Opinion
B299458
03-08-2021
THE PEOPLE, Plaintiff and Respondent, v. MILTON CHAVEZ, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Roberta L. Davis, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA454712) APPEAL from a judgment of the Superior Court of Los Angeles County, Stephen Marcus, Judge. Affirmed. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Roberta L. Davis, Deputy Attorney General, for Plaintiff and Respondent.
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The jury found defendant and appellant Milton Chavez guilty of willful, deliberate, premeditated murder. (Pen. Code, § 187, subd. (a).) It found true the allegation that Chavez personally used a deadly and dangerous weapon. (§ 12022, subd. (b)(1).)
All further references are to the Penal Code unless otherwise indicated.
The trial court sentenced Chavez to 25 years to life for the murder and an additional year for the personal use of a weapon enhancement. The court also imposed various assessments and fines.
Chavez contends that the trial court erred by excluding evidence of third-party culpability, and by imposing certain assessments and fines without first making a determination that he was able to pay them.
We affirm the judgment.
FACTS
Prosecution
The Morning Before the Murder
David M. lived in a condominium at [xx]10 West Garvey Avenue in Alhambra. At approximately 6:55 a.m. on February 15, 2017, Chavez rang David M.'s doorbell. David M. had never seen Chavez in the complex before. Chavez pointed to the condo next to David M.'s, which belonged to Tom C., and asked to speak to Jose or Rafael. David M. told him that no one by those names lived there. Chavez asked who lived in another condominium in the complex. David M. responded that he did not know, and Chavez left. David M. noticed that Chavez was wearing a dark jacket.
For reasons of confidentiality, we do not use the full names of percipient witnesses, nor the portion of the addresses identifying the specific block where these events took place.
A few hours later, David M. went outside to sweep his walkway. Chavez was lying in the grass nearby. Tom C. opened his door, and David M. asked him to call 911. Tom C. called 911. Alhambra Police Officer Eduardo Cervantes arrived at 10:21 a.m. and saw Chavez, who matched the description given by Tom C., sleeping in the grass. David M. also identified Chavez. Officer Cervantes confirmed Chavez's identity, and patted Chavez down but did not find any weapons. Chavez did not appear to be under the influence of alcohol or drugs. The officer told Chavez to leave the premises. Officer Cervantes left the scene at 10:57 a.m. Afterward, David M. saw Chavez sitting on a stairwell between condominium units in a nearby complex at [xx]12 West Garvey Avenue.
The Murder
In February 2017, the 78-year-old victim lived with her daughter Connie N. in a condominium at [xx]26 West Garvey Avenue. The condominium had a front patio area with an unlocked gate. The victim's front door had a metal security door in front of it. The complex itself was not gated, but there was only one driveway, and the service road next to the other side of the complex was blocked by a fence.
The victim was five feet, one inch tall, and weighed 106 pounds.
The victim often took walks around the complex and visited with neighbors. She also liked to garden on her patio. She used shoelaces to tie plants to trellises in the garden.
Video recordings taken from security cameras stationed in the area depicted the victim walking on West Garvey Avenue holding a parasol at around 10:25 a.m. on February 15, 2017. Video showed the victim returning to the condominium complex at 11:52 a.m. At 12:00 p.m., she and Chavez passed one another, as Chavez walked toward the complex driveway.
The video does not depict Chavez entering or exiting the complex.
At about the same time, Connie N. was in her kitchen cooking. She used the exhaust fan and ran some water, and she did not hear any unusual noises from outside. She heard some patio furniture being moved, but it was not unusual for the victim to move furniture while she was gardening.
At approximately 12:30 p.m., Chavez knocked on Connie N.'s door. She unlocked the door and opened it. Chavez was standing outside, and the security screen door was open. The gate to the patio was also partially open. Chavez did not say anything. As Connie N. was about to ask how she could help him, Chavez pointed behind him, toward the ground. Connie N. looked but did not see anything. Chavez continued pointing.
Connie N. took a few steps outside, and saw the victim's feet. A patio bench, which was out of place, blocked Connie N.'s view of the rest of the victim's body. The victim was not wearing shoes, but her shoes were on the patio. She usually took her shoes off when she went inside. The patio was in disarray. The barbecue lid was on the ground, the barbeque cover had been ripped, a plant pot had been tipped over, there was potting soil scattered around, and the victim's parasol was damaged. The victim's dentures were also on the ground, about two feet from her feet.
The victim was unconscious. Connie N. talked to her, shook her, and patted her cheeks, but she remained unresponsive. Chavez went inside the condominium, slammed the front door, and locked the dead bolt. Connie N. banged on the door, and asked Chavez to open it repeatedly, but Chavez did not respond.
Connie N. went door-to-door looking for a neighbor to assist her. At the fourth condominium she tried, a man dialed 911 and handed his phone to her. Connie N. spoke to the 911 operator at 12:40 p.m. During the call, Connie N. returned to her condominium to check on the victim multiple times, but could not remain there because the phone lost reception. During one of the trips back to her condominium, Connie N. checked for the victim's pulse. When doing so, she noticed shoestrings tied in several knots around the victim's neck. She untied the strings and threw them aside, but the victim remained unconscious.
Police officers responded to Connie N.'s 911 call, but despite attempts to revive the victim, she was declared dead at the scene. Officers forced the front door open. Chavez was no longer inside. An officer was stationed at the garage door, which was open when the officers arrived, to insure that no one exited while the other officers entered the condominium through the front door. A garden tool was discovered inside the condominium on the landing of the staircase leading to the garage. The victim was the only one in the household who used the garden tool, which she always kept on the patio.
Police canvassed Connie N.'s complex and the neighboring condominium complexes at [xx]10, [xx]12, and [xx]18 West Garvey Avenue. No one had any helpful information, and there were no eyewitnesses to the murder.
Chavez's Arrest
Around 6:30 p.m., Everett M., who lived in an apartment complex at [xx]01 West Garvey Avenue, across the street from the victim's complex, found Chavez sleeping in Everett M.'s unlocked van. Everett M. did not know Chavez. Everett M. knocked on the driver's side window and woke Chavez. Chavez opened the door and said, "Oh, I'm tired and I work here." Everett M. knew Chavez did not work at the complex. He told Chavez to get out of the van. Chavez got out of the van and walked away. Everett M. called 911.
When police arrived, Everett M. pointed the officers in the direction Chavez had gone. The officers searched the area and found Chavez hiding in a small utility closet. Chavez had scratches on his arms. He did not appear to be under the influence of alcohol or drugs.
The officers arrested Chavez and searched him. They discovered a key on a keychain with a bell in Chavez's pocket. Everett M. and Connie N. both identified Chavez at the scene. Connie N. stated that Chavez was not wearing the jacket he had been wearing earlier. She identified the key recovered from Chavez's pocket as the victim's house key. Police verified that the key opened the metal security door to the victim's condominium. It was the victim's usual practice to bring the key with her and lock the front door when she left the house, but the key was not on her person when the police searched her clothing.
Cause of Death and DNA Evidence
The victim had numerous head and neck injuries, many consistent with ligature and manual strangulation, and/or blunt force trauma. The blunt force injuries were consistent with the victim either being struck on the head with a blunt object or striking her head on a blunt object such as the ground. The injuries were to different areas of the head, indicating they were caused by multiple strikes or an object that could injure separate areas of the head simultaneously. The victim also had a fresh scrape on the right side of her head, and fresh bruises from blunt force trauma on her right hand, right ankle, upper right arm, and outer left leg. Other than these injuries, the victim had been healthy for her age. The cause of the victim's death was asphyxia due to neck compression with blunt force trauma being a contributing condition. The blunt force trauma occurred before the neck compression.
DNA taken from the shoelaces that were used to asphyxiate the victim matched Chavez's DNA profile, as did DNA taken from the victim's fingernails. The victim's DNA profile matched DNA taken from Chavez's fingernails.
Defense
The parties stipulated that a detective showed Everett M. a photograph of Chavez prior to Everett M.'s identification of Chavez in the field show-up.
Experts testified that a person's DNA could have been transferred to the victim's body if that person spoke without wearing a mask while leaning over the victim. DNA also could have been transferred to the victim's neck if a person checked for her pulse. No blood was found on Chavez's or the victim's fingernails. Chavez's DNA could have been transferred to the victim's fingernails if Chavez touched or held the victim's hand.
Chavez testified that he was wearing a knee brace on the day of the murder, but he did not have any difficulty walking. He was not under the influence of alcohol or drugs. Chavez had recently become homeless. He worked part time delivering tables, chairs, and other party supplies, which required him to drive and lift things.
Chavez had previously done some air conditioning work at [xx]10 West Garvey Avenue, the complex where he was found sleeping. A man who lived in the complex, "Mardalon" or "Marlon," whose nickname was "Chapporo," offered Chavez more work, but at the time, Chavez was already working seven days a week. Chavez went to the area of Marlon's complex at about 10:00 p.m. on February 14. He walked around all night and did not sleep. The next morning, Chavez went to the complex to ask Marlon for work, even though he did not know which apartment Marlon lived in, and he did not have his phone number. Chavez knocked on four or five doors but did not find Marlon. He did not ask a resident about "Jose" or "Rafael." Chavez decided to wait for Marlon on the grass. He leaned against a tree and fell asleep.
Chavez was awakened by police officers, who told him to leave the area. Chavez asked if he could stay because he was looking for someone. The officers told him to avoid the condominium complex and keep walking "or do something" so residents did not call the police again about his loitering. After the officers left, Chavez went back to the complex to see if Marlon had returned while he was sleeping. He was unable to find Marlon, so he walked around as the officers had instructed, "looking for something to do."
Chavez walked to the victim's complex by taking the service road between her complex and Marlon's. He did not remember jumping over the fence that separated the complexes. Chavez initially testified that he did not knock on any doors in the complex until he knocked on Connie N.'s door. However, when questioned regarding the statement he made to the police on the day of his arrest, he said he knocked on many doors in the complex because he was "'desperate.'" Chavez initially testified that the first time he saw the victim was on her patio, but he then acknowledged the security video showed them passing each other while the victim was still on her walk. He claimed he said hello to the victim, but not in English. He denied turning around and following the victim, though he was on her patio five to ten minutes later.
As Chavez was walking around, he saw the victim dragging herself, face down, on the ground on her patio. As the victim dragged herself, she said something, but Chavez did not understand her because he did not speak English. The patio gate was half open, and Chavez went inside. He tried to pick the victim up by the shoulders several times, but she would not let him. He also knocked on the condominium door and window, looking for help. He could hear someone inside. He did not put the dirt on the patio or move the barbecue or bench. He moved items on top of the bench so he could knock on the window to summon help.
On the day of his arrest, Chavez told detectives he did not remember if the victim was face-up or face-down. He said she did not say anything, and was just shaking. He did not tell them she was dragging herself.
In his interview with police, Chavez repeatedly claimed he did not remember where he touched the victim.
After three to five minutes, Connie N. came to the door. Connie N. did not say anything, but Chavez noticed she was Chinese. He did not speak Chinese or English, so he simply gestured with his right arm toward the victim. Connie N. went toward the victim, and for one or two minutes tried to pick the victim up. Connie N. talked to the victim, but Chavez did not understand what she said. Connie N. started walking toward Chavez. She looked upset and angry. Chavez was worried that Connie N. was going to hit him. He tried to leave the patio through the gate, but Connie N. and the victim were blocking his way, so he went into the condominium. He locked the door so Connie N. would not get close to him. He was worried Connie N. would try to hit him, he would have to hold her down to calm her, and she would falsely claim he was trying to rape or rob her. He did not take a tool from the patio into the condominium.
Chavez told detectives he did not know why he went inside the condo. He did not tell them that Connie N. looked upset or like she might hit him, or that Connie N. and the victim were blocking his way.
Once he was locked inside the condominium, Chavez looked for a back door. He went down the stairs and found the door to the garage, opened it, and ran. He went some distance, then turned back to tell Connie N. that he had left the garage door open and she could get into her house that way. However, when he got close, he saw Connie N. on the phone, so he left. Instead of using the nearby open driveway that led to the West Garvey, Chavez went through the complex to the fence separating it from the service road. He did not remember jumping over the fence.
Chavez went back to [xx]10 West Garvey Avenue, where he saw a police car. He was concerned the police were there for him again, so he went across the street, leaving his jacket behind. For hours, he walked around, talked with a man in a workshop, and returned to the [xx]10 West Garvey Avenue complex to see if Marlon was there. He did not get into a van and fall asleep. Everett M. was mistaken when he identified Chavez as the person who was sleeping in his van. Around 4:00 or 5:00 p.m., he walked by the utility room of the [xx]10 West Garvey Avenue complex and felt the heat coming from it. It was cold outside, and because he had metal in his leg, he decided to go inside to warm up before leaving the area.
Chavez did not remember having the key the officers found when they searched him. The first time he saw it was when the officers showed it to him afterwards. He testified that it was possible that he took it from Connie N.'s house and forgot. When interviewed by police, he said he found a key on the ground near a wall when he "jumped the street," but he was referring to a different key. The detective said he was referring to the key found on Chavez when he was arrested, but he did not show the key to Chavez when he asked the question. The detective told Chavez the key was to the victim's door, and Chavez responded, "No." The detective said the police had checked, and the key in Chavez's pocket was for the victim's house. Chavez responded, "I am someone who keeps many things. I find a screw, I pick it up. I find a key. I've always had keys."
Chavez did not have injuries to his arms. When photographs were taken of him during booking, there was a mark on his arm from where he had been leaning his arm against his pants.
Chavez did not kill the victim. He did not hit her in the head as she was about to enter her condominium, throw her to the ground, or strangle her with shoelaces taken from her patio. He did not steal her house key from her. He did not knock on the door to determine whether anyone was home so he could go inside and steal items. He did not remember touching the shoelaces.
Rebuttal
On rebuttal, Detective Espino testified regarding his interview of Chavez on the day of the murder. Chavez did not appear to be under the influence of drugs or alcohol. Chavez told the detective that he found the key that was in his pocket by the wall near the freeway. Chavez remembered touching the victim, but he did not remember where, how, or how many times he touched her, and whether she was lying face up or face down when he found her. Initially, Chavez said that he went into the victim's condominium because he was scared, but later he said he did not know why he went in. Chavez admitted that he had opened the garage door, and that he fled the scene as fast as he could. Chavez appeared sleepy at the beginning of the interview, but as it continued he was very alert and answered all of Detective Espino's questions. He cried twice during questioning. Chavez said that Connie N. looked upset, but did not say she looked like she might hit him. He did not tell the detective that the victim crawled across the patio, that Connie N. and the victim were blocking his way, or that he went inside the condominium so that Connie N. would not come close to him.
DISCUSSION
Evidence of Third Party Culpability
Chavez first contends that the trial court's refusal to allow him to present evidence that a man in an orange shirt was in the area at the time of the murder and had the opportunity to commit the crime, and that neighbors had complained about disreputable people entering the condominium complex, weakened his defense and violated his statutory and constitutional rights. The contention is without merit.
Legal Principles
"'[T]o be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt, must link the third person either directly or circumstantially to the actual perpetration of the crime. In assessing an offer of proof relating to such evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendant's guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352. [Citations.]' [Citation.]" (People v. McWhorter (2009) 47 Cal.4th 318, 367-368 (McWhorter).) "'The evidence must meet minimum standards of relevance: "evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." [Citation.]' . . . [Citation.]" (Id. at p. 368.) Speculative evidence that is so weak as to be inadmissible in a trial of the third party, or so remote that it does nothing to raise a rational question of a third party's link to the charged offense if taken with other evidence, remains inadmissible. (People v. Gonzales (2012) 54 Cal.4th 1234, 1259-1261.) "'[Third party culpability] evidence is subject to exclusion under Evidence Code section 352. [Citation.]' [Citation.]" (McWhorter, supra, at p. 368.) We review the trial court's exclusion of evidence for abuse of discretion. (People v. Elliott (2012) 53 Cal.4th 535, 577, 581.)
Proceedings
Prior to trial, the prosecution sought to exclude evidence of third party culpability, which Chavez opposed. In a hearing on the matter, defense counsel represented that Chavez "stated to detectives that his attention was drawn to [the victim's] patio because he saw a gentleman in an orange shirt kind of around the area, and as he walked by, he saw the decedent through an open patio door. [¶] In December I received some body worn video from the prosecution that actually depicts an individual matching that description, who was a construction worker at the location wearing a bright orange shirt. Investigators saw him, asked him what he was doing there, but never took an F.I. card or interviewed him. . . . [¶] In addition, I have a surveillance video that shows the work truck driving up at a certain time, the red construction truck, that corroborates this individual was working in the area. And I think on the body worn video at about -- it was about 1:30, if I recall, 1:30 p.m., the decedent -- the phone call came into 9-1-1 at 12:42 p.m., just for context, but I think it was about 1:30 or 2:00, as they're canvassing for witnesses, the body worn video shows this gentleman sitting outside of another condo. [¶] So I think it's strong circumstantial evidence that corroborates [Chavez's] story, that he's just not making up that there was another person present in the vicinity."
The court responded that, under McWhorter, supra, 47 Cal.4th 318, the evidence had to "'meet minimal standards of relevance. Evidence of mere motive or opportunity . . . without more will not suffice to raise a reasonable doubt about a defendant's guilt. . . . There must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.'" The court stated that it would not prevent Chavez from testifying that he saw another person there, but had reservations about allowing defense counsel to argue that the other person committed the murder, based on a "mere sighting." The court stated that it would have to hear the evidence before ruling. The court noted that if there was evidence that another person was present and the police did not speak to him, defense counsel might be able to argue that the police investigation was insufficient. There were two possible bases for admission, and the court was not ready to make a definitive ruling prior to trial.
During cross-examination of Connie N., defense counsel asked if Connie N. was aware of any problem with transients in the condominium complex. Connie N. replied that she was not aware of any problems. Counsel also asked if the homeowner's association had ever made Connie N. aware that the gate along the service road "had issues with transients coming in and out." The prosecutor objected, and the court sustained the objection.
The court excused the jury, and then asked defense counsel how the evidence was relevant. Counsel responded, "Well, because that complex isn't as secured as the people are making it look. There are many ways in which people would have access in and out of there."
The court observed that the complex did not appear particularly secure—"you can just walk up"—but, regardless, there was no time period referenced, and no apparent connection to the crime. The court questioned Connie N. outside the presence of the jury. She testified that she had been told that the fence in front of the service road had been cut "probably within a year" of when her mother was killed.
The court again asked what the defense was trying to prove. Defense counsel stated that she wanted to show there was a history of trouble with transients. The court inquired whether there was any evidence that the killer was a transient, other than that Chavez himself was a transient. Defense counsel responded, "There's just shady characters, Your Honor, and the opportunity exists for these people to have access to [Connie N.'s] apartment."
Defense counsel argued that in the 9-1-1 call Tom C. (who called the police because Chavez was sleeping on the lawn) said, "Look, we've had this problem with people casing the location," and "There are motels across the way that attract transient population, and we've had problems." The court stated that Tom C. could testify outside the presence of the jury, and if he had anything relevant to say it would be admitted, but "I heard it on the street" information was not sufficient. The court ruled that Connie N.'s testimony on the matter was inadmissible because it was irrelevant and speculative.
Defense counsel subsequently attempted to elicit testimony from two detectives regarding reports of transients in the area, and calls for police service at the motels across the street from the condominium complex. The prosecution objected to both lines of questioning and the trial court excluded the testimony on relevance grounds.
On re-direct examination, defense counsel asked Chavez if he had seen anyone else at the victim's condominium complex. The prosecutor objected to the question as outside of the scope of examination. The court asked what relevance the testimony had, and defense counsel responded "[f]ailure to investigate logical witness."
The court stated that "it still goes back to the same issue. It's not enough to argue third party culpability. What is the point that he sees some person walking around? The only reason it would appear to me you want to get it in is to sort of claim that is the one who did it. What other purpose would there be for bringing in this evidence? [¶] I don't think there is a sufficient foundation under Hall, McWhorter, M-C-W-H-O-R-T-E-R. There is not a sufficient foundation to blame anybody else, especially just somebody walking around the complex."
People v. Hall (1986) 41 Cal.3d 826 (Hall).
McWhorter, supra, 47 Cal.4th 318.
Defense counsel responded, "I'm not looking to blame this guy." The court asked, "Then what is the relevance of it?"
Defense counsel said, "I'll move on."
During a recess, outside the presence of the jury, the court revisited the issue: "The presence that -- besides the fact that I don't believe it's relevant, it doesn't meet the requirements of Hall and the other cases on third party culpability, the other reason that I'm keeping it out for this case is I also think there are some [Evidence Code section] 352 aspects of it, that it would be confusing to the jury, they would tend to speculate about what that meant. And although I don't think it's time consuming to ask him whether he saw somebody in the orange vest, I do think that it's misleading and confusing to the jury. That is the other reason I'm keeping it out."
Analysis
Even assuming that Chavez's contention was preserved for appeal in total, we could not conclude that the trial court abused its discretion. The evidence would show that (1) another person who did not live in the area was present in the general vicinity of the victim's condominium on the day of the murder, and (2) on other occasions transients had cased other units in the condominium complex. Neither of these facts, if established, could raise a reasonable doubt concerning Chavez's guilt. The evidence shows no connection between the crime and the individual working at the complex on the day of the murder or between the crime and any of the transients who had been in the area at other times, and thus does not meet the minimum requirements for admissibility. (McWhorter, supra, 47 Cal.4th at p. 367 ["to be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt, must link the third person either directly or circumstantially to the actual perpetration of the crime"].)
The People argue that portions of his challenge were forfeited. However, we need not address forfeiture, because even if the claim was preserved for appeal, it lacks merit.
The circumstantial evidence of Chavez's guilt was overwhelming. Video footage depicted Chavez and the victim, who appeared to be healthy, walking past one another near the victim's condominium. Only five to ten minutes later, Connie N. came outside and discovered Chavez standing next to the victim, who lay unresponsive on the patio. The victim's dentures were lying on the ground and the patio was in disarray, as if a struggle had taken place. Shortly after Connie N. came outside, Chavez ran into the condominium and locked the door, both facilitating his own escape and hampering her efforts to summon help. Chavez was later found hiding in a utility closet with the victim's house keys in his pocket. He had a scratch running down his arm. DNA samples taken from the victim's fingernails and the shoelaces used to strangle her matched Chavez's DNA profile, and the DNA sample taken from his fingernails matched her DNA profile.
The evidence also tended to show that Chavez may have been motivated to rob the victim or gain access to her home for food or shelter. He was hungry and homeless, and had been discovered sleeping in a neighbor's van. Chavez had been canvassing the neighborhood knocking on condominium doors early that morning, purportedly searching for work, and had been loitering in the area all day. His behavior was consistent with someone casing the neighborhood to see whether there were residences that were unoccupied.
Given the strength of the evidence against Chavez and the fact that the proffered evidence was irrelevant and potentially confusing, we cannot conclude that the trial court abused its discretion by excluding it.
We reject Chavez's argument that the rule that third-party culpability evidence must be capable of supporting a reasonable doubt necessarily excludes some relevant evidence which does not reach that threshold, in violation of the state and federal constitutions. Chavez's understanding of the standard is incorrect. Our Supreme Court has specifically held that all relevant third-party culpability evidence is admissible: "[C]ourts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible ([Evid. Code,] § 350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion ([Evid. Code,] § 352)." (Hall, supra, 41 Cal.3d at p. 834.) As we have discussed, the evidence here was simply not relevant because Chavez did not demonstrate that there was a connection between another person and the murder; another person's presence alone is insufficient to establish relevance. (Id. at p. 833 ["evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime"].) Additionally, the evidence could have confused the jury, who might speculate as to why it would be presented, which rendered the evidence subject to exclusion under Evidence Code section 352.
Ability to Pay
At Chavez's sentencing hearing, the trial court imposed a $30 court facilities assessment (Gov. Code, § 70373), a $40 court operations assessment (§ 1465.8), and a $4,000 restitution fine (§ 1202.4, subd. (b)), and imposed and stayed a corresponding $4,000 parole revocation fine (§ 1202.45, subd. (a)).
Additionally, the court addressed the California Victim Compensation Board's request for direct restitution in the amount of $7,500 for funeral and burial expenses. Defense counsel conferred with Chavez off the record, and stated on the record that Chavez would stipulate to the amount of direct restitution requested. The prosecutor then stated that the victim's daughter would be seeking compensation for lost wages, in an amount to be determined at a later hearing.
Defense counsel did not dispute that the victim's daughter was entitled to compensation for lost wages, but commented that it would be difficult for Chavez to pay additional direct victim restitution: "[G]iven that my client is going to prison for 25 years, probably making ten cents an hour wherever he's going to be, it would be unlikely that he'd really be able to make a dent in this amount."
Counsel did not request a hearing or argue that Chavez lacked the ability to pay the other fines and fees.
Analysis
Chavez argues that the record does not support a reasonable inference that he had the ability to pay the $30 court facilities assessment (Gov. Code, § 70373), the $40 court operations assessment (§ 1465.8), or the $4,000 restitution fine (§ 1202.4, subd. (b)), at the time of sentencing or in the foreseeable future, and that, in the absence of such evidence, the imposition of the assessments and fines violated his rights under the Eighth and Fourteenth Amendments. Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which held that imposition and/or execution of certain assessments and/or fines absent a hearing to determine whether the defendant has the ability to pay them violates the Fourteenth Amendment, and subsequent cases holding that the imposition of certain assessments and fines may violate the Eighth Amendment, Chavez asserts that the assessments and fine should be stricken unless and until the trial court holds an ability to pay hearing and finds that he has the present ability to pay. Chavez recognizes that his sentencing hearing, held on July 11, 2019, took place many months after Dueñas was decided on January 8, 2019, such that his failure to object to the assessments and fine in the trial court forfeits the issue on appeal. He argues instead that he was prejudiced by counsel's failure to raise the issue.
See People v. Cowan (2020) 47 Cal.App.5th 32, 42-43 (Cowan), review granted June 17, 2020, S261952 [fines, fees, and assessments must be challenged under the Eighth Amendment]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069-1071 (Aviles) [same]; People v. Kopp (2019) 38 Cal.App.5th 47, 96-97 (Kopp), review granted Nov. 13, 2019, S257844 [analyzing imposition of restitution fine under the Eighth Amendment].
We decline Chavez's invitation to consider the claim on the merits at our own discretion. Moreover, we reject Chavez's conclusory arguments—that forfeiture should be excused on the basis that (1) imposition of the assessments and fine amounts to an unauthorized sentence; (2) the court did not understand that it could exercise its discretion with respect to the issue; and (3) he suffered a deprivation of fundamental constitutional rights—which are devoid of analysis. (See People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4 [argument forfeited on appeal if not supported by analysis and authority].) --------
"To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel's performance fell below a standard of reasonable competence, and that prejudice resulted." (People v. Anderson (2001) 25 Cal.4th 543, 569.) A defendant is prejudiced by counsel's representation if there is a reasonable probability that the outcome would have been more favorable to the defendant but for counsel's failings. (Strickland v. Washington (1984) 466 U.S. 668, 694.) On direct appeal, reviewing courts "'will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.' [Citation.]" (People v. Zapien (1993) 4 Cal.4th 929, 980.) "[T]he reviewing court defers to '"'counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance."' [Citation.]"' [Citation.] . . . [T]o the extent the record is silent as to defense counsel's reasons for his actions or inaction, a claim of ineffective assistance must be rejected. We may reverse on grounds of ineffective assistance of counsel only if the record affirmatively discloses no rational purpose for counsel's act or omission. [Citation.] Where the record contains no explanation for the challenged representation, we will reject an ineffective assistance claim unless counsel was asked to explain his performance and failed to provide an explanation, or unless there simply could be no satisfactory explanation." (People v. King (2010) 183 Cal.App.4th 1281, 1299.)
Here, the record contains no explanation for counsel's inaction. It is possible that counsel did not request an ability to pay hearing because there was no basis for doing so. Chavez testified at trial that he was able to work and had been working, and his sentence of 25 years to life affords him ample time to earn wages while imprisoned. This is reason enough to reject Chavez's contention—we will not conclude counsel's representation was deficient when a rational tactical purpose for her decision exists.
We cannot conclude on this record that counsel's representation was deficient.
DISPOSITION
The trial court's judgment is affirmed.
MOOR, J.
We concur:
RUBIN, P. J.
KIM, J.