1

Filed 9/8/20 P. v. Patterson CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or

or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

P EOPLE OF THE STATE OF

CALIFORNIA

, Plaintiff and Respondent,

v.

AYODELE PATTERSON

, Defendant and Appellant. A 156047

( Alameda County Super. Ct.

No. H56262 )

After a jury trial, appellant Ayodele Patterson was found guilty of the

first degree murder of 80

- year

- old Carolyn June Pavon, who was killed in her

home during the commission of a bu r glary . On appeal, Patterson contends

that the trial court erred in refusing to declare a mistrial and directing the

jury to continue deliberati ons af ter the jury twice declar ed it had reached an

impasse

. Patterson also alleg es that the prosecutor committed prejudicial

misconduct by presenting the victim in a sympathetic light and repeatedly

using the term “murder” during questioning

. Finally, he argues that the trial

court improperly impos ed various fines, fees, and other exactions at

sentencing without determining his ability to pay. W e affirm

.

FACTUAL AND PROCEDURAL BACKGROUND

Carolyn June Pavon lived with her dog in the family hom e in Hayward.

Her husband, a firefighter, had died in 2002, and her two daughters, M.L.2

and M.G., were grown. Both children spoke with their mother every few days

and saw her a bout once per week. M.G. and her granddaughter visited

Ms. Pavon on Thu r sday, June 2 4 , 2010, to discuss a planned family vacation

to Disneyland. M.L. spoke with Ms. Pavon by telephone on Friday evening,

June 25, and M.G. had a phone conversation with her mother in the late

afternoon o n Saturday, June 26. On Sundays, Ms. Pavon reg ularly went to

dinner at M.L.’s home. On Sunday

, June 2 7 , 2010, when Ms. Pavon did not

arrive for dinner and was not answering her tele phone, M.L. and her

husband drove to Ms. Pavon’s h ouse

.
When they arrived

, they saw the morning newspaper in the driveway,

which was unusual as Ms. Pavon had a habit of going out with the dog every

morning to get the paper. Inside, they found Ms. Pavon in her “usual spot”

on the living room couch. She did not appear to be aliv e. The house had been

ransacked, with the bedcovers pulled back, dresser drawers open, and items

strewn about the floor. A jewelry box was open on the bedroom floor, and

several missing drawers were abandon ed in the living room.

Ms. Pavon , who was five feet one inch tall and weighed 103 pounds,

suffered two gunshot wounds to the chest and two close

- up wounds (from

within inches) to her face. One shot to the heart and one to the face were

deemed lethal. Ms. Pavon was shot while reading . A book with two bullet

holes through it was found near her hand, and pieces of pages from a book

were found on her pajamas

. No relevant fingerprints were found at the scene

of the crime, but two shell casings were recovered from the couch area

. The

parties stipulated t hat the two casings had been cycled through the same

firearm or fed through the same magazine. It was also stipulated that an

individual named Donnie Howard pawned a piece of scrap gold jewelry in

Oakland on the day Ms. Pavon’s body was found.3

In Septemb er 2014, an amended information was filed by the Alameda

County District Attorney, charging Patterson, Howard , and a third individual

named Lionel Harris with Pavon’s murder

. (Pen. Code, 1 § 187

. ) The

information alleged that Patterson was a minor of at least 16 years of age at

the time of the murder (Welf. & Inst. Code, § 707, subd. (b)); that he

personally and intentionally discharged a firearm and caused great bodily

injury and death (§§ 12022.7 , 12022.53, subds. (c) & (d)); and that he

personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subds. (b) & (g)).

The information further alleged the special circumstance of murder in the

commission of a burglary. (§ 190.2 , subd. (a)(17)(G).)

In September 2015, Harris accepted a plea deal in which he pleaded no

contest to felony voluntary manslaughter (§ 192, subd. (a)) and admitted an

arming allegation (§ 12022, subd. (a)(1)), in exchange for his testimony.

Harris stated he was “blessed” to g et a plea deal which carried a 12

- year

prison term rather than the potential for life without the possibility of parole.

Patterson’s t rial commenced i n July 2016 , with Harris as the primary

witness against him

. 2 According to Harris, he and Patterson were close

friends and had committed a burglary together prior to Ms. Pavon’s murder.

Patterson lived a few blocks from Ms. Pavon’s residence. Harris had known

Howard for about a year prior to the murder and was aware Howard was

staying near Patterson

.
Harris testified that, o n the Saturday of the murder, he was hanging

out, drinking, and smoking at Patterson’s house when Patterson asked him to

1 All statutory references are to the Penal Code unless otherwise
specified.

2 A previous jury trial, in which Patterson and Howard were tried
jointly, ended in a mistrial as to Patterson in November 2015. Howard was

convicted and sentenced to life without the possibility of parole.4

come along for a “house lick,” slang for a burglary. The two met Howard and

then walked up a trail to Ms. Pavon’s home. While walking, Harris saw that

Patterson had a gun underneath his clothes , but did not see Howard with a

gun. Harris claimed he would not have participated if he knew a gun was

involved. The three men put on gloves to avoid leaving fingerprints.

Pat t erson mentioned there was a n older dog on the pr emises

. According to Harris, after arriving at the house, he went through to the

backyard where it was dark. H e looked through a window and saw

Ms. Pavon walk into the kitchen to get a glass of water, which surprised him.

It did not appear that Ms. Pa von had seen him. Harris went to warn the

others about Ms. Pavon’s presence. He found Patterson in the house. After

peeking into the living room and seeing Ms. Pavon with a book, he told

Patterson they should wait. Patterson replied: “Fuck that, we ab out to do

this. . .

, I’m about to lay her down.” Patterson then took his gun, walked into

the living room, said

, “ G ive it up lady,” and fired four times. The two final

shots were to Ms. Pavon’s face. Harris yelled: “What the fuck did you do that

shit for ?” Patterson then started picking up shells and asked Harris to help

him. Harris replied that Patterson was crazy and left. 3

The prosecution offered several prior statements by Patterson to show

a consciousness of guilt , corroborating Harris’s des cription of the events . In

April 2014, Patterson and Howard were placed in an interview room together

where their conversation was recorded. Patterson initially denied

involvement with the crime several times, finally declaring it was “ a wrap”

for both of t h em and that they were both “fittin’ to be gone for a long time for

somethin’ that we both didn’t do, bro.” Howard replied: “Somethin’ I didn’t

3 Various facts and prior inconsistent statements were introdu ced at
trial to impeach Harris.5

do, blood. You know what you did, blood. Go on and take that . . . .”

Patterson replied: “Cause w e fucked with it tuff? It’s cool. It’s cool bro. I

love y a , bro, it’s good. It’s over. I don’t see how the fuck that’s even

— I don’t

see how the fuck that even, bro

, I didn’t say nothin’ about nothin’ bro

. I don’t

see how that’s hard to keep your fuck in’ mouth shut. I don’t understand.”

On another occasion, Patterson spoke to his mother and girlfriend,

C.N., by tele phone from jail. While Patterson ’s mother repeatedly counseled

him to say nothing , P atterson was recorded telling Harris

— who was in a

n earby cell

— to “just keep your mouth shut.” Later, when C.N. joined the

call, Patterson told her that he was going to be incarcerated for “some years.”

The following exchange then took place:

C.N.: “[B]ut then again you know . . . you know what you did,

like . . . I mean . . . .”

Patterson: “[S]hit, I know what I used to do . . . .”

C.N.: “You always say karma is a bitch.”

Patterson: “For sure. [¶] .

. . [¶] I’m gon’ try and figure

something out. [¶] .

. . [¶] Ain’t shit I can do about it.”

I n March 2015, an evidence technician at the jail intercepted a letter to

Patterson’s parents with Patterson’s personal identification number in the

return address. The writer indicated it would “help me real big” if the

parents told defense counsel that the writer was “home on punishment from

May 2010 until August 2010,” the timeframe of the Pavon murder.

On September 1, 2016, the jury found Patterson guilty of first degree

murder and found the burglary special circumstances true. The jury also

found t rue the lesser firearm enhancement

— that Patterson personally used a

firearm within the meaning of section 12022.53, subdivision (b). However,

t he jury concluded that Patterson did not personally discharge a firearm6

(§§ 12022.7, subd. (a), 12022.53, subds. (c) & (d)) or personally inflict great

bodily injury (§ 12022.7).

On November 16, 2018, the trial court sentenced Patterson to life in

prison without the possibility of parole. The court additionally imposed

restitut ion obligations and various fine, fees, and assessments as discussed

further below. Patterson’s timely notice of appeal followed.

DISCUSSION

I. The Verdict Was Not Coerced

Patterson first contends that the trial court’s refusal to declare a

mistrial after the jury twice declared it self deadlocked violated his S ixth and

F ourteenth A mendment rights to due process and a fair trial. Specifically, he

assert s that , under the totality of the circumstances, the trial court’s rejection

of the jury’s declaration of impasse, along with its insensitive treatment of

two jurors reporting possible work and financial issues, implicitly coerc ed the

verdict. The record does not support his claims.

a. Additional Background

After eight court days for evidence and argument, th e jury retired to

deliberate in th is case at approximately 3:30 p.m. on August 17, 2016. They

went home less than 30 minutes later, and then returned to deliberate on

August 18 and August 19. On August 18, the jury received several pieces of

evidence it asked to review. In response to jury requests, the court reporter

read back selected trial testimony on August 19. In addition, the court

answered 10 jury questions involving evidentiary and legal issues.

Deliberations resumed on the next court day, August 22. Around noon,

the court received a note from the jury, stating: “We are at a stalemate. Can

the Court please advise on further steps.” The court denied defense counsel’s

request for a mistrial. It noted that there had been “two and a half da ys of

deliberations, and most of the time they have been waiting for answers to7

questions or in reread. Literally that is over 50 percent of the time.” Instead,

because the court had promised to excuse j uror No. 8 for a prepaid vacation

after August 22, the court excused the jury for the day, excused j uror No. 8,

and replaced that juror with an alternate.

On August 23, the court noted the change in the jury and admonished

the jurors they were now required to begin their deliberations again from the

begi nning. The court instructed the jury not to hesitate to repeat a question

or reread request if that would be helpful, and testimony requested by the

jury was reread by the court reporter that afternoon. Deliberations continued

through August 24, with fur ther testimony read back by the court reporter.

Another readback occurred during the morning on August 25. Around

noon that same day, the jury indicated to the court that it was “at another

impasse.” In discussions with counsel, the court indicated that August 23

had been a shortened day and there had been some rereads on both

August 23 and 24. It then called the jury in, asking the foreperson whether

the jury had unanimously agreed on anything. After the foreperson

responded in the negative, the court admonished the jury as follows: “I would

ask all of you to still keep an open mind, continue to discuss and deliberate

with the other members of the jury, looking at all the evidence and how it

fits. [¶] If there is anything I can do in terms of further questions answered,

reread, let me know. Other than this suggestion at this point, I cannot think

of anything else I can do to assist. ”

Defense counsel renewed his request for a mistrial, which the court

again denied. T he court concluded that the earlier jury had deliberated no

more than one

- third of the time and that the reconstituted jury appeared to

be taking the admonition to start anew very seriously. The court also noted

that the jury stated it had reached “ another impasse,” suggesting it might8

have made progress from whatever had deadlocked the earlier jury . The

court also noted that it was “fairly early” in the deliber ations.

T he next court day, August 26, the court reporter conducted a readback

in the morning

. At 1:30 p.m., the court returned the jury to the courtroom to

answer a question about an exhibit, ultimately excusing the jury for the

remainder of the day. The court, however, asked two jurors to remain behind

to discuss their notes . Speaking to each juror individually, the court first

responded to j uror No. 10’s note that he had been asked to return to work by

Monday, August 29. When the court stated

, “ W e need you here still ,” the

juror replied

, “ I understand that. I was just requested, if possible, to at least

drop a note and see. ” The court responded: “If there’s further issues, I ’ m

happy to keep an open mind. I understand that . . . the length of

de liberations has probably surprised people. [¶] If there’s further problems,

let me know, I will consider anything. But as a general request at this point,

just come back on Monday at 10 :00 o’clock.”

The court then spoke to j uror No. 6, who had reported : “Work stops

paying me after three weeks , so after Friday, August 26 , I will not be able to

continue to deliberate and not get paid.” The court explained that “[w]e’re in

a situation where we would hope you could forgo some period

. . . of time

without pay” and asked whether the juror was “actually requesting a

financial hardship or just letting us know this is a problem.” After the juror

responded

, “ J ust letting you know that it’s a problem,” the court stated

, “When it becomes such a problem that you a re requesting a financial

hardship for us to talk about it, you’ll have to give us another note

. Otherwise, see you at 10:00 o’clock on Monday.” The jury then resumed its

deliberations on August 29, 30, and 31

— asking two questions and requesting9

a re adba ck

— until it announced midday on September 1, 2016, that it had

reached a verdict.

b. The Trial Court’s Actions Were Not Improper

A jury cannot be discharged without having rendered a verdict unless,

“at the expiration of such time as the court may deem pro per, it satisfactorily

appears that there is no reasonable probability that the jury can agree.”

(§ 1140 ; see People v. Brooks ( 2017) 3 Cal.5th 1, 88 ( Brooks ) .) A court must

take care to exercise its power under section 1140 “ ‘ without coercing the jury

into abdicating its independent judgment in favor of considerations of

compromise and expediency. ’ ” ( People v. Debose (2014) 59 Cal.4th 177, 209

( Debose ) .) However, “ ‘the court may direct further deliberations upon its

reasonable conclusion that such direction would be perceived “ ‘as a means of

enabling the jurors to enhance their understanding of the case rather than as

mere pressure to reach a verdict on the basis of matters already discussed

and considered.’ ” ’ ” ( Ibid. )

“ ‘ The decision whether to declare a hung jury or to order further

deliberations rests in the trial court ’ s sound discretion. ’ ” ( Brooks

, supra
,

3 Cal.5th at p. 88 ; see People v. Valdez (2012) 55 Cal. 4th 82, 159 ( Valdez ) .)

Thus, a trial court is not required to take a jury’s claim of deadlock at face

value. Rather, e ven where the jury has deliberated for a substantial period of

time and indicates it is unable to reach a verdict, the trial court still retains

discretion to require further deliberation. ( See People v. Sandoval (1992)

4 Cal.4th 155, 194

– 197 ( Sandoval ) [ citing cases].)

In analyzing a claim of coercion, the relevant inquiry is whether the

trial court ’ s comments “ impose[d] such pressure on jurors to reach a verdict ”

that “ the accuracy and integrity of the jury ’ s stated conclusion ” cannot be

assured. ( People v. Gainer (1977) 19 Cal.3d 835, 850, disapproved on another

point in Valdez

, supra
, 55 Cal.4th at p. 163 ; see People v. Peoples (2016)10

62 Cal.4th 718, 783 [ “ Coercion occurs where ‘ the trial court, by insisting on

further deliberations, expresse[s] an opinion that a verdict should be

reached. ’ ” ] .) The question of coercion depends “on th e facts and

circumstances of each case.” ( Sandoval

, supra
, 4 Cal.4th at p. 196; accord

Brooks

, supra
, 3 Cal.5th at p. 88.) A defendant’s right to due process is

violated if a trial court coerces jur o rs into reaching a verdict. ( Jiminez v.

Myers (9th Cir. 1993) 40 F.3d 976, 979 ( Jiminez ) .)

A fter the jury’s first declaration of impasse, the trial court replaced a

juror who had a preplanned vacation with an alternate and instructed the

jury to begin its deliberations anew. 4 The trial court concluded that the jury

took its admonition to start again “very seriously ,” noting that the jury

“wanted all their questions back so they could reevaluate.” Thus, when the

reconstituted jury declared an impasse midday on August 25

, it had only

been deliberating for two and a half days. Moreover, as the trial court noted,

August 23 had been a shortened day and there h ad been some rereads on

both August 23 and 24. Under the circumstances, w e see no abuse of

discretion in the trial court’s decision to continu e deliberations in this serious

case

.

Nor do we see any coercion. T he court imposed no pressure on the jury

to secure a ve rdict

. It simply as ked the jury to deliberate further and

indicated a willingness to help in any way it could. In addition , since the

trial court was unaware of the numerical division of the jury

, the court’s

request that the jury continue deliberating cannot be seen as an attempt to

coerce any particular holdout jurors. ( Compare Jim i nez
, supra
, 40 F.3d at

pp. 980

– 9 81 [ finding trial court’s instruction to a deadlocked jury to continue

deliberating amounted to undue coercion where the court elicited the

4 Patterson does not challenge the propriety of this excusal.11

progression in the voting, expressed its approval of that progression

, and

effectively instructed the jurors to make every effort to reach a unanimous

verdict] .)

The trial court’s treatment of the two jurors with potential employme nt

and financial issues is no more problematic. Neither juror pushed for

excusal . Moreover, the court made clear to both that they could revisit the

issue if an actual hardship arose and that it would consider their concerns.

The jurors did not renew th eir requests during the next three and a half days

of deliberations. And, indeed, the fact that active deliberations continued

during this timeframe suggests that the jury had overcome whatever impasse

it had reached earlie r . ( Debose

, supra
, 59 Cal.4th a t p. 209; People v. Cook

(2006) 39 Cal.4th 566, 615

– 616 .) In short, directing further deliberations was

an appropriate “ ‘ “ ‘means of enabling the jurors to enhance their

understanding of the case.’ ” ’ ” ( Debose

, at p. 209 ; see People v. Johnson

(2015) 61 Cal.4th 734, 770 [no coercion where “[t] he trial court never

indicated a preference for a particular verdict, it did not exert pressure on

any juror, nor did it express any exasperation about the jury’s

deliberations”].)

II. Claims of Prosecutorial Misconduct

Patterson next contends that the prosecutor committed prejudicial

misconduct in violation of his state and federal constitutional rights to due

process and a fair trial. “ ‘ The standards governing review of misconduct

claims are settled. “ A prosecutor who uses deceptive or reprehensible

methods to persuade the jury commits misconduct, and such actions require

reversal under the federal Constitution when they infect the trial with such

‘ “ unfairness as to make the resulting conviction a denial of due process. ” ’ ” ’ ”

( People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1266.) “ ‘Prosecutorial12

misconduct that falls short of rendering the trial fundamentally unfair may

still constitute misconduct under state law if it involves the use of deceptive

or reprehensible methods to persuade the trial court or the jury. ’ ” ( People v.

Jablonski (2006) 37 Cal.4th 774, 835

. )

However, “[m] isconduct that does not constitute a federal constitutional

violation warrants reversal only if it is reasonably probable the trial outcome

was affected. ” ( People v. Shazier (2014) 60 Cal.4th 109, 127 .) Moreover, “ ‘ a

defendant may not complain on appeal of prosecutorial misconduct unless i n

a timely fashion

— and on the same ground

— the defendant made an

assignment of misconduct and requested that the jury be admonished to

disregard the impropriety

, ’ ” where such a request would not have be en futile.

( People v. Stanley (2006) 39 Cal.4th 913, 952; People v. Hill (1998) 17 Cal.4th

800, 820

, overruled on another ground in Price v. Superor Court (2001) 25

Cal.4th 1046, 1069, fn.13 .) W e conclude that Patterson has forfeited both of

his misconduct claims.

Patterson contends on appeal t hat the prosecutor improperly appealed

to the passions of the jury by presenting Ms. Pavon in a sympathetic light.

He points to many sympathetic facts about the victim that the prosecutor

elicited during her examination of witnesses and underscored during closing

argument. For example

, when questioning Ms. Pavon’s daughters regarding

their mother, the daughters testified that Ms. Pavon ’s husband was an

Oakland firefighter who had died in 2002 ; that their mother did her own

finances and drove her own car, but had recently been having some problems

with one of her hip s ; that she got her hair done every Thursday; that she was

in a happy mood and looking forward to a family trip to Disneyland before

her death ; that she was reading a romance novel about a firefighter when she

was shot; and that her companion, a dog named Nikki, was with her when13

she died. During closing, the prosecutor reiterated many of these facts and

described Ms. Pavon as having been murdered whi le “sitting on her couch, in

her jammies, reading a romance novel about a fireman, next to her elderly

dog, her old border collie Nikki.”

“ ‘ “ It is, of course, improper to make arguments to the jury that give it

the impression that ‘ emotion may reign ov er reason, ’ and to present

‘ irrelevant information or inflammatory rhetoric that diverts the jury ’ s

attention from its proper role, or invites an irrational, purely subjective

response. ’ ” ’ ” ( People v. Vance (2010) 188 Cal.App.4th 1182, 1192.) Thus,

“ ‘[i] t has long been settled that appeals to the sympathy or passions of the

jury are inappropriate at the guilt phase of a criminal trial.’ ” ( Ibid .; see

People v. Jackson (2009) 45 Cal.4th 662, 691 [“ ‘an appeal for sympathy for

the victim is out of plac e during an objective determination of guilt’ ” ] .) We

need not determine, however, whether the prosecutor ’s conduct in this case

rose to the level of misconduct under th e standard here articulated because,

as Patterson acknowledges

, defense counsel did not object to th e prosecutor’s

line of questioning or her closing argument on this basis and has therefore

forfeited the issue. Further, nothing in the record indicates an objection

would have been futile or that curative action would have been ineffectiv e,

and Patterson does not argue otherwise.

Patterson suggests that we exercise our discretion to nevertheless

reach the merits of his misconduct claim ( s ee People v. Williams (1998)

17 Cal.4th 148, 161

– 162, fn. 6 ), but we decline to do so. Defense counse l,

himself, underscored Ms. Pavon’s status as a sympathetic victim, stating in

closing that the case was about “a beloved person who was injured who did

nothing to provoke it and whose family members . . . suffered tremendous

losses, without any provocatio n or anticipation of that.” Later, he reiterated:14

“Ms. Pavon was an incredible mom and an incredible person. She had an

active lif e . She had a future even at her age . She was planning to do things

with her family.” But he stressed that “sympathy, whi ch is human and

understandable, . . . has to be left behind at this stage.” He then urged the

jury to follow the court’s instructions and look at the facts, arguing that the

only thing tying Patterson to the crime was the testimony of Harris , which

was “simply not believable

. ”

D efense counsel appears to have pursu ed a strategy of embracing the

fact that Ms. Pavon was a sympathetic victim who was tragically killed , while

at the same time distancing Patterson from the crime. And, indeed, this

apparent tactical decision seems t o have been at least partly successful given

the jury’s failure to find that Patterson was the shooter

, despite Harris’ s

t estimony to the contrary

. The decision “ whether to object is inherently

tactical

. ” ( People v. Williams ( 2017 ) 7 Cal.App.5th 644

, 686 ( Williams ) ; see

People v. Riel (2000) 22 Cal.4th 1153, 1197 [ “ competent counsel may often

choose to forgo even a valid objection ”].) Patterson may not now complain of

conduct by the prosecutor that his trial counsel adopted fo r his own ends.

Patterson’s second claim

— that the prosecutor ’ s frequent references to

the charged homicide as a “ murder ” constituted prosecutorial misconduct

— is

also forfeited

. During the examination of witnesses throughout the trial, the

prosecutor referred to the killing of Ms. Pavon as a “ murder ” over 90 times.

For example, when questioning Harris, the prosecutor asked him if he had

gloves on before Ms. Pavon’s “ murder ” and r epeatedly questioned him about

other crimes committed before Ms . Pavon’s “ murder. ” Our high court has

held that a “ killing ” should not be “ characterized as ‘ murder ’ in advance of a

verdict so finding. ” ( People v. Garbutt (1925) 197 Cal. 200, 209 ( Garbutt ) ; see

People v. Price (1991) 1 Cal.4th 324, 480 ( Price ) [ “ Although it would be15

improper for a prosecutor to use the term ‘ murder’ in questioning a witness

about an unadjudicated killing , a prosecutor is of course free to argue to the

jury, after all the evidence had been presented, that it should find that a

killing was murder. ”] .)

Defense counsel, however, never objected to the prosecutor’s use of the

murder descriptor, forfeiting th e argument, and we decline to exercise our

discretion to reach the merits of the claim. This is precisely the type of

situation that could have been remedied by an early objection , giving the trial

court the opportunity to halt the practice or at least av oid any

misunderstanding over the prosecutor ’ s use of the term “murder

. ” (See

, e.g.,

Garbutt

, supra , 197 Cal. at p. 209 [finding no improper influence on jury from

use of the term “ murder ” where an objection was made, and the jury was

promptly admonished] ; see also Williams

, supra
, 7 Cal.App.5th at p. 686 ;

People v. Taylor (1982) 31 Cal.3d 488, 496 [ “ A timely objection allows the

court to remedy the situation before any prejudice accrues

. ” ].) Moreover, i t

seems likely defense counsel did not lodge such an objection in this case

because , as discussed above, the defense did not dispute that Ms. Pavon had

been murdered , arguing instead that Patterson was not involved in the

killing. (Compare People v. Hines (1997) 15 Cal.4th 997, 1045 [where

defendant did not dispute victims had been murdered, but denied he was the

murderer, counsel was not ineffective for failing to object to prosecutor’s

repeated references to victims’ deaths as “murders” because there was no

reason to do so] ; ibid. [concluding, given evidence that the victims “were shot

at close range in the course of a burglary” that “it would have been absurd for

defendant to argue that the killings were not murders” ] .)

Ind eed, during defense counsel’s closing argument, he acknowledged

the heinous nature of Ms. Pavon’s murder, suggesting that the jury must16

nevertheless look to the evidence in determining whether Patterson should be

held accountable

. He stated , for example : “ You saw some of the most

horrible things that you’ll ever see in this case, a woman on a couch, reading

a romance novel, who has been murdered. You heard from the doctor, the

medical examiner, you heard from the family members and saw pictures of

Ms. Pavon in life through the testimony of family members, you saw

Ms. Pavon in death through the autopsy photos. [¶] .

. . [¶] Those are about

the results of th e murder, ladies and gentlemen. It is not about who is guilty,

however, of the murder. It’s not about the law that overrides this case. We

must be very careful in looking at the result in order to try and achieve a

conviction, as opposed to actually loo king at the evidence as the law requires

you to do in order to see how or why or under what circumstances the death

was obtained.” It is h ard to discern any possible prejudice under the

circumstance s . ( Compare Price

, supra
, 1 Cal.4th at p. 480 [ finding n o

prejudice from use of term “ murder ” where the evidence “plainly supported a

finding of murder, and the defense, while attacking the credibility of the

prosecution ’ s witnesses, did not present any affirmative evidence to support a

finding that the killing was self

- defense or manslaughter” ].) We see no basis

to reach the merits of Patterson’s claim.

Patterson finally asks that we consider cumulative prejudice in viewing

the impact of the alleged trial errors he has asserted on appeal. However,

s ince we have identified no errors in the proceedings below, there is nothing

here to cumulate. ( See People v. Griffin (2004) 33 Cal.4th 536, 600

,
disapproved on another ground as stated in People v. Riccardi (2012)

54 Cal.4th 758, 824, fn. 32 .)17

III. Patterson Has Forfeited His Dueñas Challenge s

At sentencing in this matter, the trial court ordered Patterson to pay

certain fines, fees, and assessments, including a $250 probation investigation

fee ( § 1203 .1b ); a $60 c ourt facilities assessment (Gov. Code, § 70373); an $80

court operations assessment (§ 1465.8); and a $10,000 restitution fine

(§ 1202.4, subd. (b)). In addition, the court ordered direct restitution in the

amount of $6

, 4 14.09 to be paid into the restitution fund pursua nt to section

1202.4, subdivision (f). Relying on People v

. Dueñas (2019) 30 Cal.App.5th

1157 ( Dueñas ), Patterson argues that the trial court erred by imposing these

various exactions without determining his ability to pay. We decline to reach

th e s e forf

eited claim s

. 5

First , we will not consider any challenge to the trial court’s order with

respect to direct victim restitution under section 1202.4, subdivision (f). As

the Attorney General points out, although Patterson mentions this award in

his briefin g , it is unclear that he is contesting it. Courts address ing the issue

have “ distinguished between direct victim restitution that reimburses victims

for economic losses caused by a defendant ’ s conduct and the restitution fine

5 There is considerable disagreement among appellate courts regarding

whether Dueñas was correctly decided. “ Although several Courts of Appeal
have adopted [the Dueñas ] due process analysis, others have concluded

Dueñas was wrongly decided or that an Eighth Amendment analysis under the excessive fines clause is doctrinally preferable.” ( People v. Belloso (2019)
42 Cal.App.5th 647, 649 ( Belloso ) [recognizing split of authority and
reaffirming Dueñas ], review granted Mar

. 11, 2020, S259755; see People v.

Hicks (2019) 40 Cal.App.5th 320, 326

– 329 [ rejecting Dueñas ], review granted
Nov. 26, 2019, S258946; Peop le v. Aviles (2019) 39 Cal.App.5th 1055, 1061,

1067

– 1070 [rejecting Dueñas but concluding a challenge to imposition of fines
and fees should be analyzed under the excessive fines clause ].) The Supreme
Court has granted review in a case likely to resolve these disputes. (See
People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019,
S257844.) B ecause we decline to reach the merits of Patterson’s Dueñas
claims, we need not wade into th is debate

.18

imposed to punish the defendant” and have declined to extend the rule

announced in Dueñas to direct victim restitution. ( Belloso

, supra
,

42 Cal.App.5th at p. 658, fn. 8; see People v. Abrahamian (20 20 )

45 Cal.App.5th 314, 3 3 8 ; People v. Evans (2019) 39 Cal.App.5th 771, 777.)

Patterson’s Dueñas argument does not attempt to address this

important distinction . In fact, it provides no reasoned analysis of any kind

with respect to the application of Dueñas to direct victim restitution. We

conclude that Patterson has failed to ra ise the issue in a manner sufficient to

warrant our appellate consideration. ( People v. Stanley (1995) 10 Cal. 4th

764, 793 [where no “ ‘ legal argument with citation of authorit ies’ ” is

furnished on a particular point, “ ‘the court may treat it as waived, and pass

it without consideration ’ ” ] .)

Turning to the $10,000 restitution fine at issue, section 1202.4 requires

the imposition of such a fine upon conviction of a crime , unless the court

“finds compelling and extraordinary reasons for not doing so.” (§ 1202.4,

subd. (b).) The minimum restitution fine for felony convictions is $300, and

the maximum fine is $10,000. ( Id. , subd. (b)(1).) The statute expressly

provides that “[a] defendant’s inability to pay shall not be considered a

compelling an d extraordinary reason not to impose a restitution fine.” ( Id.

, subd. (c).) However, “[i] nability to pay may be considered

. . . in increasing

the amount of the restitution fine in excess of the minimum fine pursuant to

paragraph (1) of subdivision (b).” ( Ibid. ) T he burden of demonstrating such

inability to pay lies with the defendant. ( Id. , subd. (d); see People v.

Castellano (2019) 33 Cal.App.5th 485, 490 [“Consistent with Dueñas

, a

defendant must in the first instance contest in the trial court his or her

ability to pay.”] .)19

Here, Patterson concedes he did not object to imposition of the

maximum restitution fine

. S uch an objection clearly would not have been

futile as trial courts are statutorily authorized to consider a defendant’s

inability t o pay any restitution fine above the statutory minimum. (§ 1202.4,

subds. (c) & (d).) Accordingly, we conclude that Patterson forfeited any

challenge to the restitution fine. (See People v. Smith (2020) 46 Cal.App.5th

375, 395 ( Smith ) [failure to object to imposition of maximum restitution fine

on inability

- to

- pay grounds resulted in forfeiture of claim] ; People v. Gutierrez

(2019) 35 Cal.App.5th 1027, 1032

– 1033 ( Gutierrez ) [ same, noting that “even

before D ueñas a defendant had every incentive to object to imposition of a

maximum restitution fine based on inability to pay’ ” ]; People v. Frandsen

(2019) 33 Cal.App.5th 1126, 115 4 ( Frandsen ) [same].)

Moreover, several courts have held that, where a defendant does not

object to impo sition of the maximum restitution fine on grounds of inability to

pay, such failure also forfeits claims of inability to pay “much smaller”

criminal assessment s. ( Smith

, supra , 46 Cal.App.5th at p. 395 ; see Gutierrez

,

supra
, 35 Cal.App. 5th at p. 1033 [ “As a practical matter, if Gutierrez chose

not to object to a $10,000 restitution fine based on an inability to pay, he

surely would not complain on similar grounds regarding an additional $1,300

in fees.” ]; Frandsen

, supra
, 33 Cal.App.5th at p. 1154 [“Giv en his failur e to

object to a $10,000 restitution fine based on inability to pay, Frandsen has

not shown a basis to vacate assessments totaling $120 for inability to pay.”].)

We agree. Unlike the Duenas defendant, Patterson had a statutory right to

an ability

- to

- pay hearing that he did not exercise, thus forfeiting his

appellate claim that such a hearing was required. Had he requested such a

hearing, t he same evidence relevant to his in ability to pay the $1 0

, 0 00

restitution fine could also have establi shed an inability to pay these smaller20

assessments. We t hus conclude that Patterson has forfeited the opportunity

to raise an ability

- to

- pay challenge with respect to the court facilities and

court operations assessments imposed under section 1465.8 and Government

Code section 70373

. 6

DISPOSITION

The judgment is affirmed.

6 To the extent that Patterson is also contesting imposition of the $250
probation investigation fee pursuant to section 1203.1b on grounds of ability
to pay, th is issue is similarly forfeited. That statute expressly provides for an

abi lity

- to

- pay hearing at the request of the defendant, and Patterson was

advised of this fact but declined to pursue the matter

. ( People v. Snow (2013)
219 Cal.App.4th 1148, 1151 [ability

- to

- pay challenge to costs of presentence
investigation report subject to forfeiture rule].)21 _________________________ Sanchez, J.

WE CONCUR:

_________________________ Margulies, Acting P. J.

_________________________ Banke, J.

A156047 People v. Patterson