People v. Jones CA4/2

Filed 10/16/20 P. v. Jones CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E073288

v. (Super.Ct.No. BAF1700793)

DONNIE RAY JONES, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Thomas D. Glasser,

Judge. (Retired Judge of the San Bernardino Sup. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Matthew A. Siroka, 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, Arlene A. Sevidal and James M.

Toohey, Deputy Attorneys General, for Plaintiff and Respondent.

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 I. INTRODUCTION

Defendant and appellant, Donnie Ray Jones, was convicted by a Riverside County

Superior Court jury of one count of attempted murder (Pen. Code,1 §§ 664, 187, count 1)

and one count of assault with a deadly weapon (§ 245, subd. (a)(1), count 2), arising out

of the July 3, 2017, stabbing of John Doe. The jury also found true special allegations

that defendant acted willfully with deliberation and premeditation in the commission of

count 1 (§ 189); personally inflicted great bodily injury in the commission of both counts

1 and 2 (§ 12022.7, subd. (a)); and personally used a deadly weapon in the commission of

counts 1 and 2 (§ 12022, subd. (b)). In a bifurcated proceeding, the trial court found true

allegations that defendant had suffered two prior convictions, which qualified as serious

felony priors and strike priors. (§ 667, subds. (a), (c), (e)(2)(A).)

Defendant was sentenced to a total of 25 years to life, plus an additional 14 years,

representing an indeterminate term of 25 years to life for the attempted murder

conviction; two consecutive five-year terms for the serious felony prior enhancements; a

consecutive three-year term for the great bodily injury enhancement; and a consecutive

one-year term for the personal use of a deadly weapon enhancement.2 Additionally, the

trial court imposed a $10,000 restitution fine (§ 1202.4, subd. (b)), and $654.58 in various

court fees and assessments.

1 Undesignated statutory references are to the Penal Code.

2 The trial court also sentenced defendant on count 2 but stayed the execution of
the sentence.

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 On appeal, defendant contends: (1) there was insufficient evidence to support his

conviction for attempted murder; (2) the trial court committed prejudicial error in

admitting the preliminary hearing testimony of an unavailable witness; and (3) his

constitutional rights were violated when the trial court imposed various fines and fees

without conducting a hearing on his ability to pay pursuant to People v. Dueñas (2019)

30 Cal.App.5th 1157 (Dueñas). We conclude sufficient evidence in the record supports

defendant’s conviction; find no error in the trial court’s admission of preliminary hearing

testimony; deem defendant’s challenge to the imposition of a $10,000 restitution fine

forfeited for failure to preserve the issue below; conclude defendant cannot establish

prejudice with respect to the imposition of the remaining fines and fees; and, therefore,

affirm the judgment.

II. FACTS AND PROCDURAL HISTORY

A. Facts and Charges

On the morning of July 3, 2017, officers with the Hemet Police Department

discovered John Doe in a motel room after responding to a report of a stabbing. John

Doe was discovered with a stab wound across his abdomen. Officers described the

wound as a large gash with John Doe’s intestines and organs protruding from the wound.

Defendant was arrested and charged in an information with one count of attempted

murder (§§ 664, 187, count 1) and one count of assault with a deadly weapon (§ 245,

subd. (a)(1), count 2) arising out of the stabbing of John Doe. The information also

alleged defendant acted willfully, deliberately, and with premeditation in the commission

of count 1 (§ 189); personally inflicted great bodily injury in the commission of both

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count 1 and count 2 (§ 12022.7, subd. (a)); and personally used a deadly weapon in the

commission of both count 1 and count 2 (§ 12022, subd. (b)). Finally, the information

alleged defendant had suffered two prior convictions, each of which qualified as a strike

prior (§ 667, subds. (c), (e)(2)(A)) and serious felony prior (§ 667, subd. (a)).

B. Relevant Evidence at Trial

1. Testimony of Responding Police Officers

An officer with the Hemet Police Department testified that in the early morning

hours of July 3, 2017, he was dispatched to a motel following a report of a possible

stabbing. When he arrived at the scene, he was directed to a specific motel room where

he found John Doe laying on the bed without his shirt on. John Doe was moaning; had

blood on his face, hands, and right side; and had portions of his intestines outside of his

stomach. John Doe was unable to communicate with the officer; paramedics arrived

shortly thereafter; and John Doe was transported to the hospital.

A second officer testified that he was also called to respond on July 3, 2017. The

second officer observed John Doe in the motel room with a stab wound from one side of

his stomach to the other, approximately nine inches long, with organs protruding from the

wound. The second officer performed a security sweep of the area and viewed the

motel’s security surveillance video. From these videos, he was able to obtain

descriptions of individuals who had been inside the motel room where John Doe was

found, as well as the description of a suspect vehicle. On cross-examination, the second

officer testified that the particular motel was a location known to law enforcement as a

place where drug activity occurred.

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 2. Testimony of M.M.

The transcript of M.M.’s preliminary testimony was read to the jury.3 M.M.

testified that he was living on the streets and had known defendant from interactions on

the streets for approximately one or two months prior to the incident. In the early

morning of July 3, 2017, he accompanied defendant to a motel along with two women.

Defendant had expressed a desire to confront a man staying at the motel who was trying

to “get at his lady.” They drove to the motel in a red car owned by one of the women.

When they arrived at the motel, defendant, M.M., and one of the women got out of

the car and went straight to one of the rooms. M.M. knocked on the door to the room and

a man whom M.M. did not know answered it. M.M. estimated that about five or six other

people were also inside the room, including a man lying on the bed. M.M. watched as

defendant walked to the man lying on the bed; put his hand over the man’s mouth; and

“gutted” the man with a knife. M.M. was surprised by defendant’s actions, pulled

defendant away from the man, took defendant back to the car they arrived in, and left

with defendant and defendant’s girlfriend.

On cross-examination, M.M. admitted he was a drug user and knew several of the

people in the motel room to be drug users. On prior occasions, he had observed John

Doe and defendant hanging out with each other, but he did not know of any issues

between them. He was surprised by what he saw because, on the way to the motel, there

3 M.M. could not be located to testify at the time of trial. Accordingly, the trial
court granted a motion to permit the prosecutor to have M.M.’s preliminary hearing
testimony read to the jury over defendant’s objection.

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had been no mention of any intent to assault John Doe, and he had not seen defendant

carrying a knife. Despite being shocked at what he saw, M.M. did not report the incident

to police. M.M. further admitted that he had previously been convicted of burglary and

giving false information to a police officer.

3. Testimony of C.W.

C.W. testified that he had never met defendant, but he had known John Doe for

approximately a month or two prior to July 2017. He had spent the evening of

July 2, 2017, and the morning of July 3 with John Doe in a motel room. He recalled two

other women in the room with them during this time, as well as another man, J.S., who

entered the room briefly at some time.

At around 6:00 a.m. on July 3, 2017, John Doe was sleeping in the bed of their

shared motel room, while C.W. was awake and talking with the two women. One of the

women went to answer a knock at the door, and C.W. saw M.M. and another man he did

not recognize walk in. The man he did not recognize walked over to the bed and started

punching John Doe. John Doe did not appear to wake up, fight back, or have any

weapons. C.W. “vaguely remember[ed]” defendant pulling a knife out and stabbing John

Doe with it, but he did not recall seeing what defendant did with the knife afterward.

C.W. did not recall seeing what happened after the stabbing, as he and the two women,

previously in the room, immediately left and went to a nearby doughnut shop. After

getting both women safely to the doughnut shop, C.W. called the police.

C.W. did not recall whether he identified defendant during an earlier interview

with police; did not recognize defendant at the time of the trial; and stated he could not

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recall sufficiently to provide a description of the man who stabbed John Doe. C.W.

admitted he had been previously convicted of theft and had been using methamphetamine

on the date of the incident.

On cross-examination, C.W. admitted that everyone in the motel room that night

had been using methamphetamines, heroin, weed, or alcohol. He stated he was not

“necessarily” testifying in court voluntarily, as he had been picked up along with his

girlfriend by police the previous day and told he needed to appear in court to testify.

C.W. further admitted that he had been carrying multiple knives with him the night of the

incident.

4. Testimony of L.L.

L.L. testified that she spent the evening of July 2, 2017, and the morning of July 3

with John Doe, C.W., one other woman, and one other man in a motel room. She

recalled that in the early morning of July 3, John Doe was sleeping in the bed of the

motel room, while she and the others were socializing in the bathroom area of the room.

At around 5:45 a.m., she answered the door to the motel room, saw 10 to 12 African-

American people standing outside, and was pushed aside as some of them attempted to

enter the room.

L.L. recalled that “they all” surrounded the bed where John Doe was sleeping.

One of them pulled John Doe up; screamed, “I thought I told you not to ‘F’ with my

bitch”; took out a knife; and stabbed John Doe. At that point, C.W. pushed L.L. into the

bathroom and told her not to come out. After some period of time, C.W. came to get her,

told her not to look at anything, and told her they had to get their stuff and leave. On the

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way out, she looked over to the bed and recalled seeing John Doe with his guts hanging

out of him.

L.L. could not identify defendant in court at the time of her testimony and could

not recall many specifics to describe the man she saw stabbing John Doe. She admitted

she was on heroin and methamphetamines at the time of the incident and that she had

multiple prior convictions for petty theft, identity theft, and other misdemeanor

convictions. L.L. also admitted that she previously denied seeing anyone get stabbed

when she was initially interviewed by the police, but stated that she probably said that

because, “when you say anything on the street, you’re going to get—something is going

to happen to you.”

5. Testimony of J.S.

J.S. testified he had known John Doe for approximately two weeks prior to

July 3, 2017, and also knew defendant. In the morning of July 3, J.S. was hanging out

with John Doe in a motel room with a few other people. He recalled everyone in the

motel room was “getting high,” and John Doe was lying on the bed. At some point,

someone answered the door, and defendant walked into the room. J.S. could not

remember who answered the door or how many people may have entered the room with

defendant. He could not recall what he told police investigators at the time of the

incident.

J.S. recalled that as he was leaving the motel room, he observed John Doe and

believed John Doe looked bloody, as if he had been in a fight. However, J.S. stated he

could not recall looking at anything other than John Doe’s face at the time. On cross-

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examination, he admitted having prior convictions for residential burglary and credit card

fraud.

J.S.’s testimony was deemed inconsistent with his prior statements to police

investigators and, as a result, a recorded interview was played to the jury. In the recorded

interview, J.S. reported that he was the individual who answered the door to the motel

room; that three people entered the room when he opened the door; and that the three

individuals were defendant, M.M., and a woman. Upon entering the room, defendant

approached John Doe, made a comment about John Doe talking to defendant’s girlfriend,

and began punching John Doe. Later in the interview, J.S. stated he saw defendant grab a

white-handled knife and put the knife to John Doe’s throat.

6. Testimony of Police Investigators

An investigator with the Hemet Police Department testified that on the morning of

July 3, 2017, he was assigned to assist with an investigation of a stabbing that occurred in

a motel. The investigator had previously undergone training and education in

recognizing blood patterns, as well as conducted over a dozen investigations that

involved analyzing blood patterns on surfaces. The investigator offered the opinion that

the blood patterns on the wall of the motel room would be consistent with a knife, with a

significant amount of blood on it, moving rapidly in an upward direction. Investigators

searched the motel room for weapons but did not locate any.

A second investigator testified that he was also called to assist with investigating a

stabbing on July 3, 2017. He reviewed surveillance video from the motel, identified

descriptions of potential witnesses, and subsequently sought to interview the various

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persons identified. During his interview with C.W., C.W. identified defendant as the

stabber in a photo lineup.

7. Defendant’s Testimony

Defendant testified in his own defense and explained that he was a longtime friend

of J.S.; met John Doe sometime in 2016; and met M.M. about eight months prior to the

July 3, 2017 incident. He considered John Doe a friend and would socialize with John

Doe on the occasions John Doe came to Hemet. However, defendant admitted that prior

to July 3, he was angry with John Doe because he believed John Doe had wronged him

on multiple occasions.4

On July 2, 2017, defendant accompanied John Doe to pick up their mutual friend,

J.S. When they arrived at J.S.’s home, John Doe drove off unexpectedly, leaving

defendant without a ride home. After waiting several hours, defendant paid someone else

to drive him home. When he returned home, defendant’s girlfriend reported that John

Doe had visited in defendant’s absence and attempted to assault her.

Defendant testified that his girlfriend did not want to get the police involved, so

defendant ultimately decided to go to John Doe’s motel room to talk. He emphasized that

his intent was simply to talk with John Doe and not to kill John Doe. However,

defendant admitted that he was angry and hurt by what John Doe had done; he knew it

4 These incidents included John Doe: (1) disclosing to others that defendant had a
prior rape conviction; (2) spreading rumors that defendant was a child molester; (3)
taking out the taillights and changing the tags on defendant’s car, causing defendant to
get pulled over; (4) spreading rumors that defendant’s girlfriend had left him; and (5)
taking defendant’s money.

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was possible the two would get into a fight; and he had no intention of walking away

from a physical confrontation with John Doe. Defendant also admitted he subsequently

told investigators that fighting was how he worked through frustration; that he wanted to

beat John Doe; and that he wanted to knock John Doe unconscious. In his testimony,

defendant sought to clarify that when making these statements to investigators, he was

simply describing his feelings and not an actual intent to act.

When defendant arrived at John Doe’s motel room, defendant saw John Doe lying

on the bed next to a speed pipe with smoke coming out of his mouth. John Doe looked at

defendant with a dismissive look, which caused defendant to become “full of rage.”

Defendant immediately went to John Doe, grabbed him, and began yelling at him about

attempting to “rape” defendant’s girlfriend. Defendant claimed that in response, John

Doe sliced defendant’s hand with a knife. Defendant grabbed the knife from John Doe,

“poked” John Doe with the knife in the abdomen, dropped the knife, and continued to

punch John Doe in the face. Defendant stated he continued to hit John Doe because he

was concerned John Doe might have a gun somewhere in the motel room. At some point,

defendant’s girlfriend and M.M. grabbed defendant and they all left.

C. Verdict and Sentencing

The jury found defendant guilty of both premeditated attempted murder (§§ 664,

187, count 1) and assault with a deadly weapon (§ 245, subd. (a)(1), count 2). The jury

also found true the allegations that defendant acted willfully and with deliberation and

premeditation in the commission of count 1 (§ 189); personally inflicted great bodily

injury in the commission of both count 1 and count 2 (§ 12022.7, subd. (a)); and

11
personally used a deadly weapon in the commission of count 1 and count 2 (§ 12022,

subd. (b)). In a bifurcated proceeding, the trial court found true the allegations that

defendant had suffered two prior convictions that would qualify as serious felony priors

and strike priors. (§ 667, subds. (a), (c), (e)(2)(A).)

The trial court declined a request to strike or dismiss defendant’s serious felony

priors and strike priors. Defendant was sentenced to a total of 25 years to life, plus an

additional 14 years, representing an indeterminate term of 25 years to life for the

attempted murder conviction; two consecutive five-year terms for the serious felony prior

enhancements; a consecutive three-year term for the great bodily injury enhancement;

and a consecutive one-year term for the personal use of a deadly weapon enhancement.

Defendant was also sentenced to 25 years to life, plus 13 years on count 2,5 but the trial

court stayed execution of the sentence.

III. DISCUSSION

A. Sufficient Evidence Supports Defendant’s Conviction for Attempted Murder

Defendant contends that insufficient evidence supports his conviction for

attempted murder. Specifically, he argues that there was insufficient evidence to show he

harbored an intent to kill John Doe and insufficient evidence to support the special

finding that his actions were premeditated or deliberate. We disagree.

5 On count 2, the trial court sentenced defendant to an indeterminate 25-year-to-
life term for the underlying conviction, two consecutive five-year terms for the serious
felony prior enhancements, and a consecutive three-year term for the great bodily injury
enhancement.

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 1. General Legal Principles and Standard of Review

“ ‘Attempted murder requires the specific intent to kill and the commission of a

direct but ineffectual act toward accomplishing the intended killing. [Citation.]

Attempted murder requires express malice, that is, the assailant either desires the victim’s

death, or knows to a substantial certainty that the victim’s death will occur.’ ” (People v.

Houston (2012) 54 Cal.4th 1186, 1217.)

“ ‘The proper test for determining a claim of insufficiency of evidence in a

criminal case is whether, on the entire record, a rational trier of fact could find the

defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the

evidence in the light most favorable to the People and must presume in support of the

judgment the existence of every fact the trier could reasonably deduce from the

evidence.’ ” (People v. Perez (2010) 50 Cal.4th 222, 229.)

“ ‘ “Although it is the duty of the jury to acquit a defendant if it finds that

circumstantial evidence is susceptible of two interpretations, one of which suggests guilt

and the other innocence [citations], it is the jury, not the appellate court which must be

convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances

reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the

circumstances might also reasonably be reconciled with a contrary finding does not

warrant a reversal of the judgment.” ’ ” ’ ” (People v. Cravens (2012) 53 Cal.4th 500,

507-508.) “The conviction shall stand ‘unless it appears “that upon no hypothesis

whatever is there sufficient substantial evidence to support the conviction.” ’ ” (Id. at

p. 508.)

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 As we explain post, there is more than sufficient evidence in the record from

which the jury could reasonably infer that defendant had the specific intent to kill and

acted with deliberation and premeditation in attempting to do so.

2. Substantial Evidence in the Record Supports the Jury’s Conclusion Defendant

Intended to Kill

“[I]t is well settled that intent to kill or express malice, the mental state required to

convict a defendant of attempted murder, may in many cases be inferred from the

defendant’s acts and the circumstances of the crime. [Citation.] ‘There is rarely direct

evidence of a defendant’s intent. Such intent must usually be derived from all the

circumstances of the attempt, including the defendant’s actions.’ ” (People v. Smith

(2005) 37 Cal.4th 733, 741.)

Here, multiple witnesses testified, and defendant himself admitted, that defendant

stabbed John Doe with a knife. While the description of the stabbing varied from witness

to witness, M.M. described defendant’s act as a “gutt[ing]”; both L.L. and two

responding officers described John Doe’s knife wound as so severe that John Doe’s

intestines were hanging out of him; and at least one of the officers described the wound

as being nine inches in length. Further, an investigator testified that the blood spatter

along the wall of the motel room would be consistent with a knife moving rapidly in an

upward direction. Thus, evidence regarding the manner in which defendant stabbed John

Doe, as well as the extent of the resulting injury, suggests a heightened level of violence

beyond a simple unintentional stabbing during a confrontation. In addition to this violent

stabbing, the evidence also established that defendant punched John Doe in the face

14
multiple times while he was sleeping. This evidence supports a reasonable inference that

defendant had the requisite intent to kill; and we, therefore, decline to reverse defendant’s

conviction on this ground.

3. Substantial Evidence in the Record Supports the Jury’s Conclusion Defendant

Acted Willfully with Deliberation and Premeditation

“[T]he crime of attempted murder is not divided into degrees. [Citation.]

[Instead], [t]he prosecution may seek a jury finding that an attempted murder was

‘willful, deliberate, and premeditated’ for purposes of sentence enhancement.” (People v.

Smith, supra, 37 Cal.4th at p. 740.) “In the context of first-degree murder

‘ “premeditated” means “considered beforehand,” and “deliberate” means “formed or

arrived at or determined upon as a result of careful thought and weighing of

considerations for and against the proposed course of action.” ’ ” (People v. Lee (2011)

51 Cal.4th 620, 636.) However, “ ‘[t]he process of premeditation and deliberation does

not require any extended period time. “The true test is not the duration of time as much

as it is the extent of the reflection. Thoughts may follow each other with great rapidity

and cold, calculated judgment may be arrived at quickly . . . .” ’ ” (Ibid.) Nonexclusive

factors relevant to premeditation and deliberation include evidence of planning activity,

motive, and manner of killing. (Ibid.)

Here, sufficient evidence allows the jury to infer that defendant’s act of stabbing

John Doe was deliberate and premeditated. First, there was substantial evidence of

motive. M.M. testified that defendant expressed the desire to go to the motel to confront

John Doe because John Doe attempted to “get at” defendant’s girlfriend; L.L. testified

15
that during the confrontation, defendant yelled at John Doe regarding John Doe’s

interactions with defendant’s girlfriend; and defendant himself testified that he went to

the motel to confront John Doe because defendant’s girlfriend had accused John Doe of

attempting to assault her.

Second, there was evidence in the record from which the jury could infer that

defendant engaged in planning activity. M.M. testified that defendant walked in and

immediately stabbed John Doe, and C.W. vaguely remembered seeing defendant pull the

knife out and stab John Doe. C.W. further testified that John Doe had no weapons, and

investigating officers did not recover a knife in the motel room. Further, defendant

himself admitted to investigators that he was aware of the possibility of a fight with John

Doe even prior to arriving at the motel. If believed, the jury could reasonably infer from

this evidence that defendant entertained the possibility of physically attacking John Doe

in advance of the confrontation and brought the knife with him, suggesting some level of

planning.

Finally, the manner of the stabbing suggests the attempted murder “was the result

of ‘a pre-existing reflection’ and ‘careful thought and weighing of considerations’ rather

than ‘mere unconsidered or rash impulse hastily executed.’ ” (People v. Anderson (1968)

70 Cal.2d 15, 26.) M.M., C.W., and L.L. all testified that defendant approached John

Doe and initiated physical violence against John Doe almost immediately upon entering

the motel room and without an exchange of any words. Defendant walked straight over

to John Doe and immediately stabbed him so violently and extensively as to cause his

intestines and internal organs to be exposed.

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 Based upon the short amount of time and limited interaction between defendant

and John Doe prior to the stabbing and the violent manner of the stabbing, the jury could

reasonably infer that defendant had already formed an intent to stab John Doe even

before entering the motel room. Thus, evidence regarding the manner in which the

stabbing occurred supports the conclusion that defendant’s acts were deliberate. Since

substantial evidence in the record supports the three primary factors relevant to a finding

of deliberation and premeditation, sufficient evidence supports the jury’s true finding on

this allegation.

4. Sufficient Evidence Supports the Jury’s Rejection of a Heat of Passion Defense

Finally, defendant argues that there was insufficient evidence to negate a heat of

passion defense. However, where the jury has returned a true finding that defendant

acted willfully, deliberately, and with premeditation, and sufficient evidence supports that

finding, that same evidence is necessarily sufficient to negate a claim that defendant acted

in the heat of passion.

Where heat of passion is at issue based upon the state of the evidence, the

prosecution has the burden of proving beyond a reasonable doubt that a defendant did not

act in the heat of passion. (People v. Speight (2014) 227 Cal.App.4th 1229, 1242.) If the

prosecution fails to carry this burden, then a defendant is guilty of attempted voluntary

manslaughter. (Ibid.) However, a jury’s finding that a defendant acted willfully,

deliberately, and with premeditation “necessarily resolve[s] the factual question

adversely” to the defendant because “[t]his state of mind, involving planning and

deliberate action, is manifestly inconsistent with having acted under the heat of passion.”

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(Id. at p. 1246; see People v. Wharton (1991) 53 Cal.3d 522, 572 [First degree murder

necessarily includes a finding of deliberate and premeditated killing, which is manifestly

inconsistent with a heat of passion defense.].)

As we have already explained ante, sufficient evidence in the record supports the

jury’s finding that defendant’s actions were willful, deliberate, and premeditated.

Accordingly, that same evidence is necessarily sufficient to negate a heat of passion

defense, and we find no merit in defendant’s argument that the prosecution failed to

negate this defense.

B. Admission of Preliminary Hearing Testimony Was Not Erroneous

Defendant also contends that the trial court erred in admitting the preliminary

hearing testimony of M.M. pursuant to Evidence Code section 1291. We disagree.

“A criminal defendant has the right, guaranteed by the confrontation clauses of

both the federal and state Constitutions, to confront the prosecution’s witnesses.”

(People v. Herrera (2010) 49 Cal.4th 613, 620.) “ ‘Traditionally, there has been “an

exception to the confrontation requirement where a witness is unavailable and has given

testimony at previous judicial proceedings against the same defendant [and] which was

subject to cross-examination . . . .” ’ ” (Id. at p. 621) This exception is codified in

Evidence Code section 1291, which provides that a witness’s former testimony, such as

preliminary hearing testimony, is admissible where the declarant is unavailable as a

witness; the party against whom the former testimony is offered was a party to the prior

action or proceeding involving the former testimony; and the party had the right and

18
opportunity to cross-examine the declarant with an interest and motive similar to that

which he has at the current hearing. (Herrera, at p. 621.)

On appeal, defendant does not dispute that: M.M. was unavailable at the time of

trial; the People made a diligent and good faith effort to secure M.M.’s availability at

trial; defendant was a party to the action at the time of M.M.’s preliminary hearing

testimony; or that he had a right and opportunity to cross-examine M.M. at the time of the

preliminary hearing. Defendant’s sole contention is that his interests and motives at the

time of the preliminary hearing were not sufficiently similar to those at the time of trial.

However, the preliminary hearing and trial involved the same parties, addressed the same

set of criminal charges against defendant, and addressed the same set of events giving

rise to those charges. The potential penalty defendant faced was the same at the time of

the preliminary hearing and at the trial, and defendant’s general objectives—to establish

innocence, discredit the prosecution’s case, or elicit evidence mitigating the charges

brought against him—were identical in both proceedings.

Defendant’s argument on appeal that he was unable to effectively cross-examine

M.M. in support of a heat of passion defense at the time of the preliminary hearing is

unpersuasive. At the time of his preliminary hearing, M.M. provided direct, inculpatory

testimony that defendant had a potential motive to kill John Doe, defendant immediately

resorted to violence against John Doe without any exchange of words, and that the

manner in which defendant stabbed John Doe was a “gutting.” Accordingly, defendant

had every incentive at the time of the preliminary hearing to either discredit M.M.’s

19
testimony or elicit mitigating factors or circumstances surrounding these events on cross-

examination.

The fact that defense counsel in retrospect would have preferred to direct

additional questions to M.M. regarding a heat of passion defense does not dictate a

different outcome. “ ‘[A]s long as a defendant was provided the opportunity for cross-

examination, the admission of preliminary hearing testimony under Evidence Code

section 1291 does not offend the confrontation clause of the federal Constitution simply

because the defendant did not conduct a particular form of cross-examination that in

hindsight might have been more effective.’ ” (People v. Carter (2005) 36 Cal.4th 1114,

1173-1174. “[T]he admissibility of this evidence [does] not depend on whether

defendant availed himself fully of that opportunity.” (People v. Zapien (1993) 4 Cal.4th

929, 975; see People v. Cudjo (1993) 6 Cal.4th 585, 618.) Accordingly, we find no error

in the trial court’s admission of M.M.’s preliminary hearing testimony and decline to

reverse defendant’s conviction on this ground.

C. Any Error for Failure To Conduct an Ability To Pay Hearing Prior to Assessment of

Fines and Fees Does Not Warrant Reversal

Finally, defendant argues the trial court was required to conduct an ability to pay

hearing prior to imposing monetary fines and fees pursuant to Dueñas, supra, 30

Cal.App.5th at page 1160, and the matter must be remanded for the trial court to conduct

such a hearing. Here, the trial court imposed a $10,000 restitution fine (§1202.4,

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subd. (b)), and $654.58 in various court fees and assessments.6 We conclude that

defendant has forfeited this claim by failing to preserve the issue below and further

conclude that on this record, defendant has not established prejudice warranting remand.

The failure to conduct an ability to pay hearing with respect to fines and fees is

considered error under Dueñas. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) However,

as the People correctly note, Dueñas was decided in January of 2019—months prior to

defendant’s sentencing hearing in July of 2019. Accordingly, defendant could have

specifically objected to the imposition of any fine or fee under Dueñas at the time of

sentencing, and his failure to do so forfeits the issue on appeal. (See People v. Taylor

(2019) 43 Cal.App.5th 390, 399-400 (Taylor) [failure to object to restitution fine based

upon inability to pay forfeits issue on appeal]; People v. Gutierrez (2019) 35 Cal.App.5th

1027, 1033 [same].)

Additionally, we disagree with defendant’s claim that his counsel’s failure to

request an inability to pay hearing constituted ineffective assistance of counsel requiring

reversal. To prevail on a claim of ineffective assistance of counsel, defendant “must

establish not only deficient performance, i.e., representation below an objective standard

of reasonableness, but also resultant prejudice. [Citation.] . . . [P]rejudice must be

affirmatively proved; the record must demonstrate ‘a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.’ ”

6 Specifically, the trial court imposed $514.58 in administrative and booking fees
(Gov. Code, § 29550); a $60 criminal conviction assessment (Gov. Code, § 70373); and
an $80 court operation assessment fee (§ 1465.8, subd. (a)(1)).

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(People v. Bolin (1998) 18 Cal.4th 297, 333.) Further, a reviewing court “ ‘ “ ‘need not

determine whether counsel’s performance was deficient before examining the prejudice

suffered by the defendant as a result of the alleged deficiencies.’ ” ’ ” (People v. Holt

(1997) 15 Cal.4th 619, 703.)

Here, while counsel did not specifically reference Dueñas, supra, 30 Cal.App.5th

1157, we note that defense counsel did bring the prospect of defendant’s inability to pay

to the trial court’s attention at the time of sentencing. As this court recently explained in

Taylor, even before Dueñas, the defendant’s inability to pay was an express statutory

factor for the trial court’s consideration in setting any amount of restitution above the

statutory minimum under section 1202.4. (Taylor, supra, 43 Cal.App.5th at p. 399)

Despite defendant’s claimed indigence, the trial court imposed a $10,000 restitution fine.7

Accordingly, defendant has not met his burden to show a reasonable probability of a

different outcome had defense counsel simply referenced Dueñas in arguing against the

imposition of defendant’s restitution fine.

With respect to the remaining fees of $654.58, we conclude that even in the

absence of forfeiture and assuming error under Dueñas, supra, 30 Cal.App.5th 1157,

defendant has not shown prejudice warranting reversal. Alleged error under Dueñas is

not reversible per se but instead subject to a harmless error analysis. (People v. Jones

(2019) 36 Cal.App.5th 1028, 1034-1035 (Jones).) Since an alleged error under Dueñas

involves a violation of due process, we consider whether the error was harmless beyond a

7 On appeal, defendant does not claim that the amount of the fine constituted an
abuse of discretion in light of the statutory factors set forth in section 1202.4.

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reasonable doubt. (Jones, at p. 1035; see Chapman v. Cal. (1967) 386 U.S. 18, 24.)

“Because a no ability to pay hearing was held, it is not defendant’s burden on appeal to

establish his eligibility for relief. Nevertheless, we will find Dueñas error harmless if the

record demonstrated he cannot make such a showing.” (Jones, at p. 1035.)

Here, there is little evidence in the record regarding defendant’s current assets or

earning capacity. Nevertheless, “the trial court should not limit itself to considering only

whether [a defendant] [has] the ability to pay at the time of the sentencing hearing. . . .

[I]t is appropriate for the court to consider the wages that [a defendant] may earn in

prison.” (People v. Kopp (2019) 38 Cal.App.5th 47, 96, review granted Nov. 13, 2019,

S257844;Jones, supra, 36 Cal.App.5th at p. 1035.) Thus, in considering the prejudicial

impact of any failure to conduct an ability to pay hearing, we cannot ignore the fact that

defendant was sentenced to a very lengthy term of 25 years to life, plus an additional 14

years, in state prison. Even assuming defendant may only be capable of earning prison

wages for some portion of this incarceration and assuming defendant’s actual time in

prison may be potentially reduced for an award of conduct credit, the suggestion he will

be unable to earn and pay $654.58 over the course of such a lengthy sentence is

untenable, and we conclude that any error under Dueñas was harmless.

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 IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.
We concur:

McKINSTER
Acting P. J.

RAPHAEL
J.

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