
act causes death only if it is a substantial factor in causing the
death. A substantial factor is more than an trivial or remote
factor. However, it does not need to be the only factor that causes
the death. [¶] The failure of the doctors or medical staff to use
reasonable care in treating Marilyn Pharis may have contributed
to the death. But if the injury inflicted by the defendant was a
substantial factor causing the death, then the defendant is legally
responsible for the death even though the doctors or medical staff
may have failed to use reasonable care. On the other hand, if the
injury inflicted by the defendant was not a substantial factor
causing the death, but the death was caused by grossly improper
treatment by the doctors or medical staff, then the defendant is
not legally responsible for the death. [¶] Marilyn Pharis may
have suffered from an illness or physical condition that made her
more likely to die from the injury than the average person. The
fact that Marilyn Pharis may have been more physically




                                17
erroneously given because it “misdirected the jury from even
considering whether the gross medical malpractice was a
superseding cause relieving appellant of any culpability for the
death of Ms. Pharis. Indeed, this causation instruction effectively
directed the finding of causation against appellant.”
      This claim is forfeited. “‘A party may not complain on
appeal that an instruction correct in law and responsive to the
evidence was too general or incomplete unless the party has
requested appropriate clarifying or amplifying language.’
[Citation.]” (People v. Fiu (2008) 165 Cal.App.4th 360, 370 (Fiu).)
      In any event, the claim fails. “‘In considering a claim of
instructional error we must first ascertain what the relevant law
provides, and then determine what meaning the instruction given
conveys. The test is whether there is a reasonable likelihood that
the jury understood the instruction in a manner that violated the
defendant’s rights.’ [Citation.]” (Fiu, supra, at p. 370.)
      Contrary to appellant’s claim, the challenged instruction
did not misdirect the jury from considering whether Pharis’s
death was the result of gross medical negligence; indeed, the
instruction plainly stated that “if the injury inflicted by the
defendant was not a substantial factor causing the death, but the
death was caused by grossly improper treatment by the doctors
or medical staff, then the defendant is not legally responsible for

vulnerable is not a defense to murder. If the defendant’s act was
a substantial factor causing the death, then the defendant is
legally responsible for the death. This is true even if Marilyn
Pharis would have died in a short time as a result of other causes
or if another person of average health would not have died as a
result of the defendant’s actions. [¶] If you have a reasonable
doubt whether the defendant’s act caused the death, you must
find him not guilty.”




                                18
the death.” The instruction thus adequately conveyed the
concept of superseding causation. (See Fiu, supra, 165
Cal.App.4th at p. 372.)
       In any event, appellant offered no evidence that Pharis’s
death was caused by gross medical negligence, much less that
such negligence was the superseding cause of her death. (See
Fiu, supra, 165 Cal.App.4th at pp. 373-374 [trial court had no sua
sponte duty to instruct on superseding causation where no
evidence was offered to support the instruction].) “Further
‘[e]ven if [the hospital staff’s] actions could be described as an
independent intervening cause of [Pharis’s] death, they would
relieve [appellant] of criminal liability only if the jury found that
[appellant’s action] was not concurrent cause of [the] death.’
[Citation.] . . . ‘“Numerous cases have declared that if the
defendant’s conduct exposes persons in the class to which [the
victim] belongs to a foreseeable risk of injury, and his act or
omission contributes substantially to injury of that nature
actually occurring, he may be held liable notwithstanding the fact
that an unforeseeable independent intervening act is a
concurring cause.” [Citations.]’” (Id. at p. 375.) Moreover, it is
well-settled that “[a] delay in [medical] treatment is not in fact an
intervening force; it cannot in law amount to a supervening
cause.’ [Citation.]” (People v. Autry (1995) 37 Cal.App.4th 351,
361, italics omitted.) Accordingly, any error in failing to more
fully instruct the jury on the concept of superseding causation
was harmless. (Ibid; Fiu, at pp. 371-372.)7



      7In light of our conclusions, we also reject appellant’s claim
that the cumulative effect of the alleged instructional errors
compels a reversal of his conviction.




                                 19
                               Dueñas
       For the first time on appeal, appellant contends, in reliance
on Dueñas, supra, 30 Cal.App.5th 1157, that the trial court erred
by ordering him to pay a $30 criminal conviction assessment
(Gov. Code, § 70373), a $40 court operations assessment
(§ 1465.8, subd. (a)(1)), a $10,000 restitution fine (§ 1202.4), and
a stayed $10,000 parole revocation fine (§ 1202.45) without first
determining his ability to pay. In Dueñas, the court held that
imposing the criminal conviction and court operations
assessments without a hearing on the defendant's ability to pay
violates due process of law under both the federal and state
constitutions. (Dueñas, at p. 1168.) Neither statute expressly
prohibits the court from considering the defendant's ability to
pay. By contrast, section 1202.4, subdivisions (b)(1) and (c)
expressly prohibit the trial court from considering a defendant's
ability to pay a restitution fine unless the fine exceeds $300.
       If the court imposes a restitution fine above the $300
statutory minimum, it may consider the defendant's ability to
pay. (§ 1202.4, subd. (c).) Appellant was ordered to pay a $10,000
restitution fine, so he had the opportunity to bring to the court’s
attention any factors relevant to his ability to pay. (People v.
Avila (2009) 46 Cal.4th 680, 729.) He did not do so, so he
forfeited any challenges to the restitution fine. (Ibid.) Appellant
likewise did not object to the two assessments he now challenges.
We need not decide whether he forfeited his claims because under
the circumstances present here, where appellant did not object to
the $10,000 restitution fine, “he surely would not complain on
similar grounds regarding an additional” $70 in assessments.
(People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.)
Moreover, appellant is serving an LWOP sentence and will thus




                                20
be able to earn prison wages over a substantial period of time.
Accordingly, any error in ordering appellant to pay the
challenged assessments and fees is harmless. (People v. Johnson
(2019) 35 Cal.App.5th 134, 139-140.)
                         DISPOSITION
      The judgment is affirmed.
      NOT TO BE PUBLISHED.




                       PERREN, J.


We concur:



     GILBERT, P. J.



     TANGEMAN, J.




                              21
                     John McGregor, Judge
            Superior Court County of Santa Barbara
               ______________________________

      Thomas T. Ono, under appointment by the Court of Appeal,
for Defendant and Appellant.
      Xavier Becerra, Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Scott A. Taryle, Supervising
Deputy Attorney General, Michael Katz, Deputy Attorney
General, for Plaintiff and Respondent.
