People v. Delgado CA2/7

Filed 2/3/21 P. v. Delgado CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B299482

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA470834)
v.

FROYLAN DELGADO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Stephen A. Marcus, Judge. Affirmed.
Julie Caleca, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr., Deputy Attorney
General, John Yang, Deputy Attorney General, for Plaintiff and
Respondent.

_________________
 Froylan Delgado appeals from a judgment entered after the
jury convicted him of shooting at an occupied vehicle, assault
with an assault weapon, and possession of a firearm. The jury
also found true gang and firearm enhancement allegations. On
appeal, Delgado contends his due process rights were violated
because the trial court instructed the jury with CALCRIM
No. 315 that an eyewitness’s level of certainty can be considered
when evaluating the reliability of the witness’s identification.
Delgado also argues the trial court abused its discretion by
declining to exercise its discretion to strike the firearm
enhancement under Penal Code1 section 12022.53,
subdivision (c), and defense counsel rendered ineffective
assistance of counsel in failing to present any argument on
Delgado’s behalf at the sentencing hearing. Finally, Delgado
contends the trial court’s imposition of court assessments and
restitution fines violated his due process rights because the
trial court did not conduct a hearing on his ability to pay
pursuant to this court’s opinion in People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Evidence at Trial
1. The shooting
At approximately 1:20 a.m. on August 25, 2018 six Los
Angeles Police Department (LAPD) officers responded to a 911
call of shots fired in the area of Drew and Weldon Streets in
northeast Los Angeles, near 3405 Drew Street. The location was

1 All undesignated statutory references are to the Penal
Code.

2
at the heart of the territory claimed by the “Avenues” street gang
and the stronghold of the Drew Street clique within the Avenues
gang.
Upon arriving at the scene, LAPD police officers detained
several known Avenues gang members. Gabriela Alonso, who
was an associate of the gang, was detained with her boyfriend
Juan Briseno, a known Avenues gang member, as the two walked
away from the area near 3411 Drew Street. Police officers also
detained Avenues gang member Gonzalo Urieta, who was
running down Drew Street away from the scene, and Avenues
gang member Adrian DeJesus, who was holding his waistband
while walking away from 3411 Drew Street.
During a canvass of the area, Los Angeles Police Officer
Tom Quino found three spent .223 caliber shell casings in the
walkway and street in front of 3405 Drew Street. Los Angeles
Police Officer Michael Marino discovered a loaded semiautomatic
firearm wrapped in a towel hidden behind the fence at 3411 Drew
Street. Daniel Rubin, a criminalist with the LAPD firearm
analysis unit, testified the firearm had the characteristics of an
assault weapon as defined under California law because it was
capable of accepting a detachable magazine inserted into the
firearm in a location other than the pistol grip, and its barrel was
covered. Through laboratory testing, Rubin confirmed the
recovered shell casings had been fired from the firearm. No
fingerprints were recovered from the firearm.
On the morning of the shooting, Officer Marino and Los
Angeles Police Sergeant Nick Giordano were able to obtain and
view surveillance video from 3407 Drew Street. The video
showed that on August 25, 2018 at 1:16 a.m. a man in a white
sleeveless shirt emerged onto the sidewalk in front of 3405 Drew
Street as a car was driving down the street. A flash emanated

3
from the man’s position as the car passed him. The man then
moved into the street behind the car, and another flash can be
seen where the man was standing. The 3407 Drew Street video
was played for the jury.
The 3407 Drew Street video also showed a man and woman
(later identified as Alonso and Briseno) stashing a towel-wrapped
object inside the fence at the location where Officer Marino had
recovered the assault weapon. Based on the video, Alfonso and
Briseno were arrested. Briseno tested positive for gunshot
residue; Alonso’s gunshot residue test was negative.2 The police
were not able to identify the vehicle involved in the shooting, and
they could not determine how many occupants were inside.

2. The 3405 Drew Street surveillance video and
identification of Delgado
As part of the police investigation into the shooting,
Sergeant Giordano contacted Justin Jacobo, who was believed to
have access to the video surveillance system for the building at
3405 Drew Street. Three days after the shooting, Sergeant
Giordano received an email from Jacobo containing a hyperlink to
a Web site containing the 3405 Drew Street video footage.
Sergeant Giordano watched the video that day and saw that it
captured the shooting, but he did not recognize the shooter. He
forwarded the video link to Los Angeles Police Officers Massey,
Marino, and Daniel Kaminski, and to Detective Justin Fuller.
Officer Massey viewed the video on August 28 and
recognized Delgado as the shooter. Officer Massey, who was then

2 LAPD criminalist Stacy Vanderschaaf testified it is not
necessary for an individual to have discharged a firearm to test
positive for gunshot residue if the individual handled the weapon.

4
assigned to the LAPD’s gang enforcement detail for the northeast
division, had interacted with Delgado on five to 10 earlier
occasions and had filled out multiple field information cards on
Delgado. Massey testified the video was from “a very good
quality camera,” and it was “easy to identify people if you knew
who they were.” Massey took a photograph of a frame of the
video that depicted Delgado walking with the firearm to his left
side. The photograph was admitted into evidence, and Massey
identified Delgado in the courtroom as the man in the
photograph. However, the video was not available at trial.
Massey testified the quality of the video was superior to that of
the photograph.
Officer Massey testified the video showed Delgado in a
white sleeveless shirt standing in the front courtyard of
3405 Drew Street with several other people. After looking up
Drew Street, Delgado walked into apartment 2 in the building3
and emerged carrying an object that appeared to be a firearm.
Delgado walked out to the sidewalk as a vehicle traveling south
on Drew Street came to a stop near Delgado’s position. Delgado
pointed the firearm at the vehicle and fired one shot as the
vehicle resumed traveling southbound. Delgado walked into the
street and fired another shot at the vehicle after it passed.
Delgado then walked back into apartment 2. Officer Massey also
testified the video showed Alonso emerging from the same area
around apartment 2 one minute later carrying what looked like a
sheet wrapped around an object. Alonso walked onto the
sidewalk and headed north in the direction of 3407 Drew Street.

3 Massey inferred Delgado entered apartment 2 based on the
location where Delgado entered the building, although the
apartment doorways were not visible within the camera frame.

5
 Officer Kaminksi independently identified Delgado as the
shooter after viewing the 3405 Drew Street video. He had
encountered Delgado 30 to 50 times over an eight-year period
while assigned to the northeast division gang detail; he knew
Delgado well; and he had seen Delgado “almost daily” in the
courtyard in front of 3405 Drew Street during patrols. Officer
Kaminski was “100 percent” certain Delgado was the man he saw
in the video. Officer Kaminski testified the photograph admitted
at trial was of poorer quality than the video, and he could not
identify Delgado with 100 percent certainty from the photograph
alone. But he testified Delgado’s face was clearly visible in the
video.
Los Angeles Police Officer Jon Hunt also viewed the 3405
Drew Street video and identified Delgado as the shooter. Officer
Hunt testified he was familiar with Delgado, having “seen him
well over a dozen times in the area of Drew Street,” and he had
one documented contact with Delgado. Officer Hunt was “very
confident” Delgado was the person he saw in the video.
After receiving the link to the surveillance video, Sergeant
Giordano called Jacobo to obtain an off-line copy. Jacobo agreed
to place the video on a flash drive and drop it off at the police
station. But Jacobo never delivered a copy, and the video
subsequently became unavailable on the website. On September
21, 2018 Sergeant Giordano and other police officers accessed the
video surveillance equipment at 3405 Drew Street, but the
footage from August 25 was no longer available because the
system had overwritten the recording data after a number of
days. Detective Fuller also attempted to retrieve the video from
the website operator, but he was informed the file had been
deleted by the user and “purged” from the system.

6
 3. The search of 3405 Drew Street, apartment 2
On September 21, 2018 LAPD officers executed a search
warrant for apartment 2 at 3405 Drew Street. When the officers
arrived, Delgado was sitting outside of the building. During their
search, officers recovered a loaded handgun inside a closet, a box
of narcotics, men’s clothing, and a medical bracelet and recent
hospital paperwork bearing Delgado’s name.

4. The gang expert testimony
Officer Hunt, who had been assigned to the gang
enforcement detail for the northeast division for 18 months,
testified as the prosecution expert on the Avenues gang. Officer
Hunt stated that in order to maintain their territory, street gangs
often use violence to establish dominance over rival gangs and to
intimidate citizens from cooperating with law enforcement. A
rival gang’s intrusion into gang territory would constitute an
insult and challenge to the gang’s authority that could be met by
violence, including shootings and potentially murder.
Officer Hunt testified the Avenues gang has approximately
630 members, and Drew Street is one of the primary strongholds
of the gang, where members regularly congregate and socialize.
The Drew Street clique is a prominent sub-group within the
Avenues gang. The primary rivals of the Avenues gang are the
Highland Park gang and the Cypress Park gang. The primary
activities of the Avenues gang include vandalism, battery, petty
thefts, drug possession and sales, weapon violations, assaults,
murder, and attempted murder.
Officer Hunt opined Delgado was a member of the Avenues
gang and the Drew Street clique, and he used the moniker
“Chuco.” Delgado had admitted he was a member of the gang,
had numerous Avenues gang-specific tattoos, associated with

7
other Avenues gang members, and frequented Avenues gang
locations, including Drew Street. Four other police officers
testified Delgado admitted to being an Avenues gang member.
In response to a hypothetical based on the facts of this case,
Officer Hunt opined the shooting was committed for the benefit of
and in association with the Avenues gang. Officer Hunt
explained that “walking into the middle of the street where there
are multiple apartments” to carry out a shooting with a
semiautomatic assault weapon “sends a very clear message to the
residents there that these gang members have access to high
powered weapons, . . . they’re willing to use it, and they’re willing
to shoot at rivals and perceived rivals, which allows them to
continue their criminal exploits.” Officer Hunt also testified the
hypothetical conduct was done in association with the gang
because other gang members were present and could act as
lookouts, intimidate witnesses, and hide the weapon. Officer
Hunt opined possession of a high-powered firearm would benefit
the gang because it would make it less likely rivals would
“challenge that gang if [rivals] know that they’re equipped with
an assault type weapon that is capable with being fired from a
vast distance” and intimidate civilians by showing the gang has
armor-piercing weapons.
Delgado did not testify or present evidence in his defense.

B. The Verdict and Sentence
The jury found Delgado guilty of shooting at an occupied
motor vehicle (§ 246; count 2) and found true the allegations
Delgado personally used and intentionally discharged a firearm
in the commission of the shooting (§ 12022.53, subds. (b) & (c))
and the shooting was committed for the benefit of, at the
direction of, or in association with a criminal street gang

8
(§ 186.22, subd. (b)(4)). The jury also found Delgado guilty of
possession of a semiautomatic firearm by a felon (§ 29800, subd.
(a)(1); count 3)4 and assault with an assault weapon (§ 245, subd.
(a)(3); count 5). The jury found the firearm enhancement
allegation true on count 5 (§ 12022.5, subd. (b)) and the gang
enhancement allegations under section 186.22, subdivision
(b)(1)(A), true as to counts 3 and 5.5
The trial court sentenced Delgado on June 13, 2019. On
count 2, the court imposed an indeterminate term of 35 years to
life comprised of 15 years to life for shooting at an occupied
vehicle based on the gang enhancement (§ 186.22, subd. (b)(4))
plus 20 years for the firearm enhancement under
section 12022.53, subdivision (c). The court imposed and stayed a
10-year term for the firearm enhancement under section
12022.53, subdivision (b). On count 3 for possession of a firearm
by a felon, the court imposed an additional seven years (the
middle term of three years plus four years for the gang
enhancement) to run concurrently with the sentence on count 2.
On count 5 for assault with an assault weapon, the court imposed
and stayed (under § 654) an additional 19 years (the middle term
of eight years plus five years for the gang enhancement and six
years for the firearm enhancement).6

4 The parties stipulated that in March 2000 Delgado suffered
a prior felony conviction.
5 The jury acquitted Delgado on count 4 for possession of
semiautomatic firearm by a felon (§ 29800, subd. (a)(1)) with
respect to the firearm recovered from 3405 Drew Street.
6 The abstract of judgment was corrected on May 14, 2020 in
response to Delgado’s request that the reference in the prior
abstract on count 5 to a violation of section 245, subdivision (c),

9
 The trial court imposed on each count a $40 court
operations assessment (§ 1465.8, subd. (a)(1)) and a $30 criminal
conviction assessment (Gov. Code, § 70373), for a total of $210.
The court also imposed a $500 restitution fine (Pen. Code,
§ 1202.4) and imposed and stayed a parole revocation restitution
fine in the same amount (id., § 1202.45). Delgado timely
appealed.

DISCUSSION

A. The Trial Court Did Not Err in Instructing the Jury with
CALCRIM No. 315
Delgado contends the trial court violated his due process
rights in instructing the jury with CALCRIM No. 315, which
advised the jury that in evaluating an eyewitness identification,
the jurors should consider “[h]ow certain was the witness when
he or she made an identification.”7 Delgado argues this

for assault with a deadly weapon on a peace officer was a clerical
mistake.
7 The trial court instructed the jury with CALCRIM No. 315,
as modified: “You have heard eyewitness testimony identifying
the defendant. As with any other witness, you must decide
whether an eyewitness gave truthful and accurate testimony. In
evaluating identification testimony, consider the following
questions: Did the witness know or have contact with the
defendant before the event? How well could the witness see the
perpetrator? What were the circumstances affecting the
witness’s ability to observe, such as lighting, weather conditions,
obstructions, distance and duration of observation, and by
looking at a video of a surveillance camera? How closely was the
witness paying attention? Was the witness under stress when he

10
instruction on witness certainty was erroneous “given the weight
of scientific research rejecting certainty as evidence of accuracy.”8

or she made the observation? Did the witness give a description
and how does that description compare to the defendant? How
much time passed between the event and the time when the
witness identified the defendant? Was the witness asked to pick
the perpetrator out of a group? Did the witness ever change his
or her mind about the identification? How certain was the
witness when he or she made an identification? Are the witness
and the defendant of different races? Was the witness able to
identify other participants in the crime? Was the witness able to
identify the defendant in a photographic or physical lineup?
Were there any other circumstances affecting the witness’s
ability to make an accurate identification?”
8 The People contend Delgado forfeited his claim of
instructional error because defense counsel did not object to the
trial court’s instruction with CALCRIM No. 315. But we review
any claim of instructional error that affects a defendant’s
substantial rights whether or not trial counsel objected. (§ 1259
[“The appellate court may also review any instruction given . . .
even though no objection was made thereto in the lower court, if
the substantial rights of the defendant were affected thereby.”];
People v. Burton (2018) 29 Cal.App.5th 917, 923 [“‘Failure to
object to instructional error forfeits the issue on appeal unless the
error affects defendant’s substantial rights.’”]; People v. Bedolla
(2018) 28 Cal.App.5th 535, 544 [same].) Of course, “[w]e can only
determine if [a] defendant[’s] substantial rights were affected by
deciding whether the instruction was given in error and, if so,
whether the error was prejudicial.” (People v. Medina (2019)
33 Cal.App.5th 146, 154, fn. 7.) That is, if Delgado’s claim has
merit, it has not been forfeited. We therefore necessarily review
the merits of Delgado’s contention the instruction violated
Delgado’s constitutional rights. Because we find no forfeiture, we
do not reach Delgado’s argument his attorney’s failure to object
constituted ineffective assistance of counsel.

11
 A claim that a jury instruction violates due process
“involves the determination of applicable legal principles” that we
review de novo. (People v. Alvarez (1996) 14 Cal.4th 155, 218;
accord, People v. Posey (2004) 32 Cal.4th 193, 218 [“The
independent or de novo standard of review is applicable in
assessing whether instructions correctly state the law.”].)
The California Supreme Court has expressly approved the
use of CALJIC No. 2.92, the predecessor to CALCRIM No. 315,
against similar due process challenges based on the inclusion of
witness certainty as a factor for consideration. (See People v.
Sánchez (2016) 63 Cal.4th 411, 462 (Sánchez) [no error or
prejudice in instructing jury with CALJIC No. 2.92 on witness
certainty as a factor relevant to the accuracy of witness’s
identification]; People v. Johnson (1992) 3 Cal.4th 1183, 1232
[“The trial court did not err . . . in instructing the jury on the
‘certainty’ factor.”]; see also People v. Rodriguez (2019)
40 Cal.App.5th 194, 199-200 [Sánchez “reiterated three decades
of California Supreme Court precedent that a trial court may
instruct the jury to consider eyewitness certainty.”].)
Delgado acknowledges the Supreme Court in Sánchez,
supra, 63 Cal.4th at page 461, rejected the argument Delgado
makes here that the trial court had a sua sponte duty to remove
the witness certainty factor from its eyewitness identification
instruction. But he argues the Sánchez court indicated a
willingness to reexamine the issue, observing “[a]ny
reexamination of our previous holdings in light of developments
in other jurisdictions should await a case involving only certain
identifications.” (Id. at p. 462.) Delgado also points to Justice
Liu’s concurrence, in which he stated, “In light of developments
in scientific research and recent case law, there is a substantial
question whether it is proper for trial courts to instruct that

12
witness certainty is a factor bearing on the accuracy of an
identification that juries should consider. [¶] The sooner we
reexamine this issue, the better.”9 (Id. at p. 498 [conc. opn. of
Liu, J.].)
As Delgado’s argument implicitly recognizes, Sánchez
directly controls the present case. And the issue of instruction on
witness certainty in a case involving only certain identifications
(at issue here) is currently pending before the Supreme Court
following its grant of review of People v. Lemcke, review granted
October 10, 2018, S250108. Unless and until the Supreme Court
reaches a contrary conclusion in Lemcke, we are bound by its
earlier holdings. (K.R. v. Superior Court (2017) 3 Cal.5th 295,
308 [“‘[I]t is established that a holding of the Supreme Court
binds all of the lower courts in the state, including an
intermediate appellate court.’”]; Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455 [“Courts exercising
inferior jurisdiction must accept the law declared by courts of
superior jurisdiction. It is not their function to attempt to
overrule decisions of a higher court.”].) The trial court therefore
did not err in instructing the jury with CALCRIM No. 315 that it

9 The Sánchez court noted that courts in some jurisdictions
have disapproved instructions on witness certainty in light of the
scientific studies rejecting certainty as an indicator of accuracy,
but the court observed, “[I]n a case like this involving uncertain
as well as certain identifications, it is not clear that even those
cases [rejecting the certainty instruction] would prohibit telling
the jury it may consider this factor.” (Sánchez, supra, 63 Cal.4th
at p. 462.) In the present case, the three witnesses who identified
Delgado from the 3405 Drew Street video expressed certainty as
to their identifications.

13
may consider an eyewitness’s certainty as to an identification.
(Sánchez, supra, 63 Cal.4th at p. 462.)

B. The Trial Court Did Not Abuse Its Discretion in Declining
To Strike the 20-year Firearm Enhancement
1. Relevant proceedings
Prior to the sentencing hearing, the People submitted a
sentencing memorandum requesting the trial court sentence
Delgado to 15 years to life on count 2 for shooting at an
unoccupied vehicle based on the gang enhancement (§ 186.22,
subd. (b)(4)), plus a consecutive term of 20 years for the
section 12022.53, subdivision (c), firearm enhancement. The
People noted in the memorandum that section 12022.53,
subdivision (h), gave the trial court authority to strike the
firearm enhancement. The People proposed the court sentence
Delgado concurrently on count 3 for possession of a firearm by a
felon and stay the sentence on count 5 for assault with an assault
weapon pursuant to section 654.
At the sentencing hearing on June 13, 2019, the trial court
indicated it had reviewed the probation report and the People’s
sentencing memorandum. The court described the People’s
memorandum as accurate and “right on the money as far as what
the sentence would be in this case.” But the court noted it had
the discretion to strike one or both of the firearm enhancements
(the 10- and 20-year enhancements). The court explained, “I
guess the only thing I want to hear about before I sentence the
defendant is, Mr. Calabria,[10] what is your position on the gun[]
allegations? And let me just tell you this: where I definitely
decided that, you know, a gun allegation has to be applied in this

10 Donald J. Calabria was Delgado’s counsel.

14
case, the only thing that I gave some small thought to is whether
I should exercise my discretion and use the 10-year one instead of
the 20-year one. But you’ve got really a mountain to climb here
because I also looked at his record. Anyway, what is it you would
like to tell me, Mr. Calabria?”
Defense counsel responded, “I submit to the court. The
court is very familiar with the case. I would submit to the court,
ask them to use their discretion, and I would also indicate for the
record I have filed the appropriate paperwork for notice of appeal
for Mr. Delgado on that. I would submit it.” The prosecutor then
argued the court should decline to exercise its discretion to strike
the firearm enhancement because “[t]his wasn’t just an event
that occurred, and it’s out of character for the defendant. But
rather, it’s a part of his kind of code of conduct, being a gang
member in the . . . center of the Drew Street area controlled by
the Avenues.”
After hearing argument, the trial court announced it was
not going to exercise its discretion to strike the firearm allegation
because of Delgado’s criminal record, which included multiple
juvenile offenses (including assault with a deadly weapon) and
convictions as an adult for misdemeanor grand theft (in 1990);
felony burglary (in 1993); resisting arrest (in 1996); and assault
with a deadly weapon (in 1999). The court also found Delgado’s
conduct in the present case had been “extremely dangerous.” The
court stated, “He shot at a moving car in residential
neighborhood. And although . . . we think no one was harmed, I
really don’t know whether someone was harmed or not. . . . It
was out of a gang situation. And while I think this is a very
significant sentence for not having killed anybody, or to whatever
degree having not shot anybody, actually, I don’t know, the
record just tells me that he’s had all these chances, and he just

15
keeps doing more and more things that he is not supposed to be
doing.”
The court asked defense counsel what Delgado’s age was, to
which defense counsel responded, “[H]e’s 44, and I would submit
to the court that the last entry you really read was in ’99 which is
20 years[.]” The court responded, “I was [going to] mention
that. . . . I know in my mind I was thinking when the case was
being presented that he was what’s called an OG, which is, you
know, one of the original guys, and he is now much older and so
forth.” The court continued, “I do believe in mercy and things
like that, but I’m not [going to] do it in this case. These are the
kind of people that bring me my murder cases. . . . [N]o one got
shot or killed in this case, but they could have easily gotten
killed.” The court then asked what weapon was used in the case,
to which the prosecutor responded it was an assault weapon, and
the court stated, “This is too much for the court.” As discussed,
the court sentenced Delgado to an additional 20-year term on
count 2 pursuant to section 12022.53, subdivision (c).

2. Applicable law and standard of review
Senate Bill No. 620 (2017-2018 Reg. Sess.), effective
January 1, 2018, amended section 12022.53, subdivision (h), to
give trial courts discretion to strike firearm enhancements in the
interest of justice. (§ 12022.53, subd. (h), as amended by
Stats. 2017, ch. 682, § 2.) Section 12022.53, subdivision (h),
provides: “The court may, in the interest of justice pursuant to
Section 1385 and at the time of sentencing, strike or dismiss an
enhancement otherwise required to be imposed by this section.”
In exercising its discretion whether to strike a firearm
enhancement, a trial court is required to consider the factors
bearing on its section 1385 discretion, including “the rights of the

16
defendant, the interests of society represented by the People, and
individualized considerations pertaining to the defendant and his
or her offenses and background.” (People v. Rocha (2019)
32 Cal.App.5th 352, 359 (Rocha) [“The amendments to section
12022.53(h) also rest upon section 1385, the same animating
authority underlying Romero. Thus the court is required to
weigh similar considerations when exercising its discretion[.]”],
citing People v. Superior Court (Romero) (1996) 13 Cal.4th 497,
531 (Romero).) “‘At the very least, the reason for dismissal must
be “that which would motivate a reasonable judge.”’” (People v.
Clancey (2013) 56 Cal.4th 562, 580-581.)
We review the denial of a motion to dismiss pursuant to
section 1385 for an abuse of discretion. (People v. Carmony
(2004) 33 Cal.4th 367, 376 (Carmony); accord, People v. Tirado
(2019) 38 Cal.App.5th 637, 642.) A trial court does not abuse its
discretion unless its decision is so irrational or arbitrary that no
reasonable person could agree with it. (Carmony, at p. 377.) “In
reviewing for abuse of discretion, we are guided by two
fundamental precepts. First, ‘“[t]he burden is on the party
attacking the sentence to clearly show that the sentencing
decision was irrational or arbitrary. [Citation.] In the absence of
such a showing, the trial court is presumed to have acted to
achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set
aside on review.”’ [Citations.] Second, a ‘“decision will not be
reversed merely because reasonable people might disagree. ‘An
appellate tribunal is neither authorized nor warranted in
substituting its judgment for the judgment of the trial judge.’”’
[Citations.] Taken together, these precepts establish that a trial
court does not abuse its discretion unless its decision is so

17
irrational or arbitrary that no reasonable person could agree with
it.” (Id. at pp. 376-377.)

3. The trial court did not abuse its discretion
Delgado contends the trial court abused its discretion in
refusing to strike the 20-year firearm enhancement in light of
Delgado’s lack of a recent criminal record and the circumstances
of the shooting, including that Delgado only fired two shots at a
fleeing car and there was no evidence anyone was hurt. The trial
court did not abuse its discretion.
The trial court recognized its discretion, stating that “based
on the new law that was passed, I would have discretion
regarding the gun allegations.” Further, in exercising its
discretion, the court considered Delgado’s criminal record, age,
status in the Avenues gang, nature of the offense, including the
weapon involved, and the danger to the public. (See Rocha,
supra, 32 Cal.App.5th at p. 359.) The court found that although
Delgado was 44 years old and had not been convicted of a crime
in 20 years, he had a “medium” record with numerous
convictions, including felony convictions for assault with a deadly
weapon as both a juvenile and adult. At trial, the gang expert
and other police witnesses provided extensive testimony
regarding Delgado’s continuing membership and involvement in
the Avenues gang, which the court found was the type of activity
that resulted in murders in the community. The court also found
that although there was no evidence anyone was injured, the
conduct was extremely dangerous in that Delgado shot at a
moving car in a residential neighborhood. Further, because
Delgado used an assault weapon, someone “could have easily
gotten killed.”

18
 On appeal, Delgado argues the trial court placed undue
weight on his criminal record despite the fact he had not been
convicted of a crime in the prior 20 years. Delgado also asserts
the court improperly speculated that someone may have been
injured in the shooting even though there was no evidence of an
injury and “[t]his evidence does not suggest that the gun was
fired directly at the occupants of the car, but rather, the shots
were fired at the vehicle only after it began to drive away.” Thus,
Delgado argues, “it can be inferred the shooting was done as a
scare tactic in an effort to maintain the gang’s territory, rather
than in an effort to commit murder.” Perhaps, but the court did
not abuse its discretion in concluding to the contrary. Officer
Hunt testified the Avenues gang would carry out shootings to
injure or murder rivals who intruded into the heart of Avenues
territory. The trial court could have reasonably concluded based
on the surveillance video that Delgado’s conduct in firing a shot
at the vehicle as it was adjacent to him and then following the
vehicle into the street to fire a second shot showed an intent to
harm, not merely to scare the occupants. Moreover, the court did
not speculate that someone had been shot, instead stating “no
one got shot or killed in this case, but they could have easily
gotten killed.” In addition, the court highlighted Delgado’s long-
term involvement with the Avenues gang supported a finding
that Delgado’s shooting into the vehicle in the Avenues territory
was particularly dangerous conduct.
In declining to exercise its discretion under
section 12022.53, subdivision (h), the court recognized its
discretion, considered the relevant factors, and made findings
supported by the record. Delgado has not met his burden of
demonstrating the court’s decision was “so irrational or arbitrary

19
that no reasonable person could agree with it.” (Carmony, supra,
33 Cal.4th at p. 377.)

C. Delgado’s Claim of Ineffective Assistance of Counsel at the
Sentencing Hearing Fails Because He Has Not Shown
Prejudice
Delgado contends his defense attorney rendered ineffective
assistance of counsel at the sentencing hearing because he failed
to present any argument on Delgado’s behalf despite the court’s
invitation. Although we find the conduct of defense counsel in
not presenting an argument on Delgado’s behalf troubling,
Delgado is not entitled to relief because he has not demonstrated
prejudice from his lawyer’s inaction.
“‘“To establish ineffective assistance of counsel, a defendant
must show that (1) counsel’s representation fell below an
objective standard of reasonableness under prevailing
professional norms, and (2) counsel’s deficient performance was
prejudicial, i.e., there is a reasonable probability that, but for
counsel’s failings, the result would have been more favorable to
the defendant.”’” (People v. Rices (2017) 4 Cal.5th 49, 80; accord,
People v. Bell (2019) 7 Cal.5th 70, 125 (Bell); see Strickland v.
Washington (1984) 466 U.S. 668, 687-692 (Strickland).) With
respect to the prejudice prong, “[a] reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
(Strickland, at p. 694; accord, Harrington v. Richter (2011)
562 U.S. 86, 111-112 [“[T]he question is not whether a court can
be certain counsel’s performance had no effect on the outcome. . . .
The likelihood of a different result must be substantial, not just
conceivable.”].) “If [the defendant] cannot show prejudice, we
may reject his claim of ineffective assistance, and need not
address the adequacy of trial counsel’s performance.” (People v.

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King (2010) 183 Cal.App.4th 1281, 1298; Strickland, at p. 697
[“[A] 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.”].)
Defense counsel’s submission to the court after the court
pointedly invited him to present an argument that the 20-year
enhancement should be stricken and the 10-year enhancement
instead be imposed is concerning. Defense counsel’s only
engagement at the hearing was to provide Delgado’s age at the
trial court’s request and to add that Delgado’s prior convictions
were 20 years old. Nonetheless, Delgado’s ineffective assistance
claim fails because he cannot show a substantial likelihood that
had his counsel presented an argument at the sentencing
hearing, there was a reasonable probability this would have
changed the court’s sentencing decision.
As discussed, the trial court requested Delgado’s attorney
present an argument as to why the court should strike the 20-
year firearm enhancement, but the court made clear counsel had
“a mountain to climb” given Delgado’s criminal record. Delgado
has not identified any evidence the trial court did not consider,
and the arguments he now raises, including his age, the 20-year
absence of convictions, and the lack of evidence of an injury, are
all issues the court considered and discounted at the sentencing
hearing. Because Delgado has failed to show a “‘“reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different,”’” his claim of
ineffective assistance fails. (Bell, supra, 7 Cal.5th at p. 125.)

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D. Remand Is Not Warranted for an Ability-to-pay Hearing on
the Fines and Assessments Imposed by the Trial Court
Delgado contends the trial court’s imposition of fines and
assessments without holding a hearing on his ability to pay
violated his due process rights, relying on this court’s opinion in
Dueñas, supra, 30 Cal.App.5th 1157. Delgado acknowledges he
did not object to the trial court’s imposition of fines and
assessments, but he argues forfeiture should not apply because
his claim raises a question of law involving deprivation of his
constitutional rights. However, as the People argue, Delgado was
sentenced on June 13, 2019, more than five months after Duenas
was filed on January 8, 2019. On these facts, application of the
doctrine of forfeiture is appropriate.
In Dueñas, this court concluded “the assessment provisions
of Government Code section 70373 and Penal Code
section 1465.8, if imposed without a determination that the
defendant is able to pay, are . . . fundamentally unfair; imposing
these assessments upon indigent defendants without a
determination that they have the present ability to pay violates
due process under both the United States Constitution and the
California Constitution.” (Dueñas, supra, 30 Cal.App.5th at
p. 1168; accord, People v. Belloso (2019) 42 Cal.App.5th 647, 654-
655 (Belloso), review granted Mar. 11, 2020, S259755.)11 In
contrast to court assessments, a restitution fine under section

11 The Supreme Court granted review in People v. Kopp
(2019) 38 Cal.App.5th 47 to decide the following issues: “Must a
court consider a defendant’s ability to pay before imposing or
executing fines, fees, and assessments? If so, which party bears
the burden of proof regarding defendant’s inability to pay?”
(Supreme Ct. Minutes, Nov. 13, 2019, p. 1622.)

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1202.4, subdivision (b), “is intended to be, and is recognized as,
additional punishment for a crime.” (Dueñas, at p. 1169; accord,
Belloso, at p. 655.) Section 1202.4, subdivision (c), expressly
provides a defendant’s inability to pay a restitution fine may not
be considered as a “compelling and extraordinary reason” not to
impose the statutory minimum fine. However, as this court held
in Dueñas, to avoid the serious constitutional questions raised by
imposition of such a fine on an indigent defendant, “although the
trial court is required by . . . section 1202.4 to impose a
restitution fine, the court must stay the execution of the fine until
and unless the People demonstrate that the defendant has the
ability to pay the fine.” (Dueñas, at p. 1172; accord, Belloso, at
p. 655.)
In People v. Castellano (2019) 33 Cal.App.5th 485, 489
(Castellano), we held a defendant’s failure to object to the
imposition of fines and fees before Dueñas was decided does not
constitute forfeiture. As we explained, “[N]o California court
prior to Dueñas had held it was unconstitutional to impose fines,
fees or assessments without a determination of the defendant’s
ability to pay. . . . When, as here, the defendant’s challenge on
direct appeal is based on a newly announced constitutional
principle that could not reasonably have been anticipated at the
time of trial, reviewing courts have declined to find forfeiture.”
(Castellano, at p. 489; accord, Belloso, supra, 42 Cal.App.5th at
p. 662; People v. Santos (2019) 38 Cal.App.5th 923, 931-932;
contra, People v. Bipialaka (2019) 34 Cal.App.5th 455, 464
[defendant forfeited challenge by not objecting to the assessments
and restitution fine at sentencing]; People v. Frandsen (2019)
33 Cal.App.5th 1126, 1153-1154 [same].)
However, Delgado forfeited his challenge because Delgado
was sentenced more than five months after Dueñas was decided.

23
Unlike in Castellano, Delgado’s challenge on appeal is not “based
on a newly announced constitutional principle that could not
reasonably have been anticipated at the time of trial.”
(Castellano, supra, 33 Cal.App.5th at p. 489.) Additionally, there
are no special circumstances or legal issues that would warrant
us to exercise our discretion to excuse forfeiture. (In re S.B.
(2004) 32 Cal.4th 1287, 1293 [“application of the forfeiture rule is
not automatic,” although “the appellate court’s discretion to
excuse forfeiture should be exercised rarely and only in cases
presenting an important legal issue”]; Unzueta v. Akopyan (2019)
42 Cal.App.5th 199, 215 [“‘[N]either forfeiture nor application of
the forfeiture rule is automatic.’”].)12

12 Delgado contends that if we find forfeiture, his attorney’s
failure to object to imposition of the fines and fees was ineffective
assistance of counsel. However, Delgado’s claim of ineffective
assistance of counsel fails because the record does not reflect why
his attorney did not object to imposition of the fines and fees. His
attorney may have decided not to object because an objection
would have been futile in light of Delgado’s long sentence and the
limited amount of the total fines and assessments. (See People v.
Caro (2019) 7 Cal.5th 463, 488 [“On direct appeal, if the record
‘“sheds no light on why counsel acted or failed to act in the
manner challenged,”’ we must reject the claim ‘“unless counsel
was asked for an explanation and failed to provide one, or unless
there simply could be no satisfactory explanation.”’”]; People v.
Mickel (2016) 2 Cal.5th 181,198 [“[A] reviewing court will reverse
a conviction based on ineffective assistance of counsel on direct
appeal only if there is affirmative evidence that counsel had ‘“‘no
rational tactical purpose’”’ for an action or omission.”].)

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 DISPOSITION

The judgment is affirmed.

FEUER, J.
We concur:

PERLUSS, P. J.

SEGAL, J.

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