People v. Jordan CA2/8

Filed 2/4/21 P. v. Jordan CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B295816

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA092100)
v.

RALPH M. JORDAN,

Defendant and Appellant.

APPEAL from the judgment of the Superior Court of
Los Angeles County. Lauren Weis Birnstein, Judge. Affirmed.

Brad Kaiserman, 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, Zee Rodriguez, Idan Ivri and Michael C.
Keller, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________
 Ralph Jordan (appellant) and three other men were
charged with attempted robbery of a bank in violation of Penal
Code sections 211, 6641 and attempted murder during the failed
robbery in violation of sections 664, 187, subdivision (a). One
codefendant, Jeffery Brown, entered into a plea agreement and
testified at trial against appellant and remaining codefendants
Bryan Speight and Harold Johnson. Speight and Johnson had
unsuccessfully sought plea agreements before trial; later, at the
end of the People’s case-in-chief, they were able to reach plea
agreements, but did not enter their pleas until after the trial.
Jordan’s case was submitted to the jury, which convicted him as
charged, and found true the allegation that a principal was
armed with a handgun in the commission of both offenses.
(§ 12022, subd. (a)(1).)
Jordan waived his right to jury trial on prior conviction
allegations. The court found true allegations that appellant had
served three prior prison terms (§ 667.5, subd. (b)) and suffered
three prior serious felony convictions (§ 667, subd. (a)) which
were also strike convictions (§§ 667, subds. (b)-(j), 1170.12.). The
trial court struck the three section 667.5 enhancements. It also
struck the firearm enhancement and the three prior serious
felony enhancements for the attempted murder conviction count.
The court sentenced appellant to a total term of 50 years to life in
state prison, plus a determinate term of 16 years.2

1 Further undesignated statutory references are to the Penal
Code.
2 The sentence was 1) 25 years to life pursuant to the “Three
Strikes” law, plus three 5-year terms for three prior serious
felony conviction enhancements plus a one-year term for the
firearm enhancement for the attempted robbery conviction, all

2
 On appeal from the judgment of conviction, Jordan
contends: 1) Speight and Johnson effectively entered into plea
agreements before trial and the court violated his state and
federal constitutional right to a fair trial by allowing the two men
to sit with him as codefendants at trial; 2) his attempted murder
conviction must be dismissed pursuant to Senate Bill No. 1437;
3) the trial court abused its discretion in admitting evidence he
participated in a prior uncharged robbery; 4) the trial court erred
in preventing appellant’s counsel from clarifying that one of his
prior robbery convictions did not involve a bank; 5) the trial court
erred in permitting appellant’s spouse, Toi Wright, to testify
about privileged marital communications; and 6) there was
cumulative prejudice.
Appellant also claims four sentencing errors: 7) insufficient
evidence supports the court’s finding that his 1990 robbery
conviction qualified as a strike; 8) the court erroneously refused
to consider a collateral attack on his 2001 attempted robbery
conviction; 9) Senate Bill No. 136 requires a remand for
resentencing even though the trial court struck all the section
667.5 enhancements when it sentenced appellant; and 10) the
trial court violated his state and federal constitutional rights
when it imposed fines and fees without conducting an ability-to-
pay hearing.
We affirm the judgment of conviction.

consecutive to one another; and 2) a consecutive 25 years to life
term pursuant to the Three Strikes law for the attempted murder
conviction.

3
 BACKGROUND
When unarmed security guard Frederic James opened the
doors of OneWest Bank in Culver City about 9:00 a.m. on
January 21, 2016, there was a line of customers waiting to enter.
Among those waiting were codefendants Brown, Speight and
Johnson. Brown was wearing blue latex gloves and sunglasses.
Their plan was to rob the bank only if the guard was inside the
bank during the robbery. When Brown reached the door, James
told him to take off his sunglasses. Brown looked back in
Speight’s direction and shook his head to indicate “No.” Speight
nevertheless moved toward the bank entrance, followed by
Johnson. James noticed Speight, who appeared to be looking at
Brown. Speight was wearing sunglasses and blue latex gloves as
well. James was suspicious of Speight and when Speight reached
toward his waistband, James pushed Speight in the chest. As
Speight fell to the ground, he pulled a handgun from his
waistband and fired three shots at the now fleeing James.
Brown, Speight and Johnson then ran to a nearby Impala,
which was backed into a parking space with the engine running.
A person, later determined to be appellant, was in the driver’s
seat. Surveillance video showed the three men running to and
entering the Impala. As the Impala drove away, a bystander in
the parking lot saw the license plate number and provided it later
to responding police. Police soon found the Impala, which had
been abandoned less than a mile from the bank.
Brown was captured as he fled on foot from the area where
the Impala was abandoned. Speight was arrested in a nearby TJ
Maxx store. Appellant and Johnson were arrested the next day.

4
 On the day he was arrested, Brown provided information
about the attempted robbery. He subsequently entered into a
plea agreement and testified at trial as a prosecution witness.
After appellant was arrested, his wife Toi Wright provided police
with information about appellant’s activity on the day of the
attempted robbery.
Brown had known appellant for many years, and called him
“uncle.” According to Brown, about a month before the robbery
attempt, appellant introduced him to Speight and Johnson.
About a week later, appellant began planning the bank robbery.
Appellant’s plan called for Brown to enter the bank first
and to be responsible for keeping the doors open. Speight would
follow Brown into the bank and tell everyone to get down on the
ground. Johnson would then enter the bank, jump over the
counter and get the cash. Johnson would then hand the cash to
Brown, who would run to his own Ford Explorer parked nearby
and submerge the cash in an ice chest filled with water to destroy
any dye pack in the money. Brown would drive the Explorer to
appellant’s residence. Appellant, Speight and Johnson would
follow in another car. A fifth man, John-John, would drive a
third “trailing car,” and possibly act as a look-out with a sixth
man, Sideways.
On January 20, 2016, Brown went with appellant and
John-John to “case” OneWest Bank. They also wanted to make
sure the security guard was unarmed.
About 6:30 a.m. on January 21, Brown went to appellant’s
residence. Speight and John-John were already there. Johnson
and Sideways arrived later. At 7:30 a.m. appellant’s wife Wright
returned home from her night shift at work. She had been
expecting to go to a second job but it was cancelled. She saw

5
appellant, Brown, Speight, Johnson and John-John sitting down
eating breakfast. She asked appellant why they were there, but
appellant told her to stay out of his business. He had an attitude.
Wright left at 8:00 a.m. in her Impala to take her son to school.
According to Brown, appellant prepared the men for the
robbery. He gave Brown and Speight hats and sunglasses, and
gave Brown a red shirt and Speight a tan shirt. He applied
makeup to cover up their tattoos and facial features. Appellant
gave Brown a computer bag containing a handgun and a small
bag to keep the bank door open. Appellant also gave Speight a
handgun. He gave Johnson a dark hoodie and a mask. Appellant
told all the men to leave their personal items, including their cell
phones and wallets, at his house.
When Wright returned home, the men were getting ready
to leave, and Wright asked appellant where he was going. He did
not tell her; he said only that he would be back. Appellant asked
to borrow her Impala, and she gave him the keys. The men left
around 8:30 a.m. in several cars.
According to Brown, appellant, Speight and Johnson left in
the Impala. Brown drove his Explorer to the bank and parked it
in back. Appellant picked up Brown and the men all drove to the
front of the bank.
The men began to implement the robbery plan. When the
security guard outside the bank told Brown to take off his
sunglasses, Brown shook his head “No” to indicate to Speight
that they should abandon the robbery, which was contingent on
the security guard being inside the bank. But Speight continued
to move forward. After Speight shot at the security guard,
Brown, Speight and Johnson all abandoned the robbery and ran
to the Impala. Appellant drove them away from the scene.

6
Appellant and Brown both criticized Speight for firing the gun.
Speight replied he had panicked.
Appellant pulled the Impala over after driving a short
distance, saying police would be looking for the car. The four
men got out and began to walk in different directions. Before he
left the car, Brown removed the red shirt he had been wearing.
Brown soon heard police sirens and panicked. He called
appellant on a secondary cell phone he had brought with him to
the robbery. Appellant told Brown to meet him at a nearby TJ
Maxx store. When the call ended, Brown noticed a police car. An
officer got out of the car, and Brown fled. As he ran, he
attempted to delete information from the cell phone before
discarding it. Brown was apprehended by police and his cell
phone recovered. Security guard James and another bank
employee separately identified Brown in field show-ups. Police
also discovered Brown’s Explorer in the bank parking lot. Inside,
they found a white Styrofoam cooler filled with water and a pair
of latex gloves.
Wright testified appellant called her about 9:15 a.m. and
told her to drive to Culver City and go by the bank on Jefferson.
When Wright asked him why, he told her to stop asking
questions. To her, he sounded frantic and nervous. Wright drove
to the location and saw police cars and yellow tape at the bank.
She called appellant’s cell phone, but he did not answer. She
drove home.
Wright testified appellant returned home about 10:00 a.m.
driving his Camry. When Wright asked him what was going on,
he told her to stay out of his business and to be quiet and let him
think. He then told Wright to report the Impala as stolen.

7
Wright watched the morning news with appellant, and they saw
a report of the attempted robbery of OneWest Bank.
Appellant next told Wright to drive him to Culver City in
the Camry. He directed her to the bank, where Wright saw police
officers and television crews. Wright noticed Brown’s Explorer in
the parking lot. Appellant told her to drive to a nearby TJ Maxx.
There, they saw Speight handcuffed next to a police car.
Appellant said, “ ‘Fuck, they got him.’ ”3 As they drove back past
OneWest Bank, Wright saw her Impala with police around it.
When she asked appellant why the car was there, he told her to
be quiet and drive.
Shortly after Wright and appellant returned home around
noontime, Johnson arrived with three other people: Sideways,
John-John, and John-John’s girlfriend. Everyone then went with
appellant to his mother’s house. Around 2:30 p.m., they all
returned to appellant’s and Wright’s residence. Appellant and
Wright drove the Camry to pick up Wright’s son from school.
After that, appellant again asked Wright to drive him to
Culver City. When they drove past the bank and saw that
Brown’s Explorer was no longer in the parking lot, appellant
began cursing. They returned home.
That night, Wright went to work. The next morning, as she
was returning home, a police officer called and told her appellant
had been arrested. When she arrived home, she falsely told
police officers appellant was with her at the time of the
attempted bank robbery. She later truthfully told police he was

3 Police had arrested Speight inside the TJ Maxx about 10:00
a.m. Police searched the store and found two pairs of latex gloves
in the restroom area. At field show-ups, Speight was identified
as one of the robbers.

8
not with her.4 Police searched their residence and found Brown’s
wallet, primary cell phone, and clothing.
The previous day police had searched the Impala and found
numerous documents with appellant’s and Wright’s names in the
car. On the front seat, police found a ski mask with blue latex
gloves inside. The mask contained a mixture of DNA, some of
which was contributed by Johnson. Police also found a red shirt,
a hat and a pair of sunglasses. They found a Louis Vuitton
satchel, which Wright later identified as appellant’s. The satchel
held a nine-millimeter handgun. Several blue latex gloves were
found in the vicinity. In a nearby yard, police found a light
brown shirt with Speight’s DNA. A man in the neighborhood
found a handgun and gave it to police. Testing later showed the
handgun was the firearm which had been discharged outside the
bank.
Brown’s initial statement to police proved to be incomplete
or inaccurate. He omitted John-John’s involvement completely.
Later, Brown agreed to share a jail cell with appellant.
Appellant told Brown: “ ‘You gotta get me out of this and put
Yellow Boy [John-John] in it.’ ” Appellant used a street term
which suggested Brown would not be around much longer if he
failed to help appellant. Brown then asked to speak to Detective
Bingham, and told him that the driver of the Impala had been
John-John, not appellant. He said that appellant had driven a

4 Wright made several false statements when she initially
spoke to police because one of the officers mentioned the
possibility that her child would be taken away. For example, she
falsely told police that she did not know Johnson and she did not
mention John-John’s presence. She was not honest about her
activities on January 21.

9
Camry to the vicinity of the bank (or more precisely to the Culver
City steps).
Brown subsequently made a proffer to give a truthful
statement about the robbery. In this statement, Brown explained
appellant planned the robbery and drove the Impala.
To prove appellant’s intent the prosecution offered evidence
that appellant was the getaway driver in an uncharged bank
robbery in Orange County in 2004. In that robbery, a man
entered the bank, demanded money and received cash with a dye
pack inside. He was driven away from the bank by appellant.
When police activated their lights and siren, appellant
accelerated to a speed over 120 miles per hour. During the
ensuing pursuit, money was thrown out of appellant’s car, some
of it stained with red dye. The car eventually stopped and
appellant and the other man were arrested.
The prosecution also offered the testimony of Culver City
Police Department Detective Thompson about the three
defendants’ cell phone usage. Detective Thompson examined
their cell phones and billing records. About 48 hours before the
bank robbery, Johnson texted appellant: “B at yo spot around
8 in the A.M. when I drop him off. Everything is a go. Rte. They
ready now. No? How they going to approac.” Appellant replied:
“Yeah, br0. Can you be a little earlier?” Johnson sent a reply
stating: “What time the spot open at? 9:00, right? Shit. We
don’t want to be sitting around. What time you want me to be
there and what time is W?” Johnson then added: “Open at 7:20.
Ima be there as soon as it open.” Jordan replied: “Like 7:30.”
Cell phone tower information showed phones belonging to
appellant, Brown, Sideways, and John-John were all in the
vicinity of OneWest Bank about 9:00 a.m. the day before the

10
attempted robbery.5 The information showed the phones moved
from the vicinity of appellant’s residence to the bank and then
back to appellant’s residence.
The night before the attempted robbery, there was an
exchange of texts between appellant’s and Johnson’s phones.
Johnson’s phone texted: “How’s everything looking? Is the
youngin ready? You got to let him know exactly what to do.
Can’t slip, Dog. Real talk.” The detective explained that “can’t
slip” meant “can’t get caught.” Jordan’s phone replied: “Yup.
They rt here br0.” Johnson’s phone texted back: “Okay. Put him
up on what he got to do and make sure they got them button-
down shits (sic). You know the look.”
On the morning of the attempted robbery, appellant’s
phone texted Johnson: “Everything A1.” Call records showed
appellant’s phone also called Brown’s and John-John’s cell
phones the morning of the robbery. Appellant’s phone called
Brown nine times between 6:30 a.m. and 9:12 a.m. and Brown’s
phone called appellant three times less than six minutes after the
bank robbery attempt.
Cell phone tower information showed Johnson’s phone was
moved to appellant’s residence the morning of the robbery and
remained there. Phones belonging to appellant, Brown,
Sideways, and John-John were also moved from appellant’s
residence to the bank about 9:00 a.m. Less than 30 minutes after
the attempted bank robbery, Wright’s phone was moved from her
residence to the bank.

5 More precisely, the information showed the movement of a
cell phone with a number matching the number listed in
appellant’s cell phone directory for Sideways.

11
 After the prosecution rested its case, Jordan began to
testify on this own behalf. During the lunch break, the People
made plea offers to Speight and Johnson, which they accepted.
The People also offered appellant a plea agreement of 25 years to
life, which he rejected. Appellant continued to testify for the
remainder of the day. No proceedings occurred the next day, a
Friday. On Monday morning, outside the presence of the jury,
Speight and Johnson formally entered their no contest pleas.
When the jury arrived, the court instructed it: “The charges
against defendants Speight and Johnson no longer need to be
decided by you in this case. Do not speculate about or consider in
any way why the charges against defendants Speight and
Johnson do not need to be decided. Thank you.” The court then
added: “I just want to make it very clear to you that from this
point on, you can’t discuss why defendants Speight and Johnson
are no longer here in this case, or [why] you need not decide any
of the charges against them. You don’t discuss it at all going
forward. That includes your deliberations. You are not to
address that issue whatsoever. [¶] All the evidence, though, that
you’ve heard is still to be considered by you in any way you
believe is appropriate, okay? All right.” Appellant called a
witness out of order, then resumed testifying on his own behalf.
Appellant denied being involved in the attempted bank
robbery. Appellant acknowledged knowing Brown and Johnson
for a long time and stated he met Speight and John-John through
Brown in 2015.
While in prison, he met and married Wright. In June 2015,
he moved in with her and her son when he was released from
prison. Appellant had health problems and could not walk when

12
he got out of prison. In December 2015, he discovered Wright
was pregnant with another man’s child and decided to leave her.
On January 20, 2016, the day before the robbery, appellant
spoke with Brown about an insurance scam involving a Camry.
About 8:00 a.m., John-John and another man arrived at
appellant’s residence with the Camry. Appellant learned that
Brown, Johnson, and John-John were planning to use the Camry
to commit a robbery with two people named Youngin and Mario.
Appellant talked Youngin and Mario out of participating in the
robbery and took possession of the Camry.
Appellant did not have his cell phone between 7:30 a.m.
and 10:00 a.m. on January 20. He had given it to Wright, who
was unhappy appellant had been using the phone to talk to other
women. He suggested Wright had used the phone to
communicate with Brown, John-John, and Sideways.
Appellant testified John-John arrived at his residence on
January 21 between 4:30 a.m. and 5:00 a.m. Brown and Speight
arrived later. At some point, appellant fell asleep. When he
awoke the men and the Camry were gone. Appellant called
Brown and John-John and they returned the Camry. Speight
was with them. Wright and Johnson separately arrived at the
residence after 7:30 a.m.
At 7:45 a.m., appellant took Wright’s son to school in the
Camry. When he returned about 8:30 a.m., the men were gone,
as was the Impala. Wright thought the men might have taken it.
Appellant called Brown and Sideways. Sideways said he was in
the car; Brown denied taking the car. Appellant drove the Camry
to the bank to look for the Impala. As he got closer, he heard
sirens and so he drove around Culver City looking for the Impala.
He did not find it.

13
 At 9:12 a.m., Brown called appellant and asked for a ride.
Appellant refused and returned home about 10:00 a.m. Wright
was not there, so he called her. She came home soon thereafter,
driving Johnson’s car. Sideways was with her. John-John and
his girlfriend arrived soon thereafter.
At 10:30 a.m., appellant saw a television news report that
Speight had been arrested at a TJ Maxx. Appellant began to
suspect Wright had been involved in the robbery. They drove to
Culver City in the Camry to find the Impala. They found it, but
did not stop because a police officer was standing next to it.
Later that day, Johnson gave Wright the keys to the Impala, and
Wright and appellant again drove to Culver City to look for the
car. This time, the car was surrounded by police officers.
Appellant wanted to tell police what had happened but Wright
was afraid.
Appellant explained that the text messages he exchanged
with Johnson on January 19 related to a planned trip to a barber
shop. Appellant claimed he did not understand Johnson’s text
messages on January 20 about Youngin and slipping but had
simply agreed to them. He also claimed the references to button-
down shirts related to a previous Orange County bank robbery
involving Johnson and whether he looked cool or hot. Appellant
testified the January 21 text to Johnson involved the Camry.

14
 DISCUSSION
I. The Trial Court Did Not Err in Ruling That Speight and
Johnson Could Remain as Codefendants and No Unfairness
Subsequently Arose from Their Presence at Counsel Table.
Appellant contends the trial court violated his state and
federal constitutional due process right to a fair trial by allowing
his codefendants Speight and Johnson to remain as defendants in
appellant’s trial after they “effectively” entered into plea
agreements with the People. He claims he should have been
tried alone.
A. Background
During voir dire, the People offered all three defendants the
same plea: a determinate term of 22 years in prison in exchange
for their guilty pleas. Speight and Johnson wished to accept the
deal; appellant did not. The People’s alternate offer to Speight
and Johnson was 22 years in exchange for what the trial court
described as “a factual basis for your plea where you’d have to
spill the beans on everything, and you’d have to make a
statement on the record, and then you could be available for them
to call you as a witness in the case. And you also would not be
sentenced until the trial was over.”
Speight and Johnson declined to give a factual basis plea.
The court then stated that the People’s alternate offer was “the
same offer of 22 years . . . but you can’t get it until the end of the
People’s case. You have to sit through the trial, okay, until
they’re finished with their evidence.” The prosecutor clarified
that the offer was that “the plea would not come after the
People’s case. It would come after the case is complete, after the
defense case, and it goes to the jury.” She explained the
reasoning behind this timing: “unless it was a factual-basis plea,

15
I’m not going to be willing to risk that they’ll go and testify on
behalf of [appellant].”
Appellant objected to his codefendants sitting through the
trial and argued that it would create a conflict. The prosecutor
responded: “You know, I didn’t expect this from [appellant’s]
counsel. . . . My only alternative would be to withdraw all offers
and go forward on all three of them. And if [appellant] and his
counsel are happy with that, then I think that’s what we have to
do.”
After appellant continued to object to letting Speight and
Johnson sit through trial with the option of a plea agreement at
the end, the court replied: “So, you know, this is causing an issue
that I did not foresee because it has been done on many
occasions. Just because you haven’t seen it, counsel, doesn’t
mean it is not possible. I talked to a judge downtown that does
long-cause trials. He’s a very experienced judge. You even
suggested that I talk to him about it, and he indicated that
everything is fine doing it this way.”
The court ended the discussion by confirming its
understanding that the deal was off the table, and asked the
People to consider at the end of trial that Speight and Johnson
wanted to take the offer. The prosecutor agreed that the deal
was off the table and that she would “consider it after trial and
think about what the court has said.”
B. No Backdoor or “Effective” Plea Agreement Was
Reached Before Trial
Appellant relies on general due process principles to
support his contentions, noting: “Neither the term ‘due process’
nor the concept of fundamental unfairness itself, is susceptible of
precise and categorical definition. . . . Every allegation of due

16
process denied depends on the specific process provided.”
(Brecht v. Abrahamson (1993) 507 U.S. 619, 639-640 (conc. opn. of
Stevens, J.).) Appellant also points out that both the United
States Supreme Court and California Supreme Court “have long
emphasized the importance of preserving the integrity of the trial
process. (See, e.g., Carey v. Musladin (2006) 549 U.S. 70, 80;
Neal v. McAninch (1995) 513 U.S. 432, 442; In re Boyette (2013)
56 Cal.4th 866, 890.)”
Appellant contends the decision to let Speight and Johnson
sit as defendants at trial was structural error which requires
reversal per se. (See Arizona v. Fulminante (1991) 499 U.S.
279, 309 [“structural defects in the constitution of the trial
mechanism, which defy analysis by ‘harmless-error’ standards”
require reversal per se].) This is the entirety of appellant’s legal
authority and argument. He has not cited, nor are we aware of,
any authority holding that a violation of due process occurs under
the circumstances presented here.
As respondent points out, appellant is essentially arguing
his trial should have been severed from the trial of his
codefendants. The general rule is that “ ‘ “ ‘[a]ntagonistic
defenses do not per se require severance, even if the defendants
are hostile or attempt to cast the blame on each other.’ ” ’ ”
(People v. Gomez (2018) 6 Cal.5th 243, 274-275.)
The failure to sever one defendant from another does not
constitute structural error and will not ordinarily require
reversal on appeal unless it actually results in “gross unfairness”
to one of the defendants. (People v. Montes (2014) 58 Cal.4th 809,
834; see People v. Coffman and Marlow (2004) 34 Cal.4th 1, 41
[reversal for erroneous denial of motion to sever required only if

17
there is a reasonable probability of a more favorable outcome if
motion had been granted].)
We do not agree Speight and Johnson “effectively” entered
into plea agreements before trial.
Speight and Johnson were free to change their minds
during trial and testify on behalf of appellant. If unexpected
problems arose with the People’s case, they could try to capitalize
on those problems and let the case against them go to the jury.
Similarly, if the People decided the case against appellant was
not unfolding strongly enough, Speight and Johnson could have
been informed there would be no plea deal without a factual basis
from them (which they had been unwilling to provide). If a
witness unexpectedly provided evidence showing Speight or
Johnson was more culpable than the People believed (for
example, they had discussed killing the security guard as part of
the robbery), the People were free to let the case go to the jury
knowing there was a very strong case for a true finding on the
allegation that the attempted murder was willful, deliberate and
premeditated.
Thus, there was no binding agreement when trial began,
and the trial court did not err in denying appellant’s request that
Speight and Johnson not be seated as codefendants.
C. Appellant has Not Shown That Events After the
Court’s Ruling Prejudiced Him or Made His Trial
Unfair.
We acknowledge, as set out above, that a defendant may
suffer prejudice if subsequent events render the trial grossly
unfair, justifying reversal of the judgment of conviction. That,
however, was not the case here.

18
 Appellant claims he was prejudiced because: 1) he was
forced to share the total number of peremptory challenges with
the codefendants; 2) the People failed to take the case against
Speight and Johnson seriously during the case-in-chief; and 3)
Speight and Johnson disappeared from the courtroom at the end
of the prosecution’s case. None have merit.
1. Appellant Has Not Shown He Was Prejudiced by
the Allocation of Peremptory Challenges.
Appellant contends he was prejudiced because he had only
five individual peremptory challenges and had to share 20 joint
peremptory challenges with Speight and Johnson. If tried alone,
appellant would have received 20 individual challenges. He
asked the trial court to give him 20 individual challenges. The
court denied the request, explaining: “If you find that you are not
agreeing on the peremptories, you can make a motion to ask for
more peremptories. Let’s see how it plays. I don’t believe that
20 joint peremptories – I think that everybody would be
exercising them in the same manner. But if you are disagreeing
with the attorneys, the other attorneys, you can say so, and we
can go sidebar, that you disagree with what the other attorneys
are doing.”
Appellant did not use all his peremptories and did not
request additional peremptories from the trial court. He has not
identified any disagreement with Speight or Johnson over the use
of the joint peremptory challenges. Appellant has failed to show
any prejudice in this area.

19
 2. Appellant Has Not Shown Prejudice From
Counsel’s Conduct of the Trial or Codefendants’
Conduct During Trial.
During the course of the plea discussion, the court stated
its belief that Speight’s and Johnson’s counsel “are going to act
differently during the trial than they would if they were going to
full-on attack the People’s evidence.” After appellant objected,
the court stated: “At any time, if the defendants change [their]
mind, because they have not entered a plea, they can present
evidence. . . . If they change their mind, they can do whatever
they want to, and the People may or may not offer the same deal.
So nobody’s tying anybody’s hands in this trial.”
Appellant then argued that proceeding under such an
understanding would mean that Speight’s and Johnson’s counsel
“can’t defend their clients under the 6th Amendment.” Counsel
for Speight replied: “Whatever the court’s comments are, I don’t
think are binding in any way. We can do what we need to do to
properly represent our clients, and that’s what we’re doing now.
Whatever happens during the trial is a decision for myself and
my client.” Counsel for Johnson then stated: “And that
expresses our position, as well.”
When appellant then characterized the situation as a
conflict, the court asked counsel for Speight and Johnson: “If I
were to say to you, I want you to try the case the way you would
no matter what, are you prepared and ready to do that?” Counsel
for Speight replied: “I don’t know that there would be anything
differently done.” He elaborated: “The DNA is very strong on my
client. There’s video of my client. My client is caught at the
scene. There is a substantial amount of evidence against my
client. I’m going to ask questions at the trial. . . . I don’t think

20
I’m going to act adversely to [appellant].” He added that he
intended to ask questions of the security guard because he was
“the alleged victim in this case. So I don’t know that I would act
any differently if we were going forward in a normal -- without
any deal in place.” Counsel for Johnson stated that there were
two primary issues that concerned Johnson: cell tower evidence
and DNA evidence. He explained: “I’ve spoken to experts, and it
certainly would be revealed if we went over – I’ve already told
[the prosecutor] this. If I went forward, the advice from both of
them was not to go forward, and that they may help me in terms
of cross-examination, but my understanding in speaking to both,
neither could help me in terms of guilt or innocence. They were
of the opinion that their testimony would not be beneficial. [¶]
That said, I would cross-examine -- if I had to go to trial on this,
there are issues, but those are issues I could deal with and could
bring forward.”
Counsel’s comments reflected the reality of Speight and
Johnson’s situation: the evidence against them was extremely
strong. Much of the action at the bank was captured on
surveillance video. The DNA and cell phone location evidence
linking them to the robbery was not particularly vulnerable to
challenge. They had few options for a defense.
In spite of this difficult situation, codefendants and their
counsel participated in the trial. Appellant does not identify any
trial tactics which would have caused the jury to think the men
were engaging in a sham. Johnson’s counsel gave an opening
statement. While Speight’s counsel did not, the trial court
instructed the jury that “[t]he defense is not required to present
an opening statement, but if it chooses to do so, it may give it
either after the People’s opening statement or at the beginning of

21
the defense case.” The two main prosecution witnesses were
Brown and Wright; their testimony was most damaging to
appellant, who thoroughly cross-examined them. Appellant has
not identified any lines of inquiry with those witnesses which
Speight or Johnson could have been expected to pursue but did
not. Speight extensively cross-examined the security guard, and
Johnson questioned him as well. Counsel for both men cross-
examined bank employee Figueroa. Speight also questioned one
of the detectives. The cell phone records and tower location
information were damaging to Johnson, but even more damaging
to appellant. Appellant’s counsel conducted a multi-day cross-
examination of Detective Thompson which focused on these
topics. Appellant does not identify any lines of inquiry on these
topics which Johnson could have been expected to pursue but did
not. Appellant does not explain what else Speight and Johnson
could have done through cross-examination during the People’s
case-in-chief. The codefendants’ participation in the trial process
was reasonable given the evidentiary realities.
Appellant also contends the People did not vigorously
litigate the case because the People did not introduce evidence in
their possession that Johnson had suffered a prior conviction for
bank robbery. Appellant claims this decision left the jury with
the impression that he was the only experienced bank robber,
which reinforced Brown’s testimony that appellant was the
mastermind. Appellant would have been in the same position if
he had been tried alone.
Appellant also contends the men engaged in misconduct by
falling asleep and “cackling” during trial. He made this claim in
connection with his motion for a new trial. The trial court stated
it had not heard any cackling or out-loud laughter. The court

22
stated Speight’s eyes had closed during trial, but it was during a
portion of the trial which did not relate to him and so was
understandable.6
3. There Is No Basis to Infer the Jury Was
Influenced by Speight’s and Johnson’s Departure
from the Trial.
Appellant contends codefendants’ lackadaisical behavior
during trial “signaled” to the jury that they accepted the strength
of the People’s case. He claims that codefendants’ “sudden
departure” in “mid-trial likely confirmed that perception.” This
in turn would make the jury more inclined to accept the People’s
case and disbelieve Jordan.
As we have explained, the codefendants presented a
reasonable defense and did nothing to suggest to a jury that they
accepted the People’s evidence. The jury was instructed not to
speculate about the reason it was no longer being asked to decide

6 The court’s full statement was: “Now, with regard to the
cackling, I heard no cackling. There was never any obvious, loud
laughing on the part of any of the defendants. Yes, there were
times I did see Mr. Speight’s eyes close. There were moments
that were not all that exciting during the course of the trial
where I would understand why another defendant might not be
paying attention when evidence did not relate to him. And, yes,
his eyes might have closed. There were times where there were
humorous things that might have happened during the trial.
And yes, people are human, and they smile. There was never a
cackling, out-loud laughing during any of the proceedings that I
remember or believe I ever saw.” Appellant also suggested one of
the other attorneys did numerous crossword puzzles during trial.
The trial court stated it never saw anyone doing a crossword
puzzle.

23
the charges against Speight and Johnson. We presume the jury
followed that instruction and did not engage in the sort of
speculation in which appellant now engages. (See People v.
Letner and Tobin (2010) 50 Cal.4th 99, 152 [presuming jury
followed instruction to separately consider the evidence against
each defendant].)

II. Senate Bill No. 1437 Does Not Assist Appellant.
Appellant contends his conviction for attempted murder
must be reversed because it is based on the natural and probable
consequences doctrine, which was eliminated as a basis for
liability under Senate Bill No. 1437 (2017-2018 Reg. Sess.)
(Senate Bill 1437). He claims the plain language of section 188,
as amended by Senate Bill 1437, requires such a result; applying
Senate Bill 1437 amendments to attempted murder is necessary
to effectuate the intent of the Legislature; the statutory
interpretation principle of in pari materia requires that the
changes apply to attempted murder; and the rule of lenity
requires the changes to apply to attempted murder. He further
claims that state and federal equal protection principles require
that Senate Bill 1437 be applied to attempted murder.
Generally, a defendant seeking resentencing under Senate
Bill 1437 must file a petition for relief in the trial court pursuant
to section 1170.95. (People v. Gentile (2020) 10 Cal.5th 830, 853,
858.) The section establishes a procedure for introduction of
evidence and factfinding usually necessary before relief can be
granted; it does not provide for direct appellate relief. (Ibid.)
Here, the People do not appear to dispute appellant was
convicted under the natural and probable consequences doctrine,
and thus it appears appellant’s claim involves a pure question of
law.

24
 Assuming for the sake of argument we can resolve this
claim as a pure issue of law, we note whether Senate Bill 1437
applies to attempted murder is presently before the California
Supreme Court and several Courts of Appeal have split on the
issue. Appellant acknowledges this split, contends the cases
holding that Senate Bill 1437 does not apply to attempted
murder are incorrectly decided, and urges us to follow those
courts which have held that Senate Bill 1437 does apply to
attempted murder convictions. We decline this invitation.
We agree with the well-reasoned analysis in People v. Lopez
(2019) 38 Cal.App.5th 1087, review granted November 13, 2019,
S258175, and People v. Munoz (2019) 39 Cal.App.5th 738, review
granted November 26, 2019, S258234. These cases reject the
arguments made by appellant, including his constitutional equal
protection violation claims. Senate Bill 1437 does not apply to
attempted murder convictions.7

III. Evidence of Appellant’s Prior Uncharged Bank Robbery
Was Properly Admitted to Show Intent.
Appellant contends the trial court abused its discretion in
admitting evidence that he was the getaway driver in a prior
uncharged bank robbery attempt. The trial court admitted the
evidence pursuant to Evidence Code section 1101, subdivision (b),
for the limited purpose of showing intent. Appellant contends

7 On January 31, 2021, appellant moved this court for a stay
and limited remand pursuant to People v. Gentile, supra, 10
Cal.5th 830 as he intends to file a petition in the trial court under
section 1170.95 for resentencing. Because we conclude section
1170.95 does not apply to convictions for attempted murder, we
declined to stay the appeal.

25
that the issue in this case was identity, and there was no
disputed issue as to the intent of the getaway driver. He further
contends that the admitted evidence was so prejudicial it violated
his state and federal constitutional rights to due process by
rendering his trial fundamentally unfair.
A defendant who enters a not guilty plea puts every
element of the charged offense at issue, including intent.
(People v. Carpenter (1997) 15 Cal.4th 312, 379.) Thus, the
evidence was relevant.
The People were clearly concerned that Speight or Johnson
would provide testimony favorable to appellant; the People
structured the plea offer to prevent that occurrence. As we have
discussed above, no plea agreement was reached before trial.
Thus, it remained possible during the People’s case-in-chief that
Speight and Johnson would offer testimony exonerating
appellant, including perhaps testimony that appellant was the
driver but was unaware of their plans. Similarly, nothing
prevented appellant from testifying in his own defense that he
agreed to drive his friends to the bank and/or drive them home
without knowing what their plans were. Perhaps this testimony
would not have been effective, but the People did not have to
gamble on what precise defense appellant would ultimately offer.
Further, less hypothetically, Brown’s pretrial statements at
one point placed appellant driving the Camry, which Brown had
at other times described as the “trail car” for the robbery.8 As it

8 Brown testified at trial that the plan called for appellant to
drive the Impala and John-John to drive the Camry as a “trail
car.” When Brown named John-John as the driver of the Impala
before trial to placate appellant, he put appellant into the Camry.
Brown was not clear about appellant’s role in this capacity, but

26
turned out, when appellant testified, he acknowledged driving
the Camry the morning of the murder and driving in the vicinity
of the bank near the time of the robbery. He then provided an
innocent explanation for being in the area, claiming he was
looking for the Impala, which appellant claimed was being used
by Brown and Sideways. In light of Brown’s statement,
appellant’s intent in driving the Camry in the vicinity of the bank
was very much an issue.
Evidence of an uncharged offense offered to show intent is
still subject to exclusion under Evidence Code section 352 if the
probative value of the evidence is outweighed by the potential
that the evidence will be unduly prejudicial. (People v. Leon
(2015) 61 Cal.4th 569, 597-598.) A trial court’s decision to admit
such evidence is reviewed for an abuse of discretion.
“ ‘ “Prejudice,” as used in Evidence Code section 352, is not
synonymous with “damaging.” [Citation.] Rather, it refers to
evidence that uniquely tends to evoke an emotional bias against
the defendant as an individual, and has little to do with the legal
issues raised in the trial.’ ” (People v. Masters (2016) 62 Cal.4th
1019, 1062.) Here the prior bank robbery did not involve the use
of a weapon, and so was not inflammatory compared to the facts
of this case. (See People v. Molano (2019) 7 Cal.5th 620, 666
[comparing severity of offense admitted pursuant to Evid. Code,
§ 1101 with current offense].) The trial court did not abuse its
discretion in admitting evidence of the prior uncharged robbery.
Neither were their state or federal constitutional violations.

he did indicate at trial that appellant drove the car in the vicinity
of the bank and/or the Culver City steps.

27
IV. There Was No Basis to Admit Details of Appellant’s Prior
Robbery Conviction.
Appellant contends the trial court erroneously prevented
him from presenting evidence that his 2000 robbery conviction
did not involve a bank.
Appellant cites no authority permitting the admission of
such facts. His theory is that the admission of the evidence was
necessary to prevent the jury from speculating that the 2000
robbery involved a bank. Appellant has cited no authority
permitting the introduction of evidence for such a purpose.
Initially, appellant simply states broadly that all relevant
evidence is admissible. (Evid. Code, § 350; Cal. Const., art I, § 28,
subd. (f)(2).) While this is true, it is also true that only relevant
evidence is admissible. (Evid. Code, § 351) Appellant has not
explained how the evidence is relevant.
“ ‘Relevant evidence’ means evidence, including evidence
relevant to the credibility of a witness or hearsay declarant,
having any tendency in reason to prove or disprove any disputed
fact that is of consequence to the determination of the action.”
(Evid. Code, § 210.)
The prosecutor offered the conviction for impeachment
purposes, and it is well settled that past misconduct, particularly
if it involves moral turpitude, may have a tendency to prove a
witness is not truthful. (People v. Wheeler (1992) 4 Cal.4th 284,
295-298.) Appellant does not explain how evidence that a person
committed a non-bank robbery rather than a bank robbery would
have a tendency to show that the person is credible. The choice of
victim has no apparent bearing on the veracity of the robber.

28
 Indeed, appellant does not make such an argument in his
opening brief. Rather, he argues that the details were necessary
because, absent the details, the jury might “speculate that [the
robbery might] have also been a bank robbery.” He also argues
the details would “prevent an inference that [appellant had] an
extended history of bank robberies.”
As appellant acknowledges, the jury had already been
presented with evidence that he had participated in a prior
attempted robbery of a bank, and had been instructed that it
could consider that evidence only in deciding appellant’s intent as
to the current charge. Given this use of the attempted robbery
incident, we see no way that the jury would have speculated in
the manner argued by appellant. The jury’s logical response to
the robbery conviction would be to infer it did not involve a bank
because it was not included in the instruction about the
uncharged bank robbery evidence and intent. Assuming for the
sake of argument there was a slight possibility jurors might
speculate about the nature of the robbery conviction, the
appropriate method of preventing speculation in this case would
have been a jury instruction.
And here the jury was instructed: “You must decide what
the facts are in this case. You must use only the evidence that is
presented in the courtroom. ‘Evidence’ is the sworn testimony of
witnesses, the exhibits admitted into evidence, and anything else
I tell you to consider as evidence.” This instruction is sufficient to
convey to a jury that it should not speculate. (See People v. Dykes
(2009) 46 Cal.4th 731, 795–796.)
The jury was also given complementary instructions on the
use of appellant’s prior robberies which showed the different
purposes for which the prior uncharged bank robbery and the

29
prior robbery conviction were admitted. It was instructed
specifically and in detail about the use of the prior uncharged
bank robbery to prove intent. The jury was also instructed about
the permitted use of prior felony convictions: “If you find that a
witness, including the defendant, has been convicted of a felony,
you may consider that fact in evaluating the credibility of the
witness’s testimony. The fact of a conviction does not necessarily
destroy or impair a witness’s credibility. It is up to you to decide
the weight of that fact and whether that fact makes the witness
less believable.” Finally, the jury was instructed: “During the
trial, certain evidence was admitted for a limited purpose. You
may consider that evidence only for that purpose and for no
other.”
Given the instructions as a whole, there is no reasonable
probability or possibility appellant would have received a more
favorable outcome if he had been permitted to clarify that the
robbery conviction was not for robbing a bank.

V. Appellant Was Not Prejudiced By The Erroneous
Admission of Two Of Wright’s Statements Which Were
Covered by the Marital Privilege.
Appellant contends four sets of statements he made to
Wright on the morning of the robbery were covered by the
marital privilege and the trial court erred in admitting the
statements. He further contends the erroneous admission
rendered the trial fundamentally unfair in violation of his state
and federal due process rights. The People contend appellant has
forfeited this claim.
The record does not appear to reflect the full activity by the
trial court or the parties on this issue. We have augmented the
record with the following settled statement, certified by the trial

30
court: “A discussion was held regarding defense counsel’s
objection to Toi Wright’s testimony on marital privilege grounds.
The court discussed its likely tentative ruling in favor of
admissibility. The parties were unable to reach a stipulation as to
what extent, if any, the discussion was held on the record.”
The People maintain a pretrial tentative ruling is
insufficient to preserve an issue and appellant was required to
press for a final ruling. (See, e.g., People v. Holloway (2004)
33 Cal.4th 96, 133.) They also argue appellant was required to
make a specific and timely objection in the trial court to
particular identifiable statements. (See, e.g., People v. Crittenden
(1994) 9 Cal.4th 83, 127.) Given the uncertain state of the record,
as reflected in the very brief settled statement, we will exercise
our discretion and decline to treat the claim as forfeited.
Evidence Code section 980 provides “one spouse may
prevent another spouse from disclosing a communication that
‘was made in confidence between him and the other spouse while
they were husband and wife.’ ” (People v. Cleveland (2004)
32 Cal.4th 704, 743.) “ ‘[T]he privilege applies only to oral or
written verbal expression from one spouse to the other, and acts
of the spouses committed in each other’s presence do not
constitute communications between them, within the meaning of
the privilege for confidential marital communications.’ ” (Ibid.)
“ ‘To make a communication “in confidence,” one must intend
nondisclosure. . . .’ [Citation.] ‘While a communication between a
husband and wife is presumed to be confidential, if the facts show
that the communication was not intended to be kept in
confidence, the communication is not privileged.’ ” (Id. at p. 744.)
As appellant acknowledges, erroneously admitted evidence
is normally reviewed for prejudice under People v. Watson (1956)

31
46 Cal.2d 818, which requires reversal of a conviction only if it is
reasonably probable appellant would have received a more
favorable outcome in the absence of the error. Appellant
contends admission of Wright’s testimony deprived him of state
and federal constitutionally required due process by rendering
the trial fundamentally unfair and so must be reviewed for
prejudice under the standard in Chapman v. California (1967)
386 U.S. 18. Appellant offers almost no explanation for how
exactly this testimony rendered the trial fundamentally unfair.
We examine each of the statements.
A. First Statement
Appellant contends the marital privilege applied to
Wright’s testimony about appellant’s plans on the morning of the
robbery. Wright testified that when she asked appellant where
he was going, he replied “I’ll be back.” She asked him where he
was going this early and he again replied, “I’ll be back.”
The People suggest appellant made these remarks in the
presence of the other men, which would render the privilege
inapplicable. (People v. Bradford (1969) 70 Cal.2d 333, 342, fn. 2
[privilege does not apply to statements defendant made to his
spouse in the presence of three other people].) The People are
correct Wright testified that upon her return from taking her son
to school, “I go in the house and they’re, like, I guess, getting
ready to leave or whatever, so I’m asking [appellant] ‘Where are
you going?’ ” Before making this statement, however, Wright
expressly testified the other men were outside when she came
home from taking her son to school. There is no indication the
men followed her into the house. Thus, Wright’s testimony as a
whole does not support a finding that others were present when
she spoke with appellant.

32
 The facts indicate appellant did not intend his response to
Wright to be confidential, however. Earlier, when Wright got
home from work, she saw the men “sitting down eating breakfast
or eating something, and me and [appellant] got into an
altercation. I walked in the house, and I asked him, ‘Why are
they here?’ [¶] And he’s all, like, ‘Just stay out of my business,’
like, with an attitude, basically.” His later refusal to answer her
question about where he was going with the men was essentially
just a different way of telling her to stay out of his business. (See
People v. Gomez (1982) 134 Cal.App.3d 874, 879 [defendant’s
statements to wife were not intended to be confidential when he
repeated those statements in the presence of other people].)
Alternatively, assuming that the earlier response was not similar
enough to waive the privilege, that response was substantively
the same as appellant’s refusal to tell Wright where he was
going, and so any error in the admission of the “I’ll be back”
answers was harmless under either Watson or Chapman.
B. Second Statement
Appellant contends his telephonic request to Wright that
she drive to the bank to meet him was covered by the marital
privilege. Wright testified appellant called her about 9:15 a.m.
and asked her to come to Culver City, specifically to “ ‘come down
here on Jefferson over by the bank.’ ” She “kept asking why. He
wouldn’t give me an answer. He was like, ‘Just stop asking me’ –
excuse my language—‘fuckin’ questions and come to Culver
City.’ ” Wright went to the bank but could not find appellant.
The People contend the marital privilege did not apply to
the second statement because “the communication was made, in
whole or in part, to enable or aid anyone to commit or plan to
commit a crime or a fraud.” (Evid. Code, § 981.) The People

33
claim appellant was asking Wright to be an accessory to the bank
robbery. Appellant contends there is no evidence Wright was
aware of the bank robbery and so would have lacked the intent
necessary to be an accessory to a crime.
Nothing in the language of Evidence Code section 981
requires that the spouse actually agree to the request for aid in
committing a crime in order for the exception to apply. Neither
party addresses the issue presented here: whether the spouse
must be aware at the time of the communication that she was
being asked to help the requesting spouse commit a crime. The
cases cited by the People all involve instances where it was
reasonable to infer the spouse was aware she was being asked to
engage in criminal activity, but do not discuss whether such
awareness is a prerequisite to the application of the exception.
Appellant cites only cases discussing the requirements for being
an accessory.
Assuming for the sake of argument that the substance of
the phone conversation was covered by the marital privilege, the
admission of Wright’s testimony would be harmless under either
the Watson or Chapman standard of review. Wright’s testimony
that she received a phone call from appellant about 9:15 a.m. was
admissible. (People v. Bradford, supra, 70 Cal.2d at p. 342, fn. 2
[marital privilege does not bar testimony that witness received a
phone call from her spouse at a particular time].) Wright’s action
of driving to the bank in response to the phone call was not a
communication by appellant and so the marital privilege did not
apply. She could testify concerning the actions she took in
response to the phone call. (See Tanzola v. De Rita (1955) 45
Cal.2d 1, 8 [citing with approval an out-of-state case holding that
the marital privilege did not bar the wife from testifying to the

34
fact that she had a conversation with her husband or to the
action which she took as a result of the conversation].) Thus, the
admission of the substance of appellant’s communication on the
phone, that is, that he asked her to come to the bank, added very
little, if anything, to Wright’s observations and actions.
C. Third Statement
Appellant contends his remark upon seeing Speight in
handcuffs at the TJ Maxx was covered by the marital privilege.
Wright testified that when she and appellant drove by the TJ
Maxx and saw Speight in handcuffs, appellant stated, “Fuck,
they got him.” Without citation to authority, the People contend
this was a spontaneous statement by appellant and so not
covered by the marital privilege. We understand the People to
mean that since spontaneous statements are by their nature
made without an opportunity for reflection, appellant could not
have intended the statement to be confidential. (See Cal. Law
Revision Com. com., Deering’s Ann. Evid. Code, § 1240 (2020)
[discussing “the spontaneity of such statements and the
consequent lack of opportunity for reflection”].)
Marital communications are presumed to be confidential.
(People v. Cleveland, supra, 32 Cal.4th at p. 744.) However, “ ‘if
the facts show that the communication was not intended to be
kept in confidence, the communication is not privileged.’ ” (Ibid.)
As we have discussed, the law is clear that a spouse’s decision to
communicate publicly with his or her spouse or to repeat private
spousal statements in public can be reasonably understood as a
decision by the speaking spouse to forgo confidentiality. The
same cannot be said of a spontaneous statement. If the spouse
has no time to reflect before speaking, the spouse cannot be

35
understood as deciding to forgo confidentiality. The presumption
stands.
There is no reasonable probability (or possibility) that
appellant would have received a more favorable outcome if the
statement had been excluded. At most appellant’s exclamation
shows that he was aware of the plan to rob the bank. A failure to
act to prevent a crime does not give rise to criminal liability.
Further, appellant’s own testimony reflected this awareness. He
testified he learned on January 20 that Brown, Johnson, John-
John, and two other men were planning to commit a bank
robbery using the Camry. Appellant convinced the two other
men not to participate and he took possession of the Camry.
Appellant also testified Speight, Brown, and John-John were at
his residence the morning of January 21 and left in the Impala
while appellant was using the Camry to drive Wright’s son to
school. Appellant also testified he later drove the Camry to
OneWest Bank looking for the Impala. Thus, appellant’s own
testimony indicated he believed the men, including Speight, were
involved in the robbery mentioned the previous day.
D. Fourth Statement
Appellant contends his statements when he saw police
surrounding Wright’s Impala were covered by the marital
privilege. Wright testified that when appellant saw the police, he
said to Wright: “Let me think. Just be quiet. Just drive.”
Respondent contends this statement fell within the crime
exception to the marital privilege. We agree.
By the time appellant made this statement, Wright was
much more aware of the morning’s events than when she received
appellant’s first phone call which caused her to drive to the bank
and see the police activity going on there. Since that first phone

36
call, appellant had returned home, and then had asked Wright to
drive him to Culver City. There he directed her to the bank,
where she observed that police were still present. She also saw
the Explorer parked near the bank. Wright and appellant then
drove past a handcuffed Speight near the TJ Maxx. Finally, they
came to Wright’s Impala, which was surrounded by police. It was
at this point appellant made the challenged statement. It is
reasonable to understand appellant’s direction to Wright to keep
driving as asking for help to avoid detection by the police and
that Wright would have understood this as such a request given
all she had just observed. Thus, assuming the crime exception
requires the spouse to know that she is being asked to assist in
criminal activity, that requirement would be met here. The crime
exception to the marital privilege applied. (Evid. Code, § 981.)

VI. There Is No Cumulative Prejudice.
Appellant contends that even if the individual errors in his
trial were not prejudicial individually, when viewed
cumulatively, those errors were prejudicial and violated his state
and federal constitutional rights to due process and a fair trial.
We have found only one error, the admission of some marital
communications to Wright by appellant, and have found that
minor error harmless. We have found no prejudice to appellant
from being tried with Speight and Johnson; no error in the use of
appellant’s prior uncharged offense to prove intent or the use of
his prior robbery conviction as impeachment; no error in the
refusal to let appellant clarify that his attempted robbery
conviction did not involve a bank. There is no error to cumulate.
(See People v. Hines (1997) 15 Cal.4th 997, 1075 [even considered
cumulatively, the few errors which occurred were
inconsequential].)

37
 We now turn to appellant’s claims of sentencing error.

VII. The 1990 Robbery Conviction Is a Strike.
The prosecutor alleged appellant suffered a strike
conviction in 1990 for robbery. Appellant was 16 years old at the
time, but gave the false name of Kelvin/Kevin Grant and a date of
birth that would have made him 19 years old at the time of the
robbery. The abstract of judgment shows appellant was
represented by counsel when he entered a guilty or no contest
plea to the robbery charge.
Appellant objected to the use of the 1990 conviction,
contending it was invalid because the law at the time did not
permit direct filing of charges against 16-year-old’s in adult court.
In such circumstances, the case should have been filed in juvenile
court and moved to adult court only after a fitness hearing
determined the juvenile was unfit for juvenile court. There was
no evidence of a fitness hearing.
In his opening brief, appellant acknowledged that collateral
attacks are permitted on prior convictions alleged as sentencing
enhancements only if the defendant was denied the right to
counsel or was denied his Boykin-Tahl rights. (Custis v. United
States (1994) 511 U.S. 485, 487; People v. Allen (1999) 21 Cal.4th
424, 442; Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl
(1969) 1 Cal.3d 122 (Tahl).) He contends these limitations are
based in part on the ease of determining such violations and so
we should consider his claim because it is easy to determine that
he did not receive a fitness hearing. He claims that absent
evidence of a fitness hearing there is insufficient evidence to
support the trial court’s finding that the 1990 conviction was a
valid prior conviction; he further contends due process requires
proof beyond a reasonable doubt of every element of a crime.

38
 The cases cited by appellant all require the violation of a
fundamental constitutional right. We reject appellant’s
suggestion that the law should be expanded to permit collateral
challenges whenever it would be easy to prove an error occurred
in the prior case.
We agree with the People that the requirement of a fitness
hearing is a state procedural rule and the failure to hold a fitness
hearing does not violate a juvenile’s fundamental constitutional
rights (see Manduley v. Superior Court (2002) 27 Cal.4th 537,
546–547); trying a juvenile in adult court without a fitness
hearing is an act in excess of the court’s jurisdiction but the lack
of a hearing does not deprive the court of subject matter
jurisdiction (In re Harris (1993) 5 Cal.4th 813, 838–840); and a
defendant may not complain on appeal about a state procedural
defect which he invited or to which he consented. (See People v.
Saunders (1993) 5 Cal.4th 580, 589–590.)
In his reply brief, appellant acknowledges that this claim
may be forfeited if not timely asserted. He contends, however,
that the trial court had an affirmative duty under Welfare and
Institutions Code section 604, subdivision (a), to determine
whether he was an adult. He asks us to hold that in light of this
duty, no objection from the minor is required, and a failure by the
court to discover that a defendant is a minor renders any adult
conviction invalid. We decline this invitation.
Welfare and Institutions Code section 604, subdivision (a)
imposes a duty to investigate “[w]henever . . . it is suggested or
appears to the judge before whom the person is brought that the
person charged was, at the date the offense is alleged to have
been committed, under the age of 18 years.” We agree with our
colleagues in Division 6 that section 604 is not implicated where

39
the defendant conceals his or her age and so “there is never any
suggestion or indication during the course of the proceedings that
the defendant is subject to the jurisdiction of the juvenile court.”
(People v. Level (2002) 97 Cal.App.4th 1208, 1211-1212 (Level)
[“Appellant was never adjudged a ward of the court with regard
to the prior conviction at issue here, nor was any fitness hearing
ever held, because she never revealed her true age in the course
of the prior action.”]) Here, the case against a duty to investigate
is even stronger, since appellant provided not only a false date of
birth, but a false name as well.
In Level, appellant conceded that an individual can waive
the right to have his or her action proceed in the trial court.
Appellant did not agree that she could waive her right to a
juvenile disposition. (Level, supra, 97 Cal.App.4th at p. 1211.)
As the Level court pointed out, it is well established that both the
right to an adjudication and to a juvenile disposition can be
forfeited if they are not asserted in the trial court. (Id. at pp.
1212–1213.)
The reason for this rule is clear: “Had [appellant] disclosed
her true age while the trial court in the prior action still had
jurisdiction over the matter, the prosecution could have
petitioned the court to find her unfit for juvenile adjudication
[citation] and, if appropriate, challenged her claim that she was
only 17 when she committed the charged offense. [Citation.] The
prosecution also could have sought to set aside the plea bargain
agreement on the ground that appellant had misrepresented her
age. [Citation.] By her silence, appellant deprived the
prosecution of these opportunities.” (Level, supra, 97 Cal.App.4th
at p. 1213.)

40
 Further if, as seems likely, appellant here pled guilty as
part of a plea agreement, the plea bargain would be an additional
reason for applying forfeiture and estoppel: “ ‘A defendant may
not retain the favorable aspects of his negotiated disposition and
at the same time jettison its unfavorable aspects. [Citation.]’
[Citation.] Appellant agreed to be sentenced as an adult on the
robbery count in exchange for the dismissal of two other counts,
and she has long since completed her prison sentence. Having
enjoyed the fruits of her negotiated disposition, she cannot now
be heard to complain that the court exceeded its jurisdiction in
convicting and sentencing her as an adult. ‘A litigant who has
stipulated to a procedure in excess of jurisdiction may be
estopped to question it when “To hold otherwise would permit the
parties to trifle with the courts.” ’ ” (Level, supra, 97 Cal.App.4th
at p. 1213.)

VIII. The Trial Court Correctly Ruled That a Collateral Attack
on the 2001 Conviction Was Not Permissible.
Appellant contends the trial court erred in failing to
consider a collateral attack on his 2001 attempted robbery
conviction. Defense counsel initially objected to the use of this
conviction on the ground that it was alleged in the information as
a July 2001 conviction for robbery, but appellant withdrew his
plea to that offense, and pled guilty to attempted robbery and
was resentenced in September 2001. When asked to explain
what prejudice appellant would suffer if the prosecutor were
permitted to amend the information to allege the correct date and
offense, counsel replied: “I will state the prejudice. I am going to
state under information and belief that the motion to withdraw
the plea was granted because [appellant] was not advised it was
a strike, and when he came back and pled to the attempt 211, he

41
was advised that he would [not be] sentenced as a strike
offender.”
Appellant acknowledges California law sharply limits the
circumstances in which a prior conviction may be collaterally
challenged, but claims that his argument in the trial court
amounted to a claim that the prior conviction could not qualify as
a strike on account of a Tahl violation and so a challenge was
permissible. He claims that Tahl requires that before entering a
guilty plea, a defendant must be advised as to “ ‘the nature of the
charge and the consequences of his plea.’ ([Tahl, supra, 1 Cal.3d]
at p. 132.)”
We agree California law permits a collateral challenge for
Tahl violations, but do not agree appellant has described such a
violation. Appellant’s claim in the trial court was fundamentally
that the use of the attempted robbery conviction as a strike would
violate the terms of his plea agreement. That does not implicate
Tahl. Defense counsel was unable to locate the record of the plea
agreement in the case, but did state that he had a copy of the
Tahl waiver. Even assuming for the sake of argument that
appellant has now shifted his theory on appeal to claim that the
Tahl waiver does not show an advisement of the “consequence”
that the conviction could be used as a strike in the future, he still
would not have identified a Tahl violation.
As the California Supreme Court has explained: “When a
criminal defendant chooses to plead guilty (or, as here, no
contest), both the United States Supreme Court and this court
have required that the defendant be advised on the record that,
by pleading, the defendant forfeits the constitutional rights to a
jury trial, to confront and cross-examine the People’s witnesses,
and to be free from compelled self-incrimination. (Boykin v.

42
Alabama[, supra,] 395 U.S. 238 [89 S.Ct. 1709, 23 L.Ed.2d 274];
[Tahl, supra,] 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 449].) In
addition, this court has required, as a judicially declared rule of
state criminal procedure, that a pleading defendant also be
advised of the direct consequences of his plea. [Citations.] If the
consequence is only collateral, no advisement is required.”
(People v. Gurule (2002) 28 Cal.4th 557, 633–634.) It is well
settled that “the ‘possible future use of a current conviction is not
a direct consequence of the conviction.’ ” (Id. at p. 634.)
Accordingly, the future use of a conviction as a strike is not a
direct consequence requiring advisement. (People v Sipe (1995)
36 Cal.App.4th 468, 479.)

IX. Senate Bill No. 136 Does Not Entitle Appellant to a
Remand for Resentencing.
In sentencing appellant, the trial court exercised its
discretion and struck the three section 667.5, subdivision (b),
prior prison term enhancements. While this case was pending on
appeal, Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill
136) was signed into law. That bill restricts application of section
667.5 to prison terms served as a result of a conviction for a
sexually violent felony. None of appellant’s prior convictions
were for such an offense. Appellant acknowledges that there are
no section 667.5 enhancements to his sentence, but contends that
the matter must nevertheless be remanded to permit the trial to
exercise its informed sentencing discretion and reconsider the
sentence it previously imposed.
If appellant’s sentence contained section 667.5, subdivision
(b) enhancement terms and we struck them pursuant to Senate
Bill 136, then it might be necessary to remand this matter to the
trial court to reconsider the entire sentencing scheme. (See

43
People v. Burbine (2003) 106 Cal.App.4th 1250, 1259.) This is
“because an aggregate prison term is not a series of separate
independent terms, but one term made up of interdependent
components” and the “invalidity of one component infects the
entire scheme.” (People v. Hill (1986) 185 Cal.App.3d 831, 834.)
Appellant’s sentence is entirely valid, however, and there is no
requirement for us to remand this matter.
Appellant points out that the bar to using the section 667.5
enhancements creates a lower maximum possible sentence and
speculates that the trial court might have imposed a lower total
sentence if the court had known of this lower ceiling.
The trial court found appellant did not fall outside the
spirit of the Three Strikes law, and there is no possibility the
enactment of Senate Bill 136 would change the trial court’s
conclusion on this issue. The trial court explained that in
deciding the 16-year determine term, it found a number of
aggravating factors and no mitigating factors. There is no
possibility that Senate Bill 136 would change this balance. There
is no possibility the trial court would impose a more favorable
sentence on remand and thus no need for remand.

X. Appellant Has Forfeited His Claim That the Fines and Fees
in This Case Were Improperly Imposed.
Appellant contends the trial court’s imposition of a
$30 court facilities assessment (Gov. Code, § 70373), a $40 court
operations assessment (§ 1465.8), and a $300 restitution fine
(§ 1202.4) without a finding that he had the ability to pay those
amounts was a violation of his constitutional rights as set forth in

44
People v. Dueñas (2019) 30 Cal.App.5th 1157.9 Appellant did not
object to the imposition of the fines and assessments, but
contends no objection was required because he was sentenced
before Dueñas, which represents a change in the law. We agree
with People v. Frandsen (2019) 33 Cal.App.5th 1126, which finds
that Dueñas did not represent such a dramatic failure in the law
to obviate a forfeiture. (Id. at pp. 1153–1155; see also People v.
Avila (2009) 46 Cal.4th 680, 729 [finding forfeiture where the
defendant failed to object to imposition of restitution fine under
former § 1202.4 based on inability to pay].)
Appellant also contends the imposition of the assessments
and fine constituted cruel and unusual punishment. This claim
is forfeited as well by appellant’s failure to raise it in the trial
court.
Appellant contends that if these claims are forfeited, he
received ineffective assistance of counsel. “To prevail on this
claim, petitioner must prove ‘ “that counsel’s representation fell
below an objective standard of reasonableness under prevailing
professional norms, and that counsel’s deficient performance
was prejudicial, i.e., that a reasonable probability exists that, but
for counsel’s failings, the result would have been more favorable
to the defendant.” ’ [Citation.] ‘ “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” ’

9 The California Supreme Court has granted review in
People v. Kopp (2019) 38 Cal.App.5th 47, review granted
November 13, 2019, S257844, on the issue of whether a trial
court must “consider a defendant’s ability to pay before imposing
or executing fines, fess, and assessments” and if so, “which party
bears the burden of proof regarding the defendant’s inability to
pay.”

45
[Citation]. If a claim of ineffective assistance of counsel can be
determined on the ground of lack of prejudice, a court need not
decide whether counsel’s performance was deficient.” (In re Crew
(2011) 52 Cal.4th 126, 150.)
Here, appellant has not shown prejudice: He has not
shown that if his counsel had objected, the People would have
been unable to prove his financial ability to pay the $370 in
assessments and a fine.10
The People could simply have pointed to appellant’s trial
testimony to show that appellant had sufficient financial assets
to enable appellant to pay the $370 in assessments and a fine.
When appellant testified at trial about vehicles he had owned, his
attorney asserted to the court that the testimony was relevant to
show that appellant “was flush. He had no money worries . . . he
had no need for money or to be part of a robbery when he had all
these assets.” Appellant further testified he had $27,000 in cash
at his home. Appellant points out he testified at trial that Wright
took this money, but he acknowledges that the court found this
testimony speculative and inadmissible. In any event, it does not
change our analysis.

10 We assume for the sake of argument that the People have
such a burden.

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 DISPOSITION
The judgment of conviction is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

GRIMES, Acting P. J.

WILEY, J.

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