People v. Kopp

• Court: California Court of Appeal
• Decided: July 31, 2019
• Docket: D072464
• Status: Published

Opinion

Filed 7/31/19 CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D072464

Plaintiff and Respondent,

v. (Super. Ct. No. SCN327213)

CHRISTI J. KOPP et al.,

Defendants and Appellants.

APPEALS from judgments of the Superior Court of San Diego County, Harry M.

Elias, Judge. Affirmed in part; reversed in part; remanded with directions.

Eric R. Larson, under appointment by the Court of Appeal, for Defendant and

Appellant Christi J. Kopp.

Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and

Appellant Jason Samuel Hernandez.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,

A. Natasha Cortina, Melissa Mandel and Adrian R. Contreras, Deputy Attorneys General,

for Plaintiff and Respondent. The jury convicted Jason Samuel Hernandez and Christi J. Kopp (Hernandez and

Kopp together Appellants) of conspiracy to commit murder (Pen. Code, 1 §§ 182,

subd. (a)(1), 187; count 3), conspiracy to dissuade a witness (§§ 136.1, 182, subd. (a)(1);

count 4), and furnishing a controlled substance (Health & Saf. Code, § 11379, subd. (a);

count 5). The jury also convicted Hernandez of assault with a deadly weapon (§ 245,

subd. (a)(1); count 1) and assault by means likely to produce great bodily injury (§ 245,

subd. (a)(4); count 2). As to counts 1 and 2, the jury found true Hernandez personally

inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). In

addition, the jury found true allegations that Hernandez committed counts 1 through 3

and Kopp committed count 3 for the benefit of a criminal street gang within the meaning

of section 186.22, subdivision (b).

In a bifurcated proceeding, Hernandez admitted, and the trial court found true, he

was previously convicted of a violent and serious felony within the meaning of

sections 667.5, subdivisions (a)(1), 668, and 1192.7, subdivision (c) and a prison prior

within the meaning of section 667.5, subdivision (b).

The court ultimately sentenced Hernandez to prison for 81 years to life. 2 The

court sentenced Kopp to prison for four years plus 25 years to life.

Hernandez appeals, contending: (1) as a matter of law, he cannot be convicted

under both section 245, subdivision (a)(1) and subdivision (a)(4); (2) the trial court

1 Statutory references are to the Penal Code unless otherwise specified. 2 The court originally sentenced Hernandez to prison for 84 years to life. However, it subsequently resentenced Hernandez to prison for 81 years to life. 2 committed prejudicial error in responding to the jury's question about the definition of a

deadly weapon; (3) there was insufficient evidence to prove the gang enhancement as to

count 3; (4) there was insufficient evidence to convict Hernandez of conspiracy to

commit murder; and (5) the trial court prejudicially erred when it ordered Hernandez to

be restrained at trial.

Kopp appeals, alleging the trial court prejudicially erred by failing to sua sponte

instruct the jury to determine whether there were one or two conspiracies. Hernandez

joins this argument.

Finally, Appellants claim various sentencing errors as well as errors in their

respective abstracts of judgment. Specifically, Kopp argues that the court should have

stayed her sentence under count 5.

We agree with Appellants that the trial court erred in failing to sua sponte instruct

the jury to determine whether there existed one or two conspiracies. As such, we reverse

Appellants' convictions under count 4 and vacate their respective sentences. We reject

Hernandez's other substantive arguments in his opening brief as well as Kopp's argument

that section 654 mandated the trial court to stay her sentence under count 5.

While this case was pending, Hernandez filed a motion for leave to file a

supplemental brief. We granted the motion, and Hernandez makes two arguments in his

supplemental brief. First, he asserts that Senate Bill No. 1393 amended sections 667,

subdivision (a) and 1385 to allow the trial court discretion to strike an enhancement under

section 667, subdivision (a). Hernandez maintains, and the People agree, this matter

must be remanded to allow the superior court to resentence Hernandez consistent with

3 this change in the law. Because we are vacating Hernandez's sentence as a result of

reversing his conviction under count 4, the trial court may exercise its discretion under

Senate Bill No. 1393 during resentencing.

Second, Hernandez argues, under People v. Dueñas (2019) 30 Cal.App.5th 1157

(Dueñas) that we must remand this matter back to the superior court to allow the court to

determine his ability to pay any assessments and fines before imposing them. Kopp has

joined this issue. In their supplemental brief, the People agree with Appellants that this

matter should be remanded to the superior court for an ability to pay hearing as to certain

assessments. However, the People contend that the punitive fines levied against

Appellants are not subject to the ability to pay hearing set forth in Dueñas but, instead,

should be analyzed under the excessive fines clause of the Eighth Amendment. We agree

with the People's suggested approach. Thus, on remand, we will order the court to hold

an ability to pay hearing for both Appellants consistent with the dictates of this opinion.

Additionally, the court can consider Appellants' argument that the punitive fines violate

the excessive fines clause, if that issue is raised.

In summary, we reverse Appellants' respective convictions under count 4 and

vacate their sentences. The matter will be remanded for resentencing consistent with this

opinion. After resentencing Appellants, the trial court is to amend the abstracts of

judgment accordingly. In all other respects, the judgments are affirmed.

4 FACTUAL BACKGROUND

Prosecution

On December 22, 2013, U.P., an affiliate with the Mexican Mafia and a local gang

in Fallbrook called the Varrio Fallbrook Locos, met A.C. in a motel in Fallbrook to enlist

her to help sell methamphetamine. In the motel hallway, U.P. met Hernandez, a leader of

the Varrio Fallbrook Locos gang and the Mexican Mafia. Hernandez's gang moniker is

"Capone." He only had been recently released from prison. Hernandez introduced U.P.

to Kopp, who Hernandez described as a secretary. 3 U.P. and Hernandez discussed the

possibility of selling methamphetamine with U.P. being Hernandez's right-hand man.

The two men returned to U.P.'s and A.C.'s room. Hernandez told A.C. that she

owed money to the Mexican Mafia, and he had a "green light" to collect her debt, which

was code for approval to kill or assault A.C. A.C. denied owing any debt. Hernandez

followed A.C. out of the room to the hallway, called out to another female gang affiliate

named K.D., and told her to get A.C.

In the hallway, K.D. and Hernandez cut A.C. at different times and with different

knives. A.C. bled profusely from the head and had several cuts to her head and face.

Hernandez punched her in the head multiple times and kicked her in the face. After

being attacked, the next thing A.C. remembered was getting up and knocking on U.P.'s

door.

3 A secretary is someone who transmits information and money to and from Mexican Mafia members who are in custody. 5 U.P. called 911 and reported that Capone from Fallbrook had a "hit" on A.C.

because she supposedly owed money. He claimed Hernandez had stabbed A.C. Both

U.P. and A.C. thought A.C. was dying. K.D. and Hernandez left the scene. A.C. went to

the hospital, and CT scans revealed multiple facial and nasal fractures.

Later that night, officers conducted a traffic stop of Kopp near the motel, and she

admitted staying in a room in the motel that night and claimed "hearing" an altercation in

the hallway between a bald, white male and a white female. U.P. later identified

Hernandez and K.D. as the two assailants, and A.C. identified Hernandez.

K.D. was affiliated with Varrio Fallbrook Locos. Officers searched K.D.'s

residence, found gang-related indicia, and arrested her for assaulting A.C. 4

On December 30, 2013, Appellants met with E.P., who was the member of a

different gang and previously a secretary for the Mexican Mafia. Appellants did not

know that E.P. was an informant and wore a wire. 5 Hernandez described the assault to

E.P., saying he told his "homegirl" to "blast" A.C. and he "kicked her in the face, boom"

and he had blood on his shoe.

After the meeting, Hernandez was arrested for assaulting A.C. Kopp was present

and her phone was seized by law enforcement but she remotely erased it. She called E.P.

with another phone to notify him that Hernandez had been arrested and that her contact

list was potentially compromised. Kopp, from that point forward, served as an

4 K.D. pled guilty to assault with a deadly weapon and admitted a gang allegation. 5 E.P. was a convicted killer, among other offenses, and he faced 20 years in a new case that the North County Regional Task Force investigated. 6 intermediary between Hernandez and E.P. Appellants talked on the phone and met in

person several times over the following weeks.

Initially, Appellants told E.P. to "talk to" both A.C. and U.P. Hernandez asked

Kopp to reach out to U.P. and figure out how they could "resolve this." Kopp had

difficulty contacting U.P. Hernandez had Kopp contact other local gang members to find

U.P.

In gang nomenclature, "talk" could mean several things, so E.P. asked Kopp what

it was that she and Hernandez wanted done with A.C. and U.P. Kopp indicated she

would get direction from Hernandez. For several weeks, E.P. followed up to get

clarification from Kopp about what Hernandez wanted him to do to A.C. and U.P. but

received no response. E.P. floated the options of having them assaulted, talked to, killed,

or left alone. E.P. told Kopp he could hire a hit man if they wanted either witness killed.

Kopp said she would confer with Hernandez.

On February 9, 2014, during a jail visit, Hernandez told Kopp in coded language

that U.P. should be killed but A.C. should only be dissuaded from testifying.

Specifically, Hernandez said, "it's official. The dude? (UI) And the other one? Talk.

Very simple."

The next day, Kopp texted E.P. the information: (1) A.C.'s debts would be

forgiven if she agreed not to testify, and (2) U.P. should be killed:

"It's Christi. Okay. I saw Caps yesterday and this is what needs to be done. As for [A.C.], she needs to be talked to and told the tios[6]

6 A "tio" is a Mexican Mafia member. 7 have her name, now she needs to just remain silent, walk away from this case. The tios know all her debts and will wash them clean, but she has to shut up and Capone hopefully comes home. [¶] As for [U.P.], tios said done dada. He is off the case in cases,[7] to permanently reside—resign with his vida being sent above. Now my man questioning why you or us are needing to pay wages to your guy, but he has four oz's to hand over. . . ." 8

Later, during a recorded conversation, Kopp asked E.P. if he understood her text.

When E.P. asked what Hernandez said, Kopp confirmed the order to kill U.P. and bribe

A.C., stating:

"Those were . . . just about his exact words that I typed . . . . [U.P.'s] a goner and it's already been ordered . . . . And for her they um, for you to work your magic and talk to her (giggles) and tell her, you know, they also, they do know and umm, everything will be wiped out, of course, you know, if she just, she keeps her fuckin' little fat mouth shut."

On February 13, 2014, E.P. told Kopp that he spoke to A.C. personally,

compensated her, informed her that her debts had been forgiven, and she agreed not to

testify against Hernandez. Officers asked through E.P. that Kopp obtain discovery from

Hernandez that showed what U.P. had told officers.

7 To be "off the case in cases" means that a person is no longer eligible to do business with anyone affiliated with the Mexican Mafia. 8 This text was referenced in multiple portions of the record. At least two different times, the substance of the text was read into the record with slight differences. Neither party has pointed us to the record where a copy of subject text exists. Our independent search of the record has not uncovered the actual text. As such, we repeat here the substance of the text as read in the record during trial when the individual purported to read the entire text. No party objected that the reading of the text was incorrect. Further, the differences between the various readings of the text appear to be minor, and no party takes issue with them. For consistency and convenience, we quote from only one of the readings of the subject text and disregard the minor discrepancies among the versions introduced at trial. 8 On February 14, 2014, Kopp told E.P. that Hernandez's attorney showed him the

discovery regarding A.C.'s assault and learned U.P. was "running his mouth telling

everything giving every . . . name you can imagine." E.P. sought authorization to kill

U.P. by asking her, "so that's a go then?" Kopp confirmed the authorization by replying,

"That's a go!"

Continuing to direct E.P.'s interaction with Kopp, officers "negotiated" a payment

of two ounces of methamphetamine to a "hit man" known to E.P. to kill U.P. Kopp

obtained the methamphetamine and, on February 22, 2014, an undercover officer, posing

as the hit man and wearing a wire, met with her, showed her two photos of U.P. to

confirm he was "whacking" the correct person and accepted the methamphetamine. The

undercover officer told her he would kill U.P. within the week, and E.P. would call her

and tell her when U.P. was dead.

On February 26, 2014, in another recorded conversation, Kopp told E.P. to either

take A.C. to the district attorney's office to get the assault charges dropped or prevent her

from attending the preliminary hearing that was scheduled to occur the following month.

On February 28, 2014, E.P. told Kopp that U.P. was killed as instructed.

Using coded language, Kopp told Hernandez during a jail visit that U.P. was

killed, and he responded, "Okay."

Appellants continued their jail visits and phone calls through March 2014, when

Kopp was arrested following a jail visit with Hernandez. After Kopp was arrested,

officers searched her car and found several pages of the police report of the assault

investigation with U.P.'s statement to officers circled and two stars written next to it.

9 Defense

Based on A.C.'s blood draw from the hospital, a toxicologist opined that at the

time the police were called, A.C. had a blood alcohol content of about .14 percent. In

that state, A.C.'s ability to defend herself would have been impaired.

DISCUSSION

I

HERNANDEZ'S CONVICTIONS FOR TWO COUNTS OF ASSAULT

The jury convicted Hernandez of two counts of assault: assault with a deadly

weapon (§ 245, subd. (a)(1); count 1) and assault by means likely to produce great bodily

injury (§ 245, subd. (a)(4); count 2). Relying on In re Jonathan R. (2016) 3 Cal.App.5th

963 (Jonathan R.), Hernandez contends that he could not be convicted of both counts of

assault based on the same assault. Jonathan R. involved a prosecution and true findings

for a minor violating section 245, subdivision (a)(1) and (4), where the minor stabbed

another minor during a brawl. The juvenile court found both violations as well as

enhancement allegations true. (Jonathan R., at p. 966.) The appellate court determined

that both subsections of subdivision (a) of section 245 were not separate offenses, but that

the subdivision (a)(4) allegation was a lesser included offense of the subdivision (a)(1)

allegation. (Jonathan R., at pp. 966-975, relying on People v. Gonzalez (2014) 60 Cal.4th

533, 539-540 [finding that where a defendant is convicted of committing oral copulation

on an unconscious victim under § 288a, subd. (f), as well as committing the same sex act

on an intoxicated victim under § 288a, subd. (i), the two subdivisions set forth different

circumstances under which a single act of oral copulation can be committed and are not

10 clearly divisible distinct acts].) The appellate court ordered the juvenile court to vacate

its findings on the lesser included offense to reduce the minor's maximum term of

confinement on the substantive offense and related enhancements. (Jonathan R., at

pp. 975-976.)

Recently, this court criticized Jonathan R. and declined to follow it. (See

People v. Brunton (2018) 23 Cal.App.5th 1097, 1106 (Brunton.) In Brunton, the

defendant was charged with violations of subdivision (a)(1) of section 245 and

subdivision (a)(4) of the same statute for a single act of choking a cellmate with a tightly

rolled towel. Based on the unique facts of the case before us, we concluded the

subdivisions were merely different statements of the same offense and the defendant

could not be convicted of violating both subdivisions. (Brunton, at pp. 1105-1107,

relying on People v. Vidana (2016) 1 Cal.5th 632, 647-651 [concluding larceny and

embezzlement were the same offense and § 954 does not authorize multiple convictions

for different statements of the same offense].)

In short, Jonathan R. and Brunton consider whether a single act can lead to a

conviction for violating subdivisions (a)(1) and (4) of section 245. Both cases conclude

that section 954 requires that a second conviction under the statute must be vacated, but

for different reasons. However, we do not need to resolve this disagreement because

neither case is instructive here. In each of the two cases, a single act was the basis for the

alleged violations of section 245, subdivision (a)(1) and (4). Here, that is not the case.

11 Thus, both Jonathan R. and Brunton are distinguishable. 9 Instead, of following either

case, we evaluate the issue before us under section 954.

Generally, a defendant can be convicted of multiple charged offenses. (§ 954.) 10

The California Supreme Court has " 'repeatedly held that the same act can support

multiple charges and multiple convictions. "Unless one offense is necessarily included in

the other [citation], multiple convictions can be based upon a single criminal act or an

indivisible course of criminal conduct (§ 954)." [Citation.]' " (People v. White (2017)

2 Cal.5th 349, 353-354.) In determining whether a defendant may be convicted of

multiple charged offenses, courts apply the statutory elements test. (People v. Reed

(2006) 38 Cal.4th 1224, 1231.) Under the elements test, if the statutory elements of one

offense include all the statutory elements of another offense, the latter is necessarily

included in the former. (Id. at p. 1227.)

Under section 954, a separate conviction is permissible for each completed

charged offense, even if the defendant had the same intent and objective in committing

multiple crimes and even if the defendant committed the crimes at or near the same time.

(People v. Johnson (2007) 150 Cal.App.4th 1467, 1474-1477.) For example, in Johnson,

9 Hernandez does not discuss Brunton, supra, 23 Cal.App.5th 1097 in any of his briefs. The People argue Brunton was wrongly decided. Because we conclude Brunton is not applicable here, we need not address the People's argument. 10 As relevant here, section 954 provides: "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts . . . . The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged . . . ." 12 the court held that a defendant could properly be charged with and convicted of multiple

counts of spousal abuse based on acts occurring during a single event where the victim

suffered multiple injuries caused by distinct applications of force, because the crime is

complete upon the willful and direct application of physical force upon the victim

resulting in injury. (Ibid.) Similarly, counts 1 and 2 in this case were based on different

acts committed during a single incident. During closing argument, the prosecutor

separated what was needed to establish Hernandez committed an assault with a deadly

weapon as opposed to assault by a means likely to produce great bodily injury. As to the

former, the prosecutor focused on the use of a knife to stab and/or slash the victim,

referring to a knife as a "deadly weapon other than a firearm[.]" He also emphasized that

the victim was "cut" and "needed some sort of liquid suturing . . . to close the injuries."

Further, there was evidence proffered at trial that the victim was stabbed multiple times.

Regarding count 2, the prosecutor pointed out that the victim suffered great bodily injury

as evidenced by her "[b]roken orbitals[,] [b]ilateral nasal fracture[, and] [c]rooked nose

two and a half years after the event." The evidence at trial showed that Hernandez

punched and kicked the victim in the head. Indeed, Hernandez told E.P. that he "kicked

[the victim] in the face" and had blood on his shoe. The jury instructions as well

informed the jury that to convict Hernandez on count 1, it must find that he used a deadly

weapon, but that to convict him on count 2, it must find only that he used force likely to

result in great bodily injury. Accordingly, the record before us presents two separate acts

for each count of assault. Count 1 is based on the use of a knife. Count 2 is based on

punches and kicks to the head. The fact that these separate acts occurred during the same

13 altercation does not bar the jury from convicting Hernandez under both counts. 11 (See

People v. White, supra, 2 Cal.5th at pp. 353-354; Johnson, at pp. 1474-1477.)

II

THE JURY'S QUESTIONS ABOUT THE DEFINITION OF DEADLY WEAPON

A. Hernandez's Contention

Hernandez argues the trial court erred in referring the jury to CALCRIM No. 875

in response to the jury's question regarding the definition of deadly weapon. He contends

he was prejudiced by the trial court's allegedly incorrect response.

B. Background

The trial court instructed the jury under CALCRIM No. 875 as follows:

"Defendant Jason Hernandez is charged in count one with assault with a deadly weapon other than a firearm in violation of Penal Code section 245(a)(1).

"Jason Hernandez is charged in count two with assault with force likely to produce great bodily injury in violation of Penal Code section 245(a)(4).

"To prove the defendant guilty of these crimes, the People must prove that as to count one, element one, the defendant did an act with a deadly weapon other than a firearm that by its nature would directly and probably result in the application of force to a person.

"As to count two, element one, the defendant did an act that by its nature would directly and probably result in the application of force to a person; element two, the force used was likely to produce great bodily injury; element three, the defendant did that act willfully; element four, when the defendant acted he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to

11 The court stayed Hernandez's sentence under count 2 pursuant to section 654. 14 someone; element five, when the defendant acted he had the present ability to apply force likely to produce great bodily injury or with a deadly weapon other than a firearm; and element six, the defendant did not act in defense of someone else.

"Someone commits an act willfully when they do it willingly or on purpose. It is not required that they intend to break the law, hurt someone else or gain any advantage.

"The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if done in a rude or angry way. Making contact with another person including through their clothing is enough. The touching does not have to cause pain or injury of any kind. The touching can be done indirectly or by causing an object or someone else to touch the other person.

"The People are not required to prove that the defendant actually touched someone. The People are not required to prove the defendant actually intended to use force against someone when he acted. No one needs to actually have been injured by the act but, if someone was injured, you may consider that fact, along with all of the other evidence, in deciding whether the defendant committed the assault and, if so, what kind of assault it was.

"Voluntary intoxication is not a defense to assault.

"Great bodily injury means a significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

"A deadly weapon other than a firearm is any object, instrument or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause either death or great bodily injury."

During jury deliberations, the jury submitted the following questions to the court:

"1) What constitutes a deadly weapon?

"2) Specifically does a fist or foot/shoe qualify?"

15 The court read the two questions to counsel. The prosecutor suggested that the

court refer the jury to CALCRIM No. 875. Counsel for both Hernandez and Kopp agreed

with the proposed response. The court then indicated that it was "going to write down

CALCRIM 875 defines a deadly weapon." Nobody objected.

The court subsequently responded to the jury's two questions in writing, stating

"CALCRIM 875 defines a deadly weapon." The next day, the jury returned its verdict.

C. Relevant Law

Section 1138 provides that when jurors "desire to be informed on any point of law

arising in the case" "the information required must be given." "Section 1138 . . . thereby

creates a ' "mandatory" duty to clear up any instructional confusion expressed by the

jury.' " (People v. Loza (2012) 207 Cal.App.4th 332, 355, quoting People v. Gonzalez

(1990) 51 Cal.3d 1179, 1212.) "This does not mean the court must always elaborate on

the standard instructions. Where the original instructions are themselves full and

complete, the court has discretion under section 1138 to determine what additional

explanations are sufficient to satisfy the jury's request for information. [Citation.]

Indeed, comments diverging from the standard are often risky. . . . But a court must do

more than figuratively throw up its hands and tell the jury it cannot help. It must at least

consider how it can best aid the jury. It should decide as to each jury question whether

further explanation is desirable, or whether it should merely reiterate the instructions

already given." (People v. Beardslee (1991) 53 Cal.3d 68, 97.) We review for an abuse

16 of discretion any error under section 1138. (People v. Eid (2010) 187 Cal.App.4th 859,

882.)

D. Analysis

As a threshold issue, the People argue Hernandez forfeited this issue on appeal

because his attorney did not object to the trial court's response to refer the jury to

CALCRIM No. 875. (See People v. Dykes (2009) 46 Cal.4th 731, 802; People v. Ross

(2007) 155 Cal.App.4th 1033, 1048-1049.) The People further note that Hernandez's trial

counsel expressly agreed with the court's response. As such, the People assert, based on

the invited error doctrine, Hernandez cannot complain the trial court erred in giving an

instruction that his counsel consented, invited, or tacitly approved to be given. (See Ross,

at p. 1048.) Finally, the People note that by expressly agreeing to the court's response to

the jury's questions, Hernandez waived any claim of error on appeal. (See People v.

Castaneda (2011) 51 Cal.4th 1292, 1352; People v. Harris (2008) 43 Cal.4th 1269, 1317;

People v. Roldan (2005) 35 Cal.4th 646, 729.)

In response, Hernandez relies on section 1259, which provides that an "appellate

court may . . . 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." "[T]he failure to object to an instruction in the trial court waives any claim of

error unless the claimed error affected the substantial rights of the defendant, i.e., resulted

in a miscarriage of justice, making it reasonably probable the defendant would have

obtained a more favorable result in the absence of error. [Citations.]" (People v.

Andersen (1994) 26 Cal.App.4th 1241, 1249.) Here, Hernandez claims his substantial

17 rights were affected because CALCRIM No. 875 allowed the jury to convict him of

assault with a deadly weapon under a legally inadequate theory, namely striking the

victim with fists or feet. 12 We disagree.

We observe that Hernandez does not argue that any of the jury instructions

misstated the law or were otherwise incorrect. Further, we conclude he had no grounds

on which to claim the instructions misstated the law. Therefore, the specific jury

instruction at issue here (CALCRIM No. 875) correctly stated the law. (See People v.

Golde (2008) 163 Cal.App.4th 101, 123.) That jury instruction explicitly defined deadly

weapon as "any object, instrument, or weapon [other than a firearm] that is inherently

deadly or capable of causing and likely to cause either death or great bodily injury."

(CALCRIM No. 875.) In this sense, the jury instruction directly answers the jury's first

question regarding "[w]hat constitutes a deadly weapon." The trial court was well within

its discretion to refer the jury back to the very instruction that provided a specific answer

to the jury's question. No more information was needed or required.

The jury's second question was related to the first in that it focused on whether

specific items (fist or foot/shoe) could be deadly weapons. As with the first question, the

trial court's response was to point the jury to CALCRIM No. 875, which unambiguously

12 The People point out that none of the cases relied on by Hernandez concern a trial court's response to a jury question under section 1138. As such, the People imply that the law is unclear that section 1259 would apply to the issue presented here. Because section 1259 directly addresses the issue of waiver of instructional error, it logically follows that it would govern the waiver issue involving a trial court's response to a jury's question implicating a jury instruction, triggering section 1138. (See People v. Hillhouse (2002) 27 Cal.4th 469, 505-506.) 18 answered the jury's second question. The instruction limits a "deadly weapon" to an

"object, instrument or weapon." A fist or foot does not fit that provided definition. The

"object, instrument or weapon" in the statute is an item "extrinsic to the human body."

(People v. Aguilar (1997) 16 Cal.4th 1023, 1034 (Aguilar).) Put another way,

CALCRIM No. 875 did not instruct the jury that it could convict Hernandez of assault

with a deadly weapon merely because he or K.D. struck the victim with their fists or feet.

Moreover, we assume the jury understood and followed the instructions. (See People v.

Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)

Nevertheless, relying on Aguilar, supra, 16 Cal.4th 1023, Hernandez insists the

trial court was obligated to do more than just refer the jury to CALCRIM No. 875. We

do not share Hernandez's expansive reading of Aguilar. In that case, the prosecutor

asserted, during closing argument, that hands and feet may be deadly weapons under

section 245, subdivision (a)(1). (Aguilar, at p. 1029.) Our high court determined that

hands and feet cannot constitute deadly weapons under the statute. (Id. at p. 1034.) The

court explained that "[r]eading the statute as a whole in a commonsense manner that

avoids rendering any part superfluous [citation] and considering its history, we conclude

a 'deadly weapon' within the meaning of section 245 must be an object extrinsic to the

human body. Bare hands or feet, therefore, cannot be deadly weapons[.]" (Aguilar, at

p. 1034.)

The court did not address CALCRIM No. 875 or otherwise hold that CALCRIM

No. 875 was an incorrect statement of law. However, CALCRIM No. 875 contains the

same definition of deadly weapon that is found in section 245, subdivision (a)(1).

19 Because the court found that the definition of deadly weapon in the statute clearly

required an "object intrinsic to the body," it logically follows that the analogous language

found in CALCRIM No. 875 required the same. "Review of the adequacy of instructions

is based on whether the trial court 'fully and fairly instructed on the applicable law.'

[Citation.]" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In determining

whether error has been committed in giving jury instructions, we consider the instructions

as a whole and assume jurors are intelligent persons, capable of understanding and

correlating all jury instructions which are given. (Ibid.) " 'Instructions should be

interpreted, if possible, so as to support the judgment rather than defeat it if they are

reasonably susceptible to such interpretation.' [Citation.]" (Ibid.) "The crucial

assumption underlying our constitutional system of trial by jury is that jurors generally

understand and faithfully follow instructions." (People v. Mickey, supra, 54 Cal.3d at

p. 689, fn. 17.)

Here, CALCRIM No. 875 was a correct statement of the law. It did not instruct

the jury that hands or feet could be deadly weapons. Thus, the trial court referring the

jury back to that instruction in response to the jury's questions about what constitutes a

deadly weapon was not an abuse of discretion and did not adversely impact Hernandez's

substantial rights. Thus, we conclude that Hernandez forfeited this claim on appeal. 13

(See People v. Andersen, supra, 26 Cal.App.4th at p. 1249.)

13 To avoid forfeiture, Hernandez argues his trial counsel was constitutionally ineffective for failing to object to the trial court's response to the jury's questions. However, in analyzing forfeiture here, we evaluated whether Hernandez's substantial 20 Additionally, even if we did not find forfeiture, Hernandez has not shown that he

was prejudiced by the trial court's response to the jury's questions. Here, the prosecutor

did not argue hands or feet could be a deadly weapon. Instead, the prosecutor focused on

the evidence that Hernandez and/or K.D. used a knife to cut the victim. And the evidence

proffered at trial supports the theory that the use of a knife as a deadly weapon. A.C.

testified that right before K.D. attacked her, Hernandez followed A.C. out of the motel

room to the hallway and told K.D. to get her. K.D. and Hernandez cut A.C. at different

times with different knives. A.C. bled profusely from the head, where she was cut.

Against this backdrop, Hernandez has not shown that he was prejudiced by the trial

court's response to the jury's questions about what constitutes a deadly weapon. 14

rights were adversely affected. In doing so, we looked at the merits of Hernandez's claims. As such, we need not reach Hernandez's claim of ineffective assistance of counsel. Moreover, as we explain later, Hernandez has not shown he was prejudiced by the trial court's response. Thus, his ineffective assistance of counsel claim would fail for this reason as well. (See Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) 14 We observe that the jury asked if a shoe can be considered a deadly weapon. Certain shoes can be. (See Aguilar, supra, 16 Cal.4th at p. 1035 ["There can be no doubt that some footwear, such as hobnailed or steel-toed boots, is capable of being wielded in a way likely to produce death or serious injury, and as such may constitute weapons within the meaning of section 245, subdivision (a)(1)."].) There is evidence in the record that Hernandez kicked the victim with his shoe and had blood on his shoe. There is scant evidence regarding the type of footwear worn by Hernandez during the assault. Further, the prosecutor did not mention the use of a shoe as a deadly weapon during closing argument, and Hernandez does not address the jury's reference to a shoe in its second question. We therefore do not address that issue here.

21 III

SUBSTANTIAL EVIDENCE OF GANG ENHANCEMENT AS TO COUNT 3

The jury found true that Hernandez committed count 3 (conspiracy to commit

murder) for the benefit of a criminal street gang within the meaning of section 186.22,

subdivision (b). 15 Hernandez contends substantial evidence does not support this

finding.

B. Standard of Review and Relevant Law

The standard of appellate review for determining the sufficiency of the evidence

supporting an enhancement is the same as that applied to a conviction. (People v. Wilson

(2008) 44 Cal.4th 758, 806; People v. Mejia (2012) 211 Cal.App.4th 586, 614.) When

considering a defendant's challenge to the sufficiency of the evidence, we review the

entire record most favorably to the judgment to determine whether the record contains

substantial evidence from which a rational trier of fact could find the essential elements

of the crime beyond a reasonable doubt. We do not reweigh evidence or reassess a

witness's credibility, and we presume the existence of every fact the trier of fact could

reasonably deduce from the evidence. (People v. Lindberg (2008) 45 Cal.4th 1, 27.) We

ask whether, after viewing the evidence in the light most favorable to the judgment, any

rational trier of fact could have found the allegations to be true beyond a reasonable

15 The jury found this allegation true as to counts 1 and 2, but Hernandez does not challenge those findings. 22 doubt. (See Jackson v. Virginia (1979) 443 U.S. 307, 319.) If the circumstances

reasonably justify the jury's findings, reversal is not warranted merely because the

circumstances might also be reasonably reconciled with a contrary finding. (People v.

Nelson (2011) 51 Cal.4th 198, 210.)

Section 186.22, subdivision (b)(1) provides a sentencing enhancement for felonies

"committed for the benefit of, at the direction of, or in association with any criminal

street gang, with the specific intent to promote, further, or assist in any criminal conduct

by gang members." The prosecution has the burden of proof (People v. Weddington

(2016) 246 Cal.App.4th 468, 484 (Weddington)), and must establish both prongs of the

gang enhancement. "First, the prosecution is required to prove that the underlying

felonies were 'committed for the benefit of, at the direction of, or in association with any

criminal street gang.' (§ 186.22 [subd.] (b)(1).) Second, there must be evidence that the

crimes were committed 'with the specific intent to promote, further, or assist in any

criminal conduct by gang members.' (§ 186.22 [subd.] (b)(1); [Citation.])" (People v.

Rios (2013) 222 Cal.App.4th 542, 561.)

The prosecution may rely on expert testimony regarding criminal street gangs to

establish a gang enhancement under section 186.22, subdivision (b)(1). (People v. Vang

(2011) 52 Cal.4th 1038, 1048.) However, the expert's testimony must be grounded in

admissible evidence to impose a gang enhancement. "[P]urely conclusory and factually

unsupported opinions" that the charged crimes are for the benefit of the gang because

committing crimes enhances the gang's reputation are insufficient to support a gang

enhancement. (People v. Ramirez (2016) 244 Cal.App.4th 800, 819-820.)

23 C. Analysis

Here, Hernandez contends substantial evidence does not support a true finding as

to both prongs of the gang enhancement. Regarding the first, he asserts that there was no

evidence proffered at trial showing he committed count 3 for the benefit of a criminal

street gang. In addition, although he concedes he is a Mexican Mafia member,

Hernandez maintains that Kopp, his coconspirator, was never a member of that gang.

Hernandez's arguments, however, gloss over certain evidence presented at trial.

The first prong under section 186.22, subdivision (b)(1) can be satisfied in any of

three ways: "The offense may be committed (1) for the benefit of the gang; (2) at the

direction of a gang; or (3) in association with a gang." (Weddington, supra, 246

Cal.App.4th at p. 484.) Although substantial evidence only must support a finding as to

one of these means, on the record before us, substantial evidence supports all three.

For example, there is substantial evidence that Hernandez's conspiracy was

committed for the benefit of the Mexican Mafia. A gang expert testified that a gang

member's cooperation with law enforcement is a serious violation of gang rules and the

consequence for such cooperation often is murder. Such murders would lead to several

benefits for the Mexican Mafia. It would punish the person who cooperated; deter other

people from also cooperating with law enforcement; and maintain the gang's reputation

for toughness. Thus, Hernandez's conspiracy would similarly have benefited the

Mexican Mafia.

There also was substantial evidence that Hernandez's conspiracy was committed at

the direction of the Mexican Mafia. A criminal street gang expert witness may opine

24 based on hypothetical questions that track the evidence, whether the offense, if it in fact

occurred, would have been for gang purposes. (People v. Vang, supra, 52 Cal.4th at

p. 1048.) At trial, there was no dispute that Hernandez was a member of the Mexican

Mafia. The gang expert testified that a "member" was at the very top of the Mexican

Mafia hierarchy and considered to be a "shot caller" who was in charge and could order

executions and taxings. Hernandez, a high-level Mexican Mafia enforcer, told Kopp in

coded language ("it's official") to tell E.P. to have U.P. murdered.

Finally, substantial evidence supports a finding that Hernandez committed count 3

in association with a gang. Proof of association with a gang may be established with

substantial evidence that two or more gang members committed the crime together,

unless there is evidence that they were on a frolic and detour unrelated to the gang.

(Weddington, supra, 246 Cal.App.4th at p. 484.) In the instant matter, the evidence

established that Appellants, the coconspirators to murder U.P., both were actively

involved and/or associated with the Mexican Mafia. Hernandez was a high-ranking

member, and Kopp was a secretary. The text message Kopp sent E.P. stated U.P. was

also "off the case in cases," meaning U.P. was no longer eligible to do business with the

Mexican Mafia. This evidence further connected the conspiracy to the Mexican Mafia.

Although he claims that there was no evidence of Kopp having a connection with

the Mexican Mafia, Hernandez, himself, told U.P. that Kopp was a secretary. The gang

expert explained:

"A secretary is almost what it sounds like. But she's working on behalf of a Mexican Mafia member. So she may—a lot of times they're not on probation or parole, where they can go into the prisons

25 or county jails and visit the member and get orders from the member himself. Or they're allowed to collect cash and disburse the cash out to where it's supposed to go."

Consistent with the expert's testimony, while Hernandez was in custody, Kopp acted as a

messenger between him and E.P. to help him execute his orders to kill U.P. As such,

substantial evidence establishes the first prong of the gang enhancement, and we are not

persuaded otherwise by the line of cases on which Hernandez relies to argue the evidence

was insufficient. (See People v. Ochoa (2009) 179 Cal.App.4th 650, 653, 662 [defendant

gang member acted alone in committing a carjacking with a shotgun, the offense did not

occur within gang's territory, and defendant "did not call out a gang name, display gang

signs, wear gang clothing, or engage in gang graffiti while committing" the offense];

People v. Martinez (2004) 116 Cal.App.4th 753, 761-762 [evidence of defendant's prior

offenses and history of participation in gang activities was not sufficient by itself to

establish that the subject crime was committed for the benefit of, at the direction of, or in

association with a criminal street gang]; People v. Albarran (2007) 149 Cal.App.4th 214,

230-232 [the gang evidence admitted had "no legitimate purpose" at trial, violating

defendant's federal due process rights].) 16

16 Comparisons with cases in which the evidence was insufficient is rarely helpful in a substantial evidence review, as every case necessarily depends on its own facts. (People v. Rundle (2008) 43 Cal.4th 76, 137-138; People v. Thomas (1992) 2 Cal.4th 489, 516.) 26 Hernandez also insists substantial evidence does not support a finding as to the

second prong of the gang enhancement, that he committed count 3 with the specific intent

to promote, further, or assist criminal conduct by gang members. We disagree.

As to the second prong, " ' "[i]ntent is rarely susceptible of direct proof and usually

must be inferred from the facts and circumstances surrounding the offense." ' "

(People v. Franklin (2016) 248 Cal.App.4th 938, 949; accord, People v. Rios, supra,

222 Cal.App.4th at pp. 567-568.) "For this reason, 'we routinely draw inferences about

intent from the predictable results of action.' " (People v. Miranda (2011) 192

Cal.App.4th 398, 411 (Miranda).) "While a gang expert is prohibited from opining on a

defendant's specific intent when committing a crime, the prosecution can ask hypothetical

questions based on the evidence presented to the jury . . . whether the hypothetical

perpetrator harbored the requisite specific intent." (People v. Perez (2017) 18

Cal.App.5th 598, 607.) 17

As the California Supreme Court concluded in People v. Albillar (2010)

51 Cal.4th 47, "if substantial evidence establishes that the defendant intended to and did

commit the charged felony with known members of a gang, the jury may fairly infer that

the defendant had the specific intent to promote, further, or assist criminal conduct by

17 We are aware that our high court has stated that "in some circumstances, expert testimony regarding specific defendants might be proper." (People v. Vang, supra, 52 Cal.4th at p. 1048, fn. 4.) However, neither party argues here that the subject expert testified directly about Hernandez's intent. As such, we need not determine whether the facts of this case present a scenario under which an expert can directly opine about a defendant's specific intent. 27 those gang members." (Id. at p. 68; accord, People v. Franklin, supra, 248 Cal.App.4th

at p. 949 [noting "scienter requirement may be satisfied with proof 'that the defendant

intended to and did commit the charged felony with known members of a gang,' " but

concluding intent requirement not met where defendant committed crimes with members

of a different gang]; Miranda, supra, 192 Cal.App.4th at p. 412 [substantial evidence

supported finding of specific intent to benefit gang where defendant gang member

committed crimes with two other members or associates of the gang in gang territory].)

Here, Hernandez, a member of the Mexican Mafia, conspired with Kopp, a secretary for

the Mexican Mafia, to commit count 3. The gang expert explained, in the structure of the

Mexican Mafia, that a secretary has "power by virtue of being an associate with the

Mexican Mafia[.]" Thus, Hernandez conspired with a known associate of the Mexican

Mafia (indeed, he introduced her as a secretary) to commit murder. As such, the jury's

finding that Hernandez intended to promote, further, or assist criminal conduct by gang

members is supported by substantial evidence. (See Albillar, at p. 68; Miranda, at p. 412;

People v. Villalobos (2006) 145 Cal.App.4th 310, 322.)

IV

CONSPIRACY TO COMMIT MURDER

Hernandez also contends that substantial evidence does not support his conviction

for conspiracy to commit murder (count 3). He insists, at most, the evidence showed that

he and Kopp were trying to figure out how to silence U.P. and perhaps punish him.

28 Further, he claims the evidence falls far short of proving that they agreed to have U.P.

murdered. We disagree.

The elements of a criminal conspiracy are: (1) an agreement between two or more

persons; (2) with the specific intent to agree to commit a public offense; (3) with the

further specific intent to commit that offense; and (4) an overt act committed by one or

more of the parties for the purpose of accomplishing the object of the agreement or

conspiracy. (§ 182; People v. Liu (1996) 46 Cal.App.4th 1119, 1128 (Liu).) The crime

of conspiracy to commit murder includes the elements to conspire and intent to kill.

(People v. Cortez (1998) 18 Cal.4th 1223, 1229.)

Here, Hernandez argues that "[n]o substantial evidence proves [he] ever agreed to

commit murder." To this end, he emphasizes that he repeatedly told Kopp that he only

wanted someone to talk to U.P. to convince him to stop cooperating with the police. He

also notes that it was E.P. who first suggested the possibility of killing U.P. Accordingly,

Hernandez maintains that the jury would have to speculate based on the evidence to

convict him of conspiracy to commit murder, and speculation cannot support a

conviction. (See People v. Marshall (1997) 15 Cal.4th 1, 35.) We are not persuaded.

Although Hernandez purports to set forth all the evidence that could support his

conviction for count 3, essentially, he asks this court to consider the evidence and make a

different inference than the one made by the jury. This we cannot do. (See People v.

Brown (1984) 150 Cal.App.3d 968, 970 ["When a jury's verdict is attacked on the ground

that there is no substantial evidence to sustain it, the power of an appellate court begins

and ends with the determination as to whether, on the entire record, there is any

29 substantial evidence, contradicted or uncontradicted, which will support it, and when two

or more inferences can reasonably be deduced from the facts, a reviewing court is

without power to substitute its deductions for those of the jury. It is of no consequence

that the jury believing other evidence, or drawing different inferences, might have

reached a contrary conclusion."].) Moreover, based on the record before us, we are

satisfied that substantial evidence supports Hernandez's conviction for conspiracy to

commit murder.

During a jail visit, Kopp notified Hernandez that E.P. asked if they wanted U.P.

murdered because "he doesn't do it on his own." In response, Hernandez told Kopp in

coded language 18 that U.P. should be killed but A.C. should only be dissuaded from

testifying. Specifically, Hernandez said, "it's official. The dude? . . . And the other one

[A.C.]? Talk. Very simple." "[T]ell him to fuckin' make it happen." Hernandez's

response to Kopp during the jail visit established that Appellants expected E.P. to bring a

fourth person into their conspiracy specifically to carry out their agreement to kill U.P.

Afterwards, Kopp texted E.P. that she spoke with Hernandez and he wanted U.P. killed:

"It's Christi. Okay. I saw Caps yesterday and this is what needs to be done. . . . .[¶] As for [U.P.], tios said done dada. He is off the case in cases, to permanently reside—resign with his vida being sent above. Now my man questioning why you or us are needing to pay wages to your guy, but he has four oz's to hand over. . . ."

Later, Kopp confirmed the agreement to kill U.P. when she told E.P., "[U.P.'s] a

goner and it's already been ordered."

18 There was testimony at trial establishing that people connected with the Mexican Mafia often talked to each other in code to avoid detection by others. 30 Kopp told E.P. that Hernandez's attorney showed him the discovery regarding the

A.C. assault and learned U.P. was "running his mouth telling everything giving

every . . . name you can imagine." E.P. sought clarification to kill U.P. by asking her, "so

that's a go then?" Kopp confirmed the authorization to kill U.P. by replying, "[t]hat's a

go!"

Subsequently, Kopp identified U.P. with the undercover officer, who posed as

E.P.'s hired "hit man," to confirm he was "whacking" the correct person, and accepted the

methamphetamine. The undercover officer told Kopp he would kill U.P. within the week

and E.P. would call her and tell her when U.P. was dead. There would have been no

reason for Kopp to talk to a hit man and confirm he was "whacking" U.P. if she and

Hernandez merely intended for U.P. to be dissuaded from testifying like A.C. or

assaulted. Instead, it further established Hernandez's plan was to kill U.P.

Also, there was a subsequent jail meeting where Kopp told Hernandez in coded

language that the planned murder was successful by saying, "Part B is completed . . . .

[¶] Completely completed . . . . [¶] [T]hat second phase of . . . the construction site?

[¶] . . . [I]t's capish. It's done." Hernandez was not surprised and, consistent with the

murder being according to their plan, said, "Okay."

Appellants' plan to kill U.P. was further corroborated by the presence of

Hernandez's discovery in Kopp's vehicle. When Kopp was arrested, officers searched her

car and found several pages of the police report of the assault investigation with U.P.'s

statement to officers circled and two stars written next to it. Thus, both Hernandez and

31 Kopp had paperwork substantiating their suspicion that U.P. violated the Mexican

Mafia's rules of cooperating with law enforcement, and they wanted U.P. punished for it.

Moreover, the jury could consider the evidence of the organizational structure of

the Mexican Mafia as described by the expert witness. Kopp, as a secretary, did not have

the authority to order a person to be killed. Hernandez, as a member of the Mexican

Mafia, did. Therefore, as Kopp informed E.P. and the undercover officer that U.P. was to

be killed, the jury could infer, based on the conversations between Appellants and

buttressed by the evidence of the organizational structure of the Mexican Mafia, that

Hernandez conspired with Kopp to commit murder.

V

RESTRAINT OF HERNANDEZ

A. Hernandez's Contentions

Hernandez contends the trial court erred in ordering that he be physically

restrained during trial.

At the beginning of jury voir dire, Hernandez was restrained in his chair. His trial

attorney objected to the restraint, arguing it can "present a[n] impediment to a fair trial"

and emphasized that "[t]he Fifth Amendment Due Process Clause prohibits the use of the

physical restraints visible to the jury during a guilt phase or penalty phase." However,

counsel noted "the restraint is not visible[,]" and he did not "think the jury would see the

restraint."

32 The court commented:

"[For] [t]he purpose of the record the chair looks like a regular office chair. It has a [seat belt] embedded into the chair similar to a [seat belt] that would be in an airplane. The [seat belt] has a locking mechanism that is either locked or unlocked with what would be I would describe as a handcuff key, and it's completely below the level of the arms."

Hernandez's trial counsel argued that the use of the restraints required a

determination by the court "that they are justified by an essential state interest such as

state court security specific to the defendant on trial." Counsel continued to explain:

"Furthermore, Penal Code section 688 gives further protection in California prosecution in providing that no defendant may be subjected before conviction to anymore restraint than is necessary for his or her detention to answer the charge. [¶] Since 1871 California courts have held that this statute and its predecessor require a showing of a manifest need in the particular case before a defendant maybe subject to physical restraints of any kind in the courtroom while in the jury's presence at either the guilty or penalty phase of a trial. That's People versus Cox 53 Cal.3d 618 at 651, 652. Manifest need arises only on a showing of unruliness, announced intention to escape or evidence of any nonconforming conduct or planned nonconforming conduct that disrupts or would disrupt the judicial process if unrestrained, and that's People versus Cox 1991, 53 Cal.3rd 618, 651. [(Italics added.)] [¶] In this case, your honor, I do not see a manifest need. And you're not required to hold a hearing. I appreciate you giving us the opportunity to state these points and authorities in support of our request to not have Mr. Hernandez restrained. It's been my experience that—well, I did earlier compliment your staff and Deputy Hart, outstanding deputy, he's taking care of the belt that is not shown, but it's my experience that sometimes completely unintentionally, inadvertent that the best laid plans go awry and sometimes a juror would see either defendant in the hallway or somehow see maybe Mr. Hernandez tries to stand up inadvertently and the [seat belt] holds him down. I'm very concerned about that risk and the effect on his fair trial rights and other constitutional rights. So I'd ask that we wait until there's a manifest necessity for restraint."

33 The court then asked the prosecutor if he was aware of any "particular

information" that would support Hernandez being restrained. The prosecutor responded,

"Nothing beyond what the court, I believe, has already informed with regards to

Mr. Hernandez's record. He has a violent criminal history. He is a relatively senior level

associate of a violent criminal street gang Mexican Mafia." Further, the prosecutor

admitted that he knew of "[n]o particular indications of attempt to escape [or] to harm

others[.]"

The bailiff also offered his explanation to support the use of restraints:

"Through our department and the investigation that we have done based off other deputies involved in the case, and Mr. Hernandez's status with the Mexican Mafia and his association with that it is in our belief there will be potential for harm against witnesses of the case; therefore, we are requesting the restraint chair be used to detain him during that case."

The bailiff also stated that Hernandez's status in the Mexican Mafia would be

improved if he assaulted witnesses at trial.

The court found manifest need for the restraints, explaining:

"All right. So I heard enough to believe I think there's a manifest need that would justify the type of restraint we're using. [¶] I'll be clear on the record. Mr. Hernandez has been nothing but polite, professional, very dignified while he's here. I have no reason personally to assume that might change. However, the issue of security in the courtroom I leave to other professionals that's the sheriff's department. And they've received intelligence as I understand it, and if I understand further they're bringing or someone from law enforcement is supposed to be bringing in [the prosecutor], I presume it would have happened by now, but apparently not since he's unaware of anything, I'm not going to run the risk of something happening that puts other people in jeopardy, yourself or anyone else sitting at the table including Mr. Hernandez in jeopardy based on the law enforcement response. [¶] I think it's the least—the type of

34 restraint we're using is the least offensive possible in that I believe it's close to invisible, clearly not completely I recognize that, but close to invisible as it relates to either members of the public for the jury. The chair goes up beyond Mr. Hernandez's shoulders from the back so people from the audience shouldn't be able to see anything. The arms of the chair on each side will be high enough so people from the side can't see anything. And any jurors number one, seven perhaps, two and eight who have an angle the tables we have a barrier that sort of blocks that. It's less restrictive. . . . I'm actually the person responsible for getting this chair up here to try to avoid using other forms of restraint, so I'll note the objection. I think sufficient reference has been made to allow it the restraint chair to be used."

"A trial court has broad power to maintain courtroom security and orderly

proceedings, and its decisions on these matters are reviewed for abuse of discretion.

[Citation.] That discretion, however, must yield to principles of due process. [Citation.]"

(People v. Simon (2016) 1 Cal.5th 98, 115 (Simon).) Under principles of due process, a

defendant may be physically restrained at trial only if there is a "manifest need for such

restraints." Such a "manifest need" arises only upon a showing of unruliness, a

demonstrated intention to escape, or "[e]vidence of any nonconforming conduct or

planned nonconforming conduct which disrupts or would disrupt the judicial process if

unrestrained . . . ." (People v. Duran (1976) 16 Cal.3d 282, 291, 292-293, fn. 11.)

Although the trial court's decision to restrain a defendant must be based on more than

rumor or innuendo, a formal evidentiary hearing is not required. (People v. Lewis and

Oliver (2006) 39 Cal.4th 970, 1032.) "A shackling decision will be upheld absent a

manifest abuse of discretion." (Ibid.) The court abuses its discretion when it uses

35 physical restraints absent a "record showing of violence, a threat of violence, or other

nonconforming conduct." (Simon, at p. 115.)

Both federal and state Supreme Courts have recognized that visible physical

restraints are inherently prejudicial and erode the "presumption of innocence" because

they suggest to the jury that the defendant is a dangerous person who must be separated

from the rest of the community. (Deck v. Missouri (2005) 544 U.S. 622, 630; see

People v. Duran, supra, 16 Cal.3d at p. 290.) Also, if a defendant is "accused of a violent

crime, his appearance before the jury in shackles is likely to lead the jurors to infer that

he is a violent person disposed to commit crimes of the type alleged." (Ibid.) Thus,

"even when the record establishes a manifest need for restraints, the restraint imposed

must be the least obtrusive or restrictive one that would be effective under the

circumstances. [Citations.]" (Simon, supra, 1 Cal.5th at p. 115.)

Hernandez maintains the court abused its discretion in ordering him restrained by

a seat belt in his chair because there was no showing that the restraints were warranted.

To this end, Hernandez points out that the trial court specifically noted that he was

respectful during court, and the prosecutor did not identify any specific behavior

indicating a need for restraints. Hernandez also asserts that his affiliation with the

Mexican Mafia alone could not justify the use of restraints. Moreover, he claims the trial

court improperly deferred its discretion to the bailiff and simply accepted the bailiff's

conclusion that restraints were necessary.

36 The People counter that the record supports the trial court's finding of a manifest

need to restrain Hernandez during trial. Specifically, the People emphasize that the court

was aware that Hernandez had an "extremely violent history that included participating in

a prison riot." Indeed, Hernandez's two previous manslaughter convictions arose out of

Hernandez's involvement in that prison riot. Additionally, the People observe that

Hernandez is associated with the Mexican Mafia, which is designated as a Security

Threat Group by the Department of Corrections and Rehabilitations. 19 The People also

maintain that the court did not defer its discretion to the bailiff, but merely asked for the

bailiff's input on whether Hernandez should be restrained.

However, we do not need to resolve this dispute because, even if we assume the

court abused its discretion in ordering Hernandez to be restrained during trial, on the

record before us, we do not conclude that Hernandez was prejudiced. Relying on

People v. McDaniel (2008) 159 Cal.App.4th 736, Hernandez urges us to apply the

harmless beyond a reasonable doubt standard found in Chapman v. California (1967)

386 U.S. 18, 24. In asking us to apply this standard, Hernandez glosses over the fact that

the defendant in McDaniel claimed his due process rights were denied because he was

visibly shackled at trial. (See McDaniel, at p. 741.) That is not the case here. Hernandez

does not argue the jury could see that he was restrained during trial, and his trial counsel

admitted that the restraints were not visible to the jury.

19 The term "Security Threat Group" is defined as groups of three or more people whose members engage in misconduct or unlawful acts. (Cal. Code Regs, tit. 15, § 3000.) 37 When the record does not indicate that the jury saw the restraints, even if the court

abused its discretion in ordering the defendant restrained, there is no constitutional error

and we apply the harmless error test found in People v. Watson (1956) 46 Cal.2d 818,

836. (See People v. Jackson (1993) 14 Cal.App.4th 1818, 1829.) Further, as our high

court has noted, "courts typically find unjustified shackling of a defendant to be harmless

where the restraints were not visible to the jurors." (People v. Ervine (2009) 47 Cal.4th

745, 773; People v. Cleveland (2004) 32 Cal.4th 704, 740; People v. Anderson (2001)

25 Cal.4th 543, 596.) Hernandez does not address these California Supreme Court cases

whatsoever, but asks us to conclude that the restraints were an "affront to the presumption

of innocence," interfered "with [his] right to participate in his own defense, and [were an]

affront to the dignity and decorum of the court[]" regardless of whether the restraints

were seen by the jury. Yet, Hernandez does not explain how the restraints, which were

not seen by the jury, prohibited his ability to participate in his defense or otherwise

rendered his trial unfair. In the absence of any indication in the record to support

Hernandez's bald assertion of prejudice, we must determine any error in restraining

Hernandez at trial to be harmless. (See Ervine, at p. 773; Cleveland, at p. 740; Anderson,

at p. 596.)

38 VI

FAILURE OF THE TRIAL COURT TO SUA SPONTE INSTRUCT THE JURY ON SINGLE VERSUS MULTIPLE CONSPIRACIES

A. Appellants' Contentions

Appellants contend the trial court erred by not instructing the jury sua sponte to

determine whether they were involved in a single or multiple conspiracies. The People

counter that the trial court did not have a sua sponte duty to instruct on the number of

conspiracies and Appellants did not request the instruction, thus forfeiting this

contention.

The trial court instructed the jury for conspiracy to commit murder with

CALCRIM Nos. 520 and 563, which stated the prosecution had to prove "[t]he defendant

intended to agree and did agree with the other defendant or other persons unknown, to

intentionally and unlawfully kill." In addition, the instructions set forth:

"[O]ne or both of the defendants or other persons unknown, or all of them committed at least one of the following overt acts alleged to accomplish the killing:

"Overt act no. 1, on or about February 10, 2014, Christi Kopp contacted an FBI informant by text message and telephone. During those contacts Christi Kopp passed along instructions from Jason Hernandez to arrange the murder of [U.P.], a witness to an attack on [A.C.].

"Overt act no. 2, on or about February 14th, Christi Kopp contacted a[n] FBI informant by telephone advising the informant of statements made by [U.P.] to the police and authorized the informant to have [U.P.] murdered saying, quote, that's a go, end quote.

39 "Overt act no. 3, on or about February 14th, 2014, Christi Kopp contacted Pam for the purpose of acquiring methamphetamine to be used as payment for murdering [U.P.].

"Overt act no. 4, on or about and between February 14th, and February 20th of 2014, Christi Kopp acquired methamphetamine as payment for murdering [U.P.].

"Overt act no. 5, on or about February 20, 2014, Christi Kopp told the FBI informant that she inquired of the methamphetamine that would be used as payment for murdering [U.P.].

"On or about February 22nd, 2014, Christi Kopp spoke with an undercover police officer posing as an assassin for purposes of arranging the murder of [U.P.].

"Overt act no. 7, on or about February 22nd[,] 2014, Christi Kopp met with the undercover police officer for the purpose of providing payment in the form of methamphetamine for the murder of [U.P.].

"Overt act no. 8, on or about February 22nd, 2014, Christi Kopp handed the undercover police officer methamphetamine for the murder of [U.P.].

"Overt act no. 9, on or about February 22nd, 2014, Christi Kopp identified the murder target [U.P.] in a photograph shown to her by the undercover officer.

"Overt act no. 10, on or about and between February 14th, 2014, and February 25th, 2014, while in custody, Jason Hernandez arranged to have police reports from his criminal cases[,] which were in his possession[,] sent out of the San Diego County Jail.

"Overt act no. 11, on or about and between February 26th, 2014, and March 1, 2014, Christi Kopp acquired the police reports from Jason Hernandez's criminal case."

The trial court also instructed the jury for conspiracy to dissuade a witness (count

4) with CALCRIM No. 415, which stated the prosecution had to prove "[t]hat defendant

intended to agree and did agree with the other defendant, or one or more of the other

40 unknown persons, in the conspiracy [to commit the crime of intimidating a witness]."

Regarding count 4, the court additionally instructed the jury as follows:

"One of the defendants or one of the other unknown persons committed at least one of the following alleged overt acts to accomplish the crime of intimidating a witness.

"Overt act no. 1, on or about February 10th, 2014, Christi Kopp contacted an FBI informant by text message and telephone. During those contacts, Christi Kopp passed along instructions from Jason Hernandez to dissuade [A.C.] from attending or testifying in a criminal case in which [A.C.] was the victim.

"Overt act no. 2, on or about February 14th, 2014, Christi Kopp contacted Pam for the purpose of acquiring methamphetamine to be used as payment to dissuade [A.C.] from attending or testifying in the criminal case in which she was the victim.

"Overt act no. 3, on or about and between February 14th, 2014, and February 20th, 2014, Christi Kopp acquired methamphetamine to be used as payment to dissuade [A.C.] from attending or testifying in the criminal case in which she was a victim.

"Overt act no. 4, on or about February 20, 2014, Christi Kopp told the FBI informant that she acquired the methamphetamine that would be used as payment for dissuading [A.C.] from attending or testifying in the criminal case in which she was the victim.

"Overt act no. 5, on or about February 22, 2014, Christi Kopp spoke with an undercover police officer for the purposes of arranging a meeting to transfer methamphetamine that would be used for payment for dissuading [A.C.] from attending or testifying in the criminal case in which she was a victim.

"On or about February 22, 2014, Christi Kopp met with the undercover police officer for the purposes of providing payment in the form of methamphetamine for dissuading [A.C.] from attending or testifying in the criminal case in which she was a victim.

"Overt act no. 7, on or before February 22, 2014, Christi Kopp handed the undercover police officer methamphetamine for purpose

41 of paying [A.C.] to dissuade her from attending or testifying in the criminal case in which she was a victim.

"Overt act no. 8, on or about February 26th, Christi Kopp called the FBI informant and passed along instructions from Jason Hernandez that [A.C.]. was to be escorted to the district attorney's office for the purpose of having her drop charges against Hernandez or, alternatively, was to be prevented from attending the preliminary hearing.

"On or about February 28th, Christi Kopp called the FBI informant and again passed along instructions from Jason Hernandez that [A.C.] was either to be escorted to the district attorney's office to drop charges against Hernandez or to be prevented from attending the preliminary hearing."

The trial court also instructed the jury with CALCRIM No. 203, which stated it

had to "decide each charge for each defendant separately," and it was given separate

verdict forms for each appellant.

During closing argument, the prosecutor discussed the Appellants' "agreement" to

"interfer[e] with the ordinary administration of justice." The prosecutor then began to

discuss conspiracy:

"So if you think for the purposes of sort of this primer on conspiracy law of a bigger conspiracy to interfere with the ordinary administration of justice, that's not the charge. That's not—the conspiracy—the conspiracies that are charged are conspiracy to commit murder, conspiracy to intimidate a witness. I'll get to those specifically in a moment. But thinking in terms of ordinary administration of justice, the original plan is they are going to—they are conspiring to interfere with that. They don't want Mr. Hernandez to go down for breaking [A.C.'s] face. That's what they don't want. So that's what the agreement is and that's what these overt acts are in furtherance of."

The prosecutor emphasized that Appellants wanted to "interfere in that process

[Hernandez's trial]. That was the overall, that was the overarching conspiracy." The

42 prosecutor repeated that Appellants "conspired to keep the ordinary administration of

justice from happening."

Later, after discussing the evidence of assault, the prosecutor returned to his

theme, "the entire case is about a conspiracy to interfere with the ordinary administration

of justice." When the prosecutor began to address the two counts of conspiracy, he

started by alluding to a conspiracy to prevent a third person from testifying. He noted

that this conspiracy was uncharged, but the prosecutor pointed out that this was part of "a

conspiracy . . . to interfere with the orderly administration of justice." He discussed the

two counts of conspiracy together, playing audio clips of conversations between

Appellants and explaining how they evidenced the two conspiracies. Further, in

discussing an overt act in support of the two conspiracies, the prosecutor focused on a

single text in which Kopp tells E.P. Hernandez wants [A.C.] "talked to and told[ she]

needs to be silent, walk away from this case." In that same text, using coded language,

Kopp tells E.P. to have U.P. killed. The prosecutor discussed other overt acts that also

evidenced the conspiracies, but again, he discussed the two conspiracies together,

consistent with his theme that Appellants were trying to interfere with the administration

of justice.

C. Conspiracy Law

A conspiracy exists where two or more people agree to commit a crime, they

specifically intend both to agree and to commit the crime, and one of them performs an

overt act in furtherance of their agreement. (§§ 182, subd. (a)(1), 184.) "Conspiracy is

an inchoate crime. [Citation.] It does not require the commission of the substantive

43 offense that is the object of the conspiracy. [Citation.] 'As an inchoate crime, conspiracy

fixes the point of legal intervention at [the time of] agreement to commit a crime.' "

(People v. Swain (1996) 12 Cal.4th 593, 599-600.) A "conspiracy may be proved

through circumstantial evidence inferred from the conduct, relationship, interests, and

activities of the alleged conspirators before and during the alleged conspiracy."

(People v. Prevost (1998) 60 Cal.App.4th 1382, 1399.)

"[T]he essence of the crime of conspiracy is the agreement, and thus it is the

number of the agreements (not the number of the victims or number of statutes violated)

that determine the number of the conspiracies." (People v. Meneses (2008)

165 Cal.App.4th 1648, 1669 (Meneses).) In other words, when multiple crimes are

committed, there may be one overall agreement to commit all of them, or multiple

separate agreements. " 'One agreement gives rise to only a single offense, despite any

multiplicity of objects.' " (People v. Lopez (1994) 21 Cal.App.4th 1551, 1557.) " 'Where

two or more persons agree to commit a number of criminal acts, the test of whether a

single conspiracy has been formed is whether the acts "were tied together as stages in the

formation of a larger all-inclusive combination, all directed to achieving a single

unlawful end or result." ' [Citation.] 'Relevant factors to consider in determining this

issue include whether the crimes involved the same motives, were to occur in the same

time and place and by the same means,' and targeted a single or multiple victims."

(Meneses, at p. 1672.) " 'The test is whether there was one overall agreement among the

various parties to perform various functions in order to carry out the objectives of the

conspiracy. If so, there is but a single conspiracy.' [Citation.]" (Lopez, at p. 1558.)

44 " 'Performance of separate crimes or separate acts in furtherance of a conspiracy is not

inconsistent with a "single overall agreement." [Citation.] The general test also

comprehends the existence of subgroups or subagreements.' " (People v. Vargas (2001)

91 Cal.App.4th 506, 553-554).)

D. Duty to Instruct

"[A] trial court in a criminal case is required—with or without a request—to give

correct jury instructions on the general principles of law relevant to issues raised by the

evidence." (People v. Mutuma (2006) 144 Cal.App.4th 635, 640.)

California courts are divided on whether a trial court has a sua sponte duty to

instruct the jury to determine how many conspiracies were committed. (Meneses, supra,

165 Cal.App.4th at pp. 1668-1669.) Most decisions, including the most recent cases,

have held that the trial court has a duty to instruct the jury to determine the number of

conspiracies committed where there is evidence to support alternative findings. (Id. at

pp. 1668, 1671; People v. Jasso (2006) 142 Cal.App.4th 1213, 1220 (Jasso); People v.

Vargas, supra, 91 Cal.App.4th at p. 554.)

To support their position that the trial court did not have a sua sponte duty to

instruct, the People rely on two older decisions, Liu, supra, 46 Cal.App.4th 1119, and

People v. McLead (1990) 225 Cal.App.3d 906 (McLead). These held that the number of

conspiracies is not a factual question to be decided by the jury. (Liu, at p. 1133; McLead,

at pp. 920-921.) However, Liu and McLead are distinguishable. Both involved

conspiracies to murder multiple individuals. As the court discussed thoroughly in

Meneses, supra, 165 Cal.App.4th at pages 1668, 1670-1671, the reasoning in Liu and

45 McLead with respect to the duty to instruct on the number of conspiracies is questionable,

in that both decisions relied on People v. Davis (1989) 211 Cal.App.3d 317, a solicitation

to murder case holding that the number of solicitations shown by the evidence was not a

question of fact, but was instead equal to the number of potential victims. (Davis, at

pp. 322-323.) As the court stated in Meneses, "Davis is thus the ultimate source for this

line of authority. Davis provides a weak foundation for the proposition that the question

of single versus multiple conspiracies is not a question of fact because Davis is not a

conspiracy case, but a case concerning solicitation of murder." (Meneses, at p. 1670.)

"The problem with reflexively extending Davis [citation] to all conspiracies is that the

number of victims is not a firm basis or indicator for determining the number of

conspiracies. It is the agreement, not the overt acts, that defines the crime." (Ibid.) We

note that even with respect to solicitation of murder cases, there is contrary authority to

the effect that the jury must be instructed to determine the number of solicitations.

(People v. Morocco (1987) 191 Cal.App.3d 1449, 1453-1454.) In reaching its decision,

the court in Morocco analogized to the "well-settled law that 'the question whether one or

multiple conspiracies are present is a question of fact, to be resolved by a properly

instructed jury' [citation], . . . ." (Id. at p. 1453.)

We conclude that the better reasoned decisions are those concluding that the

number of conspiracies is a question of fact and imposing a duty upon the trial court to

instruct the jury, sua sponte, to determine the number of conspiracies "where the evidence

supports alternative findings." (Meneses, supra, 165 Cal.App.4th at p. 1668.)

46 E. Analysis

The People argue that even if we find the trial court had a sua sponte duty to

instruct the jury to determine the number of conspiracies, the court did not err in failing

to so instruct the jury because the evidence did not support an alternative finding of a

single conspiracy. To this end, they assert Meneses, supra, 165 Cal.App.4th 1648 is

instructive. It is not.

In Meneses, the defendant was convicted of nine counts of conspiracy resulting

from an extensive scheme to defraud insurance companies. (Meneses, supra,

165 Cal.App.4th at pp. 1651, 1659.) The defendant would buy stolen police reports and

contact victims of accidents. Billing himself as a "lawyer referral service," he would

refer the victims to various lawyers and chiropractors and encourage the victims to

procure services. (Id. at pp. 1652-1653.) The defendant bought police reports from a

connection in the police department whom he never met. The defendant was paid by the

doctors, lawyers, and chiropractors for each referral made, usually in cash. (Ibid.) To

determine whether a single conspiracy had been formed, the court looked to "whether the

acts 'were tied together as stages in the formation of a larger all-inclusive combination, all

directed to achieving a single unlawful end or result.' " (Id. at p. 1672, quoting People v.

Morocco, supra, 191 Cal.App.3d at p. 1453.) It also considered " 'whether the crimes

involved the same motives [and] were to occur in the same time and place and by the

same means,' and targeted a single or multiple victims." (Meneses, at p. 1672, citing

McLead, supra, 225 Cal.App.3d at p. 920.)

47 Applying those factors, the court ruled that the "evidence does not support a

finding of a single enterprise with a common purpose." (Meneses, supra, 165

Cal.App.4th at p. 1671.) The conspiracies were "distinct and disconnected," involving

different combinations of conspirators and different time periods. (Id. at p. 1672.) The

court explained: "The only common element in each conspiracy was defendant himself,

who formed separate confederations with various parties at different times for different

transactions. The evidence does not support a finding of a single enterprise with a

common purpose." (Id. at 1671.)

In contrast to Meneses, the two alleged conspiracies here involved the same two

coconspirators (Hernandez and Kopp). Hernandez would convey what needed to be done

to prevent two key witnesses from testifying against him, and Kopp would communicate

Hernandez's instructions to E.P. Unlike the defendant in Menses, this is not the case

where a defendant "formed separate confederations with various parties at different times

for different transactions." (See Meneses, supra, 165 Cal.App.4th at p. 1671.)

Further, the prosecution's theory of the case supports the conclusion that

Appellants entered into a single conspiracy. During closing argument, the prosecutor

repeatedly told the jury that this case was about Appellants attempting to interfere with

the administration of justice. The prosecutor further discussed the evidence supporting

the two conspiracies, interchangeably, noting that the same audio recording and texts

showed the two conspiracies. Even when first discussing the two alleged conspiracies

during his closing argument, the prosecutor asked the jury to think of "a bigger

conspiracy to interfere with the ordinary administration of justice," and he referred to "the

48 original plan" to "conspir[e] to interfere with [the administration of justice]" as well as

"the agreement" and "what the[] overt acts [were] in furtherance of." Thus, it is not

surprising that the overt acts the prosecutor claimed supported a conspiracy to commit

murder were virtually identical to the overt acts he claimed supported the conspiracy to

dissuade a witness from testifying.

Not daunted by the record, the People insist the evidence could not have supported

a finding of a single conspiracy because the evidence established a separate motive for

each conspiracy. As such, the People point out that the prosecution's expert testified that

when a person connected with the Mexican Mafia cooperates with law enforcement, it is

considered a serious violation of the gang's rules that could result in death to the offender.

Although they concede murdering U.P. would serve the purpose of making it more

difficult to prosecute Hernandez, the People further maintain that conspiring to murder

U.P. before trial did not extinguish the separate goal to punish U.P. for violating Mexican

Mafia rules. However, the possibility of two motives or goals regarding the decision to

kill U.P. does not undermine the existence of a single conspiracy. Indeed, a single

conspiracy can have diverse objects and involve committing multiple crimes.

(See Meneses, supra, 165 Cal.App.4th at pp. 1669-1670; Jasso, supra, 142 Cal.App.4th

at p. 1222.)

Instead of concluding that Meneses is instructive here, we believe the instant

matter is more analogous to Jasso, supra, 142 Cal.App.4th 1213. In that case, a prison

inmate was convicted of three counts of conspiracy to import drugs into the prison based

on numerous phone calls to one contact, who coordinated with the wives of several

49 different inmates who planned to visit their husbands in prison. The contact would obtain

the drugs, package them, and give them to the visitor, who would conceal the drugs on

her body. On three different days within a two-month period, three separate women

visiting their husbands in prison were searched and found to be carrying drugs. (Id. at

pp. 1216-1219.) The jury was not instructed to determine the number of conspiracies.

The appellate court reversed all three conspiracy convictions after concluding that a

properly instructed jury could have found a single conspiracy because all three charged

"conspiracies occurred during the same narrow time frame and involved the same modus

operandi," notwithstanding the existence of multiple attempts on different days to

smuggle the drugs into prison using different women as couriers. (Id. at pp. 1221-1223.)

Here, the evidence of a single conspiracy was much stronger than the evidence in

Jasso, supra, 142 Cal.App.4th 1213. In the instant matter, as consistently argued by the

prosecutor during closing, the evidence showed that the overall goal of the conspiracy

between Appellants was to ensure that the two key witnesses against Hernandez did not

testify at his trial. The audio recordings and texts on which the prosecutor relied to prove

the existence of the conspiracies were the same. The same overt acts were offered for

both conspiracies. The conspirators were the same for both alleged conspiracies. In fact,

this is not a case, as urged by the People, wherein the evidence precludes a finding of a

single conspiracy. In fact, the opposite appears true. Considering the record before us,

especially considering the prosecutor's closing argument, the evidence of the

conspiracies, and the alleged overt acts, this seems to be one of those unique cases

wherein it is apparent that only one conspiracy existed. Thus, a properly instructed jury

50 would have only found the existence of a single conspiracy. The error here therefore was

not harmless under People v. Watson, supra, 46 Cal.2d at page 836. Accordingly, the

second count of conspiracy (count 4) cannot stand as to either appellant.

VII

SENTENCING ISSUES

Hernandez alleges several errors relating to his sentence. First, he argues that the

trial court should have stayed his sentence for count 4 under section 654 because the

conduct in count 4 "was part of the same process" as the conduct for count 5. Second, he

claims the abstract of judgment is incorrect because it states that the sentence on count 4

is both consecutive and concurrent. Third, he maintains the trial court improperly

imposed enhancements on counts 1 and 2, under both sections 186.22 and 12022.7.

Both of Hernandez's first two contentions are moot. Because we are reversing

Hernandez's conviction under count 4, his argument that the court should stay his

sentence for that count is no longer of the moment. Likewise, regarding his claim that the

abstract of judgment is incorrect, on remand, the trial court will resentence Hernandez

consistent with this opinion and amend the abstract of judgment accordingly.

Hernandez's third argument remains. He contends that the trial court violated

section 1170.1, subdivision (g). 20 Specifically, he asserts the court improperly imposed

20 Section 1170.1, subdivision (g) provides: "When two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that 51 enhancements on counts 1 and 2 under both sections 186.22, subdivision (b)(1)(C) and

12022.7, subdivision (a) because the court double counted these enhancements, which are

based on a finding of great bodily injury. (See People v. Gonzalez (2009) 178

Cal.App.4th 1325, 1327-1328, 1331-1332 [concluding imposition of both a great bodily

injury enhancement (§ 12022.7, subd. (a)) and a 10-year gang enhancement based on the

great bodily injury finding (§ 186.22, subd. (b)(1)(C)) violated § 1170.1, subd. (g)].)

Here, Hernandez's infliction of great bodily injury on the victim had two

consequences as it pertained to sentence enhancements. First, it qualified him for a three-

year enhancement under section 12022.7, subdivision (a). Second, it turned the two

underlying assaults into violent felonies under section 667.5, subdivision (c), which

qualified him for the 10-year gang enhancement under section 186.22,

subdivision (b)(1)(C). Thus, imposing and executing both the 10-year gang enhancement

and the great bodily injury enhancement under section 12022.7, subdivision (a) would

violate section 1170.1, subdivision (g). (People v. Gonzalez, supra, 178 Cal.App.4th

at pp. 1327-1328, 1331-1332.) Yet, unlike that case, in which the trial court imposed and

executed both enhancements, the trial court here imposed and stayed the section 12022.7

enhancements under section 654. The court therefore did not err. The trial court

properly imposed and stayed the section 12022.7 enhancement. (Cf. People v. Gonzalez

(2008) 43 Cal.4th 1118, 1127; People v. Le (2015) 61 Cal.4th 416, 429.)

offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for being armed with or using a dangerous or deadly weapon or firearm." 52 B. Kopp's Contentions

Kopp contends the court erred when it did not stay her sentence for count 5

(furnishing methamphetamine) under section 654. We disagree.

At the sentencing hearing, Kopp's trial counsel argued that the sentences for

counts 3 (conspiracy to commit murder) and 5 should run concurrently. Counsel also

argued that section 654 should be applied. The trial court disagreed, finding the

sentences for counts 4 and 5 would run concurrently to one another but the crimes were

"sufficiently separate that they should be consecutive" to count 3. Therefore, the court

sentenced Kopp to prison for a term of 25 years to life for count 3 (conspiracy to commit

murder), a concurrent term of three years for count 4 (conspiracy to dissuade a witness),

and a consecutive term of four years for count 5. Kopp argues the trial court erred

because the overt acts underlying the conspiracy to commit murder in count 3

encompassed the furnishing methamphetamine charge in count 5; thus, the sentence for

count 5 had to be stayed under section 654.

Section 654 prohibits punishment for two crimes arising from a single, indivisible

course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) This is "to ensure

that a defendant's punishment will be commensurate with his culpability." (People v.

Correa (2012) 54 Cal.4th 331, 341.) In determining the applicability of section 654,

"[w]e first consider if the different crimes were completed by a 'single physical act.'

[Citation.] If so, the defendant may not be punished more than once for that act. Only if

we conclude that the case involves more than a single act—i.e., a course of conduct—do

we then consider whether that course of conduct reflects a single ' "intent and objective" '

53 or multiple intents and objectives." (People v. Corpening (2016) 2 Cal.5th 307, 311

(Corpening).) If a defendant has independent criminal objectives, he may be punished

for each crime committed pursuing an independent objective, even if the crimes share

common acts or are otherwise part of an indivisible course of conduct. (People v. Perry

(2007) 154 Cal.App.4th 1521, 1525.) However, "[i]f all the offenses are incidental to one

objective, the defendant may be punished for any one of them, but not for more than

one." (People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1112 (DeVaughn), citing

People v. Centers (1999) 73 Cal.App.4th 84, 98.)

Yet, if the "defendant harbored 'multiple criminal objectives,' which were

independent of and not merely incidental to each other, he [or she] may be punished for

each statutory violation committed in pursuit of each objective, 'even though the

violations shared common acts or were parts of an otherwise indivisible course of

conduct.' [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335.)

But even if a course of conduct is " 'directed to one objective,' " it may " 'give rise

to multiple violations and punishment' " if it is " 'divisible in time.' " (People v. Deegan

(2016) 247 Cal.App.4th 532, 542, quoting People v. Beamon (1973) 8 Cal.3d 625, 639,

fn. 11.) "This is particularly so where the offenses are temporally separated in such a

way as to afford the defendant opportunity to reflect and renew his or her intent before

committing the next one, thereby aggravating the violation of public security or policy

already undertaken." (People v. Gaio (2000) 81 Cal.App.4th 919, 935 (Gaio); see

People v. Felix (2001) 92 Cal.App.4th 905, 915 ["multiple crimes are not one transaction

54 where the defendant had a chance to reflect between offenses and each offense created a

new risk of harm"].)

"The question of whether section 654 is factually applicable to a given series of

offenses is for the trial court, and the law gives the trial court broad latitude in making

this determination." (DeVaughn, supra, 227 Cal.App.4th at p. 1113.) A court's

expressed or implied findings on this point must be upheld if supported by substantial

evidence. (People v. Brents (2012) 53 Cal.4th 599, 618.) This requires us to view the

evidence in the light most favorable to the sentencing order and presume the existence of

facts a trier of fact could reasonably deduce from the evidence. (DeVaughn, at p. 1113.)

However, Kopp contends the facts are not in dispute, and as such, we should review this

issue de novo. (See Corpening, supra, 2 Cal.5th at p. 312.) But Kopp's claim that the

facts are not in dispute is based upon an assumption that each juror relied on the same

overt act to find Kopp guilty of conspiracy. As we explain below, the record does not

mandate this conclusion. Accordingly, we employ the deferential substantial evidence

standard of review.

Kopp maintains counts 3 and 5 were accomplished by the same physical act

because count 5 was one of the overt acts the jury could have found to support Kopp's

conviction of count 3. (See Corpening, supra, 2 Cal.5th at p. 311.) A single physical act

occurs when "the same physical action . . . completed the actus reus of each charged

crime[.]" (Id. at p. 313.) The actus reus is " '[t]he wrongful deed that comprises the

physical components of a crime.' " (Id. at p. 312, quoting Black's Law Dict. (10th ed.

2014) p. 44, col. 1.) " 'Conspiracy to commit murder requires an agreement to commit

55 murder and an overt act by one or more of the conspirators.' [Citation.]" (People v.

Penunuri (2018) 5 Cal.5th 126, 144.) Although Kopp is correct that count 5, consisting

of furnishing methamphetamine, was the same act as one of the overt acts presented to

the jury to establish a conspiracy to commit murder, there were 10 other overt acts the

prosecutor proffered to prove that conspiracy. Further, the court instructed the jurors that

they "must all agree that at least one alleged overt act was committed in California by at

least one alleged member of the conspiracy, but [they] d[id] not have to all agree on

which specific overt acts were committed and who committed the overt act or acts."

Thus, there is nothing in the record that leads us to the conclusion that each juror

determined that furnishing the methamphetamine was the overt act to support the verdict

that Kopp committed conspiracy to commit murder in count 3. Therefore, we disagree

with Kopp that the record establishes that counts 3 and 5 were accomplished by the same

physical act. Consequently, we move on to consider the second test under Corpening.

After finding that a single physical act was not the actus reus for each count, a

court must next evaluate whether the several acts, establishing the commission of the

subject offenses, were pursued with a single objective. If so, then section 654 prohibits

multiple punishments. (Corpening, supra, 2 Cal.5th at p. 311.) Here, Kopp has a better

argument that the furnishing of methamphetamine was pursued as part of the single

objective to conspire to prevent two witnesses from testifying against Hernandez.

Indeed, Kopp obtains and furnishes the methamphetamine as payment to murder one

witness and dissuade the other from testifying. Nevertheless, as the People point out,

multiple punishments are permitted based on a course of conduct divisible in time, even

56 if directed at one objective. (See Gaio, supra, 81 Cal.App.4th at p. 935.) Here, the

11 overt acts, each one which could support the jury's verdict on count 3, occurred over a

period of several days. For example, the furnishing of methamphetamine was labeled as

Overt Act No. 8 and occurred on February 22. The first overt act occurred on February

10 and the last on February 26 or March 1. Kopp does not argue that substantial evidence

does not support the determination that all 11 of the overt acts occurred. Further, the

gaps in time between the various alleged overt acts provided Kopp with time to reflect on

her next steps, making her actions divisible and multiple punishments appropriate. (See

People v. Felix, supra, 92 Cal.App.4th at p. 915; Gaio, supra, 81 Cal.App.4th at p. 935.)

As such, the trial court could reasonably find multiple punishments warranted and

substantial evidence supported such a finding. The trial court did not err in failing to stay

Kopp's sentence under count 5 pursuant to section 654. 21

Finally, Kopp argues that the abstract of judgment must be corrected to accurately

indicate her sentence for counts 4 and 5. The People do not disagree. Because we are

reversing her conviction for count 4 and have determined that section 654 did not require

the trial court to stay her sentence under count 5, on remand, we order the trial court to

amend the abstract of judgment in accordance with this opinion after resentencing Kopp.

21 Hernandez does not explicitly adopt Kopp's argument regarding sections 654 and counts 3 and 5. To the extent he contends he implicitly made that argument in his brief, his argument fails for the same reasons as does Kopp's. 57 VIII

SENATE BILL NO. 1393

On September 30, 2018, the Governor signed Senate Bill No. 1393 which,

effective January 1, 2019, amends sections 667, subdivision (a) and 1385, subdivision (b)

to allow a court to exercise its discretion to strike or dismiss a prior serious felony

conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.) Under the former

versions of these statutes, the court was required to impose a five-year consecutive term

for "any person convicted of a serious felony who previously has been convicted of a

serious felony" (§ 667(a)), and the court has no discretion "to strike any prior conviction

of a serious felony for purposes of enhancement of a sentence under Section 667."

(§ 1385, subd. (b).)

In his supplemental brief, Hernandez maintains that Senate Bill No. 1393 applies

retroactively, and therefore, we must remand this matter for resentencing under the bill.

The People concede that Senate Bill No. 1393 is retroactive and agree that we should

remand the matter for resentencing on that issue. Recently, our colleagues in Division

Two of the Fourth Appellate District concluded Senate Bill No. 1393 applies

retroactively. (People v. Garcia (2018) 28 Cal.App.5th 961, 973.) We adopt the

reasoning of Division Two here. (See id. at pp. 971-973.) Accordingly, we conclude that

Senate Bill No. 1393 applies retroactively, and this matter must be remanded to the

superior court for resentencing under that bill.

58 IX

ASSESSMENTS AND FINES

Citing Dueñas, supra, 30 Cal.App.5th 1157, Hernandez contends in his

supplemental brief that the trial court erred in imposing certain fees and fines without

first determining his ability to pay these charges. Kopp filed a joinder as to Hernandez's

argument.

At Appellants' sentencing hearing, Hernandez's trial attorney asked for a

"minimum of $200" for "the restitution fine." He also requested that the court stay "the

additional fines for Mr. Hernandez due to his inability to pay." Finally, he asked the

court to "find the requisite extraordinary circumstances that require a stay." After the

prosecutor objected to Hernandez's requests, the court rejected defense counsel's

argument, noting: "My general understanding is the determination of inability to pay

occurs not necessarily on the date of sentencing but at a later date when the fine is or may

be imposed. There is a possibility that the defendant may be able to earn funds while he

is incarcerated, so I'm going to decline to make that finding at this time."

The court then imposed the following assessments and fines on Appellants: a

restitution fine of $10,000 under Penal Code section 1202.4, subdivision (b); a court

security fee of $120 under Penal Code section 1465.8; an immediate critical needs

account fee of $90 under Government Code section 70373; a criminal justice

administrative fee of $154 under Government Code section 29550.1; a drug program fee

59 of $615 under Health and Safety Code section 11372.5; and a lab analysis fee of $205

under Health and Safety Code section 11372.5. The court also ordered but stayed a

parole revocation restitution fee of $10,000 under Penal Code section 1202.45. 22

Kopp's trial counsel did not object or otherwise address any of the fees or fines

levied on Kopp. 23

C. Analysis

Appellants maintain that we should remand this matter so the trial court can

conduct an ability to pay hearing as to all the imposed fees and fines per Dueñas, supra,

30 Cal.App.5th 1157. They admit that the Dueñas court did not address all the fines that

are at issue here, but contend that Dueñas "established a constitutional principle" that a

trial court can only impose certain fees and fines if it first determines that they can pay

them. Although we do not reject Dueñas outright, we urge caution in following that case

and announcing a significant constitutional rule without regard to the extreme facts

Dueñas presented.

In Dueñas, the defendant was an indigent, homeless mother of two, who subsisted

on public aid while suffering from cerebral palsy. (Dueñas, supra, 30 Cal.App.5th at

22 The court ordered victim restitution under section 1202.4, subdivision (f) in an amount to be determined. Because victim restitution is a civil remedy, we do not address that restitution here. (See People v. Harvest (2000) 84 Cal.App.4th 641, 647, 649-650.) 23 Although Kopp's trial counsel did not object to any of the imposed fees or fines, because the issue was raised by Hernandez and addressed by the court, we do not find that she forfeited this issue on appeal. The record makes clear that had counsel objected on the same grounds as Hernandez's counsel, the court would have rejected that objection as well. Put differently, any objection by Kopp's counsel would have been futile, and the issue has been preserved for appeal. (See People v. Hill (1998) 17 Cal.4th 800, 821.) 60 pp. 1160-1161.) As a teenager, the defendant's license was suspended when she could

not pay some citations. (Id. at p. 1161.) She then was convicted of a series of

misdemeanor offenses for driving with a suspended license, and in each case, she was

given the Hobson's choice to pay mandatory fees and fines, which she lacked the means

to do, or go to jail. (Id. at p. 1161.) She served jail time in the first three of these cases,

but still faced outstanding debt, which increased with each conviction. (Ibid.)

After her fourth conviction of driving with a suspended license, the defendant was

placed on probation and again ordered to pay mandatory fees and fines. (Dueñas, supra,

30 Cal.App.5th at pp. 1161-1162.) To try to stop the cycle of ever enhancing fees and

fines, the defendant brought a due process challenge to Penal Code section 1465.8,

Government Code section 70373, and Penal Code section 1202.4, the statutes under

which the fees and fines were imposed. (Dueñas, at p. 1164.) She argued that "[t]hese

statutes . . . are fundamentally unfair because they use the criminal law, which is centrally

concerned with identifying and punishing only blameworthy decisions, to punish the

blameless failure to pay by a person who cannot pay because of her poverty. The laws,

moreover, are irrational: They raise no money because people who cannot pay do not

pay." (Ibid.) The appellate court agreed, determining that due process "requires the trial

court to conduct an ability to pay hearing and ascertain a defendant's present ability to

pay before it imposes court facilities and court operations assessments under Penal Code

section 1465.8 and Government Code section 70373." (Dueñas, at p. 1164.) The court

also concluded that "although Penal Code section 1202.4 bars consideration of a

defendant's ability to pay unless the judge is considering increasing the fee over the

61 statutory minimum, the execution of any restitution fine imposed under this statute must

be stayed unless and until the trial court holds an ability to pay hearing and concludes that

the defendant has the present ability to pay the restitution fine." (Dueñas, at p. 1164.)

Here, there is no indication that either Hernandez or Kopp are anything like the

defendant in Dueñas. The record does not indicate that either appellant is indigent or a

parent living on public assistance, who is trapped in a cycle of debt originating in driving

citations and a suspended license and whose woeful financial situation is exacerbated by

misdemeanors and further fines. That said, we are mindful that neither appellant was

permitted to make any record in the trial court as to his or her financial condition.

Additionally, we agree, to some extent, with the court's conclusion in Dueñas that due

process requires the trial court to conduct an ability to pay hearing and ascertain a

defendant's ability to pay before it imposes court facilities and court operations

assessments under Penal Code section 1465.8 and Government Code section 70373, if the

defendant requests such a hearing. To this list of assessments, we would add the criminal

justice administration fee, imposed on Appellants here, under Government Code

section 29550.1. These assessments are not punitive in nature, and, we agree that

"imposing unpayable fines on indigent defendants is not only unfair, it serves no rational

purpose, fails to further the legislative intent, and may be counterproductive." (Dueñas,

supra, 30 Cal.App.5th at p. 1167.) Accordingly, it was error not to hold an ability to pay

hearing after Hernandez explicitly raised the issue below. Thus, an ability to pay hearing

for these assessments as to Appellants is warranted on remand.

62 Nevertheless, as we are not wholly endorsing Dueñas, supra, 30 Cal.App.5th

1157, we want to make clear that it is Appellants' burden to make a record below as to

their ability to pay these assessments. To the extent the Dueñas court implies that it is the

prosecution's burden to prove that a defendant can pay an assessment (see id. at p. 1172),

we disagree. It is the defendant who bears the burden of proving an inability to pay.

(Cf. People v. McMahan (1992) 3 Cal.App.4th 740, 749.) In addition, the Dueñas court

suggests that the trial court must evaluate a defendant's present ability to pay any fees or

fines. (See Dueñas, at p. 1164.) The court, however, does not define what is meant by

"present." To avoid confusion, we make clear that the trial court should not limit itself to

considering only whether Appellants have the ability to pay at the time of the sentencing

hearing. As both Appellants will be serving lengthy prison sentences, it is appropriate for

the court to consider the wages that both may earn in prison. (See People v. Hennessey

(1995) 37 Cal.App.4th 1830, 1837 [ability to pay includes a defendant's ability to obtain

prison wages]; § 2085.5 [outlining how a restitution fine balance may be collected from

prison wages].)

Additionally, we do not follow the court's approach to restitution fines in Dueñas.

There, the court acknowledged that the restitution fine under section 1202.4 is "additional

punishment for a crime." (See Dueñas, supra, 30 Cal.App.5th at p. 1169.) Yet, the court

still focused solely on a defendant's ability to pay in determining whether such a punitive

fine is constitutional. To this end, the court held:

"[A]lthough Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution

63 fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Dueñas, supra, 30 Cal.App.5th at p. 1164.)

We disagree that this approach should apply to all punitive fines in the first instance. 24

Instead, because these fines are intended to punish defendants, we agree with the People

that a defendant should challenge such fines under the excessive fines clause of the

Eighth Amendment of the federal constitution and article I, section 17 of the California

Constitution. Put differently, there is no due process requirement that the court hold an

ability to pay hearing before imposing a punitive fine and only impose the fine if it

determines the defendant can afford to pay it.

The Eighth Amendment to the United States Constitution states: "Excessive bail

shall not be required, nor excessive fines imposed, nor cruel and unusual punishments

inflicted." "The Due Process Clause of the Fourteenth Amendment to the Federal

Constitution . . . makes the Eighth Amendment's prohibition against excessive fines and

cruel and unusual punishments applicable to the States. [Citation.] The Due Process

Clause of its own force also prohibits the States from imposing 'grossly excessive'

punishments . . . ." (Cooper Industries, Inc. v. Leatherman Tool Group, Inc. (2001)

532 U.S. 424, 433-434.)

24 Here, the punitive fines at issue are a restitution fine of $10,000 under Penal Code section 1202.4, subdivision (b) (see Dueñas, supra, 30 Cal.App.5th at p. 1169); a drug program fee of $615 under Health and Safety Code section 11372.5; and a lab analysis fee of $205 under Health and Safety Code section 11372.5 (see People v. Ruiz (2018) 4 Cal.5th 1100, 1103-1104). 64 The California Constitution contains similar protections. Article I, section 17,

prohibits "cruel or unusual punishment" and "excessive fines"; article I, section 7,

prohibits the taking of property "without due process of law."

The seminal United States Supreme Court case on the Eighth Amendment's

prohibition of excessive fines is United States v. Bajakajian (1998) 524 U.S. 321,

(Bajakajian), which involved a federal statute (31 U.S.C. § 5316(a)) requiring any person

transporting more than $10,000 out of the United States to file a report with the United

States Customs Service. The defendant attempted to take $357,144 out of the country

without filing a report. The government claimed that the entire $357,144 was forfeited.

The high court pointed out that "[t]he touchstone of the constitutional inquiry under the

Excessive Fines Clause is the principle of proportionality." (Bajakajian, at p. 334.) It

then set out four considerations: (1) the defendant's culpability; (2) the relationship

between the harm and the penalty; (3) the penalties imposed in similar statutes; and

(4) the defendant's ability to pay. (Id. at pp. 337-338.) After reviewing those

considerations, the high court held that the forfeiture of the defendant's currency

constituted an "excessive fine" barred by the Eighth Amendment.

The California Supreme Court has adopted the same four factors to analyze

whether a fine is constitutionally disproportionate. (See People ex rel. Lockyer v. R.J.

Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728.) These are the same four factors the

superior court should apply if either appellant claims the punitive fines here are

excessive. And, as both the United States and California Supreme Courts have held, a

defendant's ability to pay is one factor to consider. (Ibid.; Bajakajian, supra, 524 U.S. at

65 p. 338; cf. § 1202.4, subd. (c) ["Inability to pay may be considered only in increasing the

amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of

subdivision (b) (of section 1202.4)"].) However, it is not the only factor. 25

DISPOSITION

Appellants' respective convictions under count 4 are reversed. We remand this

matter to the superior court to hold an ability to pay hearing and resentence Appellants

consistent with this opinion and amend the abstracts of judgment accordingly. As part of

resentencing, Hernandez may move under Senate Bill No. 1393 to strike his prior serious

felony conviction. In addition, Appellants may challenge their punitive fines under the

California and federal constitutions as set forth in this opinion. We offer no opinion

25 We acknowledge that neither appellant argued below that their respective punitive fines were excessive under the California or federal constitutions. However, because we are remanding this matter to the superior court for resentencing and to hold ability to pay hearings as to the assessments, and considering the recently issued Dueñas opinion, we conclude Appellants may argue the punitive fines imposed are unconstitutionally excessive on remand, if they believe such an argument is appropriate. 66 regarding how the superior court should rule on these matters. In all other respects, the

judgment is affirmed.

HUFFMAN, J.

I CONCUR:

GUERRERO, J.

67 BENKE, Acting P. J., concurring in part.

I agree with the majority that, despite defendant Christi J. Kopp's failure at

sentencing to object on the ground of inability to pay the various fines and assessments

imposed by the trial court, her claim of error has been preserved on appeal as a result of

the inability-to-pay objection made by codefendant Jason Samuel Hernandez. (See

People v. Hill (1998) 17 Cal.4th 800, 820 [noting a "defendant will be excused from the

necessity of either a timely objection and/or a request for admonition if either would be

futile"].)

However, I part company with the majority's disposition of this case. Unlike the

majority, I do not agree that remand for an inability-to-pay hearing should be based in

part on due process and equal protection grounds as stated in People v. Dueñas (2019)

30 Cal.App.5th 1157 (Dueñas), including for certain fines and/or assessments, but not

others. Although the majority urges "caution" in following Dueñas based on the

"extreme facts" of that case (maj. opn. ante, at p. 60), the majority in remanding this case

for such a hearing at the same time expressly agrees "to some extent" with Dueñas in

concluding that "due process requires the trial court to conduct an ability to pay hearing

and ascertain a defendant's ability to pay before it imposes" various assessments on a

defendant. (Maj. opn. ante, at p. 62.)

As I stated in my concurring opinion in People v. Gutierrez (2019) 35 Cal.App.5th

1027 (Gutierrez), I respectively believe Dueñas erroneously invoked a due process and

equal protection analysis, as the underpinning for its decision, by relying on authorities

that involved access to the courts and the judicial system. (Dueñas, supra, 30 Cal.App.5th at p. 1166, citing to Griffin v. Illinois (1956) 351 U.S. 12, 17 [concluding

that due process and equal protection guaranteed an indigent criminal defendant a free

transcript of trial proceedings in order to provide that defendant with access to the court

of appeal, where he would receive an adequate and effective review of his criminal

conviction].) 1 In my view, the issue of access to the courts and judicial system was not

an issue in Dueñas, nor is it an issue in the instant case.

To the extent a challenge is made in the trial court on the ground of inability to

pay any fines and assessments, 2 I believe that challenge should be analyzed under the

Eighth Amendment to the United States Constitution, 3 made applicable to the states

through the Fourteenth Amendment, as recently announced by the United Supreme Court

1 Likewise, Dueñas's citations to multiple provisions of the Government Code do not support its conclusion that our "Legislature has recognized the deleterious impact of increased court fees on indigent people." (Dueñas, at p. 1165.) Rather, these statutes ensure that all people, without regard to economic status, have equal access to our justice system.

2 Although not an issue in the instant case, if, at sentencing, a defendant fails to object to the imposition of fines and assessments on the ground of inability to pay, that claim of error in my view is forfeited on appeal. (See People v. Frandsen (2019) 33 Cal.App.5th 1126, 1155 [refusing to follow Dueñas in concluding it stands "by the traditional and prudential virtue of requiring parties to raise an issue in the trial court if they would like appellate review of that issue"].)

3 The Eighth Amendment to the United States Constitution states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

2 in Timbs v. Indiana (2019) __ U.S. __, 139 S.Ct. 682; and under Article I, section 17, 4 of

our state Constitution. (See, e.g., Gutierrez, supra, 35 Cal.App.5th 1027 (conc. opn. of

Benke, J.).)

Here, because Hernandez's inability-to-pay objection benefited Kopp, I agree with

the majority that on remand she may challenge the fines and assessments imposed on

her. 5 I disagree, however, with the majority's decision to the extent it concludes that,

with respect to certain assessments, remand was required under Dueñas based on due

process and equal protection principles. Instead, remand is necessary to allow the trial

court to apply an Eighth Amendment analysis, which, in my view, allows for a consistent

and fair review of fines and fees imposed on individuals, with the appeal process

remaining available for further review.

BENKE, Acting P. J.

4 Article 1, section 17, of the California Constitution states: "Cruel or unusual punishment may not be inflicted or excessive fines imposed."

5 I note from the record that in overruling the inability-to-pay objection of Hernandez, it appears the court stopped just short of making a finding of ability to pay when the court stated, "There is a possibility that the defendant may be able to earn funds while he is incarcerated, so I'm going to decline to make [the inability-to-pay] finding at this time." 3