People v. Baxter CA3

Filed 10/19/20 P. v. Baxter CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Shasta)
----

THE PEOPLE, C087736

Plaintiff and Respondent, (Super. Ct. No. 16F336)

v.

ANTHONY HARRISON BAXTER,

Defendant and Appellant.

Defendant Anthony Harrison Baxter murdered Michael Helsby and Georgia
Engelhaupt because, as defendant explained to police following his arrest, they
“disrespected” his wife and her daughter. The means he employed was strangulation and
stabbing each victim in the chest with a butter knife. At trial, defendant acknowledged
killing Helsby and Engelhaupt, but claimed he initially intended only to assault Helsby
and “ended up flipping” and “taking lives that [he] did not want to take.” However,
defendant also admitted he stabbed both victims with the butter knife because strangling

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them “was taking so long” and he felt he “had to just hurry up and finish the situation.”
Defendant then left the scene in Engelhaupt’s car.
Defendant was convicted by jury of two counts of first degree murder and one
count of unauthorized taking or driving a vehicle. The jury also found a multiple-murder
special-circumstance allegation attached to both murder counts to be true. Following a
court trial on the question of whether defendant was legally insane at the time he
committed the murders, the trial court found defendant had not carried his burden of
proving the defense. Defendant was sentenced to state prison to serve two consecutive
terms of life without the possibility of parole plus a consecutive determinate term of three
years.
On appeal, defendant contends: (1) his trial counsel provided constitutionally
deficient assistance by failing to present, during the guilt phase of the trial, expert
psychological testimony relevant to whether or not defendant killed Helsby and
Engelhaupt both with malice aforethought and with premeditation and deliberation; (2)
the trial court prejudicially abused its discretion and violated defendant’s federal
constitutional rights by excluding lay opinion testimony from defendant concerning his
mental disability; (3) the trial court prejudicially abused its discretion and also violated
defendant’s constitutional rights by allowing the prosecution to impeach his testimony
with prior convictions; (4) the prosecutor engaged in prejudicial prosecutorial misconduct
by informing the jury defendant agreed to take a polygraph examination; and (5) relying
on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant claims the trial
court violated his constitutional right to due process by imposing various fines, fees, and
assessments without first determining his ability to pay.
We affirm. Defendant cannot prevail on his claim of ineffective assistance of
counsel because there is no reasonable probability of a more favorable outcome had
defense counsel obtained admission of the psychological evidence defendant now wishes
had been admitted during the guilt phase of the trial. The evidence supporting the jury’s

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conclusion defendant murdered Helsby and Engelhaupt both with malice aforethought
and with premeditation and deliberation was very strong. Defendant essentially admitted
as much. Twice. Compared to this strong evidence defendant committed two first degree
murders, the psychological evidence admitted during the sanity phase of the trial did not,
as a matter of law, support a finding of provocation sufficient to reduce these murders to
voluntary manslaughter, and only marginally supported a reduction to second degree
murder. We also reject defendant’s assertions of evidentiary error. Defendant’s claim of
prosecutorial misconduct is forfeited; nor did defense counsel provide constitutionally
deficient assistance by failing to preserve the claim. Finally, we also reject defendant’s
Dueñas claim.
FACTS
In January 2016, defendant’s wife, M., was living in a duplex in Anderson with
her sister, daughter, nephew, and Helsby, who moved into the unit prior to M.’s family.
Helsby initially allowed M.’s sister and nephew to move into one of the unit’s bedrooms.
About a week before the murders, he also allowed M. and her six-year-old daughter to
move into a second bedroom. M. and her sister were friends with the tenant of the
duplex’s other unit, C., who introduced them to Helsby before he let them move in.
Helsby’s girlfriend, Engelhaupt, did not live there, but periodically came over and spent
the night. She did not like that Helsby allowed so many people to move in with him.
Defendant came over to visit M. a few times during the time she lived with
Helsby. Defendant’s relationship with M. was “rocky” and they “argu[ed] constantly.”
One such argument occurred the night of the murders. When defendant came over to
visit M. that evening, Helsby was cooking soup in the kitchen. C. and his girlfriend, N.,
were also at the residence. At some point, Helsby pulled a pair of women’s underwear
out of his pocket and smelled them in front of defendant. The underwear belonged to M.,
who had done her laundry that day. Helsby’s conduct angered defendant. As M.
described in her testimony, defendant’s face “went . . . bright red” and he clenched both

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fists. The record does not reveal whether any words were exchanged between defendant
and Helsby at that point, but N. testified she heard defendant and M. arguing loudly
outside and described defendant’s part of the exchange: “He’s talking about he’s going
to kill everybody.” Defendant denied making any threats, but acknowledged in his
testimony that his anger at Helsby’s conduct was intensified by the methamphetamine he
ingested a few hours earlier.
After this incident, C. and N. gave M. and her daughter a ride to a friend’s house.
Defendant joined them for a portion of the ride, but got out at a convenience store after he
and M. continued to argue in the car. At some point during the next two or three hours,
defendant returned to the duplex and murdered both Helsby and Engelhaupt, who
apparently had come over in the meantime.
Defendant is the only living person who knows the details of these particular
murders. We therefore rely on the statement he gave to police following his arrest and
his trial testimony in providing the following summary, noting he was quite forthcoming
in both. Defendant told the interrogating officers that he “was fed up with [M.] bein’
disrespected,” so he returned to the duplex. When he walked inside without knocking, he
found Helsby and Engelhaupt asleep on opposite sides of the couch in the living room.
Defendant reached over the back of the couch and grabbed Helsby by the throat, initially
“plannin’ on just chokin’ him out.” Helsby woke up, “but he couldn’t do nothing.” After
a few minutes of choking Helsby, Engelhaupt woke up and grabbed her cell phone.
Defendant “couldn’t have her doin’ that,” so he let go of Helsby, came up behind
Engelhaupt, and used his arm to choke her “until her body went limp.” Helsby was lying
on the couch “gasp[ing] for air” while defendant choked Engelhaupt, but eventually
started to get up, so defendant grabbed a wine bottle that was nearby and “hit him over
the head, um, twice.” The second blow caused the wine bottle to shatter and sent
Helsby’s blood onto defendant’s shirt. Defendant then picked up a butter knife from the

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nearby kitchen counter and stabbed Helsby twice in the chest before walking over to
Engelhaupt and also stabbing her in the chest with the knife.
Defendant claimed he “just snapped,” but also explained that when Engelhaupt
“got up, went to try to use her phone,” that was when he realized he “had to take them
both out.” Defendant also told the officers he stabbed the victims because choking them
was taking too long and he “had to make sure” they were dead. When asked to be more
specific about the disrespect he felt the victims had shown M., defendant responded that
Engelhaupt “disrespected” M. by telling Helsby to kick her and her daughter out of the
duplex and “into the cold,” adding: “And that - that’s bullshit. That’s a little girl.” With
respect to Helsby, defendant claimed “he has, uh, broken into their bedrooms, uh, took all
their stuff, throwed them, um, outside into the mud. Um, he’s, uh, blocked them out of
the apartment, you know? He - he’s basically, um - he’s tried to put them out, you
know?”
During defendant’s testimony at trial, he repeated the claim that Helsby threw
M.’s family’s belongings “out in the rain” and that Engelhaupt told Helsby to do so.
However, he also described two additional incidents involving Helsby, neither of which
he told the interrogating officers. First, he claimed M. told him that Helsby had come
into her room at night and M. “woke up with him standing over the top of [her and her
daughter] and watching them while they were sleeping.” The second incident involved
Helsby smelling M.’s underwear, described above.1

1 M. largely corroborated defendant’s account of the underwear incident, although
defendant testified he believed Helsby smelled two pairs of underwear, one he believed
belonged to M. and the other he believed belonged to her daughter, whereas M. testified
she saw Helsby holding one pair of her underwear and did not see him smelling them.
With respect to the other incident, M. testified she told defendant that Helsby had tried to
get into her bedroom, but she did not remember telling him Helsby was in the room
standing over her and her daughter when she woke up.

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 Defendant testified that he was named after Saint Anthony and “was raised to be a
family protector.” Although M.’s daughter, K., was not his biological daughter, she was
three years old when defendant came into her life and he considered her to be his
daughter, adding: “Before her father passed away, I made a vow to him . . . that I would
watch out after [K.] as my own biological daughter.” Defendant testified to various
“learning disabilities” he had while he was in school and continuing “all the way up until
now.” He also testified to having suffered physical and sexual abuse as a child and
claimed Helsby’s conduct brought back memories of the latter abuse. Defendant claimed
he ingested methamphetamine about four hours before killing Helsby and Engelhaupt and
stated he “was still under the influence” when he did so. After he saw Helsby smell M.’s
underwear that night, he was “very angered” and this anger was intensified by the
methamphetamine.
Turning to the murders, defendant testified he went to the duplex that night not to
kill anyone, but only to “physically check [Helsby], slap him around a few times,” for
disrespecting M. and her daughter. When asked whether something happened to cause
defendant to “elevate the attack,” defendant answered: “Yes. As -- when I first got there,
you know, I saw them asleep. I was just going to choke Helsby out. However, it was
taking a long time. And by that, he ended up flailing his arms and just moving them
sporadically. [¶] And by him doing so, he had his -- [Engelhaupt’s] feet and had woken
her up. So by him waking her up, I had to act as if he was choking so no -- no cops
would be called. And then -- then she went to call the off -- officers, I had asked her to
get me [Helsby’s] heart medicine, okay? And when he -- and when she went to grab the
medicine and she got close enough to give some to [Helsby], that’s when I -- I had to
strange -- not strangle her, ‘cuz I honestly wasn’t trying to kill her, but I -- I did end up
choking her out. [¶] And then I knew that she already saw my face, so it has gone too
far. And so as I had [Engelhaupt], I -- the -- where I was standing was against the back of
the couch. And the couch is a corner couch that was pushed up against the kitchen

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counter. And on the corner of the counter was a butter knife. It wasn’t plan -- planted
there by me or nothing like that. The apartment was kind of dirty. And it was just there.
[¶] So as -- as -- as I was strangling [Engelhaupt], I saw Helsby stirring. And I couldn’t
have him getting up and getting to the phone, so I grabbed the bottle that was right there
on the counter as well, which was an old wine bottle-type, one of the thick bottles, and I
had hit him rapidly twice over the head, which it had shattered on the second time and he
fell. [¶] The -- then I -- this was taking so long. There was already bloodshed, so I had
to just hurry up and finish the situation. And that’s when I picked up the butter knife,
[Engelhaupt] was already passed out. So I plunged the butter knife into [Helsby’s] chest
. . . . And then I did -- I -- I had to repeat the same action, regrettably, on [Engelhaupt].”
After committing the murders, defendant took Engelhaupt’s car and went to pick
up M. and her daughter from where C. had dropped them off earlier in the night. M.
described defendant’s demeanor as “kind of down, but kind of hyper.” Defendant told
her, “Let’s go, we got to go now.” M. said she wanted to go to her father’s house and
asked whose car he was driving. Defendant said it was “his homegirl’s car” and told M.:
“Well when we get to your dad’s house, don’t warn anybody, but we’re going to go on a
road trip.” Defendant also told M. “he took care of what he had to do over at Mike’s.”
They arrived at M.’s father’s house early the next morning. Her father also asked
defendant where he got the car. Defendant again said the car belonged to his “homegirl.”
Defendant then poured himself some coffee and went outside, saying, “he was going to
clean the car out,” returning a short time later to burn some papers in the fireplace. Later
that morning, defendant told M.’s father the car was actually “hot.” M.’s father asked
defendant to remove the car from his property. Defendant did so, and returned on foot
one or two hours later. A short time after that, defendant asked M.’s father for a ride and
was dropped off at the fairgrounds.
The bodies of Helsby and Engelhaupt were found later in the afternoon. We need
not recount the details of their discovery here, or set forth the remainder of the evidence

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connecting defendant to the murders. It will suffice to state defendant’s account of
strangling and stabbing Helsby and Engelhaupt was confirmed by the physical evidence
and testimony from the forensic pathologist who examined the victims’ bodies. We do
note the murder weapon was never found; defendant admitted “he put it down a storm
drain.” Defendant also admitted he took the victims’ cell phones, said he threw them into
a field, and helped an investigating officer draw a map of where he did so. One of the
cell phones was found at the designated location; the other was found in a box at the
location where defendant was arrested.
Based on the foregoing set of facts, defendant was convicted by jury of two counts
of first degree murder, one count of unauthorized taking or driving a vehicle, and the jury
also found a multiple-murder special-circumstance allegation attached to both murder
counts to be true. Evidence adduced during the subsequent court trial on the question of
whether defendant was legally insane at the time he committed the murders will be set
forth in some detail during the discussion portion of the opinion, to which we now turn.
DISCUSSION
I
Ineffective Assistance of Counsel
Defendant contends his trial counsel provided constitutionally deficient assistance
by failing to present, during the guilt phase of the trial, expert psychological testimony
relevant to whether or not defendant killed Helsby and Engelhaupt both with malice
aforethought and with premeditation and deliberation. We are not persuaded.
A.
Psychological Testimony Adduced During the Sanity Phase
After defendant testified to being, as he put it, “not correctly sane in my mind,”
when he committed the murders, and further stating, among other things, that he believed
“people were chasing” and “out to kill” him, and that he sought mental healthcare during
the week before the murders and was prescribed an antidepressant medication, the

8
prosecution adduced testimony from two clinical psychologists, Dr. Kent Caruso and Dr.
Mark Saunders.
Dr. Caruso testified he was appointed by the court to evaluate defendant. During a
three-hour interview conducted at the jail, Dr. Caruso noted defendant’s thinking “was at
times overly simplistic and a bit concrete,” but “otherwise adequately clear, lucid, linear.”
Defendant’s communication ability indicated “he was not a highly efficient processor of
information.” These observations were consistent with defendant’s score on an IQ test
administered by the doctor: “The result indicated that probably, at best, low average,
innate verbal intelligence, with some verbal skills at elementary school levels, some
educational levels, at third, fourth grade. Some verbal intellectual problem solving,
bordering on mild mental retardation.” The doctor also noted defendant’s educational
and work history indicated “there may have been some developmental problems or other
problems related to brain injury due to early onset substance abuse.”
Dr. Caruso also testified defendant exhibited paranoid and persecutory thinking,
explaining: “[H]e was a very suspicious individual. He had persecutory thoughts, tended
to see things, events, various circumstances outside himself as being to blame for his
problems.” The doctor explained the “overall picture” of defendant’s mental health was a
“very complex picture because of his childhood background of abuse and neglect, severe
abuse and neglect,” including “significant depravations,” and “[t]he possibility of brain
injury due to ingestion of drugs from marijuana at an early age to methamphetamine,
LSD.” Dr. Caruso added this likely brain damage would have “negatively impacted, his
mind, his ability to problem solve, whether it was back in school during his teens or
currently, even though, he was eventually able to get his GED at the jail.”
Dr. Caruso diagnosed defendant as having antisocial personality disorder with
chronic depression, for which he was prescribed an antidepressant, as well as
posttraumatic stress disorder, all of which were “exacerbated by the chronic substance

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abuse, and, primarily, the methamphetamine.” However, nothing in Dr. Caruso’s
findings indicated defendant was unable to appreciate the wrongfulness of his conduct.
Dr. Saunders testified he interviewed defendant in six sessions, administered
various psychological examinations, also interviewed other individuals who knew
defendant, and reviewed various documents, such as police reports and mental health
records. Defendant “indicated that he had a long mental health history that dated back
from the time he was a child. He indicated a history of severe emotional, physical, and
sexual abuse.” Defendant also told the doctor he began drinking alcohol as a child and
progressed to LSD, PCP, and methamphetamine during his teenage years. Defendant’s
prison records indicated he was diagnosed with an unspecified mood disorder,
polysubstance abuse, and posttraumatic stress disorder. Unlike Dr. Caruso, Dr. Saunders
found defendant’s intellectual ability to be within “a normal range of intellectual
functioning.”
Dr. Saunders diagnosed defendant with substance abuse disorder, stimulant-
induced psychotic disorder, and posttraumatic stress disorder. The doctor opined
defendant’s crimes were “consistent with a lifetime of reacting, sometimes violently, to
perceptions of -- about being disrespected or his family being disrespected,” but were
“not consistent [with] being in some way guided by psychotic beliefs or behaviors.”
B.
Analysis
Defendant argues the foregoing psychological testimony, although it “did not
support an insanity defense, would have supported the subjective element of a defense of
provocation and heat of passion,” and “[t]he guilt phase jury should have known that
[defendant] was subject to compounding mental disorders, in order to determine the
presence of the necessary mental states for first degree murder.” Defendant also notes
the trial court specifically ruled “both sides may offer evidence of mental illness upon a
proper foundation as to the issue of whether or not the Defendant actually formed a

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required specific intent, premeditated, deliberated, or harbored malice aforethought,” and
argues his trial counsel was constitutionally ineffective for failing to adduce this evidence
during the guilt phase of the trial.
A criminal defendant has the right to the assistance of counsel under both the Sixth
Amendment to the United States Constitution and article I, section 15, of the California
Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) This right “entitles the
defendant not to some bare assistance but rather to effective assistance. [Citations.]
Specifically, it entitles him [or her] to ‘the reasonably competent assistance of an attorney
acting as his [or her] diligent conscientious advocate.’ [Citations.]” (Ibid.) The burden
of proving a claim of ineffective assistance of counsel is squarely upon the defendant.
(People v. Camden (1976) 16 Cal.3d 808, 816.) “ ‘In order to demonstrate ineffective
assistance of counsel, a defendant must first show counsel’s performance was “deficient”
because his [or her] “representation fell below an objective standard of reasonableness
. . . under prevailing professional norms.” [Citations.] Second, he [or she] must also
show prejudice flowing from counsel’s performance or lack thereof. [Citation.]
Prejudice is shown when there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” ’ ” (In re Harris (1993) 5 Cal.4th 813, 832-833; Strickland v. Washington
(1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].)
We need not determine whether defense counsel’s failure to present psychological
testimony on the issues of provocation and heat of passion fell below an objective
standard of reasonableness because there is no reasonable probability of a more favorable
outcome had counsel obtained admission of the evidence. In assessing prejudice under
the reasonable probability standard, “the court ‘may consider . . . whether the evidence
supporting the existing judgment is so relatively strong, and the evidence supporting a
different outcome is so comparatively weak,’ that there is no reasonable probability the

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jury would have decided differently . . . .” (People v. Wright (2015) 242 Cal.App.4th
1461, 1495 [applying the standard for prejudice in People v. Watson (1956) 46 Cal.2d
818]; see also People v. Ocegueda (2016) 247 Cal.App.4th 1393, 1407, fn. 4 [The
standard for prejudice applied in reviewing error under Watson is essentially the same
standard for prejudice applied to the test for ineffective assistance of counsel].)
“Murder is the unlawful killing of a human being . . . with malice aforethought.”
(Pen. Code, § 187, subd. (a).)2 Such malice “may be express or implied.” (§ 188.)
Express malice “requires an intent to kill that is ‘unlawful’ because . . . ‘ “there is no
justification, excuse, or mitigation for the killing recognized by the law.” ’ [Citation.]
[¶] Malice is implied when an unlawful killing results from a willful act, the natural and
probable consequences of which are dangerous to human life, performed with conscious
disregard for that danger.” (People v. Elmore (2014) 59 Cal.4th 121, 133.) Section 189
describes a number of unlawful killings that are statutorily defined as “murder of the first
degree,” including a “willful, deliberate, and premeditated killing.” (§ 189, subd. (a).)
“All other kinds of murders are of the second degree.” (Id., subd. (b).)
“Manslaughter is a lesser included offense of murder. . . . Heat of passion is a
mental state that precludes the formation of malice and reduces an unlawful killing from
murder to manslaughter. Heat of passion arises if, ‘ “at the time of the killing, the reason
of the accused was obscured or disturbed by passion to such an extent as would cause the
ordinarily reasonable person of average disposition to act rashly and without deliberation
and reflection, and from such passion rather than from judgment.” ’ [Citation.] Heat of
passion, then, is a state of mind caused by legally sufficient provocation that causes a
person to act, not out of rational thought but out of unconsidered reaction to the
provocation. While some measure of thought is required to form either an intent to kill or

2 Undesignated statutory references are to the Penal Code.

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a conscious disregard for human life, [i.e., express or implied malice,] a person who acts
without reflection in response to adequate provocation does not act with malice.”
(People v. Beltran (2013) 56 Cal.4th 935, 942, fn. omitted.)
Moreover, “if the provocation is insufficient to reduce a murder to manslaughter, it
may nevertheless reduce the murder from first to second degree.” (People v. Wright,
supra, 242 Cal.App.4th at p. 1494.) “Provocation of a kind, to a degree, and under
circumstances insufficient to fully negative or raise a reasonable doubt as to the idea of
both premeditation and malice (thereby reducing the offense to manslaughter) might
nevertheless be adequate to negative or raise a reasonable doubt as to the idea of
premeditation or deliberation, leaving the homicide as murder of the second degree; i.e.,
an unlawful killing perpetrated with malice aforethought but without premeditation and
deliberation.” (People v. Thomas (1945) 25 Cal.2d 880, 903.)
The evidence supporting the jury’s conclusion defendant murdered Helsby and
Engelhaupt both with malice aforethought and with premeditation and deliberation was
very strong. In arguing the strength of such evidence, the Attorney General relies on
People v. Anderson (1968) 70 Cal.2d 15, in which our Supreme Court noted three types
of evidence typically provide support to a murder conviction based on premeditation and
deliberation, i.e., planning activity, motive, and manner of killing. “[T]o sustain a verdict
of premeditated and deliberate murder, [Anderson] required (1) extremely strong
evidence of planning, (2) evidence of motive in conjunction with evidence of planning or
of a calculated manner of killing, or (3) evidence of all three indicia of premeditation and
deliberation.” (People v. Memro (1995) 11 Cal.4th 786, 863; see Anderson, at pp. 26-
27.) However, in People v. Perez (1992) 2 Cal.4th 1117, our Supreme Court cautioned
that “Anderson did not purport to establish an exhaustive list that would exclude all other
types and combinations of evidence that could support a finding of premeditation.” (Id.
at p. 1125.) Since Perez, the court has cautioned on multiple occasions “ ‘[u]nreflective
reliance on Anderson for a definition of premeditation is inappropriate. The Anderson

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analysis was intended as a framework to assist reviewing courts in assessing whether the
evidence supports an inference that the killing resulted from preexisting reflection and
weighing of considerations. It did not refashion the elements of first degree murder or
alter the substantive law of murder in any way.’ [Citation.] In other words, the Anderson
guidelines are descriptive, not normative. ‘The Anderson factors, while helpful for
purposes of review, are not a sine qua non to finding first degree premeditated murder,
nor are they exclusive.’ [Citation.]” (People v. Koontz (2002) 27 Cal.4th 1041, 1081; see
also People v. Hovarter (2008) 44 Cal.4th 983, 1019.)
Here, defendant’s statement to police and trial testimony, corroborated by the
physical evidence and testimony from other witnesses, established both motive and a
calculated manner of killing. Defendant admitted to the interrogating officers, and to the
jury at trial, that he killed Helsby and Engelhaupt because they disrespected M. and her
daughter. Helsby disrespected M. by smelling her underwear a few hours before
defendant killed him. Defendant also believed Helsby had entered M. and her daughter’s
bedroom at night on at least one occasion and stood over them watching them sleep.
Defendant further believed Helsby and Engelhaupt disrespected M. and her daughter by
seeking to kick them out of Helsby’s residence. While defendant claimed he went over to
the duplex only to “physically check [Helsby], slap him around a few times,” the jury
could reasonably have concluded defendant possessed a strong motive to kill both Helsby
and Engelhaupt.
Defendant also admitted to killing the victims in a calculated manner. He began
by strangling Helsby, switched to strangling Engelhaupt when she woke up and tried to
call for help, hit Helsby over the head with a wine bottle when he began to recover from
the aborted strangulation, and then stabbed both victims in the chest with a butter knife.
Defendant resorted to stabbing the victims because, as he candidly admitted, “this was
taking so long” and he “had to just hurry up and finish the situation.” He stabbed Helsby
twice, and believed he stabbed Engelhaupt twice (although she was actually stabbed only

14
once), because he “had to make sure” they were dead. Thus, in addition to the calculated
manner of killing, defendant admitted engaging in the required calculation. Even if the
jury believed he initially intended to “check” Helsby, that intent changed during the
extended period of time the murders took to complete. By the time defendant stabbed
both Helsby and Engelhaupt with the butter knife, he made a cold and calculated decision
to kill.
Compared to the strong evidence defendant committed two first degree murders,
the psychological evidence admitted during the sanity phase of the trial did not support a
finding of provocation sufficient to reduce these murders to voluntary manslaughter, and
only marginally supported a reduction to second degree murder.
Beginning with heat of passion voluntary manslaughter, even if we assume such
evidence tended in reason to make it more likely defendant “actually, subjectively, kill[ed
the victims] under the heat of passion,” as our Supreme Court explained in People v.
Steele (2002) 27 Cal.4th 1230, “ ‘this heat of passion must be such a passion as would
naturally be aroused in the mind of an ordinarily reasonable person under the given facts
and circumstances,’ because ‘no defendant may set up his [or her] own standard of
conduct and justify or excuse himself [or herself] because in fact his [or her] passions
were aroused, unless further the jury believe that the facts and circumstances were
sufficient to arouse the passions of the ordinarily reasonable [person].’ [Citation.]” (Id.
at pp. 1252-1253, italics added.) In that case, the court went on to explain that although
evidence of the defendant’s intoxication coupled with “various mental deficiencies” and
“psychological dysfunction due to traumatic experiences . . . may have satisfied the
subjective element of heat of passion,” such evidence “does not satisfy the objective,
reasonable person requirement, which requires provocation by the victim. [Citation.]
‘To satisfy the objective or “reasonable person” element of this form of voluntary
manslaughter, the accused’s heat of passion must be due to “sufficient provocation.” ’

15
[Citation.] ‘[E]vidence of defendant’s extraordinary character and environmental
deficiencies was manifestly irrelevant to the inquiry.’ [Citation.]” (Id. at p. 1253.)
Here, there was no evidence Engelhaupt provoked defendant at all, let alone to an
extent sufficient to cause a reasonable person to act rashly and without reflection.
Helsby, on the other hand, did provoke defendant by smelling M.’s underwear in front of
him in the kitchen the night of the murder. However, that happened two or three hours
before defendant returned to the residence and killed him. Even assuming this conduct
would have supported mitigation to voluntary manslaughter had defendant killed Helsby
immediately in response to the provocation, we conclude no reasonable person would
have remained sufficiently inflamed after such an extended period of time to mitigate
Helsby’s murder to voluntary manslaughter. Thus, even had the jury been informed of
defendant’s mental disability and other psychological diagnoses, there was no basis to
convict defendant of voluntary manslaughter under a heat of passion theory.
Turning to second degree murder, “a subjective test applies to provocation as a
basis to reduce malice murder from the first to the second degree: it inquires whether the
defendant in fact committed the act because he [or she] was provoked. The rationale is
that provocation may negate the elements of premeditation, deliberateness and
willfulness that are required for that degree of the crime.” (People v. Jones (2014) 223
Cal.App.4th 995, 1000.) Again, we conclude no reasonable jury would have concluded
Engelhaupt provoked defendant at all. Moreover, even if the jury were to have
concluded, based on the psychological testimony defendant wishes had been admitted in
the guilt phase of the trial, that defendant began his assault on Helsby due to Helsby’s
earlier provocation, defendant’s own testimony and prior statement to police candidly
admitted he stabbed both Helsby and Engelhaupt, not because of the provocation, but
because strangling them was taking too long. In addition, the evidence also establishes
that defendant killed Engelhaupt to eliminate a witness to his assault on Helsby.

16
 We conclude there is no reasonable probability of a different outcome had the jury
heard the psychological testimony admitted during the sanity phase of the trial.
II
Exclusion of Lay Opinion Testimony
Defendant also claims the trial court prejudicially abused its discretion and
violated his federal constitutional rights by excluding lay opinion testimony from
defendant concerning his mental disability. We disagree.
A.
Additional Background
The prosecution moved in limine to preclude defendant from testifying to having a
mental disability or other mental health diagnosis, arguing such testimony would amount
to inadmissible hearsay, lack foundation, and “is not relevant unless and until an expert
could then relate how that is probative of any issue in this case.” Prior to defendant’s
testimony, after the trial court informed counsel that “both sides may offer evidence of
mental illness upon a proper foundation as to the issue of whether or not the Defendant
actually formed a required specific intent, premeditated, deliberated, or harbored malice
aforethought,” the prosecution asked whether this ruling would allow defendant to “get
up there and tell the jury he’s mentally retarded.” The trial court responded: “That’s
assuming a proper foundation and basis for that opinion. And I’m not sure the comment
that you just made or the example you just gave me would satisfy that requirement. But
I’m saying, certainly, it is proper to offer evidence that goes to whether or not the
Defendant actually formed specific intent, premeditation, deliberation, and so forth.”
The prosecutor then objected to the proffer, arguing defendant would either be
“relying on something an expert would have told him in the past, which is hearsay,” or
providing a diagnosis of himself without the requisite qualifications to offer such an
expert opinion. The trial court agreed defendant could not offer a diagnosis, but indicated
“an individual may testify as to particular symptoms or behaviors that that individual

17
personally perceived.” The prosecutor then clarified his position that while defendant
could testify that he struggled in school, he should not be allowed to testify to having a
diagnosed mental disability. The trial court agreed, stating, “that is the line I’m
drawing.” Defense counsel then argued defendant should be allowed to testify: “. . . I
am mentally disabled. I have a speech impediment. I have learning disabilities. I don’t
process things the way other people process things.” Counsel argued such testimony
would not be expert testimony of a specific diagnosis, but instead “would be sort of a lay
opinion.” The trial court indicated its belief that some of the examples given by defense
counsel crossed the line into expert testimony, but reserved ruling until it was able to
“take them on a question-by-question basis.”
During defendant’s testimony, defense counsel asked whether he had a speech
impediment. When defendant answered that he did, counsel asked whether he knew the
reason why. Defendant answered: “Yes. I was -- am I allowed to say it? I was born
mentally retarded and --” At this point in defendant’s answer, the prosecutor objected on
grounds of relevance and foundation. The trial court sustained the objection on the latter
ground. Defense counsel then asked whether defendant had a speech impediment as long
as he could remember. Defendant answered: “Yes, sir. I went through therapy all
through my childhood ages -- all the way up until now. I’m still going through therapy. I
have trouble comprehending. I have trouble --” Defense counsel then interrupted to ask
whether defendant had “learning difficulties in school” and “what were those?”
Defendant answered that he did and explained: “Due to the fact that I was slow and I had
these learning disabilities, I was placed in what we call -- or the school system calls SED,
which stands for seriously emotionally disturbed. And I went through these classes all
through to my senior year.” When counsel asked what “being slow” meant to defendant,
he answered: “Being slow -- well, for a prime example, which would be just second
nature to you -- like, for example, knowing your times tables. I, myself, I do not know

18
my times tables, and still have to use paper and all that stuff so I can be able to add or
subtract times tables.”
B.
Analysis
Evidence Code section 800 provides: “If a witness is not testifying as an expert,
his [or her] testimony in the form of an opinion is limited to such an opinion as is
permitted by law, including but not limited to an opinion that is: [¶] (a) Rationally based
on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his [or
her] testimony.” This provision “merely requires that [lay] witnesses express themselves
at the lowest possible level of abstraction. [Citation.] Whenever feasible ‘concluding’
should be left to the jury; however, when the details observed . . . are ‘too complex or too
subtle’ for concrete description by the witness, he [or she] may state his [or her] general
impression.” (People v. Hurlic (1971) 14 Cal.App.3d 122, 127; see also People v. Melton
(1988) 44 Cal.3d 713, 744 [lay witness permitted to express an opinion based on his or
her perception “where the concrete observations on which the opinion is based cannot
otherwise be conveyed”].)
In arguing the trial court abused its discretion by excluding defendant’s opinion
that he was “born mentally retarded,” defendant relies primarily on People v. McAlpin
(1991) 53 Cal.3d 1289, a child sexual abuse case in which our Supreme Court held two of
the defendant’s character witnesses could offer lay opinion testimony, based on their
personal observations of the defendant’s conduct with their daughters, that the defendant
was “not a person given to lewd conduct with children.” (Id. at p. 1309.) Similar opinion
testimony from a third character witness, however, was properly excluded because it
“was not based on personal observation of defendant’s ‘conduct with children.’ ” (Id. at
pp. 1308-1309.)
Here, defendant certainly possessed personal knowledge of his own intellectual
functioning. However, the trial court did not sustain an objection to defendant’s opinion

19
he was mentally impaired based on improper lay opinion. Instead, the trial court
sustained an objection to defendant’s statement he was “born mentally retarded” on
“foundation” grounds. It is not clear how defendant knew he was born with a cognitive
impairment, as opposed to having developed a learning disability due to other factors,
such as trauma caused by physical abuse or drug and alcohol use as a child. Nor is it at
all apparent how one would come to have personal knowledge of being born with a
cognitive impairment. For these reasons, we cannot conclude the trial court abused its
discretion in sustaining the prosecution’s objection on foundation grounds. Inquiry was
not shut down. The trial court merely required defense counsel to lay a foundation for
defendant’s personal knowledge of his cognitive impairment. Thereafter, counsel elicited
defendant’s opinion that he suffered from learning disabilities and the basis for such an
opinion. The trial court did not abuse its discretion in so ruling. Nor was defendant
“denied his right to present a defense.”
III
Admission of Impeachment Evidence
Defendant further asserts the trial court prejudicially abused its discretion and also
violated his constitutional rights by allowing the prosecution to impeach his testimony
with prior convictions. Not so.
“ ‘Past criminal conduct involving moral turpitude that has some logical bearing
on the veracity of a witness in a criminal proceeding is admissible to impeach, subject to
the court’s discretion under Evidence Code section 352.’ [Citation.]” (People v. Bedolla
(2018) 28 Cal.App.5th 535, 550.) “In exercising its discretion, the trial court must
consider,” but “need not . . . rigidly follow[],” the following four factors: “(1) Whether
the prior conviction reflects adversely on an individual’s honesty or veracity; (2) the
nearness or remoteness in time of a prior conviction; (3) whether the prior conviction is
for the same or substantially similar conduct to the charged offense; and (4) what the
effect will be if the defendant does not testify out of fear of being prejudiced because of

20
the impeachment by prior convictions.” (People v. Mendoza (2000) 78 Cal.App.4th 918,
925.)
Here, the trial court allowed the prosecution to impeach defendant’s testimony
with a 1999 conviction for unlawful taking or driving a vehicle, a 2000 conviction for
possession of marijuana for sale, and 2012 and 2013 convictions for domestic violence
offenses. The trial court concluded each of these convictions involved moral turpitude
and was therefore “relevant to show a lack of credibility.” Turning to the Evidence Code
section 352 analysis, the trial court explained: “With regard to the timing of the offenses,
certainly the convictions in 1999 and 2000 are remote being almost 20 years ago. But, on
the other hand, there is also a record of criminal behavior and incarceration on an almost
continuous basis between that time and now. [¶] The Court considered that nearness in
time to the prior -- of the priors to the present offense. I also considered the fact that the
two corporal injury priors are for the same or similar conduct. And in this case,
obviously, we do have a [Vehicle Code section] 10851 charge as well. So the 1999 prior
is also related to the same or similar types of conduct. [¶] However, I believe, given the
issues in this case, I don’t believe the prejudicial value of the fact that the priors are of a
somewhat similar nature would overcome the probative value of those prior convictions.”
Applying the four factors, there was no abuse of discretion. First, each of the
convictions with which defendant was impeached involved moral turpitude and therefore
reflected adversely on defendant’s honesty. (See, e.g., People v. Zataray (1985) 173
Cal.App.3d 390, 399 [“auto theft prior conviction clearly involves moral turpitude”];
People v. Standard (1986) 181 Cal.App.3d 431, 435 [“possession of marijuana for sale
involves moral turpitude”]; People v. Rodriguez (1992) 5 Cal.App.4th 1398, 1402
[domestic violence, i.e., entering “a special relationship for which society rationally
demands, and the victim may reasonably expect, stability and safety, . . . and then to
violate it wilfully and with intent to injure, necessarily connotes the general readiness to
do evil that has been held to define moral turpitude”].)

21
 Second, with respect to remoteness, as the trial court acknowledged, the 1999 and
2000 convictions were indeed remote, but they were “nonetheless admissible because
[defendant] did not subsequently lead a blameless life” and “ ‘the systematic occurrence
of [defendant’s] priors over a 20-year period create[d] a pattern that [was] relevant to
[his] credibility.’ [Citation.]” (People v. Green (1995) 34 Cal.App.4th 165, 183.)
Third, the trial court did not abuse its discretion by concluding the similarity of the
prior conduct did not preclude impeachment with prior convictions. “Prior convictions
for the identical offense are not automatically excluded. ‘The identity or similarity of
current and impeaching offenses is just one factor to be considered by the trial court in
exercising its discretion.’ [Citation.]” (People v. Green, supra, 34 Cal.App.4th at
p. 183.) The trial court concluded defendant would not be unduly prejudiced by
impeachment with one remote prior conviction that was identical to defendant’s present
charge of unlawful taking or driving a vehicle, or with two more recent domestic violence
convictions that were only marginally similar to the murder charges in the sense that both
involved violent conduct.
Fourth, the trial court’s decision to admit the priors for impeachment purposes had
no adverse impact on defendant’s right to testify “because defendant actually took the
stand and suffered impeachment with the priors.” (People v. Mendoza, supra, 78
Cal.App.4th at p. 926.)
The trial court neither abused its discretion nor violated defendant’s constitutional
rights by allowing the challenged impeachment.
IV
Prosecutorial Misconduct
Defendant also contends the prosecutor engaged in prejudicial prosecutorial
misconduct by informing the jury that defendant agreed to take a polygraph examination.
The claim is forfeited by defendant’s failure to object to the claimed misconduct below.
(People v. Dykes (2009) 46 Cal.4th 731, 757 [“failure to object in a timely manner to

22
asserted prosecutorial misconduct . . . results in the forfeiture of the claim on appeal”].)
Anticipating this conclusion, defendant argues his trial counsel was constitutionally
ineffective for failing to so object. This alternative claim fails because defendant has not
persuaded this court he was prejudiced by counsel’s failure to object.
During the prosecution’s opening statement to the jury, after describing the
beginning of defendant’s police interrogation (during which defendant initially denied
involvement in the murders), the prosecutor went on to describe the circumstances in
which defendant ultimately admitted killing both Helsby and Engelhaupt. These
circumstances involved defendant agreeing to take a polygraph examination. As the
prosecutor informed the jury, defendant was given an opportunity to take a polygraph
examination and agreed to do so. However, before that examination was administered,
during a “pre-polygraph interview” with the examiner, defendant “all of a sudden, looks
down and says -- I’m quoting -- I’m going to cut the bullshit. I did it. And then starts to
explain to the polygraph examiner what it was that he did.”
Evidence Code section 351.1 provides in relevant part: “Notwithstanding any
other provision of law, the results of a polygraph examination, the opinion of a polygraph
examiner, or any reference to an offer to take, failure to take, or taking of a polygraph
examination, shall not be admitted into evidence in any criminal proceeding . . . unless all
parties stipulate to the admission of such results.” (Evid. Code, § 351.1, subd. (a), italics
added.) Thus, evidence of defendant’s offer to take a polygraph examination was
inadmissible. However, “ ‘remarks made in an opening statement cannot be charged as
misconduct unless the evidence referred to by the prosecutor “was ‘so patently
inadmissible as to charge the prosecutor with knowledge that it could never be
admitted.’ ” ’ [Citation.]” (People v. Dykes, supra, 46 Cal.4th at p. 762.) Assuming this
standard is met, and further assuming defense counsel’s failure to object to the improper
comment fell below an objective standard of reasonableness, defendant has not
demonstrated a reasonable probability of a more favorable outcome had defense counsel

23
objected to the prosecutor’s improper statement. As we have already set forth in detail,
defendant admitted to killing both Helsby and Engelhaupt. He did so during his
statement to police and again during his testimony at trial. And although he claimed he
“snapped” during both, his accounts of the killings provided the strongest evidence of his
having made a cold and calculated decision to kill both victims. Defendant has not
persuaded this court that informing the jury he agreed to take a polygraph examination
before confessing to the murders would have harmed him in any way.
We conclude there is no reasonable probability of a different outcome had defense
counsel objected to the prosecutor’s statement informing the jury defendant agreed to
take a polygraph examination.
V
Dueñas Claim
In a supplemental brief filed with this court’s permission following the Second
Appellate District’s recent decision in Dueñas, supra, 30 Cal.App.5th 1157, defendant
argues imposition of the following fines and fees violated his constitutional rights
because the trial court did not determine his ability to pay before imposing them: (1) a
restitution fine of $10,000 (§ 1202.4); (2) a court operations assessment of $120
(§ 1465.8); (3) a court facilities assessment of $90 (Gov. Code, § 70373); (4) a jail
booking fee of $151 (Gov. Code, § 29550.2, subd. (a)); and (5) a fee of $250 for
preparation of the probation report (§ 1203.1b, subd. (a)).
We conclude defendant’s challenge to the restitution fine, jail booking fee, and
probation report fee are forfeited. Assuming, without deciding, his challenges to the
other fines and fees have not been forfeited, we conclude Dueñas was wrongly decided
and therefore reject defendant’s claim on that basis.

24
 A.
Dueñas
In Dueñas, the defendant (Dueñas) was an indigent and homeless young mother
with cerebral palsy who pleaded no contest to driving with a suspended license, a crime
she committed after losing her license because she was unable to pay certain fines
associated with three juvenile citations. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-
1161.) The trial court placed Dueñas on probation and, among other things, imposed
various mandatory fines and fees. (Id. at pp. 1161-1162.) Dueñas asked the trial court to
set a hearing to determine her ability to pay. (Id. at p. 1162.) At the hearing, the trial
court found Dueñas lacked an ability to pay but nevertheless confirmed imposition of
court facilities and court operations assessments, noting both were “mandatory regardless
of Dueñas’s inability to pay them,” and also confirmed imposition of a restitution fine in
the minimum amount, finding “Dueñas had not shown the ‘compelling and extraordinary
reasons’ required by statute (. . . § 1202.4, subd. (c)) to justify waiving this fine.” (Id. at
p. 1163.) The trial court also rejected Dueñas’s constitutional arguments that due process
and equal protection prohibited imposition of these fines and fees without a determination
that she possessed the ability to pay them. (Ibid.)
Our colleagues at the Second Appellate District reversed. With respect to the
court facilities and court operations assessments, the court held, “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 [these] assessments.” (Dueñas, supra, 30
Cal.App.5th at p. 1164.) The court noted the constitutional guarantees of due process and
equal protection prohibit a state from “inflict[ing] punishment on indigent convicted
criminal defendants solely on the basis of their poverty.” (Id. at p. 1166, citing Griffin v.
Illinois (1956) 351 U.S. 12, 17 [100 L.Ed. 891] (Griffin).)
With respect to the minimum restitution fine, the court held imposition of this fine
without first determining ability to pay, while done in accordance with the statutory

25
scheme, also violated due process; execution of such a fine “must be stayed unless and
until the trial court holds an ability to pay hearing and concludes that the defendant has
the present ability to pay the restitution fine.” (Dueñas, supra, 30 Cal.App.5th at p.
1164.) The court noted the restitution fine is recognized to be “additional punishment for
a crime” and concluded the statutory prohibition on considering ability to pay when
imposing the minimum fine is fundamentally unfair because it “punishes indigent
defendants in a way that it does not punish wealthy defendants.” (Id. at pp. 1169-1170.)
B.
Forfeiture
“[I]t is of course a familiar rule that appellate courts will not review errors to
which an objection could have been, but was not, made in the trial court.” (People v.
Scott (2012) 203 Cal.App.4th 1303, 1309.) This rule applies to appellate challenges to
the imposition of fines and fees, including those based on the trial court’s failure to
determine the defendant’s ability to pay, and those based on the claimed inadequacy of
the record to support such a determination. (See, e.g., People v. McCullough (2013) 56
Cal.4th 589, 597 (McCullough) [defendant’s failure to object to booking fee based on
ability to pay forfeits claim that the record did not establish such ability]; People v. Avila
(2009) 46 Cal.4th 680, 729 (Avila) [defendant’s failure to adduce evidence of inability to
pay maximum restitution fine forfeits challenge to trial court’s implied finding he
possessed ability to pay that amount]; People v. Crittle (2007) 154 Cal.App.4th 368, 371
[defendant’s failure to object to a crime prevention program fine forfeits the claim that
the trial court failed to consider his ability to pay the fine, and that the record did not
support such an ability].)
There is presently a split of authority with respect to whether or not a defendant
who did not object to the trial court’s imposition of mandatory fines and fees based on
inability to pay, like defendant in this case, forfeits a Dueñas claim. (Compare People v.
Frandsen (2019) 33 Cal.App.5th 1126 (Frandsen) [finding forfeiture] with People v.

26
Castellano (2019) 33 Cal.App.5th 485 (Castellano) [no forfeiture].) We conclude
defendant’s challenge to the restitution fine, jail booking fee, and probation report fee are
forfeited and decline to address the forfeiture issue with respect to the remainder of his
Dueñas claim because, even if properly preserved for review, there was no constitutional
violation.
Beginning with the restitution fine, as previously mentioned, section 1202.4
allows consideration of a defendant’s ability to pay when determining whether to increase
the restitution fine above the statutory minimum. (§ 1202.4, subd. (c).) That statutory
minimum is $300. (§ 1202.4, subd. (b)(1).) Here, the trial court imposed a restitution
fine in the amount of $10,000, the statutory maximum. Thus, defendant could have
objected to this fine based on inability to pay but failed to do so, forfeiting his challenge
to this fine on those grounds in this appeal. (See Avila, supra, 46 Cal.4th at p. 729;
Frandsen, supra, 33 Cal.App.5th at p. 1153; see also People v. Gutierrez (2019) 35
Cal.App.5th 1027, 1032-1033.)
Also forfeited are defendant’s challenges to the jail booking fee and probation
report fee. Government Code section 29550.2, providing for the jail booking fee, states
in relevant part: “If the person has the ability to pay, a judgment of conviction shall
contain an order for payment of the amount of the criminal justice administration fee
[(including the costs of booking and classification)] by the convicted person . . . .” (Gov.
Code, § 29550.2, subd. (a), italics added.) As previously stated, in McCullough, our
Supreme Court held the defendant’s failure to object to the booking fee based on ability
to pay forfeited the claim that the record did not establish such ability. (McCullough,
supra, 56 Cal.4th at p. 597.) Similarly, in People v. Neal (2018) 29 Cal.App.5th 820, our
colleagues at the First Appellate District held the defendant’s failure to object to the
probation report fee forfeited that claim on appeal. (Id. at p. 824, fn. 4, citing People v.
Valtakis (2003) 105 Cal.App.4th 1066 [challenge to probation services fee forfeited]; see
also People v. Trujillo (2015) 60 Cal.4th 850, 860, citing Valtakis with approval.)

27
Because there was a statutory basis for objecting to both the jail booking fee (Gov. Code,
§ 29550.5, subd. (a)) and the probation report fee (§ 1203.1b, subd. (a)) on ability to pay
grounds, defendant’s failure to do so forfeits these claims on appeal.
Turning to the remainder of defendant’s Dueñas claim, we note that in Frandsen,
the appellate court rejected the defendant’s argument that his challenge to the court
facilities and court operations assessments was not forfeited because an objection to these
assessments based on inability to pay would have been futile prior to Dueñas, an
argument accepted by a different division of that same court in Castellano. (Compare
Frandsen, supra, 33 Cal.App.5th at p. 1153 with Castellano, supra, 33 Cal.App.5th at
p. 489.) We need not weigh in on this forfeiture issue here because, even assuming the
remainder of this claim is properly preserved for review, there was no constitutional
violation.
C.
No Constitutional Violation
Reactions to the new constitutional principle articulated in Dueñas have been
mixed. Although many courts have followed its reasoning, others have distinguished (see
People v. Caceres (2019) 39 Cal.App.5th 917) or disagreed with the opinion (see People
v. Hicks (2019) 40 Cal.App.5th 320 (Hicks), review granted Nov. 26, 2019, S258946;
People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1068). The analysis of Dueñas in
Hicks is adopted in People v. Kingston (2019) 41 Cal.App.5th 272 at pages 279-281. We
join the latter group and limit our discussion of the matter to rejecting Dueñas outright.
In Hicks,3 our colleagues at the Second Appellate District rejected the Dueñas
court’s reliance on “two strands of due process precedent” in “fashioning” a new
constitutional principle requiring an ability to pay determination before imposing the fine

3 Pursuant to California Rules of Court, rule 8.1115(e)(1), we cite and discuss Hicks
solely for its “persuasive value.”

28
and assessments challenged therein. (Hicks, supra, 40 Cal.App.5th at p. 326, rev.
granted.) The first strand, starting with Griffin, supra, 351 U.S. 12, 17 [100 L.Ed. 891],
“secures a due process-based right of access to the courts.” (Hicks, p. 325.) This strand
of precedent, however, “does not dictate Dueñas’s bar on imposing fees because the
imposition of assessments, fines and fees does not deny a criminal defendant access to
the courts.” (Id. at p. 326.) The second strand of due process precedent relied upon by
the Dueñas court “erects a due process-based bar to incarceration based on the failure to
pay criminal penalties when that failure is due to a criminal defendant’s indigence rather
than contumaciousness.” (Hicks, at p. 325, citing In re Antazo (1970) 3 Cal.3d 100, 103-
104, 113-114 & Bearden v. Georgia (1983) 461 U.S. 660, 661-662 [76 L.Ed.2d 221].)
This strand “also does not dictate Dueñas’s bar on imposing fees because their
imposition, without more, does not result in incarceration for nonpayment due to
indigence.” (Id. at p. 326.)
We agree with the Hicks analysis in its entirety. The strands of precedent relied
upon by the Dueñas court in expanding due process protections to require an ability to
pay determination before imposing a mandatory fine, fee, or assessment do not support,
and indeed run contrary to, such an expansion. Imposition of the challenged financial
obligations has not deprived defendant of access to the courts. Nor has defendant been
incarcerated because of his inability to pay. Rather, he is incarcerated because he
committed two murders (and unauthorized taking or driving a vehicle). He was
sentenced to serve two consecutive terms of life without the possibility of parole for these
two murders and will have an opportunity to attempt to pay these obligations, e.g., from
prison wages if he obtains employment while in prison. (See People v. Frye (1994) 21
Cal.App.4th 1483, 1487; People v. DeFrance (2008) 167 Cal.App.4th 486, 505.)

29
 DISPOSITION
The judgment is affirmed.

/s/
HOCH, J.

We concur:

/s/
MURRAY, Acting P. J.

/s/
RENNER, J.

30