People v. Diaz CA4/1 ( 2022 )

Filed 4/28/22 P. v. Diaz CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078614
Plaintiff and Respondent,
v.
(Super. Ct. No. SCD283828)
ADRIAN DIAZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
David M. Rubin, Judge. Affirmed as modified.
Denise M. Rudasill, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Melissa A. Mandel, Assistant Attorney General, Joseph C.
Anagnos, Deputy Attorney General for Plaintiff and Respondent.
An information charged defendant Adrian Diaz with robbery (Pen.
Code, § 211—count 1)1 and assault with a deadly weapon (a knife) (§ 245,
subd. (a)(1)—count 2). The information alleged Diaz, in committing these
offenses, personally used a deadly and dangerous weapon (§ 1192.7, subd.
(c)(23)); and personally inflicted great bodily injury on the victim, not an
accomplice (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)).
The jury found Diaz not guilty on count 1 and guilty on count 2, and
found true the two enhancements. Diaz admitted the truth of the allegation
that he previously had been convicted of making a criminal threat (§ 422),
which was both a strike prior (§§ 667, subds. (b)-(i), 668, 1170.12) and a
serious felony prior (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)(38)). The trial
court sentenced Diaz to nine years in prison: the middle term of three years
on count 2, doubled to six years due to the strike prior; and an additional
three years to run consecutive on the great bodily injury enhancement.
On appeal, Diaz contends: (1) the trial court erred in giving the
“mutual combat” self-defense instruction because there was no substantial
evidence of mutuality; (2) the prosecutor erred in her remarks during closing
argument; (3) the errors were cumulative and prevented him from receiving a
fair trial; and (4) the $154 criminal justice administration fee should be
vacated as a result of the recent passage of Assembly Bill No. 1869 (former
Gov. Code, § 29550 et seq.).
As we explain, we agree as of July 1, 2021, any unpaid balance of the
criminal justice administration fee should be vacated and, as the People point
out in their brief, certain corrections should be made to the abstract of
judgment. In all other respects the judgment is affirmed.
1 All further statutory references are to the Penal Code unless otherwise
indicated.
2
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
Victim James M. testified he rode an electric scooter he owned to a
Mexican restaurant at about 10:00 p.m. on October 24, 2019. The scooter was
similar to those that are seen in the “streets of San Diego” that riders can use
through a ride-sharing “App.” When he arrived at the restaurant, James saw
three men outside “conversing.” One of the men was sitting on the ground,
whom James identified at trial as Diaz. James observed two bicycles and two
backpacks near the men. James assumed the men were “homeless,” as he
was familiar with the area and knew it was popular with transients. James
had never seen any of the men before that night.
James took his scooter inside the restaurant. After ordering food, the
cashier directed him to take the scooter outside. James complied, parking
the scooter right outside the entrance of the restaurant. James next used the
bathroom inside the restaurant. Immediately thereafter, he checked on his
scooter and saw one of the three men at the edge of the parking lot running
with the scooter “into the darkness.” James yelled at the man, “That’s my
scooter,” but the man kept going.
James saw the man who had been sitting on the ground (i.e., Diaz)
quickly jump up and get into James’s “personal space,” coming within about
six inches of him. With a “smirk,” Diaz told James, “ ‘It’s not your scooter,’ ”
and blocked James’s path as James contemplated chasing after the man.
James repeated it was his scooter and stated he was going to call the police.
“Shaken” and “upset” by the events, James picked up one of the bicycles on
the ground and said, “ ‘I am going to hold onto this until the police get here,’ ”
as he believed all three men were involved in the theft.
3
Diaz yelled a name and the other man, whom James had seen when he
first came to the restaurant, came out of the restaurant “irate” and stood
about two feet away from James. At the direction of the men, James let go of
the bicycle and put his “hands up.” James then heard the other man say,
“ ‘Now you’re going to get it’ ” as Diaz and the other man “came at [James].”
James told the jury, “[B]efore I could blink,” Diaz “pulled out a knife
from his pocket and cut my arm, stabbed my arm.” Other than saying he was
going to call the police, James testified he had not threatened any of the three
men, had not “balled up” his fists as if he wanted to fight, and had no
weapon. James described the knife as having about a six-inch blade. James
was stabbed in his left bicep, which injury required 17 stiches to close and
which left a scar.
After being stabbed by Diaz, James went to the entrance of the
restaurant and yelled, “ ‘Please call 911.’ ” James then told the two
remaining men, “ ‘You guys aren’t leaving. I am calling the police.’ ” James
picked up Diaz’s backpack and threw it across the parking lot. The other
man in response yelled, “ ‘Now you’re really going to get it.’ ” James saw both
men “square[ ] up” to him as if they were all in a “boxing ring,” and the men
began punching James.
“[S]cared” and “fighting for [his] life,” James fought back, kicking and
punching at the two men. The two men at some point stopped fighting and
collected their belongings, as James heard sirens. Shortly thereafter, at the
request of officers, James identified Diaz as the one who had stabbed him
with the knife.
On cross-examination, James denied he started the confrontation with
Diaz and the other man. James also denied being “mad” that his scooter was
4
taken, but instead stated he was just “upset.” James stated the only threat
he made to the two men was that he was “going to call the police.”
Also during cross-examination, the jury was shown a video of an
interview with James immediately after the incident, recorded by the body-
worn camera of San Diego Police Officer Aaron Merris. A transcript of the
video was included in the appellate record. The transcript corroborates much
of James’s trial testimony. James told the officer that one of three men in
front of the restaurant had stolen his scooter and James in response grabbed
a bicycle belonging to one of the remaining men to “get an answer” about its
whereabouts, which he admitted had been a mistake; that the other two men
“thought it was big joke” and “wanted to fight over it”; and that James “was
just trying to defend [himself].” James estimated the entire incident lasted
about three or four minutes. Officer Merris treated James’s stab wound until
paramedics arrived.
April D. was the cashier at the restaurant and was the individual who
called 911 to report the incident. The audio of her 911 call was played for the
jury, and a transcript of the call was included in the appellate record. April
informed the 911 operator that there was a fight outside the restaurant and
it was “three against one”; that the three were “really hitting” the one and it
was “bad” for that man; and that police needed to hurry.
April told the jury she heard the men arguing about a scooter. She did
not “see anyone getting physical” before the 911 call because she was behind
the register. She saw the man with the scooter (whom she identified as
James, after seeing him in court) “back up on the door” of the restaurant and
“lift[ ] up his hands” so they were nearly level to his chin in an effort to
“protect” himself.
5
April confirmed James had brought his scooter inside the restaurant
and she had told him scooters were not allowed. James next asked to use the
restroom. While in the restroom, the two men who had been outside came
into the restaurant. One man (who April identified as Diaz) asked for a cup
of water, and the other man ordered food. Diaz then went back outside.
On cross-examination, April testified when James went outside and
found his scooter missing, he came back inside and “nicely” and “in a good
way” asked the man who had been with Diaz about its whereabouts. The
man responded he did not know. James exited the restaurant, and April then
heard him ask Diaz, “ ‘Where is my scooter?’ ” April next heard Diaz yell for
the man waiting for food to come outside. The man in response “ran” out of
the restaurant.
Officer Yianni Hallios of the San Diego Police Department testified he
and his partner Officer Merris responded to the October 24 incident. On
arrival, Officer Hallios contacted James, who indicated he had been stabbed
and pointed to two individuals fleeing the scene. Officer Hallios pursued
them on foot and made contact with one of them, Diaz, whom the officer
identified in court.
Officer Hallios also interviewed April on the night of the incident and
prepared a report that included a summary of her statement. April told
Officer Hallios that prior to James’s arrival, she saw three transient males
outside “while closing the entry door.” April gave a description of two of those
males, one of whom was Diaz. Shortly thereafter, James arrived on his
scooter. She then heard a “verbal altercation” outside the restaurant and
called 911 in response. Officer Hallios’s report noted April saw James “with
both of his hands up” during the altercation as he “back[ed] away” from the
other men.
6
Officer Merris testified he responded with his partner Officer Hallios to
the incident. Once the area was secured, Officer Merris walked along the dirt
path Diaz had taken as he fled, looking for evidence including a possible
weapon. Near a chain-link fence just off the path, Officer Merris found an
“open folding knife” resting on ice plant. The knife matched the description
James had given officers.
Officer Merris also took a statement from James at the scene of the
incident. James told the officer that he rode his scooter to the restaurant and
saw a “few homeless guys” near the front door. At the request of the cashier,
James left his scooter outside. When he went back outside he saw one of the
three men leaving with the scooter. As James went after the guy with the
scooter the other two men, one of whom was Diaz, “block[ed] his way” and
then “squared up . . . and kept pushing him back into the corner of the
restaurant by the front door.” James believed the two men wanted to fight
and he responded by grabbing a bicycle belonging to one of them. James told
the officer that Diaz then “pulled out a knife that was about 7 to 8 inches
long,” which appeared to have “no handle” and be “one color,” and “slashed”
his “upper left arm.” James kept telling the two men to leave him alone as
the police were on the way, but “neither of them would go away.”
Defense Evidence
Diaz testified in his own defense. He stated he went to the Mexican
restaurant with an “acquaintance” named “Vince” at around 10:00 p.m. on
the night of the incident. Diaz sat on the ground near their bicycles and
backpacks. At some point a man Vince knew rode up on his skateboard
asking Vince for money and a cigarette. Diaz did not know the man, and was
suspicious he might try and take some of their belongings.
7
A short while later, Diaz saw the same man leaving the restaurant on a
scooter while also carrying his skateboard. Diaz started laughing when the
man almost fell “face forward” because he was trying to balance his
skateboard on the handlebars of the scooter. Up until then Diaz had not seen
the scooter. As the skateboarder was riding away, Diaz saw a man come out
of the restaurant, whom he identified at trial as James. They made eye
contact, and Diaz realized the scooter belonged to James. Diaz told James,
“ ‘You still have a chance to go get your scooter’ ” and “ ‘That’s the world[’s]
dumbest criminal[ ], man. That was the stupidest getaway, man. Go get
your scooter.” James, however, seemed “stuck” on Diaz.
James responded, “ ‘Oh, you think it’s funny’ ” and then became
“confrontational” with Diaz. Diaz remained seated as James went back
inside the restaurant for about 30 seconds, then came running outside and
made a “dash” for Vince’s bicycle. James got on the bicycle and attempted to
ride off with it. Diaz jumped in front of the bicycle to prevent James from
leaving. James leaned over the handlebars and got “physical” with Diaz.
Diaz tried to push James off the bicycle, while also yelling for Vince, who
remained inside the restaurant. Diaz and James then “started exchanging
blows.” Once outside, Vince helped Diaz get James off the bicycle, and then
they “chase[d] [James] back into the door, into the door frame” of the
restaurant.
At that point Diaz and Vince tried to leave, as they had “retreat[ed]”
from the altercation. James, however, was still “in a fighting stance,”
although he was no longer coming at them. As Vince gathered his belongings
and got ready to leave on his bicycle, James “zoom[ed]” in on Diaz and they
got “into a tug of war” over Diaz’s bicycle, which led to a new round of
fighting between James and Diaz. As they were exchanging blows for a
8
second time, Diaz told James he had nothing to do with the theft of James’s
scooter, to leave him alone, and he did not want to fight anymore. James
responded, “he was going to kill” and “skin” Diaz.
James next grabbed Diaz’s backpack and threw it across the parking
lot, and pulled Diaz’s jacket over his head and used his fists and knees to
pummel Diaz, including on the head. Because he believed he was losing the
fight, Diaz pulled out a knife from his back pocket and slashed James one
time, cutting him.
Diaz told the jury he thought it was necessary to use the knife to
prevent being seriously hurt by James. After being slashed, James backed off
as Diaz tried to leave on his bicycle. Diaz noticed the bicycle chain had fallen
off. Hearing sirens, Diaz decided to “ditch” the bicycle and run. Diaz told the
jury he ran because he did not think the police would believe his story, as he
was homeless, and had a criminal record and “a knife in [his] hand.”
During cross-examination, Diaz was asked how many blows he and
James exchanged the “first time” their confrontation became physical. Diaz
responded one or two. He then was asked, “Is it mutual combat, are you
fighting him [i.e., James] as well?” Diaz replied, “Oh, yeah,” then added, “I
am mostly trying to push him off, trying to get him off the bike. But since he
started swinging, I started swinging back.” Diaz and Vince then “push[ed]”
and “chase[d]” James toward the inside of the restaurant, and James then
put his hands up. Although James had his hands up, Diaz believed James
still “want[ed] to fight” because he was “angry” about his scooter. James and
Diaz then fought a second time, after James tried to take Diaz’s backpack
and bicycle. It was then that Diaz slashed James on the arm.
9
DISCUSSION
I. Self-defense Instructions
Diaz contends the trial court erred when it instructed with CALCRIM
No. 3471, “Right to Self-Defense: Mutual Combat or Initial Aggressor,”
because there was no substantial evidence of a mutual, preexisting
agreement to fight between him and James before the occasion for self-
defense arose. Diaz further contends the error is reviewable on appeal,
despite defense counsel’s failure to object to the instruction, because it
affected his substantial rights.
The People agree there was no forfeiture, but argue there was
substantial evidence of an implied agreement to fight before the claimed self-
defense occasion arose. The People in the alternative argue any error in
giving CALCRIM No. 3471 was harmless.
A. Additional Background
The record shows after Diaz’s testimony and outside the jury’s
presence, the court discussed what it referred to as the “package” of self-
defense instructions. The court stated it was inclined to give CALCRIM Nos.
3470, 3471, 3472, and 3474. Neither defense counsel nor the prosecutor
objected to any of these instructions. The court then asked trial counsel if
any additional instructions were required on self-defense. Both answered
“No.”
The court instructed the jury with CALCRIM No. 3471 in part as
follows:
“A person who engages in mutual combat or who starts a
fight has a right to self-defense only if: [¶] 1. He actually
and in good faith tried to stop fighting; [¶] 2. He indicated,
by word or by conduct, to his opponent, in a way that a
reasonable person would understand, that he wanted to stop
10
fighting and that he had stopped fighting; [¶] AND [¶] 3. He
gave his opponent a chance to stop fighting.
“If the defendant meets these requirements, he then had
a right to self-defense if the opponent continued to fight.
[¶] . . . [¶]
“. . . A fight is mutual combat when it began or continued
by mutual consent or agreement. That agreement may be
expressly stated or implied and must occur before the claim
to self-defense arose.”
In addition, the court instructed with CALCRIM Nos. 3470, “Right to
Self-Defense or Defense of Another”;2 3472, “Right to Self-Defense: May Not
2 The court gave CALCRIM No. 3470 as follows: “Self-defense is a
defense to assault with a deadly weapon, as charged in Count 2, and the
lesser included offense of assault. The defendant is not guilty of assault with
a deadly weapon or assault if he used force against the other person in lawful
self-defense. The defendant acted in lawful self-defense if: [¶] 1. The
defendant reasonably believed that he was in imminent danger of suffering
bodily injury or was in imminent danger of being touched unlawfully; [¶]
2. The defendant reasonably believed that the immediate use of force was
necessary to defend against that danger; [¶] AND [¶] 3. The defendant used
no more force than was reasonably necessary to defend against that danger.
“Belief in future harm is not sufficient, no matter how great or how
likely the harm is believed to be. The defendant must have believed there
was imminent danger of bodily injury to him or an imminent danger that he
would be touched unlawfully. Defendant’s belief must have been reasonable
and he must have acted because of that belief. The defendant is only entitled
to use that amount of force that a reasonable person would believe is
necessary in the same situation. If the defendant used more force than was
reasonable, the defendant did not act in lawful self-defense.
“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.
11
Be Contrived”;3 and 3474, “Danger No Longer Exists or Attacker Disabled.”4
B. Guiding Principles
“It is error to give an instruction which, while correctly stating a
principle of law, has no application to the facts of the case.” (People v. Guiton
(1993) 4 Cal.4th 1116, 1129 (Guiton).) Thus, “instructions not supported by
substantial evidence should not be given.” (People v. Ross (2007) 155
Cal.App.4th 1033, 1050 (Ross).) Evidence is “[s]ubstantial” for this purpose if
it is “sufficient to ‘deserve consideration by the jury,’ that is, evidence that a
reasonable jury could find persuasive.” (People v. Barton (1995) 12 Cal.4th
186, 201, fn. 8 (Barton).) An instruction not supported by the evidence is
subject to the harmless error analysis in People v. Watson (1956) 46 Cal.2d
818 (Watson). (People v. Chism (2014) 58 Cal.4th 1266, 1299 (Chism).)
“ ‘[A]s used in this state’s law of self-defense, “mutual combat” means
not merely a reciprocal exchange of blows but one pursuant to mutual
intention, consent, or agreement preceding the initiation of hostilities. . . . In
“The slightest touching can be unlawful if it is done in a rude or angry
way. Making contact with another person, including through his or her
clothing, is enough. The touching does not have to cause pain or injury of any
kind. [¶] The People have the burden of proving beyond a reasonable doubt
that the defendant did not act in lawful self-defense. If the People have not
met this burden, you must find the defendant not guilty of assault with a
deadly weapon, as charged in Count 2 and its lesser offense of assault.”
3 The court instructed with CALCRIM No. 3472 as follows: “A person
does not have the right to self-defense if he or she provokes a fight or quarrel
with the intent to create an excuse to use force.”
4 The court also gave CALCRIM No. 3474: “The right to use force in self-
defense continues only as long as the danger exists or reasonably appears to
exist. When the attacker withdraws or no longer appears capable of inflicting
any injury, then the right to use force ends.”
12
other words, it is not merely the combat, but the preexisting intention to
engage in it, that must be mutual.’ ” (People v. Nguyen (2015) 61 Cal.4th
1015, 1044 (Nguyen), quoting Ross, supra, 155 Cal.App.4th at p. 1045.)
Diaz primarily relies on Ross. In that case, the defendant and a woman
“engaged in a hostile verbal exchange, at the culmination of which she
slapped [the defendant, who] responded with a blow that fractured her
cheekbone.” (Ross, supra, 155 Cal.App.4th at p. 1036.) The defendant was
convicted of aggravated assault and battery after the trial court, over defense
counsel’s objection, instructed the jury that a person charged with assault
cannot successfully plead self-defense if he or she was engaged in “mutual
combat” with the alleged victim. (Id. at p. 1042, fn. 8.) The trial court
refused the deliberating jurors’ request for a legal definition of “mutual
combat,” telling them there was no legal definition and instead to rely on the
common, everyday meaning of these words.5 (Id. at p. 1043.)
The Ross court held this was error. It found the phrase “mutual
combat” was “too broad to convey the correct legal principle” (Ross, supra,
155 Cal.App.4th at p. 1044); and the jury therefore was “left . . . free to
suppose that any exchange of blows disqualifies both participants from
claiming a right of self-defense. In fact the doctrine applies only to a violent
confrontation conducted pursuant to prearrangement, mutual consent, or an
express or implied agreement to fight” (id. at p. 1036).
The Ross court explained: “The ‘combat’ element of [the mutual
combat] rule is clear enough . . . . It suggests two (or more) persons fighting,
whether by fencing with swords, having a go at fisticuffs, slashing at one
5 When Ross was decided, former CALCRIM No. 3471 did not include a
definition of “mutual combat,” unlike the current version given by the trial
court in this case.
13
another with switchblades, or facing off with six-guns on the dusty streets of
fabled Dodge City. The trouble arises from ‘mutual.’ ” (Ross, supra, 155
Cal.App.4th at p. 1043.) The Ross court concluded the phrase “ ‘mutual
combat’ is not only ambiguous but a misnomer. The mutuality triggering the
doctrine inheres not in the combat but in the preexisting intent to engage in
it.” (Id. at p. 1045.) It thus found that, for a mutual combat instruction,
“there must be evidence from which the jury could reasonably find that both
combatants actually consented or intended to fight before the claimed occasion
for self-defense arose.” (Id. at p. 1047.)
The Ross court went on to find there was insufficient evidence to
support the mutual combat instruction. (Ross, supra, 155 Cal.App.4th at
p. 1050.) Instead, it concluded the evidence showed “an exchange of
belligerent comments culminating in an impulsive and unexpected blow by
[the woman] to which defendant responded with a combination, flurry, or
barrage of blows” (id. at p. 1052); and therefore, no reasonable juror could
conclude beyond a reasonable doubt that when the blows were exchanged,
both parties had formed the intent to engage in a fight (ibid.).
C. Analysis
1. Substantial Evidence Supports the Instruction
As noted, Diaz contends a mutual combat instruction was not
supported by the facts of this case because there was no evidence of a prior
mutual agreement to fight that occurred “before the claimed occasion for self-
defense arose.” (See Ross, supra, 155 Cal.App.4th at p. 1047.) Diaz instead
contends James initiated the fight, as summarized ante. Of significance here,
the agreement need not exist prior to the fight, but only before the claimed
occasion for self-defense arose. (Ibid.; see CALCRIM No. 3471.)
14
As summarized ante, Diaz claimed there were two confrontations
between him and James. According to Diaz, the initial confrontation that led
to an exchange of blows arose when James tried to ride off on Vince’s bicycle
and Diaz stopped him by stepping in front of James, blocking his exit.
Sometime thereafter, Vince joined Diaz outside and the two men managed to
“push” or “chase” James into the doorway of the restaurant. If the evidence
had been limited to this single confrontation, we would agree with Diaz that
the facts were insufficient to support giving CALCRIM No. 3471, based on
the lack of evidence of mutuality.
However, as noted ante, once James was backed into the restaurant’s
doorway by Diaz and Vince, James put his hands up, as April also confirmed.
Diaz and Vince then “retreat[ed],” and there was a clear break in the
altercation. At this point, the occasion for Diaz to use self-defense had not
yet arisen. According to Diaz, he and James then engaged in a second
confrontation, exchanging blows as James next tried to take Diaz’s bicycle
and/or backpack. James testified he tried to grab the men’s belongings
because he believed they were also involved in the theft of his scooter and he
did not want them to leave the area as the police were enroute. It was during
this second altercation that Diaz pulled out the knife and slashed James,
believing he needed to defend himself because he was “losing” the fight and,
despite his plea to stop and leave him alone, James kept coming at him.
From the foregoing, we conclude a reasonable jury could find the
evidence of the second confrontation sufficiently “persuasive” (Barton, supra,
12 Cal.4th at p. 201, fn. 8) of the existence of an implied “agreement” between
Diaz and James to fight: James, “upset” about being “chased” into the
doorway after his scooter had been stolen and his belief Diaz was involved;
and Diaz, concerned James was going to take his bicycle and/or backpack,
15
after James had already come at him. (See ibid.; CALCRIM No. 3471.) We
thus find the instant case distinguishable from Ross, and conclude the trial
court did not error in giving this instruction.6
2. Harmless Error
An error in giving an instruction that, while correctly stating the law,
is inapplicable to the facts of a case is one of state law subject to the
traditional Watson test, as we have noted. (See Chism, supra, 58 Cal.4th at
p. 1299; Guiton, supra, 4 Cal.4th at p. 1129.) In determining whether the
error was prejudicial, we examine the entire record, “including the facts and
the instructions, the arguments of counsel, any communications from the jury
during deliberations, and the entire verdict. [Citation.] Furthermore,
instruction on an unsupported theory is prejudicial only if that theory became
the sole basis of the verdict of guilt; if the jury based its verdict on the valid
ground, or on both the valid and the invalid ground, there would be no
prejudice, for there would be a valid basis for the verdict.” (Guiton, at
p. 1130.) The “appellate court should affirm the judgment unless a review of
the entire record affirmatively demonstrates a reasonable probability that
the jury in fact found the defendant guilty solely on the unsupported theory.”
(Ibid.)
6 We note the evidence appears to have supported a finding of self-
defense based on mutual combat if the jury had believed Diaz’s version of
events, as Diaz testified he tried to stop fighting; he indicated by “word or
conduct” to James that he had stopped fighting when he told James he did
not want to fight any more and to “leave him alone” as he had nothing to do
with the theft of the scooter; and he gave James at least one chance, if not
two chances, to stop fighting before he pulled out the knife and slashed
James after being pummeled in the head.
16
Here, we conclude any purported error in giving CALCRIM No. 3471
was harmless under Watson. (See Chism, supra, 58 Cal.4th at p. 1299;
Guiton, supra, 4 Cal.4th at p. 1129.)
First, other than the instruction itself, the only mention of “mutual
combat” was during Diaz’s cross-examination (summarized ante), when Diaz
confirmed he and James were fighting and engaged in “mutual combat”—as
that term is commonly understood and not as defined by CALCRIM No.
3471—when they were initially exchanging blows. However, the prosecutor
during closing argument did not rely on CALCRIM No. 3471 in arguing Diaz
was not entitled to self-defense.
Conversely, the record shows during the closing both the prosecutor
and defense counsel focused exclusively on who started the fight and thus,
whether the other responded in self-defense as instructed by CALCRIM No.
3470.7 Trial counsel during closing also focused on whether Diaz “used no
more force that was reasonably necessary to defend against the danger” when
he slashed James with the knife during the second altercation. (See
CALCRIM No. 3470.)
As summarized ante, the jury was presented with starkly different
views of the evidence, based on the testimony of James and Diaz, and was
asked to resolve these purely factual questions in determining whether
James or Diaz acted in lawful self-defense. (See Guiton, supra, 4 Cal.4th at7 The trial court’s instruction with CALCRIM No. 3470 is yet another
reason the instant case is distinguishable from Ross, where the jury was
presented with an “all or nothing” choice of self-defense based solely on
former CALCRIM No. 3471, despite evidence the defendant may have acted
in lawful self-defense. (Ross, supra, 155 Cal.App.4th at p. 1054 [finding
prejudicial error in giving this instruction because it “ ‘effectively removed
[the defendant’s] defense of [self-defense] from the jury’s consideration’ ”].)
17
p. 1131 [jurors are “well equipped . . . to analyze evidence and to reach a
rational conclusion” using their “ ‘own intelligence and expertise’ ”].)
Second, the court instructed with CALCRIM 200 that “[s]ome words or
phrases used during this trial have legal meanings that are different from
their meanings in everyday use”; that “[t]hese words and phrases will be
specifically defined in these instructions”; and to “[p]lease be sure to listen
carefully and follow the definitions that I give you.” (Italics added.) “Jurors
are presumed able to understand and correlate instructions and are further
presumed to have followed the court’s instructions.” (People v. Sanchez
(2001) 26 Cal.4th 834, 852 (Sanchez); see People v. Scott (1988) 200
Cal.App.3d 1090, 1095 [same].)
Third, the jury was instructed that not all instructions may apply in a
case: “Some of these instructions may not apply, depending on your findings
about the facts of the case. Do not assume just because I give an instruction
that I am suggesting anything about the facts. After you have decided what
the facts are, follow the instructions that do apply to the facts as you find
them.” (See CALCRIM No. 200.) Thus, if Diaz is correct and there allegedly
was insufficient evidence of “mutual combat” to support instructing with
CALCRIM No. 3471, the jury would have ignored it, as it was instructed to
do. (See Sanchez, supra, 26 Cal.4th at p. 852; CALCRIM No. 200.)
Indeed, nothing in the instructions prevented the jury from considering
evidence of self-defense, which was the central issue in this case. The
instructions given did not eliminate Diaz’s claim of self-defense. Rather, the
jury rejected the defense based on the evidence which, as summarized ante,
was more than sufficient to support a reasonable jury’s finding beyond a
reasonable doubt that Diaz did not act in lawful self-defense when he slashed
James with a knife after James had picked up one of the men’s bicycles and
18
said he was calling the police. (See People v. Brown (2014) 59 Cal.4th 86,
105-106 [substantial evidence is “evidence that is reasonable, credible and of
solid value such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt”]; People v. Earp (1999) 20 Cal.4th 826, 887 [on
review, we view the evidence in a light most favorable to the prosecution to
determine whether any rational trier of fact could have found the crime
beyond a reasonable doubt]; id. at pp. 887-888 [that evidence might
reasonably be reconciled with a contrary finding does not render the evidence
insubstantial].) We thus reject this claim of error.
II. Prosecutorial Error
Diaz contends the prosecutor committed misconduct during closing by
(1) misstating the law; (2) expressing a personal belief in his guilt; and
(3) implying that his failure to disclose his reliance on self-defense prior to
trial constituted grounds for disbelieving his testimony.8
A. Guiding Principles
“ ‘ “A prosecutor’s misconduct violates the Fourteenth Amendment to
the United States Constitution when it ‘infects the trial with such unfairness
as to make the conviction a denial of due process.’ [Citations.] In other
8 Diaz did not object to any of the statements during the prosecutor’s
presentation. (People v. Seumanu (2015) 61 Cal.4th 1293, 1328 [“making a
timely and specific objection at trial, and requesting the jury be
admonished . . . , is a necessary prerequisite to preserve a claim of
prosecutorial misconduct for appeal” (italics added)].) We nonetheless reach
the merits of this issue. As such, we deem it unnecessary to decide whether
Diaz received ineffective assistance based on counsel’s failure to object and
request an admonition. (Ibid. at p. 1328; see People v. Urbano (2005) 128
Cal.App.4th 396, 404 [concluding a defendant’s claim of ineffective assistance
of counsel is moot because the appellate court exercised its discretion to reach
the merits of the defendant’s challenges to his sentence].)
19
words, the misconduct must be ‘of sufficient significance to result in the
denial of the defendant’s right to a fair trial.’ [Citation.] A prosecutor’s
misconduct that does not render a trial fundamentally unfair nevertheless
violates California law if it involves ‘the use of deceptive or reprehensible
methods to attempt to persuade either the court or the jury.’ ” ’ ” (People
v. Covarrubias (2016) 1 Cal.5th 838, 894.)
“Error with respect to prosecutorial misconduct is evaluated under
Chapman v. California (1967) 386 U.S. 18, to the extent federal
constitutional rights are implicated, and People v. Watson (1956) 46 Cal.2d
818 if only state law issues were involved.” (People v. Fernandez (2013)
216 Cal.App.4th 540, 564.) “Misconduct that does not constitute a federal
constitutional violation warrants reversal only if it is reasonably probable the
trial outcome was affected.” (People v. Shazier (2014) 60 Cal.4th 109, 127
(Shazier); People v. Crew (2003) 31 Cal.4th 822, 839 [“A defendant’s
conviction will not be reversed for prosecutorial misconduct . . . unless it is
reasonably probable that a result more favorable to the defendant would have
been reached without the misconduct.”].) Here, we conclude the Watson
standard applies to the prosecutor’s remarks in this case.
We review de novo a defendant’s claim of prosecutorial misconduct.
(People v. Uribe (2011) 199 Cal.App.4th 836, 860 (Uribe).) “ ‘In conducting
this inquiry, we “do not lightly infer” that the jury drew the most damaging
rather than the least damaging meaning from the prosecutor’s statements.’ ”
(People v. Brown (2003) 31 Cal.4th 518, 553-554.) We consider the
prosecutor’s remarks in context of the entire record. (People v. San Nicolas
(2004) 34 Cal.4th 614, 665-666 (San Nicolas).)
As noted, in the absence of evidence to the contrary, we presume that
the jury understands and follows instructions from the trial court (Sanchez,
20
supra, 26 Cal.4th at p. 852); and that the jurors treat the court’s instructions
as statements of law, and the arguments of counsel as words spoken by an
advocate in an attempt to persuade (People v. Thornton (2007) 41 Cal.4th
391, 441 (Thornton)).
B. Analysis
1. Misstatements of Law
Diaz contends the prosecutor misstated the law when she argued in
closing the “age old idea” that “You don’t get to bring a knife to a fist fight,”
and that “You don’t get to whip out a knife and stab someone if you guys are
pushing and punching one another.” According to Diaz, the “obvious import”
of these fleeting statements were that Diaz could not act in lawful self-
defense because he used a weapon to defend himself when James only used
his fists.
When viewed in context of the entire record (see San Nicolas, supra,34 Cal.4th at pp. 665-666), we independently conclude it is not reasonably
likely the jury construed these statements to mean Diaz as a matter of law
could not act in self-defense because he used a knife in the fight (see Shazier,
supra, 60 Cal.4th at p. 127; Uribe, supra, 199 Cal.App.4th at p. 860). When
the prosecutor made these statements, she was reviewing the elements of
self-defense as provided in CALCRIM No. 3470, including the requirement
that a defendant use no more force than reasonably necessary to defend
against the danger. The prosecutor focused on the word “reasonable” in
arguing Diaz used more force than “necessary”—an inherently factual
question—when he slashed James during the altercation. (See CALCRIM
No. 3470.) At no time, however, did the prosecutor argue that self-defense
was legally unavailable to Diaz merely because of the knife.
21
Moreover, we note both at the beginning of trial and immediately
before closing argument, the trial court told the jury that it was required to
follow the law as instructed by the court, even if jurors “disagree with it”;
that any remarks or comments by the attorneys regarding the law that
conflicted with the court’s instructions were to be ignored; and that the
remarks of attorneys were not evidence. (See CALCRIM No. 222 [given by
the trial court and providing in part: “Nothing that the attorneys say is
evidence. In their opening statement and closing arguments, the attorneys
discuss the case, but their remarks are not evidence.” (Italics added.)].)
In addition, at the beginning of her closing argument the prosecutor
discussed the jury’s role as fact-finder: “So what I’m going to do is to take the
evidence that you heard and apply it to the law that the judge just read you.
Because your job as jurors is [to] take the evidence as you find it, apply it in
that equation to figure out if it has been proven beyond a reasonable doubt.”
It was then the prosecutor again reminded the jury that it was to follow the
law as instructed by the trial court: “This is my summary of the instructions
that [the trial judge] gave you. If I say anything different here that is
different from the instructions, follow the written law that you g[o]t.” (See
Thornton, supra, 41 Cal.4th at p. 441; Sanchez, supra, 26 Cal.4th at p. 852.)
We therefore reject this claim of error as it is not reasonably likely the
jury construed the prosecutor’s statements that bringing a knife to a fist-fight
precluded the jury from considering Diaz’s claim he acted in lawful self-
defense. (See Shazier, supra, 60 Cal.4th at p. 127; San Nicolas, supra,34 Cal.4th at pp. 665-666.)
Diaz also contends the prosecutor misstated the law when arguing
whose version of events the jury should believe: “So you’re left with, do I
believe [James], do I believe [April], do I believe my own eyes when I see the
22
cut, the ditched knife, the running away from police? Or do I believe Mr.
Diaz? And it’s your job as jurors, and it’s pretty much your only job in this
case that you’re going to work through, is who do I believe, which version of
events is accurate? Do I have a reasonable doubt about this idea that Mr.
Diaz shared with you today?” Diaz claims these statements left jurors with
the impression that they should compare the prosecution’s and the defense’s
case on an “equal basis,” and suggested he was required to prove his version
of events beyond a reasonable doubt.
We independently conclude it is unlikely the jury inferred from these
remarks that it was Diaz’s burden to prove beyond a reasonable doubt that
he acted in lawful self-defense. We note the prosecutor made these
statements while discussing how the jury might judge witness credibility,
including under CALCRIM No. 226.9
Moreover, the trial court repeatedly instructed the jury throughout the
case that the prosecutor bore the burden to prove beyond a reasonable doubt
the elements of the crimes, a burden the jury clearly understood when it
found Diaz not guilty on count 1. The court also instructed with CALCRIM
No. 3470, as we have noted, which explained the People had the burden to
prove beyond a reasonable doubt that Diaz did not act in lawful self-defense.
9 The jury was instructed under CALCRIM No. 226 to consider a myriad
of “factors” in determining the “credibility or believability of the witnesses,”
including: “What was the witness’s behavior while testifying?”; “Was the
witness’s testimony influenced by a factor such as bias or prejudice, a
personal relationship with someone involved in the case, or a personal
interest in how the case is decided?”; “How well was the witness able to
remember and describe what happened?”; “How reasonable is the testimony
when you consider all the other evidence in the case?”; “Did other evidence
prove or disprove any fact about which the witness testified?”; and “Has the
witness been convicted of a felony?”
23
And defense counsel at the very beginning of his closing argument
reminded the jury that “in a criminal courthouse, all of the burden lies at this
table right here,” referring to where the prosecutor was seated, and that the
defense “doesn’t have to ask questions, doesn’t have to make argument,
doesn’t have to put on evidence” because it is the People’s burden to prove
guilt beyond a reasonable doubt. (See Shazier, supra, 60 Cal.4th at p. 127;
Sanchez, supra, 26 Cal.4th at p. 852.) We thus find these remarks were not
improper.
2. Belief in Diaz’s Guilt
Diaz next contends the prosecutor committed error by expressing a
personal belief that Diaz was guilty, arguing as follows: “And as the judge
pointed out in [CALCRIM No.] 226, there are some ideas as to how to
evaluate witness credibility. How to determine whether Mr. Diaz was lying
to you. Because I can stand here for the next ten minutes and say he is
completely full of it. None of that is true. He is not telling you the truth.
Disregard what he is saying. It’s completely made up. [¶] But what you
need to do is work through that on your own.”
In rebuttal, the prosecutor argued the jurors’ role was “to look at the
evidence,” and “to weigh and evaluate credibility.” She added, “And it doesn’t
matter that I know beyond a reasonable doubt what happened. It’s that you
do. That is why we give you the tools to come to that conclusion. Because
that beyond a reasonable doubt standard applies to every single criminal
case . . . throughout this country.”
It is axiomatic that a “prosecutor may not express a personal opinion or
belief in the guilt of the accused when there is a substantial danger that the
jury will view the comments as based on information other than evidence
adduced at trial.” (People v. Mincey (1992) 2 Cal.4th 408, 447.) The danger
24
that the jury will view the prosecutor’s expressed belief in the defendant’s
guilt as being based on outside sources “is acute when the prosecutor offers
his [or her] opinion and does not explicitly state that it is based solely on
inferences from the evidence at trial.” (People v. Bain (1971) 5 Cal.3d 839,
848.)
Nevertheless, not all such comments by a prosecutor are improper. We
find guidance in the Supreme Court’s decision in People v. Huggins (2006)
38 Cal.4th 175 (Huggins). In that case, the prosecutor during closing
argument “asked the jury to believe him [i.e., the prosecutor] that defendant
was a liar.” (Id. at p. 205.) Specifically, regarding the defendant’s version of
events, the prosecutor argued, “ ‘None of this can be true. Please believe me.
He has lied through his teeth in trying to sell this story to you.’ ” (Id. at
p. 206, italics added.)
In rejecting the claim of prosecutorial error, the Huggins court
recognized the “general rule” that “improper vouching for the strength of the
prosecution’s case ‘ “involves an attempt to bolster a witness by reference to
facts outside the record.” ’ ” (Huggins, supra, 38 Cal.4th at p. 206.)
Importantly for purposes of the instant case, Huggins continued, “It is not,
however, misconduct to ask the jury to believe the prosecution’s version of
events as drawn from the evidence. Closing argument in a criminal trial is
nothing more than a request, albeit usually lengthy and presented in
narrative form, to believe each party’s interpretation, proved or logically
inferred from the evidence, of the events that led to the trial. It is not
misconduct for a party to make explicit what is implicit in every closing
25
argument, and that is essentially what the prosecutor did here.” (Id. at
p. 207.)10
Similar to the statements in Huggins (and Lopez), the prosecutor’s
statements in the instant case regarding her belief that Diaz was “lying,” he
was “not telling . . . the truth,” and she knew “what happened” did not imply
her belief in Diaz’s guilt based on evidence not presented at trial. (See
Huggins, supra, 38 Cal.4th at p. 206; Lopez, supra, 42 Cal.4th at p. 971.)
Instead, as shown by the record, these statements by the prosecutor were in
the context of arguing Diaz’s story was not to be believed based on the
evidence, including from the testimony of James and April, and the fact Diaz
“ditched” the knife and fled the scene. (See Shazier, supra, 60 Cal.4th at
p. 127.) We thus conclude these remarks by the prosecutor were not
improper.
3. Postarrest Silence
Diaz also contends the prosecutor erred in arguing that “self-defense
doesn’t come to mind with the facts or the circumstances for one reason. It’s
not a thing here. And, in fact, it doesn’t even exist in the facts and evidence
until today when the defendant decided that he was going to get on the
witness stand and tell you a story.” The prosecutor added, “And then today
10 See also People v. Lopez (2008) 42 Cal.4th 960, 971 (Lopez) [concluding
the prosecutor’s remark in rebuttal, “ ‘I think [defense counsel’s] client is
guilty,’ ” did not constitute prosecutorial error because “the prosecutor’s
comment did not imply that she based her belief in defendant’s guilt on
evidence not presented at trial. To the contrary: Because her statement that
she believed defendant was guilty immediately followed her comment that, in
her view, defense counsel’s cross-examination of the victims demonstrated
that they were credible, a reasonable juror would most likely infer that the
prosecutor based her belief in defendant’s guilt on the credibility of the
victims’ testimony at trial.”].)
26
the defendant decided that he was going to testify.” Diaz contends these
statements imply he should not be believed because he did not disclose his
self-defense theory until he took the witness stand, in violation of Doyle v.
Ohio (1976) 426 U.S. 610 (Doyle) and other authorities.11 We are
unpersuaded.
In Doyle, the United States Supreme Court held a prosecutor violates
due process by using the postarrest silence of a defendant who invoked
Miranda to impeach an exculpatory explanation subsequently offered by the
defendant at trial. (Doyle, supra, 426 U.S. at p. 617.) “Silence in the wake of
these warnings may be nothing more than the arrestee’s exercise of these
Miranda rights. Thus, every post-arrest silence is insolubly ambiguous
because of what the State is required to advise the person arrested.” (Ibid.)
The Court has explained: “[The] use of silence for impeachment is
fundamentally unfair . . . because ‘Miranda warnings inform a person of his
right to remain silent and assure him, at least implicitly, that his silence will
not be used against him. . . . Doyle bars the use against a criminal defendant
of silence maintained after receipt of government assurances.’ ” (Fletcher,
supra, 455 U.S. at p. 606.)
Doyle error has two elements, “both of which must exist. The first
element is that the prosecution makes use of a defendant’s postarrest silence
11 Diaz’s probation report states Diaz postarrest “declined to provide
officers with a statement” and claimed “he wanted an attorney.” Although
the record is silent regarding whether Diaz received Miranda warnings, from
these statements we will assume he was advised of his rights and invoked
them, both of which are required for Doyle error. (See Fletcher v. Weir (1982)
455 U.S. 603, 607 (Fletcher) [concluding there is no due process violation
when cross-examining a defendant on his or her postarrest silence when the
defendant was not Mirandized].)
27
for impeachment purposes. Use of a defendant’s postarrest silence can occur
either by questioning or by reference in closing argument. The second
essential element is that the trial court permits that use. (Greer [v. Miller
(1987) 483 U.S. 756,] 761-764 [(Greer)].) The type of permission specified in
Greer will usually take the form of overruling a defense objection, thus
conveying to the jury the unmistakable impression that what the prosecution
is doing is legitimate.” (See People v. Evans (1994) 25 Cal.App.4th 358, 368,
fn. omitted (Evans); see also People v. Clark (2011) 52 Cal.4th 856, 959
(Clark) [“The United States Supreme Court has explained a Doyle violation
does not occur unless the prosecutor is permitted to use a defendant’s
postarrest silence against him at trial.”].) In assessing Doyle error, we
consider the context of the prosecutor’s argument, and if that argument is a
“fair response to defendant’s claim or a fair comment on the evidence,” then it
is permissible. (People v. Champion (2005) 134 Cal.App.4th 1440, 1448
(Champion).)
Here, we conclude there was no Doyle error because the prosecutor’s
remarks were made in reference to the evidence and the credibility (or lack
thereof) of the witnesses. Indeed, immediately following these remarks the
prosecutor argued the totality of the evidence supported a finding that Diaz
had not acted in lawful self-defense, including from the testimony of James,
April and her 911 call, and James’s statements to Officer Merris following the
incident, all of which are summarized ante.
In addition and as we have noted, throughout the trial in this case the
primary issue before the jury was who started the altercation and, depending
on that finding, whether James or Diaz acted in lawful self-defense. As
summarized ante, the defense in questioning James sought to portray him as
the instigator of the fight, as “mad” and not merely “upset,” after James
28
testified he believed Diaz was involved in the theft of his scooter. The
prosecutor’s remarks that self-defense only became an issue on the day Diaz
testified is thus belied by the record in this case, including by the parties’
opening statements when defense counsel argued Diaz did not “unlawfully
assault” James. (Italics added.) (See Thornton, supra, 41 Cal.4th at p. 441
[jurors are instructed to treat the court’s instructions as the law, and the
arguments of counsel as words of an advocate].)
Considered in context, it is unlikely the jury inferred from a few
fleeting remarks by the prosecutor that Diaz had an obligation to disclose his
“story” between the time of his arrest and trial. Certainly, that was not the
focus of the prosecutor’s argument. Instead, a reasonable jury would have
understood the prosecutor’s remarks as a “fair comment on the evidence” and
not on Diaz’s postarrest silence. (See Champion, supra, 134 Cal.App.4th at
p. 1448.)12
12 For the same reasons, we find inapposite the case of People v. Lindsey
(1988) 205 Cal.App.3d 112 on which Diaz also heavily relies. In Lindsey, the
prosecutor condemned defense counsel for failing to disclose before trial the
defendant’s alibi defense, after the defendant had invoked his right to remain
silent under Miranda. Unlike the facts of the instant case in which the
prosecutor’s remarks were made in the context of arguing the evidence and
the credibility of witnesses, the prosecutor’s argument in Lindsey had nothing
to do with the evidence: “ ‘Well, it makes me angry as an officer of the court
that this man [i.e., the defendant] who is innocent, according to [defense
counsel’s] words, has sat in jail since February 4th, went through a
Preliminary Examination when the alibi was there all the time and this man
was in jail and this woman allowed him to sit in jail without coming to the
District Attorney’s Office, without coming to the Police Department saying,
listen, we’ve got proof . . . that this man didn’t do the crime. Where was this
information until today? It’s inconceivable. It goes against common sense,
and it is unreasonable to believe that another officer of the court would allow
her innocent client to sit in jail for five months and not say anything to
anyone.’ ” (Id. at pp. 115-116.)
29
Moreover, we separately conclude there was no Doyle error because the
second essential element is missing: there is no showing the trial court in
this case “permit[ted]” the prosecutor to use Diaz’s postarrest silence against
him (see Greer, supra, 483 U.S. at pp. 761-764; Clark, supra, 52 Cal.4th at
p. 959), “thus conveying to the jury the unmistakable impression that what
the prosecution is doing is legitimate” (see Evans, supra, 25 Cal.App.4th at
p. 368).
III. Cumulative Error
Diaz contends that, even if the asserted errors individually do not
warrant reversal, the cumulative effect of them does. “A predicate to a claim
of cumulative error is a finding of error. There can be no cumulative error if
the challenged rulings were not erroneous.” (People v. Sedillo (2015)
235 Cal.App.4th 1037, 1068.)
Moreover, to the “extent there are instances in which we have found
error or assumed its existence, we have concluded no prejudice resulted.”
(Chism, supra, 58 Cal.4th at p. 1309; see People v. Williams (2015) 61 Cal.4th
1244, 1291 [rejecting the defendant’s claim that “numerous alleged errors,
committed during both phases of his trial, cumulatively prejudiced him”
because there was either no error “or, in those instances where error has been
found or assumed, no prejudice”].)
Because, in the instant case, there was no error or any purported error
was deemed harmless, we reject Diaz’s contention that his trial was
fundamentally unfair under the cumulative error doctrine. (See People v.
Rivera (2019) 7 Cal.5th 306, 348 [concluding that, even if the trial court erred
in admitting evidence of the defendant’s “postcrime statements and conduct,”
“it was not individually prejudicial,” and thus, refusing to apply the
cumulative error doctrine to reverse the defendant’s judgment].)
30
IV. Criminal Administration Fee
After Diaz was sentenced and while his appeal was pending, Assembly
Bill No. 1869 (2019–2020 Reg. Sess.) was signed into law. As of July 1, 2021,
under Assembly Bill No. 1869, the provision pursuant to which the court
ordered Diaz to pay a $154 criminal justice administration fee (former
Government Code section 29550.1) was repealed, and Government Code
section 6111 was added. (Assem. Bill No. 1869, §§ 11, 24.)
Government Code section 6111, subdivision (a), provides in relevant
part: “On and after July 1, 2021, the unpaid balance of any court-imposed
costs pursuant to . . . Sections 29550.1 . . . , as th[at] section[ ] read on June
30, 2021, is unenforceable and uncollectible and any portion of a judgment
imposing those costs shall be vacated.”
Diaz, relying on In re Estrada (1965) 63 Cal.2d 740 (Estrada), contends
Assembly Bill No. 1869 applies retroactively and therefore we should strike
from the judgment the entire criminal justice administration fee, rather than
just the unpaid portion of this fee as the People contend.
This court recently considered the same arguments raised by Diaz and
determined Estrada did not apply because Government Code section 6111
expressly provided the fee was collectible until June 30, 2021. (See People
v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 952.) We adhere to our analysis
and conclusion in Lopez-Vinck: the repeal of Government Code section
29550.1 does not entitle Diaz to a disposition striking the imposition of the
$154 criminal justice administration fee, or to a vacatur of the fee in its
entirety. Instead, pursuant to section 6111 of the Government Code, Diaz is
31
entitled to have that portion of the $154 fee that remained unpaid as of July
1, 2021, vacated from the judgment.13
V. Corrections to Abstract of Judgment
The People in their brief have identified the following errors in the
abstract of judgment: In table 2, change “PC 12022.27(a)” to “PC12022.7(a)”;
in table 3, delete the serious felony prior enhancement, as the trial court
struck, as opposed to stayed it; and in table 4, check the second box marked
“per PC 667(b)-(i) or PC 1170.12 (strike prior).” Diaz’s reply brief is silent on
the need for these corrections. We agree with the People. Accordingly, the
trial court should make these corrections to adhere to the judgment as
reflected in the reporter’s transcript and the trial court’s minute orders. (See
People v. Mitchell (2001) 26 Cal.4th 181, 188.)
DISPOSITION
The superior court is instructed to vacate any portion of the criminal
justice administration fee that remains unpaid after July 1, 2021, pursuant
to Assembly Bill No. 1869; and to make the corrections to the abstract of
judgment in accordance with this opinion. The superior court is directed to
prepare an amended abstract of judgment with these changes and forward a
13 Because the trial court stayed imposition of the criminal justice
administration fee, Diaz will have paid none of this fee regardless of whether
Estrada applied in this case.
32
certified copy to the Department of Corrections and Rehabilitation. In all
other respects the judgment is affirmed.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O’ROURKE, J.
33