Opinion
E071181
03-13-2020
THE PEOPLE, Plaintiff and Respondent, v. JOE MONTGOMERY, Defendant and Appellant.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FWV17000504) OPINION APPEAL from the Superior Court of San Bernardino County. Michael A. Knish, Judge. Affirmed with directions. Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
After defendant and appellant, Joe Montgomery, shot and killed two people, a jury convicted him of two counts of murder and found various firearm allegations true. The trial court sentenced defendant to two consecutive terms of life in prison without the possibility of parole and imposed two additional, consecutive terms of 25 years to life. The trial court also imposed, but stayed additional 10-year and 20-year sentences.
On appeal, defendant argues (1) the prosecutor committed misconduct by making improper arguments in closing, (2) the trial court erroneously allowed additional closing argument after the jury reached an impasse, and (3) the cumulative effect of these errors warrants reversal. Defendant further asserts the trial court improperly imposed fines and assessments without determining whether defendant had an ability to pay them. Finally, defendant contends, and the People concede, this court should amend the abstract of judgment to strike an inapplicable parole revocation fine.
We agree with the parties that the parole revocation fine must be stricken from the abstract of judgment. We agree with defendant that the prosecutor made one improper argument, but we conclude any resulting error was harmless. We reject defendant's remaining contentions and affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant rented a space in a mobile home park (the park). David Morales was the park's manager, and Philip Connors, its owner, was also involved in its management.
Joe Gutholm was evicted from the park in December 2016 and was not allowed to enter the park. In January 2017, the police responded to a trespassing call at the park. The responding officer informed Joe he was not allowed in the park and was trespassing. Joe then voluntarily left.
The next day, Morales went to defendant's trailer to discuss something with him. Joe and/or his son was in defendant's trailer. Defendant and Morales got into an argument, which was caught on a neighbor's video surveillance.
The following morning, defendant and Morales got into another argument. Morales gave him an "'Eight Day Demand for Compliance'" letter, which explained that defendant had broken the park's rules and demanded compliance or he could be evicted. Defendant became angry and said, "'Why are you guys always f—king with me?'" He also said, "'You motherf—kers. I'm tired of your shit,'" threw the papers in the air, and yelled, "'I'm going to kill you motherf—kers.'"
Defendant walked to his truck, retrieved a pistol, and then shot Morales twice. Defendant then looked at Connors and shot at him. Connors started running away, but defendant chased after him and shot at him. Connors ran between two trailers. Defendant followed him and fired more shots, then fled the scene.
A park resident who witnessed the incident called 911. Upon arriving, the police found Morales and Connors were dead. Defendant shot Morales once in the head, which was immediately fatal, and shot him once below the ribs. Defendant shot Connors in the head, once in his body, and another bullet grazed his hand. Five bullet casings were recovered near Morales's body and two were recovered near Connors's body. A video recording of the incident was pieced together from various nearby cameras.
Defendant was charged with two counts of murder (Pen. Code, § 187; counts 1 & 2). The People alleged that, in committing the murders, defendant personally used a firearm (§ 12022.53, subd. (b)), personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)). The People also alleged special circumstances because of the multiple murders (§ 190.2, subd. (a)(3)). The trial court sentenced defendant to two consecutive terms of life in prison without the possibility of parole for counts 1 and 2. The trial court also imposed two consecutive terms of 25 years to life based on the jury's finding that defendant personally and intentionally discharged a firearm causing death. Finally, the trial court imposed, but stayed a 10-year and 20-year sentence for the other firearm enhancements.
Unless otherwise noted, all further statutory references are to the Penal Code.
Defendant timely appealed.
III.
DISCUSSION
A. Prosecutor Misconduct
Defendant argues his convictions must be reversed because the prosecutor committed misconduct by making improper arguments. We agree in part, but find any resulting error was harmless.
1. Additional background
During closing argument, the prosecutor used two hypotheticals to illustrate to the jurors how people engage in premeditation and deliberation. In the first hypothetical, the prosecutor argued that people premeditate and deliberate every day in deciding whether to speed up or slow down when encountering a yellow light. The prosecutor outlined a series of considerations drivers make when approaching an intersection with a yellow light, such as looking to see if there are other cars, pedestrians in the crosswalk, or police vehicles nearby, and whether it is safe to proceed. The prosecutor argued these kinds of "split-second decisions that you make very quickly" and "successive thoughts" are forms of premeditation and deliberation.
In the second hypothetical, the prosecutor compared deliberating with deciding whether to buy pickles at the store. In her hypothetical, the prosecutor goes to the store, comes across a row of pickles and goes through a one- or two-second deliberative process about whether to buy some. She explained her thought process as follows, "'I love pickles. I haven't had pickles in a minute. And you know what? I would like to have some. It's not on the [shopping] list, and I don't really need them, and I definitely don't need all that sodium in my life. Do you know what? I'm still going to grab those pickles.'" "So that's the example of 'deliberation' . . . it is the opposite of 'impulsively.'"
In closing, defendant argued the jury should convict him of voluntary manslaughter, not murder, because he was provoked into an "explosion of anger" due to a "sudden quarrel" with the victims. He further argued "the average person" would have reacted the same way and that he acted out of "passion."
In an apparent response to these arguments, the prosecutor argued the victims' actions were "not sufficient provocation under the law to mitigate this crime to anything less than first-degree murder." The prosecutor went on, "[W]hat the victim did was not provocation. Can you imagine if that's all it took in our society to hold people less responsible for such heinous crimes? [¶] Landlord/tenant disputes happen all the time. They are commonplace, and they are ordinary. This is just normal societal adversity when people have to come together and coexist. [¶] Do we really want to send a message to anyone that feels that they are being . . . wrongly dealt with by their landlord that they are somehow justified in killing them so they can be held less culpable for something different than murder? It's not a reasonable interpretation of the law nor of the facts of this case, and it is not what the manslaughter law contemplated at all." (Italics added.)
Defendant contends the prosecutor committed misconduct by using the hypotheticals. Specifically, defendant contends that, in doing so, the prosecutor misstated the law. Defendant also contends the prosecutor improperly appealed to the jurors' passion and prejudice by asking them to "send a message," which he claims was "aimed to arouse the jury's wrath at [defendant] and to protect society at large." We disagree that the prosecutor's hypotheticals were impermissible, but we conclude her "send a message" argument was improper, yet the error was harmless.
2. Applicable Law and Standard of Review
"'"'"A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.'"' [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves '"'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.'"' [Citation.]" [Citation.]'" (People v. Zambrano (2004) 124 Cal.App.4th 228, 241.)
"'"A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.'"'" (People v. Tully (2012) 54 Cal.4th 952, 1009.) A prosecutor's misconduct violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (Id. at pp. 1009-1010.) An objection must be raised, and an admonition sought for the issue to be preserved on appeal. (Id. at p. 1010.)
Prosecutorial misconduct that violates state law warrants reversal only when it is reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the untoward conduct. (People v. Milner (1988) 45 Cal.3d 227, 245; see People v. Crew (2003) 31 Cal.4th 822, 839.)
We review de novo a defendant's claim of prosecutorial misconduct. (People v. Uribe (2011) 199 Cal.App.4th 836, 860.) "'In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.'" (People v. Brown (2003) 31 Cal.4th 518, 553-554.) We consider the prosecutor's remarks in context of the entire record. (People v. San Nicolas (2004) 34 Cal.4th 614, 665-666.) We presume, in the absence of evidence to the contrary, that the jury understands and follows instructions from the trial court. (People v. Fauber (1992) 2 Cal.4th 792, 823.) We presume that jurors treat the court's instructions as statements of law, and the arguments of the prosecutor as words spoken by an advocate in an attempt to persuade. (People v. Thornton (2007) 41 Cal.4th 391, 441.)
3. Analysis
The People argue—and we agree—that defendant forfeited his argument that the prosecutor committed misconduct by failing to object to any of the alleged misconduct during trial. (People v. Perez (2018) 4 Cal.5th 421, 450 ["To avoid forfeiture of a claim of prosecutorial misconduct, a defendant must object and request an admonition."].) Defendant effectively concedes the point, but argues we should address the issue because defense counsel's failure to object constitutes ineffective assistance of counsel (IAC). We exercise our discretion to address the issue on the merits "to avert any claim of inadequate assistance of counsel." (People v. Yarbrough (2008) 169 Cal.App.4th 303, 310.)
To prevail on a claim of ineffectiveness of counsel, the defendant must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688.)
The defendant bears the burden of demonstrating by a preponderance of the evidence that defense counsel's performance was deficient and resulted in prejudice. (People v. Montero (1986) 185 Cal.App.3d 415, 426.) If we can determine an ineffectiveness of counsel claim on the ground of lack of prejudice, we need not decide whether defense counsel's performance was deficient. (Strickland v. Washington, supra, 466 U.S. at p. 697.)
Here, defense counsel may have had tactical reasons not to object. Defense counsel may have reasonably believed the prosecutor's arguments were not obviously improper and thought that an overruled objection to the arguments posed more of a risk. Defense counsel also may have reasonably believed the jury instructions were sufficient to rectify the prosecutor's alleged misconduct. Because there are conceivable bases on which defense counsel may have properly decided not to object, defendant's IAC claim fails.
In any event, the prosecutor's hypotheticals in this case were proper. "'The process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . ." [Citations.]'" (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) The prosecutor accurately stated these principles by explaining to the jury that "[t]he amount of time" was not "what determine[s] whether the killing was deliberate or premeditated. It's the extent of reflection."
Prosecutors (and defense counsel) may use hypotheticals to illustrate legal principles. (People v. Wharton (1991) 53 Cal.3d 522, 567 [counsel "may state matters not in evidence, but which . . . are illustrations drawn from common experience"].) For instance, in People v. Avila (2009) 46 Cal.4th 680 (Avila), the prosecutor used a "yellow light" hypothetical that largely mirrors the one used by the prosecutor in this case. In Avila, "the prosecutor used the example of assessing one's distance from a traffic light, and the location of surrounding vehicles, when it appears the light will soon turn yellow and then red, and then determining based on this information whether to proceed through the intersection when the light does turn yellow, as an example of a 'quick judgment' that is nonetheless 'cold' and 'calculated.'" (Id. at p. 715.) The California Supreme Court found no prosecutorial misconduct. (Ibid.)
In both Avila and this case, the prosecutor used a yellow light analogy as an example of making a quick decision. The prosecutor used the hypothetical about deciding whether to buy pickles at the grocery store for the same reason. Like the prosecutor in Avila, in both hypotheticals the prosecutor here used everyday situations to show that one can weigh the pros and cons and make a decision in a brief period of time.
Defendant asserts that the prosecutor's hypotheticals minimized the seriousness of the jury's considerations "[b]y equating the deliberation and premeditation necessary to prove premeditated and deliberate attempted murder with mundane matters." We disagree. The prosecutor did not suggest in either hypothetical (or anywhere else in closing argument) that the decision to kill is of equal magnitude as deciding whether to drive through an intersection or to purchase something at the grocery store. Both the prosecutor here and the prosecutor in Avila mentioned factors a driver would consider in deciding whether to proceed in the few seconds after seeing a yellow light, such as the distance from the traffic light, the presence of other vehicles, whether police officers were present, and so on. Similarly, the prosecutor here outlined her short thought-process used to decide whether to buy pickles. Both analogies demonstrated—and accurately reflected the law—that a defendant can quickly make a deliberate, premeditated decision to kill. (People v. Gomez (2018) 6 Cal.5th 243, 282; People v. Solomon (2010) 49 Cal.4th 792, 812 ["'"Premeditation and deliberation can occur in a brief interval."'"].) We therefore find no error in the prosecutor's use of the hypotheticals.
Finally, we agree with the People that defendant's reliance on People v. Johnson (2004) 119 Cal.App.4th 976, People v. Johnson (2004) 115 Cal.App.4th 1169, and People v. Nguyen (1995) 40 Cal.App.4th 28 is misplaced. As the People correctly observe, all three cases involved situations where the prosecutor improperly equated the beyond-a-reasonable-doubt standard to everyday decision-making. (See People v. Johnson, supra, 119 Cal.App.4th at p. 980 ["The court equated proof beyond a reasonable doubt to everyday decision making in a juror's life."]; People v. Johnson, supra, 115 Cal.App.4th at p. 1172 ["[T]he trial court's attempt to explain reasonable doubt had the effect of lowering the prosecution's burden of proof."]; People v. Nguyen, supra, at p. 35 ["The prosecutor's argument that people apply a reasonable doubt standard 'every day' and that it is the same standard people customarily use in deciding whether to change lanes trivializes the reasonable doubt standard."].) None of these cases involved a situation where, as here, the prosecutor appropriately used examples of everyday decision-making to illustrate that deliberate, premeditated decisions can be made in a short period of time. Regardless, even if the prosecutor's hypotheticals were improper, they were harmless for the reasons explained below.
Relying on United States v. Sanchez (9th Cir. 2011) 659 F.3d. 1252 (Sanchez), defendant argues the prosecutor's "'send a message'" statement improperly asked the jury to focus on "larger societal problems," not the evidence, and "to tell society that one cannot get away with killing another in such a dispute." We agree.
"A prosecutor is allowed to make vigorous arguments and may even use such epithets as are warranted by the evidence, as long as these arguments are not inflammatory and principally aimed at arousing the passion or prejudice of the jury." (People v. Pensinger (1991) 52 Cal.3d 1210, 1251.) But a prosecutor may not urge the jury to convict the defendant for reasons unrelated to the evidence. Specifically, "'a prosecutor may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking. The evil lurking in such prosecutorial appeals is that the defendant will be convicted for reasons wholly irrelevant to his own guilt or innocence.'" (People v. Redd (2010) 48 Cal.4th 691, 743, fn. 25, italics added.)
In Sanchez, the defendant argued he trafficked drugs under duress because drug traffickers had threatened his family. (Sanchez, supra, 659 F.3d at p. 1255.) At the end of his rebuttal in closing argument, the prosecutor argued, "[W]hy don't we send a memo to all drug traffickers, to all persons south of the border and in Imperial County and in California—why not our nation while we're at it. Send a memo to them and say dear drug traffickers, when you hire someone to drive a load, tell them that they were forced to do it. Because . . . they'll get away with it if they just say their family was threatened. Because they don't trust Mexican police, and they don't think that the U.S. authorities can help them. Why don't we do that?" (Id. at p. 1256, italics added.) Defense counsel did not object, and the jury began its deliberations. (Id. at pp. 1256-1257.)
The Ninth Circuit held this "send a memo" argument was misconduct because it "urged the jury to convict 'for reasons wholly irrelevant to [the defendant's] guilt or innocence.'" (Sanchez, supra, 659 F.3d at p. 1257.) "The point of the 'send a memo' statement was that if the jury acquitted [the defendant] based on his duress defense, the verdict would in effect send a message to other drug couriers to use that defense themselves." (Ibid.) The prosecutor thus suggested the jury should convict the defendant based not on his "guilt or innocence, but on the 'potential social ramifications' of the verdict"—even if the jurors believed his duress defense. (Id. at pp. 1256-1257.) The Ninth Circuit further held that the timing of the argument—made at the very end of the prosecutor's rebuttal in closing—"increased the risk that the inflammatory statement would improperly influence the jurors." (Id. at p. 1261.)
Although we are not bound by Sanchez, a federal circuit court opinion, we find it persuasive. The problem with the prosecutor's argument in Sanchez was that it "rais[ed] the specter of future law-breaking to divert the jury from its obligation to reach a verdict based only on the evidence." (Sanchez, supra, 659 F.3d at p. 1259) Similarly, here, the prosecutor's "send a message" statement implied that, if the jury agreed with defendant's argument that he was sufficiently provoked and convicted him only of manslaughter, it would "send a message to anyone" that "they can be held less culpable for something different than murder" by pleading provocation. In other words, the prosecutor argued that if the jury did not convict defendant of first degree murder, then other potential murderers would rely on the jury's verdict to assert a provocation defense in the future, arguing "they are somehow justified in killing." The prosecutor thus suggested that the jury would encourage future murders by returning a conviction of manslaughter, thereby implying the jury should convict defendant to "deter future lawbreaking." (People v. Redd, supra, 48 Cal.4th at p. 743, fn. 25.)
This mirrors the error in Sanchez, where the prosecutor improperly asked the jury to reject the defendant's duress defense and convict him so that other future drug-traffickers would not be "'sen[t] a memo'" to assert a duress defense. (Sanchez, supra, 659 F.3d at p. 1256; see United States v. Weatherspoon (9th Cir. 1999) 410 F.3d 1142, 1149 [prosecutors may not comment on "the potential social ramifications of the jury's reaching a . . . verdict"].) Like the error in Sanchez, the effect of the prosecutor's improper argument was compounded by the fact that it occurred near the end of the prosecutor's rebuttal argument. In Sanchez, the jury was sent to deliberate immediately after the prosecutor made his "send a memo" argument, which was the last thing he said to the jury. (Sanchez, supra, at p. 1256.) Here, after the prosecutor made her "send a message" argument, her rebuttal continued for about another one and a half pages in the transcript. We therefore conclude the prosecutor's "send a memo" argument was improper.
Nonetheless, even if the prosecutor committed misconduct, it was harmless. "Error with respect to prosecutorial misconduct is evaluated under Chapman v. California (1967) 386 U.S. 18, to the extent federal constitutional rights are implicated, and People v. Watson (1956) 46 Cal.2d 818 [(Watson)] if only state law issues were involved. [Citation.] Chapman is implicated if the prosecutor's conduct renders the trial so fundamentally unfair that due process is violated. [Citations.] Watson applies where the prosecutor uses '"'deceptive or reprehensible methods to attempt to persuade either the court or the jury.'"' [Citation.]" (People v. Fernandez (2013) 216 Cal.App.4th 540, 564.) "Misconduct that does not constitute a federal constitutional violation warrants reversal only if it is reasonably probable the trial outcome was affected." (People v. Shazier (2014) 60 Cal.4th 109, 127.)
The "'send a memo'" argument in Sanchez was particularly harmful because the entire case "came down to a 'battle over credibility'" because the defendant's duress defense turned entirely on his own testimony. (Sanchez, supra, 659 F.3d at p. 1260.) Although there was no dispute that the defendant had committed all of the elements of the charged offenses, "the entire question of guilt or innocence" was based on his testimony that he committed the crimes under duress, so "if the jury believed [the defendant], they would acquit him." (Ibid.)
By contrast, the facts in this case were undisputed and unrelated to defendant's credibility. Defendant's only argument was that he was guilty of manslaughter, not murder, because he was provoked by the victims and reacted out of "passion." Unlike Sanchez, where there was no evidence to support the defendant's defense other than his testimony, the only issue here was whether the jury believed defendant's reaction was justifiable based on the undisputed facts. Whereas the jury would have acquitted the defendant in Sanchez had they believed his duress defense, it is not likely the jury here would have found defendant guilty of manslaughter even if it believed defendant's version of events and found him credible.
Further, the uncontroverted evidence—much of which was caught on video—showed that defendant argued with Morales, walked to his car to retrieve a gun, and immediately shot several rounds at Morales and Connors at a close range. After Connors tried to run away, defendant chased after him while shooting. Both Morales and Connors were shot in the head and had multiple gunshot wounds. The evidence of defendant's guilt was far more than was necessary for the jury to convict defendant of first degree murder, and the jury reasonably rejected his provocation defense.
Given the overwhelming evidence that defendant committed first degree murder, not manslaughter, we conclude the prosecutor's improper "send a message" argument was harmless, as was her use of the hypotheticals, even if improper.
The prosecutor's hypotheticals and "send a memo" argument were harmless for other reasons. First, the arguments were so brief and fleeting that we do not believe they could have "undermine[d] the fundamental fairness of the trial and contribute[d] to a miscarriage of justice. [Citation.]" (United States v. Young (1985) 470 U.S. 1, 16.) Nor were they "'so egregious that it infect[ed] the trial with such unfairness as to make the conviction a denial of due process.'" (People v. Espinoza (1992) 3 Cal.4th 806, 820.) The prosecutor's arguments also were not a series of "systematic and pervasive" improper arguments. (Ibid.)
Second, defendant does not argue, and nothing in the record suggests, that either the prosecutor's use of the hypotheticals or the "send a message" argument was a "'"'deceptive or reprehensible method to persuade either the trial court or the jury.'"'" (People v. Tully, supra, 54 Cal.4th at pp. 1009-1010.) The prosecutor's hypotheticals were simply everyday examples to help the jury understand legal concepts. The prosecutor's "send a message" argument, though improper, was made as part of her overall argument that defendant's reaction was not reasonable and that his provocation argument was not a reasonable interpretation of the law.
Third, any harm that resulted from the prosecutor's arguments was cured by the trial court's instructions. (See People v. Nguyen, supra, 40 Cal.App.4th at p. 36 [prosecutor's improper argument was harmless error because jury properly instructed on reasonable doubt and appellate court presumes jury followed that instruction].) The first instruction the trial court gave to the jury stated "[d]o not let bias, sympathy, prejudice, or public opinion influence your decision." (Italics added.) The trial court also instructed the jury (1) on the definitions of premeditation and deliberation; (2) that arguments of counsel are not evidence; and (3) that the jurors must follow the instructions if they conflict with counsel's argument. "Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions." (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Because the prosecutor's misconduct, if any, was harmless, we also reject defendant's contention that his trial counsel was ineffective for failing to object to the prosecutor's arguments. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)
B. Additional Closing Argument
Defendant contends the trial court erred by allowing the parties to present additional closing argument. We disagree.
1. Additional background
About an hour and a half after the jury began deliberating, it requested a "[b]etter [d]efinition of [d]eliberately [and] premeditation." Counsel agreed with the trial court's suggestion that it direct the jury to refer to a specific instruction defining the terms and inform the jury that the court could not further define the terms.
The next day, the jury informed the trial court that it had reached a decision on count 1, but was undecided on count 2. Counsel agreed with the trial court's suggestion to bring the jury into the courtroom, ask about the split in their votes, and ask whether further instruction or argument would help them reach a verdict.
The foreperson advised the trial court that the jury was split 11 to 1. The foreperson then explained the jurors had a disagreement about their interpretation of the terms "'deliberate'" and "'impulsive.'" A majority of the jury agreed that "further assistance in the legal definitions" of those terms "would help the jury reach a verdict." One juror asked whether "real-world examples" could be given "to demonstrate or illustrate those terms."
After an in-chambers discussion with counsel, the trial court informed the jury that it would allow additional argument the following morning. Defense counsel stated he was "against further argument." The trial court explained that it found additional argument appropriate given the jury's request for "real-world examples." The following morning, each side was allowed 10 minutes of further argument.
Defendant contends the trial court erred in allowing additional argument over his counsel's objection. We disagree.
2. Analysis
When the jury informs the trial court that it is at an impasse, "the trial court may take certain actions" to help the jury to reach a verdict. (People v. Nelson (2016) 1 Cal.5th 513, 569.) California Rule of Court, rule 2.1036(b) provides that, "'[i]f the trial judge determines that further action might assist the jury in reaching a verdict, the judge may. . . [p]ermit attorneys to make additional closing arguments.'" (People v. Salazar (2014) 227 Cal.App.4th 1078, 1089.) We review the trial court's decision to "resort to the tools provided" in rule 2.1036 for an abuse of a discretion. (Id. at p. 1088.)
The trial court did not abuse its discretion in allowing the parties to present additional closing arguments. People v. Young (2007) 156 Cal.App.4th 1165 (Young) is directly on point. As in this case, the trial court in Young allowed additional argument after the jury indicated it was at an impasse. (Id. at pp. 1171-1172.) The Young court held the trial court did not err, reasoning that "[b]y asking if additional argument might be helpful, the court did no more than ascertain the reasonable probability of the deadlock being broken and a means by which that might be accomplished. When some of the jurors agreed additional argument might help them in reaching a verdict, it was not inappropriate for the court to seek to offer that alternative to aid the jury. Further, the procedure was neutral, giving each side a brief opportunity to argue." (Id. at p. 1172.) The Young court therefore found "no impropriety in the court's exercise of its discretion." (Ibid.)
"The trial in Young occurred before rule 2.1036 was enacted. In a footnote, however, the appellate court noted the rule permitted additional closing argument once the jury had reached an impasse and cited sections 1093 and 1094 as authority for the rule." (People v. Salazar, supra, 227 Cal.App.4th at p. 1087.)
People v. Salazar, supra, 227 Cal.App.4th 1078, confirms the trial court did not abuse its discretion here. In that case, the jury sent notes to the trial court that "strongly indicated the jury was at an impasse," so the trial court informed the jury of the options rule 2.1036 provides that could help the jury make a decision. (Id. at p. 1089.) An hour later, the jury asked for additional argument, which the trial court allowed. (Ibid.) The Salazar court held the trial court did not err in doing so. (Ibid.)
So too here. The jury told the trial court that it could not reach a decision as to one count, and a majority of the jurors stated that they believed additional argument would help them reach a decision. Further, none of the jurors stated that additional argument would not be helpful, and only a few of them were equivocal in that they thought additional argument "maybe" or "possibly" would help, whereas one was "not sure." Rule 2.1036(b)(3) was designed for precisely this scenario. (See People v. Salazar, supra, 227 Cal.App.4th at p. 1086 ["[T]he Judicial Council enacted rule 2.1036 to provide tools for the trial court to use in assisting the jury to reach a verdict without influencing the jury."].) Accordingly, the trial court did not abuse its discretion in allowing additional argument after the jury had begun deliberating.
C. Cumulative error
Defendant asserts that even if the errors outlined above do not individually warrant reversal, their cumulative effect does. "'[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.'" (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) Here, we find error only in the prosecutor's "send a message" argument, but conclude it was harmless in light of the overwhelming evidence of defendant's guilt. Because there were no other errors, much less a series of errors that warrants reversal, we reject defendant's contention that there was cumulative error. (People v. Reed (2018) 4 Cal.5th 989, 1018 ["Because we have found but one error—which was harmless—there is no prejudice to cumulate."].)
D. Fines and assessments
The trial court imposed a $1,000 restitution fine (§ 1202.4.), an $80 court operations assessment (§ 1465.8), and a $60 court facilities assessment (Gov. Code, § 70373). Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant asserts the trial court prejudicially erred in imposing the fine and assessments without determining his ability to pay them.
As for the $1,000 restitution fine, defendant forfeited his argument that the trial court impermissibly imposed it. "Even before Dueñas, section 1202.4 permitted the court to consider [a defendant's] inability to pay. [Citation.] The statute mandates that the court impose a restitution fine 'unless it finds compelling and extraordinary reasons for not doing so,' and '[a] defendant's inability to pay shall not be considered a compelling and extraordinary reason.' (§ 1202.4, subd. (c), italics added.) However, the court may consider the defendant's inability to pay 'in increasing the amount of the restitution fine in excess of the minimum fine'" of $300. (People v. Taylor (2019) 43 Cal.App.5th 390, 399.)
Here, defendant did not object or request an ability to pay hearing, even though the court could have considered the issue under the restitution statute. "Consequently, [defendant] forfeited the objection that the court failed to consider his ability to pay the restitution fine." (People v. Taylor, supra, 43 Cal.App.5th at pp. 399-401.)
As to the $140 in assessments, because the trial court did not determine whether defendant could pay them, "[u]nder Dueñas, this was error, and we must remand for an ability to pay hearing unless the error was harmless." (People v. Taylor, supra, 43 Cal.App.5th at p. 401.) The People argue defendant forfeited his Dueñas argument and, in any event, the trial court constitutionally imposed the assessments without assessing defendant's ability to pay them. We need not address these contentions because we agree with the People that the error, if any, was harmless.
"'[E]very able-bodied' prisoner is required to work. (§ 2700; Cal. Code Regs., tit. 15, § 3040, subd. (a).) A prisoner's assignment to a paid position 'is a privilege' that depends on 'available funding, job performance, seniority and conduct.' (Cal. Code Regs., tit. 15, § 3040, subd. (k); accord, People v. Rodriguez (2019) 34 Cal.App.5th 641, 649.) Wages in prison range from $12 to $56 per month, depending on the job and skill level involved. (Cal. Code Regs., tit. 15, § 3041.2, subd. (a)(1).) Fifty percent of [defendant's] wages and trust account deposits will be deducted to pay any outstanding restitution fine, plus another 5 percent for the administrative costs of this deduction. (§ 2085.5, subds. (a), (e); Cal. Code Regs., tit. 15, § 3097, subd. (f).)" (People v. Taylor, supra, 43 Cal.App.5th at p. 402.)
Nothing in the record suggests defendant would not be able to work while serving his sentence. At the time of his arrest, defendant was 55 years old and working full-time for $30 per hour at a job he had had for about 11 years.
We assume defendant will obtain a prison job paying the minimum. We also assume that the $1,000 restitution fine will remain outstanding, which will leave defendant with $5.40 per month to settle the $140 in assessments. (People v. Taylor, supra, 43 Cal.App.5th at p. 402.) At that rate, defendant will pay off the assessments in 26 months into his sentence, which includes at least two terms of life without the possibility of parole. Accordingly, defendant "will have sufficient time to earn these amounts during his sentence, even assuming [he] earns nothing more than the minimum." (People v. Jones (2019) 36 Cal.App.5th 1028, 1035.)
We therefore conclude defendant will be able to pay the assessments. (People v. Jones, supra, 36 Cal.App.5th at p. 1035; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [court may consider defendant's future earnings in prison and after release in determining defendant's present ability to pay]; People v. Ramirez (1995) 39 Cal.App.4th 1369, 1377 [a trial court may consider the defendant's future ability to pay, including his ability to earn wages while in prison]; People v. DeFrance (2008) 167 Cal.App.4th 486, 505 [defendant sentenced to prison did not show absolute inability to pay $10,000 restitution fine even though prison wages would make it difficult for him to pay the fine, it would take a very long time, and the fine might never be paid].) On this record, any Dueñas error was harmless beyond a reasonable doubt. (People v. Jones, supra, 36 at p. 1035.)
E. Abstract of Judgment
The trial court initially imposed a $1,000 parole revocation fine (§ 1202.45), but then stated "[a]ctually, there is no parole in this case, so the Court is not going to impose that second fine. I think it's superfluous." The abstract of judgment, however, erroneously included the inapplicable $1,000 parole revocation fine, which the parties agree should be deleted from the abstract of judgment. We agree. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate court can strike clerical errors in the record].)
IV.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of judgment by deleting the $1,000 parole revocation fine. The trial court is directed to issue an amended abstract of judgment and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: FIELDS
J. RAPHAEL
J.