Opinion
E071519
03-30-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO COLON, Defendant and Appellant.
Edgar J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FWV17000005) OPINION APPEAL from the Superior Court of San Bernardino County. Daniel W. Detienne, Judge. Affirmed. Edgar J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Roberto Colon on two counts of first degree murder, and it found true allegations that he had personally and intentionally used a firearm in committing the murders. The trial court sentenced him to a prison term of 100 years to life.
On appeal, Colon argues that (1) there was insufficient evidence of robbery or attempted robbery to support his convictions on a felony murder theory; (2) there was insufficient evidence to support a jury finding that the murders were willful, premeditated, and deliberate; (3) the trial court erred by failing to instruct the jury sua sponte on the lesser included offense of voluntary manslaughter based on heat of passion; (4) the trial court incorrectly instructed the jury regarding self-defense; (5) the prosecutor committed misconduct by minimizing the prosecution's burden of proof during argument; and (6) the trial court violated his constitutional rights by imposing certain fees and assessments—specifically, a $10,000 restitution fine, a court operations fee of $80, and a criminal conviction assessment of $60—without first determining his ability to pay. He further contends that any forfeiture of his prosecutorial misconduct or inability to pay arguments constituted ineffective assistance of counsel.
We find that substantial evidence supports Colon's convictions on either a felony murder or premeditated murder theory. We also find no instructional error by the trial court, and reject the claim of prosecutorial misconduct. Colon forfeited his argument regarding his ability to pay the restitution fine by failing to raise it in the trial court. He did not forfeit his inability to pay argument with respect to the court operations fee and criminal conviction assessment; however, we find any error in that regard harmless beyond a reasonable doubt. We decline to consider his ineffective assistance claim related to the restitution fine, finding it more appropriately considered on a record developed in a habeas corpus proceeding. We therefore affirm the judgment.
I. BACKGROUND
The prosecution presented evidence that in December 2016, Colon was upset at his girlfriend's former boyfriend, Alex, for repeatedly bothering her via social media. On December 26, 2016, Colon asked his girlfriend to trick Alex into going to a park on the pretext of meeting with her, so that Colon could confront him, but she refused to do so. She did, however, give Colon the information necessary to contact Alex via social media.
On December 27, 2016, Colon contacted Alex through social media using the name "Santos." Colon claimed to share a mutual friend by identifying by name someone Alex had known since childhood, and Colon led Alex to believe that "Santos" had played football with Alex in high school. In a series of phone conversations and messages via social media, Alex agreed to sell Colon an ounce of cocaine and meet him the following evening at a park in Fontana to complete the transaction.
In the afternoon of December 28, 2016, Alex realized that he was ill and, in a series of texts, tried to change the time and place of the transaction by delaying it for a day and moving it closer to Alex's house. Alex also testified at trial that he preferred meeting in a place with more "regular people walking around" in the evening, such as a restaurant or grocery store, so that there would be "witnesses" in case something went wrong, although he did not express this concern to Colon. Alex also arranged for a friend (victim 1) to participate by picking up the cocaine from where it was stored at Alex's house in Big Bear, and Alex also proposed victim 1's address as an alternate location for the deal. Colon resisted changing the time and location of the transaction, claiming that he was already about to be dropped off at the park, and that he was leaving for Arizona the next day. Alex agreed to keep the meeting at the park at about the same time as scheduled. A few minutes before that time however, Alex texted Colon that he was sending his "brother" to "serve" him, rather than coming himself. Colon expressed discomfort, asking if Alex could come too "just so [it's] not sketch." Alex responded that he could not, saying "I'm with my kids, bro, and I'm sick," assuring Colon that his "brother" was "cool" and asking Colon to "trust." Alex then confirmed with Colon that he only wanted one ounce of cocaine for now. The last of this exchange of texts was sent at 7:31 p.m.
Alex testified that he was telling the truth about being sick, but that he has no children; that lie was meant to emphasize that he absolutely could not come to the meeting himself.
At 7:47 p.m., victim 1 texted Alex that he was "almost" at the park where the transaction was to occur. Victim also spoke with Alex by phone at about 7:50 p.m., saying that he was exiting the freeway and was driving to the park. Alex was not aware that victim had brought along a second person (victim 2) to assist him. Alex did not know victim 2.
Shortly before 8:00 p.m., two witnesses were sitting on a bench in the park with a view of the parking lot. They saw victim 1's car pull into the parking lot and park next to their own. Victim 1 was driving, with victim 2 in the passenger seat, and Colon in the back seat. The two witnesses decided to leave the park. As the witnesses were walking back to their car, one of them saw a "quick flash of light" from victim 1's car—more specifically, "the middle of the car in between the front and back seat"— and heard a gunshot, which sounded like a firecracker. She saw the driver slump over. She then saw and heard two more gunshots, and observed that the passenger, too, appeared to have been shot. Both witnesses ran away, and one of them contacted 911 from a nearby residence.
As will be discussed below, Colon would later tell police that he shot victim 2 first, then fired two shots at victim 1. It seems plausible that what the witness believed to be the driver (victim 1) slumping over after being shot was in fact victim 1 ducking for cover in the moments after victim 2 was shot. In any case, for present purposes, it does not matter which victim was shot first.
Surveillance footage, later recovered by police, placed the time of the gunshots as about 8:01 p.m. Victim 1's car rolled backwards from its parking spot to rest against a curb, where it was discovered by police shortly before 9:00 p.m. with its engine still running. Colon had run from the scene and was picked up by a friend waiting for him nearby. Victim 1 and victim 2 were each dead from a single gunshot wound to the head; both had entry wounds on the back of the neck, and both had died within minutes. Police discovered a baggie containing 3.63 grams of cocaine (an ounce is approximately 28.34 grams) concealed in a compartment in the driver's side door frame, along with a loose $20 bill, and a wallet containing victim 1's identification card and $955 in cash. In victim 2's pockets police discovered a package containing just under an ounce of cocaine, as well as his identification. A jar containing more than an ounce of marijuana was found under the passenger seat.
Meanwhile, at 8:05 p.m., Colon called Alex and told him that victim 1 had never arrived at the park. Colon asked if Alex could meet up with him that evening to sell him "an ounce," but Alex said that he could not and suggested meeting the next day. Colon said he would see Alex when he returned from Arizona.
At 1:45 p.m. the following day, December 29, 2016, Colon received a call from his girlfriend's brother, who told him that she was at the police station. Surveillance footage from inside and outside Colon's residence, later obtained by police, showed that immediately after this phone call, Colon left his bedroom wearing sweatpants weighed down by something heavy in the pockets. He went outside to the backyard, came back inside through the kitchen door, and then made a second trip to the backyard. When he returned from the second trip outside, his pockets were flat.
Later that same afternoon, police arrested Colon and searched his residence. Under a recently disturbed area of a raised garden bed, police discovered a buried shopping bag containing, among other things, two guns—an unloaded .45-caliber semi-automatic and an empty five-shot revolver—a magazine for the semi-automatic, several loose .45-caliber cartridges, a box containing a digital scale, three plastic bags containing numerous smaller bags, and two plastic bags containing a white powder, suspected to be cocaine. Ballistic testing demonstrated that the revolver was the weapon used to shoot both victims.
One of these bags of powder, weighing 1.2 grams, was later confirmed to be cocaine; the second bag of powder, weighing 2.6 grams, was briefly misplaced, and the substance inside it was never tested to confirm that it was cocaine.
After his arrest, Colon told police an evolving series of stories. At first, he denied any involvement in the shootings of victim 1 and victim 2, claiming that he had gone to the park for a jog (as he had previously told his girlfriend), and describing an uneventful evening. He told detectives that he had planned to meet up with Alex "to catch up," after Alex had contacted him via social media. Alex, however, had "started flaking out" and sent someone else, who was late, and Colon did not wait for him.
Later, Colon conceded that he had first contacted Alex, rather than the other way around, and that he had intended not just to catch up, but to purchase drugs. His intent, he said, was to meet Alex to buy some marijuana and sample Alex's cocaine. Alex had sent a friend instead of coming himself, however, and the friend had failed to show up.
Finally, after police told Colon that they had surveillance video of the park, Colon admitted that the two victims had come to the park meeting, and he had been involved in the shootings. He claimed that victim 2, who was high on cocaine, got angry when Colon wanted to try the cocaine before buying it, and began acting in an aggressive and intimidating manner. Colon came to understand that victim 1 was not just a friend of Alex's, but Alex's supplier, and that victim 2 was one of victim 1's "gun guys." As Colon and victim 2 were arguing, Colon saw victim 1 get off the phone and give victim 2 a nod, and Colon then heard a click that he believed was a gun being cocked. Believing victim 2 was about to shoot him, Colon shot victim 2 first. Colon told police he then shot victim 1 because he believed that victim 1 had given victim 2 the okay to shoot him, and he was concerned that victim 1 would later retaliate against him or his family. His first shot at victim 1 missed, so he shot again, and he did not miss with his second shot. Colon then checked whether the victims actually had a gun, explaining that "I wanted to make sure I had a reason," and found the .45 caliber pistol, which he took and buried in his backyard, along with his own revolver.
This understanding may have been mistaken, at least in part. Alex testified at trial that victim 1 had taught him how to sell drugs, but that until recently (when he stopped drug dealing) he had been working on his own behalf, in a territory separate from victim 1's, though he and victim 1 would sometimes refer customers to one another.
Colon testified in his own defense at trial, largely repeating the final version of his statement to police, claiming that he had believed he was acting in self-defense when he shot the victims.
Colon was charged with two counts of murder (Pen. Code, § 187, subd. (a)). In connection with each count, the prosecution alleged that Colon personally and intentionally discharged a firearm, causing great bodily injury or death (§ 12022.53, subd. (d)); that he intentionally discharged a firearm (§ 12022.53, subd. (c)); and that he personally used a firearm (§ 12022.53, subd. (b)).
Further undesignated statutory references are to the Penal Code unless otherwise noted.
The jury's instructions on first degree murder included two possible theories of liability, namely, (1) felony murder in the commission of a robbery or attempted robbery, and (2) premeditated murder. The jury's verdicts, finding defendant guilty on both counts and finding true all of the alleged enhancements, did not specify which theory served as the basis for the convictions.
The trial court sentenced Colon to a term of 100 years to life, consisting of 25 years to life for each of the two murder counts, plus two terms of 25 years to life for the section 12022.53, subdivision (d) enhancements, all to run consecutively.
II. DISCUSSION
A. Felony Murder
Colon argues that the evidence presented at trial was insufficient to establish that the shootings occurred during the commission of a robbery or attempted robbery. In the trial court, Colon raised this argument both on an oral motion for judgment of acquittal under section 1118.1, made after the prosecution's case, as well as a motion for new trial or for judgment notwithstanding the verdict filed after the jury's verdict and before sentencing. The trial court denied both motions. We find no error.
Colon also frames the same argument as one of instructional error, that is, that the trial court should not have instructed the jury on felony murder because there was no evidence in support of that theory.
1. Additional Background
After his arrest, Colon told police that he had intended to buy an ounce of cocaine from Alex at a price of $1,000. He conceded that he only had $40 on him on the evening of December 29, 2016, plus $9 in his bank account, but he claimed that his intent was only to sample the cocaine that night and, if satisfied, to make the purchase after he got a paycheck the next week.
Alex testified that the price initially was $1,000 but was raised to $1,100 because of the high quality of the cocaine.
At trial, a police expert familiar with the illegal narcotics trade testified that it was not common for a buyer to sample cocaine and promise to buy an ounce later. Rather, for a transaction of that size, any sampling would be done from the bag the buyer was purchasing, immediately before the purchase. The expert also opined that it would not be common for a seller to "front" a buyer an ounce of cocaine and allow the buyer to pay later. Normally, and especially in a first transaction between a particular seller and buyer, the seller would want to see, and even receive payment before giving the buyer the drugs. The expert further opined that when a buyer carried a gun when he went to make a transaction, it would usually be to protect a "relatively large amount of currency." When asked about the hypothetical situation of a buyer who carried a gun to a transaction, but did not have enough money to complete the deal, the expert responded: "Sounds to me like he wants to rob me. Wants to take my drugs."
2. Applicable Law
Murder is defined as "the unlawful killing of a human being, or a fetus, with malice aforethought." (§ 187, subd. (a).) However, "[t]he felony-murder rule makes a killing while committing certain felonies murder without the necessity of further examining the defendant's mental state." (People v. Chun (2009) 45 Cal.4th 1172, 1182.) First degree murder includes, as relevant here, "[a]ll murder . . . that is committed in the perpetration of, or attempt to perpetrate . . . robbery . . ." where the perpetrator of the robbery or attempted robbery was "the actual killer." (§ 189, subds. (a) & (e)(1).)
"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) "An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done towards its commission." (§ 21a.)
"In assessing the sufficiency of the evidence, we review the . . . record in the light most favorable to the judgment to determine whether it discloses 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. Bolin (1998) 18 Cal.4th 297, 331.) Where, as here, the defendant moved for acquittal under section 1118.1 "'at the close of the prosecution's case-in-chief, the sufficiency of the evidence is tested as it stood at that point' in the trial [citation]—in other words, based on the prosecution's case alone, and without considering the evidence subsequently adduced during the presentation of the defense case or evidence produced by the prosecution on rebuttal." (People v. Watkins (2012) 55 Cal.4th 999, 1019.) "Reversal [for lack of sufficient evidence] is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin, supra, at p. 331.) "'We do not reweigh evidence or reevaluate a witness's credibility.'" (People v. Alexander (2010) 49 Cal.4th 846, 917.)
3. Analysis
The prosecution presented ample circumstantial evidence to support the conclusion that Colon shot the victims during a robbery or attempted robbery. (See People v. Abilez (2007) 41 Cal.4th 472, 508 ["Intent to steal is often proved by circumstantial evidence."].) Alex testified, and the written messages between Colon and Alex at least arguably confirm, that they had arranged to meet in a park for Colon to purchase an ounce of cocaine, with no indication that Colon intended only to sample Alex's wares and perhaps make a purchase at a later date. The purchase price was to be $1,000 or $1,100. Colon came to the park, ostensibly to complete the transaction, armed with a gun but without anything close to $1,000 either on him or immediately available to him. Common sense, as well as the testimony of the prosecution's expert in the illegal narcotics trade regarding a similar hypothetical, both support the inference that Colon had no intention of completing the sale either that evening or any other time, but rather intended to take the cocaine by force or the threat of force.
As Colon emphasizes, police found a substantial amount of drugs left in the car along with the victims, including the ounce of cocaine that Colon had purported to come to purchase, and there is no direct evidence establishing that the smaller amount of cocaine found in Colon's backyard was taken from the victims, rather than acquired elsewhere. Nevertheless, the evidence supports the inference that Colon intended to rob the victims. From this perspective, even assuming Colon did not succeed in taking any cocaine from the victims, he took more than one direct act beyond mere preparation towards committing such a robbery, namely, arranging the meeting at the park and then shooting the victims. (See People v. Bonner (2000) 80 Cal.App.4th 759, 764, fn. 3 [attempted robbery conviction affirmed where robbery was foiled before the defendant was even in proximity to intended victims, but after defendant had gone armed to the scene of planned robbery].) And, as noted, an attempted robbery is enough to sustain a first degree felony murder conviction. (§ 189, subds. (a) & (e)(1).)
There is no direct evidence as to why Colon did not take the drugs from the car when he ran away from the scene. Particularly given the urgency in absconding from a crime scene, it is possible that he simply did not find them because, as noted above, they were concealed in various places in the car—a compartment in the driver's side door, underneath the passenger seat, and in victim 2's clothing—and Colon left the scene without conducting a search. (Colon told police that he discovered the .45 caliber pistol that he took from the car in plain view, in victim 2's hand.)
Moreover, it is undisputed that Colon took at least one piece of property from the car after the shootings, namely, victim 2's gun. Arguably, therefore, there is substantial evidence not only of an attempted robbery, but also a completed robbery, even if the property taken was not the cocaine Colon initially intended to take.
On this record, we cannot say "'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]'" on a felony murder theory. (People v. Bolin, supra, 18 Cal.4th at p. 331.) We find that the trial court did not err by instructing the jury on felony murder, and that the jury could reasonably have convicted Colon on a felony murder theory.
B. Premeditated and Deliberate Murder
Colon argues that there was insufficient evidence of premeditation and deliberation to support his conviction for first degree murder on that basis. Not so.
1. Applicable Law
A murder is of the first degree if it was "willful, deliberate and premeditated." (§ 189.) In this context, "'premeditated' means 'considered beforehand' and 'deliberate' means 'formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.'" (People v. Mayfield (1997) 14 Cal.4th 668, 767, overruled on other grounds as stated in People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2.) "'The process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . ."'" (People v. Lee (2011) 51 Cal.4th 620, 636.)
In People v. Anderson (1968) 70 Cal.2d 15, 26-27, our Supreme Court "identified three categories of evidence relevant to determining premeditation and deliberation: (1) events before the murder that indicate planning; (2) a motive to kill; and (3) a manner of killing that reflects a preconceived design to kill." (People v. Gonzalez (2012) 54 Cal.4th 643, 663 [discussing People v. Anderson].) These factors "are not all required [citation], nor are they exclusive in describing the evidence that will support a finding of premeditation and deliberation." (Gonzales, at p. 663.) "It also is not necessary that any of these categories of evidence be accorded a particular weight [citation], and it is not essential that there be evidence of each category to sustain a conviction." (People v. Gonzalez (2012) 210 Cal.App.4th 875, 887.) Rather, these factors are intended "to aid reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse." (People v. Perez (1992) 2 Cal.4th 1117, 1125.)
We review the sufficiency of the evidence of premeditation and deliberation under the same deferential standard discussed above with respect to felony murder.
2. Analysis
Applying the factors of People v. Anderson, supra, 70 Cal.2d 15, and reviewing the evidence in the light most favorable to the judgment, sufficient evidence supports the conclusion that the murders were the result of preexisting reflection and weighing of considerations rather than a rash impulse. As discussed above, there was ample evidence that Colon planned to ambush Alex in retaliation for Alex's bothersome contacts with Colon's girlfriend via social media, using the drug transaction with the fictional "Santos" to lure Alex to the park. Such an inference is strongly supported by the circumstance that Colon had almost no money when he came to the park, purportedly to buy an ounce of cocaine at a price of at least $1,000, but he was carrying a revolver. Perhaps Colon planned only to confront Alex verbally about his behavior online, or to rob him of the drugs, but another possibility, reasonably inferred from the evidence, is that he planned to shoot him.
The plan, of course, went awry when Alex sent victim 1 to make the transaction in his place. At that point, Colon nevertheless decided to go ahead with meeting with victim 1 (and, as it turned out, victim 2). Colon notes in appellate briefing that there is no evidence that Colon had any preexisting dispute with either victim. Nevertheless, it is noteworthy that, immediately after the shootings, Colon again tried to get Alex to come meet him, claiming that victim 1 had failed to show up at the park. It is reasonably inferred that Colon killed the victims to keep them from telling Alex that Colon would not or could not complete the sale, and thereby give Colon another opportunity to lure Alex to meet him—an on-the-fly adjustment to his earlier plan. Other alternative inferences supported by the evidence, and leading to the conclusion that Colon had a motive for committing murder, include that Colon was frustrated in his plan to kill Alex, so he took the opportunity to hurt Alex through hurting someone close to him, victim 1, who Alex had described as a "brother," or that Colon wanted to hurt Alex's business by killing someone he believed was Alex's supplier.
Furthermore, '"an execution-style killing may be committed with such calculation that the manner of killing will support a jury finding of premeditation and deliberation, despite little or no evidence of planning and motive."' (People v. Tafoya (2007) 42 Cal.4th 147, 172.) Here, both victims were shot in the head from behind. As Colon notes in briefing on appeal, Colon could not have known in advance of the victims' arrival at the park that he would be sitting in the rear of the vehicle so that he would be in a position to shoot them from behind. Nevertheless, he did have a brief period of time—between the victims' arrival, and the time of the shooting—in which to determine how to take advantage of that opportunity, which is more than adequate to sustain a jury finding of premeditation and deliberation. (See People v. Lee, supra, 51 Cal.4th at p. 636.)
We find that the record contains sufficient evidence to support a jury finding that Colon acted willfully and with premeditation and deliberation. We reject his arguments to the contrary.
C. Voluntary Manslaughter Instruction
Colon contends that the trial court committed reversible error by failing to instruct the jury sua sponte on voluntary manslaughter based on heat of passion as a lesser included offense. We doubt that the trial court erred, but in any case find no prejudice from any arguable error.
"An intentional, unlawful homicide is 'upon a sudden quarrel or heat of passion' [(§ 192, subd. (a)], and is thus voluntary manslaughter (ibid.), if the killer's reason was actually obscured as the result of a strong passion aroused by a 'provocation' sufficient to cause an '"ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment."'" (People v. Breverman (1998) 19 Cal.4th 142, 163 (Breverman).) "'"[N]o specific type of provocation [is] required . . . ."'" (Ibid.) "Moreover, the passion aroused need not be anger or rage, but can be any ""'[v]iolent, intense, high-wrought or enthusiastic emotion.'"'"' (Ibid.)
"It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence." (People v. St. Martin (1970) 1 Cal.3d 524, 531.) "That obligation encompasses instructions on lesser included offenses if there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser." (People v. Blair (2005) 36 Cal.4th 686, 745, disapproved on another ground in People v. Rices (2017) 4 Cal.5th 49, 76.) "To justify a lesser included offense instruction, the evidence supporting the instruction must be substantial—that is, it must be evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist." (People v. Blair, supra, at p. 745.) "[T]he court is not obliged to instruct on theories that have no such evidentiary support." (Breverman, supra, 19 Cal.4th at p. 162; see People v. Williams (2015) 61 Cal.4th 1244, 1246 ["'[s]peculation is insufficient to require the giving of an instruction on a lesser included offense'"].) "Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions." (People v. Lewis (2001) 25 Cal.4th 610, 646.)
Colon argues on appeal that he acted out of "fear and panic as a result of the aggressive attitude of [victim 2] and then [victim 2's] racking of a gun in response to a nod from [victim one]." He correctly notes that the provocation required for voluntary manslaughter may arise from any circumstance that "arouses great fear, anger or jealousy." (People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704-1705, italics added; see also Breverman, supra, 19 Cal.4th at p. 163 [evidence of "'mob'" engaged in intimidating conduct on defendant's property, causing him "immediate fear and panic," constituted sufficient provocation].)
The jury here, however, was instructed on self-defense, both perfect and imperfect. (See CALCRIM No. 505 ["Justifiable Homicide: Self Defense"]; CALCRIM No. 571 ["Voluntary Manslaughter: Imperfect Self-Defense"].) By finding Colon guilty of first degree murder, despite those instructions, the jury necessarily decided that Colon did not act out of either reasonable or unreasonable fear when he shot the victims. If the trial court erred by not also instructing the jury on voluntary manslaughter based on heat of passion—a proposition that we find unlikely—any error was harmless. (See People v. Lewis, supra, 25 Cal.4th at p. 646.)
This conclusion depends, of course, on the premise that the jury was properly instructed regarding self-defense. We therefore turn now to Colon's challenge to those instructions.
D. Self-Defense
Colon claims that the trial court prejudicially erred by giving CALCRIM No. 505, the pattern instruction on self-defense, because the instruction was erroneous. The instruction, as given and in relevant part, told the jury that for a killing to be justified, "[t]he defendant must have believed there was imminent danger of death or great bodily injury to himself. Defendant's belief must have been reasonable and he must have acted only because of that belief." In Colon's view, the jury should not have been precluded from finding the killings justified if it found he acted based on mixed motives. We find CALCRIM No. 505 correctly states the law.
By statute, a homicide is justifiable "when committed by any person . . . [¶] . . . [¶] 3. When committed in the lawful defense of such person . . . when there is reasonable ground to apprehend a design . . . to do some great bodily injury, and imminent danger of such design being accomplished . . . ." (§ 197.) "A bare fear of the commission of any of the offenses mentioned in subdivision[] . . . 3 of Section 197, to prevent which homicide may be lawfully committed, is not sufficient to justify it. But the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone." (§ 198, italics added.)
The statutory language "such fears alone" does not permit adopting a rule that a homicide is justifiable in self-defense if the defendant's honest and reasonable fear for his life (or for the life of another) is only a substantial factor for the killing, rather than the sole basis for the killing. Such a rule would be inconsistent with more than a century of California case law holding that self-defense applies as a defense to murder only when the killing is motivated by fear alone, and not some other, more culpable motive. (People v. Trevino (1988) 200 Cal.App.3d 874, 879 ["an instruction which states that the party killing must act under the influence of such fears alone, is a correct statement of the law"]; accord, People v. Ye Park (1882) 62 Cal. 204, 207-208; see People v. Nguyen (2015) 61 Cal.4th 1015, 1045 (Nguyen) [collecting cases].) A person who "feels anger or even hatred toward the person killed" may nevertheless be justified in using deadly force in self-defense, but "the law requires that the party killing act out of fear alone." (Trevino, supra, at p. 879.) Thus, "if the only causation of the killing was the reasonable fear that there was imminent danger of death or great bodily injury, then the use of deadly force in self-defense is proper, regardless of what other emotions the party who kills may have been feeling, but not acting upon." (Ibid.)
In Nguyen, our Supreme Court remarked in dicta that the defendant "did not argue . . . that the jury should have been instructed that acting based on mixed motives is permissible so long as reasonable fear was the but-for cause of his decision to kill." (Nguyen, supra, 61 Cal.4th at p. 1046.) The Supreme Court therefore had "no occasion to consider whether such a rule would be consistent with [prior interpretations of] section 198 . . . ." (Ibid.) Colon asks that we interpret section 198 to permit a defendant to claim self-defense despite having such mixed motives, at least in this limited sense, and that we find on this basis that the jury's instructions on self-defense were erroneous. We will not do so and instead will follow the holdings of Nguyen and Trevino. Self-defense is not available to a defendant who does not "act on the basis of fear alone but also on a desire to kill [the victim]." (Nguyen, at p. 1044; see also Trevino, supra, 200 Cal.App.3d at p. 879 ["The party killing is not precluded from feeling anger or other emotions save and except fear; however, those other emotions cannot be causal factors in his decision to use deadly force. If they are, the homicide cannot be justified on a theory of self-defense"].)
Colon also advocates the substantial factor standard, which we rejected above.
Colon raises again here arguments, parsing the phrase "such fears alone" from section 198 and based on legislative history, that the Supreme Court declined to adopt in Nguyen. (See Nguyen, supra, 61 Cal.4th at p. 1046.) We have no appropriate basis to do otherwise, even if we found the arguments persuasive (we do not). He also proposes that common law principles of multiple causation, incorporated into tort law and other areas of criminal law, should be applied here. (See People v. Jennings (2010) 50 Cal.4th 616, 644, fn. 13) However, unlike the cases Colon cites, the statute at issue here expressly requires sole causation. (§ 198 [". . . must have acted under the influence of such fears alone" (italics added)].) Colon further argues state and federal constitutional principles require a change in CALCRIM No. 505, citing to authority that establishes the existence of a constitutional right to self-defense. (E.g., McDonald v. City of Chicago (2010) 561 U.S. 742, 767; People v. McDonnell (1917) 32 Cal.App.694, 704.) He cites no authority, however, that holds the constitutional right to self-defense applies even when the defendant acted, in part, for reasons other than self-defense, and we are not aware of any such authority.
CALCRIM No. 505 correctly states the law. Colon has demonstrated no error in the jury's instructions on self-defense.
E. Prosecutorial Error
Colon challenges certain comments made by the prosecutor during rebuttal closing argument, contending that they inappropriately minimized the prosecution's burden of proof. We are not persuaded that the prosecutor misstated the reasonable doubt standard.
1. Applicable Law
A prosecutor "commit[s] misconduct [or prosecutorial error] insofar as her statements could reasonably be interpreted as suggesting to the jury [the prosecution] did not have the burden of proving every element of the crimes charged beyond a reasonable doubt." (People v. Hill (1998) 17 Cal.4th 800, 831, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) "When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was a 'reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] 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. Centeno (2014) 60 Cal.4th 659, 667 (Centeno).)
2. Additional Background
During closing argument, defense counsel focused on reasonableness and reasonable doubt, arguing at some length that the evidence supported multiple reasonable inferences, only some of which led to a finding that Colon was culpable, so the jury must resolve the matter in Colon's favor. In rebuttal, the prosecutor responded (with an interruption for a defense objection) in part as follows: "Reasonable doubt is an abiding conviction. It's not beyond all possible doubt, imaginary doubt, a shadow of a doubt. It's an abiding conviction, a reasonable interpretation of the evidence . . . An abiding conviction, a reasonable interpretation of the evidence based on the entire comparison of all of the evidence. Again, two stories here and only one of them is reasonable." Later in rebuttal, the prosecutor displayed a slide with the heading "Reasonable Doubt" and text reading "A reasonable interpretation of the evidence, based on the entire comparison of the evidence. Trials are a search for the truth, not a search for doubts."
In overruling Colon's objection to the comments quoted above, the trial court reminded the jury of its instruction regarding attorney comments on the law, as it had repeatedly done during earlier argument: "Again, ladies and gentlemen, 'You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorney's comments on the law conflict with my instructions, you must follow my instructions.'"
The trial court did not expressly state that the defense's objection was overruled, but it did impliedly overrule it by repeating the instruction regarding attorney comments on the law, and then inviting the prosecutor to continue.
3. Analysis
The prosecution's discussion of the reasonable doubt standard was not misleading. The trial court instructed the jury that the prosecution had the burden to prove all elements of the charges beyond a reasonable doubt, and explained that "[p]roof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt." The prosecutor correctly described the standard to the jury in nearly identical terms. She argued that the defense's theory of the case was unreasonable, and correctly told the jury it should not acquit based on unreasonable doubt.
In discussing case authority, Colon contends that the facts here are "most similar" to Centeno, supra, 60 Cal.4th at 659. Not so. In Centeno, the Supreme Court found the prosecutor had erred because her remarks "strongly implied that the People's burden was met if its theory was 'reasonable' in light of the facts supporting it." (Id. at p. 671.) The prosecution's remarks here implied nothing of the sort. Rather, they were fair argument as in People v. Romero (2008) 44 Cal.4th 386, where the Supreme Court approved the prosecutor's argument that the jury must "'decide what is reasonable to believe versus unreasonable to believe'" and "'accept the reasonable and reject the unreasonable.'" (Id. at p. 416; see also Centeno, 60 Cal.4th at pp. 672-673 [distinguishing People v. Romero, emphasizing that it is "permissible to argue that the jury may reject impossible or unreasonable interpretations of the evidence and to so characterize a defense theory"].)
Where the jury was properly instructed on the People's burden, we find no reasonable likelihood the jury understood or applied the prosecution's argument on the reasonable doubt standard in an improper or erroneous manner.
F. Ability to Pay Fees and Assessments
At sentencing, the trial court imposed a $10,000 restitution fine (§ 1202.4), a court operations fee of $80 (§ 1465.8, subd. (a)), and a criminal conviction assessment of $60 (Gov. Code, § 70373). The restitution fine is in the amount of the statutory maximum. (§ 1202.4, subd. (b)(1).) The court operations fee and criminal conviction assessment are in the amounts set by statute. (§ 1465.8, subd. (a)(1); Gov. Code, § 70373, subd. (a)(1).) Colon did not object to any of the fines or assessments in the trial court, contending for the first time in this appeal that they may not be imposed without considering his ability to pay them. We find that Colon forfeited his claim of error with respect to the restitution fine, but not with respect to the court operations and facilities fees. Any error regarding the fees, however, was harmless.
In People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), decided while this appeal was pending, the court of appeal held that it violates due process under the federal and state Constitutions to impose the court operations and facilities fees without first determining the convicted defendant's ability to pay them. (Id. at pp. 1168-1169.) In addition, "to avoid serious constitutional questions" raised by the statutory restitution scheme, the Dueñas court decided execution of the mandatory restitution fine must be stayed unless the trial court determines that the defendant has the ability to pay it. (Id. at p. 1172.) Later cases have held that, at the ability to pay hearing, the defendant bears the burden of showing his or her inability to pay, and the court "must consider all relevant factors," including "potential prison pay during the period of incarceration to be served by the defendant." (People v. Castellano (2019) 33 Cal.App.5th 485, 490 [remanding for an ability to pay hearing]; accord People v. Santos (2019) 38 Cal.App.5th 923, 934 [on remand, defendant must show inability to pay, and court may consider potential prison pay]; People v. Kopp (2019) 38 Cal.App.5th 47, 96 (Kopp), review granted Nov. 13, 2019, S257844 [same].)
Since Dueñas, some courts have criticized its conclusions or its reasoning. (E.g. People v. Hicks (2019) 40 Cal.App.5th 320, 322, 327-329, review granted Nov. 26, 2019, S258946 [holding that Dueñas was wrongly decided]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069-1072 [holding proper framework for analyzing ability to pay is Eighth Amendment's prohibition against excessive fines, rejecting Dueñas's due process analysis]; Kopp, supra, 38 Cal.App.5th at pp. 96-97 [applying Dueñas's due process analysis to fees, but holding Eighth Amendment analysis should apply to restitution fine].) The California Supreme Court will likely resolve this split in authority, having granted review in Kopp to decide whether courts must "consider a defendant's ability to pay before imposing or executing fines, fees, and assessments" and if so, "which party bears the burden of proof regarding defendant's inability to pay." (Kopp, review granted, Nov. 13, 2019, S257844.)
Here, the People "[do] not take issue with the Dueñas opinion insofar as it holds the imposition of non-punitive assessments violates due process where a defendant demonstrates an inability to pay them." They argue, however, that Dueñas was wrongly decided with respect to the restitution fine, which is a form of punishment, arguing that it "should principally be examined under the excessive fines clause, under which ability to pay is not determinative." We need not address that issue, because Colon forfeited his claim of Dueñas error with respect to the restitution fine.
In People v. Jones (2019) 36 Cal.App.5th 1028 (Jones), this court declined to find forfeiture of a claimed Dueñas error "[b]ecause a due process objection would have been 'futile or wholly unsupported by substantive law then in existence.'" (Id., at p. 1033.) We held that "[g]iven the substantive law in existence at the time of Jones's sentencing, Dueñas was unforeseeable." (Ibid.) This conclusion applies with equal force to Colon's case, at least as to the court operations and facilities fees. He did not forfeit an ability to pay objection to those fees.
The restitution fine, however, requires a different analysis. Even before Dueñas, section 1202.4 permitted the trial court to consider Colon's inability to pay a $10,000 restitution fine. (Jones, supra, 36 Cal.App.5th at p. 1032.) The statute mandates that the court impose a restitution fine "unless it finds compelling and extraordinary reasons for not doing so," and "[a] defendant's inability to pay shall not be considered a compelling and extraordinary reason." (§ 1202.4, subd. (c), italics added.) However, under the statute, the court may consider the defendant's inability to pay "in increasing the amount of the restitution fine in excess of the minimum fine." (Ibid.) Thus, even before Dueñas, the law permitted the trial court to consider Colon's inability to pay the maximum fine. (See People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 (Frandsen) [finding Dueñas error forfeited, in part because restitution fine was $10,000]; Jones, at p. 1033 [agreeing with Frandsen on this point].)
Some courts have suggested that failure to object to a maximum restitution fine necessarily forfeits the Dueñas claim with respect to the court operations and facilities fees. (See, e.g., Frandsen, supra, 33 Cal.App.5th at p. 1154; People v. Aviles, supra, 39 Cal.App.5th at p. 1074; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.) We disagree. The defendant's inability to pay has long been one among many factors a trial court considers in setting the restitution fine above the minimum, so it is appropriate to require a defendant to raise the issue in the trial court. (See § 1202.4, subd. (d) [listing factors considered].) Prior to Dueñas, inability to pay had no bearing on the court operations and facilities fees, and there was no reason a defendant should have foreseen the need to raise the argument. (See Jones, supra, 36 Cal.App.5th at p. 1033 [describing Dueñas as "unforeseeable"].) Moreover, prior to Dueñas, a defendant might reasonably have decided not to object to a maximum restitution fine on the basis of ability to pay when other factors, such as the seriousness of the offense, plainly would have carried dispositive weight. (See § 1202.4, subd. (d).) Colon did not have the benefit of Dueñas at the time of his sentencing. We therefore will not construe his failure to object to the maximum restitution fine as a forfeiture of the Dueñas claim with respect to the court operations and facilities fees.
Thus, Colon forfeited his claim of Dueñas error with respect to the $10,000 restitution fine but not with respect to the court operations fee of $80 or the criminal conviction assessment of $60. The trial court did not determine Colon's ability to pay those fees. Under Dueñas, this was error, and we must remand for an ability to pay hearing unless the error was harmless. (Jones, supra, 36 Cal.App.5th at pp. 1034-1035.) Dueñas determined the error was of constitutional magnitude, so we inquire whether the failure to conduct an ability to pay hearing was harmless beyond a reasonable doubt. (Id. at p. 1035.) We will find Dueñas error harmless if the record demonstrates, beyond a reasonable doubt, that the defendant cannot establish his or her inability to pay. (Ibid.)
We are persuaded beyond a reasonable doubt that Colon cannot establish his inability to pay the $140 in fees. He may well lack the present ability to pay the fees. There was evidence that Colon had very little money at the time of the murders, and the trial court found he lacked the ability to pay appointed counsel fees. (See § 987.8, subd. (b) [court determines "present ability" of defendant to pay appointed counsel fees].) There is no reasonable doubt, however, about his future ability to pay the fees. Colon will have the opportunity to earn prison wages over a period of many years. (See People v. Castellano, supra, 33 Cal.App.5th at pp. 490-491 [potential future prison pay considered in determining ability to pay].) He was 23 years old at the time of sentencing. He will not be eligible for youthful offender parole until he has served 25 years of his term. (§ 3051.) During that period, half of his wages (and any trust account deposits) will be deducted to pay for the restitution fine, plus another five percent for the administrative costs of this deduction (§ 2085.5, subds. (a), (e); Cal. Code Regs., tit. 15, § 3097, subd. (f).) Nevertheless, we reject the proposition that he cannot afford to pay $140 from the remainder over the course of the next several decades. (See People v. Johnson (2019) 35 Cal.App.5th 134, 139 ["The idea that [defendant] cannot afford to pay $370 while serving an eight-year prison sentence is unsustainable"].) On that basis, we find the Dueñas error with respect to the fees harmless beyond a reasonable doubt.
G. Ineffective Assistance of Counsel
Colon argues that the forfeiture of his arguments regarding the restitution fine constituted ineffective assistance of counsel. We decline to consider this argument here, finding it more appropriately resolved in a habeas corpus proceeding.
To establish ineffective assistance of counsel, "the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (People v. Mai (2013) 57 Cal.4th 986, 1009.) On direct appeal, a conviction will be reversed for ineffective assistance "only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (Ibid.)
Here, the record is silent as to why defense counsel raised no objection to the imposition of a $10,000 restitution fine based on Colon's ability to pay. Counsel perhaps had good reason not to do so; for example, perhaps counsel had reason to conclude Colon could in fact pay that sum. Accordingly, we find it would be inappropriate to decide the merit of Colon's ineffective assistance of counsel claim here. The issue is more appropriately considered in a habeas corpus proceeding.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J. We concur: RAMIREZ
P. J. CODRINGTON
J.