Opinion
A157099
12-30-2021
THE PEOPLE, Plaintiff and Respondent, v. FRED DOUGLAS LOWE, Defendant and Appellant.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05-181540-6
BANKE, J.
While driving under the influence on a freeway, defendant Fred Douglas Lowe hit a car, causing it to cross over the center divider into oncoming traffic. All four passengers in the car he hit were killed. That car, in turn, collided with other vehicles, and three people in those vehicles were seriously injured. Defendant fled the scene. He was eventually convicted of four counts of second-degree murder, two driving-under-the-influence offenses, one count of leaving the scene of an accident, and associated enhancements. The trial court sentenced him to an indeterminate term of 120 years to life, plus a 15-year determinate term.
Defendant asserts the court erred in upholding the prosecutor's peremptory challenge to an African-American prospective juror and denying his request for an instruction on gross vehicular manslaughter and vehicular manslaughter. He also maintains the prosecutor committed misconduct during closing argument. He additionally claims the court erred in imposing both a great bodily injury enhancement and a multiple victim enhancement, and in imposing certain fines and fees without an ability to pay determination. We affirm.
We summarize the facts here and discuss additional pertinent facts in connection with our discussion of the issues on appeal.
Defendant was driving a Mercedes sedan on a freeway with a blood alcohol content of approximately 0.257 percent. He hit another vehicle, a Nissan, killing four passengers in that car. The Nissan went over the center divider and struck a Lincoln Navigator, which was then rear-ended by vehicles behind it. The Navigator's driver and a passenger, A.V. and M.V., respectively, were seriously injured. Another vehicle, a Honda Accord, was hit head-on during the pileup, seriously injuring the driver, R.P.
We use initials to protect these individuals' privacy interests. (Cal. Rules of Court, rule 8.90(b)(10).)
Defendant drove away from the scene of the accident. Less than an hour later, an El Sobrante resident noticed a badly damaged Mercedes parked on the street. The resident approached the Mercedes and asked defendant, who was in the driver's seat, if he needed help. Defendant said no and walked away. The resident believed defendant was drunk based on his gait and the odor of alcohol.
A Contra Costa County deputy sheriff was dispatched to the location of the Mercedes. He drove around looking for the driver and found defendant, who appeared intoxicated given his "red watery eyes," unsteady gait, slurred speech, and odor of alcohol. The deputy sheriff detained defendant, pat-searched him, and found a Mercedes key in his pocket. Police determined the Mercedes key belonged to the parked, damaged Mercedes. The Mercedes was registered to another individual who testified he sold the car to defendant.
Defendant was charged with four counts of murder (Pen. Code, § 187), one count of driving under the influence within 10 years of two prior DUIs (Veh. Code, §§ 23153, subd. (a), 23566, subd. (a)), one count of driving with a blood alcohol content of 0.08 percent or above within 10 years of two prior DUIs (Id., §§ 23153, subd. (b), 23566, subd. (b)), and one count of leaving the scene of an accident (Id., § 20001, subd. (a)). As to the two DUI counts, the information additionally alleged one enhancement of causing bodily injury to more than one victim, and two enhancements of causing great bodily injury, one as to R.P. and one as to M.V. As to the four counts of murder, the information alleged defendant had a prior felony conviction for robbery and a prior serious or violent felony conviction for robbery. (Pen. Code, §§ 667, subd. (a)(1), 667, subds. (d), (e), 1170.12, subds. (b), (c).)
The court found true the allegations based on defendant's prior robbery convictions, and a jury found defendant guilty of the remaining charges and enhancements.
The court imposed an indeterminate term of 120 years to life-15 years to life for each count of second-degree murder, doubled under the Three Strikes law. It imposed a determinate, consecutive five-year term based on defendant's prior serious felony conviction under Penal Code section 667, subdivision (a)(1). As to count 5, driving under the influence within 10 years of two prior DUIs, the court imposed the mid-term of three years, plus three years for each great bodily injury enhancement as to two victims, plus one year for the Vehicle Code section 23558 enhancement for multiple victims, for a total of 10 years to run consecutively. As to count 6, driving with a blood alcohol content of 0.08 percent or higher within 10 years of two prior DUI convictions with the same enhancements, the court imposed the same sentence as count 5, stayed under Penal Code section 654. It imposed a three-year sentence for the conviction of leaving the scene of an accident, to run concurrently.
The court imposed a restitution fine of $2,100.00 under Penal Code section 1202.4, subdivision (b), stayed due to defendant's incarceration. It also imposed and suspended a parole violation fine of $2,100.00 under Penal Code section 1202.45. Additionally, it ordered defendant to pay a court operations assessment of $280.000, $40.00 for each count, and a criminal conviction assessment of $210.00, $30.00 for each count.
DISCUSSION
Batson/Wheeler Challenge
Defendant maintains the prosecutor's peremptory challenge to a prospective juror who was an African-American woman (Juror 33) violated his rights under the Sixth and Fourteenth Amendments, as set forth in Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in part by Johnson v. California (2005) 545 U.S. 162.
" '[A] party may exercise a peremptory challenge for any permissible reason or no reason at all' [citation] but 'exercising peremptory challenges solely on the basis of race offends the Fourteenth Amendment's guaranty of the equal protection of the laws [citations].' Such conduct also 'violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution.' (Wheeler, supra, 22 Cal.3d at pp. 276-277.)" (People v. Smith (2018) 4 Cal.5th 1134, 1146 (Smith).)
" 'A three-step procedure applies at trial when a defendant alleges discriminatory use of peremptory challenges. First, the defendant must make a prima facie showing that the prosecution exercised a challenge based on impermissible criteria. Second, if the trial court finds a prima facie case, then the prosecution must offer nondiscriminatory reasons for the challenge. Third, the trial court must determine whether the prosecution's offered justification is credible and whether, in light of all relevant circumstances, the defendant has shown purposeful race discrimination. [Citation.] "The ultimate burden of persuasion regarding [discriminatory] motivation rests with, and never shifts from, the [defendant]." '" (Smith, supra, 4 Cal.5th at p. 1147.)
A defendant makes a prima facie case by showing that "the totality of the relevant facts' "gives rise to an inference of discriminatory purpose." '" (People v. Scott (2015) 61 Cal.4th 363, 384 (Scott), quoting Johnson v. California (2005) 545 U.S. 162, 168.) Whether a prima facie case exists depends upon "the entire record of voir dire as of the time the motion was made," and "certain types of evidence may prove particularly relevant." (Scott, at p. 384.) "Among these are that a party has struck most or all of the members of the identified group from the venire, that a party has used a disproportionate number of strikes against the group, that the party has failed to engage these jurors in more than desultory voir dire, that the defendant is a member of the identified group, and that the victim is a member of the group to which the majority of the remaining jurors belong. [Citation.] A court may also consider nondiscriminatory reasons for a peremptory challenge that are apparent from and 'clearly established' in the record [citations] and that necessarily dispel any inference of bias." (Ibid.)
When a trial court finds that the defendant failed to establish a prima facie case of purposeful discrimination, we review the record, including voir dire and any jury questionnaires, to determine whether substantial evidence supports the ruling. (People v. Griffin (2004) 33 Cal.4th 536, 555 (Griffin), disapproved on another ground in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32.) "We sustain the ruling when the record discloses grounds upon which the prosecutor properly might have exercised the peremptory challenge[] against the prospective juror[] in question." (Griffin, at p. 555.)
Prior to exercising a peremptory challenge as to Juror 33 (his seventh peremptory challenge), the prosecutor challenged a male African-American prospective juror for cause, which the court granted. Defense counsel did not object to that challenge; in fact, that prospective juror was challenged for cause by mutual agreement of the parties.
At the time of the peremptory challenge at issue, there were 10 prospective African-American jurors.
Juror 33 was called up for voir dire and stated she was retired from Contra Costa County Children and Family Services, and was working as a marriage, children, and family therapist. She indicated her "nephew recently transitioned from Contra Costa District Attorney's Office; he's now in the private sector." She was not sure if he did defense work and felt nothing about his work would affect her objectivity in the case.
While defendant asserts Juror 33's "nephew had served as a Deputy District Attorney in Contra Costa County," Juror 33 was not specific in voir dire as to her nephew's former position with the District Attorney's Office. Defendant is also mistaken in stating Juror 33 said "she had retired from the Contra Costa County police department before becoming a therapist." Juror 33 stated she had retired from Contra Costa County Children and Family Services.
The prosecutor asked Juror 33 about her ability to fulfill her role as a juror and consider only the admitted evidence. Juror 33 stated: "Well, I don't have a problem being a juror and the process that you described. [¶] Getting back to your first question [to other jurors], when you asked about entering the room and being biased toward the defense or the prosecution, my bias would be more toward the system 'cause when I walked in and I immediately saw that the defendant was an African-American male, the first thing that came to me was this was, you know, a part of the institutional racism that is rampant in our country. [¶] So if I was judging anything [it] would be the system. So even more so sitting on a jury would want to be here and be able to check my own bias so that I could do exactly what you said, but that is what came to my mind when I walked in."
The prosecutor responded: "Appreciate it. And one of the fundamental-there's no, like, DA school, but you learn early on number one thing you don't do in this process is offend people, so I'm trying really hard not to, but that concerns me how an African-American person walking in this door, seeing mostly white people but the defendant's African-American, how do they respond to that? And now we know how you felt about it. And now I'm the prosecutor, and I've got to be somewhat concerned. Should I be?
The Juror responded: "I think I can perform my role. I do it every day. I work with clients. I've worked in child welfare in the juvenile courts and had to do similar kinds of things; I've had to judge evidence and put my feelings in check, as you mentioned with the other young lady, working with all types of families who abuse children and had to judge that and still provide services to those people and engage them and help them get their children back. So I've had to do that for many, many years, but I just wanted to let you know what I saw when I walked in."
The prosecutor responded: "Okay, I'm still wondering do you think if you-that the feeling might cause you to interpret evidence one way, maybe in [defendant's] favor?" Juror 33 responded: "I can do my job as a juror."
The prosecution exercised a peremptory challenge against Juror 33. Defense counsel promptly interposed a Batson/Wheeler objection.
The following colloquy then occurred outside the jury's presence: "[Defense Counsel]: So for the record my client is African American. Within the 12 as they are currently seated, (Juror No. 40) is African American, I believe a woman, [Juror 33] is also African American. . . . [¶] Within the larger panel, we had started yesterday morning with 90. There are very few African American potential jurors . . . I think perhaps five within the 90. [The juror previously excused for cause], . . . who had been seated within the group of 12 is also an African American, he's a man and I did not object when [the prosecutor] asked for him on cause because he had said some things about alcohol and some other things. [¶] However with [Juror 33], I do not believe she has said anything that would make her a for-cause challenge, but more pertinently, I do not believe she has said anything that is outside the range of what other jurors have said. [¶] She does say that she has a nephew who had, until recently, been with the Contra Costa County DA, though she is not sure. She thinks he's doing law still but doesn't know what type. [¶] So I am objecting to the DA using a peremptory for [Juror 33]."
The court asked the prosecutor if he would like "to address the issue of whether there's a prima facie showing." He responded "I don't believe counsel has made one. Couple of comments that were made by counsel that there are very few African Americans in the larger panel. So whatever extent that bears on the issue of a prima facie challenge, I would say that there's no record of that and there is no evidence that there is any lower percentage within this panel than would be reflected in the population of Contra Costa County. [¶] With respect to [the juror challenged for cause], the Court will recall, this was off the record, but counsel was considering challenging him for cause, and when I said I was seeking to do the same, we all agreed that I would make the cause challenge and that's how that played out. [¶] And with respect to the current challenge, there is another African American person on the panel and there was questioning of this potential juror which, when I make my record I'll point out, but the Court is well aware of her comments that would cause at least some concern. So I don't believe counsel has made the requisite prima facie showing."
Defense counsel responded: "One thing that I do recall is that [Juror 33] did say . . . she has concerns about the incarceration rates of African American men or maybe African Americans in general. If-and it is true that I'm speculating a little bit here-if that comment is the basis of [the prosecutor's] choice to use a peremptory, I would ask this Court to consider that that type of comment can very easily be used as a-whether intentionally or not, that type of comment can correlate very highly to race. And I'm asking the Court to take that into consideration-to the race of the individual of the potential juror making the comment in voir dire."
The court concluded there was no prima facie showing. It first noted that the fact that another African-American prospective juror had been challenged and excused for cause by the prosecutor was not relevant. The court agreed that defense counsel "initially said that she was considering or on the fence as to whether to challenge [that juror] for cause, and when [the prosecutor] expressed that he would join that challenge, [defense counsel] said that she would rather it be the People's challenge rather than hers. And because there was no opposition to the challenge and because [the juror] made a number of comments that would justify a cause challenge by either side, I granted the cause challenge."
As to the composition of the panel, the court stated "I think it's at least helpful to note for the record, I don't know that it is relevant to the prima facie showing, but I, being cognizant of the potential issue, made my best effort to count, and I count presently eight African Americans in the audience in addition to the two in the jury box, and [the juror excused for cause] . . . which would be a total of 11 in the jury pool."
The court concluded: "I do not find that the defense has shown a prima facie cause within the meaning of Johnson [v. California]. . . . [I]t is a single challenge which can be sufficient to make a prima facie case if the evidence is there, but I do not think that that case has been made." (Italics added.)
The prosecutor then asked if he could make a record of the reasons for the challenge, to which the court agreed. The prosecutor explained "when I questioned [Juror 33] about initial impressions, she stated something to the effect that she saw the race of the defendant and it made her think of her bias against the system, not either party she was clear to point out, but the system. And I didn't recall specifically the words of higher incarceration rates of African American men, but that was the tenor of it to me, which caused me concern. Though she tended to answer the questions thereafter in a way that wouldn't cause one concern, that initial impression by her caused me concern, and it caused me concern that though her bias wasn't against the DA, the system is really what I'm involved in and the People are involved in, and I think she might at least subconsciously hold that against the People's case. [¶] And when comments are made, we had (Juror No. 49) bring up the fact that a cousin of her stepfather had been prosecuted for voluntary manslaughter and she wondered why it was different for him than it was in this case, sort of in the context of implied malice murder, that especially piqued my concern with [Juror 33] who might think, oh, is it just the African American man who gets charged with murder under these circumstances? That's my primary concern. [¶] She also was, not gruff, but curt in explaining that she could be fair. I think she went into an explanation about her job and how she-and I liked her comment that you judge the conduct, not the person. But she summed it all up and said therefore I can be fair. I believe I tried to delve in further and she said, and this was somewhat curt, I can be fair. And that conclusory tone was a little bit off-putting to me. Plus her position or at least part of her career as a therapist. It's not my favorite occupation to have as juror. With that experience they tend to be sympathetic to people who have made mistakes and try to see the good side and help them."
On appeal, defendant asserts "after reviewing the record under the rules set forth in Batson and Johnson . . . this court should find that the prosecutor failed to give credible race-neutral reasons for his challenge." He maintains that in "a case such as this, where the prosecutor gave reasons for the challenge, but the court did not rule on the reasons, this court may conduct its own independent determination of their validity."
"[A]n appellate court properly reviews the first-stage ruling if the trial court has determined that no prima facie case of discrimination exists, then allows or invites the prosecutor to state reasons for excusing the juror, but refrains from ruling on those reasons." (Scott, supra, 61 Cal.4th at p. 386.) "[W]hen a trial court has concluded 'that a prima facie showing has not been made, the request' for a statement of reasons 'does not convert a first-stage Wheeler/Batson case into a third-stage case.'" (Id. at p. 388, quoting People v. Howard (2008) 42 Cal.4th 1000, 1020.) Only where "it is not clear whether the trial court used the 'reasonable inference' standard, rather than the recently disapproved 'strong likelihood' standard, [do] we review the record independently." (People v. Kelly (2007) 42 Cal.4th 763, 779.)
Unlike in Kelly, the trial court in this case stated it was "applying the [reasonable inference] standard from Johnson [v.] California and the cases since then that have elaborated on the standard." (Italics added.) Accordingly, we review the court's ruling that no prima facie showing was made for substantial evidence. (People v. Bonilla (2007) 41 Cal.4th 313, 341.)
Applying the Scott factors, we conclude substantial evidence supports the trial court's finding of no prima facie showing. First, the prosecutor challenged only one other African-American prospective juror, and that was for cause and by mutual agreement of the parties. Nine African-Americans remained in the venire, with one on the panel, and the prosecutor did not use a "disproportionate number of strikes against the group." (Scott, supra, 61 Cal.4th at p. 384.) The prosecutor did not fail "to engage these jurors in more than desultory voir dire." Indeed, he questioned Juror 33 extensively after she stated she had a bias against the judicial system. Lastly, nondiscriminatory reasons for a peremptory challenge were "apparent . . . and 'clearly established' in the record.'" (Ibid.) Juror 33 acknowledged a "bias [that] would be more toward the system," and that "if [she] was judging anything [it] would be the system."" 'A prospective juror's distrust of the criminal justice system is a race-neutral basis for excusal.'" (People v. Winbush (2017) 2 Cal.5th 402, 439.) Likewise, a prospective juror's "view that minorities are not treated fairly in any county in California" is an "accepted race-neutral reason[]." (People v. Bryant (2019) 40 Cal.App.5th 525, 537.)
On this record, the trial court did not err in upholding the prosecutor's peremptory challenge and denying defendant's Batson/Wheeler objection.
Manslaughter Instructions
Defendant maintains the trial court also erred in denying his request for instructions on gross vehicular manslaughter and vehicular manslaughter. He acknowledges "the parties agreed that the current state of the law is that manslaughter is not a lesser included offense of implied malice Watson murder," but asserts he sought the instructions "as general principles of law relevant to the case."
As defendant recognizes, our high court held in People v. Sanchez (2002) 24 Cal.4th 983 (Sanchez) that "gross vehicular manslaughter while intoxicated is not a lesser included offense of murder." (Id. at p. 985.) He also acknowledges that People v. Birks (1998) 19 Cal.4th 108, overruled People v. Geiger (1984) 35 Cal.3d 510, which had held a criminal defendant was entitled to instructions on lesser offenses which were not necessarily included in the charge. (Geiger, at pp. 530-532, Birks, at p. 136.)
Overruled on another ground in People v. Reed (2006) 38 Cal.4th 1224, 1228-1229.
Defendant maintains, however, that Sanchez does not control "on the issue of instructing the jury." He asserts "Justice Kennard's reasoning [in her dissent in Sanchez], that manslaughter in whatever form is a lesser included offense of murder, . . . is the better approach when considering jury instructions." (See Sanchez, supra, 24 Cal.4th at p. 998 (dis. opn. of Kennard, J.).)
"[D]issenting opinions are not binding precedent." (People v. Lopez (2012) 55 Cal.4th 569, 585.) And subsequent cases have rejected defendant's claim.
"As far as the crime of involuntary manslaughter, the court was prohibited from giving that instruction because the crime does 'not apply to acts committed in the driving of a vehicle.' [Citation.] As far as [the] crime of gross vehicular manslaughter, the court properly refused [defendant's] request for that instruction because the prosecution did not consent to the giving of the lesser related offense instruction and because of the California Supreme Court's ruling in Sanchez. . . ." (People v. Wolfe (2018) 20 Cal.App.5th 673, 686; see People v. Bettasso (2020) 49 Cal.App.5th 1050, 1057-1059.)
Defendant also maintains the failure to instruct on manslaughter "constituted federal Constitutional error." (Capitalization omitted.) However, "there is no federal constitutional right of a defendant to compel the giving of lesser-related-offense instructions." (People v. Rundle (2008) 43 Cal.4th 76, 148, disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Misconduct During Closing Argument
Defendant asserts the prosecutor committed misconduct during rebuttal closing argument by denigrating defense counsel and intimidating the jury.
He claims the following portions of the prosecutor's rebuttal constituted misconduct: "Just because [defendant] is entitled to a defense as he is like every one of us doesn't mean that there will be a valid defense and there hasn't been in this case." And in responding to defense counsel having posited during her closing whether the crime could be manslaughter, the prosecutor stated, "Of course, it's a manslaughter. It's a vehicular manslaughter. It's a bunch of other crimes too, but we don't charge somebody with just one of the lesser crimes . . . we ask the jurors to find them guilty of, the most serious crime that they committed."
Defendant also maintains the prosecutor's rebuttal to defense counsel's argument about the "natural and probable consequences" language in CALCRIM No. 520 was misconduct. He identifies the following statements: "I kind of figured this is where Counsel would go with it. It's-it's cumbersome and Counsel put up the three different context[s] of the natural and probable consequences and talked about all of them. Perhaps there's somebody who will get confused amongst you. That would be a victory for one of you not to be convinced and to have a hung jury. For the two of you to think, oh, you know, gosh. I don't-you know, does DUI have to result in death likely? That's not what the law is." The prosecutor noted defense counsel's interpretation of the law was "convoluted" and "misstat[ed] the evidence and the application of law," which "[s]he's hoping somebody will bite on." The prosecutor called defense counsel's argument "legal mumbo jumbo, frankly, and trying to get you folks to not understand this."
"' "A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such' "unfairness as to make the resulting conviction a denial of due process." '"' [Citations.]' "Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial."' [Citation.] 'When a claim of misconduct is based on the prosecutor's comments before the jury," 'the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.'"' [Citation.] Prosecutorial misconduct can result in reversal under state law if there was a 'reasonable likelihood of a more favorable verdict in the absence of the challenged conduct' and under federal law if the misconduct was not 'harmless beyond a reasonable doubt.'" (People v. Rivera (2019) 7 Cal.5th 306, 333-334.)
"' "[A] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion-and on the same ground-the defendant made an assignment of misconduct and requested that the jury be admonished to disregard impropriety." '" (People v. Pearson (2013) 56 Cal.4th 393, 426.) "Where the defendant does not contemporaneously object to alleged misconduct, we generally decline to review the claim on appeal unless a timely admonition could not have cured the harm." (People v. Rivera, supra, 7 Cal.5th at p. 334.)
As defendant concedes, his counsel did not object to any of the claimed instances of misconduct. He claims, however, that any objection would have been futile because other objections made during closing argument were overruled. Defendant fails to identify those other objections, or to explain what relevance their denial had to his failure to object to the portions of the prosecutor's rebuttal he asserts were misconduct.
Even if his claims were not forfeited, defendant has failed to establish any misconduct. A prosecutor's comment "aimed solely at the persuasive force of defense counsel's closing argument, and not at counsel personally" is not misconduct. (People v. Zambrano (2007) 41 Cal.4th 1082, 1155 (Zambrano), disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390.)
Courts have found no impropriety based on prosecutorial remarks similar to those in this case. In People v. Stitely (2005) 35 Cal.4th 514, for example, the prosecutor told jurors "to avoid 'fall[ing]' for counsel's argument in favor of a second degree murder verdict, to view counsel's argument as a 'ridiculous' attempt to allow defendant to 'walk' free, . . . and to view counsel's argument as a 'legal smoke screen.'" (Id. at p. 559.) The court concluded no misconduct occurred. It explained "[t]his case does not involve such forbidden prosecutorial tactics as falsely accusing counsel of fabricating a defense or otherwise deceiving the jury. [Citation.] The prosecutor simply used colorful language to permissibly criticize counsel's tactical approach. [Citations.] These comments were explicitly aimed at counsel's closing argument and statement, rather than at him personally. We see no improper attack on counsel's integrity." (Id. at p. 560.)
Similarly, in People v. Gionis (1995) 9 Cal.4th 1196, the prosecutor's argument that defense counsel was talking "out of both sides of his mouth" and that this was' "great lawyering'" was not misconduct. (Id. at pp. 1215- 1216.) Likewise, no misconduct was found where the prosecutor stated defense counsel" 'wants to try to confuse you about what the meaning of the special circumstance instruction is. Well, he's a skilled attorney, and he's doing the best he can.'" (People v. Dykes (2009) 46 Cal.4th 731, 772.)
Defendant also claims some of the prosecutor's comments constituted jury intimidation, relying on People v. Sanchez (2014) 228 Cal.App.4th 1517. In that case, the prosecutor stated "defendant hopes that 'one of you' will be 'gullible enough,' 'naive enough,' and 'hoodwinked' by the defense arguments so that [defendant] 'can go home and have a good laugh at your expense.'" (Id. at p. 1529.) The court concluded the prosecutor's comments "fell outside the bounds of the 'wide latitude' given to prosecutors during argument because the comments were designed to offend and intimidate the potential holdout juror who doubted defendant's guilt." (Id. at p. 1530.)
The prosecutor's comments in this case were not comparable. He stated: "Perhaps there's somebody who will get confused amongst you. That would be a victory for one of you not to be not convinced and to have a hung jury." These statements were not designed to intimidate a potential holdout juror who doubted defendant's guilt but were regarding defense counsel's attempt to instill confusion about the law.
In sum, even if defendant had not forfeited his claims, there was no prosecutorial misconduct.
Vehicle Code Section 23558 One-Year Enhancement
Defendant was convicted of driving under the influence causing injury within 10 years of two prior DUIs (count 5). (Veh. Code, §§ 23153, subd. (a), 23566, subd. (a).) The two enhancing allegations under Penal Code section 12022.7, subdivision (a), and one enhancing allegation based on multiple victims under Vehicle Code section 23558, were found true.
Penal Code section 12022.7 provides in part, "Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years." (Pen. Code, § 12022.7, subd. (a).)
Vehicle Code section 23558 provides in part, "A person who proximately causes bodily injury or death to more than one victim in any one instance of driving in violation of Section 23153 . . . shall, upon a felony conviction, and notwithstanding subdivision (g) of Section 1170.1 of the Penal Code, receive an enhancement of one year in the state prison for each additional injured victim."
The trial court imposed two, three-year enhancements as to the Penal Code section 12022.7, subdivision (a) enhancements, based on the bodily injury to victims R.P. and M.V. The court also imposed a one-year sentence for the Vehicle Code section 23558 enhancement based on causing injury to more than one victim. The victims named in that enhancing allegation were M.V. and A.V.
The same enhancing allegations with the same named victims were alleged as to count 6, driving with a 0.08 blood alcohol content causing great bodily injury within 10 years of two other DUI offenses. (Veh. Code, §§ 23153, subd. (b), 23566, subd. (b).) The court imposed the same sentence as in count 5, stayed under Penal Code section 654.
Defendant maintains the court violated Penal Code section 654 by imposing sentences for both the two Penal Code section 12022.7 enhancements and for the Vehicle Code section 23558 enhancement for causing bodily injury to more than one victim. He asserts this was error because the multiple victim enhancement named both A.V. and M.V., but a Penal Code section 12022.7 enhancement was imposed as to M.V.
Penal Code section 654, subdivision (a) provides, "An act or omission which is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one. . . ." Penal Code section 12022.7 "shall not apply . . . if infliction of great bodily injury is an element of the offense." (Pen. Code, § 12022.7, subd. (g).)
Relying on People v. Elder (2017) 11 Cal.App.5th 123 (Elder), defendant maintains Penal Code section 654 precludes imposition of sentence for Vehicle Code section 23588 based on the Penal Code section 12022.7 enhancement as to M.V.
In Elder, the defendant was found guilty of two counts of gross vehicular manslaughter while intoxicated, one count of driving under the influence of alcohol causing injury, and one count of driving with a blood-alcohol level of 0.08 percent or more causing injury. (Elder, supra, 11 Cal.App.5th at p. 129.) "The jury found true an allegation that defendant had inflicted great bodily injury upon his passenger (Pen. Code, § 12022.7, subd. (a)) in the commission of the offense of gross vehicular manslaughter while intoxicated. The jury also found true allegations that defendant inflicted great bodily injury on three separate victims [including his passengers], under Penal Code section 12022.7, subdivision (a) and inflicted bodily injury on more than one victim under Vehicle Code section 23558, in the commission of the offense of driving under the influence causing injury. Those same allegations were found true with regard to the same three victims in connection with the offense of driving with a blood-alcohol level of 0.08 percent or more causing injury." (Ibid.)
The defendant in Elder also maintained that imposition of both a sentencing enhancement under Vehicle Code section 23558 for injuring multiple victims and under Penal Code section 12022.7, subdivision (a) "for inflicting great bodily injury on the same victims" violated the Penal Code section 654 "prohibition against multiple punishments for a single act." (Elder, supra, 11 Cal.App.5th at p. 137.)
The court first noted the issue had been addressed in People v. Arndt (1999) 76 Cal.App.4th 387 (Arndt), which held "the law did not allow for both a great bodily injury enhancement and a Vehicle Code section 23558 enhancement for the same victims," because that would violate "the statutory proscription against multiple punishments." (Elder, supra, 11 Cal.App.5th at pp. 137, 141.)
Because Arndt was construing a prior version of Vehicle Code section 23558, Elder next considered "whether the amended text of Vehicle Code section 23558 allows for a multiple victim enhancement in addition to a separate great bodily injury enhancement." (Elder, supra, 11 Cal.App.5th at p. 139.) The court explained that "Vehicle Code section 23558 (formerly Veh. Code, § 23182) was originally enacted in 1985 in response to the Supreme Court's decision in Wilkoff v. Superior Court (1985) 38 Cal.3d 345 . . ., which held that an intoxicated driver who injures multiple persons in a single collision could be charged with only one count of driving under the influence causing injury. . . . The statute's purpose was to increase the available punishment for an intoxicated driver who injures multiple victims after the Wilkoff decision precluded more than one charge for the underlying offense." (Elder, at p. 139.)
The court concluded: "[g]iven the expressed [legislative] intent to merely clarify existing law by making 'technical, non-substantive changes,' we cannot agree with the Attorney General that the effect of the 1999 amendment was to change the law in a manner that would allow the Vehicle Code section 23558 multiple victim enhancements to be imposed in addition to great bodily injury enhancements for the same victims." (Elder, supra, 11 Cal.App.5th at p. 141, italics added.)
In both Arndt and Elder, the court concluded the imposition of both enhancements violated Penal Code section 654 because the great bodily injury enhancements and the multiple victim enhancements were regarding the same victims.
That is not the case here. In count 5, two Penal Code section 12022.7 great bodily injury enhancements were alleged and imposed, one as to R.P. and one as to M.V. The Vehicle Code section 23558 multiple victim enhancement also named two victims-M.V. and A.V. However, only one multiple victim enhancement was imposed-as to A.V. (See Elder, supra, 11 Cal.App.5th at p. 142.) Thus, the Vehicle Code section 23558 enhancement was not imposed for the same Penal Code section 12022.7 victim, as no Penal Code section 12022.7 great bodily injury enhancement was imposed as to A.V.
Dueñas Challenge
The trial court imposed a $280 court operations assessment and a $210 criminal conviction assessment. The court also imposed but stayed a restitution fine of $2,100 "due to the defendant's incarceration." Defendant maintains the court violated his rights to due process and equal protection by imposing those fines and fees without a hearing on whether he had the ability to pay, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, 1160.)
In Dueñas, the defendant was a chronically-ill, unemployed homeless woman with cerebral palsy and a limited education who supported her two children through public aid. (Dueñas, supra, 30 Cal.App.5th at pp. 1160- 1161.) She had lost her driver's license because of her inability to pay her juvenile citations and then had acquired three misdemeanor convictions for driving without a license because the accumulating fines and fees prevented her from clearing the citations and recovering her license. (Id. at p. 1161.) She experienced a series of "cascading consequences" due to "a series of criminal proceedings driven by, and contributing to, [her] poverty," and she had already been ordered to pay the charges by the end of her probation period. (Id. at pp. 1160, 1163-1164.) The Court of Appeal reversed the challenged assessments, holding "the assessment provisions of Government Code section 70373 and Penal Code section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair [and] imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process. . . ." (Dueñas, at p. 1168.) It also ordered the trial court to stay the restitution fine "unless and until the People prove that [the defendant] has the present ability to pay it." (Id. at pp. 1172-1173.)
At the outset, we observe defendant's Dueñas challenge has been forfeited by his failure to raise it in the trial court. (See People v. Lowery (2020) 43 Cal.App.5th 1046, 1054.) Defendant concedes he did not object, but asserts his counsel was prejudicially ineffective in failing to do so.
"' "In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel's performance was deficient because it 'fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms.' [Citations.] Unless a defendant establishes the contrary, we shall presume that 'counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.' [Citation.] If the record 'sheds no light on why counsel acted or failed to act in the manner challenged,' an appellate claim of ineffective assistance of counsel must be rejected 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.' [Citations.] If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice, that is, a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" '" (People v. Henderson (2020) 46 Cal.App.5th 533, 549.)
To prove such a claim, defendant must overcome the presumption he received effective assistance of counsel by demonstrating his counsel's representation" 'fell below an objective standard of reasonableness'" resulting in demonstrable prejudice. (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) Under Strickland v. Washington (1984) 466 U.S. 668, claims of ineffective assistance of counsel require proof of both deficient representation and resulting prejudice from an attorney's substandard performance. (Lucas, at p. 436, citing Strickland, at pp. 687-689, 691-692.) On direct appeal, a defendant must demonstrate counsel's failure to object lacked any "rational tactical purpose" and but for counsel's lack of objection, there is a reasonable probability the result would have been different. (People v. Mesa (2006) 144 Cal.App.4th 1000, 1007-1009.)
Here, we can posit a "rational" reason for counsel's failure to object. The restitution fine of $2,100 was stayed based on defendant's incarceration. And it is reasonable to infer that over the course of more than 100 years in prison, defendant will earn an amount sufficient to pay the $490 in fees. (See People v. Johnson (2019) 35 Cal.App.5th 134, 139-140 [concluding any Dueñas error was harmless given long prison term and no evidence of inability to work].) Accordingly, defendant has failed to establish his counsel's failure to object lacked any "rational tactical purpose" and but for counsel's lack of objection, there is a reasonable probability the result would have been different.
DISPOSITION
The judgment is AFFIRMED.
We concur: Margulies, Acting P.J., Sanchez, J.