Filed 10/1/20 P. v. Romero CA2/4

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

MARCO ROMERO,

Defendant and Appellant.

B301540

Los Angeles County

Super. Ct. No. KA118993

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Bruce F. Marrs, Judge. Affirmed.

Aaron J. Schechter, 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 

Attorney General, David. E. Madeo and Idan Ivri, Deputy 

Attorneys General, for Plaintiff and Respondent. 
2

INTRODUCTION

A jury convicted appellant and defendant Marco Romero of 

fleeing a pursuing peace officer’s motor vehicle while driving 

recklessly, and driving with a suspended or revoked license. 

Romero admitted he sustained a prior strike conviction, and the 

trial court sentenced him to six years in state prison. On appeal, 

Romero raises four arguments: (1) the trial court prejudicially 

erred by providing an incorrect response to a jury question; 

(2) the court prejudicially violated due process by instructing the 

jury using an impermissible mandatory presumption; (3) the 

court erred under People v. Dueñas (2019) 30 Cal.App.5th 1157

by imposing assessments and a restitution fine without 

determining Romero’s ability to pay; and (4) the court violated its 

duty to consider a limited probation report when determining the 

amount of the restitution fine. We affirm.

PROCEDURAL BACKGROUND

The Los Angeles County District Attorney filed an 

information charging Romero with fleeing a pursuing peace 

officer’s motor vehicle while driving recklessly (Veh. Code, 

§ 2800.2; count one)1 and driving with a suspended or revoked 

license (§ 14601.1, subd. (a); count two). The information further 

alleged Romero sustained one prior strike conviction (Pen. Code, 

§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and six prior prison 

term convictions (Pen. Code, § 667.5, subd. (b)).

The jury found Romero guilty on both counts. Romero 

admitted the strike prior and two of the six alleged prison priors. 

1 All undesignated statutory references are to the Vehicle 

Code.
3

The trial court sentenced Romero to six years in state prison, 

consisting of an upper term on count one, doubled to six years for 

the prior strike. The court dismissed count two, struck the two

prison prior enhancements Romero admitted, and struck the 

remaining four prison prior enhancements in the interest of 

justice under Penal Code section 1385. 

Romero timely appealed. 

FACTUAL BACKGROUND

On September 2, 2018, at about 5:00 p.m., Romero was 

driving a pickup truck in Pomona without a front license plate. 

Pomona Police Officers Sacca and O’Mahony, who were driving 

an unmarked police car, activated their lights and sirens and 

attempted to stop Romero. Romero drove a short distance then 

pulled over to the curb. A woman exited Romero’s car from the 

passenger door, Romero drove away, and the officers gave chase. 

Officer Gomez joined the pursuit. During the pursuit, 

Gomez was wearing his uniform and driving a marked police car 

with his lights and sirens activated. Officer Hernandez, who was 

also driving a marked police car with his lights and sirens 

activated, joined the pursuit as well. Several other marked patrol 

cars also joined the pursuit. 

During the chase, Romero committed numerous traffic 

violations. He sped while driving on the freeway and in 

residential and business districts, ran through red lights without 

stopping, made unsafe lane changes without signaling, drove off 

the road, and unsafely passed other cars on the right. The chase

ended when Officer Joseph Davila performed a Pursuit 
4

Intervention Technique (PIT) maneuver on Romero’s truck. 

Officer Davila took Romero into custody. 

Officer Sacca spoke to Romero at the Pomona city jail after 

advising him of his Miranda2 rights. Romero admitted he knew

he was being pursued by the police and stated he did not pull 

over because he did not want to go to jail.

3 He said his plan was 

to drive until he ran out of gas. 

The defense presented no evidence.

DISCUSSION

I. Romero’s argument concerning the jury question

Romero first argues the trial court prejudicially erred in 

violation of his constitutional rights by inadequately responding

to the jury’s mid-deliberation request for a definition of willful or 

wanton disregard for the safety of persons or property. The 

Attorney General argues Romero has forfeited the argument 

because defense counsel’s position below was to resubmit CALJIC 

No. 12.85 to the jury rather than further define willful and 

wanton disregard. The Attorney General further argues that, 

even assuming Romero had not forfeited the argument, the 

court’s answer was not an abuse of discretion and did not

prejudice Romero. We agree with the Attorney General. Romero 

has forfeited his argument, and even assuming he had not 

forfeited the argument, we find no error or prejudice.

2 Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 

L.Ed.2d. 694].)

3 Romero was not licensed to drive on September 2, 2018. His 

driver’s license had been suspended since February 11, 2000, and 

he had been notified of the suspension. 
5

A. Procedural background

Using CALJIC No. 12.85, the trial court instructed the jury 

on both felony reckless evading (§ 2800.2, subd. (a)) and the 

lesser included offense of misdemeanor evading (§ 2800.1, subd. 

(a)). The court stated to the jury: “Every person who flees or 

attempts to elude a pursuing peace officer in violation of Vehicle 

Code Section 2800.1, subdivision (a) and drives the pursued 

vehicle in a willful or wanton disregard for the safety of person or 

property is guilty of a violation of Vehicle Code Section 2800.2,

subdivision (a), a felony.” (See CALJIC No. 12.85)

The court then defined the term “willful or wanton 

disregard for the safety of persons or property” with greater 

specificity. It explained: “A willful or wanton disregard for the 

safety of persons or property also includes, but is not limited to 

driving while fleeing or attempting to elude a pursuing peace 

officer, during which time the person driving commits three or 

more motor vehicle violations, such as violation of Vehicle Code 

Section 21755(a), passing on the right; 21453, failure to stop for a 

red light; 22350; speeding; 22349, exceeding the maximum 65 

miles an hour; 22107, unsafe turn; 22450 failure to stop for a stop 

sign.” (See CALJIC No. 12.85.) The court further explained: 

“Willful or wanton also means act or acts intentionally performed 

with a conscious disregard for safety of persons or property. It 

does not necessarily include an intent to injure.” (See ibid.) Next, 

still using CALJIC No. 12.85, the court instructed the jury on the 

elements of a section 2800.2, subdivision (a) violation, which 

included the following element: “the driver of the pursued vehicle 
6

drove the vehicle in a willful or wanton disregard for the safety of 

persons [or] property.”

4

During deliberations, the jury submitted the following

question: “Please provide clarification on the definition or what 

constitutes [element] #8 ‘The driver of the pursued vehicle drove 

the vehicle in a willful or wanton disregard for the safety of 

persons or property.’” 

The trial court conferred with the parties regarding the 

jury question. Defense counsel proposed the court simply refer 

the jury back to CALJIC No. 12.85 in its entirety. The 

prosecution proposed the court respond by focusing the jury on 

the definition of willful and wanton disregard as committing 

three or more traffic violations. Defense counsel argued that

highlighting only one of the two definitions in CALJIC No. 12.85 

would be improper, particularly because the prosecution had 

argued Romero acted with a willful or wanton disregard based on 

4 The full list of elements is as follows: “1. A person, while 

operating a motor vehicle willfully fled or otherwise attempted to 

elude a pursuing peace officer; [¶] 2. The person did so with the 

specific intent to evade the pursuing peace officer; [¶] 3. The 

peace officer’s vehicle exhibited at least one lighted red lamp 

visible from the front; [¶] 4. The person saw or reasonably should 

have seen the red lamp; [¶] 5. The peace officer’s motor vehicle 

sounded a siren as reasonably necessary; [¶] 6. The peace officer’s 

motor vehicle was distinctively marked; [¶] 7. The peace officer’s 

motor vehicle was operated by a peace officer wearing a 

distinctive uniform; and [¶] 8. The driver of the pursued vehicle 

drove the vehicle in willful or wanton disregard for the safety of 

persons and property.” (CALJIC 12.85.)
7

both theories.5 The prosecution offered a compromise with 

defense counsel’s position, proposing the court answer the 

question by excerpting both definitions. Defense counsel objected 

to the proposed compromise, noting the prosecution’s wording of 

the second definition was slightly different than how it was 

worded in CALJIC No. 12.85. The court explained that the 

different wording was the clearest way to respond to the jury, and 

the proposed compromise was still a correct statement of law. 

Over defense counsel’s objection, the court opted to use the 

prosecution’s proposed compromise. The court provided the jury 

with the following answer: “Willful and wanton disregard for the 

safety of persons or property includes: [¶] 1. Driving while fleeing 

or attempting to elude a peace officer during which time the 

person driving commits three or more Vehicle Code violations, 

such as: speeding in violation of Vehicle Code section 22350, 

exceeding 65 mph on a highway in violation of Vehicle Code 

section 22349, passing on the right in violation of Vehicle Code 

section 21755, unsafe turning movements in violation of Vehicle 

Code section 22107, failing to stop at a stop sign in violation of 

Vehicle Code section 22450, or failing to stop for a red light in 

violation of Vehicle Code section 21453; [¶] OR [¶] 2. Driving in 

any other manner that amounts to willful or wanton disregard for 

the safety of persons or property. [¶] See 12.85.” 

5 The other definition to which defense counsel was referring 

was the language in CALJIC 12.85 stating: “‘Willful or wanton’

[also] means act or acts intentionally performed with a conscious 

disregard for safety of persons or property. It does not necessarily 

include an intent to injure.” 
8

B. Applicable legal principles

“When a jury asks a question after retiring for deliberation, 

‘[s]ection 1138 imposes upon the court a duty to provide the jury 

with information the jury desires on points of law.’ [Citation.]” 

(People v. Eid (2010) 187 Cal.App.4th 859, 881-882.) “This does 

not mean the court must always elaborate on the standard 

instructions. Where the original instructions are themselves full 

and complete, the court has discretion under section 1138 to 

determine what additional explanations are sufficient to satisfy 

the jury’s request for information. [Citation.]” (People v. Beardslee

(1991) 53 Cal.3d 68, 97 (Beardslee).) “Indeed, comments diverging 

from the standard are often risky. [Citation.]” (Ibid.) “But a court 

must do more than figuratively throw up its hands and tell the 

jury it cannot help. It must at least consider how it can best aid 

the jury. It should decide as to each jury question whether 

further explanation is desirable, or whether it should merely 

reiterate the instructions already given.” (Ibid., italics omitted.)

We review potential errors under Penal Code section 1138 for 

abuse of discretion. (People v. Hodges (2013) 213 Cal.App.4th 531, 

539 (Hodges).)

C. Romero’s argument is forfeited

We first decide whether Romero has forfeited the argument 

by failing to object below with sufficient specificity. We conclude 

he has. Whereas Romero argued below that the trial court should 

refer the jury back to CALJIC No. 12.85, he now argues that the 

trial court’s decision to direct the jury to CALJIC No. 12.85 was 

erroneous. “When the trial court responds to a question from a 
9

deliberating jury with a generally correct and pertinent 

statement of the law, a party who believes the court’s response 

should be modified or clarified must make a contemporaneous 

request to that effect; failure to object to the trial court’s wording 

or to request clarification results in forfeiture of the claim on 

appeal. [Citations.]” (People v. Dykes (2009) 46 Cal.4th 731, 802.)

The court responded to the jury’s question with a correct and 

pertinent statement of the law. And although Romero’s counsel 

objected to the wording of the second theory in the answer the 

trial court gave the jury, the argument Romero raises on appeal 

is different from the basis for the objection lodged in the trial 

court. (See People v. Polk (2010) 190 Cal.App.4th 1183, 1194 

[argument is forfeited if “a defendant fails to make a timely 

objection on the precise ground asserted on appeal . . . .

[Citations.]”].)

6

We likewise reject Romero’s argument that the issue is 

preserved because any objection would have been futile. Because 

Romero did not lodge the objection, it is impossible to discern how 

the trial court would have reacted. 

Finally, we reject Romero’s contention that his argument is 

preserved because trial counsel was ineffective in failing to object 

on the grounds now raised on appeal. To prevail on an ineffective 

assistance claim, a defendant must establish “not only deficient 

performance, i.e., representation below an objective standard of 

reasonableness, but also resultant prejudice. [Citation.]” (People 

6 Romero’s position below was the court should answer the 

question by referring the jury back to CALJIC No. 12.85. This 

was essentially what the trial court did. It provided an answer 

that reiterated principles stated in CALJIC No. 12.85 and 

referred the jury back to that instruction. 
10

v. Bolin (1998) 18 Cal.4th 297, 333.) “‘[E]xcept in those rare 

instances where there is no conceivable tactical purpose for 

counsel’s actions,’ claims of ineffective assistance of counsel 

generally must be raised in a petition for writ of habeas corpus 

based on matters outside the record on appeal. [Citations.]”

(People v. Salcido (2008) 44 Cal.4th 93, 172.) Here, we cannot 

conclude there was no tactical purpose for counsel’s actions. 

Given that the record contained so much evidence of willful and 

wanton disregard for safety, counsel could have reasonably 

concluded that the shortest possible answer would provide the 

best tactical benefit for her client. 

D. The trial court did not abuse its discretion

Even assuming Romero had not forfeited the argument, we 

find no abuse of discretion. (See Hodges, supra, 213 Cal.App.4th 

at p. 539.) The court answered the jury’s question by reiterating 

that “willful and wanton disregard for the safety of persons or 

property” refers to either (1) committing three or more Vehicle 

Code violations; or (2) engaging in other conduct specified in 

CALJIC No. 12.85. The trial court’s answer was legally correct. 

(See People v. Richie (1994) 28 Cal.App.4th 1347, 1360-1362 [the 

terms “willful” and “wanton” do not have technical legal 

meanings, nor do they require clarification as arcane 

terminology].) The court provided the jury the clarification it 

requested. 

We reject Romero’s argument that CALJIC No. 12.85 fails 

to define the phrase “willful and wanton disregard.” We instead 

conclude the definition provided in CALJIC No. 12.85 is

adequate. For this reason, we also reject Romero’s arguments
11

that the definition in CALJIC No. 12.85 is circular, and that the 

court’s response was inadequate because it did not include the 

definition provided in CALCRIM No. 2181.7

We likewise reject the argument that the court knew the 

jury wanted a “textbook” definition of the term, but made no 

attempt to provide the definition it knew the jury sought. As 

discussed above, the court’s answer was clear and correct. We 

similarly reject Romero’s related contention that the court 

“acknowledged that it was punting on the jury’s request for a 

definition” when it stated “we’ll see if they respond. I’m not going 

to cross that bridge until I get to it.” There was nothing wrong 

with the court’s decision to provide a legally correct answer it 

believed was clear, then wait to see whether the jury was 

satisfied with the answer or requested further clarification. (See 

Beardslee, supra, 53 Cal.3d at p. 97 [“court has discretion under 

section 1138 to determine what additional explanations are 

sufficient to satisfy the jury’s request for information.

[Citation.]”].)

In arguing the trial court’s response was erroneous, Romero 

relies heavily on general language from People v. Thompkins

(1987) 195 Cal.App.3d 244 (Thompkins). Thompkins is 

7 CALCRIM No. 2181 provides: “A person acts with wanton 

disregard for safety when (1) he or she is aware that his or her 

actions present a substantial and unjustifiable risk of harm, (2) 

and he or she intentionally ignores that risk. The person does 

not, however, have to intend to cause damage.” This definition is 

similar to the language contained in CALJIC No. 12.85: “‘Willful 

or wanton’ means an act or acts intentionally performed with a 

conscious disregard for the safety of persons or property. It does 

not necessarily include an intent to injure.”
12

inapplicable. Thompkins found error because the trial court’s 

response to the jury question was legally incorrect. (Id. at pp. 

247, 250-251.) Here the court’s answer was legally correct. 

We find no abuse of discretion. 

E. Prejudice

Even assuming we were to conclude the trial court’s 

response was erroneous, we would find no prejudice under 

Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 

L.Ed.2d 705 (Chapman) or People v. Watson (1956) 46 Cal.2d 818, 

836 (Watson). As the Attorney General points out, the evidence of 

Romero’s guilt on count one was overwhelming. Toward the start 

of the pursuit, on the freeway, Romero drove in excess of the 

speed limit (§ 22349) and made unsafe lane changes without 

signaling (§ 22107). On surface streets, Romero continued to 

drive over the speed limit on multiple occasions. (§ 22350.) He 

rolled through both a stop sign and a red traffic light without 

stopping. (§ 22450.) He made lane-change violations when he reentered the freeway. (§ 22107.) Back on the freeway, he again 

drove in excess of the speed limit and made illegal lane changes. 

(§§ 22349, 22107.) These violations were captured on police video

and played for the jury. 

Romero drove approximately 52 miles per hour while 

fleeing police through an area with pedestrians and a nearby 

hospital. He cut through a parking lot at 15 to 20 miles per hour. 

He unlawfully turned across lanes of moving traffic when 

entering the freeway the second time. 

Given the circumstances, any alleged error would have 

been harmless beyond a reasonable doubt, and it is not 
13

reasonably probable a different answer to the jury’s question 

would have resulted in a more favorable outcome for Romero.

(See Chapman, supra, 386 U.S. at p. 24; Watson, supra, 46 Cal.2d 

at p. 836.) The jury could have easily and justifiably concluded 

Romero committed at least three Vehicle Code violations and 

consciously disregarded the safety of persons or property. This 

was not a close case.

II. Romero’s mandatory presumption argument

Romero next argues Vehicle Code section 2800.2 

establishes a mandatory presumption that violates principles of 

due process. He further argues the trial court prejudicially erred 

by using CALJIC No. 12.85 because the instruction reflects the 

improper presumption. Romero acknowledges that five appellate 

opinions, including a recent opinion by this court, have rejected 

similar contentions – People v. Pinkston (2003) 112 Cal.App.4th 

387, 390-394 (Pinkston); People v. Williams (2005) 130 

Cal.App.4th 1440, 1445-1446 (Williams); People v. Lauglin (2006) 

137 Cal.App.4th 1020, 1025 (Laughlin); People v. Mutuma (2006) 

144 Cal.App.4th 635, 641, and People v. Taylor (2018) 19 

Cal.App.5th 1195, 1200-1207 (Taylor). Romero argues these cases 

were wrongly decided for the reasons stated in a dissenting 

opinion by Justice Klein in Pinkston, supra, 112 Cal.App.4th at 

pages 395-398. This court, in Taylor, addressed Justice Klein’s 

dissent and declined to follow it. (Taylor, supra, 19 Cal.App.5th 

at pp. 1202-1204.) For the reasons discussed in Taylor, we reject 

Romero’s contentions. 
14

A. Applicable legal principles

Section 2800.1 provides that when, with the intent to 

evade, the driver of a motor vehicle willfully flees or attempts to 

elude a pursuing peace officer's motor vehicle or bicycle under 

specified circumstances, the driver is guilty of a misdemeanor.8

Subdivision (a) of section 2800.2 provides that when a person 

violates section 2800.1 and “the pursued vehicle is driven in a 

willful or wanton disregard for the safety of persons or property,” 

the person is subject to prosecution for a misdemeanor or a 

felony. Subdivision (b) of section 2800.2 states: “For purposes of 

this section, a willful or wanton disregard for the safety of 

persons or property includes, but is not limited to, driving while 

fleeing or attempting to elude a pursuing peace officer during 

which time either three or more violations that are assigned a 

8 Section 2800.1, subdivision (a) states: “Any person who, 

while operating a motor vehicle and with the intent to evade, 

willfully flees or otherwise attempts to elude a pursuing peace 

officer’s motor vehicle, is guilty of a misdemeanor punishable by 

imprisonment in a county jail for not more than one year if all of 

the following conditions exist: [¶] (1) The peace officer’s motor 

vehicle is exhibiting at least one lighted red lamp visible from the 

front and the person either sees or reasonably should have seen 

the lamp. [¶] (2) The peace officer’s motor vehicle is sounding a 

siren as may be reasonably necessary. [¶] (3) The peace officer’s 

motor vehicle is distinctively marked. [¶] (4) The peace officer’s 

motor vehicle is operated by a peace officer, as defined in Chapter 

4.5 (commencing with Section 830) of Title 3 of Part 2 of the 

Penal Code, and that peace officer is wearing a distinctive 

uniform.”
15

traffic violation point count under Section 12810 occur, or 

damage to property occurs.”

The question presented here is whether section 2800.2 sets 

forth an improper mandatory presumption regarding an element 

of the offense established by that statute. “As our Supreme Court 

has explained, presumptions are not inherently impermissible in 

criminal proceedings; rather, they are a “‘staple of our adversary 

system of factfinding”’ because ‘“[i]t is often necessary for the 

trier of fact to determine the existence of an element of the crime

─ that is, an ‘ultimate’ or ‘elemental’ fact ─ from the existence of 

one or more ‘evidentiary’ or ‘basic’ facts.”’ (People v. McCall (2004) 

32 Cal.4th 175, 182 . . . (McCall), quoting Ulster County Court v. 

Allen (1979) 442 U.S. 140, 156 [(Ulster County)].)” (Taylor, supra, 

19 Cal.App.5th at p. 1200.) “A mandatory presumption tells the 

trier of fact that if a specified predicate fact has been proved, the 

trier of fact must find that a specified factual element of the 

charge has been proved, unless the defendant has come forward 

with evidence to rebut the presumed connection between the two 

facts. [Citations.]” (Williams, supra, 130 Cal.App.4th at pp. 1444-

1445, citing Ulster County, supra, 442 U.S. at p. 157 and McCall, 

supra, 32 Cal.4th at p. 182.) “In the context of criminal 

proceedings, such a presumption contravenes due process ─ and 

thus is improper ─ when it relieves the prosecution of its burden 

of proving the elements of a crime beyond a reasonable doubt.

[Citation.]” (Taylor, supra, 19 Cal.App.5th at p. 1200, citing 

McCall, supra, 32 Cal.4th at pp. 183-184.) A criminal statute is 

lawful, however, if it creates no improper mandatory 

presumption permitting the prosecution to establish an 

“elemental” fact, but merely sets forth a substantive rule of law 

regarding the nature of the offense. (Taylor, supra, 19 
16

Cal.App.5th at p. 1204.) We apply de novo review when assessing 

whether instructions “direct a finding adverse to a defendant by 

removing an issue from the jury’s consideration. [Citations.]” 

(People v. Posey (2004) 32 Cal.4th 193, 218.)

B. Section 2800.2 does not create an improper 

mandatory presumption

Applying the above-stated principles, we reject Romero’s 

argument that section 2800.2 creates an improper mandatory 

presumption in violation of due process. In reaching this 

conclusion, we rely primarily on Presiding Justice Manella’s 

opinion in Taylor. Taylor explains why the majority opinion in 

Pinkston and its progeny were correctly decided. Taylor also 

explains why the dissent in Pinkston was incorrect. 

“In maintaining that subdivision (b) of section 2800.2 

established an improper mandatory presumption, [the dissent in 

Pinkston] viewed the phrase ‘“willful or wanton disregard for the 

safety of persons or property”’ as carrying the precise meaning 

attributed to the same phrase in section 23101, subdivision (a), 

which establishes the offense of reckless driving.” (Taylor, supra, 

19 Cal.App.5th at p. 1201, citing Pinkston, supra, 112 

Cal.App.4th at p. 395 (dis. opn. of Klein, J.).) Justice Klein thus 

maintained that subdivision (b) of section 2800.2 created an 

improper mandatory presumption, reasoning that it authorized 

the prosecution to establish the “‘relatively complex mental 

state’” (according to Justice Klein, the same mental state

required to establish the offense of reckless driving [§ 23103, 

subd. (a)]) merely by demonstrating three qualifying traffic 

violations. (Taylor, supra, 19 Cal.App.5th at p. 1202, citing 
17

Pinkston, supra, 112 Cal.App.4th at pp. 396-397 (dis. opn. of 

Klein, J.).) Taylor declined to accept Justice Klein’s rationale, 

instead concluding “the mental state required for the reckless 

driving offense established in section 23103, subdivision (b)[] is 

not required for the section 2800.2 offense.” (Taylor, supra, 19 

Cal.App.5th at p. 1202.) In support of this conclusion, Taylor

thoroughly analyzed the legislative history of section 2800.2, and 

explained that the Legislature lawfully modified the mental state 

requirements for the section 2800.2 offense by adding subdivision 

(b). (Id. at pp. 1202-1204.)

Taylor concluded: “Subdivision (b) of section 2800.2 thus

creates no improper mandatory presumption permitting the 

prosecution to establish an ‘elemental’ fact — that is, the mental 

state required for the section 2800.2 offense — merely by showing 

a simple evidentiary fact — that is, the existence of three or more 

qualifying traffic violations. Rather, subdivision (b) reflects an 

exercise of the Legislature’s authority to modify the statutory 

elements of the section 2800.2 offense. We therefore agree with 

the majority opinion in Pinkston and the courts in Williams and 

Laughlin, which concluded that subdivision (b) of section 2800.2 

constitutes only a substantive rule of law properly within the 

Legislature’s power to enact. [Citations.]” (Taylor, supra, 19 

Cal.App.5th at p. 1204.)

For the reasons set forth in Taylor, we reject Romero’s 

argument and decline to follow the dissent in Pinkston. 

Subdivision (b) of section 2800.2 does not contain an improper 

mandatory presumption. (Taylor, supra, 19 Cal.App.5th at pp. 

1204-1205.) It merely “set[s] forth a substantive rule of law 

regarding the nature of the offense.” (Id. at p. 1204.) We therefore 

also reject Romero’s contention that the court erred in instructing 
18

the jury using CALJIC 12.85, which included the substantive 

rule set forth in subdivision (b) of section 2800.2. 

The cases upon which Romero relies are all distinguishable. 

In each case, the reviewing court concluded that a jury 

instruction or statute reflected an improper presumption that an 

element of the offense was established by an evidentiary fact. 

(Sandstrom v. Montana (1979) 442 U.S. 510, 512, 523-524 [99 

S.Ct. 2450, 61 L.Ed. 39] [in action in which the defendant was 

charged with murder, it was error to instruct the jury to presume 

that a person intends the ordinary consequences of his voluntary 

acts]; Francis v. Franklin (1985) 471 U.S. 307, 311, 316-318 [105 

S.Ct. 1965, 85 L.Ed. 344] [in action in which the defendant was 

charged with murder, it was error to instruct the jury regarding 

rebuttable presumptions that the “‘acts of a person of sound mind 

and discretion are the product of their will,’” and that such a 

person intends the natural and probable consequences of his 

acts]; Carella v. California (1989) 491 U.S. 263, 264-266 [109 

S.Ct. 2419, 105 L.Ed.2d 218] [in action in which defendant was 

charged with grand theft for failure to return a rented car, it was 

error to instruct the jury to presume a person embezzles a vehicle 

and intends to commit theft by fraud if the person fails to return 

the vehicle within specified time periods]; People v. Roder (1983) 

33 Cal.3d 491, 494, 500, 503 [in action in which the defendant 

was charged with receiving stolen goods, it was error to instruct 

the jury to presume the defendant’s “guilty knowledge” from his 

status as a secondhand dealer, possession of the stolen goods, and 

reasonable opportunity to confirm whether the goods were stolen, 

unless the jury otherwise had a reasonable doubt regarding that 

knowledge]; People v. Reyes Martinez (1993) 14 Cal.App.4th 1412, 

1414-1419 [in action in which the defendant was charged with 
19

kidnapping, it was error to instruct the jury that if a person 

moves someone 500 feet or more, this satisfies the “substantial 

distance” element of the offense]; Hanna v. Riveland (9th Cir. 

1996) 87 F.3d 1034, 1035-1038 [in action in which the defendant 

was charged with one count of vehicular homicide and one count 

of vehicular assault in violation of Washington state law, both of 

which incorporate an element of reckless driving, it was error to 

instruct the jury that it may find this element based solely on the 

fact that the defendant drove above the speed limit].) As 

explained above, subdivision (b) of section 2800.2 contains no

improper presumption.9

III. Romero’s Dueñas argument

The trial court imposed a $40 court security assessment 

(Pen. Code, § 1465.8, subd. (a)), a $30 criminal conviction 

assessment (Gov. Code, § 70373), and a $1,200 restitution fine 

(Pen. Code, § 1202.4, subd. (b)(1)). Relying on Dueñas, supra, 30 

Cal.App.5th 1157, Romero now challenges the assessments and 

fine on due process grounds. Romero concedes he did not object to 

the imposition of the assessments or fine. Romero was sentenced 

over eight months after Dueñas was decided. Romero has 

forfeited his Dueñas argument by failing to object. (See People v. 

Bipialaka (2019) 34 Cal.App.5th 455, 464; People v. Frandsen

(2019) 33 Cal.App.5th 1126, 1153-1155.)

We also reject Romero’s contention, raised in the 

alternative, that his counsel’s failure to object constituted 

ineffective assistance of counsel. To establish ineffective 

9 Because we find no error, we need not address prejudice.
20

assistance of counsel, an appellant bears the burden of showing 

prejudice, meaning a reasonable probability that but for the 

challenged act or omission of counsel, the appellant would have 

obtained a more favorable result. (People v. Centeno (2014) 60 

Cal.4th 659, 674-676 (Centeno); see also In re Crew (2011) 52 

Cal.4th 126, 150 [“If a claim of ineffective assistance of counsel 

can be determined on the ground of lack of prejudice, a court need 

not decide whether counsel’s performance was deficient. 

[Citations.]”].) Although Romero asserts the trial court likely

would have found he lacked the ability to pay the fines and 

assessments, he identifies no support for this assertion other 

than trial counsel’s statement on the notice of appeal that he is 

indigent and his use of appointed counsel. (Cf. People v. Aviles

(2019) 39 Cal.App.5th 1055, 1075-1076 [inability to pay costs of 

appointed counsel does not establish inability to pay restitution 

fine or other court-imposed fees].) Further, the court might have 

found him able to pay the fine and assessments from prison 

wages. (See id. at pp. 1075-1077 [any Dueñas error was harmless 

due to defendant’s ability to earn prison wages equaling amount 

of fine and assessments]; People v. Jones (2019) 36 Cal.App.5th 

1028, 1035 [same]; People v. Johnson (2019) 35 Cal.App.5th 134, 

139-140 [same].) He therefore fails to satisfy his burden to show 

prejudice.

IV. Romero’s restitution argument

Romero lastly argues the trial court prejudicially erred in 

violation of due process by not considering a limited probation 

report in deciding the amount of the restitution fine imposed. The 

Attorney General contends Romero forfeited this argument by 
21

failing to object, and assuming the argument has not been 

forfeited, the error was harmless. 

Penal Code section 1203, subdivision (g) imposes upon the 

trial court a duty to obtain a limited probation report on the facts 

relevant to a determination of the amount of a Penal Code section 

1202.4, subdivision (b) restitution fine.10

Romero has forfeited his argument by failing to object. (See 

People v. Anzalone (2013) 56 Cal.4th 545, 550 [“‘The requirement 

of an objection is premised upon the idea that a party should not 

sit on his or her hands, but instead must speak up and provide 

the court with an opportunity to address the alleged error at a 

time when it might be fixed.’ [Citation.]”].)

We reject Romero’s contention, raised in the alternative, 

that his counsel’s failure to object constituted ineffective 

assistance of counsel. As discussed above, to establish ineffective 

assistance of counsel, an appellant bears the burden of showing 

10 Penal Code section 1203, subdivision (g) provides: “If a 

person is not eligible for probation, the judge shall refer the 

matter to the probation officer for an investigation of the facts 

relevant to determination of the amount of a restitution fine 

pursuant to subdivision (b) of Section 1202.4 in all cases in which 

the determination is applicable. The judge, in their [sic] 

discretion, may direct the probation officer to investigate all facts 

relevant to the sentencing of the person. Upon that referral, the

probation officer shall immediately investigate the circumstances 

surrounding the crime and the prior record and history of the 

person and make a written report to the court containing 

findings. The findings shall include a recommendation of the 

amount of the restitution fine as provided in subdivision (b) of 

Section 1202.4.”
22

prejudice, meaning a reasonable probability that but for the 

challenged act or omission of counsel, the appellant would have 

obtained a more favorable result. (Centeno, supra, 60 Cal.4th at 

pp. 674-676; see also In re Crew, supra, 52 Cal.4th at p. 150.) 

Romero has failed to satisfy his burden of showing a reasonable 

probability that he would have been awarded a lower restitution 

fine had trial counsel objected.11

11 We also note that although the court imposed a $1,200 

restitution fine, which was higher than the $300 minimum, the

restitution fine imposed was considerably lower than the $10,000

maximum. (Pen. Code, § 1202.4, subd. (b)(1).) It was also lower 

than the $1,800 amount that would have been imposed had the 

trial court utilized the commonly-used formula provided by the 

Legislature in Penal Code section 1202.4, subdivision (b)(2).
23

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J. 

We concur: 

MANELLA, P.J. 

COLLINS, J.