Opinion
B295178
02-21-2020
THE PEOPLE, Plaintiff and Respondent, v. KEVIN DUNSTON Defendant and Appellant.
David W. Beaudreau, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA471153) APPEAL from the judgment of the Superior Court of Los Angeles County. Stephen A. Marcus, Judge. Affirmed. David W. Beaudreau, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant challenges his conviction of two counts of second degree robbery. On appeal, he argues: (1) the prosecutor engaged in misconduct during trial by shifting the burden of proof to the defense, misstating evidence, impugning defense counsel, and improperly appealing to the jury's passions and sympathy; (2) the trial court prejudicially erred by failing to instruct the jury sua sponte on both the subjective and objective components of the "fear" element of robbery; (3) the cumulative effect of the multiple prosecutorial and trial court errors was prejudicial; (4) to the extent any of his contentions were forfeited on appeal, he received ineffective assistance of counsel; and (5) the trial court's imposition of fines and fees without an ability-to-pay hearing violated his due process rights.
We affirm the judgment in all respects.
FACTUAL AND PROCEDURAL BACKGROUND
In an Information filed October 4, 2018, appellant Kevin Dunston was charged with two counts of second degree robbery, in violation of Penal Code section 211, subdivision (a)—a felony—for robbing Emily Sanchez (count 1) and Enrique Enriquez (count 2). Appellant entered pleas of not guilty to both counts.
All further statutory references are to the Penal Code, unless otherwise stated.
On December 3, 2018, trial by jury commenced. The evidence at trial established that at approximately 7:00 p.m. on September 5, 2018, while working as a cashier at a Smart & Final store in Los Angeles, Emily Sanchez (Sanchez) noticed appellant when he stood near her register and "calmly" said, "I can't find my card." As she was ringing up another customer, Sanchez told appellant she could not help him. Appellant then reached over with his left hand and took a $100 bill from atop Sanchez's register—she had forgotten to put the bill inside her register. Sanchez asked for the money back but appellant loudly shouted, repeatedly cursed, and kept saying "fuck this" and "I can't find my card."
Sanchez asked for assistance from her coworkers, Passion (last name unreported) and Enrique Enriquez (Enriquez). Passion asked appellant to give back the $100 bill, but appellant replied, "No. Fuck that." He appeared "angry," was "flexing," and kept dropping "F bombs." Sanchez was afraid for her own safety and for the safety of her coworkers because "[a]nything could have happened within those moments." Sanchez had never experienced a robbery; she described it as "a scary moment" and "pretty traumatic." She began to move towards the door and noticed patrons at the store backing away from appellant as well.
Enriquez, a supervisor at Smart & Final, was about to walk out to lunch when he noticed appellant being "loud" and shouting, "I want my fucking card." Enriquez "tried to calm him down" and told appellant to "return the hundred-dollar bill and maybe we can help you." But Appellant replied, "Fuck your hundred-dollar bill," and pointed toward the cameras and told Passion and Enriquez to "go look at the cameras so we can find out who took it or where it is."
Both Passion and Enriquez positioned themselves between appellant and the doorway to prevent him from leaving the store with the $100 bill. Appellant was "all over the place" and told Passion to move out of the way; he "g[o]t in front of Passion using his body, trying to make himself seem bigger," kept flexing and trying to show "his macho-ness," and puffed out his chest and shoulders. He was wearing short sleeves and "all his veins and his muscles" were visible.
Enriquez noticed appellant clenching something with a handle that "resembled a hammer," but he was not sure since it was wrapped in a plastic bag. Sanchez also noticed appellant carrying something in his hand; she could not, however, discern what the item was, as it was "wrapped in white."
Passion informed appellant she was calling 911, to which he replied, "Report it. Thank you, I'm staying right here." Passion told the 911 operator appellant was acting "very violent, belligerent." Appellant again repeated, "Find my card. I don't give a fuck about no hundred dollars." Although Passion told him, "That's not how this works," appellant disagreed and replied, "That is how this works."
After Passion ended the call, appellant attempted to leave and Passion and Enriquez attempted to stall him. Enriquez felt like appellant was "sizing [him] up." Appellant "kept moving and moving until he finally got around" Enriquez and Passion. Enriquez did not use any force to keep appellant in the store or hold him down because Enriquez was afraid things would escalate if he did, and he "was not about to risk [himself]." Enriquez was in fear for himself and for his co-workers; he believed appellant would physically harm him if he approached closer. According to Enriquez, appellant's body language seemed like he was "trying to intimidate or scare."
Appellant left the store with the $100 bill. A pickup truck pulled up. Appellant got into the back of the truck and left. The police arrived and arrested appellant "somewhere down the street" from the store. The entire incident had lasted about 10 to 15 minutes.
At trial, a surveillance video of the alleged robbery incident was admitted and played for the jury, as well as an audio recording of the 911 call by Passion. Transcripts of the 911 call and the police interview of Sanchez were also admitted. Sanchez and Enriquez testified for the prosecution. Appellant did not call witnesses.
One of the main defense arguments was that appellant took the $100 bill only to get the attention and assistance of the store employees in finding his lost EBT card; that appellant "never intended to permanently deprive them of that hundred-dollar bill." The prosecutor argued, however, that appellant's repeated request for help in locating his card was "a ruse" and appellant was merely "looking to get away with a hundred bucks." The prosecutor reminded the jury of the audio recording of Passion's 911 call where appellant could be heard in the background never saying "find my EBT card," but rather, repeatedly saying "find my card." The prosecutor further argued it "could be a debit card, a credit card[,] [a]nything," and that the "only person . . . saying it's an EBT card is . . . the defense attorney."
EBT (electronic benefit transfer) cards are "like food stamps."
On December 4, 2018, the jury found appellant guilty of both counts of second degree robbery. Appellant was sentenced to an aggregate term of five years—a five-year term on count 1 and a concurrent three-year term on count 2. The court imposed a $40 court operations assessment per section 1465.8, subdivision (a)(1), a $30 criminal conviction assessment per Government Code section 70373, for each count (totaling $80 and $60, respectively), and a $500 restitution fine per section 1202.4, subdivision (b).
Appellant timely appealed.
DISCUSSION
I. Prosecutorial Misconduct
Appellant argues the prosecutor committed misconduct—or, more aptly, prosecutorial error—during closing and rebuttal argument by shifting the burden of proof, misstating the evidence, accusing defense counsel of fabricating a sham defense, and appealing to the jury's passions and sympathy. Respondent argues appellant forfeited two of his claims for prosecutorial error, the prosecutor did not make improper comments, and any prosecutorial error was not prejudicial.
" '[T]he term prosecutorial "misconduct" is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.' " (People v. Centeno (2014) 60 Cal.4th 659, 666-667 (Centeno).)
"A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. 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 trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44 (Morales).) " 'A defendant's conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.' " (People v. Tully (2012) 54 Cal.4th 952, 1010.)
The prosecutor's statements are examined in the context of the entire argument and the instructions given to the jury. (Morales, supra, 25 Cal.4th at pp. 44-46.) We do not lightly infer that the jury drew the most, rather than the least, damaging meaning from the prosecutor's statements. (People v. Shazier (2014) 60 Cal.4th 109, 144; People v. Dykes (2009) 46 Cal.4th 731, 772 (Dykes).)
Generally, " ' "[a] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety." ' " (Centeno, supra, 60 Cal.4th at p. 674.) "The reason for this rule, of course, is that 'the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the harmful effect upon the minds of the jury.' " (People v. Green (1980) 27 Cal.3d 1, 27, abrogated on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 239.) "The defendant's failure to object will be excused if an objection would have been futile or if an admonition would not have cured the harm caused by the misconduct. [Citation.]" (Centeno, at p. 674.)
A. The Prosecutor Did Not Shift the Burden of Proof to Defense Counsel.
Appellant asserts the prosecutor improperly shifted the burden of proof by commenting on appellant's failure to present evidence that he did, in fact, have an EBT card. In particular, he takes issue with the following remarks made by the prosecutor during closing argument: "Another thing about credibility is this: Defense has the same subpoena power that we [do]. Again, remember, they do not have to prove one single thing. They don't have to call a witness at all. But if you're going to say this is about an EBT card that was missing, [and that] he generally wanted help, where is the application for the EBT card?"
When defense counsel objected on the ground of "improper argument" based on "burden shifting," the trial court overruled the objection. At sidebar, the trial court explained: "He is allowed to argue that you haven't called certain logical witnesses. [He is] not allowed to comment on any part of the defendant not testifying, but he is allowed to comment. I don't think it's burden shifting." Defense counsel argued that the prosecutor would be directly referring to appellant by saying, "He could have called a witness." The trial court disagreed and stated so long as the prosecutor phrases it correctly and does not comment on the defendant's decision not to take the witness stand, then it "is not burden shifting."
The prosecutor resumed argument: "[W]e were talking about credibility of witnesses, and anytime something is brought forth in trial, hopefully there is some sort of evidence to back that up. [¶] Anybody who has ever experienced getting anything from a government agency knows it's a process. You have to fill out an application, sometimes multiple times, pay a fee, whatever it is—go to the office, find it. There's a record. If the argument is he was just looking for his card, you would have heard evidence of that. This is a ruse, folks. That is what it's being used for, that's the only purpose. And credibility is something that you should consider strongly."
Appellant contends these remarks were designed to lighten the prosecution's burden and were improper because the prosecutor's statements suggested "the jury should find Dunston guilty, because the defense did not prove he applied for and received an EBT card." We disagree.
"A distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence." (People v. Bradford (1997) 15 Cal.4th 1229, 1340 (Bradford).) A prosecutor is given " 'wide latitude to vigorously argue his or her case and to make fair comment upon the evidence.' " (Dykes, supra, 46 Cal.4th at p. 768.)
In the context of the entirety of closing argument, it is clear the prosecutor was not shifting the burden of proof to the defense, but was commenting on the issue of credibility, that is, appellant did not produce an EBT card or application in support of his defense. It was certainly within the province of the prosecution to critique the gaps in appellant's theory of defense. The prosecutor did not suggest, explicitly or implicitly, that appellant bore the burden of proof on any issue of guilt.
In addition, at the outset of closing argument, the prosecutor explained he is "the only one with a burden" and that the defense "does not have to prove a thing"; he reinforces and stresses this point: "Again, defense doesn't have to prove anything here. I'm the only one who has to prove everything beyond a reasonable doubt." Then, immediately preceding his argument about appellant having not produced evidence to back-up his claim that he had an EBT card, the prosecutor reiterated the prosecution has the burden of proving guilt and that defendant had no duty or burden to produce evidence. (Bradford, supra, 15 Cal.4th at p. 1340.)
Even if the prosecutor's remarks could be construed as error or misconduct, the trial court repeatedly instructed the jury that the People bore the burden of proving guilt beyond a reasonable doubt. It is presumed the jury followed the court's instructions. (Morales, supra, 25 Cal.4th at p. 47; People v. Redd (2010) 48 Cal.4th 691, 740 ["had any juror interpreted the comments to indicate that defendant had a burden of proof, this impression would have been dispelled by the instructions and the numerous reminders to the jurors that the People bore the burden of proving defendant's guilt"].)
We conclude the prosecutor's remarks were not misconduct and were not likely to be misapplied by the jury.
B. The Prosecutor Did Not Misstate the Evidence.
Appellant contends the prosecutor committed misconduct when he misstated the evidence during closing argument: "Go listen to that 911 call. The only person that is saying it's an EBT card is . . . the defense attorney. [Appellant] never says, 'My EBT card' . . . . [¶] There is no evidence that this was a food stamps card. Not one iota." The trial court overruled appellant's objection that the prosecutor's argument "[m]isstates the testimony." The prosecutor then continued: "Every single inference made, testified to, said on the 911 call was: 'My card is missing.' That could be a debit card, a credit card. Anything. It's a ploy."
Appellant argues the prosecution misstated the evidence by "telling the jury that no evidence showed Dunston was talking about an EBT card" because multiple witnesses testified Dunston complained about having lost his EBT card. We disagree.
The prosecutor did not misstate the evidence as to the 911 call because the transcript of the call confirms appellant never specified the type of card. Appellant repeatedly said "[f]ind my card" or "[f]ind my fucking card," but never said "find my EBT card."
Appellant argues Enriquez "repeatedly said on cross-examination that the card was an EBT card" and "specifically testified" that appellant asked for his EBT card, referring to the following exchange with the prosecutor, on direct:
"Q: He was asking for a card? Did he say what kind of card?
"A: I believe it was going to be like an EBT card.
"Q: And what kind of words was he using, specifically? If you can recall . . . .
"A: He was shouting, 'I want my fucking card.' "
(Italics added.)
Although it is misconduct for a prosecutor to misstate the evidence (People v. Hill (1998) 17 Cal.4th 800, 827-828), "[p]rosecutors have wide latitude to discuss and draw inferences from the evidence at trial." (People v. Dennis (1998) 17 Cal.4th 468, 522.) "Whether the inferences the prosecutor draws are reasonable is for the jury to decide." (Ibid.)
We do not agree with appellant that Enriquez "specifically testified" appellant was looking for an EBT card. When asked whether appellant had specified looking for his EBT card, Enriquez's exact words in response were that "it was going to be like an EBT card," which we interpret to mean Enriquez later learned or was told appellant was referring to his EBT card. (Italics added.) When asked to repeat the words appellant had "specifically" used; we find Enriquez confirmed appellant had not specified it was an EBT card by his answer: "He was shouting, 'I want my fucking card.' "
C. The Prosecutor Did Not Impugn Defense Counsel's Integrity.
During closing argument the prosecutor told the jury to "[g]o listen to that 911 call" where appellant "never says, 'my EBT card' or 'my food stamps.' " The prosecutor further argued defense counsel is the "only person that is saying it's an EBT card" and that "[t]his is a ploy to try to gain sympathy. Just as it's a ruse to try to distract so [appellant] can grab money from a register. Anything to make you feel sympathetic. That's a good defense attorney's job, and Mr. King is a great defense attorney."
Appellant contends the prosecutor "impugned defense counsel's integrity by suggesting he fabricated a sham defense as a 'ploy' to gain the jury's sympathy." (Boldface omitted.) He argues this prosecutorial misconduct amounted to prejudicial error, or in the alternative, that his trial counsel's failure to object to the alleged misconduct amounted to ineffective assistance of counsel.
Respondent argues appellant forfeited this claim for prosecutorial misconduct because he failed to timely object on the same ground or request an admonition at trial (Centeno, supra, 60 Cal.4th at p. 674). We agree. Although defense counsel made an objection, it was on another ground—that the prosecutor misstate[d] the testimony." Nor did appellant's trial counsel seek a curative admonition at the time of the alleged misconduct.
Even if we considered appellant's claim on the merits, we would not find prosecutorial error. "A prosecutor is not permitted to make false or unsubstantiated accusations that counsel is fabricating a defense or deceiving the jury." (People v. Clark (2011) 52 Cal.4th 856, 961.) A prosecutor has "wide latitude in describing the deficiencies in opposing counsel's tactics . . . ." (People v. Bemore (2000) 22 Cal.4th 809, 846.)
Here, the prosecutor's remark that defense counsel was the "only person . . . saying it's an EBT card" was true, as appellant himself was never heard calling his card an EBT card. It is clear the prosecutor was not accusing defense counsel of fabricating a defense nor was he attacking defense counsel's integrity. Rather, the prosecutor was permissibly criticizing defense counsel's argument. (See People v. Marquez (1992) 1 Cal.4th 553, 575-576 [not prosecutorial error to call defense counsel's argument a " 'heavy smokescreen that has been laid down [by the defense] to hide the truth' "]; Dykes, supra, 46 Cal.4th at p. 768 [prosecutor is given " 'wide latitude to vigorously argue his or her case' "].) It was proper argument against the jury's acceptance of the defense presented.
Because we find no error, we do not consider appellant's ineffective assistance of counsel claim.
D. The Prosecutor Did Not Appeal to the Jury's Passions and Sympathies.
Appellant argues the prosecutor improperly appealed to the passions and sympathies of the jury by arguing, as follows:
"If you're paying attention to the news at all, what just happened at Walgreens? This is what these statutes are for, because the moment people become engaged in conflict about stupid things involving property, pride, ego, someone wanting to be a hero jumps in and someone's potential for harm escalates significantly. And what the defendant did on September 5, 2018 . . . at the Smart & Final store, did just that; he put everyone at risk there by his actions. And that is why it matters."
"[P]eople should not have to be in danger for something like a hundred bucks, whether it's the defendant's life, a clerk's life, or the patrons at that store. It shouldn't be that way. You should be safe in your environment where you go to work or where you go shop. That's why we have these statutes."
"[T]hese are the places you go shop, these are the places maybe family members . . . or you work, and how people act matters, because if it turns into escalated conduct . . . somebody might get physical."
"Other than that, take it fairly, read it impartially, decide for yourself if the people in that store matter enough to enforce the statute. And I promise you, if you're taking the law as it's written and as it's supposed to be applied, this is a robbery, and it's that simple."
This was, no doubt, an appeal to irrelevant considerations. It is not proper to ask the jury to base its decision on whether the "people in the store matter enough to enforce the statute." This borders on inciting the jury against the defendant by asking it to choose who is more important. Appellant concedes his trial counsel lodged no objection to the alleged misconduct he now challenges on appeal, nor did his counsel ask for a curative admonition. He requests that we exercise our discretion to excuse his failure to object. We decline to do so. Anticipating this, appellant contends his trial counsel rendered ineffective assistance of counsel (IAC) for failing to object to the prosecutor's argument.
To prove IAC, appellant must satisfy the two-part test of Strickland v. Washington (1984) 466 U.S. 668, requiring a showing of counsel's deficient performance and prejudice. (Id. at p. 687.) Appellant must show his trial attorney performed well below the standard of reasonableness under prevailing professional norms and the result would have been more favorable to him but for that substandard performance. (Id. at pp. 686-688.) On appeal, we give deference to trial counsel's tactical choices and presume counsel's decisions were proper. (Id. at pp. 691-694.)
On appeal, appellant has not proven his counsel provided IAC by failing to object; he had made only a conclusory argument that "if defense counsel failed to preserve every instance of misconduct for review, then he failed to zealously advocate for Dunston and therefore performed deficiently." This perfunctory statement is not a viable argument on appeal. Moreover, we have no reason to conclude counsel's failure to objection was anything other than a strategic decision. There could have been many reasons why counsel decided against objecting to the statements at issue. Perhaps counsel thought an objection could have drawn more attention to the prosecutor's remarks or, alternatively, if the court were to overrule an objection, the prosecutor would have been emboldened to take his remarks further.
We also find it is not reasonably probable appellant would have obtained a more favorable verdict but for counsel's failure to object. (People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) Multiple witnesses testified and confirmed appellant took a $100 bill; was flexing, shouting, moving all over the place, cursing, and puffing out his chest during the incident, frightening the victims; and left the store with the money. This case was not so closely balanced that counsel's failure to object to the prosecutor's appeal to the jury to protect the public materially affected the verdict.
II. Jury Instruction on Robbery's Element of "Fear"
When the trial court indicated it would instruct with CALJIC No. 9.40.2, appellant objected and requested that the trial court instead read language from the standard CALCRIM No. 1600 instruction on robbery. Defense counsel asked for the following language from CALCRIM No. 1600: "The defendant's intent to take the property must have been formed before or during the time he used force or fear. If the defendant did not form this required intent until after using the force or fear, then he did not commit robbery." The trial court stated the CALJIC "instruction has been used for years; it's still a good instruction, and I am not required to give CALCRIM." Appellant then reframed his argument and said: "I'm not necessarily asking to give the CALCRIM instruction. I'm asking for a specific pinpoint based on the facts of this case." "[T]here was no force used, no verbal threats, there was no wielding of a weapon, there is some confusion as to the use of force, that though these victims say that they were afraid[,] it has to be related to Mr. Dunston's use of whatever conduct he was enacting . . . ." Trial court declined to so instruct.
CALJIC No. 9.40.2 provides: "To constitute the crime of robbery, the perpetrator must have formed the specific intent to permanently deprive an owner of [his] [her] property before or at the time that the act of taking the property occurred. If this intent was not formed until after the property was taken from the person or immediate presence of the victim, the crime of robbery has not been committed." --------
A criminal defendant is entitled, on request, to instructions that pinpoint the theory of the defense case. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1142.) A trial court may properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing, or if it is not supported by substantial evidence. (People v. Moon (2005) 37 Cal.4th 1, 30.)
On appeal, appellant argues he "specifically requested that the trial court instruct the jury that, even though the victims may have been subjectively afraid, their fear had 'to be related to Mr. Dunston's' conduct"; he specifies the prosecution "must prove both a subjective and an objective component concerning the victim's fear." However, appellant's argument at trial on this point was not about subjective and objective components to the element of fear. It appeared to be an argument about timing, that is, if the victims were afraid, it was not due to anything appellant did to exert force or instill fear specifically to obtain the $100 bill during his encounter with them. The CALJIC instructions given by the court on robbery, including CALJIC Nos. 9.40 and 9.40.2, which covered all the elements of the crime of robbery as well as timing considerations, adequately covered appellant's defense theory. (People v. Covarrubias (2016) 1 Cal.5th 838, 876.)
Appellant next contends the trial court erred by failing to sua sponte instruct the jury on both the subjective and objective components of the "fear" element of robbery. We conclude that no such instruction was necessary. California statute or case law does not require a victim's fear to be objectively reasonable; it only requires that a victim of robbery have actual fear, i.e., subjective in nature. (See People v. Anderson (2007) 152 Cal.App.4th 919, 946; see People v. Cuevas (2001) 89 Cal.App.4th 689, 698; see People v. Bordelon (2008) 162 Cal.App.4th 1311, 1319.) We note appellant's reliance on language in People v. Iniguez (1994) 7 Cal.4th 847 is misplaced as Iniguez analyzed the concept of fear in the context of the Legislature's elimination of the active resistance requirement in rape prosecutions.
III. Cumulative Error
Appellant next asserts the cumulative effect of prosecutorial misconduct and trial court errors requires reversal.
"Under the 'cumulative error' doctrine, we reverse the judgment if there is a 'reasonable possibility' that the jury would have reached a result more favorable to defendant absent a combination of errors." (People v. Poletti (2015) 240 Cal.App.4th 1191, 1216.) " 'The "litmus test" for cumulative error "is whether defendant received due process and a fair trial." ' " (Id. at p. 1217.)
We have considered each claim of error—whether raised as prosecutorial misconduct, ineffective assistance of counsel, or trial court error. We have concluded either no error occurred, appellant forfeited the claim, or the claimed error did not result in prejudice. Furthermore, the evidence against appellant was ample; we find there is no reasonable probability the jury would have reached a more favorable verdict in the absence of the claimed errors. (People v. Carrera (1989) 49 Cal.3d 291, 332.) IV. Appellant Forfeited His Challenge to the Trial Court's Imposition of Fines and Fees.
Appellant argues the trial court violated his federal and state right to due process by imposing an $80 court operations assessment, a $60 criminal conviction assessment, and a $500 restitution fine without determining whether he had the present ability to pay. Appellant requests we vacate the assessments and stay the imposition of the restitution fine under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
Appellant concedes he did not object to the assessments or the restitution fine. He argues, however, that his counsel's failure to object at the trial level is excusable because it would have been futile, as Dueñas was not yet decided and "represents a dramatic and unforeseen change in the law."
We are unpersuaded. "[N]othing in the record of the sentencing hearing indicates that [appellant] was foreclosed from making the same request that the defendant in Dueñas made in the face of those same mandatory assessments." (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154.) Appellant plainly could have made a record had his ability to pay the assessments and fine actually been an issue. (Id. at pp. 1153-1155.]) As a result, we find appellant has forfeited this challenge. (Id. at p. 1155; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J. We concur:
BIGELOW, P. J.
WILEY, J.