Opinion
A160672
03-30-2022
THE PEOPLE, Plaintiff and Respondent, v. BRANDON DARVILLE COCHRAN, Defendant and Appellant.
NOT TO BE PUBLISHED
(Solano County Super. Ct. No. VCR230598)
BROWN, J.
Brandon Darville Cochran appeals after a jury convicted him of voluntary manslaughter and found he personally used a firearm in the fatal shooting of Reginald J. Cochran has also filed a habeas corpus petition alleging ineffective assistance of counsel at his trial. Because the appeal and habeas petition involve related issues, we ordered that we would consider them together. Cochran argues (1) the trial court erred by excluding some evidence of Reginald J.'s violent character and his counsel provided ineffective assistance by not presenting the evidence of Reginald J.'s violent character the trial court did allow; (2) the prosecutor committed misconduct by arguing in closing that Cochran had not submitted any evidence beyond his own testimony that Reginald J. had a violent character and Cochran's counsel was ineffective for failing to object to this argument; (3) the trial court abused its discretion by imposing the upper term for the gun use enhancement; and (4) the court violated Cochran's due process rights by imposing fines and ordering restitution without a finding of Cochran's ability to pay. We find no merit in Cochran's arguments that the trial court erred. However, we conclude that the matter must be remanded for resentencing because of a recent change in sentencing law that applies retroactively to non-final cases like Cochran's. We will therefore reverse the judgment and remand for resentencing.
We refer to the victim and witnesses by their initials or first name and last initial out of respect for their privacy. (Cal. Rules of Court, rule 8.90(b)(4), (b)(10); Advisory Com. com., Cal. Rules of Court, rule 8.90.)
We will deny the habeas petition by a separate order.
BACKGROUND
D.J. was married to Reginald J., and they lived with their four children in Vallejo. D.J. and Reginald J. lived three houses down from L.L., who lived at the house of her mother, Michelle J., with her brother and her two children. Cochran, who was the father of one of L.L.'s children, stayed with L.L. at Michelle J.'s occasionally. One of D.J.'s and Reginald J.'s children attended school with one of L.L.'s children.
In early October 2017, Reginald J. was 49 years old, and L.L. and Cochran were about 27 years old. One day, Reginald J.'s and D.J.'s youngest child told them that L.L. had scolded him for calling one of L.L.'s children a name. L.L., for her part, recalled that a teacher had scolded the child for the name-calling. L.L. also told the teacher and someone in the school office that she was scared of D.J. because of an earlier incident.
D.J. thought L.L. should have come to her rather than speaking to D.J.'s child about the name-calling. D.J. believed she had to deal with the issue "woman to woman," so she walked down to speak to L.L., with Reginald J. behind her. Michelle J. told D.J. through a metal security screen at the front door to her house that L.L. was not at home.
Michelle J. recalled this aspect of the incident slightly differently. She testified at trial that Reginald J. approached first and said he wanted to talk about L.L.'s children and then D.J. came up behind. D.J. beat on the metal security screen door, damaging it, and threatened Michelle J. and L.L. Reginald J. did not say much during this incident and was a little more calm, while D.J. was upset.
L.L. was working an overnight shift as a caregiver at a care home that night. Michelle J. called L.L. in tears and told her about the interaction with D.J. and Reginald J. L.L. then called Cochran and asked him to go and stay with Michelle J. and calm down L.L.'s child.
The next morning, Cochran took the children to school. L.L. returned home later that morning. She saw that the security screen door was damaged. She then drove to the store with her brother, Michelle J., and Cochran. When they returned, they parked in the driveway at Michelle J.'s home. Reginald J. and D.J. saw L.L. and her family return home, so they went to talk to L.L. about the name-calling incident. D.J. wanted to speak first, so she walked up to the low fence surrounding Michelle J.'s house to talk about the kids' behavior.
At trial, the participants had different memories of what happened next. According to D.J., when she asked why L.L. hadn't come to her to discuss the name-calling, L.L. claimed Cochran had been the one who scolded Reginald J.'s and D.J.'s child. Cochran then drove up and denied speaking to Reginald J.'s and D.J.'s child. Cochran told D.J. to back up and pushed her, at which point Reginald J. began shoving and wrestling with Cochran, telling him, "Get your hand - don't touch my woman." Reginald J. and Cochran were moving around the front yard behind the low fence, taking fighting stances but not throwing punches, with Reginald J. following Cochran. D.J. then saw L.L. come outside the house onto the front porch with a baseball bat.
D.J. called to Reginald J. to leave, and the two began walking down the sidewalk back home, with D.J. slightly ahead of Reginald J. L.L. told Cochran, "No, Brandon. Don't." D.J. turned and saw Cochran walk around the back of his car, which was parked in front of Michelle J.'s house but pointed in the direction of Reginald J.'s and D.J.'s house, and go to the driver's door. D.J. continued walking away and heard Reginald J. tell Cochran, "Young nigga, you pull it, you better use it." She turned around again, saw a gun in Cochran's hand, heard a pop, and saw smoke. Reginald J. at the time was facing down the street towards Reginald J.'s and D.J.'s house, but he had turned his head left towards Cochran. After Reginald J. fell, Cochran pointed the gun at D.J. and then got in his car and drove off.
One of Michelle J.'s neighbors, Bernice H., partially corroborated D.J.'s account. She overheard arguing coming from Michelle J.'s house, so she went outside. She saw Reginald J. and D.J. in Michelle J.'s front yard, near some bushes at the front porch. She also saw Cochran in the yard, going in every direction, trying to get away from Reginald J. and D.J. while they followed him. Bernice H. did not see any punches or anyone grabbing anyone else.
Cochran left the yard for the sidewalk, and Reginald J. and D.J. followed him there. Cochran walked behind his car, which was parked near Bernice H.'s house and further away from Reginald J.'s and D.J.'s house, while they headed toward their house. Cochran got a gun out of his car with his right hand and walked around towards the back of his car, which was partially blocking the driveway. Cochran pointed the gun at Reginald J. with his right hand and pulled the slide back on it. Reginald J. turned around to face Cochran, but Bernice H. did not hear Cochran or Reginald J. say anything to one another. Reginald J. then turned back, and Cochran shot Reginald J. once in the back as Reginald J. was walking away. Bernice H. ran inside her house, and when she came back outside, Cochran was gone. When the police questioned her, Bernice H. initially lied and said she was inside when the gun went off, because she did not want to get involved in the case or with Reginald J.'s family or people on the street.
Cochran, L.L., and Michelle J. remembered the incident differently. L.L. testified that Cochran's car was further down the street, a few feet closer to Reginald J.'s and D.J.'s house, so it was not blocking the driveway. She said that after she, her mother, her brother, and Cochran got out of the car upon returning from the store, D.J. came up, calling L.L. names and saying she wanted to beat L.L. because of an earlier incident in which L.L.'s child told a joke about D.J. being fat. D.J. sprinted in the gate towards L.L. and Michelle J., who were walking from the car to the front door. Reginald J. was following D.J. Cochran stepped in front of D.J. to prevent D.J. from getting to L.L. and Michelle J. while they went in the door. D.J. squared up with Cochran like she wanted to fight him.
Cochran and Reginald J. then moved around in the yard, with Reginald J. hitting Cochran but Cochran not throwing any punches. L.L. went inside and got the bat to defend herself, while Michelle J. had some mace. L.L. was scared. She saw Reginald J. put Cochran in a headlock. She also saw Reginald J. following behind Cochran to the car, with Cochran going around the back of the car and Reginald J. going in front of the car, closer to his house. While L.L. was focused on D.J., who was still in the front yard, she heard a pop. Reginald J. at the time was on the sidewalk but coming off the curb around the front of the car to chase Cochran. D.J. pulled L.L. towards Reginald J., asking her to administer CPR. L.L. delivered chest compressions to Reginald J. L.L. then called 911.
When the police first questioned L.L. in her living room, she lied and said that Reginald J. had been shot in a drive-by shooting. L.L. lied to protect Cochran. An hour later at the police station, however, L.L. admitted that Cochran had shot Reginald J. At trial, L.L. denied seeing Cochran get the gun out of his car, but she admitted telling the police earlier that she had seen that. She initially remembered yelling, "No," after Reginald J. fell from being shot, but after reviewing a transcript of her police interview, she said she might also have yelled it when Cochran went to the car and got the gun. She knew at the time that Cochran kept a gun in the car.
Michelle J.'s memory was similar to L.L.'s, except that she heard Reginald J. say to Cochran something like, "Man, did you hit my wife?" and Cochran respond, "No, man. I didn't touch your wife." She also saw at one point that Reginald J. had Cochran in a headlock. Like L.L., Michelle J. remembered that D.J. was in the front yard when she heard the shot, but she did not see Cochran shoot the gun. Michelle J. heard L.L. say in her living room that Reginald J. had been shot by someone in a drive-by, so Michelle J. repeated the same story. Michelle J. lied because she was scared of Reginald J.'s and D.J.'s bad reputation, and because she wanted to protect Cochran.
Michelle J. denied seeing Cochran get a gun from the car or hearing him say when pointing the gun at Reginald J. and D.J., "Man, I ain't messing with y'all. Back up off me," and then, "I got something for you." Michelle J. did not recall telling the police that she had heard those statements, either, even when confronted with a transcript of her police interview.
The prosecution later played recordings of Michelle J.'s interviews with the police and read aloud portions of transcripts of L.L.'s interview. The prosecution also called a police officer who testified that he interviewed L.L. and Michelle J. separately, not together in Michelle J.'s living room. That police officer denied seeing any damage to Michelle J.'s front door.
Cochran's version of events was slightly different. Cochran knew that Reginald J. had a bad reputation for violence and used drugs or sold them. Cochran also recalled an earlier incident in which Cochran and L.L. were driving to the store. D.J. and Reginald J. had followed them and parked next to them. Cochran was waiting in the car while L.L. was in the store, and Reginald J. stayed in the car next to Cochran's making faces and "mean-mugging" to intimidate Cochran.
The night before the killing, Cochran stayed at Michelle J.'s because L.L. had told him that Reginald J. had threatened to kill the family. After Cochran, L.L., and Michelle J. returned from the store the next morning, D.J. came charging into the driveway area. Cochran is left-handed, and he put up his left hand as if to say, "Hold on. Whoa." D.J. ran into his hand. D.J. then started swinging at Cochran.
Reginald J. said, "That's my woman you touching, nigga," and both Reginald J. and D.J. started swinging at him. Reginald J. hit Cochran, and Cochran kept backing up, eventually ending up in the middle of the yard. Reginald J. hit Cochran again and held him in a bear hug. Cochran escaped the hold, and Reginald J. put him in a headlock. Cochran escaped again, and Reginald J. hit him on the nose. Cochran continued to back up. He ran to the back of his car and then up to the driver's door, which he opened. Cochran said he opened the door perhaps so he could drive away. But Cochran did not get his gun out of the car, because he had the gun in his left pocket the whole morning. He had brought the gun to Michelle J.'s because L.L. had told him over the phone that Reginald J. threatened to kill the family. Cochran denied keeping the gun in his car.
As Cochran recalled, Reginald J. was standing in the street in front of Cochran's car when Reginald J. reached with his left hand to his right side, like he had something at the waistband of his sweatpants. At the same time, Reginald J. said, "I got something for you little nigga." Cochran then pulled out his gun and racked it to chamber a cartridge and send a message to Reginald J. Reginald J. said, "Little nigga, if you pull it, you better use it," still with his hand on his side. When Reginald J. advanced on Cochran, Cochran backed up and fired once. Cochran believed Reginald J. was acting like he was about to pull out a weapon, and Cochran was afraid Reginald J. was going to hurt him. Cochran was not afraid of Reginald J. hitting him more, because Cochran had played street football and been hit before.
After shooting Reginald J., Cochran got in his car and drove to Emeryville. He fled because he was afraid, given Reginald J.'s reputation, that people Reginald J. knew in the neighborhood might shoot him. Cochran also didn't want to get shot by the police. On the way, he threw his gun off the Carquinez Bridge. Cochran got rid of the gun because he knew he had done something wrong. He left his car in Emeryville and took a bus from Oakland to Mississippi, but two months later, Cochran returned and surrendered himself to the police.
Cochran was charged with murder with an enhancement under Penal Code section 12022.53, subdivisions (b)-(d) for discharging and using a firearm. The jury was instructed on first degree murder, second degree murder, and voluntary manslaughter based on heat of passion and imperfect self-defense, as well as perfect self-defense. The court further instructed the jury on the elements of the gun use enhancement under Penal Code section 12022.53, subdivisions (b)-(d), which also covered the elements of a lesser included enhancement under Penal Code section 12022.5, subdivision (a) that would apply if the jury found Cochran guilty of manslaughter. The jury acquitted Cochran of first degree and second degree murder and convicted him of voluntary manslaughter. The jury also found that Cochran discharged a firearm that caused death and great bodily injury.
At the sentencing, the court found the aggravating factors for the manslaughter conviction balanced out with the mitigating factors, in particular Cochran's lack of a criminal record, and sentenced Cochran to the middle term of six years in prison. The court declined to strike the gun-use enhancement and imposed the upper term of 10 years on that enhancement. The court also imposed a $5,000 restitution fine, a $5,000 parole revocation fee that would be stayed pending his successful completion of parole, and $4,685 in restitution to the Victim Compensation Board.
DISCUSSION
I. Evidence of Reginald J.'s violent character
A. Additional background
Cochran's first argument in his appeal and habeas petition concerns evidence of Reginald J.'s record of arrests and convictions for various violent crimes. This record consists of a 2009 arrest for misdemeanor spousal battery; one charge and three arrests in 2007-2008 for domestic violence against D.J.; one arrest in 1994 for domestic violence and a charge for battery; charges in 1989 for sodomy and two counts of rape and a conviction of rape with threat to kidnap or cause injury; and a 1985 conviction of battery with serious bodily injury and false imprisonment. Cochran moved in limine to admit evidence about these incidents as evidence of Reginald J.'s violent character and propensity to commit violence against Cochran.
The prosecution opposed the request under Evidence Codesection 352 because the arrests and convictions were remote in time and because Reginald J.'s domestic violence was different than his alleged actions against Cochran.
Undesignated statutory references are to the Evidence Code.
The trial court remarked that only incidents that Cochran knew about could support his claim of self-defense and that claims of domestic violence were not evidence that Reginald J. acted in conformity with his violent character with respect to Cochran. After reviewing each of the listed incidents, the court also appeared to exclude them under section 352 as dissimilar, remote in time, or both. The trial court nonetheless granted Cochran's attorney's request to cross-examine D.J. about whether Reginald J. was violent with her. However, the court deferred consideration of exactly how detailed Cochran's attorney could be in using the evidence of Reginald J.'s record in his cross-examination.
Despite the trial court's ruling, Cochran's attorney did not cross-examine D.J. at all about Reginald J.'s domestic violence against her. The trial court remarked on this when the parties were discussing jury instructions. Cochran's attorney explained to the court, "Because he had beaten her so many times I just didn't think it was appropriate." But attached to Cochran's habeas petition is a declaration by Cochran's attorney in which he states that his failure to examine D.J. about the incidents was an oversight and not the result of a tactical decision.
B. Admissibility of evidence
Cochran now argues the evidence of Reginald J.'s criminal record was admissible as character evidence under section 1103. He contends the trial court erred by limiting his counsel to cross-examining D.J. about the assaults upon her, thereby excluding evidence of the other incidents in Reginald J.'s record. He further contends his counsel was inadequate for failing to question D.J. about Reginald J.'s assaults on her.
Cochran does not argue the trial court erred by preventing him from introducing the records of Reginald J.'s offenses against D.J. and limiting him to cross-examining D.J. about them.
"Evidence Code section 1101, subdivision (a) provides that 'evidence of a person's character or a trait of his or her character . . . is inadmissible when offered to prove his or her conduct on a specified occasion.' Evidence Code section 1103, subdivision (a)(1) provides an exception to Evidence Code section 1101, subdivision (a) when a defendant offers evidence regarding the character or trait of a victim 'to prove conduct of the victim in conformity with the character or trait of character.'" (People v. Gutierrez (2009) 45 Cal.4th 789, 827.) Evidence that is admissible under section 1103 is still subject to exclusion under section 352 "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352; Gutierrez, at pp. 827-828.) We review the trial court's application of section 352 and exclusion of evidence for abuse of discretion. (People v. Scott (2011) 52 Cal.4th 452, 491.)
Cochran's admissibility argument initially focuses on section 1103, and he argues the trial court erred when it stated that only evidence of Reginald J.'s violence of which Cochran was aware was relevant. We tend to agree with Cochran that the trial court was incorrect on this point, though some authority may be to the contrary. (People v. DelRio (2020) 54 Cal.App.5th 47, 55 (DelRio) [" 'If this [violent] character was known to the defendant, the evidence tends to show the defendant's apprehension of danger; if it was not known, the evidence nevertheless tends to show that the victim was probably the aggressor' "]; but see People v. Bates (2019) 35 Cal.App.5th 1, 9- 10 ["Evidence that a victim had previously threatened or harmed others is relevant to a defendant's claim of self-defense only if the defendant knew of the victim's prior threatening conduct"].) We need not delve into this issue, however, because as Cochran recognizes, the trial court ultimately allowed his attorney to cross-examine D.J. about Reginald J.'s assaults on her, indicating the trial court did not exclude evidence of Reginald J.'s character only on this basis.
The trial court also excluded the evidence of Reginald J.'s incidents predating his domestic violence against D.J. under section 352. Those incidents were his 1994 arrest for domestic violence and charge for battery; his 1989 charges for sodomy and two counts of rape and conviction for rape with threat to kidnap or cause injury; and his 1985 conviction for battery with serious bodily injury and false imprisonment. Cochran contends the jury would have found it important to hear that Reginald J. had a long, unbroken history of violent conduct stretching back decades. He argues this record was powerful evidence that Reginald J. was a violent, aggressive person.
Cochran does not argue the evidence would have helped prove Reginald J. actually was reaching for a gun, likely because no gun was found on Reginald J.'s body after his death. Thus, the evidence could only have been helpful in supporting Cochran's claim that he had a reasonable but ultimately mistaken fear that Reginald J. was reaching for a gun. The evidence might have supported that position, as in DelRio, supra, 54 Cal.App.5th at pages 56-57, by showing Reginald J. was acting in accordance with a propensity for violence and his actions in turn gave Cochran a fear that Reginald J. would go even further and use lethal force.
But unlike DelRio, where there were no witnesses to the shooting (DelRio, supra, 54 Cal.App.5th at pp. 56-57), here the evidence would have been largely cumulative on the question of Reginald J.'s aggression because of the numerous eyewitnesses to his altercation with Cochran. Those witnesses uniformly agreed that Reginald J. was the aggressor and pursued Cochran into and around the front yard. Cochran, L.L., and Michelle J. testified to this. D.J. admitted that the two were tussling and moving around the yard in their shoving match, with Reginald J. following Cochran. The witness the prosecution described in closing argument as the most important, Bernice H., was unequivocal about Reginald J. pursuing Cochran. Bernice H. said Cochran was "[t]rying to get away from Reginald J. and his wife," and that he "was going in every direction, just trying to get away. Away. You know what I'm saying? Everywhere he went, they, like, were trying to follow." Bernice H. also said that Reginald J. and D.J. followed Cochran to the sidewalk from the yard. Whatever power the excluded evidence had to corroborate Cochran's testimony that Reginald J. had a bad reputation for violence and establish Reginald J.'s propensity to be the aggressor so as to indirectly support Cochran's claim of reasonable fear, it paled in comparison with the undisputed testimony about how Reginald J. had already acted that very day.
There was a small factual dispute about whether Reginald J. had punched Cochran or put him in a headlock. Bernice H. did not see any punches, although she was inside when the confrontation began. D.J. testified that neither Reginald J. nor Cochran threw any punches. But Cochran, Michelle J., and L.L. testified that Reginald J. hit Cochran and put him in a headlock. Evidence of Reginald J.'s history might have supported Cochran's side of the story on this point. But that still would not have helped Cochran much. Cochran did not claim to be afraid of death or great bodily injury from Reginald J.'s headlock or punches. To the contrary, Cochran said he had been hit before playing sports and it was not a big deal. Thus, the excluded evidence would have offered little support for Cochran's ultimate self-defense claim that he reasonably believed in the need to use deadly force. (People v. Hardin (2000) 85 Cal.App.4th 625, 629- 630 [" 'deadly force or force likely to cause great bodily injury may be used only to repel an attack which is in itself deadly or likely to cause great bodily injury' "].)
The key assertion underlying Cochran's self-defense theory was his claim that Reginald J. was reaching for a weapon at his waist and said to him, "I got something for you little nigga," which prompted Cochran to pull out his own gun. Thus, the evidence would have been much more helpful if it could have shown Reginald J. had a propensity not just for aggression or assault, but for the use of lethal force. In contrast to Cochran, however, D.J. and Bernice H. both claimed Reginald J. was walking away, and they did not hear Reginald J. make the "I got something for you" remark to Cochran. Michelle J. apparently told the police Cochran had said a version of the remark to Reginald J., not the other way around. Accordingly, Reginald J.'s arrests and convictions from 1985 to 1994 had little probative power to sway the jury on the key aspect of Cochran's self-defense claim. Reginald J.'s offenses were violent to be sure, but none of them was similar to Cochran's description of Reginald J.'s actions. And there is no evidence that any of the offenses in Reginald J.'s record (including Reginald J.'s assaults on D.J.) involved firearms. Nor is there any indication that Reginald J. had used any other kind of lethal force in his prior incidents.Given Reginald J.'s record, the absence of any incidents involving firearms or other lethal force is noteworthy and undercuts the power of the character evidence for Cochran's defense.
His 1989 conviction for rape by threat of retaliation comes closest, since the threat of retaliation involved could have been a threat to inflict extreme pain, great bodily injury, or death. (Former Pen. Code, § 261, subd. (6).) However, the threat could also have been a threat to kidnap or falsely imprison, and neither of those acts necessarily involves force likely to cause death or great bodily injury. (See Pen. Code, former §§ 207 [defining kidnapping], 236 [defining false imprisonment], former 237 [specifying punishment for false imprisonment when it is "effected by violence, menace, fraud or deceit"].) Cochran has not pointed to any evidence that establishes how Reginald J. violated former Penal Code section 261, subdivision (6).
Cochran contends that there is no requirement under section 1103 that a victim's prior violent acts be identical or similar to the circumstances of the case at trial. This is true, but the similarity of Reginald J.'s prior acts to his conduct at issue is assuredly relevant to assessing the probative value of those acts under section 352. (People v. Harris (1998) 60 Cal.App.4th 727, 740 (Harris).)
Besides its dissimilarity, the excluded evidence of Reginald J.'s character was also stale. (Harris, supra, 60 Cal.App.4th at p. 739 [" 'Remoteness' or 'staleness' of prior conduct is an appropriate factor to consider in a section 352 analysis"].) The most recent incident the trial court excluded was the domestic violence arrest in 1994, more than 20 years earlier. The more serious incidents, the rape and sodomy arrests and convictions in 1985 and 1989, were even older, going back approximately 30 years before Reginald J.'s interactions with Cochran in 2017. Cochran argues the age of the evidence is not significant given that it, together with evidence of the more recent assaults on D.J., shows that Reginald J.'s character had not changed over time. But the offenses in 1985 and 1989 were more serious than the domestic violence incidents that followed, suggesting Reginald J.'s behavior did change over time. Additionally, this argument ignores the fact that the record of violence ended in 2008, nine years before the events at issue in this case. Considering Reginald J. was almost 50 years old when Cochran killed him, the evidence of his behavior when he was a younger man, even if it had been consistent up to that point, was less probative of his actions in 2017.
This argument assumes that the jury would also have heard about the more recent assaults on D.J., to complete the picture of Reginald J.'s history. We will assume the same for the purposes of this discussion, although we conclude, post, that Cochran's counsel reasonably chose not to introduce the evidence of Reginald J.'s domestic violence on D.J.
The trial court could reasonably decide that the low probative power of the excluded evidence because of its dissimilarity and age was substantially outweighed by the probability that its admission would unduly prejudice the jury against Reginald J. Evidence of Reginald J.'s prior offenses could sway the jury to believe his life was of lesser worth or that Cochran was justified in killing him to punish him for his prior bad acts. (People v. Foster (2010) 50 Cal.4th 1301, 1331 [evidence of uncharged offenses by a defendant is inherently prejudicial and therefore admissible only if it has substantial probative value because of risk that jury will punish defendant for his bad character or for prior bad acts]; People v. Wright (1985) 39 Cal.3d 576, 587 [evidence of prior bad acts by victim presents same risk of prejudice as evidence of prior offenses used against a defendant].) We perceive no abuse of discretion in the trial court's decision that the risk of this prejudice prevailed over the low probative value of Reginald J.'s actions decades earlier, even though the evidence would not likely have required much time. (§ 352; People v. Gonzales (1967) 66 Cal.2d 482, 499-500 [court properly excluded evidence of victim's reputation for violence seven years before incident]; Harris, supra, 60 Cal.App.4th at pp. 730, 739-741 [trial court improperly admitted evidence of defendant's violent rape 23 years earlier, even though it did not require much time, because it was too remote and dissimilar to charge of rape of women vulnerable because of their mental condition]; cf. DelRio, supra, 54 Cal.App.5th at pp. 54, 56-57 [trial court erred in excluding evidence of victim's domestic violence two or three years before his death].)
Cochran contends there is no bright line for when a prior act is too remote to be admissible and cites several child molestation cases that affirmed the admission of evidence of prior molestations by the defendant that occurred years or decades before the events at issue. We agree there is no bright line rule, but the evidence here was nonetheless stale. The cases Cochran cites are distinguishable because the evidence at issue in them was more similar to the charged acts and in one case was much closer in time. (People v. Ewoldt (1994) 7 Cal.4th 380, 404-405 [evidence of prior molestation that was strongly probative of a common design or plan, which occurred 12 years before trial but only "a few years" before charged act, was properly admitted]; People v. Branch (2001) 91 Cal.App.4th 274, 285 [evidence of "remarkably similar" acts of molestation over 30 years earlier balanced out the remoteness of the incidents]; People v. Waples (2000) 79 Cal.App.4th 1389, 1392-1393, 1395 [remoteness of evidence of molestation 20 years prior was balanced out by similarities of the conduct].)
Moreover, a trial court's discretion when evaluating evidence under section 352 is broad. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) Another trial court might reasonably have chosen to admit the evidence and sanitized it in some fashion to limit its prejudice. (See People v. Wright, supra, 39 Cal.3d at pp. 584-585 ["' "[W]henever the evidence proposed by the defense is not plainly inadmissible, it is better to let it go in"' ";" 'trial judges in criminal cases should give a defendant the benefit of any reasonable doubt when passing on the admissibility of evidence as well as in determining its weight' "]; Law Rev. Comm. com. to § 1102 ["[E]vidence of the character of the defendant or the victim-though weak-may be enough to raise a reasonable doubt in the mind of the trier of fact concerning the defendant's guilt. And, since his life or liberty is at stake, the defendant should not be deprived of the right to introduce evidence even of such slight probative value"].) DelRio, supra, 54 Cal.App.5th at pages 54 and 56-57, would support such an approach, although the facts of that case were different in that there were no other witnesses to the shooting and the excluded domestic violence convictions were more recent and involved the victim's ownership of a firearm. But that does not mean the trial court abused its discretion in excluding the evidence in this case. (People v. Cordova (2015) 62 Cal.4th 104, 134 (" '[A] finding of no abuse of discretion in one court's exclusion of evidence has no bearing on whether a different court abused its discretion in admitting evidence in a different trial' "].)
C. Ineffective assistance of counsel
Cochran's argument that his counsel's failure to examine D.J. about Reginald J.'s domestic violence constituted ineffective assistance of counsel fails for similar reasons." 'An ineffective assistance claim has two components: A petitioner must show that counsel's performance was deficient, and that the deficiency prejudiced the defense.' [Citations.] Whether counsel's performance was deficient, and whether any deficiency prejudiced defendant, are mixed questions of law and fact subject to our independent review." (In re Gay (2020) 8 Cal.5th 1059, 1073.)" 'To establish deficient performance, a petitioner must demonstrate that counsel's representation "fell below an objective standard of reasonableness." '" (In re Welch (2015) 61 Cal.4th 489, 514.) "Judicial review of counsel's performance is deferential; to establish deficient performance, the defendant 'must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." '" (Gay, at p. 1073.)"' "[B]efore counsel undertakes to act, or not to act, counsel must make a rational and informed decision on strategy and tactics founded upon adequate investigation and preparation."' [Citation.] '[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable . . . . '" (Id. at p. 1076.)
Cochran counsel's investigated Reginald J.'s background and discovered the relevant evidence, and Cochran does not contend the investigation was inadequate. Rather, he argues that his counsel failed to present the evidence because of an oversight and his counsel's representation thus fell below prevailing professional norms. Cochran's claim that his counsel simply overlooked the evidence of Reginald J.'s assaults on D.J. and did not omit the evidence for a tactical reason rests on a declaration to that effect attached to Cochran's habeas petition.
We have difficulty crediting the declaration by Cochran's counsel. During the trial, Cochran's counsel explained to the trial court that he did not think it was appropriate to ask D.J. about Reginald J.'s assaults "[b]ecause [Reginald J.] had beaten her so many times." The court characterized this explanation as a tactical choice, and Cochran's counsel did not disagree. This suggests Cochran's counsel refrained from asking D.J. about Reginald J.'s domestic violence because he worried about sparking sympathy for D.J. in the jury. Neither Cochran's briefing nor his trial counsel's declaration address this contemporaneous explanation or show why his counsel's decision should now be considered an oversight.
Cochran's counsel was otherwise effective throughout the trial, so it is doubtful that he simply forgot to introduce the evidence he had moved in limine to protect. It is more likely that his counsel decided, quite reasonably, that because D.J. was one of the two key witnesses against Cochran and the domestic violence evidence was not very recent or particularly helpful on the question of whether Cochran feared Reginald J. was about to use lethal force, given the other testimony about Reginald J. being the aggressor earlier in the encounter, the risk of inspiring sympathy for D.J. outweighed the benefit of the evidence.
Even if Cochran's counsel did merely forget, or if his reason for choosing not to ask D.J. about Reginald J.'s domestic violence was unreasonable, we cannot vacate Cochran's conviction for ineffective assistance of counsel unless Cochran proves prejudice. (In re Gay, supra, 8 Cal.5th at p. 1073.) This requires Cochran to "demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" (Id. at p. 1086.)" '[T]he ultimate focus . . . must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.'" (Ibid.)
Cochran has not established prejudice here. As with the evidence of Reginald J.'s earlier offenses, the evidence of Reginald J.'s assaults on D.J. was, at best, helpful in establishing that Reginald J. was the aggressor in the altercation with Cochran or that Reginald J. hit Cochran or put him in a headlock, to prove that Cochran reasonably feared Reginald J. was reaching for a gun. But the evidence on these points already favored Cochran, and this form of proof was ultimately of limited value in establishing Cochran reasonably resorted to lethal force to protect himself against Reginald J.
Cochran argues the omission of the evidence allowed the prosecutor to argue to the jury that Reginald J. was a calm man and that there was no evidence apart from Cochran's testimony that Reginald J. was violent. But the jury could tell already from the other testimony that Reginald J. was anything but calm on the day in question, and the witnesses who said they saw Reginald J. throwing punches and putting Cochran in a headlock supported Cochran's testimony about Reginald J.'s reputation for violence.
The jury's verdict-acquitting Cochran of first degree and second degree murder but convicting him of voluntary manslaughter-indicates it believed Reginald J.'s violence moments earlier provoked Cochran or gave him a genuine belief that he was about to suffer death or great bodily injury and needed lethal force to defend against the same. (See CALCRIM Nos. 570 [jury instruction on voluntary manslaughter based on heat of passion or provocation], 571 [jury instruction on voluntary manslaughter based on imperfect self-defense].) But the jury evidently did not believe that Reginald J.'s violence gave Cochran a reasonable fear that Reginald J. was reaching for a gun at his waist. The jury asked to hear the testimony relating to Reginald J.'s and Cochran's statements to each other at Cochran's car just before the shooting, indicating it had zeroed in on that pivotal moment.
The evidence regarding that moment heavily favored the prosecution. There were five witnesses to the shooting: D.J., Bernice H., L.L., Michelle J., and Cochran. Neither D.J., Bernice H., nor L.L. heard Reginald J. say, "I got something for you," or any words to that effect. Not only did Michelle J. not testify that Reginald J. said that, Michelle J. told the police that Cochran himself said it before he went to his car. Michelle J. denied telling the police this, but the prosecution played the audio recordings of her interviews in which she told the police exactly that at two points in her interview. Thus, even though Cochran's witnesses largely corroborated his account of the beginning of his encounter with Reginald J., no other witness corroborated Cochran's version of the events that immediately preceded the shooting.
In addition, the forensic evidence contradicted Cochran's account. Cochran claimed Reginald J. was turning towards him with Reginald J.'s left hand reaching towards his waistband on his right side. But the medical examiner testified that the bullet that killed Reginald J. initially passed through Reginald J.'s left arm before entering his chest in his left armpit. During the autopsy, the forensic pathologist placed a probe through Reginald J.'s wounds to demonstrate the path of the bullet. Photographs of Reginald J.'s body with the probe so placed demonstrate that Reginald J.'s left arm was pulled back slightly to the rear and near his left side when he was shot. Given the path of the bullet that took his life, Reginald J. could not have been reaching towards the right side of his waist when Cochran shot him. The prosecutor highlighted this impossibility twice in his closing argument.
Even if Cochran's witnesses had supported Cochran's version of events despite the physical evidence, it likely would have made no difference because the prosecution thoroughly discredited L.L. and Michelle J. Both witnesses admitted that they initially lied to the police about Cochran's involvement in the shooting, immediately placing their credibility into question. L.L.'s and Michelle J.'s description of how they came to present consistent lies to the police was also contradicted. Both claimed the police interviewed them in the same room, L.L. first, so that Michelle J. could simply repeat the lie that L.L. devised. But the police officer who interviewed them testified that he followed the standard procedure of interviewing them separately.
The prosecution impeached L.L.'s testimony on many key points by contrasting it with her earlier inconsistent statements. L.L. testified on direct examination that Cochran did not punch back at Reginald J., but she admitted on cross that she had probably told the police earlier that Cochran swung back but did not hit Reginald J. Only on cross-examination did she mention that Reginald J. had Cochran in a headlock, and she claimed she did not mention it on direct because she was not asked about it. When asked why she had not mentioned the headlock to the police, she said she thought she had. L.L. testified that she did not see Cochran get the gun out of his car, but after reading a transcript of her interview with the police, she admitted she had told the police she did see that. She testified that Reginald J. was coming off the curb into the street in front of Cochran's car when he was shot, but after reading a transcript of her police interview, she changed her testimony to say that Reginald J. was on the sidewalk. L.L. testified that she yelled, "No," after Cochran shot Reginald J. After reading her police interview, she said she might have also yelled it before the shooting, and she eventually admitted she yelled, "No," before the shooting because she saw Cochran pointing the gun at Reginald J. L.L. testified she did not know there was a gun in Cochran's car, but after reading her interview, she admitted she had known Cochran kept the gun in the car. The prosecutor later read into evidence the portions of L.L's police interview that largely supported the basis for its cross-examination and contradicted L.L's initial testimony.
The prosecution's impeachment of Michelle J. was equally effective. Michelle J. testified that she did not remember whether Reginald J. had tried to drag D.J. away from her door the night before the shooting, but even after reading the transcript of her interview with the police, she denied that he had done so, did not remember telling the police that, and claimed her memory was better at trial than during her interview. She denied taking the baseball bat from L.L. before the shooting, maintained that testimony even after reading her police interview transcript, denied telling the police anything to the contrary, and insisted her memory at trial was better than during her interview. Michelle J. claimed Reginald J. and D.J. got very close to her when she was on the porch, and she became upset when the prosecutor once again moved to show her a transcript of her police interview that contradicted her statement. She did not recall telling the police that Reginald J.'s killer deserved to be caught because no one deserved to die the way he did, but admitted she might have after reading her police interview. And, as noted above, she denied hearing Cochran tell Reginald J., "I got something for you," and denied telling the police that even after reading the interview transcript. Similarly, even after reading her police interview, she did not recall telling the police that only D.J., not Reginald J., had started everything. The prosecution later played portions of a recording of Michelle J.'s police interviews for the jury that contradicted her and demonstrated she had made all of the statements to the police that she claimed not to remember.
Given this state of the evidence, with no other witness corroborating Cochran's version of the key aspect of the event, the physical evidence contradicting it, and Cochran's witnesses being generally discredited, offering evidence of Reginald J.'s domestic violence would have done little to sway the jury about whether Reginald J. gave Cochran a reasonable fear that he was reaching for a gun. Particularly given that Reginald J.'s domestic violence occurred many years prior to the incident and never involved a firearm, Cochran's counsel's failure to examine D.J. on that topic does not show that the result of Cochran's trial was fundamentally unfair or unreliable.
D. Violation of constitutional rights
Cochran finally contends that the exclusion of evidence of Reginald J.'s violent character violated his constitutional right to due process because it prevented him from presenting evidence on the critical question of whether he acted in self-defense. (People v. Cunningham (2001) 25 Cal.4th 926, 999 ["Evidence Code section 352 must yield to a defendant's due process right to a fair trial and to the right to present all relevant evidence of significant probative value to his or her defense"].) Cochran urges us to review the trial court's exclusion of the evidence for prejudice under the federal standard of whether the error was harmless beyond a reasonable doubt. He further argues that under either the federal standard or the California standard for state law error in People v. Watson (1956) 46 Cal.2d 818, 836, the trial court's error was not harmless.
Even if we were to accept Cochran's argument that the more favorable federal standard applies here because the exclusion violated his due process rights, Cochran's claim would still fail. Cochran argues at least one juror may have been swayed by the evidence of Reginald J.'s record to believe Reginald J. acted so aggressively and violently that Cochran reasonably feared an imminent threat to his life and safety, to support a finding of perfect self-defense. But as discussed in detail above, even if the trial court had admitted all the evidence of Reginald J.'s record and Cochran's counsel had presented it all to the jury, the evidence would have provided only weak support for his claim of reasonable fear. None of the evidence of Reginald J.'s violent character, considering the circumstances of the incidents and their age, had much bearing on that claim. The other evidence supporting Cochran's claim of self-defense was also weak and uncorroborated, while the contrary evidence, particularly the physical evidence, was strong. Accordingly, assuming either the exclusion of evidence or his counsel's failure to offer it were error or violated Cochran's rights in some way, the omission of the evidence was harmless under any standard of prejudice.
II. Prosecutorial misconduct
In his second argument, Cochran contends the prosecutor committed misconduct by arguing in closing that the only evidence that Reginald J. had a violent character came from Cochran's claim that Reginald J. had a bad reputation and that Reginald J. was actually a calm man who tried to avoid the conflict. Cochran argues this was misconduct because a prosecutor may not try to convince a jury to draw an inference that the prosecutor knows is untrue. Cochran admits his counsel did not object to these remarks but argues such objection would have been futile and his counsel was ineffective in failing to object.
We need not spend long on this argument, which suffers from several flaws. Cochran concedes that a prosecutor may comment on the absence of evidence when such evidence has been properly excluded. (People v. Peterson (2020) 10 Cal.5th 409, 465.) He therefore conditions his argument on the proposition that the excluded evidence should have been admitted and his counsel should have introduced it. We have concluded, ante, that the trial court properly excluded the evidence of Reginald J.'s earliest offenses and Cochran's counsel did not provide ineffective assistance of counsel by not examining D.J. about Reginald J.'s domestic violence. Cochran's misconduct argument therefore fails.
III. Upper term sentence on the enhancement
In his opening and reply briefs, Cochran argued that the trial court abused its discretion in sentencing him to the upper term of 10 years on the gun use enhancement under Penal Code section 12022.5, subdivision (a) instead of the middle term of 4 years. Cochran contended the trial court based its imposition of the upper term on the fact that it did not believe Cochran's killing of Reginald J. was justified, which is improper because justification was an element of the crime of manslaughter.
The abstract of judgment states that the enhancement was based on Penal Code section 12022.53, subdivision (b), but that enhancement applies only to murder and Cochran was convicted of manslaughter. (People v. Yang (2010) 189 Cal.App.4th 148, 155.) The trial court's oral pronouncement of sentence controls over the abstract (People v. Jones (2012) 54 Cal.4th 1, 89), but the trial court did not expressly identify the statutory basis for the gun use enhancement when it sentenced Cochran. However, at trial the parties agreed that if Cochran were convicted of manslaughter as a lesser included offense of murder and the jury found the Penal Code section 12022.53, subdivisions (b)-(d) enhancement true, he would be subject to the lesser included enhancement under Penal Code section 12022.5, subdivision (a). (People v. Tirado (2022) 12 Cal.5th 688, 696-698; People v. Fialho (2014) 229 Cal.App.4th 1389, 1395-1398.) The parties' argument at sentencing referred to Penal Code section 12022.5, subdivision (a). The trial court's statements at the hearing are also consistent with the enhancement being based on Penal Code section 12022.5, subdivision (a), since it said it was imposing an upper term and Penal Code section 12022.5, subdivision (a) provides for three possible terms, whereas section Penal Code 12022.53, subdivisions (b)-(d) each provide for only a single term. We requested supplemental briefing on this issue, and the parties agree that the abstract should be corrected to reflect that the enhancement was based on Penal Code section 12022.5, subdivision (a). We will therefore instruct the trial court to ensure the abstract of judgment reflects the proper basis for the enhancement after resentencing.
When Cochran was originally sentenced on the gun use enhancement, former Penal Code section 1170.1, subdivision (d) gave the trial court broad discretion over which of the three possible terms in Penal Code section 12022.5, subdivision (a) to impose, stating, "If an enhancement is punishable by one of three terms, the court shall, in its discretion, impose the term that best serves the interest of justice, and state the reasons for its sentence choice on the record at the time of sentencing." In choosing between the three terms, the trial court was permitted to "consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision." (Cal. Rules of Court, rule 4.420(b).)
After briefing was complete, the Legislature amended Penal Code section 1170.1, subdivision (d). (Stats. 2021, ch. 731, § 2, eff. Jan. 1, 2022.) Penal Code section 1170.1, subdivision (d)(1) now provides, "If an enhancement is punishable by one of three terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2)." Penal Code section 1170.1, subdivision (d)(2) provides, "The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial." The Legislature made a similar change to Penal Code section 1170, subdivision (b), which formerly gave trial courts discretion over which of three terms to impose for an offense punishable by one of three terms and now requires a stipulation or jury finding beyond a reasonable doubt as to any facts on which a court relies to impose an upper term. (Pen. Code, § 1170, subd. (b); Stats. 2021, ch. 731, § 1.3, eff. Jan. 1, 2022.)
We requested supplemental briefing regarding whether and how this new legislation applies to Cochran's sentence. Cochran now argues, and the Attorney General concedes, that the recent statutory amendment applies retroactively to Cochran's case because it is not yet final and remand is now necessary for resentencing under the amended statute. We agree.
Based on the parties' original briefing, which cited Penal Code section 1170, subdivision (b) as the governing statute, we requested supplemental briefing on the impact of the amendment of Penal Code section 1170, subdivision (b), and the supplemental briefs analyzed the issue under that statute. Upon closer examination, we conclude the issue properly arises under Penal Code section 1170.1, subdivision (d), as that statute applies to enhancements punishable by one of three terms. The Legislature made essentially identical amendments to both statutes, so the analysis is the same under either statute.
The amendment to Penal Code section 1170.1, subdivision (d) applies retroactively to Cochran's case as an ameliorative change in the law, as People v. Flores (2022) 73 Cal.App.5th 1032, 1039, recently held regarding the amendment to Penal Code section 1170, subdivision (b). The amendment requires us to remand for resentencing. The trial court imposed the middle term on Cochran's manslaughter conviction, so that sentence complies with the amendment to Penal Code section 1170, subdivision (b). But the trial court imposed the upper term on the Penal Code section 12022.5, subdivision (a) enhancement, and under the current version of Penal Code section 1170.1, subdivision (d), such a sentence is permissible only if Cochran stipulated to the facts underlying the circumstances in aggravation or the jury found them true beyond a reasonable doubt.
Cochran maintains that the trial court based its imposition of the upper term on the enhancement on its belief that Cochran's killing of Reginald J. was not justified, which is contrary to the jury's verdict convicting him of manslaughter. Cochran misreads the record. The trial court remarked that it did not believe Cochran committed a justifiable killing. But the court also stated that it accepted the jury's verdict. We need not parse these statements, however, because the court made them in the course of imposing the middle term on Cochran's manslaughter conviction, which Cochran does not challenge and which is proper under the current statutory scheme.
The court separately explained its reasons for imposing the upper term on the gun use enhancement by stating, "I am not going to strike the gun enhancement, which is a ten-year enhancement. I'm going to impose the high-term of ten years. [¶] There were no other weapons involved in this. He was the one who produced the weapon and shot and killed an unarmed man who was turning away from him. So I will impose the ten-year enhancement for that for a total of 16 years in the Department of Corrections."
Cochran did not stipulate and the jury did not find that Reginald J. was unarmed, so the court's reliance on this fact does not comply with the current version of section 1170.1, subdivision (d). Nonetheless, there was no evidence at trial to suggest that Reginald J. was armed, so the court's reliance on this fact might be considered harmless.
However, the trial court also relied on the fact that Reginald J. was "turning away" from Cochran, and this issue is not clear cut. Bernice H. said that Cochran shot Reginald J. in the back as Reginald J. was walking away. D.J. testified that Cochran shot Reginald J. as his body was facing away from Cochran but his head was turned back. Cochran testified that he shot Reginald J. as Reginald J. was advancing on him. The forensic evidence, meanwhile, showed that the bullet passed through Reginald J.'s left arm before entering the left side of his chest, which suggests Reginald J. was turned sideways to Cochran. D.J. and Cochran agreed that Reginald J. made a comment to Cochran before the shooting, but that testimony does not indicate the orientation of Reginald J.'s body at the time.
Given this state of the evidence, there is, at a minimum, a reasonable probability that the jury would not have found that Cochran shot Reginald J. as he was turning or had turned away. (See People v. Watson, supra, 46 Cal.2d at p. 836.) We also cannot tell from the trial court's comments whether it would have imposed the upper term on the enhancement based only on Reginald J. being unarmed, without regard to whether he was turning or had turned away. We must therefore remand to the trial court for resentencing, as the parties request. (People v. Buycks (2018) 5 Cal.5th 857, 893 ["[W]hen part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances' "]; People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [" 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court' "].)
IV. Fines
Cochran finally argues the trial court erred in imposing a $5,000 restitution fine, imposing and suspending a $5,000 parole revocation fine, and imposing $4,685 in restitution because it did not find that he had the ability to pay the fines.
Cochran's argument relies on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). "In a nutshell, Dueñas, supra, 30 Cal.App.5th at pages 1168-1169, held that a sentencing court violated the due process rights of a defendant who committed her acts out of poverty when it imposed certain mandatory fees and fines that lack a statutory exception without first making a finding the unemployed defendant (who suffered from cerebral palsy) had the ability to pay while she was on probation." (People v. Oliver (2020) 54 Cal.App.5th 1084, 1100.)
Cochran argues the trial court erred by not holding a hearing on his ability to pay because he has no money, no assets, and cannot pay the fines and restitution. Cochran admits his counsel did not object in the trial court to the imposition of the fines and restitution, but he argues such an objection was unnecessary and his counsel was ineffective for not making one. We conclude, to the contrary, that an objection was necessary- particularly given that Dueñas was decided more than a year before Cochran's sentencing-and the lack of an objection means he has forfeited this argument. (People v. Greeley (2021) 70 Cal.App.5th 609, 624.) As in People v. Keene (2019) 43 Cal.App.5th 861, 864-865, we are also not persuaded by Cochran's "throwaway" assertion of ineffective assistance of counsel. He devotes less than a sentence to this issue in his appellate brief and does not mention it at all in his habeas petition in which he raises other ineffective assistance of counsel arguments in greater detail.
In any event, even if Cochran had preserved the issue, his Dueñas argument would fail. Several decisions have disagreed with Dueñas, and the California Supreme Court is currently considering the issue. (E.g., People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946; People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.) In the absence of any guidance from our Supreme Court, we continue to adhere to the view expressed in this Division's decision in People v. Cowan (2020) 47 Cal.App.5th 32, review granted June 17, 2020, S261952 (Cowan) that constitutional challenges to fines or fees based on a claim that a defendant cannot pay them should be evaluated under the Eighth Amendment and article I, section 17 of the California Constitution. (Cowan, at p. 42; see Estate of Sapp (2019) 36 Cal.App.5th 86, 109, fn. 9 ["Absent a compelling reason, the Courts of Appeal are normally loath to overrule prior decisions from another panel of the same undivided district or from the same division"].) Four factors are relevant to that type of evaluation:" '(1) the defendant's culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant's ability to pay.'" (Cowan, at p. 47.)
Cowan was decided long before Cochran filed his briefing here, but he does not mention the relevant factors other than his ability to pay. As a result, he has not established that the fines and restitution imposed by the trial court are excessive under the Eighth Amendment or article I, section 17 of the California Constitution. (See People v. Miralrio (2008) 167 Cal.App.4th 448, 452, fn. 4 [an appellate court is not required to address undeveloped claims or ones inadequately briefed]; In re S.C. (2006) 138 Cal.App.4th 396, 408 [a judgment is presumed correct on appeal, and to demonstrate error, appellant must present meaningful legal analysis supported by citations to authority]; see also Cowan, supra, 47 Cal.App.5th at p. 49 [defendant bears the burden of proving inability to pay].)
DISPOSITION
The judgment is reversed and the matter is remanded for resentencing. Upon resentencing, the trial court shall ensure that the abstract of judgment reflects that the enhancement to Cochran's conviction is based on Penal Code section 12022.5, subdivision (a). In all other respects, the judgment is affirmed.
WE CONCUR: POLLAK, P. J., STREETER, J.