Filed 8/26/20 P. v. Montanez CA2/5




           NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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


        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT DIVISION FIVE



        THE PEOPLE,                                                     B292730

                Plaintiff and Respondent,                               (Los Angeles County
                                                                        Super. Ct. No. BA439509)
                v.

        PAUL MONTANEZ,

                Defendant and Appellant.



             APPEAL from a judgment of the Superior Court of Los
        Angeles County, Curtis B. Rappe, Judge. Affirmed.
             Tracy A. Rogers, under appointment by the Court of
        Appeal, for Defendant and Appellant.
             Xavier Becerra, Attorney General, Lance E. Winters, Chief
        Assistant Attorney General, Susan Sullivan Pithey, Senior
        Assistant Attorney General, Joseph P. Lee and Jaime L. Fuster,
        Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant and appellant Paul Montanez (defendant) went
to the home of Norman Benavides (Benavides) with two
acquaintances, Miguel Marquez (Marquez) and Aaron Gallardo
(Gallardo)—ostensibly to buy marijuana from Benavides. That,
however, is not what happened. Montanez beat Benavides,
Gallardo shot him, the three confederates stole the marijuana,
and Benavides later died from his injuries. Defendant was
charged with premeditated murder and with burglary, and a jury
convicted defendant on both charges. In this appeal from the
judgment, the principal issue we are asked to decide is whether
the trial court should have suppressed a recorded post-Miranda1
stationhouse interaction between defendant and Yvonne Islas
(Islas), who is Marquez’s mother and was defendant’s girlfriend
at the time.

                       I. BACKGROUND
      A.The Offense Conduct
      At the time of the offense conduct, defendant (a member of
the Largo criminal street gang) was in a relationship with Islas.
Marquez, also known as “Lerks,” is Islas’s son and knew
defendant through her. Gallardo was a friend of Marquez’s (both
were members of the Kansas street gang). Marquez knew
Benavides because he bought marijuana from him in the past.
      On February 4, 2014, defendant asked Marquez to contact
Benavides and see if he would sell defendant marijuana.
Starting at around 7:42 a.m., Marquez exchanged a series of text
messages with Benavides, and Benavides agreed to sell
defendant a pound of marijuana.

1     Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).




                                2
       Defendant, Marquez, and Gallardo drove to Benavides’s
apartment and Marquez introduced defendant to Benavides. As
the ensuing events were later described by Marquez at
defendant’s criminal trial, Marquez walked to the bathroom and
heard Benavides ask defendant to help him with something.
Marquez saw Benavides and defendant go to the dining room
while Gallardo sat on a couch nearby. While inside the bathroom,
Marquez heard something that sounded like a scuffle. When he
came out of bathroom, he saw Gallardo standing and pointing a
gun into the dining room. Marquez asked Gallardo what was
going on, looked into the dining room, and saw defendant holding
Benavides in a chokehold. Both defendant and Benavides were
struggling.
       Benavides’s roommate, Jay Alvarado (Alvarado) was in his
room when the fighting started. He heard rumbling and banging
noises and exited his room. Alvarado saw one man standing by
the kitchen (Gallardo), another who had zip ties in his hand, and
Benavides on the floor getting hit by a third man (defendant) who
was on top of him. Gallardo had a gun in his hand, pointed it at
Alvarado, and asked Alvarado who he was. Marquez told
Alvarado to get back, and Alvarado ran back to his room and
shut and locked the door.
       Back inside his room, Alvarado continued to hear sounds of a
struggle and, ultimately, gunshots. When the noises stopped,
Alvarado left his room and found Benavides lying on the kitchen
floor and gasping for air. By that time, defendant, Marquez, and
Gallardo (holding a black bag) had fled in the same vehicle they
had taken to Benavides’s apartment. Alvarado called 911.
       At defendant’s direction, Marquez drove everyone to his
brother Roy’s house. When they arrived, defendant took the




                                 3
black bag that Gallardo had been carrying into Roy’s house and
all four men gathered outside. According to Marquez, defendant
told Roy it “went all bad.” Roy told the three men to get rid of
their clothes.
       Later that night, Marquez and Gallardo went to pick up
a pizza at Pizza Hut. Earlier, Marquez, Gallardo, and
defendant had put the clothes they were wearing during the
attack on Benavides in a bag, and Gallardo threw the bag in a
dumpster near the Pizza Hut.

      B.     Police Investigation, Including Defendant’s
             Confession and His Stationhouse Interaction with
             Islas
       Police and paramedics responded to Benavides’s apartment
shortly after the attack. Benavides was lying face up on the
kitchen floor, bleeding from his head. He was unresponsive and
having difficulty breathing. There were strangulation marks
around his neck, puncture wounds on his chest, a laceration on
the bridge of his nose, and gunshot wounds to his abdomen and
left leg. The paramedics transported Benavides to a hospital and
he underwent surgery. He initially recovered enough to be
discharged, but his injuries caused lasting damage and,
ultimately, his death.
       During an investigation of the crimes against Benavides,
the police found text messages on Benavides’s phone from
“Lerks,” which led them to Marquez and Gallardo. When the
police detained Marquez, he told them defendant had also been at
Benavides’s apartment. All three men—defendant, Marquez, and
Gallardo—were arrested.




                                4
       After defendant’s arrest, and without prompting, he told
Detective Ray Camuy that he (defendant) was not going to
answer any questions. Detective Camuy advised defendant of his
Miranda rights using a police department form. When Detective
Camuy finished, defendant again said he would not answer any
questions, wrote “refused” and “no comment” on the Miranda
form, and signed the form when asked to do so.
       Later that afternoon, however, Detective Camuy received a
phone call from his supervisor who told him defendant now
wanted to talk. The next morning, Detective Camuy went back to
the police station and met with defendant. Defendant told the
detective he wanted to “work something out” and make a deal.
Detective Camuy re-read defendant his Miranda rights before
proceeding, and defendant confirmed he understood he had a
right to remain silent and to have an attorney present during any
questioning.
       The immediately ensuing conversation between defendant
and Detective Camuy was not recorded.2 Defendant generally
described for the detective the type of information he could provide
about others engaged in narcotics trafficking. Detective Camuy
listened and responded he was not interested in the information.
Defendant then “switched gears” and said he was willing to testify
Gallardo was the one who shot Benavides in exchange for a five-
year sentence. Defendant told Detective Camuy that the plan was
to rob Benavides of the marijuana, not


2      Officer Camuy did not initially place defendant in an
interview room equipped for recording because defendant said he
was interested in providing information on drug dealers and the
police do not record conversations with prospective informants.




                                 5
to kill him. Defendant admitted he kicked Benavides during the
altercation (he claimed it was after Benavides had been shot) and
he also told the detective he picked up a broken knife handle off
the floor at Benavides’s apartment (to keep law enforcement
from finding it, he said). At that point, believing the conversation
was “getting hot,” Officer Camuy moved defendant to an
interview room with recording capabilities.
       Once in the new room, defendant’s willingness to continue
talking about the Benavides crimes changed and he became more
reticent. But he continued to make several incriminating
statements. Defendant told Detective Camuy that “what
happened, it wasn’t supposed to fucking happen” but he “made a
mistake and it’s a fucked-up mistake” and he was now “going to
live with the consequences.” Defendant asked the detective why
he had been charged with “an attempted murder when he
actually didn’t” (i.e., when he was not the shooter). The detective
responded, “You know how it goes man. If somebody goes in a
liquor store, three of you go in a liquor store—” and defendant
finished his sentence, “Yeah, all of us get charged with the same
shit.” There was also this exchange between defendant and the
detective:
            [Detective Camuy]: You know I could see, I
      could see how this shit went down, bro. I mean you of
      all people wouldn’t risk—unless you’re a . . . bad, bad
      criminal, you know what I mean, but I—were you
      just going to go there and shoot this dude or have this
      guy killed for five pounds of weed or whatever.
            [Defendant]:       Exactly.
            [Detective]:       You know what I mean?
            [Defendant]:       What the fuck?




                                 6
             [Detective]:      The shit went sideways
       quick.
             [Defendant]:      Come on, five pounds I can go
       fucking buy it from somebody else. What the fuck I
       need to steal that?”3
       Also during the recorded portion of the conversation,
Detective Camuy told defendant that Islas wanted to see him
and was on her way to the police station. The detective told
defendant Islas would “most likely” talk to her son Marquez first,
and defendant agreed that was what she should do. Detective
Camuy also warned defendant that any interaction between him
and Islas would be recorded, but defendant said he wanted to see
Islas regardless. As defendant put it, “That’s fine. You can
monitor all you want. I’m not going to say one single thing about
the case. I just want to make sure she’s alright.”
       Before speaking to defendant, Islas spoke with one or two
Montebello police officers. She also spent some time waiting in a
room with Gallardo’s mother, girlfriend, and child. The record
also indicates Islas spoke to Marquez by phone before she spoke
to defendant, but it is unclear whether Marquez and Islas met in
person before she spoke to defendant.
       When Islas was brought in to meet with defendant at the
police station, she was upset and emotional. She asked defendant
a series of questions, including what happened, why he was with
Marquez, if he knew how what he had done hurt her, and
(perhaps rhetorically) what he had been thinking. One of the


3    Just after this exchange, defendant told Detective
Camuy that “none of this shit is on record.” The detective
responded, “We’re just men talking, okay.”




                                7
responses defendant gave was expressly incriminatory: When
Islas asked, “Why did you take [Marquez] with you? Why would
you do things like that with [Marquez]?,” defendant responded,
“I went with him.” The rest of defendant’s responses to Islas’s
questions and statements, however, were at most implicitly
incriminatory; he repeatedly told Islas he couldn’t talk about “it”
or asked her to be quiet and “say nothing.”4 Some of Islas’s
questions and interjections were framed in terms of an
unspecified “they” who told her defendant was “washing [his]
hands on this . . . . [a]nd . . . trying to throw everything on
[Marquez]” or wanted to “give him [Marquez] life.” Defendant’s
only response was to ask Islas to name who she was referring to,
but she did not answer.
       After conversing with defendant, Islas spoke to Officer
Julio Calleros and answered questions regarding the
conversation. Officer Calleros wanted to know what defendant
had been whispering such that what was said was not audible on
the recording.

      C.    Pretrial Proceedings
      In an amended information, the Los Angeles County
District Attorney charged defendant (and Marquez and
Gallardo) with murder and first degree residential burglary.
Accompanying the murder charge were gang, use of a firearm,
and Three Strikes law allegations.



4      At various points in the conversation, defendant leaned
close to Islas and talked into her ear. Those portions of the
conversation were inaudible on the recording.




                                 8
       Before trial, defendant filed two motions to suppress his
conversation with Islas. One was styled a “Motion in Limine to
Exclude Defendant Montanez’s Taped Conversation with Ms.
Islas that Occurred While Montanez was in Custody After He
Had Invoked His Miranda Rights” and the other was styled a
“Motion in Limine to Suppress Defendant’s Statements to Police
and a Taped Conversation Between Montanez and a Police
Agent.” As relevant for our purposes, the motions argued Islas
had acted as a police agent, Islas had been allowed to
interrogate defendant after he invoked his Miranda rights, and
defendant’s statements to Islas were coerced and involuntary.
Islas, Officer Calleros, and two other officers testified in
connection with the motions.

              1.    Officer Calleros’s testimony
        Officer Calleros spoke to Islas once she arrived at the
police station and she said she wanted to talk to Marquez and
defendant. When asked if he told Islas that defendant had
invoked his right to remain silent, Officer Calleros said he “kept
[his] information to her very limited. [He] didn’t give her any
specifics about the case. It was—it was a visitation. She didn’t
need to know what position [defendant] had taken.” Officer
Calleros specifically denied telling Islas that defendant had
“washed his hands of this incident.” Officer Calleros also did not
ask Islas to obtain information from defendant on behalf of the
police department, nor did he tell her obtaining information
might benefit Marquez’s case. The visit between Islas and
defendant came about, as Officer Calleros explained it, because
“[s]he wanted to visit, he wanted to visit, so we allowed them to
visit.”




                                 9
      Officer Calleros also had a three-minute conversation with
Islas after she visited with defendant.5 Officer Calleros asked her
several questions about whether defendant told her how
everything happened, the role of his co-defendants, and what was
done with the marijuana.

              2.   Islas’s testimony
      After arriving at the police station at the request of the
police, Islas waited in a room with Gallardo’s mother, girlfriend,
and child. Islas was later called into a room with two detectives
(she could not recall their names) who asked her if she knew
what was happening. When she said no, they told her defendant
and Marquez were in custody because someone had been hurt,
but they did not tell her anything else about the case.
      Islas told the detectives she wanted to speak to defendant
and Marquez. She wanted to speak to defendant, in particular,
because she wanted to know what happened and to get an
explanation of how he had gotten into trouble with Marquez. The
detectives did not ask her to speak to defendant or Marquez, they
did not suggest she try to elicit any information from either of
them, they did not tell her Marquez was facing life in prison, and
they did not make any kind of agreement that would have helped
her or Marquez if she obtained information from defendant.



5     At a prior hearing, Officer Calleros was asked if, in
speaking to Islas, he intended to see if she developed any
information that could be used in the case. He answered no. He
was then asked if he intended to find out whether or not there
was any conversation about a gun, or any statement by defendant
about a gun. Officer Calleros responded that was “correct.”




                                10
             3.     The trial court’s ruling
       In addition to the testimony from Officer Calleros and Islas,
the trial court received and reviewed the transcript of the
recorded conversation between defendant and Detective Camuy
and a transcript of a prior hearing before a different judge (who
had determined Islas had not been an agent of the police). The
court denied the defense suppression motion, concluding there
was no violation of Miranda. The court found that “[t]here was
clearly a re-initiation of discussions by . . . defendant”; that there
had been no showing defendant’s statements were involuntary;
and that, while the police had taken advantage of “what [Islas]
did” by recording her interaction with defendant, the facts did not
indicate Islas was acting as an agent of the police.

       D.    Trial, Verdict, and Sentencing
       More than 30 witnesses testified at defendant’s trial.
Marquez testified against defendant as a witness for the
prosecution, and Detective Camuy testified and recounted the
incriminatory statements defendant made before the recorded
portion of their conversation. The prosecution also played for the
jury various video and audio recordings, including the recorded
portion of the conversation between Detective Camuy and
defendant as well as the recording of the interaction between
Islas and defendant (that the court admitted after denying the
motion to suppress).
       In addition, the prosecution presented forensic evidence to
show defendant had participated in the assault on Benavides—
chiefly in the form of criminalist testimony regarding the bag of
clothes Gallardo dumped near the Pizza Hut. The jury learned




                                 11
blood had been found on boots defendant was wearing,
defendant’s DNA and Benavides’s blood was found on a white
sock, and blood from both defendant and Benavides was found
on a tan shirt defendant was wearing on the day of the shooting.
Three witnesses testified during a short defense case, including
an expert who opined that if the blood was still wet on some of
the items found in the bag thrown in the Pizza Hut dumpster,
there could have been secondary transfer of some of the DNA
material.
       The jury was instructed on various theories of murder,
including felony murder and murder on a natural and probable
consequences theory. The jury convicted defendant of first degree
murder, with special circumstance true findings, and burglary.6
The trial court sentenced defendant to life without the possibility
of parole on the murder count and ordered the burglary
conviction sentence stayed pursuant to Penal Code section 654.7
The court ordered defendant to pay a $300 restitution fine, a $40
court operations assessment on each count of conviction, and a
$30 court facilities assessment on each count.

                       II. DISCUSSION
      All three arguments defendant advances to avoid
affirmance of the judgment are unpersuasive. Defendant argues


6     The jury found not true the allegation that the murder
was committed for the benefit of, at the direction of, or in
association with a criminal street gang with the specific intent to
promote, further, or assist in criminal conduct by gang members.
7    Undesignated statutory references that follow are to the
Penal Code.




                                12
the recorded stationhouse interaction with Islas should not have
been received in evidence at trial because Islas was an agent of
the police who interrogated defendant after he invoked his right
to remain silent. It is undisputed, however, that defendant
reinitiated contact with Detective Camuy after his earlier
invocation, and it is also undisputed that defendant asked to
meet with Islas even after being warned the police would monitor
their interaction. We believe these circumstances establish an
implied waiver of the right to remain silent that continued
throughout at least part of the Islas interaction, and regardless,
we are confident the Islas recording did not contribute to the
verdict obtained in light of the strong evidence against
defendant—including other damaging recorded statements he
made that he did not seek to suppress. Defendant contends he
should be eligible for Senate Bill 1437 relief without following
the retroactive relief provision enacted as part of that legislation,
but we adhere to our holding in People v. Martinez (2019) 31
Cal.App.5th 719 (Martinez) and agree with later decisions that
followed Martinez: defendant can seek to avail himself of the
ameliorative benefits of Senate Bill 1437 only by filing a section
1170.95 petition in the trial court. Defendant finally argues
People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) requires
reversal of his monetary fine and assessments because the trial
court did not consider his ability to pay, but we hold the absence
of any consideration of an ability to pay the minimal financial
obligations is harmless in light of the life without parole sentence
imposed and defendant’s ability to earn wages in prison.




                                 13
      A.      The Trial Court’s Suppression Ruling Provides No
              Grounds for Reversal
       Defendant contends Islas was an agent of the police, the
statements he made in his recorded conversation with her were
the product of an improper police interrogation conducted after
he invoked his Miranda rights, and the admission of the
statements was therefore error. His opening brief, however,
never acknowledges he expressed a desire to talk with the police
after first invoking his right to remain silent, nor does it reveal
Detective Camuy re-advised defendant he had a right to remain
silent and to consult with an attorney before restarting the
conversation as defendant had requested.
       An invocation of the right to remain silent is not an
irreversible action. Rather, well-settled law allows a defendant
who previously invoked his or her Fifth Amendment rights to
rescind that invocation and restart discussions with the
authorities. Importantly, however, for statements made by a
defendant in such a scenario to be admissible at trial, the record
must show that any further communications occurred at the
behest of the defendant—not the police—and that the
defendant waived the previously invoked right to remain silent.
(People v. Jackson (2016) 1 Cal.5th 269, 336-341.)
       That is what we have here, largely on undisputed facts.
Defendant first refused to speak with Detective Camuy but later
reestablished contact by telling the detective’s supervisor (or
some other officer who conveyed the information to the detective’s
supervisor) that he wanted to talk to Detective Camuy. When the
two were again face to face, Detective Camuy re-read defendant
his Miranda rights off a department-issued card (i.e., he again
advised defendant had a right to remain silent) and




                                14
defendant confirmed he understood his rights. This occurred
before defendant discussed his desire to “work something out”
either as an informant for the police or as a witness against
Gallardo in exchange for a five-year sentence, and defendant’s
willingness to discuss both topics operates as an implied waiver
of his right against self-incrimination. (People v. Cruz (2008) 44
Cal.4th 636, 667 [“A suspect’s expressed willingness to answer
questions after acknowledging an understanding of his or her
Miranda rights has itself been held sufficient to constitute an
implied waiver of such rights”].)
       Defendant never expressed a desire to cease talking after
discussions with Detective Camuy resumed. As it pertains to
Islas specifically, defendant could have declined to meet with
her at all, yet he twice told Detective Camuy he wanted to see
Islas even after the detective warned him the meeting would be
monitored by the police. To be sure, defendant did tell Detective
Camuy that he was not going to talk about the case when he met
with Islas, and we acknowledge this presents a closer question
of whether there was a selective invocation of his right to remain
silent. (See generally People v. Flores (2020) 9 Cal.5th 371, 425-
426.) But even if there was a selective invocation, that still does
not warrant reversal.
       There is no question that defendant’s incriminating
statements to Detective Camuy were properly admitted against
defendant at trial. Treating defendant’s refusal to answer some of
Islas’s questions as selective invocations of Fifth Amendment
rights (we assume, just for argument’s sake, that Islas was
acting as an agent of the police), defendant did not selectively
invoke his right to remain silent when Islas asked why he “took
[Marquez] with him” and why he would “do things like that” with




                                15
Marquez—instead, defendant admitted he was “with him [i.e.,
Marquez],” which means at least that admission, made
voluntarily, was properly used against him at trial.8 (See Flores,
supra, 9 Cal.5th at 426 [“Defendant clearly knew how to exercise
his right to remain silent selectively but chose to speak about
the Jaimes murder”]; see also People v. DePriest (2007) 42
Cal.4th 1, 34 [involuntariness is shown when a defendant’s free
will was overborne].) As for the prosecution’s use at trial of other
aspects of the monitored recording as evidence of adoptive-type
admissions by defendant,9 we are confident beyond a reasonable
doubt that they did not contribute to the verdict obtained even
treating them as selective invocations of the right to remain
silent. (Chapman v. California (1967) 386 U.S. 18, 24.) The jury
heard evidence of defendant’s unrecorded incriminating
admissions to Detective Camuy, those admissions were
corroborated and amplified by defendant’s incriminating
admissions to the detective that were recorded,10 Marquez
provided damaging insider testimony against defendant, and
there was strong forensic evidence linking him to the crime. The


8    During closing argument, the prosecutor argued
defendant’s “statements to . . . Islas . . . show [ ] he was there.”
9      The prosecutor argued during closing: “Why can’t
[defendant] speak openly and freely [to Islas] if he’s so innocent?
[¶] Is that what innocent people do, try to continue to lie, try
continue covering up the crime? [¶] Why can’t he speak openly?
Why can’t he speak freely?”
10   Defendant, for instance, said that what happened “wasn’t
supposed to fucking happen” and he “made a mistake,” which
meant he was now “going to live with the consequences.”




                                  16
evidence of defendant’s reticence when speaking to
Islas, mentioned only briefly by the prosecutor in
closing, was comparatively unimportant.

      B.       Defendant Is Not Entitled to Reversal Under Senate
               Bill 1437
       The jury returned its guilty verdicts in May 2018.
Defendant was sentenced on September 14, 2018. Later that
month, the Governor signed Senate Bill 1437, which became
effective on January 1, 2019. “Senate Bill 1437 was enacted to
‘amend the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless
indifference to human life.’ (Stats. 2018, ch. 1015, § 1, subd. (f).)
Substantively, Senate Bill 1437 accomplishes this by amending
section 188, which defines malice, and section 189, which defines
the degrees of murder, and as now amended, addresses felony
murder liability. Senate Bill 1437 also adds . . . section 1170.95
[to the Penal Code], which allows those ‘convicted of felony
murder or murder under a natural and probable consequences
theory . . . [to] file a petition with the court that sentenced the
petitioner to have the petitioner’s murder conviction vacated and
to be resentenced on any remaining counts . . . .’ (§ 1170.95,
subd. (a).)” (Martinez, supra, 31 Cal.App.5th at 723.)
      In Martinez, we considered whether a defendant whose
conviction was not yet final when Senate Bill 1437 took effect
can seek retroactive relief on direct appeal, or if such a defendant
is required to proceed by way of a petition pursuant to section




                                 17
1170.95. (Martinez, supra, 31 Cal.App.5th at 724-730.) Relying
on our Supreme Court’s recent decisions in People v. Conley
(2016) 63 Cal.4th 646 (Conley) (addressing the retroactivity of the
Three Strikes Reform Act of 2012) and People v. DeHoyos (2018)
4 Cal.5th 594, 600 (addressing the retroactivity of Proposition
47), we held the Legislature did not intend Senate Bill 1437 to
apply retroactively to nonfinal convictions on direct appeal
outside the petitioning procedure provided by section 1170.95.
(Martinez, supra, 31 Cal.App.5th at 727.)
       Defendant acknowledges the Martinez opinion, plus a bevy
of cases that follow Martinez and reject variants of the argument
for retroactive Senate Bill 1437 relief on direct appeal (see, e.g.,
People v. Anthony (2019) 32 Cal.App.5th 1102; People v. Lopez
(2019) 38 Cal.App.5th 1087; People v. Munoz (2019) 39
Cal.App.5th 738), foreclose the arguments he advances. He
argues, however, that these opinions are wrongly decided.11 We
remain convinced the Martinez line of cases are soundly
reasoned, and we reject defendant’s arguments to the contrary for
the reasons given in those cases. If defendant is to pursue relief
from changes in law worked by Senate Bill 1437, he must do so
via a section 1170.95 petition, not through this appeal—or his
request, which finds no support in precedent (and defendant cites


11    Defendant chiefly relies on two cases decided in the 1970s
and 1980s: People v. Babylon (1985) 39 Cal.3d 719 and People v.
Rossi (1976) 18 Cal.3d 295. Both cases involved substantive
changes to the elements of the crime for which the defendant
was convicted, but neither involved a new or amended law that
“modif[ied], limit[ed], or entirely forb[ade] the retroactive
application of ameliorative criminal law amendments.” (Conley,
supra, 63 Cal.4th at 656.) They are thus inapposite here.




                                18
none), for a remand to the trial court without reversal of
the judgment to allow him to file a new trial motion.

      C.     No Change in the Fine and Assessments Imposed by
             the Trial Court Is Warranted
       Relying on Dueñas, supra, 30 Cal.App.5th 1157, defendant
argues imposition of the court operations assessment, conviction
assessment, crime prevention fee, and restitution fine were
unconstitutional because the trial court did not consider his
ability to pay the financial obligations. Our Supreme Court has
granted review to decide whether, as Dueñas holds, a court must
consider a defendant’s ability to pay before imposing or
executing fines, fees, and assessments. (People v. Kopp (2019) 38
Cal.App.5th 47, review granted Nov. 13, 2019, S257844.) Even if
the Supreme Court concludes consideration of ability to pay is
required, that would not warrant reversal for Dueñas reasons
here. Any error by the trial court in failing to consider, sua
sponte, defendant’s ability to pay the fine and assessments about
which he complains is harmless in light of the long custodial
sentence imposed. (People v. Johnson (2019) 35 Cal.App.5th 134,
139-140; People v. Jones (2019) 36 Cal.App.5th 1028, 1035.)




                                19
                        DISPOSITION
     The judgment is affirmed.

   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                   BAKER, Acting P. J.

We concur:




     MOOR, J.




     KIM, J.




                           20
