People v. Galvan CA4/1

Filed 9/23/20 P. v. Galvan 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D075262

Plaintiff and Respondent,

v. (Super. Ct. No. SCD275534)

JUAN GALVAN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Michael S. Groch, Judge. Affirmed in part, modified in part with directions.
Susan K. Shaler, 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, A. Natasha
Cortina and Christine Levingston Bergman, Deputy Attorneys General, for
Plaintiff and Respondent.
 I
INTRODUCTION
Juan Galvan, while under the influence of methamphetamine and
marijuana, drove over a curb, struck a wall, and drove 50 feet down a
sidewalk before hitting two pedestrians. One pedestrian died at the scene.
The other suffered severe head injuries and sustained a brain injury.
A jury found Galvan guilty of: gross vehicular manslaughter of victim
S.A. while intoxicated (Pen. Code, § 191.5, subd. (a); count 1); driving under
the influence of drugs causing injury to victim C.S. (Veh. Code, § 23153,
subd. (f); count 2); and hit and run with death or permanent serious injury
(Veh. Code, § 20001, subd. (b)(2), count 3). For count 1, the jury found true
allegations that Galvan: (1) personally inflicted great bodily injury on S.A.
and C.S. (Pen. Code, § 1192.7, subd. (c)(8) [serious felony]); (2) fled the scene
after committing the crime (Veh. Code, § 20001, subd. (c)); and
(3) proximately caused bodily injury or death to more than one victim (Veh.
Code, § 23558). For count 2, the jury found true allegations that Galvan:
(1) personally inflicted great bodily injury on S.A. (Pen. Code, § 12022.7,
subd. (a)); (2) personally inflicted great bodily injury causing C.S. to become
comatose due to brain injury (Pen. Code, § 12022.7, subd. (b); and
(3) proximately caused bodily injury or death to more than one victim (Veh.
Code, § 23558). Galvan admitted he had a prison prior (Pen. Code, § 667.5,
subd. (b)), a serious felony prior (Pen. Code, § 667, subd. (a)), and a strike
prior (Pen. Code, §§ 667, subd. (b), 1170.12). The court sentenced Galvan to a
total term of 25 years in state prison.
Galvan contends his convictions for counts 1 and 2 should be reversed
because his constitutional rights were violated by late discovery produced by
the prosecutor during trial and because the court declined to give the jury

2
instructions regarding the defense of accident and proximate cause. He
contends his conviction for count 2 should be vacated because the double
jeopardy clause and Penal Code sections 654 and 1023 preclude multiple
convictions and punishments for the same act. Galvan also contends the true
finding of great bodily injury to S.A. in connection with count 2 must be
stricken pursuant to Penal Code section 12022.7, subdivision (g). Finally,
Galvan contends his constitutional rights were violated by the imposition of
fines, fees, and assessments without finding Galvan had an ability to pay.
With respect to his double jeopardy argument as to count 2, Galvan
acknowledges we are bound by People v. McFarland (1989) 47 Cal.3d 798,
803–804, which held a defendant driving under the influence may be
convicted and punished separately for killing one victim and injuring another
in the same incident. We conclude Galvan forfeited his claim regarding the
fines and fees and we further conclude there were no prejudicial errors with
respect to Galvan’s other contentions. However, on our own motion, we strike
the stayed one-year sentence enhancement for Galvan’s prior prison
commitment because his prior conviction no longer qualifies for enhancement
under amended Penal Code section 667.5, subdivision (b). In all other
respects, we affirm the judgment.
II
BACKGROUND
A
On the evening of February 3, 2018, victims S.A. and C.S. left their
home for an evening walk around 5 p.m. A little later, their roommate heard
a bang near the side of the house. When the roommate went outside, he saw
S.A. pinned under a truck on the sidewalk just a few feet from their home.
C.S. was bleeding and shaking on the ground.

3
 S.A. died at the scene. Among other injuries, C.S. suffered a traumatic
brain injury and was in a coma for a period of time. C.S. was hospitalized for
nearly two months. She showed some improvement after discharge, but was
still non-verbal at the time of trial.
B
Witness B.G. drove along a public road behind a black truck on the
evening of February 3, 2018. B.G. did not notice anything unusual about how
the truck was driving.
Suddenly, the truck made an unindicated left turn onto another street.
However, a couple of feet into the turn, the truck suddenly turned back
toward the main road. The truck hit the curb, jumped onto the sidewalk,
slammed into a wall, and eventually slammed into a pole on the block wall.
B.G. stopped his vehicle and got out to see if the person in the black
truck was okay. B.G. asked Galvan, who was alone in the truck, if he was
okay.
After Galvan said he was okay, B.G. looked down and saw a man
pinned underneath the truck. As B.G. walked around the front of the truck
to try to push it back, he saw a female lying face down close to the wall. She
was breathing heavily. When B.G. told Galvan to move his truck, Galvan
panicked. He jumped twice in the air and said he could not believe it.
Another man who arrived on the scene helped B.G. try to push the truck as
Galvan got into the truck and tried to put it in gear. Galvan also tried
pushing from the driver’s side. They could not move the truck because the
front tire was broken.
Witnesses saw Galvan pacing around the truck cursing and talking to
himself. He got into the truck, got out again, and walked to and from the bed
of the truck several times, moving items back and forth between the bed and

4
the cab of the truck. His movements were erratic. He appeared panicked
and upset. Several witnesses called 911.
C
The first responding officer observed a male walking eastbound on the
roadway toward the police vehicle. As the officer exited his vehicle, the man
said there was a crash and a couple of people were pinned underneath the
truck. The person did not say he was the driver nor did the person provide a
name or license number. The person appeared nervous.
Within a few minutes of the arrival of police and paramedics, one of the
witnesses noticed the driver was gone. The witness saw Galvan walking up
the street. The witness told the responding officer the driver was leaving.
The officer radioed another patrol unit and told them to detain Galvan
because the officer suspected he might be involved in the collision and was
attempting to leave the scene. The witness followed Galvan and saw him
turn up another street where Galvan started jogging. The witness pointed
out Galvan to another group of officers who detained Galvan. Witnesses
identified Galvan as the driver of the truck.
D
When officers contacted Galvan, he appeared animated. He could not
control his hand movements and his speech was rambling. He was not able
to answer simple questions. It appeared he was under the influence of a
controlled substance.
Galvan initially denied being the driver and named another individual
as the driver. He also denied using drugs within the past 48 hours. He said
he last used marijuana a week prior and he had not used methamphetamine
in three weeks.

5
 During a field sobriety test, he had some difficulty following
instructions and there were signs of impairment. Galvan appeared wide-
eyed. His eyes were bloodshot and glazed and his pupils were dilated. He
also swayed. The officer believed there was enough evidence of impairment
to place Galvan under arrest. He suspected Galvan was under the influence
of methamphetamine. The officer did not believe Galvan was safe to drive a
vehicle.
After conducting a further drug recognition evaluation at the police
station, the officer formed the opinion that Galvan was under the influence of
both a central nervous system stimulant and a central nervous system
depressant. A rapid oral test was positive for methamphetamine.
During the evaluation at the station, Galvan eventually admitted he
drove the truck and that he was alone when he was driving. He then said he
did not remember anything but a flash. He thought he was hit from behind.
He also claimed someone was trying to kill him the day before.
Galvan admitted he left the scene. He said he was going to see if he
could warn the family of the victims. When the officer advised Galvan that
someone died in the collision, Galvan became distraught. He said he would
not have let the police catch him if he had known someone had died.
E
Blood drawn from Galvan more than four hours after the collision
tested positive for methamphetamine at 141 nanograms per millimeter and
amphetamine at 15 nanograms per millimeter. He also tested positive for
cannabinoids.
The toxicologist testified methamphetamine is a central nervous
system stimulant. It can speed up thought processes, alter perceptions of
time, and cause an individual to be easily distracted. Physically, it can cause

6
a person to appear hyperactive or fidgety and to have wide eyes, rigid muscle
tone, sweating, and elevated pulse rate. It can cause pupils to be more
dilated. The half-life for methamphetamine, meaning the period of time it
takes a drug to reduce to half in the blood, is 12 hours on average.
Methamphetamine can affect the ability to safely operate a motor
vehicle. It can impair the ability to multitask and divide attention. It can
alter perceptions of time and speed and can affect physical coordination. It
can interfere with the ability to make a decision and act on that decision in
an appropriate amount of time. Common driving patterns with
methamphetamine can include inattentive driving, speeding, erratic driving,
and inability to maintain a lane of travel.
Marijuana can have both depressant and stimulant effects. Many of
the effects of marijuana on mental abilities are like the effects of
methamphetamine, such as divided attention skills, perception of time,
coordination, and response and reaction time. It can also affect short-term
memory and depth perception. Driving patterns of individuals under the
influence of marijuana are often described as serpentine because the
individual can weave and drift out of the lane of travel. When an individual
has multiple drugs in his or her system, he or she may show a combination of
responses or more effect of one drug over the other.
Based on the results of Galvan’s blood work and a hypothetical
mirroring Galvan’s driving pattern and his field sobriety test results, the
toxicologist believed Galvan was driving under the influence of both
methamphetamine and marijuana.
F
Investigating officers observed no tire marks in the roadway to indicate
braking. The officer investigating and documenting the scene observed a tire

7
mark on the curb, a mark where a tire rolled through the grass, a tire mark
on the sidewalk, and the impact of the vehicle with the wall. Pieces of rubber
were on the ground near where the vehicle impacted the wall. The officer
testified the tire exploded from contact with the wall. A wider and uneven
tire mark was left on the sidewalk from where the tire deflated to the point of
rest of the vehicle. No evidence was found in the roadway.
Officers determined the cause of the accident was unsafe movement to
the left in violation of Vehicle Code section 22107 because Galvan did not
maintain the curvature of the roadway. The vehicle traveled 60 to 70 feet
from the point of impact on the curb to the point of rest. It traveled about 50
feet from the time it hit the curb until it hit the pedestrians.
B.G.’s vehicle did not hit Galvan’s truck. B.G.’s vehicle did not have
any damage suggesting he had been in a collision. Galvan’s vehicle had rear-
end damage from an earlier collision.
A mechanical inspection of Galvan’s vehicle showed damage on the left
side of the vehicle. The left front tire was deflated and the wheel rim was
fractured so the tire became completely dislodged from the rim. This
indicated the tire hit the curb with enough energy to fracture the alloy rim.
The inspection revealed no mechanical failures that could have caused
or contributed to the collision. A brake component was installed upside
down, but the brakes still worked properly. It could decrease braking ability
by less than 10 percent. It would not prevent the driver from coming to a
complete stop and might only reduce stopping time by fractions of a second.
There were five inches of free play in the steering wheel, which is beyond the
federal limit. However, this free play would not result in a catastrophic
steering failure or affect the driver’s ability to steer the vehicle.

8
 G
Galvan testified in his own defense. He started using marijuana before
kindergarten and started using methamphetamine at age 12. He injected
methamphetamine and heroin between the ages of 15 and 21. He stopped
using drugs for two years, got a job as a construction laborer, got married,
and had a child. However, he relapsed in December 2017. After he relapsed,
drug use made him happy and relieved his depression and anxiety.
The day before the incident, Galvan’s truck ran out of gas on a freeway
and he was rear-ended by another vehicle. After getting gas, Galvan drove to
visit his wife, but she did not want anything to do with him. He went to a
motel with his brother and the brother’s girlfriend where they smoked
methamphetamine and marijuana.
Galvan denied using drugs on the day of the incident. After emptying a
storage unit, he was going to a family member’s house for a child’s birthday
celebration. He decided to stop and walk around the neighborhood because
he wanted to delay his arrival at the party.
As he drove up the main road, he felt fine and the truck was working
properly without any steering or tire issues. He made a left turn, but before
completing the turn, he heard a loud pop. He said he was scared and decided
to turn back onto the main road. He said he lost control of the vehicle and
slammed into a wall.
Galvan said he was shaken awake by a man who said he had been in
an accident. He heard someone say they needed to push the truck back
because someone was hurt. Another person said they heard shots.
Galvan saw a man trying to push the truck backward. The man told
him to put the truck in reverse. Galvan tried to turn the truck on, but could
not do so. Galvan said he put the truck in neutral as others came to the hood

9
of the truck to push it. When he got out, he saw two bodies on the ground
and a pool of blood.
The truck did not move at all and Galvan saw that the tire was
deflated. He got a wrecking bar from the back of the truck and used it to try
to lift the truck.
When the paramedics arrived, Galvan and the other witnesses backed
up. Galvan walked away from the scene. He told a police officer there were
two people injured underneath the truck, but he did not say he was involved
in the incident.
Galvan said he heard the couple lived nearby. Galvan said he thought
he should warn the people’s family. Galvan said he was scared and confused.
When police officers contacted him and placed him in handcuffs, he told
them another individual had been driving. Galvan lied about driving because
he was scared. He said he told the officers a variety of things, including that
someone was trying to kill him, he was shot at, and that he was rear ended.
However, he said all he could remember was a white flash.
Galvan did not hit the brakes before the car went up on the curb. He
never saw the pedestrians and did not remember hitting them.
Galvan denied methamphetamine use affected his brain, saying it only
affected his mood. He said he feels happy when he takes methamphetamine
and marijuana together. Galvan knew he had drugs in his system, which is
why he declined a presumptive test in the field.
The defense called a witness who heard a loud crash and two big loud
pops. The witness called 911 and reported she thought she heard gunshots.
The witness later saw that a concrete gate around the house had crashed to
the ground.

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 III
DISCUSSION
A
Discovery
Galvan contends his state and federal constitutional rights to a fair
trial, confrontation, and effective assistance of counsel were violated when
the prosecutor provided late discovery regarding two issues: (1) the opinion
of the officer who gathered and documented evidence at the scene of the
collision regarding his interpretation of the evidence; and (2) the opinion of
the prosecution toxicologist regarding the significance of the levels of
methamphetamine and marijuana in determining how recently Galvan used
the drugs. Galvan contends the late discovery prevented defense counsel
from investigating the case, thoroughly advising Galvan, effectively cross-
examining witnesses, and presenting a defense. Before we analyze the
contentions, we begin with an overview of the general legal principles
regarding discovery followed by the pertinent procedural background.
1
General Legal Principles
Due process under the United States Constitution requires disclosure
of exculpatory or impeaching evidence to a criminal defendant. (Brady v.
Maryland (1963) 373 U.S. 83, 87 [373 U.S. 83, 87, 83 S.Ct. 1194, 1197, 10
L.Ed.2d 215]; People v. Salazar (2005) 35 Cal.4th 1031, 1042–1043 (Salazar).)
Penal Code sections 1054 through 1054.10 govern discovery in California
criminal cases. These provisions are “the only means by which the defendant
may compel the disclosure or production of information from prosecuting
attorneys ….” (Pen. Code, § 1054.5, subd. (a); People v. Tillis (1998) 18
Cal.4th 284, 294.)

11
 In relevant part, Penal Code section 1054.1 requires a prosecutor to
disclose the “names and addresses of persons the prosecutor intends to call as
witnesses at trial” and “[r]elevant written or recorded statements of
witnesses or reports of the statements of witnesses whom the prosecutor
intends to call at the trial, including any reports or statements of experts
made in conjunction with the case, including the results of physical or mental
examinations, scientific tests, experiments, or comparisons which the
prosecutor intends to offer in evidence at the trial.” (Pen. Code, § 1054.1,
subds. (a), (f).) Penal Code section 1054.7 provides that disclosures should be
made at least 30 days prior to trial or, if the material or information becomes
known within 30 days of trial, “disclosure shall be made immediately.”
Before seeking enforcement of the statutory discovery provisions, a
defendant must first make an informal request for the desired information
and materials. If the information is not produced within 15 days thereafter,
a court may make necessary orders to enforce the statutes, “including, but
not limited to, immediate disclosure, contempt proceedings, delaying or
prohibiting the testimony of a witness or the presentation of real evidence,
continuance of the matter, or any other lawful order.” (Pen. Code, § 1054.5,
subd. (b).) “[C]ourts have broad discretion in determining the appropriate
sanction for discovery abuse, and recognize that sanctions ranging from
dismissal to the giving of special jury instructions may be required in order to
ensure that the defendant receives a fair trial ….” (People v. Jenkins (2000)
22 Cal.4th 900, 951.) Courts should consider other remedies before imposing
a preclusion sanction. (People v. Edwards (1993) 17 Cal.App.4th 1248, 1264–
1265.)
We generally review the court’s ruling regarding discovery matters for
abuse of discretion. (People v. Ayala (2000) 23 Cal.4th 225, 299.) “The proper

12
exercise of a trial court’s discretion under section 1054.7 does not violate a
criminal defendant’s confrontation or due process rights.” (People v.
Thompson (2016) 1 Cal.5th 1043, 1105.) “Conclusions of law or of mixed
questions of law and fact … are subject to independent review.” (Salazar,
supra, 35 Cal.4th at p. 1042.)
2
Procedural Background
a
To consider the context of Galvan’s claims of discovery violations, it is
necessary for us to review how the evidence developed from the beginning of
the case.
Before the preliminary hearing, defense counsel sought and obtained a
continuance for two months to get additional information. As of April 2018,
counsel had obtained the mechanical report and was doing a follow-up
investigation. Counsel also wanted additional information about the
surviving victim’s medical condition. The court denied a further continuance
stating counsel had sufficient information for the preliminary hearing.
On the day set for the preliminary hearing in April 2018, defense
counsel again sought a continuance to further investigate and subpoena the
toxicologist regarding the drug levels and the drug interactions. Defense
counsel stated the levels in the toxicology report were not particularly high
and there was a possible interaction between two drugs. She wanted to
explore the issue with an expert. The court denied the request to continue
the preliminary hearing.
The prosecutor presented evidence at the preliminary hearing of the
toxicology results including the fact that the toxicologist believed marijuana
and methamphetamine were used “recently.” The prosecutor presented

13
evidence of the toxicology report and the toxicologist’s opinion through a law
enforcement officer pursuant to Proposition 115. The toxicologist believed
Galvan was driving under the influence of methamphetamine and marijuana
based on the toxicology results and the results of the field sobriety tests. The
officer who relayed the toxicologist’s opinions stated they were based on her
training, her reading of literature on the effects of methamphetamine and
marijuana on the body, as well as workshops, presentations and personal
observations.
In June 2018, defense counsel sought and obtained a trial continuance
to retain and consult with experts. The prosecutor had provided a list of
questions and answers recorded by the officer who spoke with the toxicologist
to admit her statements at the preliminary hearing. Defense counsel
retained a toxicologist to review the toxicology report and intended to
challenge the prosecution’s conclusions. Defense counsel also knew the law
enforcement officer who investigated the scene held the opinion that the tire
exploded as a result of the collision. Defense counsel contested this opinion
and retained an accident reconstructionist and master mechanic to examine
the photos, reports, and evidence to analyze the officer’s conclusion. Defense
counsel had two mechanical experts explore the possibility mechanical failure
caused the accident as opposed to grossly negligent driving.
b
When trial proceeded in late November 2018, defense counsel moved in
limine to exclude statements not previously disclosed under Penal Code
section 1054.1. Defense counsel requested a hearing under Evidence Code
section 402 (402 hearing) regarding the foundation for testimony from the
officer who took measurements and documented the scene of the collision and
the toxicologist. Defense counsel also sought to exclude the testimony of the

14
officer and the toxicologist as lacking foundation for admissible expert
testimony.
Defense counsel challenged a diagram prepared by the officer based on
his measurements and documentation of the evidence of the crash scene.
Defense counsel also stated it appeared he was merely an officer
investigating the scene and she did not have a statement of what he would
offer as an expert. The prosecutor said she would call the officer to testify
about the evidence he documented at the scene, including where the debris
was found “and the significance of its placement.” He would not be asked to
reconstruct the accident. The court sustained the defense objection to the
officer’s diagram regarding the path of travel of Galvan’s vehicle.
In response to a request for curriculum vitaes (CVs) for prosecution
experts, the prosecutor included a CV for the officer. The prosecutor stated
she would ask the officer his opinion based on the measurements and
observations he made in the field, such as where the tire blew up based on
the location of a piece of tire on the sidewalk next to where the truck hit the
wall.
The court stated it would allow a 402 hearing to establish foundation
for the toxicologist’s opinion regarding “recency” of use of methamphetamine
and marijuana because the toxicologist’s opinions were offered at the
preliminary hearing by a police officer pursuant to Proposition 115. Defense
counsel said she also wanted to question the toxicologist regarding the
interaction of the drugs. The prosecutor explained she had provided defense
counsel a statement before the preliminary hearing stating the toxicologist
was not excluding one drug or the other as both were present and active at
the time of the incident. The prosecutor also said defense counsel could call
the toxicologist if she wanted to clarify the testimony. The court confirmed it

15
would allow a 402 hearing regarding recency of use. The court was familiar
with the toxicologist’s qualifications, but stated it would allow defense
counsel to voir dire her on that issue during trial to make a record.
The next morning, the prosecutor stated she spoke to the toxicologist
the night before to ask for clarification of the toxicologist’s opinion regarding
recent use. The prosecutor provided the toxicologist’s explanation to defense
counsel.
That same morning, defense counsel further argued the officer’s
testimony about his observations did not require expertise. She requested a
witness statement if he intended to testify about inferences to be drawn from
the measurements and observations. The court noted the officer had
provided a statement by way of his diagram and report. The court also stated
there was still time for defense counsel to interview him if she wanted
additional details. The court stated it would also allow defense counsel to
voir dire the officer on his expertise if she wished. The court also commented
that if the prosecutor asked for an expert opinion, she must lay a proper
foundation and the court would listen for an objection.
In further discussions that day regarding a statement by the defendant
that he had last used methamphetamine three weeks before the incident,
defense counsel said she did not understand what the toxicologist was going
to testify to regarding the methamphetamine found in Galvan’s system and
the timeframe for use. The prosecutor explained she had clarified with the
toxicologist and verbally advised defense counsel the toxicologist said, “ ‘in
the most extreme scenario, assuming that the overdose level of
methamphetamine was taken, the latest back that would go would be 48
hours, which is not three weeks.’ ”

16
 The following morning, defense counsel complained that the prosecutor
had sent an email at 7:30 the prior evening with witness statements. She
complained these were after the 30-day disclosure deadline. The prosecutor
said the officer would offer an opinion that the tire blew out after the car hit
the curb based on the location of the debris. The prosecutor also provided a

statement from the toxicologist regarding recent use.1
Defense counsel argued she was at a disadvantage to being able to
effectively cross-examine the officer and the toxicologist. Defense counsel
asked for a trial continuance to consult with experts.
The prosecutor stated the email merely summarized the discussion
they had with the court the previous day. The statement regarding the
toxicologist was in response to defense counsel’s request to clarify recent use
and was provided to save time with a 402 hearing.
As to the officer’s statement, the email said, “the tire fragments
location suggest that it impacted when it hit the wall because there wasn’t

1 Defense counsel also complained the email contained a statement that
the officer believed the damage to the back of Galvan’s truck could not have
been caused by a rear-end collision by witness B.G. based on the profile of the
vehicles. The prosecutor stated she did ask the officer about the back bumper
to respond to Galvan’s comment that he thought a truck hit him. The
prosecutor had other evidence that Galvan was rear-ended the day before by
a different vehicle. The prosecutor pointed out that the issue of how the
collision occurred was always an issue and the investigating officer should be
allowed to testify as to his observations based on his experience. The court
agreed the issue of how damage was caused to the back of Galvan’s vehicle
had been apparent since the beginning of the case, noting police officers
photographed Galvan’s back bumper days after the incident. Ultimately, the
officer did not offer such an opinion at trial. Other evidence was presented
regarding Galvan’s prior collision and the fact B.G.’s vehicle had no front-end
damage.

17
any tire in the road.” The prosecutor said this was the officer’s impression
based on his observations rather than new expert testimony.
After a break in the discussion, defense counsel asked for a mistrial or
to continue the trial based on the email statements. The court denied the
motion for mistrial concluding there was no misconduct and no prejudicial
action by the prosecution. The court did not find there were any discovery
violations, with the exception of the prosecution’s failure to provide a witness
list 30 days before trial. However, the court found no prejudice from that
delay. The court stated the nature of trials is that both sides continue to
speak to their witnesses until they testify and the prosecution was not
precluded from exploring the case or continuing to investigate. The statutory
obligation requires the prosecution to provide new information to the defense
immediately, which was done. The court noted the issue with the toxicologist
was evident since the preliminary hearing and anyone could have contacted
her earlier for clarification. The court denied a request for trial continuance
noting a three-day weekend was approaching.
Before the toxicologist testified, the court conducted a 402 hearing
regarding the foundation for her opinion about recent use. The toxicologist
said recent use is typically defined as within 48 hours. Based on the amount
of methamphetamine and amphetamine in Galvan’s blood sample, the
toxicologist estimated the use would have been within 48 hours, at most. The
level of active compounds for marijuana also strongly indicated use within
hours of the blood draw (as opposed to days or weeks).
After the hearing, defense counsel asked for an opportunity to review
the literature the toxicologist relied upon to develop cross-examination. The
court again stated the issue of recent use had been apparent since the
preliminary hearing. The court noted counsel had a long weekend to do

18
additional research. The court said it would allow defense counsel to recall
the toxicologist if the research suggested an area for cross-examination that
was not yet apparent.
3
Analysis
Based on our review of the entire record, we conclude the court did not
abuse its discretion in denying the motion for mistrial or in admitting the
testimony of the toxicologist and the investigating officer. Neither the
witnesses nor the statements provided by the prosecutor were a surprise to
the defense.
As the trial court determined, the toxicologist’s opinion about recent
use based on the levels of methamphetamine and marijuana found in
Galvan’s blood hours after the incident was an issue before the preliminary
hearing. Defense counsel had the toxicology report with the toxicologist’s
contact information. “ ‘Although the prosecution may not withhold favorable
and material evidence from the defense, neither does it have the duty to
conduct the defendant’s investigation for him. [Citation.] If the material
evidence is in a defendant’s possession or is available to a defendant through
the exercise of due diligence, then … the defendant has all that is necessary to
ensure a fair trial ….’ ” (People v. Zambrano (2007) 41 Cal.4th 1082, 1134.)
Indeed, defense counsel consulted with a toxicology expert.
Defense counsel extensively cross-examined the toxicologist during
trial. She inquired about the toxicologist’s training and qualifications
pointing out the toxicologist was not a pharmacologist, a medical doctor, or a
neurologist. Defense counsel cross-examined the toxicologist based on
literature describing the use of amphetamines by pilots in World War II and
some literature describing medicinal use for methamphetamine. She

19
questioned the toxicologist regarding the medicinal use of a synthetic form of
cannabis and suggested users could build a tolerance that would not impair
driving. She pointed out the testing did not establish when Galvan used
marijuana and methamphetamine, how much he used, his tolerance, or his
level of impairment. Defense counsel pointed out there is not an established
half-life for marijuana and questioned the toxicologist’s conclusions regarding
the window of use within 48 hours based on the half-life for
methamphetamine.
Similarly, the issue of the investigating officer’s testimony about when
or how the tire blew was not new. As early as June 2018, defense counsel
knew the law enforcement officer who investigated the scene held the opinion
that the tire popped as a result of the collision and defense counsel had
retained two experts to analyze this opinion. At that time, defense counsel
had witness statements, photos and the collision report, which included a
diagram of where evidence was found and showed no evidence collected in the
street. Defense counsel retained experts prior to trial to evaluate this
evidence as well as a possible defense based on mechanical failure. Although
these experts did not testify, defense counsel cross-examined the
investigating officer regarding his investigation and opinion. Defense counsel
pointed out the officer did not document some items of debris in the roadway,
which he did not believe were connected to the incident, and he did not
thoroughly examine the tires.
Galvan has established no prejudicial misconduct on the part of the
prosecutor in providing an email summary during trial clarifying the
anticipated testimony of these two witnesses. There was no prejudicial
discovery violation and no violation of his rights to due process, confrontation,
or effective assistance of counsel.

20
 B
Jury Instructions
Galvan contends his constitutional rights were violated and counts 1
and 2 should be reversed because the court declined to instruct the jury
regarding accident as a defense and declined to provide an instruction
regarding proximate cause. We consider each instruction after setting forth
general legal principles and a summary of the instructions given.
1
General Principles
Generally, “a trial court must give a requested jury instruction if there
is substantial evidence in the record supporting such an instruction.
[Citation.] ‘In determining whether the evidence is sufficient to warrant a
jury instruction, the trial court does not determine the credibility of the
defense evidence, but only whether ‘there was evidence which, if believed by
the jury, was sufficient to raise a reasonable doubt.” ’ [Citation.] ‘On appeal,
we likewise ask only whether the requested instruction was supported by
substantial evidence—evidence that, if believed by a rational jury, would
have raised a reasonable doubt as to’ an element of the crime in question.”
(People v. Mitchell (2019) 7 Cal.5th 561, 583 (Mitchell).)
We independently review claims of instructional error, including the
legal adequacy of jury instructions. (Mitchell, supra, 7 Cal.5th at p. 579,
citing People v. Cole (2004) 33 Cal.4th 1158, 1210.) “The proper test for
judging the adequacy of instructions is to decide whether the trial court ‘fully
and fairly instructed on the applicable law ….’ [Citation.] ‘ “In determining
whether error has been committed in giving or not giving jury instructions,
we must consider the instructions as a whole … [and] assume that the jurors
are intelligent persons and capable of understanding and correlating all jury

21
instructions which are given. [Citation.]” ’ [Citation.] ‘Instructions should be
interpreted, if possible, so as to support the judgment rather than defeat it if
they are reasonably susceptible to such interpretation.’ ” (People v. Martin
(2000) 78 Cal.App.4th 1107, 1111–1112.)
2
Instructions Given
a
For count 1, gross vehicular manslaughter while intoxicated, the court
instructed the jury with CALCRIM No. 590, which advised the jury the
People were required to prove: “1. The defendant drove under the influence
of a drug; [¶] 2. While driving that vehicle under the influence of a drug, the
defendant also committed an infraction; [¶] 3. The defendant committed the
infraction with gross negligence; [¶] AND [¶] 4. The defendant’s grossly
negligent conduct caused the death of another person.” The instruction
defined gross negligence as “more than ordinary carelessness, inattention or
mistake in judgment” and advised the jury a person “acts with gross
negligence when he or she acts in a reckless way that creates a high risk of
death or great bodily injury; and a reasonable person would have known that
acting in that way would create such a risk.” It advised the jury that gross
negligence “is so different from the way an ordinarily careful person would
act in the same situation that his or her act amounts to disregard for human
life or indifference to the consequences of that act.” It further stated that the
combination of driving a vehicle under the influence of a drug and violating a
traffic law was not enough to establish gross negligence.
At the request of the defense, the court gave the bracketed portion of
CALCRIM No. 590 for a person facing imminent peril, which stated, “A
person facing a sudden and unexpected emergency situation not caused by

22
that person’s own negligence is required only to use the same care and
judgment that an ordinarily careful person would use in the same situation,
even if it appears later that a different course of action would have been
safer.” The court stated it did not believe this was a proximate cause case.
Defense counsel agreed the bracketed portions of CALCRIM No. 590
regarding natural and probable consequences and multiple causes were not
applicable.
b
For count 2, causing injury to another person while driving under the
influence of a drug, the court instructed the jury with CALCRIM No. 2100,
which required the prosecution to prove: “1. The defendant drove a vehicle;
[¶] 2. When he drove a vehicle, the defendant was under the influence of a
drug; [¶] 3. While driving a vehicle under the influence, the defendant also
committed an illegal act or neglected to perform a legal duty; [¶] AND [¶]
4. The defendant’s illegal act or failure to perform a legal duty caused bodily
injury to another person.” This instruction further explained a person is
under the influence “if, as a result of taking a drug his or her mental or
physical abilities are so impaired that he or she is no longer able to drive a
vehicle with the caution of a sober person, using ordinary care, under similar
circumstances.” It defined ordinary care as “using reasonable care to prevent
reasonably foreseeable harm to someone else. A person fails to exercise
ordinary care if he or she does something that a reasonably careful person
would not do in the same situation or fails to do something that a reasonably
careful person would do in the same situation.”
c
After the court instructed the jury and excused the jury for a break
before closing arguments, defense counsel asked the court to instruct with

23
CALCRIM No. 3404 regarding the accident defense. The court and counsel
reviewed the use notes for CALCRIM No. 3404 along with secondary
authority cited therein and the case of People v. Boulware (1940) 41
Cal.App.2d 268, 269–270 (Boulware), which involved a drunk driver who
swerved to avoid an oncoming truck.
Defense counsel argued Galvan heard a loud noise and reacted to it,
like a driver who swerves to avoid a car. Counsel also asked the court to give
the bracketed portion of CALCRIM No. 590 regarding natural and probable
consequence based on the Boulware case. Defense counsel argued they did
not know the cause of the sound and there was evidence of free play in the
wheel going to the issue of causation.
The court declined to give the accident instruction stating the jury had
been “well instructed on the mental state that has to be found and the
different degrees of negligence.” The court also declined to give a proximate
cause instruction noting it was a factor already given. The court again said it
did not see a proximate cause issue. The court did not believe a reasonable
jury following the law could conclude the loud noise was the proximate cause
of the victims’ injuries.
3
Accident
Penal Code section 26 states the statutory defense of accident: “All
persons are capable of committing crimes except those belonging to the
following classes: [¶] … [¶] Five—Persons who committed the act or made
the omission charged through misfortune or by accident, when it appears that
there was no evil design, intention, or culpable negligence.”
The Supreme Court has stated “statutory provisions codifying ‘a
defense for an actor who commits the act or omission constituting an offense

24
“through misfortune or by accident, when it appears that there was no evil
design, intention, or culpable negligence.” … [¶] … have historical
significance, [but] are now unnecessary restatements, in a defense format, of
the requirements of the definitional elements of an offense. To say that it is a
defense that the criminal conduct or omission was committed by a non-
negligent accident, is simply to say that all result element offenses [i.e.,
offenses that require an intent to produce a particular result] require at least
proof of negligence as to causing the prohibited result. This is already made
clear by the culpability requirements of specific offense definitions ….’
[Citation.] A trial court’s responsibility to instruct on accident therefore
generally extends no further than the obligation to provide, upon request, a
pinpoint instruction relating the evidence to the mental element required for
the charged crime.” (People v. Anderson (2011) 51 Cal.4th 989, 997.)
CALCRIM No. 3404 describes the defense of accident for crimes
involving criminal negligence as follows: “The defendant is not guilty of [the
charged crime] if (he/she) acted or failed to act accidentally without criminal
negligence. You may not find the defendant guilty of [the charged crime]
unless you are convinced beyond a reasonable doubt that (he/she) acted with
criminal negligence.”
The use notes for CALCRIM No. 3404 refer to 1 Witkin & Epstein,
California Criminal Law (4th ed. 2020), Defenses section 273, which explains
the principal application of the accident defense is in the law of homicide.
However, in citing examples of a few other situations where accident defense
applied, the use note includes the Boulware case relied upon by Galvan. The
court in Boulware held an instruction regarding imminent peril should have
been given when a drunk driver testified he swerved to avoid an approaching

25
car and collided with another vehicle. (Boulware, supra, 41 Cal.App.2d at
pp. 269–270.)
The use notes for the vehicular manslaughter instructions, CALCRIM
Nos. 590 through 592, also cite the Boulware case and advise, “If there is
sufficient evidence and the defendant requests it, the court should instruct on
the imminent peril/sudden emergency doctrine.” The use notes direct the
court to give the following bracketed language: “A person facing a sudden
and unexpected emergency situation not caused by that person’s own
negligence is required only to use the same care and judgment that an
ordinarily careful person would use in the same situation, even if it appears
later that a different course of action would have been safer.” (Use Notes to
CALCRIM Nos. 590–592.) This language tracks the language approved by

the court in Boulware, supra, 41 Cal.App.2d at pages 269–270.2
Thus, although the court declined to give CALCRIM No. 3404 as a
pinpoint instruction for the accident defense, it instructed the jury with the
language approved in Boulware for accident in the face of imminent danger

2 In Boulware, the defendant requested the following instruction: “ ‘A
person who, without negligence on his part, is suddenly confronted with
unexpected and imminent danger, either to himself or to others, is not
expected, nor required, to use the same judgment and prudence that is
required of him in the exercise of ordinary care, in calmer and more
deliberate moments. His duty is to exercise only the care that an ordinarily
prudent person would exercise if confronted with the same
unexpected danger, under the same circumstances. If at that moment he
does what appears to him to be the best thing to do, and if his choice and
manner of action are the same as might have been followed by any ordinarily
prudent person under the same conditions, he does all the law requires of
him, although, in the light of after-events, it should appear that a different
course would have been better and safer.’ ” (Boulware, supra, 41 Cal.App.2d
at pp. 269–270, italics omitted.) The Boulware court stated the proposed
instruction “correctly stated the law apropos to defendant’s theory of the
reason for the accident.” (Id. at p. 270.)

26
in the instruction for gross vehicular manslaughter while intoxicated
(CALCRIM No. 590) and in each of the lesser included offenses to count 1,
which included vehicular manslaughter while intoxicated with ordinary
negligence (CALCRIM No. 591), gross vehicular manslaughter (CALCRIM
No. 592), and misdemeanor vehicular manslaughter (CALCRIM No. 593).
Additionally, the jury was fully instructed regarding the applicable
degrees of criminal negligence (from gross negligence to ordinary negligence)
required for Galvan to be convicted of the charged crimes or the lesser
included offenses. Defense counsel argued Galvan did not have the criminal
intent for the charged crimes. Counsel argued he was scared by a loud noise
and responded by turning the wheel, which had five inches of free play. In
finding Galvan guilty of gross vehicular manslaughter while intoxicated the
jury necessarily rejected the defense theory that Galvan acted without
criminal negligence.
Therefore, even assuming the court erred in not giving the accident
instruction on request, the error was not structural and was harmless under
any standard. (Chapman v. Cal. (1967) 386 U.S. 18, 24; People v. Watson
(1956) 46 Cal.2d 818, 836.)
3
Proximate Cause
For count 1, the jury was instructed they must find Galvan’s “grossly
negligent conduct caused the death of another person.” For count 2, causing
injury to another person while driving under the influence of a drug, the jury
was instructed they must find Galvan’s illegal conduct in driving a vehicle
under the influence “caused bodily injury to another person.”
The use notes for the vehicular manslaughter instructions state, “[i]f
causation is at issue, the court has a sua sponte duty to instruct on proximate

27
cause.” (Use Note to CALCRIM Nos. 590–593, citing People v. Bernhardt
(1963) 222 Cal.App.2d 567, 590–591.) In Bernhardt, two doctors of
chiropractic medicine were charged with manslaughter when a patient under
their care died shortly after giving birth to a child. (Id. at pp. 570–571.)
There was conflicting evidence regarding whether the patient’s death was
caused by postpartum hemorrhage due to the criminally negligent conduct of
the defendants or by an embolism for which no act of any defendant was
responsible. The court concluded it was error to fail to instruct on proximate
causation in such a situation. (Id. at pp. 590–591.)
Here, in contrast, there was undisputed medical evidence that the
death of S.A. and the significant injuries to C.S. were caused by the trauma of
Galvan’s vehicle running over them after he drove over a curb and down the
sidewalk. There was no evidence either S.A. or C.S. had an unrelated
medical condition that contributed to their injuries or, in the case of S.A., his
death.
There was also no evidence of an unforeseeable intervening or
contributing cause for their injuries. This was not a situation, for example,
where Galvan’s conduct set off a chain reaction that ultimately resulted in
the injuries and death. Although there was some evidence of free play in the
steering wheel, there was absolutely no evidence this was an unforeseeable
intervening cause. Galvan testified he had no problems with braking or
steering the truck. The officer who inspected Galvan’s vehicle testified there
were no mechanical issues that could have caused a catastrophic failure.
Thus, the issue for the jury was not causation, but whether Galvan
acted with gross negligence in driving the vehicle while impaired which
ultimately caused the victims’ injury and death. The evidence established
that Galvan drove while under the influence of both methamphetamine and

28
marijuana and, after making an unindicated left turn, he abruptly turned
back toward the main roadway in such a reckless manner that his vehicle
jumped a curb, hit a wall, and he drove on the sidewalk for more than 50 feet
without hitting the brakes before running over S.A. and C.S. and crashing
into a concrete pillar.
Having rejected the defense arguments that Galvan did not act with
gross negligence, no reasonable jury could have found that Galvan’s actions
were not a substantial factor in causing S.A.’s death and C.S.’s injuries.
(People v. Burnett (2003) 110 Cal.App.4th 868, 879, citing People v. Bland
(2002) 28 Cal.4th 313, 338.) Therefore, even if we were to assume it was
error not to instruct the jury with language regarding natural and probable
consequences, such error was harmless under any standard.
C
Convictions for Vehicular Manslaughter and DUI Causing Injury
To preserve the issue for further review, Galvan contends the judgment
of guilt for count 2 should be vacated based upon the double jeopardy clause
and Penal Code sections 654 and 1023 because he committed only one
criminal act by driving while under the influence of drugs, but was convicted
of two criminal offenses.
The Supreme Court held in McFarland, supra, 47 Cal.3d 798 that a
defendant driving under the influence in one incident may be convicted and
punished separately for vehicular manslaughter with gross negligence as to
one victim, which is a crime of violence under the Penal Code, and for drunk
driving causing injury to another victim, which is a violation of the Vehicle
Code. (Id. at pp. 803–804.) Galvan acknowledges we are bound by this
precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.) We also conclude count 2 as to victim C.S. is not a lesser included

29
offense of count 1 because separate victims are involved. (See People v. Reed
(2006) 38 Cal.4th 1224, 1231; McFarland, at p. 804.)
D
Count 2 Great Bodily Injury Enhancement Under Penal Code Section 12022.7
The jury found true an allegation that Galvan personally inflicted great
bodily injury on S.A. within the meaning of Penal Code section 12022.7,
subdivision (a) in connection with Galvan’s count 2 conviction for driving
under the influence of drugs causing injury to C.S. (Veh. Code, § 23153,
subd. (f)). Although the trial court stayed punishment for this enhancement
under Penal Code section 654, Galvan contends the true finding of great
bodily injury as to S.A. should be stricken pursuant to Penal Code
section 12022.7, subdivision (g) because he was separately convicted of gross
vehicular manslaughter in count 1 for the death of S.A. We disagree.
Penal Code section 12022.7, subdivision (a) provides, “Any person who
personally inflicts great bodily injury on any person other than an accomplice
in the commission of a felony or attempted felony shall be punished by an
additional and consecutive term of imprisonment in the state prison for three
years.”
However, Penal Code section 12022.7, subdivision (g) limits the
application of this enhancement for certain offenses: “This section shall not
apply to murder or manslaughter or a violation of Section 451 [arson] or 452
[unlawfully causing a fire]. Subdivisions (a), (b), (c), and (d) shall not apply if
infliction of great bodily injury is an element of the offense.”
In People v. Cook (2015) 60 Cal.4th 922, the Supreme Court addressed
the question of whether a defendant convicted of multiple counts of gross
vehicular manslaughter may be subjected to sentencing enhancements for
great bodily injury inflicted on deceased victims in other manslaughter

30
counts or for injuries inflicted on a surviving victim. (Id. at p. 925.) The
Supreme Court concluded “subdivision (g) of [Penal Code] section 12022.7
means what it says: Great bodily injury enhancements do not apply to a
conviction for murder or manslaughter. A defendant convicted of murder or
manslaughter who also commits crimes against other victims may be
convicted of those additional crimes and, to the extent the sentencing laws
permit, punished separately for them. But the sentence for manslaughter
may not be enhanced for the infliction of great bodily injury as to anyone.”
(Id. at p. 924.) Because the issue was not presented in the case before it, the
Supreme Court did not reach the question of “whether and, if so, how great
bodily injury enhancements may attach to other crimes for a defendant who
is convicted of murder or manslaughter as well as those other crimes.” (Id. at
p. 938, fn. 3.)
The case of People v. Lamb (2017) 8 Cal.App.5th 137, 139 involved a
defendant convicted of both involuntary manslaughter and assault by means
of force likely to produce great bodily injury as to a single victim. The Lamb
court concluded Penal Code section 12022.7, subdivision (g) prohibits the
enhancement for charged offenses involving “murder, manslaughter, arson,
unlawfully causing a fire, or an offense whose elements include the infliction
of great bodily injury,” but the statute is “silent as to whether it applies to
other offenses brought within the same criminal proceeding.” (Id. at p. 144.)
The court concluded the trial court did not err in imposing the great bodily
injury enhancement for a nonprohibited crime, such as assault, and staying
punishment for that enhancement pursuant to Penal Code section 654. (Id.
at pp. 139, 145.)
Likewise, Galvan’s conviction for driving under the influence of drugs
causing injury to C.S. (Veh. Code, § 23153, subd. (f)) is not an offense for

31
which Penal Code section 12022.7, subdivision (g) prohibits application of the
great bodily injury enhancement of Penal Code section 12022.7,
subdivision (a). The fact S.A. died because of the great bodily injury and
Galvan was separately convicted for his manslaughter does not change the
analysis as to the application of the great bodily injury enhancement to count
2. Therefore, the court did not err in imposing, but staying, the punishment
for the great bodily injury enhancement for S.A. in connection with Galvan’s
conviction for count 2.
E
Fines and Fees
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, Galvan
contends the court violated his constitutional rights of due process and
protection against excessive fines by imposing fines and fees without
determining he has the ability to pay them. Galvan asks us to vacate the
fines and fees unless and until the trial court holds an ability to pay hearing.
The People contend the restitution fine was constitutional and any due
process violation in imposing the non-punitive fees without a determination
of Galvan’s ability to pay was harmless beyond a reasonable doubt. We
conclude Galvan forfeited this claim.
“At the core of the Dueñas opinion is its holding that imposition of
fines, fees or assessments without a hearing on ability to pay denies due
process. It was that court’s view it was the trial court’s duty to hold a
hearing and thus failure to seek a hearing did not result in forfeiture.
Further, the court found that the burden to prove ‘present’ ability to pay was
on the prosecution. Other courts, including this court, have disagreed with
Dueñas on these key principles.” (People v. Keene (2019) 43 Cal.App.5th 861,
863; see, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, 327, review granted

32
Nov. 26, 2019, S258946 [rejecting the Dueñas due process analysis for fines
and fees]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1061 [applying
excessive fine analysis for restitution fines]; and People v. Kopp (2019)
38 Cal.App.5th 47, 95–96 (Kopp), review granted Nov. 13, 2019, S257844
[concluding a defendant who requested ability to pay hearing bears burden of
proof and applying due process analysis to court assessments and excessive
fines analysis to restitution fines].)
We conclude it is not necessary for us to reach these broader issues in
this case and it is not prudent for us to do so given that the Supreme Court is
currently considering the viability of Dueñas as it pertains to a criminal
defendant’s ability to pay assessed fines and fees.
The jury here returned guilty verdicts in December 2018, and
sentencing was set for January 11, 2019. Galvan’s probation report
recommended a maximum restitution fine of $10,000 (Pen. Code, § 1202.4)
and various assessed fees totaling an additional $364.3
After the judge indicated he planned to “impose fines and fees outlined
by Probation”, defense counsel asked the court to “consider reducing the
restitution fine based on an inability to pay.” Counsel did not suggest an
amount, nor did she otherwise comment on what Galvan could conceivably
pay. When the court responded that it would reduce the restitution fine to
$2,000, counsel said nothing further.
Penal Code section 1202.4 authorizes a restitution fine of up to $10,000
in felony cases, and requires a sentencing court to impose a minimum fine of
$300 notwithstanding a defendant’s inability to pay that amount. Dueñas

3 The fees and assessments included $120 in court security fees (Pen.
Code, § 1465.8); a $90 conviction assessment (Gov. Code, § 70373); and a $154
criminal justice administration fee (Gov. Code, § 29550.1).

33
considered whether a minimum fine imposed under the statute was
constitutional. But even before the Dueñas decision, which was issued only
three days before Galvan’s sentencing hearing, it was clear that a defendant’s
ability to pay was a relevant consideration in determining whether to impose
a restitution fine greater than the statutory minimum. (§ 1202.4, subds. (c)
and (d).) This likely explains why Galvan’s counsel asked the court to reduce
the amount of the restitution fine without mentioning Dueñas.
It was defendant’s burden to explain to the court why it should impose
a lesser amount than was proposed. (§ 1202.4, subd. (d); People v. Avila
(2009) 46 Cal.4th 680, 729 (Avila).) Notwithstanding some broad language in
Dueñas, cases since then—including decisions from the same court that
decided Dueñas—have concluded that even when challenging a minimum
fine, defendants bear the initial burden of (1) advising the court that they are
unable to pay the fines and/or fees that the court proposes to assess, and
(2) introducing minimal evidence to support that assertion. (E.g., People v.
Castellano (2019) 33 Cal.App.5th 485, 490 [“a defendant must in the first
instance contest in the trial court his or her ability to pay the fines, fees and
assessments to be imposed”]; Kopp, supra, 38 Cal.App.5th at p. 96 [“it is
Appellants’ burden to make a record below as to their ability to pay these
assessments”].) The failure to do so means an appellate challenge based on
ability to pay is forfeited. (Avila, at p. 729.)
This is not a case in which defense counsel totally failed to mention the
defendant’s inability to pay. But counsel never quantified what she believed
Galvan was reasonably able to pay. When the sentencing judge proposed an
80 percent reduction of the amount suggested by the probation department,
counsel raised no objection. Her silence may be deemed acquiescence.

34
 Galvan was obligated to tell the court not merely that the maximum
fine of $10,000 was excessive, but also that the $2,000 proposed by the trial
judge was too much if he was unable to pay that amount. Having failed to do
so, the argument regarding his inability to pay the assessed restitution fine is
forfeited. (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.) Moreover,
because he did not object to the $2,000 restitution fine, Galvan has similarly
forfeited any challenge to the fees and assessments totaling $364. (Ibid.)
F
Cumulative Error
Because we find no prejudicial error as to each of Galvan’s asserted
claims, it follows that any cumulative effect of the claimed errors “ ‘does not
warrant reversal of the judgment.’ ” (People v. Jablonski (2006) 37 Cal.4th
774, 825.)
G
Prior Prison-Term Enhancements
Galvan admitted, and the court found true, an allegation he had a prior
prison term for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)).
The court imposed a one-year term pursuant to former Penal Code
section 667.5, subdivision (b), but stayed the punishment.
While this appeal was pending, the Governor signed Senate Bill
No. 136 (Stats. 2019, ch. 590, § 1), which amended Penal Code section 667.5,
subdivision (b) to eliminate one-year sentence enhancements for all prior
prison terms except those served for a sexually violent offense within the
meaning of Welfare and Institutions Code section 6600, subdivision (b). The
amendment became effective January 1, 2020. Although Galvan did not raise
this issue on appeal or request supplemental briefing on this point, we may

35
consider and correct an unauthorized sentence at any time. (In re Sheena
K. (2007) 40 Cal.4th 875, 887.)
Galvan is entitled to the ameliorative change in the law under the
amended statute because the judgment against him is not yet final. (In re
Estrada (1965) 63 Cal.2d 740; People v. Jennings (2019) 42 Cal.App.5th 664,
682.) Since his prison prior does not qualify for enhancement under amended
Penal Code section 667.5, subdivision (b), the one-year prior prison term
enhancement can no longer be imposed. (People v. Gastelum (2020) 45
Cal.App.5th 757, 772.) Because the trial court stayed the imposed term, we
conclude it is unnecessary to remand the matter for the court to exercise its
sentencing discretion anew. (People v. Buycks (2018) 5 Cal.5th 857, 896,
fn. 15.) Accordingly, we strike the one-year prior prison enhancement and
affirm the judgment as modified.

36
 IV
DISPOSITION
The judgment is modified to strike the stayed one-year prior prison
term enhancement imposed under former Penal Code, section 667.5,
subdivision (b). As so modified, the judgment is affirmed. The trial court is
directed to amend the abstract of judgment accordingly and to forward it to
the Department of Corrections and Rehabilitation. In all other respects, the
judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

AARON, J.

DATO, J.

37