Opinion
B285290
02-18-2020
THE PEOPLE, Plaintiff and Respondent, v. CLAYTON RUBEN ADDLEMAN, Defendant and Appellant.
Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, William H. Shin and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. KA111467) APPEAL from a judgment of the Superior Court of Los Angeles County, Robert M. Martinez, Judge. Affirmed and remanded with directions. Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, William H. Shin and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Within a 48-hour timeframe, appellant Clayton Ruben Addleman stole property from Jasmine Ariana Arce's car, fired three gunshots at Daniel Cano, attempted to use a checkbook stolen from Luis Torga's car to cash fraudulent checks, stole property from Susan Chung's car, entered Chung's home with a gun in his pocket, commanded Chung to remain still, and -- after Chung fled -- stole property from inside Chung's home. The state charged appellant with Cano's premeditated and deliberate attempted murder, Chung's robbery, and other offenses, including thefts from Arce and Torga. Appellant did not object to the joinder of the charges. At trial, appellant defended himself against only the attempted murder and robbery charges, claiming that he fired near Cano -- but not at him -- only to defend himself against a perceived pursuer, and that he neither said nor did anything threatening when he encountered Chung in her home. Appellant claimed to be a longtime drug addict and to have been under the influence of methamphetamine, heroin, and anxiety medication at the time of the offenses. A jury convicted appellant on all counts and found, inter alia, that he intentionally discharged a firearm during the commission of Cano's attempted murder, which it found to be premeditated and deliberate.
The trial court sentenced appellant to a life prison term on the premeditated and deliberate attempted murder conviction, and imposed consecutive terms totaling 26 years -- including a 20-year firearm enhancement. The court also imposed a restitution fine, assessments, and direct victim restitution. After appellant appealed the judgment, two relevant statutes went into effect: (1) Penal Code section 1001.36, which gave the trial court discretion to postpone the prosecution of qualifying defendants to allow them to participate in a mental health diversion program; and (2) Penal Code section 12022.53, subdivision (h), which gave the trial court discretion to strike firearm enhancements.
On appeal, appellant contends: (1) there was insufficient evidence of intent to kill, premeditation, and deliberation to sustain his conviction for premeditated and deliberate attempted murder; (2) there was insufficient evidence that appellant used force or fear to take property from Chung's immediate presence to sustain appellant's robbery conviction; (3) the trial court prejudicially erred in failing to sever the charges against appellant into three separate trials, or his counsel was ineffective for failing to move for severance; (4) appellant's sentence is unconstitutionally cruel or unusual; (5) the matter should be remanded to give the trial court an opportunity to consider appellant's eligibility for mental health diversion under Penal Code section 1001.36; (6) the matter should be remanded for a hearing on appellant's ability to pay the fines, assessments, and victim restitution imposed by the trial court; and (7) the matter should be remanded to give the trial court an opportunity to exercise its new discretion under Penal Code section 12022.53, subdivision (h), to strike the firearm enhancement. Respondent agrees the matter should be remanded for a hearing on striking the firearm enhancement, but disagrees with appellant's other contentions.
Finding no error, we affirm. We remand the matter with directions to the trial court to decide, at a hearing at which appellant has the right to be present with counsel, whether it will exercise its discretion to strike the firearm enhancement.
STATEMENT OF THE CASE
The state charged appellant with: (1) misdemeanor petty theft of property belonging to Arce (Pen. Code, §§ 484, 490.2, subd. (a)); (2) Cano's attempted murder, which the state alleged was premeditated and deliberate (id., §§ 187, 664, subd. (a)); (3) assault on Cano with a firearm (id., § 245, subd. (a)(2)); (4) possession of a firearm by a felon (id., § 29800, subd. (a)(1)); (5) possession of ammunition by a person prohibited by law from possessing a firearm (id., § 30305, subd. (a)(1)); (6) "identity theft," meaning willful acquisition and unlawful use of personal identifying information (id., § 530.5, subd. (a)); (7) Felony forgery (id., §§ 473, subd. (a), 475); (8) Chung's robbery (id., § 211); (9) three counts of burglary of Chung's home (id., § 459); (10) grand theft of Chung's car (id., § 478, subd. (d)(1)); and (11) grand theft of other property belonging to Chung (id., § 487, subd. (a)). The state alleged, inter alia, that appellant personally used a firearm in the commission of Cano's attempted murder and Chung's robbery (id., § 12022.53, subd. (b)), and that he intentionally discharged a firearm in the commission of Cano's attempted murder (id., § 12022.53, subd. (c)).
The jury convicted appellant on all counts and found, inter alia, that: (1) Cano's attempted murder was premeditated and deliberate; (2) appellant intentionally discharged a firearm during the commission of Cano's attempted murder; and (3) the prosecution failed to prove appellant personally used a firearm during the commission of Chung's robbery.
The court sentenced appellant to a life prison term on the premeditated and deliberate attempted murder conviction, and imposed consecutive 20-year, four-year, one-year, and one-year prison terms on the firearm enhancement, robbery conviction, auto theft conviction, and identity theft conviction, respectively (in addition to other, stayed prison terms and a six-month jail term on the misdemeanor petty theft conviction). The court imposed a $300 restitution fine, a total of $440 in court security fees, and a total of $330 in criminal conviction assessments. The court ordered appellant to pay victim restitution in an amount to be determined.
Appellant timely appealed.
PROCEEDINGS BELOW
A. Prosecution Case
1. December 27 Theft and Attempted Murder
Jasmine Ariana Arce testified that around 7:30 p.m. on December 27, 2015, while in her home in Glendora, she heard an alarm sound from her car parked on the street. She went outside and saw someone -- later identified as appellant, by his own admission -- sitting in the back seat of her car. She ran back inside and told her brother to call 911, which he did. She later discovered property had been taken from her car, some of which was eventually recovered from appellant's white Kia Forte by the Glendora Police Department.
Daniel Cano testified that on the evening of December 27, 2015, he visited a grocery store in Glendora. The grocery store was located across the street from Arce's home. After he parked, a white car stopped in front of his truck. The driver of the white car -- later identified as appellant, by his own admission -- asked Cano, "'Is that you?'" Without responding, Cano started gathering his belongings. Appellant drove away, but made a U-turn and returned toward Cano as Cano began exiting his truck. Cano heard two or three gunshots and saw a flash. He ducked and ran behind his truck. Appellant continued past Cano's truck and exited the parking lot. One of the headlights of Cano's truck was damaged, and its windshield was "all shot up."
On cross-examination, Cano testified that appellant looked like he "could" have been high on something because his eyes were wide open and very alert. In the jury's presence, appellant's counsel read a portion of the transcript of the preliminary hearing, in which Cano testified that he told the police he believed appellant was "probably high" because his eyes were wide open.
A police officer who responded to the scene observed a bullet hole in one of the truck's headlights and a mark in its windshield that appeared to have been made by a bullet that ricocheted off it. He found a bullet under the headlight, a second bullet about 15 feet away, and three shell casings nearby.
2. December 28 Identity Theft and Check Forgery
Luis Torga testified that on the morning of December 28, 2015, he awoke at his home in Baldwin Park, to find that several items had been taken from the trunk of his car. The missing items included a checkbook he used for his business. The next day, he was informed that the Glendora Police Department had recovered from appellant's car three checks from the missing checkbook (which were admitted into evidence). Two of the checks were payable to appellant, who was a stranger to Torga, and the third was payable to "[appellant's] crew."
3. December 29 Robbery
Susan Chung testified that on December 29, 2015, at approximately 6:45 a.m., she awoke in her home in San Marino, which she shared with her husband and two teenaged children. She and her husband were sleeping upstairs and their children were sleeping downstairs. She exited her bedroom, planning to get some water from the kitchen downstairs, and saw a masked man -- later identified as appellant, by his own admission -- standing at the front door. Appellant was "pointing his hand up like a gun" in her direction. Appellant told her, "'Don't move. Stay where you're at.'" Chung immediately ran back into her bedroom, hid in the closet, and called 911, hoping the police would "rescue" her family. On cross-examination, Chung testified that she had believed appellant was pointing a gun at her and had reported as much on her 911 call. She further testified that appellant's words to her had been "very alarming."
Surveillance video from inside and outside Chung's home was played for the jury. The video showed, inter alia, that appellant entered Chung's home around 6:45 a.m. and held his right hand up while sticking a finger in the air. Appellant took a shiny object -- later identified as a gun, by appellant's admission -- out of his pocket. Appellant approached a statue and took something from it before promptly exiting. Outside, appellant unsuccessfully attempted to leave in Chung's car, but failed to maneuver past a car parked behind it.
Chung discovered that a lockbox had been taken from beside her front door and several items had been taken from her car. Some of the missing property was eventually recovered from appellant's car by the police.
4. December 29 Arrest and Ensuing Investigation
Glendora Police Department Officer Timothy Crawford testified that he received a description of the shooter from Cano and -- based on that description, prior familiarity with appellant, and knowledge that appellant lived near the scene of the shooting -- thought the shooter might have been appellant. On December 29, 2015, he arrested appellant (whom he had located via cell phone pings obtained with a search warrant). He prepared a photographic "six-pack" with a photograph of appellant and showed it to Cano, who identified appellant as the shooter.
On cross-examination, Officer Crawford confirmed that Cano had failed to identify appellant as the shooter in an earlier photographic six-pack. On redirect, he testified that the first six-pack had used a months-old photograph of appellant, whereas the second used a photograph taken on the day of appellant's arrest (i.e., within 48 hours of the shooting).
Police officers searched appellant's car and found a gun and a box of ammunition. Appellant's DNA was found on both. A criminalist testified that "a microscopic comparison" revealed that ammunition recovered from the scene of the shooting had been fired from the gun found in appellant's car.
The clothing appellant was wearing when arrested matched the clothing of the man shown on Chung's surveillance video. The police found more matching clothing in appellant's car. As noted, they also found in appellant's car property belonging to Arce, Torga, and Chung.
B. Defense Case
1. Admissions to Theft Offenses and Prior Convictions
Appellant was the sole defense witness. He admitted stealing property from Arce's, Torga's, and Chung's cars; attempting to steal Chung's car itself; writing the checks from Torga's business to himself and his "crew"; and attempting to cash the checks. Appellant further admitted he had been convicted of three prior felonies, viz., possession of Xanax with intent to sell, possession of marijuana with intent to sell, and possession of a firearm as a felon.
Appellant claimed to have been under the influence of drugs at the time he committed the theft offenses. He testified that he had been using illegal drugs for 11 years, starting when he was 15 years old. At the time of his arrest he was using methamphetamine, heroin, and Xanax on a daily basis, and supporting himself financially by selling drugs and stolen property. He had started taking Xanax for "an anxiety problem" five or six years earlier. He had a prescription for Xanax, but it was for a lower dosage than he was taking. On cross-examination, appellant admitted that the day before he stole from Arce (on December 26, 2015), he sent text messages advertising Xanax for sale. He explained he sold some of his Xanax to buy other drugs he was taking.
2. Denial of Attempted Murder and Robbery Charges
Appellant testified that as he exited Arce's car, a man approached, threatening to kill him if he did not get out. Appellant ran to his own car and drove away, pursued by the man (in a separate car). Appellant drove to the grocery store parking lot across the street, where his pursuer stopped in a separate aisle. As appellant continued driving, he heard "banging and hitting" on the exterior of his car, which he initially believed to be gunshots. He looked for his pursuer and saw him standing in the middle of an aisle, cursing at him and telling him to get out of the car. He drove to the end of the aisle, but as there was no exit there, made a U-turn and drove back to reach the exit. When passing his pursuer, he asked him, "'Was that you[?]'" His pursuer replied, "'Yes.'"
Appellant responded by thrusting a gun out of his driver-side window and firing it three times. He denied aiming the gun, claiming to have fired "randomly" instead. He claimed to have fired because he thought the man had been shooting at him and he intended "either to scare him off and to get him to stop chasing me or just to -- just to end the whole thing . . . ." After firing, appellant drove away.
Appellant denied pointing a gun at Chung, although he admitted bringing a gun into her home. He denied pointing his hand at her or saying anything to her. He claimed that before Chung ran into her bedroom, she yelled that she was going to call the police and he turned to exit. He admitted, however, that he turned back into her home to take a necklace off a statue and a box by the door.
On cross-examination, appellant testified that Cano was not his pursuer, but he believed Cano was standing next to his pursuer when he fired. He admitted that shortly after the shooting, he called 911 and falsely claimed his car had been stolen. A recording of his 911 call was played for the jury. On the call, before abruptly hanging up, he told the dispatcher he believed the thief had used his car to do "something" that caused the police to look for it.
C. Prosecution Rebuttal Evidence
The Arcadia Police Department dispatcher who took appellant's call testified that she tried to call appellant back, but he neither answered nor returned her call.
Officer Crawford, re-called as a rebuttal witness, testified that he took recorded interviews of appellant on the day of appellant's arrest, which were played for the jury. Appellant initially claimed a thief had taken his car and committed the shooting, and urged Officer Crawford to contact the Arcadia Police Department about appellant's 911 call for corroboration. After continued questioning, appellant admitted he had been present for the shooting, but claimed the shooter was a stranger whom he had given a ride. He claimed that someone followed his car into the grocery store parking lot, and that he heard a loud banging consistent with gunshots or the impact of thrown objects. He further claimed there were big dents in his car.
Officer Crawford testified that he examined appellant's car and observed no damage consistent with gunshots or thrown rocks.
Andrew Perez, an employee of the grocery store where the shooting took place, testified that he was taking a break in the parking lot around the time of the shooting. From within his car, he heard three loud "pops" or "bangs." He saw a white car but did not see any man threatening or challenging anyone.
D. Jury Instructions and Closing Arguments
The trial court instructed the jury on the elements of the charged offenses, including premeditated and deliberate attempted murder and robbery (CALCRIM Nos. 600, 601, and 1600). It instructed the jury on the defense theories of complete and "imperfect" self-defense (CALCRIM Nos. 604, 3470, 3472, and 3474) and of voluntary intoxication negating specific intent (CALCRIM No. 3426). It instructed the jury, per CALCRIM No. 3515, "You must consider each count separately and return a separate verdict for each one."
The prosecutor argued appellant intended to kill Cano, relying on the evidence that appellant fired three gunshots, striking Cano's windshield and headlight. She argued appellant formed his intent to kill through premeditation and deliberation, reminding the jury that appellant spoke to Cano, drove away, then returned, rather than exiting the parking lot. She argued, "Every moment that he originally left Mr. Cano is a moment that he has to think about what he's doing, to pull out his gun, to make a decision to rack the gun, to pull it out the window, and to point it at Mr. Cano, and to shoot three times. That is done willfully, with premeditation, and deliberation." She argued neither complete nor imperfect self-defense applied because neither Cano nor Perez, who were more credible than appellant, supported appellant's account of the shooting. With respect to Chung's robbery, the prosecutor argued the elements were satisfied by Chung's testimony that appellant commanded her to stay where she was, the 911 call she made in fear for herself and her family, and the surveillance video that showed appellant removed a gun from his pocket.
Appellant's counsel argued appellant was intoxicated at the time of each offense, relying on, inter alia, (1) Cano's testimony that appellant looked like he was high; (2) appellant's misguided intent to cash a check made out to his "crew"; (3) appellant's misguided attempt to reverse Chung's car past the car behind it; (4) appellant's testimony that he stole his victims' possessions to obtain money for drugs; and (5) appellant's possession of Xanax. With respect to the attempted murder charge, appellant's counsel argued appellant intended only to fire warning shots to defend himself from Cano, whom he mistook for a pursuer who had thrown rocks at his car. He acknowledged the jury reasonably could find the shooting "a little excessive" as a response to rock-throwing, but argued the shooting was nevertheless consistent with imperfect self-defense. With respect to the robbery charge, appellant's counsel argued appellant used no force or fear and therefore was guilty only of burglary. He acknowledged that waking up to discover a stranger in one's home is a "shocking" experience and "one of the worst things that can happen to you . . . ." But he urged the jury to believe appellant's testimony that he said nothing to Chung, and argued appellant never used the gun he admittedly brought into Chung's home.
E. Verdicts and Sentencing
The jury convicted appellant on all counts and found, inter alia, that: (1) Cano's attempted murder was premeditated and deliberate; (2) appellant intentionally discharged a firearm during the commission of Cano's attempted murder; and (3) the prosecution failed to prove appellant personally used a firearm during the commission of Chung's robbery.
Before the court imposed sentence, appellant apologized to the victims of his offenses (who were not present). He also apologized to his family for neglecting the support they offered him when he was living on the streets. He stated he had been taking advantage of school, church, and related rehabilitation opportunities while incarcerated, and that he felt accepting responsibility and seeking forgiveness was "the next step in [his] transformation . . . ."
The trial court addressed appellant, stating that its job became extremely challenging when it saw "young people who, from all appearances, have potential; who come from intact families; who have support; and then for some reason go crazy." It continued, "You created a . . . big giant mess for yourself. You were on probation. You violated probation and picked up another felony involving a gun. . . . And the question I have is, what the hell do I do, you know, take a chance that your time in custody has changed you, put you back on the streets to possibly go back, possibly endanger somebody, whatever?" The court denied probation, explaining that its denial was based not only on appellant's statutory ineligibility for probation (resulting from the firearm enhancement), but also on the court's finding that appellant "[]poses a significant and substantial danger to others . . . ."
The court sentenced appellant to a life prison term on the premeditated and deliberate attempted murder conviction, and imposed consecutive terms totaling 26 years. The court imposed a $300 restitution fine, a total of $440 in court security fees, and a total of $330 in criminal conviction assessments. The court ordered appellant to pay victim restitution in an amount to be determined.
Appellant timely appealed. During the pendency of this appeal (on Jan. 1, 2018), the Legislature granted trial courts new discretion to strike firearm enhancements in the interest of justice. (Pen. Code, § 12022.53, subd. (h); Stats. 2017, ch. 682, § 2.) Months later (on Jun. 27, 2018), the Legislature granted trial courts new discretion, in specified circumstances, to order "the postponement of prosecution . . . to allow the defendant to undergo mental health treatment . . . ." (Pen. Code, § 1001.36, subd. (c); Stats. 2018, ch. 34, § 24.)
DISCUSSION
Appellant contends: (1) there was insufficient evidence of intent to kill, premeditation, and deliberation to sustain appellant's conviction for premeditated and deliberate attempted murder; (2) there was insufficient evidence that appellant used force or fear to take property from Chung's immediate presence to sustain appellant's robbery conviction; (3) the trial court prejudicially erred in failing to sever the charges against appellant into three separate trials, or his counsel was ineffective for failing to move for severance; (4) appellant's sentence is unconstitutionally cruel or unusual; (5) the matter should be remanded to give the trial court an opportunity to consider appellant's eligibility for mental health diversion under Penal Code section 1001.36; (6) the matter should be remanded for a hearing on appellant's ability to pay the fines, assessments, and victim restitution imposed by the trial court; and (7) the matter should be remanded to give the trial court an opportunity to exercise its new discretion under Penal Code section 12022.53, subdivision (h), to strike the firearm enhancement.
A. Sufficiency of the Evidence
Appellant challenges the sufficiency of the evidence to sustain his convictions for premeditated and deliberate attempted murder and for robbery. "In reviewing a sufficiency of evidence challenge, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." (People v. Gonzalez (2012) 54 Cal.4th 643, 653 (Gonzalez).)
1. Premeditated and Deliberate Attempted Murder
There was sufficient evidence that appellant formed the intent to kill Cano through premeditation and deliberation to sustain appellant's conviction for attempted murder and the enhancement of his sentence. (See Gonzalez, supra, 54 Cal.4th at p. 654 ["The crime of attempted murder is not divided into degrees, but the sentence can be enhanced if the attempt to kill was committed with premeditation and deliberation"].) A decision to kill is "premeditated" if considered beforehand and "deliberate" if resulting from careful thought and weighing of competing considerations. (People v. Lee (2011) 51 Cal.4th 620, 636.) The required extent of reflection may occur quickly. (Ibid.) In assessing the sufficiency of evidence of premeditation and deliberation, courts often consider three "Anderson factors": planning, motive, and manner of (attempted) killing. (People v. Shamblin (2015) 236 Cal.App.4th 1, 10 & fn. 16 (Shamblin), citing People v. Anderson (1968) 70 Cal.2d 15, 26-27; see also Gonzalez, at p. 664 [applying Anderson factors to conclude rational jury would have found attempted murder premeditated and deliberate].) The Anderson factors are merely guidelines. (Gonzalez, at p. 663.) Although motive is one Anderson factor, "the lack of a discernable rational motive does not preclude a conviction for first degree premeditated murder." (People v. Whisenhunt (2008) 44 Cal.4th 174, 202; accord, People v. Thomas (1992) 2 Cal.4th 489, 519 ["'A senseless, random, but premeditated, killing supports a verdict of first degree murder' [Citation]"].)
Here, a rational jury could have found beyond a reasonable doubt that appellant intended to kill Cano and formed that intent through premeditation and deliberation. Cano's and appellant's testimony supported findings that appellant initiated contact with Cano, drove a short distance away, drove back, and fired three gunshots at Cano from close range. These findings, in turn, supported findings of premeditation and deliberation. (See People v. Felix (2009) 172 Cal.App.4th 1618, 1622-1623, 1627 [sufficient evidence supported findings that attempted murder was premeditated and deliberate, where defendant "fired two shots into [victim's] apparently occupied bedroom, after arming himself in response to his anger" over victim's earlier failure to disclose defendant's girlfriend's location]; People v. Poindexter (2006) 144 Cal.App.4th 572, 575, 586-588 (Poindexter) [sufficient evidence of premeditation and deliberation supported first degree murder conviction, rendering harmless any error in instructing on lying-in-wait theory, where defendant told victim to stay where he was, returned with shotgun within one minute, and quickly shot victim three times after exchanging brief remarks].)
The Anderson factors support this conclusion. First, appellant's decision to drive back toward Cano after speaking to him and driving away is evidence of planning. (See People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 295 (Soliz) [defendants' request to driver to turn car around and return to gas station to confront victims seen there was evidence of planning]; cf. People v. San Nicolas (2004) 34 Cal.4th 614, 658 [defendant's testimony that he saw victim's reflection in mirror before turning around and stabbing her was evidence of planning, as it established defendant had sufficient time to reflect].) Second, the manner in which appellant attempted to kill Cano -- three close-range gunshots -- supports an inference of a deliberate decision to ensure death. (See Poindexter, supra, 144 Cal.App.4th at p. 588 [manner of killing supported findings of premeditation and deliberation, where defendant "quickly fired three shots at the victim, with a shotgun, from a relatively close range"]; Soliz, supra, 52 Cal.4th at p. 295 [same, where killings were accomplished through "a close-range shooting without any provocation or evidence of a struggle"].) Finally, the jury reasonably could have found a motive for the attempted murder, viz., appellant's anger at Cano stemming from appellant's mistaken perception that Cano had thrown objects at appellant's car. (See People v. Williams (2018) 23 Cal.App.5th 396, 410 [appellant's rage at collapse of his marriage evinced motive for killing his wife].)
Although the prosecutor did not identify a motive for the shooting, we do not review "the theories articulated in the prosecutor's argument," but instead review "the evidence presented and the possible inferences drawn therefrom . . . ." (People v. Perez (1992) 2 Cal.4th 1117, 1125-1126; accord, People v. Clark (2011) 52 Cal.4th 856, 947.) In any event, even if the jury found no motive for the shooting, the planning and manner evidence was sufficient to sustain the jury's premeditation and deliberation findings. (See People v. Edwards (1991) 54 Cal.3d 787, 814 [planning and manner evidence was sufficient to support findings of premeditation and deliberation, despite court's acknowledgment that motive was "elusive" and "known only to defendant"]; cf. People v. Harris (2008) 43 Cal.4th 1269, 1277, 1286-1287 [sufficient evidence of premeditation and deliberation supported trial court's denial of motion for judgment of acquittal on first degree murder charge, despite court's acknowledgment that defendant killed stranger at donut store "without provocation"].)
In sum, substantial evidence supported the jury's findings that appellant intended to kill Cano and formed that intent through premeditation and deliberation.
2. Robbery
There was sufficient evidence that appellant used force or fear to take property from Chung's immediate presence to sustain appellant's robbery conviction. (See Pen. Code, § 211 ["Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear"].) Property is in a person's immediate presence if it is within an area over which the person exercises sufficient control to retain possession of the property, if not prevented from doing so by force or fear. (People v. Gomez (2008) 43 Cal.4th 249, 257 (Gomez I).) Thus, property may be in a person's immediate presence even though the property and the person are in different rooms of the same house, or in different buildings on the same premises. (Ibid.)
Here, notwithstanding the fact that Chung fled into her bedroom before appellant took property from her home, the jury reasonably could have found that Chung exercised sufficient control over the foyer of her home to satisfy the immediate presence requirement. (See People v. Reeves (2001) 91 Cal.App.4th 14, 51-52 [trial court properly instructed jury on robbery without instructing it on lesser included offenses, where defendant coerced victims into bathrooms before taking property from other areas of their homes, satisfying immediate presence element].) This is especially true in light of the evidence that Chung, heading downstairs, would have passed even closer to appellant had she not seen and been frightened by him. (Cf. Gomez I, supra, 43 Cal.4th at p. 265 [sufficient evidence supported immediate presence element, where victim pursued fleeing defendant and could have caught up, had defendant not shot at victim from 100 to 150 feet away].)
Further, the jury reasonably could have found that appellant used fear to take Chung's property. The jury was entitled to credit Chung's testimony that appellant -- a masked intruder -- commanded her to stay where she was and gestured at her in a manner she mistook for brandishing a gun. These actions were virtually certain to induce fear, as appellant's counsel acknowledged when he noted, in closing argument, that waking up to discover a stranger in one's home is a "shocking" experience and "one of the worst things that can happen to you . . . ." Indeed, Chung's fear for herself and her family was evinced by her testimony that she fled into her bedroom closet and called 911. Thus, the jury reasonably could have found that appellant used fear to take Chung's property. (See People v. Villa (2007) 157 Cal.App.4th 1429, 1432-1433 [sufficient evidence satisfied use-of-fear element, where defendant pointed metallic object at victims who believed it was gun, despite evidence that defendant had only cigarette lighter on his person when arrested minutes later]; People v. Gonzales (2003) 114 Cal.App.4th 560, 570 [same, where defendant claimed to be undercover police officer and pat searched victim, who suspected defendant was not police officer but did not resist because he believed defendant might have gun and might harm him]; People v. Davison (1995) 32 Cal.App.4th 206, 216-217 [compelling evidence of use of fear rendered instructional error harmless beyond a reasonable doubt, where defendant told victim to stand back from ATM she was using in isolated area at night, and victim moved away out of fear, not knowing whether defendant or his companion might hit her or draw weapon].)
Contrary to appellant's contention, it is immaterial that appellant made no verbal demand for Chung's property. (See People v. Brew (1991) 2 Cal.App.4th 99, 103-104 [sufficient evidence supported robbery conviction, where defendant interjected himself between victim and cash register "without saying anything"].) "An unlawful demand can convey an implied threat of harm for failure to comply, thus supporting an inference of the requisite fear." (People v. Morehead (2011) 191 Cal.App.4th 765, 775.) Here, appellant, while simulating a gun, commanded Chung not to move, and thereafter stole her property. The evidence amply supported an inference that appellant used fear to take Chung's property from her immediate presence.
B. Joinder of Charges
Appellant contends the charges against him should have been severed into three trials, viz., one for each of the Arce/Cano, Torga, and Chung incidents. The joinder of the charges against appellant does not require reversal because (1) appellant forfeited his challenge to joinder; (2) his trial counsel was not ineffective for failing to preserve the challenge; and (3) joinder did not result in gross unfairness amounting to a due process violation.
1. Principles
Charges may be joined if the charged offenses are "connected together in their commission," if they are "different statements of the same offense," or if they belong to "the same class of crimes or offenses . . . ." (Pen. Code, § 954.) Joinder conserves judicial resources and is therefore preferred by law. (People v. Simon (2016) 1 Cal.5th 98, 122 (Simon).) Nevertheless, the trial court may, "in the interests of justice and for good cause shown," sever the charges into groups to be tried separately. (Pen. Code, § 954.)
Where joinder is permitted by Penal Code section 954, "'[t]he burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.' [Citation.]" (People v. Gomez (2018) 6 Cal.5th 243, 275 (Gomez II).) "In determining whether a court abused its discretion in declining to sever properly joined charges," a reviewing court considers "'(1) whether some of the charges are particularly likely to inflame the jury against the defendant; (2) whether a weak case has been joined with a strong case or another weak case so that the totality of the evidence may alter the outcome as to some or all of the charges; or (3) whether one of the charges (but not another) is a capital offense, or the joinder of the charges converts the matter into a capital case.' [Citation.]" (Id. at pp. 275-276.) The "'animating concern'" underlying the first factor -- which concerns the charges' potential to inflame the jury -- is whether an inflammatory charge supported by strong evidence might bolster a greater charge supported only by weak evidence. (See Gomez II, supra, 6 Cal.5th at p. 277.) The second factor similarly concerns "'a risk of prejudicial "spillover effect,"'" but warrants severance only if there is an "'extreme disparity'" in the charges' evidentiary support. (People v. Ybarra (2016) 245 Cal.App.4th 1420, 1437 (Ybarra).)
A reviewing court need not consider these three factors if it concludes the evidence supporting the joined charges would have been cross-admissible in separate trials, dispelling any suggestion of prejudice from joinder. (See Gomez II, supra, 6 Cal.5th at pp. 275-276.) But if consideration of the three factors defeats a showing of prejudice, the absence of cross-admissibility is immaterial. (See People v. Mendoza (2000) 24 Cal.4th 130, 161-162 (Mendoza) [finding no cross-admissibility but affirming trial court's denial of defendant's severance motion], superseded by statute on another ground as stated in People v. Brooks (2017) 3 Cal.5th 1.) As we find neither potential nor actual prejudice from the joinder, we express no opinion on cross-admissibility.
The court has no duty to order severance on its own motion. (People v. Romero and Self (2015) 62 Cal.4th 1, 29 (Romero).) Thus, a defendant's failure to request severance of charges in the trial court forfeits any claim of error on appeal. (See ibid.; People v. Maury (2003) 30 Cal.4th 342, 392 (Maury).) Defense counsel's failure to preserve such a claim does not amount to ineffective assistance where the trial court would have had discretion to deny a motion for severance had counsel made one. (See Maury, supra, 30 Cal.4th at pp. 392, 394.) However, "'[e]ven if a defendant fails to demonstrate the trial court's joinder ruling was an abuse of discretion when it was made, reversal may nonetheless be required if the defendant can demonstrate that "the joint trial resulted in such gross unfairness as to amount to a due process violation."' [Citation.]" (Gomez II, supra, 6 Cal.5th at p. 276.)
2. Analysis
Here, appellant forfeited his challenge to the joinder of the charges against him by failing to request severance in the trial court. (See, e.g., Romero, supra, 62 Cal.4th at p. 29.) Nevertheless, to resolve his claim that his trial counsel's failure to make such a request constituted ineffective assistance, we address the merits of his contention that the trial court erred by failing to sever the counts into three separate trials. The contention is meritless because joinder was proper under Penal Code section 954 and appellant could not have made a clear showing of potential prejudice under the applicable factors. (See Gomez II, supra, 6 Cal.5th at pp. 275-276.)
First, joinder was proper under Penal Code section 954. Appellant committed all the offenses within a 48-hour period, warranting appellant's own characterization of his offenses in his appellate briefing as a "crime spree." In addition to being closely related in time, the offenses were related in kind. Both Cano's attempted murder and Chung's robbery belonged to the class of assaultive crimes against the person. (See, e.g., Simon, supra, 1 Cal.5th at p. 122, fn. 9.) Moreover, the robbery and most of the other offenses shared the common element of intent to illegally obtain property. (See People v. Anderson (2018) 5 Cal.5th 372, 379, 388 (Anderson) [affirming denial of motion to sever charge for murder committed in commission of robbery (and related charges based on same incident) from burglary charges based on two prior incidents, where intent to illegally obtain property "constitute[d] a common element of substantial importance that ma[de] joinder proper"].) The offenses were therefore sufficiently connected in their commission to render joinder proper. (See Mendoza, supra, 24 Cal.4th at p. 160 [offenses were sufficiently connected in their commission to render joinder proper, where all offenses were committed within close timeframe of three days and many offenses involved felonious intent to obtain property].)
Second, had appellant moved for severance, he could not have made the clear showing of potential prejudice necessary to establish that the trial court abused its discretion in trying the properly joined charges together. No heightened scrutiny was required because this is not a capital case. (See Simon, supra, 1 Cal.5th at p. 128.) Further, the strength of the evidence in support of each count -- even disregarding appellant's admissions at trial -- dispels any relevant risk of evidentiary spillover. (See Ybarra, supra, 245 Cal.App.4th at p. 1437.) The charges for premeditated and deliberate attempted murder, assault, and possession of a firearm and ammunition were supported by strong evidence, including (1) Cano's and Perez's testimony about the shooting; (2) Cano's identification of appellant as the shooter in a photographic six-pack; and (3) appellant's admission, during his interview with Officer Crawford (after he attempted to fabricate an alibi), to being present during the shooting. Likewise, the charges for and associated with Chung's robbery were supported by strong evidence, including Chung's testimony, the surveillance video, the match between the robber's clothing and appellant's clothing upon arrest, and the discovery of Chung's property in appellant's car. The similar discovery of Arce's and Torga's property in appellant's car -- including checks made out to appellant and his "crew" -- provided strong support for the remaining charges. Given the strength of the evidence in support of each charge, it is immaterial that Cano's attempted murder or Chung's robbery might be characterized as more inflammatory than the other charges. (See Anderson, supra, 5 Cal.5th at p. 390 [trial court did not err in denying motion to sever charged burglaries from "far more serious" charged crimes, "given the strength of the evidence regarding those burglaries"].) Because appellant could not have made a clear showing of potential prejudice, his trial counsel was not ineffective for failing to move to sever the charges. (See Maury, supra, 30 Cal.4th at pp. 392, 394.)
Finally, nothing in the trial record shows joinder actually prejudiced appellant in a manner rendering his trial grossly unfair. On the contrary, at least two developments at trial weighed against any inference of prejudice. First, the trial court instructed the jury (per CALCRIM No. 3515) to consider each count separately and return a separate verdict for each one. (See Simon, supra, 1 Cal.5th at pp. 129-131 [joinder did not result in gross unfairness, in part because trial court instructed jury to decide each count separately and defendant failed to negate presumption that jury followed instruction]; Gomez II, supra, 6 Cal.5th at pp. 277-278 [same, in part because "the record d[id] not suggest that the jury was unable to decide each count separately as it was specifically instructed to do"].) Second, the jury showed it was willing and able to differentiate among the charges, finding the firearm allegation associated with the attempted murder charge true while finding the firearm allegation associated with the robbery charge not true. (See Simon, at p. 130 [jury's findings of first degree murder in killings of two victims but only second degree murder in killing of third victim "strongly suggest[ed] that the jury was capable of weighing the evidence and differentiating among [the] various charges"]; Gomez II, at p. 277 [similar, where jury acquitted defendant on one charge and deadlocked on another].)
The cases on which appellant relies are distinguishable. (See Old Chief v. U.S. (1997) 519 U.S. 172, 180-191 & fn. 7 [federal district court abused its discretion under federal evidence law by admitting evidence of prior conviction despite defendant's willingness to admit fact of conviction; court expressly limited its holding to "cases involving proof of felon status"]; People v. Bouzas (1991) 53 Cal.3d 467, 470, 480-481 [trial court prejudicially erred by admitting evidence of prior robbery conviction at defendant's trial for theft, where defendant offered to stipulate to fact of conviction, defense theory was "not implausible," and prosecution evidence was "not strong"]; People v. Smallwood (1986) 42 Cal.3d 415, 427-431 (Smallwood) [trial court abused its discretion in denying motion to sever two murder charges, where death sentence required more careful scrutiny and identification evidence before court at time of motion was "extremely weak" on one charge].) The cases concerning admission of prior convictions are particularly inapposite, as "[a] defendant seeking severance of properly joined charged offenses must make a stronger showing of potential prejudice than would be necessary to exclude evidence of other crimes in a severed trial." (Simon, supra, 1 Cal.5th at p. 123.) Although Smallwood did concern severance, appellant's reliance on it is unpersuasive for the additional reason that our Supreme Court has disapproved Smallwood to the extent its "[m]isleading language" implied that the absence of cross-admissibility shifted the burden to the prosecution to negate the potential for prejudice. (People v. Bean (1988) 46 Cal.3d 919, 939, fn. 8.)
C. Cruel or Unusual Punishment
Appellant contends his sentence of a life prison term, plus 26 years, is excessive and therefore constitutes cruel and unusual punishment under the federal and California Constitutions. Appellant forfeited this challenge, and his trial counsel was not ineffective for failing to preserve it. The California Constitution forbids cruel or unusual punishment. (Cal. Const., art. I, § 17.) The federal Constitution similarly forbids punishment that is both cruel and unusual. (U.S. Const., 8th Amend; cf. People v. Szadziewicz (2008) 161 Cal.App.4th 823, 846 (Szadziewicz) [relying on "the same reasons" to reject proportionality challenges to sentence under federal and California Constitutions], disapproved on another ground in People v. Dalton (2019) 7 Cal.5th 166.) "'"To determine whether a sentence is cruel or unusual as applied to a particular defendant, a reviewing court must examine the circumstances of the offense, including its motive, the extent of the defendant's involvement in the crime, the manner in which the crime was committed, and the consequences of the defendant's acts. The court must also consider the personal characteristics of the defendant, including age, prior criminality, and mental capabilities. [Citation.]" [Citation.] "If the court concludes that the penalty imposed is 'grossly disproportionate to the defendant's individual culpability' [citation], or, stated another way, that the punishment '"'shocks the conscience and offends fundamental notions of human dignity'"' [citation], the court must invalidate the sentence as unconstitutional."' [Citation.]" (People v. Landry (2016) 2 Cal.5th 52, 125.) "A claim that a sentence is cruel or unusual requires a 'fact specific' inquiry and is forfeited if not raised below." (People v. Baker (2018) 20 Cal.App.5th 711, 720 (Baker); accord, People v. Speight (2014) 227 Cal.App.4th 1229, 1247 (Speight).)
Here, appellant's failure to object to his sentence as cruel or unusual in the trial court forfeited this claim on appeal. (See Baker, supra, 20 Cal.App.5th at p. 720; Speight, supra, 227 Cal.App.4th at p. 1247.) Contrary to appellant's contention that he is objecting on purely legal grounds, his objection requires resolution of factual issues that were not developed in the trial court, including the extent, if any, to which his drug use mitigated his culpability. Nevertheless, to resolve appellant's claim that his trial counsel was ineffective for failing to preserve the objection, we address the merits of his claim that his sentence is cruel or unusual. (Compare Baker, at pp. 716, 720 [counsel was not ineffective], with Speight, at pp. 1248-1249 [counsel was ineffective].)
Neither the federal nor the California Constitution forbids imposing a prison term potentially lasting the rest of appellant's life as punishment for his premeditated and deliberate attempt to end Cano's. (See Szadziewicz, supra, 161 Cal.App.4th at pp. 844-846 [concurrent life terms for premeditated and deliberate attempted murder and aggravated mayhem were not cruel or unusual, despite defendant's "age, lack of a prior criminal record, stable family life, and motive to protect his daughter," due to "extremely serious" nature of his crimes]; People v. Morales (1992) 5 Cal.App.4th 917, 929-931 (Morales) [life term for premeditated and deliberate attempted murder was neither cruel nor unusual, where defendant threatened to kill victim, loaded gun, drove to victim's home, and was found crouching near victim's door, supporting jury's finding that defendant acted with "the mental state that triggers imposition of a life sentence"]; cf. People v. Lee (2003) 31 Cal.4th 613, 627 [premeditated and deliberate attempted murder is sufficiently blameworthy that no issues of constitutional magnitude are raised by interpreting statute to impose life term on defendants convicted of aiding and abetting that offense, even where defendant did not personally premeditate and deliberate].)
Appellant relies on several purportedly mitigating facts, but none persuade us that his sentence shocks the conscience. We address each in turn.
First, appellant relies on the fact that "nobody was injured." But the defendant's failure to inflict the intended fatal injury is a necessary condition of premeditated and deliberate attempted murder, which is nevertheless an extremely serious crime. The fact that appellant's gunshots missed Cano completely, rather than striking him nonfatally, does little or nothing to mitigate his culpability for attempting to shoot Cano dead. (See Morales, supra, 5 Cal.App.4th at p. 930 [fact victim was "neither injured nor traumatized" did not lessen seriousness of defendant's premeditated and deliberate attempted murder]; cf. People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1199 ["fortuity" of victim's absence from home when defendant executed his plan to kill her there did not lessen his culpability for her attempted murder, "given the substantial evidence of his intent to kill and his commission of an overt act"], overruled on another ground by People v. Rangel (2016) 62 Cal.4th 1192; People v. Smith (2005) 37 Cal.4th 733, 741 [attempted murder victim's escape from death "'"because of the shooter's poor marksmanship"'" does not necessarily establish defendant had less culpable state of mind].)
The Legislature, in prescribing appellant's sentence, was not indifferent to the absence of injury. Had appellant's gunshots inflicted great bodily injury on Cano, Penal Code section 12022.53 would have required an enhancement of 25 years to life, rather than the 20-year enhancement the court imposed. (See Pen. Code, § 12022.53, subds. (c)-(d).)
Second, appellant relies on the fact that he had never been sentenced to prison before. But neither caselaw nor the dictates of conscience entitle appellant to a shorter term merely because he is in prison for the first time. (See Szadziewicz, supra, 161 Cal.App.4th at p. 846 [defendant's "lack of a prior criminal record" did not establish his life sentence was disproportionate, "much less so disproportionate as to shock the conscience"]; People v. Gonzales (2001) 87 Cal.App.4th 1, 17 (Gonzales) ["The lack of a significant prior criminal record is not determinative in a cruel and unusual punishment analysis"].) Although a prior prison term might have suggested appellant was resistant to rehabilitation, thereby underscoring the constitutional soundness of his sentence, other evidence suggested the same. Specifically, appellant was previously convicted of unlawfully possessing a firearm, but nevertheless used a firearm to attempt to murder Cano, and thereafter continued to keep the firearm on his person, including when robbing Chung.
Third, appellant relies on the fact that he expressed remorse by apologizing to the victims during the sentencing hearing. But appellant attempted to fabricate an alibi for his most serious crime, calling 911 to falsely report that his car was in the hands of a thief at the time of the shooting. After admitting he was present for the shooting, he claimed he was not the shooter. After admitting he was the shooter, he denied acting with intent to kill -- the same intent the jury found him to have formed through premeditation and deliberation. His acceptance of responsibility after the failure of his attempts to disclaim it is of no constitutional significance.
Finally, appellant relies on his drug use -- which he characterizes as a mental illness" -- as a mitigating factor. But our Supreme Court has repeatedly held that even a death sentence is not unconstitutionally excessive merely because it is imposed on a defendant with a mental illness. (See, e.g., People v. Krebs (2019) 8 Cal.5th 265, 330-331 [rejecting defendant's contention that "imposition of the death penalty on persons with a mental disorder that reduces their volitional control to such a degree that they can be subject to civil detention is excessive under the Eighth Amendment"]; People v. Powell (2018) 5 Cal.5th 921, 962-963 [same regarding imposition of death penalty on "a mentally ill person"].) Here, even assuming, arguendo, that appellant's drug use reflected mental illness, nothing in the record suggests such illness mitigated his culpability to a constitutionally significant extent. On the contrary, the jury permissibly rejected appellant's defense that his drug use prevented him from forming the intent to kill Cano, and affirmatively found that he formed his murderous intent through premeditation and deliberation. (Cf. Morales, supra, 5 Cal.App.4th at p. 926 [sufficient evidence supported conviction for premeditated and deliberate attempted murder, on which life sentence was permissibly imposed; even if jury accepted defense theory that defendant "was operating in an alcoholic blackout," jury was entitled to believe testimony that defendant "still could appreciate what was happening"].)
Relatedly, appellant relies on his view that his "expensive" incarceration will be less "effective" at addressing his needs and those of society than alternative punishments, such as "the extended residential treatment program possible under Penal Code section 1001.36 . . . ." The prohibition against cruel or unusual punishment does not empower us to replace the Legislature's prescribed punishment with a mode of punishment we deem more effective. (Cf. Gonzales, supra, 87 Cal.App.4th at p. 16 ["'The judicial inquiry [into cruel or unusual punishment] commences with great deference to the Legislature. Fixing the penalty for crimes is the province of the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches'"].)
In sum, appellant's cruel or unusual punishment claim is without merit. Thus, appellant's trial counsel was not ineffective for failing to preserve the claim for appeal. (See Baker, supra, 20 Cal.App.5th at pp. 716,720.)
D. Remand for Consideration of Mental Health Diversion
Assuming, arguendo, that Penal Code section 1001.36 applies retroactively to appellant, we nevertheless deny his request that we remand for consideration of his eligibility for mental health diversion, as remand for that purpose would be futile. Where a defendant meets Penal Code section 1001.36's eligibility requirements, the court may (but need not) postpone the defendant's prosecution to allow the defendant to undergo mental health treatment. (Pen. Code, § 1001.36, subds. (a), (c).) As relevant here, the eligibility requirements include evidence to the court's satisfaction that (1) the defendant has a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM); (2) the disorder was a significant factor in the commission of the charged offense; and (3) the defendant will not pose an "unreasonable risk of danger to public safety" if treated in the community. (Pen. Code, § 1001.36, subd. (b)(1).) An "unreasonable risk of danger to public safety" means an unreasonable risk that the defendant will commit an enumerated "violent felony," including attempted homicide. (Id., §§ 1001.36, subd. (b)(1)(F), 1170.18, subd. (c), 667, subd. (e)(2)(C)(iv)(IV).) Remand for an evaluation of eligibility is not required where the record clearly indicates that remand would be futile. (See People v. Torres (2019) 39 Cal.App.5th 849, 852, 856 & fn. 2 [denying request for remand, despite one doctor's report defendant had "a thought disorder" and Court of Appeal's agreement defendant "no doubt" had one, where three doctors failed to diagnose disorder identified in DSM and probation report reflected defendant's insistence he was of sound mind during commission of offenses]; People v. Jefferson (2019) 38 Cal.App.5th 399, 405-406, 408-409 [denying request for remand, despite prosecutor's admission that even layperson could see defendant suffered from anxiety and depression, where trial court stated defendant's condition had no bearing on his conduct].)
The remaining eligibility requirements are (1) a qualified mental health expert's opinion that the symptoms "motivating the criminal behavior" would respond to treatment; (2) the defendant's consent to diversion and waiver of speedy trial rights; and (3) the defendant's agreement to comply with treatment. (Pen. Code, § 1001.36, subd. (b)(1).)
Here, the record clearly indicates the trial court would find appellant ineligible due to a lack of evidence to the court's satisfaction that appellant, if treated in the community, would pose no unreasonable risk of danger to public safety. (See Pen. Code, § 1001.36, subd. (b)(1)(F).) The court would be entitled to consider appellant's prior conviction for unlawful possession of a firearm and his instant conviction for firing multiple gunshots at Cano in a premeditated and deliberate attempt to kill him. (See ibid. [trial court may consider "the defendant's violence and criminal history" and "the current charged offense"].) The trial court referenced these same considerations when explaining that its denial of probation was based not only on appellant's statutory ineligibility, but also on the court's finding that appellant "[]poses a significant and substantial danger to others . . . ." Thus, the record clearly indicates that on remand, the court would not be satisfied that appellant would pose no unreasonable risk of danger to public safety if treated in the community. The court would therefore find appellant ineligible for diversion.
On this record, we reject appellant's contention that his "extensive drug abuse history qualifies him for mental health diversion . . . ." We acknowledge that drug abuse may be associated with a qualifying substance use disorder. (See Pen. Code, § 1001.36, subd. (b)(1)(A) [disorders identified in most recent DSM edition qualify, with exception of "antisocial personality disorder, borderline personality disorder, and pedophilia"]; In re Christopher R. (2014) 225 Cal.App.4th 1210, 1219 [noting DSM-5 recognizes "substance use disorders"].) But appellant has neither identified evidence that he has been diagnosed with a substance use disorder, nor proffered evidence that he could produce such a diagnosis from a qualifying mental health expert on remand. To the extent appellant simply equates drug abuse with substance use disorders, he offers no reasoning or authority in support of that equivalence, and we therefore deem the argument forfeited for lack of development. (See People v. Guzman (2019) 8 Cal.5th 673, fn. 7 [appellant forfeited due process claim by failing to "develop the argument"].) Finally, even had appellant been diagnosed with a qualifying substance use disorder, remand would be futile in light of the clear indication, discussed above, that the trial court would find appellant ineligible under the public safety requirement.
Appellant relies on his drug abuse rather than on any claimed anxiety disorder, despite the evidence in the record that appellant has been prescribed anxiety medication. Appellant admitted at trial that at the time of his offenses, he was in possession of a higher dosage of anxiety medication than he had been prescribed and was selling some of the medication to buy illegal drugs.
In sum, we will not remand for consideration of appellant's eligibility for mental health diversion because remand for that purpose would be futile.
E. Remand for Consideration of Ability to Pay
We deny appellant's request that we remand for a hearing on his ability to pay the assessments, restitution fine, and victim restitution imposed by the trial court. As appellant acknowledges, he did not object to these obligations below on the ground of inability to pay. We agree with our colleagues in Division Eight of this Appellate District that a failure to object in the trial court forfeits this issue on appeal, notwithstanding the decision in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). (See People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155; accord, People v. Keene (2019) 43 Cal.App.5th 861)
As the court that decided Dueñas has noted, our Supreme Court is poised to resolve a split in authority regarding whether Dueñas was correctly decided, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844, on the following issues: "Must a court consider a defendant's ability to pay before imposing or executing fines, fees, and assessments? If so, which party bears the burden of proof regarding defendant's inability to pay?" (People v. Belloso (2019) 42 Cal.App.5th 647, 649 & fn. 3.)
We also reject appellant's contention that his trial counsel was ineffective for failing to object on the ground of appellant's inability to pay. Appellant makes no response to respondent's argument that any constitutional error was harmless beyond a reasonable doubt. In particular, he fails to address whether the court might have found him able to pay the fines and assessments from prison wages. (See People v. Aviles (2019) 39 Cal.App.5th 1055, 1075-1077 [any Dueñas error was harmless due to defendant's ability to earn prison wages equaling amount of fine and assessments]; People v. Jones (2019) 36 Cal.App.5th 1028, 1035 [same]; People v. Johnson (2019) 35 Cal.App.5th 134, 139-140 [same].) He therefore fails to satisfy his burden to show prejudice. (See In re Crew (2011) 52 Cal.4th 126, 150 ["If a claim of ineffective assistance of counsel can be determined on the ground of lack of prejudice, a court need not decide whether counsel's performance was deficient"].)
To the extent appellant faults his trial counsel for failing to raise a Dueñas-style challenge to the victim restitution order, his ineffective assistance claim fails for the additional reason that neither the holding of Dueñas nor the reasoning for that holding applies to direct victim restitution. (See People v. Evans (2019) 39 Cal.App.5th 771, 777 ["Based on the significant differences in purpose and effect between victim restitution and the moneys at issue in Dueñas, we decline to extend the rule of Dueñas to victim restitution"]; accord, People v. Allen (2019) 41 Cal.App.5th 312, 326.)
In sum, appellant forfeited any objection based on inability to pay, and his trial counsel was not ineffective for failing to preserve it. Thus, we will not remand for a hearing on appellant's ability to pay.
F. Remand for Consideration of Striking Firearm Enhancement
The parties agree we should remand to allow the trial court to exercise its new discretion under Penal Code section 12022.53, as amended by Senate Bill No. 620, whether to strike the firearm enhancement. (See Pen. Code, § 12022.53, subd. (h) [authorizing trial courts, in the interest of justice, to strike otherwise required enhancements].) Senate Bill No. 620's expansion of the trial court's discretion applies retroactively to defendants, like appellant, whose convictions were not final on January 1, 2018. (See People v. Zamora (2019) 35 Cal.App.5th 200, 206-207.) "[A] remand is required unless the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken a firearm enhancement." (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) As appellant argues and respondent does not dispute, no such clear indication appears in the record. We will therefore remand for the sole purpose of allowing the trial court to exercise its discretion whether to strike the firearm enhancement.
DISPOSITION
The judgment is affirmed. The matter is remanded with directions to the trial court to decide, at a hearing at which appellant has the right to be present with counsel, whether it will exercise its discretion to strike the firearm enhancement imposed under Penal Code section 12022.53. (See People v. Rocha (2019) 32 Cal.App.5th 352, 359-360.) If the court elects to strike the firearm enhancement, it shall resentence appellant, issue a new abstract of judgment, and forward the new abstract of judgment to the California Department of Corrections and Rehabilitation. If the court elects not to strike the enhancement, appellant's original sentence shall remain in effect. (See id. at p. 361; People v. Buckhalter (2001) 26 Cal.4th 20, 35.)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J.
We concur:
WILLHITE, J.
COLLINS, J.