People v. Ruizpaz CA6

Filed 6/25/21 P. v. Ruizpaz CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H044593
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1076422)

v.

CARLOS RUIZPAZ et al.,

Defendants and Appellants.

On April 21, 2010, Jose Calderon was stabbed and shot to death while he waited at
a bus stop with a friend in an area that was generally considered to be Norteño gang
territory. The murder was committed by two Sureño gang members, defendants Carlos
Ruizpaz1 and Jose Jesus Torres, who assaulted Calderon at random as an act of retaliation
against the Norteños. After a jury trial, defendants were each convicted of first degree
murder (Pen. Code, § 187)2 with a gang enhancement (§ 186.22, subd. (b)(1)(C)), a gang
special circumstance (§ 190.2, subd. (a)(22)), and a firearm enhancement (§ 12022.53,
subd. (d)). The jury also found true an allegation that Torres personally used a deadly
weapon (§ 12022, subd. (b)(1)). Both defendants were sentenced to a total term in prison
of life without the possibility of parole consecutive to 25 years to life.

Throughout the proceedings in the trial court, Ruizpaz’s last name was
1

sometimes referred to “Paz” or “Ruiz Paz.” Documents like the charging information
and the abstract of judgment, however, use the name “Ruizpaz.” For consistency, we will
also use the name Ruizpaz.
2
Unspecified statutory references are to the Penal Code.
 On appeal, Ruizpaz argues that the trial court abused its discretion by admitting
evidence of his prior juvenile adjudication for carrying a loaded firearm in public. Both
defendants argue that: (1) this court should independently review the sealed transcript of
an ex parte hearing held after the jury reached its verdict to determine if there was
evidence that should have been disclosed to the defense; (2) remand is required so that
the trial court can determine whether to exercise its newfound discretion to strike the
firearm enhancements; (3) the gang enhancements that were stayed should be stricken;
(4) the restitution fines should be reduced to the statutory minimum of $200; and (5) the
trial court should be permitted to reconsider the imposition of fines and fees that were
imposed without determining defendants’ ability to pay under People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas).
We reverse and remand the matter for the limited purpose to permit the trial court
to consider whether to exercise its discretion to strike defendants’ firearm enhancements.
As to both defendants, we further direct the trial court to reduce the restitution fines to the
statutory minimum of $200 and to strike the gang enhancements.
BACKGROUND
1. The Information
On August 4, 2016, an information was filed charging defendants with murder
(§ 187). As to each defendant, the information alleged a firearm enhancement
(§ 12022.53, subds. (d), (e)(1)), a gang enhancement (§ 186.22, subd. (b)(1)(C)), and a
gang special circumstance (§ 190.2, subd. (a)(22)). The information also alleged that
Torres personally used a deadly and dangerous weapon (a knife) (§ 12022, subd. (b)(1)).

2
 2. The Trial
a. The Prosecution Case
i. The Assault on Gary Garcia and the Planned Retaliation
On April 20, 2010, Gary Garcia was the victim of an assault and suffered multiple
lacerations.3 Garcia was a member of the Varrio Sureno Town (VST)4 subset of the
Sureño criminal street gang.
The next day, A.O., Torres, Torres’s brother, and Garcia formulated a plan to
retaliate against the Norteños, who they believed had “jumped” Garcia. Torres believed
that Garcia may have been assaulted by someone who was in the West Side Mob or
Horseshoe Norteño gang. The men intended to attack “anybody that would be out” that
could be gang affiliated. A.O. called Ruizpaz and asked him if he was “down to go
Buster” hunting, and Ruizpaz answered yes.5
At the time, A.O. was 17 years old and was a member of the Varrio Tami Lee
Gangsters (VTG) Sureño subset and went by the gang moniker “Creeper.”6 Torres was a

3
San Jose Police Department Officer Jonathan Koenig identified Garcia as Gary
Garcia Esquivel. The other witnesses at trial, however, referred to Garcia as “Gary
Garcia.”
4
A.O. testified that Garcia belonged to the “Varrio Sureno Malditos” or “VSM”
Sureño subset. A.O. also testified that VSM was divided into “two sets,” the east and the
west, and Torres had a tattoo that said “West Side Malditos” that meant he was from “the
west side set of VSM.” Officer Jesse Ashe, the prosecution’s gang expert, identified that
Torres belonged to the “Varrio Sureno Town, VST Malos” gang. Torres himself
self-identified as a member of “VST.” The evidence thus reflects that VSM and VST
refer to the same Sureño subset, and we will refer to Garcia as belonging to the VST
subset out of clarity.
5
“Buster” is a disrespectful term used to describe Norteños.
6
A.O. testified for the prosecution after negotiating a plea agreement with the
district attorney’s office. A.O. had initially been charged with Calderon’s murder and a
gang enhancement, but he pleaded to voluntary manslaughter with the understanding that
he would face between six to 21 years in prison. The plea agreement specified that there
was no agreement as to the length of A.O.’s sentence, and A.O.’s sentencing was to be
(continued)

3
member of VST and went by the moniker “Stomper” or “Chewy.” Ruizpaz was a VTG
member and went by the moniker “Boxer.”
A.O. drove his mother’s car, picked Ruizpaz up, then drove Torres and Ruizpaz
around as they looked for potential targets. An SUV carrying Torres’s brother followed
A.O.’s car. A.O. recalled that he saw that Torres had a pocket knife. He did not recall
seeing Ruizpaz with any weapons. At one point, A.O. drove past a man riding a bicycle.
A.O. asked the bicyclist if he was a gang member, and the bicyclist said no. A.O. left it
at that and “kept on pushing” to find a target.
ii. Calderon’s Murder
At some point after A.O. passed the bicyclist, Torres alerted A.O. of a potential
target and told A.O. to make a U-turn near a bus stop. The potential target identified by
Torres was at the bus stop with a girl. Torres and Ruizpaz got out of A.O.’s car and
walked toward the bus stop. A.O. thought that the men were going to go over and “beat
up that guy.”
At the bus stop, which was near Willard Avenue and West San Carlos Street, was
15-year-old T.C. and her friend, 22-year-old Jose Calderon. Earlier that day, T.C. and
Calderon had watched a movie and had spent some time together at T.C.’s nearby
apartment. T.C. and Calderon were standing at the bus stop when T.C. noticed “[t]wo
Hispanic males dressed in all black, early 20s” walk off Willard Avenue and turn toward
them. As the men passed by, they looked at Calderon and asked him, “ ‘What’s up,
homey?’ ” Calderon did not respond. At the time, Calderon was wearing a black and red
hat. T.C. did not know if Calderon was in a gang.

continued until after he testified at trial. During trial, A.O. testified about some of his
criminal history and stated that around the time of the murder, he had been recently
released from the “Ranch,” where he had spent eight months for a juvenile adjudication
for grand theft of an automobile.

4
 T.C. watched the men as they walked away. Calderon had his back toward them.
Suddenly, the men turned around started to run toward T.C. and Calderon. T.C. tried to
push Calderon out of the way, and he stumbled onto the street. One man kept Calderon
in position while the other man hit him on his back. T.C. heard Calderon say, “ ‘You’re
stabbing me.’ ” She heard one of the men who was assaulting Calderon yell, “ ‘Sur.’ ”
Calderon stumbled backward and fell onto the ground. The man who had been keeping
Calderon in position pulled out a semi-automatic gun and fired five shots at Calderon.
T.C. turned around and saw a car come down Willard Avenue. The two men got into the
car, and the car drove away. T.C. called 911 at 9:32 p.m. that evening.7
A.O. had stayed in the car during the assault, and he saw Torres and Ruizpaz
approach the man at the bus stop. A.O. saw that Torres and Ruizpaz talked to the man
then started throwing punches to the man’s back and to his side. The man stumbled to
the ground, and Torres ran back to A.O.’s car with a knife in his hand. Torres had a cut
on his hand between his finger and thumb. A.O. saw Ruizpaz stand in front of the man
and shoot him approximately three times with a gun. After Ruizpaz shot the man, he ran
back to A.O.’s car. Torres got into the front passenger seat, and Ruizpaz got into the
backseat. Because of his wound, Torres left blood on the seatbelt and seat of A.O.’s car.
iii. The Aftermath of the Murder
After Torres and Ruizpaz got back into the car, A.O. drove to a shopping center.
The SUV that had been following A.O.’s car pulled up next to them, and A.O. told Torres
and Ruizpaz to get out of his car and into the SUV. Torres and Ruizpaz got into the
SUV, and A.O. followed the SUV to S.Z.’s house. S.Z. had friends who were Sureños,
but she did not consider herself to be a member of the gang.8 A.O. parked the car in a

7
A recording of the 911 call was admitted into evidence.
8
S.Z. testified for the prosecution under a grant of immunity.

5
nearby alley, and Torres stepped out of the SUV and called S.Z. After Torres got out of
the SUV, the SUV drove away.
A.O. recalled that S.Z. took the men into her house and into her room, and S.Z.
took Torres to clean the wound on his hand. At some point, while Torres and A.O. were
in S.Z.’s room, Torres told A.O. that he thought that the girl at the bus stop might have
recognized him. A.O. replied, “ ‘You better hope she don’t tell.’ ” Torres said, “ ‘We
fucked up.’ ” S.Z. recalled that she overheard Torres and A.O. talking. She heard one of
them say something about “messing up,” and she heard Torres mention that he thought
“the girl” had recognized him.
A.O. and Torres did not tell S.Z. about what had happened. A.O. asked S.Z. to
help put his car inside her backyard, but S.Z.’s mother did not let S.Z. have the key to the
backyard. S.Z. recalled that at one point, A.O. insinuated that the police were looking for
his car. A.O. saw Torres take out a gun and put it in a shoebox in S.Z.’s closet. A.O.
recalled that S.Z. was present at the time.9 A.O. assumed that it was the same gun that
Ruizpaz had used earlier during the murder. One of S.Z.’s friends drove over, picked up
Torres and A.O., and dropped A.O. off at his house.
The following morning, A.O. called S.Z. and asked her to bring his car over to his
house. S.Z. drove A.O.’s car to return it to him. Approximately a minute after S.Z. left
her house, she was pulled over by the police and taken to the police station. After S.Z.
returned home, she deleted some items from her phone and changed Torres’s name in her
contact list to “Gary.” During her interviews with the police, S.Z. feared for her safety
because the people involved in the case were gang members.

9
A.O. disclosed that Torres had hid a gun in S.Z.’s closet for the first time during
defendants’ trial. A.O. explained that he never disclosed this information in his prior
interviews because he did not want to get S.Z. in trouble.

6
 After A.O. was arrested, he was housed with Torres and discussed the case with
him. Torres told A.O. that he had gotten rid of the gun, but he did not specify how.
Torres also told A.O., “ ‘Don’t got shit on us.’ ” Later, A.O. dropped out of the gang and
went into protective custody.
E.M., a VTG gang member, was arrested in 2012 on unrelated charges.10 Several
years before E.M. was arrested, Ruizpaz called E.M. and said that he had shot a
Northerner twice in the head. After speaking with Ruizpaz over the phone, E.M. met
with Ruizpaz in person. During their meeting, Ruizpaz said that Torres had stabbed the
Northerner.
Shortly after Calderon’s murder, T.C. told officers that she thought that she could
identify the two men who had assaulted Calderon. T.C. was shown multiple photo
lineups and went to jail to see inmates in person, but she was never able to identify the
perpetrators.
iv. Forensic Evidence
A forensic pathologist testified that Calderon had been inflicted with three gunshot
wounds and 13 stab wounds. One of the gunshot wounds and two of the stab wounds
would have been “quickly fatal.” The other injuries would have been “survivable to
potentially survivable.”
An expert in communications detail record analysis testified that on April 21,
2010, at around 11:00 p.m., a call was made between A.O.’s and S.Z.’s phones. A.O. and
S.Z. called each other at around 6:27 a.m. the next morning. There were records that
showed that on April 21 and 22, 2010, calls were made between A.O., Ruizpaz, and
Torres. On April 21, 2010, Ruizpaz’s phone pinged a cell tower near Garcia’s house at

10
E.M. testified on behalf of the prosecution after negotiating a plea agreement
with the district attorney’s office. E.M. was not involved in Calderon’s murder. E.M.’s
2012 arrest was for an unrelated crime of attempted murder.

7
around 8:07 p.m., and at around 9:00 p.m., his phone traveled from the west side of San
Jose to the east side, past the crime scene area toward S.Z.’s house.
A.O.’s DNA was found on the steering wheel of his car, and Torres’s DNA was
found on the front right passenger door handle. Torres’s blood was also found on the
car’s front passenger seatbelt and seat.
A firearm analysis expert testified that a bullet that was found after an officer
opened the door to A.O.’s car was “struck by the same firing pin” that fired three spent
cartridges that were found at the scene of Calderon’s murder. Officers recovered three
.25-caliber casings, a .25-caliber cartridge, and a copper-jacketed bullet at the scene of
the murder.
Torres was arrested on May 5, 2010, and, at the time of his arrest, he had a cut
between his thumb and forefinger.
v. Gang Evidence
Sunnyvale Public Safety Officer Jesse Ashe was designated as an expert in
criminal street gangs. Officer Ashe explained that a Sureño is a street soldier for the
Mexican Mafia prison gang. The Mexican Mafia consists mostly of Hispanic males
within the prison system. Underneath the Sureño umbrella are various subsets. It is not
unusual for different Sureño subsets to commit crimes together.11 Sureños identify with
the number 3 and 13, the color blue, and the letter M. The gang’s primary activities
include property offenses, weapon offenses, vehicle theft, drug sales, possession of
loaded and concealed firearms, assaults with a deadly weapon, attempted murders,
murders, carjacking, robbery, and kidnapping. Officer Ashe opined that beating an
unarmed man in public furthered the gang’s objectives by increasing the gang’s power

11
A.O. testified that it was common for Sureño members from different subsets to
commit crimes together “[b]ecause they’re all Surenos.”

8
and placing fear in the community. Officer Ashe further opined that Ruizpaz was a VTG
member and Torres was Varrio Sureno Town or VST Malos gang member.12
According to Officer Ashe, retaliation is important to the Sureño gang. Gang
members view each other as brothers and sisters and want to protect each other. Gang
members feel it is their responsibility to retaliate if one of their own is attacked. Gang
members also feel that an attack against their own leaves members feeling disrespected,
and gang members do not want others, including rival gangs and rival gang members, to
perceive them as weak. Officer Ashe believed that a Sureño gang member who takes
retaliatory action against someone who is wearing red clothing in a predominantly
Norteño neighborhood commits the crime for the benefit of the Sureño gang.
According to Officer Ashe, firearms “are of extreme significance” to Sureños. A
Sureño who carries a gun tends to be someone “who’s more down with the gang,
someone who’s willing to commit more violent acts; and, in turn, gets respect, more
respect and more power within their gang.” Firearms tend to be “passed around” to other
gang members after they are used.
Gang members that testify against other gang members may be subject to removal
from the gang and be considered “bad news,” which means that an active Sureño gang
member would be expected to react violently toward that individual if they encounter him
or her on the street.
The primary rivals to the Sureños are the Norteños. The Norteños are the street
soldiers for the Nuestra Familia prison gang. Norteños identify with the color red, the
San Jose Sharks symbol, the numbers 14 and 4, and the letter N. Officer Ashe opined
that the area where Calderon was murdered was predominantly perceived by law
enforcement as a Norteño gang area controlled by the West Side Mob subset.

12
A.O. testified that in April 2010, there were more than 30 VTG members, and
the members had meetings every two weeks to a month.

9
Officer Ashe also opined that the red and black baseball cap worn by Calderon when he
was murdered was common among Norteño gang members because of the red bill cap
and the “SJ” symbol.
vi. Defendants’ Prior Police Contacts and Juvenile Adjudications
On January 14, 2008, officers stopped Torres while he was driving a stolen car.
Torres indicated that he had an ice pick in his front pocket and identified himself as a
VST member.
On October 31, 2008, officers responded to reports of trespassing at Fair Middle
School, which was in VTG gang territory. Ruizpaz was seen jumping over a fence. As
Ruizpaz jumped over the fence, something fell out of his pocket. Officers later recovered
the object, which was a loaded .357-caliber revolver. Approximately five to seven other
individuals were fleeing from the police at the time.
While Ruizpaz was in juvenile hall in 2009, he admitted to having scratched some
graffiti in his cell, including graffiti that said “Boxer VTG.”
On April 10, 2010, officers stopped a car near downtown San Jose. Torres was
one of the occupants inside the car, and the car contained multiple items that could be
used as weapons including knives, tools, and a hammer.
The parties stipulated that Ruizpaz was charged with committing a felony
violation of former section 12031, subdivision (a)(1) (carrying a loaded firearm in public)
on or about October 31, 2008, and Ruizpaz admitted to committing the offense and the
violation was found true by the juvenile court on December 23, 2008.13 The parties also

13
The reporter’s transcript reflects that the parties stipulated that Ruizpaz was
charged with violating “Penal Code Section 2031, subdivision (a)(1).” This appears to be
a clerical error. Former section 12031, subdivision (a)(1) is the statute that used to
criminalize carrying a loaded firearm in public. Former section 12031 was carried over
without substantive change to section 25850. (People v. Wade (2016) 63 Cal.4th 137,
140.)

10
stipulated that Ruizpaz was charged with committing a felony violation of section 594,
subdivisions (a), (b)(1) (vandalism), on or about December 28, 2009 and February 28,
2009, and Ruizpaz admitted to committing the offense and the offense was found true by
the juvenile court on March 27, 2009.
The parties stipulated that Torres was charged with committing a felony violation
of Vehicle Code section 10851, subdivision (a) (unauthorized use of a vehicle) and a
misdemeanor violation of former section 12020, subdivision (a)(1) (repealed 2012)
(possession of an ice pick), on or about January 14, 2008, and Torres admitted to
committing the offenses and the juvenile court found the offenses to be true on
February 1, 2008.
b. The Defense Case
i. Torres’s Alibi
Torres’s ex-sister-in-law testified that on April 21, 2010, Torres and his brother
played video games and were at her apartment from 7:00 p.m. until she went to sleep.
Torres’s ex-sister-in-law usually went to sleep at around 11:00 p.m. or midnight.
ii. Alternative Explanation for Blood in A.O.’s Car
Torres’s wife recalled that she went to a birthday party with Torres shortly before
he was arrested for Calderon’s murder. A lot of Sureños went to the party, and the police
were eventually called. After the police left, there was an altercation with some
Norteños, and Torres was hit with a bottle to his face and started bleeding.14 Afterwards,
Torres got into the front seat of A.O.’s car.

14
Earlier, A.O. testified that he went to a party with S.Z. and Torres in the weeks
leading up to the shooting. He did not remember any fights, and he drove himself home
afterward. S.Z. testified that she recalled going to a party, and she remembered that there
was a fight and Torres ended up bleeding.

11
 iii. S.Z.’s Denial that She Hid a Gun
S.Z. was recalled by the defense, and she denied that anyone ever left a gun in her
house, or that Torres ever helped her hide a gun inside her closet.
iv. Forensic Evidence
A consultant in cell phones, cell phone location, and call detail analysis testified
that Ruizpaz’s phone was moving on highway 17 onto Interstate 280 and then highway
87 around the time of the murder.
According to an expert in latent print examination, Ruizpaz’s fingerprints did not
match any of the latent prints found in A.O.’s car. However, A.O.’s and Garcia’s prints
were found inside the car.
3. The Verdict and Sentencing
On December 19, 2016, the jury found both defendants guilty of murder and found
the charged enhancements and special circumstances to be true.
On March 17, 2017, the trial court sentenced Ruizpaz to life without the
possibility of parole for his conviction of murder (§ 187), consecutive to 25 years to life
for the firearm enhancement (§ 12022.53, subd. (d)). The trial court imposed and stayed
a 10-year gang enhancement (§ 186.22, subd. (b)(1)(C)).
That same day, the trial court sentenced Torres to life without the possibility of
parole for his conviction of murder (§ 187), consecutive to 25 years to life for the firearm
enhancement (§ 12022.53, subd. (d)). The trial court imposed and stayed a one-year
enhancement for personal use of a deadly weapon (§ 12022, subd. (b)(1)) and a 10-year
gang enhancement (§ 186.22, subd. (b)(1)(C)).
DISCUSSION
1. Ruizpaz’s Prior Juvenile Adjudication for Carrying a Loaded Firearm
Ruizpaz argues that the trial court erred when it admitted his prior juvenile
adjudication for carrying a loaded firearm in public as evidence of a predicate offense to
show a pattern of criminal gang activity (§ 186.22, subd. (e)) and evidence of motive to

12
commit the charged offense (Evid. Code, § 1101, subd. (b)). Ruizpaz argues that the
evidence should have been excluded under Evidence Code section 352 because its
probative value was substantially outweighed by its potential for prejudice.
a. Background
On October 3, 2016, Ruizpaz filed a motion in limine seeking to exclude all
references to his prior juvenile adjudications. On October 4, 2016, the trial court held a
hearing and considered whether evidence of Ruizpaz’s prior juvenile adjudications and
convictions should be admitted. During the hearing, the People acknowledged that
Ruizpaz had a prior domestic violence case involving a criminal threat (§ 422), which the
People intended to use as impeachment if Ruizpaz testified at trial. The People also
argued that Ruizpaz had multiple juvenile adjudications, including a 2008 adjudication
for possession of a loaded firearm that involved other gang members, another 2008
adjudication for possessing two concealed dirks and daggers that involved other gang
members, and a 2009 adjudication for felony vandalism where Ruizpaz inscribed his
gang moniker in his juvenile hall cell. The People intended to introduce these offenses as
predicate offenses to prove the gang enhancement alleged in the case. After considering
the parties’ arguments, the trial court excluded the domestic violence case as more
prejudicial than probative under Evidence Code section 352. The trial court reserved
ruling on the admissibility of Ruizpaz’s juvenile adjudications.
On October 6, 2016, the People filed a motion summarizing the gang evidence to
be introduced at trial, which included Ruizpaz’s 2008 juvenile adjudication for carrying a
loaded firearm in public. The People argued that Ruizpaz’s 2008 juvenile adjudication
would be used to prove a predicate offense under section 186.22, subdivision (e)(33) and
Ruizpaz’s gang membership. That same day, the trial court held a hearing and decided to
permit the prosecution to present its intended evidence of predicate offenses, including
Ruizpaz’s 2008 juvenile adjudication.

13
 On October 27, 2016, Ruizpaz asked the trial court to reconsider its ruling on his
2008 juvenile adjudication. Ruizpaz argued that the nature of the offense, carrying a
loaded firearm in public, was “too closely aligned to the allegation in this case that the
jury has to decide.” Ruizpaz insisted that the jury would use the evidence to establish his
identity as the shooter in Calderon’s murder. Thus, Ruizpaz claimed that the juvenile
adjudication would be more prejudicial than probative under Evidence Code section 352.
The People argued that the evidence was relevant to prove a necessary predicate offense
for the gang enhancement charged in the case and would be used by the gang expert to
opine that Ruizpaz was a Sureño when Calderon was murdered.
The trial court determined that the 2008 juvenile adjudication was admissible
under Evidence Code section 352. The trial court stated: “[T]he probative value . . .
doesn’t just go to whether or not [Ruizpaz] is in a gang; but according to [the prosecutor],
there will be testimony about further commitment to the gang as illustrated by the
possession of the firearm. The fact that the firearm is not the same caliber as the one
used in this particular case also, in this Court’s opinion, makes a difference in terms of its
prejudicial effect. And, for those reasons, the Court is going to choose to allow it to be
admitted if the People so choose.”
After the close of evidence, the jury was instructed with CALCRIM No. 1403 as
follows: “You may consider evidence of gang activity only for the limited purpose of
deciding whether: [¶] The defendant acted with the intent, purpose, and knowledge that
are required to prove the gang-related enhancements and special circumstance allegations
charged; [¶] OR [¶] The defendant had a motive to commit the crime charged. [¶]
You may also consider this evidence when you evaluate the credibility or believability of
a witness and when you consider the facts and information relied on by an expert witness
in reaching his or her opinion. [¶] You may not consider this evidence for any other
purpose. You may not conclude from this evidence that the defendant is a person of bad
character or that he has a disposition to commit crime.”

14
 b. General Legal Principles and Standard of Review
In general, “all relevant evidence is admissible.” (Evid. Code, § 351.) Evidence is
relevant if it has “any tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.” (Evid. Code, § 210.)
Relevant evidence must be excluded “when its probative value is substantially
outweighed by its prejudicial effect.” (People v. Tran (2011) 51 Cal.4th 1040, 1047
(Tran); Evid. Code, § 352.) “ ‘Evidence is substantially more prejudicial than
probative . . . [only] if, broadly stated, it poses an intolerable “risk to the fairness of the
proceedings or the reliability of the outcome.” ’ ” (Tran, supra, at p. 1047.)
We “appl[y] the abuse of discretion standard of review to any ruling by a trial
court on the admissibility of evidence.” (People v. Waidla (2000) 22 Cal.4th 690, 723.)
“Under this standard, a trial court’s ruling will not be disturbed, and reversal of the
judgment is not required, unless the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.”
(People v. Guerra (2006) 37 Cal.4th 1067, 1113, overruled on a different ground in
People v. Rundle (2008) 43 Cal.4th 76, 151.)
c. Analysis
Ruizpaz argues that the trial court abused its discretion under Evidence Code
section 352 when it admitted evidence of his 2008 juvenile adjudication for carrying a
loaded firearm in public to show a pattern of criminal gang activity under section 186.22,
subdivision (e) and to prove motive under Evidence Code section 1101, subdivision (b).
In Tran, the California Supreme Court held that for the purposes of section 186.22,
a predicate offense can be established “by proof of an offense the defendant committed
on a separate occasion.” (Tran, supra, 51 Cal.4th at p. 1046.) Thus, Ruizpaz’s 2008
juvenile adjudication could be used establish the existence of a predicate offense under
section 186.22.

15
 Ruizpaz’s 2008 juvenile adjudication was also probative of his gang membership
and of motive. “ ‘Subdivision (a) of [Evidence Code] section 1101 prohibits admission
of evidence of a person’s character, including evidence of character in the form of
specific instances of uncharged misconduct, to prove the conduct of that person on a
specified occasion. 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. Fuiava (2012) 53 Cal.4th 622, 667.) Thus, evidence may be
admitted to prove, among other things, motive. (Evid. Code, § 1101, subd. (b); see
People v. Williams (1997) 16 Cal.4th 153, 193 [gang evidence can be relevant to prove
motive].) In this case, the prosecution’s theory was that Calderon was murdered as an act
of retaliation by Sureños for the assault that was committed against Garcia. Evidence
that Ruizpaz was a member of VTG, a Sureño subset, had a “tendency in reason to
prove” (Evid. Code, § 210) that Ruizpaz had a motive to kill Calderon.
The issue is whether the probative value of the evidence was substantially
outweighed by its potential for prejudice. In Tran, the California Supreme Court
summarized several factors that can be considered when determining whether evidence of
uncharged misconduct is unduly prejudicial and should be excluded under Evidence
Code section 352 as follows: “The probative value of the evidence is enhanced if it
emanates from a source independent of evidence of the charged offense because the risk
that the witness’s account was influenced by knowledge of the charged offense is thereby
eliminated. [Citation.] On the other hand, the prejudicial effect of the evidence is
increased if the uncharged acts did not result in a criminal conviction. This is because the
jury might be inclined to punish the defendant for the uncharged acts regardless of
whether it considers the defendant guilty of the charged offense and because the absence
of a conviction increases the likelihood of confusing the issues, in that the jury will have
to determine whether the uncharged acts occurred. [Citation.] The potential for

16
prejudice is decreased, however, when testimony describing the defendant’s uncharged
acts is no stronger or more inflammatory than the testimony concerning the charged
offense.” (Tran, supra, 51 Cal.4th at p. 1047, citing People v. Ewoldt (1994) 7 Cal.4th
380, 404-405.)
Tran also noted that evidence of a gang-related prior conviction generally has
“greater” probative value in a gang case because the prior conviction “provides direct
evidence of a predicate offense, that the defendant actively participated in the criminal
street gang, and that the defendant knew the gang engaged in a pattern of criminal gang
activity.” (Tran, supra, 51 Cal.4th at p. 1048.) Moreover, the prejudice from the prior
gang offense “typically will be less when the evidence is admitted to establish a
predicate offense” than when it is admitted to prove “an intermediary fact from which
guilt may be inferred,” since a prior gang offense provides direct evidence of a violation
of section 186.22. (Tran, supra, at p. 1048.)
Turning to this case, we analyze this issue by following the Supreme Court’s
direction in Tran. The probative value of Ruizpaz’s juvenile adjudication was
“enhanced” because the evidence emanated from sources that were independent of
evidence of the charged crime of murder. (Tran, supra, 51 Cal.4th at p. 1047.) At trial,
an officer who witnessed Ruizpaz drop the loaded firearm testified, and the parties later
stipulated that Ruizpaz admitted to committing the offense. Evidence of Ruizpaz’s 2008
juvenile adjudication was also “highly probative,” since it provided evidence of a
predicate offense and showed his active participation in a gang as well as his knowledge
that the gang engaged in a pattern of criminal gang activity. (Id. at p. 1050.)
The evidence was also not unduly prejudicial. The jury was informed that
Ruizpaz had been adjudicated of the offense when he was a minor, so the evidence would
not have confused the issues and the jury would not have been inclined to punish Ruizpaz
for the uncharged act. (Tran, supra, 51 Cal.4th at p. 1047.) Furthermore, the testimony
describing Ruizpaz’s possession of a loaded firearm was substantially less prejudicial

17
than the charged offense, where Ruizpaz was accused of shooting an unarmed man
multiple times. (Ibid.) The potential for prejudice was further diminished because the
trial court gave the jury a limiting instruction. The jury was instructed that evidence of
gang activity should be used for the limited purpose of determining whether defendants
had the requisite intent, purpose, or knowledge to satisfy the gang enhancement or gang
special circumstance, and whether defendants had a motive to commit the charged
crimes, and evidence of gang activity should not be used to determine that a defendant is
a “person of bad character or that he has a disposition to commit crime.”
Ruizpaz, however, argues that the evidence was more prejudicial than probative,
citing to People v. Barnwell (2007) 41 Cal.4th 1038. Barnwell concluded that “[w]hen
the prosecution relies on evidence regarding a specific type of weapon, it is error to admit
evidence that other weapons were found in the defendant’s possession, for such evidence
tends to show not that he committed the crime, but only that he is the sort of person who
carries deadly weapons.” (Id. at p. 1056.) In Barnwell, the trial court admitted evidence
that the defendant had previously possessed a handgun similar to the murder weapon
after erroneously concluding that the evidence was relevant to establish the defendant’s
identity as the murder and his propensity to own or carry that type of weapon. (Ibid.)
Unlike Barnwell, Ruizpaz’s 2008 juvenile adjudication was not admitted to prove
his identity as the shooter or his propensity to carry weapons. During closing argument,
the prosecutor did not argue that Ruizpaz’s 2008 juvenile adjudication demonstrated his
propensity to carry firearms, or that it could be inferred from the juvenile adjudication
that Ruizpaz was the shooter. In fact, the gun that Ruizpaz carried in 2008 was not the
same as the gun used to kill Calderon.15 Here, Ruizpaz’s juvenile adjudication was
admitted to prove, as the jury was so instructed, the elements of the gang enhancement,

15
The gun involved in Ruizpaz’s 2008 juvenile adjudication was a .357-caliber
revolver. The gun used in Calderon’s murder was a .25-caliber gun.

18
the gang special circumstance, and Ruizpaz’s motive. The jury was instructed to use the
gang evidence for this limited purpose, and “[w]e presume that jurors comprehend and
accept the court’s directions.” (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)
Relying on People v. Earle (2009) 172 Cal.App.4th 372 (Earle), Ruizpaz argues
that his 2008 juvenile adjudication was purportedly offered to prove “motive” but was
actually offered to prove his identity as the shooter. Unlike motive, to prove identity, an
uncharged offense and the charged offense must “ ‘share common features that are
sufficiently distinctive so as to support the inference that the same person committed both
acts.’ ” (Id. at p. 393.) In Earle, the defendant was charged in two separate cases for
indecent exposure and sexual assault. (Id. at p. 378.) The charges in Earle arose from
distinct incidents and had no historical connection with each other. (Ibid.) Earle
considered whether evidence of each offense would be cross-admissible to prove the
other offense. (Id. at pp. 388-389.) In dicta, Earle stated that “[p]roperly understood, the
motive for a crime is never an issue in its own right, but may operate as a basis to
establish identity on the rationale that the defendant’s possession of a reason (motive) to
commit the charged offense increases the likelihood that he did so.” (Id. at pp. 392-393.)
Earle concluded that evidence of the indecent exposure had no tendency at all to prove
that the defendant had the motive to commit the unrelated sexual assault. (Id. at p. 393.)
Earle, however, is distinguishable from this case. Earle did not consider the
admission of relevant, uncharged acts to prove a predicate offense or motive in a gang
case. Furthermore, as we have stated, the jury was specifically instructed to use the gang
evidence solely to prove the gang enhancement, gang special circumstance, or motive.
That the 2008 juvenile adjudication bore little similarity to the charged crime of murder
did not render the evidence inadmissible. “[T]he probativeness of other-crimes evidence
on the issue of motive does not necessarily depend on similarities between the charged
and uncharged crimes, so long as the offenses have a direct logical nexus.” (People v.
Demetrulias (2006) 39 Cal.4th 1, 15.) Evidence that Ruizpaz had previously carried a

19
gun in VTG territory tended to show his commitment to the Sureño gang and thus tended
to show he had a motive to kill Calderon when he participated in the perceived act of
retaliation against Norteños. Officer Ashe testified that a Sureño who carries a gun tends
to be someone “who’s more down with the gang, someone who’s willing to commit more
violent acts; and, in turn, gets respect, more respect and more power within their gang.”
The prosecutor never argued and the evidence was not admitted to show that the
uncharged act and the charged offense were “ ‘sufficiently distinctive so as to support the
inference that the same person committed both acts.’ ” (Earle, supra, 172 Cal.App.4th at
p. 393.)
Finally, Ruizpaz argues that evidence of his 2008 juvenile adjudication was
cumulative of other evidence that was introduced at trial. For example, there was
evidence that Ruizpaz had admitted to being a VTG gang member. There was also
evidence of other predicate offenses committed by other Sureño gang members, including
A.O.’s testimony that he stole cars, E.M.’s testimony that he had been arrested for
attempted murder, and the parties’ stipulation regarding Torres’s prior juvenile
adjudications. Ruizpaz, however, “cites no authority for the argument that the
prosecution must forego the use of relevant, persuasive evidence to prove an element of a
crime because the element might also be established through other evidence.” (Tran,
supra, 51 Cal.4th at pp. 1048-1049.) “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.” (Id. at p. 1049.)
Here, the challenged evidence was probative to prove a predicate offense under
section 186.22, subdivision (e) and to prove Ruizpaz’s gang affiliation. Given the trial
court’s limiting instruction, the dangers of confusing the jury was minimal. Thus, the

20
trial court did not abuse its discretion under Evidence Code section 352 by admitting the
evidence.16
2. The Ex Parte Hearing
Defendants argue that this court should review the sealed transcript of an ex parte
hearing held outside the presence of defendants and their attorneys. Defendants argue
that this court should review the transcript of the proceeding and determine if there was
information that should have been disclosed to the defense. The Attorney General does
not oppose defendants’ request.
On March 10, 2017, after the jury reached its verdict and before defendants
were sentenced, the prosecutor informed the trial court that it had received information
that “relate[d] to [the] safety of persons” and requested an in camera hearing under
section 1054.7. The trial court held an ex parte hearing outside the presence of
defendants and their attorneys, and, after the hearing, stated on the record: “The Court
does find that the content and the information does relate to the safety of individuals, and
does not relate to the trial that occurred in this case or to any appeal issues in this case. [¶]
And, so for those reasons, the information will not be revealed.”
Under section 1054.1, the prosecutor must disclose any exculpatory evidence to
the defendant or his or her attorney. In addition to the required statutory disclosures,
“ ‘[t]he prosecution has a duty under the Fourteenth Amendment’s due process clause to
disclose evidence to a criminal defendant’ when the evidence is ‘both favorable to the
defendant and material to either guilt or punishment.’ [Citations.] Evidence is
‘favorable’ if it hurts the prosecution or helps the defense. [Citation.] ‘Evidence is

16
Ruizpaz also argues that admission of his 2008 juvenile adjudication violated
his right to due process. However, we have concluded that admission of the evidence
was an appropriate use of the trial court’s discretion under Evidence Code section 352,
and “ ‘routine application of state evidentiary law does not implicate [a] defendant’s
constitutional rights.’ ” (People v. Hovarter (2008) 44 Cal.4th 983, 1010.)

21
“material” “only if there is a reasonable probability that, had [it] been disclosed to the
defense, the result . . . would have been different.” ’ ” (People v. Earp (1999) 20 Cal.4th
826, 866.)
We have reviewed the sealed transcript of the ex parte hearing and conclude that
no relevant or material information was withheld from the defense.17
3. The Firearm Enhancement
Defendants argue that remand is required to permit the trial court to consider
whether to exercise its newfound discretion to strike the firearm enhancements imposed
in part of each of their respective sentences. Both defendants were sentenced to 25 years
to life pursuant to the firearm enhancement under section 12022.53, subdivision (d). The
Attorney General concedes that remand is required because the record does not clearly
indicate how the trial court would have exercised its newfound discretion.
Senate Bill No. 620 (Senate Bill 620), effective January 1, 2018, gives the trial
court new discretion to strike firearm-use enhancements under section 12022.5.
Subdivision (c) of section 12022.5 now provides: “The court may, in the interest of
justice pursuant to Section 1835 and at the time of sentencing, strike or dismiss an
enhancement otherwise required to be imposed by this section. The authority provided
by this subdivision applies to any resentencing that may occur pursuant to any other law.”
(Stats. 2017, ch. 682, § 1.) The amendment to section 12022.5 applies retroactively to

17
Torres argues that it is unclear under what authority the trial court held the ex
parte hearing. The prosecutor cited to section 1054.7 when requesting the hearing, but
that section governs pretrial discovery. Defendants, however, do not argue that they
were entitled to be present at the hearing or that their exclusion from the hearing violated
their constitutional rights. Furthermore, “even where a court errs in proceeding ex parte,
the error is not reversible per se” and is subject to a harmless error analysis. (People v.
Valdez (2012) 55 Cal.4th 82, 125.) The information disclosed by the prosecutor during
the ex parte hearing was not relevant to the case; therefore, assuming that it was error to
hold an ex parte hearing, the error was harmless under any standard. (Id. at pp. 125-126.)

22
this case because the judgments against both defendants are not final. (People v. Zamora
(2019) 35 Cal.App.5th 200, 207.)
Even though the amendment is retroactive, remand is not automatic. We must
determine whether remand is required or if it would be an “ ‘idle act.’ ” (People v.
Gamble (2008) 164 Cal.App.4th 891, 901.) Generally, “when the record shows that the
trial court proceeded with sentencing on the . . . assumption it lacked discretion, remand
is necessary so that the trial court may have the opportunity to exercise its sentencing
discretion at a new sentencing hearing.” (People v. Brown (2007) 147 Cal.App.4th 1213,
1228.) The rationale for this general rule is that “[d]efendants are entitled to ‘sentencing
decisions made in the exercise of the “informed discretion” of the sentencing court,’ and
a court that is unaware of its discretionary authority cannot exercise its informed
discretion.” (Ibid.) However, where “ ‘the record shows that the trial court would not
have exercised its discretion even if it believed it could do so, then remand would be an
idle act and is not required.’ ” (Gamble, supra, at p. 901.)

In People v. McDaniels (2018) 22 Cal.App.5th 420, 425 (McDaniels), the Court of
Appeal addressed the appropriate standard to “apply in assessing whether to remand a
case for resentencing in light of Senate Bill 620.” The court determined that “remand is
required unless the record shows that the trial court clearly indicated when it originally
sentenced the defendant that it would not in any event have stricken a firearm
enhancement.” (Ibid.) If the trial court “express[ed] its intent to impose the maximum
sentence permitted,” remand was not required “because the record contains a clear
indication that the court will not exercise its discretion in the defendant’s favor.” (Id. at
p. 427.)

People v. McVey (2018) 24 Cal.App.5th 405 is illustrative of when remand for
resentencing would constitute an idle act. There, in selecting the upper term of 10 years
on the section 12022.5, subdivision (a) firearm-use enhancement, “the trial court

23
identified several aggravating factors, including the lack of significant provocation,
appellant’s disposition for violence, his lack of any remorse, and his ‘callous reaction’
after shooting an unarmed homeless man six or seven times. These factors, the court
said, far outweighed any mitigating factors.” (McVey, supra, at p. 419.) The court also
described the defendant’s attitude as “ ‘pretty haunting’ ” and commented that “ ‘the high
term of 10 years on the enhancement is the only appropriate sentence.’ ” (Ibid.) Based
on the trial court’s statements, the Court of Appeal concluded that remand for
resentencing under Senate Bill 620 “would serve no purpose but to squander scarce
judicial resources.” (McVey, supra, at p. 419.)

Here, the record does not contain “a clear indication that the court will not
exercise its discretion” in defendants’ favor. (McDaniels, supra, 22 Cal.App.5th at
p. 427.) When it imposed defendants’ sentences, the trial court made no comments about
what it believed the appropriate sentence should be, or whether it would not have stricken
the firearm enhancements if it had the discretion to do so. (Ibid.) Accordingly, we
remand the matter for resentencing.
4. The Gang Enhancement
Defendants argue that the 10-year sentences for their gang enhancements that were
imposed but stayed by the trial court should be stricken because they were sentenced to
life in prison without the possibility of parole.18 The Attorney General concedes that the
gang enhancements should be stricken, and we accept the concession.

18
Although Ruizpaz did not specifically argue in his opening brief that his gang
enhancement should be stricken, he stated that he “join[ed] in . . . each issue and
argument raised by [Torres] of potential relevance to [his] case.” Torres argued in his
opening brief that the sentence imposed but stayed for his gang enhancement should be
stricken. In his reply brief, Ruizpaz argues that his gang enhancement should also be
stricken.

24
 Section 186.22, subdivision (b)(1) provides: “Except as provided in paragraphs
(4) and (5), any person who is convicted of a felony committed for the benefit of . . . any
criminal street gang, with the specific intent to promote, further, or assist in any criminal
conduct by gang members, shall, upon conviction of that felony, in addition and
consecutive to the punishment prescribed for the felony . . . be punished as follows:
[¶] . . . [¶] (C) If the felony is a violent felony, as defined in subdivision (c) of section
667.5, the person shall be punished by an additional term of 10 years.” Murder is a
violent felony under section 667.5, subdivision (c)(1). Section 186.22, subdivision (b)(5)
provides: “Except as provided in paragraph (4), any person who violates this subdivision
in the commission of a felony punishable by imprisonment in the state prison for life
shall not be paroled until a minimum of 15 calendar years have been served.”
In People v. Lopez (2005) 34 Cal.4th 1002 (Lopez), the California Supreme Court
determined that a defendant who commits a gang-related violent felony and is punished
by life in prison is not subject to the 10-year enhancement under section 186.22,
subdivision (b)(1)(C), but is instead subject to the 15-year minimum parole eligibility
under section 186.22, subdivision (b)(5). (Lopez, supra, at p. 1011.) Lopez construed
section 186.22, subdivision (b)(5) according to its plain meaning after finding that the
language of the statute was unambiguous and applied to those defendants who have been
sentenced to a life term. (Lopez, supra, at pp. 1007-1008, 1011.) Unlike here, however,
the defendant in Lopez was not sentenced to life without the possibility of parole
(LWOP); the Lopez defendant was sentenced to 25 years to life. (Id. at p. 1005.)
Although there is language in Lopez that suggests otherwise, we determine that Lopez’s
reasoning compels the conclusion that section 186.22, subdivision (b)(5) applies to
defendants sentenced to life without the possibility of parole.
Lopez examined the history of the California Street Terrorism Enforcement and
Prevention Act (§ 186.20 et seq.; STEP Act), and observed that the legislative history
“stated repeatedly that section 186.22, former subdivision (b)(3) (now subdivision (b)(5))

25
applied to ‘any life prison term.’ ” (Lopez, supra, 34 Cal.4th at p. 1010.) But Lopez
noted that the 1988 enrolled bill report by the Youth and Adult Correctional Agency,
which analyzed the financial impact of the provision, stated: “ ‘ “This proposed
provision relating to life terms [former section 186.22, subdivision (b)(3), now section
186.22[, subdivision] (b)(5)] would apply to all lifers (except life without possibility of
parole).” ’ ”19 (Lopez, supra, at p. 1010.) Lopez then stated that “at the time the STEP
Act was enacted, the predecessor to section 186.22[, subdivision] (b)(5) was understood
to apply to all lifers, except those sentenced to life without the possibility of parole.”
(Lopez, supra, at p. 1010.) Generally, dicta from the California Supreme Court is highly
persuasive, and “ ‘[w]hen the Supreme Court has conducted a thorough analysis of the
issues and such analysis reflects compelling logic, its dictum should be followed.’ ”
(People v. Williams (2018) 26 Cal.App.5th 71, 87.) However, the Lopez court merely
cited to some of the statute’s legislative history and did not conduct an in-depth analysis
of whether section 186.22, subdivision (b)(5) applies to sentences of life without the
possibility of parole because that was not the issue before it.
Importantly, Lopez rejected the argument that the absence of a practical effect on a
life sentence with a minimum parole eligibility of 25 years renders section 186.22,
subdivision (b)(5) inapplicable. (Lopez, supra, 34 Cal.4th at p. 1009.) Lopez noted that
Proposition 21, the voter initiative that amended the STEP Act, stated that “ ‘if any
provision in this act conflicts with another section of law which provides for a greater

19
“[A]n enrolled bill is one that has been passed by the Senate and Assembly but
has not yet been signed by the Governor.” (Kaufman & Broad Communities, Inc. v.
Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 40.) “While enrolled bill
reports prepared by the executive branch for the Governor do not necessarily demonstrate
the Legislature’s intent [citation], they can corroborate the Legislature’s intent, as
reflected in legislative reports, by reflecting a contemporaneous common understanding
shared by participants in the legislative process from both the executive and legislative
branches.” (People v. Allen (2001) 88 Cal.App.4th 986, 995, fn. 19.)

26
penalty or longer period of imprisonment that the latter provision shall apply, pursuant to
Section 654 of the Penal Code.’ ” (Lopez, supra, at p. 1009.) Thus, Lopez determined
that “the fact that section 190,” which sets the minimum parole eligibility for first and
second degree murder, “fixes a parole eligibility date equal to or greater than that
provided by section 186.22[, subdivision] (b)(5) is neither an absurdity or an
anomaly . . . .” (Ibid.) In such situations, “the greater penalty set forth in section 190—
i.e., 25 years to life—is the proper punishment for defendant’s first degree murder
conviction.” (Ibid.)
Like the 25-year-to-life sentence in Lopez, defendants’ LWOP sentences will not
be affected by the 15-year minimum parole eligibility imposed by section 186.22,
subdivision (b)(5). This result, however, is neither absurd nor anomalous, and defendants
will face the greater punishment of life without the possibility of parole for their
convictions. (See Lopez, supra, 34 Cal.4th at p. 1009.)
We therefore conclude that under the language of section 186.22,
subdivision (b)(5) and the California Supreme Court’s reasoning in Lopez, the 10-year
gang enhancements imposed against each of the defendants must be stricken.
5. The Restitution Fines
Defendants argue that the restitution fine that was imposed under section 1202.4,
subdivision (b) should be reduced from $240 to $200, the statutory minimum at the time
the murder was committed in 2010. Defendants claim that their counsels’ failure to
object to the imposition of the restitution fines below constituted ineffective assistance
because the trial court stated its intent to impose the minimum amount.
a. Background
At the sentencing hearing, the Ruizpaz requested that the trial court “exercise [its]
discretion and impose statutory minimums [with regards to the fines and fees] where
possible in light of the sentence.” The trial court granted Ruizpaz’s request. The trial
court thereafter asked the probation officer what the statutory minimum was for the

27
restitution fine under section 1202.4, subdivision (b), and the probation officer answered
“$240.” The trial court subsequently imposed “a restitution fine of $240 under the
formula permitted by Penal Code section 1202.4[, subdivision] (b)(2), that is the
minimum.”
When it was time to sentence Torres, the trial court asked the probation officer if
the “minimum” as to the restitution fine was $240, and the probation officer answered
yes. Torres then requested that the trial court impose the minimum amounts for fines and
fees, stating that he wanted “the same as [Ruizpaz] . . . regarding fines and fees.”
Thereafter, the trial court imposed “[a] restitution fine of $240 . . . under the formula
permitted by Penal Code Section 1202.4(b)(2).”
Neither Torres nor Ruizpaz objected when the trial court imposed the restitution
fines.
b. Ineffective Assistance of Counsel
To prevail on an ineffective assistance of counsel claim, a defendant must
establish that trial counsel’s performance was deficient and that defendant suffered
prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687.) The deficient
performance component of an ineffective assistance claim requires a showing that
“counsel’s representation fell below an objective standard of reasonableness” under
prevailing professional norms. (Id. at p. 688.) Regarding prejudice, a “defendant must
show that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” (Id. at p. 694.)
c. Analysis
In April 2010, when defendants committed the murder, the minimum restitution
fine under former section 1202.4, subdivision (b)(2) would have been $200. (Stats. 2009,
ch. 454 (A.B. 576), § 1, eff. Jan. 1, 2010.) Defendants argue that their attorneys’ failure
to object to the imposition of $240 fines constituted ineffective assistance of counsel
because the trial court expressed its intent to impose the minimum amount.

28
 We agree with defendants that their attorneys’ failure to object below was
ineffective assistance. (People v. Martinez (2014) 226 Cal.App.4th 1169, 1189-1190.)
The record reflects that defendants’ attorneys requested that the trial court impose the
minimum restitution fine under section 1202.4, subdivision (b), and the trial court
expressed an intent to do so. The trial court mistakenly imposed $240 when it was
misinformed by the probation officer that the minimum restitution amount was $240.
Accordingly, this is a situation where we can conceive of no tactical reason for trial
counsel’s failure to object below. (Martinez, supra, at p. 1190.) Moreover, it is
reasonably probable that had an objection been made, the trial court would have imposed
the $200 minimum that was in effect at the time defendants committed the offense.
(Ibid.)
Accordingly, we direct the trial court to reduce the restitution fine under
section 1202.4, subdivision (b) to $200 for each defendant.
6. Ability to Pay Fines and Fees
Finally, defendants argue that, based on People v. Dueñas, supra, 30 Cal.App.5th
1157, the trial court erred when it imposed certain fines and fees without considering
their ability to pay them.
In this case, defendants argue that the trial court erred by imposing the following
fines and fees without first determining their ability to pay them: a $40 court operations
assessment (§ 1465.8), a $30 court facilities assessment (Gov. Code, § 70373), and a
$129.75 criminal justice administration fee (Gov. Code, § 29550.1) payable to the City of
San Jose20 and a $240 restitution fine (§ 1202.4, subd. (b)). In the previous section, we

20
When it imposed the criminal justice administration fees as to both defendants,
the trial court referenced three statutes, Government Code sections 29550, 29550.1, and
29550.2. The trial court, however, also specified that the fee should be paid to the City of
San Jose, so we presume that the statutory basis for the fee was Government Code section
29550.1, which entitles cities to recover a criminal justice administration fee.

29
directed the trial court to reduce the restitution fine to the statutory minimum of $200 as
to each defendant. Defendants did not make an objection to any of the imposed fines and
fees.21
The court operations assessment and the court facilities assessment are mandated
by statute. (§ 1465.8, subd. (a)(1) [court operations assessment of $40 “shall be imposed
on every conviction”]; Gov. Code, § 70373, subd. (a)(1) [court facilities assessment of
$30 “shall be imposed on every conviction”].) Those statutes require imposition of the
assessments without regard to a defendant’s ability to pay. (People v. Kim (2011) 193
Cal.App.4th 836, 842; see People v. Woods (2010) 191 Cal.App.4th 269, 272.) Likewise,
Government Code section 29550.1, which authorizes the imposition of the criminal
justice administration fee, does not include an ability to pay requirement.
In Dueñas, the appellate court concluded that imposition of the court operations
assessment (§ 1465.8) and court facilities assessment (Gov. Code, § 70373) without a
determination of the defendant’s ability to pay was “fundamentally unfair” and violated
due process under the federal and California Constitutions. (Dueñas, supra, 30
Cal.App.5th at p. 1168.) The Dueñas court also concluded 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.” (Dueñas, supra, at p. 1164.)
The Courts of Appeal, including panels of our own court, have reached conflicting
conclusions on whether Dueñas was correctly decided. (See, e.g., Santos, supra, 38

21
The Courts of Appeal have reached different conclusions regarding whether a
due process claim under Dueñas is forfeited if the defendant failed to object in the trial
court. (See, e.g., People v. Rodriguez (2019) 40 Cal.App.5th 194, 206 [Dueñas claim
forfeited]; People v. Jones (2019) 36 Cal.App.5th 1028, 1031-1034 [due process
objection based on Dueñas not forfeited]; People v. Santos (2019) 38 Cal.App.5th 923,
932 (Santos) [claim based on Dueñas not forfeited].) We assume for the purposes of our
analysis that defendants did not forfeit their due process claims under Dueñas.

30
Cal.App.5th at pp. 926-927 [applying the “principles articulated [in Dueñas]”]; id. at
pp. 935-939 (dis. opn. of Elia, J.); People v. Adams (2020) 44 Cal.App.5th 828, 832
[concluding that “Dueñas was wrongly decided”]; id. at pp. 832-833 (dis. opn. of Premo,
J.); People v. Petri (2020) 45 Cal.App.5th 82, 90 [finding that Dueñas was not
“persuasive”]; id. at p. 95 (conc. & dis. opn. of Premo, J.).) The issue of whether an
ability to pay determination must be made is currently pending before the California
Supreme Court. (See, e.g., People v. Kopp (2019) 38 Cal.App.5th 47, 95 [agreeing with
Dueñas that due process requires an ability to pay determination before imposition of
court operations or court facilities assessment], review granted Nov. 13, 2019, S257844.)
Pending the California Supreme Court’s decision in Kopp, we continue to adhere to the
position that Dueñas was incorrectly decided.22
Therefore, we conclude that the trial court did not err by imposing the restitution
fine, court operations assessment, court facilities assessment, criminal justice
administration fine, and the restitution fine without first finding that defendants had the
ability to pay them.
DISPOSITION
The judgment is reversed, and the matter is remanded for the limited purpose of
allowing the trial court to consider whether to exercise its newly enacted discretion to
strike defendants’ Penal Code section 12022.53, subdivision (d) firearm enhancements.
On remand, the trial court is further directed the modify the judgment as to both
defendants by striking the 10-year gang enhancements (Pen. Code, § 186.22,

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Dueñas did not address criminal justice administration fees. However, our
conclusion that Dueñas was incorrectly decided applies with equal force to defendants’
arguments pertaining to the imposition of their criminal justice administration fees.
Government Code section 29550.1 does not require the trial court to consider a
defendant’s ability to pay; thus, the trial court did not err by imposing the fee without
determining defendants’ ability to pay.

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subd. (b)(1)(C)) and reducing the restitution fines (Pen. Code, § 1202.4, subd. (b)) to
$200. If the trial court strikes any of the firearm enhancements, it shall resentence the
defendant(s) accordingly. If the trial court declines to strike the firearm enhancement(s),
the trial court will reinstate the original sentence(s) subject to the above modifications.

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 BAMATTRE-MANOUKIAN, J.

WE CONCUR:

ELIA, ACTING P.J.

GROVER, J.

People v. Ruizpaz
H044593