Filed 9/24/20 P. v. Ward CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

WAYNE HOLLIS WARD,

Defendant and Appellant.

 D076348

 (Super. Ct. No. SCD279846)

APPEAL from a judgment of the Superior Court of San Diego County, 

Amalia Meza, Judge. Affirmed.

John L. Staley, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters and Julie L. 

Garland, Assistant Attorneys General, Melissa Mandel and A. Natasha 

Cortina, Deputy Attorneys General, for Plaintiff and Respondent.

Wayne Hollis Ward attacked his neighbor and gouged her eyes. He 

was charged with three counts: attempted mayhem (Pen. Code, §§ 203, 664), 

assault by means likely to produce great bodily injury (Pen. Code, § 245, 
2

subd. (a)(4)), and making a criminal threat (Pen. Code, § 422).1 At trial, 

Ward admitted he pushed the woman but denied any intent to gouge her 

eyes. Over objection, the trial court allowed the prosecutor to introduce 

evidence, pursuant to Evidence Code section 1101, subdivision (b), of two 

prior incidents during which Ward attacked other people by gouging their 

eyes. The jury convicted Ward of attempted mayhem and assault.

Ward contends the prior act evidence was erroneously admitted, 

unduly prejudicial, and rendered his trial unfair. Ward also contests various 

fines and fees the trial court imposed after it stayed a $4,800 restitution fine. 

We conclude the trial court did not abuse its discretion when it admitted 

evidence of two prior incidents of eye gouging, and any assumed error was 

harmless. We further conclude no prejudicial error occurred as a result of the 

court’s imposition of the fines and fees. We therefore affirm the judgment in 

its entirety.

FACTS

In 2018, Nancy R. was 57 years old and five feet, three and a half 

inches tall. She lived in the apartment next door to Ward, who was 71 years 

old and six feet, seven inches tall. Ward weighed 290 pounds and described 

himself as “pretty strong.” 

During the afternoon of December 18, 2018, Nancy left her apartment 

to run an errand, tapping on the wall as she walked through the hallway. As 

she passed Ward’s apartment, she sensed someone standing behind her. She 

turned and saw Ward, dressed only in white underwear. His eyes were big

1 “Every person who unlawfully and maliciously deprives a human being 

of a member of his body, or disables, disfigures, or renders it useless, or cuts 

or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is 

guilty of mayhem.” (Pen. Code, § 203.) Unless otherwise specified, statutory 

references are to the Penal Code.
3

and he looked angry. He made a face, began to growl, and put up a clenched 

fist. Ward grabbed Nancy’s hair, punched her cheek, and threw her to the 

ground. She was “twisted” on the ground, and Ward hit and kicked her. 

Then he tried to gouge her eyes out, using his thumbs. When he tried to 

gouge her eyes out, Ward made “weird noises” and said, “ ‘I’m going to kill 

you.’ ” He pressed with his thumbs in the inner corners of her eyes so hard 

that Nancy urinated in her pants. She was scared and thought he was going 

to kill her. Suddenly, someone approached, and Ward got up and went back 

to his apartment. 

David C., a commercial pest control worker, was working at the 

apartment building that afternoon when he heard a woman screaming for 

help. Following the sound of her screams, he came upon a woman on the 

ground facing down, and saw a man in his underwear crouching on top of her. 

The woman was protecting her face, with both of her hands crossed on top of 

her head. The man’s hands were around the woman’s shoulder, neck, and 

face. Thinking perhaps it was a medical emergency, David yelled out, asking 

if everything was okay. The man stood up and returned to his apartment 

without saying anything. David approached the woman. She had cuts on her 

forehead, her eyes were red, and her eyelids were “blistery.” She had blood 

around her face on her eyes, forehead, and nose. Nancy told David that if he 

had not shown up so quickly, the man could have taken her eyeballs out. 

David took Nancy to the lobby to ask the security guard to call the 

police. Nancy was in pain and her vision was so blurry she was unable to see. 

She told the 9-1-1 operator she had been attacked by her neighbor, that he 

had hit her repeatedly all over her head and face, and he had tried to “pull 

[her] eyes out with his fingers.”
4

A responding police officer met Nancy and David in the lobby of the 

apartment building. Nancy was nervous, scared, and crying. She was 

holding her face with both her hands. Nancy had already tried to clean the 

blood from her face with wet paper towels, but the officer could see that 

Nancy had blood coming from her eye sockets and bruising and discoloration 

around her eyes. Her eyes and cheeks were red, and her eyes were swollen. 

Nancy told the officer Ward had punched her, gotten on top of her, and tried 

to gouge out her eyes. 

An information charged Ward with attempted mayhem (count 1, 

§§ 203, 664), assault by means likely to produce great bodily injury (count 2, 

§ 245, subd. (a)(4)), and making a criminal threat (count 3, § 422). The 

information also alleged Ward was previously convicted of a prior serious 

felony (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) and had suffered a prior 

strike offense (§§ 667, subd. (b)-(i), 1170.12, 668). 

At trial, Nancy, David, and the responding officer testified regarding 

Ward’s December 2018 attack on Nancy. Photographs depicting Nancy’s 

injuries taken by the responding officer immediately after the incident were 

shown to the jury. The photographs showed scratches and injuries to Nancy’s 

face, swelling around her eyes and eyelids, and scratches and severe bruising 

around her eyes, especially to the inside corners of her eyes. Over defense 

objection, the trial court allowed the prosecution to introduce evidence of two 

prior incidents during which Ward attacked a victim. In the two prior 

incidents, as in the current charged offense, the victim was smaller than 

Ward, lived or was present near him, and bothered and angered him by 

tapping or banging in close proximity to him. In all three incidents, the 

victims claimed Ward gouged their eyes. 
5

A security guard from the apartment building testified he was familiar 

with both Ward and Nancy. The security guard had a high opinion of Ward, 

who was always friendly, kind, respectful, and pleasant. It appeared to the 

security guard that Nancy’s mental health had deteriorated during the time 

she was living there, especially immediately before the December incident. 

A property manager at the apartment building testified she was 

familiar with both Ward and Nancy. The property manager never had issues 

with Ward or received complaints about him when he was a resident there. 

She testified he was a “nice guy” who “seemed like a gentle giant.” The 

property manager testified that Nancy’s “behavior had changed from movein,” and that, in December 2018, Nancy began raising complaints, claiming 

people were coming into her room and claiming she heard noises coming from 

a vacant room. The property manager investigated Nancy’s complaints, but 

Nancy was “agitated” because she felt the property manager was not trying 

to help her. 

Ward testified in his defense at trial. He stated he had lived at that 

apartment for approximately 14 months. He remembered when Nancy first 

moved into the apartment next to him, which had been vacant for several 

weeks. The first night she was there, she knocked on his door at 3:00 in the 

morning, asking if he was smoking marijuana and claiming she could smell 

fumes. He denied smoking marijuana, closed the door, and went back to bed. 

From then on, for “approximately nine or 10 months, for three and four days 

at a time there was banging on the walls from her room.”

On December 18, he heard knocking outside his apartment. He went to 

the door and saw Nancy. Fed up with her actions, he pushed her down by her 

face, intending “to just take her and push her down to the ground.” After he 

pushed her, “[he] was over her” but he did not climb or lie on her. Almost 
6

immediately he heard someone say, “ ‘What are you doing,’ ” and he “got up 

and went back into [his] room.” He denied punching or kicking Nancy, and 

stated the entire incident lasted no more than 30 seconds. 

On cross-examination, Ward admitted he “knew what [he] was doing 

when [he] threw [Nancy] to the ground” and admitted he knew he could 

greatly injure someone smaller than himself by doing that, but on redirect 

examination Ward again claimed he had no intention of hurting or blinding 

her, only to “rough her up a little bit” and “scare her.”

The jury found Ward guilty on count 1, attempted mayhem (§§ 664, 

203), and count 2, assault by means likely to produce great bodily injury 

(§ 245, subd. (a)(4)). The jury found Ward not guilty on count 3, making a 

criminal threat (§ 422). 

Prior to sentencing, Ward admitted the serious felony prior and strike 

prior. 

At sentencing, the trial court declined to exercise its discretion to strike 

the prior serious felony and prior strike and sentenced Ward to a term of 

13 years, comprised of the upper term of four years on count 2, doubled 

because of the strike prior, for a total term of eight years on count 2, plus an 

additional five years for the serious felony prior. The trial court imposed and 

stayed an eight-year term on count 1 (§ 654). The trial court also revoked 

probation in a separate case (SDC271670) and imposed an additional 

two years in that case, for a total term of 15 years in prison. 

The trial court also imposed various fines and fees discussed in more 

detail post.
7

DISCUSSION

I.

Evidence of Prior Misconduct Under Section 1101

A. Additional Factual Background

1. Motion to Admit Evidence

Prior to trial, the prosecutor moved to admit evidence of two prior 

incidents of eye gouging—one occurring in 2014 and one in 2017—as evidence 

of intent, common plan, or lack of mistake in the current case. To address the 

defendant’s concern that such evidence could be misconstrued as propensity 

evidence, the People noted the court could provide a limiting instruction 

directing the jury to consider the evidence only for the specified limited 

purposes, and not as evidence of the defendant’s propensity to commit the 

crime. 

Ward opposed admitting such evidence, arguing it would be prejudicial 

but not probative, and further arguing that the jury would consider the 

evidence as propensity evidence and would not be able to follow a limiting 

instruction. 

The trial court conducted a hearing of the proposed evidence to 

determine whether the events were sufficiently similar to warrant admission 

for purposes of intent, common plan, or lack of mistake, and to assess the 

potential prejudicial impact of the evidence. (Evid. Code, § 402.) 

J.R. testified that in February 2014, his neighbor, a seven-foot-tall 

man, attacked him in the hallway as he was unlocking his apartment door, 

tackled him to the ground, and pressed his fingers into his eyes, blinding him 

permanently. He stated the incident occurred without provocation, except on 

one prior occasion, the tall man had told J.R. to “ ‘stop knocking on [his] 

wall.’ ” J.R. is approximately five feet, four inches tall. 
8

A sheriff’s deputy testified that, in April 2017, when he was working in 

the San Diego Central Jail, he received a call reporting that medical 

attention was required in the cell that Ward shared with inmate J.D. When 

the deputy responded, he found J.D. trembling. J.D. reported that Ward had 

hit him and tried to gouge out his eyes. The deputy separated the men. He

observed that J.D.’s eyes were swollen and red; J.D. had a large open 

abrasion on his right eye and scratch marks around his eyelids. The deputy 

also observed visible injuries on Ward’s hands. Ward told the deputy he had 

“fucked [J.D.] up” and told him to “get [J.D.] out of his cell.” J.D. was five 

feet, eight inches tall, with a slight build. 

The prosecutor argued these incidents should be admitted to establish 

Ward’s intent, the existence of a common plan, and lack of mistake. The 

prosecution argued admitting the evidence to establish Ward’s intent to 

commit mayhem was particularly important in light of the anticipated 

defense theory that the victim had mental health issues (and therefore was 

not a credible witness). The prosecutor further argued this was “a very 

specific m.o.,” as Ward had previously tried to gouge out two other people’s 

eyes in circumstances quite similar to the present case. The prosecutor also 

argued the evidence was more probative than prejudicial and should be 

admitted over defense objection. 

Ward argued propensity evidence was generally inadmissible and 

allowing testimony regarding these incidents would only encourage the jury 

to convict him on the inappropriate assumption that he had done similar 

things before, so he must have done it here. Ward further argued the 

evidence of the prior incidents was not substantially probative on any 

particular issue in the case, and it was highly prejudicial. 
9

The trial court granted the prosecution’s request to admit evidence of 

the prior incidents and indicated it would give a limiting instruction. In 

considering whether the evidence should be admitted under Evidence Code

section 352, the trial court found that the prior incidents were no more 

inflammatory than the pending charges, as the acts were similar in that all 

involved causing injury to the alleged victims’ eyes. The court further found 

the incidents were fairly recent, noted the prosecutor did not intend to admit 

evidence of any prior punishment associated with the incidents, and found 

the testimony would not take undue time. On balance, the trial court 

concluded that the testimony was not precluded from admission under 

Evidence Code section 352. The court found the evidence was probative of 

the issue of intent, as attempted mayhem is a specific intent crime, and there 

were allegations that the complaining witness suffered from mental health 

issues, may have been taking prescribed medication at the time, and the 

witness’s credibility would be challenged. The trial court further found the 

probative value of the evidence outweighed the potential for prejudice, 

especially when a limiting instruction would be given. The court also found 

the evidence was admissible to show Ward’s actions were not the result of 

mistake or accident, and his conduct was part of a plan or scheme to commit 

the alleged offense. 

2. Evidence Adduced at Trial

a. 2014 Incident

J.R. is five feet, four inches tall. In 2014, Ward lived across the hall 

from him. Ward had previously accused him of knocking on his wall, which 

J.R. denied doing. One day, as J.R. was entering his apartment, Ward 

attacked him suddenly from behind. Ward tackled him to the ground and 

stuck his fingers in J.R.’s eyes. J.R.’s eyes burned as he struggled to escape 
10

from Ward, who had his leg over him. J.R. eventually escaped but was 

unable to see. He was permanently blinded as a result of Ward’s attack. 

Detectives investigating J.R.’s assault identified Ward as the suspected 

perpetrator of the assault. 

b. Ward’s Testimony Regarding the 2014 Incident

Ward acknowledged the incident with J.R. in 2014. Ward heard a 

banging on the wall and exited his apartment to see who it was. He saw J.R. 

outside and, annoyed by his behavior, asked him “What the F are you 

banging on my wall for?” Ward claimed J.R. then pushed or elbowed past 

him, Ward pushed back, and then J.R. “went off.” Ward used his height 

advantage to hold J.R. back as J.R. hit, kicked, and spit at Ward. Then Ward 

“just went for his face” using his hands. He had no intention to do so, but he 

pushed J.R. in the eyes until he stopped struggling. Ward then backed away 

from him and went back into his room. 

c. 2017 Incident

A deputy with the San Diego Sheriff’s Department testified that, in 

2017, he was on duty in the central jail and responded to a call reporting a 

medical emergency in a cell shared by Ward and J.D. J.D. was 

approximately five feet, eight or nine inches tall, and had a slight build. 

When the deputy entered the cell, Ward was seated on the lower bunk, and 

J.D. was sitting on the floor. Ward was calm and quiet when the deputy 

entered; Ward told the deputy he had “fucked up” J.D. and told the deputy to 

get him out of the cell. J.D., who was visibly shaking, crawled out of the cell. 

J.D. told the deputy that Ward had hit him multiple times and tried to gouge

out his eyes. When J.D. removed his hands from his face, the deputy could 

see J.D. had injuries to his face, including an open wound above his right eye, 

swelling and redness to the eyes, and multiple small scratches around his 
11

eyes and eyelids. The injuries were consistent with J.D.’s description of the 

incident. The deputy also inspected Ward and saw that Ward had small cuts 

on his hand, and his hands were swollen. 

d. Ward’s Testimony Regarding the 2017 Incident

In 2017, when Ward was in custody in the San Diego Central Jail, he 

shared a cell with J.D. J.D., who had the lower bunk, and Ward, who had the 

top bunk, “had a little fight” one day after J.D. hit Ward’s bunk. Ward 

became irritated and fed up after J.D. had hit his bunk several days in a row. 

The first day, Ward did not say anything. The second day, Ward warned him 

not to hit his bunk again. This day, when J.D. hit his bunk again, Ward 

“c[a]me at him.” Ward threw the first punch and J.D. punched back. 

Altogether, J.D. punched Ward two or three times, while Ward punched J.D. 

four or five times. Then J.D. cowered and backed up; Ward stopped attacking 

and called the security tower. 

B. Applicable Law

Section 203 defines the offense of simple mayhem: “Every person who 

unlawfully and maliciously deprives a human being of a member of his body, 

or disables, disfigures, or renders it useless, or cuts or disables the tongue, or 

puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem.” “[A]s used 

in section 203 the word ‘maliciously’ ‘imports an intent to vex, annoy, or 

injure another person, or an intent to do a wrongful act.’ ” (People v. Santana 

(2013) 56 Cal.4th 999, 1007; see CALCRIM No. 801 [“Someone acts 

maliciously when he or she intentionally does a wrongful act or when he or 

she acts with the unlawful intent to annoy or injure someone else.”].) “An 

attempt to commit a crime requires a specific intent to commit the crime and 

a direct but ineffectual act done toward its commission.” (People v. Kipp

(1998) 18 Cal.4th 349, 376 (Kipp); see § 21a; CALCRIM No. 460.)
12

“ ‘Evidence Code section 1101, subdivision (a) sets forth the “ ‘strongly 

entrenched’ ” rule that propensity evidence is not admissible to prove a 

defendant’s conduct on a specific occasion.’ [Citation.] ‘At the same time, 

“other crimes” evidence is admissible under Evidence Code section 1101, 

subdivision (b) “when offered as evidence of a defendant’s motive, common 

scheme or plan, preparation, intent, knowledge, identity, or absence of 

mistake or accident in the charged crimes.” ’ ” (People v. Erskine (2019) 

7 Cal.5th 279, 295 (Erskine).)

The admissibility of evidence under Evidence Code section 1101, 

subdivision (b) depends on the degree of similarity between the uncharged act 

and the charged offense. (Erskine, supra, 7 Cal.5th at p. 295; see Kipp, 

supra, 18 Cal.4th at p. 369 [“Evidence of uncharged crimes is admissible to 

prove identity, common design or plan, or intent only if the charged and 

uncharged crimes are sufficiently similar to support a rational inference of 

identity, common design or plan, or intent.”].)2

If the trial court determines the evidence is relevant and admissible 

under Evidence Code section 1101, it must next “proceed to examine 

whether the probative value of the evidence of defendant’s uncharged 

offenses is ‘substantially outweighed by the probability that its admission 

[would] . . . create substantial danger of undue prejudice, of confusing the 

issues, or of misleading the jury.’ (Evid. Code, § 352.)” (People v. Ewoldt 

(1994) 7 Cal.4th 380, 404 (Ewoldt).) 

“We review for abuse of discretion a trial court’s rulings on relevance 

and admission or exclusion of evidence under Evidence Code sections 1101 

and 352.” (People v. Fuiava (2012) 53 Cal.4th 622, 667-668.) “A court abuses 

2 We discuss the varying levels of similarity which are required, 

depending on what the evidence is offered to prove, further post. 
13

its discretion when its ruling ‘falls outside the bounds of reason.’ ” (Kipp, 

supra, 18 Cal.4th at p. 371.)

C. Analysis

Ward contends the two prior assaults were erroneously admitted 

because they had only marginal relevance and were more prejudicial than 

probative. We disagree. Ward’s assaults on J.R. and J.D. were relevant to 

prove his intent to commit mayhem, the existence of a common plan or 

scheme, and the absence of mistake. 

“The least degree of similarity (between the uncharged act and the 

charged offense) is required in order to prove intent.” (Ewoldt, supra, 

7 Cal.4th at p. 402.) This standard is met here. In each instance, Ward was 

annoyed and fed up with the victim’s actions in disrupting him (by knocking 

or banging on his wall or on his bunk), he deliberately directed his anger 

toward a victim who was at a relative disadvantage compared to Ward’s 

strength or size, and he made a direct, targeted attack on the victim’s eyes. 

“ ‘A jury may infer a defendant’s specific intent from the circumstances 

attending the act, the manner in which it is done, and the means used, 

among other factors.’ [Citation.] ‘[E]vidence of a “controlled and directed” 

attack or an attack of “focused or limited scope” may provide substantial 

evidence of’ a specific intent to maim.” (People v. Szadziewicz (2008) 

161 Cal.App.4th 823, 831 [discussing specific intent requirement for 

aggravated mayhem under § 205], disapproved on another ground in People 

v. Dalton (2019) 7 Cal.5th 166, 214.) The circumstances surrounding Ward’s 

attacks, and the methods used, are sufficiently similar to support an 

inference that Ward harbored the same intent—to seriously injure the 

victim’s eyes—in each instance. (Ewoldt, supra, 7 Cal.4th at p. 402 [to be 

admissible to prove intent, the uncharged misconduct need only be 
14

“sufficiently similar [to the charged offense] to support the inference that the 

defendant ‘ “probably harbor[ed] the same [or similar] intent in each 

instance.” ’ ”]; accord People v. Lindberg (2008) 45 Cal.4th 1, 23 (Lindberg).)3 

The evidence regarding the prior offenses was important to help prove 

Ward’s intent given the attacks regarding the victim’s credibility in this case, 

based on her apparent mental health issues, and Ward’s own testimony 

minimizing his conduct during all the offenses. Specifically in this case, 

Ward claimed that he was merely trying to push the victim down, and he had 

no intent to harm or blind her. Similarly, he argued he never intended to 

gouge the prior victims’ eyes, stating with respect to the 2014 incident, “I had 

no intention of doing it, but I found myself with my fingers around the top of 

his face and I pushed him in the eyes.” Through these defense theories, Ward 

put his intent directly at issue in this case, and the prior incidents were 

admissible to rebut his claim that he did not intend to maim the victim.4 

“Greater similarity is required to prove the existence of a common 

design or plan.” (People v. Leon (2015) 61 Cal.4th 569, 598 (Leon).) To be 

3 Ward identifies some differences among the crimes, noting the 

incidents occurred in different locations and involved different victims. While 

there are some differences between the prior incidents and this one, the noted 

differences are not sufficiently material to show the court erred in admitting 

the evidence under Evidence Code section 1101, subdivision (b). 

4 In his reply brief, Ward argues the prior assaults “may have been 

admissible to prove . . . identity” if that was in dispute, but they were not 

admissible to prove intent because proving “specific intent to blind someone” 

requires more “commonality” with the prior incidents. Contrary to Ward’s 

suggestion, a lesser degree of similarity is required to prove intent. (Erskine,

supra, 7 Cal.5th at p. 295 [“ ‘The least degree of similarity . . . is required in 

order to prove intent . . . .’ . . . By contrast, a higher degree of similarity is 

required to prove common design or plan, and the highest degree of similarity 

is required to prove identity.” ’ ”].) 
15

relevant on the issue of common design or plan, the charged and uncharged 

acts must share “common features [that] indicate the existence of a plan 

rather than a series of similar spontaneous acts, but the plan thus revealed 

need not be distinctive or unusual.” (Ewoldt, supra, 7 Cal.4th at p. 403.) The 

prior 2014 and 2017 incidents were also relevant for purposes of establishing 

a common design or plan. On each occasion, Ward approached a lone 

individual who had upset or annoyed him (by either knocking on his wall or 

on his bunk), the targeted individual was much smaller than Ward, and 

Ward attacked each victim in an unusual way—by overpowering the victim

and using his hands to gouge the victim’s eyes. To be admissible, “[t]hese 

common features need not be unique or nearly unique; ‘features of 

substantial but lesser distinctiveness may yield a distinctive combination 

when considered together.’ ” (Leon, supra, at p. 598.) Here, where Ward 

committed similar distinctive acts of misconduct against similar victims 

under similar circumstances, the common features were sufficiently similar 

to the charged crime to show that Ward acted with a common plan. 

Evidence regarding the prior incidents was also relevant to rebut any 

claim of accident or inadvertence. Ward claimed he merely meant to push 

the victims. With respect to this crime, Ward further claimed he merely 

wanted to “rough . . . up” the victim and just “scare her.” The prior offenses 

were admissible to show Ward acted intentionally rather than by accident, 

mistake, or inadvertence as implied by his testimony. (See People v. Cortes

(2011) 192 Cal.App.4th 873, 916 [prior fights were admissible to support “an 
16

inference that defendant did not act accidentally, inadvertently, in good faith 

or in self-defense when he attacked the victim”].)5 

We also conclude the trial court did not abuse its discretion by ruling 

that the probative value of the challenged evidence was “not outweighed by 

the prejudice in this case” under Evidence Code section 352. As we have 

concluded, the prior assaults were probative in particular on the issue of 

Ward’s intent in attempting to maim the victim in this case by gouging her 

eyes. The prior incidents were not remote, occurring approximately one and 

four years, respectively, before the present offense. (See People v. Zepeda

(2001) 87 Cal.App.4th 1183, 1212 [evidence of prior incident that occurred 

“about five years before the current shooting” had probative value].) “The 

fact that the evidence of the prior incident had an independent source from 

the evidence of the charged offense increased its probative value.” (Ibid.) 

Further, the testimony regarding the prior incidents was relatively brief, 

such that there was no undue consumption of time or risk that the jury would 

be confused. 

Ward claims the prior assaults were unduly inflammatory and 

prejudicial, and that “[n]othing could be more prejudicial than the fact that 

[he] actually blinded [J.R.]” We agree gouging someone’s eyes and causing 

5 Ward states he did not raise mistake as a defense, but evidence of other 

offenses is admissible when relevant to show absence of mistake or accident. 

(People v. Whisenhunt (2008) 44 Cal.4th 174, 204.) “ ‘One sense [of the word 

“accident”] comes into play when the defendant admits performing an act but 

claims that he or she did so with innocent intent.’ ” (People v. Spector (2011) 

194 Cal.App.4th 1335, 1374.) The prior assaults by Ward were relevant for 

this purpose. Moreover, by pleading not guilty, Ward placed all the elements 

of the charged offenses in dispute at trial. (Lindberg, supra, 45 Cal.4th at 

p. 23.) Even if Ward did not expressly assert he acted by mistake, the prior 

assaults helped establish the requisite intent for the charged crimes. 
17

permanent blindness is egregious, but Ward’s actions in this case were 

equally shocking. Ward, an individual weighing 290 pounds and standing 

six feet, seven inches tall, pushed his thumbs directly into the inner corners 

of the victim’s eyes—pressing so hard that she urinated in her pants, telling 

her he was going to kill her, and repeatedly kicking and punching her. 

Ward’s attack here was ultimately interrupted by a third party who came 

down the hallway. Although the victim here was not blinded like one of the 

prior victims, this fortuity does not make Ward’s actions any less egregious. 

“The prejudice which exclusion of evidence under Evidence Code section 352 

is designed to avoid is not the prejudice or damage to a defense that naturally 

flows from relevant, highly probative evidence.” (People v. Karis (1988) 

46 Cal.3d 612, 638.) Although damaging, the probative value of Ward’s prior 

offenses was not substantially outweighed by the probability that its 

admission would create substantial danger of undue prejudice, of confusing 

the issues, or of misleading the jury. (Evid. Code, § 352.) 

Ward contends it was “inevitable the jury would use the prior assaults 

to establish appellant’s propensity for violent behavior.” However, this 

misconstrues the purpose for admitting the evidence. When prior misconduct 

is admitted to show defendant’s intent, “ ‘[t]he inference to be drawn is not 

that the actor is disposed to commit such acts; instead, the inference to be 

drawn is that, in light of the first event, the actor, at the time of the second 

event, must have had the intent attributed to him by the prosecution.’ ” 

(People v. Rocha (2013) 221 Cal.App.4th 1385, 1394.) The court’s limiting 

instruction—admonishing the jury not to “conclude from this evidence that 

the defendant has a bad character or is disposed to commit crime”—further 

minimized any potential prejudice to Ward. (People v. Rogers (2013) 

57 Cal.4th 296, 331-332 (Rogers); People v. Ghebretensae (2013) 
18

222 Cal.App.4th 741, 755 [rejecting appellant’s prejudice argument where 

limiting instruction precluded jurors from using prior crimes evidence to 

show propensity to commit charged offense].) We presume the jury 

understood and followed the instruction. (People v. Cage (2015) 62 Cal.4th 

256, 275.) 

Even assuming the trial court erred in admitting evidence of the 

uncharged incidents, any error was harmless. (People v. Watson (1956) 

46 Cal.2d 818, 836 [error is reversable if there is a reasonable probability 

that a result more favorable to defendant would have been reached in 

absence of error]; People v. Felix (2019) 41 Cal.App.5th 177, 187 [applying 

Watson harmless error test to consideration of evidence pursuant to 

Evid. Code, §§ 1101, 352].) Immediately after the incident, the victim 

spontaneously told the third-party witness that if he had not intervened so 

quickly, Ward would have taken her eyeballs out. She told the 9-1-1 operator 

Ward tried to “pull [her] eyes out with his fingers.” She similarly told the 

responding officer Ward had tried to gouge out her eyes. The responding 

officer reported he saw blood coming from her eye sockets and bruising and 

discoloration around her eyes. At trial, she described to the jury how Ward 

pushed his thumbs into her eye sockets so hard she urinated. Photographs 

depicting the injuries to the victim’s eyes were shown to the jury, 

corroborating her testimony. Altogether the evidence overwhelmingly 

supported the inference that Ward harbored the requisite intent to commit 

mayhem when he used his thumbs to forcefully press on the victim’s eyes in 

anger and frustration. In light of the evidence, it is not reasonably probable 

Ward would have obtained a more favorable result if the jury did not hear 

evidence of the 2014 and 2017 incidents.
19

We further reject Ward’s claim that admission of the evidence violated 

his federal due process rights. Ward states that he did not receive a fair trial 

because “the jury was prejudiced by evidence of past, violent assaults having 

little, if any, relevance to the charged offenses.” We have already rejected 

Ward’s claim that the uncharged incidents were not relevant to the charged 

offenses. “Because the evidence was material, probative, and admitted under 

Evidence Code section 1101[, subdivision] (b) on the legitimate issue of 

intent, defendant’s due process right to a fair trial was not transgressed by 

the admission of such evidence.” (Rogers, supra, 57 Cal.4th at p. 332.) 

II.

Fines and Fees

At sentencing, defense counsel asked the court to stay imposition of the 

restitution fines “and the other costs in this case” based on his inability to 

pay them, pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). 

The trial court imposed but stayed a restitution fine of $4,800. (Pen. Code, 

§ 1202.4.) After further discussion with the probation officer and the 

prosecutor, defense counsel agreed the court security fee, criminal conviction 

assessment fee, and criminal justice administration fee are mandatory. The 

court imposed a court security fee of $80 (Pen. Code, § 1465.8), a criminal 

conviction assessment fee of $60 (Gov. Code, § 70373) and a criminal justice 

administration fee of $154 (Gov. Code, § 29550.1). Defense counsel made no 

objection. Because the instant case served as the basis for Ward’s probation 

revocation in a separate case (SCD27167), the court also sentenced him in 

that case, including imposing an “unpaid restitution fine previously imposed 

in the amount of $300. Additional restitution fines in the amount of $300 to 

be stayed and remain so unless defendant’s supervision is revoked. 
20

Probation revocation fee previously stayed in the amount of $300 is imposed.” 

Defense counsel made no objection.

Ward now contends the trial court erred by not staying all the fines and 

fees. He argues that, if he was indigent for the purpose of paying the $4,800 

restitution fine, then he was likewise indigent for the purpose of paying the 

remaining fines. He contends that any possibility he may earn wages while 

imprisoned is remote and speculative, and contends, relying on Dueñas, that 

due process of law requires the trial court to “hold[] an ability to pay hearing 

and conclude[] that the defendant has the present ability to pay the 

restitution fine.” (Dueñas, supra, 30 Cal.App.5th at p. 1164.) 

Dueñas relied on due process principles to require an ability to pay 

hearing before a trial court may impose certain mandatory fees. (Dueñas,

supra, 30 Cal.App.5th at p. 1164.) It further held that “although Penal Code 

section 1202.4 bars consideration of a defendant’s ability to pay unless the 

judge is considering increasing the fee over the statutory minimum, the 

execution of any restitution fine imposed under this statute must be stayed 

unless and until the trial court holds an ability to pay hearing and concludes 

that the defendant has the present ability to pay the restitution fine.” 

(Dueñas, supra, at p. 1164.)

Some courts have disagreed with Dueñas’s reliance on due process 

principles. (See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, 326, review 

granted Nov. 26, 2019, S258946; People v. Kopp (2019) 38 Cal.App.5th 47, 94, 

96 (Kopp), review granted Nov. 13, 2019, S257844.)6 We need not address 

6 In Kopp, our Supreme Court identified the following issues for review: 

“(1) Must a court consider a defendant’s ability to pay before imposing or 

executing fines, fees, and assessments? (2) If so, which party bears the 

burden of proof regarding defendant’s inability to pay?”
21

these areas of disagreement to resolve this appeal, because we conclude Ward 

forfeited his claim and any assumed error was harmless in any event.

Ordinarily, a defendant who fails to object to the imposition of a fee or 

fine in the trial court may not raise a claim pertaining to that charge on 

appeal. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864 [appellate 

forfeiture rule applies to probation fines and attorney fees imposed at 

sentencing]; People v. Trujillo (2015) 60 Cal.4th 850, 853-854 [applying the 

forfeiture rule to an unpreserved claim regarding probation-related fees and 

defendant’s inability to pay them]; People v. McCullough (2013) 56 Cal.4th 

589, 596-598 [defendant forfeits appellate challenge to the sufficiency of 

evidence supporting imposition of a booking fee if objection not made in the 

trial court]; People v. Avila (2009) 46 Cal.4th 680, 729 [forfeiture rule applies 

to defendant’s claim that restitution fine amounted to an unauthorized 

sentence based on his inability to pay]; People v. Nelson (2011) 51 Cal.4th 

198, 227 [claim that trial court erroneously failed to consider ability to pay a 

restitution fine forfeited by the failure to object].) Here, Ward asked the 

court to stay imposition of the restitution fines “and the other costs in this 

case” based on his inability to pay them. In response, the trial court stayed 

imposition of a restitution fine. But after discussion among the prosecution, 

defense, and probation office, the defense agreed that other fees and fines 

were mandatory. The defendant has the burden of proving an inability to 

pay (Kopp, supra, 38 Cal.App.5th at p. 96, review granted) and, here, Ward 

did not object when the trial court imposed a court security fee, criminal 

conviction assessment fee, and criminal justice administration fee in the 

present case, as well as a restitution fine and probation revocation fee from a 

prior case. Under the circumstances, we conclude Ward forfeited any claim 

that the trial court erred by imposing these particular fines and fees. (See, 
22

e.g., People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 [concluding 

defendant forfeited Dueñas claim by failing to object to the trial court’s 

imposition of fines and fees].)7

Even assuming the claim was properly preserved, we conclude any 

alleged error was harmless beyond a reasonable doubt. (Chapman v. 

California (1967) 386 U.S. 18, 24; People v. Jones (2019) 36 Cal.App.5th 1028, 

1035 [applying Chapman standard of harmless error analysis to Dueñas

error].) In assessing whether a defendant has the ability to pay, courts may 

consider defendant’s present and future ability to pay. (See Kopp, supra,

38 Cal.App.5th at p. 96, review granted.) The probation report indicates that 

Ward has received a monthly social security payment of $1070. Ward also 

may be able to earn additional wages in prison. (See People v. Hennessey 

(1995) 37 Cal.App.4th 1830, 1837 [ability to pay includes defendant’s ability 

to obtain prison wages]; Jones, supra, at p. 1035 [“Wages in California 

prisons currently range from $12 to $56 a month. [Citations.] And half of 

any wages earned (along with half of any deposits made into his trust 

account) are deducted to pay any outstanding restitution fine.”].) “In our 

view, this forecloses a meritorious inability to pay argument.” (Jones, supra, 

at p. 1035; see also People v. Johnson (2019) 35 Cal.App.5th 134, 139 [“The 

idea that [defendant] cannot afford to pay $370 while serving an eight-year 

prison sentence is unsustainable.”].) We thus conclude any assumed error in 

imposing the specified fines and fees in this case was harmless. 

7 Ward claims the trial court concluded he was indigent. While the trial 

court agreed to stay the restitution fee of $4,800, we do not agree that this 

ruling is tantamount to a determination that Ward is unable to pay the 

significantly smaller fines that the trial court imposed. Rather, it indicates 

that the trial court considered Ward’s ability to pay and reduced Ward’s 

financial burden by staying some, but not all, of the fees and fines. 
23

DISPOSITION

The judgment is affirmed.

GUERRERO, J.

WE CONCUR:

BENKE, Acting P. J.

O’ROURKE, J.