Filed 4/28/23 P. v. Lopez CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID LOPEZ,

Defendant and Appellant.

 B314158

 (Los Angeles County

 Super. Ct. No. BA480221)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Renee Korn, Judge. Affirmed as modified.

Gary V. Crooks, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Scott A. Taryle and David A. Voet, Deputy 

Attorneys General, for Plaintiff and Respondent.

__________________________________
2

David Lopez appeals from a judgment entered after a jury 

found him guilty of two counts of criminal threats with personal 

use of a deadly or dangerous weapon (a knife) and three counts of 

assault with a deadly weapon (the knife). After Lopez admitted 

he had a prior strike conviction, the trial court sentenced him to 

six years in prison. He raises numerous contentions on appeal, 

including (1) the prosecution failed to prove he did not act in selfdefense, (2) the court gave the jury “misleading” and “confusing” 

instructions on self-defense and the weapon enhancement, (3) the 

court erred in answering a question from the jury, and (4) the 

court erred in imposing a restitution fine and assessments 

without considering his ability to pay. For the reasons explained 

below, we affirm the judgment, as modified to correct clerical 

errors regarding assessments the trial court imposed.

BACKGROUND

I. Evidence of the Facts and Circumstances of the 

Crimes as Presented at Trial

At night, on August 7, 2019, Paula Farfan, her friend 

Luzangela Zelaya, Zelaya’s boyfriend Jeffrey Hernandez, and 

Hernandez’s friend Pepe went to a bar.1 They drank alcohol

there and left after around an hour and a half. They walked to 

the parking lot where Zelaya’s car was parked, with Hernandez 

and Pepe each holding a skateboard. Defendant Lopez and his 

friend (who was not identified at trial) were in a smoking area 

outside the bar that was separated from the parking lot by

1 Farfan, Zelaya, and Hernandez testified at trial for the 

prosecution. The defense did not present any witnesses. The 

identity of Hernandez’s friend was not established at trial. 

Zelaya testified that the friend used the nickname Pepe, so we 

will refer to him by that name in this opinion. 
3

fencing with a gate. An interaction and altercation between the 

two groups was captured on surveillance video from the bar that 

the prosecution played for the jury during the testimony of 

Farfan, Zelaya and Hernandez. We have reviewed the 

surveillance video.

According to the witnesses’ testimony, Zelaya walked up to 

the fence and asked defendant Lopez and his friend for a 

cigarette. Hernandez also asked someone behind the fence about 

a vehicle that was blocking Zelaya’s car from exiting the parking 

lot. Hernandez walked away, toward Zelaya’s car. Farfan 

walked over to the fence to see what Zelaya was doing. Farfan 

and Lopez introduced themselves to each other while Zelaya 

talked to Lopez’s friend. Lopez asked Farfan for her telephone 

number, which she declined to provide, telling him she would 

give him contact information for her Instagram account instead. 

According to Farfan, Lopez became angry and made a “snap 

comment” back to her, and she walked away. She went to

Zelaya’s car and put her purse inside. Meanwhile, either Lopez 

or his friend offered Zelaya the cigarette he was smoking and 

joked that he had the herpes virus. This upset Zelaya and she 

returned the cigarette. In response, Lopez or his friend called 

Zelaya a “bitch.”

2 Zelaya walked over to her car where Farfan 

was waiting. 

2 According to Zelaya’s trial testimony, this exchange 

regarding the cigarette, including use of the derogatory term, was 

between her and Lopez. Hernandez also testified at trial that it 

was Lopez who referred to Zelaya by the derogatory term. 

According to Farfan’s trial testimony and Zelaya’s preliminary 

hearing testimony (which the defense used to impeach Zelaya), 

the exchange regarding the cigarette, including use of the 

derogatory term, was between Zelaya and Lopez’s friend. This 
4

Upon overhearing this exchange, Hernandez approached 

Lopez and his friend (from the other side of the fence) and told 

them not to be disrespectful and not to call Zelaya a “bitch.” 

Then, Hernandez walked away, toward Zelaya’s car. Lopez and 

his friend came around the fence into the parking lot and 

approached Hernandez and Pepe. It appeared to Hernandez that 

Lopez and his friend were mad and wanted to fight with 

Hernandez. Lopez or his friend grabbed the skateboards away 

from Hernandez and Pepe, and words were exchanged between 

the two groups of men. Pepe took the skateboards back.

Lopez grabbed Hernandez, and Hernandez “pushed him 

away warning him, like, dude, don’t. Just stop. Leave. I’ll really 

do something.” Hernandez stated at trial that he “held [him]self” 

back because Lopez was “not worth it.” He did not want to 

engage in a physical altercation because he was on probation (for 

a robbery), and he would get in trouble if he fought.

3 Hernandez 

retrieved his skateboard (presumably from Pepe). He stated that 

he did not use it as a weapon. Zelaya pushed one of the men 

(Lopez or his friend) away from Hernandez because she did not 

want Hernandez to fight.4 Lopez pulled out a knife, held it down 

at his side, and moved within an inch of Hernandez. Hernandez 

inconsistency is not material to our resolution of the issues on 

appeal.

3 Between the time of the incident and trial, Hernandez 

was convicted for a domestic violence incident with Zelaya. They 

were no longer dating at the time of trial and a protective order 

prohibited them from having contact with each other.

4 During her trial testimony, Zelaya sometimes used the 

words “he” and “him,” without specifying whether she was 

referring to Lopez or his friend.
5

backed up.5 Hernandez testified that he swung his skateboard at 

Lopez but did not hit him with it, knowing that he could act in 

self-defense to save his life.6 He was angry at that point about 

the situation and was concerned about Zelaya and Farfan. He

shoved Lopez, and Lopez’s friend separated them. Hernandez 

took off his shirt in preparation for a fight because he did not 

want the blade to get caught on his shirt if Lopez tried to strike 

him with the knife. Hernandez testified that he did not start the 

fight.

At some point during the altercation between Hernandez 

and the two men, Farfan told Lopez “to stop harassing [her] 

friends.” According to Farfan’s trial testimony, Lopez came 

within 12 to 18 inches of her, looked directly into her eyes, and 

pointed the knife at her as he threatened to rape and kill her. 

Lopez’s friend held him back as he moved toward her. She was 

scared and believed Lopez would carry out the threats based on 

his actions. At trial, the prosecutor showed Farfan a knife, and 

she identified it as the knife Lopez used. As the prosecutor 

played the surveillance video during her testimony, Farfan noted 

the video depicted the point when she leaned back because Lopez 

5 At trial, the parties agreed the knife could not be seen on 

the video. As Hernandez watched the video on the stand, he 

testified that the reason he backed up as depicted in the video is 

because he saw the knife for the first time.

6 Later in his testimony, Hernandez stated he did not recall 

if he had his skateboard in his hand at this point in the 

altercation. At some point, he placed the skateboard in the trunk 

of Zelaya’s car. The parties agreed at trial that the video does not 

show Hernandez swinging his skateboard at Lopez (or using it 

during the altercation).
6

pointed the knife at her. Farfan testified that she did not initiate 

an altercation with Lopez. 

According to Zelaya’s trial testimony, around the same time 

Lopez threatened Farfan, Lopez looked Zelaya in the face and 

threatened to kill her and rape her mother, with the knife raised 

above his head and pointed toward the ground. Lopez was 

around 12 to 18 inches away from Zelaya when he made these

threats and waved the knife.

7 Lopez’s friend was holding him 

back. Zelaya felt “scared for [her] life.” At trial, the prosecutor 

showed Zelaya a knife, and she identified it as the knife Lopez 

used. Zelaya testified that she did not do anything to provoke 

Lopez’s conduct. 

Farfan was standing behind Zelaya’s car after Lopez 

threatened her. Thereafter, she walked around to the passenger 

side, opened the car door, and retrieved her purse. She removed

a knife she carried in her purse and showed it to Lopez.8 She told 

him to stop, but he continued threatening to rape and kill her as 

he held his knife. She told him that if he hurt her, she would 

hurt him. 

Around 30 seconds later, Farfan took out her cell phone 

and dialed 911 to report the incident. The prosecutor played the 

audio of the 911 call at trial, and the court marked for 

identification a transcript of the call. The 911 operator told 

7 At trial, Zelaya and Farfan each demonstrated the 

distance between herself and Lopez at the time Lopez pointed the 

knife and made the threats and, in each instance, the trial court 

estimated the distance as 12 to 18 inches. 

8 At trial, the parties agreed that neither the knife Farfan

testified she displayed, or the knife witnesses testified Lopez 

used, could be seen on the bar’s surveillance video.
7

Farfan to find a safe place, and Farfan entered the front 

passenger seat of Zelaya’s car. Zelaya got into the driver’s seat 

and Hernandez and Pepe climbed into the backseat. As reflected 

in a portion of the transcript of the 911 call, which the prosecutor 

read into the record, Farfan informed the operator, “He is 

literally coming at me right now. Oh my god, oh my god, oh my 

god, no.” According to Farfan’s trial testimony, at this point, 

Lopez opened the car’s front passenger side door and tried to pull 

her out of the car. She resisted, pulling away from him. She 

believed she saw the knife in his hand but was not positive.9 

Hernandez testified that he exited the car, grabbed his 

skateboard from the trunk, and swung it toward Lopez to get 

Lopez to back up. Hernandez did not hit Lopez with the 

skateboard.10

Los Angeles Police Department Officer Julio Aguilar, who 

testified at trial, was on patrol near the bar where this incident 

occurred. As he and his partner drove by in their patrol car, 

Aguilar noticed a physical altercation in the bar’s parking lot. 

Aguilar parked the car and exited. He heard people shouting, 

9 When Farfan spoke to an officer at the scene that night, 

she told the officer that Lopez opened the car door and tried to 

grab her, but she did not believe he actually touched her. At 

trial, after seeing the surveillance video, she recalled that Lopez 

grabbed her and tried to pull her out of the car. Zelaya and 

Hernandez testified at trial that Lopez actually pulled Farfan out 

of the car, but Farfan testified that she remained in the car. 

Again, such inconsistency is not material to our resolution of the 

issues on appeal.

10 As stated above, the parties agreed at trial that the video 

does not show Hernandez ever swinging his skateboard at Lopez.
8

“ ‘He’s trying to stab me. He’s got a knife.’ ” They pointed toward 

a man (later identified as Lopez). Lopez ran away, entering the 

rear door of the bar and exiting out the front. Aguilar walked to 

the corner and saw Lopez running. Aguilar ordered Lopez to 

stop, but Lopez continued to run. Aguilar broadcast Lopez’s 

description and location over his radio.

Officer Aguilar walked back to the bar’s parking lot and 

interviewed witnesses. Zelaya stated at trial that she believed 

she was the “most clearheaded” of her group to tell the officers 

what happened. She tried to hide from the officers the fact that 

she had been drinking alcohol that night. As Farfan was 

speaking to officers, Zelaya covered Farfan’s mouth and told 

Farfan to be quiet when Farfan indicated she (Farfan) was drunk 

and did not know what was happening. Aguilar interviewed 

Farfan separately, and Farfan disputed Zelaya’s account that 

Lopez grabbed Farfan and pulled her out of the car. No one told 

the police that Farfan had a knife. At trial, Farfan stated she 

was “buzzed” but “lucid” during the incident. 

Officer Emanuel Ramirez, who testified at trial, was on 

patrol when he heard a radio call regarding the description and

general location of a suspect in an assault with a deadly weapon. 

He and his partner responded and drove around, searching for 

the suspect. Ramirez noticed a man (later identified as Lopez) 

moving quickly through the parking lot of a shopping center. 

Ramirez saw Lopez discard an unknown object. Lopez entered a 

liquor store, and Ramirez and his partner detained him. Ramirez 

smelled the odor of alcohol and believed Lopez was under the 

influence. According to Ramirez, Lopez did not have any trouble 

walking. 
9

Officer Lawrence Langer, who also testified at trial, 

assisted with the investigation after Lopez was detained. Officer 

Ramirez asked Langer to search the area for the item Lopez 

discarded. Langer observed a tall structure with a grate on top 

and noticed an item on it. He climbed onto the roof of a patrol 

vehicle in order to view the item. It was a knife, which was then 

photographed as it sat on top of the grate. The photographs were 

admitted into evidence. At trial, Langer opened a sealed 

envelope and identified its contents as the knife he recovered 

from the top of the structure. He could not recall if the knife was 

rusty when he found it, but he recalled that the knife did not 

appear “worn out” and it did not seem like the knife had been on 

top of the structure for a long time. The prosecutor asked him if 

he polished or cleaned the knife before collecting it as evidence,

and he said no. 

Officer Aguilar interviewed Lopez at a police station. The 

prosecutor played a DVD recording of the interview for the jury,

and a transcript of the interview was marked for identification. 

Aguilar testified that Lopez appeared intoxicated at the time of 

the interview. Lopez told Aguilar that he was not present at the 

bar when the incident occurred. 

II. Verdicts and Sentence

The jury found Lopez guilty of two counts of criminal 

threats (Pen. Code,11 § 422, subd. (a)), count 1 against Farfan and 

count 2 against Zelaya, and found true as to each count the 

special allegation that Lopez personally used a deadly or 

dangerous weapon (the knife) in the commission of the criminal 

11 Undesignated statutory references are to the Penal Code.
10

threats (§ 12022, subd. (b)(1)).

12 The jury also found Lopez guilty 

of three counts of assault with a deadly weapon (§ 245, subd. 

(a)(1); counts 4-6) against Farfan, Zelaya, and Hernandez.

Lopez waived a jury trial on prior conviction allegations

and admitted that a prior conviction for assault with a deadly 

weapon constituted a strike (§§ 667, subd. (d) & 1170.12, subd.

(b)) and a serious felony (§ 667, subd. (a)). On March 11, 2020, 

the trial court sentenced him to six years in prison: the low term 

of two years for the assault with a deadly weapon on Farfan

(count 4), doubled to four years for the prior strike, plus one year 

(one-third the middle term) for the assault with a deadly weapon 

on Zelaya (count 5), and one year for the assault with a deadly 

weapon on Hernandez (count 6). The court exercised its 

discretion and dismissed the prior strike as to counts 5 and 6. 

The court imposed and stayed the terms on counts 1 and 2 for the 

criminal threats. Without objection from Lopez the trial court 

imposed the minimum restitution fine of $300, as well as court 

facilities (Gov. Code, § 70373) and court operations (§ 1465.8) 

assessments on the convictions.

On June 29, 2020, while Lopez was awaiting transfer from 

county jail to state prison, the trial court granted Lopez’s motion 

for release on his own recognizance due to the COVID-19 

pandemic. The court allowed Lopez to continue to work as a chef 

during the time he was released. The court stayed his sentence

pending a future hearing. The parties and the court agreed there 

would be no change to the sentence imposed on March 11, 2020,

unless he failed to appear as ordered. At hearings on October 26, 

12 The trial court dismissed count 3 for criminal threats 

against Hernandez after the prosecution’s case-in-chief.
11

2020, January 15, 2021, and March 15, 2021, the court continued 

Lopez’s release. Lopez continued to work as a chef at two 

different restaurants. At a hearing on May 24, 2021, Lopez 

surrendered to custody. He had a total of 873 days of custody 

credit. As agreed, the court stated there would be no change to 

the sentence the court announced on March 11, 2020, as specified 

above.

DISCUSSION

I. The Record Includes Substantial Evidence

Supporting a Finding That Lopez Did Not Act in SelfDefense

At trial, Lopez’s counsel argued to the jury that Lopez acted 

in self-defense. The trial court instructed the jury on that theory

over the prosecution’s objection that the evidence did not support 

it. On appeal, Lopez contends the prosecution presented 

insufficient evidence for the jury to conclude beyond a reasonable 

doubt that he did not act in perfect self-defense. In support of 

this contention, he cites bits and pieces of evidence, taken out of 

context and viewed in a light most favorable to him, in 

contravention of the standard of review. Applying the 

substantial evidence test, as set forth below, we must reject 

Lopez’s challenge to the sufficiency of the evidence.

“It is the prosecution’s burden in a criminal case to prove 

every element of a crime beyond a reasonable doubt. [Citation.] 

To determine whether the prosecution has introduced sufficient 

evidence to meet this burden, courts apply the ‘substantial 

evidence’ test. Under this standard, the court ‘must review the 

whole record in the light most favorable to the judgment below to 

determine whether it discloses substantial evidence—that is, 

evidence which is reasonable, credible, and of solid value—such 
12

that a reasonable trier of fact could find the defendant guilty 

beyond a reasonable doubt.’ [Citations.] The focus of the 

substantial evidence test is on the whole record of evidence 

presented to the trier of fact, rather than on ‘ “isolated bits of 

evidence.” ’ ” (People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)

We “ ‘ “must presume in support of the judgment the 

existence of every fact the trier could reasonably deduce from the 

evidence.” ’ ” (People v. Smith (2005) 37 Cal.4th 733, 739.) “The 

credibility of witnesses and the weight accorded the evidence are 

matters within the province of the trier of fact.” (People v. Ramos

(2004) 121 Cal.App.4th 1194, 1207.) “ ‘An appellate court must 

accept logical inferences that the jury might have drawn from the 

evidence even if the court would have concluded otherwise.’ ” 

(People v. Halvorsen (2007) 42 Cal.4th 379, 419.) “Reversal on 

this ground is unwarranted unless it appears ‘that upon no 

hypothesis whatever is there sufficient substantial evidence to 

support [the conviction].’ ” (People v. Bolin (1998) 18 Cal.4th 297, 

331.)

As the trial court instructed the jury, to prove Lopez was 

guilty of assault with a deadly weapon, one of the elements the

prosecution had to prove is Lopez did not act in self-defense. 

(CALCRIM No. 875; People v. Saavedra (2007) 156 Cal.App.4th 

561, 571 [“the prosecution has the burden to prove a defendant 

did not act in self-defense, because self-defense negates an 

element of the offense”].) The trial court also instructed the jury 

with CALCRIM No. 3470 that “[s]elf-defense is a defense to 

assault with a deadly weapon (Counts 4, 5, and 6) and the lesser 

crime of assault. The defendant is not guilty of that crime if he 

used force against the other person in lawful self-defense. The 

defendant acted in lawful self-defense if: [¶] 1. The defendant 
13

reasonably believed that he was in imminent danger of suffering 

bodily injury or was in imminent danger of being touched 

unlawfully; [¶] 2. The defendant reasonably believed that the 

immediate use of force was necessary to defend against that 

danger; [¶] AND [¶] 3. The defendant used no more force than 

was reasonably necessary to defend against the danger.” 

(CALCRIM No. 3470; see also People v. Minifie (1996) 13 Cal.4th 

1055, 1064-1065; People v. Humphrey (1996) 13 Cal.4th 1073, 

1082-1083.)

After hearing the victims’ testimony and watching the 

altercation unfold on the bar’s surveillance video, the jury 

rejected Lopez’s self-defense theory. On appeal, Lopez asks us to 

reweigh the evidence and reappraise victim credibility, which we 

are not permitted to do under the standard of review.

As a threshold matter, Lopez challenges the credibility of 

evidence demonstrating he had a knife, although each victim 

testified to this fact and Farfan and Zelaya identified at trial the 

knife Officer Langer recovered from the area where Officer 

Ramirez saw Lopez discard an item. The witnesses’ testimony 

constitutes substantial evidence demonstrating Lopez had a 

knife. The credibility of the testimony was a matter for the jury 

to evaluate and resolve.

Lopez points to isolated bits of witness testimony and asks 

us to view those pieces of evidence, and their chronology, in a 

light most favorable to him. He presents a theory that, if he 

pulled out a knife and “did an act with [it] that by its nature 

would directly and probably result in the application of force to a 

person” (CALCRIM No. 875), he did so because Hernandez used 

the skateboard as a weapon against him and Farfan threatened 

him with her knife. Therefore, he argued he acted in self-defense.
14

Lopez cites to Hernandez’s testimony indicating Hernandez 

grabbed his skateboard before Lopez pulled out the knife. 

Hernandez clarified throughout his testimony, however, that he 

did not swing the skateboard at Lopez until after Lopez pulled 

out the knife. It was for the jury to decide whether Lopez pulled 

out the knife because of Hernandez’s actions with the skateboard

and, if so, whether Lopez acted in self-defense. The jury resolved 

these factual questions against Lopez, and we have no cause to 

disturb the jury’s verdicts.

Lopez asserts there is testimony indicating Farfan was 

carrying her purse (containing her knife) during the entire 

incident, and she did not retrieve her purse from the car after 

Lopez threatened her with a knife, as she testified. Assuming for 

purposes of his argument there is testimony that could be 

interpreted in this manner, there is no evidence—only his 

speculation—that Farfan showed her knife or referenced her 

knife before Lopez threatened her with his knife.

The record contains sufficient evidence for the jury to 

conclude beyond a reasonable doubt that Lopez did not act in selfdefense. Substantial evidence demonstrates that Lopez came 

around the fence and grabbed Hernandez. After Hernandez 

pushed Lopez away, and indicated he wanted Lopez to stop, 

Lopez pulled out the knife and came within an inch of 

Hernandez. Substantial evidence also demonstrates Lopez 

pointed the knife at Farfan and Zelaya, although they posed no 

danger to him. We may not reweigh the evidence or reevaluate 

witness credibility in a light more favorable to Lopez.
15

II. The Trial Court Did Not Err in Instructing the Jury, 

and Lopez Has Not Established Ineffective 

Assistance of Counsel

A. CALCRIM No. 3471

At Lopez’s trial, the prosecution requested the court 

instruct the jury with CALCRIM No. 3471, as follows:

“A person who starts a fight has a right to self[-]defense 

only if:

“1. He actually and in good faith tried to stop fighting;

“AND

“2. He indicated, by word or by conduct, to his opponent, in 

a way that a reasonable person would understand, that he 

wanted to stop fighting and that he had stopped fighting.

“If the defendant meets these requirements, he then had a 

right to self[-]defense if the opponent continued to fight.

“However, if the defendant used only non-deadly force, and 

the opponent responded with such sudden and deadly force that 

the defendant could not withdraw from the fight, then the 

defendant had the right to defend himself with deadly force and 

was not required to try to stop fighting, communicate the desire 

to stop to the opponent, or give the opponent a chance to stop 

fighting.” 

Lopez objected to the use of CALCRIM No. 3471, arguing in 

the trial court that a court may give this instruction only if the 

defense (not the prosecution) requests it, and it is not 

inconsistent with the defendant’s theory of the case. Lopez 

asserted the instruction was inconsistent with his theory of the 

case because he disputed he was the initial aggressor who started 

the fight. The trial court overruled Lopez’s objection and gave 

the instruction, finding that sufficient evidence supported the 
16

prosecution’s theory of the case that Lopez was the initial 

aggressor who started the fight. 

On appeal, Lopez contends the trial court erred in 

instructing the jury with CALCRIM No. 3471 for the reasons he 

articulated in the trial court. He also asserts the instruction was 

argumentative because it instructed the jury that he started the 

fight, usurping the jury’s role as factfinder.

“A party is entitled to a requested instruction if it is 

supported by substantial evidence. [Citation.] Evidence is 

‘[s]ubstantial’ for this purpose if it is ‘sufficient to “deserve 

consideration by the jury,” that is, evidence that a reasonable 

jury could find persuasive.’ [Citation.] At the same time, 

instructions not supported by substantial evidence should not be 

given.” (People v. Ross (2007) 155 Cal.App.4th 1033, 1049-1050.) 

“It is error to give an instruction which, while correctly stating a 

principle of law, has no application to the facts of the case.” 

(People v. Guiton (1993) 4 Cal.4th 1116, 1129.)

Substantial evidence presented at trial supported 

CALCRIM No. 3471 because Lopez approached and grabbed 

Hernandez as Hernandez was walking to Zelaya’s car. 

Hernandez testified unequivocally that Lopez was the initial 

aggressor who started the fight. Moreover, Farfan and Zelaya 

testified that Lopez pointed the knife at them, although they had 

done nothing to justify such an assault.

Lopez argues the trial court was precluded from giving this 

instruction because he did not request it (he objected to it) and it 

was inconsistent with his theory of the case. In support of this 

argument, he cites the Bench Notes to CALCRIM No. 3471 which 

state, in pertinent part, “The court must instruct on a defense 

when the defendant requests it and there is substantial evidence 
17

supporting the defense. The court has a sua sponte duty to 

instruct on a defense if there is substantial evidence supporting it 

and either the defendant is relying on it or it is not inconsistent 

with the defendant’s theory of the case.” The Bench Notes 

further state, “When the court concludes that the defense is 

supported by substantial evidence and is inconsistent with the 

defendant’s theory of the case, however, it should ascertain 

whether defendant wishes instruction on this alternate theory.” 

Lopez also referenced these Bench Notes in the trial court, in 

objecting to the instruction.

We disagree with Lopez’s position that the Bench Notes 

indicate the trial court was precluded from giving CALCRIM No. 

3471 under the circumstances of this case. Lopez wanted to 

present a self-defense theory, and the court granted his request 

for jury instructions on that defense over the prosecution’s 

objection. The prosecution requested a pinpoint instruction 

regarding the well-known limitation on self-defense where the 

defendant is the initial aggressor who starts a physical 

altercation. As set forth above, substantial evidence supported 

the instruction and it aligned with the prosecution’s theory of the 

case. Lopez cites no authority, and we are aware of none, holding 

that a trial court is precluded from instructing with CALCRIM 

No. 3471 at the prosecution’s request when the instruction is 

supported by substantial evidence. Having elected to pursue a 

self-defense theory, Lopez is not entitled to veto instructions that 

are applicable to that defense based on the evidence presented.

Lopez also argues CALCRIM No. 3471 was 

“argumentative” because it instructed the jury that he started the 

fight, usurping the jury’s role as factfinder. Not so. The trial 

court instructed the jury with CALCRIM No. 200, which 
18

provides, in pertinent part: “You must decide what the facts are. 

It is up to all of you, and you alone, to decide what happened, 

based only on the evidence that has been presented to you in this 

trial. [¶] . . . [¶] Some of these instructions may not apply, 

depending on your findings about the facts of the case. Do not 

assume just because I give a particular instruction that I am 

suggesting anything about the facts. After you have decided 

what the facts are, follow the instructions that do apply to the 

facts as you find them.” Thus, the jury was informed that if it 

found Lopez did not start the fight, it should disregard CALCRIM 

No. 3471 as inapplicable.

The trial court did not err in instructing the jury with 

CALCRIM No. 3471.

B. CALCRIM No. 3470

Using CALCRIM No. 3470, which we quoted in full above, 

the trial court instructed the jury, in pertinent part, “[s]elfdefense is a defense to assault with a deadly weapon (Counts 4, 5, 

and 6) and the lesser crime of assault.” On appeal, Lopez 

contends the trial court had a sua sponte duty to instruct the jury 

that self-defense is also a defense to criminal threats.13 

We agree with the Attorney General that Lopez forfeited 

this contention on appeal by failing to object to this instruction or 

request clarifying or amplifying language below. While “[i]n 

general, a defendant may raise for the first time on appeal 

instructional error affecting his or her substantial rights,” a 

“party may not argue on appeal that an instruction correct in law 

was too general or incomplete, and thus needed clarification, 

13 At trial, Lopez presented another defense to the criminal 

threats charges—that he lacked the specific intent to make a 

criminal threat due to his intoxication.
19

without first requesting such clarification at trial.” (People v. 

Buenrostro (2018) 6 Cal.5th 367, 428 (Buenrostro); § 1259.) If 

Lopez believed his self-defense theory applied to the criminal 

threats counts, it was incumbent upon him to request a 

modification of CALCRIM No. 3470 so stating.

In any event, a trial court does not have a sua sponte duty 

to instruct on a legal doctrine that is not well-established. 

(People v. Molano (2019) 7 Cal.5th 620, 668-669 (Molano); People 

v. Michaels (2002) 28 Cal.4th 486, 530.) A “ ‘legal concept that 

has been referred to only infrequently, and then with “inadequate 

elucidation,” cannot be considered a general principle of law such 

that a trial court must include it within jury instructions in the 

absence of a request.’ ” (Molano, at p. 668.) We are aware of no 

authority, and Lopez has cited none, holding that self-defense, as 

defined in CALCRIM No. 3470, is a defense to criminal threats.

In the alternative, Lopez contends defense counsel 

rendered ineffective assistance in failing to request that the trial 

court modify CALCRIM No. 3470 to reflect its application to the 

criminal threats counts. He cannot make the requisite showing 

of ineffective assistance of counsel: “(1) that defense counsel’s 

performance fell below an objective standard of reasonableness, 

i.e., that counsel’s performance did not meet the standard to be 

expected of a reasonably competent attorney, and (2) that there is 

a reasonable probability that defendant would have obtained a 

more favorable result absent counsel’s shortcomings.” (People v. 

Cunningham (2001) 25 Cal.4th 926, 1003, citing Strickland v. 

Washington (1984) 466 U.S. 668, 687-694.) “ ‘If the record on 

appeal fails to show why counsel acted or failed to act in the 

instance asserted to be ineffective, unless counsel was asked for 

an explanation and failed to provide one, or unless there simply 
20

could be no satisfactory explanation, the claim must be rejected 

on appeal.’ ” (Cunningham, at p. 1003.)

Given the lack of authority indicating self-defense is a 

defense to criminal threats, we cannot conclude defense counsel 

was incompetent for not requesting the modification to 

CALCRIM No. 3470 that Lopez suggests here. Moreover, Lopez 

cannot satisfy the prejudice element of an ineffective assistance 

of counsel claim. The jury rejected his argument that he acted in 

self-defense when he pointed the knife at Farfan and Zelaya, and 

found him guilty of assault with a deadly weapon (after being 

instructed that self-defense is a defense to this crime). There is 

no reasonable probability the jury would have acquitted him of 

criminal threats if the trial court had modified CALCRIM No. 

3470 to reflect that it applied to the criminal threats counts. 

Lopez made the threats at the same time he pointed the knife at 

Farfan and Zelaya. The jury concluded it was not reasonable for 

him to believe he “was in imminent danger of suffering bodily 

injury or was in imminent danger of being touched unlawfully”

when it rejected his self-defense theory on the assault with a 

deadly weapon counts. (CALCRIM No. 3470.) 

There was no error here.

C. CALCRIM No. 221

Lopez contends CALCRIM No. 221, an instruction 

pertaining to the deadly or dangerous weapon enhancement on 

the criminal threats counts (counts 1 & 2) “was confusing and 

misleading” and implied that the prosecution was not required to 

prove the other counts (counts 4-6 for assault with a deadly 

weapon) beyond a reasonable doubt. The contention lacks merit.
21

During a conference on jury instructions, the trial court 

specifically asked the parties to review CALCRIM No. 221. After 

doing so, defense counsel responded, “That looks good.” 

Using CALCRIM No. 221, the trial court instructed the 

jury as follows:

“The People are required to prove the allegations, as to 

Counts 1 and 2, beyond a reasonable doubt.

“Proof beyond a reasonable doubt is proof that leaves you 

with an abiding conviction that the allegation is true. The 

evidence does not need to eliminate all possible doubt because 

everything in life is open to some possible or imaginary doubt.

“In deciding whether the People have proved the allegation 

beyond a reasonable doubt, you must impartially compare and 

consider all the evidence that was received during this trial. 

Unless the evidence proves the allegation beyond a reasonable 

doubt, you must find that the allegation has not been proved and 

disregard it completely.”

Immediately after the trial court read this instruction to 

the jury, the prosecutor requested to approach the court. The 

following exchange occurred at sidebar:

“[The prosecutor]: I apologize, Your Honor. I should have 

caught it before. It appears [CALCRIM No.] 221, it says that 

they have to find beyond a reasonable doubt in Counts 1 and 2. 

It does not say 4, 5, 6.

“The Court: The special allegation is only alleged as to 1 

and 2, I believe.

“[The prosecutor]: Is that only for the special allegation? I 

apologize.

“The Court: The Court has shown the parties the felony 

information in this case that the special allegations only apply to 
22

Count 1 and 2.” Neither side requested any modification to the 

instruction.

On appeal, Lopez argues the jury would not have known 

CALCRIM No. 221 applied to the special allegations on the 

deadly or dangerous weapon enhancement. He posits the jury 

could have believed “allegations” referred to all charges or 

elements of the charged offenses, and the jury therefore would 

have interpreted this instruction to mean the prosecution only 

needed to prove counts 1 and 2 beyond a reasonable doubt, and 

not counts 4, 5, and 6. He asserts the trial court should have 

inserted the word “enhancement” before the word “allegations” in 

CALCRIM No. 221.

We agree with the Attorney General that Lopez forfeited 

this contention on appeal by failing to object below or request an 

additional or clarifying instruction. (See People v. Dennis (1998) 

17 Cal.4th 468, 514; Buenrostro, supra, 6 Cal.5th at p. 428.) He

again asserts ineffective assistance of counsel, which he cannot 

establish for the reasons set forth below. 

Considering the entire charge, as we are required to do 

when reviewing a claim of instructional error, we have no reason 

to believe there was any confusion that affected the jury’s verdict. 

(See People v. Musselwhite (1998) 17 Cal.4th 1216, 1248 [“ ‘ “the 

correctness of jury instructions is to be determined from the 

entire charge of the court, not from a consideration of parts of an 

instruction or from a particular instruction” ’ ”].)

CALCRIM No. 220, which the trial court read to the jury 

right before CALCRIM No. 221, states in pertinent part, 

“Whenever I tell you the People must prove something, I mean 

they must prove it beyond a reasonable doubt.” Thus, there is no 

reason to believe the jury did not understand the prosecution was 
23

required to prove each element of each charge beyond a 

reasonable doubt. (See also CALCRIM No. 355 [defendant “may 

rely on the state of the evidence and argue that the People have 

failed to prove the charges beyond a reasonable doubt”]; 

CALCRIM No. 359 [“You may not convict the defendant unless 

the People have proved his guilt beyond a reasonable doubt”].)

During argument, the prosecutor explained to the jury that the 

prosecution must prove each element of the charged offenses 

beyond a reasonable doubt. 

Moreover, the trial court and the prosecutor consistently 

referenced the term “allegation,” as used in the now-challenged 

CALCRIM No. 221, to refer to the deadly or dangerous weapon 

enhancement allegations. CALCRIM No. 3145, which the trial 

court read to the jury after CALCRIM No. 221, states in 

pertinent part: “If you find the defendant guilty of the crimes 

charged in Counts 1 and 2, or the lesser crimes of Attempted 

Criminal Threats, you must then decide whether, for each crime, 

the People have proved the additional allegation that the 

defendant personally used a deadly or dangerous weapon during 

the commission of that crime. You must decide whether the 

People have proved this allegation for each crime and return a 

separate finding for each crime.” (Italics added.) 

During argument, the prosecutor stated: “And the last of 

the laws that we’re talking about, it’s technically not a crime by 

itself, it’s what’s called an allegation. It goes along with the 

crime, okay. It gets attached to a crime. [¶] . . . [¶] So meaning 

basically this: Let’s say you are back in the jury room, you are 

voting on criminal threats. Let’s say you all decide, yeah, he is 

guilty of criminal threats. You then move on to this allegation 

which is attached to the criminal threats and you say whether or 
24

not you think it was true that he used a deadly weapon, okay. I 

hope that makes sense.” (Italics added.)

It was clear from the trial court’s instructions and the 

prosecutor’s argument that “allegations,” as used in CALCRIM 

No. 221, referred to the deadly or dangerous weapon 

enhancement allegations on counts 1 and 2. Moreover, it was 

clear from the jury instructions as a whole that the prosecution

was required to prove each element of each charge beyond a 

reasonable doubt for the jury to return a guilty verdict. 

CALCRIM No. 221 was not confusing or misleading, and there is 

no reason to believe the jury misconstrued it in the manner Lopez 

suggests. Accordingly, Lopez cannot show that the jury would 

have reached a verdict more favorable to him if the trial court

had inserted the word “enhancement” before the word 

“allegations” in CALCRIM No. 221. His ineffective assistance of 

counsel claim fails.

III. The Trial Court Did Not Commit Reversible Error in 

Responding to the Jury’s Question

A. Question and Response

During deliberations, the jury submitted the following 

question to the trial court: “We would like to confirm whether 

having a knife in a pocket while committing an assault is 

considered an assault with a deadly weapon, or does it need to be 

out and in his hand for it to be assault with a deadly weapon?” 

The following exchange occurred between the trial court 

and the parties regarding the appropriate response to the jury’s 

question:

“[Defense counsel]: I think element no. 4, when he acted he 

had the present ability to apply force with the weapon, I think it 

answers that question.
25

“The Court: I would just refer them back to the jury 

instruction. I don’t know if they are making a distinction as to an 

assault at a point in time or they believe the weapon wasn’t out. 

I don’t remember hearing testimony about [sic] other than 

coming out of the pocket. So I don’t know if they are making a 

finding regarding that, but it’s their determination. I mean, you 

certainly could have assault with a deadly weapon with it in the 

pocket depending on a whole bunch of factors. What they have to 

find is that all the other links have been met, so what I would say 

is --

“[Defense counsel]: Refer to the elements of the charge.

“The Court: Refer back to the instruction on assault with a 

deadly weapon instruction [sic], and give me a second to pull it 

up.

“[Defense counsel]: [CALCRIM No.] 875.

“The Court: [CALCRIM No.] 875. [¶] Does either side 

want to be heard further?

“[The prosecutor]: No, Your Honor.

“[Defense counsel]: No, Your Honor.

“The Court: All right. Here is what I wrote: [¶] Please see 

the definition for the crime of assault with a deadly weapon No. 

875 in your instruction package. [¶] Anything else?

“[Defense counsel]: No.

“[The prosecutor]: No, Your Honor.” Shortly after the trial 

court responded to the question, the jury returned the guilty 

verdicts. 

CALCRIM No. 875, as given in this case and referenced in 

response to the jury’s question, provides as follows:
26

“The defendant is charged in Counts 4, 5, and 6 with 

assault with a deadly weapon other than a firearm in violation of 

Penal Code section 245.

“To prove that the defendant is guilty of this crime, the 

People must prove that:

“1. 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;

“2. The defendant did that act willfully;

“3. 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 someone;

“4. When the defendant acted, he had the present ability to 

apply force with a deadly weapon other than a firearm to a 

person;

“AND

“The defendant did not act in self-defense.

“Someone commits an act willfully when he or she does it 

willingly or on purpose. It is not required that he or she intend to 

break the law, hurt someone else, or gain any advantage.

“The touching can be done indirectly by causing an object 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 that the defendant 

actually intended to use force against someone when he acted.

“No one needs to actually have been injured by defendant’s 

act. But if someone was injured, you may consider that fact, 

along with all the other evidence, in deciding whether the 
27

defendant committed an assault, and if so, what kind of assault it 

was.

“Voluntary intoxication is not a defense to assault.

“Great bodily injury means significant or substantial 

physical injury. It is an injury that is greater than moderate 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 death or great bodily injury.” The instructions did not 

define “inherently deadly.”

During argument to the jury, the prosecutor stated, 

without objection by the defense, that “knives are inherently 

dangerous by their very nature, by their very design, they can be 

used for other things, sure, but their very nature is dangerous.”14

Lopez contends, for the first time on appeal, that the trial 

court erred in responding to the jury’s question by referring the 

jury back to CALCRIM No. 875. He argues, and the Attorney 

General acknowledges, that CALCRIM No. 875 erroneously 

permitted the jury to consider the knife as an inherently deadly 

weapon. (See People v. Aledamat (2019) 8 Cal.5th 1, 3, 6 

(Aledamat) [“Because a knife can be, and usually is, used for 

innocent purposes, it is not among the few objects that are 

inherently deadly weapons”].) 

Lopez argues that the only valid theory of a deadly weapon 

in this case—“one that is used in such a way that it is capable of 

causing and likely to cause death or great bodily injury” 

14 Lopez made clear in his appellate briefing that he “is not 

arguing for a reversal on grounds of prosecutorial misconduct.” 
28

(CALCRIM No. 875)—“was eliminated by the jury question 

itself.” He asserts that, based on the jury’s question and the trial 

court’s referral back to CALCRIM No. 875 in response, there was 

a “possibility that the jury could have concluded that a knife in 

his pocket could constitute the ‘present ability to apply force with 

a deadly weapon.’ ” He contends the error prejudicially affected 

the guilty verdicts on the assault with a deadly weapon counts as 

well as the deadly or dangerous weapon enhancement on the 

criminal threats counts. We agree with the Attorney General

that any error was harmless in this case under our Supreme 

Court’s rationale in Aledamat, as explained below.

B. Aledamat

In Aledamat, the defendant, like Lopez, was charged with 

assault with a deadly weapon (§ 245, subd. (a)(1)) and making a 

criminal threat (§ 422); and on the threat charge, there was an 

allegation that the defendant used a deadly and dangerous 

weapon (§ 12022, subd. (b)), a box cutter. The facts of the case, in 

pertinent part, were that the “ ‘defendant pulled a box cutter out 

of his pocket and extended the blade; from three or four feet 

away, defendant thrust the blade at the [male victim] at waist 

level, saying, “I’ll kill you.” ’ ” (Aledamat, supra, 8 Cal.5th at p. 

4.) 

The Supreme Court in Aledamat explained that the trial 

court instructed the jury with CALCRIM No. 875, “present[ing] 

the jury with two possible theories of guilt: (1) that the box 

cutter was inherently deadly, and (2) that the defendant used the 

box cutter in a deadly way. The first of these theories was 

erroneous under the facts. A box cutter is, as a matter of law, not 

inherently deadly. The second theory was correct.” (Aledamat, 

supra, 8 Cal.5th at p. 3.)
29

As in this case, the jury in Aledamat was instructed with 

CALCRIM No. 3145 regarding personal use of a deadly weapon. 

(Aledamat, supra, 8 Cal.5th at pp. 4-5.) As given in Aledamat, 

the instruction stated, in pertinent part: “ ‘[A] deadly or 

dangerous weapon is any object, instrument, or weapon that is 

inherently dangerous, . . . or one that is used in such a way that 

it is capable of causing or likely to cause death or great bodily 

injury. In deciding whether an object is a deadly weapon, 

consider all of the surrounding circumstances including when and 

where the object was possessed and any other evidence that 

indicates whether the object would be used for a dangerous 

rather than a harmless purpose.’ ” (Ibid.)15 And, as in this case, 

the prosecutor argued to the jury in Aledamat that “the box 

cutter was an ‘inherently deadly weapon.’ ” (Id. at p. 5.) The jury 

found the defendant guilty of assault with a deadly weapon and 

criminal threats and found the weapon enhancement to be true.

The Supreme Court concluded that the error in instructing 

the jury on the inherently deadly weapon theory was harmless 

beyond a reasonable doubt under the test in Chapman v. 

California (1967) 386 U.S. 18, as it was “clear the error did not 

contribute to the verdict.” (Aledamat, supra, 8 Cal.5th at p. 13.) 

As set forth above, CALCRIM Nos. 875 and 3145 define a deadly 

weapon as one that is inherently deadly or one that is used in 

such a way that it is capable of causing and likely to cause death 

15 The language in the version of CALCRIM No. 3145 given 

in this case was a bit different: “In deciding whether an object is 

a deadly weapon, consider all the circumstances, including when 

and where the object was possessed and where the person who 

possessed the object was going.” (Italics added to show 

difference.) 
30

or great bodily injury. The Supreme Court reasoned it was 

“unlikely” the jury “view[ed] the instructions” to “permit such 

separation” between the two ways of finding a deadly weapon, 

despite the instructions’ use of “the disjunctive ‘or.’ ” (Id. at p. 

13.) The Court pointed out that CALCRIM No. 3145 required the 

jury “to consider all of the circumstances in deciding whether the 

object was a deadly weapon, either inherently or as used. The 

jury would likely view the ‘inherently deadly’ language in light of 

this additional instruction that it had to consider all the 

circumstances. Given this additional instruction, it seems 

unlikely the jury would simply view the box cutter as inherently 

deadly without considering the circumstances, including how 

defendant used it.” (Id. at p. 14.)

The Supreme Court also referenced the parties’ arguments 

to the jury, noting the box cutter’s status as a deadly weapon was 

not a point of contention at trial. Although the prosecutor stated 

during argument that the box cutter was inherently deadly,

defense counsel did not concede or contest the point. “Defense 

counsel argued that defendant did not use the box cutter in a way 

that would probably result in the application of force, that is, that 

defendant did not assault the victim at all—an argument the jury 

necessarily rejected when it found defendant guilty of that crime. 

But counsel never argued that, if [the defendant] did assault the 

victim with the box cutter, the box cutter was not a deadly 

weapon.” (Aledamat, supra, 8 Cal.5th at p. 14.) The Court 

reasoned defense counsel “could readily believe it would be 

pointless for him to argue that even if (contrary to the argument 

counsel did make) the jury found defendant assaulted the victim 

with the box cutter, it was not a deadly weapon.” (Ibid.) While a 

“box cutter is not inherently deadly because it is not designed for 
31

that purpose,” if it is “used to assault someone, i.e., used as a 

weapon, a box cutter is potentially deadly even if not designed for 

that purpose.” (Ibid.)

The Supreme Court also set forth another way to determine 

if the error is harmless beyond a reasonable doubt: “The 

reviewing court examines what the jury necessarily did find and 

asks whether it would be impossible, on the evidence, for the jury 

to find that without also finding the missing fact as well”—the 

missing fact here being that the weapon was used in such a way 

that it is capable of causing and likely to cause death or great 

bodily injury. (Aledamat, supra, 8 Cal.5th at p. 15.) The Court 

explained that “under the instructions, the jury necessarily found 

the following: (1) defendant did an act with a deadly weapon 

(either inherently or as used) that by its nature would directly 

and probably result in the application of force; (2) defendant 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 someone; and (3) defendant had the present 

ability to apply force with a deadly weapon to a person.” (Ibid.) 

If the jury “applied its common understanding [of the term 

inherently deadly] to find the box cutter deadly because it is 

sharp and used for cutting,” the jury “would necessarily find the 

box cutter deadly in the colloquial sense of the term—i.e., readily 

capable of inflicting deadly harm—and that defendant used it as 

a weapon.” (Ibid.) “ ‘No reasonable jury that made all of these 

findings could have failed to find’ that defendant used the box 

cutter in a way that is capable of causing or likely to cause death 

or great bodily injury.” (Ibid.)
32

C. Analysis

Lopez argues the trial court committed reversible error in 

responding to the jury’s question because the court referred the 

jury to an instruction containing erroneous language. The 

erroneous language in the instruction, however, was unrelated to 

the jury’s question. Even if the jury found the knife was 

inherently deadly, to find Lopez guilty of assault with a deadly 

weapon, the jury still had to find he “did an act” with the knife 

“that by its nature would directly and probably result in the 

application of force to a person,” as set forth in CALCRIM No. 

875. Moreover, to find Lopez personally used a deadly or 

dangerous weapon within the meaning of the enhancement, the 

jury had to find he intentionally “display[ed] the weapon in a 

menacing manner,” as set forth in CALCRIM No. 3145. Having a 

weapon in a pocket, and doing no act with that weapon, while 

committing an assault and making criminal threats would not 

satisfy either of these elements, regardless of whether the 

weapon was inherently dangerous.

Presumably, the jury asked the question because the knife 

was not visible on the bar’s surveillance video. Having received 

an answer to the question, we have no reason to believe the jury 

failed to apply the trial court’s instructions. Doing so, the jury 

necessarily found Lopez used the knife. At trial, Lopez 

challenged the credibility of the evidence indicating he had a 

knife, and the evidence indicating he did not act in self-defense. 

He did not argue, however, that if he pulled out the knife, he did 

not use it “in such a way that it is capable of causing and likely to 

cause death or great bodily injury.” (CALCRIM No. 875.) Nor 

could he. The testimony was that he pulled out the knife during 

a physical altercation with Hernandez, and then moved within an 
33

inch of Hernandez; and that he pointed the knife at Farfan and 

Zelaya while threating to kill them, rape Farfan, and rape 

Zelaya’s mother.

“[A]fter examining the entire cause, including the evidence, 

and considering all relevant circumstances,” we conclude any 

error was harmless beyond a reasonable doubt. (See Aledamat, 

supra, 8 Cal.5th at p. 13.) The jury’s question was unrelated to 

whether the knife was a deadly weapon. And, having found 

Lopez guilty of assault with a deadly weapon under the elements 

of the crime set forth in CALCRIM No. 875, and having found he 

personally used the knife by displaying it in a menacing manner, 

it is inconceivable the jury did not find the knife was used in such 

a way that it was capable and likely to cause death or great 

bodily injury, based on the facts and circumstances of this case.

16

IV. Lopez Forfeited His Contention Regarding 

Imposition of the Restitution Fine and Assessments, 

and He Has Not Established Ineffective Assistance of 

Counsel

Citing People v. Dueñas (2019) 30 Cal.App.5th 1157 

(Dueñas), Lopez contends the trial court erred when it imposed a 

restitution fine and assessments without a hearing to determine 

his ability to pay. The Attorney General argues Lopez forfeited 

this contention by failing to raise an objection in the trial court to

the imposition of the fine and assessments or request the court 

consider his ability to pay them. We agree with the Attorney 

General.

16 We reject Lopez’s claim of cumulative error, as there was 

only one error that we conclude was harmless beyond a 

reasonable doubt.
34

The trial court imposed the fine and assessments on March 

11, 2020, more than a year after Dueñas was decided. Lopez did 

not argue he was entitled to an ability-to-pay hearing either 

before or at that hearing. Nor did he make such a claim in the 

following year when he appeared at three more hearings before 

he ultimately surrendered to custody on May 24, 2021. Lopez 

forfeited any contentions about the fine and assessments by 

failing to raise them in the trial court. (See, e.g., People v. Avila

(2009) 46 Cal.4th 680, 729 [rejecting argument that, because the 

defendant did not have the ability to pay, imposition of a 

restitution fine in excess of the minimum resulted in an 

unauthorized sentence not subject to the forfeiture rule]; People 

v. Trujillo (2015) 60 Cal.4th 850, 859 [the constitutional nature of 

the defendant’s claim regarding his ability to pay did not justify 

deviation from the forfeiture rule].) 

Lopez argues his trial counsel rendered ineffective 

assistance by failing to object. He cannot make the requisite 

showing: “(1) that defense counsel’s performance fell below an 

objective standard of reasonableness, i.e., that counsel’s 

performance did not meet the standard to be expected of a 

reasonably competent attorney, and (2) that there is a reasonable 

probability that defendant would have obtained a more favorable 

result absent counsel’s shortcomings.” (People v. Cunningham, 

supra, 25 Cal.4th at p. 1003, citing Strickland v. Washington, 

supra, 466 U.S. at pp. 687-694.) “ ‘If the record on appeal fails to 

show why counsel acted or failed to act in the instance asserted to 

be ineffective, unless counsel was asked for an explanation and 

failed to provide one, or unless there simply could be no 

satisfactory explanation, the claim must be rejected on appeal.’ ” 

(Cunningham, at p. 1003.)
35

The record before us does not demonstrate that Lopez had 

an inability to pay or that there was no valid reason trial counsel 

did not object to the fines and assessments. The court imposed 

the minimum restitution fine of $300 under section 1202.4, 

subdivision (b), $200 in court operations assessments ($40 per 

conviction), as required under section 1465.8; and $150 in court 

facilities assessments ($30 per conviction), as required under 

Government Code section 70373, for a total of $650. The record 

shows Lopez worked multiple jobs as a chef during the 11 months 

he was released on his own recognizance, after the trial court 

announced the fine and assessments. Based on the record before 

us, Lopez cannot establish ineffective assistance of counsel 

because he cannot show (1) there could be no satisfactory 

explanation for his counsel’s decision not to object to the fines and 

assessments (i.e., that he did have the ability to pay) or (2) the 

outcome would have been more favorable if his counsel objected.

We note that the abstract of judgment and minute order 

incorrectly state that the trial court imposed $120 in court 

operations assessments and $90 in court facilities assessments, 

although the reporter’s transcript of the March 11, 2020 hearing 

clearly states the court imposed $200 in court operations 

assessments ($40 for each of the five convictions) and $150 in 

court facilities assessments ($30 for each of the five convictions). 

The court did not make any changes to Lopez’s sentence or the 

fines and assessments when Lopez surrendered to custody on 

May 24, 2021.

The abstract of judgment or minute order “is not the 

judgment of conviction; it does not control if different from the 

trial court’s oral judgment and may not add to or modify the 

judgment it purports to digest or summarize.” (People v. Mitchell
36

(2001) 26 Cal.4th 181, 185.) We order the trial court to correct 

the clerical errors reflected in the March 11, 2020 minute order, 

the March 20, 2020 abstract of judgment, and the May 25, 2021 

amended abstract of judgment.17

DISPOSITION

The trial court is directed to correct the March 11, 2020 

minute order, the March 20, 2020 abstract of judgment, and the 

May 25, 2021 amended abstract of judgment to reflect the 

imposition of $200 in court operations assessments under Penal 

Code section 1465.8 and $150 in court facilities assessments 

under Government Code section 70373. As so modified, the

judgment is affirmed. The clerk of the superior court is directed

17 In his opening appellate brief, Lopez contended the 

matter should be remanded for the trial court to determine 

whether to dismiss the weapon enhancements in light of Senate 

Bill No. 81’s (2021-2022 Reg. Sess.; Stats. 2021, ch. 721, § 1)

amendments to section 1385, enacted after his sentencing 

hearing. These amendments only apply to “sentencings occurring 

after January 1, 2022.” (§ 1385, subd. (c)(7).) In his reply brief, 

Lopez conceded the amendments to section 1385 “will only apply

if this case is remanded to the trial court on one of the grounds 

asserted in appellant’s briefs.” No such ground warrants a 

remand in this case.
37

to prepare an amended abstract of judgment and to forward it to 

the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

BENDIX, J.