Filed 5/14/21 P. v. Ramos CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

LUIS RAMOS,

Defendant and Appellant.

B304855

Los Angeles County

Super. Ct. No. BA442346

APPEAL from a judgment of the Superior Court of Los

Angeles County, Kathleen Kennedy, Judge. Affirmed.

Janyce Keiko Imata Blair, under appointment by the Court 

of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Paul M. Roadarmel, Jr. and Allison H. Chung, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

INTRODUCTION

A jury convicted defendant Luis Ramos of first degree 

murder, four counts of attempted murder, and shooting at an 

occupied motor vehicle. The jury also found firearm and gang 

allegations true. The court sentenced defendant to an aggregate 

prison sentence of 210 years to life and imposed various fines and 

fees without objection.

Defendant contends he is entitled to a new trial because the 

prosecutor committed misconduct during her closing argument 

when she briefly alluded to the idea that communities in Los 

Angeles are tired of gun violence and gang violence. We conclude 

no misconduct occurred. And we reject defendant’s further claim 

of prosecutorial misconduct in the form of improper vouching as 

forfeited because he failed to raise an objection in the trial court.

Defendant also argues the court violated his due process 

rights when it imposed a $300 restitution fine, a $40 court 

operations fee as to each count, and a $30 criminal conviction fee 

as to each count, without first determining his ability to pay the 

fine and fees as required under People v. Dueñas (2019) 30 

Cal.App.5th 1157 (Dueñas). Because defendant’s sentencing 

hearing occurred more than one year after Dueñas was decided 

and he failed to raise an appropriate objection, we conclude the 

argument is forfeited. Accordingly, we affirm the judgment. 
3

PROCEDURAL BACKGROUND

The People charged defendant1 by amended information 

with one count of first degree murder (count 1; Pen. Code, § 187, 

subd. (a)),

2 four counts of attempted premeditated murder 

(counts 2–5; §§ 664, 187, subd. (a)), and one count of shooting at 

an occupied motor vehicle (count 7; § 246).3 All counts included 

allegations that a principal personally used and personally and 

intentionally discharged a firearm causing great bodily injury. 

(§ 12022.53.) The People also alleged that counts 1–5 were 

committed for the benefit of a criminal street gang (§ 186.22, 

subd. (b)(1)(C)) and that count 7 was committed with the intent 

to promote, further, and assist in criminal conduct by a gang. 

(§ 186.22, subd. (b)(4).)

A jury convicted defendant on all counts and found the 

firearm and gang allegations true. The court sentenced defendant 

to an aggregate term of 210 years to life in state prison. On the 

base count of first degree murder, the court sentenced defendant 

to 50 years to life (25 years to life for the murder, 25 years to life 

for the firearm enhancement); on counts 2–5, the court sentenced 

him to 40 years to life for each count (15 years to life for the 

attempted murder, 25 years to life for firearm enhancement) to 

run consecutive; and on count 7, the court imposed a sentence of 

32 years to life (7 years for the shooting, 25 years to life for the 

1 Josue Garcia was also charged with all counts in the amended 

information. Defendant and Garcia were tried together. Garcia is not a 

party to this appeal.

2 All undesignated statutory references are to the Penal Code.

3 Count 6 related only to Garcia.
4

firearm enhancement). The court stayed the sentence on count 7 

under section 654.

The court also ordered defendant to pay a $300 restitution 

fine (§ 1202.4), a $30 criminal conviction assessment fee for each 

of counts 1 through 5 (Gov. Code, § 70373), a $40 court security 

fee for each of those five counts (§ 1465.8), $4,805 in victim 

restitution (§1202.4, subd. (f)), and a parole revocation fine

(§ 1202.45), which the court stayed. Defendant did not ask the 

court to determine whether he had the ability to pay the fines 

and fees, nor did he otherwise object to the court’s imposition of

the fines and fees.

Defendant timely appeals.

FACTUAL BACKGROUND

In the early morning hours of September 28, 2013, Edwin 

Jurado was at a nightclub in Los Angeles. Jurado was drunk and

became involved in a dispute with approximately six members of 

the Park View clique of the MS-134 gang. After Jurado struck one 

of the female gang members, a security guard detained Jurado 

and walked the gang members out of the club. As they left the 

club, one of the gang members said that they planned “to pop the 

guy out.” Jurado was a member of a rival street gang.

The gang members headed from the club to a nearby 

apartment where they discussed the incident at the club and 

decided to “go give a lesson to somebody that had disrespected 

them.” Defendant, a senior member of the Park View clique, and 

his girlfriend were at the apartment. Shortly after 2:00 a.m.,

defendant (who was armed) and the other gang members (at least 

4 MS-13 refers to La Mara Salvatrucha gang.
5

two of whom were armed) drove back to the area of the nightclub 

and found Jurado walking nearby. The gang members, including 

defendant, got out of their cars and attacked Jurado.

While the attack was in progress, a group of four men drove 

by and saw that the victim, Jurado, was not defending himself. 

They decided to help the victim and stopped their car near the 

fight. One passenger got out of the car and immediately heard 

gunshots. He was injured and then ran to a nearby subway

station to summon help. Another passenger attempted to get out 

of the car but as he opened the car door, one of the armed gang 

members kicked the door closed and fired into the car, shattering 

the front driver’s side window. The driver sped away from the 

scene.

Defendant fatally shot Jurado three times in the chest and 

abdomen.

DISCUSSION

Defendant asserts he was denied a fair trial due to 

prosecutorial misconduct he alleges took place during closing 

argument. He also argues the court erred by imposing a 

restitution fine and court fees without first determining whether 

he had the ability to pay them. Neither of these arguments has 

merit.

1. The prosecutor did not commit misconduct.

1.1. Standard of Review

“We review claims of prosecutorial misconduct pursuant to 

a settled standard. ‘Under California law, a prosecutor commits 

reversible misconduct if he or she makes use of “deceptive or 

reprehensible methods” when attempting to persuade either the 

trial court or the jury, and it is reasonably probable that without 
6

such misconduct, an outcome more favorable to the defendant 

would have resulted. [Citation.] Under the federal Constitution, 

conduct by a prosecutor that does not result in the denial of the 

defendant’s specific constitutional rights—such as a comment 

upon the defendant’s invocation of the right to remain silent—but 

is otherwise worthy of condemnation, is not a constitutional 

violation unless the challenged action “ ‘so infected the trial with 

unfairness as to make the resulting conviction a denial of due 

process.’ ” ’ (People v. Riggs (2008) 44 Cal.4th 248, 298; People v. 

Crew (2003) 31 Cal.4th 822, 839.) In addition, ‘ “a defendant may 

not complain on appeal of prosecutorial misconduct unless in a 

timely fashion—and on the same ground—the defendant made an 

assignment of misconduct and requested that the jury be 

admonished to disregard the impropriety. [Citation.]” ’ (People v. 

Stanley [(2006)] 39 Cal.4th [913,] 952.) Objection may be excused 

if it would have been futile or an admonition would not have 

cured the harm. (See People v. Hill (1998) 17 Cal.4th 800, 820.)” 

(People v. Dykes (2009) 46 Cal.4th 731, 760.)

1.2. Additional Facts

Defendant asserts that the prosecutor committed 

misconduct during her closing argument. The bulk of her 

argument focused on the evidence presented and the elements of 

the crimes charged. And as she drew near the end of her 

argument, the prosecutor reviewed the evidence of gang 

membership and gang violence relevant to the gang allegations. 

Then, the prosecutor argued as follows: “Just to bring this to a 

close, [the co-prosecutor] and I are prosecutors here in the State 

of California, and specifically here in Los Angeles. We work for 

the Los Angeles County District Attorney’s Office. And this is a 

community. Lots of communities that are tired of gun violence, 
7

tired of gang violence. I was looking at news headlines recently 

and I saw this headline (indicating). What a sad state. What a 

sad view of our community. And so, having heard the evidence in 

this case and having heard the law that applies, we are asking 

you to find the defendants—hold them accountable and find them 

guilty. Thank you all for your time.” The court then dismissed the 

jurors for a 15-minute break.

After the jury left the courtroom, defense counsel objected 

to a slide the prosecutor displayed during the closing portion of 

her argument that apparently included a headline reading, 

“Niger’s Government Asked the U.S. to Arm Its Drones. People 

Aren’t Sure They Like the Idea. I Know America, You Can Be 

Shot in Broad Daylight.” During an extended colloquy with 

counsel, the court repeatedly questioned the relevance of the 

headline to the case as it did not relate to MS-13 in particular or 

gang violence generally. Despite impassioned argument from 

counsel, the court overruled defendant’s objections.

After the jury returned to the courtroom, and at 

defendant’s request, the prosecutor displayed the slide briefly 

while the court admonished the jury as follows: “There is a 

particular slide; it was utilized during the prosecutor’s argument. 

It is irrelevant to the issues in this case, and I am instructing you 

to disregard the information from that slide.” The court then 

directed the prosecutor to take the slide off the screen, which she 

did.

1.3. Analysis

Defendant contends the prosecutor’s use of the headline

and her reference to the impact of violence on the community 

generally was an improper reference to evidence not available to 

the jury. “ ‘ “Statements of supposed facts not in evidence ... are a 
8

highly prejudicial form of misconduct, and a frequent basis for 

reversal.” ’ ” (People v. Rodriguez (2020) 9 Cal.5th 474, 480.) We 

reject this argument for several reasons.

First, with respect to the headline, the jury was instructed 

to disregard the offending slide because it was irrelevant. We 

presume the jury followed these instructions. (See, e.g., People v.

Avila (2009) 46 Cal.4th 680, 719; People v. Ledesma (2006) 39 

Cal.4th 641, 684.)

Second, and in any event, the prosecutor’s remarks were 

not improper. “ ‘It is settled that a prosecutor is given wide 

latitude during argument. The argument may be vigorous as long 

as it amounts to fair comment on the evidence, which can include 

reasonable inferences, or deductions to be drawn therefrom. 

[Citations.] It is also clear that counsel during summation may 

state matters not in evidence, but which are common knowledge 

or are illustrations drawn from common experience, history or 

literature.’ ” (People v. Wharton (1991) 53 Cal.3d 522, 567.) The 

prosecutor’s comment about communities being tired of gun 

violence and gang violence relates to the widely acknowledged 

gang violence problem in Los Angeles, something surely—and 

unfortunately—within the general knowledge or common 

experience of jurors residing in this city.

Third, the prosecutor’s reference to the impact of violence 

on the community and her display of the headline were incredibly 

brief and unlikely to have influenced the jury to a significant 

degree. The transcript suggests that the comments and display of 

the headline lasted less than 30 seconds. Additionally, the 

statements about community violence were de minimis. As noted, 

the prosecutor’s closing argument, which comprises 66 pages in 

the reporter’s transcript, focused on the evidence and the charges. 
9

The portion to which defendant objects comprises less than onehalf of one page in the transcript. (See People v. Anderson (2018) 

5 Cal.5th 372, 415 [noting that “[t]o the extent the prosecutor’s 

language, ‘I believe with all my heart,’ could be viewed as 

invoking his personal prestige or depth of experience, the brief 

remark could not have been prejudicial”].)

Finally, even if the prosecutor’s brief commentary was 

improper, there is no reasonable likelihood that the result would 

have been different. (People v. Ayala (2000) 24 Cal.4th 243, 288.) 

Substantial evidence supports the jury’s verdicts and defendant 

does not contend otherwise. Further, it is unlikely that the jurors 

would have focused on the headline, given that even the court 

struggled to understand the connection between the headline 

(relating to the use of armed drones in Niger) and the case before 

it. The jury was, in any event, instructed that the attorney’s 

statements were not evidence. And we presume “ ‘the jury treated 

the court’s instructions as statements of law, and the prosecutor’s 

comments as words spoken by an advocate in an attempt to 

persuade.’ ” (People v. Morales (2001) 25 Cal.4th 34, 47.)5

Defendant also asserts that the prosecutor’s reference to 

the District Attorney’s office during her closing argument 

constituted improper vouching. Defendant failed to raise this 

issue below and it is therefore forfeited. “As a general rule a 

defendant may not complain on appeal of prosecutorial 

5 Because we conclude the prosecutor did not commit misconduct with 

respect to the headline and the comments identified by defendant, we 

need not consider defendant’s dependent claim that the prosecutor’s 

brief reference to violence in the community was part of “a pattern and 

practice that show[s] the misconduct was calculated[,] deliberate and 

reprehensible. (People v. Cole (2004) 33 Cal.4th 1158, 1203.)”
10

misconduct unless in a timely fashion—and on the same 

ground—the defendant made an assignment of misconduct and 

requested that the jury be admonished to disregard the 

impropriety.” (People v. Samayoa (1997) 15 Cal.4th 795, 841; 

People v. Dalton (2019) 7 Cal.5th 166, 251.)

2. Defendant forfeited his challenge to fines and fees.

Citing People v. Dueñas, supra, 30 Cal.App.5th 1157,

defendant contends the court violated his due process rights 

when it imposed, without first determining his ability to pay, a 

$300 restitution fine (§ 1202.4, subd. (b)), five $40 court 

operations assessments (§ 1465.8), and five $30 court facility 

assessments (Gov. Code, § 70373, subd. (a)(1)). In January 2019, 

Dueñas held that “due process of law requires [a] trial court to ... 

ascertain a defendant’s present ability to pay before it imposes” 

(1) “court facilities and court operations assessments” (under 

§ 1465.8 and Gov. Code, § 70373, respectively), or (2) a restitution 

fine (under § 1202.4). (Dueñas, at pp. 1167, 1172.)

Defendant concedes that he did not object to the imposition 

of these costs, even though Dueñas was decided more than one

year before his sentencing hearing. Typically, a defendant who 

fails to object to the imposition of fines, fees and assessments at 

sentencing forfeits the right to challenge them on appeal. 

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

Trujillo (2015) 60 Cal.4th 850, 856–859; People v. McCullough

(2013) 56 Cal.4th 589, 596–597.) Applying this general rule, we 

conclude the issue was forfeited in this case.

6

6 Defendant attempts to excuse his failure to object by arguing that 

“there was not enough time realistically for the practicing trial bar, 

and perhaps trial courts, to be informed of the change in the law 
11

Defendant notes some courts of appeal have concluded that 

the failure to raise the issue of a defendant’s inability to pay fines 

and fees at sentencing does not result in forfeiture and he urges 

us to follow those cases. (See People v. Montes (2021) 59 

Cal.App.5th 1107, 1117–1121 [analyzing conflicting court of 

appeal decisions and concluding Dueñas was not foreseeable]; 

People v. Castellano (2019) 33 Cal.App.5th 485, 489 [holding that 

because Dueñas announced a new constitutional principle, 

forfeiture doctrine did not apply]; cf. People v. Frandsen (2019) 33 

Cal.App.5th 1126, 1153 [defendant forfeited challenge to 

assessments and restitution fine because counsel failed to 

object].) The cases defendant relies upon, however, all involved 

sentencing proceedings that took place before Dueñas was final 

and they are therefore inapplicable here.

Finally, defendant suggests that he is indigent and 

therefore unable to pay the objected-to fines and fees because he 

was represented at trial by a public defender and is represented 

on appeal by counsel appointed by this court. Those facts are 

insufficient, standing alone, to establish indigency. (See, e.g., 

People v. Frandsen, supra, 33 Cal.App.5th at p. 1153 [rejecting 

defendant’s request to determine his alleged inability to pay fines 

and fees “based on a record that contains nothing more than his 

reliance on appointed counsel at trial”].)

brought about by Dueñas’[s] holding.” Given Dueñas’s significance and 

the resulting conflict among the courts of appeal regarding its 

propriety, we disagree.
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DISPOSITION

The judgment is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

EGERTON, J.