Filed 12/8/20 P. v. Cardoza CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

J ESSE ALEXANDER CARDOZA

,

Defendant and Appellant. B2 99328

(Los Angeles County Super. Ct. No. TA 141624 )

APPEAL from a judgment of the Superior Court of Los Angeles County, Laura R. Walton , Judge. Affirmed with
directions

. 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, Senior Assistant Attorney Gene ral, David E. Madeo and Theresa A.2

Patterson, Deputy Attorney s General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted Jesse Alexander Cardoza on two counts of
murder . He appeals, arguing the trial court violated his
constitutional rights to counsel and to effective assistance of
counsel when the court decided how to respond to a note from the jury at a hearing where Cardoza was represented by substitute
counsel rathe r than trial counsel. Because we do not presume prejudice in this situation, and Cardoza cannot show prejudice,
we affirm the convictions

. We also conclude Cardoza forfeited his argument the trial court violated his due process rights under People v. Due ñas (2019) 30 Cal.App.5th 1157 ( Dueñas ) , which
this court decided over five months before the trial court sentenced Cardoza, by imposing a fine and assessments without determining his ability to pay.

FACTUAL AND PROCEDURAL BACKGROUND

A. The People Charge Cardoza with Murdering Two People with a Knife
C a rdoza stabbed and kill ed two people, one on September 24, 2016 and one on October 29 , 2016

. Both attacks
occurred during fight s after a party. The People charged C a rdoza with two counts of murder. The People also alleged C a rdoza personally used a dangerous or deadly weapon within the meaning of Penal Code section 12022,3

subdivision (b)(1), 1 in committing both offenses and that the
commission of the two murders was a special circu mstance within the meaning of section 190.2, subdivision (a)(3).

B

. The Jury Reaches an Impasse, and the Trial Court Rereads Certain Instructions and Allows Counsel To Present Additional Argument In the morning on the fourth partial day of delib erations, the jurors sent the trial court a note stating (despite the court ’s instruction not to disclose their votes) that they were deadlocked on the September 24, 2016 murder count at 11 jurors for second degree murder and one juror for not guilty and t hat they were
deadlocked on the October 29 , 2016 murder count at 10 jurors for first degree murder, one juror for second degree murder, and one juror for not guilty. At a hearing to discuss the court’s response to the jury’s note, t he two prosecutors who tried the case appeared for the People

, and a substitute counsel “specially” appeared for Cardoza in place of the attorney who represented
Cardoza at trial. The court stated it intended to bring the jurors
into the courtroom and ask if the re was anything the court could do “to assist them in reaching a unanimous verdict in this case” and, at the prosecutors’ suggestion, to read the jurors CALCRIM No. 3551, the instruction on further deliberations when a jury is
deadlocked. (See People v. H em (2019) 31 Cal.App.5th 218, 222.) The court called the jurors into the courtroom and asked
the presiding juror if the re had been any “movement in the votes,” to which the presiding juror said, “No.” In response to the court’s question whether there wa s anything the court could do or instructions the court could read, the presiding juror stated, “Basically, from what I understand, is that there either has to be

1 Undesignated statutory references are to the Penal Code.4

testimony that someone actually saw the knif e and the stabbing

. . . . They just wanted to h ave some proof that the
defendant stabbed the victim s . It was not enough evidence.” At a sidebar conference, the court suggested rereading the
instructions on circumstantial evidence , and t he prosecutors suggested allowing counsel to present additional a rgument on circumstantial evidence. Substitute counsel did not object. The
court said that trial counsel for Cardoza , who the prosecutor represented was an hour away and could argue after lunch

, would need to return to the courtroom . The court decided t o reread the instructions on circumstantial evidence and allow each side to present argument “concerning the circumstantial evidence as to the proof of the stabbing.” When the sidebar conference concluded, the court told the jurors that after lunch it wou ld read instructions on circumstantial evidence and allow the attorneys

to present additional argument on how those instructions applied
to the case.
When the proceedings resumed after lunch, the court
stated that the clerk ha d spoken with trial counsel for Cardoza
and that the clerk told counsel the court wanted him to be in court at 2:30 p.m. When the court indicated it was going to proceed and read the jurors CALCRIM No. 3551 and the pattern instructions on circumstantial evidence, substitute counsel for Cardoza stated, “Would the court be willing to forego the reading of any further instructions until [trial counsel for Cardoza] gets here? I don’t know a thing abo ut this case. I’m the conflict attorney today in the courthouse. I’m feeling very unco mfortable about this being done on the record at this point. I don’t want to jeopardize this case in any way at all. Since he will be here within a half hour, I’m asking the court to forgo the reading of the instructions until [trial counsel for Cardoza] has an opportunity to address the issue himself.” The court stated that5

trial counsel for Cardoza told the clerk he did not object to rereading instructions the court had already read to the jury. One of the prosecutors confirmed that trial counsel for Cardoza told him the same thing. Substitute counsel for Cardoza said, “Thank you. I did not have that discussion with him, Your Honor, so I didn’t know that.” In response to substitute counsel’s question, the court confirmed it was on ly reading CALCRIM
No. 3551 an d instructions the court had previously read. Substitute counsel stated, “Thank you, Your Honor. I appreciate
that.” The jurors returned to the courtroom, and the court read those instructions and told the jury the attorney s would give further argument when trial counsel for Cardoza arrived.
When trial counsel for Cardoza arrived later that afternoon, the court summarized for him what had occurred in
his absence (and in substitute counsel’s presence) : the jury’s note,
the court’s discussion with the presiding juror, and the reading of
the CALCRIM instructions on circumstantial evidence and
further deliberations. The court also put on the record that the jury had asked another question, this time asking for
“clarification o f the difference between first degree and second degree murder.” The court stated that, after conferring with one of the prosecutors and trial counsel for C a rdoza , the court answered the question by telling the jurors that they should
review CALCRIM Nos. 520 and 521 and that, for first degree murder, the defendant had to “have acted, one, willfully, two, deliberately, and three, with premeditation.” The court said that it intended to bring the jurors into the courtroom for additional argument by counsel, but that trial counsel for Cardoza had indicated he did not want additional argument. Trial counsel for Cardoza argued: “First of all, I would have a strong objection to an argument by the People. It’s just not fair, and it’s in violation of due process because I know this6

court would never give me an opportunity to talk to this jury if it
was 11 to 1 for innocent.” Counsel objected to additional argument because, given that the court and counsel knew the jury “ count” was 11 to 1 to convict, “the pressu re on this one juror is undue, and it’s in violation of due process.” Trial counsel for Cardoza stated: “I’m not going to proceed because of the violation of due process. What’s fair here? He’s had two times to argue, and where are you going to limit i t?” Counsel asked the court to
excuse him and Cardoza “from any proceeding in this matter.”
Trial counsel for Cardoza further stated: “I would like to add that [the jurors] have been advised that they can read the law. It’s in there. They can see what circumstantial evidence is. I don’t mind if he reads the law. Why does he have a chance now to talk about facts and evidence and all of that? It’s just

— just boggles my brain.” And: “I doubt very seriously if this cour t, or any court, had a count of

. . . guilty or not guilty before they start giving the district attorney the floor again. I’ve never seen it. ” The trial court took a personal waiver of Cardoza’s right to be present during the prosecutors’ argument, but ultimately ordered
Cardoza and hi s attorney t o remain in the courtroom. With trial counsel for Cardoza’s permission, the court informed the jury that
counsel for Cardoza would not be making any further argument. At the conclusion of the prosecutor’s additional argument, the
trial court denied Cardoza’s motion for a mistrial.

C

. The Jury Convicts Cardoza The jury found Cardoza guilty of second degree murder on one count and first degree murder on the other cou nt. The jury
also found th e special circumstance and weapon allegations true. On the conviction for second degree murder, the trial court
sentenced Cardoza to a prison term of 15 years to life, plus one7

year for the weapon enhancement . On the conviction for first degree murder with the special circumstance finding, the court sentenced Cardoza to life in prison without the possibility of parole, plus one year for the weapon enhancement. 2 Cardoza timely appealed.

DISCUSSION

Cardoza does not argue the trial court erred in rereading the CALCRIM instructions to the jury or in allowing both sides to present additional argument on circumstantial evidence. Nor does he argue, as his trial counsel argued to the trial court, that
all owing the prosecutors to present a third argument to the jury violated due process. Instead, Cardoza argues that having a hearing on how to respond to the jury’s note with Cardoza’s substitute counsel, rather than his trial counsel, denied Cardoza
his con stitutional right to counsel under United States v. Cronic (1984) 466 U.S. 648 [ 104 S.Ct. 2039, 80 L.Ed.2d 657 ] ( Cronic ) and his right to effective assistance of counsel under Strickland v. Washington (1984) 466 U.S. 668 [ 104 S.Ct. 2052

, 80 L.Ed.2d 674 ] ( S trickland )

.

A. Cardoza Was Not Deprived of H is Right to Counsel Cardoza argues that “ the representation rendered

. . . by [substitute counse l ] , who appears to have been thrust into a circumstance in which she could only advocate for [Cardoza] on the procedural point that the proceedings should not take place

2 The minute order and the abstract of judgment erroneously state the court sentenced Cardoza to life without the possibility of parole on both counts. The trial court will have to correct both

errors.8

without defense trial counsel and not on any point of substance,
was of such a level tha t it amounted to a constructive denial of [his] right to counsel ” under Cronic

. Citing substitute counsel’s statement that she did not know anything about the case, Cardoza argues substitute counsel “ did not advocate for [Cardoza] and the evaluation and a nalysis of the nature of the jury impasse and of the agreed

- upon course of action were never subjected to ‘ adversarial testing. ’ ” Cardoza asserts his substitute
counsel “ was not and, because of her lack of familiarity with his case, could never have been an effective advocate for [Cardoza] in these critical and adversarial proceedings. ”
Under the United States Supreme Court’s decisions in
Cronic and Strickland

, “t he right to the assistance of counsel is violated either by (1) the complete denial of couns el or its equivalent, or (2) the denial of the effective assistance of counsel. [Citations.] .

. . [T] ypically, a defendant claiming a violation of the federal constitutional right to effective assistance of counsel must satisfy a two

- pronged showing: tha t counsel ’ s performance was deficient, and that the defendant was prejudiced, that is, there is a reasonable probability the outcome would have been different were it not for the deficient performance. [Citation.] In contrast, a defendant is spared ‘ the need of showing probable effect upon
the outcome

. . . where assistance of counsel has been denied entirely or during a cri tical stage of the proceeding

. . . the likelihood that the verdict is unreliable is so high that a case

- by

case inquiry is unnecessa ry. [Citations.] But only in

“ circumstances of that magnitude ” do we forgo individual inquiry
into whether counsel ’ s inadequate performance undermined the reliability of the verdict. ’ ” ( People v. Alexander (2010) 49 Cal.4th 846, 888 .) The California Supreme Court has emphasized that9

the exception to “ the rule that a defendant claiming ineffective assistance of counsel must show prejudice ” is “very narrow

. ” ( People v. Rices (2017) 4 Cal.5th 49, 91 , citing Florida v. Nixon (2004) 543 U.S. 1 75, 190 [ 125 S.Ct. 551, 160 L.Ed.2d 565 ] and
Bell v. Cone (2002) 535 U.S. 685, 696

- 697 [122 S.Ct. 1843,

152 L.Ed.2d 914 ] ; see People v. Brown (2014) 59 Cal.4th 86, 115 .) The United States Sup r eme Court in Cronic “ recognized three categories of cases tha t constitute per se violations of the Sixth Amendment right to counsel with respect to which prejudice is presumed: (1) ‘ the complete denial of counsel ’ [citation] at a critical stage of trial, (2) counsel ’ s failure ‘ to subject the prosecution ’ s case to me aningful adversarial testing ’ [citation], and (3) ‘ the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small [under the particular circumstances] that a presumption of prejudice is appropriate without inquir y into the actual conduct
of the trial. ’ ” ( People v. Jacobs (2013) 220 Cal.App.4th 67, 76

, quoting Cronic

, supra , 466 U.S. at pp. 659

- 660 ; see People v.
Brown

, supra , 59 Cal.4th at p. 115 [“‘ Defendants have been relieved of the obligation to show prejudice [under Cronic ] only where counsel was either totally absent or was prevented from assisting the defendant at a critical stage. ’”]; 3 People v. Streeter (2012) 54 Cal.4th 205, 232 [“w hen the defendant is represented

3 The People concede “a court’s response to an impasse during jury deliberations constitutes a critical stage of the proceeding .

. . .” (See People v. Hawthorne (199 2) 4 Cal.4th 43, 68

- 69 [“ failure to give notice or afford an opportunity to respond ” to an inquiry from the jury or to “ take [ ] some action on the defendant’s behalf to amplify, clarify, or modify the supplemental instruction or procedure ” is constitutional error]; People v. Bradford (2007) 154 Cal.App.4th 1390, 1410 [“Jury instruction is a critical stage of the proceedings.”].)10

by counsel, the presumption of prejudice will only stand when counsel entirely failed to subject the prosecution ’ s case to meaningful adversarial testing ”].) “ Prejudice must be shown if counsel has opposed the prosecution througho ut the relevant proceeding, even if counsel failed or was unable to do so at specific points. ” ( People v. Hernandez (2012) 53 Cal.4th 1095,

1106 .)
C a rdoza does not fall within any of the Cronic exceptio ns to the requirement of prejudice. He was represented by counsel at all times; at no point in the proceedings was he completely denied counsel or its equivalent. D uring one morning of jury
deliberations he was briefly represented by an attorney who was

su bstituting or standing in for his trial attorney, but that attorney was still an attorney. (See People v. Streeter

, supra , 54 Cal.4th at p. 232 [ representation by substitute counsel without
trial counsel during jury selection did not deny the defendant hi s right to counsel under the federal and state constitutions

“ because defendant had an attorney representing him at all times during the jury selection proceedings ” and “ there was not a complete denial of counsel, let alone ‘ structural error ’”]; People v.
Benavides (2005) 35 Cal.4th 69, 86

- 87 [absence of lead counsel during a portion of jury selection was not a “ presumptively prejudicial violation of [the defendant’s] right to counsel ” where

“ either lead counsel or cocounsel, or both, were present at all
ti mes ”].) Nor was there a failure to meaningfully and adversarially test the People’s case. The People’s case was over ; Cardoza’s trial
counsel had subjected it to meaningful adversarial testing for
nine trial days

. The issue was whether the court would reread
certain instructions and one pattern jury instruction on continuing deliberations when the jury wa s deadlocked. Substitute counsel challenged the prosecutors’ request and the11

court’s ruling by objecting to the court rereading any instructions
until trial counsel returned later in the afternoon. Th at th e court overruled the objection did not indicate the absence of an adversarial process. To the contrary, the proceedings reflected
that the adversarial process was functioning properly: The

pr osecutors made a request, Cardoza’s substitute counsel objected, and the court ruled

. (See Bell v. Cone

, supra , 535 U.S. at pp. 696

- 697 [ “When we spoke in Cronic of the possibility of presuming prejudice based on an attorney ’ s failure to test the
prosecut or ’ s case, we indicated that the attorney ’ s failure must be complete.” ]; In re Visciotti (1996) 14 Cal.4th 325 , 353 [“ notwithstanding the broad language in the Cronic opinion [citation] to the effect that when ‘ counsel entirely fails to subject the prosecu tion ’ s case to meaningful adversarial testing, ’ the right to competent counsel has been denied and the result of the trial is presumptively unreliable, the actual application of Cronic
has been much more limited ” ]; In re Avena (1996) 12 Cal.4th 694,
727 [ trial counsel who waived opening statement, called no defense witnesses, and did not address two murder charges or two special circumstance allegations in closing argument was

“ neither ‘ totally absent ’ nor ‘ prevented ’ from assi sting petitioner
at trial ”] .) Finally, this was not a case where , under the circumstances, the likelihood was small that even a fully competent attorney could provide effective assistance. Cases in
th at category include those where “t he court barred coun sel from the courtroom, interfered with their ability to confer with their
clients [citation], directed them to sit mute at the counsel table [citation], issued an order out of pique or whim directing counsel to stop representing their clients, or anything similarly serious. ” ( People v. Rivas (2013) 214 Cal.App.4th 1410, 1424

- 1425 .) This
was not such a case. There was a discussion without Cardoza’s12

trial counsel about rereading jury instructions on circumstantial evidence, but substitute counsel

— competen tly

, albeit unsuccessfully

— objected and asked the court not to read the
instructions until trial counsel returned and could be heard. There was also a discussion about having counsel present additional argument on the concept of circumstantial evidence

an d how it related to the evidence in the case, but Cardoza’s trial counsel strenuously objected to any additional argument when he
returned to the courtroom. (Cf. Cronic

, supra , 466 U.S. at

pp. 660

- 661 [citing Powell v. Alabama (1932) 287 U.S. 45 [ 53 S.Ct. 55, 77 L.Ed. 158 ]

, where the trial court on the day of trial appointed an out

- of

- town lawyer who “was unwilling to represent the defendants on such short notice” but who assisted
the defendants with “whatever help the local ba r could provide

, ” as an example of “a case in which the surrounding circumstances made it so unlikely that any lawyer could provide effective assistance that ineffectiveness was properly presumed without inquiry into actual performance at trial”].)
The ca ses cited by Cardoza, People v. Nunez (1983)

144 Cal.App.3d 697 and People v. Hogan (1982) 31 Cal.3d 815

, disapproved in People v. Cooper (1991) 53 Cal.3d 771, 836

, d o not support his argument. Both cases involved the complete absence
of counsel

, not subs titute or stand

- in counsel, and in both cases
the court (contrary to Cardoza’s position that prejudice should be presumed ) considered whether the error was prejudicial . In
Nunez the trial court excused an alternate juror, ordered readback of testimony, accepted the jury’s verdict, and polled the jurors, all in the absence of (and indeed without even notifying)
the defendant’s attorney. ( Nunez , at pp. 701

- 703.) The court in
Nune z held this was error, but concluded the error was harmless
under Chapman v. California (1967) 386 U.S. 18, 24 [ 87 S.Ct.

824 , 17 L.Ed.2d 705 ] , because the defendant “ was not prejudiced13

by the absence of his counsel during the jury ’ s deliberations .” ( Nunez , at pp. 702

- 703.) In Hogan the trial court responded to jury requests and sent exhibits into the jury room without notifying the defendant’s attorney . ( Hogan , at p. 848.) The Supreme Court in Hogan held the “ conduct of the trial court in sending in the exhibits without notifying counsel was serious

error ,” but the Supreme Court proceeded to consider “ whether the denial of assistance of counsel here was prejudicial error requiring reversal ,” ultimately concluding the error was not
harmless under Chapman

. ( Id. at p. 850.) 4

B. Cardoza Was Not Deprived of His Right to Effective Assistance of Counsel
C a rdoza argues, briefly and in the alternative, that his substitute counsel “ failed to provide [h i m] with the effective representation the Sixth Amendment right to counsel contemplates. ” Cardoza asserts his substitute counsel provided
ineffective assistance because she “ was unable to advocate for [him] in resolving a delicate jury impasse matter involvi ng one holdout juror for acquittal because counsel knew nothing about [the] case. ”
To establish ineffective assistance of counsel under
Strickland , “‘“a defendant must show that (1) counsel ’ s representation fell below an objective standard of reasonablen ess under prevailing professional norms, and (2) counsel ’ s deficient performance was prejudicial, i.e., there is a reasonable

pr obability that, but for counsel’ s failings, the result would have

4 Cardoza mentions the right to counsel under the California Constitution, but he does not analyze whether or ho w that right applies any differently from the right to counsel under the United States Constitution.14

been more favorable to the defendant. [Citation.] ‘ A reasona ble probability is a probability sufficient to undermine confidence in
the outcome. ’”’” ( People v. Rices

, supra , 4 Cal.5th at p. 80 ; see People v. Sepulveda (2020) 47 Cal.App.5th 291, 301 .) “ If a claim
of ineffective assistance of counsel can be determin ed on the ground of lack of prejudice, a court need not decide whether
counsel’ s performance was deficient. ” ( In re Crew (2011)

52 Cal.4th 126, 150 ; see Strickland

, supra , 466 U.S. at p. 697 [ “ a court need not determine whether counsel ’ s performance was
d eficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies ,” and “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that
course should be followed ”].) Here, Cardoza suffered no prejudice from substitute counsel’s initial failure to object to the court’s decision to reread
the instructions on circumstantial evidence. The court had already read those CALCRIM instruction s, and Cardoza does not argue there was anything erroneous or improper about the m

. (See United States v. Chambers (N.D.Cal. Aug. 19, 2015,
No. 08

- CR

- 0 0658

- PJH

- 4) 2015 WL 12862915, p. 7 [counsel’s failure to object to the court rereading instructions was n ot prejudicial under Stricklan d where there was “ no reasonable probability that the court would have sustained an objection to rereading the original instructions ”].) The record reflects that
trial counsel for Cardoza told the courtroom clerk and one of t he prosecutors he had no objection to the court rereading the instructions, and Cardoz a does not contend the record on this point is inaccurate. Indeed, when he returned to the courtroom
in the aft ernoon, trial counsel for Cardoz a stated that, although
he objected to allowing the prosecutor to present additional15

argument on circumstantial evidence, he had no objection to the

court rereading jury instructions the court had already given. Nor did Cardoza suffer any prejudice from substitute
counsel’s failur e to object to the court’s decision to allow additional argument to assist the jurors in reaching a verdict. Trial counsel strenuously objected to the court’s decision upon his
return to the courtroom. The court heard the objection, allowed
trial counsel for Cardoz a to present legal argument on the

matter , and ensured there was a record of the objection to preserve the issue for appeal. Although trial counsel argued the court’s decision to allow additional argument was unfair and
violated Cardoza’s due process rights, Cardo z a does not make those arguments on appeal. He argues only that substitute counsel was ineffective for not making the argument in the morning that trial counsel made in the afternoon. Under these circumstances, substitu te counsel’s performance, regardless of its comparison to prevailing professional norms, did not cause Cardoza any prejudice.

C. Cardoza Forfeited His Challenge to the Restitution
Fine and Assessments
Cardoza argues the trial court violated his due process rights under Dueñas

, supra , 30 Cal.App.5th 1157 by imposing a $300 restitution fine under section 1202.4, subdivision (b), two $30 court facilities assessment s under Government Code section 70373, and two $40 court operations assessment s under section 1465.8 without determining his ability to pay. 5 The trial court

,

5 The Supreme Court has granted review in People v. Kopp (2019) 38 Cal.App.5th 47

, review granted November 13, 2019, S257844, on the following issue s : Must a court consider a16

however, sentenced Cardoza on June 20 , 2019, almost six months
after we issued our opinion in Dueñas

. Because Cardoza could
have raised the issu e of his inability to pay the restitution fine
and assessments but failed to do so, he has forfeited the argument. (See People v. Castellano (2019) 33 Cal.App.5th 485, 490 [“a defendant must in the first instance contest in the trial
court his or her abil ity to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court”].)

defendant’s ability to pay before imposing or executing fines, fees, and assessments? If so, which party bears the burden of proof regarding defendant’s inability to pay?17 DISPOSITION

The judgment is affirmed. The trial court is directed to correct the June 20, 2019 minute order and the abstract of judgment to reflect that the court sentenced Cardoza to a prison term of 15 years to life on his conviction for second degree murder and to a prison term of life without the possibility of parole o n his conviction for first degree murder with the special circumstance finding. The trial court is also directed to send a corrected abstract of judgment to the Department of Corrections and
Rehabilitation.

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.