People v. Johnson CA2/5

Filed 5/7/21 P. v. Johnson CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FIVE

THE PEOPLE, B301526

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA464218)
v.

JOHN TABER JOHNSON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of the
County of Los Angeles, Mark S. Arnold, Judge. Affirmed.
Gail Harper, 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 Michael
Katz, Deputy Attorneys General, for Plaintiff and Respondent.
 I. INTRODUCTION

A jury found defendant and appellant John Taber Johnson
guilty of the first degree murder of victim Scott Sterling. On
appeal, defendant claims: (1) the trial court abused its discretion
by allowing evidence of two prior uncharged offenses under
Evidence Code section 1101; (2) there was insufficient evidence to
show that he was the killer; (3) his counsel provided ineffective
assistance by failing to object to inadmissible lay identification
testimony; (4) the court abused its discretion by allowing three
witnesses to testify about the victim’s good character; and (5) the
court violated his constitutional rights by imposing a fine and
assessments without an ability-to-pay hearing. We affirm.

II. FACTUAL BACKGROUND

A. The Homicide

According to his father, the victim was raised in a suburb of
Detroit and had studied music in Los Angeles, but had lived on
the streets in Los Angeles since 2008. The victim had a modest
fixed monthly income from a trust account left by his mother and
administered by his sister. The victim’s father last spoke to him
eight days prior to his December 29, 2017, death when he
arranged for the victim to stay in a hotel for the holiday.
On December 28, 2017, Sandra Nava was working at
Barabas, a clothing store on 14th Street located directly east of
Fernando’s, a tailor shop, in the Fashion District of Los Angeles.
At approximately 6:00 p.m., as she was closing, she saw the
victim, with whom she was familiar, waiting near Fernando’s so

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that he could lay down his “carton” to go to sleep. The victim
regularly arrived before 6:00 p.m. and would wait for the stores
to close before laying down. Nava did not see anyone else near
that location when she left for the evening.
At approximately 7:00 a.m. on December 29, 2017, as he
drove to work, a witness saw blood streaming from the body of a
man lying on the sidewalk in front of Fernando’s and called 911.

B. Police Investigation, Video Evidence, and Autopsy

On the morning of December 29, 2017, police and
paramedics arrived at the scene, observed that the victim was
lying on the sidewalk with the hood of his hoodie over his head,
and determined that he was dead. A coroner’s investigator
searched the victim’s belongings and found the victim’s driver’s
license, a credit card, cash, and an iPod device.
Los Angeles Police Department Detective Kasie Chavez
noticed that although there were no cameras directly over the
victim’s location at Fernando’s, there was a camera at Carmen
Creations, two stores to the west, and at Barabas, directly east.
Detective Chavez viewed video footage from the camera at
Carmen Creations1 and observed a male (the suspect) walking
eastbound on 14th Street carrying a bag and a cinder block. The
suspect walked past Carmen Creations and continued east,
toward where the victim’s body was found, where he stepped out
of view of the camera, while carrying a cinder block in his hand.
Approximately 30 seconds later, the suspect walked westbound,

1 Detective Chavez viewed a recording of the video footage of
the surveillance camera as it played on a monitor.

3
back into the view of the video camera, still carrying the cinder
block in his hand.
Detective Chavez determined that a cement cinder block
was the likely murder weapon and she therefore began “to
canvass” the area for the weapon. She went to a business at 1416
South Main Street, observed a large cement cinder block on the
sidewalk, and took custody of it.
A witness who worked at 1416 South Main Street testified
that when she closed the business on December 28, 2017, at
around 5:00 p.m., the cinder block was not outside her store. But,
when she arrived the next morning at 7:00 a.m., she saw the
cinder block against the wall outside the store.
Los Angeles Police Department Detective Jonathan
Vander Lee examined the cinder block and noticed that it had
“pieces of black fuzz-type material on one of [its] corners.” The
detective also inspected the black hoodie the victim wore the
morning of his death and observed that it had a small hole or
tear in the back right portion of the hood.2
Los Angeles County Department of Medical Examiner,
Coroner Deputy Medical Examiner Pedro Ortiz reviewed the
record of the autopsy performed on the victim and concluded
from the nature and extent of his injuries that he died from the
effects of blunt force trauma to the right-rear portion of his skull.
The injury to the victim’s skull was consistent with a blow
delivered by the corner of a heavy object, such as a cinder block.
Detective Vander Lee supervised the collection of video
evidence by police surveillance specialists and then reviewed all
the video collected. On the videos from Carmen Creations and

2 The cinder block was not analyzed for fingerprints; and the
blood and DNA analyses conducted were negative.

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Barabas covering the period from the evening of December 28 to
the morning of December 29, 2017, he observed, in addition to the
suspect carrying the cinder block, other “people passing by at
times . . . .” But none of them was carrying anything that could
have inflicted the blunt force trauma to the victim’s head.
Detective Vander Lee created an exhibit comprised of video
surveillance footage from various security cameras, stills from
those videos, and maps, presented in chronological order. One
video from Carmen Creations showed the suspect walking east in
front of Carmen Creations, carrying a bag in his left hand and a
cinder block on his right shoulder. The video included images of
the suspect’s face. As the suspect approached Carmen Creations,
he put the bag down in the parking lot just west of the business,
grasped the cinder block with both hands, and walked toward the
victim’s location off camera. The video ended at 3:35:32 a.m. The
distance between the western border of Carmen Creations, as
depicted in the surveillance videos, and the victim’s location was
approximately 39 feet. Detective Vander Lee walked the distance
and found it took him 20 footsteps to cover.
A second video from Carmen Creations began
approximately 38 seconds later at 3:36:10 a.m. It showed the
suspect returning into the camera’s view and walking westbound
(that is, away from the victim) with the cinder block in his left
hand. As the suspect reached the bag he left in the parking lot,
he shifted the cinder block to his right shoulder and picked up the
bag in his left hand.
The next two videos, from two different cameras, showed
the suspect as he continued westbound on 14th Street toward
Main Street with the cinder block on his right shoulder and the
bag in his left hand.

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 The suspect was seen again in a video on Main Street, by
16th Street. He was no longer carrying the cinder block. The
location of this footage was consistent with where Detective
Chavez recovered the cinder block.
The videos collected by the police depicted the suspect as he
walked around the vicinity where the victim was found both
before and after 3:35 a.m. They showed the suspect was a
bearded man wearing a distinctive four-pocket jacket, with a zip-
up hoodie underneath, a beanie with a distinctive tag at the top,
stained jeans, and reflective shoes with a Nike logo. The bag that
the suspect carried had a clearly visible “C” logo and two straps.

C. The Arrest

In January 2018, Los Angeles Police Department Officer
Chad Heistermann viewed, at least seven or eight times, videos
that depicted the suspect. He also reviewed stills taken from the
videos.
On January 7, 2018, Officer Heistermann and his partner
patrolled the area by the crime scene, following a route that
covered locations where the suspect had been seen on videos from
the morning of the homicide. As the officers proceeded north on
Main Street toward 14th Street, Officer Heistermann observed
defendant, whom he immediately recognized, based on his facial
features and attire, as the suspect depicted in the videos.3
Defendant was carrying a large, black reusable shopping bag that

3 Defense counsel did not object to this testimony, which is
the basis for defendant’s ineffective assistance of counsel
argument discussed below.

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resembled the bag carried by the suspect. The officers stopped
defendant and arrested him.
According to Officer Heistermann, a photo of defendant
taken during booking accurately depicted defendant’s appearance
and attire on the day he was arrested.
When Detective Vander Lee was notified of defendant’s
arrest, he met Officer Heistermann at the police station and
observed that defendant was wearing the same clothing as the
suspect in the videos from the morning of the homicide, including
a brown jacket with the four pockets, a black zip-up hoodie
underneath, stained blue jeans, and shoes with the Nike symbols
and reflectors on the back of both heels. Although defendant’s
jeans on the day of his arrest had a tear in the front of the left leg
that he did not observe in any of the videos, Detective Vander Lee
noticed that defendant had a fresh injury to his left knee that
corresponded to the tear. The detective also confirmed that the
bag defendant was carrying the day of his arrest had a white “C”
emblem with white lettering around it and straps that could be
worn over the shoulder. In addition, the bag contained a black
beanie with a tag on it.
Detective Vander Lee viewed an exhibit that showed a
photo of defendant on the day of his arrest next to a still taken
from the Carmen Creations’ video that showed the suspect
carrying the cinder block. He compared the two images and
confirmed that defendant was the man on the video. At the time
of trial, defendant had shorter hair and had gained
approximately 20 pounds since the time of his arrest.

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 III. PROCEDURAL BACKGROUND

In an information, the Los Angeles County District
Attorney charged defendant with murder in violation of Penal
Code section 187, subdivision (a).4 The District Attorney alleged
that defendant had suffered a prior strike conviction within the
meaning of sections 667, subdivision (d) and 1170.12,
subdivision (b). The District Attorney also alleged that defendant
was convicted of a prior serious felony within the meaning of
section 667, subdivision (a)(1).
Following trial, the jury found defendant guilty of first
degree murder. At the sentencing hearing, the trial court found
true the prior strike conviction and the prior serious felony
conviction. The court sentenced defendant to a term of 25 years
to life, doubled to 50 years based on the prior strike conviction,
plus an additional consecutive five-years based on the prior
serious felony conviction, for an aggregate sentence of 55 years to
life. The court also imposed certain fines and assessments.

IV. DISCUSSION

A. Evidence of Uncharged Crimes

1. Background

Before trial, the prosecutor moved to admit evidence of
defendant’s prior assault and battery of two victims pursuant to
Evidence Code section 1101, subdivision (b). The prosecutor

4 All statutory references are to the Penal Code, unless
otherwise indicated.

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argued that because the means by which defendant committed
those assaults closely resembled the means used to murder the
victim, namely, with a large piece of cement, testimony from the
two prior victims was admissible to show modus operandi and
intent.
During the pretrial hearing on the motion, defendant’s
counsel argued that the only similarity between the prior
assaults and the killing of the victim—that the weapons used
were all made of concrete—was insufficient to satisfy the criteria
for admission under Evidence Code section 1101, subdivision (b).
Following argument, the trial court granted the motion,
reasoning as follows: “I believe . . . the prior conduct . . . by . . .
defendant is admissible to demonstrate in this case that he ha[d]
a common plan to utilize pieces of concrete as a weapon. [¶]
Also, I . . . think that the fact he ha[d] used concrete in the past is
relevant to prove that he was willful, deliberate, and
premeditated in this case; the fact he armed himself with
something he’s used in the past to commit assaults.”
At trial, the two victims of the prior assaults testified about
the incident as follows: On March 29, 2016, Jonathan
Manfrellotti looked out of his window and saw defendant
standing by Manfrellotti’s car. Defendant looked up, saw
Manfrellotti through the window, and then kicked the car.
Manfrellotti grabbed a bat and approached defendant.
Manfrellotti then watched as defendant moved toward a group of
people nearby and struck victim Kenny Pierce on the head with a

9
“broken piece of cement” or “cinder block.”5 Pierce then fell to the
ground and suffered a wound to his right eye.
As Manfrellotti and others in the group were helping Pierce
up, someone yelled, “‘Here he comes.’” Manfrellotti looked up and
saw defendant running toward the group while holding “another
piece of cement” in his hand, which was the same size as the
piece that defendant had used to strike Pierce. Defendant
pursued Manfrellotti and “launched” his body into a gate as
Manfrellotti tried to close it behind him. The gate hit
Manfrellotti on the head and caused him to fall to the ground.
Manfrellotti then looked up and saw defendant standing over him
with the piece of cement. Defendant told Manfrellotti, “‘I’m
gonna kill you.’” Manfrellotti managed to move away from
defendant, who then threw the piece of cement hitting
Manfrellotti on the wrist and knocking him to the ground again.
Manfrellotti ran back down his driveway to the alley, heard
sirens, and saw defendant run away down the alley. Manfrellotti
suffered a swollen wrist and cuts down his arm that caused
bleeding.

2. Legal Principles

Evidence Code section 1101, subdivision (a) “‘expressly
prohibits the use of an uncharged offense if the only theory of
relevance is that the accused has a propensity (or disposition) to
commit the crime charged and that this propensity is
circumstantial proof that the accused behaved accordingly on the

5 Pierce testified that he was struck on his left shoulder
blade.

10
occasion of the charged offense.’ [Citation.] ‘Subdivision (b) of
[Evidence Code] section 1101 clarifies, however, that this rule
does not prohibit admission of evidence of uncharged misconduct
when such evidence is relevant to establish some fact other than
the person’s character or disposition.’ (People v. Ewoldt (1994) 7
Cal.4th 380, 393 . . . (Ewoldt).) ‘If an uncharged act is relevant to
prove some fact other than propensity,’ such as the perpetrator’s
intent or identity, or the existence of a common plan, ‘the
evidence is admissible, subject to a limiting instruction upon
request.’ [Citation.]
“‘Evidence of uncharged crimes is admissible to prove
identity, common plan, and intent “only if the charged and
uncharged crimes are sufficiently similar to support a rational
inference” on these issues.’ [Citation.] The degree of similarity
varies depending on the purpose for which the evidence is offered.
‘The least degree of similarity . . . is required in order to prove
intent.’ (Ewoldt, supra, 7 Cal.4th at p. 402.) For this purpose,
‘the uncharged misconduct must be sufficiently similar to support
the inference that the defendant “‘probably harbor[ed] the same
intent in each instance.’”’ (Ibid.) A higher degree of similarity is
required to prove the existence of a common plan: ‘[E]vidence of
uncharged misconduct must demonstrate “not merely a similarity
in the results, but such a concurrence of common features that
the various acts are naturally to be explained as caused by a
general plan of which they are the individual manifestations.”’
(Ibid.) Finally, . . . ‘[t]he greatest degree of similarity is required
for evidence of uncharged misconduct to be relevant to prove
identity.’ (Ewoldt, [supra, 7 Cal.4th] at p. 403.) To establish
identity, the uncharged and charged crimes ‘“must be so unusual
and distinctive as to be like a signature.”’ (Ibid.)

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 “Even if evidence of the uncharged conduct is sufficiently
similar to the charged crimes to be relevant for a nonpropensity
purpose, the trial court must next determine whether the
evidence’s probative value is ‘substantially outweighed by the
probability that its admission [would] . . . create substantial
danger of undue prejudice, of confusing the issues, or of
misleading the jury. (Evid. Code, § 352; [Citation.] [¶] As with
other evidentiary rulings, the trial court’s decision is reviewed for
abuse of discretion. [Citation.]” (People v. Chhoun (2021) 11
Cal.5th 1, 25–26, fn. omitted (Chhoun).)

3. Analysis

“It is settled in this state . . . that except when it shows
merely criminal disposition [citations], evidence that is relevant
is not excluded because it reveals the commission of an offense
other than that charged. ‘The general tests of the admissibility of
evidence in a criminal case are: . . . does it tend logically,
naturally, and by reasonable inference, to establish any fact
material for the people, or to overcome any material matter
sought to be proved by the defense? If it does, then it is
admissible, whether it embraces the commission of another crime
or does not, whether the other crime be similar in kind or not,
whether it be part of a simple design or not.’” (People v. Peete
(1946) 28 Cal.2d 306, 314–315.)
In this case, there were no eyewitnesses to the murder of
the victim. Instead, the prosecution relied largely on
circumstantial evidence to show that defendant deliberately and
intentionally killed the victim using a cinder block. The two
uncharged crimes, if sufficiently similar to the charged crime,

12
were therefore relevant to corroborate that circumstantial
evidence against defendant by showing that he acted on the
morning of the killing pursuant to a common plan or design.
(Chhoun, supra, 11 Cal.5th at p. 26.)
Each of defendant’s prior crimes involved violent,
unprovoked attacks on unarmed victims. Moreover, during each
incident, defendant produced a large piece of cement and, without
warning, assaulted the victim with it. In the case of Pierce,
defendant swung the concrete-like object toward his head,
missing but hitting him in the shoulder and knocking him to the
ground; in Manfrellotti’s case, defendant first knocked him to the
ground and then stood over him with the object in his hand,
threatening to kill him, before throwing the object at him and
injuring his wrist. Although those prior unprovoked attacks did
not result in the death or serious injury of either victim, the
circumstances of the assaults could have caused much greater
injury or even death. The uncharged offenses therefore were
relevant to an issue—defendant’s conduct consistent with a
common plan or design—other than merely his propensity to
commit violent crimes. (See People v. Daniels (1991) 52 Cal.3d
815, 857 [“As long as there is a direct relationship between the
prior offense and an element of the charged offense, introduction
of that evidence is proper”].) Having concluded that defendant’s
prior assaults were relevant to show common plan or design, we
need not decide whether the trial court correctly reasoned that
such evidence also was relevant to intent or identity. (People v.
Chism (2014) 58 Cal.4th 1266, 1307, fn. 13.)
We also conclude that the trial court did not abuse its
discretion by admitting the evidence under Evidence Code section
352. The evidence of the uncharged crimes showed that they did

13
not result in serious injury to the victims, who were both able to
testify at trial. By contrast, the victim in the charged crime
suffered a significant skull fracture and died from his injury.
Thus, “it was unlikely . . . that the jury’s passions were inflamed
by the evidence of defendant’s uncharged offenses.” (Ewoldt,
supra, 7 Cal.4th at p. 405.)

B. Sufficiency of Identity Evidence

Defendant maintains that there was insufficient evidence
to support the jury’s finding that he was the murderer.
According to defendant, because the prosecution’s case was based
solely on circumstantial evidence that was not corroborated by
any eyewitness testimony describing the actual killing or other
forensic evidence, such as DNA, blood, or fingerprints, the video
evidence alone did not support a reasonable inference that he was
the killer.

1. Legal Principles

“When a defendant challenges the sufficiency of the
evidence for a jury finding, we review the entire record in the
light most favorable to the judgment of the trial court. We
evaluate whether substantial evidence, defined as reasonable and
credible evidence of solid value, has been disclosed, permitting
the trier of fact to find guilt beyond a reasonable doubt. (People
v. Rivera (2019) 7 Cal.5th 306, 323–324 . . . .) ‘“The standard of
review is the same in cases in which the prosecution relies
mainly on circumstantial evidence.”’ (Id. at p. 324.) [¶] We
review the sufficiency of the evidence . . . , presuming ‘“every fact

14
in support of the judgment the trier of fact could have reasonably
deduced from the evidence.”’ (People v. Rivera, supra, 7 Cal.5th
at p. 331.) If the finder of fact’s determination is supported,
whether the prosecutor relied upon direct or circumstantial
evidence, we have held that reversal is not warranted, even
where ‘“the circumstances might also reasonably be reconciled
with a contrary finding.”’ (Ibid.)” (People v. Vargas (2020) 9
Cal.5th 793, 820.)

2. Analysis

As explained in detail above, the video and corroborating
evidence showing that defendant was the person who killed the
victim was more than sufficient to support the conviction. First,
the video evidence showed that from the evening of December 28,
2017, to the morning of December 29, 2017, only one person
walked between the cameras located to the east and west of
Fernando’s, where the victim was found, carrying something that
could inflict the blunt force trauma to the victim’s head. The
footage showed that at 3:35 a.m., that person walked toward the
victim carrying a distinctive bag in his left hand and a
cinderblock on his right shoulder. The suspect then put down his
bag and used both hands to hold the cinder block as he walked
toward where the victim was found. Thirty-eight seconds later,
the same suspect reappeared in the video, while still carrying the
cinder block. The police then recovered a cinder block from a
location that corresponded with footage showing the movements
of the suspect after the murder. That cinder block was consistent
with the weapon that had caused the wound to the victim’s head
and contained black fuzz on a corner that corresponded with a

15
black hoodie that the victim was wearing over his head after the
murder.
In addition, the uncharged crimes evidence showed that,
only a few years prior, defendant engaged in two very similar
violent and unprovoked assaults on unarmed victims using a
large piece of cement and causing injury to both of them. This
additional evidence corroborated the other circumstantial
evidence and bolstered the inference that, on the morning in
question, the suspect in the video was acting in a manner similar
to defendant’s actions during the prior assaults.
Considered in its entirety, the evidence against defendant
amply supported a finding that the suspect depicted on the video
from Carmen Creations was the person who had used a concrete
cinder block to fracture the victim’s skull while he slept and kill
him.
The evidence also sufficiently established that defendant
was the suspect depicted in the Carmen Creations videos.
Defendant’s facial features were consistent with the video from
Carmen Creations. Moreover, at the time of his arrest, defendant
was wearing the same distinctive four-pocket jacket over a zip-up
hoodie, soiled jeans, and Nike shoes with the same heel reflectors
that the suspect in the video wore. He also carried a beanie with
a distinctive tag that looked like the one shown on the video.
Finally, he was carrying a distinctive bag with a “C” logo and
straps that looked like the one the suspect was carrying on the
night of the murder. Substantial evidence therefore supported
the jury’s finding that defendant was the person who committed
the murder.

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C. Ineffective Assistance of Counsel

Defendant also contends that Officer Heistermann’s
testimony that defendant was the suspect depicted in the videos
was inadmissible because (1) he was not familiar with
defendant’s appearance before the time of his arrest; and (2) it
was unnecessary to assist the jury in determining whether the
suspect in the videos was defendant. According to defendant, his
counsel therefore rendered ineffective assistance by failing to
object to the testimony and to request a jury instruction, such as
CALCRIM No. 333, on opinion testimony from lay witnesses.
To establish ineffective assistance of counsel, “the
defendant must first show counsel’s performance was deficient, in
that it fell below an objective standard of reasonableness under
prevailing professional norms. Second, the defendant must show
resulting prejudice, i.e., a reasonable probability that, but for
counsel’s deficient performance, the outcome of the proceeding
would have been different. . . . On direct appeal, a conviction will
be reversed for ineffective assistance only if (1) the record
affirmatively discloses counsel had no rational tactical purpose
for the challenged act or omission, (2) counsel was asked for a
reason and failed to provide one, or (3) there simply could be no
satisfactory explanation. All other claims of ineffective
assistance are more appropriately resolved in a habeas corpus
proceeding. [Citations.]” (People v. Mai (2013) 57 Cal.4th 986,
1009 (Mai).)
“A lay witness may offer opinion testimony if it is rationally
based on the witness’s perception and helpful to a clear
understanding of the witness’s testimony. (Evid. Code, § 800.)
‘[T]he identity of a person is a proper subject of nonexpert opinion

17
. . . .’ (People v. Perry (1976) 60 Cal.App.3d 608, 612 . . . ; accord,
People v. Mixon [(1982)] 129 Cal.App.3d [118,] 127 . . . .) [¶]
Court of Appeal decisions have long upheld admission of
testimony identifying defendants in surveillance footage or
photographs.” (People v. Leon (2015) 61 Cal.4th 569, 601 (Leon).)
We disagree with defendant’s contention that Officer
Heistermann’s testimony that he immediately recognized
defendant as the suspect was inadmissible. The fact that Officer
Heistermann did not have contact with defendant before
defendant’s arrest did not, on its own, render his identification
inadmissible. (Leon, supra, 61 Cal.4th at p. 601.) We also
disagree with defendant’s assertion that the officer’s
identification was unnecessary because the jury could make its
own determination of whether the suspect in the video was
defendant. Although the jurors viewed the video evidence
themselves, Detective Vander Lee testified that, at the time of
trial, defendant’s hair was shorter and he had gained 20 pounds,
which suggested that defendant’s appearance had changed since
the time of his arrest. Thus, Officer Heistermann’s testimony,
which was based on his relevant personal knowledge of
defendant’s appearance shortly after the murder, could have
aided the jury in making its determination of whether the
suspect shown in the video evidence was defendant. Counsel
therefore did not act unreasonably in failing to object to the
testimony.
We also conclude that defense counsel was not ineffective in
failing to request a jury instruction such as CALCRIM No. 333,
which advised the jury that it could disregard all or any part of
any opinion it found unbelievable, unreasonable, or unsupported
by the evidence. Counsel may have reasonably concluded that

18
the instruction was unnecessary in light of the trial court’s
delivery of other instructions on the evaluation of witness
testimony, such as CALCRIM No. 226, which advised, among
other things, that, “In evaluating a witness’s testimony, you may
consider anything that reasonably tends to prove or disprove the
truth or accuracy of that testimony.” That instruction then
proceeded to list numerous factors that the jurors could consider
in evaluating witness testimony, including the witness’s ability to
perceive the matters about which he or she testified, the
witness’s demeanor, and the reasonableness of the testimony in
light of all the other evidence.

D. Evidence of Victim’s Character

Defendant contends that the trial court abused its
discretion when it allowed three witnesses to testify about the
victim’s good character, including testimony that: the victim
came from a good family that provided him access to a trust fund;
the victim was nice and kind; and the victim was polite,
respectful, and humble. According to defendant, that testimony
was irrelevant to the sole issue in the case—the killer’s identity—
and was otherwise highly prejudicial.

1. Background

Outside the presence of the jury, defense counsel objected
to the introduction of a photo of the victim taken when he was
younger and not living on the streets, arguing that the photo was
more prejudicial than probative under Evidence Code section 352.
When the trial court indicated its agreement with defense

19
counsel, the prosecutor explained that she intended to introduce
two photos of the victim during his father’s testimony, the
younger photo and one taken more recently while the victim was
living on the streets. According to the prosecutor, the victim’s
father remembered him as he looked in the younger photo and,
although he recognized his son in the more recent photo, that was
not how he remembered him.
In response, defense counsel objected to “the whole line of
testimony,” explaining that, to the extent the photos and the
father’s testimony were relevant to identification, they were more
prejudicial than probative on that issue. The prosecutor
responded that the father’s testimony was necessary to show how
and why the victim was found with cash, a credit card, and an
iPod device and also to show that “it wasn’t a robbery.” The trial
court agreed that the father’s testimony was admissible to show
that the victim was lawfully in possession of the cash, credit card,
and iPod, but ruled that the younger photo of the victim was not
admissible. At trial, the victim’s father testified about the
victim’s background, as described above.
Nava, in response to a question about how long she had
known the victim, testified that she had known him for three
years, and then volunteered that he was a “[n]ice person. He
used to come and wait for us to close the stores so that he could
put his carton [down and] go to sleep. He never, never talked to
nobody. But he was very polite. We offered him food or anything
and he said no.” The trial court sustained defendant’s objection
that the answer was nonresponsive. Defendant did not move to
strike the testimony. Later in her testimony, Nava was asked to
describe the victim. She responded that “[h]e was very nice.
[A v]ery kind person.” Defendant did not object to the question or

20
move to strike the answer; and when the prosecutor clarified that
she was asking for a physical description of the victim, Nava
described only his appearance.
The prosecutor asked Officer Heistermann to describe the
victim based on his multiple interactions with him on the streets.
He responded that he first had contact with the victim when the
officer arrested him on a warrant and then saw the victim on
subsequent occasions “just in passing.” The officer described the
victim as “Incredibly polite. Respectful.” Defendant objected on
relevance grounds, but the trial court overruled the objection.
When the prosecutor advised the officer that he could continue
with his answer, he stated, “Polite. Respectful. Quiet. Humble.”
Later in his testimony, the officer was asked if he inquired about
the victim’s well-being when they spoke on the street, and the
officer replied, “I would try. He was very quiet and humble and
didn’t like too much attention, but I always made a point to ask
though.”

2. Standard of Review

A trial court’s rulings on the admission of evidence over
relevance and Evidence Code section 352 objections are reviewed
for abuse of discretion. (People v. Scott (2011) 52 Cal.4th 452, 490
[“The trial court has broad latitude in determining the relevance
of evidence. [Citations.] We review such determinations for
abuse of discretion”]; Chhoun, supra, 11 Cal.5th at p. 26 [rulings
under Evidence Code section 352 are reviewed for abuse of
discretion].)
Pursuant to Evidence Code section 353, a judgment will not
be reversed based on the erroneous admission of evidence unless

21
an objection or motion to strike the evidence is “timely made and
so stated as to make clear the specific ground of the objection or
motion,” and the reviewing court concludes “the error or errors
complained of resulted in a miscarriage of justice.” “In
accordance with this statute, [our Supreme Court has]
consistently held that the defendant’s failure to make a timely
and specific objection on the ground asserted on appeal makes
that ground not cognizable. [Citations.] [¶] . . . [¶] The
objection requirement is necessary in criminal cases because a
contrary rule would deprive the People of the opportunity to cure
the defect at trial and would permit the defendant to gamble on
an acquittal at his trial secure in the knowledge that a conviction
would be reversed on appeal. [Citation.] The reason for the
requirement is manifest: a specifically grounded objection to a
defined body of evidence serves to prevent error. It allows the
trial judge to consider excluding the evidence or limiting its
admission to avoid possible prejudice. It also allows the
proponent of the evidence to lay additional foundation, modify the
offer of proof, or take other steps designed to minimize the
prospect of reversal.” (People v. Partida (2005) 37 Cal.4th 428,
433–434 (Partida), internal quotation marks omitted.)

3. Analysis

We conclude that defendant fairly preserved his objection
to Officer Heistermann’s testimony that the victim was polite and
respectful by objecting on relevance grounds. We will also
assume that defendant’s objection to the father’s testimony
during the hearing on the admissibility of a photograph of the
victim was sufficient to preserve his argument on appeal. We

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thus consider whether the trial court prejudicially erred in
admitting their testimony.
During his brief testimony, the father explained that the
victim had lived on the streets of Los Angeles since 2008, but that
he had a modest monthly income from a trust account
administered by his sister. That testimony was elicited to show
that, despite his apparent homeless circumstance, as later
described by Nava, the victim had the ability to pay for the
personal belongings that were found in his backpack. That fact,
in turn, had a tendency in reason to rebut any inference that
defendant was the victim of a robbery and therefore supported
inferentially the other evidence that defendant intended to kill
the victim. Thus, the trial court did not abuse its discretion in
admitting the father’s testimony.
We will assume without deciding that the trial court erred
in admitting Officer Heistermann’s testimony, but nonetheless
find any such error harmless. (People v. Watson (1956) 46 Cal.2d
818, 836 (Watson).) Officer Heistermann’s testimony about the
victim was brief. And, contrary to defendant’s contention,
evidence that the victim was polite and respectful to a police
officer did not necessarily suggest that he was a “nice guy.” Nor
was the testimony unduly prejudicial. The trial court instructed
the jury, “Do not let bias, sympathy, prejudice, or public opinion
influence your decision. Bias includes, but is not limited to, bias
for or against the . . . alleged victim . . . .” “We presume the jury
followed the court’s instruction.” (People v. Martinez (2010) 47
Cal.4th 911, 957.) On this record, it is not reasonably probable
that a result more favorable to defendant would have been
reached had the court excluded the testimony. (Watson, supra,
46 Cal.2d at p. 836.)

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 As to Nava’s testimony, the only objection defendant made
during the portions of the testimony about which he now
complains was to her testimony that defendant was a nice person
and very polite. But he objected only that such testimony was
“nonresponsive” and the trial court sustained the objection.
Defendant did not make a timely motion to strike the testimony.
He therefore has forfeited his challenges to Nava’s testimony on
appeal. (Partida, supra, 37 Cal.4th at p. 435; see also People v.
Abel (2012) 53 Cal.4th 891, 924.)

E. Restitution Fine and Court Operations Assessment

Finally, defendant contends that the trial court violated his
due process and equal protection rights and the prohibition
against excessive fines by imposing a $300 restitution fine, a $40
court operations assessment, and a $30 criminal conviction
assessment without first determining defendant’s ability to pay.
He also argues that, if he forfeited his claim by failing to object in
the trial court, then he received ineffective assistance of counsel.
In People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas),
the court held, “[D]ue process of law requires the trial court to
conduct an ability to pay hearing and ascertain a defendant’s
present ability to pay before it imposes court facilities and court
operations assessments under . . . section 1465.8 and
Government Code section 70373.” (Id. at p. 1164.) It further held
that the execution of a restitution fine under section 1202.4
“must be stayed unless and until the trial court holds an ability
to pay hearing and concludes that the defendant has the present
ability to pay the restitution fine.” (Ibid.)

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 By failing to object to the imposition of fines and fees at
sentencing, defendant has forfeited his claim on appeal. (In re
Sheena K. (2007) 40 Cal.4th 875, 880; see, e.g., People v. Aguilar
(2015) 60 Cal.4th 862, 864.) Moreover, we find no ineffective
assistance of counsel. The record is silent as to trial counsel’s
reasons, if any, for failing to object to the trial court’s imposition
of the assessments and fine without a hearing to determine
defendant’s ability to pay. There is at least one satisfactory
explanation for counsel’s failure to request an ability to pay
hearing: Counsel may have concluded that based on his lengthy
term in custody, defendant was able to pay his assessments and
fine. (People v. Castellano (2019) 33 Cal.App.5th 485, 490
[relevant factors regarding ability to pay “may include, but are
not limited to, potential prison pay during the period of
incarceration to be served by the defendant”], fn. omitted; People
v. Jones (2019) 36 Cal.App.5th 1028, 1035 [“[w]ages in California
prisons currently range from $12 to $56 a month”].) Under these
circumstances, defendant cannot prevail on his appellate claim of
ineffective assistance of counsel. (Mai, supra, 57 Cal.4th at
p. 1009.)

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 V. DISPOSITION

The judgment of conviction is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

RUBIN, P. J.

BAKER, J.

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