People v. Dean CA4/1

Filed 9/30/20 P. v. Dean CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D074371

Plaintiff and Respondent,

v. (Super. Ct. No. SCN358872)

TYLER JAMES DEAN et al.,

Defendants and Appellants.

APPEALS from judgments of the Superior Court of San Diego County,
Richard R. Monroy, Judge. Reversed and remanded with instructions.

Athena Shudde, under appointment by the Court of Appeal, for
Defendant and Appellant Tyler James Dean.
Christian C. Buckley, under appointment by the Court of Appeal, for
Defendant and Appellant Kevin Garcia.
Joanna McKim, under appointment by the Court of Appeal, for
Defendant and Appellant Ryan Valdez.
 Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney
General, A. Natasha Cortina and Christine Levingston Bergman, Deputy
Attorneys General, for Plaintiff and Respondent.
Tyler James Dean, Kevin Garcia, and Ryan Valdez (collectively, the
defendants) were convicted of second-degree murder in violation of Penal

Code1 section 187, subdivision (a) and the jury also found true an allegation
that the murder was committed for the benefit of a criminal street gang.
Valdez was sentenced to 15 years to life; Garcia was sentenced to 15 years to
life, with an additional one-year term imposed for a prison prior pursuant to
section 667.5, subdivision (b); and Dean was sentenced to 30 years to life,
including an enhancement for a strike prior pursuant to section 667,
subdivision (b), with an additional one-year term imposed for a prison prior
pursuant to section 667.5, subdivision (b).
Dean, Garcia, and Valdez appeal. They assert that their convictions
must be reversed because the jury was instructed that it could find them
guilty based on the natural and probable consequences theory, which was
subsequently eliminated by Senate Bill No. 1437; that the superior court
erred by refusing to give the jury an instruction on involuntary
manslaughter; that the prosecutor committed prejudicial misconduct; that
the evidence was not sufficient to support the convictions; that the superior
court erred by denying their motion to access juror contact information to
investigate potential juror misconduct; and that the cumulative effect of
these errors was prejudicial. In addition, they assert that the superior court
erred by imposing certain fines and fees without determining that each had
the ability to pay. Finally, Garcia asserts, and the People concede, that his

1 All further statutory references are to the Penal Code unless otherwise
indicated.
2
abstract of judgment must be amended to reflect the fact that he was
convicted by a jury and to strike a one-year enhancement pursuant to section
667.5, subdivision (b).
We agree with the points the People have conceded and remand with
instructions for the superior court to amend the abstracts of judgment for
Garcia and Dean. We also agree that the superior court should have at least
contacted the remaining jurors and held a hearing pursuant to section 237.
We therefore conditionally reverse the judgments and remand the matter to
the superior court with instructions for the superior court to do so. We are
not persuaded by the remaining arguments and affirm the judgments in all
other respects. If further investigation does not reveal prejudicial juror
misconduct, the superior court may reinstate the judgments as modified.
FACTUAL AND PROCEDURAL BACKGROUND
Hugh Pettigrew was an African American man in his mid-30’s that
stood approximately six feet, eight inches tall and weighed approximately 400
pounds. In January 2016, he was staying with his stepmother and a number
of other family members in an apartment in Fallbrook.
The Assault
On the evening of January 22, 2016, another family member, Russell

H.,2 saw Pettigrew at a nearby McDonald’s. Russell bought Pettigrew some
food and then returned to the apartment while Pettigrew ate. Pettigrew left
McDonald’s at approximately 10:34 p.m. and began walking back to the
apartment alone.
Around the same time, video surveillance captured three young men
arriving in the parking lot of an Albertson’s approximately halfway between

2 In accordance with California Rules of Court, rule 8.90(b), we refer to
certain individuals by their first name and last initial, and thereafter by their
first name only, to protect their privacy. No disrespect is intended.
3
the McDonald’s and the apartment Pettigrew was walking to. The three men
exited the red Honda Civic they were riding in, walked down the street
towards Pettigrew, ran across the street towards him, assaulted him, and
then ran back to the car in the Albertson’s parking lot and left.
Pettigrew managed to return to the apartment and knocked on the door
shortly before 11:00 p.m. When the door opened, Pettigrew collapsed onto the
floor and said, “Mom, I’m hurt.” Russell realized Pettigrew was bleeding and
Pettigrew asked if he had been stabbed. Russell lifted Pettigrew’s shirt and
saw a significant amount of blood around his back and torso. Pettigrew’s
stepmother attempted to place pressure on the wounds to stop the bleeding
and Russell and Pettigrew’s sister, who was also at the apartment at the
time, each called 911.
Pettigrew told his stepmother that he was “jumped” and said, “[t]hey
didn’t want to fight me, Mama,” “they got me,” and “I’ve been stabbed.” She
asked who “they” were, and he told her that they were gang members, that
there were three or four of them, and that one of them was wearing a hoodie
and one was wearing some sort of face covering. Russell also recalled that
Pettigrew said, “they got me,” that he wanted to just fight but that they did
not want to fight, that there were three to five “eses,” and that they were
wearing hoodies and a mask.
Deputy Sheriff Minami responded to the 911 call at approximately
10:50 p.m. When he arrived, Pettigrew was on his knees, leaning on a chair,
yelling, “Don’t let me die.” Deputy Minami immediately began first aid. He
asked Pettigrew if he had any problems with anyone in the area and
Pettigrew responded that he did not and that he was just walking home when
three or four Hispanic men with masks stabbed him. The paramedics arrived

4
and started treating Pettigrew. Deputy Minami stayed at the scene and
photographed Pettigrew’s injuries.
The Initial Investigation
After the paramedics took Pettigrew in an ambulance, Deputy Minami
followed the blood trail from the apartment to the Albertson’s. Another
detective, Jenkins, joined him and took some photographs of the bloodstains.
She also collected a receipt, a marijuana pipe, and a coke bottle from the
parking lot near where the bloodstains ended. She then returned to the
apartment and collected articles of clothing that Pettigrew had been wearing,
as well as Pettigrew’s cell phone. At this point, Pettigrew was still alive and,
thus, the investigation was treated as an assault investigation.
Pettigrew’s Injuries and Resulting Death
Deputy Harrell accompanied Pettigrew to the hospital in an
ambulance. Pettigrew lost consciousness during the ambulance ride. He
arrived at the hospital in a state of shock and was immediately intubated.
The attending physician noted four stab wounds in and around Pettigrew’s
right lower chest, a larger wound in his left lower abdomen, and smaller
wounds on his left flank, left thigh, and left eye. The stab wound in the
abdomen caused a hernia that had to be surgically repaired and Pettigrew
also had extensive bleeding in his right chest.
After Pettigrew was taken into surgery, Deputy Harrell encountered a
number of family members in the lobby. Russell indicated that Pettigrew
had told him he was attacked by five individuals that were approximately 17
or 18 years old.
The surgeon was able to successfully repair Pettigrew’s hernia, but
Pettigrew went into respiratory failure after the surgery. In addition, there
was continued bleeding in Pettigrew’s right chest cavity that required

5
additional surgical interventions. Despite these additional interventions,
Pettigrew developed further complications, including a serious heart
arrhythmia that eventually led to cardiac arrest. On February 9, 2016,
Pettigrew died from the culmination of the multiple injuries and related
complications.
An autopsy revealed multiple sharp force injuries, including eight to
Pettigrew’s torso and two to his extremities. There were also incisions from a
surgery to repair the hernia caused by one of the sharp force injuries to the
abdomen. Pettigrew had fluid in his lungs and severe lung damage. The
medical examiner concluded that Pettigrew died as a result of the sum total
of his injuries and complications that arose from those injuries and ruled the
cause of death a homicide.
The Subsequent Murder Investigation
After Pettigrew’s death, the case became a homicide investigation.
By that time, detectives had collected video surveillance from the
McDonald’s, Albertson’s, and other nearby businesses, including the footage
of the three males running across the street towards Pettigrew just prior to
the assault. They identified Garcia and his girlfriend, Jessica V., as being
associated with the red Honda Civic that the individuals exited just prior to
the assault.
In addition, Deputy Fomby, a school resource officer in Fallbrook,
recognized Valdez from the video surveillance. He obtained video footage
from the high school that Valdez attended on the day of the assault. In the
video, Valdez is seen wearing a checkered jacket with a grey hood, similar to
the one seen in surveillance footage from later that same evening.
Detectives interviewed Jessica on February 10 and she positively
identified Garcia, Dean, and Valdez in photographs from the video

6
surveillance. Detectives located Garcia and Valdez the same day, driving in
the red Honda Civic. The car was processed for evidence, and a folding knife
was found in the glovebox.
Dean was also contacted that same day. Dean and Garcia were
processed by field evidence technicians, including photographs and oral
swabs for DNA. Dean had an injury on the inside knuckle of his pinky finger
that was photographed. The injury was consistent with a sharp-force trauma
and appeared to be partially healed. Valdez was contacted on February 29
and was similarly processed by a field evidence technician.
Dean was contacted again on the afternoon of March 30, 2016, a mile or
two from the scene of the stabbing. Law enforcement conducted a pat-down
search and found a butterfly knife in Dean’s pocket.
DNA Evidence
Various members of the San Diego County Sheriff’s office also took
additional photographs of the blood trail leading up to the apartment where
Pettigrew was living and collected swabs from several of the blood stains.
The swabs were analyzed for DNA and the DNA was compared to samples
from Pettigrew, Garcia, Dean, and Valdez. The DNA from two of the swabs
matched the DNA profile from Dean. According to the forensic biologist that
performed the testing, the probability of randomly selecting a person that
would match the DNA profile obtained from the swabs was approximately
1 in 38 quintillion.
On March 1, 2016, an Albertson’s employee found a knife and a lighter
on the Albertson’s loading dock. The knife was examined for blood stains and
fingerprints, but none were found. The knife was swabbed for DNA but there
was insufficient DNA to develop a DNA profile.

7
 The knife from the glove box of the red Honda Civic was also examined
for blood stains and fingerprints, but none were found. There was sufficient
DNA to develop a partial DNA profile. Dean and Valdez were excluded as
possible contributors. The forensic biologist concluded Garcia could be
included as a possible contributor but there was insufficient DNA to be sure.
Testimony of Garcia’s Girlfriend
Jessica testified that she heard others refer to Garcia as “Maniac” and
was aware that he was involved with a Fallbrook gang. However, they had
an agreement that they would not discuss anything gang related. She also
knew Dean and Valdez as Garcia’s friends and knew that Dean went by
“Clear”.
She testified that she was with Garcia on January 22, 2016. They were
driving around most of the day in her vehicle, a red Honda Civic, and she also
had her young child in the backseat. At some point in the evening, Garcia
asked her to drive to Fallbrook and, once there, they picked up Dean and
Valdez.
After driving around awhile longer, Jessica said that she had to use the
restroom, so they stopped at an Albertson’s. Garcia, Dean, and Valdez all got
out of the car and walked away, and then Jessica got out, took her child out,
and took him into Albertson’s to use the restroom. Garcia, Dean, and Valdez
had not yet returned to the car when she got back. They returned
approximately six minutes later. They got into the car and Garcia told
Jessica to go.
Finally, Jessica testified that the knife found in the glove compartment
of her car was not hers.

8
Forensic Video Testimony
A forensic video analyst, Grant Fredericks, synchronized and reviewed
the video footage collected from several different surveillance cameras in the
area. He also did a pixel tracking analysis, in which he identified and
tracked groupings of pixels associated with specific individuals by identifying
the specific tonal values created by a combination of color and brightness.
Using this system, Fredericks labeled several unique pixel groups in the
video surveillance with white, yellow, red, and green arrows (hereinafter, W,
Y, R, and G, respectively).
Fredericks identified the individual the detectives had previously
identified as Pettigrew leaving the McDonald’s at approximately 10:34 p.m.
and heading towards the Albertson’s. He opined that the images of the pixel
group he labeled W were consistent with the images of Pettigrew.
In the Albertson’s surveillance, he identified pixel groups Y, R, and G
exiting a vehicle along with one other unlabeled pixel grouping. He opined
that R was wearing clothing that matched the clothing in the video images of
Valdez at high school earlier that same day.
In the video, the unlabeled individual goes towards and eventually
enters the Albertson’s, while Y, R, and G go in a different direction. Y, R, and
G exit the Albertson’s surveillance, but three distinct pixel groups with tonal
values similar to Y, R, and G are seen on another nearby surveillance camera
a minute or two later, at approximately 10:35 p.m. On that video, R
continues along the sidewalk, while Y and G go towards the opening of a
driveway area. Y and G pixel groups disappear into the darkness and,
shortly thereafter, two pixel groups that could not be identified, due to a lack
of camera resolution, emerge and follow behind R.

9
 At approximately 10:43 p.m., three unique pixel groups move across the
street towards W and all four move back and forth around one another for
approximately two minutes, from 10:43 to 10:45 p.m. Fredericks was then
able to identify three of the pixel groups as Y, R, and G again, as they moved
closer to the camera and proceeded back towards the Albertson’s. At this
point, Y, R, and G are seen moving at a higher rate of speed than before and
appear. They reappear on the Albertson’s surveillance approximately 11 and
a half minutes after they left.
Meanwhile, at approximately 10:39 p.m., the other pixel group that had
exited the vehicle with Y, R, and G left Albertson’s and returned to the car,
consistent with the time on images from inside Albertson’s in which Jessica is
seen leaving the store with her child.
Gang Testimony
Deputy Banks testified that he contacted Valdez in July 2013 and
Valdez stated that he was trying to become a member of the Varrio Fallbrook
Locos gang. In addition, he contacted Dean in February 2016 and Dean
stated that he was a member of the Varrio Fallbrook Locos gang and that his
moniker was “Claro.”
Detective Conard testified regarding “fresh” graffiti that had recently
been discovered in the Varrio Fallbrook Locos gang territory in June 2016.
He explained that the graffiti included common references to the Varrio
Fallbrook Locos gang, such as “F” and “13”. It also contained a “roll call,”
which is a reference or intentional grouping of gang member monikers,
including “Blanco,” Valdez’s moniker. He identified a racial comment in the
graffiti and testified that the Varrio Fallbrook Locos gang was known to have
animosity towards African Americans.

10
 Detective Harris testified there were approximately 115 documented
members of the Varrio Fallbrook Locos gang in the spring of 2016. He
confirmed that the location of Pettigrew’s assault was within the Varrio
Fallbrook Locos gang’s territory and explained that the Varrio Fallbrook
Locos gang tended to have animosity towards African Americans. In
particular, he had been involved in cases in which members of the Varrio
Fallbrook Locos gang had targeted African Americans who were not gang
members and opined that a large African American male walking in the
gang’s territory might be perceived as an act of disrespect against the gang.
In addition, he was aware of gang members committing opportunistic crimes,
such as attacking a perceived rival seen walking through the gang’s territory
without having a preconceived plan, and that there would be a perceived
benefit to the gang if gang members were to kill an African American in the
gang’s territory. Finally, based on the totality of the evidence and his
training and experience, Harris opined that Dean, Garcia, and Valdez were
all members of the Varrio Fallbrook Locos gang.
Defense
James Stam, an independent criminalist, conducted his own
investigation of the scene of the assault and also reviewed the photographs
and evidence submitted by the prosecution. He pointed out a number of
errors in the way the blood trail was originally documented and opined that
he would have expected to see more significant blood stains on the ground
near the area where the prosecution asserted Pettigrew was stabbed.
Pettigrew’s sister testified that Pettigrew said he was stabbed by
“eses,” that they were wearing dark colors and masks, and that there were
two or three of them. She also recalled that Pettigrew said it happened in a
parking lot. During an interview with a detective in the days following the

11
result, which was played for the jury, she explained that the Fallbrook Locos
were known to hang out in front of the apartment and also in the Albertson’s
parking lot.
None of the defendants testified.
Verdict and Sentencing
The jury began deliberations just before noon on December 5, 2017.
During deliberations, they sent a note requesting several items, including the
reports of the detectives that spoke with Pettigrew, the timeline of the 911
calls, and the transcript of the law enforcement interview of Russell. They
continued to deliberate on December 6 and reached a verdict just before noon
on December 7. The jury found all three defendants guilty of second-degree
murder and found true allegations that the murder was committed for the
benefit of a criminal street gang.
The superior court sentenced Valdez to an indeterminate term of 15
years to life; sentenced Garcia to an indeterminate term of 15 years to life
plus a one-year enhancement pursuant to section 667.5, subdivision (b); and
sentenced Dean to an indeterminate term of 30 years to life plus a one-year
enhancement pursuant to section 667.5, subdivision (b).
All three defendants appeal.
DISCUSSION
I. The Defendants Are Not Entitled to Reversal Based on Senate Bill 1437
The jury was instructed with CALCRIM 400: Aiding and Abetting:
General Principles; CALCRIM 401: Aiding and Abetting: Intended Crimes;
and CALCRIM 403: Natural and Probable Consequences. Based in part on
these instructions, the prosecution argued that it was reasonably foreseeable
to each of the defendants that Pettigrew might be murdered as a result of the

12
assault and, specifically, that “each of these defendants is guilty of murder
under a natural and probable consequences method of aiding and abetting”.
The instructions and argument were appropriate under the law as it
existed at the time of the trial, in December 2017. At that time, an aider and
abettor with the necessary mental state could be guilty of second-degree
murder if the victim’s death was a natural and probable consequence of an
intended or target crime; in this case, the assault. (People v. Chiu (2014) 59
Cal.4th 155, 158-159 (Chiu); People v. McCoy (2001) 25 Cal.4th 111, 1117;
People v. Prettyman (1996) 14 Cal.4th 248, 260.)
However, “[i]n 2018, the Legislature passed and the Governor signed
into law Senate Bill No. 1437 (Senate Bill 1437), legislation that
prospectively amended the mens rea requirements for the offense of murder
and restricted the circumstances under which a person can be liable for
murder under the felony-murder rule or the natural and probable
consequences doctrine. (Stats. 2018, ch. 1015.)” (People v. Superior
Court (Gooden) (2019) 42 Cal.App.5th 270, 274.)
Amended section 188 provides, “Except as stated in subdivision (e)
of Section 189, in order to be convicted of murder, a principal in a crime shall
act with malice aforethought. Malice shall not be imputed to a person based
solely on his or her participation in a crime.” Section 189, as amended, limits
murder liability to a person who: (1) was the actual killer; (2) although not
the actual killer, intended to kill and assisted the actual killer in the
commission of first-degree murder; or (3) was a major participant in the
underlying felony and acted with reckless indifference to human life. (§ 189,
subd. (e).)
“Senate Bill 1437 also established a procedure permitting certain
qualifying persons who were previously convicted of felony murder or murder

13
under the natural and probable consequences doctrine to petition the courts
that sentenced them to vacate their murder convictions and obtain
resentencing on any remaining counts.” (Gooden, supra, 42 Cal.App.5th at
p. 274.) That procedure is set forth in section 1170.95.
The parties in this case agree that Senate Bill 1437 is retroactive but
disagree whether the defendants are entitled to relief on appeal as a result.
Specifically, the People assert section 1170.95 is the exclusive means for the
defendants to obtain relief. We agree.
In People v. Martinez, the appellate court conducted a detailed analysis
of Senate Bill 1437 and concluded that, by virtue of including the section
1170.95 petition process therein, the Legislature intended for that process to
provide the exclusive means to obtain relief post-conviction, including cases
where the convictions are not yet final. (People v. Martinez (2019) 31
Cal.App.5th 719 (Martinez), rev. and depub. request denied May 1, 2019,
No. S25428; see also People v. Anthony (2019) 32 Cal.App.5th 1102, 1148-
1158 (Anthony) [adopting the reasoning in Martinez]). We agree with the
analysis by the Martinez court and therefore reject the defendants’
arguments that they are entitled to the consideration of the merits of their
Senate Bill 1437 claims in this appeal. The defendants contend Martinez was
wrongly decided but we do not find their arguments in that regard persuasive
and note that the California Supreme Court denied a petition for review and
request for depublication.
The defendants assert that the court in Martinez relied on cases that
involved simple resentencing amendments while Senate Bill 1437 changed
what is required to prove the crime of murder, thereby implicating
fundamental rights. Martinez relied primarily on the California Supreme
Court’s decision in People v. Conley (2016) 63 Cal.4th 646 (Conley), which

14
addressed Proposition 36, and People v. DeHoyos (2018) 4 Cal.5th 594
(DeHoyos), which addressed Proposition 47. As an initial matter, we note
that Proposition 47 reclassified certain offenses from felonies to
misdemeanors and, thus, also represents a fundamental change in law.
(DeHoyos, at pp. 603-604.) Regardless, the substantive nature of the
amendments is not significant to the retroactivity analysis where, as here
and in Conley and DeHoyos, the Legislature has explicitly provided a
procedure for those individuals previously convicted under the prior law.
(See Martinez, supra, 31 Cal.App.5th at pp. 724-729 [addressing a similar
contention and finding Conley and DeHoyos to be instructive]; Anthony,
supra, 32 Cal.App.5th at p. 1153.) Accordingly, we find no error in the
Martinez court’s reliance on Conley and DeHoyos.
The defendants also contend Senate Bill 1437 does not explicitly
indicate that the petition procedure is the exclusive remedy, and thus does
not preclude their right to raise their claims on direct appeal. The court in
Martinez rejected a similar argument, stating “there is no indication that
reversal of a defendant’s sentence on direct appeal without compliance with
the procedures outlined in section 1170.95 was among the ‘rights’ the
Legislature sought to preserve in enacting Senate Bill 1437.” (Martinez,
supra, 31 Cal.App.5th at p. 729.) Once again, we agree with the Martinez
court’s analysis.
Relying on Chiu, supra, 59 Cal.4th 155 and People v. Chun (2009) 45
Cal.4th 1172 (Chun), the defendants assert the usual remedy when the jury
is instructed on a theory of liability that is later deemed invalid based on a
change in the law, is reversal of the defendant’s conviction. (See Chiu, at
pp. 167-168, Chun, at p. 1203.) They argue they should not have to forego
that remedy, and the associated Sixth Amendment right to a jury trial, in

15
order to pursue resentencing under section 1170.95. Chiu and Chun are not
applicable here, though, as those cases dealt with legally invalid theories of
liability, as opposed to a legislative decision to change the statutory definition
of a particular crime. (Compare Chiu, at pp. 158-159 [“We now hold that an
aider and abettor may not be convicted of first degree premeditated murder
under the natural and probable consequences doctrine”]; Chun, at p. 1178
[“We will overrule some of our decisions and hold that all assaultive-type
crimes, such as a violation of section 246, merge with the charged homicide
and cannot be the basis for a second degree felony-murder instruction”];
Gooden, supra, 42 Cal.App.5th at p. 274.) The retroactive relief afforded by
Senate Bill 1437 does not implicate and is not subject to a Sixth Amendment
analysis. (See Anthony, supra, 32 Cal.App.5th at p. 1156; see also People v.
Perez (2018) 4 Cal.5th 1055, 1063-1064 [“We hold that the Sixth Amendment
does not prohibit trial courts from relying on facts not found by a jury in
determining applicability of Proposition 36’s resentencing ineligibility
criteria.”].)
Finally, Garcia asserts he should not have to “choose” between an
appeal and a remedy pursuant to section 1170.95, but nothing in section
1170.95 precludes him from filing both. (See Anthony, supra, 32 Cal.App.5th
at p. 1156 [“That defendants must wait until the resolution of their appeal
before pursuing their petition does not deprive them of a remedy.”].) Further,
nothing in this decision restricts any rights any appellant may have under
Senate Bill No. 1437 to petition the superior court for relief.
II. The Superior Court Did Not Err by Declining to Give an Involuntary
Manslaughter Instruction
Dean and Garcia assert the superior court erred by denying their
request to provide a jury instruction on involuntary manslaughter. Valdez

16
does not directly raise such an argument but joins in any arguments that
may accrue to his benefit.
Both voluntary and involuntary manslaughter are lesser included
offenses of murder and both involve the unlawful killing of another without
malice. (People v. Thomas (2012) 53 Cal.4th 771, 813; People v. Beltran
(2013) 56 Cal.4th 935, 942; (§ 192, subds. (a), (b).) Voluntary manslaughter is
a killing without malice “upon a sudden quarrel or heat of passion” or in
imperfect self-defense. (§ 192, subd. (a); People v. Simon (2016) 1 Cal.5th 98,
132.) Involuntary manslaughter is a killing without malice by committing “a
lawful act which might produce death, in an unlawful manner, or without
due caution and circumspection.” (§ 192, subd. (b); People v. Cook (2006) 39
Cal.4th 566, 596 (Cook).) “Malice is implied, however, when a killing results
from an intentional act, the natural consequences of which are dangerous to
human life, and the act is deliberately performed with knowledge of the
danger to, and with conscious disregard for, human life.” (Cook, at p. 596.)
We conduct an independent, de novo review when considering whether
the superior court should have provided the jury with an instruction on a
lesser included offense. (People v. Souza (2012) 54 Cal.4th 90, 113.) “An
instruction on a lesser included offense must be given only if there is
substantial evidence from which a jury could reasonably conclude that the
defendant committed the lesser, uncharged offense, but not the greater,
charged offense.” (People v. Nelson (2016) 1 Cal.5th 513, 538.)
Here, the jury was instructed on voluntary manslaughter. The defense
also requested an instruction on involuntary manslaughter based on a theory
that Pettigrew’s death was the result of a misdemeanor gone awry. The
superior court stated it could not “fathom a set of circumstances” for

17
involuntary manslaughter and declined to give the instruction. We find no
error in the superior court’s refusal.
The defendants argue, essentially, that Pettigrew was large, and the
evidence indicated he was stabbed with one or more comparatively “small
knives.” Based on this evidence, they assert the jury could have concluded
they committed a simple assault in a reckless manner and/or that they
intended only to harass, but not kill, Pettigrew.
The extent of Pettigrew’s injuries directly contradicts this theory.
Pettigrew was stabbed eight times in his torso and twice in his extremities;
this included four stab wounds to his lower chest and a large abdominal
wound. As a result of his injuries, he lost consciousness, went into shock, and
had to be intubated immediately upon arrival to the hospital. The abdominal
wound caused a hernia that had to be surgically repaired and the chest
wounds caused extensive internal bleeding.
Stabbing an individual in the chest and abdomen multiple times is an
intentional act, the natural consequences of which are dangerous to human
life, and there was no evidence suggesting the defendants did not have a
subjective understanding of the risk to human life their conduct posed. (See
Cook, supra, 39 Cal.4th at p. 596; People v. Brothers (2015) 236 Cal.App.4th
24, 34-35; People v. Guillen (2014) 227 Cal.App.4th 934, 1028.) Further, as in
Cook—where the appellant repeatedly beat the victim’s head with a board—
there was no evidence here to suggest that it was simply an “unlucky blow”
that caused Pettigrew’s death. (Cook, supra, 39 Cal.4th at p. 597.) Instead,
the evidence indicated one or more of the defendants intentionally and
repetitively stabbed Pettigrew in the chest and abdomen. For these reasons,
we conclude there was not substantial evidence to support an involuntary

18
manslaughter instruction and the superior court did not err by declining to
give the instruction.
Moreover, even if we were to conclude, which we do not, that the court
erred by declining to instruct the jury on involuntary manslaughter, any
error was harmless. The court did instruct the jury on voluntary
manslaughter, which requires a higher degree of culpability than involuntary
manslaughter, and the jury rejected that theory and found the defendants
guilty of murder. In addition, the jury found true the gang allegation,
indicating their belief that the defendants stabbed Pettigrew with the specific
intent of benefiting the Varrio Fallbrook Locos gang. Thus, “there is no
reasonable probability that, had the jury been instructed on involuntary
manslaughter, it would have chosen that option.” (People v. Rogers (2006) 39
Cal.4th 826, 884; Cook, supra, 39 Cal.4th at p. 597.)
The defendants assert the voluntary manslaughter instruction required
the jury to believe the defendants subjectively believed they needed to defend
themselves, while the involuntary manslaughter instruction would not have
required such a finding. However, there was no more evidence to suggest the
defendants only intended to harass Pettigrew than there was to suggest the
defendants acted in self-defense.
III. The Prosecutor Did Not Commit Prejudicial Misconduct
Valdez asserts, and the other defendants join, that the prosecutor
committed prejudicial misconduct based on the following exchange between
the prosecutor and the lead homicide detective:

19
 Q: With respect to evidence processing and evidence
viewing, that’s a process that’s something that’s available
to all the parties of a litigation; is that right?
A: Yes.
Q: Anybody can look at it, anybody can have it
tested?
Before the detective could answer, defense counsel objected and
requested a sidebar. At the sidebar, defense counsel argued the prosecutor
was improperly shifting the burden. The prosecutor responded that it was
merely a procedural question and pointed out that she had not identified
anyone specific that had or had not looked at the evidence. The court agreed
that the question as stated was permissible but cautioned that “anything
beyond this starts to bump up against the potential of burden shifting.”
Defense counsel asked for an instruction to the jury and the court declined.
However, the court did sustain the objection to the second question. Given
the court’s admonition, the prosecutor immediately moved on to a different
topic.
A prosecutor may comment on the state of the evidence and may
question the defense’s failure to call logical witnesses or introduce material
evidence. (People v. Woods (2006) 146 Cal.App.4th 106, 112.) However, a
prosecutor commits misconduct when he or she attempts to lessen the
prosecution’s burden to prove their case beyond a reasonable doubt or
otherwise suggests that any shortcomings in the prosecution’s case are
mitigated by deficiencies in the defense case. (People v. Centeno (2014) 60
Cal.4th 659, 666, 673.) “A distinction clearly exists between the permissible
comment that a defendant has not produced any evidence, and on the other
hand an improper statement that a defendant has a duty or burden to

20
produce evidence, or a duty or burden to prove his or her innocence.” (People
v. Bradford (1997) 15 Cal.4th 1229, 1340.)
A prosecutor need not act in bad faith to commit misconduct, but the
defendant must have been prejudiced as a result. (People v. Bolton (1979) 23
Cal.3d 208, 213-214.) “A prosecutor’s conduct violates the federal
Constitution when it infects the trial with unfairness, and violates state law
if it involves the use of deceptive or reprehensible methods of persuasion.”
(People v. Booker (2011) 51 Cal.4th 141, 184.) An error born out of state law
does not require reversal “unless it is reasonably probable the result would
have been more favorable to the defendant in the absence of the misconduct.”
(People v. Ellison (2011) 196 Cal.App.4th 1342, 1353 [concluding a
prosecutor’s burden-shifting remarks were harmless].)
Here, the prosecutor’s questions did not rise to the level of prejudicial
misconduct. As the superior court aptly noted, the first question was
procedural. The prosecutor did not suggest the defendants failed to conduct
any particular testing or that they had any obligation to test the evidence.
(See Cook, supra, 39 Cal.4th at p. 607 [“Pointing out that contested physical
evidence could be retested does not shift the burden of proof.”].) Regardless,
the court cautioned the prosecutor that the line of questioning was
approaching impermissible burden shifting, sustained the objection to the
second question, and asked the prosecutor to move on, which she did. An
instruction was not necessary at this point because the prosecutor had not
yet crossed the line into improper burden shifting.
Moreover, even if the questions did suggest the defendants should have
conducted their own testing, the questions were not sufficiently prejudicial to
require reversal. At most the prosecutor asked two allegedly impermissible
questions, one of which the witness did not answer. By contrast, the trial

21
spanned approximately 14 days and included testimony from several
detectives and experts in the field of forensic testing, as well as video
surveillance depicting the assault and additional associated expert testimony.
The jury was instructed as to the appropriate burdens of proof, including an
instruction on reasonable doubt pursuant to CALCRIM No. 220, and the
defendants do not allege that the prosecutor contradicted those instructions
in her closing argument or at any other point during the trial. In the absence
of any evidence to the contrary, we presume the jury understood and followed
the court’s instruction. (People v. Brady (2010) 50 Cal.4th 547, 566, fn. 9.)
IV. The Evidence Was Sufficient to Support the Verdicts
Valdez asserts, and Garcia joins, that the evidence was insufficient to
support the jury’s verdict finding him guilty of second-degree murder.
In considering a challenge to the sufficiency of the evidence, “we
review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. . . . We presume
every fact in support of the judgment the trier of fact could have reasonably
deduced from the evidence. . . . If the circumstances reasonably justify the
trier of fact’s findings, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled with a
contrary finding. . . . ‘A reviewing court neither reweighs evidence nor
reevaluates a witness’s credibility.’ ” (People v. Albillar (2010) 51 Cal.4th 47,
60, citations omitted.)
Here, Valdez argues there was no evidence he was a direct perpetrator
or an aider or abettor. To aid and abet, there must be evidence the defendant
encouraged or facilitated commission of an offense by another with

22
knowledge of the criminal purpose of the perpetrator. (People
v. Beeman (1984) 35 Cal.3d 547, 560.) One who aids and abets in the
commission of a crime is not only liable for that crime but for probable
consequences of the crime originally aided. (People v. Prettyman (1996) 14
Cal.4th 248, 254; People v. McCoy (2001) 25 Cal.4th 1111, 1116-1117.) Given
the evidence here, it was reasonable for the jury to find that Valdez took part
in the assault against Pettigrew, at least as an aider and abettor, and that
the murder was a probable consequence of the assault.
Valdez was identified on the footage from the surveillance video exiting
the car with Dean and Garcia, walking towards Pettigrew with the group,
and retreating after the assault. The video itself shows the three individuals,
previously identified as Valdez, Garcia, and Dean, interacting with Pettigrew
and then running away. Although it is not clear enough to decipher which of
the individuals actually stabbed Pettigrew, it would be reasonable for the
jurors, watching the video and considering Fredericks’ associated testimony,
to conclude that all three individuals were actively involved in the assault.
On the other hand, there was no evidence to suggest Valdez, or Garcia or
Dean for that matter, had not participated.
There was also evidence that Valdez, Garcia, and Dean were all
members of the same gang, that the assault took place in gang territory, and
that an African American walking through the gang’s territory would be seen
as an act of disrespect against the gang. Valdez argues that evidence of gang
membership is not sufficient to establish intent or facilitation of murder (see
Mitchell v. Prunty (9th Cir. 1997) 107 F.3d 1337, 1342; Calderon v. Superior
Court (2001) 87 Cal.App.4th 933, 940-941), but the evidence here went
beyond mere gang membership. The evidence also showed that Valdez,

23
Garcia, and Dean were together and acted in concert on the evening of the
assault and provided a potential motive for the assault.
Finally, the evidence suggested that Pettigrew was alone and unarmed

and that the attackers were armed with one or more knives.3 It was
reasonable, based on the totality of the evidence, for the jury to find that
Valdez was, at a minimum, aiding and abetting the assault, and that it was
reasonably foreseeable that Pettigrew would die as a result of the assault.
(See Albillar, supra, 51 Cal.4th at p. 60.) The same is true for Garcia.
Valdez argues this case is like People v. Rodriguez (1986) 42 Cal.3d 730
(Rodriguez) and Juan H. v. Allen (9th Cir. 2005) 408 F.3d 1262 (Juan H.), but
neither are instructive here. In Rodriguez, the court found the defendant’s
mere presence in a car and inaction when the driver got out and shot a police
officer was not sufficient to establish that she was an accomplice, or aider and
abettor, in a murder. (Rodriguez, at pp. 760-761.) By contrast here, the
evidence indicated Valdez left the vehicle and pursued Pettigrew along with
Dean and Garcia. In Juan H., the court found that the evidence was not
sufficient to convict the defendant of aiding and abetting first-degree murder
because the evidence did not establish that Juan had the requisite knowledge
or intent. (Juan H., at pp. 1278-1279.) Here, Valdez was convicted of second,
not first, degree murder, likely based on a natural and probable consequences
theory.
Valdez asserts that the natural and probable consequences theory can
no longer be used to convict a defendant of second-degree murder. We
addressed this issue, ante, in Section I and concluded that section 1170.95 is

3 Valdez asserts there is no evidence that he had a knife himself, but at
least one individual did as Pettigrew was stabbed, and it was reasonable for
the jury to conclude from the evidence presented that Valdez either knew or
had reason to believe that one or more of his associates was armed.
24
the exclusive means for the defendants to obtain relief pursuant to the
amendments set forth in Senate Bill 1437. The defendants cannot
circumvent the section 1170.95 petition process by bootstrapping their Senate
Bill 1437 argument to a sufficiency of the evidence argument that relies upon
the Senate Bill 1437 amendments that were not in place at the time of trial.
(See Brown, supra, 230 Cal.App.4th 1511-1512.)
V. Superior Court Erred by Denying Defendants’ Motion for Disclosure of
Jury
The defendants assert the superior court erred by denying their request
to issue an order disclosing jurors’ contact information without notifying all of
the jurors. On this point, we agree.
A. Additional Background
None of the defendants testified on their own behalf at trial. As is
standard, the jurors were instructed with CALCRIM 355, which states, in
part, that a defendant “has an absolute constitutional right not to
testify . . . [d]o not consider, for any reason at all, the fact that the defendant
did not testify. Do not discuss that fact during your deliberations or let it
influence your decision in any way.” Despite this instruction, there was at
least some indication that one or more of the jurors did consider the fact that
the defendants did not testify in their deliberations.
After the jury delivered its verdict, and with the consent of the court,
Public Defender Investigator David Martinez spoke with any willing jurors
about their deliberations and overall experience. During that conversation,
Juror No. 4 indicated the jurors had discussed the fact that the defendants
did not testify and that it may have had an impact on their deliberations.
Thereafter, the defendants filed a request for an order from the superior
court disclosing the jurors’ addresses and phone numbers, so they could

25
contact the jurors and, if appropriate, file a motion for a new trial based on
juror misconduct.
In support of their motion, the defendants provided declarations from
Martinez and Valdez’s trial attorney. Martinez declared that Juror No. 4
indicated that “an unspecified number of other jurors discussed the fact that
the defendants did not testify, and it had an impact on the jury’s verdict.” He
further declared that Juror No. 4 returned to the courthouse later that day
and asked him for his notes from the interview. When he refused to give her
his notes, she asked to speak with the judge. Valdez’s attorney declared that
he was also present when Juror No. 4 “stated that she and other jurors
violated the court’s instruction to not consider Mr. Valdez’s decision not to
testify at trial” and that “she and other jurors discussed Mr. Valdez’s decision
not to testify.” He further declared, “I am informed and believe that Juror
No.4 and other jurors (if not all) vote was affected by Mr. Valdez’s decision
not to testify.”
In response, the People submitted a declaration from their own
investigator, Richard Anderson. He asserted he “heard Juror Number 4 say
that some jurors had ‘wondered’ why the defendants didn’t testify but that it
had no bearing on the verdict.” He then informed Juror No. 4 “that her
comments may be used by the defense in a motion or she may have to testify
under oath about her comments to the defense. Juror No. 4 became upset
and asked what she said ‘wrong.’ ” Anderson further declared that Juror No.
4 called him the next day, asked him to remind her of what she had said, and
then stated that the jury did not take the fact that the defendants did not
testify into consideration. Finally, he declared another juror had separately
reached out to the prosecutor after the trial and had agreed to provide a

26
sworn affidavit indicating that the jurors did not consider the defendants’
failure to testify in their deliberations.
The prosecutor submitted a declaration in which she confirmed that
Juror No. 11 had reached out to her to discuss potential career paths, and
that she had taken the opportunity to ask Juror No. 11 about the
deliberations. Juror No. 11 submitted a sworn affidavit stating: “I served as
juror foreperson during jury deliberations”; “Although the subject of the
defendants not testifying did not come up during deliberations, if it had I
would have instructed any juror raising the subject that it could not be
considered by us in our deliberations. If any juror persisted, I would have
alerted the court” and “Since there was no discussion during deliberations
regarding the defendants not testifying, that information did not impact my
verdict in this case.”
On April 5, 2018, the People filed a supplemental response, which
included a declaration from Juror No. 12. The prosecutor indicated Juror
No. 12 had attended a sentencing hearing and had agreed to speak with her
and her investigator after the hearing. In the declaration, Juror No. 12
stated, “[t]he subject of the defendants not testifying in trial did not come up
and was not discussed at all during jury deliberations,” and “[s]ince there was
no discussion during deliberations regarding the defendants not testifying,
that information did not impact my verdict in this case.”
At a hearing in May, the superior court indicated it intended to “at
least notice Juror [Number] 4,” as her statements were at the heart of the
discrepancies between the declarations submitted by the two sides.
Thereafter, in June, the People submitted another supplemental response
with an affidavit from Juror No. 4, which stated, in part: “The subject of the
defendants not testifying in trial was mentioned by a juror other than

27
myself”; and “The subject was immediately shut down and the jury did not
discuss the subject further in its deliberations.”
On June 15, the superior court indicated it had received a response
from Juror No. 4, on May 31, objecting to the release of her information.
Given the declaration submitted by Juror No. 4, the court concluded there
was insufficient information to suggest juror misconduct and denied the
request to disclose either Juror No. 4 or any of the other jurors’ information.
B. Relevant Legal Principles
Pursuant to Code of Civil Procedure section 206, subdivision (g), “a
defendant or defendant’s counsel may, following the recording of a jury’s
verdict in a criminal proceeding, petition the court for access to personal juror
identifying information within the court’s records necessary for the defendant
to communicate with jurors for the purpose of developing a motion for new
trial or any other lawful purpose.” (Ibid.; People v. McNally (2015) 236
Cal.App.4th 1419, 1430 (McNally).)
Code of Civil Procedure section 237 sets forth the procedure for
handling such petitions and specifies that the petition “shall be supported by
a declaration that includes facts sufficient to establish good cause for the
release of the juror’s personal identifying information.” (Id., subd. (b);
McNally, supra, 236 Cal.App.4th at p. 1430.) It further provides, “[t]he court
shall set the matter for hearing if the petition and supporting declaration
establish a prima facie showing of good cause for the release of the personal
juror identifying information, but shall not set the matter for hearing if there
is a showing on the record of facts that establish a compelling interest
against disclosure.” (Code Civ. Proc., § 237, subd. (b).) If a hearing is set, the
court “shall provide notice to each affected former juror” and any notified

28
juror “may appear in person, in writing, by telephone, or by counsel to protest
the granting of the petition.” (Code Civ. Proc., § 237, subd. (c).)
“Absent a showing of good cause for the release of the information, the
public interest in the integrity of the jury system and the jurors’ right to
privacy outweighs the defendant’s interest in disclosure.” (McNally, supra,
236 Cal.App.4th at p. 1430.)
On appeal, we review the superior court’s order denying the request for
abuse of discretion. (People v. Jones (1998) 17 Cal.4th 279, 317.)
C. Analysis
Here, we conclude the superior court abused its discretion by failing to
notify all of the jurors of the request, despite a prima facie showing of
misconduct. (See Code Civ. Proc., § 237, subd. (c).)
The defense presented two sworn affidavits indicating that Juror No. 4
disclosed, immediately after trial, that an unspecified number of jurors
discussed the fact that the defendants did not testify. If the members of the
jury did in fact consider the defendants’ failure to testify in reaching their

verdict, it likely constituted prejudicial misconduct.4 (See People v. Lavender
(2014) 60 Cal. 4th 679, 687.)
The superior court relied on the subsequent declaration of Juror No. 4,
essentially recanting her previous statements, but that declaration was made
only after Juror No. 4 expressed concern that her statement could be used by

4 The People argue that fleeting discussions of the fact that the
defendants did not testify would not have been prejudicial misconduct. (See,
e.g., People v. Leonard (2007) 40 Cal.4th 1370, 1424-1425 [addressing the
trial court's ruling on a motion for a new trial based on alleged juror
misconduct].) The issue here, though, is simply whether the defendants had
made a prima facie showing of potential misconduct to support their request
for the disclosure of juror information. As discussed herein, further inquiry
may have revealed whether the discussion was in fact fleeting or more robust
and, thus, prejudicial.
29
the defense and that she may have to further testify under oath. (See People
v. Tuggles (2009) 179 Cal.App.4th 339, 387 (Tuggles) [“Jurors may not thwart
an investigation of misconduct by the court itself.”].) The People argue the
superior court could have disregarded the earlier non-juror declarations as
unreliable hearsay, but there is no indication in the record that the court
actually did so (see Id. at pp. 385-386). Indeed, the court found sufficient
basis from those declarations to at least notify Juror No. 4 of the request and,
as noted, by the time Juror No. 4 submitted the subsequent declaration, there
was ample evidence that she was at least reluctant to participate further.
(See Id. at p. 387; People v. Johnson (2013) 222 Cal.App.4th 486, 495 [finding
similar out of court statements admissible in the context of making a prima
facie showing of misconduct]; Evid. Code, § 1150.) Moreover, even the
subsequent declaration indicated that the topic of the defendants not
testifying was mentioned by at least one other juror.
The superior court also relied on the declarations from Jurors No. 11
and 12 but those also were not conclusive evidence that there was no
misconduct. Juror No. 4 indicated that at least one juror, or an unspecified
number of jurors, discussed the fact that the defendants did not testify. She
did not indicate that the discussion happened in the jury room or in the
presence of all of the other jurors. Jurors No. 11 and 12 indicated they did
not hear any such discussions but, as the defense pointed out, that left nine
other jurors that may have discussed or heard others discussing the fact that
the defendants did not testify. Further, the declarations of Jurors No. 11 and
12 were inconsistent with the second declaration from Juror No. 4 insofar as
Jurors No. 11 and 12 indicated that no one discussed the fact that the
defendants did not testify but Juror No. 4 indicated the topic did come up but
was shut down.

30
 The court stated it had information from the jurors that the fact that
the defendants did not testify did not play a role in their ultimate decision,
but the court only had such information from three out of 12 jurors, and even
that information was not consistent. Moreover, the court indicated it was
“balancing” the defendants’ interest in a fair trial against the jurors’ interest
in their own privacy. That was premature, however, as the court had not
notified the other jurors of the request and thus had no way to know whether
they would object. (See § 237, subd. (b) [“If the court does not set the matter
for hearing, the court shall by minute order set forth the reasons and make
express findings either of a lack of a prima facie showing of good cause or the
presence of a compelling interest against disclosure.”], id. subd. (c) [“If a
hearing is set . . . [t]he court shall provide notice to each affected former
juror . . . [and] [a]ny affected former juror may appear”].)
The superior court did notify Juror No. 4 and she did object to the
disclosure of her information, but the court did not notice the remaining
jurors despite the fact that the defendants’ requested the disclosure of
information for all of the jurors. (Code Civ. Proc., § 237, subd. (c).) Had the
court notified all of the jurors, it is possible that other jurors would have been
willing to provide additional information. If the jurors objected to the
disclosure of their information, the court could have considered those
objections, as provided in section 237. In addition, even if the superior court
ultimately did not disclose the personal information of the jurors, it could still

31
order them to appear at a hearing to answer questions about whether the

misconduct occurred. (See Tuggles, supra, 179 Cal.App.4th at pp. 385-386.)5
Thus, at a minimum, the superior court should have notified all 12
jurors of the request and then held a hearing, pursuant to Code of Civil
Procedure section 237, subdivision (c). Because the court failed to do so, we
conclude the court abused its discretion in denying the defendants’ request.
We therefore conditionally reverse the judgments and remand the matter
back to the superior court with instructions to notify all 12 jurors of the
defendants’ request and to hold a hearing, pursuant to Code of Civil
Procedure section 237, subdivision (c). The court may then proceed as
appropriate in light of the jurors’ responses. If the superior court ultimately
determines that further disclosure is not appropriate, or that there was no
misconduct, the original judgments may be reinstated, subject to the
modifications discussed post in sections VIII and IX.
VI. No Cumulative Error
The defendants assert, even if no single error is sufficient to require
reversal, reversal is required due to the cumulative effect of the asserted
errors. The cumulative error doctrine applies when “the cumulative effect of
the errors . . . makes[s] it ‘reasonably probable that a result more favorable to

5 Garcia also asserts the superior court violated the defendants' rights to
due process by relying on declarations procured by the prosecutor without
permitting the defendants to speak with those same jurors. To the contrary,
the defendants were permitted to speak to the jurors after the verdict, and
did speak to Juror No. 4, but failed to acquire their own declaration from her.
Regardless, we have concluded herein that the subsequent declarations from
Jurors No. 4, 11, and 12 were not sufficient to rebut the prima facie showing
of potential misconduct and therefore conditionally reverse and remand the
matter for further proceedings consistent with section 237. Accordingly, we
need not, and expressly do not, reach Garcia's due process assertions.
32
the appealing party would have been reached in the absence of the error[s].’ ”
(Johnson v. Tosco Corp. (1991) 1 Cal.App.4th 123, 141.)
However, we have found no individual errors other than the superior
court’s denial of the defendant’s request to disclose the juror information
without the appropriate notice and hearing, and we have conditionally
reversed the judgments on that ground. As we have found no other
individual errors, we conclude there is no cumulative error.
VII. Defendants Forfeited Any Arguments under Duenas
At sentencing, the superior court imposed restitution fines pursuant to
Penal Code section 1202.4, subdivision (b) of $4,500 on Valdez, $10,000 on
Dean, and $4,800 on Garcia, along with corresponding suspended restitution
fines pursuant to section 1202.45. In addition, the court imposed court
security fees pursuant to Penal Code section 1465.8 in the amount of $40 on
Valdez and Dean, and $120 on Garcia, and criminal conviction assessments
pursuant to Government Code section 70373 in the amount of $30 on Valdez
and Dean, and $90 on Garcia.
In January 2019, while the present appeal was pending, the Second
Appellate District issued its opinion in People v. Dueñas (2019) 30
Cal.App.5th 1157 (Dueñas). Therein, the court concluded that “due process of
law requires the trial court to conduct an ability to pay hearing and ascertain
a defendant’s present ability to pay before it imposes court facilities and court
operations assessments under Penal Code section 1465.8 and Government
Code section 70373” and that, “although Penal Code section 1202.4 bars
consideration of a defendant’s ability to pay unless the judge is considering
increasing the fee over the statutory minimum, the execution of any
restitution fine imposed under this statute must be stayed unless and until
the trial court holds an ability to pay hearing and concludes that the

33
defendant has the present ability to pay the restitution fine.” (Dueñas, at
p. 1164.)
The defendants now assert, in reliance on Dueñas, that the imposition
of the above-listed fines and fees without any findings regarding their ability
to pay those fines and fees violated their right to due process. In People v.
Gutierrez (2019) 35 Cal.App.5th 1027, the court concluded that a similar
challenge to imposed fees and fines was forfeited because the defendant had
every incentive to object to the imposition of a restitution fine that exceeded
the statutory minimum based on inability to pay, and the statute (§ 1202.4,
subd. (c)) expressly permitted such a challenge, but the defendant failed to
make such an objection. (Gutierrez, at p. 1033.) The court also stated, “[a]s a
practical matter, if Gutierrez chose not to object to a $10,000 restitution fine
based on an inability to pay, he surely would not complain on similar grounds
regarding an additional $1,300 in fees.” (Ibid.)
Applying that same reasoning to the case at hand, we conclude the
defendants forfeited their arguments under Dueñas by failing to assert an
inability to pay objection when the superior court imposed restitution fines on
each of them exceeding the statutory minimum. (See also, People v. Jenkins
(2019) 40 Cal.App.5th 30, 39-41 [Dueñas arguments forfeited where
defendant did not object to statutory maximum restitution fee]; People v.
Aviles (2019) 39 Cal.App.5th 1055, 1059, 1061 [same]; People v. Frandsen
(2019) 33 Cal.App.5th 1126, 1153-1154 [same].)
Finally, even if we were to address the merits, we would find no
constitutional error under Dueñas. The validity of the court’s decision in
Dueñas has been questioned in several subsequent opinions. (See, e.g.,
People v. Allen (2019) 41 Cal.App.5th 312, 318, 326-327 [discussing several
other cases and rejecting the analysis in Dueñas].) Most notably, the court in

34
Dueñas based its due process analysis on a right of access to the courts and a
bar to incarceration based on the failure to pay criminal penalties when that
failure is not willful. (Dueñas, supra, 30 Cal.App.5th at pp. 1165-1169;
People v. Hicks (2019) 40 Cal.App.5th 320, 325, rev. granted Nov. 26, 2019
(S258946); Allen, supra, 41 Cal.App.5th at pp. 326-328; People v. Caceres

(2019) 39 Cal.App.5th 917, 927.)6 In the present case, the defendants were
not denied access to the courts and the incarceration that was imposed was
not based on their failure to pay fines. Accordingly, Dueñas is not applicable.
(See Hicks, at pp. 329; Allen, at p. 327; Caceres, at pp. 926-928.)
VIII. Section 667.5 Enhancements Must be Stricken
Prior to January 1, 2020, Penal Code section 667.5, subdivision (b)
required trial courts to impose a one-year sentence enhancement for each
true finding on an allegation the defendant served a separate prior prison
term and had not remained free of custody for at least five years. (Former
Pen. Code, § 667.5, subd. (b).) Effective January 1, 2020, Senate Bill 136
amended section 667.5, subdivision (b) by limiting the one-year enhancement
to prior prison terms to sexually violent offenses, as defined by Welfare and
Institutions Code, section 6600, subdivision (b). (§ 667.5, subd. (b); Stats.
2019, ch. 590, § 1.)
Here, Garcia admitted a prison prior for a previous felony conviction for
illegal possession of a firearm pursuant to section 29820. The superior court
imposed a one-year sentence enhancement pursuant to section 667.5,
subdivision (b). The prior offense was not a sexually violent offense, as
defined by Welfare and Institutions Code, section 6600, subdivision (b).

6 We cite Hicks for its persuasive value in accordance with California
Rules of Court, rule 8.1115(e)(1).
35
 In supplemental briefing, Garcia contends, and the People concede,
that the amendments to section 667.5 are retroactive and the retroactivity
applies to him as his appeal was not yet final when the amendments became
effective on January 1, 2020. We agree. (See In re Estrada (1965) 63 Cal.2d
740, 745 [discussing retroactivity]; People v. Jennings (2019) 42 Cal.App.5th
664, 728-729 [finding Senate Bill No. 136 retroactive under Estrada].)
In addition, although he does not specifically raise the issue, Dean does
join in all arguments that may accrue to his benefit. He also admitted a
prison prior for assault and battery pursuant to section 245, subdivision
(a)(1) and the court also imposed a one-year sentence enhancement pursuant
to Penal Code section 667.5, subdivision (b) on his sentence. That prior
offense also was not a sexually violent offense, as defined by Welfare and
Institutions Code, section 6600, subdivision (b) and, therefore, should also be
stricken. (See People v. Mitchell (2001) 26 Cal.4th 181, 185-187 (Mitchell)
[judicial economy is served by appellate court’s inherent authority to correct
clerical errors in an abstract of judgment even in the absence of a request by
the party].)
We therefore strike the section 667.5, subdivision (b) enhancement
from Garcia’s and Dean’s sentences.
IX. Garcia’s Abstract of Judgment Must be Amended
As a final matter, Garcia contends, and the People concede, that his
abstract of judgment should be corrected to reflect that his conviction for
second-degree murder resulted from a jury trial and not a guilty plea.
We agree and direct the superior court to modify the abstract of
judgment accordingly. (See Mitchell, supra, 26 Cal.4th at p. 185.)

36
 DISPOSITION
The judgments are conditionally reversed, and the matter is remanded
to the superior court with instructions for the court to notify all jurors of the
defendant’s request to disclose information and to conduct an appropriate
hearing in accordance with section 237 and this opinion. If no misconduct is
found, the judgments may be reinstated as modified.
If reinstated, we direct the superior court to correct Garcia’s abstract of
judgment to strike the one-year enhancement pursuant to section 667.5,
subdivision (b) and to clarify that Garcia was convicted by a jury, and to
correct Dean’s abstract of judgment to strike the one-year enhancement
pursuant to section 667.5, subdivision (b).
In all other regards, the judgments are affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

IRION, J.

37