Opinion
B296642
02-03-2020
THE PEOPLE, Plaintiff and Respondent, v. PABLO ARIZPE, Defendant and Appellant.
Mark S. Givens, 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, Assistant Attorney General, and Steven D. Matthews and Chung L. Mar, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA460903) APPEAL from a judgment of the Superior Court of Los Angeles County, Kathleen Kennedy, Judge. Affirmed. Mark S. Givens, 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, Assistant Attorney General, and Steven D. Matthews and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Pablo Arizpe was convicted of one count of second degree murder, in violation of Penal Code section 187, subdivision (a). The trial court imposed an aggregate prison sentence of 16 years to life, which is comprised of a sentence of 15 years to life in state prison and a 1-year enhancement imposed pursuant to section 12022, subdivision (b)(1). The trial court also imposed a total of $670 in assessments and fines. Section 12022, subdivision (b)(1) provides: "A person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense."
Undesignated statutory citations are to the Penal Code.
On appeal, Arizpe claims that the trial court erred by failing to sua sponte: (1) instruct the jury on the lesser-included offense of involuntary manslaughter; and (2) ascertain Arizpe's ability to pay the assessments and fines before the trial court imposed them, thereby violating his right to due process of law. The first claim fails because Arizpe has not shown that the alleged instructional error was prejudicial. We further conclude that, under the facts of this case, the trial court's imposition of the assessments and fines did not violate Arizpe's due process rights. Accordingly, we reject both of Arizpe's claims of error and affirm the judgment of conviction in its entirety.
PROCEDURAL BACKGROUND
On February 21, 2018, the People filed an information that charged Arizpe with one count of murder, in violation of section 187, subdivision (a). The information further alleged that for the purposes of section 12022, subdivision (b)(1), Arizpe personally used a deadly and dangerous weapon in the commission of this offense. Later that day, Arizpe pleaded not guilty to the murder charge and denied any and all special allegations.
After the presentation of the evidence, the trial court instructed the jury on first degree murder, second degree murder, and voluntary manslaughter; the trial court did not provide—nor did Arizpe request—a jury instruction on involuntary manslaughter. At the conclusion of the trial, the jury found Arizpe guilty of second degree murder and that, in the commission of the crime, he personally used a deadly and dangerous weapon within the meaning of section 12022, subdivision (b)(1), to wit: a knife.
On March 5, 2019, the trial court sentenced Arizpe to an aggregate prison term of 16 years to life, which consisted of a prison sentence of 15 years to life and a 1-year sentencing enhancement imposed pursuant to section 12022, subdivision (b)(1). Additionally, the trial court imposed a $40 court operations assessment pursuant to section 1465.8, subdivision (a)(1); a $30 criminal conviction assessment pursuant to Government Code section 70373; and a $300 restitution fine pursuant to section 1202.4, subdivision (b). Pursuant to section 1202.45, the trial court also imposed (but suspended) a $300 parole revocation restitution fine. At no point during the sentencing hearing did Arizpe's counsel argue that the trial court could not impose these assessments and fines without first determining his client's ability to pay them.
On March 12, 2019, Arizpe appealed the judgment of conviction.
FACTUAL BACKGROUND
1. Undisputed background facts
On the evening of September 9, 2017, at the front entrance to a nursing home at 855 North Fairfax Avenue in Los Angeles, a homeless man named Delaney Griffin died as a result of a cut to his throat. Immediately prior to his death, Griffin had resided at a nearby homeless encampment in an alley west of Fairfax Avenue. The People established that on the evening in question, Griffin walked from his encampment to the nursing home; as he made that journey, he was bleeding from the fatal wound to his throat; and he died shortly after arriving at the front entrance to the nursing facility.
Police officers investigating the homicide found blood inside Griffin's homeless encampment. Police canvassed the area nearby, and arrested Arizpe the following morning at the corner of Hayworth Avenue and Romaine Street, which is approximately 1,600 feet from Griffin's encampment. At that time, Arizpe had dried blood on his clothing, neck, and chest area. The police department's crime lab performed a DNA analysis on a swab taken from a bloody knife found in Arizpe's belongings and a swab that was taken from dried blood found on Arizpe's chest; both samples matched Griffin's DNA profile to an extremely high degree of probability.
The remainder of this section discusses certain evidence relevant to Arizpe's claim that the trial court should have instructed the jury on involuntary manslaughter.
2. The coroner's testimony
Dr. Pedro Ortiz conducted an autopsy on Griffin's body. Dr. Ortiz opined that Griffin died as a result of a sharp force injury to his neck. He testified that Griffin had a cut on his neck that was about five and one half inches long and three-quarter inches deep. He concluded that "the wound was produced from the left to the right because usually when [someone] produce[s] a wound like that, [the person] start[s] the wound in a shallower mode and closer to the center line and then go[es] deeper as [he or she] push[es] the knife inside the wound." He testified that the portion of the wound that was on the right side of Griffin's neck had what is called a "rat tail," which had been formed as the knife was "being removed from the neck."
Dr. Ortiz testified that he found other smaller cuts on Griffin that were not defensive wounds.
Dr. Ortiz opined that the person who inflicted the wound on Griffin's neck was behind Griffin at the time that the wound was being inflicted. He explained that if the person inflicting the wound was in front of Griffin, then Dr. Ortiz would not expect to see the rat tail mark.
On cross-examination, Dr. Ortiz testified that a sharp force injury can result from the movement of a knife relative to the body, the movement of the body relative to a knife, or both forms of movement. He admitted that "it is not always easy to tell which" of those movements caused the sharp force injury. Arizpe's counsel asked Dr. Ortiz whether factors other than the removal of the knife from the neck could have produced the rat tail mark, and Dr. Ortiz responded that "[i]n the world of possibilities that's a possibility, yes . . . ." Dr. Ortiz next answered in the affirmative when he was asked whether "a struggle" was such a possibility.
3. The forensic analyst's testimony
Tom Bevel, a forensic analyst, conducted a blood stain pattern analysis of Griffin's encampment. Bevel testified that there were blood stains on the cement floor and on a blue blanket. He opined that these bloodstains indicate that a part of Griffin's bloody body made direct contact with the cement and the blanket. Bevel testified that this evidence is consistent with the conclusion that Griffin was lying down at the time that the stains were made.
Bevel also noted that several bloodstains appear on a wall near the encampment and on an electrical junction box attached to that wall. He opined that Griffin was standing or kneeling when the stains on the electrical junction box were made. He explained the forensic evidence indicated that Griffin could have been "getting up from the ground" when these stains were made, and that the wounded part of his body was approximately 47 inches off the ground at that time.
Based on all the evidence that Bevel reviewed in this case, he concluded "[t]hat the progression of the actions that had produced blood loss beg[an] very low to the floor and progressively be[came] higher and higher to the point that they were producing the trail going down the sidewalk and ultimately to the location where [Griffin was] found."
On cross-examination, Arizpe's counsel asked Bevel, "[I]n this specific case. We are not talking about certainty. Correct?" Bevel responded, "Certainty. No. We are talking about the best explanation of the viable ways that is considered that something could have occurred [sic]." Bevel also testified that he could not eliminate the possibility that Griffin and another person had gotten into a struggle before Griffin had been cut, or the possibility that "the cutting represented the end of the struggle, [and] not the beginning" of it.
4. Arizpe's trial testimony
Arizpe testified through a Spanish interpreter. He stated that although he spoke some English, he was only 45% fluent in that language. The remainder of this section relays the substance of relevant portions of Arizpe's testimony.
On the date of Griffin's death, Arizpe was not homeless. His last address was in Westwood on Federal Avenue. During the four-month period preceding his arrest, he had chosen to camp in open spaces.
Arizpe admitted that he had encountered Griffin on the day of the incident. As Arizpe walked by Griffin's encampment, Griffin "called [Arizpe] over," asked Arizpe if he had a dollar, and attempted to sell Arizpe magazines. It seems that Arizpe had seen Griffin at some point in time prior to this incident. Griffin asked Arizpe if he had something for Griffin, and Arizpe answered in the negative. At that time, Arizpe was wearing a short dress.
Arizpe testified that he would sometimes dress as a woman, but he did not always dress that way.
Thereafter, Griffin became aggressive and pushed Arizpe to an area where Griffin's sheets were located. Arizpe ended up in a position in which his stomach was on the ground. While kneeling and/or standing behind Arizpe, Griffin began "forceful[ly]" hitting Arizpe's back with his fists. At some point, Griffin produced a knife, which worried Arizpe. Arizpe then "tried to hold onto [Griffin's] hands" and the two men "began to struggle." It appears that at some juncture of the struggle, the two "roll[ed] around . . . , struggling for the knife."
Arizpe's testimony suggests that at some unspecified point in time before Griffin had become aggressive, Arizpe observed Griffin smoke a pipe that apparently smelled as if it contained methamphetamine. A forensic toxicologist testified that Griffin's autopsy report showed Griffin had 3.2 micrograms per milliliter of methamphetamine and .23 micrograms per milliliter of amphetamine in his femoral blood. The toxicologist opined that these figures indicate that Griffin may have been prone to aggressive and/or violent behavior at around the time of his death.
Arizpe's testimony regarding the remainder of his encounter with Griffin is not altogether clear. At some point, Griffin "stopped behaving hostile." Arizpe then "realized that [Griffin] was a weak person, and [Arizpe] removed the knife" from Griffin. When asked how the knife ended up in Arizpe's hand, Arizpe responded that the knife "slipped off [Griffin's] right hand, and it ended up in my right hand. [Griffin] was holding it by the handle, and I was holding the knife by the [dull part of the] blade."
It seems that after Arizpe obtained the knife from Griffin, Arizpe "hugged" Griffin as the two men were facing each other. Stated differently, Arizpe "grabbed ahold of [Griffin] with [his] right hand" while the two men were "face-to-face." Then, "the knife ended up at the height of [Griffin's] neck."
Arizpe's counsel asked him, "[W]hat do you mean 'ended up'?" Arizpe replied, "At that position I stopped."
Arizpe's testimony suggests that Griffin suffered the fatal cut to his throat as Griffin "pushed away, trying to free himself from the knife and from [Arizpe's] arms." Arizpe stated, "In the push, with the pressure, I—the knife, the same knife—as I removed the knife, the same knife cut [Griffin]." Arizpe also testified: "[W]hen I was withdrawing the knife [Griffin] pushed, and that pressure placed the knife against his throat." Arizpe answered in the affirmative when asked whether he cut Griffin "on accident" and whether "Griffin essentially fell into the knife." It appears that while Griffin was being cut, Griffin was kneeling, Arizpe was sitting, and the two men were still facing one another.
On cross-examination, Arizpe claimed that Griffin was not lying down when Arizpe slit his throat, and that Griffin was not lying down prior to the struggle.
Apparently, after Griffin was cut with the knife, Arizpe fell backward on the ground, and Griffin stood up, causing blood to stain part of Arizpe's hair, along with his chest, face, and feet. Arizpe characterized "the blood fluid" as "abundant" and indicated that he was "surprised to see all the blood." After Griffin stood up, he "backed up" and then left the encampment.
Arizpe's appellate counsel claims his client testified that "Griffin's pushing motion caused [Arizpe] to fall backwards onto the ground with . . . Griffin," suggesting that Griffin had also fallen onto the ground. (Italics added.) Counsel's description of the testimony is inaccurate. At trial, the People asked Arizpe, "[W]hen you say [Griffin] went backwards, did he fall to the ground?" Arizpe responded, "No. He stood standing."
After Griffin left, Arizpe stayed at Griffin's encampment for five minutes so that he could put back on his small dress. Arizpe then left the scene as well. Arizpe kept the knife with him because he "was afraid of a second attack." Arizpe admitted that police later found this knife in his bag. Only after the struggle did Arizpe realize that he had an incision on one of his fingers.
Arizpe testified that during the altercation, Arizpe and Griffin "were struggling . . . so much that [Arizpe's] dress fell off."
Dr. Ortiz testified that a cut on one of Arizpe's fingers could be "consistent with" being a defensive injury.
Arizpe did not intend to cut Griffin's neck, nor did he intend to kill Griffin.
5. Arizpe's interview with the police
To rebut Arizpe's trial testimony, the People introduced into evidence portions of an interview Arizpe had with Detective Angel Gomez on September 10, 2017. Gomez testified that Arizpe "was very nonchalant" and "very matter of fact" during the interview. Much like his trial testimony, Arizpe's statements to the police were vague and confusing. During one part of the interview, Arizpe denied stabbing Griffin and stated, "I think someone else attacked him."
Although the redacted partial transcripts of the interview are in the appellate record, the recordings of the interview that were played for the jury are not.
In another part of the interview, Arizpe claimed that Griffin hit him "constantly, about 2 or 3 times . . . ." Arizpe apparently claimed that the two men later "started to struggle" for the knife. He also seemed to claim that he slit Griffin's throat with "just a small movement." Arizpe suggested that he grabbed the blade from Griffin in order to defend himself.
DISCUSSION
Arizpe first argues that he is entitled to a new trial because the lower court failed sua sponte to instruct the jury on the lesser-included offense of involuntary manslaughter. Arizpe also argues that the trial court violated his right to due process by imposing certain assessments and fines without first determining whether he was able to pay them. For the reasons discussed below, we reject both of these claims of error.
A. Any Error in Failing to Sua Sponte Instruct the Jury on Involuntary Manslaughter Was Harmless
" ' "It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence." ' " (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) " 'That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offenses were present [citation], but not when there is no evidence that the offense was less than that charged.' " (Ibid.)
"[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of a lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]" ' that the lesser offense, but not the greater, was committed." (Breverman, supra, 19 Cal.4th at p. 162.) "In deciding whether evidence is 'substantial' in this context, a court determines only its bare legal sufficiency, not its weight." (Id. at p. 177.)
Arizpe contends that his pretrial statements to the police and his trial testimony constituted substantial evidence warranting an instruction on involuntary manslaughter. In particular, he claims the jury could have found that he acted with criminal negligence (i.e., the mens rea for involuntary manslaughter) rather than malice aforethought (i.e., the mens rea for murder). Arizpe's argument rests on the premise that a properly instructed jury could have relied on the statements he made to the police and at trial to find that "Griffin's throat was cut in a freak accident as [Arizpe] was in the process of releasing him at the very end of the struggle." We need not decide whether this factual theory was supported by substantial evidence because, for the reasons discussed below, we conclude that any instructional error was harmless.
"Involuntary manslaughter may be a lesser included offense of murder." (People v. Bohana (2000) 84 Cal.App.4th 360, 371 (Bohana).)
(See § 187, subd. (a) ["Murder is the unlawful killing of a human being . . . with malice aforethought"]; People v. Butler (2010) 187 Cal.App.4th 998, 1008 (Butler) ["[C]riminal negligence exists 'when a man of ordinary prudence would foresee that the act would cause a high degree of risk of death or great bodily harm.' [¶] The performance of an act with criminal negligence supplies the criminal intent for involuntary manslaughter . . . . [¶] [F]or murder the disregard [for life] is judged by a subjective standard whereas for involuntary manslaughter the disregard is judged by an objective standard"].)
As a preliminary matter, Arizpe argues that the federal constitutional standard of prejudice applies to this claim of error. He contends that the federal standard is appropriate because the trial court's failure to instruct the jury sua sponte on involuntary manslaughter "denied [Arizpe] of his constitutional rights to due process, to present a complete defense, to a jury trial, and to a fair trial by a properly instructed jury." Our Supreme Court has squarely held that "the failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility." (Breverman, supra, 19 Cal.4th at p. 165; see id. at pp. 169, 172 ["[W]e affirm that the rule requiring sua sponte instructions on all lesser necessarily included offenses supported by the evidence derives exclusively from California law. . . . [F]ederal law has no effect on the appropriate standard of California appellate review when, in a noncapital case, the defendant challenges his otherwise valid conviction of a charged offense on grounds the trial court failed in its sua sponte duty under California law to provide instructions, correct and complete, on all lesser included offenses"].)
In his reply brief, although Arizpe concedes that his "federal claim is not well supported by California's state court decisions," he "nevertheless maintains his claim that under federal law the trial court's error in the instant case denied him" of the aforementioned federal constitutional rights. Arizpe understates the import of Breverman's holding. "As an intermediate appellate court, we are bound to follow the precedent of our Supreme Court." (People v. Gonzales (1993) 20 Cal.App.4th 1607, 1610, citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Thus, we may not review his claim of error under the federal standard for prejudice.
Indeed, the Breverman court observed: "[T]he United States Supreme Court has expressly refrained from recognizing a federal constitutional right to instructions on lesser included offenses in noncapital cases." (Breverman, supra, 19 Cal.4th at p. 165.)
Instead, we must determine whether it is " 'reasonably probable' the defendant would have obtained a more favorable outcome had the [alleged] error not occurred." (See Breverman, supra, 19 Cal.4th at p. 178, quoting People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) "Under this standard, the appellant bears the burden to make an 'affirmative showing' " of the existence of such a reasonable probability. (See Conservatorship of Maria B. (2013) 218 Cal.App.4th 514, 532-533 [noting that this harmless error standard "applies in both criminal and civil cases"].) "Appellate review under Watson . . . . focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration." (Breverman, at p. 177.) "[We] may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (Ibid.)
Arizpe has not shown a reasonable probability that the jury would have adopted his "freak accident" factual theory had it been instructed on involuntary manslaughter. Arizpe's testimony suggests that Griffin's throat was cut while Arizpe was sitting, Griffin was kneeling, and the two men were facing one another. That testimony is inconsistent with Bevel's opinion that Griffin's blood loss began "very low to the floor and progressively be[came] higher and higher . . . ." Additionally, Bevel concluded that a part of Griffin's bloody body made direct contact with the floor of the encampment, and that this evidence indicates that Griffin may have been lying down at some point after the blood started to leave his body. Arizpe's theory in no way attempts to account for how these blood stains on the floor were made, given he testified that after Griffin's throat was cut, Griffin stood up and left the encampment.
Arizpe asserts that Bevel was "uncertain" about this opinion. Arizpe misconstrues Bevel's testimony. Bevel merely testified that he could not say with certainty that he knew precisely how the incident occurred; instead, he offered the jury "the best explanation" of what had transpired.
Furthermore, Dr. Ortiz opined that Griffin's throat was slit from behind. Although Dr. Ortiz acknowledged the "possibility" that Griffin's throat was not slit from behind, there is no reasonable probability that Arizpe's vague testimony would have persuaded the jury to agree with this "possibility." Arizpe's testimony indicates that Griffin's throat was cut as Griffin pushed away from Arizpe after Arizpe had placed the knife near Griffin's throat. Arizpe made no effort to explain how Griffin's movements would cause the blade to move from one side of his neck to the other, thereby creating a five-and-one-half-inch-long wound that was three-quarters of an inch deep, rather than a cut that was much shorter, shallower, and less dangerous to Griffin's life. Put differently, Arizpe's testimony lacked sufficient detail for the jury to reasonably infer that he somehow accidentally caused Griffin to suffer this fatal injury. Accordingly, Dr. Ortiz's theory remained the only plausible explanation for this wound.
Arizpe also relies on his testimony that he did not intend to kill Griffin. Even if there is a reasonable probability that the jury would have credited this testimony if it had been instructed on involuntary manslaughter, the jury still could have found that Arizpe committed second degree murder under an implied malice theory. (See Bohana, supra, 84 Cal.App.4th at p. 368 ["Second degree murder is the unlawful killing of a human being with malice aforethought, but without the premeditation, deliberation and willfulness necessary to elevate the offense to first degree murder. [Citation.] . . . Express malice murder requires an intent to kill. [Citation.] . . . ' "[With regard to implied malice murder,] it is not necessary to establish that the defendant intended that his act would result in the death of a human being[,]" ' " italics added]; Butler, supra, 187 Cal.App.4th at p. 1008 ["Implied malice murder requires a defendant's conscious disregard for life, meaning that the defendant subjectively appreciated the risk involved"].)
In sum, we conclude that the People's forensic evidence that Arizpe cut Griffin's throat from behind while Griffin was very low to the ground is "so relatively strong," and that the evidence upon which Arizpe relies for his freak accident theory is "so comparatively weak," that he has failed to establish a reasonable probability that an involuntary manslaughter instruction would have changed the outcome. (See Breverman, supra, 19 Cal.4th at p. 177.) We therefore affirm Arizpe's conviction for second degree murder. B. We Reject Arizpe's Due Process Claim as to the Imposition of the Restitution Fine, the Parole Revocation Restitution Fine, and the Assessments
Citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Arizpe argues that the trial court violated his due process rights by imposing the $30 criminal conviction assessment, the $40 court operations assessment, the $300 restitution fine, and the suspended $300 parole revocation restitution fine without first determining whether he was able to pay each of these costs. Although Arizpe acknowledges that his sentencing hearing was held months after Division Seven of this court issued the Dueñas decision, he insists that he did not forfeit this claim of error by failing to raise it below.
Specifically, Arizpe argues: "(1) [T]he trial court made a legal error at sentencing, not a discretionary error [that could trigger the forfeiture doctrine]; . . . (2) [notwithstanding the issuance of the Dueñas opinion,] it arguably would have been futile to have objected in the trial court given the uncertain state of the law at that time"; and (3) if Arizpe did forfeit this claim, "then trial counsel must have been [constitutionally] ineffective in his failure" to raise it below.
Assuming arguendo that Arizpe did not forfeit his due process challenge, we would nonetheless reject it on the merits. Our Division recently limited Dueñas's holding to its "peculiar" factual context, a context "that several appellate courts have described as 'extreme.' " (See People v. Caceres (2019) 39 Cal.App.5th 917, 926, 928-929 (Caceres).)
Indeed, in People v. Kingston (2019) 41 Cal.App.5th 272 (Kingston), another panel in our Division held that Dueñas was wrongly decided. (See Kingston, at p. 279.)
In Dueñas, an unemployed, homeless mother with cerebral palsy lost her driver's license when she was unable to pay over $1,000 in fees that had been imposed for three juvenile citations. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Thereafter, she received multiple convictions related to driving with a suspended license, each accompanied by jail time and additional fees that she could not afford to pay. (Id. at p. 1161.) Despite undisputed evidence that Dueñas was indigent, the trial court imposed a $30 criminal conviction assessment, a $40 court operations assessment, a $150 restitution fine, and a probation revocation restitution fine that the court stayed. (Id. at pp. 1161-1163.) The Court of Appeal reversed, holding that due process prohibited the trial court from imposing the assessments and required the court to stay the execution of the restitution fine "unless and until the People prove that Dueñas has the present ability to pay it." (See id. at pp. 1160, 1168-1169, 1171-1173.)
The Dueñas opinion refers to this $30 item as a "court facilities assessment." (See Dueñas, supra, 30 Cal.App.5th at p. 1163; Caceres, supra, 39 Cal.App.5th at pp. 920-921, & fn. 2 [noting that the terms "criminal conviction assessment" and " 'court facilities assessment' " are synonymous].)
The Dueñas opinion does not specify the amount of the probation revocation restitution fine. (See Dueñas, supra, 30 Cal.App.5th at p. 1162.)
In Caceres, we concluded that a defendant who had suffered a conviction for criminal threats could not invoke Dueñas's protections. (See Caceres, supra, 39 Cal.App.5th at pp. 920-921, 928-929.) We reasoned that Dueñas was inapplicable because criminal threats "is not a crime either 'driven by' poverty or likely to 'contribut[e] to' that poverty such that an offender is trapped in a 'cycle of repeated violations and escalating debt.' " (See id. at p. 928, quoting Dueñas, supra, 30 Cal.App.5th at p. 1164 & fn. 1.)
We make the same observation here. The evidence does not support an inference that Arizpe committed second degree murder because of his indigence, or that requiring him to pay the assessments and fines will trap him into a cycle of violent crime thereby incurring escalating debt. Furthermore, as we observed in Caceres, "to the extent [Arizpe] cannot pay the imposed costs and is subject to a civil judgment, . . . such a consequence [does not] violate[ ] due process." (See Caceres, supra, 39 Cal.App.5th at p. 929.) For all these reasons, we conclude the trial court did not err in failing to conduct an ability to pay hearing.
Although Dueñas did not involve a challenge to a parole revocation restitution fine, Arizpe seems to argue that the decision entitles him to an order requiring "that fine [to] remain suspended unless and until (1) [his] parole is revoked, and (2) the People demonstrate that he has the ability to pay it." We need not address this claim further because, for the reasons discussed in the textual paragraph accompanying this footnote, we conclude that Dueñas's holding does not apply to the instant case.
DISPOSITION
The judgment of conviction is affirmed in its entirety.
NOT TO BE PUBLISHED.
BENDIX, J. We concur:
CHANEY, Acting P. J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.