People v. Lopez CA4/1

Filed 8/28/20 P. v. Lopez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D075604

Plaintiff and Respondent,

v.
(Super. Ct. No. SCS294826)
RAYMUNDO LOPEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Ana España, Theodore M. Weathers, and Patricia Garcia, Judges. Affirmed.
Robert F. Somers, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Meredith S.
White and Robin Urbanski, Deputy Attorneys General, for Plaintiff and
Respondent.
 Members of a Border Patrol task force surveilled defendant Raymundo
Lopez after he crossed into the United States from Mexico in his SUV in the
middle of the night. After seeing Lopez make several “countersurveillance”
driving maneuvers, and fearing he was about to return to Mexico to avoid
being detained, the agents initiated a traffic stop. Lopez consented to a
canine sniff and a search of his vehicle. After the canine alerted to the
driver’s front wheel well area, an agent examined the area and observed that
drain holes in the vehicle’s undercarriage had been covered, and there were
other fresh tool markings suggesting the presence of a hidden compartment.
The agent drilled into the suspected compartment and observed a white
powdery substance on his drill bit when he withdrew it. A subsequent, more
elaborate search of Lopez’s vehicle revealed 15 kilograms of cocaine concealed
in the hidden compartment.
A jury found Lopez guilty of transportation of cocaine for sale and
possession of cocaine for sale, and found true as to both counts that the
amount of cocaine exceeded 10 kilograms. The trial court imposed a 13-year
split sentence and ordered Lopez to pay assessments, fees, and fines totaling
about $5,000.
Lopez raises several challenges on appeal. First, he contends the trial
court erred by denying his suppression motion. He maintains the agents
lacked reasonable suspicion to initiate the traffic stop in the first instance,
and then exceeded the scope of his consent to search by drilling into his
vehicle without a warrant. Second, he contends the trial court erred by
denying his motion for mistrial after an agent testified on cross-examination
that one of the reasons he initially detained Lopez was that Lopez’s vehicle,
or a similar type of vehicle, had been involved in a prior drug bust.
Alternatively, Lopez contends his counsel performed ineffectively by eliciting

2
this testimony from the agent. Finally, Lopez contends the trial court erred
by imposing monetary assessments he will not be able to pay because he will
likely be deported to Mexico when he is released from custody.
For reasons we will explain, Lopez’s contentions lack merit.
Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
At about 1:50 a.m. on July 11, 2017, Lopez and his 14-year-old
daughter crossed into the United States from Mexico in Lopez’s 2009 Saturn
Outlook SUV. Six U.S. Border Patrol agents assigned to the Predictive
Intelligence Targeting Team were conducting surveillance at the port of entry
and began following Lopez in their unmarked vehicles.
The agents observed Lopez engage in several driving maneuvers they
interpreted as countersurveillance measures designed to determine whether
Lopez was being followed. After surveilling Lopez for about 40 minutes, the
agents decided to detain him as he entered a southbound freeway onramp.
Agent Ronaldo Aldaco—a fully uniformed agent and canine handler—
initiated the traffic stop. Aldaco observed that Lopez appeared nervous—he
was shaking, avoiding eye contact, and sweating even though it was cold
outside. Lopez told the agent he was coming from his family’s house and
heading to Tijuana for a funeral.
When Aldaco asked if he could conduct an exterior canine sniff and a
search of the vehicle, Lopez consented. During the ensuing canine sniff,
Aldaco’s canine alerted to the driver’s “fender well area.” Aldaco visually
inspected the area and the vehicle’s undercarriage and saw that the drain
holes in the frame rails had been covered. Aldaco explained that all vehicles
are built on a frame (consisting of hollow rails that run the length of the

3
vehicle), which serves as the vehicle’s foundation. The frame rails have drain
holes to allow fluids from the engine to drain out. Aldaco also saw excessive
tool markings on bolts attached to the vehicle’s frame and fender. The tool
markings appeared to have been concealed with “spray-on-dirt.” Based on his
training and experience, Aldaco suspected an aftermarket compartment was
concealed in the frame rails.
Aldaco retrieved a drill from his truck and drilled into the suspected
hidden compartment. When he removed the drill bit, he saw a white powdery
substance on the bit that appeared to be cocaine or heroin. Aldaco arrested
Lopez and transported the Saturn to the nearest Border Patrol station.
There, Aldaco dismantled the front end of the vehicle and discovered 15
kilogram-sized packages of suspected narcotics concealed in the frame rails.
Subsequent testing confirmed the packages contained 15 kilograms of
cocaine, worth approximately $315,000. Based on the characteristics of the
hidden compartment, Aldaco estimated it would have taken two to four days
to construct.
A Homeland Security Investigations special agent with expertise in
narcotics cases opined that in a hypothetical situation mirroring the facts of
this case, the driver’s “behavior would be very consistent with a knowing
courier” of narcotics. The agent further testified the pattern of Lopez’s border
crossings was inconsistent with that of an “unknowing courier.”
Defense Evidence
Lopez testified he was unaware of the cocaine’s presence in his vehicle.
He said he had purchased the used Saturn in Tijuana about a year and a half
ago, and denied knowing it had any hidden compartments (despite his having
replaced the transmission himself). Lopez specifically denied knowingly
bringing drugs into the U.S. at any time.

4
 Prosecution Rebuttal
A detective who interviewed Lopez after his arrest testified in rebuttal
that Lopez “changed his reasoning” two or three times regarding why he had
crossed the border that night.
Jury Verdicts and Sentence
At a first trial, the jury was unable to reach verdicts and the trial court
declared a mistrial. The court’s minute order indicates jurors were unable to
agree whether Lopez knew of the cocaine’s presence in his vehicle.
At the second trial, the jury found Lopez guilty of transportation of
cocaine for sale (Health & Saf. Code, § 11352, subd. (a)) and possession of
cocaine for sale (id., § 11351). As to both counts, the jury found that the
weight of the cocaine exceeded 10 kilograms. (Id., § 11370.4, subd. (a)(3)
[“Where the substance exceeds 10 kilograms by weight, the person shall
receive an additional term of 10 years.”].)
The trial court imposed a 13-year split sentence on the transportation-
for-sale conviction (to be served six years in custody and seven years under
mandatory community supervision). The court imposed, but stayed under
section 654, an aggregate 12-year sentence on the possession-for-sale
conviction.
The court also ordered Lopez to pay $5,014 in assessments, consisting
of the following: a $3,900 restitution fine (Pen. Code,1 § 1202.4, subd. (b));2
an $80 court security fee (§ 1465.8); a $60 criminal conviction assessment
(Gov. Code, § 70373); a $154 criminal justice administration fee (Gov. Code,

1 Further undesignated statutory references are to the Penal Code.

2 The trial court also imposed, but stayed, a corresponding $3,900
supervision-revocation fine under section 1202.45.

5
§ 29550 et seq.); a $615 drug program fee (Health & Saf. Code, § 11372.7);
and a $205 lab analysis fee (Health & Saf. Code, § 11372.5).
DISCUSSION
I. No Error in Denying Suppression Motion
Lopez contends the trial court erred by denying his motion (and
renewed motion) to suppress all evidence because the agents unlawfully
detained him without reasonable suspicion and then conducted an
unreasonable warrantless search by drilling into his vehicle. We disagree.
A. Background
Before the preliminary hearing, Lopez moved to suppress all evidence
against him on the basis that Agent Aldaco lacked reasonable suspicion for
the traffic stop. (§ 1538.5.) The prosecution opposed the motion, arguing
Aldaco had reasonable suspicion because the agents knew Lopez was
connected to a significant drug bust about one month earlier, and Lopez
engaged in countersurveillance driving maneuvers. The prosecution further
argued Lopez voluntarily consented to the search of his vehicle.
1. Suppression Hearing
The hearing on Lopez’s suppression motion coincided with the
preliminary hearing. Border Patrol Agents Andrew Beltran and Rolando
Aldaco testified at the hearing.
(a) Agent Beltran
Beltran testified about the facts leading up to the traffic stop. Beltran
was a member of the Border Patrol’s Predictive Intelligence Targeting Team,
which “look[s] for travel patterns that are consistent with . . . narcotics” and
other “smuggling” offenses. Typically, the team identifies vehicles used to
transport narcotics across the border, then investigates everyone associated
with that vehicle. The team became aware of Lopez about one month before

6
his arrest because his “vehicle was associated with an[] ongoing drug
investigation” and “there was some sort of connection with [Lopez] in another
case.”
The team worked special hours on July 11 in anticipation of Lopez
crossing the border. Six team members in unmarked vehicles began
surveilling Lopez as he crossed the San Ysidro port of entry in his Saturn at
about 1:50 a.m.
After driving north on Interstate 805 for a few miles, Lopez exited the
freeway and went to a gas station. Beltran followed him and pretended to
pump gas. Lopez and a teenage female were the only occupants in the
Saturn. Beltran observed that as Lopez walked to and from the gas station
store, he “glanced everywhere” in a way Beltran characterized, based on his
experience, as “not normal” and likely “looking out for . . . law enforcement.”
After the gas station, Lopez got back on northbound Interstate 805.
Lopez then engaged in several driving maneuvers Beltran characterized as
countersurveillance measures. First, Lopez drove only about 55 miles per
hour on the freeway, whereas the flow of traffic was about 80 miles per hour.
Second, Lopez exited the freeway and waited at the offramp traffic signal for
about five seconds after the light had turned green. Third, Lopez made an
abrupt, last-minute right turn from the far-left lane, and then stopped mid-
block partially in the traffic lane. Fourth, Lopez accelerated and decelerated
erratically. Finally, Lopez kept “just making turn after turn” and eventually
eluded the agents for a few minutes, before parking his car on a residential
street and turning off the vehicle’s lights.
The agents eventually located the Saturn, confirmed there were still
two occupants, and took up surveillance positions on neighboring streets.
The Saturn drove off about 10 or 15 minutes later, and the team followed.

7
 When the Saturn continued with “the same type of driving behavior” as
before and headed toward the onramp to southbound Interstate 805, Beltran
believed the team’s cover had been blown and decided to stop the Saturn
before it fled to Mexico. Aldaco initiated the traffic stop because he was the
only agent in full uniform.
The agents determined Lopez was driving, and the female passenger
was his 14-year-old daughter. When Beltran asked the daughter where they
were coming from, she gave several different explanations and “just
continued to fumble with her words and tr[ied] to make up stories.”
(b) Agent Aldaco
Agent Aldaco testified about his role in the traffic stop and search. He
had been monitoring the team’s radio traffic about Lopez’s
countersurveillance techniques and responded to the location where the
Saturn had been parked with its lights off. Aldaco also observed Lopez drive
erratically from the residential street to the southbound freeway onramp.
Aldaco testified he initiated the traffic stop based on Lopez’s
countersurveillance maneuvers and because Aldaco knew Lopez “was linked
to another [narcotics] seizure that [Aldaco] was involved in [with] the same
type of vehicle, in the same type of compartment,” which is why the agents
were surveilling Lopez in the first place. Aldaco further testified he had
“extensive experience in after-market compartments,” including those
concealed in the frames of Saturn Outlooks and their variants.
Aldaco approached the Saturn, identified himself as a Border Patrol
agent, and asked Lopez about his immigration status. Lopez “said he was a
permanent resident cardholder.” Aldaco asked Lopez to step out of the
vehicle for a safety pat-down, and Lopez complied. Aldaco did not find any
weapons or drugs on Lopez.

8
 When Aldaco asked Lopez where he was coming from, Lopez “stated
that he was coming from a family member’s house nearby and was heading to
a funeral in Tijuana, Mexico.” Aldaco noticed that Lopez’s “voice was
cracking,” and Lopez “was fidgeting,” acting “nervous,” and “sweating a lot
even though the weather was cool.”3
Aldaco asked Lopez “for . . . consent to conduct a K-9 sniff and a search
[of] the vehicle.” Lopez responded, “Yes, go ahead, you can . . . deploy the K-9
and you can also search the vehicle as well.” During the ensuing search, the
trained and certified canine “specifically alerted to the driver’s front wheel
well area.”
Aldaco then conducted a visual inspection of the Saturn’s
undercarriage. He “noticed that the drain holes to the frame rails[4]were
covered with . . . sheet metal” and “spray painted . . . to mimic the factory
paint,” which, in his experience, was “consistent with an after-market
compartment.” Aldaco further suspected the presence of a hidden
compartment because there were “recent tooling marks” on all the bolts and
clips in the fender area from which one accesses the frame rails. The tooling
marks were covered with “spray-on dirt.”
Aldaco went to his truck and retrieved a drill. He testified as follows
about what happened next:
“I used my drill to drill a hole. First I had to turn the tire,
the steering wheel, I turned it to the left so it gave me room
enough to . . . place my drill and start drilling the frame

3 Agent Beltran also testified that Lopez appeared “very nervous.”

4 Similar to his trial testimony, Aldaco testified that “frame rails” “are
support frames that support the vehicle that run across the back to front.”
They have drain holes “so that water [and engine fluids] can flow to the
ground and not stay in the car.”

9
 rail through the plastic. [¶] And after retreating the drill
bit, I noticed a white powdery substance that is consistent
in my experience with characteristics of cocaine.”
Aldaco relayed his findings to the team and arrested Lopez for possible
possession of a controlled substance. The agents took the Saturn to the
nearest Border Patrol station, where Aldaco dismantled the front end and
discovered 15 kilogram-sized “bricks” of cocaine in the frame rails.
(c) Ruling
After hearing testimony, the trial court heard argument on the
suppression motion. The prosecutor argued the agents had reasonable
suspicion to initiate the traffic stop based on their “prior information” about
Lopez’s narcotics activity and his extensive countersurveillance maneuvers.
The prosecutor added that Lopez had expressly consented to the search of his
vehicle.
Defense counsel argued the perceived countersurveillance measures
were insufficient to establish reasonable suspicion for the traffic stop; he did
not address the agents’ prior intelligence about Lopez. Counsel further
argued Lopez’s consent did not extend to drilling into his vehicle because “no
one could foresee” that a consensual search would damage his vehicle.
Counsel maintained the agents should have obtained a search warrant before
drilling because there were no exigent circumstances.
In rebuttal, the prosecutor argued the canine alert provided probable
cause for a further search, and, thus, no warrant was required under the
automobile exception to the warrant requirement.
Based on “the totality of all the circumstances,” the trial court denied
the suppression motion. The court found the agents had reasonable suspicion
for the traffic stop based on their knowledge of some connection between
Lopez or his vehicle and prior trafficking activity; Lopez’s “furtive gestures”

10
at the gas station; the time of day (“essentially middle of the night”); and
Lopez’s countersurveillance measures.
The court did not initially address the drilling issue, but when defense
counsel raised it, the court stated it agreed that the canine alert provided
probable cause for a further search, which, under the automobile exception,
did not require a warrant.
(d) Renewed Suppression Motion
A few months later, Lopez filed a renewed suppression motion
rearguing that drilling into the frame rails exceeded the scope of consent, and
did not fall within the automobile exception because there was no exigency or

danger to the agents. (§ 1538.5, subd. (i).)5
The prosecutor countered that the agents had developed probable cause
before Aldaco used his drill and, thus, no warrant was required under the
automobile exception. As to the scope of consent, the prosecutor argued
“there [were] no limitations placed on it.” However, the prosecutor
acknowledged Lopez probably had not contemplated that Aldaco would drill
into the frame rails.
Defense counsel did not dispute that the agents had probable cause, but
maintained the “automobile exception is not carte blanche” to conduct a
warrantless search “absent an exigent circumstance.”
The trial court denied the renewed suppression motion. First, the court
found “there was probable cause to search” the frame rails. Second, the court

5 Lopez based his renewed suppression motion on the evidentiary record
developed at the preliminary hearing. (See § 1538.5, subd. (i); People v.
Bennett (1998) 68 Cal.App.4th 396, 405 [where initial suppression motion is
made at preliminary hearing, renewed suppression motion is generally
limited to the preliminary hearing transcript].)

11
found “there appeared to be consent given,” including “that once the officer
brought out the drill, [Lopez] never objected to it . . . .”
B. Standard of Review
“ ‘In reviewing a suppression ruling, “we defer to the superior court’s
express and implied factual findings if they are supported by substantial
evidence, [but] we exercise our independent judgment in determining the
legality of a search on the facts so found.” ’ ” (People v. Tully (2012) 54
Cal.4th 952, 979 (Tully).) “Thus, while we ultimately exercise our
independent judgment to determine the constitutional propriety of a search
or seizure, we do so within the context of historical facts determined by the
trial court. ‘As the finder of fact . . . the superior court is vested with the
power to judge the credibility of the witnesses, resolve any conflicts in the
testimony, weigh the evidence and draw factual inferences in deciding
whether a search is constitutionally unreasonable.’ [Citation.] We review its
factual findings ‘ “ ‘under the deferential substantial-evidence standard.’ ” ’
[Citation.] Accordingly, ‘[w]e view the evidence in a light most favorable to
the order denying the motion to suppress’ [citation], and ‘[a]ny conflicts in the
evidence are resolved in favor of the superior court ruling’ [citation].
Moreover, the reviewing court ‘must accept the trial court’s resolution of
disputed facts and its assessment of credibility.’ ” (Ibid.)
C. Analysis
1. The Agents Had Reasonable Suspicion for the Traffic Stop
A law enforcement officer may detain a motorist for a brief
investigation when the totality of the circumstances provide the officer with
reasonable suspicion that the motorist has violated the law. (Navarette v.
California (2014) 572 U.S. 393, 396; see People v. Wells (2006) 38 Cal.4th
1078, 1082.) Lopez contends the agents lacked reasonable suspicion to detain

12
him because, although countersurveillance measures can contribute to
reasonable suspicion, they are insufficient standing alone, and there was no
“evidence other than perceived countersurveillance driving techniques” to
support the agents’ belief that Lopez was involved in criminal activity.
(Italics added.) We disagree.
As Lopez acknowledges, perceived countersurveillance driving
techniques can contribute to a finding of reasonable suspicion. (See, e.g.,
People v. Gomez (2004) 117 Cal.App.4th 531, 538.) And Agent Beltran
testified he observed Lopez use multiple countersurveillance measures:
driving slowly on the freeway; pausing at a green light; making an abrupt
right turn from the far-left lane, and then immediately stopping mid-block
while partially in the traffic lane; and erratically accelerating and
decelerating.
Contrary to Lopez’s assertion, there was, indeed, additional evidence
indicating he was engaged in criminal activity First, Beltran testified that
his team’s investigative techniques indicated Lopez and his vehicle were
connected to narcotics activity.6 Second, Beltran testified that Lopez’s
“glancing” at the gas station was “not normal” and appeared to be “looking

6 Lopez argues tangentially that his act of crossing the border was not,
itself, “suspicious because this act was routine” for him, as evidenced by the
special agent’s trial testimony about Lopez’s frequent border crossings. This
argument fails because it is based on trial testimony. “[I]n reviewing the
trial court’s suppression ruling, we consider only the evidence that was
presented to the trial court at the time it ruled.” (In re Arturo D. (2002) 27
Cal.4th 60, 77, fn. 18 (In re Arturo D.); see People v. Moore (2006) 39 Cal.4th
168, 171 (Moore) [review of ruling on suppression motion limited to record of
suppression hearings].) Moreover, the special agent testified Lopez’s border
crossing patterns were inconsistent with those of an unknowing courier.

13
out for . . . law enforcement.” Finally, Aldaco testified to his experience
locating hidden narcotics compartments in vehicles like Lopez’s.
Thus, based on our independent review of the totality of these
circumstances, we conclude the agents had reasonable suspicion to detain
Lopez.
2. Consent and the Automobile Exception Justified the Drill Search
Lopez contends the warrantless search of his vehicle by drilling into its
frame rail violated his Fourth Amendment rights because the destructive
drilling exceeded the scope of his consent and was not justified by the
automobile exception. We disagree.
Preliminarily, we note Lopez’s contentions are based on a flawed
factual assumption—that Aldaco drilled directly into the frame rail, itself.
He bases this on Aldaco’s trial testimony that he “had to turn the wheel to
the left side so it could give [him] a space to drill the frame rail from the
side.” (Italics added.) However, as already noted, in reviewing a ruling on a
suppression motion, we consider only the record before the trial court at the
time of its ruling. (In re Arturo D., supra, 27 Cal.4th at p. 77, fn. 18; Moore,
supra, 39 Cal.4th at p. 171.) Thus, we are limited to Aldaco’s preliminary
hearing testimony that he “start[ed] drilling the frame rail through the
plastic” (italics added), though he also referred to the covering material
during the preliminary hearing as “sheet metal.” In either event, we agree
with the Attorney General that “the most reasonable interpretation of [this]
testimony is that [Aldaco] drilled through where the drain hole would have
been, into material . . . that comprised the hidden compartment.” We will
analyze Lopez’s challenge with this understanding.

14
 (a) Relevant Legal Principles
Warrantless searches “ ‘ “are per se unreasonable under the Fourth
Amendment—subject only to a few specifically established and well-
delineated exceptions.” ’ [Citations.] ‘The burden is on the People to
establish an exception applies.’ [Citation.]” (People v. Ovieda (2019) 7
Cal.5th 1034, 1041.)
One “well settled” and “specifically established exception[] . . . is a
search that is conducted pursuant to consent.” (Schneckloth v. Bustamonte
(1973) 412 U.S. 218, 219; see Florida v. Jimeno (1991) 500 U.S. 248, 251
(Jimeno); People v. Superior Court (Chapman) (2012) 204 Cal.App.4th 1004,
1012.) “ ‘The standard for measuring the scope of a suspect’s consent under
the Fourth Amendment is that of “objective” reasonableness—what would the
typical reasonable person have understood by the exchange between the
officer and the suspect? [Citations.]’ ” (People v. Crenshaw (1992) 9
Cal.App.4th 1403, 1408 (Crenshaw).) “A consensual search may not legally
exceed the scope of the consent supporting it.” (Ibid.) “ ‘Whether the search
remained within the boundaries of the consent is a question of fact to be
determined from the totality of [the] circumstances. [Citation.] Unless
clearly erroneous, we uphold the trial court’s determination.’ ” (Tully, supra,
54 Cal.4th at pp. 983-984.)
Another exception to the Fourth Amendment’s warrant requirement is
the automobile exception. “Under the automobile exception, police who have
probable cause to believe a lawfully stopped vehicle contains evidence of
criminal activity or contraband may conduct a warrantless search of any area
of the vehicle in which the evidence might be found. [Citations.] Such a
search ‘is not unreasonable if based on facts that would justify the issuance of
a warrant, even though a warrant has not actually been obtained.’ ” (People

15
v. Evans (2011) 200 Cal.App.4th 735, 753 (Evans), quoting United States v.
Ross (1982) 456 U.S. 798, 809 (Ross).)
“The scope of a warrantless search based on probable cause [under the
automobile exception] is no narrower—and no broader—than the scope of a
search authorized by a warrant supported by probable cause. Only the prior
approval of the magistrate is waived; the search otherwise is as the
magistrate could authorize.” (Ross, supra, 456 U.S. at p. 823; see Evans,
supra, 200 Cal.App.4th at p. 753.) Thus, police “may conduct a search of the
vehicle that is as thorough as a magistrate could authorize in a warrant . . . .”
(Ross, at p. 800; see Evans, at p. 753.)
Under “established precedent, the ‘automobile exception’ has no
separate exigency requirement.” (Maryland v. Dyson (1999) 527 U.S. 465,
466; see People v. Waxler (2014) 224 Cal.App.4th 712, 725; People v. Johnson
(2018) 21 Cal.App.5th 1026, 1034.) “ ‘If a car is readily mobile and probable
cause exists to believe it contains contraband, the Fourth Amendment . . .
permits police to search the vehicle without more.’ ” (Dyson, at p. 467, italics
added; see Waxler, at p. 725.) A vehicle is “readily mobile” if it is operative—
it does not “ ‘depend upon . . . the likelihood . . . that the car would have been
driven away, or that its contents would have been tampered with, during the
period required for the police to obtain a warrant.’ ” (People v. Superior Court
(Overland) (1988) 203 Cal.App.3d 1114, 1119 (Overland); see California v.
Carney (1985) 471 U.S. 386, 392-393 [a “vehicle is obviously readily mobile” if
it “is being used on the highways, or if it is readily capable of such use”].)
(b) Analysis
In addressing the scope of consent, the parties primarily discuss
Crenshaw, supra, 9 Cal.App.4th 1403, in which the Court of Appeal
concluded the defendant’s consent to a search of his vehicle for drugs

16
extended to a police officer using a screwdriver to unscrew and remove a vent
cover on the vehicle’s door post, where the officer ultimately found drugs. (Id.
at pp. 1407-1408, 1415.) The court found the search was within the scope of
consent because (1) the suspect knew the officer was searching for drugs and,
thus, should have expected a “thorough” search; (2) the officer’s experience
led him to believe drugs might be concealed behind the suspicious vent cover;
(3) the door vent was not “mutilated, rendered useless or otherwise damaged
during the process of removal”; and (4) “[a]lthough seated a short distance
away in a police vehicle . . . at the time the panel was removed, there [was] no
indication in the record [the defendant] ever expressly or impliedly made any
attempt to limit the scope of the search as it progressed . . . .” (Id. at p. 1415.)
The Crenshaw court based its holding on Jimeno, supra, 500 U.S. 248
and its progeny. (Crenshaw, supra, 9 Cal.App.4th at p. 1414.) In Jimeno, the
Supreme Court held that consent to a vehicle search for drugs “included
consent to search containers within that car which might bear drugs” because
“[a] reasonable person may be expected to know that narcotics are generally
carried in some form of a container.” (Jimeno, at p. 251; see Ross, supra, 456
U.S. at p. 820 [“Contraband goods rarely are strewn across the trunk or floor
of a car . . . .”].) The court concluded the consent reasonably extended to the
police officer’s search of a closed paper bag on the vehicle’s floorboard.
(Jimeno, at pp. 250, 252.) In reaching this conclusion, the Jimeno court
distinguished a Florida case in which “the Supreme Court of Florida held
that consent to search the trunk of a car did not include authorization to pry
open a locked briefcase found inside the trunk. It is very likely unreasonable
to think that a suspect, by consenting to the search of his trunk, has agreed
to the breaking open of a locked briefcase within the trunk, but it is otherwise

17
with respect to a closed paper bag.” (Id. at pp. 251-252, citing State v. Wells
(Fla. 1989) 539 So.2d 464.)
Based on our determination that Aldaco drilled through the drain hole
covering and not the frame rail itself, we conclude under the reasoning of
Crenshaw and Jimeno that the drill search was within the scope of Lopez’s
consent.7 First, Lopez should reasonably have inferred from Aldaco’s request
for consent to a canine sniff that Aldaco intended to search for drugs and,
thus, Lopez was consenting to a “thorough” search. (Crenshaw, supra, 9
Cal.App.4th at p. 1415.) Second, Aldaco testified about his experience with
drug traffickers concealing drugs in vehicles’ frame rails. (See ibid. [officer
experience].) Third, drilling into the drain hole cover did not “mutilate[],
render[] useless or otherwise damage[]” Lopez’s vehicle. (Ibid.) Finally,
although the record is silent as to Lopez’s whereabouts when Aldaco retrieved
the drill from his truck and began using it on Lopez’s vehicle, as in Crenshaw,
“there is no indication in the record [Lopez] ever expressly or impliedly made
any attempt to limit the scope of the search as it progressed . . . .” (Ibid.)
Thus, the search was within the scope of Lopez’s consent.
We likewise conclude the search was justified under the automobile
exception because Lopez’s vehicle was readily mobile and Aldaco developed
probable cause to believe drugs were concealed in the frame rail.
Lopez does not dispute that his vehicle was readily mobile. Nor could
he—the record shows it was operative immediately before the traffic stop.
Nor does Lopez seriously dispute that Aldaco had probable cause.
Indeed, Lopez expressly acknowledges that “[a] dog alert can provide . . .

7 We express no opinion as to whether the search would have exceeded
the scope of Lopez’s consent had Aldaco drilled into the frame rail itself.

18
probable cause . . . .” (People v. Bautista (2004) 115 Cal.App.4th 229, 236.)
Instead, Lopez questions “whether a magistrate would have issued a
warrant . . . absent the drill search.” We have little doubt on the record
before us that a magistrate would have done so.
Had the agents sought a search warrant prior to conducting the drill
search, the evidentiary showing would have included the following: the
agents’ knowledge of Lopez’s and his vehicle’s connection to prior drug
trafficking activity; Lopez’s “not normal” behavior at the gas station; his use
of numerous countersurveillance driving maneuvers; his nervous demeanor
during the traffic stop; his and his daughter’s misleading explanations about
their travel plans; the positive canine alert; Aldaco’s observations of the
alterations to the frame rail drain holes; and Aldaco’s observations about
fresh tooling marks and spray-on-dirt on the front fender. On this
evidentiary showing, a magistrate most certainly would have issued a search
warrant authorizing the agents to drill through the material covering the
frame rail drain holes. Indeed, a magistrate would also likely have
authorized the agents to drill through the frame rail itself.
Lopez’s only other challenge to the applicability of the automobile
exception is his assertion that law enforcement officers should not be making
probable cause determinations “in the stress of [the] moment”—the
determination should instead be made by a dispassionate magistrate. But
the whole point of the automobile exception is to allow officers to conduct
vehicle searches based on roadside probable cause determinations. (Ross,
supra, 456 U.S. at p. 823 [“prior approval of the magistrate is waived”].)
Moreover, contrary to Lopez’s suggestion, the fact that “there was no risk of
the vehicle being stolen or the evidence being lost” does not render the
automobile exception inapplicable. (See Overland, supra, 203 Cal.App.3d at

19
p. 1120 [“[T]he fact that defendant was under arrest and had no immediate
access to his truck is immaterial in determining the validity of the search.”].)
Our conclusions regarding the scope of consent and the automobile
exception are consistent with those reached by courts in other jurisdictions,
which we discovered through our own independent research. In nearly all of
those cases, the courts upheld the drill search as falling within the scope of
the driver’s consent,8 the automobile exception,9 or both.10 We found only

8 (See United States v. Gregoire (10th Cir. 2005) 425 F.3d 872, 875, 880-
881 [driver’s consent extended to “drill[ing] two small holes in the floor” and
“chipp[ing] away some undercoat . . . of the compartment” because the
trooper told the driver he was searching for drugs and a hidden
compartment, and the driver did not object during the search]; Villarreal v.
State (Tex.Ct.App. 2018) 565 S.W.3d 919, 925, 930-931 [driver’s consent
extended to officer “drill[ing] ‘a little hole’ ” into a “hidden metal box[]”
underneath truck cab—the driver knew the object of the search was “ ‘large
amounts of’ ” narcotics, the driver did not object during the search, and the
drilled compartments “were add-ons with no apparent [legitimate] utility”
and, thus, drilling into them “did little or no damage to the authentic form of
the vehicle itself”].)

9 (See United States v. Zamora-Garcia (8th Cir. 2016) 831 F.3d 979, 982-
984 [although consent did “not give law enforcement officers license to
destroy [his] property” by drilling through the trunk floor, probable cause had
developed during the consensual search, which justified the drilling under
the automobile exception]; Fernandez v. State (Ga.Ct.App. 2005) 619 S.E.2d
821, 829 [drilling through vehicle floorboard]; United States v. Guevara
(D.Neb., Feb. 21, 2012, No. 8:11CR135) 2012 WL 553356, at pp. *5-*7
[drilling through nonfactory sheet metal inside engine component]; United
States v. Martin (D.Kan., Dec. 6, 2019, No. 18-CR-40117-HLT) 2019 WL
6682990, at pp. *2-*3 [drilling into metal tubes in truck bed]; United States v.
Nunez-Daza (S.D.N.Y., Aug. 8, 2000, No. 99 CR. 291 (LMM)) 2000 WL
1119099, at p. *4 [although “a general consent would not necessarily support
[a] deputy’s use of a drill,” probable cause that developed during the
consensual search justified drilling into the vehicle’s raised floor].)

10 (See United States v. Ahumada (D.Kan., Feb. 18, 2015, No. 14-40088-
20
one case in which an appellate court invalidated a drill search on the basis it
exceeded the scope of consent, but that court did not address the automobile
exception because it had not been raised in the trial court. (State v. Garcia
(N.M.Ct.App. 1999) 986 P.2d 491, 492, 495.) Notably, in the strikingly
analogous case of United States v. Rodriguez-Quiros (9th Cir. 2011) 442
Fed.Appx. 347, the Ninth Circuit upheld a warrantless drill search into a
vehicle’s frame rails where officers observed plugged drain holes, fresh tool
marks on the bumper, and fresh markings on the bolts that secure the frame
rail end caps.11
To summarize, because the record before the trial court at the time of
the suppression rulings shows Aldaco drilled through the material covering
the frame rail drain holes (and not the frame rail itself), the search fell within
the scope of Lopez’s consent to search his vehicle. Additionally, the
automobile exception justified the search because the agents had developed

01-DDC) 2015 WL 685845, at pp. *2, *5, *14, *16 [drilling a one-quarter inch
hole “where the windshield meets the dash”].)

11 The underlying facts of the case are set forth in the magistrate judge’s
recommendation and report. (United States v. Rodriguez-Quiros (D.Nev.,
May 19, 2009, No. 2:08-CR-0256-RLH-PAL) 2009 WL 10679310, at pp. *3, 13-
*14.) Although the magistrate judge recommended suppressing the seized
evidence on the grounds the search exceeded the scope of consent and that
probable cause was lacking (id. at pp. *13-*14), the district court rejected the
recommendation and found “sufficient probable cause to believe that the
bumper contained contraband and justified the further act of drilling an
additional hole . . . to confirm that justifiable belief” (United States v.
Rodriguez-Quiros (D. Nev. July 14, 2009, No. 2:08-CR-0256-RLH-PAL), 2009
WL 10679311, at p. *1.) The Ninth Circuit upheld the district court’s
probable cause finding. (United States v. Rodriguez-Quiros, supra, 442
Fed.Appx. at pp. 347-348.)

21
probable cause before the drill search. Accordingly, the trial court did not err
in denying Lopez’s suppression motions.
II. Testimony About Lopez’s Prior Drug Trafficking Activity
On cross-examination during trial, Lopez’s counsel asked Agent Aldaco
whether he had a reason to stop Lopez other than the countersurveillance
driving measures. Aldaco responded that he did—Lopez’s vehicle or a similar
one had been involved in prior drug trafficking activities. Lopez contends the
trial court erred by denying his motion for a mistrial based on this testimony,
or, alternatively, that his counsel was ineffective for eliciting it in the first
place. Neither contention has merit.
A. Background
At the outset of cross-examination, defense counsel questioned Aldaco
about why he stopped Lopez’s vehicle. Aldaco explained it was because of
Lopez’s countersurveillance driving maneuvers and concern that Lopez might
slip back into Mexico. The following series of questions, objections, and
answers about Aldaco’s reasoning ensued:
“Q. All right. But legally, there is no law against
somebody conducting countersurveillance, if that’s all
they’re doing, correct?
“[Prosecutor]: Objection. Relevance, your Honor.
“THE COURT: Overruled. [¶] You may answer.
“[Aldaco]: Say that one more time.
“[Defense Counsel]: What I’m saying is you’ve told us why
you did it. You had suspicions, but you did not have a legal
reason to believe that this defendant was committing a
crime.
“[Prosecutor]: Objection. Relevance, your Honor.
“THE COURT: Sustained on other grounds. [¶] Do not
answer that question.

22
 “[Defense counsel]: [¶] I’m not trying to go into whether
this was a lawful stop or not a lawful stop. I’m just asking,
other than this countersurveillance stuff, you didn’t have
probable cause to believe that he was a drug violator?
“[Aldaco]: I don’t need prob--
“[Prosecutor]: Same objection, your Honor.
“THE COURT: Overruled. [¶] You may answer.
“[Aldaco]: The reason that I need is a reasonable suspicion,
not probable cause to stop that person. And knowing and
having knowledge that that vehicle had been linked to other
narcotic seizures, a similar compartment, similar type of
drug, same make and model -- or not --different make, but
the same model or same frame, and knowing all those
indicators led me to believe there was enough reasonable
suspicion to conduct a vehicle stop.” (Italics added.)
A few moments later, after Aldaco was excused and the court was in
recess, Lopez’s counsel moved for a mistrial. Counsel explained he was
“basically . . . calling ‘no fairzees’ ” because Aldaco mentioned prior
transactions the prosecution had not disclosed during discovery.
The prosecutor represented to the court that he had provided discovery
“over a year ago” showing links between Lopez and a 2017 vehicle-crossing
and drug transaction, which the prosecutor had not raised in his case-in-chief
because it “seem[ed] remote.” The prosecutor explained he objected to
defense counsel’s questions because the parties had already litigated the
validity of the traffic stop during the suppression hearings. The prosecutor
argued Aldaco had no choice but to answer the question honestly.
The court then stated, “I can’t even remember what the response was,”
and asked defense counsel if he wanted the testimony stricken. Counsel
responded he had not contemporaneously moved to strike because he “didn’t
want to bring undue attention to” the challenged testimony. The court stated
it wanted to look at its notes before ruling.
23
 After doing so, the trial court denied the motion for mistrial. First, the
court accepted the prosecutor’s representation that he had provided discovery
about the prior incident, and noted the prosecutor had not raised the issue in
his case-in-chief. Second, the court found Aldaco’s response “that referred to
[Lopez] perhaps being involved in other . . . drug transactions was very brief
and in passing, [and] elicited by the defense.” Finally, the court found that
defense counsel’s reason for not objecting contemporaneously “was a strategic
decision” and, thus, did not constitute ineffective assistance.
B. Relevant Legal Principles
“In general, ‘a motion for mistrial should be granted only when “ ‘a
party’s chances of receiving a fair trial have been irreparably damaged.’ ” ’
[Citation.] ‘We review a ruling on a mistrial motion for an abuse of
discretion. [Citations.] A trial court should declare a mistrial only “ ‘if the
court is apprised of prejudice that it judges incurable by admonition or
instruction.’ ” ’ ” (People v. Bell (2019) 7 Cal.5th 70, 121.)
C. Analysis
1. No Error in Denying Motion for Mistrial
The trial court did not abuse its discretion by denying Lopez’s mistrial
motion.
First, as the trial court observed, the testimony on which Lopez based
his motion was “elicited by the defense.” Because Lopez “is responsible for
the introduction of the evidence, he cannot complain on appeal that its
admission was error.” (People v. Moran (1970) 1 Cal.3d 755, 762; see People
v. Carpenter (1999) 21 Cal.4th 1016, 1062 [appellant “may not assert that
testimony he elicited himself was itself inadmissible”]; People v. Williams
(1988) 44 Cal.3d 883, 912 [“It is axiomatic that a party who himself offers
inadmissible evidence is estopped to assert error in regard thereto.”]; People

24
v. Kozel (1982) 133 Cal.App.3d 507, 519-520 [no error where “a reading of the
record discloses that the [challenged testimony] was related not on direct but
on cross-examination. Where error, if it was error, is brought into the record
by appellant, he may not complain of it on appeal.”].)
Second, on the merits, the trial court did not abuse its discretion in
concluding Aldaco’s testimony was not so prejudicial that Lopez could not
receive a fair trial. To begin with, although Aldaco initially testified “that
that [i.e., Lopez’s] vehicle had been linked to other narcotic seizures” (italics
added), Lopez acknowledges that Aldaco immediately made a “clarification
that implicated a car similar to [Lopez]’s car rather than [Lopez]’s actual car
and [Lopez] himself.” (Italics added.) Lopez’s assertion that “[m]embers of
the jury likely did not pick up on [this] vague and unclear clarification” is
unavailing.
The nonprejudicial nature of Aldaco’s testimony is further borne out by
the fact the trial court was not even sure which testimony Lopez was
challenging (“I can’t even remember what the response was”). The trial court
was best situated to determine the testimony’s prejudicial impact, if any.
(See People v. Dunn (2012) 205 Cal.App.4th 1086, 1094 [“Whether a
particular incident is so prejudicial that it warrants a mistrial ‘requires a
nuanced, fact-based analysis,’ which is best performed by the trial court.”].)
Moreover, even if Aldaco had testified unequivocally that Lopez was
involved in prior drug trafficking, the testimony was not necessarily unduly
prejudicial in light of its probative value. “To obtain a conviction for
possession of a controlled substance for sale, the prosecution must prove that
the defendant had knowledge of both the presence of the contraband and its
illegal character. [Citation.] Prior incidents of possession of an illegal drug
are relevant to prove the knowledge element.” (People v. Ghebretensae (2013)

25
222 Cal.App.4th 741, 754; see People v. Torres (1950) 98 Cal.App.2d 189, 192
[evidence that the defendant’s car had previously been seized for possession
of marijuana “was relevant to establish [his] knowledge of the presence of . . .
mari[j]uana cigarettes in the car” on a later occasion].) A limiting instruction
that the jury may consider the prior conduct “for the limited purpose of
determining whether [the defendant] was aware of the presence of the
substance” is usually sufficient to avoid prejudice. (Ghebretensae, at p. 755.)
Lopez contends Aldaco’s testimony must have been prejudicial because,
whereas the jury in Lopez’s first trial could not reach a verdict, the jury in
the second trial found him guilty. This contention presumes Aldaco’s
testimony was the only material difference between the two trials, which
Lopez has not established. Indeed, it appears from the record that the
prosecution substantially bolstered its showing in the second trial—the
special agent who opined that Lopez’s border-crossing patterns were
inconsistent with those of an unknowing courier had not testified in the first
trial.12 It also appears from defense counsel’s pretrial arguments in the
second trial that Lopez testified during the first trial that “other people used
[his] vehicle” and “he worked in a place where everybody had access to” it.
However, Lopez did not testify similarly in the second trial. These
differences, at a minimum, likely account more for the different trial
outcomes than Aldaco’s fleeting and ambiguous comment.

12 We base this observation on the trial court’s minute orders pertaining
to the first trial (contained in the clerk’s transcript), which do not mention
the special agent. We cannot confirm this to a certainty, however, because
the appellate record does not include the reporter’s transcript of the first
trial.

26
 Finally, to the extent the trial court denied the mistrial motion on the
basis of defense counsel’s delay in bringing it—a premise that is unclear from
the record—the delay did not constitute ineffective assistance (as Lopez
contends) because counsel admitted he had a tactical reason for the delay.
(See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 86 [“ ‘ “ ‘Tactical
errors are generally not deemed reversible . . . .’ ” ’ ”]; People v. Saldana
(1984) 157 Cal.App.3d 443, 463 [failure to move for a limiting instruction or
to strike “was tactical” because “such a motion could only have served to call
the jury’s attention to the statement which defense counsel wished them to
ignore”].)
2. Lopez Has Not Established that His Counsel was Ineffective
for Eliciting the Testimony
Lopez’s alternative contention—that his counsel performed ineffectively
by eliciting Aldaco’s testimony about the reasons for initiating the traffic
stop—also fails.13
“When challenging a conviction on grounds of ineffective assistance, the
defendant must demonstrate counsel’s inadequacy. To satisfy this burden,
the defendant must first show counsel’s performance was deficient, in that it
fell below an objective standard of reasonableness under prevailing
professional norms. Second, the defendant must show resulting prejudice,
i.e., a reasonable probability that, but for counsel’s deficient performance, the
outcome of the proceeding would have been different. When examining an
ineffective assistance claim, a reviewing court defers to counsel’s reasonable
tactical decisions, and there is a presumption counsel acted within the wide
range of reasonable professional assistance. It is particularly difficult to

13 We note the Attorney General did not directly respond to this claim.

27
prevail on an appellate claim of ineffective assistance. On direct appeal, a
conviction will be reversed for ineffective assistance only if (1) the record
affirmatively discloses counsel had no rational tactical purpose for the
challenged act or omission, (2) counsel was asked for a reason and failed to
provide one, or (3) there simply could be no satisfactory explanation. All
other claims of ineffective assistance are more appropriately resolved in a
habeas corpus proceeding.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Lopez has not established either prong. First, at a minimum, Lopez’s
counsel’s persistent questioning—in the face of the prosecutor’s persistent
objecting—indicates counsel had some undisclosed tactical or strategic reason
for his questions. This is borne out by the fact defense counsel similarly
questioned Agent Beltran, in an apparent attempt to suggest that because
the agents did not see Lopez do anything illegal during the surveillance, that

Lopez was not a knowing courier.14 However, because the appellate record
does not sufficiently reveal counsel’s reasoning, we are unable to resolve the
first prong on direct appeal.
Second, and in any event, for the same reasons we conclude the
challenged testimony was not sufficiently prejudicial to warrant a mistrial,
we likewise conclude it was not sufficiently prejudicial for purposes of an
ineffective assistance of counsel claim. (Strickland v. Washington (1984) 466
U.S. 668, 697 [“If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, which we expect will often be so, that
course should be followed.”].)

14 For example, defense counsel asked Beltran, “But are you willing to
concede that you had not seen him do any overt criminal activity before you
stopped him?”

28
 III. Lopez Has Not Shown He Is Unable to Pay the Assessments
Lopez contends the trial court’s imposition of $5,014 in monetary

assessments15 without first determining his ability to pay them violated his
due process rights as enunciated in People v. Dueñas (2019) 30 Cal.App.5th
1157 (Dueñas).16 Because Lopez raised his claimed inability to pay during
the sentencing hearing, we construe his appellate challenge as being directed
at the trial court’s rejection of that claim (as opposed to a claim the trial court
deprived him of an opportunity to make such a showing).17 We conclude
Lopez has not met his burden to show he is unable to pay the assessments.

15 These consisted of the following: a $3,900 restitution fine (§ 1202.4,
subd. (b)) and corresponding, stayed supervision-revocation fine (§ 1202.45);
an $80 court security fee (§ 1465.8); a $60 criminal conviction assessment
(Gov. Code, § 70373); a $154 criminal justice administration fee (Gov. Code,
§ 29550 et seq.); a $615 drug program fee (Health & Saf. Code, § 11372.7);
and a $205 lab analysis fee (Health & Saf. Code, § 11372.5).

16 In Dueñas, supra, 30 Cal.App.5th 1157, the Court of Appeal for the
Second District, Division Seven, held that imposing assessments and a fine
on an indigent defendant violated due process-based rights that ensure
access to the courts and bar incarceration based on nonpayment of fines due
to indigence. (Id. at pp. 1167-1168, 1172.)

17 To the extent Lopez purports to raise the latter claim, he forfeited it by
failing to request such a hearing in the trial court. Although courts are split
over whether a defendant’s failure to assert a due process challenge to
monetary assessments at sentencing forfeits the issue for appeal, the courts
that have declined to find a forfeiture have generally done so on the grounds
the Dueñas decision “represent[ed] an unforeseen significant shift in the
pertinent law that trial counsel could not have anticipated, thus excusing the
failure to raise the issue.” (See People v. Santos (2019) 38 Cal.App.5th 923,
931 (Santos).) Here, however, Lopez was sentenced more than two months
after Dueñas was filed. Accordingly, Lopez had no reason not to expressly
invoke Dueñas as the basis for an opportunity to make a further showing.

29
 A. Background
After trial, the probation officer recommended that the court impose a
13-year split sentence, a restitution fine of $7,800, and the other assessments
described in footnote 15, ante.
At the sentencing hearing, defense counsel “ma[d]e what [he]
consider[ed] to be a heroic argument”—that the trial court should grant
Lopez probation so he could be deported to Mexico without U.S. taxpayers
first paying $100,000 to imprison him, only to deport him anyway at the end
of his sentence. The trial court denied the request and imposed the 13-year
split sentence recommended by probation. The court also imposed the
recommended fines and fees, but reduced the recommended $7,800
restitution fine to $3,900.
After the court announced the monetary assessments, defense counsel
“ha[d] one more heroic suggestion”:
“Will the Court allow his fines and fees to be deemed
satisfied by his time in custody? Because here’s the
problem. He’s going to be deported. He has no real ability
to pay those fines and fees. So what we do is we end up
setting him up for failure of probation because he’s not
going to be here. He’s not going to be able to pay those
fines and fees.”
The court declined the request, noting the court had already reduced
the recommended restitution fine by half.
B. Relevant Legal Principles
The weight of authority provides that a defendant challenging
monetary assessments on inability-to-pay grounds bears the burden of
demonstrating his or her inability to pay.
As to restitution fines, when a defendant challenges a fine exceeding
the statutory minimum amount ($300) on inability-to-pay grounds, the

30
“defendant shall bear the burden of demonstrating his or her inability to
pay.” (§ 1202.4, subd. (d).)
As to other monetary assessments, although the Dueñas court
suggested the prosecution bears the burden of establishing the defendant’s
ability to pay (Dueñas, supra, 30 Cal.App.5th at p. 1172), many courts—
including our own and a different panel of the Dueñas court—have since held
that the defendant bears the burden of establishing his or her inability to pay
(see, e.g., People v. Kopp (2019) 38 Cal.App.5th 47, 96, rev.gr. Nov. 13, 2019,
No. S257844; People v. Castellano (2019) 33 Cal.App.5th 485, 490; Santos,
supra, 38 Cal.App.5th at p. 934). The issue is currently pending before the
Supreme Court in Kopp. Pending further guidance from the high court, we
will follow the cases holding that the defendant bears the burden of
establishing his or her inability to pay.
C. Analysis
Lopez has not met his burden of establishing he is unable to pay the
court-ordered assessments. His only showing was his counsel’s claim that
because Lopez would likely be deported to Mexico following his release from
custody, “[h]e has no real ability to pay those fines and fees.” The record
contradicts this claim.
Lopez testified at trial that, before his arrest, he ran a carpentry
business in Mexico. Most of his jobs were in Mexico, with only a few in San
Diego. He told the probation officer he earned $2,000 to $3,000 per month
“by performing carpentry jobs in Tijuana and San Diego.” (Italics added.)
Not surprisingly, then, Lopez testified at trial, “I don’t have financial
problems” and “I don’t have money problems.” Although Lopez’s ability to
earn money as a carpenter obviously will be interrupted while he is in

31
custody, he has made no showing that he will be unable to resume such work
upon his release.
DISPOSITION
Affirmed.

HALLER, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.

32