People v. Moten CA4/2

Filed 12/2/21 P. v. Moten CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E074152

v. (Super. Ct. No. FSB18000448)

JOSEPH MOTEN, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson,

Judge. Affirmed.

Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison V.

Acosta and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and

Respondent.

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 I.

INTRODUCTION

Shortly after defendant Joseph Moten’s brother, T.M., told defendant to move out,

defendant fired a gun at T.M. but missed. T.M. passed out and when he regained

consciousness, defendant pointed his gun at T.M. and threatened to kill him. When

defendant’s brother-in-law, F.G., who was also living with T.M., approached defendant

to find out what was going on, defendant pointed his gun at him as well.

A jury convicted defendant of attempted murder (Pen. Code, §§ 664, 187, subd.
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(a) ; count 1), making criminal threats (§ 422, subd. (a); count 2), and assault with a

firearm (§ 245, subd. (b); counts 3 & 4). The jury also found true allegations that, as to

count 1, defendant personally used a firearm (§ 12022.53, subd. (b)) and intentionally

discharged a firearm (§ 12022.53, subd. (c)). The jury found true as to counts 2 through

4 that defendant personally used a firearm (§ 12022.5, subd. (a)). In a bifurcated trial, the

jury found defendant had four prior serious felony convictions (§ 667, subd. (a)(1)) and

four strike priors (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), which the court

dismissed for sentencing purposes.

1
Unless otherwise noted, all statutory references are to the Penal Code.

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 Defendant contends the prosecutor committed numerous instances of prejudicial
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prosecutorial miscondcut when questioning defendant and during closing argument.

Defendant also argues the trial court violated his constitutional rights by failing to

conduct an ability to pay hearing before imposing a $3,000 restitution fine. In addition,

defendant contends the trial court erred in not considering reducing his 20-year firearm

enhancement on count 1 to a lesser enhancement under the same section. We reject

defendant’s contentions and affirm the judgment.

II.

FACTS

On January 31, 2018, defendant, his wife, and his teenage son, J.M., had been

living with defendant’s brother, T.M., for about 16 months. Defendant’s brother-in-law,

F.G., and his teenage daughter also lived with T.M.

A. TM’s Testimony

T.M. testified that living with defendant was unpleasant. They frequently argued

about house rules, including cleaning and paying bills. During the evening of January 31,

2018, at 7:00 p.m., T.M. told defendant that he and his family needed to move out

because their living arrangement was not working out. Defendant calmly said “Okay.”

T.M. went to the living room and sat on the couch.

2
“We observe that the term prosecutorial ‘misconduct’ is somewhat of a
misnomer to the extent that it suggests a prosecutor must act with a culpable state of
mind. A more apt description of the transgression is prosecutorial error.” (People v. Hill
(1998) 17 Cal.4th 800, 823, fn. 1 (Hill).)

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 About five minutes later, defendant told his wife and son they were moving out.

He told them to pack up and leave. Defendant’s wife and son left while defendant was

sitting on the living room couch and T.M. was sitting across from him on the love-seat.

Seconds later defendant pulled out a gun and fired it at T.M. but missed him.

T.M. suffered from cancer, Alzheimer’s, and a heart condition that caused him to

have frequent fainting spells. As a result, when defendant fired the gun at him, T.M.

fainted and fell on the floor. When he regained consciousness, T.M. could see F.G. and

his daughter in their bedroom down the hall. Defendant was pointing a gun at them.

T.M. heard defendant say to them, “you guys trying to plot against me, trying to get me

out of here.” Defendant also heard defendant say, “‘You guys going to have to bury two

of us.’”

While T.M. was still on the ground starting to get up, defendant kicked his head

and said, “‘I didn’t shoot you.’” When T.M. stood up, defendant held the gun to T.M.’s

head and under his neck, and said, “‘We going to have two funerals, yours and mine. I’m

going to kill you and I’m going to kill myself.’” While defendant continued to hold the

gun to T.M.’s head, they argued about house rules and T.M. complained about defendant

taking his food.

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 At gun-point and while threatening to kill T.M., defendant escorted T.M. outside

the apartment. After about 15 seconds, defendant walked away and T.M. walked back

into his apartment.

B. F.G.’s Testimony

Defendant’s brother-in-law, F.G., testified that during the evening of the incident,

he and his daughter were in their room watching television when he heard arguing in the

living room. He heard defendant say, “[Y]ou think I’m playing,” and then heard a

gunshot. F.G. left his bedroom and went into the living room. F.G. saw defendant sitting

on the love seat and T.M. lying on the floor. T.M. appeared to be unconscious.

Defendant pointed a gun at F.G. and said, “you want some too?” F.G. put his

hands up, said he did not have anything to do with the argument, returned to his room and

told his daughter they were leaving. Defendant entered F.G.’s bedroom holding a gun,

and told F.G. he was going to have to bury two brothers. Defendant said they could leave

because he did not want to scare F.G.’s daughter. As F.G. and his daughter were leaving,

T.M. was still lying on the floor. When outside, F.G. noticed the police had arrived.

C. JM’s Testimony

Defendant’s son, J.M., testified that at 7:00 p.m., his father and T.M. began

arguing about their living situation. T.M. went into J.M.’s bedroom, which J.M. shared

with his mother and defendant. T.M. told defendant that he and his family had to move

out because T.M. was tired of defendant disrespecting his home and failing to follow his

rules. When J.M. went to his room with his mother to pack, they found defendant in the

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room putting a silver gun in his pocket. J.M. told defendant that whatever he planned to

do with the gun was not worth it. Defendant said, “‘I love you,’” and left the room. By

7:45 p.m., J.M. had finished packing his belongings.

When J.M. and his mother left the apartment, T.M. was sitting on the couch and

defendant was sitting on the love seat across from T.M. Before J.M. reached his car, he

heard a gunshot and called 911. During the recorded 911 call played for the jury, J.M.

reported that his father had a gun and he had heard a gunshot but did not see it happen.

J.M. told the dispatcher he believed defendant had shot his uncle, T.M.

D. Deputies’ Testimony

Deputy Hernandez testified that when he and his partner arrived at the crime

scene, they saw defendant outside. After Hernandez twice ordered him to stop and show

his hands, defendant tossed his gun and raised his hands. The deputies detained

defendant and recovered the gun, which had a chambered round and was functioning

properly.

Deputy Reyes testified he arrived at the scene at 7:51 p.m. He was the lead

investigator on the case. He took T.M.’s recorded statement. T.M. told Deputy Reyes

the bullet defendant fired at him traveled through the couch cushion where he was seated.

Deputy Reyes inspected the cushion and found a hole in the sofa backrest. The bullet

was recovered from inside the couch cushion.

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 E. Defendant’s Testimony

Defendant testified he and T.M. had frequently argued about their living situation,

such as chores and bills. They had argued earlier that day, around 3:00 p.m. Later, at

6:00 p.m., T.M. told defendant he wanted to talk. Defendant joined T.M. in the living

room. T.M. said their living arrangement was not working out and he wanted defendant

and his family to move out immediately. Defendant told T.M. he had just paid T.M. rent

and extra money for the month. Defendant asked T.M. to return the money but T.M.

refused. Five minutes later defendant told his son and wife they had to move out and to

pack their belongings.

While defendant, his wife, and J.M. were packing in their bedroom, defendant

pulled his gun out from under the bed mattress and set it on the bed. His wife asked what

the gun was for and defendant said he could not leave it at the apartment. Defendant

asked his wife and J.M. to leave and said he would join them shortly, after he took care of

something. After they left, he placed the gun in a bundle of clothes because his gun did

not fit in his pocket. Defendant walked out of his bedroom carrying the gun among the

clothes.

When T.M. heard defendant come out of his bedroom, T.M. got up off the couch.

As defendant was about to pass the coffee table in the living room, T.M. grabbed

defendant by the arm and said he had to talk to him. The gun fell from the bundle of

clothes defendant was carrying and hit the coffee table. The gun discharged when it hit

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the table, bounced off the table, and fell on the floor in front of the coffee table. T.M.

said, “‘oof,’” passed out, and fell to the ground.

Defendant checked T.M. to see if he had been hit by a bullet and concluded he had

not because there was no blood. Defendant picked up the gun and walked into F.G.’s

room while holding the gun in his hand. Defendant denied pointing the gun at F.G. or

threatening him. Defendant told F.G. that he and his daughter should leave.

After F.G. and his daughter left, defendant woke up T.M. by splashing water on

his face and shaking him. Defendant helped T.M. to his feet. Defendant said to T.M.,

“look at what you did.” “You caused this gun to go off.” Defendant told T.M. he was

leaving in a few minutes because living with T.M. was not working out. T.M. started

arguing again with defendant. Defendant said he was leaving and would return the next

day to get the rest of his family’s belongings. Defendant walked out the door. The police

apprehended defendant outside. Defendant denied trying to kill T.M. or scare him with a

gun. He also denied pointing a gun at FG.

III.

PROSECUTOR MISCONDUCT

Defendant contends the prosecutor committed multiple instances of prejudicial

misconduct which deprived defendant of a fair trial. Over defense counsel’s objections,

the prosecutor asked defendant to diagram the room where the shooting occurred and

location of objects and people in the living room, including furniture, the gun, defendant,

and T.M. The prosecutor also asked defendant to draw lines on the diagram showing the

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trajectory of the bullet fired at T.M. and estimate the dimensions of the room and

distances between objects in the room. When diagraming the crime scene and the

location of items, defendant stated several times that he was not sure where things were

located or distances. During closing argument, defense counsel argued defendant’s

testimony provided facts supporting his conviction.

The court sustained some of defense counsel’s objections and admonished the

prosecutor to refrain from asking questions requiring ballistic expertise, such as asking

for specific technical information about the trajectory of the bullet. The court, however,

permitted the prosecutor to ask defendant questions regarding the general direction the

bullet travelled. The court stated that the prosecutor was permitted to ask defendant

questions “as to basic issues such as direction without getting into specifics as to

ballistics or specific trajectory.”

A. Challenged Questions and Closing Argument

Defendant argues the prosecutor committed prejudicial error by asking defendant

the following questions and requests to diagram the crime scene by drawing on

photographic exhibits.

The prosecutor asked defendant to describe and diagram the position of the gun

when it fell on the coffee table and then to the floor. Defense counsel objected to the

prosecutor asking defendant to mark on a photographic exhibit where the gun was after

falling on the floor. Counsel argued defendant was not certain of anything and therefore

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could not mark anything on the exhibit with specificity. The court permitted defendant to

mark the approximate area.

The prosecutor asked defendant to describe and diagram T.M.’s location on the

floor after he fainted and where the gun was located in relation to his body on the floor.

The prosecutor also asked defendant to mark photographic exhibits, showing the location

of the bullet hole on the couch cushion. Defense counsel objected to the prosecutor

asking defendant to draw the bullet hole in the cushion on the grounds the prosecutor was

requesting hearsay, conjecture, and facts not within defendant’s personal knowledge.

The court sustained the objection. The court also sustained defense counsel’s objection

when the prosecutor asked defendant to draw on the crime scene photograph a line

between where the gun first dropped to the bullet hole.

After defendant responded to questions demonstrating defendant’s general

knowledge of guns, the prosecutor asked defendant if, when a gun is fired, the bullet’s

trajectory is straight. The court sustained defense counsel’s objection when the

prosecutor asked defendant if, when the gun was dropped and the gun fired, the bullet

trajectory was straight from the dropped gun to the bullet hole in the couch cushion.

The prosecutor asked defendant if he agreed that the bullet trajectory was straight

from the dropped gun to the bullet hole in the couch cushion. Defense counsel objected

on the grounds the question called for speculation, improper lay opinion, and improper

expert testimony. The court sustained defendant’s objection “as to trajectory.” Therefore

defendant did not respond to the question.

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 The prosecutor asked defendant to state the direction of the bullet’s trajectory if

the gun had been dropped and then fired with the barrel pointing at the couch. Without

directly answering the question, defendant responded that the bullet could have hit

something in or behind the couch that changed the trajectory of the bullet.

The prosecutor asked defendant to draw lines from the edges of the coffee table to

the bullet hole in the couch and then to the wall behind the couch. Defense counsel

objected on the ground the prosecutor was “testifying” when asking defendant to draw a

diagram. The court sustained the objection.

The prosecutor asked defendant to measure with a ruler a CD shown in a crime

scene photograph and then estimate the dimensions of the coffee able by estimating how

many CDs would fit on the table in the photograph. The prosecutor also asked defendant

to measure the distance between an ashtray on the table and the sofa, and estimate the

distance between the edge of the coffee table and a couch seat cushion.

After defendant estimated the distance of the coffee table from the couch cushion

was four feet, defense counsel objected that the prosecutor was requiring defendant to re-

create the living room crime scene by using inaccurate measurements of the height of the

coffee table in relation to the couch. Defense counsel asserted that the prosecutor should

have provided appropriate measurements instead of relying on speculative measurements

provided by defendant who does not have the expertise or ability to testify to such

measurements. Defense counsel stated that the re-creation of the crime scene lacked

foundation and was inaccurately represented. The court responded that the prosecutor

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would be permitted to proceed with questioning defendant, but if he asked defendant for

exact locations or an exact re-creation of the crime scene, the court would sustain

objections to questions requesting any specifics. However, the court said it would allow

questions as to “generalities.”

After defendant’s testimony, the defense rested and the court summarized for the

record previous sidebar conferences, which included one concerning defense counsel’s

objection to the prosecutor’s line of questioning, which included showing the jury one of

the couch cushions and taking measurements. Defense counsel argued the prosecutor

was improperly presenting a reenactment of the crime scene. The court stated it had

overruled the objection with an admonishment that only general questions would be

permitted when showing the jury the cushion. The court noted a little later there was

another sidebar conference in which the court admonished the prosecutor to stop his line

of questioning which bordered on improper reenactment of the crime scene.

In response to the court’s summary of the sidebar conferences, defense counsel

argued that the prosecutor had improperly required defendant to diagram the crime scene.

Defense counsel acknowledged it was not improper for a witness to be asked to draw

objects or mark exhibits but in the instant case, the prosecutor knowingly required

defendant to draw an inaccurate diagram based on testimony that differed from testimony

as to what actually existed at the time of the crime. Defense counsel requested the court

to dismiss the case because the prosecutor knew the diagram he requested defendant to

draw was false.

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 The court denied defense counsel’s mistrial motion on the ground there was no

prosecutorial misconduct. The court explained that the matter had been raised before and

the court put a stop to the prosecution’s questioning that came close to an improper scene

reenactment. The court noted regarding the diagrams that defendant repeatedly stated

that he was only giving his best estimate and was not sure of the measurements and

diagram markings. The court added that, because there was no expert testimony provided

regarding defendant’s testimony, counsel could not include any “ballistic-type arguments

unless it’s general and it’s Counsel’s opinion. [¶] . . . [¶] . . . I want to make very clear

there was no expert testimony today with respect to any ballistics or angles. Everything

else is fair game. Again, everything is open to argument as long as it’s based upon

evidence that was presented.”

Defendant also argues the prosecutor committed misconduct during closing

argument when the prosecutor referred to the diagrams and measurements defendant

provided during his testimony. In explaining the difference between direct and

circumstantial evidence, the prosecutor argued that the couch cushion with the bullet hole

was direct evidence showing the bullet entered from front to back of the cushion. The

prosecutor added that the cushion evidence showed that defendant fired “in that general

direction” toward the cushion. Defense counsel objected on the grounds the prosecutor

misstated the law and facts, and it was improper argument.

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 Noting the objection, the court admonished the jury that the prosecutor’s

statements constituted argument in which counsel was interpreting the evidence as he

viewed it. The court told the jury it would instruct the jury on the law, which the jury

was required to follow. The court then permitted the prosecutor to continue arguing.

Upon completion of closing argument, defense counsel again moved to dismiss the case

based on his previously asserted prosecutorial misconduct objections, which counsel

acknowledged the court had already ruled on. The court noted defense counsel’s

objection would be considered a running objection and found there was no prosecutorial

misconduct. The court therefore denied the motion for mistrial.

B. Forfeiture

The People argue defendant forfeited his objection to prosecutorial misconduct

because defense counsel objected to some but not all of the instances of misconduct

raised on appeal, and because counsel only objected to questioning regarding crime scene

measurements. The People also argue counsel did not request the trial court to admonish

the jury regarding the prosecutor’s improper questions or defendant’s testimony.

“‘To preserve for appeal a claim of prosecutorial misconduct, the defense must

make a timely objection at trial and request an admonition; otherwise, the point is

reviewable only if an admonition would not have cured the harm caused by the

misconduct.’ [Citations.]” (People v. Earp (1999) 20 Cal.4th 826, 858 (Earp); see

People v. Geier (2007) 41 Cal.4th 555, 609; People v. Partida (2005) 37 Cal.4th 428,

431; Evid. Code, § 353, subd. (a).)

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 We conclude there was no forfeiture because defense counsel repeatedly objected

to prosecutorial misconduct, including when the prosecutor asked defendant to diagram

the crime scene and provide estimates, during closing argument, and by twice moving for

mistrial based on prosecutorial misconduct. In addition, the trial court admonished the

jury several times and noted that the trial court had considered defense counsel’s

prosecutorial misconduct objections as a running objection. We therefore will address

defendant’s prosecutorial misconduct objections on the merits.

C. Prosecutorial Misconduct

The applicable federal and state standards regarding prosecutorial misconduct are

well established. A prosecutor’s improper remarks can infect the trial with unfairness as

to make the resulting conviction a denial of due process. (People v. Earp, supra, 20

Cal.4th at p. 858.) Conduct by a prosecutor that does not render a criminal trial

fundamentally unfair under federal standards is prosecutorial misconduct under state law

only if it involves “‘“‘“the use of deceptive or reprehensible methods to attempt to

persuade either the court or the jury.”’”’” [Citations.] (Hill, supra, 17 Cal.4th at p. 819.)

“We have held that a prosecutor commits misconduct by asking ‘a witness a

question that implies a fact harmful to a defendant unless the prosecutor has reasonable

grounds to anticipate an answer confirming the implied fact or is prepared to prove the

fact by other means.’ [Citation.] For a prosecutor’s question implying facts harmful to

the defendant to come within this form of misconduct, however, the question must put

before the jury information that falls outside the evidence and that, but for the improper

15
question, the jury would not have otherwise heard. (See People v. Warren (1988) 45

Cal.3d 471, 481 [describing the gist of the misconduct as implying in the question ‘facts

[the prosecutor] could not prove’].) Moreover, if ‘the prosecutor is not asked to justify

the question, a reviewing court is rarely able to determine whether this form of

misconduct has occurred.’ [Citation.]” (Earp, supra, 20 Cal.4th at pp. 859-860.) There

need not be a showing of bad faith or malice to establish the existence of misconduct.

(People v. Bolton (1979) 23 Cal.3d 208, 213-214.)

The scope of permissible prosecutorial argument is broad. “‘“‘[A] prosecutor is

given wide latitude during argument. The argument may be vigorous as long as it

amounts to fair comment on the evidence, which can include reasonable inferences, or

deductions to be drawn therefrom. [Citations.] It is also clear that counsel during

summation may state matters not in evidence, but which are common knowledge or are

illustrations drawn from common experience, history or literature.’ [Citation.] ‘A

prosecutor may “vigorously argue his case.”’”’” (Hill, supra, 17 Cal.4th at p. 819.)

1. Misconduct During Interrogation of Defendant

We discern no prejudicial misconduct by the prosecutor when interrogating

defendant. In every instance in which defendant argues there was prejudicial misconduct,

the prosecutor’s questions were supported by the evidence before the jury or inferences

fairly drawn from that evidence. While the prosecution could have provided evidence

establishing precise measurements and testimony by a ballistic expert, there was no

misconduct in eliciting testimony from defendant as to estimated measurements,

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drawings, and descriptions of the crime scene. It was made clear that the information

was imprecise. (Earp, supra, 20 Cal.4th at p. 860.)

Throughout defendant’s testimony, he repeatedly stated that when providing

estimates and marking exhibits, he was uncertain as to the information he was providing.

He said he was unsure of the trajectory of the bullet, the distances between furniture and

other objects in the living room, and the location of the gun when it discharged.

Defendant frequently stated he disagreed with the prosecutor’s statements and reluctantly

complied with the prosecutor’s requests to draw on the photographic crime scene exhibits

the bullet trajectory and where various items and people were located at the crime scene.

Defendant also repeatedly stated he was not certain of the room measurements, furniture

dimensions, and locations of objects and people in the living room.

The general information and estimates the prosecutor requested defendant to

provide did not require ballistic expertise or precise measurements. Counsel asked

defendant questions demonstrating he had a basic understanding of guns. The prosecutor

then asked defendant questions about his general understanding of the direction a bullet

would travel when fired. Upon defendant acknowledging that a bullet would normally

travel straight out of the gun barrel, the prosecutor requested defendant to draw straight

lines from where the evidence indicated the gun may have discharged according to

defendant’s testimony, to the approximate location of the bullet hole in the couch

cushion. The prosecutor’s questions were within the parameters of the court’s order not

to ask any ballistic questions other than questions requiring generalized information. The

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jury was not misled into concluding otherwise. We conclude the prosecutor’s

interrogation of defendant therefore did not constitute an unfair, egregious pattern of

conduct.

2. Misconduct During Closing Argument

Defendant also has not demonstrated that during closing argument the prosecutor

used deceptive or reprehensible methods to attempt to persuade the jury that defendant

testified to precise facts regarding the living room and furniture dimensions, gun

placement, and bullet trajectory.

Defendant specifically objects to the prosecutor’s following argument made to the

jury: “The People’s case is not relying primarily on circumstantial evidence. The

People’s case is direct evidence. You have direct testimony of what . . . [F.G.] saw and

what [J.M.] saw. That’s all direct evidence. [¶] This seat cushion here . . . is direct

evidence. The direction that this bullet entered from the front into the back is direct

evidence . . . . There is no ‘What’s a reasonable interpretation of it?’ That’s what it is.

That is direct evidence. Direct evidence can prove a fact by itself. This shows that the

defendant fired from right where you were seated at in that general direction.”

Over defense counsel’s objection to this argument, the trial court admonished the

jury: “[A]s I told you before, this is argument by counsel. They are interpreting the

evidence as they see fit. I instructed you on the law. You’re going to receive a copy of

the jury instructions in the jury room. That is the laws that will apply to the case.” The

court then permitted the prosecutor to continue his argument. After the prosecutor

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completed his argument, the court further instructed the jury that it must follow the law as

instructed and, “[i]f you believe that the attorneys’ comments on the law conflict with my

instructions, you must follow my instructions.”

The prosecutor’s argument quoted above was well within the wide latitude given a

prosecutor during closing argument. (Hill, supra, 17 Cal.4th at p. 819.) The prosecutor’s

argument was not deceptive, misleading, or reprehensible. Counsel referred to direct

evidence, which included witness testimony and the bullet hole in the cushion. The

prosecutor’s argument that the direct evidence established the direction and path of the

bullet trajectory was permissible argument amounting to “fair comment on the evidence,

which can include reasonable inferences, or deductions to be drawn therefrom.” (Ibid.)

In addition, the court admonished the jury that it was not bound by counsel’s

comments interpreting the law and facts. The court instructed that the jury alone was

required to determine the facts and apply the law as instructed. Defendant argues the

court’s admonition was insufficient to overcome the prosecutor’s improper questioning of

defendant and closing argument. We disagree. As discussed above, the prosecutor’s

questioning defendant and closing argument did not constitute prosecutorial misconduct.

Even if it did, the court’s admonitions to the jury effectively reduced any possibility such

interrogation and argument would result in the jury improperly deciding the facts and

applying the law as instructed.

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 IV.

ABILITY TO PAY RESTITUTION FINE

At defendant’s sentencing hearing, the court imposed a $3,000 restitution fine

under section 1202.4. The court noted that it was “departing from the Probation request”

of imposing the fine in the amount of $6,400. Defendant argues that the court violated

his constitutional rights by assessing the fine without an ability to pay hearing. He relies

on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Defendant acknowledges

that defense counsel did not object to the restitution fine during sentencing and failed to

request the court to determinate his ability to pay, even though Dueñas had been decided

ten months before his sentencing. Defendant contends that defense counsel “was

ineffective for failing to object to the restitution fine.

The People contend that defendant forfeited this issue, and even if he did not, there

was no Dueñas error. We conclude that defendant forfeited the argument and defendant

has not demonstrated ineffective assistance of counsel (IAC).

A. The Dueñas Decision

Dueñas held that the court violates due process under the federal and state

Constitutions when it imposes court operations and facilities fees without first

determining a convicted defendant’s ability to pay them. (Dueñas, supra, 30 Cal.App.5th

at pp. 1168-1169.) The court in Dueñas further held that, “to avoid serious constitutional

questions” raised by the statutory restitution scheme, the court must stay execution of the

mandatory restitution fine unless the court determines that the defendant has the ability to

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pay it. (Id. at p. 1172.) At the ability-to-pay hearing, the defendant bears the burden of

showing his or her inability to pay, and the court “must consider all relevant factors,”

including “potential prison pay during the period of incarceration to be served by the

defendant.” (People v. Castellano (2019) 33 Cal.App.5th 485, 490-491 [remanding for

an ability to pay hearing]; accord People v. Santos (2019) 38 Cal.App.5th 923, 934 [on

remand, the defendant must show his inability to pay, and the court may consider

potential prison pay]; People v. Kopp (2019) 38 Cal.App.5th 47, 96 (Kopp), review

granted Nov. 13, 2019, S257844 [same].)

Since Dueñas, supra, 30 Cal.App.5th 1157, some courts have criticized Dueñas’s

due process analysis and have declined to follow it. (E.g., People v. Hicks (2019) 40

Cal.App.5th 320, 322, 327-329, review granted Nov. 26, 2019, S258946 [holding that

Dueñas was wrongly decided]; People v. Caceres (2019) 39 Cal.App.5th 917, 928

[declining to apply Dueñas’s “broad holding requiring trial courts in all cases to

determine a defendant’s ability to pay”].) Other courts have held that Dueñas was

wrongly decided under due process principles, and that the Eighth Amendment’s

prohibition against excessive fines provides the proper framework for analyzing an

ability to pay challenge. (E.g., People v. Aviles (2019) 39 Cal.App.5th 1055, 1069-1072;

see also Kopp, supra, 38 Cal.App.5th at pp. 96-97 [applying Dueñas’s due process

analysis to the fees but holding that, on remand, an Eighth Amendment analysis should

apply to the restitution fine, because it is punitive in nature].)

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 The California Supreme Court has granted review of the issues presented by

Dueñas in Kopp, supra, 38 Cal.App.5th at page 47, including whether courts must

“consider a defendant’s ability to pay before imposing or executing fines, fees, and

assessments,” and if so, “which party bears the burden of proof regarding defendant’s

inability to pay.” (Kopp, supra, 38 Cal.App.5th 47.)

B. Forfeiture

The failure to object in the trial court generally forfeits a claim on appeal and this

principle is applicable to constitutional claims. (People v. McCullough (2013) 56 Cal.4th

589, 593; In re Sheena K. (2007) 40 Cal.4th 875, 880-881.) “‘[D]iscretion to excuse

forfeiture should be exercised rarely and only in cases presenting an important legal

issue.’” (In re Sheena K., supra, at p. 887, fn. 7.)

In this case, defendant was sentenced on November 19, 2019, which was more

than ten months after the court of appeal issued its decision in Dueñas, supra, 30

Cal.App.5th 1157. Although neither the parties nor the trial court specifically mentioned

the decision, the court elected to reduce the amount of the restitution fine recommended

in the probation report, thus indicating awareness of the need to consider under Dueñas

defendant’s ability to pay. Despite having the benefit of both Dueñas and a statutory

right to object under section 1202.4, subdivisions (c) and (d), defendant did not object to

the $3,000 restitution fine.

22
 Even before Dueñas, supra, 30 Cal.App.5th 1157, section 1202.4 permitted the

court to consider a defendant’s inability to pay a restitution fine exceeding the statutory

minimum fine. (People v. Jones (2019) 36 Cal.App.5th 1028, 1032.) The statute

mandates that the court impose a restitution fine “unless it finds compelling and

extraordinary reasons for not doing so,” and “[a] defendant’s inability to pay shall not be

considered a compelling and extraordinary reason.” (§ 1202.4, subd. (c), italics added.)

However, the court may consider the defendant’s inability to pay “in increasing the

amount of the restitution fine in excess of the minimum fine.” (Ibid., italics omitted.)

At the time of defendant’s charged crimes and sentencing, the law called for the

court to consider a defendant’s ability to pay in setting a restitution fine, and defendant

could have objected at the time if he believed inadequate consideration was being given

to this factor. (People v. Nelson (2011) 51 Cal.4th 198, 227; People v. Gamache (2010)

48 Cal.4th 347, 409.) Defendant did not object to the $3,000 fine amount, and did not

request an ability to pay hearing. We therefore conclude defendant forfeited his objection

to imposition of the $3,000 restitution fine by not objecting. (People v. Nelson, supra, at

p. 227.)

C. IAC

Defendant alternatively argues, in the event we find defendant forfeited his

objection to the restitution fine, that counsel rendered IAC by not requesting an ability to

pay hearing and not objecting to the restitution fine based on inability to pay the fine. We

conclude defendant has not met his burden of demonstrating IAC.

23
 “‘[A] defendant claiming a violation of the federal constitutional right to effective

assistance of counsel must satisfy a two-pronged showing: that counsel’s performance

was deficient, and that the defendant was prejudiced, that is, there is a reasonable

probability the outcome would have been different were it not for the deficient

performance.’” (People v. Woodruff (2018) 5 Cal.5th 697, 736, quoting People v.

Alexander (2010) 49 Cal.4th 846, 888; accord, Strickland v. Washington (1984) 466 U.S.

668, 687; People v. Mickel (2016) 2 Cal.5th 181, 198.) To establish deficient

performance, defendant must show that counsel’s performance “fell below an objective

standard of reasonableness under prevailing professional norms.” (People v. Mai (2013)

57 Cal.4th 986, 1009; accord, Strickland v. Washington, supra, at pp. 687-688; People v.

Mickel, supra, at p. 198.) “[W]e do not second-guess trial counsel’s reasonable tactical

decisions.” (People v. Lucas (2014) 60 Cal.4th 153, 278.) “[A] defendant’s burden [is]

‘difficult to carry on direct appeal,’ as 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.” (People v.

Mickel, supra, at p. 198.)

Here, defense counsel could have reasonably determined that it was more

beneficial to defendant to accept the restitution fine amount rather than object and risk

creating a record that might persuade the court that defendant was able to pay a higher

restitution amount or impose additional assessments, fees, and fines. According to the

probation report, defendant had been employed with a construction company during the

24
two-year period preceding his crimes, earning $25 an hour. Although he was 62 years

old at the time of sentencing, he was in good health.

Furthermore, it would have been reasonable for defense counsel to conclude that

objecting to the restitution fine and requesting an ability-to-pay hearing would have been

futile. The sentencing court’s reduction of the restitution fine suggests the trial court had

considered defendant’s ability to pay. “[A]s the trial court was not obligated to make

express findings concerning his ability to pay, the absence of any findings does not

demonstrate it failed to consider this factor.” (People v. Nelson, supra, 51 Cal.4th at p.

227, quoting People v. Gamache, supra, 48 Cal.4th at p. 409.)

To establish IAC, defendant must demonstrate that “‘(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.’” (People v. Hoyt (2020) 8 Cal.5th 892, 958, quoting People v.

Mai, supra, 57 Cal.4th at p. 1009.) Defendant has not met his burden of establishing any

of these factors. He also has not demonstrated a reasonable probability of a more

favorable result had counsel objected.

We cannot determine from the record why defense counsel did not object to the

$3,000 restitution fine, but there were possible valid reasons for not doing so. The

defendant’s inability to pay is just one among many factors the court should consider in

setting the restitution fine above the minimum. The court should also consider “the

seriousness and gravity of the offense and the circumstances of its commission, any

25
economic gain derived by the defendant as a result of the crime, the extent to which any

other person suffered losses as a result of the crime, and the number of victims involved

in the crime. Those losses may include pecuniary losses to the victim or his or her

dependents as well as intangible losses, such as psychological harm caused by the crime.”

(§ 1202.4, subd. (d).)

Defense counsel may have decided not to object to the $3,000 restitution fine

because he concluded that objecting to the fine or requesting an ability-to-pay hearing

would have been futile, if not harmful to defendant, given the seriousness of defendant’s

offenses, the psychological harm to his two victims, and the court’s apparent

consideration of ability to pay by significantly reducing the recommended $6,400

restitution fine to $3,000. We therefore conclude that defendant has not demonstrated

IAC.

V.

IMPOSING A LESSER FIREARM ENHANCEMENT

Defendant contends the trial court erred in assuming it could only impose or strike
3
the section 12022.53, subdivision (c) enhancement on count 1 for discharging a firearm.

Defendant argues the court had the discretion to impose the lesser section 12022.53(b)

enhancement in lieu of the greater section 12022.53(c) enhancement. Defendant also

argues his attorney was ineffective in not requesting the court do so.

3
For ease of reference and brevity, we refer to section 12022.53, subdivision (b)
as “section 12022.53(b),” section 12022.53, subdivision (c) as “section 12022.53(c),” and
section 12022.53, subdivision (d) as “section 12022.53(d).

26
 A. Sentencing Background

The jury found defendant guilty of attempted murder (count 1), among other

offenses, and found true the count 1 enhancement allegations, that defendant personally

used a firearm (§ 12022.53(b)) and discharged a firearm. (§ 12022.53 (c)). Defendant

was sentenced on November 19, 2019, after enactment of Senate Bill No. 620 (2017-

2018 Reg. Sess.; Stats. 2017, ch. 6, §§ 1,2) (Senate Bill No. 620), effective January 1,

2018. Senate Bill No. 620 amended the firearm enhancement statute, section 12022.53,

to allow the court to strike certain qualifying enhancements. Subdivision (h) of section

12022.53 provides that “[t]he court may, in the interest of justice pursuant to [s]ection

1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required

to be imposed by this section.”

By written motion and during oral argument at sentencing, defense counsel urged

the trial court to exercise its discretion under section 12022.53, subdivision (h), and strike

the section 12022.53 firearm enhancements, but the court expressly declined to do so.

The trial court sentenced defendant to the mid-term of seven years on count 1, plus a

consecutive 20-year prison term for the section 12022.53(c) enhancement for discharging

a firearm. The court also imposed but stayed a consecutive 10-year prison term for the

section 12022.53(b) enhancement for using a firearm. Under section 12022.53,

subdivision (f), the court could only impose one of the two firearm enhancements and

was required to impose the longest enhancement.

27
 When sentencing defendant on count 1, the court stated regarding the

enhancements that, “[w]ith respect to the discharge of a firearm pursuant to 12022.53(c),

the Court notes that the Court has discretion to strike that enhancement. The Court will

not exercise discretion. Note that there was a lack of provocation in this case when

[defendant] used the firearm, that the victim was 60 years and in ill health. The victim

was, in fact, a family member. There is a prior disposition of violence. There is no

remorse shown on your part. You failed to offer any type of aid and there were other

victims closely associated to this case.” The court imposed the 20-year enhancement

consecutive to the count 1 term. The court further ordered that, “[w]ith respect to the

Penal Code section 12022.53(b) allegation, use of a firearm, the Court will impose ten

years, but the Court will stay that ten-year term, which would have been consecutive.”

B. Forfeiture

By not raising his objection to the section 12022.53(c) enhancement in the trial

court, defendant forfeited it. Claims involving a trial court’s failure to properly make

discretionary sentencing choices are forfeited if counsel fails to object below. (People v.

Scott (1994) 9 Cal.4th 331, 353-354.) So long as the parties are clearly apprised of the

sentence and the reasons supporting the choices, and were given a meaningful

opportunity to object, the failure to lodge an objection to a trial court’s sentencing

choices at the hearing constitutes a forfeiture of the issue on appeal. (Id. at p. 356.)

28
 Here, the trial court permitted defense counsel to argue regarding sentencing.

After the court stated defendant’s sentence and reasons for it, the court asked counsel if

they wanted to add anything. Defendant had the opportunity at that time to object to the

count 1 firearm enhancements but did not do so. Under these circumstances, we

conclude defendant forfeited his objection to the court imposing the section 12022.53(c)

enhancement.

C. IAC in Not Requesting Lesser Firearm Enhancement

Defendant argues that even if he forfeited his objection by not raising it in the trial

court, his trial attorney’s failure to request the court to impose the lesser section

12022.53(b) enhancement instead of the section 12022.53(c) enhancement constituted

IAC. We disagree.

Effective January 1, 2018, the Legislature enacted Senate Bill No. 620, which

amended section 12022.53, subdivision (h), to grant courts discretion to “‘strike or

dismiss’” a firearm enhancement imposed under section 12022.53 “‘in the interest of

justice pursuant to [s]ection 1385.’” (People v. Tirado (2019) 38 Cal.App.5th 637, 642,

review granted Nov. 13, 2019, S257658.) Former section 12022.53, subdivision (h),

prohibited courts from striking or dismissing firearm enhancements found true under

section 12022.53, “‘[n]otwithstanding [s]ection 1385 or any other provision of law.’”

(Stats. 2010, ch. 711, § 5; see People v. Tirado, at p. 642, fn. 6.)

29
 Defendant relies on People v. Morrison (2019) 34 Cal.App.5th 217, for the

proposition that his case must be remanded for resentencing so the court may consider

whether to strike his 20-year-to-life, section 12022.53(c) firearm enhancement, and

impose the lesser 12022.53(b) enhancement. In Morrison, the court concluded that

Senate Bill No. 620 gives courts discretion to strike a section 12022.53, subdivision (d)

enhancement and impose a lesser enhancement under section 12022.53, subdivisions (b)

or (c), even if the lesser enhancements were not pled or found true. (People v. Morrison,

supra, at pp. 221-223.)

There is currently a split of authority on the question of whether Senate Bill No.

620 gives trial courts discretion to strike a greater firearm enhancement found true under

section 12022.53, and impose a lesser included, uncharged firearm enhancement under

the statute, when no such lesser firearm enhancement was pled or found true. (People v.

Valles (2020) 49 Cal.App.5th 156, 166-167, review granted July 22, 2020, S262757;

People v. Yanez (2020) 44 Cal.App.5th 452, 459-460, review granted April 22, 2020,

S260819; People v. Tirado, supra, 38 Cal.App.5th at p. 644; People v. Garcia (2020) 46

Cal.App.5th 786, 788-789, review granted June 10, 2020, S261772; People v. Delavega

(2021) 59 Cal.App.5th 1074, 1084, review granted April 14, 2021, S2672932; People v.

Morrison, supra, 34 Cal.App.5th at pp. 221-223.) It is undisputed, however, that if two

or more of the section 12022.53 firearm enhancements are charged and separately found

true, a trial court can strike the greater enhancement, reducing the firearm related term to

30
the remaining lesser enhancement term. (People v. Delavega, supra, at p. 1084,; People

v. Wang (2020) 46 Cal.App.5th 1055, 1090-1091.)

The current split of authority on whether Senate Bill No. 620 gives trial courts

discretion to strike a greater firearm enhancement found true under section 12022.53, and

impose a lesser included enhancement, is irrelevant here. That line of cases concerns

imposing lesser firearm enhancements that were not pled or found true, which is not the

case here. In the instant case, both the imposed section 12022.53(c) enhancement and

lesser section 12022.53(b) enhancement were pled and found true. In addition, the trial

court considered and expressly rejected striking the section 12022.53(c) enhancement

under section 12022.53(h).

Regardless of whether the sentencing court has discretion to substitute a lesser

enhancement for a greater enhancement under People v. Morrison, supra, 34 Cal.App.5th

217, defendant has not met his burden of showing deficient representation or prejudice.

The trial court stated specific reasons for not striking the section 12022.53(c)

enhancement under section 12022.53, subdivision (h). Defense counsel could have

reasonably concluded, based on those stated reasons for not striking the section

12022.53(c) enhancement, that it was highly unlikely that the court would have imposed

the lesser enhancement instead of the section 12022.53(c) enhancement, had counsel

requested the court to do so. Because it is not probable that the trial court would have

imposed the section 12022.53(b) enhancement had defense counsel requested it, there is

31
no showing counsel’s failure to object or request the lesser enhancement was prejudicial.

Defendant therefore has not demonstrated IAC.

VI.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.

We concur:

MILLER
Acting P. J.

RAPHAEL
J.

32