People v. Romero CA2/4 ( 2020 )

Filed 10/1/20 P. v. Romero CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B301540
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. KA118993
v.
MARCO ROMERO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Bruce F. Marrs, Judge. Affirmed.
Aaron J. Schechter, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Attorney General, David. E. Madeo and Idan Ivri, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted appellant and defendant Marco Romero of
fleeing a pursuing peace officer’s motor vehicle while driving
recklessly, and driving with a suspended or revoked license.
Romero admitted he sustained a prior strike conviction, and the
trial court sentenced him to six years in state prison. On appeal,
Romero raises four arguments: (1) the trial court prejudicially
erred by providing an incorrect response to a jury question;
(2) the court prejudicially violated due process by instructing the
jury using an impermissible mandatory presumption; (3) the
court erred under People v. Dueñas (2019) 30 Cal. App. 5th 1157
by imposing assessments and a restitution fine without
determining Romero’s ability to pay; and (4) the court violated its
duty to consider a limited probation report when determining the
amount of the restitution fine. We affirm.
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney filed an
information charging Romero with fleeing a pursuing peace
officer’s motor vehicle while driving recklessly (Veh. Code,
§ 2800.2; count one)1 and driving with a suspended or revoked
license (§ 14601.1, subd. (a); count two). The information further
alleged Romero sustained one prior strike conviction (Pen. Code,
§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and six prior prison
term convictions (Pen. Code, § 667.5, subd. (b)).
The jury found Romero guilty on both counts. Romero
admitted the strike prior and two of the six alleged prison priors.
1 All undesignated statutory references are to the Vehicle
Code.
2
The trial court sentenced Romero to six years in state prison,
consisting of an upper term on count one, doubled to six years for
the prior strike. The court dismissed count two, struck the two
prison prior enhancements Romero admitted, and struck the
remaining four prison prior enhancements in the interest of
justice under Penal Code section 1385.
Romero timely appealed.
FACTUAL BACKGROUND
On September 2, 2018, at about 5:00 p.m., Romero was
driving a pickup truck in Pomona without a front license plate.
Pomona Police Officers Sacca and O’Mahony, who were driving
an unmarked police car, activated their lights and sirens and
attempted to stop Romero. Romero drove a short distance then
pulled over to the curb. A woman exited Romero’s car from the
passenger door, Romero drove away, and the officers gave chase.
Officer Gomez joined the pursuit. During the pursuit,
Gomez was wearing his uniform and driving a marked police car
with his lights and sirens activated. Officer Hernandez, who was
also driving a marked police car with his lights and sirens
activated, joined the pursuit as well. Several other marked patrol
cars also joined the pursuit.
During the chase, Romero committed numerous traffic
violations. He sped while driving on the freeway and in
residential and business districts, ran through red lights without
stopping, made unsafe lane changes without signaling, drove off
the road, and unsafely passed other cars on the right. The chase
ended when Officer Joseph Davila performed a Pursuit
3
Intervention Technique (PIT) maneuver on Romero’s truck.
Officer Davila took Romero into custody.
Officer Sacca spoke to Romero at the Pomona city jail after
advising him of his Miranda2 rights. Romero admitted he knew
he was being pursued by the police and stated he did not pull
over because he did not want to go to jail.3 He said his plan was
to drive until he ran out of gas.
The defense presented no evidence.
DISCUSSION
I. Romero’s argument concerning the jury question
Romero first argues the trial court prejudicially erred in
violation of his constitutional rights by inadequately responding
to the jury’s mid-deliberation request for a definition of willful or
wanton disregard for the safety of persons or property. The
Attorney General argues Romero has forfeited the argument
because defense counsel’s position below was to resubmit CALJIC
No. 12.85 to the jury rather than further define willful and
wanton disregard. The Attorney General further argues that,
even assuming Romero had not forfeited the argument, the
court’s answer was not an abuse of discretion and did not
prejudice Romero. We agree with the Attorney General. Romero
has forfeited his argument, and even assuming he had not
forfeited the argument, we find no error or prejudice.
2 Miranda v. Arizona (1966) 384 U.S. 436 [86 S. Ct. 1602, 16
L.Ed.2d. 694].)
3 Romero was not licensed to drive on September 2, 2018. His
driver’s license had been suspended since February 11, 2000, and
he had been notified of the suspension.
4
A. Procedural background
Using CALJIC No. 12.85, the trial court instructed the jury
on both felony reckless evading (§ 2800.2, subd. (a)) and the
lesser included offense of misdemeanor evading (§ 2800.1, subd.
(a)). The court stated to the jury: “Every person who flees or
attempts to elude a pursuing peace officer in violation of Vehicle
Code Section 2800.1, subdivision (a) and drives the pursued
vehicle in a willful or wanton disregard for the safety of person or
property is guilty of a violation of Vehicle Code Section 2800.2,
subdivision (a), a felony.” (See CALJIC No. 12.85)
The court then defined the term “willful or wanton
disregard for the safety of persons or property” with greater
specificity. It explained: “A willful or wanton disregard for the
safety of persons or property also includes, but is not limited to
driving while fleeing or attempting to elude a pursuing peace
officer, during which time the person driving commits three or
more motor vehicle violations, such as violation of Vehicle Code
Section 21755(a), passing on the right; 21453, failure to stop for a
red light; 22350; speeding; 22349, exceeding the maximum 65
miles an hour; 22107, unsafe turn; 22450 failure to stop for a stop
sign.” (See CALJIC No. 12.85.) The court further explained:
“Willful or wanton also means act or acts intentionally performed
with a conscious disregard for safety of persons or property. It
does not necessarily include an intent to injure.” (See ibid.) Next,
still using CALJIC No. 12.85, the court instructed the jury on the
elements of a section 2800.2, subdivision (a) violation, which
included the following element: “the driver of the pursued vehicle
5
drove the vehicle in a willful or wanton disregard for the safety of
persons [or] property.”4
During deliberations, the jury submitted the following
question: “Please provide clarification on the definition or what
constitutes [element] #8 ‘The driver of the pursued vehicle drove
the vehicle in a willful or wanton disregard for the safety of
persons or property.’”
The trial court conferred with the parties regarding the
jury question. Defense counsel proposed the court simply refer
the jury back to CALJIC No. 12.85 in its entirety. The
prosecution proposed the court respond by focusing the jury on
the definition of willful and wanton disregard as committing
three or more traffic violations. Defense counsel argued that
highlighting only one of the two definitions in CALJIC No. 12.85
would be improper, particularly because the prosecution had
argued Romero acted with a willful or wanton disregard based on
4 The full list of elements is as follows: “1. A person, while
operating a motor vehicle willfully fled or otherwise attempted to
elude a pursuing peace officer; [¶] 2. The person did so with the
specific intent to evade the pursuing peace officer; [¶] 3. The
peace officer’s vehicle exhibited at least one lighted red lamp
visible from the front; [¶] 4. The person saw or reasonably should
have seen the red lamp; [¶] 5. The peace officer’s motor vehicle
sounded a siren as reasonably necessary; [¶] 6. The peace officer’s
motor vehicle was distinctively marked; [¶] 7. The peace officer’s
motor vehicle was operated by a peace officer wearing a
distinctive uniform; and [¶] 8. The driver of the pursued vehicle
drove the vehicle in willful or wanton disregard for the safety of
persons and property.” (CALJIC 12.85.)
6
both theories.5 The prosecution offered a compromise with
defense counsel’s position, proposing the court answer the
question by excerpting both definitions. Defense counsel objected
to the proposed compromise, noting the prosecution’s wording of
the second definition was slightly different than how it was
worded in CALJIC No. 12.85. The court explained that the
different wording was the clearest way to respond to the jury, and
the proposed compromise was still a correct statement of law.
Over defense counsel’s objection, the court opted to use the
prosecution’s proposed compromise. The court provided the jury
with the following answer: “Willful and wanton disregard for the
safety of persons or property includes: [¶] 1. Driving while fleeing
or attempting to elude a peace officer during which time the
person driving commits three or more Vehicle Code violations,
such as: speeding in violation of Vehicle Code section 22350,
exceeding 65 mph on a highway in violation of Vehicle Code
section 22349, passing on the right in violation of Vehicle Code
section 21755, unsafe turning movements in violation of Vehicle
Code section 22107, failing to stop at a stop sign in violation of
Vehicle Code section 22450, or failing to stop for a red light in
violation of Vehicle Code section 21453; [¶] OR [¶] 2. Driving in
any other manner that amounts to willful or wanton disregard for
the safety of persons or property. [¶] See 12.85.”
5 The other definition to which defense counsel was referring
was the language in CALJIC 12.85 stating: “‘Willful or wanton’
[also] means act or acts intentionally performed with a conscious
disregard for safety of persons or property. It does not necessarily
include an intent to injure.”
7
B. Applicable legal principles
“When a jury asks a question after retiring for deliberation,
‘[s]ection 1138 imposes upon the court a duty to provide the jury
with information the jury desires on points of law.’ [Citation.]”
(People v. Eid (2010) 187 Cal. App. 4th 859, 881-882.) “This does
not mean the court must always elaborate on the standard
instructions. Where the original instructions are themselves full
and complete, the court has discretion under section 1138 to
determine what additional explanations are sufficient to satisfy
the jury’s request for information. [Citation.]” (People v. Beardslee
(1991) 53 Cal. 3d 68, 97 (Beardslee).) “Indeed, comments diverging
from the standard are often risky. [Citation.]” (Ibid.) “But a court
must do more than figuratively throw up its hands and tell the
jury it cannot help. It must at least consider how it can best aid
the jury. It should decide as to each jury question whether
further explanation is desirable, or whether it should merely
reiterate the instructions already given.” (Ibid., italics omitted.)
We review potential errors under Penal Code section 1138 for
abuse of discretion. (People v. Hodges (2013) 213 Cal. App. 4th 531,
539 (Hodges).)
C. Romero’s argument is forfeited
We first decide whether Romero has forfeited the argument
by failing to object below with sufficient specificity. We conclude
he has. Whereas Romero argued below that the trial court should
refer the jury back to CALJIC No. 12.85, he now argues that the
trial court’s decision to direct the jury to CALJIC No. 12.85 was
erroneous. “When the trial court responds to a question from a
8
deliberating jury with a generally correct and pertinent
statement of the law, a party who believes the court’s response
should be modified or clarified must make a contemporaneous
request to that effect; failure to object to the trial court’s wording
or to request clarification results in forfeiture of the claim on
appeal. [Citations.]” (People v. Dykes (2009) 46 Cal. 4th 731, 802.)
The court responded to the jury’s question with a correct and
pertinent statement of the law. And although Romero’s counsel
objected to the wording of the second theory in the answer the
trial court gave the jury, the argument Romero raises on appeal
is different from the basis for the objection lodged in the trial
court. (See People v. Polk (2010) 190 Cal. App. 4th 1183, 1194
[argument is forfeited if “a defendant fails to make a timely
objection on the precise ground asserted on appeal . . . .
[Citations.]”].)6
We likewise reject Romero’s argument that the issue is
preserved because any objection would have been futile. Because
Romero did not lodge the objection, it is impossible to discern how
the trial court would have reacted.
Finally, we reject Romero’s contention that his argument is
preserved because trial counsel was ineffective in failing to object
on the grounds now raised on appeal. To prevail on an ineffective
assistance claim, a defendant must establish “not only deficient
performance, i.e., representation below an objective standard of
reasonableness, but also resultant prejudice. [Citation.]” (People
6 Romero’s position below was the court should answer the
question by referring the jury back to CALJIC No. 12.85. This
was essentially what the trial court did. It provided an answer
that reiterated principles stated in CALJIC No. 12.85 and
referred the jury back to that instruction.
9
v. Bolin (1998) 18 Cal. 4th 297, 333.) “‘[E]xcept in those rare
instances where there is no conceivable tactical purpose for
counsel’s actions,’ claims of ineffective assistance of counsel
generally must be raised in a petition for writ of habeas corpus
based on matters outside the record on appeal. [Citations.]”
(People v. Salcido (2008) 44 Cal. 4th 93, 172.) Here, we cannot
conclude there was no tactical purpose for counsel’s actions.
Given that the record contained so much evidence of willful and
wanton disregard for safety, counsel could have reasonably
concluded that the shortest possible answer would provide the
best tactical benefit for her client.
D. The trial court did not abuse its discretion
Even assuming Romero had not forfeited the argument, we
find no abuse of discretion. (See Hodges, supra, 213 Cal.App.4th
at p. 539.) The court answered the jury’s question by reiterating
that “willful and wanton disregard for the safety of persons or
property” refers to either (1) committing three or more Vehicle
Code violations; or (2) engaging in other conduct specified in
CALJIC No. 12.85. The trial court’s answer was legally correct.
(See People v. Richie (1994) 28 Cal. App. 4th 1347, 1360-1362 [the
terms “willful” and “wanton” do not have technical legal
meanings, nor do they require clarification as arcane
terminology].) The court provided the jury the clarification it
requested.
We reject Romero’s argument that CALJIC No. 12.85 fails
to define the phrase “willful and wanton disregard.” We instead
conclude the definition provided in CALJIC No. 12.85 is
adequate. For this reason, we also reject Romero’s arguments
10
that the definition in CALJIC No. 12.85 is circular, and that the
court’s response was inadequate because it did not include the
definition provided in CALCRIM No. 2181.7
We likewise reject the argument that the court knew the
jury wanted a “textbook” definition of the term, but made no
attempt to provide the definition it knew the jury sought. As
discussed above, the court’s answer was clear and correct. We
similarly reject Romero’s related contention that the court
“acknowledged that it was punting on the jury’s request for a
definition” when it stated “we’ll see if they respond. I’m not going
to cross that bridge until I get to it.” There was nothing wrong
with the court’s decision to provide a legally correct answer it
believed was clear, then wait to see whether the jury was
satisfied with the answer or requested further clarification. (See
Beardslee, supra, 53 Cal.3d at p. 97 [“court has discretion under
section 1138 to determine what additional explanations are
sufficient to satisfy the jury’s request for information.
[Citation.]”].)
In arguing the trial court’s response was erroneous, Romero
relies heavily on general language from People v. Thompkins
(1987) 195 Cal. App. 3d 244 (Thompkins). Thompkins is
7 CALCRIM No. 2181 provides: “A person acts with wanton
disregard for safety when (1) he or she is aware that his or her
actions present a substantial and unjustifiable risk of harm, (2)
and he or she intentionally ignores that risk. The person does
not, however, have to intend to cause damage.” This definition is
similar to the language contained in CALJIC No. 12.85: “‘Willful
or wanton’ means an act or acts intentionally performed with a
conscious disregard for the safety of persons or property. It does
not necessarily include an intent to injure.”
11
inapplicable. Thompkins found error because the trial court’s
response to the jury question was legally incorrect. (Id. at pp.
247, 250-251.) Here the court’s answer was legally correct.
We find no abuse of discretion.
E. Prejudice
Even assuming we were to conclude the trial court’s
response was erroneous, we would find no prejudice under
Chapman v. California (1967) 386 U.S. 18, 24 [87 S. Ct. 824, 17
L. Ed. 2d 705 (Chapman) or People v. Watson (1956) 46 Cal. 2d 818,
836 (Watson). As the Attorney General points out, the evidence of
Romero’s guilt on count one was overwhelming. Toward the start
of the pursuit, on the freeway, Romero drove in excess of the
speed limit (§ 22349) and made unsafe lane changes without
signaling (§ 22107). On surface streets, Romero continued to
drive over the speed limit on multiple occasions. (§ 22350.) He
rolled through both a stop sign and a red traffic light without
stopping. (§ 22450.) He made lane-change violations when he re-
entered the freeway. (§ 22107.) Back on the freeway, he again
drove in excess of the speed limit and made illegal lane changes.
(§§ 22349, 22107.) These violations were captured on police video
and played for the jury.
Romero drove approximately 52 miles per hour while
fleeing police through an area with pedestrians and a nearby
hospital. He cut through a parking lot at 15 to 20 miles per hour.
He unlawfully turned across lanes of moving traffic when
entering the freeway the second time.
Given the circumstances, any alleged error would have
been harmless beyond a reasonable doubt, and it is not
12
reasonably probable a different answer to the jury’s question
would have resulted in a more favorable outcome for Romero.
(See Chapman, supra, 386 U.S. at p. 24; Watson, supra, 46 Cal.2d
at p. 836.) The jury could have easily and justifiably concluded
Romero committed at least three Vehicle Code violations and
consciously disregarded the safety of persons or property. This
was not a close case.
II. Romero’s mandatory presumption argument
Romero next argues Vehicle Code section 2800.2
establishes a mandatory presumption that violates principles of
due process. He further argues the trial court prejudicially erred
by using CALJIC No. 12.85 because the instruction reflects the
improper presumption. Romero acknowledges that five appellate
opinions, including a recent opinion by this court, have rejected
similar contentions – People v. Pinkston (2003) 112 Cal. App. 4th
387, 390-394 (Pinkston); People v. Williams (2005) 130
Cal. App. 4th 1440, 1445-1446 (Williams); People v. Lauglin (2006)
137 Cal. App. 4th 1020, 1025 (Laughlin); People v. Mutuma (2006)
144 Cal. App. 4th 635, 641, and People v. Taylor (2018) 19
Cal. App. 5th 1195, 1200-1207 (Taylor). Romero argues these cases
were wrongly decided for the reasons stated in a dissenting
opinion by Justice Klein in Pinkston, supra, 112 Cal.App.4th at
pages 395-398. This court, in Taylor, addressed Justice Klein’s
dissent and declined to follow it. (Taylor, supra, 19 Cal.App.5th
at pp. 1202-1204.) For the reasons discussed in Taylor, we reject
Romero’s contentions.
13
A. Applicable legal principles
Section 2800.1 provides that when, with the intent to
evade, the driver of a motor vehicle willfully flees or attempts to
elude a pursuing peace officer's motor vehicle or bicycle under
specified circumstances, the driver is guilty of a misdemeanor.8
Subdivision (a) of section 2800.2 provides that when a person
violates section 2800.1 and “the pursued vehicle is driven in a
willful or wanton disregard for the safety of persons or property,”
the person is subject to prosecution for a misdemeanor or a
felony. Subdivision (b) of section 2800.2 states: “For purposes of
this section, a willful or wanton disregard for the safety of
persons or property includes, but is not limited to, driving while
fleeing or attempting to elude a pursuing peace officer during
which time either three or more violations that are assigned a
8 Section 2800.1, subdivision (a) states: “Any person who,
while operating a motor vehicle and with the intent to evade,
willfully flees or otherwise attempts to elude a pursuing peace
officer’s motor vehicle, is guilty of a misdemeanor punishable by
imprisonment in a county jail for not more than one year if all of
the following conditions exist: [¶] (1) The peace officer’s motor
vehicle is exhibiting at least one lighted red lamp visible from the
front and the person either sees or reasonably should have seen
the lamp. [¶] (2) The peace officer’s motor vehicle is sounding a
siren as may be reasonably necessary. [¶] (3) The peace officer’s
motor vehicle is distinctively marked. [¶] (4) The peace officer’s
motor vehicle is operated by a peace officer, as defined in Chapter
4.5 (commencing with Section 830) of Title 3 of Part 2 of the
Penal Code, and that peace officer is wearing a distinctive
uniform.”
14
traffic violation point count under Section 12810 occur, or
damage to property occurs.”
The question presented here is whether section 2800.2 sets
forth an improper mandatory presumption regarding an element
of the offense established by that statute. “As our Supreme Court
has explained, presumptions are not inherently impermissible in
criminal proceedings; rather, they are a “‘staple of our adversary
system of factfinding”’ because ‘“[i]t is often necessary for the
trier of fact to determine the existence of an element of the crime
─ that is, an ‘ultimate’ or ‘elemental’ fact ─ from the existence of
one or more ‘evidentiary’ or ‘basic’ facts.”’ (People v. McCall (2004)
32 Cal. 4th 175, 182 . . . (McCall), quoting Ulster County Court v.
Allen (1979) 442 U.S. 140, 156 [(Ulster County)].)” (Taylor, supra,
19 Cal.App.5th at p. 1200.) “A mandatory presumption tells the
trier of fact that if a specified predicate fact has been proved, the
trier of fact must find that a specified factual element of the
charge has been proved, unless the defendant has come forward
with evidence to rebut the presumed connection between the two
facts. [Citations.]” (Williams, supra, 130 Cal.App.4th at pp. 1444-
1445, citing Ulster County, supra, 442 U.S. at p. 157 and McCall,
supra, 32 Cal.4th at p. 182.) “In the context of criminal
proceedings, such a presumption contravenes due process ─ and
thus is improper ─ when it relieves the prosecution of its burden
of proving the elements of a crime beyond a reasonable doubt.
[Citation.]” (Taylor, supra, 19 Cal.App.5th at p. 1200, citing
McCall, supra, 32 Cal.4th at pp. 183-184.) A criminal statute is
lawful, however, if it creates no improper mandatory
presumption permitting the prosecution to establish an
“elemental” fact, but merely sets forth a substantive rule of law
regarding the nature of the offense. (Taylor, supra, 19
15
Cal.App.5th at p. 1204.) We apply de novo review when assessing
whether instructions “direct a finding adverse to a defendant by
removing an issue from the jury’s consideration. [Citations.]”
(People v. Posey (2004) 32 Cal. 4th 193, 218.)
B. Section 2800.2 does not create an improper
mandatory presumption
Applying the above-stated principles, we reject Romero’s
argument that section 2800.2 creates an improper mandatory
presumption in violation of due process. In reaching this
conclusion, we rely primarily on Presiding Justice Manella’s
opinion in Taylor. Taylor explains why the majority opinion in
Pinkston and its progeny were correctly decided. Taylor also
explains why the dissent in Pinkston was incorrect.
“In maintaining that subdivision (b) of section 2800.2
established an improper mandatory presumption, [the dissent in
Pinkston] viewed the phrase ‘“willful or wanton disregard for the
safety of persons or property”’ as carrying the precise meaning
attributed to the same phrase in section 23101, subdivision (a),
which establishes the offense of reckless driving.” (Taylor, supra,
19 Cal.App.5th at p. 1201, citing Pinkston, supra, 112
Cal.App.4th at p. 395 (dis. opn. of Klein, J.).) Justice Klein thus
maintained that subdivision (b) of section 2800.2 created an
improper mandatory presumption, reasoning that it authorized
the prosecution to establish the “‘relatively complex mental
state’” (according to Justice Klein, the same mental state
required to establish the offense of reckless driving [§ 23103,
subd. (a)]) merely by demonstrating three qualifying traffic
violations. (Taylor, supra, 19 Cal.App.5th at p. 1202, citing
16
Pinkston, supra, 112 Cal.App.4th at pp. 396-397 (dis. opn. of
Klein, J.).) Taylor declined to accept Justice Klein’s rationale,
instead concluding “the mental state required for the reckless
driving offense established in section 23103, subdivision (b)[] is
not required for the section 2800.2 offense.” (Taylor, supra, 19
Cal.App.5th at p. 1202.) In support of this conclusion, Taylor
thoroughly analyzed the legislative history of section 2800.2, and
explained that the Legislature lawfully modified the mental state
requirements for the section 2800.2 offense by adding subdivision
(b). (Id. at pp. 1202-1204.)
Taylor concluded: “Subdivision (b) of section 2800.2 thus
creates no improper mandatory presumption permitting the
prosecution to establish an ‘elemental’ fact — that is, the mental
state required for the section 2800.2 offense — merely by showing
a simple evidentiary fact — that is, the existence of three or more
qualifying traffic violations. Rather, subdivision (b) reflects an
exercise of the Legislature’s authority to modify the statutory
elements of the section 2800.2 offense. We therefore agree with
the majority opinion in Pinkston and the courts in Williams and
Laughlin, which concluded that subdivision (b) of section 2800.2
constitutes only a substantive rule of law properly within the
Legislature’s power to enact. [Citations.]” (Taylor, supra, 19
Cal.App.5th at p. 1204.)
For the reasons set forth in Taylor, we reject Romero’s
argument and decline to follow the dissent in Pinkston.
Subdivision (b) of section 2800.2 does not contain an improper
mandatory presumption. (Taylor, supra, 19 Cal.App.5th at pp.
1204-1205.) It merely “set[s] forth a substantive rule of law
regarding the nature of the offense.” (Id. at p. 1204.) We therefore
also reject Romero’s contention that the court erred in instructing
17
the jury using CALJIC 12.85, which included the substantive
rule set forth in subdivision (b) of section 2800.2.
The cases upon which Romero relies are all distinguishable.
In each case, the reviewing court concluded that a jury
instruction or statute reflected an improper presumption that an
element of the offense was established by an evidentiary fact.
(Sandstrom v. Montana (1979) 442 U.S. 510, 512, 523-524 [99
S. Ct. 2450, 61 L. Ed. 39] [in action in which the defendant was
charged with murder, it was error to instruct the jury to presume
that a person intends the ordinary consequences of his voluntary
acts]; Francis v. Franklin (1985) 471 U.S. 307, 311, 316-318 [105
S. Ct. 1965, 85 L. Ed. 344] [in action in which the defendant was
charged with murder, it was error to instruct the jury regarding
rebuttable presumptions that the “‘acts of a person of sound mind
and discretion are the product of their will,’” and that such a
person intends the natural and probable consequences of his
acts]; Carella v. California (1989) 491 U.S. 263, 264-266 [109
S. Ct. 2419, 105 L. Ed. 2d 218] [in action in which defendant was
charged with grand theft for failure to return a rented car, it was
error to instruct the jury to presume a person embezzles a vehicle
and intends to commit theft by fraud if the person fails to return
the vehicle within specified time periods]; People v. Roder (1983)
33 Cal. 3d 491, 494, 500, 503 [in action in which the defendant
was charged with receiving stolen goods, it was error to instruct
the jury to presume the defendant’s “guilty knowledge” from his
status as a secondhand dealer, possession of the stolen goods, and
reasonable opportunity to confirm whether the goods were stolen,
unless the jury otherwise had a reasonable doubt regarding that
knowledge]; People v. Reyes Martinez (1993) 14 Cal. App. 4th 1412,
1414-1419 [in action in which the defendant was charged with
18
kidnapping, it was error to instruct the jury that if a person
moves someone 500 feet or more, this satisfies the “substantial
distance” element of the offense]; Hanna v. Riveland (9th Cir.
1996) 87 F.3d 1034, 1035-1038 [in action in which the defendant
was charged with one count of vehicular homicide and one count
of vehicular assault in violation of Washington state law, both of
which incorporate an element of reckless driving, it was error to
instruct the jury that it may find this element based solely on the
fact that the defendant drove above the speed limit].) As
explained above, subdivision (b) of section 2800.2 contains no
improper presumption.9
III. Romero’s Dueñas argument
The trial court imposed a $40 court security assessment
(Pen. Code, § 1465.8, subd. (a)), a $30 criminal conviction
assessment (Gov. Code, § 70373), and a $1,200 restitution fine
(Pen. Code, § 1202.4, subd. (b)(1)). Relying on Dueñas, supra, 30
Cal. App. 5th 1157, Romero now challenges the assessments and
fine on due process grounds. Romero concedes he did not object to
the imposition of the assessments or fine. Romero was sentenced
over eight months after Dueñas was decided. Romero has
forfeited his Dueñas argument by failing to object. (See People v.
Bipialaka (2019) 34 Cal. App. 5th 455, 464; People v. Frandsen
(2019) 33 Cal. App. 5th 1126, 1153-1155.)
We also reject Romero’s contention, raised in the
alternative, that his counsel’s failure to object constituted
ineffective assistance of counsel. To establish ineffective
9 Because we find no error, we need not address prejudice.
19
assistance of counsel, an appellant bears the burden of showing
prejudice, meaning a reasonable probability that but for the
challenged act or omission of counsel, the appellant would have
obtained a more favorable result. (People v. Centeno (2014) 60
Cal. 4th 659, 674-676 (Centeno); see also In re Crew (2011) 52
Cal. 4th 126, 150 [“If a claim of ineffective assistance of counsel
can be determined on the ground of lack of prejudice, a court need
not decide whether counsel’s performance was deficient.
[Citations.]”].) Although Romero asserts the trial court likely
would have found he lacked the ability to pay the fines and
assessments, he identifies no support for this assertion other
than trial counsel’s statement on the notice of appeal that he is
indigent and his use of appointed counsel. (Cf. People v. Aviles
(2019) 39 Cal. App. 5th 1055, 1075-1076 [inability to pay costs of
appointed counsel does not establish inability to pay restitution
fine or other court-imposed fees].) Further, the court might have
found him able to pay the fine and assessments from prison
wages. (See id. at pp. 1075-1077 [any Dueñas error was harmless
due to defendant’s ability to earn prison wages equaling amount
of fine and assessments]; People v. Jones (2019) 36 Cal. App. 5th
1028, 1035 [same]; People v. Johnson (2019) 35 Cal. App. 5th 134,
139-140 [same].) He therefore fails to satisfy his burden to show
prejudice.
IV. Romero’s restitution argument
Romero lastly argues the trial court prejudicially erred in
violation of due process by not considering a limited probation
report in deciding the amount of the restitution fine imposed. The
Attorney General contends Romero forfeited this argument by
20
failing to object, and assuming the argument has not been
forfeited, the error was harmless.
Penal Code section 1203, subdivision (g) imposes upon the
trial court a duty to obtain a limited probation report on the facts
relevant to a determination of the amount of a Penal Code section
1202.4, subdivision (b) restitution fine.10
Romero has forfeited his argument by failing to object. (See
People v. Anzalone (2013) 56 Cal. 4th 545, 550 [“‘The requirement
of an objection is premised upon the idea that a party should not
sit on his or her hands, but instead must speak up and provide
the court with an opportunity to address the alleged error at a
time when it might be fixed.’ [Citation.]”].)
We reject Romero’s contention, raised in the alternative,
that his counsel’s failure to object constituted ineffective
assistance of counsel. As discussed above, to establish ineffective
assistance of counsel, an appellant bears the burden of showing
10 Penal Code section 1203, subdivision (g) provides: “If a
person is not eligible for probation, the judge shall refer the
matter to the probation officer for an investigation of the facts
relevant to determination of the amount of a restitution fine
pursuant to subdivision (b) of Section 1202.4 in all cases in which
the determination is applicable. The judge, in their [sic]
discretion, may direct the probation officer to investigate all facts
relevant to the sentencing of the person. Upon that referral, the
probation officer shall immediately investigate the circumstances
surrounding the crime and the prior record and history of the
person and make a written report to the court containing
findings. The findings shall include a recommendation of the
amount of the restitution fine as provided in subdivision (b) of
Section 1202.4.”
21
prejudice, meaning a reasonable probability that but for the
challenged act or omission of counsel, the appellant would have
obtained a more favorable result. (Centeno, supra, 60 Cal.4th at
pp. 674-676; see also In re Crew, supra, 52 Cal.4th at p. 150.)
Romero has failed to satisfy his burden of showing a reasonable
probability that he would have been awarded a lower restitution
fine had trial counsel objected.11
11 We also note that although the court imposed a $1,200
restitution fine, which was higher than the $300 minimum, the
restitution fine imposed was considerably lower than the $10,000
maximum. (Pen. Code, § 1202.4, subd. (b)(1).) It was also lower
than the $1,800 amount that would have been imposed had the
trial court utilized the commonly-used formula provided by the
Legislature in Penal Code section 1202.4, subdivision (b)(2).
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
COLLINS, J.
23