Opinion
F079573
01-27-2022
THE PEOPLE, Plaintiff and Respondent, v. VINCENT CHRISTOPHER MOROYOQUI, Defendant and Appellant.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Nikta Allami, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF169110A John D. Oglesby, Judge.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Nikta Allami, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PEÑA, J.
INTRODUCTION
Vincent Christopher Moroyoqui (defendant) killed a mother and daughter in a head-on vehicle collision on a rural highway. Defendant had consumed four beers and some whiskey before driving. He registered a blood-alcohol content more than three 1 times the legal limit after the collision, and the prosecutor's expert opined defendant drove 99 mph immediately preceding the crash.
The People charged defendant with two counts of second degree murder and two counts of gross vehicular manslaughter while intoxicated. A jury convicted defendant on all counts.
Defendant's appeal raises evidentiary and instructional claims and also challenges the fines, fees, and assessments the trial court imposed at sentencing. He argues the trial court erred when it admitted evidence he had received two prior speeding tickets. He contends further error arose when the trial court failed to provide a limiting instruction sua sponte on evidence relating to defendant's prior driving under the influence (DUI) charges pursuant to CALCRIM No. 375. Finally, defendant claims the imposition of the fines, fees, and assessments violated his constitutional rights to due process.
We disagree with defendant's contentions and affirm.
FACTUAL BACKGROUND
Background Facts
Defendant worked as a relief operator on an oil rig in Lost Hills. After work on July 20, 2017, defendant's coworker drove defendant to his truck parked at a Shell station. When they arrived, they purchased whiskey and two types of beer. While in the truck, defendant drank four bottles of beer and took a couple swigs of whiskey.
Defendant spent roughly 30 minutes in his coworker's truck drinking and talking about work. He then received a call from his wife notifying him a birthday gift arrived in the mail for his daughter. Defendant left in his truck and drove eastbound on Taft Highway (State Route 119) so he could wrap the gift before his wife and daughter arrived home. He took one bottle of beer and the whiskey with him.
While on the highway, defendant passed several vehicles and was speeding. Other drivers on the road noticed defendant driving erratically. One witness, Jose Corona, observed defendant tailgating his car so closely he could see the grill of defendant's truck 2 but not the bumper. Another driver, Anthony Banks, saw defendant pass cars with very little room to pass. Defendant's truck passed Corona's vehicle and cut in front of him to the point Corona needed to apply his brakes to avoid hitting defendant. Corona called 911 to report defendant's driving.
Defendant, who was traveling east, entered the westbound lane at a high rate of speed to attempt another pass. A Ford Focus was traveling westbound at the time. Both cars swerved into the north dirt shoulder and collided head-on.
Corona and Banks pulled over to render aid to the passengers of the Ford Focus. Corona yelled into the car to check if either passenger was okay but did not receive a response. Banks checked the driver for a pulse and found none. He detected a slight pulse from the passenger. The passenger squeezed Banks's hand when he asked her to, but ultimately, she let go.
Corona observed defendant sitting in his truck for about five minutes. Eventually, defendant walked over to the passenger side of the Ford Focus and attempted to open the door. Corona yelled at defendant to go back to his truck, but defendant stayed near the Ford making a rocking motion. At some point, defendant returned to his truck and drank the beer and remaining whiskey located in his vehicle. Corona noticed an empty beer bottle near the driver's side door.
When first responders arrived, they detected no pulse or respiration from either of the passengers in the Ford Focus. The coroner identified the passengers as Raeleen and Regan Sorenson.
Officer Nathan Petty spoke with defendant at the scene. He noticed defendant appeared lethargic and struggled to maintain his balance. He detected the smell of alcohol coming from defendant's breath within five seconds of contacting him. When Officer Petty asked defendant what he had been drinking, defendant replied, "'It doesn't even matter. It doesn't matter.'" Defendant admitted to Officer Petty-after hesitating- that he drank alcohol after the crash. He told Officer Petty that he was "pretty fucked up" 3 and he was "done" in response to other questions. Officer Petty placed defendant under arrest for driving under the influence.
Defendant submitted to a blood test at Kern Medical Center. A criminalist examined defendant's blood and determined a blood-alcohol content of 0.264. The criminalist further estimated that, while driving, defendant's blood-alcohol content ranged from 0.285 to 0.318. This equates to between 8.5 and 13.7 standard drinks.
An accident reconstruction expert with the California Highway Patrol examined data from the crash. Data from defendant's truck indicated he was traveling 86 mph five seconds prior to the crash and 60 mph one second before the crash. However, based on the oversized tires on defendant's truck, the expert estimated defendant's true over-the-ground speed was 99 mph five seconds before the crash and 66 mph one second before the crash.
Criminal Charges and Trial
An information charged defendant with two counts of second degree murder pursuant to Penal Code section 187, subdivision (a). Defendant was also charged with two counts of gross vehicular manslaughter while intoxicated pursuant to section 191.5, subdivision (a). With respect to the gross vehicular manslaughter counts (§ 191.5, subd. (d)), the information further alleged defendant received two prior DUI-qualifying convictions within 10 years of the accident.
In addition to testimony from eyewitnesses, law enforcement, accident reconstruction specialists, and the criminalist who examined defendant's blood, the prosecution presented evidence of defendant's participation in the "Special Treatment Education and Prevention Services" (STEPS) program. STEPS primarily provides services for persons convicted of driving under the influence.
Additionally, on cross-examination, the prosecution introduced evidence of defendant's three prior DUI convictions. The People also introduced evidence defendant 4 received two prior speeding citations-one of which occurred near the area of the accident.
A jury found defendant guilty on all counts and found all special allegations true. On June 25, 2019, the trial court sentenced defendant to 15 years to life with respect to each murder count (counts 1 and 2), for a total indeterminate term of 30 years to life. Defendant's sentences for gross vehicular manslaughter while intoxicated (counts 3 and 4) were stayed pursuant to Penal Code section 654. The trial court also imposed (1) four court operations assessments in the amount of $40 each; (2) three conviction assessments in the amount of $30 each pursuant to Government Code section 70373; (3) a $300 restitution fine pursuant to Penal Code section 1202.4, subdivision (b); and (4) a $300 parole revocation fine pursuant to Penal Code section 1202.45.
Defendant timely noticed his appeal on July 2, 2019.
DISCUSSION
I. Speeding Tickets
Defendant first challenges the admission of his two prior speeding tickets into evidence. He primarily argues Evidence Code section 1101, subdivision (a) precluded their admission. (Undesignated statutory references are to the Evidence Code.) In the alternative, defendant asserts section 352 required exclusion of the speeding tickets. Finally, defendant claims admission of this evidence violated his constitutional right to due process and a fair trial.
The People counter defendant forfeited this issue by failing to object at trial, and even if he did not, the trial court properly admitted this evidence. The People further argue any error in admitting the evidence was harmless.
We conclude the trial court did not abuse its discretion admitting the challenged evidence. 5
A. Relevant Factual Background
Prior to trial, the prosecution moved in limine to admit two speeding tickets defendant received in 2015 and 2016, respectively. The motion argued the citations were admissible under section 1101, subdivision (b) to prove defendant's knowledge because the tickets "tend[ed] to establish [defendant's] subjective awareness" of the dangers posed by recklessly operating his truck.
At the hearing on the motion, the court indicated it was "flinching" about admitting the evidence. The prosecution argued the prior tickets supported a showing of implied malice necessary to convict on the murder charge. Defense counsel countered by classifying the evidence as "character evidence" and argued the speeding tickets "would be highly prejudicial under [section] 352." In response, the prosecution clarified the two bases upon which it sought admission of the tickets were (1) knowledge and (2) absence of mistake pursuant to section 1101, subdivision (b).
After argument, the trial court stated the following:
"[M]y ruling is to deny the request. I'm not going to allow the People to bring the prior speeding tickets in, in their case-in-chief I am inclined, however, to allow the People to use that on cross-examination if the defendant does testify because I think it then places some of these issues more squarely before the jury than they would be presented on the case-in-chief
"I'll deny it in the People's case-in-chief As to cross-examination, I do believe they become relevant as to the defendant's knowledge of the dangers that he presented, if and when he testifies."
The minute order indicates the court denied the People's motion.
Defendant testified at trial. On direct examination, he accepted responsibility for the accident because of the "speed and recklessness" of his driving. He confirmed on cross-examination that "the cause of the accident was due to my speeding and reckless driving...."
The prosecution then introduced the two tickets into evidence. Defendant received the 2015 citation for driving over 70 mph on State Route 119-near where the fatal 6 collision took place. The posted speed limit in this area is 55 mph. In 2016, defendant received a citation for driving 75 mph on State Route 33.
Defense counsel did not object when the prosecution moved to admit the tickets into evidence. Outside the presence of the jury, defense counsel explained he did not object because he "believe[d] that they became relevant and an issue as a result of his testimony."
B. Standard of Review
This court reviews questions concerning the admissibility of evidence for an abuse of discretion. (See People v. Waidla (2000) 22 Cal .4th 690, 717.) This includes a trial court's decision to admit "other crimes" evidence pursuant to section 1101, subdivision (b). (People v. Scully (2021) 11 Cal.5th 542, 587 ["We review the trial court's ruling on the admissibility of other crimes evidence for abuse of discretion"].) Our review examines "the evidence in the light most favorable to the trial court's ruling." (People v. Edwards (2013) 57 Cal.4th 658, 711.) We will not disturb the trial court's ruling absent a showing the court "'"exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice."'" (People v. Morales (2020) 10 Cal.5th 76, 97, quoting People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
At various points, defendant suggests our standard of review on this issue is something other than abuse of discretion. Defendant is incorrect. As mentioned ante, appellate review of the admission of evidence under sections 1101 and 352 is for abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1195.)
Similarly, we review the trial court's decision to admit evidence over a section 352 objection for abuse of discretion. (People v. Powell (2018) 5 Cal.5th 921, 961.)
C. Analysis
1. Forfeiture
The People raise a threshold issue that defendant forfeited this challenge. On reply, defendant argues he sufficiently preserved his claim of error because he objected to 7 and secured a ruling from the court on the People's motion in limine to admit the speeding tickets.
Section 353, subdivision (a) proscribes setting aside a verdict by reason of erroneous admission of evidence unless "[t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion …." (See People v. Keo (2019) 40 Cal.App.5th 169, 187.) Failure to raise a timely and specific objection forfeits the right to raise that issue on appeal. (See People v. Partida (2005) 37 Cal.4th 428, 433-436 [discussing forfeiture].) The Supreme Court interprets this requirement "reasonably" in accordance with the statutory requirements. (Id. at p. 434.)
A motion in limine may preserve an objection for appeal under certain circumstances. (People v. Ramos (1997) 15 Cal.4th 1133, 1171.) The Supreme Court has stated an objection to a motion in limine to admit evidence (as here) preserves the objection for appeal where (1) a specific legal ground for exclusion was advanced through an in limine motion and subsequently raised on appeal; (2) the motion is directed to a particular, identifiable body of evidence; and (3) the in limine motion was made at a time, either before or during trial, when the judge could determine the evidentiary issue in its appropriate context. (People v. Whisenhunt (2008) 44 Cal.4th 174, 210-211 [defendant did not forfeit challenge to admission of two prior acts of child abuse on appeal where he objected to prosecution's motion in limine to admit evidence but did not object during cross-examination], citing People v. Morris (1991) 53 Cal.3d 152, 190, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
Defendant did not forfeit the objections he raised in opposition to the prosecution's motion in limine. First, his opposition raised two specific legal grounds for exclusion: (1) the tickets were inadmissible character evidence; and (2) the tickets were more prejudicial than probative under section 352. Second, the prosecution's motion in limine identified the specific evidence (two speeding citations received in 2015 and 2016, 8 respectively). Third, the prosecution brought the motion at a time when the court could determine the evidentiary issue in its appropriate context. At the hearing, the prosecution clearly argued it considered the speeding citations admissible under section 1101, subdivision (b) and relevant to the issue of implied malice necessary for a second degree murder charge. While the trial court excluded the evidence as to the prosecution's casein-chief, the record indicates it deemed the citations admissible on cross-examination as relevant "to the defendant's knowledge of the dangers that he presented, if and when he testifies." The "better practice" would have been for defendant to renew his objections when the prosecution moved to admit the speeding tickets. (See People v. Thompson (2016) 1 Cal.5th 1043, 1109.) However, the record concerning the in limine motion satisfies each of the factors the Supreme Court examines to determine if the issue is sufficiently preserved for appeal. (People v. Whisenhunt, supra, 44 Cal.4th at pp. 210-211.) Therefore, we conclude defendant did not forfeit the objections he raised in opposition to the motion in limine.
However, defendant forfeited the relevance objection he now puts forth on appeal. Defendant never raised this issue in the trial court. Instead, as mentioned above, defendant objected to the citations as "character evidence" and "highly prejudicial" under section 352. Accordingly, he forfeited his belated relevance challenge. (See People v. Demetrulias (2006) 39 Cal.4th 1, 20-21 [noting § 1101, subd. (a) objection is founded not on lack of relevance but policies related to prejudice and Cal. Supreme Court has "'"consistently held that the 'defendant's failure to make a timely and specific objection' on the ground asserted on appeal makes that ground not cognizable"""]; accord, People v. Boyette (2002) 29 Cal.4th 381, 424 ['"Specificity is required both to enable the court to make an informed ruling on the motion or objection and to enable the party proffering the evidence to cure the defect in the evidence'"].) 9 Notwithstanding the forfeiture issue, we conclude the trial court did not abuse its discretion admitting the speeding tickets.
Defendant also argues for the first time on reply that, if defendant's challenge is deemed forfeited, his counsel was ineffective for failing to object. We will not consider this argument because defendant only raised it in his reply brief. (People v. Rangel (2016) 62 Cal.4th 1192, 1218 ["'Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief, '" quoting Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11].)
2. The Trial Court Did Not Abuse Its Discretion in Concluding Defendant's Past Speeding Tickets Were Relevant and Admissible under Section 1101, Subdivision (b)
Defendant's substantive challenge argues admission of the speeding tickets produced prejudicial error for various reasons. He claims the evidence was not relevant on the issue of his knowledge regarding the dangers of speeding. He further asserts the speeding tickets fall under section 1101, subdivision (a)'s prohibition against the admission of character evidence and could not be used for impeachment. By extension, defendant insists the trial court "lacked legal authority" to admit the evidence.
We disagree. The record indicates the trial court deemed the speeding tickets admissible under the "knowledge" prong of section 1101, subdivision (b). Ample case law supports the trial court's conclusion. We also find defendant's arguments unavailing as discussed further.
The interplay between section 1101, subdivisions (a) and (b) is "well settled." (People v. Jones (2012) 54 Cal.4th 1, 49.) The general rule is "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." (§ 1101, subd. (a); see People v. Ewoldt (1994) 7 Cal.4th 380, 393 [discussing the rule].) However, under section 1101, subdivision (b), "evidence that a defendant has committed an offense … may be received to establish, among other things," identity, intent, motive, knowledge, or plan. (People v. Bradford (1997) 15 Cal.4th 1229, 1316.)
Both parties note a fairly large body of case law discussing the admissibility of prior instances of reckless driving in vehicular homicide cases. The starting point is the 10 Supreme Court's opinion in People v. Watson (1981) 30 Cal.3d 290 (Watson), which held murder charges may arise out of vehicle accidents where the evidence reveals implied malice-when "a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life." (Id. at p. 296.) Said differently, "a finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard." (Id. at pp. 296-297.)
In People v. Ortiz (2003) 109 Cal.App.4th 104, a jury found the defendant guilty of second degree murder after several witnesses reported seeing the defendant driving in an aggressive and reckless manner immediately preceding the crash. (Id. at pp. 107- 108.) The defendant was not intoxicated. (Id. at p. 108.) Nevertheless, at trial, the prosecution introduced evidence of the defendant's three previous DUI's, traffic citations, instances of reckless driving, and the defendant's participation in DUI counseling. (Ortiz, at p. 109.) The prosecution claimed the evidence was admissible under section 1101, subdivision (b) to prove the defendant's knowledge of the dangers posed by reckless driving. (Id. at pp. 111-112.) On appeal, the defendant claimed the challenged evidence was inadmissible under section 1101, subdivision (a). (Ortiz, at p. 112.)
The Court of Appeal concluded the trial court did not abuse its discretion in admitting the evidence. (People v. Ortiz, supra, 109 Cal.App.4th at p. 112.) Relying on Watson, it agreed the prior DUI's could be admitted under section 1101, subdivision (b) to prove the defendant's knowledge of the dangers his driving posed. (Ortiz, supra, at p. 112.) The Ortiz panel elaborated that "courts have recognized repeatedly that a motor vehicle driver's previous encounters with the consequences of recklessness on the highway … sensitizes him to the dangerousness of such life-threatening conduct." (Ibid.) Moreover, the court stated for the "purposes underlying the admissibility issue under section 1101(b), it does not matter whether alcohol or other inebriates are involved in the uncharged conduct or whether it is caused by something else." (Ortiz, at p. 116.) 11
Generally, cases along the lines of People v. Ortiz involve the admission of prior DUI's to prove implied malice in vehicular murder cases. (See, e.g., People v. Brogna (1988) 202 Cal.App.3d 700, 707 [concluding trial court did not abuse its discretion admitting evidence of defendant's prior DUI's and participation in drunk driver counseling to "prove the knowledge element of implied malice"]; People v. McCarnes (1986) 179 Cal.App.3d 525, 530 [rejecting defendant's claim that trial court prejudicially erred in admitting evidence of four prior DUI's in murder case arising from DUI]; People v. Moore (2010) 187 Cal.App.4th 937, 943 [in non-DUI vehicular murder case, trial court did not err in admitting evidence of prior DUI because the "jury could reasonably conclude [it] put him on notice of the consequences of driving with extreme recklessness"].)
However, in People v. Eagles (1982) 133 Cal.App.3d 330, the trial court admitted testimony the defendant was speeding and weaving in and out of traffic the afternoon before an accident during which the defendant killed three people after he sped and ran a red light. (Id. at pp. 333, 338.) Finding no error in the admission of such evidence, the Court of Appeal noted the "knowledge" prong of section 1101, subdivision (b) permitted introduction of evidence "necessary to the establishment of the ultimate fact of implied malice ...." (Eagles, at p. 340; see id. at fn. 10.) The panel elaborated "[e]vidence of excessive speeding resulting in a near collision is relevant to knowledge of risk ... of excessive speed." (Ibid)
Finally, while not directly on point, in People v. Contreras (1994) 26 Cal.App.4th 944, the Court of Appeal held the defendant could be charged with murder arising from a vehicle collision "even though he was sober and was not involved in a high-speed chase with police at the time of the fatal collision." (Id. at p. 955.) Additionally, the Court of Appeal concluded sufficient evidence supported the verdict, in part, because of the defendant's "driving record [and] his prior accident...." (Id. at p. 956.) 12
Here, the trial court indicated it would allow evidence of the speeding tickets if defendant testified because it "would become relevant as to the defendant's knowledge of the dangers that he presented ...." Accordingly, the trial court deemed the citations admissible under the knowledge prong of section 1101, subdivision (b).
We see no abuse of discretion. Defendant's testimony began with his acknowledgement his "speed and recklessness" caused the fatal collision. He repeated on cross-examination his speeding-and not intoxication-caused the accident. He conceded law enforcement issues speeding citations to "prevent danger" because it is dangerous to speed on highways. It was then the prosecution introduced the speeding tickets.
To borrow from Ortiz, every time defendant received a speeding citation in rural areas of Kern County, his awareness of the dangers of speeding increased. (People v. Ortiz, supra, 109 Cal.App.4th at p. 116.) This, in turn, makes the speeding tickets admissible to prove knowledge of the dangers posed by his speeding as the trial court stated on the record. That would support a finding of implied malice sufficient for a murder charge. Accordingly, we conclude the trial court did not abuse its discretion by allowing defendant's prior speeding tickets into evidence pursuant to section 1101, subdivision (b). (People v. Eagles, supra, 133 Cal.App.3d at p. 340.)
Defendant's arguments do not convince us otherwise. To start with, his relevance challenge fails (even though he forfeited it). Defendant disclaimed his intoxication as a cause of the accident. Accordingly, a jury could infer his prior citations for speeding placed him on notice of the danger speeding on rural highways posed. (See People v. Moore, supra, 187 Cal.App.4th at p. 943.) Moreover, after the prosecution admitted the speeding tickets, defense counsel acknowledged they were relevant on the record.
Next, as he did in the trial court, defendant classifies the speeding tickets as "inadmissible character evidence" under section 1101, subdivision (a). Elsewhere, he claims the trial court "lacked legal authority" to admit "irrelevant and statutorily 13 inadmissible character evidence." (Capitalization omitted.) Consequently, defendant argues "the abuse of discretion standard does not apply and [the court] reviews the trial court's ruling de novo."
We find this argument unconvincing. The trial court deemed the evidence admissible on cross-examination under section 1101, subdivision (b) as relevant to defendant's knowledge of the danger his speeding posed. Our job on appeal is not to make a separate determination on the relevance and admissibility of the speeding tickets. Rather, we review the trial court's decision for an abuse of discretion and view the evidence in a light most favorable to its ruling. (See People v. Edwards (2013) 57 Cal.4th 658, 711.) Moreover, we will not disturb the trial court's ruling on the speeding tickets unless defendant shows us that admitting the evidence produced a "manifest miscarriage of justice." (People v. Scully, supra, 11 Cal.5th at p. 587.) Defendant does not direct us to any portion of the record sufficient to make the requisite showing of manifest injustice.
Defendant also argues the tickets could not be used for impeachment. The People did not cite impeachment as a basis for introducing the citations. At the hearing on the motion in limine, the prosecution stated the "two prongs" it sought to introduce the tickets were the "knowledge" and "absence of mistake or accident" prongs contained in section 1101, subdivision (b). Again, the trial court indicated the citations could be relevant to defendant's knowledge of the danger he presented. Defendant's discussion of impeachment evidence is not compelling on this issue.
Defendant also attempts to distinguish People v. Ortiz on its facts and argues it cannot support the trial court's ruling.
To the contrary, Ortiz is very similar to this case. Like defendant here, the defendant in Ortiz received three DUI convictions. (People v. Ortiz, supra, 109 Cal.App.4th at pp. 108-109.) The record in Ortiz included testimony from a law enforcement officer who responded to a call about the defendant driving "in a fast, 14 dangerous, and reckless manner." (Id. at p. 109.) A coworker testified he observed the defendant drive in a potentially dangerous manner on one occasion. (Ibid) This case also mirrors the fact pattern in Ortiz because it features a combination of alcohol-related evidence of hazardous driving (the three DUI's) and non-alcohol-related evidence of hazardous driving (the speeding tickets). Ortiz only differs from this case in that the defendant in Ortiz showed no sign of intoxication at the fatal collision whereas defendant here was visibly intoxicated. In sum, Ortiz provides ample support for the trial court's ruling.
We also disagree with defendant's argument that prior instances of speeding cannot prove knowledge of the dangers speeding poses unless combined with a "collision, a near collision, or some connection between the citation and danger." As Contreras provides, a bad driving record is one type of evidence that can support a murder conviction arising from reckless driving. (People v. Contreras, supra, 26 Cal.App.4th at p. 956 [evidence of "numerous citations" including (but not limited to) two speeding citations and two red light citations supported finding of implied malice defendant "knew his driving created a substantial risk to human life and consciously disregarded that danger"].) Moreover, "courts have recognized repeatedly that a motor vehicle driver's previous encounters with the consequences of recklessness on the highway … sensitizes him to the dangerousness of such life-threatening conduct." (People v. Ortiz, supra, 109 Cal.App.4th at p. 112.) The speeding citations are one way defendant faced consequences for dangerous driving on the highway. 15
On reply, defendant cites to People v. Schumacher (1961) 194 Cal.App.2d 335 and People v. Nowell (1941) 45 Cal.App.2d Supp. 811 to support his argument the speeding tickets were not admissible to show implied malice. Schumacher addressed the standard to convict for reckless driving and did not involve a vehicular homicide. (Schumacher, at pp. 338-339.) Nowell addressed whether a defendant could be convicted of reckless driving for speeding alone. (Nowell, at p. 812.) For good measure, the reviewing court determined the high speed the defendant "attained and maintained" supported the conviction for reckless driving. (Id. at p. 816.) Neither case addressed whether prior instances of dangerous driving could be admissible in a vehicular homicide case.
In sum, we conclude the trial court did not abuse its discretion when it admitted the two speeding tickets. Case law supports the proposition that prior instances of dangerous driving are admissible under section 1101, subdivision (b) in vehicular homicide cases. The record indicates the trial court considered them admissible for that limited purpose. The trial court's ruling was not arbitrary, and defendant points to nothing in the record to suggest manifest injustice arose from its decision.
3. Section 352 Did Not Require Exclusion of the Speeding Tickets
Defendant next argues the citations should have been excluded pursuant to section 352. By extension, defendant characterizes the speeding tickets as cumulative.
Section 352 permits the trial court to exclude relevant, probative evidence if the probativeness is "substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice." (People v. Powell, supra, 5 Cal.5th at p. 961.) Prejudicial evidence means "evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues." (People v. Alexander (2010) 49 Cal.4th 846, 905.) "Unless the dangers of undue prejudice, confusion, or time consumption '"substantially outweigh"' the probative value of relevant evidence, a section 352 objection should fail." (People v. Scott (2011) 52 Cal.4th 452, 491.)
People v. Ortiz is again instructive because the court also examined whether the defendant's prior driving misconduct should have been excluded under section 352. (People v. Ortiz, supra, 109 Cal.App.4th at p. 117.) Finding no abuse of discretion, the court noted minimal potential for prejudice existed because evidence of the prior acts was "'no stronger and no more inflammatory than the testimony concerning the charged offenses.'" (Id. at p. 118.) The opinion credited the fact the trial court "neither granted nor rejected admission of the proffered evidence in toto." (Id. at p. 117.) Finally, the record indicated the jury received instructions it could only consider evidence of prior misconduct for the limited purpose of evaluating the defendant's intent. (Id. at p. 118.) 16
We cannot say the trial court abused its discretion when it allowed the speeding tickets in evidence over defendant's section 352 objection. The court's sentiment it was "flinching" about admitting them reflects it understood the potential for prejudice. Accordingly, the trial court denied their admission in the prosecution's case-in-chief As in Ortiz, the jury received instructions it could only consider the speeding tickets for a limited purpose and not for character evidence. Finally, the potential for prejudice was minimal because the speeding tickets paled in comparison to the facts underlying the fatal collision defendant caused (by his own admission). Therefore, the trial court did not abuse its discretion when it overruled defendant's section 352 objection.
Defendant alternatively characterizes the probative value of the speeding tickets as "minimal and cumulative" because two witnesses testified to defendant's driving, expert testimony estimated defendant's speed at 99 mph, and defendant admitted he was speeding.
"The prejudicial effect of evidence defendant committed a separate offense, may, of course, outweigh its probative value if it is merely cumulative regarding an issue not reasonably subject to dispute." (People v. Tran (2011) 51 Cal.4th 1040, 1049.) "But the prosecution cannot be compelled to "'present its case in the sanitized version suggested by the defense."'" (Ibid) "When the evidence has probative value, and the potential for prejudice resulting from its admission is within tolerable limits, it is not unduly prejudicial and its admission is not an abuse of discretion." (Ibid)
The speeding tickets were not cumulative. As the People note, the prosecution bore the burden of proving each element of second degree murder beyond a reasonable doubt-including implied malice. The speeding tickets were a means by which the prosecution sought to prove defendant's subjective awareness of the danger his speeding posed. (People v. Contreras, supra, 26 Cal.App.4th at p. 957.) The prosecution was not 17 required to forgo use of it because of the other evidence defendant mentions above. (People v. Tran, supra, 51 Cal.4th at p. 1049.) Defendant's argument on this point fails.
On reply, defendant appears to argue the People bear the burden to show "the evidence passes muster under section 352." Defendant mischaracterizes the inquiry. At the trial court, the prosecution bore the burden of arguing for the admissibility of the speeding tickets. (People v. Bean (1988) 46 Cal.3d 919, 938; see People v. Soper (2009) 45 Cal.4th 759, 773.) On appeal, the defendant bears the burden of demonstrating the trial court abused its discretion by overruling his objection under section 352. (People v. Nguyen (2015) 61 Cal.4th 1015, 1035 [rejecting defendant's claim that § 352 required exclusion of detective's testimony because "defendant does not show any prejudice within the meaning of … section 352"].)
4. No Due Process Violation Occurred and Any Alleged Error was Harmless
Defendant asserts admission of the speeding tickets violated his rights to due process and a fair trial. We reject this argument.
"'The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair.'" (People v. Jablonski (2006) 37 Cal.4th 774, 805; see People v. Partida, supra, 37 Cal.4th at p. 439 [rejecting claim that admission of gang evidence over § 352 objection deprived defendant of due process]; People v. Westerfield (2019) 6 Cal.5th 632, 700 [purported error in allowing evidence prohibited by § 1101, subd. (a) did not result in due process violation].)
We see no indication the speeding tickets rendered the trial fundamentally unfair. By the time they were introduced, the jury had already heard testimony concerning defendant's dangerous driving on the day of the accident, his apparent intoxication at the scene, his high blood-alcohol content, and his grossly excessive speed immediately preceding the accident. The speeding tickets were comparatively innocuous evidence. And the jury received instructions it could only consider them for the limited purpose of deciding whether defendant knew driving at excessive speeds posed a danger to others when he exceeded the speed limit before the crash. Therefore, no due process violation occurred. 18
Moreover, even if the trial court erred, we would not reverse the conviction because defendant does not establish prejudice under People v. Watson (1956) 46 Cal.2d 818. This standard requires a showing from the defendant "that it is 'reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.'" (People v. Gonzalez (2018) 5 Cal.5th 186, 195, quoting People v. Watson, supra, at p. 837.)
Defendant directs us to People v. Diaz (2014) 227 Cal.App.4th 362, where the Fourth Appellate District, Division One, concluded the erroneous admission of two videos on alcohol-related driving offenses required reversal of the defendant's murder conviction arising from a drunk driving accident. (Id. at p. 365.) There, the Court of Appeal stated the highly emotive nature of the videos was "extremely likely to inflame the jury's passions" against the defendant. (Id. at p. 383.) The court also specified "several additional indicia of prejudice," such as when the jury asked questions related to what they saw in the contested videos. (Diaz, at p. 384.) The record indicated the jury viewed the defendant's case as a close one. (Ibid) The court credited "strong evidence of [the defendant's guilt]" but concluded the "overwhelming indicia of prejudice" required reversal under People v. Watson, supra, 46 Cal.2d 818. (Diaz, at pp. 385, 386.)
Assuming the trial court erred with respect to the speeding tickets, defendant's citation to People v. Diaz does not convince us it is reasonably probable he would have obtained a more favorable verdict. Here, the speeding tickets were unlikely to inflame the jury-particularly after it had already heard evidence defendant drank beer and whiskey and drove 99 mph immediately preceding the crash. Moreover, unlike Diaz, the record does not indicate the jury placed any emphasis on this evidence. The jury notes did not address or mention the speeding tickets. We see no indicia of prejudice that 19 concerned the court in Diaz. Accordingly, we conclude any error in admitting the speeding tickets was harmless.
Defendant argues the purported error triggers review under Chapman v. California (1967) 386 U.S. 18. He claims it violated his federal constitutional rights to due process and to a fair trial. Chapman review does not apply here because the error complained of concerns the application of state evidentiary law, and defendant fails to show admission of the speeding tickets rendered his trial fundamentally unfair. (People v. Partida, supra, 37 Cal.4th at p. 439 ["Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional [People v. Watson, supra, 46 Cal.2d 818] test"].)
II. Issues Concerning Defendant's Failure to Request a Limiting Instruction Concerning His Prior DUI Offenses
Defendant's next challenge concerns certain evidence related to his prior DUI offenses. He notes the trial court did not provide a limiting instruction on this evidence pursuant to CALCRIM No. 375. He concedes he never requested the instruction, but he contends the court was under a sua sponte duty to instruct. Alternatively, defendant argues trial counsel's failure to request a limiting instruction constituted ineffective assistance of counsel. Finally, in connection with the admission of the speeding tickets, defendant claims this produced cumulatively prejudicial error. We disagree with all of defendant's arguments on this point.
A. Relevant Factual Background
Defendant's trial included evidence of (1) his three prior convictions for DUI, (2) his participation in mandated counseling stemming from his DUI convictions, and (3) the advisals he previously received concerning the dangers of drinking and driving.
Specifically, on cross-examination, defendant admitted to three DUI priors. The prosecution introduced evidence of his first DUI in 2002. The jury also heard evidence concerning his second DUI in 2008 and a third one in 2009.
The prosecution presented evidence defendant participated in the STEPS program as a repeat DUI offender. This portion of the evidence included defendant's written session notes. For example, defendant noted during one session, "It doesn't matter how 20 much you drink. One or two drinks, it's not okay to drive." Another day, he wrote, "[I]t doesn't matter if you had one or five beers, both will get you a DUI."
The trial court also admitted evidence, over objection, defendant wrote that he watched a news program and observed "the drunk drivers always live." Defendant objected to this evidence pursuant to section 352. The trial court admitted it as a "manifestation of the defendant's understanding of the risk that is presented."
Finally, the prosecution presented evidence defendant previously received and acknowledged warnings regarding the dangers of drinking and driving. For instance, the jury heard evidence that, related to his DUI's, defendant signed or initialed an advisal containing the following language:
"'You are hereby advised that being under the influence of alcohol or drugs or both impairs your ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs or both. If you continue driving while under the influence of alcohol or drugs or both, [and] as a result of that driving someone is killed, you could be charged with murder.'"
The prosecution and defense counsel discussed a limiting instruction pursuant to CALCRIM No. 375 with respect to the speeding tickets only. The discussion did not include defendant's prior DUI offenses and it does not appear defense counsel requested a limiting instruction to this evidence. Ultimately, the jury received the following instruction:
"The People presented evidence that the defendant committed prior incidents of speeding not charged in this case. [¶] … [¶]
"If you decide that the defendant committed the uncharged offenses, you may, but are not required to, consider that evidence for the limited purpose of deciding whether:
"The defendant knew driving at excessive speeds was dangerous to others when he allegedly acted in this case." 21
B. Applicable Law
Section 355 states, "When evidence is admissible … for one purpose and is inadmissible … for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly." (See People v. Jennings (2000) 81 Cal.App.4th 1301, 1316.) The Supreme Court has consistently held where, as here, a defendant fails to request an instruction, the trial court generally has no sua sponte duty to instruct on the limited admissibility of evidence. (People v. Maciel (2013) 57 Cal.4th 482, 529.) This includes jury instructions pertaining to past criminal conduct. (People v. Collie (1981) 30 Cal.3d 43, 64.)
C. Analysis
1. The Trial Court Was Not Required to Provide a Limiting Instruction Sua Sponte
Defendant argues-despite contrary California Supreme Court authority on the issue-the trial court should be required to provide a limiting instruction pursuant to CALCRIM No. 375 sua sponte, and "[c]ases holding or suggesting otherwise should be revisited." Additionally, he contends the circumstances of this case required the trial court to give a sua sponte limiting instruction on the other crimes, which he refers to as "Watson evidence." We disagree for several reasons.
First, defendant did not request a limiting instruction. He acknowledges this. Consequently, his claim is not cognizable on appeal. (See People v. Sanchez (2016) 63 Cal.4th 411, 460 [failure to request jury instructions concerning prior uncharged crime forfeited claim on appeal].)
Next, in general, a trial court is not required to give a limiting instruction pursuant to CALCRIM No. 375 sua sponte. As defendant concedes, this rule derives from well-established Supreme Court authority on the issue. (People v. Collie, supra, 30 Cal.3d at p. 64; see People v. Carter (2003) 30 Cal.4th 1166, 1197-1198 ["[T]he trial court has no sua sponte duty to instruct on the limited purpose for which evidence of other crimes was admitted"]; People v. Mendoza (2011) 52 Cal.4th 1056, 1094 [discussing the rule in 22 Collie].) Defendant also notes this authority binds us. (See People v. Perez (2020) 9 Cal.5th 1, 13 ['"The decisions of [the Supreme Court] are binding and must be followed by all the state courts of California'"].) Therefore, we will not consider his argument for a change in the law.
Moreover, this case did not require the trial court to provide the limiting instruction defendant now seeks. The Supreme Court observed in Collie: "There may be an occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose." (People v. Collie, supra, 30 Cal.3d at p. 64; see People v. Mendoza, supra, 52 Cal.4th at p. 1094, quoting People v. Collie, supra, at p. 64 [recognizing the "possibility" of an "'occasional and extraordinary case'" requiring a sua sponte limiting instruction on "other crimes" evidence].)
This case does not fall within the scope of an "extraordinary" case which required the trial court to provide a limiting instruction sua sponte. The DUI and knowledge-of- risk evidence was not a dominant part of the prosecution's case and was only part and parcel of a strong case that included testimony from eyewitnesses-one of whom was so alarmed by defendant's driving he called the police while on the highway. Officer Petty testified he detected a strong scent of alcohol on defendant's breath within five seconds of speaking with him. As discussed ante, defendant's blood-alcohol content was more than three times the legal limit after the collision. Moreover, the other crimes evidence was no more inflammatory than the particularly egregious facts underlying the accident-particularly defendant's level of intoxication. Defendant also concedes the relevance of the evidence to this case. Therefore, we reject this argument as well.
2. Failure to Request a Limiting Instruction Was Not Ineffective Assistance of Counsel
Defendant claims trial counsel's failure to request a limiting instruction constituted ineffective assistance of counsel. He asks for a "merits review" and reversal of his conviction. 23
A claim of ineffective assistance of counsel requires showing that "(1) counsel's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation prejudiced the defendant, i.e., there is a 'reasonable probability' that, but for counsel's failings, defendant would have obtained a more favorable result." (People v. Dennis (1998) 17 Cal.4th 468, 540.) We presume trial counsel's """conduct falls within the wide range of reasonable professional assistance.'"'" (People v. Jones (2003) 29 Cal.4th 1229, 1254.)
Defendant fails to make the requisite showing on this issue. The record demonstrates the parties discussed the specifics of the CALCRIM No. 375 instruction and limited it to defendant's speeding tickets without any discussion of the other crimes evidence. Defendant now claims "[t]his lapse fell below prevailing professional norms ...." Based on our review of the record, we cannot discount the possibility trial counsel did not request a limiting instruction because he did not want to bring further attention to the evidence. This is recognized as a reasonable tactical decision and so cannot support a claim of ineffective assistance of counsel. (See, e.g., People v. Johnson (1993) 6 Cal.4th 1, 50 [trial counsel's failure to request limiting instruction for prior offenses insufficient to support ineffective assistance of counsel claim because "counsel may have deemed it tactically unwise to call further attention" to the prior offenses], disapproved on other grounds in People v. Rogers (2006) 39 Cal.4th 826, 879; see also People v. Hinton (2006) 37 Cal.4th 839, 878 [concluding failure to request limiting instruction on prior offenses was not ineffective assistance of counsel because "counsel may have deemed it unwise to call further attention to it "].) Said differently, the record does not "affirmatively disclose" trial counsel had no tactical purpose for failing to request a limiting instruction. (People v. Lucas (1995) 12 Cal.4th 415, 437.) Therefore, defendant cannot prevail on this claim on appeal.
We also cannot conclude defense counsel's failure to request a limiting instruction prejudiced defendant. Again, we note the strength of the other evidence presented in this 24 case. Eyewitnesses observed defendant driving erratically, speeding, and passing cars on the highway. Law enforcement observed defendant visibly intoxicated after the crash. Defendant also admitted to drinking and speeding prior to the accident. For this additional reason, defendant falls short of meeting his heavy burden to demonstrate ineffective assistance of counsel. (See People v. Lucas, supra, 12 Cal.4th at p. 437 [defendant's burden to demonstrate ineffective assistance of counsel "is difficult to carry on direct appeal"].)
3. There Was No Individual or Cumulatively Prejudicial Error
Finally, in connection with his claim of error regarding the admission of the speeding tickets, defendant posits the failure to provide a limiting instruction on the other crimes/knowledge-of-risk evidence produced various types of prejudicial error under Chapman v. California, People v. Watson, and the cumulative error doctrine.
With respect to defendant's claims concerning the limiting instruction, the Chapman v. California standard does not apply here despite defendant's claim that admission of the challenged evidence "raises due process concerns." Simply put, the trial court's failure to provide a limiting instruction when defendant did not request one does not present a "structural defect in the mechanism of a criminal proceeding." (People v. Breverman (1998) 19 Cal.4th 142, 176.) The People v. Watson harmless error analysis applies.
Furthermore, for the same reasons stated in part I.C.4, ante, defendant points to nothing in the record leading us to the conclusion it is more likely than not he would have obtained a more favorable verdict had the jury been instructed on the other crimes evidence pursuant to CALCRIM No. 375.
We also find nothing to support defendant's contention the claimed errors were cumulatively prejudicial. Here, defendant places special emphasis on evidence the trial court admitted where defendant wrote he watched a news program and observed "the drunk drivers always live." This claim is also unavailing. 25
For one, the trial court did not err in admitting this evidence. As the People note, ample authority supports admitting this evidence under the circumstances the trial court did. (See People v. Jimenez (2015) 242 Cal.App.4th 1337, 1359-1360 [concluding evidence that, among other things, defendant participated in substance abuse treatment programs supported murder verdict]; People v. Brogna, supra, 202 Cal.App.3d at p. 709 [affirming trial court's decision to admit evidence of defendant's prior participation in DUI programs to support murder verdict].)
Even if the trial court erred, it did not produce cumulatively prejudicial error. "Cumulative error is present when the combined effect of the trial court's errors is prejudicial or harmful to the defendant." (People v. Capers (2019) 7 Cal.5th 989, 1017.) Said differently, "'[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.)
Defendant's cumulative error argument is unconvincing because we find no errors in the first instance. As described above, the trial court did not abuse its discretion admitting the speeding tickets. Moreover, the trial court committed no error when it did not provide a limiting instruction on the other crimes evidence because defendant did not request one. Furthermore, no error arose when the trial court admitted into evidence defendant's observation that "drunk drivers always live" over his section 352 objection. But even assuming the trial court erred with respect to the above matters, defendant does not direct us to any portion of the record leading us to the conclusion the errors were so prejudicial as to warrant reversal of his convictions.
III. Defendant Forfeited His Challenge to the Imposed Assessments and Restitution Fine
Defendant's final challenge contends the trial court erred when it imposed $250 in assessments and a $300 restitution fine at sentencing without first determining his ability 26 to pay. In support of this argument, defendant primarily relies on People v. Dueñas (2019) 30 Cal.App.5th 1157, 1164 (Dueñas) in arguing the court's failure to determine his ability to pay before imposing the fees and the restitution fine violated his right to due process. Dueñas held, "Due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes" certain assessments. (Id. at p. 1164; see id. at p. 1168; accord, People v. Castellano (2019) 33 Cal.App.5th 485, 488-489.) Additionally, Dueñas held, although the court is required by Penal Code section 1202.4 to impose a restitution fine, the court must stay the execution of the fine until and unless the People demonstrate the defendant has the present ability to pay the fine. (Dueñas, supra, at p. 1172.) Defendant concedes he did not object to the imposed restitution fine and fees below, but he argues a merits review is still warranted because the law has changed. The People respond defendant forfeited this issue by failing to object below. They further contend the appropriate analysis is the excessive fines clause of the Eighth Amendment to the federal Constitution, citing to our opinion in People v. Aviles (2019) 39 Cal.App.5th 1055.
The trial court imposed two $300 fines at sentencing: (1) one pursuant to Penal Code section 1202.4, subdivision (b); and (2) one pursuant to Penal Code section 1202.45. His appeal on this issue focuses solely on the restitution fine pursuant to Penal Code section 1202.4, subdivision (b).
Defendant also explains he presents this claim "to preserve [his] rights depending on the Supreme Court's ruling in [People v. Kopp (2019) 38 Cal.App.5th 47, rev. granted Nov. 13, 2019, S257844]." In Kopp, the California Supreme Court is currently considering whether trial courts must consider a defendant's ability to pay before imposing or executing fines, fees, and assessments; and if so, which party bears the applicable burden of proof. (See People v. Kopp, supra, at pp. 94-98.)
On reply, defendant notes this court issued its opinion in People v. Son (2020) 49 Cal.App.5th 565 and states he "does not further argue the claims raised in his opening brief that are inconsistent with Son, but continues to assert them to preserve them for possible review …." 27
A. Relevant Factual Background
The trial court imposed the following fines, fees, and assessments against defendant: (1) $160 in court operations assessments pursuant to Penal Code section 1465.8, subdivision (a)(1) ($40 for each count of conviction); (2) $90 in conviction assessments pursuant to Government Code section 70373 ($30 each for counts 1, 2, and 3); (3) a $300 restitution fine pursuant to Penal Code section 1202.4, subdivision (b); and (4) a parole revocation fine pursuant to Penal Code section 1202.45. The court also ordered defendant to pay restitution to the victims' family pursuant to Penal Code section 1202.4, subdivision (f) and to the restitution fund pursuant to Penal Code section 1202.4, subdivision (f)(2). The record does not indicate the trial court determined whether defendant had the ability to pay the fines. The record also does not reflect defense counsel objected to the imposition of any fines or fees before or after they were imposed, or requested an ability to pay hearing.
B. Analysis
Here, we conclude defendant forfeited his challenge to the Penal Code section 1202.4, subdivision (b) restitution fine and the challenged court assessments. In general, a defendant who fails to object to the imposition of fines, fees, and assessments at sentencing forfeits the right to challenge those fines, fees, and assessments on appeal. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864; People v. Trujillo (2015) 60 Cal.4th 850, 853-854.) And defendant concedes he did not object to the restitution fine or court assessments below. As the People note, defendant's sentencing occurred on June 25, 2019-nearly five months after Dueñas was decided. This is factually distinct from the many cases addressing forfeiture where the defendant did not make a Dueñas claim prior to sentencing. (People v. Montes (2021) 59 Cal.App.5th 1107, 1120-1121 [analyzing whether defendant forfeited Dueñas claim where parties "did not have the benefit of Dueñas at the time of sentencing"]; People v. Son, supra, 49 Cal.App.5th at p. 597 [rejecting claim forfeiture applies if not raised in "pre-Dueñas proceedings in the trial court"]; see People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154-1155 [applying 28 forfeiture to Dueñas claim].) Because defendant was sentenced months after Dueñas was decided, he had no reason not to expressly invoke Dueñas as the basis for an inability to pay challenge. Therefore, we agree with the People that forfeiture applies here to bar appellate review of the challenged fine and assessments. Accordingly, we reject defendant's final contention.
DISPOSITION
The judgment is affirmed.
WE CONCUR: FRANSON, Acting P. J., DE SANTOS, J. 29