Opinion
B293532
03-02-2020
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER LEE STONE et al., Defendants and Appellants.
Mark D. Lenenberg for Defendant and Appellant Christopher Lee Stone. Kathy R. Moreno for Defendant and Appellant Dan Michael Young. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and Stephanie A. Miyoshi, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. TA142441) APPEALS from judgments of the Superior Court of Los Angeles County, Ricardo R. Ocampo, Judge. Affirmed and remanded with directions. Mark D. Lenenberg for Defendant and Appellant Christopher Lee Stone. Kathy R. Moreno for Defendant and Appellant Dan Michael Young. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and Stephanie A. Miyoshi, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
Christopher Lee Stone and Dan Michael Young appeal from the judgments entered after a jury convicted Stone on one count of murder and one count of attempted murder, Young on multiple counts of murder and attempted murder, and both on one count of possession of a firearm by a felon. Stone and Young challenge their convictions and sentences on numerous grounds. We agree with them the trial court erred in imposing certain monetary assessments without determining their ability to pay and in not awarding Stone sufficient presentence custody credits. We therefore remand with directions to give Stone and Young an opportunity to request a hearing on their ability to pay the assessments and to correct Stone's presentence custody credits. Otherwise, we affirm.
FACTUAL AND PROCEDURAL HISTORY
A. The Restaurant Fight on October 18, 2014
On October 18, 2014 Christal Smith hosted a birthday party for her child at a restaurant in Carson. The child's father, Richard Lawrence, was incarcerated and did not attend. Stone and Young, however, did attend. During the party a fight broke out, and Los Angeles Sheriff's Department deputies responded to a report of shots fired inside the restaurant. Young was badly beaten during the fight and, as he left the restaurant, needed help walking.
Later that night Smith had two recorded telephone conversations with Lawrence. She told him their son's party had been a "disaster" because people from "Front Hood" were at the restaurant and "jumped everybody." She said some "project girls" were also involved, stomping and hitting people with "bats and stuff." Lawrence asked her, "What projects?" She answered, "The Imperial ones."
B. The First Shooting on October 26, 2014
At 8:30 p.m. on October 26, 2014 Leticia Salazar sat in her car, socializing with friends, in a parking lot at the Imperial Courts housing project. Salazar and Tyrone Jones sat in the front seat of the car, Martha Cruz and Ruby Juarez in the back. Jennifer Edwards and Tyrone Biddle stood outside the car. Salazar and Jones eventually got out of the car and walked a short distance away to talk. Edwards got into the driver's seat, and Biddle stood at her window.
At that point a man walked up "out of nowhere," approaching the car from the front, and started shooting at Biddle and Edwards. At least one shot—the second—hit the car's windshield. Cruz and Juarez ducked down in the back seat, but Edwards got out of the car and ran away with Biddle.
After the shooter fired toward the car "maybe . . . two, three times," he saw Salazar and Jones. They were standing between some other parked cars nearby, peeking out at him. The shooter, who was now standing near the hood of Salazar's car, turned to Salazar and Jones, pointed his gun at them, and asked, "Where you from?" Apparently without receiving an answer, he shot multiple times at Salazar and Jones, hitting Salazar in her hand and ankle and Jones in his face and hand. The shooter ran away. Investigators later recovered five 9-millimeter casings from the scene.
Salazar and Jones survived their injuries. When later presented with photographic lineups, Edwards, Salazar, and Cruz identified Young as the shooter.
C. The Second Shooting on October 26, 2014
Another shooting occurred at the Imperial Courts housing project that same night, at 9:20 p.m. A quarter of a mile from the location of the first shooting, Ashley Bowman, Samieke Griggley, Ebony Gammage, and Sharonna Green sat in a car parked on the street in front of Ashley's residence at Imperial Courts. They were waiting for Ashley's brother, Deandre Bowman, to arrive. As they waited, Ashley and Gammage noticed a silver Audi "Q7" SUV drive by them, and then drive back by them. The driver—who Ashley later said "looked like" Young, though she "wasn't sure"—looked at Ashley and smirked.
Ashley suggested she and her friends continue waiting for Deandre inside her residence. The group began to get out of the car, and Griggley was now standing beside it, when a man whom Ashley and Green later identified as Stone walked up to the car and shot Griggley in the back of the head. Stone continued to shoot, hitting Bowman, who had just arrived, in the shoulder. As a crowd of people began arriving in response to the shooting, Stone disappeared. Bowman survived his wounds; Griggley did not.
Los Angeles Police Department officers recovered six 9-millimeter casings from the scene. They were fired from the same gun that fired the five casings recovered from the scene of the earlier shooting at Imperial Courts that night.
D. The Shooting on September 26, 2015
A year later, at 1:30 a.m. on September 26, 2015 Deshawn Childs went to a liquor store to buy cigarettes. A man later identified by a witness as Young met Childs outside the store, said something to him about two gangs, Poccet Hood and Mona Park, and went inside the store with Childs. Inside the store Young said he had "problems with the Monas and the Carvers" and "fuck the Monas." He also said his name was "Lil Dice from Poccet Hood." As Young and Childs walked out of the store, Young said he was a member of "Corner Poccet," another name for Poccet Hood, and asked Childs which gang he belonged to. Childs said, "7th Street Watts. We don't have a problem with you guys."
At some point, including while he was inside the store, Young was accompanied by a child who, according to a witness, looked old enough to be in elementary school.
Childs walked away, toward a street corner, with Young following and talking to him. When they reached the corner, Childs turned to face Young, and Young shot him in the forehead. After shooting Childs in the head three more times, Young ran away.
E. The Trial
In connection with the first shooting on October 26, 2014, the People charged Young with the attempted willful, deliberate, and premeditated murders of Jones (count three), Salazar (count four), Edwards (count five), and Biddle (count six). In connection with the second shooting on October 26, 2014, the People charged Young and Stone with the murder of Griggley (count one) and the attempted willful, deliberate, and premeditated murder of Bowman (count two). In connection with the shooting of Childs on September 26, 2015, the People charged Young with murder (count seven). The People also charged Young (count eight) and Stone (count nine) with possession of a firearm by a felon.
The People alleged Young and Stone committed all these offenses for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members, within the meaning of Penal Code section 186.22, subdivision (b). On the murder counts, the People alleged the special circumstance that Young and Stone committed the murders while they were active participants in a criminal street gang and to further the gang's activities (§ 190.2, subd. (a)(22)) and alleged against Young the special circumstance that he committed more than one murder in the first or second degree (§ 190.2, subd. (a)(3)). On the murder and attempted murder counts, the People also alleged firearm enhancements. (§ 12022.53, subds. (b)-(d).)
Undesignated statutory references are to the Penal Code.
At trial the People's gang expert testified he was familiar with the Corner Poccet Crips criminal street gang, also known as Poccet Hood. One of its rivals was the Front Hood gang. Corner Poccet regularly associated and committed crimes with two other gangs, Anzac and Santana Blocc, and all three claimed territory within the city of Compton. Another gang, the PJ Watts Crips (or Project Crips) claimed territory that included the Imperial Courts housing project. The expert testified that he was familiar with Stone, whose moniker was "Lil Shacc," and with Young, whose moniker was "Dice," and that in his opinion both were members of Corner Poccet. The expert testified he was also familiar with Richard Lawrence, who was a member of Anzac, used the moniker "Lil Dus," and regularly associated with members of Corner Poccet.
Presented with a hypothetical situation resembling the fight that occurred at the restaurant on October 18, 2014, the gang expert testified that gang members attacked and beaten by members of a rival gang would suffer "the ultimate in disrespect" and would "have to find a way to earn that respect back." The disrespect would be even greater if women administered the beating or even participated in the attack. Presented with additional hypothetical facts resembling the shootings at the Imperial Courts housing projects—in which, for example, a week after the restaurant attack, a gang member beaten in the attack and a fellow gang member present during the attack went into territory claimed by the rival gang whose members had attacked them to shoot at people they found there—the expert opined that the shooters would be acting to benefit their gang, in particular by retaliating for the earlier attack, and that without such retaliation "they'd lose all respect within the gang world." The expert testified it did not matter whether the shooters' targets were members of the rival gang because the targets' presence in the territory was enough to identify them with the gang.
The gang expert also testified he was familiar with the liquor store Childs visited the night he was murdered. It bordered territory claimed by the Mona Park and Carver Park gangs, and members of both gangs frequented it. Presented with a hypothetical situation resembling the facts of Childs's murder—in which, for example, a Corner Poccet gang member went to that liquor store, said disrespectful things about the Mona Park and Carver Park gangs, asked Childs about his gang membership, then shot him—the expert opined that the Corner Poccet gang member was "on a mission" of "instigating confrontation" with members of Mona Park or Carver Park. The expert testified it did not matter that Childs was not a member of those gangs because shooting him at that location was enough to "send a message" to those gangs.
The jury convicted Young and Stone on all counts, found both murders were in the first degree, and found true all gang, firearm, and special circumstances allegations. The court sentenced Young to prison for two terms of life without the possibility of parole, plus 250 years to life, plus five years. The court sentenced Stone to state prison for life without the possibility of parole, plus 65 years to life, plus seven years. Young and Stone timely appealed.
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Denying the Motion To Sever Counts for Trial
Before trial Young filed, and Stone joined, a motion to sever the counts relating to each of the three shootings. The trial court denied the motion, observing that "the law does prefer and favor joinder in cases" and that evidence relating to the gang allegations and motivation for the three shooting incidents would be cross-admissible. Young and Stone contend the ruling was prejudicial error.
1. Applicable Law and Standard of Review
"Section 954 allows for the joint trial of 'two or more different offenses connected together in their commission . . . or two or more different offenses of the same class of crimes or offenses.'" (People v. Gomez (2018) 6 Cal.5th 243, 275 (Gomez).) "Because it generally promotes efficiency, joinder of charges is '"preferred by the law."'" (People v. Romero and Self (2015) 62 Cal.4th 1, 28.) Thus, "[w]here joinder is proper under section 954, '[t]he burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.'" (Gomez, at p. 275; see People v. Jackson (2016) 1 Cal.5th 269, 299 [because of the preference for joinder, "'a party seeking severance must make a stronger showing of potential prejudice than would be necessary to exclude other-crimes evidence in a severed trial'"].)
Section 954 concerns joinder of counts against a single defendant, while section 1098 concerns the joint trial of multiple defendants and requires that "two or more defendants jointly charged with crimes must be tried together" unless the court in its discretion orders separate trials. (People v. Sánchez (2016) 63 Cal.4th 411, 463-464.) Neither Stone nor Young contends the trial court abused its discretion under section 1098.
We review an order denying a motion to sever for abuse of discretion. (Gomez, supra, 6 Cal.5th at p. 275.) In doing so, "we first consider 'the cross-admissibility of the evidence in hypothetical separate trials.' [Citation.] If the evidence is cross-admissible, then this 'is normally sufficient to dispel any suggestion of prejudice and to justify a trial court's refusal to sever properly joined charges.' [Citation.] If not, then we also consider '(1) whether some of the charges are particularly likely to inflame the jury against the defendant; (2) whether a weak case has been joined with a strong case or another weak case so that the totality of the evidence may alter the outcome as to some or all of the charges; or (3) whether one of the charges (but not another) is a capital offense, or the joinder of the charges converts the matter into a capital case.' [Citation.] Moreover, '[e]ven if a defendant fails to demonstrate the trial court's joinder ruling was an abuse of discretion when it was made, reversal may nonetheless be required if the defendant can demonstrate that "the joint trial resulted in such gross unfairness as to amount to a due process violation."'" (Gomez, at pp. 275-276.)
2. Analysis
"[M]urder and attempted murder are of the same class of crimes within the meaning of section 954." (People v. Jones (2013) 57 Cal.4th 899, 924.) Thus, as Young and Stone concede, the statutory requirements for joining the charges relating to all three shootings in this case are satisfied. And for the two shootings at the Imperial Courts housing project on October 26, 2014, an enormous amount of evidence would have been cross-admissible in separate trials, including evidence that the shootings were retaliation for the restaurant incident in which Young was badly beaten during a fight involving people from Imperial Courts, that witnesses saw Young at Imperial Courts on the night of the shootings, and that the same gun was used in both shootings. (See People v. Capistrano (2014) 59 Cal.4th 830, 849 [the issue of cross-admissibility concerns "'"the admissibility of relevant evidence" that tends to prove a disputed fact,'" and "'"complete (or so-called two-way) cross-admissibility is not required"'"], disapproved on another ground in People v. Hardy (2018) 5 Cal.5th 56, 104.) This justified the trial court's refusal to sever the counts relating to those two incidents. (See People v. O'Malley (2016) 62 Cal.4th 944, 968 (O'Malley) ["significant cross-admissible evidence" justified the trial court's refusal to sever counts].)
In fact, in the trial court counsel for Young argued the October 26, 2014 shootings and the September 2015 shooting were "two separate and distinct incidents."
Some evidence supporting the charge against Young for the murder of Childs would also have been cross-admissible in a separate trial on the charges relating to the two October 26, 2014 shootings, including, for example, evidence Young was a member of Corner Poccet and had a tattoo of a pistol on his forearm that identified him as a "gunner[ ]," i.e., a gang member who would "shoot at you." This evidence was "significant" because it was relevant to the issues of motive and identity in all three shootings. (O'Malley, supra, 62 Cal.4th at p. 968; see People v. Hernandez (2004) 33 Cal.4th 1040, 1049 ["[e]vidence of the defendant's gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, . . . specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime"]; People v. Pettie (2017) 16 Cal.App.5th 23, 45 ["evidence of defendants' gang membership was cross-admissible to prove the commission of the attempted murder and assault charges" because, among other reasons, it was probative of motive].)
But "[e]ven if cross-admissibility alone" did not justify the trial court's refusal to sever the charge for the murder of Childs, "the balance of the remaining factors does not show that the trial court abused its discretion." (Gomez, supra, 6 Cal.5th at p. 276; see O'Malley, supra, 62 Cal.4th at p. 968 ["'[S]ection 954.1 expressly provides that "where two or more accusatory pleadings charging offenses of the same class of crimes or offenses have been consolidated, evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact.'""].) First, the charge for murdering Childs was no more or less inflammatory than the murder and attempted murder charges for the October 26, 2014 shootings: The former accused Young of the gang-motivated murder of an unarmed stranger by walking up on him from behind and shooting him in the head; the latter accused Stone of the same. Second, the case against Young for the murder of Childs was not, as Young and Stone contend, demonstrably stronger than the case concerning the other shootings: Both cases turned on the identity of the perpetrators, for which in both cases there was substantial evidence, including eyewitness testimony subject to routine credibility challenges. "In any event, as between any two charges, it always is possible to point to individual aspects of one case and argue that one is stronger than the other. A mere imbalance in the evidence, however, will not indicate a risk of prejudicial 'spillover effect,' militating against the benefits of joinder and warranting severance of properly joined charges." (People v. Soper (2009) 45 Cal.4th 759, 781.) Third, none of the counts against either defendant was a capital charge.
Young and Stone attacked the credibility of the eyewitness identifications on the grounds that, for example, one witness expressed some uncertainty, some identifications occurred two years after the shootings, and one witness had glaucoma.*
* Although, as we will discuss, Young argues the eyewitness identification of him as the driver of the Audi SUV that drove past the victims just prior to the second shooting on October 26, 2014 was particularly weak, that testimony was not the only evidence of Young's participation in the second shooting.
Therefore, the trial court did not abuse its discretion in denying the motion to sever the counts for the three shooting incidents. Nor has Young or Stone cited anything specific to demonstrate the joint trial "'"resulted in such gross unfairness as to amount to a due process violation."'" (Gomez, supra, 6 Cal.5th at pp. 275-276; see O'Malley, supra, 62 Cal.4th at p. 970 ["defendant fails to point to any specific event or events that would demonstrate gross unfairness"].) And the trial court instructed the jury it "must separately consider the evidence as it applies to each defendant" and "must decide each charge for each defendant separately." We presume the jury followed those instructions. (People v. Potts (2019) 6 Cal.5th 1012, 1037.)
B. The Trial Court Did Not Abuse Its Discretion in Admitting Stone's Telephone Call and Social Media Video
1. Relevant proceedings
The People asked the court to admit into evidence a 10-minute audio recording and the transcript of a November 6, 2014 telephone conversation between Stone and Lawrence (who, as stated, was incarcerated). During this conversation Lawrence asked Stone where he was, and Stone answered, "I'm dust fool. They got my name so fired, man, I'm far." Stone said he was in Pittsburgh, and further remarks suggested he had "just [been] in Minnesota." Counsel for Stone conceded this portion of the conversation was admissible "to show a consciousness of guilt or even flight" in connection with the October 26, 2014 shootings, but counsel objected to admitting the rest of the conversation—which he suggested "reads like a gangster rap song"—on various grounds, including that it lacked relevance and was unduly prejudicial. The People argued that comments throughout the conversation were relevant to prove Stone's membership and level of participation in a gang, as well as his identity as the person speaking with Lawrence, which was disputed. The court overruled counsel for Stone's objection, and the People played the recording of the entire conversation for the jury.
The People also sought to introduce a 45-second video from Stone's social media account depicting Stone and others celebrating his birthday. The video showed Stone and others "pantomiming . . . to . . . rap music," in the course of which Stone "pull[ed] out a handgun and point[ed] it." A transcript of the video read:
"[music]
"STONE: I promise to go in and destroy my opponent. I promise no man want it bad as I want it.
"[music]
"MALE 1: Little bo. Get your ho. Yeah. That part. You know what I am saying. Happy birthday Little Shacc.
"[background talking]
"[music]
"MALE 2: . . . motherfuckin' . . .
"[music]."
Citing in particular the use of Stone's alleged gang moniker, the People argued the video was probative of whether Stone was a member of and active participant in a gang. The prosecutor stated the People did not contend the gun in the video was the same gun used in the Imperial Courts shootings. Counsel for Stone objected to the video on the grounds that any probative value was substantially outweighed by the unduly prejudicial effect of showing Stone with a handgun and was cumulative to other evidence of Stone's gang membership.
After viewing the video, the trial court ruled that it was "highly probative" and not impermissibly cumulative on the issue of Stone's gang membership, but that the undue prejudice of showing Stone holding what may not even have been a real handgun substantially outweighed that part of the video's probative value. The court stated it would admit the video if the People could "edit the handgun" out of it, but otherwise the video was inadmissible.
After editing the video so that it no longer showed Stone holding what looked like a handgun, the People played the video for the court and counsel. Counsel for Stone objected there was "another gun." The court stated, "I didn't see a gun. I saw an individual simulating something, a shooting." Counsel for Stone said that "it's the same thing . . . as having a gun there" and that he "thought any references to a gun would have been removed." The court disagreed, stating that "the motion of . . . a third party in the video simulating, pointing their fingers, or holding something that's not there, an imaginary gun, [was] not within the court's ruling." The court indicated it would allow the video. Counsel for Stone then objected that all statements in the video "other than the 'happy birthday' should be taken out under [Evidence Code section] 352" because they were "just vile racist statements and have no purpose other than to dirty up Mr. Stone." The court observed this was a new objection, overruled it, allowed the People to play the video for the jury, and admitted the transcript into evidence.
2. Applicable Law and Standard of Review
"[A]ll relevant evidence is admissible at trial," and "the trial court 'has broad discretion in determining the relevance of evidence [citations] but lacks discretion to admit irrelevant evidence.' [Citations.] Relevant evidence includes all 'evidence . . . having any tendency in reason to prove . . . any disputed fact that is of consequence to the determination of the action.' [Citation.] Under Evidence Code section 352, a trial court may exclude otherwise relevant evidence when its probative value is substantially outweighed by concerns of undue prejudice, confusion, or consumption of time." (People v. Riggs (2008) 44 Cal.4th 248, 289-290.) "'"'Prejudice' as contemplated by [Evidence Code] section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. . . . The code speaks in terms of undue prejudice. 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, 490-491.) We review a trial court's rulings on the relevance and other objections to admissibility of evidence for abuse of discretion. (Id. at pp. 490-491.)
3. Analysis
Stone concedes that the trial court properly admitted the portion of the recording and transcript of the telephone call between him and Lawrence in which Stone stated he was in Pittsburgh, but contends that admitting the rest of the call was error because it was not relevant and served "solely to prejudicially inflame the jurors." Throughout, however, the telephone call contains gang-related references (e.g., to "the neighborhood" and "[o]n Crip"), discussion of Lawrence's pending criminal case, names of people Stone knew well (e.g., his mother), and lots of veiled references to "shenanigans" going on "out here on the street." As the People contended at trial, these were relevant to prove the disputed facts of Stone's gang membership, level of participation in the gang, and identity as the caller. Nor were these portions of the call unduly prejudicial. Stone complains they are "laden" with profanity and tended to "dirty [him] up," but that hardly suffices, particularly when the profanity "is compared to other unsavory evidence properly before the jury, such as the horrific facts" of Stone walking up behind an unsuspecting young woman and shooting her in the head. (People v. Merriman (2014) 60 Cal.4th 1, 60; see People v. Harris (2013) 57 Cal.4th 804, 842 [evidence of the defendant's previous burglary conviction was "not particularly inflammatory when compared to [evidence he committed] rape and murder"]; People v. Zepeda (2008) 167 Cal.App.4th 25, 32, 35 [the "language and substance of the lyrics" of two "gangster rap" songs written by the defendant, "although graphic, did not rise to the level of evoking an emotional bias against" him].)
The transcript reflects that Stone told Lawrence, when concluding the call, "My sister said, 'What up, fool?' Crystal said, 'What up?'" Stone's mother's name was Christal. In 2014 he lived with her, and after the fight at the restaurant on October 18, 2014, he called her to pick him up from the restaurant, which she did.
Stone also argues that, "[u]nder Evidence Code section 356, only the defense could have put the remainder of the recording into evidence." That statute, however, "provides that if part of an act, conversation, declaration, or writing is placed in evidence, the adverse party may inquire into 'the whole on the same subject.' . . . The purpose of this section is to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed." (People v. Arias (1996) 13 Cal.4th 92, 156, italics omitted; accord, People v. Vines (2011) 51 Cal.4th 830, 861, disapproved on another ground in People v. Hardy, supra, 5 Cal.5th at p. 104; see Evid. Code, § 356.) Because the People sought to introduce the entire telephone call, not merely a part of it, Evidence Code section 356 did not apply.
Next, the "birthday" video from Stone's social media account. Stone contends the video was irrelevant, unduly prejudicial, and impermissibly cumulative. He is wrong on all counts. The use of Stone's gang moniker and his comments that he would "go in and destroy [his] opponent" and that "no man want it bad as I want it," which the People rightly point out could reasonably be interpreted as "gang braggadocio," were probative of his membership and degree of involvement in the gang. (See People v. Valdez (2011) 201 Cal.App.4th 1429, 1434, 1437-1438 ["gang braggadocio" on defendant's social media account was circumstantial evidence of his "active gang involvement"].) That the video, as Stone argues, contained "vile" comments and depicted him "as someone who countenanced such remarks" did not render it unduly prejudicial. (See id., at pp. 1437-1438 ["the fact probative evidence reflects negatively on a defendant is not grounds for its exclusion"].) Stone complains the video was cumulative of other evidence he was a gang member, but as stated, the video was also probative of Stone's willingness to involve himself beyond mere membership, a fact he does not address. (See People v. McKinnon (2011) 52 Cal.4th 610, 669 [evidence "'identical in subject matter to other evidence should not be excluded as "cumulative" when it has greater evidentiary weight or probative value'"].)
C. Substantial Evidence Supported Young's Conviction for the Murder of Griggley
Young incorrectly contends substantial evidence did not support his conviction on count one for the murder of Griggley. "'"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.] We determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citation.] In so doing, a reviewing court "presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."'" (People v. Dalton (2019) 7 Cal.5th 166, 243-244.)
Although Young's arguments would seem to apply equally to his conviction for the attempted murder of Bowman, he does not challenge that conviction.
The People argued Young was guilty of murdering Griggley because he aided and abetted Stone in shooting her to death. "Proof of liability for a crime under a theory of aiding and abetting falls into four distinct elements: (a) a crime committed by the direct perpetrator, (b) knowledge of the direct perpetrator's intent to commit the crime, (c) an intent to assist in committing the crime, and (d) conduct by the aider and abettor that in fact assists the commission of the crime." (People v. Vital (2019) 40 Cal.App.5th 925, 931; see People v. Miranda (2011) 192 Cal.App.4th 398, 407 ["Aider-abettor liability exists when a person who does not directly commit a crime assists the direct perpetrator by aid or encouragement, with knowledge of the perpetrator's criminal intent and with the intent to help him carry out the offense."].) "'[W]hile mere presence at the scene of an offense is not sufficient in itself to sustain a conviction, it is a circumstance which will tend to support a finding that an accused was a principal. [Citations.]' [Citation.] '"[C]ompanionship, and conduct before and after the offense"' are also relevant to determining whether a defendant aided and abetted a crime." (Miranda, at p. 407.)
The People presented evidence that Young and Stone were fellow gang members who were motivated to retaliate against people from the Imperial Courts housing project because of the October 18, 2014 restaurant fight, that Young was the direct perpetrator of another shooting at the housing project less than an hour before Stone shot Griggley, that Ashley saw a man who "looked like" Young drive by them twice and smirk at her shortly before Stone shot Griggley, and that Stone shot Griggley with the very gun Young used in the earlier shooting. From this evidence a rational juror could reasonably conclude, beyond a reasonable doubt, that Young knew Stone intended to shoot Griggley, intended to help him carry it out, and did help him carry it out by, at a minimum, supplying him the gun.
In arguing this evidence was insufficient, Young stresses that Ashley stated she "wasn't sure" Young was the driver of the Audi SUV who drove by and smirked at her. As stated, however, Ashley's identification of Young as the driver of the Audi was far from the only evidence supporting an inference Young aided and abetted Stone in shooting Griggley. Moreover, Ashley's credibility and the weight of her testimony were for the jury alone to decide. (People v. Alexander (2010) 49 Cal.4th 846, 917 ["'We do not reweigh evidence or reevaluate a witness's credibility.'"].) Young also cites case law suggesting a defendant's membership in a gang is insufficient to prove he aided and abetted another gang member in committing a crime. (See, e.g., People v. Guillen (2014) 227 Cal.App.4th 934, 992 ["gang evidence standing alone cannot prove a defendant is an aider and abettor to a crime"].) But again, the gang membership of Young and Stone was by no means the only evidence supporting Young's aider and abettor liability.
D. Young and Stone's Contention the Trial Court Erred in Giving CALCRIM No. 315 Is Forfeited and Wrong
The trial court instructed the jury pursuant to CALCRIM No. 315 that, when evaluating eyewitness identification testimony, a jury may consider "[h]ow certain . . . the witness [was] when he or she made an identification." Young and Stone contend that, in view of research showing "a weak correlation between witness certainty and accuracy of identification," the instruction violated their due process rights. "We independently review the propriety of a jury instruction." (People v. Rodriguez (2019) 40 Cal.App.5th 194, 199 (Rodriguez).)
Young and Stone concede that, because they did not raise this issue in the trial court, they forfeited it. (See People v. Sánchez (2016) 63 Cal.4th 411, 461 (Sánchez) [by not raising the issue in the trial court, the defendant forfeited a challenge to the instruction that the jury could consider an eyewitness's certainty in evaluating identification testimony]; People v. Ward (2005) 36 Cal.4th 186, 213 [trial court had no sua sponte duty to modify the instruction]; Rodriguez, supra, 40 Cal.App.5th at p. 200 [defendant forfeited the contention CALCRIM No. 315 erroneously instructed jury to consider eyewitness certainty].)
Sánchez, supra, 63 Cal.4th at pages 461-463 and People v. Ward, supra, 36 Cal.4th at pages 213-214 concerned CALJIC No. 2.92, which was at that time "the standard instruction regarding how the jury should consider eyewitness identification evidence." (Sánchez, at p. 461). It instructed the jury to consider any factor bearing on the accuracy of the witness's identification, including "'the extent to which the witness is either certain or uncertain of the identification.'" (Ibid., quoting CALJIC No. 2.92.)
Moreover, although the issue Young and Stone now raise is currently pending before the California Supreme Court (People v. Lemcke (Jun. 21, 2018, G054241), review granted Oct. 10, 2018, S250108), the Supreme Court's treatment of the issue in Sánchez remains the law. There the Supreme Court "reiterated three decades of California Supreme Court precedent that a trial court may instruct the jury to consider eyewitness certainty." (Rodriguez, at pp. 199-200; see Sánchez, at p. 462.) The trial court did not err in giving CALCRIM No. 315.
E. Any Error in Instructing on the Kill Zone Theory Was Harmless
1. Relevant Proceedings
The trial court instructed the jury that "defendant Young is charged in counts 2 through 6 with attempted murder." The court instructed on that crime pursuant to CALCRIM No. 600:
"To prove that the defendant is guilty of attempted murder, the People must prove that:
"1. The defendant took at least one direct but ineffective step towards killing another person;
"AND
"2. The defendant intended to kill that person. [¶] . . . [¶] A person may intend to kill a specific victim or victims and at the same time intend to kill everyone in a particular zone of harm or 'kill zone.' In order to convict the defendant of attempted murder of Jennifer Edwards and Martha Cruz [sic], the People must prove that the defendant not only intended to kill a particular victim but also intended to kill everyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill a particular victim or intended to kill that particular victim by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of the others in the kill zone."
2. Analysis
Young contends the trial court erred in instructing on the so-called kill zone theory, "under which a defendant may be convicted of the attempted murder of an individual who was not the defendant's primary target." (People v. Canizales (2019) 7 Cal.5th 591, 596 (Canizales).) Young argues the error warrants reversing his convictions for the attempted murders of Jones, Salazar, Edwards, and Biddle, i.e., the victims of the first shooting at Imperial Courts on October 26, 2014. Any error in instructing on the kill zone theory, however, was harmless.
In Canizales, supra, 7 Cal.5th 591 the Supreme Court held that "a jury may convict a defendant under the kill zone theory only when the jury finds that: (1) the circumstances of the defendant's attack on a primary target . . . are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm . . . around the primary target and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm." (Id. at pp. 596-597.) The Supreme Court also stated "trial courts should reserve the kill zone theory for instances in which there is sufficient evidence from which the jury could find that the only reasonable inference is that the defendant intended to kill (not merely to endanger or harm) everyone in the zone of fatal harm." (Id. at p. 597.) The Supreme Court "anticipate[d] there will be relatively few cases in which the theory will be applicable and an instruction appropriate." (Id. at p. 608.) Thus, "[t]rial courts should tread carefully when the prosecution proposes to rely on such a theory, and should provide an instruction to the jury only in those cases where the court concludes there is sufficient evidence to support a jury determination that the only reasonable inference from the circumstances of the offense is that a defendant intended to kill everyone in the zone of fatal harm." (Ibid.)
We will reverse a conviction for an erroneous kill zone instruction, however, only if the error was prejudicial. (See Canizales, supra, 7 Cal.5th at pp. 612-618.) Where a trial court instructs on both a valid and invalid theory, we apply "the usual 'beyond a reasonable doubt' standard of review established in Chapman v. California (1967) 386 U.S. 18, 24 . . . (Chapman)" to determine whether the error of instructing on the invalid theory was prejudicial. (People v. Aledamat (2019) 8 Cal.5th 1, 3; see Canizales, at p. 615.) Under that standard we "must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, [we] determine[ ] the error was harmless beyond a reasonable doubt." (Aledamat, at p. 3.)
Even assuming the trial court erred here by including the kill zone theory in its otherwise valid and unchallenged instruction, the error was harmless. First, the trial court directed the instruction on the kill zone theory only to the count for the attempted murder of Jennifer Edwards and, evidently by mistake, to the uncharged attempted murder of Martha Cruz. Second, the prosecutor did not rely on—indeed, never even referred to—the kill zone theory in his closing arguments. In fact, third, the prosecutor argued Young shot at, individually, "each" of the people named in counts three through six, including Edwards. Fourth, and finally, the evidence strongly supported the prosecutor's argument. Edwards, who was sitting in the front seat of the car when Young started shooting, testified Young first shot "towards [Biddle]," who was standing outside the car at her window, then shot at her, after Biddle ran, because he could still see her in the front seat ("I felt like the suspect was trying to get me because I was the only one right there that he seen at the time"). After that, Young turned and spoke to Jones and Salazar, who stood a short distance away from Young and the car, before opening fire on them. The circumstances of these shootings leave no reasonable doubt the verdict was unaffected by any error in instructing on the kill zone theory. (See Aledamat, supra, 8 Cal.5th at pp. 12-13 ["Finding beyond a reasonable doubt that the error did not contribute to the verdict is essentially the same as finding the error harmless beyond a reasonable doubt."].)
F. The Prosecutor Did Not Commit Prejudicial Misconduct in Closing Argument
1. Relevant Proceedings
In his rebuttal argument, the prosecutor contended counsel for Young, in his closing argument, had misstated evidence, including when describing a surveillance video showing Young and Childs outside the liquor store on the night Childs was murdered. Specifically, the prosecutor claimed counsel for Young had suggested that when, in the video, Young said, "Let's go to the corner," Young was not speaking to Childs, but to a child who had accompanied Young. "You saw this video," the prosecutor told the jury. "And is there a child here?" (Presumably, there was not.) Counsel for Young objected, arguing he never suggested Childs was speaking to the child. The court overruled the objection, the prosecutor continued to press the point with the jury, counsel for Young again objected on the same ground, the court again overruled the objection. The court reminded the jury, "I've already warned you as to what the attorneys say is not evidence."
Later the prosecutor addressed evidence identifying Young and Stone as the shooters at Imperial Courts on October 26, 2014. He argued, "The face that [witnesses] identified in the first shooting at the Imperial Courts again and again and again was defendant Young. The face that was identified as the shooter of Samieke Griggley for the second shooting was defendant Stone again and again and again. You have multiple witnesses all pointing and saying that the killers are in this room. They're those two individuals right there. I mean, if you think about it—I mean, think about the chances of that happening, three or four individuals picking the same person. It's simple." Counsel for Stone objected this was "improper argument about chances." The court responded by addressing the jury: "Ladies and gentlemen, I indicated to you several times already what the attorneys say during their closing argument is not evidence. If there's anything that's different from your own recollection of the facts, you must rely on your own recollection of the evidence." The court directed the prosecutor to proceed.
Which he did: "And so when you think about it—let me do this: Just randomly, one person picking out somebody in a six-pack, chances of that with six people, it's one in six, right? One out of six. Just randomly being able to pick that out." Counsel for Young and counsel for Stone objected: "There's been no evidence of that." After the court denied a request by counsel for Young and counsel for Stone to approach the bench, the prosecutor continued: "One out of six. Two people identifying the exact same person, what are the chances of that? One-out-of-six times one-out-of-six: one out of 36. The chances just aren't random that three people are gonna identify the same person at random. Out-of-six [sic] times one-out-of-six times one-out-of-six: one out of 216." Again counsel for Stone objected: "There's been no evidence to support this." The court overruled the objection, and the prosecutor finished his point: "That's the chances of randomly three individuals choosing the same person. That's just math. That's not law or this or that. That's just math."
The prosecutor moved on, but not far: "And in addition to that—so in each of these shootings, we have three individuals. But in addition to the ones for defendant Young for the first shooting at Imperial Courts, you have Ashley Bowman who also identified defendant Young. And she said, 'Look, I'm not completely sure, but this guy looks like the guy who was in the Q7.' So we have a fourth individual picking out defendant Young. And you can do that math again if you want. Multiply that by six. So I think one in over a thousand. One in over a thousand that all these individuals are randomly choosing the same person? And in addition to that, not just choosing. What else did Ashley Bowman say? 'A Q7.' 'A Q7.' How many different cars are there out there? How many different models are there? And she happened to pick the one that the defendant is next to in his social media. What are the chances of that?"
Once again counsel for Young and counsel for Stone objected to "the use of 'chance,'" and that there was no "evidence to support [Young] was in a Q7." The trial court overruled the objections, and the prosecutor resumed: "She didn't know Dan Young had a Q7—" "I'm going to object," counsel for Stone interrupted, "there's no evidence my client ever owned a Q7." The court overruled the objection, and the prosecutor resumed: "She didn't know Dan Young was gonna be in a picture next to a Q7. How many witnesses? How much corroborating evidence over and over and over? Let me ask you this: Has any of these witnesses who came into court—is there any evidence—let me put it this way: All the evidence points to these two individuals. All the evidence is that Dan Young, Christopher Stone committed these murders. And—I mean, the math is just math."
2. Analysis
Young and Stone contend the prosecutor committed misconduct in these remarks by "arguing inadmissible probability statistics that were outside the record." The prosecutor's argument, though concerning, did not constitute prejudicial misconduct.
"Prosecutorial misbehavior 'violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." [Citation.] But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves "'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.'"'" (People v. Rhoades (2019) 8 Cal.5th 393, 418; accord, People v. Hill (1998) 17 Cal.4th 800, 819.)
"Regarding the scope of permissible prosecutorial argument, we [have] noted '"'a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.'"'" (People v. Hill, supra, 17 Cal.4th at p. 819; accord, People v. Stanley (2006) 39 Cal.4th 913, 951-952.) "'To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.'" (People v. Gamache (2010) 48 Cal.4th 347, 371; see People v. Centeno (2014) 60 Cal.4th 659, 667 ["'In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.'"].)
"Even where a defendant shows prosecutorial misconduct occurred, reversal is not required unless the defendant can show he suffered prejudice. [Citation.] Error with respect to prosecutorial misconduct is evaluated under Chapman[, supra, 386 U.S. 18], . . . to the extent federal constitutional rights are implicated, and People v. Watson (1956) 46 Cal.2d 818 [(Watson)] . . . if only state law issues were involved. [Citation.] Chapman is implicated if the prosecutor's conduct renders the trial so fundamentally unfair that due process is violated. [Citations.] Watson applies where the prosecutor uses '"'deceptive or reprehensible methods to attempt to persuade either the court or the jury.'"'" (People v. Fernandez (2013) 216 Cal.App.4th 540, 564; accord, People v. Adanandus (2007) 157 Cal.App.4th 496, 514-515.)
Citing People v. Collins (1968) 68 Cal.2d 319 (Collins) and People v. Julian (2019) 34 Cal.App.5th 878 (Julian), Young and Stone argue the prosecutor's argument concerning "the 'probabilities' of the identifications was the most serious incident of prosecutorial error" and requires reversal. Collins and Julian, however, are distinguishable. Both reversed convictions where the trial court erroneously admitted statistical probability evidence bearing on the defendant's guilt, which the prosecution introduced through expert testimony. (See Collins, at p. 325 [mathematician testified in effect that, "assuming the robbery was committed by a Caucasian woman with a blond ponytail who left the scene accompanied by a Negro with a beard and mustache, there was an overwhelming probability that the crime was committed by any couple answering such distinctive characteristics"]; Julian, at p. 883 [expert testified that false sexual abuse allegations by children "'don't happen very often,'" are "very infrequent, or rare," and were "about as low as one percent of cases to a high of maybe 6, 7, 8 percent,'" italics omitted].) As the court in Julian explained: "Where expert opinions on the statistical probability of guilt are admitted, the jury may be 'distracted' from its 'requisite function of weighing the evidence on the issue of guilt,' and may rely instead on this 'irrelevant' evidence." (Julian, at p. 886.)
Here, there was no expert testimony on the statistical probability of the defendants' guilt, and the prosecutor did not claim there was. Rather, he cited other, properly admitted evidence—i.e., the several eyewitness identifications of Young and Stone—to make an argument that invoked the concept of statistical probability. The trial court repeatedly reminded the jury these comments were argument, not evidence. In argument a prosecutor may make reasonable deductions from the evidence and even "'argue facts not in evidence that are common knowledge or drawn from common experiences.'" (People v. Mendoza (2016) 62 Cal.4th 856, 908.) And even allowing for the possibility the prosecutor's math was fuzzy or relied on concepts that are not common knowledge, his argument here, "[w]hen considered in context, . . . was essentially an appeal to common sense"—the idea that multiple independent identifications of a defendant strongly corroborate one another. (Mendoza, at p. 908.) For these reasons we are satisfied the prosecutor's conduct did not violate the federal Constitution by rendering the trial fundamentally unfair.
Stone and Young complain of, in particular, the prosecutor's use of "the product rule." "'"The product rule states that the probability of two events occurring together is equal to the probability that the first event will occur multiplied by the probability that the second event will occur."'" (People v. Prince (2007) 40 Cal.4th 1179, 1274, fn. 22.)
We are less confident the prosecutor's statistical arguments did not constitute misconduct under state law. (See Collins, supra, 68 Cal.2d at p. 320 ["Mathematics, a veritable sorcerer in our computerized society, while assisting the trier of fact in the search for truth, must not cast a spell over him."]; People v. Cella (1983) 139 Cal.App.3d 391, 404 ["interjection into criminal proceedings of sophisticated theories of mathematical probability raises a number of serious concerns"].) But even if they did, they were harmless under the standard of Watson, supra, 46 Cal.2d 818, because it is not "reasonably probable that a more favorable result would have been reached absent the alleged objectionable argument." (People v. Fernandez, supra, 216 Cal.App.4th at p. 564; see Watson, at p. 836.) Even if the prosecutor had not referred to statistical probabilities when emphasizing that multiple witnesses identified the defendants, the jurors knew—and were properly reminded—there were multiple independent identifications, and the jurors had their commonsense. It is not reasonably probable they would have arrived at a result more favorable to Stone or Young absent the prosecutor's statistical references.
Young also suggests in passing that the prosecutor misstated facts when he stated counsel for Young had argued Young addressed the words "Let's go to the corner" to a child (rather than to Childs) and when the prosecutor stated Young "had a Q7 Audi." But Young makes no effort to explain how these statements amounted to misconduct or prejudiced him, particularly given the trial court's repeated admonitions that the attorneys' arguments were not evidence and that the jurors should rely on their recollection of the evidence. (See People v. Hamilton (2009) 45 Cal.4th 863, 952 ["Even if arguably inappropriate, the prosecutor's comment was not evidence, and did not constitute misconduct."].) Young and Stone have not demonstrated the prosecutor committed prejudicial misconduct.
G. No Cumulative Prejudicial Effect of Errors or Misconduct Warrants Reversal
Young and Stone argue the cumulative prejudicial effect of the trial court's errors and the prosecutor's misconduct requires reversal of their convictions. But Stone has not demonstrated the trial court committed any error relating to him, and even assuming the trial court erred in instructing the jury on the kill zone theory in connection with the attempted murder charges against Young, that error, as stated, was harmless. Young and Stone's cumulative prejudice argument is meritless. (See People v. DeHoyos (2013) 57 Cal.4th 79, 155 [where "each error or possible error [is] harmless when considered separately . . . we likewise conclude that their cumulative effect does not warrant reversal"]; People v. Jennings (2010) 50 Cal.4th 616, 691 [where there was no prejudice even assuming error, the cumulative effect of any possible errors did not warrant reversal "[i]n light of the extensive and overwhelming evidence of defendant's guilt"].)
H. Remand Is Appropriate To Give Young and Stone the Opportunity To Request a Hearing on Their Ability to Pay Assessments
At sentencing the court imposed on Young and Stone, for each count on which they were convicted, a $40 court operations assessment under section 1465.8 and a $30 court facilities assessment under Government Code section 70373, for a total of $560 in assessments against Young and $210 in assessments against Stone. Under section 1202.4, subdivision (b), the court also imposed on each defendant a restitution fine of $1,000. Citing this court's decision in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Young and Stone contend the assessments and fine violated due process because the court did not determine their ability to pay. The People argue that Young and Stone forfeited this issue because they did not raise it in the trial court and that, in any event, the $1,000 restitution fine was constitutional.
In Dueñas, supra, 30 Cal.App.5th 1157 we concluded "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; imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution." (Dueñas, at p. 1168; accord, People v. Belloso (2019) 42 Cal.App.5th 647, 654 (Belloso).) We also held that, "although the trial 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 that the defendant has the ability to pay the fine." (Dueñas, at p. 1172; accord, Belloso, at p. 655.)
Young and Stone did not forfeit their due process challenge to the assessments under section 1465.8 and Government Code section 70373. As we explained in People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano), at the time the trial court sentenced Young and Stone, "Dueñas had not yet been decided; and no California court prior to Dueñas had held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant's ability to pay. Moreover, none of the statutes authorizing the imposition of the . . . assessments at issue authorized the court's consideration of a defendant's ability to pay." (Castellano, at p. 489; accord, Belloso, supra, 42 Cal.App.5th at p. 662.) "Because a due process objection would have been 'futile or wholly unsupported by substantive law then in existence' had it been raised to the trial court, [Young and Stone have] not forfeited the argument by failing to raise it below." (People v. Jones (2019) 36 Cal.App.5th 1028, 1033; accord, Belloso, at p. 662; see People v. Brooks (2017) 3 Cal.5th 1, 92 ["'[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence'"]; People v. Johnson (2019) 35 Cal.App.5th 134, 138 ["Can it be said that Dueñas was reasonably foreseeable? We think not."].) Remand is therefore appropriate to give Young and Stone the opportunity to request a hearing on their ability to pay the assessments under section 1465.8 and Government Code section 70373. (See Castellano, at pp. 490-491 [without evidence in the record of the defendant's inability to pay, remand was appropriate to allow him to request a hearing and present evidence showing his inability to pay].)
The Supreme Court granted review of the decision in People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844, to decide the following issues: Must a court consider a defendant's ability to pay before imposing or executing fines, fees, and assessments? If so, which party bears the burden of proof regarding defendant's inability to pay?
Young and Stone did, however, forfeit their challenge to the restitution fine imposed under section 1202.4, subdivision (b). Because the fine the court imposed was above the statutory minimum (see id., subd. (b) [giving court discretion to set amount between $300 and $10,000]), Young and Stone had the right to raise the issue at sentencing of their inability to pay the fine (see id., subd. (c) ["[i]nability to pay may be considered . . . in increasing the amount of the restitution fine in excess of the minimum fine"], subd. (d) [in setting amount in excess of the minimum fine, "the court shall consider any relevant factors, including . . . the defendant's inability to pay"]). Having failed to do so, they forfeited their right to argue the issue here. (See People v. Nelson (2011) 51 Cal.4th 198, 227 [defendant forfeited challenge to $10,000 restitution fine by failing to object at his sentencing hearing]; People v. Taylor (2019) 43 Cal.App.5th 390, 400-401 [same].)
I. The Trial Court Must Correct Stone's Presentence Custody Credits
The trial court awarded Stone 596 days of presentence custody credit, consisting of 596 days of actual custody credit and 0 days of conduct credit. Because he was arrested on February 2, 2017 and sentenced on October 17, 2018, Stone contends, the People concede, and we agree the trial court erred in not awarding him 623 days of actual custody credit. (See People v. Denman (2013) 218 Cal.App.4th 800, 814 ["[a] defendant is entitled to actual custody credit for 'all days of custody' in county jail," and "[c]alculation of custody credit begins on the day of arrest and continues through the day of sentencing"].) On remand the trial court is directed to correct its error.
DISPOSITION
The matter is remanded with directions for the trial court to give Young and Stone the opportunity to request a hearing on their ability to pay the assessments under section 1465.8 and Government Code section 70373, to award Stone 623 days of presentence custody credit, consisting of 623 days of actual custody credit and 0 days of good time/work time conduct credit, and to prepare and forward to the Department of Corrections and Rehabilitation a corrected abstract of judgment for Stone. In all other respects, the judgments are affirmed.
SEGAL, J. We concur:
PERLUSS, P. J.
FEUER, J.