People v. Reddy CA4/2

Filed 7/1/21 P. v. Reddy 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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, E074385

v. (Super.Ct.No. INF1700068)

KEVIN JAMES REDDY, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John M. Davis, Judge.

Affirmed.

Susan S. Bauguess, 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, Michael Pulos and Nora S. Weyl,

Deputy Attorneys General, for Plaintiff and Respondent.

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 Appellant Kevin James Reddy got into an altercation with an acquaintance who

was staying in his home. Reddy was armed with a semiautomatic handgun, which went

off and struck the acquaintance in the torso. The victim survived but suffered substantial

injuries. At trial, the jury heard different versions about the fight from the victim, who

testified, and Reddy, whose shifting versions of the events came in through statements he

had given to the police. The jury credited the victim and found Reddy guilty of assault

with a firearm, which it found Reddy used during commission of the assault.

Reddy appeals his conviction on two grounds. First, he argues the trial court erred

by redacting from a sworn declaration by the victim made in a separate civil suit the fact

that he believed the shooting was accidental. However, defense counsel used the prior

statement as a means of getting the victim to admit he had signed such a statement and to

explain what he meant by it. Thus, the statement in the declaration itself was cumulative

and its exclusion was not prejudicial.

Second, Reddy argues there was insufficient evidence that he acted willfully in

shooting the victim and that he wasn’t acting in self-defense. However, the jury could

have credited the victim’s testimony about the event, according to which Reddy left the

scene of a fight between the two, went to another room hunting frantically for something,

and then returned to the victim and shot him immediately upon finding him in the hall.

That testimony supported the jury’s finding that Reddy acted willfully and not in self-

defense.

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 Reddy also appeals the imposition of a $10,000 restitution fine, a $10,000 parole

revocation fine, a criminal conviction assessment of $60, a court operations assessment of

$80, a booking fee of $514, a presentence probation report fee of no more than $1,095,

and $175,000 in victim restitution. Reddy objected to none of these fines, fees, and

assessments in the trial court and has therefore forfeited these arguments. With respect to

the victim restitution, he has also failed to present a sufficient basis for overturning it on

the merits.

I

FACTS

A. The Offense

In the early morning hours of December 27, 2016, Kevin James Reddy and his

friend David had an altercation at Reddy’s house in Indio. David was shot but survived.

David had been staying at Reddy’s house for a few days. He said Reddy’s father had

asked him to keep an eye on Reddy because he was having problems with his ex-wife,

who had left and taken their son.

Before the shooting, Reddy and David had watched football and drank beer with

Reddy’s parents and David’s girlfriend. After the game, the others left for their homes,

but David and Reddy stayed up for a while smoking marijuana and talking. David said

Reddy was upset that he hadn’t been able to spend Christmas with his wife and son.

Around 10:30 or 11:00 p.m., David went to bed, but Reddy stayed up and kept drinking.

Within about an hour, Reddy burst into David’s bedroom wanting to show off one of his

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handguns. He said Reddy appeared “buzzed” and was staggering and slurring his words.

David told him to get out of the bedroom, and Reddy left on his own.

About 15 minutes later, Reddy came back. “[T]he door burst open again, but this

time it was a little more forceful. And he was waving another gun around or whatever.

And I was, like, ‘Dude, really, you know? Shut it down man. Turn in.” Reddy responded,

“Check this gun out, bro.” David said he was startled and irritated the second time, and

was harsh with Reddy and forced him out of the room. “I said, ‘This is bullshit, man.’ . . .

I started going off on him about, you know, that’s his son’s room. So . . . I said, ‘Hey, do

you do this to your son and wife? Is that why they took off.’” David said he pushed

Reddy out of the room and they struggled at the door. Before closing the door, David

threatened he was “going to fuck [him] up” if he came in again, which he explained was

intended as a threat to hit Reddy.

Reddy came back anyway. David said this time Reddy came through the door

“almost kicking it. Was Rambo shit.” According to David, Reddy held a different

handgun and was waving it around and pointing it at him. At one point Reddy said, “I

could kill you.” David jumped out of bed and hit Reddy once or twice with his fist. He

said by this point he was scared Reddy was going to shoot him. He told him to drop the

gun and tried to “wrap him up.” They struggled over the weapon, staggered out of the

bedroom and eventually ended up in a bathroom. Reddy refused to release the gun and

demanded to be released. Eventually, David released Reddy, and “he came out of his

restroom and went back towards the hall towards the living room.”

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 David said he could hear Reddy frantically going through drawers in the living

room. He crept closer to see what Reddy was doing and looked around the corner. Reddy

came around the corner from the other direction and looked surprised when he saw

David. His hand came up and he shot David in the torso. David yelled, “You just killed

me, MF. You just killed me. What’s wrong with you?” and then went to his bedroom to

get his cell phone and call for emergency assistance. While heading for the door, he heard

Reddy say, “Dad, I just shot Dave.” Phone records indicated Reddy had called his father

at 1:05 a.m. and the call lasted 12 seconds. David said Reddy saw him as he was leaving

and told him to get out of the house.

Police arrived at about 1:07 a.m. and found David on the ground two houses away

from Reddy’s house. An ambulance arrived and took him to the hospital. At 1:12 a.m.,

Reddy called to report the shooting. Reddy asked for medical assistance and said he had

been attacked. Reddy reported that David had been armed with a gun and beat him up.

Reddy claimed he took the gun from David and shot him in self-defense. Phone records

show Reddy again made a short call to his father at 1:15 a.m. and then received a

somewhat longer call from his father at 1:18 a.m. He then received a second short call

from an unregistered number at 1:18 a.m. At about 1:19 a.m., Reddy came out of his

house with his hands up.

Police detained Reddy and drove him to the police station. During the drive,

Reddy said he had to shoot David because he was acting crazy and he thought David was

going to shoot him. He said he tried to help, but David was using drugs and attacked him.

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The officer observed Reddy had a swollen left eye with a couple of drops of blood near

the swelling and appeared to have abrasions near the back of his neck and left ear. The

police drew Reddy’s blood at 5:36 a.m. and found he had a blood alcohol concentration

of .12 percent.

Officers found a .32-caliber semiautomatic handgun on the floor inside Reddy’s

house, near the front door. The gun had a live round in the chamber and a magazine with

four additional rounds. It was in a loaded and cocked position. They found a casing on

the dining table and a live round on the floor. They found a pair of David’s jeans on the

floor of the room where he was staying. A holster was attached to the jeans and a

magazine holding .32-caliber ammunition was in the jeans front pocket. David testified

that the holster didn’t belong to him and said he didn’t have a magazine with ammunition

in his jeans pocket the day of the shooting. A detective testified that pants material

wouldn’t be bunched up underneath a holster clip, as it was on David’s jeans, if the

holster had been affixed when a person was wearing the pants. The investigator said it

looked like the holster had been planted on David’s pants.

In a videotaped interview with detectives, which the jury viewed, Reddy claimed

their fight started when he told David he had to move out of the house the next day.

Reddy said he told David to leave because he suspected David was using

methamphetamine in his house and it was making him nervous. He said David said he

wouldn’t leave, and Reddy told him to leave immediately, and David responded by

attacking him. “I’m like, ‘Dave, so what’s up? You know, what’s your plan, are you

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leaving? Are you, you know, what are you doing?’ And he turns to me and snaps at me—

just snaps at me, just like that. He gets right in my face and pushing me back—and

pushing me against the wall. I go, ‘Dude, what the fuck man, what are you doing?’ The

next thing you know, we’re fighting.” According to Reddy, David took a gun out of his

waistband and pointed it at his face. Reddy said he took defensive action, grabbed the

gun, and in doing so it went off.

Reddy tried to demonstrate how he took the gun, but one of the detectives

expressed skepticism and asked for a fuller explanation. Reddy demonstrated the move,

saying he had “crossed [his] hands like that” and said his finger was probably on the

trigger when he grabbed the gun. Reddy said he didn’t intend for his finger to be on the

trigger, but the gun went off when he took it from David and was pulling back “because

[he] finally had it.” After the shooting, David stopped fighting and Reddy ordered him to

leave. Reddy told the police he didn’t know David had a gun.

One of the detectives conducting the interview was trained in weapons retention

and takeaway and was a former firearms instructor. The detective told the jury Reddy’s

description of his defense tactics was suspicious and was not a technique in which he and

his officers were trained. The detective said he had seen the type of weapon removal

technique Reddy claimed he had used only on television programs.

Investigators asked several times if Reddy had additional guns or ammunition at

his home. At first, Reddy said the only gun was a registered shotgun he kept under his

bed. Asked about ammunition, he said he had a safe in his garage that had ammunition

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for an SKS but that he no longer had the weapon. When asked for the garage safe

combination, Reddy hesitated and then changed his story, saying the safe contained a

Japanese rifle. He denied the safe contained handguns or handgun ammunition. When the

detectives told him they would have to break the safe open, Reddy said it contained

private paperwork. Reddy then admitted there was also a .22 Winchester in the safe. He

again denied having handguns in the house.

After the interview, detectives returned to Reddy’s home. There, they found in the

safe a box of the same .32-caliber ammunition for the gun used in the shooting. Some

ammunition was missing from the box. Based on the ammunition round markings, the

detective told the jury he believed the ammunition recovered from the garage safe

matched the ammunition inside the handgun which had been used in the shooting. The

police found other guns throughout the house, and also found ammunition to match each

gun. Only the gun used in the shooting matched the .32-caliber ammunition found in the

safe.

After police had located the .32-caliber ammunition and other items, they

confronted Reddy about what they’d found. When asked about the .32-caliber

ammunition and told him they would send it to the lab with the gun, Reddy changed his

story and admitted the .32-caliber gun used in the shooting belonged to him and claimed

David had taken his gun. The investigator asked how David could have found Reddy’s

gun since all his guns were locked up. Reddy initially agreed, but then said not all his

guns were locked up. He said David must have found the gun in Reddy’s bedroom

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dresser when he’d left to go shopping. Asked why he had lied at first, he said they

wouldn’t have believed him if they knew he owned the gun.

David was in the hospital for about two weeks. He was interviewed by detectives

four or five days after the shooting, while recovering from surgery. He told a detective

Reddy had said, “I could kill you right now,” when he first came into the room to show

him a gun though David also said he didn’t take the comment as serious at that point.

However, by the time of the fight, David said he “thought he was going to shoot me. I

was scared, you know? The fear had escalated. It wasn’t just like, you know, the first

couple times he came in, I just blew it off.”

David suffered a gunshot wound to his abdomen and the bullet went through his

liver. The gunshot resulted in bleeding and lacerations to the liver for which David

underwent two separate surgeries.

David acknowledged he had used methamphetamine at some point before he

stayed at Reddy’s house but said he hadn’t used methamphetamine while staying there.

He also acknowledged he had prior felony convictions for welfare fraud, grand theft,

theft from an elder person, vehicle theft, providing a false name to police, and a

misdemeanor conviction for fighting with a police officer.

B. Defense Case

In his defense, Reddy presented evidence tending to heighten David’s

responsibility for the incident and undermine his credibility. A police officer testified that

David told him he and Reddy were fighting over a gun when he was shot. He also

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reported that David tested positive for amphetamine, methamphetamine, and

cannabinoids the morning after the shooting. Reddy’s father said Reddy called him after

midnight the night of the incident and said he and David had been in an argument, David

had punched him in the face and pulled a weapon, and David had been hit when the

weapon went off. A private investigator said he didn’t believe the fabric being bunched

up under the holster clip supported the police investigator’s conclusion that it had been

placed on the pants while they were on the floor. The owner of a moving business

testified that David worked for him, was twice rehired and fired, but was terminated for

poor attendance and other issues, was untrustworthy and dishonest.

C. Conviction and Sentence

On October 9, 2019, Reddy pled guilty to possessing an assault weapon. (Pen.

Code § 30605, subd. (a), unlabeled statutory citations refer to this code.) The next day, a

jury found Reddy guilty of assault with a firearm (§ 245, subd. (a)) and found appellant

had personally used a firearm during commission of the assault (§§ 12022.5, subd. (a) &

1203, subd. (e)(2)).

The trial judge subsequently sentenced Reddy to a term of three years in state

prison, plus three consecutive years for the enhancement. The trial judge sentenced

Reddy to 16 concurrent months for possessing an assault weapon. The trial judge also

imposed certain fines, fees, and assessments discussed in detail in part II.C.

Reddy filed a timely notice of appeal.

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 II

ANALYSIS

A. Redacting the Declaration

Reddy argues the trial judge erred by redacting David’s statement that he believed

the gun had discharged accidentally from a declaration he had signed under penalty of

perjury. Reddy argues redacting the statement was a prejudicial abuse of discretion.

1. Additional background

During pretrial proceedings, defense counsel disclosed that David had signed a

declaration under penalty of perjury in a civil lawsuit against Reddy and his

homeowner’s insurance company. Defense counsel represented David had recovered

several hundred thousand dollars in that lawsuit and had “made yet another version of

events of how this thing happened” and said, “I intend to use that explanation.” The judge

said the declaration would seem to be admissible for impeachment purposes if David

“testifies inconsistently with [the signed statement] at trial.” He ruled any monetary

recovery David received in the civil proceeding was irrelevant and inadmissible.

At trial, defense counsel cross-examined David on whether he had signed a

declaration in another case which said he believed the shooting could have been an

accident. “In that separate proceeding, did you, in fact, sign an affidavit indicating that in

your opinion the shooting could have—was an accident?” David responded, “Yeah, I felt

it could have been at the time.” Counsel then asked, “And what motivated you to sign

that document and declare under penalty of perjury you thought it could have been an

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accident?” David responded, “Because of his disposition—his mental disposition is the

only reason I thought that it might have been an accident at the time.” Defense counsel

didn’t offer to show David the declaration during this line of questioning. When he later

asked David if he recognized the declaration, the prosecutor objected, and the court held

a sidebar discussion off the record.

Following the sidebar, defense counsel asked David if he had signed and dated the

document, whether it was made under penalty of perjury, and whether he had stated in

the document, “Reddy came back a few minutes later. And again, [he] brandished the

gun. I got up, and we struggled with me trying again to get the gun away from [him], but

the gun went off shooting me in the stomach.” David acknowledged the statement and his

signature on the declaration but said he didn’t remember making the statement. The trial

judge then ordered defense counsel to stop the line of questioning. The next sentence in

the declaration says, “I believe this was an accidental discharge of the gun by Mr.

Reddy.”

At the close of evidence during discussion of the admission of exhibits, the trial

judge returned to the admissibility of the declaration. The trial judge noted, “I previously

ruled [the declaration] was not to be admitted because the statement in there by the victim

that it was an accidental shooting was speculative. And so defense wants it in and also

wants to make more of a record.”

Defense counsel argued the entire declaration was admissible because David’s

whole description of the incident differed from his description of the incident in his direct

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testimony, including the statement that he thought the shooting was accidental. Defense

counsel acknowledged, but disagreed with, the trial court’s ruling that the statement that

David believed the gun accidentally discharged was speculative. He asked for the entire

declaration to be admitted but suggested that if the trial court wanted to exclude the

declaration based only on the last line, that sentence could be redacted.

The prosecutor objected that defense counsel had questioned David about the

entire statement, and “everything that was in the statement was elicited on the stand.” He

objected that “it would be tantamount to me marking police reports and saying I’m going

to submit this to the jury because it marks what the contradictory, what the impeachment

testimony is.” He also objected that the declaration was hearsay.

The trial judge ruled the entire declaration would be admitted except for the

sentence, “I believe this was an accidental discharge of the gun by Mr. Reddy.”

2. Legal analysis

Reddy argues the decision to redact the line of the declaration was error which

deprived him of his right to a fair trial. He argues the statement that David believed the

shooting was accidental was important relevant evidence because his direct testimony

was inconsistent with that statement.

“No evidence is admissible except relevant evidence,” and “[e]xcept as otherwise

provided by statute, all relevant evidence is admissible.” (Evid. Code, §§ 350, 351.) That

bar is low; evidence is relevant if it has “any tendency in reason to prove or disprove any

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disputed fact that is of consequence to the determination of the action.” (Evid. Code,

§ 210.)

However, a trial judge may exclude relevant evidence under Evidence Code

section 352 “if its probative value is substantially outweighed by the probability that its

admission will (a) necessitate undue consumption of time or (b) create substantial danger

of undue prejudice, or confusing the issues, or of misleading the jury.” (Evid. Code,

§ 352; see also People v. Miles (2020) 9 Cal.5th 513, 587.) “‘[T]he exclusion of evidence

which has only a cumulative effect will not justify reversal on appeal.’” (Horn v. General

Motors Corp. (1976) 17 Cal.3d 359, 371.)

We review the trial judge’s exercise of discretion in admitting or excluding

evidence for abuse of discretion. (People v. Merriman (2014) 60 Cal.4th 1, 74.) We

won’t disturb an evidentiary ruling “except on a showing that the court exercised its

discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest

miscarriage of justice.” (People v. Miles, supra, 9 Cal.5th at pp. 587-588.)

The decision to exclude David’s written statement that the shooting may have

been an accidental discharge fell within the trial judge’s discretion under Evidence Code

section 352. This is so for the very simple reason that defense counsel ably used the

contested statement in the declaration to elicit David’s testimony acknowledging he had

previously said he believed the weapon had discharged accidentally. He asked, “In that

separate proceeding, did you, in fact, sign an affidavit indicating that in your opinion the

shooting could have—was an accident?” David responded, “Yeah, I felt it could have

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been at the time.” Counsel then asked David to explain why he thought it was an

accident. David responded, “Because of his disposition—his mental disposition is the

only reason I thought that it might have been an accident at the time.” What this

testimony shows is that defense counsel used the prior statement to elicit the

impeachment testimony Reddy now claims was excluded from trial. Thus, the trial judge

could reasonably have excluded the statement in the declaration itself as cumulative

under Evidence Code section 352. (See People v. Duff (2014) 58 Cal.4th 527, 558.)

In any event, the same consideration shows the ruling was not prejudicial.

Excluding the written statement couldn’t have caused Reddy prejudice when his counsel

had already obtained testimony on precisely the same point. The jury could have

concluded based on that testimony that David had changed his story about Reddy’s

culpability to suit his own purposes. It could have found David to be a witness who

lacked credibility as a general matter or on details of the shooting. As it happens, the jury

appears not to have rejected David’s testimony on that basis. But the fact that the jury

already knew about his prior statement convinces us it’s not reasonably probable

providing the jury with an exhibit making the same point in written form would have

produced a more favorable result. (People v. Partida (2005) 37 Cal.4th 428, 439.)

B. Substantial Evidence Supports the Assault with a Deadly Weapon Conviction

Reddy argues insufficient evidence supports his assault with a firearm conviction

because (1) there was a lack of evidence that he acted willfully; and (2) the prosecution

failed to sustain its burden of proving he didn’t act in self-defense.

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 In a challenge to the sufficiency of the evidence, we review “the whole record in

the light most favorable to the judgment below to determine whether it discloses

substantial evidence—that is, evidence that is reasonable, credible and of solid value—

from which a reasonable trier of fact could find the defendant guilty beyond a reasonable

doubt. [Citations.]” (People v. Snow (2003) 30 Cal.4th 43, 66.) “We presume in support

of the judgment the existence of every fact the trier of fact reasonably could infer from

the evidence. If the circumstances reasonably justify the trier of fact’s findings, reversal

of the judgment is not warranted simply because the circumstances might also reasonably

be reconciled with a contrary finding. A reviewing court neither reweighs evidence nor

reevaluates a witness’s credibility.” (People v. Booker (2011) 51 Cal.4th 141, 172

[cleaned up].) “Unless it describes facts or events that are physically impossible or

inherently improbable, the testimony of a single witness is sufficient to support a

conviction.” (People v. Elliott (2012) 53 Cal.4th 535, 585.)

To prove assault with a firearm, the prosecution must establish: (1) the defendant

willfully committed an act with a firearm that by its nature would directly and probably

result in the application of force on another person; (2) at the time, he was aware of facts

that would lead a reasonable person to realize his act would directly and probably result

in the application of force; (3) he had the present ability to apply force with a firearm;

and, (4) he did not act in self-defense. (§ 245, subd. (a); People v. Aznavoleh (2012) 210

Cal.App.4th 1181, 1186-1187.) Assault is a general intent crime, which doesn’t require a

specific intent to injure the victim. (People v. Wyatt (2012) 55 Cal.4th 694, 702.)

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 1. Willfulness

Reddy argues the evidence was insufficient to show he acted willfully. He

emphasizes the testimony that after an initial struggle, the two separated and he walked

toward the living room. The shooting occurred only then, after a surprise re-encounter

coming around a corner. “Appellant had a surprised look on his face. Just then, their

‘eyes met,’ appellant’s hand came up and [David] was shot ‘center mass.’ Thereafter,

[David] noted [Reddy]’s ‘eyes got big.’ [Citation.] Based on that testimony, [Reddy’s]

response to seeing [David] suggested the encounter to be a total surprise to him and even

to [David].” Reddy concludes this evidence shows Reddy did not fire the gun at David

willfully or on purpose.

It’s true that is one inference the jury could have drawn from the evidence.

However, it’s also clear the jury didn’t draw that inference. It’s not our job to determine

which inference was best supported, but whether the inference the jury in fact made has

substantial—meaning solid, reasonable—support. We think it did. David said Reddy

busted into his bedroom when he was trying to sleep three times to show him various

guns. The second time, David warned Reddy he would hit him if he came in again.

Nevertheless, Reddy persisted, and David followed through by attacking him. After the

two struggled, David let Reddy go, and Reddy went toward the living room area.

But Reddy’s aggressive behavior didn’t stop there. David said he heard Reddy

frantically going through drawers and went to investigate. David said Reddy came back,

saw David, raised his arm, and shot him. This evidence underwrites the inference that

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Reddy never put the gun down even after the confrontation had ended, but instead was

walking around the house with a semiautomatic handgun. It also supports the inference

that Reddy was returning to find David. The fact that Reddy was surprised when he found

David coming around the corner toward him isn’t in any way inconsistent with the jury’s

finding that he acted willfully. If Reddy was going back armed to accost David in his

bedroom, finding him unexpectedly outside the room would of course have been

surprising and even frightening. It’s Reddy’s conduct, not his facial expressions, that

speak most plainly about his purpose. And what Reddy did, according to David, was raise

his arm and fire a loaded handgun at David. The jury acted reasonably in finding from

that evidence that Reddy acted willfully.

In any event, “[a]ssault with a deadly weapon can be committed by pointing a gun

at another person, but it is not necessary to actually point the gun directly at the other

person to commit the crime.” (People v. Raviart (2001) 93 Cal.App.4th 258, 263 [cleaned

up]; People v. Miceli (2002) 104 Cal.App.4th 256, 268-269 [pointing loaded gun at the

victim may constitute assault with a firearm even if no attempt is made to fire the

weapon].) Simply holding the handgun that enabled him to use it was grounds for the jury

finding that Reddy had an intent to shoot David. (People v. Thompson (1949) 93

Cal.App.2d 780, 782 [although the defendant did not point the gun directly at the victims,

because it was positioned to be used instantly the evidence supported an assault

conviction].)

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 2. Lack of self-defense

Reddy also argues the People failed to prove beyond a reasonable doubt that

Reddy was not acting in self- defense.

“Self-defense is a defense to assault with a firearm . . . [¶ . . . ¶] The People have

the burden of proving beyond a reasonable doubt that the defendant did not act in lawful

self-defense.” (CALCRIM No. 3470.) The jury was instructed that “[t]he defendant acted

in lawful self-defense if: [¶] 1. [He] reasonably believed that he was in imminent danger

of suffering bodily injury or was in imminent danger of being touched unlawfully; [¶] 2.

[He] reasonably believed that the immediate use of force was necessary to defend against

that danger; [¶] AND [¶] 3. [He] used no more force than was reasonably necessary to

defend against that danger. [¶] . . . [¶] When deciding whether the defendant’s beliefs

were reasonable, consider all the circumstances as they were known to and appeared to

the defendant and consider what a reasonable person in a similar situation with similar

knowledge would have believed. If the defendant’s beliefs were reasonable, the danger

does not need to have actually existed. [¶] . . . [¶] A defendant is not required to retreat

. . . .”

Here, a reasonable trier of fact could have found beyond a reasonable doubt that

Reddy didn’t act in self-defense because the circumstances didn’t make it reasonable to

believe he was in imminent danger. Though the two had struggled previously, David said

he had released Reddy who went to the living room area still armed. Their fistic

encounter had ended. Moreover, as we discussed, the evidence supported the inference

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that Reddy was armed and heading back toward David’s bedroom when they encountered

each other. The jury could have concluded Reddy was returning to confront David after

their prior fight had ended, which would establish he wasn’t acting in reasonable self-

defense. When Reddy encountered David, David testified Reddy raised his gun and shot

him when David was simply standing there. The jury could reasonably conclude from

that evidence that Reddy did not have a reasonable belief that he was in imminent danger.

Though this version of the events came from David, and Reddy told a different story, the

testimony of a single witness is sufficient to support a conviction. (People v Young

(2005) 34 Cal.4th 1149, 1181.)

C. Fines and Fees

Reddy argues the trial judge erred under Dueñas, which held that imposition of

certain fines and fees on indigent defendants, without any finding as to ability to pay,

violates the due process guarantees in the United States Constitution and the California

Constitution. (People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168 (Dueñas).) In the

alternative, he argues the trial court erred because the imposition of certain fines and fees

was a violation of the prohibition against excessive fines in the California Constitution. In

either case, he asks us to reverse the fees, stay the imposed fines, and remand the case to

the trial judge to allow him to conduct an ability to pay hearing.

His arguments reach the trial judge’s imposition of a $10,000 restitution fine

(§ 1202.4), a $10,000 parole revocation fine (Pen. Code, § 1202.45), a criminal

conviction assessment of $60 (Gov. Code, § 70373, subd. (a)(1)), a court operations

20
assessment of $80 (Pen. Code, § 1465.8), a booking fee of $514 (Gov. Code, § 29550),

and a presentence probation report fee of no more than $1,095 (Pen. Code, § 1203.1b).

He also objects that the $10,000 restitution fine exceeded the amount recommended by

the statutory formula. The People argue Reddy forfeited any objection to the imposition

of the fines and fees, and in any case the failure to hold an ability to pay hearing was

harmless error.

Section 1202.4 requires the sentencing court to impose a minimum restitution fine

of $300 for all felony convictions “unless it finds compelling and extraordinary reasons

for not doing so.” (§ 1202.4, subd. (c).) However, the statute instructs “inability to pay

shall not be considered a compelling and extraordinary reason not to impose a restitution

fine” and “may be considered only in increasing the amount of the restitution fine in

excess of the minimum.” (§ 1202.4, subd. (c).) In other words, section 1202.4 prohibits

courts from considering a defendant’s ability to pay if they are imposing the minimum

$300 restitution fine but allows it if they are imposing a fine greater than $300.

However, Dueñas changed the law and found unlawful section 1202.4’s

prohibition on considering inability to pay for minimum restitution fines. Indeed, the

Dueñas court found that due process required an ability to pay hearing. The court held

“that although Penal Code section 1202.4 bars consideration of a defendant’s ability to

pay unless the judge is considering increasing the fee over the statutory minimum, the

execution of any restitution fine imposed under this statute must be stayed unless and

until the trial court holds an ability to pay hearing and concludes that the defendant has

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the present ability to pay the restitution fine.” (Dueñas, supra, 30 Cal.App.5th at

p. 1164.)

The Dueñas court reached a similar conclusion with respect to assessments

imposed under Penal Code section 1465.8 and Government Code section 70373. Those

provisions mandate assessments on every criminal conviction except parking convictions,

without regard to the defendant’s ability to pay. (Dueñas, supra, 30 Cal.App.5th at

p. 1164.) However, the court concluded “due process of law requires the trial court to

conduct an ability to pay hearing and ascertain a defendant’s present ability to pay before

it imposes court facilities and court operations assessments under Penal Code section

1465.8 and Government Code section 70373.” (Ibid.)

Here, it’s undisputed the trial court did not hold a hearing to determine whether

Reddy had the ability to pay the fines and fees imposed. However, the People argue

Reddy forfeited his right to challenge the fines and fees by failing to object when they

were imposed. “In order to encourage prompt detection and correction of error, and to

reduce the number of unnecessary appellate claims, reviewing courts have required

parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and

meaningful objection forfeits or waives the claim.” (People v. Scott (1994) 9 Cal.4th 331,

351.) “A constitutional right, or a right of any other sort, may be forfeited in criminal as

well as civil cases by the failure to make timely assertion of the right before a tribunal

having jurisdiction to determine it.” (People v. McCullough (2013) 56 Cal.4th 589, 593,

[cleaned up].) These general forfeiture rules apply straightforwardly to a defendant

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claiming the trial court violated their due process right or the prohibition on excessive

fines by failing to hold an ability to pay hearing under Dueñas if they were sentenced

after Dueñas was decided. (See, e.g., People v. Nelson (2011) 51 Cal.4th 198, 227

[holding defendant forfeited his right to challenge a $10,000 restitution fine on ability to

pay grounds because “[a]t the time of his . . . sentencing, the law called for the court to

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

objected at the time”].)

Here, Reddy forfeited his right to challenge the trial judge’s failure to hold an

ability to pay hearing. The opinion in Dueñas was issued on January 8, 2019. Reddy’s

sentencing hearing was held on December 19, 2019, nearly a year later. Reddy knew or

should have known he had a right to request an ability to pay hearing at the time he was

sentenced, and before his appeal. Thus, he forfeited his ability to object to the imposition

of fees and fines. (People v. Jenkins (2019) 40 Cal.App.5th 30, 40-41 [applying forfeiture

to restitution and parole revocation fines and court operations and criminal conviction

assessments].) With respect to the $10,000 restitution fine, Reddy, “had a statutory right,

and [was] obligated, to object to the imposition of the restitution fine[] above the $300

minimum.” (People v. Lowery (2020) 43 Cal.App.5th 1046, 1053-1055; see also §

1202.4, subd. (c) [inability to pay may be considered when the restitution fine is

increased above the minimum].)

Because of this, Reddy argues his counsel was constitutionally ineffective for

failing to object and request an ability to pay hearing. To establish ineffective assistance

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of counsel, “the defendant must first show counsel’s performance was deficient, in that it

fell below an objective standard of reasonableness under prevailing professional norms.

Second, the defendant must show resulting prejudice, i.e., a reasonable probability that,

but for counsel’s deficient performance, the outcome of the proceeding would have been

different.” (People v. Mai (2013) 57 Cal.4th 986, 1009.) On direct appeal, a defendant

establishes ineffective assistance “only if (1) the record affirmatively discloses counsel

had no rational tactical purpose for the challenged act or omission, (2) counsel was asked

for a reason and failed to provide one, or (3) there simply could be no satisfactory

explanation. All other claims of ineffective assistance are more appropriately resolved in

a habeas corpus proceeding.” (Ibid.) “[R]arely will an appellate record establish

ineffective assistance of counsel.” (People v. Thompson (2010) 49 Cal.4th 79, 122.) We

will find ineffective assistance of counsel only if “there could be no conceivable reason

for counsel’s acts or omissions.” (People v. Weaver (2001) 26 Cal.4th 876, 926.)

The record doesn’t explain why Reddy’s counsel didn’t object to the fines and

fees. However, this decision may have had nothing to do with Reddy’s ability to pay or

lack thereof. A 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 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

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or his or her dependents as well as intangible losses, such as psychological harm caused

by the crime.” (§ 1202.4, subd. (d).)

The probation report recommended $10,000 as a restitution fine. The report notes

the victim “sustained life-threatening injuries at the hands of the defendant. After two

surgeries, he survived and was able to provide a statement to police, which assisted them

in determining the defendant was, in fact, the assailant. David . . . explained his life had

been financially ruined by the defendant’s assault, and had caused him great pain,

suffering and made him question his future ability to work. He sold all of his personal

belongings to help pay for his recovery and to wait out the criminal justice process to

sentencing.” These facts are relevant to the judge’s decision to increase the restitution

amount because they show the offense was extremely serious and the losses suffered by

the victim were extreme. (§ 1202.4, subd. (d).) It is conceivable that trial counsel

concluded it was futile to argue against these fines and fees in view of the seriousness of

the offense and the extreme injury to the victim. (People v. Thompson, supra, 49 Cal.4th

at p. 122 [“Counsel is not ineffective for failing to make frivolous or futile motions”].)

Moreover, the probation officer’s report and the record show Reddy may have had

some ability to pay. Reddy was in his mid-forties and lived alone in his two-bedroom

house located in Indio. His sentencing brief said he was “gainfully employed, owned his

own business, had his own employees, was in the middle of a $170K contract, owned his

own home.” The probation report said he had started a window cleaning and landscaping

business, which he closed for about two years during the Great Recession, but later

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successfully reopened. Thus, the record shows Reddy is industrious and potentially

capable of paying the fines either through existing assets or future earning capacity.

Given the seriousness of Reddy’s offense, the court’s decision to follow the

probation department’s recommended fine, and the fact that Reddy might have had the

ability to pay, Reddy’s attorney may have concluded that objecting to the restitution fine

would have been pointless. The most Reddy stood to gain by objecting was receiving a

hearing. Therefore, if Reddy’s counsel felt there was enough for a court to conclude he

had an ability to pay, the objection would have only delayed proceedings. The same

considerations apply with equal force to counsel’s decision not to object to the fees.

“We cannot speculate, given the absence of information before us, what led to

defense counsel’s decision not to object, but a myopic focus on [defendant’s] financial

circumstances that neglects any of the other factors at play in a sentencing hearing may

not provide an accurate picture of counsel’s strategic calculus.” (Acosta (2018) 28

Cal.App.5th 701, 707.) “We have no idea why counsel did not raise the ability to pay

issue,” and therefore conclude defendant’s ineffective assistance of counsel claim would

be better addressed through a petition for habeas corpus, not on direct appeal. (People v.

Keene (2019) 43 Cal.App.5th 861, 864-865.)

As for Reddy’s objection that the restitution fine exceeded the statutorily

recommended amount, we conclude the trial judge didn’t abuse his discretion for many of

the same reasons. Section 1202.4 places the determination of the fine amount within the

discretion of the trial judge, so long as he lands within the $300 minimum and $10,000

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maximum. (§ 1202.4, subd (b)(1).) It’s recommended that the judge set the fine amount

“as the product of the minimum fine pursuant to paragraph (1) multiplied by the number

of years of imprisonment the defendant is ordered to serve, multiplied by the number of

felony counts of which the defendant is convicted.” (§ 1202.4, subd. (b)(2).) However, as

we’ve seen, the statute directs the judge to consider any relevant factors, including the

seriousness and gravity of the offense and the extent to which any other person suffered

losses as a result of the crime. (§ 1202.4, subd. (d).)

Some of these factors favor imposing a high restitution fine. Under the statutory

formula, Reddy would have faced a fine of $3,600 due to its seriousness as reflected in

the length of the sentence. The probation report recommended $10,000 without

explanation. However, the report notes the victim “sustained life-threatening injuries at

the hands of the defendant. After two surgeries, he survived and was able to provide a

statement to police, which assisted them in determining the defendant was, in fact, the

assailant. David . . . explained his life had been financially ruined by the defendant’s

assault, and had caused him great pain, suffering, and made him question his future

ability to work. He sold all of his personal belongings to help pay for his recovery and to

wait out the criminal justice process to sentencing.” These facts are relevant to the

judge’s decision to increase the restitution amount because they show the offense was

extremely serious and the losses suffered by the victim were extreme. (§ 1202.4, subd.

(d).)

27
 The judge was not required to hold a separate hearing or make express findings as

to the factors bearing on the amount of restitution he imposed. (§ 1202.4, subd. (d).)

Reddy concedes he didn’t raise the issue of his ability to pay, which would have

presented the issue to the court. Thus, he didn’t present any information to challenge the

assertions about the seriousness of the crime or its effect on the victim. Under these

circumstances, we can’t conclude that the trial court acted arbitrarily or irrationally by

imposing the statutory maximum restitution fine.

D. Victim Restitution

Reddy argues the trial judge erred by imposing victim restitution without holding a

hearing and taking evidence. As a result, he argues, the award of $175,000 in victim

restitution is not adequately supported.

1. Background

The probation report included a statement from David requesting $175,000 for

“lost time and wages, for hardships, pain and the continued suffering, and transportation

and recreation vehicles” he had been forced to sell and also asked for attorney fees.

David described the financial effects of the injuries he suffered in the shooting,

including that he had been forced to sell a significant amount of personal property to

cover hospital fees. He also described his difficulty recovering and said consistent pain

and limitations on his mobility had forced him to change his employment, reducing his

pay by half. His also claimed his injuries and the five days of absences required to testify

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in the trial caused him to lose a job. David disclosed he had filed a claim against Reddy.

But he didn’t disclose whether he recovered a judgment.

The probation officer recommended victim restitution in the amount of $175,000.

The report noted that “[a]ny disputes as to restitution amount to be resolved in a court

hearing.” At sentencing, defense counsel represented that David had recovered $300,000

in the civil suit. However, he made this assertion in another context, and didn’t make any

argument regarding restitution. The trial court ordered victim restitution to David in the

amount of $175,000, “plus any additional amounts to be determined by the probation

department and any disputes as to restitution be resolved in a future court hearing date.”

Defense counsel didn’t object to the victim restitution order and didn’t request a future

restitution hearing.

2. Analysis

The Legislature has decreed “a victim of crime who incurs an economic loss as a

result of the commission of a crime shall receive restitution directly from any defendant

convicted of that crime.” (§ 1204.4, subd. (a)(1).) Restitution shall be for economic loss

incurred, which includes damaged property including cost of repair, medical expenses

and actual and reasonable attorney fees and costs. (§ 1202.4, subd. (f)(3).) Where the

victim has suffered economic loss due to the defendant’s criminal conduct, the trial court

must require restitution to the victim “in an amount established by court order, based on

the amount of loss claimed by the victim or victims or any other showing to the court.”

(§ 1202.4, subd. (f).)

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 A restitution order must be for the full amount of the victim’s economic loss, and

“the possibility that the victim may receive a windfall because the third party fails to

exercise its remedies does not diminish the victim’s right to receive restitution of the full

amount of economic loss caused by the perpetrator’s offense.” (People v. Duong (2010)

180 Cal.App.4th 1533, 1537.) The amount of restitution is not offset by payment to the

victim from a collateral source that is independent of the defendant, such as the victim’s

own insurer, as compensation for economic losses attributed to a defendant’s criminal

conduct. (People v. Hamilton (2003) 114 Cal.App.4th 932, 941.) However, payments to

the victim by a defendant’s insurer are different and must be offset against the restitution

obligation. (People v. Bernal (2002) 101 Cal.App.4th 155, 167-168.) The offset should

occur only “to the extent that those payments [by the defendant’s insurer] are for items of

loss included in the restitution order.” (Id. at p. 168; see also People v. Jennings (2005)

128 Cal.App.4th 42, 55 [before granting an offset, the court must determine whether

payments made by a defendant’s insurer were for losses covered by the restitution

order].)

We review the trial judge’s restitution order for abuse of discretion. (People v.

Millard (2009) 175 Cal.App.4th at p. 26.) The trial court has broad discretion in setting

the amount of restitution and can use any rational method of establishing that amount.

(People v. Sy (2014) 223 Cal.App.4th 44, 63.) A court abuses its discretion only if its

decision is arbitrary, capricious, or based on a demonstrable error of law. (People v.

Atkins (2005) 128 Cal.App.4th 1376, 1382.)

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 Reddy argues the restitution order of $175,000 to David was unsupported by

evidence and the trial court erred by relying on the amount recommended by the

probation officer because there was no proof of David’s “actual losses, nor any

acknowledgment of the receipt of $300,000 from [Reddy’s] insurance company[.]”

The victim restitution statute “does not, by its terms, require any particular kind of

proof.” (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543.) Where the victim has

suffered economic loss due to the defendant’s criminal conduct, the trial court must

require restitution to the victim “in an amount established by court order, based on the

amount of loss claimed by the victim or victims or any other showing to the court.”

(§ 1202.4, subd. (f).) The amount of loss determined by the probation officer based on the

victim’s statement of loss can be a sufficient basis to set a restitution amount. (Gemelli, at

pp. 1543-1544.) David’s electronic statement provided a factual and rational basis to

order restitution. He described his inability to physically recover and consistent pain that

forced him to change his employment position due to limited mobility. His weekly pay

was reduced by half and testifying for five days in the trial was a contributing factor to

being let go from his employment. David thus requested $175,000 for “lost time and

wages, for hardships, pain and the continued suffering, and transportation and recreation

vehicles” he had been forced to sell, and attorney fees.

“When there is a factual and rational basis for the amount of restitution ordered,

no abuse of discretion will be found.” (People v. Phu (2009) 179 Cal.App.4th 280, 284.)

Indeed, “[o]nce the victim makes a prima facie showing of economic losses incurred as a

31
result of the defendant’s criminal acts, the burden shifts to the defendant to disprove the

amount of losses claimed by the victim.” (People v. Gemelli, supra, 161 Cal.App.4th at

p. 1543.) “The defendant has the burden of rebutting the victim’s statement of losses, and

to do so, may submit evidence to prove the amount claimed exceeds the repair or

replacement cost of damaged or stolen property.” (Ibid.) The probation report and

David’s statement regarding his losses provided prima facie evidence from which the trial

court could order restitution, and Reddy submitted no evidence to rebut it, so the trial

judge did not abuse his discretion in accepting that presentation.

As for Reddy’s argument that David’s recovery in the civil suit should have offset

the restitution amount, the problem is there was no evidence about the amount David

recovered or what the recovery remedied. Defense counsel mentioned the settlement

amount during argument when he blamed Reddy’s divorce on “the lawsuit filed by

[David] where he recovered—I can represent to you because I talked to his attorney on a

regular basis while it was going through. He recovered $300,000 . . . as a result of being

shot.” Attorney argument is not evidence. (People v. Barajas (1983) 145 Cal.App.3d 804,

809; Judicial Council Of Cal. Crim. Jury Instn. 222.) And the failure of evidence on this

point traces to Reddy’s failure to object and request a hearing. Thus, Reddy has not

established the restitution amount should have been offset by the recovery in the civil

lawsuit.

In any event, Reddy has forfeited these challenges. He didn’t argue these points

below, didn’t request a restitution hearing, and didn’t object when the trial court ordered

32
$175,000 in victim restitution. The issue regarding the proper amount of restitution is a

factual one, and the factual record wasn’t developed more precisely because Reddy failed

to object or request a hearing. It follows that he has forfeited his claims that the trial court

abused its discretion in ordering the amount of restitution.

For the same evidentiary reasons we can’t conclude his counsel was prejudicially

ineffective. (Strickland v. Washington (1984) 466 U.S. 668, 687.) Here, Reddy cannot

show prejudice because he cannot establish that David did not incur $175,000 in medical

expenses, lost wages, and reasonable attorney fees. Reddy’s assertion that an objection to

the restitution order would have benefitted him is speculative because it is not clear on

this record who made the payment, who it was intended to benefit, or whether it was for

items of loss which would be included in the restitution order.

III

DISPOSITION

We affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH
J.
We concur:

MILLER
Acting P. J.

FIELDS
J.

33