People v. Navas CA2/7

Filed 3/30/21 P. v. Navas CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B301818

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA109347)
v.

RYAN DAVID NAVAS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Judith L. Meyer, Judge. Affirmed.
Lenore De Vita, 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, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr. and John
Yang, Deputy Attorneys General, for Plaintiff and Respondent.

______________________
 Ryan David Navas appeals from a judgment of conviction
entered after a jury found him guilty of second degree robbery of
a cell phone. Navas contends the trial court abused its discretion
in admitting evidence of his gang tattoo and a 911 call. Navas
also argues the trial court was required to dismiss one of his two
prior strike convictions pursuant to People v. Vargas (2014)
59 Cal.4th 635 (Vargas). Navas contends in the alternative the
trial court abused its discretion in denying his motion to dismiss
one or both of the strike convictions pursuant to People v.
Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
Finally, Navas claims the trial court’s imposition of court
assessments and restitution fines without an ability-to-pay
hearing violated his due process rights under this court’s opinion
in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We
affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Prosecution Case
On May 26, 2018 at approximately 5:00 p.m., Tyrik
Herbert, Jemani Williamson, Anthony Burgos, Shani Anderson,
Ashley Lewis, and Leah Sines were talking while gathered
around a picnic table at a park. Navas, whom Herbert described
as a “skinny” Latino wearing glasses and dressed in black
clothes, approached the group and asked, “Do you guys got a
phone I can use?”1 According to Herbert, Anderson said, “No.
None of us have no phone for you to use, bro. Can you please,

1 When Herbert was asked if the individual was in court,
Herbert replied, “I think so,” and he identified Navas.

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like, go.” She added, “I’m going to need you to step a little bit
away from the stroller, too, because you kind of by my baby’s
stroller.” Herbert, who was seated in front of the baby stroller,
said, “Bro, do you think you can kind of, like, back up a little bit?”
Navas, who was on the right side of the stroller, answered, “I’m
not by the stroller.” Herbert replied, “Bro, you kind of is,
though.” Navas did not move, but he again asked, “Can I use
someone’s phone?” One of Herbert’s friends responded, “No.
Nobody has a phone for you to use.”
Navas then grabbed Burgos’s cell phone off the picnic table.
Burgos said to Navas, “Hey, what are you doing?” Navas
punched Burgos in the face and knocked him to the ground.
Navas ran off with the cell phone, and Herbert, Burgos and
Williamson chased him. They caught up to Navas and grabbed
his shirt. Navas pulled off his shirt, and Herbert saw a tattoo
that said “Longo” on Navas’s stomach. Herbert and his friends
fought Navas “for a long time” and punched and kicked Navas “a
lot.” Navas dropped Burgos’s cell phone onto the ground, and
Lewis picked it up. Navas told the men, “I’ll be back.”
Shortly after 5:00 p.m. Anderson called 911 to report the
incident. She told the 911 operator, “I need the police. There’s a
man up here causing problems and there’s a fight right now.”
Anderson reported, “It’s . . . three on one but the guy came up
here trying to steal our phone.” When asked the man’s ethnicity,
Anderson responded, “He’s Mexican. He’s in a gang. He got it
tatted on his stomach.” The 911 operator asked, “What does he
have tatted on his stomach?” Anderson replied, “Longos.”2

2 The transcript of the 911 call reflects that Anderson
described the tattoo as “Longos,” although the other witnesses
described it as “Longo.”

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Anderson reported the man was “in his late 30’s or 20’s,” wore
“jeans,” and “doesn’t have a shirt on.” Anderson added, “He’s
wandering around. Can you please send somebody [up right]
now?” The 911 operator responded, “We will send somebody out
there, okay? Is he beating someone up right now?” Anderson
replied, “Yes. He tried to kidnap my son and he tried to steal . . .
my friend’s phone.” Further, the phone “was on the table and he
just snatched it and tried to run. He’s still here. Like send
somebody right now.” Anderson reported the man still had the
cell phone, but she did not see a weapon on him. Anderson
continued, “Can you just, please? Like he’s up here. He’s trying
to kidnap people’s kids and steal from them and the police is not
here yet.” Anderson explained, “He was standing in front of my
son and tried to take off with my son in—in his stroller.”
Anderson further reported the man was “just walking around in a
circle” and “looked like he’s high.”
A little after 5:00 p.m. Jose Manuel Murillo, who was in his
apartment about 200 feet from the park, heard people screaming
and looked outside his window. He saw a White person argue
with a Black man. Murillo testified, “I saw that the two were
fighting, and then when the White person started hitting the
Black person, two other Black people jumped, trying to help the—
the Black guy.” Murillo added, “They grabbed him by his shirt—
and he tried to break loose, and he tried to do that, and then he
let go of his shirt. He—he was shirtless, totally shirtless.”
Murillo called 911 when he saw “there were three fighting
against one.”
Long Beach Police Officer Justin Van Dyk and his partner,
Officer Sun, arrived in their patrol car in response to Anderson’s
911 call. Officer Van Dyk saw people yelling at each other. Then

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Officer Van Dyk saw “a tall, thin-build male Hispanic wearing all
black clothing run westbound on Plymouth Street and then
northbound on Locust Avenue.” At trial, Officer Van Dyk
testified Navas was the man he saw running. The group of five to
seven people pointed to Navas, saying, “He did it. That’s him.”
Officer Sun turned the patrol car around and drove
northbound on Locust Avenue. When they reached Market
Street, Officer Van Dyk got out of the patrol car, and Officer Sun
drove back to the park. By this time, Long Beach Police Officer
David Cabrera had arrived at the scene. Officer Cabrera saw
Navas walking southbound on Locust Street and alerted Officer
Van Dyk. Officer Van Dyk walked toward Navas, but then Navas
looked at him and started to run. Officer Van Dyk grabbed
Navas’s arm and detained him. According to Officer Van Dyk,
Navas “had a laceration on the left side of his head.” Officer
Cabrera identified Navas at trial as the man he saw walking
southbound on Locust Avenue, a half block from the park.
Long Beach Police Officer Gabriella Rodriguez arrived at
the scene after Navas had been handcuffed, and she placed him
in the back of her patrol car. Navas was shirtless, and Officer
Rodriguez saw a “Longo” tattoo above Navas’s abdomen. In
rebuttal testimony, Officer Rodriguez testified Navas had a cell
phone on him during booking. She did not turn on the cell phone
to determine whether it was working.

B. The Defense Case
Navas testified that shortly before 5:00 p.m. on May 26,
2018, he left his sister’s house and walked toward the train
station to take the train to Downey to visit his girlfriend. Navas
wanted to let his girlfriend know he was coming, but he did not

5
own a cell phone, and there were no pay phones in the area. On
his way to the train station, he approached a group of five to six
men and women at the park and asked to borrow a cell phone.
Navas stood in front of the bench facing the picnic table with the
stroller to his left. Navas testified, “I believe they—they said I
was standing too close to it, and I just moved my hand, like, ‘Hey,
look. I’m not by the baby carriage.’” Navas “continued to ask the
group if [he] could use their phone.” Navas thought he heard a
Hispanic male say “Go ahead.”
Before Navas could pick up the cell phone, the man slapped
his hand hard. In response, Navas hit the man in the face with
his left hand. Navas testified, “I knew I was going to get into a
fight, so I turned around and I started running.” Navas knew
people were chasing him because he got hit in the back of his
head and knocked to the ground. Once he was on the ground,
three men kicked and hit his face. Navas defended himself by
swinging his hands and blocking the blows. Navas eventually got
back on his feet, but the men attacked him again. At one point
the men grabbed Navas’s shirt, so Navas pulled it off. After a
third altercation, Navas was able to get away from the men. He
heard someone yell, “Hey, he’s over here. He’s over here.” When
he saw the police officers, he “took off running” because he was
“being accused of something already.” Navas did not see the cell
phone again after he saw it on the picnic table. After Navas was
detained, he was taken to the hospital because he had a cut in
front of his left ear. He explained to the police officers he had
fallen “because [he knew] they weren’t going to believe [him], so
his main thing was . . . [he] didn’t want to speak about it at the
time.” Navas testified he was under the influence of alcohol,
which “might have” impaired his ability to hear and perceive. He

6
admitted he was convicted of a “violent theft crime” and a
“violent assault crime” in 2000.

C. The Verdict and Sentencing
The jury found Navas guilty of second degree robbery (Pen.
Code, § 211).3 In a bifurcated proceeding, Navas admitted he had
suffered two prior convictions of attempted murder and robbery
in the same case.4
At the September 26, 2019 sentencing hearing, the trial
court denied Navas’s motion to strike one of his prior felony
convictions under Vargas, supra, 59 Cal.4th 635 and Romero,
supra, 13 Cal.4th 497. The court sentenced Navas as a third
strike offender to 25 years to life in prison. The court dismissed
under section 1385 the five-year enhancement for Navas’s prior
serious felony conviction. The court ordered Navas to pay a $30
criminal conviction assessment, a $40 court security fee, and a
$10 crime prevention fund fine. The court also imposed a $2,000
restitution fine and imposed and suspended a parole revocation
restitution fine in the same amount.

3 An additional count alleging the battery of Williamson was
dismissed after the close of evidence in the interest of justice. All
further undesignated statutory references are to the Penal Code.
4 Although Navas did not admit his prior convictions were
serious or violent felonies under the three strikes law (§§ 667,
subds. (b)-(j), 1170.12) and serious felonies within the meaning of
section 667, subdivision (a)(1), as alleged, Navas conceded in his
sentencing memorandum and at sentencing that the felonies
constituted prior strikes, and he did not argue they were not
serious felonies. Rather, as discussed below, Navas argued one of
the strike convictions should be dismissed.

7
 Navas timely appealed.

DISCUSSION

A. Admission of Evidence Relating to Navas’s Gang Tattoo
1. Trial court proceedings
Prior to trial, defense counsel moved to exclude any
evidence of gang affiliation because there was no gang allegation.
The trial court ruled, “Anything that a witness observes, sees, or
[hears] is coming in, and if it goes to an element of fear, then they
can testify to the element of fear. . . . [I]t’s not coming in for gang
enhancement, but it definitely comes in for purposes of fear.
[¶] Quite frankly, [Navas is] lucky a gang enhancement wasn’t
added to this. He’s doing exactly what that gang enhancement is
for, which is to try to promote a gang by saying all of that. So it
does—under [Evidence Code section] 352, I find it very—not
overly prejudicial, so I’m going to allow [it] in [for]
motive[, identification,] and an element of the offense.”
At trial during a sidebar, defense counsel objected to a
photograph of Navas’s upper body with a gang tattoo, which the
People intended to show to Herbert, who had seen Navas at the
park without a shirt. The court ruled the photograph was
relevant to identification and could be shown to Herbert for that
purpose, and further, Officer Rodriguez could look at Navas’s
stomach and then testify that Navas had the tattoo. The court
agreed with defense counsel, however, that the gang tattoo was
not relevant to the fear element of robbery because Herbert was
not the robbery victim. The court ruled the prosecutor could
mention the tattoo in his closing argument for identification
purposes, but he could not discuss the gang.

8
 When the prosecutor later showed Officer Rodriguez the
photograph, Officer Rodriguez identified the “Longo” tattoo as the
tattoo she saw above Navas’s abdomen when she placed him in
her patrol car. The prosecutor then showed the photograph to
the jury. Herbert testified he saw Navas had a “Longo” tattoo on
his stomach. The jury also heard the 911 call in which Anderson
reported the robber was Hispanic, in a gang, and had a “Longos”
tattoo on his stomach. During his closing argument, the
prosecutor stated, “Here’s the defendant with his Longo tattoo, as
described on the 911 call. ‘There’s a guy here causing trouble.
This is what he’s doing.’ And then, ‘What does he have on him?’
‘He has a Longo tattoo.’ When the officers show up, this is the
defendant, this is who they see, and this is who runs away.”

2. Governing law
“‘Relevant evidence is evidence “having any tendency in
reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.”’” (People v.
Hardy (2018) 5 Cal.5th 56, 87; accord, People v. Daveggio and
Michaud (2018) 4 Cal.5th 790, 822.) “‘The court in its discretion
may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.’ (Evid. Code, § 352.)” (Hardy, at p. 87;
accord, People v. Bell (2019) 7 Cal.5th 70, 105.)
“‘[T]he prejudice which exclusion of evidence under
Evidence Code section 352 is designed to avoid is not the
prejudice or damage to a defense that naturally flows from
relevant, highly probative evidence. “[A]ll evidence which tends

9
to prove guilt is prejudicial or damaging to the defendant’s case.
The stronger the evidence, the more it is ‘prejudicial.’ The
‘prejudice’ referred to in Evidence Code section 352 applies to
evidence which uniquely tends to evoke an emotional bias against
the defendant as an individual and which has very little effect on
the issues.”’” (People v. Jones (2017) 3 Cal.5th 583, 610; accord,
People v. Bell, supra, 7 Cal.5th at p. 105 [“‘“Evidence is not
prejudicial, as that term is used in [an Evidence Code]
section 352 context, merely because it undermines the opponent’s
position or shores up that of the proponent.”’”].) “‘[T]he trial
court is vested with wide discretion in determining relevance and
in weighing the prejudicial effect of proffered evidence against its
probative value. Its rulings will not be overturned on appeal
absent an abuse of that discretion.’” (People v. Hardy, supra,
5 Cal.5th at p. 87; accord, Bell, at p. 105.)

3. The trial court did not abuse its discretion in allowing
the witnesses to testify about Navas’s gang tattoo for
purposes of identification
Navas contends his gang tattoo was not relevant to the
issue of identity because he admitted he was the person who
approached the group of people at the park and asked to borrow a
cell phone.5 But Navas made his admission during the defense
case after the People already had presented their case. Navas
also argues the People could have established identity without
referring to his gang tattoo. However, absent the gang tattoo, the
evidence Navas was the person who stole the cell phone was

5 We do no reach whether the gang tattoo was admissible to
show motive or fear because neither was the basis for the trial
court’s final ruling.

10
equivocal. Murillo testified he saw a White man argue and punch
a Black man, and then two other Black men joined the fight
against the White man. Murillo did not identify Navas (who was
Latino) as the White man. When Herbert was asked during his
examination if he saw the person who took the cell phone, he
responded, “I think so.” The prosecutor asked, “And can you say
where he’s sitting, and tell me what he’s wearing?” Herbert
responded, “Is it him with the blue—little shirt on[?]”6 In
addition, Anderson, who stated in the 911 call the robber had a
gang tattoo, did not testify and never identified Navas as the
perpetrator.
Officer Rodriquez identified Navas in court, but she first
saw him after the other officers had handcuffed him, at which
time she placed him in her patrol car. Officer Cabrera identified
Navas as the person he saw walking southbound on Locust
Avenue half a block from the park, but he did not see Navas
while Navas was still in the park. Officer Van Dyk first saw a
“tall, thin-build” Hispanic man at the park, but he lost sight of
the man after the man fled. Officer Van Dyk did not see Navas
again until he learned of Navas’s location from Officer Cabrera
and then encountered Navas walking southbound on Locust
Avenue. Given that identification was at issue, the trial court did
not abuse its discretion in admitting evidence of Navas’s gang
tattoo to show Navas was the person who committed the robbery
at the park.7

6 The trial transcript reflects Herbert was “indicating” or
gesturing to Navas when he answered the question.
7 Navas could have requested a limiting instruction to
minimize the prejudice from the gang evidence, but he failed to

11
B. Admission of Anderson’s 911 Call
1. Trial court proceedings
Prior to trial, the People moved to admit Anderson’s 911
call. In their written motion, the People asserted Anderson’s
statements were not testimonial and were admissible under the
spontaneous statement exception to the hearsay rule. Defense
counsel objected to admission of the 911 call, arguing only that
Anderson’s statements were testimonial. After the trial court
confirmed that at the time of Anderson’s call the fight was
ongoing and the police had not yet arrived, the trial court
overruled Navas’s objection, explaining, “[B]ased on what I’m
hearing, . . . this is an active situation that’s ongoing. It comes in
under contemporaneous statements. It doesn’t even appear to be
testimonial. She’s worried about safety. She’s worried about
somebody being kidnapped. Whether it’s true or not, it doesn’t
really matter. It’s just her ongoing emergency. So despite
defense counsel’s arguments, the court is going to allow that in.”
On appeal, Navas concedes Anderson’s statements were
“arguably admissible” as contemporaneous or spontaneous
statements,8 and he does not contend the statements were

request one, and he does not contend on appeal the failure to give
a limiting instruction was error.
8 Evidence Code section 1240 provides for an exception to the
hearsay rule where a statement “[¶] (a) Purports to narrate,
describe, or explain an act, condition, or event perceived by the
declarant; and [¶] (b) Was made spontaneously while the
declarant was under the stress of excitement caused by such
perception.” (See People v. Sanchez (2019) 7 Cal.5th 14, 39;
People v. Penunuri (2018) 5 Cal.5th 126, 152.) Anderson’s
statements to the 911 operator asking for help were made under

12
testimonial. Instead, Navas argues Anderson’s statements to the
911 operator that a gang member stole a cell phone and tried to
kidnap Anderson’s child should have been excluded as
cumulative evidence or as overly prejudicial under Evidence Code
section 352. Navas acknowledges his trial counsel did not object
on these grounds, but he asserts he did not forfeit his objection
because an objection would have been futile. Alternatively,
Navas contends his trial counsel’s failure to object on these
grounds was ineffective assistance of counsel. Neither contention
has merit.

2. Navas forfeited any challenge to the 911 call as
cumulative or unduly prejudicial
The prejudicial value of evidence may “outweigh its
probative value if it is merely cumulative regarding an issue not
reasonably subject to dispute.” (People v. Tran (2011) 51 Cal.4th
1040, 1049; accord, People v. Williams (2009) 170 Cal.App.4th
587, 610-611.) However, Navas did not object to the admission of
the 911 call based on its cumulative nature or undue prejudice,
thereby forfeiting his claim. (Evid. Code, § 353, subd. (a);
People v. Cage (2015) 62 Cal.4th 256, 282 [“Defendant forfeited
his claims by failing to object to any of the testimony on the
grounds he now raises.”]; People v. Fuiava (2012) 53 Cal.4th 622,
721 [“‘“In accordance with [section 353 of the Evidence Code], we
have consistently held that the ‘defendant’s failure to make a

the stress of excitement as she witnessed the cell phone theft, the
fight, and Navas encroaching on Anderson’s baby stroller.

13
timely and specific objection’ on the ground asserted on appeal
makes that ground not cognizable.”’”].)
Navas contends any further objection to the admission of
the 911 call would have been futile. He is correct that a
defendant is not required to make a futile objection to preserve
an objection for appeal. (See People v. Brooks (2017) 3 Cal.5th 1,
92 [“‘[R]eviewing courts have traditionally excused parties for
failing to raise an issue at trial where an objection would have
been futile or wholly unsupported by substantive law then in
existence.’”]; People v. Clark (2011) 52 Cal.4th 856, 960 [“The
failure to timely object and request an admonition will be excused
if doing either would have been futile, or if an admonition would
not have cured the harm.”].) But Navas fails to explain why it
would have been futile to object to admission of the 911 call based
on the call being cumulative or unduly prejudicial. Instead, he
generally argues that “given the trial court’s ruling and
comments, any additional objections [Navas’s] trial counsel could
have made would have been overruled.” Navas fails to point to
any statements by the court that show an objection would have
been futile. To the contrary, the court addressed Navas’s stated
objection that the 911 call was testimonial, noting that
Anderson’s statements were made during an ongoing emergency
in response to her fear for her safety and concern her child would
be kidnapped. Thus, Navas has failed to meet his burden to show
a further objection would have been futile.

3. Defense counsel did not provide ineffective assistance
of counsel
“‘“To establish ineffective assistance of counsel, a defendant
must show that (1) counsel’s representation fell below an

14
objective standard of reasonableness under prevailing
professional norms, and (2) counsel’s deficient performance was
prejudicial, i.e., there is a reasonable probability that, but for
counsel’s failings, the result would have been more favorable to
the defendant.”’” (People v. Rices (2017) 4 Cal.5th 49, 80; accord,
People v. Bell, supra, 7 Cal.5th at p. 125; see Strickland v.
Washington (1984) 466 U.S. 668, 687-692.) With respect to the
prejudice prong, “[a] reasonable probability is a probability
sufficient to undermine confidence in the outcome.” (Strickland,
at p. 694; accord, Harrington v. Richter (2011) 562 U.S. 86, 111-
112 [“[T]he question is not whether a court can be certain
counsel’s performance had no effect on the outcome. . . . The
likelihood of a different result must be substantial, not just
conceivable.”].) “If [the defendant] cannot show prejudice, we
may reject his claim of ineffective assistance, and need not
address the adequacy of trial counsel’s performance.” (People v.
King (2010) 183 Cal.App.4th 1281, 1298; see Strickland, at p. 697
[“[A] court need not determine whether counsel’s performance
was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies.”].)
Navas argues defense counsel should have requested
redaction of Anderson’s statements that she believed Navas was
going to kidnap her child, Anderson’s references to Navas’s gang
tattoo, and her statement that he was “in a gang.” But Navas
fails to meet his burden to show to a reasonable probability that
he would have achieved a more favorable result had portions of
the 911 tape been redacted. (People v. Bell, supra, 7 Cal.5th at
p. 125; People v. Rices, supra, 4 Cal.5th at p. 80.) Herbert
testified Navas grabbed Burgos’s phone without permission,
punched Burgos in the face, and fled with the cell phone.

15
Anderson likewise described the fight resulting from the robber
“trying to steal our phone.” And the jury heard testimony from
Herbert that Navas was too close to the baby stroller and Herbert
repeatedly asked Navas to back up, but Navas refused to move.
There was no reasonable probability had the jury not heard the
additional statements by Anderson that she believed Navas was
trying to kidnap her son or other children (which was consistent
with Herbert’s testimony), the jury would have found Navas was
not guilty of second degree robbery. And as discussed,
Anderson’s statement that the robber had a gang tattoo on his
stomach was relevant to the identification of Navas. Although
other witnesses testified as to Navas’s gang tattoo (including
Herbert), Anderson’s testimony further pointed to Navas as the
robber. Anderson’s personal opinion that Navas was a gang
member was not unduly prejudicial given that the jury heard he
had a gang tattoo. As the Supreme Court explained in People v.
Tran, supra, 51 Cal.4th at page 1049, “[T]he prosecution cannot
be compelled to ‘“present its case in the sanitized fashion
suggested by the defense.”’ [Citation.] When the evidence has
probative value, and the potential for prejudice resulting from its
admission is within tolerable limits, it is not unduly prejudicial
and its admission is not an abuse of discretion.”

C. The Trial Court Did Not Err in Denying Navas’s Vargas
Motion
1. Navas’s prior convictions
Navas admitted he had suffered convictions of attempted
murder and robbery in connection with the 2000 robbery and
shooting of Javier Maldonaldo by Navas and codefendant Jesus
Salvador Avelar, in which Avelar was the shooter. As the Court

16
of Appeal in People v. Avelar (Aug. 15, 2003, B158761) [nonpub.
opn.] described the evidence at trial: “Avelar approached
Maldonaldo in the parking lot and asked for a cigarette. Avelar
then produced a handgun, pointed it at Maldonaldo, said the gun
was real, threatened to kill Maldonaldo and demanded money.
Maldonaldo removed an unknown amount of cash from his pocket
and either gave it to Avelar or dropped it on the ground. Navas
removed a wallet from the back pocket of Maldonaldo’s pants.
Also taken in the attack was Maldonaldo’s checkbook. The
assailants said to give them all the money and asked if
Maldonaldo had money in his shoe. Maldonaldo had his hands
raised after Navas took his wallet to demonstrate that he was not
going to defend himself. Maldonaldo closed his eyes and kept his
arms raised in front of his head. Maldonaldo heard a shot that
struck him in the right hand. Maldonaldo returned to the
restaurant and described the assailants to a 911 operator as
19-year-old Hispanic males with shaved heads and dark
clothing.”
The jury convicted Avelar and Navas of attempted murder
and robbery. It found Avelar personally discharged a firearm,
and as to Navas, a principal personally used and discharged a
firearm causing great bodily injury. (People v. Avelar, supra,
B158761.) The Court of Appeal affirmed the attempted robbery
convictions but reversed the convictions of attempted murder
because the trial court failed to bifurcate the trial of the criminal
street gang enhancement. The Court of Appeal also reversed the
true finding on the gang enhancement for lack of sufficient
evidence and the firearm enhancements that depended on the
gang enhancement. (Avelar, B158761.) On remand, Navas
pleaded guilty to attempted murder and admitted the firearm

17
enhancement that a principal used a firearm. The trial court
stayed the sentence for the robbery count under section 654 and
sentenced Navas to 10 years in state prison.

2. Navas’s Vargas motion
Prior to sentencing, Navas filed a Vargas motion to strike
one of his two prior strike convictions for robbery and attempted
murder on the basis the two offenses arose from a single act by
Navas, taking Maldonado’s wallet out of his pocket. At
sentencing, the trial court denied Navas’s motion, explaining,
“[T]his particular case is about as tough as it gets as far as
deciding whether under People versus Vargas it applies. And
quite frankly, the court could just take the safe route and say,
well, People versus Vargas applies . . . . [¶] But in this case, we
have very distinctly different acts that are going on even though
it was under a single course of conduct. . . . It’s my
understanding somebody did, in fact, get shot . . . and the mere
fact of a gun is one thing on a [robbery] and an actual shooting is
another. And [Navas] did, in fact, plead to having a specific
intent to kill which is separate and apart from having specific
intent to take property. [¶] . . . [T]he court is not taking the safe
route, and I feel that they are [two] individual separate strikes
that would qualify under the California three strikes law.”

3. The trial court was not required to dismiss one of the
prior strike convictions under Vargas
In “extraordinary” cases, where a defendant’s two prior
strike convictions were based on the same act, the court must
dismiss one of the strike allegations. (Vargas, supra, 59 Cal.4th
at p. 641.) In Vargas, the defendant was convicted of carjacking

18
and robbery arising from the commission of a single act, “forcibly
taking the victim’s car.” (Id. at p. 645.) Years later, the
defendant was convicted of first degree burglary, grand theft, and
conspiracy to commit grand theft. (Id. at p. 639.) The trial court
granted the defendant’s motion to dismiss the carjacking
conviction as to the grand theft and conspiracy counts, but not
the burglary count. (Ibid.) The Supreme Court reversed, holding
that because the two prior strikes arose from the defendant’s
single act against the same victim, the trial court was required to
dismiss one of the two prior strike convictions in the subsequent
proceeding. (Id. at p. 644.) The court analogized the three
strikes law to three strikes in baseball, explaining that where the
strike convictions were based on a single criminal act, sentencing
the defendant as a third strike offender would be like calling a
baseball player out “for two strikes on just one swing.” (Id. at
p. 646.)
The Vargas court emphasized that dismissal of a prior
strike conviction is not warranted where “the offender committed
more than one act, whether separately or during a continuous
course of conduct,” as in People v. Benson (1998) 18 Cal.4th 24
(Benson). (Vargas, supra, 59 Cal.4th at p. 646.) In Benson, the
defendant entered the victim’s apartment on the pretense of
retrieving his keys, and once inside, he grabbed the victim, forced
her to the floor, and stabbed her multiple times. (Benson, at
p. 27.) The defendant was convicted of residential burglary and
assault with the intent to commit murder, with the sentence for
the assault conviction stayed pursuant to section 654. (Ibid. &
fn. 4.) The Benson court concluded that although the sentence on
the assault count was stayed, both offenses constituted strikes for
purposes of the three strikes law, explaining, “In our view, the

19
electorate and the Legislature rationally could—and did—
conclude that a person who committed additional violence in the
course of a prior serious felony (e.g., shooting or pistol-whipping a
victim during a robbery, or assaulting a victim during a burglary)
should be treated more harshly than an individual who
committed the same initial felony, but whose criminal conduct
did not include such additional violence.” (Id. at p. 35.)
Here, Navas’s prior offenses of robbery and attempted
murder were separate acts that occurred during a continuous
course of conduct. When Avelar initially pointed a gun at
Maldonaldo and demanded money, Maldonaldo complied by
handing over the money or dropping it on the ground. After
Navas removed Maldonaldo’s wallet and checkbook from his back
pocket, Maldonaldo raised his arms to indicate he would not
resist. When Maldonado did not respond to Navas’s and Avelar’s
follow-up request for money, Avelar shot the victim in his right
hand. The act of shooting Maldonaldo was a separate act of
violence committed in the course of the robbery, similar to the
assault of the victim in Benson in the course of the residential
burglary. (See Benson, supra, 18 Cal.4th at p. 27.)

D. The Trial Court Did Not Abuse Its Discretion in Denying
Navas’s Romero Motion
1. Trial court proceedings
Navas argued in his written motion to dismiss that if the
court did not dismiss one of his prior strike convictions under
Vargas, it should dismiss one or both of his prior strikes under
Romero and section 1385. At sentencing, defense counsel argued
Navas committed the prior strike offenses 19 years earlier (in
2000); Navas was not the shooter and was only 19 years old; and

20
the current offense involved no weapons. Defense counsel further
argued Navas’s abusive childhood led him to drugs and gang
involvement.
The People argued in their sentencing memorandum and at
the sentencing hearing that although Navas’s strike offenses
were committed in 2000, each time he was released from custody,
he reoffended. Prior to committing the strike offenses, Navas had
a juvenile adjudication for possession of a dangerous weapon in
1997; a misdemeanor burglary conviction in 1999; and a separate
misdemeanor trespassing conviction in 1999. Navas was
convicted of attempted murder and robbery in 2002, then he was
released after serving a seven-year term. In 2012 he was
convicted of felony possession of a controlled substance and was
again sentenced to seven years in state prison. In 2018 Navas
was convicted of three misdemeanors on separate occasions:
contempt of court for violation of a gang injunction, possession of
controlled substance paraphernalia, and vandalism. Navas was
on summary probation for the misdemeanor contempt offense
when he committed the current offense.
The trial court denied the Romero motion, finding Navas
had a “consistent” criminal history, and although he did not use a
weapon in the current offense, he committed “violent conduct as
far as the robbery is concerned, and it’s just a pattern that this
court doesn’t really know what to do with.” As to Navas’s
background, character, and prospects, the court acknowledged
Navas’s “rough upbringing,” but the court observed Navas was
38 years old and still was part of a gang (having violated a gang
injunction in 2018), he had “escalating behavior,” and “nothing
seems to work.” The court concluded Navas was not outside the

21
spirit of the three strikes law and sentenced him to 25 years to
life, after striking the five-year sentence enhancement.

2. Governing law
A trial court has discretion under section 1385,
subdivision (a), to dismiss a strike conviction for purposes of
sentencing in furtherance of justice. (People v. Williams (1998)
17 Cal.4th 148, 158 (Williams); Romero, supra, 13 Cal.4th at
p. 530.) In determining whether to strike a prior conviction, the
trial court “must consider whether, in light of the nature and
circumstances of his present felonies and prior serious and/or
violent felony convictions, and the particulars of his background,
character, and prospects, the defendant may be deemed outside
the [three strikes] scheme’s spirit, in whole or in part, and hence
should be treated as though he had not previously been convicted
of one or more serious and/or violent felonies.” (Williams, at
p. 161; accord, People v. Johnson (2015) 61 Cal.4th 674, 689.)
“[A] court’s failure to dismiss or strike a prior conviction
allegation is subject to review under the deferential abuse of
discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367,
374 (Carmony); accord, In re Large (2007) 41 Cal.4th 538, 550
[petitioner failed to rebut “‘strong presumption’ [citation] that the
trial judge properly exercised his discretion in refusing to strike a
prior conviction allegation”].) A trial court does not abuse its
discretion unless its ruling “is so irrational or arbitrary that no
reasonable person could agree with it.” (Carmony, at p. 377;
accord, People v. McDowell (2012) 54 Cal.4th 395, 430.) The
party challenging the sentence has the burden to show the
sentence was irrational or arbitrary. (Carmony, at p. 376;
People v. Avila (2020) 57 Cal.App.5th 1134, 1140 (Avila).) “‘“In

22
the absence of such a showing, the trial court is presumed to have
acted to achieve legitimate sentencing objectives, and its
discretionary determination to impose a particular sentence will
not be set aside on review.”’ [Citations.] . . . ‘“‘An appellate
tribunal is neither authorized nor warranted in substituting its
judgment for the judgment of the trial judge.’”’” (Carmony, at
pp. 376-377.)
Because the three strikes law “creates a strong
presumption that any sentence that conforms to [the law’s]
sentencing norms is both rational and proper,” there are very
limited circumstances under which the appellate court will find
an abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 378.)
These circumstances include where the court is unaware of its
discretion to strike a prior conviction, it considers impermissible
factors, or, under the circumstances, imposition of a three strikes
sentence would be irrational or arbitrary. (Ibid.; Avila, supra,
57 Cal.App.5th at pp. 1140-1141.) Only under extraordinary
circumstances does the court’s failure to strike a prior conviction
constitute an abuse of discretion. (Carmony, at p. 378; People v.
Finney (2012) 204 Cal.App.4th 1034, 1040 [“Once a career
criminal commits the requisite number of strikes, the
circumstance must be “extraordinary” before he can be deemed to
fall outside the spirit of the three strikes law.”].)

3. The trial court did not abuse its discretion
Navas has failed to show the trial court’s ruling in denying
his Romero motion was “so irrational or arbitrary that no
reasonable person could agree with it.” (Carmony, supra,
33 Cal.4th at p. 377.) The trial court was aware of its discretion
and specifically considered the factors set forth in Williams,

23
supra, 17 Cal.4th 148. As to Navas’s criminal background, the
court observed that Navas had a consistent pattern of committing
crimes, which had not abated following the commission of his
strike offenses. Although the strike offenses were remote in time
(and committed as part of one incident), a trial court does not
abuse its discretion in refusing to strike a prior conviction where
the defendant continues to reoffend. (Carmony, supra, 33 Cal.4th
at pp. 378-379 [trial court did not abuse its discretion in refusing
to strike three remote prior strike convictions, including 16-year-
old conviction, where the defendant was a “‘“revolving door”
career criminal’” and had not addressed his substance abuse
problem]; see People v. Pearson (2008) 165 Cal.App.4th 740, 749
[trial court did not abuse its discretion in refusing to strike three
prior robbery convictions suffered up to 24 years before the
current offense, noting “the defendant has led a continuous life of
crime”]; People v. Philpot (2004) 122 Cal.App.4th 893, 906 [trial
court did not abuse its discretion in denying a motion to strike a
remote prior strike conviction where the “defendant consistently
committed criminal offenses for the past 20 years”].)
As discussed, Navas was released from custody after
serving a seven-year sentence for his strike offenses; then just a
few years later he committed a drug offense (in 2012) and was
again sentenced to seven years in prison. Navas was then
convicted of three misdemeanor offenses in 2018 and was on
summary probation for violating a gang injunction when he
committed the instant offense. As the trial court explained,
“[N]othing seems to work,” observing Navas continued to commit
offenses after being sentenced to prison. Thus, as in Carmony,
supra, 33 Cal.4th at pages 378 to 379, Navas was a “‘“revolving
door” career criminal’” who had not addressed any problems that

24
had caused him previously to offend. Further, to the extent
Navas had a problem with drug addiction, there was no evidence
he did anything to address the problem. As the Supreme Court
found in Carmony, in affirming the trial court’s denial of the
motion to dismiss the prior strikes, the defendant there “had also
done little to address his substance abuse problems.” (Carmony,
at p. 378; see People v. Leavel (2012) 203 Cal.App.4th 823, 837
[the defendant failed to cite evidence showing “treatment for his
mental health and substance abuse problems that he claims led
to the crimes”].)
As to the current offense, the court acknowledged Navas
did not use a weapon, but the robbery involved “violent conduct.”
After grabbing Burgos’s cell phone, Navas punched Burgos in the
face and knocked him to the ground, then fled. The court also
considered Navas’s background, character, and prospects.
Although the court recognized Navas’s difficult upbringing and
youth at the time of the strike offenses, the court expressed
concern that at the age of 38 (at the time of the current offense),
Navas should have grown out of a life of crime, but instead he
was still in a gang, having been found in violation of a gang
injunction earlier in 2018. The court reasoned that if it dismissed
one of the strikes and sentenced Navas to 15 years in prison (the
upper term of five years doubled, plus the five-year sentence
enhancement), this was not likely to change Navas’s behavior
given that two prior seven-year sentences had not made a
difference. As the court explained, “if he hasn’t grown up by 38, I
don’t think 50-whatever is going to make a difference.”

25
E. Remand Is Not Warranted for an Ability-to-pay Hearing on
the Fines and Assessments
Navas contends the trial court’s imposition of fines and
assessments without holding a hearing on his ability to pay
violated his due process rights, relying on this court’s opinion in
Dueñas, supra, 30 Cal.App.5th 1157. However, as the People
argue, Navas was sentenced on September 26, 2019, more than
eight months after Dueñas was decided on January 8, 2019. On
these facts, application of the doctrine of forfeiture is appropriate.
In Dueñas, this court concluded “the assessment provisions
of Government Code section 70373 and Penal Code
section 1465.8, if imposed without a determination that the
defendant is able to pay, are . . . fundamentally unfair; imposing
these assessments upon indigent defendants without a
determination that they have the present ability to pay violates
due process under both the United States Constitution and the
California Constitution.” (Dueñas, supra, 30 Cal.App.5th at
p. 1168; accord, People v. Belloso (2019) 42 Cal.App.5th 647, 654-
655 (Belloso), review granted Mar. 11, 2020, S259755.)9 In
contrast to court assessments, a restitution fine under section
1202.4, subdivision (b), “is intended to be, and is recognized as,
additional punishment for a crime.” (Dueñas, at p. 1169; accord,
Belloso, at p. 655.) Section 1202.4, subdivision (c), expressly
provides a defendant’s inability to pay a restitution fine may not

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

26
be considered as a “compelling and extraordinary reason” not to
impose the statutory minimum fine. However, as this court held
in Dueñas, to avoid the serious constitutional questions raised by
imposition of such a fine on an indigent defendant, “although the
trial court is required by . . . section 1202.4 to impose a
restitution fine, the court must stay the execution of the fine until
and unless the People demonstrate that the defendant has the
ability to pay the fine.” (Dueñas, at p. 1172; accord, Belloso, at
p. 655.)
In People v. Castellano (2019) 33 Cal.App.5th 485, 489
(Castellano), we held a defendant’s failure to object to the
imposition of fines and fees before Dueñas was decided does not
constitute forfeiture. But here, Navas was sentenced more than
eight months after Dueñas was decided. Thus, unlike in
Castellano, Navas’s challenge on appeal is not “based on a newly
announced constitutional principle that could not reasonably
have been anticipated at the time of trial.” (Castellano, at p.
489.) In addition, there are no special circumstances or legal
issues that would warrant us to exercise our discretion to excuse
forfeiture. (In re S.B. (2004) 32 Cal.4th 1287, 1293 [“application
of the forfeiture rule is not automatic,” although “the appellate
court’s discretion to excuse forfeiture should be exercised rarely
and only in cases presenting an important legal issue”];
Unzueta v. Akopyan (2019) 42 Cal.App.5th 199, 215 [“‘[N]either
forfeiture nor application of the forfeiture rule is automatic.’”].)10

10 Navas contends if we find forfeiture, his attorney’s failure
to object to imposition of the fines and fees was ineffective
assistance of counsel. His claim of ineffective assistance of
counsel fails because the record does not reflect why his attorney

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 DISPOSITION

The judgment is affirmed.

FEUER, J.
We concur:

PERLUSS, P. J.

SEGAL, J.

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

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