People v. Patterson CA1/1

Filed 9/8/20 P. v. Patterson CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

PEOPLE OF THE STATE OF
CALIFORNIA, A156047
Plaintiff and Respondent,
(Alameda County Super. Ct.
v. No. H56262 )
AYODELE PATTERSON,
Defendant and Appellant.

After a jury trial, appellant Ayodele Patterson was found guilty of the
first degree murder of 80-year-old Carolyn June Pavon, who was killed in her
home during the commission of a burglary. On appeal, Patterson contends
that the trial court erred in refusing to declare a mistrial and directing the
jury to continue deliberations after the jury twice declared it had reached an
impasse. Patterson also alleges that the prosecutor committed prejudicial
misconduct by presenting the victim in a sympathetic light and repeatedly
using the term “murder” during questioning. Finally, he argues that the trial
court improperly imposed various fines, fees, and other exactions at
sentencing without determining his ability to pay. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Carolyn June Pavon lived with her dog in the family home in Hayward.
Her husband, a firefighter, had died in 2002, and her two daughters, M.L.

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and M.G., were grown. Both children spoke with their mother every few days
and saw her about once per week. M.G. and her granddaughter visited
Ms. Pavon on Thursday, June 24, 2010, to discuss a planned family vacation
to Disneyland. M.L. spoke with Ms. Pavon by telephone on Friday evening,
June 25, and M.G. had a phone conversation with her mother in the late
afternoon on Saturday, June 26. On Sundays, Ms. Pavon regularly went to
dinner at M.L.’s home. On Sunday, June 27, 2010, when Ms. Pavon did not
arrive for dinner and was not answering her telephone, M.L. and her
husband drove to Ms. Pavon’s house.
When they arrived, they saw the morning newspaper in the driveway,
which was unusual as Ms. Pavon had a habit of going out with the dog every
morning to get the paper. Inside, they found Ms. Pavon in her “usual spot”
on the living room couch. She did not appear to be alive. The house had been
ransacked, with the bedcovers pulled back, dresser drawers open, and items
strewn about the floor. A jewelry box was open on the bedroom floor, and
several missing drawers were abandoned in the living room.
Ms. Pavon, who was five feet one inch tall and weighed 103 pounds,
suffered two gunshot wounds to the chest and two close-up wounds (from
within inches) to her face. One shot to the heart and one to the face were
deemed lethal. Ms. Pavon was shot while reading. A book with two bullet
holes through it was found near her hand, and pieces of pages from a book
were found on her pajamas. No relevant fingerprints were found at the scene
of the crime, but two shell casings were recovered from the couch area. The
parties stipulated that the two casings had been cycled through the same
firearm or fed through the same magazine. It was also stipulated that an
individual named Donnie Howard pawned a piece of scrap gold jewelry in
Oakland on the day Ms. Pavon’s body was found.

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 In September 2014, an amended information was filed by the Alameda
County District Attorney, charging Patterson, Howard, and a third individual
named Lionel Harris with Pavon’s murder. (Pen. Code,1 § 187.) The
information alleged that Patterson was a minor of at least 16 years of age at
the time of the murder (Welf. & Inst. Code, § 707, subd. (b)); that he
personally and intentionally discharged a firearm and caused great bodily
injury and death (§§ 12022.7, 12022.53, subds. (c) & (d)); and that he
personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subds. (b) & (g)).
The information further alleged the special circumstance of murder in the
commission of a burglary. (§ 190.2, subd. (a)(17)(G).)
In September 2015, Harris accepted a plea deal in which he pleaded no
contest to felony voluntary manslaughter (§ 192, subd. (a)) and admitted an
arming allegation (§ 12022, subd. (a)(1)), in exchange for his testimony.
Harris stated he was “blessed” to get a plea deal which carried a 12-year
prison term rather than the potential for life without the possibility of parole.
Patterson’s trial commenced in July 2016, with Harris as the primary
witness against him.2 According to Harris, he and Patterson were close
friends and had committed a burglary together prior to Ms. Pavon’s murder.
Patterson lived a few blocks from Ms. Pavon’s residence. Harris had known
Howard for about a year prior to the murder and was aware Howard was
staying near Patterson.
Harris testified that, on the Saturday of the murder, he was hanging
out, drinking, and smoking at Patterson’s house when Patterson asked him to

1 All statutory references are to the Penal Code unless otherwise
specified.
2 A previous jury trial, in which Patterson and Howard were tried

jointly, ended in a mistrial as to Patterson in November 2015. Howard was
convicted and sentenced to life without the possibility of parole.

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come along for a “house lick,” slang for a burglary. The two met Howard and
then walked up a trail to Ms. Pavon’s home. While walking, Harris saw that
Patterson had a gun underneath his clothes, but did not see Howard with a
gun. Harris claimed he would not have participated if he knew a gun was
involved. The three men put on gloves to avoid leaving fingerprints.
Patterson mentioned there was an older dog on the premises.
According to Harris, after arriving at the house, he went through to the
backyard where it was dark. He looked through a window and saw
Ms. Pavon walk into the kitchen to get a glass of water, which surprised him.
It did not appear that Ms. Pavon had seen him. Harris went to warn the
others about Ms. Pavon’s presence. He found Patterson in the house. After
peeking into the living room and seeing Ms. Pavon with a book, he told
Patterson they should wait. Patterson replied: “Fuck that, we about to do
this. . . , I’m about to lay her down.” Patterson then took his gun, walked into
the living room, said, “Give it up lady,” and fired four times. The two final
shots were to Ms. Pavon’s face. Harris yelled: “What the fuck did you do that
shit for?” Patterson then started picking up shells and asked Harris to help
him. Harris replied that Patterson was crazy and left.3
The prosecution offered several prior statements by Patterson to show
a consciousness of guilt, corroborating Harris’s description of the events. In
April 2014, Patterson and Howard were placed in an interview room together
where their conversation was recorded. Patterson initially denied
involvement with the crime several times, finally declaring it was “a wrap”
for both of them and that they were both “fittin’ to be gone for a long time for
somethin’ that we both didn’t do, bro.” Howard replied: “Somethin’ I didn’t

3
Various facts and prior inconsistent statements were introduced at
trial to impeach Harris.

4
do, blood. You know what you did, blood. Go on and take that . . . .”
Patterson replied: “Cause we fucked with it tuff? It’s cool. It’s cool bro. I
love ya, bro, it’s good. It’s over. I don’t see how the fuck that’s even—I don’t
see how the fuck that even, bro, I didn’t say nothin’ about nothin’ bro. I don’t
see how that’s hard to keep your fuckin’ mouth shut. I don’t understand.”
On another occasion, Patterson spoke to his mother and girlfriend,
C.N., by telephone from jail. While Patterson’s mother repeatedly counseled
him to say nothing, Patterson was recorded telling Harris—who was in a
nearby cell—to “just keep your mouth shut.” Later, when C.N. joined the
call, Patterson told her that he was going to be incarcerated for “some years.”
The following exchange then took place:
C.N.: “[B]ut then again you know . . . you know what you did,
like . . . I mean . . . .”
Patterson: “[S]hit, I know what I used to do . . . .”
C.N.: “You always say karma is a bitch.”
Patterson: “For sure. [¶] . . . [¶] I’m gon’ try and figure
something out. [¶] . . . [¶] Ain’t shit I can do about it.”
In March 2015, an evidence technician at the jail intercepted a letter to
Patterson’s parents with Patterson’s personal identification number in the
return address. The writer indicated it would “help me real big” if the
parents told defense counsel that the writer was “home on punishment from
May 2010 until August 2010,” the timeframe of the Pavon murder.
On September 1, 2016, the jury found Patterson guilty of first degree
murder and found the burglary special circumstances true. The jury also
found true the lesser firearm enhancement—that Patterson personally used a
firearm within the meaning of section 12022.53, subdivision (b). However,
the jury concluded that Patterson did not personally discharge a firearm

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(§§ 12022.7, subd. (a), 12022.53, subds. (c) & (d)) or personally inflict great
bodily injury (§ 12022.7).
On November 16, 2018, the trial court sentenced Patterson to life in
prison without the possibility of parole. The court additionally imposed
restitution obligations and various fine, fees, and assessments as discussed
further below. Patterson’s timely notice of appeal followed.
DISCUSSION
I. The Verdict Was Not Coerced
Patterson first contends that the trial court’s refusal to declare a
mistrial after the jury twice declared itself deadlocked violated his Sixth and
Fourteenth Amendment rights to due process and a fair trial. Specifically, he
asserts that, under the totality of the circumstances, the trial court’s rejection
of the jury’s declaration of impasse, along with its insensitive treatment of
two jurors reporting possible work and financial issues, implicitly coerced the
verdict. The record does not support his claims.
a. Additional Background
After eight court days for evidence and argument, the jury retired to
deliberate in this case at approximately 3:30 p.m. on August 17, 2016. They
went home less than 30 minutes later, and then returned to deliberate on
August 18 and August 19. On August 18, the jury received several pieces of
evidence it asked to review. In response to jury requests, the court reporter
read back selected trial testimony on August 19. In addition, the court
answered 10 jury questions involving evidentiary and legal issues.
Deliberations resumed on the next court day, August 22. Around noon,
the court received a note from the jury, stating: “We are at a stalemate. Can
the Court please advise on further steps.” The court denied defense counsel’s
request for a mistrial. It noted that there had been “two and a half days of
deliberations, and most of the time they have been waiting for answers to

6
questions or in reread. Literally that is over 50 percent of the time.” Instead,
because the court had promised to excuse juror No. 8 for a prepaid vacation
after August 22, the court excused the jury for the day, excused juror No. 8,
and replaced that juror with an alternate.
On August 23, the court noted the change in the jury and admonished
the jurors they were now required to begin their deliberations again from the
beginning. The court instructed the jury not to hesitate to repeat a question
or reread request if that would be helpful, and testimony requested by the
jury was reread by the court reporter that afternoon. Deliberations continued
through August 24, with further testimony read back by the court reporter.
Another readback occurred during the morning on August 25. Around
noon that same day, the jury indicated to the court that it was “at another
impasse.” In discussions with counsel, the court indicated that August 23
had been a shortened day and there had been some rereads on both
August 23 and 24. It then called the jury in, asking the foreperson whether
the jury had unanimously agreed on anything. After the foreperson
responded in the negative, the court admonished the jury as follows: “I would
ask all of you to still keep an open mind, continue to discuss and deliberate
with the other members of the jury, looking at all the evidence and how it
fits. [¶] If there is anything I can do in terms of further questions answered,
reread, let me know. Other than this suggestion at this point, I cannot think
of anything else I can do to assist.”
Defense counsel renewed his request for a mistrial, which the court
again denied. The court concluded that the earlier jury had deliberated no
more than one-third of the time and that the reconstituted jury appeared to
be taking the admonition to start anew very seriously. The court also noted
that the jury stated it had reached “another impasse,” suggesting it might

7
have made progress from whatever had deadlocked the earlier jury. The
court also noted that it was “fairly early” in the deliberations.
The next court day, August 26, the court reporter conducted a readback
in the morning. At 1:30 p.m., the court returned the jury to the courtroom to
answer a question about an exhibit, ultimately excusing the jury for the
remainder of the day. The court, however, asked two jurors to remain behind
to discuss their notes. Speaking to each juror individually, the court first
responded to juror No. 10’s note that he had been asked to return to work by
Monday, August 29. When the court stated, “We need you here still,” the
juror replied, “I understand that. I was just requested, if possible, to at least
drop a note and see.” The court responded: “If there’s further issues, I’m
happy to keep an open mind. I understand that . . . the length of
deliberations has probably surprised people. [¶] If there’s further problems,
let me know, I will consider anything. But as a general request at this point,
just come back on Monday at 10:00 o’clock.”
The court then spoke to juror No. 6, who had reported: “Work stops
paying me after three weeks, so after Friday, August 26, I will not be able to
continue to deliberate and not get paid.” The court explained that “[w]e’re in
a situation where we would hope you could forgo some period . . . of time
without pay” and asked whether the juror was “actually requesting a
financial hardship or just letting us know this is a problem.” After the juror
responded, “Just letting you know that it’s a problem,” the court stated,
“When it becomes such a problem that you are requesting a financial
hardship for us to talk about it, you’ll have to give us another note.
Otherwise, see you at 10:00 o’clock on Monday.” The jury then resumed its
deliberations on August 29, 30, and 31—asking two questions and requesting

8
a readback—until it announced midday on September 1, 2016, that it had
reached a verdict.
b. The Trial Court’s Actions Were Not Improper
A jury cannot be discharged without having rendered a verdict unless,
“at the expiration of such time as the court may deem proper, it satisfactorily
appears that there is no reasonable probability that the jury can agree.”
(§ 1140; see People v. Brooks (2017) 3 Cal.5th 1, 88 (Brooks).) A court must
take care to exercise its power under section 1140 “ ‘without coercing the jury
into abdicating its independent judgment in favor of considerations of
compromise and expediency.’ ” (People v. Debose (2014) 59 Cal.4th 177, 209
(Debose).) However, “ ‘the court may direct further deliberations upon its
reasonable conclusion that such direction would be perceived “ ‘as a means of
enabling the jurors to enhance their understanding of the case rather than as
mere pressure to reach a verdict on the basis of matters already discussed
and considered.’ ” ’ ” (Ibid.)
“ ‘The decision whether to declare a hung jury or to order further
deliberations rests in the trial court’s sound discretion.’ ” (Brooks, supra,
3 Cal.5th at p. 88; see People v. Valdez (2012) 55 Cal.4th 82, 159 (Valdez).)
Thus, a trial court is not required to take a jury’s claim of deadlock at face
value. Rather, even where the jury has deliberated for a substantial period of
time and indicates it is unable to reach a verdict, the trial court still retains
discretion to require further deliberation. (See People v. Sandoval (1992)
4 Cal.4th 155, 194–197 (Sandoval) [citing cases].)
In analyzing a claim of coercion, the relevant inquiry is whether the
trial court’s comments “impose[d] such pressure on jurors to reach a verdict”
that “the accuracy and integrity of the jury’s stated conclusion” cannot be
assured. (People v. Gainer (1977) 19 Cal.3d 835, 850, disapproved on another
point in Valdez, supra, 55 Cal.4th at p. 163; see People v. Peoples (2016)

9
62 Cal.4th 718, 783 [“Coercion occurs where ‘the trial court, by insisting on
further deliberations, expresse[s] an opinion that a verdict should be
reached.’ ”].) The question of coercion depends “on the facts and
circumstances of each case.” (Sandoval, supra, 4 Cal.4th at p. 196; accord
Brooks, supra, 3 Cal.5th at p. 88.) A defendant’s right to due process is
violated if a trial court coerces jurors into reaching a verdict. (Jiminez v.
Myers (9th Cir. 1993) 40 F.3d 976, 979 (Jiminez).)
After the jury’s first declaration of impasse, the trial court replaced a
juror who had a preplanned vacation with an alternate and instructed the
jury to begin its deliberations anew.4 The trial court concluded that the jury
took its admonition to start again “very seriously,” noting that the jury
“wanted all their questions back so they could reevaluate.” Thus, when the
reconstituted jury declared an impasse midday on August 25, it had only
been deliberating for two and a half days. Moreover, as the trial court noted,
August 23 had been a shortened day and there had been some rereads on
both August 23 and 24. Under the circumstances, we see no abuse of
discretion in the trial court’s decision to continue deliberations in this serious
case.
Nor do we see any coercion. The court imposed no pressure on the jury
to secure a verdict. It simply asked the jury to deliberate further and
indicated a willingness to help in any way it could. In addition, since the
trial court was unaware of the numerical division of the jury, the court’s
request that the jury continue deliberating cannot be seen as an attempt to
coerce any particular holdout jurors. (Compare Jiminez, supra, 40 F.3d at
pp. 980–981 [finding trial court’s instruction to a deadlocked jury to continue
deliberating amounted to undue coercion where the court elicited the

4
Patterson does not challenge the propriety of this excusal.

10
progression in the voting, expressed its approval of that progression, and
effectively instructed the jurors to make every effort to reach a unanimous
verdict].)
The trial court’s treatment of the two jurors with potential employment
and financial issues is no more problematic. Neither juror pushed for
excusal. Moreover, the court made clear to both that they could revisit the
issue if an actual hardship arose and that it would consider their concerns.
The jurors did not renew their requests during the next three and a half days
of deliberations. And, indeed, the fact that active deliberations continued
during this timeframe suggests that the jury had overcome whatever impasse
it had reached earlier. (Debose, supra, 59 Cal.4th at p. 209; People v. Cook
(2006) 39 Cal.4th 566, 615–616.) In short, directing further deliberations was
an appropriate “ ‘ “ ‘means of enabling the jurors to enhance their
understanding of the case.’ ” ’ ” (Debose, at p. 209; see People v. Johnson
(2015) 61 Cal.4th 734, 770 [no coercion where “[t]he trial court never
indicated a preference for a particular verdict, it did not exert pressure on
any juror, nor did it express any exasperation about the jury’s
deliberations”].)
II. Claims of Prosecutorial Misconduct
Patterson next contends that the prosecutor committed prejudicial
misconduct in violation of his state and federal constitutional rights to due
process and a fair trial. “ ‘The standards governing review of misconduct
claims are settled. “A prosecutor who uses deceptive or reprehensible
methods to persuade the jury commits misconduct, and such actions require
reversal under the federal Constitution when they infect the trial with such
‘ “unfairness as to make the resulting conviction a denial of due process.” ’ ” ’ ”
(People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1266.) “ ‘Prosecutorial

11
misconduct that falls short of rendering the trial fundamentally unfair may
still constitute misconduct under state law if it involves the use of deceptive
or reprehensible methods to persuade the trial court or the jury.’ ” (People v.
Jablonski (2006) 37 Cal.4th 774, 835.)
However, “[m]isconduct that does not constitute a federal constitutional
violation warrants reversal only if it is reasonably probable the trial outcome
was affected.” (People v. Shazier (2014) 60 Cal.4th 109, 127.) Moreover, “ ‘a
defendant may not complain on appeal of prosecutorial misconduct unless in
a timely fashion—and on the same ground—the defendant made an
assignment of misconduct and requested that the jury be admonished to
disregard the impropriety,’ ” where such a request would not have been futile.
(People v. Stanley (2006) 39 Cal.4th 913, 952; People v. Hill (1998) 17 Cal.4th
800, 820, overruled on another ground in Price v. Superor Court (2001) 25
Cal.4th 1046, 1069, fn.13.) We conclude that Patterson has forfeited both of
his misconduct claims.
Patterson contends on appeal that the prosecutor improperly appealed
to the passions of the jury by presenting Ms. Pavon in a sympathetic light.
He points to many sympathetic facts about the victim that the prosecutor
elicited during her examination of witnesses and underscored during closing
argument. For example, when questioning Ms. Pavon’s daughters regarding
their mother, the daughters testified that Ms. Pavon’s husband was an
Oakland firefighter who had died in 2002; that their mother did her own
finances and drove her own car, but had recently been having some problems
with one of her hips; that she got her hair done every Thursday; that she was
in a happy mood and looking forward to a family trip to Disneyland before
her death; that she was reading a romance novel about a firefighter when she
was shot; and that her companion, a dog named Nikki, was with her when

12
she died. During closing, the prosecutor reiterated many of these facts and
described Ms. Pavon as having been murdered while “sitting on her couch, in
her jammies, reading a romance novel about a fireman, next to her elderly
dog, her old border collie Nikki.”
“ ‘ “It is, of course, improper to make arguments to the jury that give it
the impression that ‘emotion may reign over reason,’ and to present
‘irrelevant information or inflammatory rhetoric that diverts the jury’s
attention from its proper role, or invites an irrational, purely subjective
response.’ ” ’ ” (People v. Vance (2010) 188 Cal.App.4th 1182, 1192.) Thus,
“ ‘[i]t has long been settled that appeals to the sympathy or passions of the
jury are inappropriate at the guilt phase of a criminal trial.’ ” (Ibid.; see
People v. Jackson (2009) 45 Cal.4th 662, 691 [“ ‘an appeal for sympathy for
the victim is out of place during an objective determination of guilt’ ”].) We
need not determine, however, whether the prosecutor’s conduct in this case
rose to the level of misconduct under the standard here articulated because,
as Patterson acknowledges, defense counsel did not object to the prosecutor’s
line of questioning or her closing argument on this basis and has therefore
forfeited the issue. Further, nothing in the record indicates an objection
would have been futile or that curative action would have been ineffective,
and Patterson does not argue otherwise.
Patterson suggests that we exercise our discretion to nevertheless
reach the merits of his misconduct claim (see People v. Williams (1998)
17 Cal.4th 148, 161–162, fn. 6), but we decline to do so. Defense counsel,
himself, underscored Ms. Pavon’s status as a sympathetic victim, stating in
closing that the case was about “a beloved person who was injured who did
nothing to provoke it and whose family members . . . suffered tremendous
losses, without any provocation or anticipation of that.” Later, he reiterated:

13
“Ms. Pavon was an incredible mom and an incredible person. She had an
active life. She had a future even at her age. She was planning to do things
with her family.” But he stressed that “sympathy, which is human and
understandable, . . . has to be left behind at this stage.” He then urged the
jury to follow the court’s instructions and look at the facts, arguing that the
only thing tying Patterson to the crime was the testimony of Harris, which
was “simply not believable.”
Defense counsel appears to have pursued a strategy of embracing the
fact that Ms. Pavon was a sympathetic victim who was tragically killed, while
at the same time distancing Patterson from the crime. And, indeed, this
apparent tactical decision seems to have been at least partly successful given
the jury’s failure to find that Patterson was the shooter, despite Harris’s
testimony to the contrary. The decision “whether to object is inherently
tactical.” (People v. Williams (2017) 7 Cal.App.5th 644, 686 (Williams); see
People v. Riel (2000) 22 Cal.4th 1153, 1197 [“competent counsel may often
choose to forgo even a valid objection”].) Patterson may not now complain of
conduct by the prosecutor that his trial counsel adopted for his own ends.
Patterson’s second claim—that the prosecutor’s frequent references to
the charged homicide as a “murder” constituted prosecutorial misconduct—is
also forfeited. During the examination of witnesses throughout the trial, the
prosecutor referred to the killing of Ms. Pavon as a “murder” over 90 times.
For example, when questioning Harris, the prosecutor asked him if he had
gloves on before Ms. Pavon’s “murder” and repeatedly questioned him about
other crimes committed before Ms. Pavon’s “murder.” Our high court has
held that a “killing” should not be “characterized as ‘murder’ in advance of a
verdict so finding.” (People v. Garbutt (1925) 197 Cal. 200, 209 (Garbutt); see
People v. Price (1991) 1 Cal.4th 324, 480 (Price) [“Although it would be

14
improper for a prosecutor to use the term ‘murder’ in questioning a witness
about an unadjudicated killing, a prosecutor is of course free to argue to the
jury, after all the evidence had been presented, that it should find that a
killing was murder.”].)
Defense counsel, however, never objected to the prosecutor’s use of the
murder descriptor, forfeiting the argument, and we decline to exercise our
discretion to reach the merits of the claim. This is precisely the type of
situation that could have been remedied by an early objection, giving the trial
court the opportunity to halt the practice or at least avoid any
misunderstanding over the prosecutor’s use of the term “murder.” (See, e.g.,
Garbutt, supra, 197 Cal. at p. 209 [finding no improper influence on jury from
use of the term “murder” where an objection was made, and the jury was
promptly admonished]; see also Williams, supra, 7 Cal.App.5th at p. 686;
People v. Taylor (1982) 31 Cal.3d 488, 496 [“A timely objection allows the
court to remedy the situation before any prejudice accrues.”].) Moreover, it
seems likely defense counsel did not lodge such an objection in this case
because, as discussed above, the defense did not dispute that Ms. Pavon had
been murdered, arguing instead that Patterson was not involved in the
killing. (Compare People v. Hines (1997) 15 Cal.4th 997, 1045 [where
defendant did not dispute victims had been murdered, but denied he was the
murderer, counsel was not ineffective for failing to object to prosecutor’s
repeated references to victims’ deaths as “murders” because there was no
reason to do so]; ibid. [concluding, given evidence that the victims “were shot
at close range in the course of a burglary” that “it would have been absurd for
defendant to argue that the killings were not murders”].)
Indeed, during defense counsel’s closing argument, he acknowledged
the heinous nature of Ms. Pavon’s murder, suggesting that the jury must

15
nevertheless look to the evidence in determining whether Patterson should be
held accountable. He stated, for example: “You saw some of the most
horrible things that you’ll ever see in this case, a woman on a couch, reading
a romance novel, who has been murdered. You heard from the doctor, the
medical examiner, you heard from the family members and saw pictures of
Ms. Pavon in life through the testimony of family members, you saw
Ms. Pavon in death through the autopsy photos. [¶] . . . [¶] Those are about
the results of the murder, ladies and gentlemen. It is not about who is guilty,
however, of the murder. It’s not about the law that overrides this case. We
must be very careful in looking at the result in order to try and achieve a
conviction, as opposed to actually looking at the evidence as the law requires
you to do in order to see how or why or under what circumstances the death
was obtained.” It is hard to discern any possible prejudice under the
circumstances. (Compare Price, supra, 1 Cal.4th at p. 480 [finding no
prejudice from use of term “murder” where the evidence “plainly supported a
finding of murder, and the defense, while attacking the credibility of the
prosecution’s witnesses, did not present any affirmative evidence to support a
finding that the killing was self-defense or manslaughter”].) We see no basis
to reach the merits of Patterson’s claim.
Patterson finally asks that we consider cumulative prejudice in viewing
the impact of the alleged trial errors he has asserted on appeal. However,
since we have identified no errors in the proceedings below, there is nothing
here to cumulate. (See People v. Griffin (2004) 33 Cal.4th 536, 600,
disapproved on another ground as stated in People v. Riccardi (2012)
54 Cal.4th 758, 824, fn. 32.)

16
III. Patterson Has Forfeited His Dueñas Challenges
At sentencing in this matter, the trial court ordered Patterson to pay
certain fines, fees, and assessments, including a $250 probation investigation
fee (§ 1203.1b); a $60 court facilities assessment (Gov. Code, § 70373); an $80
court operations assessment (§ 1465.8); and a $10,000 restitution fine
(§ 1202.4, subd. (b)). In addition, the court ordered direct restitution in the
amount of $6,414.09 to be paid into the restitution fund pursuant to section
1202.4, subdivision (f). Relying on People v. Dueñas (2019) 30 Cal.App.5th
1157 (Dueñas), Patterson argues that the trial court erred by imposing these
various exactions without determining his ability to pay. We decline to reach
these forfeited claims.5
First, we will not consider any challenge to the trial court’s order with
respect to direct victim restitution under section 1202.4, subdivision (f). As
the Attorney General points out, although Patterson mentions this award in
his briefing, it is unclear that he is contesting it. Courts addressing the issue
have “distinguished between direct victim restitution that reimburses victims
for economic losses caused by a defendant’s conduct and the restitution fine

5There is considerable disagreement among appellate courts regarding
whether Dueñas was correctly decided. “Although several Courts of Appeal
have adopted [the Dueñas] due process analysis, others have concluded
Dueñas was wrongly decided or that an Eighth Amendment analysis under
the excessive fines clause is doctrinally preferable.” (People v. Belloso (2019)
42 Cal.App.5th 647, 649 (Belloso) [recognizing split of authority and
reaffirming Dueñas], review granted Mar. 11, 2020, S259755; see People v.
Hicks (2019) 40 Cal.App.5th 320, 326–329 [rejecting Dueñas], review granted
Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1061,
1067–1070 [rejecting Dueñas but concluding a challenge to imposition of fines
and fees should be analyzed under the excessive fines clause].) The Supreme
Court has granted review in a case likely to resolve these disputes. (See
People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019,
S257844.) Because we decline to reach the merits of Patterson’s Dueñas
claims, we need not wade into this debate.

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imposed to punish the defendant” and have declined to extend the rule
announced in Dueñas to direct victim restitution. (Belloso, supra,
42 Cal.App.5th at p. 658, fn. 8; see People v. Abrahamian (2020)
45 Cal.App.5th 314, 338; People v. Evans (2019) 39 Cal.App.5th 771, 777.)
Patterson’s Dueñas argument does not attempt to address this
important distinction. In fact, it provides no reasoned analysis of any kind
with respect to the application of Dueñas to direct victim restitution. We
conclude that Patterson has failed to raise the issue in a manner sufficient to
warrant our appellate consideration. (People v. Stanley (1995) 10 Cal.4th
764, 793 [where no “ ‘legal argument with citation of authorities’ ” is
furnished on a particular point, “ ‘the court may treat it as waived, and pass
it without consideration’ ”].)
Turning to the $10,000 restitution fine at issue, section 1202.4 requires
the imposition of such a fine upon conviction of a crime, unless the court
“finds compelling and extraordinary reasons for not doing so.” (§ 1202.4,
subd. (b).) The minimum restitution fine for felony convictions is $300, and
the maximum fine is $10,000. (Id., subd. (b)(1).) The statute expressly
provides that “[a] defendant’s inability to pay shall not be considered a
compelling and extraordinary reason not to impose a restitution fine.” (Id.,
subd. (c).) However, “[i]nability to pay may be considered . . . in increasing
the amount of the restitution fine in excess of the minimum fine pursuant to
paragraph (1) of subdivision (b).” (Ibid.) The burden of demonstrating such
inability to pay lies with the defendant. (Id., subd. (d); see People v.
Castellano (2019) 33 Cal.App.5th 485, 490 [“Consistent with Dueñas, a
defendant must in the first instance contest in the trial court his or her
ability to pay.”].)

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 Here, Patterson concedes he did not object to imposition of the
maximum restitution fine. Such an objection clearly would not have been
futile as trial courts are statutorily authorized to consider a defendant’s
inability to pay any restitution fine above the statutory minimum. (§ 1202.4,
subds. (c) & (d).) Accordingly, we conclude that Patterson forfeited any
challenge to the restitution fine. (See People v. Smith (2020) 46 Cal.App.5th
375, 395 (Smith) [failure to object to imposition of maximum restitution fine
on inability-to-pay grounds resulted in forfeiture of claim]; People v. Gutierrez
(2019) 35 Cal.App.5th 1027, 1032–1033 (Gutierrez) [same, noting that “even
before Dueñas a defendant had every incentive to object to imposition of a
maximum restitution fine based on inability to pay’”]; People v. Frandsen
(2019) 33 Cal.App.5th 1126, 1154 (Frandsen) [same].)
Moreover, several courts have held that, where a defendant does not
object to imposition of the maximum restitution fine on grounds of inability to
pay, such failure also forfeits claims of inability to pay “much smaller”
criminal assessments. (Smith, supra, 46 Cal.App.5th at p. 395; see Gutierrez,
supra, 35 Cal.App.5th at p. 1033 [“As a practical matter, if Gutierrez chose
not to object to a $10,000 restitution fine based on an inability to pay, he
surely would not complain on similar grounds regarding an additional $1,300
in fees.”]; Frandsen, supra, 33 Cal.App.5th at p. 1154 [“Given his failure to
object to a $10,000 restitution fine based on inability to pay, Frandsen has
not shown a basis to vacate assessments totaling $120 for inability to pay.”].)
We agree. Unlike the Duenas defendant, Patterson had a statutory right to
an ability-to-pay hearing that he did not exercise, thus forfeiting his
appellate claim that such a hearing was required. Had he requested such a
hearing, the same evidence relevant to his inability to pay the $10,000
restitution fine could also have established an inability to pay these smaller

19
assessments. We thus conclude that Patterson has forfeited the opportunity
to raise an ability-to-pay challenge with respect to the court facilities and
court operations assessments imposed under section 1465.8 and Government
Code section 70373.6
DISPOSITION
The judgment is affirmed.

6 To the extent that Patterson is also contesting imposition of the $250
probation investigation fee pursuant to section 1203.1b on grounds of ability
to pay, this issue is similarly forfeited. That statute expressly provides for an
ability-to-pay hearing at the request of the defendant, and Patterson was
advised of this fact but declined to pursue the matter. (People v. Snow (2013)
219 Cal.App.4th 1148, 1151 [ability-to-pay challenge to costs of presentence
investigation report subject to forfeiture rule].)

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 _________________________
Sanchez, J.

WE CONCUR:

_________________________
Margulies, Acting P. J.

_________________________
Banke, J.

A156047 People v. Patterson

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