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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

PEOPLE OF THE STATE OF 

CALIFORNIA,

Plaintiff and Respondent,

v.

AYODELE PATTERSON,

Defendant and Appellant.

 A156047

 (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 burglary. On appeal, Patterson contends 

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

jury to continue deliberations after the jury twice declared it had reached an 

impasse. Patterson also alleges 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 imposed various fines, fees, and other exactions at 

sentencing without determining his ability to pay. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Carolyn June Pavon lived with her dog in the family home 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 about once per week. M.G. and her granddaughter visited 

Ms. Pavon on Thursday, June 24, 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 on Saturday, June 26. On Sundays, Ms. Pavon regularly went to 

dinner at M.L.’s home. On Sunday, June 27, 2010, when Ms. Pavon did not 

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

husband drove to Ms. Pavon’s house.

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 alive. 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 abandoned 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 that 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 September 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 get a plea deal which carried a 12-year 

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

Patterson’s trial commenced in 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, on 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. 

Patterson mentioned there was an older dog on the premises.

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

backyard where it was dark. He 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. Pavon 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 about to do 

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

the living room, said, “Give 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 description 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 them 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 introduced at 

trial to impeach Harris. 
5

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

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

love ya, 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 fuckin’ mouth shut. I don’t understand.” 

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

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

him to say nothing, Patterson was recorded telling Harris—who was in a 

nearby 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.”

In 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 true the lesser firearm enhancement—that Patterson personally used a 

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

the jury concluded that Patterson did not personally discharge a firearm 
6

(§§ 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 

restitution 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 itself deadlocked violated his Sixth and 

Fourteenth Amendment rights to due process and a fair trial. Specifically, he 

asserts 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 coerced the 

verdict. The record does not support his claims. 

a. Additional Background

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

deliberate in this 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 days of 

deliberations, and most of the time they have been waiting for answers to 
7

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

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

after August 22, the court excused the jury for the day, excused juror 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 

beginning. 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 further 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. The 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 might
8

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

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

The 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 juror No. 10’s note that he had been asked to return to work by 

Monday, August 29. When the court stated, “We 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 

deliberations 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 juror 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, “Just letting you know that it’s a problem,” the court stated,

“When it becomes such a problem that you are 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 requesting 
9

a readback—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 proper, 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, even 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 the 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 jurors into reaching a verdict. (Jiminez v.

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

After 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 had been some rereads on 

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

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

case. 

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

to secure a verdict. It simply asked 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 Jiminez, supra, 40 F.3d at 

pp. 980–981 [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 employment 

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 their 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 earlier. (Debose, supra, 59 Cal.4th at 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.) “ ‘Prosecutorial 
12

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 in

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 been 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.) We conclude that Patterson has forfeited both of

his misconduct claims.

Patterson contends on appeal that 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 hips; 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 when 
13

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

described Ms. Pavon as having been murdered while “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 over 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 place 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 the standard here articulated because,

as Patterson acknowledges, defense counsel did not object to the 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 ineffective, 

and Patterson does not argue otherwise.

Patterson suggests that we exercise our discretion to nevertheless 

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

17 Cal.4th 148, 161–162, fn. 6), but we decline to do so. Defense counsel, 

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 provocation or anticipation of that.” Later, he reiterated: 
14

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

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

with her family.” But he stressed that “sympathy, which 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.”

Defense counsel appears to have pursued 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 to have been at least partly successful given 

the jury’s failure to find that Patterson was the shooter, despite Harris’s

testimony 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 for 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 repeatedly 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 be 
15

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 the 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 avoid 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, it 

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”].) 

Indeed, during defense counsel’s closing argument, he acknowledged 

the heinous nature of Ms. Pavon’s murder, suggesting that the jury must 
16

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 the 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 looking 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 hard to discern any possible prejudice under the 

circumstances. (Compare Price, supra, 1 Cal.4th at p. 480 [finding no 

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, 

since 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 Challenges

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 court 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 $6,414.09 to be paid into the restitution fund pursuant 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 

these forfeited claims.

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 briefing, it is unclear that he is contesting it. Courts addressing 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; People 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.) Because we decline to reach the merits of Patterson’s Dueñas

claims, we need not wade into this 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 (2020) 

45 Cal.App.5th 314, 338; 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 raise 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 authorities’ ” 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 and 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.) The 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. Such an objection clearly would not have been 

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

inability to 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 Dueñas 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, 1154 (Frandsen) [same].)

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

object to imposition of the maximum restitution fine on grounds of inability to 

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

criminal assessments. (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 [“Given his failure 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, the same evidence relevant to his inability to pay the $10,000 

restitution fine could also have established an inability to pay these smaller 
20

assessments. We thus 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, this issue is similarly forfeited. That statute expressly provides for an 

ability-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