Filed 8/26/22 P. v. White CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

THOMAS WHITE,

Defendant and Appellant.

 H048901

 (Monterey County

 Super. Ct. No. 19CR004907)

A jury found defendant Thomas White guilty on one count of possessing a weapon 

while in custody at a penal institution. The trial court found White had suffered a prior 

serious or violent felony conviction. The court imposed a total term of two years in 

prison consecutive to the term White was already serving.

White raises multiple claims on appeal. First, he contends the trial court erred by 

denying his pretrial motion for discovery under Pitchess v. Superior Court (1974) 11 

Cal.3d 531 (Pitchess). Second, he contends the trial court failed to adequately inquire 

into a possible jury deadlock, or in the alternative, that the court erred by denying his 

related motion for a mistrial. Third, he contends the trial court erroneously imposed fines 

and fees without determining his ability to pay them as required under People v. Dueñas

(2019) 30 Cal.App.5th 1157 (Dueñas). To the extent that claim was forfeited by his trial 

counsel’s failure to object, White argues counsel rendered ineffective assistance.
2

For the reasons below, we conclude these claims are without merit. We will 

affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Procedural Background

The prosecution charged White by information with a single count of possessing a 

weapon while in custody at a penal institution. (Pen. Code, § 4502, subd. (a).)1 The 

information further alleged he had previously suffered a serious or violent felony 

conviction. (§§ 667, subd. (d), 1170.12, subd. (b).)

The case proceeded to a jury trial in January 2020. The jury found White guilty as 

charged, and the trial court found true the prior conviction allegation. In January 2021, 

the trial court imposed a term of two years in state prison consecutive to the term White 

was already serving. 

B. Facts of the Offense

In 2018, White was in custody at the Correctional Training Facility, also known as 

Soledad State Prison. Officer Mayra Zavala, a housing officer at the facility, saw White 

“walking pretty fast back and forth” between two cells. Officer Zavala testified that 

based on White’s hand motions it appeared he was trying to pass something under the 

cell doors. She testified that she found this behavior concerning and odd, so she asked 

White what he was doing and called him over. White told Officer Zavala he was 

“passing coffee.” Officer Zavala did not believe him and instructed him to stand in front 

of a window for a clothed body search. White did not comply and instead ran into a day 

room. In the back of the day room, he threw a white piece of paper into a trash can. 

Officer Zavala called out to another officer, and the two officers entered the day 

room to conduct a clothed body search of White. This time, White complied, but the 

officers found nothing on him. Officer Zavala then retrieved the piece of white paper 

1 Subsequent undesignated statutory references are to the Penal Code.
3

from the trash can, which was otherwise empty. Inside the rolled-up paper, she found a 

weapon consisting of four metal rods about six inches long. The rods were held together 

with white rope, and they had been sharpened to a point.

II. DISCUSSION

A. Denial of Pitchess Motion for Discovery 

White contends the trial court erred in denying his motion for discovery of Officer 

Zavala’s personnel records by disregarding the legal standards set forth under Pitchess

and relevant statutes. He further contends the trial court erred by denying his motion 

under Brady v. Maryland (1963) 373 U.S. 83 (Brady). The Attorney General contends 

denial of the Pitchess motion was not an abuse of discretion because White failed to 

show the required good cause. 

1. Procedural Background

White moved pretrial for discovery of Officer Zavala’s personnel records under 

Pitchess and Brady. Counsel for White supported the motion with a declaration asserting

on information and belief that Officer Zavala had testified falsely at the preliminary 

hearing and falsified her report concerning the alleged facts of the offense. Counsel also

attached copies of incident reports by Zavala and other officers. 

Counsel’s declaration asserted Zavala testified falsely at the preliminary hearing 

when she stated she saw White “running” back and forth and slipping unknown items 

under the cell doors. In her incident report, Zavala stated White was “walking back and 

forth” and the report did not state he was putting items under the cell doors. Second, 

counsel asserted that Zavala falsely testified that the trash can into which White threw the 

paper was empty. Counsel stated only that this assertion was based on “investigation into 

this matter.” Finally, counsel asserted that the officer’s personnel records “may contain 

complaints of like nature by other inmates against the officer.” 

The trial court denied the motion at a hearing on the matter. The court stated it 

was persuaded by the prosecution’s argument that there was an insufficient basis to show 
4

Officer Zavala had lied or exhibited any dishonesty. The court found that White’s 

motion had failed to establish good cause for the motion.

2. Legal Principles

A movant under the Pitchess statutes must show, among other things, “good cause 

for the discovery or disclosure sought.” (Evid. Code, § 1043, subd. (b)(3).) “This ‘good 

cause’ requirement has two components. First, the movant must set forth ‘the 

materiality’ of the information sought ‘to the subject matter involved in the pending 

litigation.’ (Evid. Code, § 1043, subd. (b)(3).) The function of this requirement is to 

‘exclude[ ] requests for officer information that are irrelevant to the pending charges.’ 

(Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1021 [(Warrick)].) If the movant 

shows that the request is ‘relevant to the pending charges, and explains how, the 

materiality requirement will be met.’ [Citations.] If information is ‘material’ within the 

meaning of Brady, it is necessarily material ‘to the subject matter involved in’ a criminal 

prosecution. [Citations.]” (Association for Los Angeles Deputy Sheriffs v. Superior 

Court (2019) 8 Cal.5th 28, 41-42.) “Second, the ‘good cause’ requirement obliges the 

movant to articulate ‘a ‘reasonable belief’ that the agency has the type of information 

sought.’ [Citations.] This belief ‘may be based on a rational inference’ . . . .” (Id. at 

p. 42.) “What the defendant must present is a specific factual scenario of officer 

misconduct that is plausible when read in light of the pertinent documents.” (Warrick, 

supra, 35 Cal.4th at p. 1025.) If the trial court finds good cause for the motion, the court 

must examine the requested materials in camera to determine whether they should be 

disclosed to the defendant and whether certain specified categories of information must 

be withheld. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83.)

We review a trial court’s denial of a Pitchess motion for an abuse of discretion. 

(People v. Breaux (1991) 1 Cal.4th 281, 311.)
5

3. Denial of the Pitchess Motion Was Not an Abuse of Discretion

White contends the absence in the incident reports of any statements that he was 

“running” or passing something under cell doors suggests Officer Zavala’s testimony at 

the preliminary hearing was “dramatic” and untrue. Second, he points out that his 

counsel’s declaration asserted the trash can was not empty based on counsel’s own 

investigation, in contradiction to Officer Zavala’s incident report stating the can had been 

emptied. White points out that Officer Zavala’s credibility was critical to the 

prosecution’s case because she was the only witness who testified to seeing him throw 

the white paper into the trash can.

White argues that in denying his motion, the trial court erred by disregarding the 

proper legal standard for adjudicating a Pitchess motion. For this proposition, he relies 

on Warrick, supra, 35 Cal.4th 1011, wherein the California Supreme Court held, “[T]o 

obtain in-chambers review a defendant need only demonstrate that the scenario of alleged 

officer misconduct could or might have occurred.” (Id. at p. 1016.) “To require a 

criminal defendant to present a credible or believable factual account of, or a motive for, 

police misconduct suggests that the trial court’s task in assessing a Pitchess motion is to 

weigh or assess the evidence. It is not. A trial court hearing a Pitchess motion normally 

has before it only those documents submitted by the parties, plus whatever factual 

representations counsel may make in arguing the motion. The trial court does not 

determine whether a defendant’s version of events, with or without corroborating 

collateral evidence, is persuasive—a task that in many cases would be tantamount to 

determining whether the defendant is probably innocent or probably guilty.” (Id. at 

p. 1026.)

We agree with White that the documents he sought, if they had included evidence 

of dishonesty by Officer Zavala, would satisfy the materiality element required for a 

Pitchess motion. Officer Zavala’s testimony that she saw White throw a piece of white 

paper into the trash can, and that the can was otherwise empty at the time, was the only 
6

evidence by which the prosecution could show White had possessed the weapon. If he 

could have impeached her with personnel records that demonstrated dishonesty, the jury 

might have discredited her testimony on that point, and the prosecution would have had 

little or no evidence connecting White to the weapon.

We are not persuaded, however, that the trial court abused its discretion in finding 

White failed to establish the second element required for a showing of good cause: “a 

specific factual scenario of officer misconduct that is plausible when read in light of the 

pertinent documents.” (Warrick, supra, 35 Cal.4th at p. 1025.) First, as to the claim that 

Officer Zavala lied at the preliminary hearing when she testified that White was 

“running” back and forth between cell doors, the fact that she described it as “walking” in 

her incident report does not show she lied in her testimony. A person walking back and 

forth fast enough may be reasonably described as “running” back and forth, and at trial 

Officer Zavala testified White was walking back and forth “pretty fast.” The trial court 

did not abuse its discretion in finding this claim did not support the required showing of 

plausible misconduct. 

Second, as to the claim that Officer Zavala lied when she testified the trash can 

was empty, White offers no specific factual support for this assertion. Counsel merely 

claimed it was based on “investigation” without describing the investigation or how 

counsel concluded that the officer was untruthful based on it. Counsel did not aver any 

specific facts from any such investigation that would contradict Officer Zavala’s 

statement. “[T]his type of bare ‘the officer lied and will do so again’ allegation [does not 

constitute] a plausible factual scenario of officer misconduct warranting review of 

confidential personnel records.” (Eulloqui v. Superior Court (2010) 181 Cal.App.4th 

1055, 1069 (Eulloqui).) Absent additional factual detail, counsel’s statement does not 

constitute “a ‘specific factual scenario’ establishing a ‘plausible factual foundation’ for 

this allegation.” (City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, 1147.) 

“Warrick did not redefine the word ‘plausible’ as synonymous with ‘possible,’ and does 
7

not require an in camera review based on a showing that is merely imaginable or 

conceivable and, therefore, not patently impossible. Warrick permits courts to apply 

common sense in determining what is plausible, and to make determinations based on a 

reasonable and realistic assessment of the facts and allegations.” (People v. Thompson

(2006) 141 Cal.App.4th 1312, 1318-1319.)

We are mindful that a trial court abuses its discretion “when its ruling ‘falls 

outside the bounds of reason.’ [Citation.]” (People v. Memro (1995) 11 Cal.4th 786, 

850.) While a trial court might have reasonably exercised its discretion to grant the 

motion here, we cannot say the trial court abused its discretion in denying it. We 

conclude this claim is without merit.

White further argues the trial court’s denial of the motion violated his rights under 

Brady, supra. The invocation of Brady in a Pitchess motion does not alter the showing of 

materiality required to support a Brady claim. “[T]he pertinent inquiry for Brady

materiality regarding the matters sought in [a] discovery motion is whether [defendant’s] 

trial was unfair in the absence of possible evidence” from the officer’s personnel file. 

(Eulloqui, supra, 181 Cal.App.4th at pp. 1067-1068.) “ ‘Evidence is material [under 

Brady] if there is a reasonable probability its disclosure would have altered the trial 

result.’ ” (Id. at p. 1067.) White makes no such showing here. Accordingly we conclude 

this claim is without merit.

B. The Trial Court’s Inquiry into a Deadlock and the Denial of Defendant’s

Motion for Mistrial

White contends the trial court erred by failing to inquire into a jury deadlock and 

failing to make an adequate record of its inquiry. In the alternative, White argues the 

court erred in denying his motion for a mistrial and coerced the jury into reaching a 

verdict by requiring it to deliberate further. The Attorney General contends the trial court 

did not coerce the jury into reaching a verdict, that the court made an adequate record,

and that it properly denied the motion for a mistrial.
8

1. Legal Principles

“Except as provided by law, the jury cannot be discharged after the cause is 

submitted to them until they have agreed upon their verdict and rendered it in open court, 

unless by consent of both parties, entered upon the minutes, or unless, at the expiration of 

such time as the court may deem proper, it satisfactorily appears that there is no 

reasonable probability that the jury can agree.” (§ 1140.) “The determination whether 

there is reasonable probability of agreement rests in the sound discretion of the trial 

court.” (People v. Rodriguez (1986) 42 Cal.3d 730, 775 (Rodriguez).)

“[A] court must exercise its power under section 1140 without coercing the jury, 

and ‘avoid displacing the jury’s independent judgment “in favor of considerations of 

compromise and expediency.” ’ [Citation.] As this court has explained, ‘[a]ny claim that 

the jury was pressured into reaching a verdict depends on the particular circumstances of 

the case.’ ” (People v. Brooks (2017) 3 Cal.5th 1, 88.) “The decision whether to declare 

a hung jury or to order further deliberations rests in the trial court’s sound discretion.” 

(People v. Debose (2014) 59 Cal.4th 177, 209.)

2. Procedural Background

The jury began deliberating around 10:38 a.m. on Thursday, January 30, 2020. 

Later that day, the jury sent a note to the court stating, “At a standstill cannot reach a 

decision[.] require clarification [¶] Do all jurors need to reach the same decision?” The 

court responded in writing, “Your decision, a verdict, must be unanimous. You may 

want to review instruction 3550.”

2 Later that same day, the jury sent another note asking 

if it was required to assume the truth of Officer Zavala’s testimony since she was under 

oath. The court responded in writing and referred the jury to several specific jury 

instructions, including those addressing factors relevant to the credibility of witnesses. 

The next day, Friday, January 31, 2020, the jury sent two notes in succession. The first 

2 Based on CALCRIM No. 3550, the trial court had previously instructed the jury

that, among other things, its verdict must be unanimous.
9

stated, “We have one individual who can not agree[.] it is becoming to[o] much of a 

conflict[.] 11 out of 12, please help. We are reading the rules in the binder.” The court 

responded in writing that it would address the issue in court. The jury then sent another 

note stating, “Clarification we have one individual who is having a hard time believing a 

peace officer during testimony and under oath. We have looked at the book.” The court 

again responded that it would address the issue in court.

The court then questioned the jury foreperson in open court, outside the presence 

of the other jurors, and asked, “Is it the position of the majority of the jurors that if a 

peace officer is sworn in and testifies, that the jurors must believe their testimony?” The

foreperson responded, “Yes.” The court then told the foreperson that any testifying 

witness should start out with the same level of credibility, regardless of their status as a 

peace officer, and that the jury would then decide whether to believe them. The court 

then asked the foreperson in several ways whether they believed they were required to 

believe the witness because they were a peace officer and they had been sworn in, and the 

juror responded, “Yes.” The foreperson offered to clarify and added, “One of our fellow 

jurors is having a hard time believing the peace officer’s testimony. Now, he keeps 

getting doubtful about it and it’s just going back and forth, back and forth.” The trial 

court then repeated its prior instructions that it was up to the jury to decide whether to 

believe or disbelieve a witness, and asked again if the foreperson understood that. On 

further questioning, the foreperson responded that they believed the witness, that they 

understood the rules completely, and that they understood it was up to them to decide 

whether to believe a witness. 

The court then asked the foreperson about the other juror who did not believe the 

witness, and the foreperson responded, “He will not believe any police officers or peace 

officers.” The foreperson said the juror had “repeated it numerous times.” But when the 

court asked for examples, the foreperson’s responses implied the other juror simply did 
10

not believe this particular witness. The court then convened with counsel off the record 

and outside the presence of the foreperson.

The court then called a different juror (Juror Number 43) into open court outside 

the presence of the other jurors, and the court questioned Juror Number 43 about the 

other juror who reportedly disbelieved a witness. Juror Number 43 clearly responded that

the other juror understood he was not required to accept the witness’s testimony as true, 

and that the other juror did not believe this particular witness because the witness was a 

peace officer. On further questioning, Juror Number 43 responded that he or she 

understood they were not required to accept the truth of the witness’s testimony simply 

because the witness was a peace officer under oath, and that it was up to the jury to 

decide the truth of the witness’s testimony.

After conferring with counsel, the court then called a different juror (Juror 

Number 44) into open court outside the presence of the other jurors, and the court 

questioned Juror Number 44 about the other juror, who reportedly did not believe the 

witness’s testimony. The court asked if the other juror felt they would never believe any 

peace officer, or if the juror felt they just did not believe this particular witness. Juror 

Number 44 expressed confusion about what the other juror thought, but then responded 

that the other juror did not believe this particular witness. 

The court then sent Juror Number 44 back into the jury room to continue 

deliberating and convened with counsel for both sides on the record. The court stated 

that it appeared the jury was deadlocked and proposed instructing them with CALCRIM 

No. 3551. The prosecution agreed. Defense counsel stated that she did not object to the 

giving of that instruction but she argued that the jury appeared deadlocked, and she 

added, “And that reading further instructions, that I’m concerned about, are somehow 

going to pressure the one juror to feel like he has to change his mind.” Defense counsel 

then moved for a mistrial. The court summarily denied the motion.
11

Around 2:16 p.m., the trial court brought the jurors into open court and instructed 

them based on CALCRIM No. 3551 as follows: “Do not hesitate to reexamine your own 

views. Fair and effective jury deliberations require frank and forthright exchange of 

views. [¶] Each of you must decide the case for yourself and form your individual 

opinion after you have fully and completely considered all of the evidence with your 

fellow jurors. [¶] It is your duty as jurors to deliberate with the goal of reaching a 

verdict, if you can do so, without surrendering your individual judgment. Do not change 

your position just because it differs from that of other jurors or just because you or other 

jurors want to reach a verdict. [¶] Both the People and the defendant are entitled to the 

individual judgment of each juror. It is up to you to decide how to conduct your 

deliberations. You may want to consider new approaches in order to get a fresh

perspective. [¶] Please let me know whether I can do anything to help you further, such

as give additional instructions or try to clarify instructions I’ve already given you. [¶] 

Please continue your deliberations at this time. [¶] Again, if you wish to communicate

with me further, please continue to do so in writing, using the form we’ve given you.”

After the weekend, the jury returned a verdict of guilty around 2:05 p.m. on 

Monday, February 3, 2020.

3. The Trial Court Did Not Fail to Make an Adequate Record or Err in 

Denying the Motion for a Mistrial 

White first contends the trial court violated his due process rights by failing to 

make an adequate record, thereby impeding his ability to appeal the denial of his motion 

for a mistrial. He argues that under section 1140, the court was required to determine 

whether there was any “reasonable probability that the jury [could] agree,” and that the 

record fails to establish how the court could have made that determination. He further 

argues that the court should have questioned all 12 jurors instead of only three, and that 

the court failed to ask the jury if it had “specific concerns which, if resolved, might assist 

the jury in reaching a verdict.” (Cal. Rules of Court, Rule 2.1036(a).)
12

White cites numerous cases concerning a trial court’s duty to make a record, but 

none of them support his claim in this case. (See In re Steven B. (1979) 25 Cal.3d 1, 4 [a 

minor in a juvenile court proceeding is entitled to have it transcribed]; In re Roderick S.

(1981) 125 Cal.App.3d 48, 53 [unauthorized destruction of knife in evidence denied 

defendant an adequate record]; People v. Apalatequi (1978) 82 Cal.App.3d 970, 973 

[inadequate record of trial where reporter lost her notes and was unable to prepare a 

transcript]; People v. Serrato (1965) 238 Cal.App.2d 112, 113 [defendant had a right to 

have a reporter’s transcript of his trial prepared].) All these cases involved instances 

where a transcript of the proceedings was completely absent or evidence was destroyed. 

None of these cases supports the claim that the trial court in this case failed to make an 

adequate record.

We are not persuaded that the trial court failed to adequately inquire into the 

deadlock. The court’s inquiry into the jurors’ disagreements about a witness’s credibility

was necessarily an inquiry into the nature of the deadlock. The jury’s notes reported that 

its inability to reach agreement stemmed from one juror’s difference in opinion regarding 

the testimony of a witness. Accordingly, the trial court began by questioning the jury 

foreperson on the nature of the disagreement. When it appeared the foreperson may not 

have understood jurors’ duties in evaluating a witness’s credibility, the court clarified the 

applicable law and questioned two other jurors to determine whether they understood the 

law or whether any jurors may have engaged in misconduct.

White argues it is “accepted practice” to question all 12 jurors, but he cites no 

legal authority supporting the proposition that the trial court is required to do so when 

inquiring into a jury deadlock. White cites People v. Barnwell (2007) 41 Cal.4th 1038,

which concerned the removal of a juror. In its analysis, the California Supreme Court 

observed that, based on the statements one of the jurors made to the court in that trial, it 

was necessary for the trial court to interview all of the other jurors. (Id. at p. 1054.) 

Nothing in that opinion established a rule that would have required the trial court here to 
13

question all 12 jurors. Moreover, there is nothing in the record showing that defense 

counsel asked the court to question any other jurors or that counsel requested any other 

curative instructions. Nor did counsel object to any other alleged inadequacies in the 

record. The parties had several discussions off the record, but appellate counsel has not 

sought a settled statement to memorialize those discussions. (See People v. Moore

(1988) 201 Cal.App.3d 51, 56 [where other methods of reconstructing the record are 

available, the defendant must use them to obtain review].)

White also cites People v. Carter (1968) 68 Cal.2d 810. The California Supreme 

Court stated that when inquiring into a jury deadlock, the trial court “may, and indeed it 

should, question individual jurors as to the probability of agreement.” (Id. at p. 815.) 

The trial court here questioned three jurors individually; nothing in that case required the 

court here to question all 12 jurors individually.

As to the claim that the trial court could not have made a determination on this 

record whether there was any reasonable probability the jury could agree on a verdict, we 

disagree. The court could reasonably find that based on its questioning of three jurors, 

there was still a reasonable probability the jury could reach agreement once their duties 

had been clarified. 

White argues that the trial court coerced the jury into rendering a verdict by 

instructing it to continue with deliberations. We see no abuse of discretion in requiring 

the jury to continue deliberating. After ensuring the jurors understood their proper roles, 

the court properly instructed them to resume deliberations based on CALCRIM No. 3551. 

The courts of this state have generally approved the kinds of instructions included in that 

pattern instruction. (People v. Moore (2002) 96 Cal.App.4th 1105, 1121.)

White argues that the trial was short and the issues were simple, such that 

extended deliberations by the jury were unnecessary. (See Rodriguez, supra, 42 Cal.3d at 

p. 775 [discussing precedents and noting that trials in those cases had been relatively 

short and the issues relatively simple, so that further deliberations seemed unnecessary].) 
14

But in the precedents discussed in Rodriguez, the trial courts made coercive statements to 

the juries that suggested a verdict in favor of one party. (People v. Crossland (1960) 182 

Cal.App.2d 117, 119 [court’s statement to the jury emphasizing the simplicity of the case 

could have been interpreted by the jurors to refer to the evidence, and to be an argument 

by the judge against the views of the two jurors in the minority]; People v. Crowley

(1950) 101 Cal.App.2d 71, 76 [court’s statements about the evidence to the jury 

suggested the defendant was guilty].) The trial court here made no such statements. To 

the contrary, the statements the trial court made to the three individual jurors emphasized 

that the reported holdout juror had the right to reject a witness’s testimony 

notwithstanding that witness’s status as a peace officer under oath.

In this case, moreover, the jury sent a note suggesting it did not understand the 

unanimity requirement, and subsequent notes suggested some jurors might not have 

understood their duties in evaluating a witness’s credibility. The trial court reasonably 

inquired into these possibilities and issued further instructions to correct any possible 

misunderstandings about the applicable rules and standards. These matters required time 

to investigate, and it was reasonable to allow the jury further time to deliberate once the 

potential problems had been addressed.

For the reasons above, we conclude the trial court did not fail to make an adequate 

record, and it did not abuse its discretion by requiring the jury to deliberate further. 

Nothing the court said to the jury constituted coercion, and the decision to allow further 

deliberations was within the court’s sound discretion. Accordingly, the trial court 

properly denied White’s motion for a mistrial. This claim is without merit.

C. Imposition of Fines and Fees Under Dueñas

The trial court imposed various fines and fees including a $300 restitution fine

(§ 1202.4, subd. (b)); a suspended $300 parole revocation fine (§ 1202.45); a $40 court 

operations fee (§ 1465.8, subd. (a)(1)); and a $30 court facilities assessment (Gov. Code, 

§ 70373). White did not object. 
15

White contends the trial court improperly imposed these fines and fees without 

determining his ability to pay them under Dueñas, supra, 30 Cal.App.5th 1157.

3

 The 

Attorney General contends White forfeited this claim by failing to object below, and that 

imposition of the fees was constitutional in any event. White argues in the alternative 

that his trial counsel rendered ineffective assistance by failing to object.

We agree with the Attorney General that White forfeited his right to appeal from 

the imposition of fines and fees under Dueñas. White concedes he lodged no objections 

at sentencing. The general rule is that challenges to the imposition of fines and fees are 

forfeited unless objections are made at sentencing. (People v. Aguilar (2015) 60 Cal.4th 

862, 866.) The opinion in Dueñas was issued in January 2019, and White was sentenced 

in January 2021. White was therefore on notice that legal grounds existed for asserting 

an inability to pay. In these circumstances, the claim on appeal has been forfeited.

As to the claim of ineffective assistance of counsel, White bears the burden of 

showing trial counsel’s performance was deficient—i.e., that counsel’s performance “fell 

below an objective standard of reasonableness” in light of the prevailing professional 

norms. (Strickland v. Washington (1984) 466 U.S. 668, 688.) Second, White must show 

the asserted deficiency in counsel’s performance resulted in prejudice: a “ ‘ “reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” ’ ” (People v. Weaver (2001) 26 Cal.4th 876, 955.)

Even assuming counsel’s performance was deficient, White has not shown that he 

suffered prejudice as a result of it. The trial court imposed the minimum amount in fines 

and fees, totaling $370, and White was serving a total term of 10 years in prison. There 

is a reasonable probability that, if White had objected, the trial court would have ruled 

that any wages he earns in prison may be used to pay those fines and fees. (People v. 

Jones (2019) 36 Cal.App.5th 1028, 1035, citing People v. Hennessey (1995) 37 

3 This issue is currently under review in the California Supreme Court in People v. 

Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.
16

Cal.App.4th 1830, 1837 [court may consider ability to earn prison wages in determining 

ability to pay].) Absent any record of his inability to pay, White has not met his burden 

to show a reasonable probability the result of the proceeding would have been different 

had counsel objected.

For the reasons above, we conclude this claim is without merit.

III. DISPOSITION

The judgment is affirmed.
_______________________________

Greenwood, P. J.

WE CONCUR:

______________________________________

 Grover, J.

______________________________________

 Lie, J.

People v. White 

H048901