People v. Marshall CA1/1

Filed 9/17/20 P. v. Marshall CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent, A156255

v. (San Francisco City & County
RANDALL KAREEM MARSHALL, Super. Ct. No. 17015667.
SCN228315)
Defendant and Appellant.

Defendant Randall Kareem Marshall appeals from judgment after a
jury convicted him of second degree murder, residential burglary, two charges
of first degree attempted robbery, and commercial burglary. Defendant
contends the trial court violated his due process rights by admitting evidence
of a prior uncharged act and allowing the prosecution to impeach him with
highly inflammatory evidence on a collateral matter; he further contends
both evidentiary errors resulted in cumulative error that requires reversal.
Defendant also challenges the trial court’s imposition of a restitution fine and
various fees without holding a hearing on his ability to pay, in violation of his
state and federal due process rights under People v. Dueñas (2019)
30 Cal.App.5th 1157. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with various crimes committed over the course
of the morning and early afternoon of August 20, 2017. We discuss only those
facts necessary to resolve the issues raised on appeal. We provide some
additional background in our legal analysis below.
A. August 20, 2017
1. Altercation with Raymond Best
About 9:20 a.m. on August 20, 2017, Jennifer M. was stopped at a red
light at the intersection of St. Joseph’s Avenue and Geary Boulevard across
from Kaiser Permanente San Francisco Medical Center (Kaiser). She saw a
man she later identified as defendant on the corner carrying two shopping
bags and wearing what looked like a surgical mask over his mouth. He put
the two bags down and put his hands on his knees, as if he was winded after
running. He was holding what appeared to be a large Tanqueray gin bottle.
Jennifer M. also saw a man, later identified as Raymond Best, bent
over as though locking up a bicycle, tying his shoe, or reading a newspaper at
a newspaper stand, about 25 feet behind defendant. Jennifer saw defendant
sprint toward Best with the bottle raised in his right hand. As Best rose up,
defendant hit him with the bottle on the top of his head. Best fell to the
ground. Before he could get up, defendant hit him on the head a second time.
Jennifer did not see anything in Best’s hands, nor did it appear Best came
after defendant.
Defendant ran back to the corner where he left his bags, grabbed the
bags, and ran across the street. Jennifer M. followed defendant, took photos
of him with her cell phone camera, and then drove to her friend Hadley H.’s
house and called 911. Jennifer showed Hadley her photos of defendant.
Nicholas S. and Helen V. had exited Kaiser when they saw defendant.
He had a piece of white tape over his mouth and was holding a green liquor
bottle. Helen said defendant looked “super angry.” Nicholas and Helen
walked around him.

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 Nicholas S. saw Best sitting on the sidewalk with a couple of bags next
to him. Defendant was about six to eight feet away from Best and had his
back to him. Nicholas kept defendant in his peripheral vision, then
something caused him to turn around and look directly at defendant. Helen
turned around when she heard shouting.
Nicholas S. was about 15 to 20 feet away from Best when defendant
came around behind Best, lifted the green bottle up over his head, and
brought it down directly on top of Best’s head, hitting him very hard.
Helen V. said the bottle looked like a gallon-size green Tanqueray gin bottle.
Nicholas said Best did not see it coming. Helen said defendant and Best may
have been facing each other and Best may have been trying to stand up.
Neither Nicholas nor Helen saw Best with anything in his hand. Defendant
picked up the bags sitting next to Best and ran off up Geary Street.
Helen V. saw defendant turn down Lyon Street. Jennifer M.’s friend,
Hadley H., also saw defendant on Lyon Street. After Jennifer placed the call
to 911, Hadley went on a run and saw defendant, who she recognized from
the photos Jennifer had shown her. Defendant was not wearing a shirt, was
quickly pushing a blue recycling bin, and was carrying a cane. His body
movements were erratic and he appeared angry.
Best received medical treatment at Kaiser and was transported to San
Francisco General Hospital. Best spent six days in a coma, then died on
August 26, 2017.
2. Residential Burglary and Attempted Robbery
About 10:00 or 10:30 a.m. on August 20, 2017, D.S. and Kaitlyn H. were
in their home on Lyon Street. D.S. was in her bedroom when she heard the
side gate squeak. She looked out the window and saw defendant enter
through her gate and close it behind him. She had never seen defendant

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before and she thought it was strange he was not wearing a shirt because it
was not a hot day. He was carrying a curved walking cane but was holding
the middle of the cane and not using it to assist himself with walking. She
also noticed he was pushing a blue recycling bin into her yard that had not
been there before.
Defendant walked around to the back porch and D.S. and Kaitlyn H.
went into the kitchen at the back of the house. The two women looked out
through the closed blinds and saw defendant. When defendant saw D.S., he
stepped closer to the kitchen door and she could see him clearly. Defendant
told D.S. that he had been evicted from the house. He smiled and told her,
“ ‘You recognize me. Open the door.’ ” D.S. told him he needed to leave. He
responded that he knew nobody lived there.1
D.S. told defendant again he needed to leave but he moved closer to the
door. He leaned on the corner of a dryer, then motioned toward a pair of
shoes D.S. left on the porch and said, “ ‘I have your shoes.’ ” Then defendant
held up a sheet with directions for the dryer and said, “ ‘See, I know nobody
lives here.’ ” D.S. told defendant she would call the police if he did not leave.
At that point, defendant stood up, kicked in the locked door, breaking
the door jamb, and entered the kitchen. Defendant raised his voice and
demanded the two women’s cell phones. He was agitated and aggressive, and
he raised the cane in his hand while demanding their phones. Defendant
tried to grab Kaitlyn H.’s phone, but she moved her hand out of his reach.
The two women stepped further back into the kitchen and D.S. began

1D.S. testified the upstairs flat had been vacant for two and a half
years. About five weeks earlier, she heard someone upstairs at 11:00 p.m.
The police came and removed a homeless woman who did not have
permission to be there.

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screaming. Each time she took a breath, defendant told her, “ ‘Shut up. Give
me your phone.’ ” This happened five or six times.
D.S. kept screaming until defendant left through the same door
through which he had entered. Kaitlyn H. called 911 and spoke with an
operator. The police arrived and looked around. The blue recycling bin D.S.
had seen was no longer there, and the door jamb and kitchen door lock were
broken and had to be replaced.
3. Commercial Burglary
On August 20, 2017, Melvin A. was doing construction work at a
building on Sacramento Street in San Francisco. The bottom floor of the
building was occupied by a store called “Anthem” and the top floor was office
space and one residential living space. Melvin A. left the building at some
point to get caulk and locked the gate. When he returned, defendant was
upstairs, sitting at a table, eating. Defendant had a cane with him.
When Melvin A. had arrived at work that morning, there was a box at
the bottom of the stairs. Defendant had moved the box upstairs and opened
it. The name of the person on the package was “Jay,” the manager for the
offices. Defendant claimed “Jay” was his aunt and he was helping his aunt
move in. Defendant was eating food and drinking a bottle of water that had
been in Anthem’s refrigerator.
When Melvin A. asked defendant what he was doing there, defendant
said he lived there. Melvin A. asked defendant to leave, but defendant
refused, then lifted his cane above his head and waved it back and forth.
Defendant kept repeating he lived there and he was helping someone move
in. Melvin locked defendant in and left the building to wait outside for the
police.

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 The police were called. They arrived around 2:10 p.m. and detained
defendant. Defendant told the officers he lived there. One of the bags
defendant had with him contained a 1.75-liter green Tanqueray gin bottle
and an orange San Francisco County jail bracelet bearing defendant’s name.
There was no blood on the gin bottle or inside the bag. There was no damage
to the building, and no evidence that anything other than the eaten food and
water bottle was missing.
The police did a “cold show” identification procedure with Jennifer M.
and Helen V. then took defendant to the police station.
B. Prior Uncharged Conduct
1. Mallory H. Incident
Six days earlier, Mallory H. was walking home about 1:00 a.m. carrying
a pizza. As she approached Van Ness Street, she noticed defendant on the
other side of the street making eye contact with her. When she crossed the
street, defendant asked if he could have her pizza. She said, “No,” and kept
walking. Defendant followed her, weaving in and out of parked cars and
giggling. She asked him, “What are you doing?,” but he just continued to
giggle and kept following her.
When Mallory H. got to the entrance of her apartment, defendant was
right behind her, so close she did not believe she had time to get inside safely.
She faced defendant and asked him why he was doing this. He giggled again
and then replied, “ ‘Do you live here?’ ” When she asked him again why he
was doing this, he laughed and said, “ ‘Don’t you know who you are?’
. . . ‘You’re my wife.’ ” As defendant “paced” up the street, Mallory put in the
door code, entered quickly, and put all of her weight on the door to try to shut
it. She heard running footsteps, and then defendant began kicking the door.

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She screamed “at the top of [her] lungs” and eventually her husband came
out of their apartment and held the door while she ran inside and called 911.
The police responded and took Mallory H. to a spot nearby where they
had detained a suspect. She identified defendant as the man who had
followed her. Defendant had damaged the door of the building.
At trial, defendant testified he had been trying to flirt with Mallory H.
that night but she was not interested, so he told her, “ ‘Have a good night,’ ”
and stopped walking with her. He denied walking with her all the way to her
apartment, following her, telling her she was his wife, and trying to open or
kicking in her door.
2. Masturbation in Jail
About 30 minutes after defendant spoke with Mallory H., the police
arrested him. On cross-examination, defendant testified that when he was
arrested, he had 0.8 or 0.9 gram of methamphetamine on his person. In
order to avoid being criminally charged with possession of
methamphetamine, defendant orally ingested the drug on the way to the
police station. Defendant testified it was the largest amount of the drug he
had ever taken. After he was processed and placed in a cell, defendant
became “a little hot and sexually aroused,” so he took off his clothes and
began to masturbate. The police rushed in, handcuffed him, and placed him
in a safety cell.
3. Pizza Parlor Incident
During cross-examination, defendant was shown a video of an incident
at a pizza parlor on July 20, 2017. In the video, defendant punched the
owner of the pizza parlor.
On cross-examination, defendant testified that the business was closing
and he had asked if they had any leftover pizza. The employees said they

7
would check with the owner and defendant waited to speak with the owner.
The owner came out and told defendant to “get the fuck out.” Defendant was
getting ready to leave, but he was not leaving fast enough, so the owner
threw his things into the street, at which point defendant punched him in the
face. Defendant denied that he had refused to leave.
C. Defense Testimony
As noted, defendant testified in his own defense at trial. Defendant
was homeless in July and August 2017. With regard to the Raymond Best
incident, defendant testified that on the morning of August 20, he was
carrying bags that contained everything of value he owned, including his
money, two liquor bottles he found, and his EBT card. He set the bags down
and walked and talked with a homeless couple. Defendant testified he
turned around and found Best and another man going through his bags.
Defendant ran towards them and yelled, “ ‘Hey man, what the fuck are you
doing? That’s my shit.’ ”
Defendant grabbed his bags to retrieve his belongings. Best started
punching defendant hard in the head, defendant punched Best, and a fight
ensued. After Best hit defendant hard in the mouth, defendant took his blue
bag and walked back to the corner while Best and the other man continued
going through his other bags. Defendant looked in his blue bag to see what
he had left and determine if it was worth going back for his other bags. He
removed the gin bottle from his bag and set it on the ground to be able to look
further in the bag. Defendant saw that Best and the other man no longer
had their hands on his bags. He thought he could retrieve them without a
confrontation. Defendant was “making haste” to his belongings when Best
rushed at him.

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 Best tackled defendant and they fell to the ground, wrestling. As
defendant was getting up, he saw a can of Coke on the ground. Defendant
reached for the unopened can of Coke and hit Best over the head with it.
When defendant hit him, Best fell backwards. Defendant denied hitting Best
with the gin bottle. Defendant testified he did not intend to kill Best, and
only wanted to get away. Defendant did not know how many times he hit
Best, but he did not hit him again after he fell to the ground. Defendant
gathered his bags that were near Best, then picked up his blue bag.
Defendant could see Best was on his feet, walking toward him, so he ran
across the street.
Surveillance video showed defendant walking up Geary Boulevard,
toward Lyon Street, with his bags in his left hand and the Coke can in his
right. In the video, the Coke can fell and rolled away. Defendant testified
that after he turned the corner, he felt safe. He took his shirt off because it
was hot. He walked to a house where the day before he had stored a blue
recycling bin which he used as a makeshift personal trailer in which to store
his things.
The day before, defendant ran into his friend Lauren. Lauren took him
to a house on Lyon Street where they could “hook up,” i.e. have sex. She told
him the house was a squatter’s place. She led him down an alley, opened a
gate, and told him he could store his recycling bin there.
When he reached the house on Lyon Street after the incident with Best,
defendant noticed a cane hanging on the gate door. He picked up the cane
because his knee had given out in the fight with Best and he thought he
might able to use it later. Defendant put his bags in the recycling bin then
pushed his bin into the alley and closed the gate.

9
 Defendant went around to the back of the apartment to see if Lauren
was there. He saw a person looking at him through the blinds; he thought it
was Lauren. He could not hear the woman clearly; he thought Lauren said,
“come in.” He used the knob to open the door. He did not get angry or kick
the door. The door just opened, it was not latched.
When he entered, he realized Lauren was not there and asked where
she was. D.S. started screaming, then Kaitlyn H. came into the kitchen and
started screaming as well. Defendant asked Kaitlyn H. for her phone
because he wanted to call Lauren. Defendant denied intending to steal
anything. He did not threaten or physically assault the women.
After the incident with D.S. and Kaitlyn H., defendant went to
Sacramento Street and stored his bin in an alley. He needed to use the
restroom but did not want to go in public. He thought Anthem might have a
bathroom he could use.
Defendant had not intended to steal anything at Anthem. When he got
to the top of the stairs, however, he saw the bathroom was under construction
and he could not use it. Defendant relieved himself outside, then went back
into the building. He went into the kitchen where he took some water and
leftovers from the refrigerator which he eventually consumed. No one was
there, but defendant thought he would wait and see if he could talk to
someone about whether they had work for him. While he waited, defendant
made a gin drink and went outside to smoke a cigar. He estimated he spent
“at least a couple of hours” at Anthem.
When defendant saw Melvin A. arrive in his truck, he went downstairs
to talk to him about work. As they walked back to Anthem and up the stairs,
he noticed a box on the stairs and picked it up and carried it upstairs. He did

10
not tell Melvin A. he lived there and did not pick up his cane or wave it at
Melvin A. Defendant said Melvin A. did not tell him to leave.
Melvin A. left and the “[n]ext thing you know,” defendant heard cars
screeching, looked out the window, and saw police with their weapons drawn.
Defendant came downstairs and the officers handcuffed him.
D. Charges, Verdicts, and Sentencing
An information filed November 21, 2017 charged defendant with the
murder of Raymond Best by use of a glass bottle, a dangerous or deadly
weapon (Pen. Code,2 §§ 187, subd. (a), 12022, subd. (b)(1); count I); first
degree residential burglary with an allegation that it was committed when a
person other than an accomplice was present (§§ 459, 667.5, subd. (c)(21);
count II); two counts of attempted first degree robbery (§§ 211, 664; counts III
& IV); misdemeanor vandalism (§ 594, subd. (b)(2)(A); count V); and second
degree commercial burglary (§ 459; count VI).
Before the cause was submitted for deliberations, the district attorney
stated it was proceeding only on a theory of second degree murder.
Defendant was found guilty as charged on all counts except misdemeanor
vandalism, which was dismissed. The jury also found true the allegations
that defendant used a deadly weapon in committing the murder and that
people were present during the residential burglary.
On January 2, 2019, the court sentenced defendant to a term of 15
years to life for the murder, imposed a term of one year for the dangerous
weapon enhancement, and an aggregate determinate term of six years eight
months for the residential and commercial burglaries and two counts of
attempted robbery, for a total sentence of 22 years 8 months to life.

2All further statutory references are to the Penal Code unless
otherwise indicated.

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 II. DISCUSSION
A. Evidence of Prior Uncharged Conduct—Mallory H.
Defendant first contends the trial court abused its discretion in
admitting evidence of the incident with Mallory H. that occurred six days
before he entered the residence of D.S. and Kaitlyn H.
1. Additional Background
Before trial, the defense moved to exclude, and the prosecution moved
to admit, other-crimes evidence including the incident involving Mallory H.
The prosecution’s motion argued it should be allowed to introduce the
incident with Mallory H. to show defendant’s intent in the charged
residential burglary. Defendant argued the incident lacked the requisite
similarity to the charged crimes to be admissible on the issue of defendant’s
intent and the evidence was unduly prejudicial.
The court did not take testimony at the hearing on the motions in
limine but stated it had reviewed the transcript of the preliminary hearing.
In ruling on the motions, the trial court observed, “The prior uncharged
incident [with Mallory H.] has some similarities to the residential burglary
that is charged here in which the defendant allegedly kicked a door and
thereby broke into an occupied residence after being told to leave by one of
two female residents . . . .” The trial court acknowledged “differences,
certainly” between the two incidents, but noted the “least degree of similarity
between the crimes that is needed to prove intent, and of course, the prior
uncharged conduct need only be proven by a preponderance of the evidence.”
The court found sufficient similarity between the two incidents and concluded
the probative value of the evidence outweighed its prejudicial effect, and that
it would not “require undue consumption of time or confuse the issue or

12
mislead the jury.” The court ruled it would give “an appropriate limiting
instruction under CALCRIM [No.] 375.”
At the conclusion of Mallory H.’s testimony, the trial court admonished
the jury the evidence was being admitted for a limited purpose or purposes.
The court said: “I wanted to clarify one thing, which is regarding
[Mallory H.]’s testimony. As you have heard, she is testifying about an
incident that occurred on August 14, 2017. I think you’re aware of this, but I
do want to make it clear [defendant] is not facing criminal charges in this
case arising out of the incident that [Mallory H.] has been testifying to. You
are hearing evidence of the incident as it may bear on the criminal charges in
this case. And in particular, the Court in a pretrial ruling admitted or
allowed the introduction of evidence on this incident as it may bear on
[defendant]’s intent in allegedly committing the residential burglary that is
one of the charges . . . in this case.” The court noted the evidence “may also
be admitted for another limited purpose,” and reiterated, “I just wanted to
make it clear at this point this is not an incident for which [defendant] is
directly facing criminal charges in this case. The evidence you’re hearing is
admitted for limited purpose or purposes, and we will make that clear in the
instructions at the end of the case. I just didn’t want anybody to be
confused.”
When the court instructed the jury with CALCRIM No. 375 at the
conclusion of the case, it told the jury that if it found defendant had
committed the offense of attempting to enter the residence of Mallory H. on
August 14, 2017, “you may but are not required to consider that evidence [for]
the limited purpose—there is a typo there, that should be singular—for
limited purpose of deciding whether the defendant acted with intent to
commit theft as charged [in] Count 2 [(residential burglary)].” The court also

13
instructed the jury to consider the similarity or lack of similarity of the
offenses and admonished: “Do not consider this evidence for any other
purpose except for the limited purpose of determining the defendant’s
credibility. Do not conclude from this evidence that the defendant has a bad
character or is disposed to commit crime. If you conclude that the defendant
committed the uncharged offense, that conclusion is only one factor to
consider along with all of other evidence [sic].”
2. Analysis
In general, evidence of a person’s character or trait of character is
inadmissible to prove the person’s conduct on a specific occasion. (Evid. Code,
§ 1101, subd. (a).) Evidence a person committed a “crime, civil wrong, or
other act” is admissible if it is relevant to prove a fact other than a person’s
disposition to commit such an act, such as “motive, opportunity, intent,
preparation, plan, knowledge, identity, [or] absence of mistake or accident
. . . .” (Id., subd. (b).)
Evidence of uncharged conduct can be relevant to prove intent because
“ ‘[t]he recurrence of a similar result . . . tends (increasingly with each
instance) to negative accident or inadvertence or self-defense or good faith or
other innocent mental state, and tends to establish (provisionally, at least,
though not certainly) the presence of the normal, i.e., criminal intent
accompanying such an act . . . .’ ” (People v. Ewoldt (1994) 7 Cal.4th 380, 402.)
“To be admissible, there must be some degree of similarity between the
charged crime and the other crime, but the degree of similarity depends on
the purpose for which the evidence was presented. The least degree of
similarity is needed when, as here, the evidence is offered to prove intent.”
(People v. Jones (2011) 51 Cal.4th 346, 371.)

14
 Even when evidence of uncharged conduct is otherwise admissible, it
must be excluded if its probative value is outweighed by its potential to
prejudice the fact finder against a party, to confuse the issues, or to consume
undue amounts of time. (Evid. Code, § 352; People v. Mungia (2008)
44 Cal.4th 1101, 1130.)
We review a trial court’s rulings under Evidence Code sections 1101
and 352 for an abuse of discretion. (People v. Mungia, supra, 44 Cal.4th at
p. 1130.) “ ‘Under the abuse of discretion standard, “a trial court’s ruling will
not be disturbed, and reversal . . . is not required, unless the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of justice.” ’ ” (People v. Foster (2010)
50 Cal.4th 1301, 1328–1329.)
Applying these standards, we conclude the trial court acted within its
discretion when it admitted evidence of the prior uncharged incident with
Mallory H. Defendant insists the evidence regarding the incident with
Mallory H. was inadmissible to prove intent to steal because defendant did
not steal or attempt to steal anything from her, and at most committed an act
of misdemeanor vandalism. But courts have long held that intent to commit
theft can be inferred from the fact of a forcible and unlawful entry. (See
People v. Jones (1962) 211 Cal.App.2d 63, 71–72 [“Burglarious entry may be
inferred from the fact that appellant unlawfully and forcibly entered the
home of another”]; People v. Fitch (1946) 73 Cal.App.2d 825, 827 [intent to
commit theft “could be inferred from the forcible and unlawful entry alone”].)
Here, in both the incident with Mallory H. and the incident with D.S. and
Kaitlyn H., the evidence supports a finding defendant broke the door in an
attempt to forcibly enter the premises. Thus, the court could reasonably infer

15
the evidence of an attempted forcible entry is not just evidence of vandalism
but intent to steal.
We likewise reject defendant’s claim that the trial court abused its
discretion because the evidence was more prejudicial than probative. “ ‘An
exercise of discretion under Evidence Code section 352 will be affirmed unless
it was arbitrary, capricious, or patently absurd and the ruling resulted in a
miscarriage of justice.’ ” (People v. Bell (2019) 7 Cal.5th 70, 105.) As
explained above, the evidence that defendant attempted to force entry to
Mallory H.’s residence was relevant on the issue of intent. Moreover, the
evidence was not particularly inflammatory, and certainly not any more
inflammatory than the evidence regarding the charged offenses of residential
burglary and murder. (See People v. Ewoldt, supra, 7 Cal.4th at p. 405 [fact
that evidence regarding uncharged conduct was no stronger and no more
inflammatory than charged crimes decreased potential for prejudice]; People
v. Foster, supra, 50 Cal.4th at p. 1332 [violent and sexual prior crimes
evidence was less inflammatory than evidence defendant repeatedly stabbed
victim].)
Finally, even assuming the trial court erred in admitting the evidence
of the incident with Mallory H., we conclude any such error was harmless
because defendant has not shown a reasonable probability he would have
obtained a more favorable verdict had the court excluded the evidence.
(People v. Carter (2005) 36 Cal.4th 1114, 1152 [error in admitting evidence of
uncharged misconduct does not require reversal unless it is reasonably
probable outcome would have been more favorable had the evidence been
excluded].) The court admonished the jury when Mallory H. testified, and
again during instructions at the conclusion of trial, that the evidence was
admissible on the issue of intent with respect to the charged crime and

16
explained to the jury it must not consider the evidence to conclude defendant
has a bad character or is disposed to commit the charged crime. Thus, the
jury was properly instructed not to use the evidence to conclude defendant
committed the charged crime.
Defendant contends the court’s instruction that the jury could consider
the evidence for purposes of evaluating defendant’s credibility was extremely
prejudicial and rendered his trial unfair. For several reasons we reject the
argument. First, defendant’s counsel did not object to the instruction at trial.
Moreover, defendant’s argument equates the use of prior misconduct evidence
for credibility purposes to inadmissible propensity evidence. But while the
latter purpose is clearly prohibited, prior misconduct evidence may be
admissible when offered for the purpose of evaluating witness credibility. 3
(Evid. Code, § 1101, subd. (c) [“Nothing in this section affects the
admissibility of evidence offered to support or attack the credibility of a
witness.”]; see People v. Clark (2011) 52 Cal.4th 856, 931 [“A witness may be
impeached with any prior conduct involving moral turpitude whether or not
it resulted in a felony conviction, subject to the trial court’s exercise of
discretion under Evidence Code section 352.”].) Further, as noted, the court

3 At the hearing on the motion in limine after the court ruled the
Mallory H. incident would be admissible on the issue of intent, the
prosecution also informed the court it was seeking to admit the evidence for
impeachment purposes under Evidence Code section 1103. The trial court
stated it had not understood that previously. Defense counsel acknowledged
the prosecution was seeking to admit the incident “for both impeachment and
as far as [Evidence Code section] 1101[, subdivision] (b),” confirmed the
evidence would be “coming in their case in chief” whether defendant testified
or not, and then remarked, “So I think we have, then, enough information
about what we need to talk to the jury about, then.” Though neither party
discusses this colloquy, we note the ambiguity in the record about whether
the Mallory H. evidence could be used for impeachment purposes.

17
expressly instructed the jury not to use evidence of the Mallory H. incident to
conclude defendant has a bad character or was disposed to commit the crime.
We presume the jury followed these instructions, and no evidence in the
record suggests otherwise. (People v. Harris (2013) 57 Cal.4th 804, 842.)
Defendant complains that the evidence regarding the Mallory H.
incident portrayed him as a “dangerous, violent, unpredictable, and perhaps
even mentally ill individual who engaged in random acts of violence.” He
contends he was also prejudiced because the prosecution’s closing argument
focused on his “ ‘scary’ ” behavior toward Mallory H. rather than his intent to
steal from her. But the prosecutor twice explained to the jury in closing
argument that the evidence regarding Mallory H. was relevant to whether
defendant had an intent to steal from D.S. and Kaitlyn H.4 Further, a large
number of trial witnesses testified to a wide range of defendant’s behaviors
and their own feelings during their interactions with him. With regard to the
murder charge, three witnesses testified they saw defendant hit Raymond
Best over the head with a gin bottle. Among them, they testified he appeared
“intense,” “really, really angry,” “super angry,” “crazy,” “intimidating,”
“scary,” “unpredictable,” and was “behaving erratically.” Hadley H. testified
defendant appeared “angry,” “scary,” was “acting erratically,” and his
behavior was “not normal.” D.S. and Kaitlyn H. testified that defendant
made strange comments, raised his voice, was agitated and aggressive,
kicked in their door, and tried to grab their phones. They testified it was a

4The prosecutor told the jury: “You can consider Mallory’s incident to
the extent it sheds light on [defendant]’s intent during the [D.S.] incident.”
Later in her argument she reiterated: “So in this case, obviously the burglary
charge applies to [D.S. and Kaitlyn H.’s] home. Did he enter that home with
an intent to commit theft? You get to think about Mallory’s incident when
making that decision.”

18
“scary situation,” and that they were “really scared.” Melvin A. testified
defendant claimed his aunt lived in the commercial property, helped himself
to food from a neighboring business, moved and opened a package, refused to
leave the premises when asked, and raised a cane over his head waving it
back and forth. The prosecution presented video evidence that a month
before the crimes at issue, defendant punched the owner of a pizza parlor
when he told defendant to “get the fuck out” of his restaurant. Defendant
does not challenge any of this evidence on appeal. Moreover, defendant
testified at length to his own detailed version of the events over the course of
several days during trial, giving the jury ample opportunity to evaluate his
credibility based on his own testimony and demeanor. Though defendant
argues his credibility was the key issue at trial, in light of the overwhelming
amount of evidence bearing on that issue, we conclude the admission of the
Mallory H. evidence was not so prejudicial as to make it more probable he
would have achieved a different result in its absence.
Finally, the evidence against defendant was strong. Three
eyewitnesses testified they saw defendant hit Raymond Best over the head
with a gin bottle and that Best did not appear to provoke the attack or hit
defendant. Though defendant argues there was conflicting medical and
forensic evidence regarding the murder charge, the multiple percipient
witnesses were shown to have no reason to lie and their accounts were
consistent with one another and contradicted defendant’s. As to the
residential burglary, D.S. and Kaitlyn H. both testified defendant broke down
their kitchen door and demanded their cell phones. Defendant claimed he
opened their door by turning a doorknob, but the physical evidence showed
their door was broken. Given the strength of the other evidence against

19
defendant, it is unlikely the result would have been different had evidence of
the Mallory H. incident been excluded.
For the same reasons, we reject defendant’s argument that admission
of the incident with Mallory H. was a violation of his due process rights. The
“routine application of state evidentiary law does not implicate defendant’s
constitutional rights.” (People v. Brown (2003) 31 Cal.4th 518, 545.) “ ‘The
admission of evidence results in a due process violation only if it makes the
trial fundamentally unfair. [Citation.] “Only if there are no permissible
inferences the jury may draw from the evidence can its admission violate due
process. Even then, the evidence must ‘be of such quality as necessarily
prevents a fair trial.’ [Citation.] Only under such circumstances can it be
inferred that the jury must have used the evidence for an improper
purpose.” ’ ” (People v. Coneal (2019) 41 Cal.App.5th 951, 972.) As discussed
above, the evidence that defendant attempted to forcibly enter Mallory H.’s
door supported an inference he intended to commit theft. But even if such an
inference was not reasonable, the evidence was not of such character as to
render defendant’s trial fundamentally unfair.
B. Impeachment with Evidence of Masturbation
Defendant next contends the trial court erred in admitting the evidence
he stripped naked in his jail cell and masturbated, arguing the evidence was
more prejudicial than probative under Evidence Code section 352.
1. Additional Background
At trial, defense counsel moved to exclude evidence that defendant was
masturbating in jail on August 14, 2017. The prosecution argued evidence of
hypersexuality and combative behavior are signs of methamphetamine
abuse. The trial court expressed concern the evidence might be prejudicial,
but ultimately ruled it was potentially probative of the amount of

20
methamphetamine defendant ingested, “which bears not only potentially on
his conduct, but potentially also on his ability to perceive and remember what
happened and testify reliably to those events.” The court allowed the
prosecution to cross-examine defendant on the incident but cautioned not to
disclose any lurid details.
On cross-examination, defendant testified he had ingested close to a
gram of methamphetamine before arriving at the jail. He stated once he was
placed in the cell, “I got a little hot and sexually aroused, and I started
masturbating back there. And officers were alerted to what I was doing.
How they knew, I don’t know. And they rushed in there and handcuffed me
and placed me in a safety cell.” The prosecutor asked: “You were not
combative with sheriff’s personnel?” Defendant responded he was not. The
prosecutor then asked: “But you stripped your clothes off. And you were
masturbating?” Defendant confirmed he was.
2. Analysis
We agree that the evidence has minimal probative value. Though
arguably it would be probative of the amount of methamphetamine defendant
consumed on August 14, he consumed the methamphetamine six days before
the crimes at issue and it likely would have had little bearing on his behavior
on August 20. Nonetheless, we conclude defendant has not shown a
reasonable probability of a more favorable result had the evidence been
excluded. As discussed above, the jury heard substantial evidence regarding
strange behavior by defendant both on the day of the crime and in a pizza
parlor a month before. Defendant also explained that the masturbation
occurred when he took the largest amount of the drug he had ever taken. A
toxicology expert opined that defendant taking off his clothes and
masturbating was consistent with someone who had ingested a larger

21
quantity of methamphetamine than he is used to and does not have a
tolerance for it. Moreover, the testimony regarding masturbation was
extremely brief, was offered by defendant, and the prosecutor asked only one
question to confirm that defendant had been masturbating in his cell. In
light of these facts, we conclude any error in admitting the testimony was
harmless.
C. Cumulative Error
Defendant argues the two evidentiary errors in admitting the
uncharged acts taken together constituted cumulative error that rendered his
trial fundamentally unfair. As we have discussed above, however, admission
of the uncharged incident with Mallory H. was not error, and the fleeting
reference to masturbating in his cell was not unduly prejudicial in the context
of the entire trial. On this record, there was no cumulative error.
D. Dueñas
In addition to his prison term, the court imposed a $200 court
operations assessment fee (§ 1465.8), a $150 conviction assessment fee (Gov.
Code, § 70373), a $40 theft fee (§ 1202.5), a $1,500 restitution fine (§ 1202.4),
and a suspended $1,500 parole revocation restitution fine (§ 1202.45).
Defendant asks this court to vacate the fees and stay imposition of the
restitution fine unless and until the prosecution can show he has the present
ability to pay under People v. Dueñas, supra, 30 Cal.App.5th 1157 (Dueñas).
Alternatively, he asks this court to remand for an ability to pay hearing. We
disagree because on the merits, defendant is not entitled to relief under
Dueñas.
1. The Dueñas Case
In Dueñas, the defendant, a homeless probationer who suffered from
cerebral palsy and was unable to work, was convicted of her fourth offense of

22
driving with a suspended license. Because she was unable to work, Dueñas
lost her driver’s license when she could not pay assessments for juvenile
citations she received as a teenager. Over the ensuing years, Dueñas was
convicted of several misdemeanors because she continued to drive without a
license and spent weeks in jail in lieu of paying additional fees and fines, but
she remained unable to pay off her debt. In the most recent case, she was
placed on summary probation and ordered to pay a criminal conviction
assessment, a court operations assessment, and a restitution fine within
three years. (Dueñas, supra, 30 Cal.App.5th at pp. 1160–1163.) Dueñas
objected and asked for an ability to pay hearing. At the hearing, she
produced undisputed evidence establishing her inability to pay. (Id. at
pp. 1162–1163.) Although the court assured Dueñas she would not be
“ ‘punished’ ” if she was unable to pay, it also stated, “ ‘Those [sums] will go
to collections without any further order from this court.’ ” (Id. at p. 1163.)
The trial court rejected the defendant’s argument that the imposition of the
assessments and the fine without consideration of her ability to pay them
violated her constitutional rights to due process and equal protection. (Ibid.)
The Court of Appeal reversed, holding that “the assessment provisions
of Government Code section 70373 and Penal Code section 1465.8, if imposed
without a determination that the defendant is able to pay, are . . .
fundamentally unfair [and] imposing these assessments upon indigent
defendants without a determination that they have the present ability to pay
violates due process under both the United States Constitution and the
California Constitution.” (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The
appellate court reversed the order imposing the assessments and directed
the trial court to stay the execution of the restitution fine “unless and until

23
the People prove that [the defendant] has the present ability to pay it.”5 (Id.
at pp. 1172–1173.)
2. Dueñas Does Not Warrant a Remand
Division Two of the Second District Court of Appeal, in People v. Hicks
(2019) 40 Cal.App.5th 320 (Hicks), review granted November 26, 2019,
S258946 recently explained: “To reach its holding, Dueñas wove together two
distinct strands of due process precedent. [¶] The first strand secures a due
process-based right of access to the courts. . . . requir[ing] courts to waive
court costs and fees that would otherwise preclude criminal and civil litigants
from prosecuting or defending lawsuits or from having an appellate court
review the propriety of any judgment. [Citations.] [¶] The second strand
erects a due process-based bar to incarceration based on the failure to pay
criminal penalties when that failure is due to a criminal defendant’s
indigence rather than contumaciousness.” (Id. at p. 325.)
We agree with Hicks that the first strand “does not dictate Dueñas’s
bar on imposing fees because the imposition of assessments, fines and fees
does not deny a criminal defendant access to the courts.” (Hicks, supra,
40 Cal.App.5th at p. 326.) Here, the imposition of the fees and fines disputed
by defendant “in no way interfered with defendant’s right to present a
defense at trial or to challenge the trial court’s rulings on appeal.” (Ibid.)
Indeed, they were not imposed until after the trial was over, and except for
the fact of their imposition, are not otherwise challenged.

5The California Supreme Court is currently considering whether trial
courts must determine a criminal defendant’s ability to pay fines, fees, and
assessments before imposing them. (People v. Kopp (2019) 38 Cal.App.5th 47,
review granted on specified issues Nov. 13, 2019, S257844.)

24
 Likewise, the second strand does not dictate Dueñas’s bar on imposing
fees because their imposition, without more, does not result in incarceration
for nonpayment due to indigence. The cases prohibiting incarceration for
indigence alone rest on the notion that “ ‘[f]reedom from imprisonment . . . lies
at the heart of the liberty that [the due process] [c]lause protects.’ ” (Hicks,
supra, 40 Cal.App.5th at p. 326, italics added by Hicks; accord, People v.
Kingston (2019) 41 Cal.App.5th 272, 280.) Thus, at the time of sentencing,
imposing a fee or fine upon a criminal defendant does not require immediate
incarceration and as a result, does not infringe on defendant’s liberty
interest. (Hicks, at p. 326; Kingston, at p. 280.) Although Dueñas
determined that by imposing the court assessments, indigent defendants
were subject to “ ‘additional punishment’ ” because their failure to pay could
give rise to civil judgments with significant negative consequences, it “cites
no authority for the proposition that those consequences constitute
‘punishment’ rising to the level of a due process violation.” (People v. Caceres
(2019) 39 Cal.App.5th 917, 927, review denied Jan. 2, 2020.)
Because it is wholly speculative that “additional punishment” discussed
in Dueñas will come to pass, we find it unnecessary to decide whether there
was any infringement here on defendant’s due process or other constitutional
rights. In Dueñas, the defendant had already suffered “cascading
consequences” because of “a series of criminal proceedings driven by, and
contributing to, [her] poverty,” and she had already been ordered to pay the
charges at issue by the end of her probation period. (Dueñas, supra,
30 Cal.App.5th at pp. 1163–1164.) In contrast, nothing about the
circumstances here suggests defendant’s criminal proceedings had
contributed to his homelessness. (See People v. Caceres, supra,
39 Cal.App.5th at p. 928 [likelihood of committing criminal threats not

25
affected by one’s financial circumstances].) Thus, even assuming Dueñas was
correctly decided on its facts, the hardship in the instant matter is not akin to
the one imposed in that case.
Moreover, the situation in which defendant has put himself—a lengthy
sentence in state prison—does not implicate the same due process concerns at
issue in the factually unique Dueñas case. Defendant, unlike Dueñas, does
not face incarceration because of an inability to pay assessments and fines.
Defendant is in prison because he was found guilty of murder, burglary, and
attempted robbery.
Also unlike Dueñas, the trial court in this case imposed a restitution
fine above the statutory minimum. Section 1202.4, subdivision (c) expressly
allows the court to consider a defendant’s ability to pay in such
circumstances, and subdivision (d) provides the court “shall consider any
relevant factors, including, but not limited to, the defendant’s ability to pay”
in setting the amount of the fine in excess of the statutory minimum. Thus,
at least as to the restitution fine, defendant “had every incentive to object”
and forfeited his ability to pay argument by failing to do so in the trial court.
(People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033, review den. Sept. 18,
2019, S256881; People v. Aviles (2019) 39 Cal.App.5th 1055, 1073, review den.
Dec. 11, 2019, S258563.)
Lastly, Dueñas does not support a remand to the trial court to consider
whether the restitution fine imposed on defendant should be stayed. Because
of section 1202.4’s “prohibition on considering the defendant’s ability to pay
the minimum fine,” Dueñas concluded “the criminal justice system punishes
indigent defendants in a way that it does not punish wealthy defendants.”
(Dueñas, supra, 30 Cal.App.5th at p. 1170.) As the court explained, “In most
cases, a defendant who has successfully fulfilled the conditions of probation

26
for the entire period of probation has an absolute statutory right to have the
charges against him or her dismissed” and be relieved of their resulting
penalties and disabilities. (Ibid.) If, however, “a probationer cannot afford
the mandatory restitution fine, through no fault of his or her own he or she is
categorically barred from earning the right to have his or her charges
dropped and to relief from the penalties and disabilities of the offense for
which he or she has been on probation, no matter how completely he or she
complies with every other condition of his or her probation,” and must instead
“appeal to the discretion of the trial court and . . . persuade [it] that dismissal
of the charges and relief from the penalties of the offense is in the interest of
justice.” (Id. at pp. 1170–1171.) Unlike Dueñas, defendant has not been
placed on probation, and no issue of his entitlement to expungement exists.
Nor, assuming he is presently unable to pay the restitution fine, does he
explain how its imposition has or may result in his being treated differently
than wealthy defendants “solely and exclusively [because of his] poverty.”
(Id. at p. 1171.) We therefore conclude defendant is not entitled to a remand
under Dueñas.
III. DISPOSITION
The judgment is affirmed.

27
 MARGULIES, ACTING P. J.

WE CONCUR:

BANKE, J.

SANCHEZ, J.

A156255
People v. Marshall

28