Opinion
B296757
04-10-2020
THE PEOPLE, Plaintiff and Respondent, v. KEVIN BERNARD MURRAY, Defendant and Appellant.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, Michael C. Keller and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA073692) APPEAL from a judgment of the Superior Court of Los Angeles County, Michael D. Abzug, Judge. Affirmed; remanded with instructions. Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, Michael C. Keller and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
Kevin Bernard Murray appeals from a judgment entered after the jury convicted him of failure to register as a sex offender after a change of address. On appeal, Murray contends there is insufficient evidence to establish he moved from the address he had previously registered, and the trial court erred by allowing a police technician to testify Murray was no longer living at that address. Murray also contends the court failed properly to instruct the jury on the charged offense and the prosecutor committed prejudicial misconduct during closing argument by telling the jury the presumption of innocence no longer applied to Murray. Murray claims his counsel's failure to object to these errors constituted ineffective assistance of counsel. Murray also asserts the trial court violated his right to due process by failing to consider his ability to pay before imposing court assessments and restitution fines, relying on this court's opinion in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
We affirm the judgment but remand for the trial court to allow Murray to request a hearing and present evidence demonstrating his inability to pay the court assessments and restitution fines imposed by the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Information
The information charged Murray with a single count of failure to register as a sex offender within five working days of a change of address during the period between March 1, 2018 and April 18, 2018. (Pen. Code, § 290.013, subd. (a).) The information alleged Murray suffered seven prior serious or violent felony convictions within the meaning of the three strikes law. (§§ 667, subds. (b)-(j), 1170.12.)
Further undesignated statutory references are to the Penal Code.
Murray pleaded not guilty and denied the special allegations. At trial, the parties stipulated that on December 12, 1991, Murray was convicted of rape by force or fear in violation of section 261, subdivision (a)(2), in Ventura County case No. CR28344. B. The Evidence at Trial
On June 7, 2017 Murray registered as sex offender with the Palmdale Sheriff's Station of the Los Angeles County Sheriff's Department. Murray reregistered with the sheriff's station on August 16, 2017. Murray reported his address on both registration forms as 2311 Old Harold Road, unit O-274, in Palmdale, Los Angeles County (Old Harold Road). Prior to registering with the Palmdale Sheriff's Station in 2017, Murray had registered multiple times with the Simi Valley Police Department.
Sections 290 and 290.012, subdivision (a), require a sex offender to register annually within five working days of his or her birthday, regardless of whether there has been a change of address. Murray's birthday is August 15.
Granillo met with Monica Murray at the Palmdale Sheriff's Station on both June 7 and August 16, 2017. Granillo is a law enforcement technician and records custodian for the Palmdale Sheriff's Station who is responsible for sex offender registrations in Palmdale. Granillo's responsibilities include meeting with offenders to record annual registrations and change of address updates; reviewing the registration forms and requirements with offenders; entering offenders' registration information into the California Sex and Arson Registration (CSAR) database; photographing and fingerprinting offenders; and dispatching sheriff's deputies to conduct home checks on offenders between annual registrations. Granillo's standard practice when working with sex offenders is to have an in-person appointment at which she walks the offender through approximately 22 or 23 specific registration admonitions set forth on the registration forms; has the offender initial each admonition and sign the registration form; and answers any questions the offender may have about the registration requirements. As Granillo reviews the requirements, she underlines the main points and circles the number of days the offender has to register.
Granillo photographed Murray and worked with him to complete the registration forms. Admonition No. 7 on Murray's August 16, 2017 registration form stated, "If I am registered at a residence address and become transient, I have five working days within which to register in person with the law enforcement agency having jurisdiction where I am physically present as a transient." On August 16 Granillo underlined this admonition, reviewed it with Murray, and had Murray initial it. Admonition No. 13 on Murray's registration form stated, "If I have more than one resident address [at] which I regularly reside, regardless of the number of days or nights I spend at each address[,] I must register in person within five working days at each address with the law enforcement agency having jurisdiction over each address. If I no longer reside at a registered address, I must inform in person the registering agency having jurisdiction over that address within five working days before or after I leave." On August 16 Granillo underlined and Murray initialed this admonition as well.
On March 1, 2018, at Granillo's direction, Los Angeles Sheriff's Department Detective Teresa Steen visited the Old Harold Road address to conduct a registrant check on Murray. Detective Steen spoke to Dwight Johnson, a resident of the Old Harold Road apartment, who told Detective Steen that Murray was not there and did not live there. After the visit, Detective Steen obtained from Granillo Murray's telephone number (listed on his registration form). Detective Steen called the number, but there was no answer. At trial, Detective Steen did not recall if she left a voicemail for Murray, but she confirmed she did not call Murray again and Murray did not return her call. Detective Steen did not make any additional visits to Old Harold Road.
Johnson testified he had known Murray in the 1980's and had reconnected with him in early 2018, after running into him at a Veterans Administration facility two years earlier. Johnson offered to help Murray find a place to live in Palmdale, and Murray stayed at Johnson's apartment "a couple days out of the month" while looking for an apartment. On some occasions, Murray came to Johnson's apartment only to shower and then leave, and on other occasions Murray stayed overnight. Johnson estimated Murray spent a total of two weeks at the apartment, but not consecutive. Murray never left any personal belongings at the apartment and never brought guests there. Johnson gave Murray permission to use the apartment address as a mailing address, but Johnson had no recollection of giving Murray permission to use the address to register as a sex offender.
Johnson testified police officers came to his apartment on three separate occasions to inquire about Murray. According to Johnson, "The police asked me one question: Do[es] he live here? I said no." Johnson told the officers, "I don't know where [Murray's] at. He don't live here." Johnson admitted during cross-examination his building management was unhappy about the police visits and had threatened him with eviction. But when defense counsel asked, "Were you afraid that if the manager of the building found out you were letting Mr. Murray stay with you that you would lose your apartment," Johnson answered, "[B]ut he was not staying with me."
After Detective Steen's visit to Old Harold Road on March 1, 2018 and her unsuccessful attempt to contact Murray by telephone, Granillo checked the CSAR database, but she did not find any address listed for Murray besides Old Harold Road. Granillo testified she determined through her investigation that Murray "was no longer living at the registered address on Old Harold."
Murray did not call any witnesses at trial. C. Verdict and Sentencing
The jury found Murray guilty of failure to register a change of address (§ 290.013, subd. (a)) and found true the special allegation Murray had been convicted of rape by force or fear on December 12, 1991, in violation of section 261, subdivision (a)(2). The trial court denied Murray's motion to strike the prior strike conviction and sentenced him to four years in state prison (the middle term of two years doubled under the three strikes law).
No evidence was presented on the other alleged strike priors.
The trial court imposed a $40 court operations assessment fee (Pen. Code, § 1465.8, subd. (a)(1)), a $30 criminal conviction assessment fee (Gov. Code, § 70373), and a $400 restitution fine (Pen. Code, § 1202.4, subd. (b)), and suspended a parole revocation restitution fine in the same amount (Pen. Code, § 1202.45). At sentencing, Murray did not object to imposition of the assessments and fines or raise his inability to pay, and the court did not specifically make findings as to Murray's ability to pay. However, the court stated, "[A]ll fines and fees except those mandatory will be permanently suspended because of the defendant's disabilities."
Murray timely appealed.
DISCUSSION
A. Substantial Evidence Supports Murray's Conviction of Failure To Register a Change of Address
1. Standard of review
"In evaluating a claim regarding the sufficiency of the evidence, we review the record 'in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which 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. Westerfield (2019) 6 Cal.5th 632, 713 (Westerfield); accord, People v. Penunuri (2018) 5 Cal.5th 126, 142 (Penunuri) ["'To assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt.'"]; People v. Nguyen (2015) 61 Cal.4th 1015, 1055-1056 ["'[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt . . . .'"].)
"'We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.'" (Westerfield, supra, 6 Cal.5th at p. 713; accord, Penunuri, supra, 5 Cal.5th at p. 142 ["'A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support'" the jury's verdict.'"].) "'We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.'" (People v. Letner and Tobin (2010) 50 Cal.4th 99, 162.)
2. Applicable law
A person subject to the Sex Offender Registration Act (§§ 290-290.024) (the Act) must register for the rest of his or her life with the police chief of the city in which the offender is residing, or, if the offender resides in an unincorporated area or city without municipal police, the county sheriff. (§ 290, subd. (b).) A sex offender must register "within five working days of coming into, or changing his or her residence within, any city, county, or city and county . . . in which he or she temporarily resides." (Ibid.) If the offender "has more than one residence address at which he or she regularly resides, he or she shall register . . . in each of the jurisdictions in which he or she regularly resides, regardless of the number of days or nights spent there. If all of the addresses are within the same jurisdiction, the person shall provide the registering authority with all of the addresses where he or she regularly resides." (§ 290.010.)
As discussed, Murray stipulated he was convicted of rape by force or fear in Ventura County in 1991. Murray does not dispute he is subject to a lifetime registration requirement under section 290.010.
"Residence" is defined in the Act as "one or more addresses at which a person regularly resides, regardless of the number of days or nights spent there, such as a shelter or structure that can be located by a street address, including, but not limited to, houses, apartment buildings, motels, hotels, homeless shelters, and recreational and other vehicles." (§ 290.011, subd. (g).) A "person who has no residence" is defined as a "transient" under the Act. (Ibid.) A transient offender must register every 30 days with the police or sheriff of the jurisdiction "in which he or she is physically present within that 30-day period." (Id., subd. (a).) "A person registered at a residence address . . . who becomes transient shall have five working days within which to reregister as a transient . . . ." (Id., subd. (b).)
Murray was convicted of a violation of section 290.013, subdivision (a), which provides, "A person who was last registered at a residence address pursuant to the Act who changes his or her residence address, whether within the jurisdiction in which he or she is currently registered or to a new jurisdiction inside or outside the state, shall, in person, within five working days of the move, inform the law enforcement agency or agencies with which he or she last registered of the move, the new address or transient location, if known, and any plans he or she has to return to California."
An offender whose duty to register is based on a felony conviction and "who willfully violates any requirement of the [A]ct" is guilty of a felony under the Act. (§ 290.018, subd. (b).) A willful violation occurs when the offender "actually know[s] of the duty to act" and "what act is required to be performed." (People v. Garcia (2001) 25 Cal.4th 744, 752; accord, People v. Poslof (2005) 126 Cal.App.4th 92, 98 ["the jury must find defendant had actual knowledge he was required to register the [subject] residence and willfully failed to do so"].)
3. Substantial evidence supports the jury's finding Murray changed his address from Old Harold Road
Murray contends there was insufficient evidence he changed his residence address during the charged timeframe of March 1, 2018 through April 18, 2018, pointing to evidence Murray stayed at the Old Harold Road apartment a couple nights per month and there was no evidence he resided somewhere else or had become transient.
To the extent Murray is arguing the People needed to show Murray had moved from Old Harold Road during the period for which he was charged, he is wrong. As the Supreme Court held in Wright v. Superior Court (1997) 15 Cal.4th 521, 528, "[I]n light of the overarching legislative intent and comprehensive statutory scheme governing the registration of sex offenders, we conclude it imposes a continuing duty to give required notification of any change of address [citation]; accordingly, violation of that duty is a continuing offense. A defendant does not commit the crime only at the particular moment the obligation arises, but every day it remains unsatisfied."
There was substantial evidence Murray changed his residence address from the Old Harold address. On March 1, 2018 Detective Steen visited the apartment on Old Harold Road and met with Johnson, a resident in the unit, who told her that Murray did not live there. Johnson likewise testified Murray did not live at the address. He told the police officers who came looking for Murray, "I don't know where [Murray's] at. He don't live here." Granillo searched the CSAR database after Detective Steen's March 1, 2018 visit and confirmed Murray had not updated his registration.
Murray's counsel did not object to Detective Steen's testimony as hearsay, forfeiting any hearsay objection on appeal. (Evid. Code, § 353; People v. Clark (2016) 63 Cal.4th 522, 603 ["Defendant's failure to object on this specific [evidentiary] ground below forfeits his claim on appeal."]; People v. Polk (2010) 190 Cal.App.4th 1183, 1194 ["Under Evidence Code section 353, subdivision (a), a judgment can be reversed because of an erroneous admission of evidence only if the record contains an objection both '"timely made and so stated as to make clear the specific ground of the objection"' or motion."].)
The jury could reasonably infer from this evidence Murray "change[d] his . . . residence address" from the last registered address at Old Harold Road, triggering an obligation under section 290.013, subdivision (a), to register a "new address or transient location" within five working days. Murray does not dispute he did not reregister. Even if the evidence of Murray previously staying at Old Harold Road two nights a month and showering there could have supported an alternative inference Old Harold Road remained Murray's residence address, this would not warrant reversal because substantial evidence supports the inference drawn by the jury. (Westerfield, supra, 6 Cal.5th at p. 713; Penunuri, supra, 5 Cal.5th at p. 142.)
4. There is substantial evidence Murray had knowledge of his duty to register a change of address
Murray contends there was no evidence he had actual knowledge "staying intermittently at another temporary lodging (hotel, vehicle, shelter or some other establishment), while still maintaining his regular, periodic 'residence' at the Old Harold address" constituted a change in residence that required registration of the new address. Murray relies on a false premise to support this argument—that the jury concluded Murray was staying somewhere intermittently while continuing to reside at the Old Harold Road apartment. But substantial evidence supported the jury's finding Murray no longer lived at Old Harold Road. Moreover, even had the jury believed Murray was staying at more than one residence address (or was also a transient), he signed and initialed the registration form that advised him of the requirement to register multiple addresses. As Granillo testified, Murray's August 16, 2017 registration form contained the admonition: "If I have more than one resident address [at] which I regularly reside, regardless of the number of days or nights I spend at each address[,] I must register in person within five working days at each address with the law enforcement agency having jurisdiction over each address." Another admonition clarified that Murray was also required to register within five days if he became a transient. Murray initialed these admonitions after Granillo underlined them and reviewed them with him.
Murray's reliance on People v. Aragon (2012) 207 Cal.App.4th 504 is misplaced. There, a defendant living in a travel trailer parked in front of his brother's house who had registered as a transient was convicted of failing to register the trailer as his residence address. (Id. at pp. 508-509.) The Court of Appeal reversed, finding there was no "common understanding that living on the street in a travel trailer is a residence," and none of the forms and advisements defendant signed provided him notice his living arrangement constituted a residence. (Id. at p. 510.) Here, Murray does not dispute the Old Harold Road apartment was his residence at the time he registered. The only question is whether he continued to live there. As the jury found, he did not. B. Any Error in Admitting Granillo's Testimony That Murray Was No Longer Living at His Registered Address Was Harmless
Murray cites to People v. Armas (2011) 191 Cal.App.4th 1173, 1183, but the cited facts and holding show Murray intended to cite to People v. Aragon, supra, 207 Cal.App.4th 504.
People v. LeCorno (2003) 109 Cal.App.4th 1058, 1068 and People v. Edgar (2002) 104 Cal.App.4th 210, 218, also relied on by Murray, do not support his position. In both cases the Courts of Appeal found instructional error because the defendants were not aware from the registration forms they had to register a second address, and the trial courts instructed the juries the People were not required to prove the defendants knew they had to register a second address. (LeCorno, at pp. 1068, 1070; Edgar, at p. 220.) The People charged Murray with failing to register following a change in his address, not that he failed to register a second address.
Granillo testified she determined through her investigation Murray "was no longer living at the registered address on Old Harold." Defense counsel objected that Granillo was testifying to a legal conclusion. The trial court overruled the objection: "Well, it's an opinion. You can explore it on cross-examination, if you like." On appeal, Murray contends the trial court prejudicially erred by allowing Granillo, a lay witness, to express an opinion on the ultimate issue of whether Murray changed his residence address. Any error in admitting the testimony was harmless.
The following day, outside of the presence of the jury, the trial court elaborated on its ruling: "There's a very thin line between speculation and lack of foundation, which I assume was the basis of [defense counsel's] objection, and a proper lay opinion. In that situation, in my opinion it was a proper lay opinion, and [defense counsel] was free to cross-examine the witness under foundation and free to strike it if the opinion lacked foundation. And on top of that the jury is going to be instructed on the proper weight, if any, to give a lay opinion. And [defense counsel], if she feels aggrieved, can argue it in closing argument. So that's why I ruled as I did."
In their respondent's brief, the People argue Murray forfeited the argument Granillo provided an improper lay opinion because defense counsel below objected only on the grounds the witness was testifying to a legal conclusion. We decline to find forfeiture because it is clear from the colloquy surrounding the objection that the objection was intended and taken as an objection to an improper lay opinion as to an ultimate issue.
"'A lay witness may offer opinion testimony if it is rationally based on the witness's perception and helpful to a clear understanding of the witness's testimony.'" (People v. Jones (2017) 3 Cal.5th 583, 602; see Evid. Code, § 800.) "'By contrast, when a lay witness offers an opinion that goes beyond the facts the witness personally observed, it is held inadmissible.'" (Jones, at p. 602.) "Unlike an expert opinion, a lay opinion must involve a subject that is '"of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness."' [Citation.] . . . [Citation.] Although a lay 'witness's experience may affect the weight of the testimony,' the witness's 'opinion testimony may rest only on common experience.'" (People v. Fiore (2014) 227 Cal.App.4th 1362, 1384.) We review the trial court's ruling on the admission of lay opinion testimony for abuse of discretion. (People v. Sánchez (2016) 63 Cal.4th 411, 456.)
Granillo's statement Murray "was no longer living at the registered address on Old Harold" expressed an opinion on a subject of common knowledge comprehensible by ordinary jurors, and was not an improper opinion as to the ultimate issue in the case—whether Murray "change[d] his . . . residence address" for purposes of registering a change of address. (§ 290.013, subd. (a).) However, the record does not show a foundation was laid for this opinion. Granillo dispatched Detective Steen on March 1, 2018 to conduct a residence check on Murray, but neither she nor Detective Steen testified about what Detective Steen told Granillo following the visit. We only know Granillo provided Detective Steen with Murray's phone number so she could contact him, and, after Detective Steen could not reach Murray by phone, Granillo checked the CSAR database and confirmed Murray had no other registration.
Even if the trial court abused its discretion in allowing Granillo to provide her opinion, any error was harmless because Murray cannot show it is reasonably probable he would have obtained a more favorable result absent the error. (People v. Partida (2005) 37 Cal.4th 428, 439 ["Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional [People v. Watson (1956) 46 Cal.2d 818, 836] test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error."].) Johnson testified Murray did not live at Old Harold Road, and he told this to police when they performed their residence check at his apartment. Detective Steen likewise testified Murray was not present during her March 1 residence check and Johnson told her Murray did not live there. On these facts it is not reasonably probable the jury would have reached a more favorable verdict if Granillo did not offer her opinion. C. The Trial Court Did Not Err in Instructing the Jury
Murray contends the trial court erred in instructing the jury on the elements of the crime of failure to register a change of residence address because the court gave a modified version of CALCRIM No. 1170 that used the term "address" instead of "residence address," which is used in section 290.013, subdivision (a), and failed to define the term "residence." Murray argues the instruction as given was vague and did not adequately define an element of the charged offense, denying him due process of law. Murray acknowledges his attorney failed to object to the instruction in the trial court and argues in the alternative his attorney provided ineffective assistance of counsel. There was no instructional error, and even if there were, any error was harmless.
The People contend Murray forfeited the issue of instructional error by failing to object to the jury instruction at trial. But, as Murray maintains, we review any claim of instructional error that affects a defendant's substantial rights whether or not trial counsel objected. (§ 1259 ["The appellate court may also review any instruction given . . . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby."]; People v. Burton (2018) 29 Cal.App.5th 917, 923 ["'Failure to object to instructional error forfeits the issue on appeal unless the error affects defendant's substantial rights.'"]; People v. Bedolla (2018) 28 Cal.App.5th 535, 544 [same].) Of course, "[w]e can only determine if [a] defendant['s] substantial rights were affected by deciding whether the instruction was given in error and, if so, whether the error was prejudicial." (People v. Medina (2019) 33 Cal.App.5th 146, 154, fn. 7.) That is, if Murray's claim has merit, it has not been forfeited. We therefore necessarily review the merits of his contention there was instructional error.
1. Standard of review
"We review the wording of a jury instruction de novo to assess whether the instruction correctly states the law." (People v. Lua (2017) 10 Cal.App.5th 1004, 1013; accord, People v. Posey (2004) 32 Cal.4th 193, 218.) "'Review of the adequacy of instructions is based on whether the trial court "fully and fairly instructed on the applicable law."'" (People v. Spaccia (2017) 12 Cal.App.5th 1278, 1287.) "'"'A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant. [Citations.]' [Citation.] '"[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction."'"'" (People v. Covarrubias (2016) 1 Cal.5th 838, 905; accord, People v. Richardson (2008) 43 Cal.4th 959, 1028; Lua, at p. 1013.) "'"It is fundamental that jurors are presumed to be intelligent and capable of understanding and applying the court's instructions."'" (Covarrubias, at p. 905; accord, Richardson, at p. 1028; Lua, at p. 1013.) "'"Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation."'" (Spaccia, at p. 1287.)
2. The jury instruction
The trial court instructed the jury with a modified version of CALCRIM No. 1170, which provided in relevant part, "To prove that the defendant is guilty of this crime, the People must prove that: [¶] . . . [¶] 3. The defendant was registered at 2311 Old Harold Road; [¶] 4. The defendant actually knew he had a duty under Penal Code section 290 to register as a sex offender and that he had a duty to inform the law enforcement agency with which he last registered of his new address within five working days of changing addresses from 2311 Old Harold Road[;] [¶] AND [¶] 5. The defendant willfully failed to inform the law enforcement agency with which he last registered of his new address within five working days of changing addresses from 2311 Old Harold Road." (Italics added.)
CALCRIM No. 1170 provides in relevant part the People must prove: "The defendant resided . . . in __________ <insert name of [jurisdiction]> . . ."; "The defendant actually knew (he/she) had a duty under Penal Code section 290 to register as a sex offender [living at __________ <insert specific address or addresses in California>] and that (he/she) had to register within five working days of __________ <insert triggering event specified in Penal Code section 290(b) >"; and "The defendant willfully failed to register as a sex offender with the (. . . sheriff of that county . . .) within five working days of (coming into/[or] changing (his/her) residence within) that ([jurisdiction])."
The trial court did not instruct the jury on the optional definition of a residence set forth in CALCRIM No. 1170, which provides that "'[r]esidence' means one or more addresses where someone regularly resides, regardless of the number of days or nights spent there, such as a shelter or structure that can be located by a street address. A residence may include, but is not limited to, houses, apartment buildings, motels, hotels, homeless shelters, and recreational and other vehicles." Murray's attorney did not object to the modified instruction or request the court instruct on the definition of "residence."
3. There is no reasonable likelihood the jury misunderstood the law based on the modified CALCRIM No. 1170 instruction
The modified CALCRIM No. 1170 instruction given by the court properly instructed the jury on the material elements of a violation of section 290.013, subdivision (a), and, when read as a whole, did not create confusion regarding Murray's registration obligations by using the phrase "changing addresses" instead of "changing residence addresses." Paragraph 3 of the instruction set forth a predicate finding that "[t]he defendant was registered at 2311 Old Harold Road." Murray does not contend the Old Harold Road address was not a "residence address." To the contrary, Murray argues Old Harold Road remained his only "residence address." Reading Paragraph 4 and 5 in conjunction with paragraph 3, as we must (People v. Covarrubias, supra, 1 Cal.5th at p. 905), there is no material distinction between a jury finding in paragraph 4 that Murray "changed addresses" from Old Harold Road and a finding that Murray "changed residence addresses" from Old Harold Road. Moreover, the statute does not use the term "residence address" with respect to the offender's new address or location, instead requiring the offender to notify the police of a "new address or transient location, if known." (§ 290.13, subd. (a).)
Murray contends the instruction as given was confusing because it did not instruct the jury that in order to qualify as a "new address" triggering the registration requirement, the new address had to be a "residence address," meaning a location at which Murray regularly resided. Murray argues, "[w]ithout this definition, the jury was left to speculate as to what qualified as a 'new address,' especially in light of a potential suspicion that defendant might have been homeless or transient." But section 290.013 does not require that an offender establish a "new residence address" to trigger an obligation to report a change of address. To the contrary, the statute provides the offender must report any "new address" or known transient location. As discussed, it does not matter whether Murray had a new residence address or became a transient because there was substantial evidence he was no longer living at Old Harold Road.
Even if the trial court erred in failing to include the term "residence" or to clarify that a residence includes where someone regularly resides regardless of the number of days spent there, any error was harmless. In noncapital cases, we review instructional error for prejudice under People v. Watson, supra, 46 Cal.2d at page 836. (People v. Beltran (2013) 56 Cal.4th 935, 955 ["'"[M]isdirection of the jury, including incorrect, ambiguous, conflicting, or wrongly omitted instructions that do not amount to federal constitutional error are reviewed under the harmless error standard articulated" in Watson.'"]; People v. Larsen (2012) 205 Cal.App.4th 810, 830 [failure to give pinpoint instruction that jury may consider evidence of defendant's mental disorder in deciding whether defendant had required intent or mental state was harmless error under Watson].) "In applying the Watson standard, we may look to the other instructions given, as well as whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability that the error affected the result." (People v. Watt (2014) 229 Cal.App.4th 1215, 1220; accord, Larsen, at p. 831.)
Given the strong and uncontroverted evidence Murray no longer lived at the Old Harold Road address in March 2018, it is not reasonably probable Murray would have obtained a more favorable result had the trial court used the term "residence address" in its instruction and clarified that a residence is where someone regularly lives regardless of the number of days. D. The Prosecutor Did Not Commit Misconduct by Arguing in Her Rebuttal That the Evidence Rebutted Murray's Presumption of Innocence
Because any instructional error was harmless, we reject Murray's claim defense counsel's failure to object to the instructions constituted ineffective assistance. "'"To establish ineffective assistance of counsel, a defendant must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant."'" (People v. Rices (2017) 4 Cal.5th 49, 80; accord, People v. Mickel (2016) 2 Cal.5th 181, 198.)
Murray contends the prosecutor committed prejudicial misconduct by stating in her rebuttal argument the evidence rebutted the presumption of innocence. The prosecutor told the jurors: "So the defense started off with [how] you promised at the beginning of this case during voir dire or during the jury selection process that you will find that the defendant is presumed innocent. And that's absolutely true. When we start a criminal case . . . the defendant has a lot of constitutional rights, and the defendant is presumed innocent, presumed innocent until proven guilty. And we're at the end of the case, and he has been proven guilty. He's no longer presumed innocent. The People have proven their case to you beyond a reasonable doubt." There was no misconduct.
"'A prosecutor commits misconduct when his or her conduct either infects the trial with such unfairness as to render the subsequent conviction a denial of due process, or involves deceptive or reprehensible methods employed to persuade the trier of fact.'" (People v. Dalton (2019) 7 Cal.5th 166, 251 (Dalton); accord, People v. Booker (2011) 51 Cal.4th 141, 184 (Booker).) "'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."'" (Dalton, at pp. 251-252.)
We agree with the People Murray forfeited his argument there was prosecutorial misconduct by failing to object to the prosecutor's closing argument at trial. (People v. Jackson (2016) 1 Cal.5th 269, 349 ["'"To preserve a claim of prosecutorial misconduct for appeal, a defendant must make a timely and specific objection [at trial] and ask the trial court to admonish the jury to disregard the improper argument."'"]) But even had Murray not forfeited this challenge, there was no misconduct.
We consider the merits of Murray's challenge as part of our analysis of whether the failure to object constituted ineffective assistance of counsel. Because there was no misconduct, Murray's counsel was not ineffective in failing to object. (People v. Farnam (2002) 28 Cal.4th 107, 186.)
The prosecutor's comments here are virtually identical to those at issue in Dalton. In Dalton, the prosecutor argued in rebuttal: "'[Defense counsel] made comments regarding the presumption of innocence and, truly, the defendant had it . . . when we started this case. Now that the evidence is here, now that you heard it all, it is gone. The evidence shattered that presumption of innocence. It only lasts until the evidence of guilt has been shown. It has been shown. She's no longer protected by that presumption.'" (Dalton, supra, 7 Cal.5th at p. 256.) As here, the prosecutor in Dalton elsewhere affirmed the People carried the burden of proof, and, as here, the trial court properly instructed the jury on the People's burden and the defendant's presumption of innocence. (Id. at pp. 257-258.)
The Dalton court concluded the prosecutor's statements in closing were proper: "In telling the jury that Dalton's presumption of innocence was gone, it appears that the prosecutor 'simply argued the jury should return a verdict in his favor based on the state of the evidence presented.'" (Dalton, 7 Cal.5th at p. 259; accord, Booker, supra, 51 Cal.4th at p. 184 [The prosecutor did not commit misconduct by stating in closing argument, "'Once the evidence convinces you he is no longer innocent, that presumption vanishes. That's all it is.'"].) As the Supreme Court reasoned in Booker, "'Once an otherwise properly instructed jury is told that the presumption of innocence obtains until guilt is proven, it is obvious that the jury cannot find the defendant guilty until and unless they, as the fact-finding body, conclude guilt was proven beyond a reasonable doubt.'" (Booker, at p. 185.)
As in Dalton and Booker, the prosecutor here did not suggest Murray was not entitled to the presumption of innocence; rather, she properly argued that once the People had presented evidence proving Murray guilty beyond a reasonable doubt, he was no longer presumed innocent. On these facts, there is no "'"reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner."'" (Dalton, supra, 7 Cal.5th at pp. 251-252.) E. Remand Is Warranted for an Ability-to-pay Hearing on the Fines and Assessments Imposed by the Trial Court
The two cases relied on by Murray predate the Supreme Court's decision in Dalton and address prosecutorial comments farther afield from those in this case and Dalton and Booker. (See People v. Cowan (2017) 8 Cal.App.5th 1152, 1159 [prosecutorial misconduct to argue the presumption of innocence was in place "'only when the charges are read'" and "'is gone'" thereafter]; People v. Dowdell (2014) 227 Cal.App.4th 1388, 1408 [prosecutor's argument it was "'fairly obvious'" defendant was guilty and "'[h]e has gotten his fair trial'" (italics omitted) improperly suggested "the 'fair trial' was over, and with it, the jury's legal obligation to respect the presumption of innocence"].)
Murray requests we vacate the court assessments and stay the restitution fines imposed at sentencing pursuant to our holding in Dueñas, arguing he was indigent and the trial court failed to hold a hearing on his ability to pay. The People respond Murray forfeited his challenge by failing to object at sentencing and imposition of the fines and fees did not violate Murray's due process rights or the excessive fines clause of the Eighth Amendment. We decline to find forfeiture and remand for Murray to request an ability-to-pay hearing.
1. Dueñas and its progeny
In Dueñas this court concluded "the assessment provisions of Government Code section 70373 and Penal Code section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair; imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution." (Dueñas, supra, 30 Cal.App.5th at p. 1168; accord, People v. Belloso (2019) 42 Cal.App.5th 647, 654-655 (Belloso).) In contrast to court assessments, a restitution fine under section 1202.4, subdivision (b), "is intended to be, and is recognized as, additional punishment for a crime." (Dueñas, at p. 1169; accord, Belloso, at p. 655.) Section 1202.4, subdivision (c), expressly provides a defendant's inability to pay a restitution fine may not be considered as a "compelling and extraordinary reason" not to impose the statutory minimum fine. However, as this court held in Dueñas, to avoid the serious constitutional questions raised by imposition of such a fine on an indigent defendant, "although the trial court is required by . . . section 1202.4 to impose a restitution fine, the court must stay the execution of the fine until and unless the People demonstrate that the defendant has the ability to pay the fine." (Dueñas, at p. 1172; accord, Belloso, at p. 655.)
Several Courts of Appeal have applied this court's analysis in Dueñas (e.g., People v. Santos (2019) 38 Cal.App.5th 923, 929-934; People v. Kopp (2019) 38 Cal.App.5th 47, 95-96, review granted Nov. 13, 2019, S257844 [applying due process analysis to court assessments]; People v. Jones (2019) 36 Cal.App.5th 1028, 1030-1035). Others have rejected the due process analysis (e.g., People v. Kingston (2019) 41 Cal.App.5th 272, 279-281; People v. Hicks (2019) 40 Cal.App.5th 320, 326, review granted Nov. 26, 2019, S258946), or concluded the imposition of fines and fees should be analyzed under the excessive fines clause of the Eighth Amendment (e.g., People v. Aviles (2019) 39 Cal.App.5th 1055, 1061; Kopp, at pp. 96-97 [applying excessive fines analysis to restitution fines]). The Supreme Court granted review of the decision in Kopp to decide the following issues: "Must a court consider a defendant's ability to pay before imposing or executing fines, fees, and assessments? If so, which party bears the burden of proof regarding defendant's inability to pay?"
Our analysis of restitution fines under section 1202.4, subdivision (b), also applies to parole revocation fines under section 1202.45, because these fines must be imposed "in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4." (§ 1202.45, subd. (a).)
2. We decline to find forfeiture under Dueñas
The People argue that because Murray was sentenced on January 29, 2019, three weeks after Dueñas was decided, it would not have been futile for defense counsel to have raised Murray's ability to pay in the trial court. However, it appears from the record neither the attorneys nor the trial court were aware of Dueñas. Further, the trial court expressed a concern about Murray's ability to pay the fines and assessments, announcing that "[a]ll fines and fees except those mandatory will be permanently suspended because of the defendant's disabilities."
The People also contend Murray forfeited his challenge to the $400 restitution fine because it exceeds the statutory minimum of $300 (§ 1202.4, subd. (b)(1)), and the statute expressly allows consideration of a defendant's ability to pay the portion of the fine set above the statutory minimum (§ 1202.4, subd. (c)). We decline to find forfeiture on this basis because a defendant prior to Dueñas might well have decided there was not a sufficient benefit from challenging $100 of the restitution fine but would have challenged $470 in fines and assessments if he was aware of his ability to do so.
"[N]either forfeiture nor application of the forfeiture rule is automatic." (People v. McCullough (2013) 56 Cal.4th 589, 593; accord, In re S.B. (2004) 32 Cal.4th 1287, 1293 ["application of the forfeiture rule is not automatic"].) The purpose of the forfeiture rule "is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected." (In re S.B., at p. 1293.) In light of the unusual circumstances here, where Murray was sentenced shortly after Dueñas, counsel and the trial court appear to have been operating under a pre-Dueñas framework, and the court agreed mitigation of the fines and fees based on Murray's disability was appropriate, we decline to find forfeiture.
3. On remand Murray is entitled to an opportunity to challenge imposition of the assessments and fines
Murray urges us to vacate the court assessments. The People contend if there is no forfeiture, we should instead remand for the trial court to conduct an ability-to-pay hearing. (See People v. Castellano (2019) 33 Cal.App.5th 485, 490 [defendant bears burden in the first instance to contest ability to pay the fines, fees, and assessments and present evidence of an inability to pay].) The People also argue Murray's future earnings in prison are relevant to his ability to pay. We agree remand is appropriate.
The People contend the ability-to-pay hearing should be limited to the court assessments because the $400 restitution fine is not excessive under the Eight Amendment and does not implicate Murray's due process rights. As discussed, we have rejected this analysis and found the imposition of restitution fines upon an indigent defendant raises serious due process concerns. (Dueñas, supra, 30 Cal.App.5th at p. 1172; Belloso, supra, 42 Cal.App.5th at p. 655.)
The limited record before us indicates Murray, who was 66 years old at the time of sentencing, was living out of a vehicle because he could not afford to live elsewhere. Murray suffered from a total disability, and his sources of income were social security benefits, compensation for injuries sustained in the Marine Corps, and a supplemental nutrition allowance, which totaled approximately $1,000 per month in income. In light of Murray's burden to prove his inability to pay (People v. Castellano, supra, 33 Cal.App.5th at p. 490), we remand the matter to the trial court to give Murray an opportunity to request an ability-to-pay hearing and to present evidence of his inability to pay the assessments and fines.
DISPOSITION
The judgment is affirmed. We remand for the trial court to allow Murray to request a hearing and present evidence demonstrating his inability to pay the criminal conviction and court operations assessments, restitution fine, and parole revocation restitution fine. If Murray demonstrates his inability to pay the assessments, the trial court must strike them. If the trial court determines Murray does not have the ability to pay the restitution fine and parole revocation restitution fine, it must stay execution of the fines.
FEUER, J. We concur:
PERLUSS, P. J.
SEGAL, J.