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Filed 9/21/22 P. v. Reese CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

DYLAN DAVID REESE,

Defendant and Appellant.

 A157480

 (Contra Costa County

 Super. Ct. No. 51713510)

Defendant Dylan David Reese appeals a judgment entered upon a jury 

verdict finding him guilty of the second degree murder of Kimberly Hoglund. 

He contends the trial court improperly admitted evidence of prior acts of 

violence against two other women, that the prosecutor elicited inadmissible 

evidence, that the court erred in denying his request for a pinpoint 

instruction on the law of voluntary manslaughter, and that it improperly

awarded victim restitution and imposed fines and fees without regard for his 

ability to pay. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant does not dispute that he killed Hoglund. His defense, 

rather, was that he killed her under the influence of passion and his crime 

was voluntary manslaughter. 
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I. The Killing and Aftermath

A. Maureen’s Testimony

At the time of the killing, defendant had been in a relationship with 

another woman, Maureen K., for six years.1 On March 29, 2016, defendant 

and Maureen went to the home of co-defendant Andre Villedrouin, hoping to 

get heroin. Hoglund was living in a studio apartment over a garage at 

Villedrouin’s home, and both she and Villedrouin used heroin. 

Villedrouin went somewhere else to get drugs, using defendant’s car, a 

Mercedes Benz, and the others went to Hoglund’s apartment. While they 

were there, a knock on the door came, and two young men entered, asking for 

Villedrouin, saying something about a car, and appearing upset. The two 

men went downstairs again, then returned. The others who were in the 

apartment were smoking methamphetamine. 

At some point in the evening or early nighttime hours, defendant went 

into the bathroom and retrieved heroin that was concealed in his anal cavity. 

When he came out, the two young men attacked him, hitting him in the head

and saying something about him robbing one of their friends or family 

members. Defendant sat on the bed, and the two young men told him to give 

them his pants, his shoes, and whatever was in the pants. One of them

pointed a gun at defendant. They left with defendant’s pants and shoes in 

their hands, and Maureen heard a gun go off and a bullet hit the building. 

Defendant borrowed clothes from Hoglund and left the apartment. 

Before he left, Maureen traded him some Xanax for the heroin he had 

recovered. 

1 In the interest of privacy, we refer to some of the people involved in 

the events by their first names, intending no disrespect.
3

Maureen went to a friend’s house and went to sleep. Defendant woke 

her at noon and told her that he had killed Hoglund’s dog and they had to get 

the dog out of the house. They drove around for several hours, stopping at 

Villedrouin’s house several times and leaving when he was not home. During 

the course of the day, defendant told Maureen that he had beaten Hoglund 

up because she had set him up to be robbed, and that he had killed her. As 

they were driving, defendant hit Maureen a couple of times on her head or 

shoulder. Eventually, they went into Villedrouin’s house and found him at 

home. 

When they entered, Maureen saw Hoglund’s body lying face-up on the 

floor with a blanket covering all but her hands and hair. There was blood in 

various parts of the house. Hoglund was wearing only a T-shirt and 

underwear.

Maureen started cleaning blood from the house. While they were still 

in the house, defendant hit Maureen in her face and caused her nose to bleed, 

accusing her of cheating on him when he was in jail. He said he had brought 

her there to kill her after she finished cleaning. He told her to take the cover 

off Hoglund’s face and to bend down and give her a kiss; Maureen thought he 

meant to emphasize that she would end up looking like Hoglund. 

Defendant and Villedrouin carried Hoglund’s body out of the house,

through the back yard, and into the garage, then put the body into the trunk 

of defendant’s car. With Maureen at the wheel, the three of them drove 

around looking for a place to dispose of the body. They eventually returned to 

Villedrouin’s house and parked the car across the street, the body still in the 

trunk of the car.

Hoglund’s body remained in the trunk for the next several days. 

During part of that time, defendant was in the hospital with a swollen hand.
4

Maureen stayed with her friend Jennifer W. while defendant was in the 

hospital. Defendant joined Maureen there after his release, and he told her

that Jennifer had offered to let them use her yard to bury Hoglund’s body. 

On April 7, the body was buried in Jennifer’s yard. 

A day or two later, defendant told Maureen they needed to go back to 

Jennifer’s house to pick up the blankets Hoglund had been wrapped in and 

other items that had been taken from the trunk. When they got to the house, 

defendant grabbed a large black garbage bag, which smelled “really bad,” and 

put the bag in a dumpster up the street. 

B. Jennifer’s Testimony

Jennifer testified that when Maureen came to stay with her, she had 

marks on her face as if she had been in a fight. Defendant came to Jennifer’s

house a couple of days later. Jennifer knew something had happened to 

Hoglund, and she wanted to know if it had been an accident. Defendant told 

her it was not an accident and that he meant to beat Hoglund, but he said he 

did not expect her to die. Jennifer asked defendant why he had done it, and 

he answered, “fuck that bitch, she deserved it,” and said that he thought 

Hoglund had set him up. Defendant told Jennifer that when he was killing 

Hoglund it was as if he had blacked out and no one could stop him. 

Regarding the people who were responsible for robbing him, defendant said 

he was going to get a shotgun and that he wanted to “fuck them up” or kill 

them.

After defendant got out of the hospital, he, Villedrouin, and Maureen 

went to Jennifer’s house, and defendant asked Jennifer to allow him to back 

his car up and unload Hoglund’s body in her back yard. She agreed to let him 

do so, then left the house. She returned two days later, and in the back yard 

she saw a black bag she had not seen before. At some point afterward, 
5

defendant came to her house; when she opened the door, he grabbed her by 

the neck, then went around the house. After he left, Jennifer saw that the 

bag in the back yard was gone. 

II. The Investigation

Hoglund’s body was found buried at Jennifer’s house. She was clad

only in underwear, a bra, and a T-shirt that was pulled up to her armpits. 

An autopsy revealed Hoglund died of multiple blunt force injuries. Her 

injuries included external bruises on various parts of her body, including the 

legs, arm, hands, face, scalp, abdomen, flank, chest, and back; defensive hand 

wounds; seven fractured ribs; hemorrhaging in the intestine and supporting 

tissue, rib cage, and lung; bleeding in the kidney; and a tear in the liver. 

Some of the injuries could have been caused by punching but others, such as 

the injuries to the chest wall and ribs, were more consistent with kicking. 

Death would probably have taken place between minutes and an hour of the 

injuries. 

A black plastic bag was later found in a dumpster. In it were pieces of 

trunk lining, two sheets, a bottle of bleach, a bed comforter, a car floor mat, 

and a shoe. Some of these items had blood on them that matched Hoglund’s. 

III. Prior Violent Acts

Both Jennifer and Maureen testified about incidents in the past in 

which defendant had committed violent assaults. 

A. Assault on Michele M.

Jennifer recounted an incident in May 2015 in which defendant 

assaulted another woman, Michele M. Jennifer was at her house with 

Michele and a few other people. Defendant arrived at the house. He was 

upset with Michele because she owed him money. When defendant came into 

the room, Michele hid in one the back rooms. Michele ran out of the room 
6

while defendant was in the bathroom, and defendant ran after her, punched 

and kicked her, picked up a two-by-four board, and hit her with it twice. 

Jennifer told defendant she would call the police, and he came up to her with 

the two-by-four and struck it against the couch in a manner she saw as 

threatening, which frightened her. 

Jennifer testified that she was afraid of defendant because of what she 

had seen him do, and she agreed to allow defendant to bury Hoglund’s body 

on her property out of fear. 

In count 2 of the information, defendant was charged with assault with 

a deadly weapon based on his attack on Michele. While the court was 

hearing in limine motions, defendant pled guilty to count 2 and admitted the 

associated great bodily injury enhancement, so the jury was not asked to 

decide these. 

B. Assaults on Maureen

Maureen testified about two prior incidents when defendant assaulted 

her. In January 2014, Maureen was pregnant, and defendant thought 

another man was the father. He kicked her in the stomach and hit her in her 

ribs and her back. Michele was there at the time, and she told defendant to 

stop beating Maureen because he was going to kill her. During that incident, 

Maureen was afraid defendant would kill her. 

The second incident took place in November 2015, when defendant beat 

Maureen because she had not written to him when he was in jail. On that 

occasion, he made her strip naked, beat her with his fists, and kicked her. 

Maureen testified that she helped defendant clean up the house and 

dispose of Hoglund’s body in part because she was afraid of what defendant 

would do to her if she refused. 
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IV. Defendant’s Testimony

Defendant testified in his own defense. At the time of the killing, he 

was using both methamphetamine and Xanax. While he was at Hoglund’s 

apartment that day, two men whom Hoglund referred to as her nephews 

showed up while Villedrouin was out in defendant’s Mercedes Benz looking 

for drugs. They referred to Hoglund as “Moms.” They told Hoglund they 

were there to “do some damage” to Villedrouin due to an altercation they had 

had with him over a different Mercedes Benz. The two men left and returned 

three or four times over the next few hours. At some point, Hoglund said the 

two men were not coming back, and defendant used the bathroom in an effort 

to retrieve a heroin-filled condom that he had swallowed. 

While defendant was in the bathroom, he heard voices outside and he 

was told the nephews had returned. When he left the restroom, one of the 

two men hit him on the left side of his head with a tool, then the other hit 

him with the butt of a gun and pointed the gun at his face. The men forced 

defendant to the bed at gunpoint, told him to strip, and threatened to shoot 

him. They pulled off his shoes and pants, leaving him in his underwear, 

terrified and humiliated. In addition to defendant’s pants, which contained 

his wallet, the men took his backpack and his coat. 

The two men looked through Maureen’s purse, but they did not take 

anything from Hoglund or from her purse. One of them told defendant,

“nothing better happen to Moms.” During the incident, Hoglund said nothing 

and seemed unconcerned. 

The men left the apartment and went downstairs, and defendant heard 

a gunshot. He searched for some clothes, and Maureen told him that while 

he was in the bathroom she saw Hoglund talking with her nephews on the 

front porch and that Hoglund wanted the heroin. Defendant exchanged the 
8

heroin he had retrieved with Xanax pills that Maureen was holding, and he 

left the apartment. 

Defendant saw his Mercedes Benz in front of Villedrouin’s house, 

running with its lights on, as well as a silver car. The two nephews were 

there, and one was in the Mercedes Benz, rooting through it. They left in the 

silver car. Defendant ran around the block, and when he got back, his car 

was gone. 

Defendant knocked on Villedrouin’s front door, and Villedrouin let him 

in. Hoglund came out of Villedrouin’s room, defendant confronted her, and 

they argued and yelled at each other. He asked her why she had not stopped 

her nephews from beating, stripping, and robbing him, and she told him he 

“fucking deserved it.” He “snapped,” grabbed her by the shirt and hair, and 

threw her down. He was enraged, and he started kicking her. Villedrouin 

tried to stop him, but defendant threw him out of the way and continued to 

kick Hoglund. He described himself as “on autopilot,” but he did not want to 

kill her. 

When he stopped, Hoglund was crying, as defendant continued to say 

“awful things in the air,” still “just so mad.” He was looking out the window, 

and the next thing he knew, he woke up. Morning dawned, and Villedrouin 

told him Hoglund was dead. Defendant was miserable, and he could not 

believe what had happened. He testified he felt “[a]bsolutely terrible,” awful, 

and ashamed, and that “[w]ords just can’t explain how awful [he] felt.” 

Defendant admitted that he beat Maureen in January 2014 because he 

thought she was pregnant by another man and in November 2015 because 

she was not writing to him when he was in jail. He also admitted that he

threw Michele to the floor, kicked her, and hit her with a two-by-four in May 
9

2015, and testified he was charged with and pled guilty to a crime as a result 

of that incident. 

V. Verdict and Sentencing

The jury acquitted defendant of first degree murder, but found him 

guilty of second degree murder. The trial court sentenced him to an 

indeterminate term of 15 years to life for count 1, the second degree murder

of Hoglund (Pen. Code, §§ 187, subd. (a), 190, subd. (a)), and a consecutive 

determinate term of six years for count 2, the assault with a deadly weapon

on Michele, calculated as the middle term of three years, with an additional 

three years for the great bodily injury enhancement (Pen. Code, §§ 245, 

subd. (a)(1), 12022.7, subd. (a)). The court also imposed fines and fees.

DISCUSSION

I. Evidence of Prior Assaults

Defendant contends the testimony about his assaults on Maureen and 

Michele was inadmissible propensity evidence. As a general matter, evidence 

of a person’s character is inadmissible to prove his or her conduct on a 

particular occasion. (Evid. Code, § 1101, subd. (a).)2 However, this rule does 

not affect the admissibility of evidence of a prior crime or other act to prove a 

fact other than propensity to commit a particular act, such as motive, intent, 

preparation, plan, knowledge, or absence of mistake or accident. (§ 1101, 

subd. (b).)

A. Background

The trial court and counsel discussed the admissibility of defendant’s 

earlier assaults on multiple occasions before the evidence was finally 

admitted. 

2 All undesignated statutory references are to the Evidence Code.
10

Defendant made a motion in limine to exclude any evidence of alleged 

prior criminal acts. At a hearing on the motions in limine on October 25, 

2018, the trial court indicated that the evidence of Jennifer’s fear of 

defendant and the reason for it would be proper to explain why she would do 

something so shocking as allowing a body to be buried on her property, thus 

enhancing the credibility of the rest of her testimony in the minds of 

“somebody . . . who isn’t used to burying people in their backyards.” The 

court suggested it would be sufficient to introduce evidence that Jennifer saw 

defendant hit and injure someone with a two-by-four and that defendant was 

convicted of the offense. The court asked the parties to come up with a 

“script,” in which Jennifer would be asked leading questions and her answers 

would be limited to the subject matter of those questions. The court

cautioned, however, that this ruling was not final and might change 

depending on what evidence was admitted before Jennifer testified, and it 

emphasized, “I don’t view any of my in limine rulings as permanent and 

unreviewable.”

Turning to the attacks on Maureen, the court ruled that, “for the time 

being, based upon what I heard,” anything that occurred during the killing or 

the events relating to burial of the body was relevant. It also ruled Maureen 

could testify that she had been beaten by defendant previously and received 

medical services as a result. The court asked the parties to agree to a script 

of leading questions to be asked on direct examination. Ultimately, the 

parties were unable to agree on such a script. 

Defendant moved for reconsideration of the trial court’s ruling on 

November 16, 2018. He contended evidence of his prior violent acts against 

Jennifer and Maureen was unnecessary to bolster their credibility because he 

did not intend to attack their testimony or credibility. At the hearing on the 
11

motion, the prosecutor argued that without a “backstory,” the jury might well 

doubt the credibility of someone who cleaned up a body and helped bury it.

In addition to the original ground for admitting limited evidence of 

defendant’s prior assaults, the court articulated an additional reason the 

challenged evidence was admissible: in each of the prior instances, defendant 

deliberately used violence to retaliate against someone he thought had 

wronged him, which could suggest to the jury that he was acting in 

retaliation rather than heat of passion in this particular case. Citing People 

v. Whisenhunt (2008) 44 Cal.4th 174 (Whisenhunt), the trial court concluded 

the evidence was relevant to whether defendant acted with premeditation 

and deliberation. 

The prosecutor presented a long list of prior violent acts defendant had 

allegedly committed against Maureen, including “countless” beatings, two 

that caused her to seek medical treatment and one in which she lost so much 

blood from her nose she almost passed out; rapes; sodomy; and forced 

prostitution. The court indicated that it would place “reasonable limits” on 

the testimony and that it would not allow “free-wheeling testimony” about 

dozens of incidents. 

Ultimately, the trial court admitted evidence of the incidents in which 

defendant twice beat and kicked Maureen, because she had not written to 

him and because he thought she was pregnant with another man’s child, and 

evidence of the attack on Michele. The court expressly stated that evidence 

that defendant forced his victims to strip was admissible to show his intent. 

It excluded evidence that during one of those attacks, defendant burned

Maureen on her leg with a spoon, evidence of multiple other attacks on 

Maureen, evidence that defendant raped and sodomized her, evidence that he 
12

put a gun in her mouth, and evidence that he forced her to work as a 

prostitute. 

The jury was instructed it could consider evidence of the other offenses 

for two purposes: to decide whether defendant had the intent or mental state 

necessary to commit first degree murder, second degree murder, or 

manslaughter; and to evaluate Maureen and Jennifer’s explanations for why 

they acted as they did. 

B. Analysis

Defendant contends admission of the evidence of his attacks on 

Maureen and Michele was an abuse of the trial court’s discretion and 

deprived him of a fair trial. 

As we have explained, while evidence of prior conduct is generally 

inadmissible to prove propensity to commit a crime, it may be admissible to 

prove some other fact, including motive, intent, plan, identity, or absence of 

mistake or accident. (§ 1101, subds. (a), (b).) Because such evidence “may be 

highly inflammatory, its admissibility should be scrutinized with great care.” 

(People v. Medina (1995) 11 Cal.4th 694, 748.) The trial court should admit 

the evidence only if it determines its probative value is 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.” 

(People v. Avila (2006) 38 Cal.4th 491, 586–587; see § 352.) On appeal, we 

review a trial court’s ruling under section 1101 for abuse of discretion. 

(People v. Cage (2015) 62 Cal.4th 256, 274 (Cage).)

Defendant argues the evidence of his prior bad acts served no proper 

purpose, but merely showed his propensity to commit such acts—that is, his 

penchant for violence—thus encouraging jurors to conclude he acted in 

conformity with his inclination for violence when he killed Hoglund. 
13

We are unpersuaded. Defendant did not dispute that he acted violently 

toward Hoglund and caused her death. The only issue before the jury was 

whether his state of mind in so doing reduced his offense to manslaughter 

rather than murder—that is, whether he acted in the heat of passion due to

provocation that would cause an ordinarily reasonable person to act rashly or 

without deliberation and reflection. (People v. Gutierrez (2003) 112 

Cal.App.4th 704, 708; Pen. Code, § 192, subd. (a).)

The theory of the prosecution was that defendant beat and kicked 

Hoglund to take revenge on her for setting him up to be robbed. That motive

is significant, because the passion underlying manslaughter may not be 

“ ‘ “ ‘the passion for revenge.’ ” ’ ” (People v. Dixon (1995) 32 Cal.App.4th 

1547, 1551; People v. Gutierrez (2002) 28 Cal.4th 1083, 1144 (Gutierrez).) Our 

high court has explained that no specific type of provocation is required, and 

that the passion aroused “need not be anger or rage, but can be any

‘ “ ‘[v]iolent, intense, high-wrought or enthusiastic emotion’ ” ’ [citations] 

other than revenge.” (People v. Breverman (1998) 19 Cal.4th 142, 163, italics 

added; accord, People v. Burnett (1993) 12 Cal.App.4th 469, 478 [“Heat of 

passion may not be based upon revenge”].)

The Attorney General argues that evidence of defendant’s prior attacks 

on Maureen and Michele was relevant to show that his motive in beating and 

kicking Hoglund was to take revenge on her. Although motive is not an 

ultimate fact put at issue by a criminal charge, it is an intermediate fact that 

may reasonably prove a person’s intent. (Cage, supra, 62 Cal.4th at p. 274; 

People v. Clark (2021) 62 Cal.App.5th 939, 960.) And “whether or not the 

defendant had the intent or mental state necessary to commit” murder was 

an issue the jury was told it could use this evidence to resolve. Where 

evidence of another crime is admitted to show motive, the other crime “may 
14

be dissimilar to the charged offenses provided there is a direct relationship or 

nexus between it and the current alleged crimes.” (Cage, at p. 274.)

Cage is instructive. The defendant there was charged with murdering 

his wife’s mother and brother. (Cage, supra, 62 Cal.4th at p. 263.) The 

defendant’s wife had left him and taken the couple’s two children to Puerto 

Rico. (Id. at p. 266.) The trial court admitted evidence that defendant had 

previously engaged in abusive and violent behavior toward his wife, one of 

their two children, and his wife’s brother. (Id. at pp. 263–264, 272–273.) The 

defendant argued on appeal that the evidence was impermissibly used to 

show his propensity for violence. (Id. at p. 273.) Our high court upheld the 

trial court’s ruling under section 1101, concluding the prior acts were 

important evidence of the defendant’s motive, because they showed that the 

defendant reacted with anger, hostility, and punishment when his wife did 

not comply with his requests, and that he had for years sought to exert 

control over his wife, their child, and her brother by threatening and 

committing violent, demeaning, and abusive acts against them. (Id. at 

pp. 273–274.) These prior acts supported a logical inference that the 

defendant carried out his threats by committing the murders, “intending 

them as retribution for [his wife] leaving him and taking his son. A direct 

relationship or nexus, thus, existed between the prior incidents and the 

charged crimes.” (Ibid.) 

In reaching this conclusion, the court in Cage relied in part on People v. 

Demetrulias (2006) 39 Cal.4th 1 (Demetrulias) (see Cage, supra, 62 Cal.4th at 

p. 274.) The defendant in Demetrulias was charged with killing the victim, 

Robert Miller, while robbing him. (Demetrulias, at p. 5.) In Miller’s home 

was found identification for one Clarence Wissel. Police went to Wissel’s 

house and found it had been ransacked and Wissel had been stabbed and 
15

bound with a cord. The defendant’s identification was found at Wissel’s 

home. (Id. at p. 7.) In the case on appeal, defendant was not charged with 

any offenses against Wissel, and he argued the evidence related to Wissel 

was inadmissible propensity evidence. (Id. at p. 13.) Our high court rejected 

this contention, concluding the Wissel assault and robbery tended to prove 

that the defendant had the intent to rob Miller when he attacked him and 

that he did not act in real or perceived self-defense. (Id. at p. 14.) That is, 

“evidence of defendant’s motives for robbing and assaulting Wissel tended to 

show he had had the same motives earlier the same night when he stabbed 

Miller, and thus acted with the intent to rob, rather than in self-defense.” 

(Id. at p. 15.)

Similar reasoning was used in People v. Pertsoni (1985) 172 Cal.App.3d 

369 (Pertsoni), upon which our high court in Demetrulias relied. 

(Demetrulias, supra, 39 Cal.4th at p. 15.) The defendant in Pertsoni was 

charged with the shooting murder of a man he thought was an agent for the 

Yugoslav secret police, and he claimed he acted in self-defense. (Pertsoni, at 

pp. 371–372.) The trial court admitted evidence of an uncharged act in which 

the defendant shot at a man he believed was the Yugoslav ambassador and 

later expressed his hatred of the Yugoslav government and its 

representatives. (Id. at pp. 372–373.) The appellate court concluded the 

evidence was properly admitted under section 1101 because it tended 

logically to show the defendant’s motive in committing the charged crime. 

Defendant argued the offenses were too dissimilar to permit an inference that 

he had the same motive in each case, but the appellate court explained that 

when “the mere fact of the prior offense gives rise to an inference of motive, 

similarity of the offenses is irrelevant.” (Id. at p. 374.) And, the court 

concluded, evidence of the earlier incident was relevant “to show the lengths 
16

to which appellant’s passionate hatred of anyone connected with the 

Yugoslav government would take him,” thus tending to show his motive in 

killing the victim “was to kill an agent of the detested government, rather 

than to protect himself against a perceived danger.” (Id. at pp. 374–375.) 

This rule was also applied in People v. Spector (2011) 194 Cal.App.4th 

1335, 1381. There, the defendant was charged with murdering a woman he 

had brought to his home, and he claimed she had shot herself. (Id. at 

p. 1342.) The trial court admitted the testimony of five women who had been

victims of armed assaults by the defendant in a home or hotel room after a 

sexual or romantic encounter. (Id. at pp. 1342–1343, 1354–1358.) This 

evidence, the appellate court concluded, was proper because it tended to show 

that the defendant acted with the same motive in the uncharged and charged 

offenses. (Id. at pp. 1381–1382, 1384–1385; accord, People v. Walker (2006) 

139 Cal.App.4th 782, 803–807 [evidence of prior sexual assaults on 

prostitutes admissible under § 1101, subd. (b) to show defendant’s motive of 

animus toward prostitutes and intent in charged murder of prostitute]; 

Whisenhunt, supra, 44 Cal.4th at pp. 203–205 [evidence of other prior child 

abuse probative of issues of intent and absence of accident in killing victim of 

charged crime].)

These authorities persuade us that the evidence of defendant’s prior 

assaults on Maureen and Michele fell within the scope of section 1101, 

subdivision (b) because it tended to show that defendant was motivated by a 

desire for revenge when he beat and kicked Hoglund. In each prior incident, 

defendant assaulted a woman he thought had wronged him, Michele because 

he thought she was withholding money she owed him, and Maureen because 

he thought she was pregnant with another man’s child and because she did 

not write to him while he was in jail. These earlier incidents do not show 
17

merely that defendant had a tendency toward violence. (Cf. People v. 

Williams (2018) 23 Cal.App.5th 396, 421.) Rather, they reasonably tend to 

show he attacked Hoglund for the same purpose—to take revenge on her for 

wronging him—and that he acted intentionally in so doing, rather than 

acting while his reason was obscured by heat of passion. (See People v. 

Beltran (2013) 56 Cal.4th 935, 942.) ,

Nor are we persuaded the trial court abused its discretion by not 

excluding the evidence as more prejudicial than probative under section 352. 

Since evidence of other crimes is inherently prejudicial, it is admissible only 

if it has “ ‘substantial probative value,’ ” measured by “ ‘ “the extent to which 

it tends to prove an issue by logic and reasonable inference (degree of 

relevancy), the importance of the issue to the case (degree of materiality), and 

the necessity of proving the issues by means of this particular piece of 

evidence (degree of necessity).” ’ ” (Pertsoni, supra, 172 Cal.App.3d at p. 375.) 

But, “ ‘[b]ecause a motive is ordinarily the incentive for criminal behavior, its 

probative value generally exceeds its prejudicial effect, and wide latitude is 

permitted in admitting evidence of its existence.’ ” (Ibid.)

The trial court here weighed the evidence of prior attacks the 

prosecutor sought to introduce, which was extensive, and limited it to three 

incidents, expressly stating it had section 352 in mind while doing so. Each 

of the offenses was relevant to defendant’s state of mind when he killed 

Hoglund, the primary disputed issue in the case. The attacks on Maureen 

and Michele may, as defendant points out, be characterized as horrific, but 

they showed the extremes he would go to when taking revenge on those he 

thought had wronged him, and they were no more horrific than the crime 

with which defendant was charged. (See Pertsoni, supra, 172 Cal.App.3d at 
18

p. 375.) The trial court did not abuse its discretion in admitting evidence of 

the three prior offenses. 

Defendant argues the trial court misunderstood the law of 

manslaughter when it made its ruling. He is correct that in the course of 

discussing the evidence with counsel, the court said, inaccurately, that

voluntary manslaughter relies on malice aforethought, express or implied. 

(See People v. Rios (2000) 23 Cal.4th 450, 463 [“Heat of passion . . . precludes

a finding of malice where malice is an element of the charge”].) But the court’s 

ruling makes clear it understood the proper purpose for which the evidence 

was admissible, when it noted that to prove first degree murder the People 

had to show premeditation and deliberation. And, the court explained, the 

prior incidents in which defendant deliberately used extreme violence against 

people he thought had wronged him suggested he acted in retaliation rather 

than heat of passion in the current case.

As to the assaults on Maureen, defendant argues the trial court 

admitted too wide a range of evidence because he had different intents in the

two incidents. (See People v. Simon (1986) 184 Cal.App.3d 125, 130–131 

[earlier assault not relevant to prove defendant’s state of mind in committing 

charged crime if motives were different].) This contention is unpersuasive. 

As to each assault, there is evidence he attacked Maureen in retaliation for a 

perceived wrong. 

Nor are we persuaded by defendant’s argument that an abuse of 

discretion is shown by the trial court’s initial ruling that it would allow 

Maureen to testify only more generally that defendant had assaulted her on 

multiple prior occasions and she had twice received medical treatment as a 

result. Whatever the merits of the court’s initial ruling, it ultimately limited 

the evidence the jury heard of defendant’s violence toward Maureen to two 
19

incidents, both of which are probative of defendant’s intent in assaulting 

Hoglund.

Defendant also argues evidence of the prior assaults was improperly 

admitted to bolster Maureen and Jennifer’s credibility—that is, to allay any 

concerns the jury might have had about accepting the testimony of witnesses 

who participated in the aftermath of the crime by showing they did so out of 

fear of what defendant might do to them if they refused. He argues the 

evidence was not relevant for this purpose because he never challenged the 

credibility of these witnesses and that, even if it was relevant, the jury did 

not need to hear the full details of his brutal attacks to understand the 

witnesses acted out of fear. 

Defendant’s assertion that he did not seek to impugn the credibility of 

Maureen and Jennifer is called into question by the fact that he did introduce 

impeachment evidence of their prior criminal convictions and of the fact the 

District Attorney’s office had paid for Jennifer to stay in a hotel since she 

lacked stable housing around the time of her testimony. In any case, we need 

not consider whether the evidence would have been admissible on the 

separate ground of bolstering these witnesses’ credibility. We have already 

concluded the evidence was admissible to show defendant’s motive in 

attacking Hoglund. And defendant has shown no error or prejudice in 

informing the jury it could also consider it in evaluating the credibility of 

Jennifer and Maureen. 

II. Motion for Mistrial or to Reopen Jury Voir Dire

A. Additional Relevant Procedural Background

As we have explained, during motions in limine, on October 25, 2018,

the trial court indicated that, to show the jury the reasons Jennifer and 

Maureen assisted defendant, it would allow Jennifer to testify that she had 
20

seen defendant hit someone with a two-by-four and that he had suffered a 

conviction as a result, and it would allow Maureen to testify that defendant 

had beaten her in the past and that she had received medical attention as a 

result. The court emphasized, however, that its in limine rulings were not 

final. 

Defendant moved for reconsideration of the ruling on November 16, 

2018, and the court considered the motion on November 19. During the 

hearing, the court indicated it considered the evidence admissible not only to 

explain why Maureen and Jennifer assisted defendant, but also under section 

1101 to prove defendant’s intent, premeditation, and deliberation. When 

defense counsel objected that the court had “expanded the . . . theory of 

admissibility,” the court replied that defendant’s motion had indeed caused it 

to reconsider its earlier ruling, and it now seemed to the court there were 

additional grounds of admissibility. Defense counsel told the court he and 

the prosecutor disagreed on what evidence was admissible under the court’s 

earlier ruling. The court indicated its earlier ruling was not intended to limit 

the prosecutor to asking only the generic questions of whether the witnesses 

had been attacked and whether Maureen had received medical attention. 

The prosecutor compiled the extensive list of defendant’s prior violent 

acts that it wished to introduce. In further discussions on November 20, 

2018, the court noted that it had previously explained it did not consider its

in limine rulings to be final, but it added that it would allow evidence of only 

a limited number of prior incidents to be introduced. Defense counsel 

objected that he had not asked the jury during voir dire any questions 

regarding some of the more extreme details that might now come into 

evidence, such as the facts that Maureen was pregnant at the time of one 
21

beating and that defendant burned her with a spoon, split her head open with 

a torch, and forced her to undress. 

Defendant moved for a mistrial or, alternatively, to reopen jury 

selection and allow additional voir dire and the exercise of unused 

peremptory challenges on November 26, 2018, by which time the jurors had 

been selected, but not yet sworn, and the remaining jury pool had been

dismissed. He argued that he had relied on the court’s original October 25

decision on the motion in limine when making decisions about the juror 

questionnaire, voir dire, selection of jurors, conducting investigations, and 

subpoenaing witnesses and documents. 

Before ruling on the motion, the court announced its ruling on the 

admissibility of evidence of other crimes: it would allow evidence of the two 

incidents with Maureen and the incident with Michele, but would not allow 

evidence that defendant burned Maureen with a spoon or subjected her to 

sexual abuse or prostitution. 

Defense counsel argued that the evidence of Maureen being forced to 

strip naked amounted to evidence of sexual assault and that he had not 

addressed sexual assault in his voir dire of prospective jurors, but the court 

rejected the assertion. Defense counsel told the court that he would have 

exercised peremptory challenges on some of the jurors had he known the 

court would change its earlier ruling. The court concluded defendant’s right 

to conduct voir dire had not been prejudiced. The court denied the motion for 

a mistrial or to reopen voir dire. 

B. Analysis

Defendant contends the trial court erroneously denied his motion for a 

mistrial or to reopen voir dire. He contends the court’s ultimate rulings 

dramatically expanded the admissible evidence to include sexual violence in 
22

the form of kicking a pregnant woman in the stomach and forcing Maureen to 

strip naked before beating her, and the voir dire of potential jurors was 

insufficient to ensure their impartiality in light of this evidence. And as a 

result, he contends, his counsel was unprepared for trial and he was deprived 

of a fair trial. 

A defendant is entitled to be tried by 12 impartial and unprejudiced 

jurors who are willing to decide the case solely on the evidence before them. 

(People v. Harris (2008) 43 Cal.4th 1269, 1303.) Voir dire plays a critical role 

in protecting this right. (People v. Earp (1999) 20 Cal.4th 826, 852.) Voir 

dire can expose possible bias, both known or unknown, resulting in a juror 

being excused for cause or guiding the parties in exercising their peremptory 

challenges. (In re Hitchings (1993) 6 Cal.4th 97, 110–111.) Defendant 

contends he would have exercised his peremptory challenges differently had 

he anticipated the court would allow graphic testimony about the three 

assaults to which Maureen and Jennifer testified rather than allowing only 

more generic testimony about the assaults that caused them to fear 

defendant.

Defendant also argues the “last-minute” ruling prevented his counsel 

from preparing adequately for trial, including conducting an adequate 

investigation into the other crimes evidence, in violation of his right to 

effective assistance of counsel. (See People v. Alexander (2010) 49 Cal.4th 

846, 934 [defendant must have “ ‘ “reasonable opportunity to prepare a 

defense and respond to the charges” ’ ”].) As a result, he argues, his chance of 

receiving a fair trial was irreparably damaged. (See People v. Collins (2010) 

49 Cal.4th 175, 198–199 (Collins).) 

We review a trial court’s rulings on a motion for a new trial and a 

motion to reopen jury selection for abuse of discretion. (People v. Clark (2011) 
23

52 Cal.4th 856, 990 [mistrial]; People v. Niles (1991) 233 Cal.App.3d 315,

320–321.)

To support his contention that the change from the trial court’s original 

ruling on his motion in limine entitled him to a mistrial or additional voir 

dire, defendant draws our attention to general law describing the role of 

motions in limine. The purpose of such motions is to preclude the 

presentation of inadmissible and prejudicial evidence. (People v. Morris

(1991) 53 Cal.3d 152,188, disapproved on another ground in People v. 

Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) They may be brought by the 

parties, argued, and ruled upon either at the beginning of, or during trial. 

(Morris, at p. 188.) Defendant argues that he was entitled to rely upon the 

court’s original October 25, 2018 ruling in formulating his trial strategy and 

questioning jurors.

Defendant’s argument ignores two crucial facts. First, the trial court 

made clear from the outset that it did not consider its rulings on the motions 

in limine to be final. Second, and perhaps more important, defendant himself 

asked the court to reconsider its original ruling. Defendant draws our 

attention to no authority that when a party asks a court to reconsider a 

ruling on a motion in limine, the outside limits of the evidence the court may 

admit are defined by the terms of its original ruling. 

We certainly do not fault defense counsel for bringing the motion for 

reconsideration. Defendant’s primary goal was to preclude the jury from 

hearing the evidence of his prior violent behavior toward Maureen and 

Michele, or at the least to limit the evidence it would hear, by pointing out he 

did not intend to attack their credibility. But defendant does not persuade us 

that, after making its ruling in the face of defendant’s own request for 
24

reconsideration, the trial court abused its discretion in declining to declare a 

mistrial or reopen jury selection. 

Although the record before us does not include a transcript of the jury 

voir dire, the trial court told defense counsel, and defendant does not dispute, 

that the jury was informed there would be evidence of prior acts of severe 

violence, and defense counsel was able to question jurors about the effect that 

evidence might have on their views of the case. Defendant argues he did not 

know he should question the jurors about their views on sexual assaults, as 

he characterizes the attacks on Maureen, once because she was forced to strip 

and once because she was pregnant. The trial court considered this point and 

rejected it, concluding the beatings did not involve a sexual assault on 

Maureen’s body and that defendant had an adequate opportunity to inquire 

into the jurors’ biases. We see no abuse of discretion in this ruling. 

III. Evidence Defendant told Maureen to Kiss Hoglund’s Body

In response to one of defendant’s motions in limine, the trial court 

directed the prosecution to admonish witnesses not to volunteer information 

that the court had excluded. The court said, “So sometimes witnesses blurt 

out things that you didn’t even know that they knew. It’s hard to prevent 

that from happening sometimes. But if you have a witness whose testimony 

you know is affected by an in limine ruling then that person should be 

advised.” Later, during a discussion of the admissibility of defendant’s prior 

assaults on Maureen, the prosecutor said he planned to ask Maureen leading 

questions so she would not disclose inadmissible evidence regarding rapes

and prostitution, and the court told him to tell the witnesses the court 

expected them not to volunteer information that had been excluded. 

During redirect examination, the prosecutor followed up on questions 

defense counsel asked during cross-examination about what happened when 
25

she was cleaning up Villedrouin’s house. The prosecutor asked whether 

Maureen had gotten close enough to examine Hoglund’s hands or hair, and 

Maureen replied, “Well, like I said, there was a point where he told me to 

take the cover off her face and bend down and give her a kiss and I didn’t 

actually do that but I got pretty close to her face. So, I mean, I saw her face. 

Not her hands though.” The prosecutor elicited further information about 

this incident, including that Maureen thought defendant told her to kiss 

Hoglund’s face to suggest that she would end up like Hoglund. Defense 

counsel objected to that question on the ground of speculation but made no 

other objection to the testimony. 

After Maureen finished her testimony, defendant moved for a mistrial, 

arguing the evidence that defendant told Maureen to kiss Hoglund’s dead 

body was unanticipated, outside the scope of cross-examination, and unfairly 

prejudicial. Defense counsel said he saw some of the jurors crying as they left 

the courtroom after the testimony. The trial court denied the motion. It 

noted that Maureen had volunteered unanticipated information that was 

“somewhat unique and unusual,” but said that it was “one of literally dozens 

of pretty . . . gri[s]ly circumstances that are part and parcel of this case.” 

And, the court concluded, defendant’s actions and statements after the 

killing—“cynical” statements of “self satisfaction” that suggested he was not 

upset at what he had done—were relevant to his mental state when he killed 

Hoglund. 

Defendant contends the trial court abused its discretion in denying his 

mistrial motion. He argues that his chances of a fair trial were irreparably 

damaged by the “ ‘incurable’ ” prejudice from Maureen’s unanticipated 

testimony. (See Collins, supra, 49 Cal.4th at pp. 198–199.) And, he 

contends, the evidence had no probative value because he was implicitly 
26

threatening only Maureen when he told her to bend down and kiss Hoglund’s 

body. We disagree. The trial court could reasonably conclude the evidence 

was relevant to defendant’s state of mind, the primary disputed issue in the 

case; indeed, defendant himself concedes he is “not arguing over the 

admissibility of the evidence.” 

We agree with defendant that the evidence that he tried to make 

Maureen kiss Hoglund’s dead body is deeply disturbing. But by the same 

token, it suggests defendant was not overcome with horror or remorse in the 

aftermath of killing Hoglund, and it could reasonably assist the jury in 

determining his mental state at the time of the killing. In essence, 

defendant’s argument is that his own actions, in the context of the crime with 

which he was charged, were so horrifying that he could not receive a fair trial 

if the jury heard of them. That proposition is self-refuting. The court did not 

abuse its discretion in denying the mistrial motion on this basis.

Defendant also argues the prosecutor committed misconduct when he

failed to ensure Maureen would not provide inadmissible testimony and when 

he continued to question her about the matter after she volunteered the 

unexpected information about the kiss. Again, we disagree. “ ‘ “When a 

prosecutor’s intemperate behavior is sufficiently egregious that it infects the 

trial with such a degree of unfairness as to render the subsequent conviction 

a denial of due process, the federal Constitution is violated.” ’ [Citations.] 

‘ “Prosecutorial misconduct that falls short of rendering the trial 

fundamentally unfair may still constitute misconduct under state law if it 

involves the use of deceptive or reprehensible methods to persuade the trial 

court or the jury.” ’ ” (People v. Shazier (2014) 60 Cal.4th 109, 127.) 

Defendant points out correctly that it is misconduct for a prosecutor 

intentionally to elicit inadmissible evidence. (People v. Smithey (1999) 20
27

Cal.4th 936, 960.) But he has not shown the prosecutor did so here. The 

court earlier ruled that based upon what it had then heard, anything that 

occurred during the course of the killing or the events related to burial of the 

body, including physical assaults on Maureen, was relevant and admissible. 

Maureen’s testimony that defendant told her to kiss Hoglund’s body fell 

within the scope of this ruling, and after hearing the evidence the court itself 

concluded it was admissible. We see no misconduct in the prosecutor eliciting 

further testimony about these events. 

IV. Pinpoint Instruction on Intent

The trial court provided standard instructions on murder and 

manslaughter. The instruction on murder, CALCRIM No. 520, told the jury 

that to prove defendant guilty of murder, the People must prove he 

committed an act that caused the death of another person and that he had a 

state of mind called malice aforethought. The jury was instructed on express 

and implied malice. Specifically, it was told, defendant acted with express 

malice if he “unlawfully intended to kill,” and with implied malice if he 

intentionally committed an act, the natural and probable consequences of 

which were dangerous to human life, he knew at the time that the act was 

dangerous to human life, and he deliberately acted with conscious disregard 

for human life. (CALCRIM No. 520.) CALCRIM No. 521 told the jury 

defendant was guilty of first degree murder if he acted willfully, deliberately, 

and with premeditation, and that the requirement of willfulness was met “if 

he intended to kill.” As to manslaughter, the jury was instructed under 

CALCRIM No. 570 that “[a] killing that would otherwise be [m]urder is 

reduced to [v]oluntary [m]anslaughter if the defendant killed someone 

because of a sudden quarrel or in the heat of passion.” 
28

Citing People v. Lasko (2000) 23 Cal.4th 101, 109, defendant asked the 

court to include a pinpoint instruction that “the presence or absence of an 

intent to kill is not dispositive of whether the crime committed is murder or 

the lesser offense of voluntary manslaughter.” The trial court declined to 

give the instruction. Defendant argues this ruling was error.

“A criminal defendant is entitled, on request, to instructions that 

pinpoint the theory of the defense case.” (Gutierrez, supra, 28 Cal.4th at 

p. 1142.) But a pinpoint instruction may be refused if the standard 

instructions fully and adequately advise the jury on the issue. (People v. 

Canizalez (2011) 197 Cal.App.4th 832, 857.)

We conclude the pattern instructions already fully and adequately 

advised the jury of the point defendant sought to make through the pinpoint 

instruction. After being instructed that defendant acted with malice if he 

unlawfully intended to kill, the jury was told that “[a] killing that would 

otherwise be [m]urder is reduced to [v]oluntary [m]anslaughter” if defendant 

killed due to sudden quarrel or heat of passion. (Italics added.) Logically, 

“[t]he killing could not ‘otherwise be murder’ unless the jury found defendant 

intended to kill the victim or acted with conscious disregard for human life.” 

(People v. Genovese (2008) 168 Cal.App.4th 817, 831–832; see People v. Moon

(2005) 37 Cal.4th 1, 32 [no error in refusing pinpoint instruction when 

concepts incorporated in general way in pattern instruction].) The 

instructions informed the jury of the applicable legal principles, and the trial 

court did not err in refusing the pinpoint instruction.

Finally, because we find no error or abuse of discretion in the rulings 

and the instruction defendant challenges, we necessarily reject his claim that 

he was prejudiced by the cumulative effect of the trial court’s errors.
29

V. Victim Restitution

The probation officer’s report indicated that the Victim’s Compensation 

Board (the Board) would assist the victim’s family as needed and stated the 

District Attorney’s office would submit any specific costs at the time of 

sentencing. 

At the sentencing hearing, the prosecutor told the court he had 

provided the court clerk with information on restitution owed for funeral 

expenses, indicating the restitution would be paid to the Board. The court 

asked who had paid the funeral expenses, and the prosecutor said that he did 

not know but that $7,500 was the limit of what the People would request. 

The court asked if defendant disputed the amount, and defense counsel said, 

“No, I am not requesting a hearing on behalf of my client. I did have the 

same question the Court had regarding who actually incurred this cost and if 

it was a cost that was actually incurred. But, presumably, the Victim’s 

Compensation Board didn’t create it out of thin air. [¶] . . . [¶] Mr. Reese is 

not objecting to that component.” The trial court ordered defendant to pay 

$7,500 in victim restitution jointly and severally with Villedrouin, his codefendant. 

Defendant now challenges the $7,500 in victim restitution on the 

ground there is no evidence the Board actually reimbursed anyone for funeral 

expenses. And, he points out, there is no indication the Board provided

certified copies of bills showing the amount of assistance it provided, as 

required by statute. (Pen. Code, § 1202.4, subd. (f)(4)(B).) 

Defendant has forfeited this contention by his failure to raise it in the 

trial court. “A defendant wishing to argue on appeal that there is no factual 

basis for a restitution order must object on that ground in the trial court to 

preserve the issue for appeal.” (People v. Mays (2017) 15 Cal.App.5th 1232, 
30

1237 (Mays); accord, People v. Brasure (2008) 42 Cal.4th 1037, 1075 [“[B]y his 

failure to object, defendant forfeited any claim that the [victim restitution] 

order was merely unwarranted by the evidence, as distinct from being 

unauthorized by statute”].) Having acquiesced to the victim restitution 

below, defendant may not challenge it now.

In the alternative, defendant contends his counsel rendered ineffective 

assistance by failing to object to the award. We do not reverse for ineffective 

assistance of counsel unless the defendant establishes both “that counsel’s 

performance fell below an objective standard of reasonableness and that, to a 

reasonable probability, defendant would have obtained a more favorable 

result absent counsel’s shortcomings.” (People v. Kraft (2000) 23 Cal.4th 978, 

1068.) Defendant makes no showing that the Board did not assist with 

funeral expenses or that the amount awarded was excessive. In the absence 

of a showing of prejudice, his claim on direct appeal of ineffective assistance

of counsel must fail. (See Mays, supra, 15 Cal.App.5th at p. 1238.)

VI. Fines and Fees

In addition to victim restitution, the trial court imposed the minimum 

$300 restitution fine for each of the two offenses (Pen. Code, § 1202.4, 

subd. (b)); the same amount in suspended parole revocation fines (Pen. Code, 

§ 1202.45); $40 per offense as a court operations assessment (Pen. Code, 

§ 1465.8), and $30 per offense as a criminal conviction assessment (Gov. 

Code, § 70373). It did not order a probation report fee or attorney fees. 

Defendant objected to these fines and fees on the ground he was indigent and 

unable to pay, and the court indicated his prison wages could be used to pay 

them. 

Defendant contends that under People v. Dueñas (2019) 30 Cal.App.5th 

1157, the trial court deprived him of due process in imposing the $300 
31

restitution fine. Dueñas held that, because the only reason the defendant 

could not pay the fines and fees the trial court imposed as a condition of 

probation was her poverty, it was unconstitutional to use the criminal process 

to collect a fine she could not pay. (Id. at p. 1160.) The defendant there, who 

had cerebral palsy, was unemployed, she had an unemployed husband and 

two young children, and she had suffered a cascade of debt and jail time 

arising out of unpaid fines for juvenile citations, a resulting suspended 

driver’s license, and convictions for driving with a suspended license. (Id. at 

p. 1161.) The conviction at issue in the case resulted in further fines and 

assessments, despite her demonstrated inability to pay them. (Id. at 

pp. 1162–1163.) The appellate court concluded that due process of law 

required the trial court to hold a hearing on the defendant’s ability to pay 

before imposing court facilities and court operations assessments under 

section 1465.8 and Government Code section 70373, and that execution of a 

restitution fine under section 1202.4 must be stayed until the trial court held 

a hearing and concluded the defendant had the ability to pay the fine. (Id. at 

p. 1164.)

Since Dueñas was decided, a number of cases have concluded the 

excessive fines clause of the Eighth Amendment, rather than due process 

principles, provides the proper analytic framework in this situation. In 

People v. Cowan (2020) 47 Cal.App.5th 32, review granted June 17, 2020, 

S261952, Division Four of this court held that “upon proper objection, a 

sentencing court must allow a defendant facing imposition of a minimum 

restitution fine or court operations and court facilities assessments an 

opportunity to present evidence and argument why these financial exactions 

exceed his ability to pay” (id. at p. 34), and that those exactions may be 

analyzed as fines under the excessive fines prohibition of the Eighth 
32

Amendment (id. at pp. 42–45; see also People v. Kopp (2019) 38 Cal.App.5th 

47, 96–97, review granted Nov. 13, 2019, S257844 [as to restitution fine 

under section 1202.4]). 

Still other cases have concluded Dueñas was wrongly decided without 

reaching the question of whether to consider ability to pay under the rubric of 

the excessive fines and fees clause. (See, e.g., People v. Hicks (2019) 40 

Cal.App.5th 320, 324–329, review granted, Nov. 26, 2019, S258946; People v. 

Petri (2020) 45 Cal.App.5th 82, 89–92.)

Under none of these separate lines of authority has defendant shown 

constitutional error. The trial court gave defendant the opportunity to 

challenge imposition of the recommended restitution fine, his counsel 

responded by arguing his indigence should excuse him from paying fines or 

fees, and the trial court imposed the minimum restitution fine and parole 

revocation fine and declined to impose other fines, including one that had 

been recommended by the Probation Department. It thus appears the court 

considered defendant’s ability to pay the fines. Appropriately, the trial court 

considered defendant’s ability to earn money in prison. (See People v. 

Hennessey (1995) 37 Cal.App.4th 1830, 1837; People v. Aviles (2019) 39 

Cal.App.5th 1055, 1076.) Defendant was 40 years old when convicted. There 

is no indication he suffered the “extreme financial hardship” experienced by 

the defendant in Dueñas (see People v. Roberts (2021) 65 Cal.App.5th 469, 

483) or that he would be unable to work in prison. As in Roberts, the trial 

court did not err by imposing minimum fines and fees without conducting a

hearing into defendant’s ability to pay. (Id. at p. 483.),

DISPOSITION

The judgment is affirmed.
33

TUCHER, P.J.

WE CONCUR:

FUJISAKI, J.

PETROU, J.

People v. Reese (A157480)