People v. Alonso CA2/4

Filed 2/23/21 P. v. Alonso CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR

THE PEOPLE, B300797

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.BA471389)
v.

OMAR RODRIGUEZ ALONSO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Enrique Monguia, Judge. Affirmed as
modified.
Daniel Milchiker, 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 and Douglas L. Wilson, Deputy
Attorneys General, for Plaintiff and Respondent.
 Police officers recovered numerous bindles of cocaine base
and several hundred dollars in cash during a search of appellant
Omar Rodriguez Alonso, who was on postrelease community
supervision (PRCS) at the time. Appellant moved to suppress the
items as the fruits of a warrantless search. The magistrate
denied the motion, and the trial court later denied appellant’s
renewed motion to suppress. At trial, the court instructed the
jury that the reasons for the search had been settled and
resolved, and were not to be considered for any purpose. The jury
found appellant guilty of possessing cocaine base with intent to
sell.
Appellant now contends the trial court erred in denying his
motions to suppress. argues that the prosecution failed to
provide the court with sufficient evidence of the search conditions
to which he was subject and the arresting officer’s awareness of
them. Respondent Attorney General responds that appellant
forfeited these arguments by failing to raise them in connection
with his first motion to suppress. We agree. We further agree
with respondent that the trial court properly would have denied
the motions even if these arguments had been timely made.
Appellant also challenges the jury instruction regarding the
search, which he argues impermissibly directed a guilty verdict
and deprived him of the ability to present a defense. We reject
these contentions. Appellant helped craft the instruction and did
not object to it below. His arguments concerning the instruction
accordingly are barred by the doctrine of invited error.
Appellant requests that we review the sealed record of the
Pitchess1 hearing to determine whether police personnel records
were improperly withheld from discovery. Respondent does not

1Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

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oppose this request, which we grant. We find no abuse of the
trial court’s discretion. We likewise find no error in the trial
court’s failure to hold an ability to pay hearing before imposing
fines and fees. Appellant failed to raise the issue or object to the
fines and fees at sentencing and therefore forfeited the claim.
We agree with appellant and respondent that the one-year
prison prior enhancements must be stricken from appellant’s
sentence. Because the court imposed the maximum sentence, we
need not and do not remand for resentencing. Instead, we strike
the enhancements and affirm the judgment as modified.
Respondent’s motion to augment the record is granted.
PROCEDURAL HISTORY
An amended information charged appellant with one count
of possessing cocaine base for sale (Health & Saf. Code,
§ 11351.5). The amended information further alleged that
appellant suffered a prior strike conviction (Pen. Code, §§ 667,
subds. (b)-(j), 1170.12)2 and served two previous prison terms
(§ 667.5, subd. (b)).
A jury found appellant guilty as charged. Appellant
subsequently admitted the priors. The trial court denied
appellant’s Romero3 motion to strike his strike prior. It
sentenced appellant to the maximum sentence possible, a total of
10 years: the high term of four years, doubled to eight years due
to the strike, plus two one-year terms for the prison priors. The
court also imposed a $400 restitution fine (§ 1202.4, subd. (b)), a
$30 criminal conviction assessment (Gov. Code, § 70373), a $40

2Allfurther statutory references are to the Penal Code
unless otherwise indicated.
3People v. Superior Court (Romero) (1996) 13 Cal.4th 497

(Romero).

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court operations assessment (§ 1465.8, subd. (a)(1)), and a
criminal laboratory analysis fee and associated penalty
assessments totaling $205. (Health & Saf. Code, § 11372.5, subd.
(a); § 1464, subd. (a)(1).) Appellant timely appealed.
FACTUAL BACKGROUND
Los Angeles Police Department (LAPD) Officer Adolfo
Pacheco testified that he worked in the department’s narcotics
unit. His job duties included looking for narcotics offenders, often
on Skid Row, and monitoring individuals with previous narcotics
convictions and those on probation.
On September 11, 2018, Pacheco was remotely monitoring
a portion of Skid Row using a high-definition surveillance
camera. He observed heavy pedestrian traffic coming and going
from a particular tent. His training and experience led him to
suspect that drugs were being bought and sold in the tent.
Pacheco dispatched other officers to go to the scene while he
remained at the surveillance post.
As Pacheco watched his fellow officers at the scene, he saw
a person enter a tent with money and exit it with a clenched
hand. She was detained and found to have off-white solids
resembling cocaine base in her possession. Pacheco saw
appellant subsequently exit the same tent, which he had not seen
appellant enter. No one exited the tent after appellant.
Appellant left the area and was not detained or searched.
Two days later, on September 13, 2018, Pacheco was on
undercover patrol with his partner, LAPD officer Michael Mann,
when he saw appellant near a tent in the same vicinity of Skid
Row. Mann parked the officers’ unmarked car and he and
Pacheco approached the area on foot. Pacheco saw appellant

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exiting a tent. As he stepped out of the tent, appellant placed his
clenched right fist into the right front pocket of his shorts.
Pacheco detained appellant. Pacheco searched appellant’s
right front pocket and found 12 individually wrapped bindles
containing off-white solids resembling cocaine base. Pacheco
opined that each bindle would be worth $20 if it were cocaine.
Pacheco recovered a similar bindle and a fifty dollar bill from
appellant’s left front pocket, and $300 in cash from appellant’s
right cargo pocket. In the black bag appellant was carrying,
Pacheco found 21 individually wrapped off-white solids
resembling cocaine base concealed inside a flashlight and $400 in
cash. Other officers recovered approximately 144 uniform off-
white rocks and a digital scale from the tent appellant was seen
exiting. The rocks recovered from the tent were the same as
those found in appellant’s pockets and in the bag. An LAPD
criminalist who tested some of the recovered rocks testified that
they contained cocaine base.
No drug paraphernalia or empty baggies were found in
appellant’s possession, and he did not appear to be under the
influence. Pacheco further testified that appellant did not
display any signs of heavy cocaine use, such as burned lips or
fingers or poor hygiene.
Based on his background, training, and experience, Pacheco
opined that a hypothetical individual in the circumstances
presented here possessed narcotics for the purpose of sales.
Pacheco’s opinion remained the same even when the hypothetical
did not include bindles and a scale recovered from a tent.
Pacheco’s partner, officer Mann, testified that he and
Pacheco went to Skid Row in an unmarked vehicle on September
13, 2018. Mann detained a woman while Pacheco detained

5
appellant nearby. Mann and LAPD detective Jorge Trejo
testified that they subsequently searched the tent that appellant
exited. They recovered a black digital scale and also found four
bindles of off-white solids concealed inside men’s shoes. Mann
testified that he did not find any drug paraphernalia or other
indicia of drug use in the tent, which along with its clean
condition suggested that the tent was being used to sell drugs.
The tent did not contain any identification, but Mann believed
that appellant “was in charge” of the tent.
DISCUSSION
I. Motions to Suppress
A. Background
Prior to the preliminary hearing, appellant filed a motion to
suppress the items recovered during the September 13, 2018
search.4 In his written motion, appellant asserted only that the
search was conducted without a warrant. The prosecution filed
an opposition in which it argued, in relevant part, that the search
was valid because appellant “was on formal probation with
search conditions” at the time.5 The prosecution asserted that

4Respondent has filed an unopposed motion to augment the
record on appeal with this motion and the prosecution’s
opposition thereto. We grant the motion.
5As we noted above and further discuss below, appellant

was on PRCS at the time of the search. A person placed on PRCS
after his or her release from prison is “subject to community
supervision provided by the probation department of the county
to which the person is being released.” (§ 3451, subd. (a).)
Additionally, “[t]he person, and his or her residence and
possessions, shall be subject to search any time of the day or
night, with or without a warrant, by an agent of the supervising
county agency or by a peace officer.” (§ 3453, subd. (f).)

6
Pacheco discovered appellant’s status by “[u]sing department
resources” prior to the search.
The magistrate heard the motion to suppress at the
preliminary hearing, at which Pacheco was the sole witness.
Pacheco testified that he was a narcotics officer with the LAPD
whose duties including monitoring individuals who are “narcotic
registrants”6 or on probation for narcotics. Pacheco testified that
he recognized appellant on the surveillance camera on September
11. He further stated that he “advised [his] partners of the - -
Mr. Alon[s]o and his probation conditions” before they went to
Skid Row.” On September 13, Pacheco “advised my partners of
my observations and advised him [sic] we were going to conduct a
probation search.” On that date, Pacheco “contacted” appellant
on the street, detained him, and “conducted a probation search”
during which he “recovered off-white solids from his pocket and
his bag that he had around his shoulder.” Pacheco also testified
that he recovered “U.S. currency,” and that his partners
recovered solids and currency from a tent he saw appellant exit.
On cross-examination, Pacheco stated he had not “personally”
arrested appellant in the past, and that he “probably” recovered
“the business card of Mr. Alon[s]o’s probation officer from
[appellant’s] pocket” during the search.

6Former Health and Safety Code section 11590 required
persons convicted of specified narcotics offenses to “register with
the chief of police of the city in which he or she resides or the
sheriff of the county if he or she resides in an unincorporated
area.” (Health & Saf. Code, § 11590, subd. (a).) Failure to
register was a misdemeanor offense under former Health and
Safety Code section 11594. The registration requirement was
repealed January 1, 2020.

7
 At the conclusion of the hearing, appellant’s counsel argued
in support of the motion to suppress. She stated: “[A]ll of this was
based on a probation search and the officer testified that he
recognized Mr. Alon[s]o on September 11th, even though he’d
never arrested him before. So that just doesn’t make any sense.
He testified today that it’s possible, and even likely, that he did
recover Mr. Alon[s]o’s probation officer’s business card when he
searched Mr. Alon[s]o. [¶] It doesn’t make any sense that he
would recognize a person that he’d never seen before and
somehow know their name and be able to run their information
and find out that they’re on probation. Even if Mr. Alon[s]o is on
probation, you know he’s - - has a right to be free from arbitrary
searches and from harassment. And in this case it doesn’t seem
credible that the officer knew that he was on probation before
searching him.”
The magistrate denied the motion immediately, without
hearing oral argument from the prosecution.
Appellant, represented by different counsel in superior
court, subsequently filed a renewed motion to suppress the items
recovered during the search. In that motion, he again asserted
only that the search was not supported by a warrant. The
prosecution did not file a written opposition to the renewed
motion.
At the hearing on the renewed motion, appellant’s counsel
argued the following: “[T]here is nothing in the preliminary
hearing transcript that would, I guess, indicate that Mr. Alon[s]o
is on probation with search conditions. [Pacheco] says that
[appellant’s] on probation, but there’s nothing in the preliminary
hearing transcript that specifically points to the fact that
[appellant] actually has search conditions and what the limits or

8
what the specifics are with regard to the search conditions. …
They had no contact with Mr. Alonso two days prior, so the
question is how did they even link Mr. Alonso to probation. They
didn’t know his name. They just saw an individual. They didn’t
know a date of birth. There’s nothing in the preliminary
transcript that . . . links the person that they saw to probation.
So those two things are missing from the preliminary hearing
transcripts, so I don’t see how we get to the officers knowing that
Mr. Alonso was on probation with specific search conditions.”
The court interjected, “Well, didn’t the officer testify that
he recognized your client on the day of the arrest and he
recognized him, because he had seen him two days previously, so
he knew who he was.” The court also pointed out that Pacheco
testified that he advised his partners about the probation
conditions and that he performed a probation search. It asked,
“Now, can I not infer from that that what he’s referring to is a
search pursuant to a condition of probation that allows him to do
so; otherwise, what would he mean?” Appellant’s counsel
reiterated that there was “nothing that would specifically
indicate that the officer was aware of any of that at the time that
the search was done.” She further asserted, “based on the case
law, [the officer] needs to specifically know the search conditions
and what those search conditions are prior to conducting a
probation search; and there’s nothing in the preliminary hearing
transcript that indicates, based on his testimony, that he was
aware that there were search conditions and what the search
conditions were.”
The court responded, “So I guess his attorney at the
preliminary hearing really didn’t make that argument, but
basically made the argument that there was no way this officer

9
knew about the condition.” The court then heard from the
prosecution, which argued that the preliminary hearing
transcript “doesn’t include any evidence whatsoever that
impeached the officer’s statements regarding why he conducted
the search and his awareness of the defendant’s search
conditions.”
The court then asked appellant’s counsel about Pacheco’s
testimony regarding his duties monitoring individuals on
probation. Appellant contended that Pacheco was “just speaking
in general” and “he doesn’t say that he knows that Mr. Alonso is
on probation for narcotics or he’s a narcotics registrant.” Counsel
asserted that the prosecution “could have asked” further
questions at the preliminary hearing, and, by neglecting to do so,
failed to carry its burden of demonstrating that the search was
valid.
The court denied the motion based on “the totality” of the
circumstances. It pointed to Pacheco’s testimony “where he
basically states that he knew the conditions,” and said he was
going to conduct a probation search. The court explained, “I
would have to make the inference that there was a search
condition. I mean, I don’t know how else to interpret the
evidence that is before me. . . . I think the magistrate properly
found that the search was supported by the fact that your client
had search conditions as part of his probation.”
B. Standard of Review
A criminal defendant whose motion to suppress is
unsuccessful at the preliminary hearing “may raise the search
and seizure matter before the superior court under the standard
governing a section 995 motion.” (People v. McDonald (2006) 137
Cal.App.4th 521, 528-529 (McDonald); see also §§ 859c, 1538.5,

10
subd. (i).) Under that standard, “the superior court’s role is
similar to that of an appellate court reviewing the sufficiency of
the evidence to sustain the judgment.” (McDonald, supra, 137
Cal.App.4th at p. 529.) That is, the superior court “merely
reviews the evidence; it does not substitute its judgment on the
weight of the evidence nor does it resolve factual conflicts.”
(Ibid.)
On appeal from the denial of a renewed motion to suppress,
we review the original determination made by the magistrate at
the preliminary hearing. (McDonald, supra, 137 Cal.App.4th at
p. 529.) We draw all presumptions in favor of the factual
determinations of the magistrate, uphold the magistrate’s
express or implied findings if they are supported by substantial
evidence, and measure the facts as found by the magistrate
against the constitutional standard of reasonableness. (People v.
Johnson (2020) 50 Cal.App.5th 620, 626.) Accordingly, we view
the evidence and resolve any evidentiary conflicts in the light
most favorable to the order denying the motion. (People v. Tully
(2012) 54 Cal.4th 952, 979.) We are also bound to accept the trial
court’s credibility determinations. (Ibid.)
“While we defer to the magistrate’s factual findings if they
are supported by substantial evidence, we exercise our
independent judgment in determining the legality of the search
on the facts so found.” (People v. Johnson, supra, 50 Cal.App.5th
at pp. 626-627.) “Thus, while we ultimately exercise our
independent judgment to determine the constitutional propriety
of a search or seizure, we do so within the context of historical
facts determined by the trial court.” (People v. Tully, supra, 54
Cal.4th at p. 979.) We affirm the ruling if it is correct on any

11
theory of law applicable to the case, even if it was made for an
incorrect reason. (McDonald, supra, 137 Cal.App.4th at p. 529.)
C. Analysis
The Fourth Amendment guarantees the right to be free
from unreasonable searches and seizures. (U.S. Const., 4th
Amend.) Warrantless searches and seizures are per se
unreasonable, “subject only to a few specifically and well-
delineated exceptions.” (Katz v. United States (1967) 389 U.S.
347, 357.) Among these exceptions are searches conducted
pursuant to the terms of a subject’s probation, parole, or PRCS,
so long as they are not conducted arbitrarily, capriciously, or for
the purposes of harassment. (People v. Douglas (2015) 240
Cal.App.4th 855, 860-861, 865 (Douglas).) Thus, “an individual
who has been released from custody under PRCS is subject to
search (and detention incident thereto) so long as the officer
knows the individual is on PRCS.” (Id. at p. 865.)
The prosecution always bears the burden of proving, by a
preponderance of the evidence, that a warrantless search falls
within an exception. (People v. Williams (1999) 20 Cal.4th 119,
136-137 (Williams); People v. Romeo (2015) 240 Cal.App.4th 931,
940.) In the context of probation, that means the prosecution
must prove that the officer had pre-search knowledge both of the
defendant’s probationary status and the existence of a search
condition to which he or she consented as part of his or her
probation; search conditions are not mandated by statute for
every probationer, and probation search clauses are not
uniformly worded. (Douglas, supra, 240 Cal.App.4th at pp. 861,
863; People v. Bravo (1987) 43 Cal.3d 600, 605-606.) However,
when a defendant is on parole or PRCS, “[i]t is not necessary for
the officer to recite or for the People to prove the precise terms of

12
release, for the search condition is imposed by law, not by
consent.” (Douglas, supra, 240 Cal.App.4th at p. 865; see §§
3067, subd. (b)(3) [parole], 3453, subd. (f) [PRCS].) “As in the
case of a parole search, an officer’s knowledge that the individual
is on PRCS is equivalent to knowledge that he or she is subject to
a search condition.” (Douglas, supra, 240 Cal.App.4th at p. 865.)
“An officer ‘knows’ a subject is on PRCS if the officer’s belief
is objectively reasonable” under the totality of the circumstances.
(Douglas, supra, 240 Cal.App.4th at p. 865.) The question is
“whether, judged against an objective standard, the facts
available to [the officer] at the moment he [or she] detained [the
defendant] would have warranted an officer of reasonable caution
to believe [the defendant] was on PRCS.” (Id. at p. 868.)
Ignoring that he was on PRCS and therefore subject to a
statutory search condition at the time he was searched, appellant
argues that even if “Pacheco’s uncorroborated testimony was
sufficient to establish that appellant was on probation, this does
not validate the search,” because “[n]othing in the record
establishes that appellant was searched within the parameters of
applicable search conditions.” Appellant relies on People v.
Romeo, supra, 240 Cal.App.4th 931, in which the appellate court
reversed the denial of a motion to suppress because the record
lacked evidence of the scope of the appellant’s probation search
conditions. He asserts that “no evidence was presented to
establish that appellant had agreed to search conditions,” and “if
such conditions existed, no evidence was presented to establish
that Pacheco had specific knowledge of those conditions.”
Respondent contends that appellant forfeited these
arguments by failing to present them in connection with his
initial motion to suppress. We agree. “[A] defendant who has

13
sought the suppression of evidence at his or preliminary hearing,
who then seeks to renew that motion in the superior court, is not
entitled to advance theories at the second hearing that were not
raised and litigated during the first.” (People v. Bennett (1998) 68
Cal.App.4th 396, 407; see also People v. Arebalos-Cabrera (2018)
27 Cal.App.5th 179, 191.) The Supreme Court has explained the
process as follows: “[O]nce the prosecution has offered a
justification for a warrantless search or seizure, defendants must
present any arguments as to why that justification is inadequate.
. . . [I]f defendants detect a critical gap in the prosecution’s proof
or a flaw in its legal analysis, they must object on that basis to
admission of the evidence or risk forfeiting the issue on appeal.”
(Williams, supra, 20 Cal.4th at p. 130.) “[W]hen defendants move
to suppress evidence, they must set forth the factual and legal
bases for the motion . . . . The prosecution then has the burden of
proving some justification for the warrantless search or seizure,
after which, defendants can respond by pointing out any
inadequacies in that justification. [Citation.] Defendants who do
not give the prosecution sufficient notice of these inadequacies
cannot raise the issue on appeal. ‘[T]he scope of issues upon
review must be limited to those raised during argument . . . . This
is an elemental matter of fairness giving each of the parties an
opportunity to adequately litigate the facts and inferences
relating to the adverse party’s contentions.’ [Citation.]” (Id. at p.
136.)
In the first motion to suppress, appellant asserted only that
the search was unsupported by a warrant. In its opposition and
through Pacheco’s testimony at the preliminary hearing, the
prosecution sought to justify the search as a valid probation
search. The sole inadequacy appellant pointed out in that

14
justification was that “it doesn’t seem credible that the officer
knew that he[appellant] was on probation before searching him.”
The magistrate implicitly rejected appellant’s credibility
argument by denying the motion. When he renewed the motion
in superior court, appellant did not mention credibility and
instead asserted arguments similar to those he presents here. He
now contends “[t]he crux of appellant’s argument is the same
raised on appeal, that there was insufficient evidence of
appellant’s probationary status and there was no evidence
presented that the officer had the necessary factual predicates to
justify such a search.” This is true of the arguments he raised in
connection only with the renewed motion, but not the credibility
argument he raised with the original. Appellant’s attack on
Pacheco’s credibility was not sufficient to give the prosecution
notice of a claim that the evidence was inadequate. The latter
claim accordingly is forfeited.
Even if the arguments were preserved, we are not
persuaded that the motion was erroneously denied. We are
bound to accept the credibility findings of the magistrate. We
also must uphold the magistrate’s implied findings, which include
the inference that Pacheco, whose duties included monitoring
individuals on probation and who testified credibly that he
recognized appellant, was aware of appellant’s status prior to
performing the search.7 (See Douglas, supra, 240 Cal.App.4th at
p. 871 [“Part of Detective Bailey’s job was to keep tabs on
probationers and parolees, and he had access to computerized

7Appellant did not object to the hearsay nature of this
inference below, nor does he attempt to belatedly raise such an
objection here. (See Douglas, supra, 240 Cal.App.4th at p. 871,
fn. 10.)

15
information and updates from the probation department to keep
him apprised of probationers’ and parolees’ status.”].) The
testimony of a single, credible witness may constitute substantial
evidence sufficient to support a conviction or other court finding.
(Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.)
Here, those findings were that appellant was subject to
supervision and that Pacheco was aware of that fact prior to
performing the search. The totality of the circumstances
supports the conclusion that Pacheco’s belief that appellant was
subject to warrantless search was objectively reasonable.
Appellant notes in his reply brief that all of the references
below were to probation, and not PRCS. He contends that this
error demonstrates that Pacheco was unaware of the search
conditions to which he was subject. “In examining the totality of
the circumstances, however, we cannot turn a blind eye to the
undisputed fact that defendant was actually on [PRCS] and
consented to a search condition.” (People v. Hill (2004) 118
Cal.App.4th 1344, 1351 (Hill).) As in Hill, “we are mindful that
erroneous parole status information will not validate an
otherwise unlawful search.” (Id. at p. 1350.) But “the
exclusionary rule . . . should not devolve into a game, the outcome
of which depends on a terminological discrepancy.” (Id. at p.
1351.) In Hill, a dispatcher erroneously told an officer that the
defendant was on parole. Relying on that information, the officer
performed a search and recovered stolen property. The officer
later learned that the defendant in fact was on probation and had
consented to search conditions. (Id. at p. 1348.) The facts here,
while not identical, are sufficiently analogous. The magistrate
inferred that Pacheco learned of appellant’s status while
performing his duties of monitoring probationers and parolees. It

16
is not clear whether the resources he consulted provided him with
erroneous information, or whether he misspoke during the
preliminary hearing. Either way, there is no indication that
Pacheco acted unlawfully, and appellant was in fact subject to
search because he was on PRCS. (See id. at p. 1351.)
II. Jury Instruction
A. Background
Prior to trial, appellant’s counsel moved to exclude as
irrelevant and prejudicial under Evidence Code section 402 “any
mention of my client being on probation or having search
conditions.” The prosecutor responded that without that context,
“jurors are going to wonder why they were just randomly
searching this person.” The court stated that its “inclination
would be to sanitize it but not let [appellant] imply that there’s a
reason to question” the validity of the stop and search. The court
told the parties they could “think about” how they would prefer to
sanitize the information; “otherwise, I’ll do it my way.”
The court returned to the issue two days later, prior to
opening statements. It stated, “We were discussing off the record
a potential 402 issue. We discussed at some point prior [that the]
attorneys wanted to have a resolution of this before we start the
People’s case. It’s been resolved that we would - - or I would tell
the jurors that the officers searched the defendant and that
search is not at issue and that they are not to consider it as part
of their deliberations, with the exact language - - I’m not going to
quote it because it’s going to come out when I tell the jurors; but I
do have that written here before me. And that will resolve any
issues that may have arisen because some of the jurors, as I
mentioned, brought it up in voir dire about racial profiling. . . .”

17
 The prosecutor asked if the court was “going to explain,
like, because the jurors had those issues, that is the reason why
the court is giving that admonishment.” The court said that it
was: “I’ll read this exactly and then I just ad-lib.” The prosecutor
responded, “Cause the jurors were talking about their experience
in terms of racial profiling and being stopped and all that stuff.”
The court replied, “That makes it more in context of it having
already been litigated and settled.” The prosecutor said, “Yes.”
Appellant’s counsel said, “I don’t necessarily agree with that; but
if the court is ruling that that is what the court is going to do, I
do not think we need any additional information other than what
was already submitted to the court as far as direction for the
jurors with regard to the search.” The court responded, “Well, if
the search has been litigated and settled, astute jurors are going
to think, ‘this guy’s on probation or parole. He has no legal
expectation of privacy. Otherwise, why would they just go up on
the guy?’” The prosecutor then reiterated, “I think it gives
context to the stipulation.” Appellant’s counsel then turned the
conversation to another pending evidentiary issue. The parties
and court never returned to their discussion.
Immediately following opening statements, the trial court
told the jury: “Before we get to the testimony, . . . several
potential jurors had raised the issue of racial profiling so we were
working out a stipulation. And let me read this to you now, kind
of like an instruction. Okay. The officers searched the
defendant’s person, property, and tent on - - what they suspect to
be his tent - - September 13th, 2018. The reasons for the search
are not at issue here, and they have already been settled and
resolved. You are not to consider the reasons for the search for
any purpose and not to consider it as part of your deliberations.”

18
 After both sides rested, prior to closing arguments, the
court and counsel had an off-the-record discussion “as to what
we’re adding and what we’re deleting” from the proposed jury
instructions. When they returned to the record, the court made
the following statement with no objection from either side: “On
page 4, I’m adding the stipulated language, second to the last
paragraph that normally is part of [CALCRIM No.] 222, the
evidence instruction. That’s not in this copy. I’ll be adding that.”
The court subsequently instructed the jury, both orally and in
writing, that “The reason for the search of Mr. Alon[s]o’s person,
personal property and the tent is not at issue here. You are not
to consider the reason for the search for any purpose and are not
to discuss it in your deliberations.”
B. Analysis
Appellant contends the instruction “was erroneous because
it did nothing but foreclose appellant’s ability to argue that the
police were lying and/or mistaken about his possessing the drugs.
As worded, the instruction told the jury that the drugs belonged
to appellant. By instructing the jury that there had been a valid
search of his person, property and the tent, it foreclosed his
ability to challenge the officers’ credibility as to . . . both the
items found and the reason they were possessed. This violated
appellant’s right to due process of law and a jury trial under the
Fifth, Sixth, and Fourteenth Amendments.” Respondent
contends this argument is barred by the doctrine of invited error.
We agree with respondent.
The doctrine of invited error bars an appellant from
challenging a jury instruction if he or she requested the
instruction as a conscious and deliberate tactical choice. (People
v. DeHoyos (2013) 57 Cal.4th 79, 138.) It is designed to prevent

19
an appellant from obtaining a reversal based on an error made at
his or her behest. (People v. Coffman and Marlow (2004) 34
Cal.4th 1, 49.) “In cases involving an action affirmatively taken
by defense counsel, we have found a clearly implied tactical
purpose to be sufficient to invoke the invited error rule.” (Ibid.)
The record here makes clear that appellant’s counsel
agreed to and participated in the drafting of the contested
instruction for strategic reasons. The court told the parties that
it was inclined to “sanitize” the nature of the search for the jury,
which amounted to a partial grant of appellant’s motion to
exclude. The court then invited the attorneys to discuss how they
wished to handle the matter. Two days later, after discussion off
the record, the court placed on the record that the matter had
“been resolved” by a written document the parties had prepared
that was now “written here before me.” The document is not
included in the appellate record, but there does not appear to be
any dispute that the instruction proposed by the parties is the
one orally delivered at the beginning and end of trial, and then
provided to the jury in writing with the rest of the instructions.
Appellant cannot now complain about an instruction his counsel
helped draft.
Appellant asserts that, “[h]aving previously objected,
defense counsel indicated she did not agree with the court’s
position.” He does not indicate when counsel “previously
objected,” and the record does not reflect any such objection. His
further assertion that defense counsel “did not agree with the
court’s position” does not appear accurate in the context of the
court’s exchange with counsel. Counsel remarked that she did
not “necessarily agree with that” after the court said it planned to
“read this exactly and then I just ad-lib.” Indeed, she followed

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that assertion with, “I do not think we need any additional
information other than what was already submitted to the court
as far as direction for the jurors with regard to the search.”
These comments indicate that counsel’s objection was to the
court’s proposed “ad-lib,” not to the agreed instruction that “was
already submitted to the court.” They also belie appellant’s claim
that the court mischaracterized the instruction as a stipulation.
The situation here is analogous to that in People v. Harris
(2008) 43 Cal.4th 1269, 1317 (Harris)). In Harris, the jury asked
the court to define the phrase “Life without the possibility of
parole/Death penalty.” (Harris, supra, 43 Cal.4th at p. 1317.)
“Before replying, the court inquired whether counsel had
discussed the matter to work out an answer acceptable to both
sides. The prosecutor responded that they had, and the answer
was that the meaning of the terms was ‘exactly what they sound
like; that there is no other definition of them.’ Defense counsel
affirmed, ‘that’s correct.’” (Ibid.) The court clarified that counsel
wanted to provide no further definition, and both counsel stated,
“yes.” (Ibid.) The court then told the jury to consult the
instructions it had been given, as “‘there’s no need to further
define them for you at this point.” (Ibid.) On appeal, the
defendant argued that the court’s answer “amounted to ignoring
the jury’s request for a definition.” (Ibid.) The court found that
argument waived because counsel “specifically agree[d] below to
the court’s handling of the jury’s question.” (Ibid.)
Here, defense counsel similarly worked with the prosecutor
to draft an instruction on the search that was “acceptable to both
sides.” Collaboration on an instruction reflects conscious and
deliberate tactical choice. Had counsel wished to preserve the
issue for appeal, she could have allowed the court to prepare the

21
instruction and lodged an appropriate objection. The court
appears to have read the instruction as drafted by the parties
twice, once at the beginning of trial and once at the end, after
another off-the-record discussion with counsel to which no
objection was recorded. Appellant cannot now challenge the
propriety of the instruction.
III. Pitchess Review
Appellant filed a Pitchess motion seeking information
relating to complaints against officers Pacheco and Mann. The
trial court granted the motion as to both officers. It limited the
motion to allegations of “perjury, false reporting, and dishonesty”
made during the preceding five years. The trial court held an in
camera hearing on April 16, 2019, and concluded there were no
discoverable records in either officer’s file.
Appellant now requests, pursuant to People v. Mooc (2001)
26 Cal.4th 1216, that we independently review the sealed
transcript of the in camera hearing to determine whether the
trial court complied with the procedural requirements of a
Pitchess hearing and provided all discoverable material to him.
Respondent does not object to appellant’s request. We review the
trial court’s ruling for abuse of discretion. (People v. Cruz (2008)
44 Cal.4th 636, 670.)
Our review reveals no error. The trial court complied with
the procedural requirements of a Pitchess hearing, including
placing the custodian of records under oath and adequately
describing the documents reviewed. (See People v. Mooc, supra,
26 Cal.4th at p. 1229 & fn. 4; People v. Myles (2012) 53 Cal.4th
1181, 1209.) Its rulings on the discoverability of documents were
not an abuse of its discretion.

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IV. Fines and Fees
Appellant contends that the trial court erred by imposing
various fines and fees without first conducting a hearing on his
ability to pay. Appellant contends such a hearing was required
under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas)
despite his admitted failure to request such a hearing or
otherwise object to any of the fines and fees imposed.8 We
disagree.
At sentencing, the trial court imposed a $400 restitution
fine pursuant to section 1202.4, subdivision (b). This fine
exceeded the $300 minimum restitution fine required by statute
at that time. (See § 1202.4, subd. (b)(1).) Even prior to Dueñas,
section 1202.4 permitted a defendant to present information
regarding his or her ability to pay any fine amount above the
minimum. (§ 1202.4, subd. (c).) Thus, by failing to object to the
restitution fine and to present evidence he did not have the
ability to pay it, appellant forfeited the argument that the trial
court erred in imposing the fine without considering his ability to
pay. (See People v. Avila (2009) 46 Cal.4th 680, 729; People v.
Smith (2020) 46 Cal.App.5th 375, 395; People v. Gutierrez (2019)
35 Cal.App.5th 1027, 1033; People v. Frandsen (2019) 33
Cal.App.5th 1126, 1154.) Appellant’s challenge to the other fees,
assessments, and penalties the court imposed is similarly

8The Supreme Court has granted review in People v. Kopp
(2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844,
of 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?”

23
precluded by his failure to object to them below. (People v.
Frandsen, supra, 33 Cal.App.5th at p. 1154.)
V. One-Year Priors
The parties agree that the two one-year prison prior
enhancements added to appellant’s sentence should be stricken
under section 667.5, subdivision (b), as amended by Senate Bill
No. 136 (SB 136) (Stats. 2019, ch. 590, § 1). The parties are
correct. Under section 667.5, subdivision (b) as amended, such
enhancements may only be imposed for certain sexually violent
offenses, and appellant’s prior prison sentences were not for such
an offense. Furthermore, although SB 136 became effective on
January 1, 2020, after appellant’s sentencing, we agree with the
parties that the change in law applies retroactively to cases not
yet final. (See People v. Lopez (2019) 42 Cal.App.5th 337, 341; In
re Estrada (1965) 63 Cal.2d 740, 742.)
Because the trial court imposed the maximum possible
sentence on appellant, there is no need to remand for the trial
court to again exercise its sentencing discretion. (People v. Lopez,
supra, 42 Cal.App.5th at p. 342; see also People v. Buycks (2018)
5 Cal.5th 857, 896, fn. 15.) Accordingly, we will strike the two
one-year prison prior enhancements and direct the trial court to
prepare an amended abstract of judgment reflecting the
modification.

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 DISPOSITION
The two one-year sentence enhancements under Penal
Code section 667.5 are stricken. The judgment is affirmed as
modified by the striking of the enhancements. The trial court
shall issue an amended abstract of judgment and forward it to
the California Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J.

WILLHITE, J.

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