Filed 9/17/20 P. v. Marshall CA1/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

RANDALL KAREEM MARSHALL,

Defendant and Appellant.

 A156255

 (San Francisco City & County

Super. Ct. No. 17015667. 

SCN228315)

Defendant Randall Kareem Marshall appeals from judgment after a 

jury convicted him of second degree murder, residential burglary, two charges 

of first degree attempted robbery, and commercial burglary. Defendant 

contends the trial court violated his due process rights by admitting evidence 

of a prior uncharged act and allowing the prosecution to impeach him with 

highly inflammatory evidence on a collateral matter; he further contends

both evidentiary errors resulted in cumulative error that requires reversal. 

Defendant also challenges the trial court’s imposition of a restitution fine and 

various fees without holding a hearing on his ability to pay, in violation of his 

state and federal due process rights under People v. Dueñas (2019) 

30 Cal.App.5th 1157. We affirm. 

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged with various crimes committed over the course 

of the morning and early afternoon of August 20, 2017. We discuss only those 
2

facts necessary to resolve the issues raised on appeal. We provide some 

additional background in our legal analysis below. 

A. August 20, 2017

1. Altercation with Raymond Best

About 9:20 a.m. on August 20, 2017, Jennifer M. was stopped at a red 

light at the intersection of St. Joseph’s Avenue and Geary Boulevard across 

from Kaiser Permanente San Francisco Medical Center (Kaiser). She saw a 

man she later identified as defendant on the corner carrying two shopping 

bags and wearing what looked like a surgical mask over his mouth. He put 

the two bags down and put his hands on his knees, as if he was winded after 

running. He was holding what appeared to be a large Tanqueray gin bottle. 

Jennifer M. also saw a man, later identified as Raymond Best, bent 

over as though locking up a bicycle, tying his shoe, or reading a newspaper at 

a newspaper stand, about 25 feet behind defendant. Jennifer saw defendant 

sprint toward Best with the bottle raised in his right hand. As Best rose up, 

defendant hit him with the bottle on the top of his head. Best fell to the 

ground. Before he could get up, defendant hit him on the head a second time. 

Jennifer did not see anything in Best’s hands, nor did it appear Best came 

after defendant. 

Defendant ran back to the corner where he left his bags, grabbed the 

bags, and ran across the street. Jennifer M. followed defendant, took photos 

of him with her cell phone camera, and then drove to her friend Hadley H.’s 

house and called 911. Jennifer showed Hadley her photos of defendant. 

Nicholas S. and Helen V. had exited Kaiser when they saw defendant. 

He had a piece of white tape over his mouth and was holding a green liquor

bottle. Helen said defendant looked “super angry.” Nicholas and Helen 

walked around him. 
3

Nicholas S. saw Best sitting on the sidewalk with a couple of bags next 

to him. Defendant was about six to eight feet away from Best and had his 

back to him. Nicholas kept defendant in his peripheral vision, then 

something caused him to turn around and look directly at defendant. Helen 

turned around when she heard shouting. 

Nicholas S. was about 15 to 20 feet away from Best when defendant 

came around behind Best, lifted the green bottle up over his head, and 

brought it down directly on top of Best’s head, hitting him very hard. 

Helen V. said the bottle looked like a gallon-size green Tanqueray gin bottle. 

Nicholas said Best did not see it coming. Helen said defendant and Best may 

have been facing each other and Best may have been trying to stand up. 

Neither Nicholas nor Helen saw Best with anything in his hand. Defendant 

picked up the bags sitting next to Best and ran off up Geary Street. 

Helen V. saw defendant turn down Lyon Street. Jennifer M.’s friend, 

Hadley H., also saw defendant on Lyon Street. After Jennifer placed the call 

to 911, Hadley went on a run and saw defendant, who she recognized from 

the photos Jennifer had shown her. Defendant was not wearing a shirt, was 

quickly pushing a blue recycling bin, and was carrying a cane. His body 

movements were erratic and he appeared angry. 

Best received medical treatment at Kaiser and was transported to San 

Francisco General Hospital. Best spent six days in a coma, then died on 

August 26, 2017. 

2. Residential Burglary and Attempted Robbery 

About 10:00 or 10:30 a.m. on August 20, 2017, D.S. and Kaitlyn H. were 

in their home on Lyon Street. D.S. was in her bedroom when she heard the 

side gate squeak. She looked out the window and saw defendant enter 

through her gate and close it behind him. She had never seen defendant 
4

before and she thought it was strange he was not wearing a shirt because it 

was not a hot day. He was carrying a curved walking cane but was holding 

the middle of the cane and not using it to assist himself with walking. She 

also noticed he was pushing a blue recycling bin into her yard that had not 

been there before. 

Defendant walked around to the back porch and D.S. and Kaitlyn H. 

went into the kitchen at the back of the house. The two women looked out 

through the closed blinds and saw defendant. When defendant saw D.S., he 

stepped closer to the kitchen door and she could see him clearly. Defendant 

told D.S. that he had been evicted from the house. He smiled and told her, 

“ ‘You recognize me. Open the door.’ ” D.S. told him he needed to leave. He 

responded that he knew nobody lived there.1 

D.S. told defendant again he needed to leave but he moved closer to the 

door. He leaned on the corner of a dryer, then motioned toward a pair of 

shoes D.S. left on the porch and said, “ ‘I have your shoes.’ ” Then defendant 

held up a sheet with directions for the dryer and said, “ ‘See, I know nobody 

lives here.’ ” D.S. told defendant she would call the police if he did not leave. 

At that point, defendant stood up, kicked in the locked door, breaking 

the door jamb, and entered the kitchen. Defendant raised his voice and 

demanded the two women’s cell phones. He was agitated and aggressive, and

he raised the cane in his hand while demanding their phones. Defendant 

tried to grab Kaitlyn H.’s phone, but she moved her hand out of his reach. 

The two women stepped further back into the kitchen and D.S. began 

1 D.S. testified the upstairs flat had been vacant for two and a half 

years. About five weeks earlier, she heard someone upstairs at 11:00 p.m.

The police came and removed a homeless woman who did not have 

permission to be there. 
5

screaming. Each time she took a breath, defendant told her, “ ‘Shut up. Give 

me your phone.’ ” This happened five or six times. 

D.S. kept screaming until defendant left through the same door 

through which he had entered. Kaitlyn H. called 911 and spoke with an 

operator. The police arrived and looked around. The blue recycling bin D.S. 

had seen was no longer there, and the door jamb and kitchen door lock were 

broken and had to be replaced. 

3. Commercial Burglary

On August 20, 2017, Melvin A. was doing construction work at a 

building on Sacramento Street in San Francisco. The bottom floor of the 

building was occupied by a store called “Anthem” and the top floor was office 

space and one residential living space. Melvin A. left the building at some 

point to get caulk and locked the gate. When he returned, defendant was 

upstairs, sitting at a table, eating. Defendant had a cane with him. 

When Melvin A. had arrived at work that morning, there was a box at 

the bottom of the stairs. Defendant had moved the box upstairs and opened 

it. The name of the person on the package was “Jay,” the manager for the 

offices. Defendant claimed “Jay” was his aunt and he was helping his aunt 

move in. Defendant was eating food and drinking a bottle of water that had 

been in Anthem’s refrigerator. 

When Melvin A. asked defendant what he was doing there, defendant 

said he lived there. Melvin A. asked defendant to leave, but defendant 

refused, then lifted his cane above his head and waved it back and forth. 

Defendant kept repeating he lived there and he was helping someone move 

in. Melvin locked defendant in and left the building to wait outside for the 

police. 
6

The police were called. They arrived around 2:10 p.m. and detained 

defendant. Defendant told the officers he lived there. One of the bags 

defendant had with him contained a 1.75-liter green Tanqueray gin bottle 

and an orange San Francisco County jail bracelet bearing defendant’s name. 

There was no blood on the gin bottle or inside the bag. There was no damage 

to the building, and no evidence that anything other than the eaten food and 

water bottle was missing. 

The police did a “cold show” identification procedure with Jennifer M. 

and Helen V. then took defendant to the police station. 

B. Prior Uncharged Conduct

1. Mallory H. Incident

Six days earlier, Mallory H. was walking home about 1:00 a.m. carrying 

a pizza. As she approached Van Ness Street, she noticed defendant on the 

other side of the street making eye contact with her. When she crossed the 

street, defendant asked if he could have her pizza. She said, “No,” and kept 

walking. Defendant followed her, weaving in and out of parked cars and 

giggling. She asked him, “What are you doing?,” but he just continued to 

giggle and kept following her. 

When Mallory H. got to the entrance of her apartment, defendant was 

right behind her, so close she did not believe she had time to get inside safely. 

She faced defendant and asked him why he was doing this. He giggled again 

and then replied, “ ‘Do you live here?’ ” When she asked him again why he 

was doing this, he laughed and said, “ ‘Don’t you know who you are?’

. . . ‘You’re my wife.’ ” As defendant “paced” up the street, Mallory put in the 

door code, entered quickly, and put all of her weight on the door to try to shut 

it. She heard running footsteps, and then defendant began kicking the door. 
7

She screamed “at the top of [her] lungs” and eventually her husband came 

out of their apartment and held the door while she ran inside and called 911. 

The police responded and took Mallory H. to a spot nearby where they 

had detained a suspect. She identified defendant as the man who had 

followed her. Defendant had damaged the door of the building. 

At trial, defendant testified he had been trying to flirt with Mallory H. 

that night but she was not interested, so he told her, “ ‘Have a good night,’ ” 

and stopped walking with her. He denied walking with her all the way to her 

apartment, following her, telling her she was his wife, and trying to open or 

kicking in her door. 

2. Masturbation in Jail

About 30 minutes after defendant spoke with Mallory H., the police 

arrested him. On cross-examination, defendant testified that when he was 

arrested, he had 0.8 or 0.9 gram of methamphetamine on his person. In 

order to avoid being criminally charged with possession of 

methamphetamine, defendant orally ingested the drug on the way to the 

police station. Defendant testified it was the largest amount of the drug he 

had ever taken. After he was processed and placed in a cell, defendant 

became “a little hot and sexually aroused,” so he took off his clothes and 

began to masturbate. The police rushed in, handcuffed him, and placed him 

in a safety cell. 

3. Pizza Parlor Incident

During cross-examination, defendant was shown a video of an incident 

at a pizza parlor on July 20, 2017. In the video, defendant punched the 

owner of the pizza parlor. 

On cross-examination, defendant testified that the business was closing 

and he had asked if they had any leftover pizza. The employees said they 
8

would check with the owner and defendant waited to speak with the owner. 

The owner came out and told defendant to “get the fuck out.” Defendant was 

getting ready to leave, but he was not leaving fast enough, so the owner 

threw his things into the street, at which point defendant punched him in the 

face. Defendant denied that he had refused to leave. 

C. Defense Testimony

As noted, defendant testified in his own defense at trial. Defendant 

was homeless in July and August 2017. With regard to the Raymond Best 

incident, defendant testified that on the morning of August 20, he was 

carrying bags that contained everything of value he owned, including his 

money, two liquor bottles he found, and his EBT card. He set the bags down 

and walked and talked with a homeless couple. Defendant testified he 

turned around and found Best and another man going through his bags. 

Defendant ran towards them and yelled, “ ‘Hey man, what the fuck are you 

doing? That’s my shit.’ ” 

Defendant grabbed his bags to retrieve his belongings. Best started 

punching defendant hard in the head, defendant punched Best, and a fight 

ensued. After Best hit defendant hard in the mouth, defendant took his blue 

bag and walked back to the corner while Best and the other man continued 

going through his other bags. Defendant looked in his blue bag to see what 

he had left and determine if it was worth going back for his other bags. He 

removed the gin bottle from his bag and set it on the ground to be able to look 

further in the bag. Defendant saw that Best and the other man no longer 

had their hands on his bags. He thought he could retrieve them without a 

confrontation. Defendant was “making haste” to his belongings when Best 

rushed at him. 
9

Best tackled defendant and they fell to the ground, wrestling. As 

defendant was getting up, he saw a can of Coke on the ground. Defendant 

reached for the unopened can of Coke and hit Best over the head with it. 

When defendant hit him, Best fell backwards. Defendant denied hitting Best 

with the gin bottle. Defendant testified he did not intend to kill Best, and 

only wanted to get away. Defendant did not know how many times he hit 

Best, but he did not hit him again after he fell to the ground. Defendant 

gathered his bags that were near Best, then picked up his blue bag.

Defendant could see Best was on his feet, walking toward him, so he ran 

across the street. 

Surveillance video showed defendant walking up Geary Boulevard, 

toward Lyon Street, with his bags in his left hand and the Coke can in his 

right. In the video, the Coke can fell and rolled away. Defendant testified 

that after he turned the corner, he felt safe. He took his shirt off because it 

was hot. He walked to a house where the day before he had stored a blue

recycling bin which he used as a makeshift personal trailer in which to store 

his things. 

The day before, defendant ran into his friend Lauren. Lauren took him 

to a house on Lyon Street where they could “hook up,” i.e. have sex. She told 

him the house was a squatter’s place. She led him down an alley, opened a 

gate, and told him he could store his recycling bin there.

When he reached the house on Lyon Street after the incident with Best, 

defendant noticed a cane hanging on the gate door. He picked up the cane 

because his knee had given out in the fight with Best and he thought he 

might able to use it later. Defendant put his bags in the recycling bin then

pushed his bin into the alley and closed the gate.
10

Defendant went around to the back of the apartment to see if Lauren 

was there. He saw a person looking at him through the blinds; he thought it 

was Lauren. He could not hear the woman clearly; he thought Lauren said, 

“come in.” He used the knob to open the door. He did not get angry or kick 

the door. The door just opened, it was not latched.

When he entered, he realized Lauren was not there and asked where 

she was. D.S. started screaming, then Kaitlyn H. came into the kitchen and 

started screaming as well. Defendant asked Kaitlyn H. for her phone

because he wanted to call Lauren. Defendant denied intending to steal 

anything. He did not threaten or physically assault the women. 

After the incident with D.S. and Kaitlyn H., defendant went to 

Sacramento Street and stored his bin in an alley. He needed to use the 

restroom but did not want to go in public. He thought Anthem might have a 

bathroom he could use.

Defendant had not intended to steal anything at Anthem. When he got 

to the top of the stairs, however, he saw the bathroom was under construction 

and he could not use it. Defendant relieved himself outside, then went back 

into the building. He went into the kitchen where he took some water and 

leftovers from the refrigerator which he eventually consumed. No one was 

there, but defendant thought he would wait and see if he could talk to 

someone about whether they had work for him. While he waited, defendant 

made a gin drink and went outside to smoke a cigar. He estimated he spent 

“at least a couple of hours” at Anthem.

When defendant saw Melvin A. arrive in his truck, he went downstairs 

to talk to him about work. As they walked back to Anthem and up the stairs, 

he noticed a box on the stairs and picked it up and carried it upstairs. He did 
11

not tell Melvin A. he lived there and did not pick up his cane or wave it at 

Melvin A. Defendant said Melvin A. did not tell him to leave. 

Melvin A. left and the “[n]ext thing you know,” defendant heard cars 

screeching, looked out the window, and saw police with their weapons drawn. 

Defendant came downstairs and the officers handcuffed him. 

D. Charges, Verdicts, and Sentencing

An information filed November 21, 2017 charged defendant with the 

murder of Raymond Best by use of a glass bottle, a dangerous or deadly 

weapon (Pen. Code,2 §§ 187, subd. (a), 12022, subd. (b)(1); count I); first 

degree residential burglary with an allegation that it was committed when a 

person other than an accomplice was present (§§ 459, 667.5, subd. (c)(21); 

count II); two counts of attempted first degree robbery (§§ 211, 664; counts III 

& IV); misdemeanor vandalism (§ 594, subd. (b)(2)(A); count V); and second 

degree commercial burglary (§ 459; count VI). 

Before the cause was submitted for deliberations, the district attorney 

stated it was proceeding only on a theory of second degree murder. 

Defendant was found guilty as charged on all counts except misdemeanor 

vandalism, which was dismissed. The jury also found true the allegations 

that defendant used a deadly weapon in committing the murder and that 

people were present during the residential burglary. 

On January 2, 2019, the court sentenced defendant to a term of 15 

years to life for the murder, imposed a term of one year for the dangerous 

weapon enhancement, and an aggregate determinate term of six years eight 

months for the residential and commercial burglaries and two counts of 

attempted robbery, for a total sentence of 22 years 8 months to life. 

2 All further statutory references are to the Penal Code unless 

otherwise indicated.
12

II. DISCUSSION

A. Evidence of Prior Uncharged Conduct—Mallory H.

Defendant first contends the trial court abused its discretion in 

admitting evidence of the incident with Mallory H. that occurred six days 

before he entered the residence of D.S. and Kaitlyn H. 

1. Additional Background

Before trial, the defense moved to exclude, and the prosecution moved 

to admit, other-crimes evidence including the incident involving Mallory H. 

The prosecution’s motion argued it should be allowed to introduce the 

incident with Mallory H. to show defendant’s intent in the charged 

residential burglary. Defendant argued the incident lacked the requisite 

similarity to the charged crimes to be admissible on the issue of defendant’s 

intent and the evidence was unduly prejudicial. 

The court did not take testimony at the hearing on the motions in 

limine but stated it had reviewed the transcript of the preliminary hearing. 

In ruling on the motions, the trial court observed, “The prior uncharged 

incident [with Mallory H.] has some similarities to the residential burglary 

that is charged here in which the defendant allegedly kicked a door and 

thereby broke into an occupied residence after being told to leave by one of 

two female residents . . . .” The trial court acknowledged “differences, 

certainly” between the two incidents, but noted the “least degree of similarity 

between the crimes that is needed to prove intent, and of course, the prior 

uncharged conduct need only be proven by a preponderance of the evidence.” 

The court found sufficient similarity between the two incidents and concluded 

the probative value of the evidence outweighed its prejudicial effect, and that 

it would not “require undue consumption of time or confuse the issue or 
13

mislead the jury.” The court ruled it would give “an appropriate limiting 

instruction under CALCRIM [No.] 375.” 

At the conclusion of Mallory H.’s testimony, the trial court admonished

the jury the evidence was being admitted for a limited purpose or purposes. 

The court said: “I wanted to clarify one thing, which is regarding 

[Mallory H.]’s testimony. As you have heard, she is testifying about an 

incident that occurred on August 14, 2017. I think you’re aware of this, but I 

do want to make it clear [defendant] is not facing criminal charges in this 

case arising out of the incident that [Mallory H.] has been testifying to. You 

are hearing evidence of the incident as it may bear on the criminal charges in 

this case. And in particular, the Court in a pretrial ruling admitted or 

allowed the introduction of evidence on this incident as it may bear on 

[defendant]’s intent in allegedly committing the residential burglary that is 

one of the charges . . . in this case.” The court noted the evidence “may also 

be admitted for another limited purpose,” and reiterated, “I just wanted to 

make it clear at this point this is not an incident for which [defendant] is 

directly facing criminal charges in this case. The evidence you’re hearing is 

admitted for limited purpose or purposes, and we will make that clear in the 

instructions at the end of the case. I just didn’t want anybody to be 

confused.” 

When the court instructed the jury with CALCRIM No. 375 at the 

conclusion of the case, it told the jury that if it found defendant had 

committed the offense of attempting to enter the residence of Mallory H. on 

August 14, 2017, “you may but are not required to consider that evidence [for] 

the limited purpose—there is a typo there, that should be singular—for 

limited purpose of deciding whether the defendant acted with intent to 

commit theft as charged [in] Count 2 [(residential burglary)].” The court also 
14

instructed the jury to consider the similarity or lack of similarity of the 

offenses and admonished: “Do not consider this evidence for any other 

purpose except for the limited purpose of determining the defendant’s 

credibility. Do not conclude from this evidence that the defendant has a bad 

character or is disposed to commit crime. If you conclude that the defendant 

committed the uncharged offense, that conclusion is only one factor to 

consider along with all of other evidence [sic].” 

2. Analysis

In general, evidence of a person’s character or trait of character is 

inadmissible to prove the person’s conduct on a specific occasion. (Evid. Code, 

§ 1101, subd. (a).) Evidence a person committed a “crime, civil wrong, or 

other act” is admissible if it is relevant to prove a fact other than a person’s 

disposition to commit such an act, such as “motive, opportunity, intent, 

preparation, plan, knowledge, identity, [or] absence of mistake or accident 

. . . .” (Id., subd. (b).) 

Evidence of uncharged conduct can be relevant to prove intent because 

“ ‘[t]he recurrence of a similar result . . . tends (increasingly with each 

instance) to negative accident or inadvertence or self-defense or good faith or 

other innocent mental state, and tends to establish (provisionally, at least, 

though not certainly) the presence of the normal, i.e., criminal intent 

accompanying such an act . . . .’ ” (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) 

“To be admissible, there must be some degree of similarity between the 

charged crime and the other crime, but the degree of similarity depends on 

the purpose for which the evidence was presented. The least degree of 

similarity is needed when, as here, the evidence is offered to prove intent.” 

(People v. Jones (2011) 51 Cal.4th 346, 371.) 
15

Even when evidence of uncharged conduct is otherwise admissible, it 

must be excluded if its probative value is outweighed by its potential to 

prejudice the fact finder against a party, to confuse the issues, or to consume 

undue amounts of time. (Evid. Code, § 352; People v. Mungia (2008) 

44 Cal.4th 1101, 1130.) 

We review a trial court’s rulings under Evidence Code sections 1101 

and 352 for an abuse of discretion. (People v. Mungia, supra, 44 Cal.4th at 

p. 1130.) “ ‘Under the abuse of discretion standard, “a trial court’s ruling will 

not be disturbed, and reversal . . . is not required, unless the trial court 

exercised its discretion in an arbitrary, capricious, or patently absurd manner 

that resulted in a manifest miscarriage of justice.” ’ ” (People v. Foster (2010) 

50 Cal.4th 1301, 1328–1329.) 

Applying these standards, we conclude the trial court acted within its 

discretion when it admitted evidence of the prior uncharged incident with 

Mallory H. Defendant insists the evidence regarding the incident with 

Mallory H. was inadmissible to prove intent to steal because defendant did 

not steal or attempt to steal anything from her, and at most committed an act 

of misdemeanor vandalism. But courts have long held that intent to commit 

theft can be inferred from the fact of a forcible and unlawful entry. (See 

People v. Jones (1962) 211 Cal.App.2d 63, 71–72 [“Burglarious entry may be 

inferred from the fact that appellant unlawfully and forcibly entered the 

home of another”]; People v. Fitch (1946) 73 Cal.App.2d 825, 827 [intent to 

commit theft “could be inferred from the forcible and unlawful entry alone”].) 

Here, in both the incident with Mallory H. and the incident with D.S. and 

Kaitlyn H., the evidence supports a finding defendant broke the door in an 

attempt to forcibly enter the premises. Thus, the court could reasonably infer
16

the evidence of an attempted forcible entry is not just evidence of vandalism 

but intent to steal.

We likewise reject defendant’s claim that the trial court abused its 

discretion because the evidence was more prejudicial than probative. “ ‘An 

exercise of discretion under Evidence Code section 352 will be affirmed unless 

it was arbitrary, capricious, or patently absurd and the ruling resulted in a 

miscarriage of justice.’ ” (People v. Bell (2019) 7 Cal.5th 70, 105.) As 

explained above, the evidence that defendant attempted to force entry to 

Mallory H.’s residence was relevant on the issue of intent. Moreover, the 

evidence was not particularly inflammatory, and certainly not any more 

inflammatory than the evidence regarding the charged offenses of residential 

burglary and murder. (See People v. Ewoldt, supra, 7 Cal.4th at p. 405 [fact 

that evidence regarding uncharged conduct was no stronger and no more 

inflammatory than charged crimes decreased potential for prejudice]; People 

v. Foster, supra, 50 Cal.4th at p. 1332 [violent and sexual prior crimes 

evidence was less inflammatory than evidence defendant repeatedly stabbed 

victim].) 

Finally, even assuming the trial court erred in admitting the evidence 

of the incident with Mallory H., we conclude any such error was harmless 

because defendant has not shown a reasonable probability he would have 

obtained a more favorable verdict had the court excluded the evidence. 

(People v. Carter (2005) 36 Cal.4th 1114, 1152 [error in admitting evidence of 

uncharged misconduct does not require reversal unless it is reasonably 

probable outcome would have been more favorable had the evidence been 

excluded].) The court admonished the jury when Mallory H. testified, and 

again during instructions at the conclusion of trial, that the evidence was 

admissible on the issue of intent with respect to the charged crime and 
17

explained to the jury it must not consider the evidence to conclude defendant 

has a bad character or is disposed to commit the charged crime. Thus, the 

jury was properly instructed not to use the evidence to conclude defendant 

committed the charged crime.

Defendant contends the court’s instruction that the jury could consider 

the evidence for purposes of evaluating defendant’s credibility was extremely

prejudicial and rendered his trial unfair. For several reasons we reject the 

argument. First, defendant’s counsel did not object to the instruction at trial. 

Moreover, defendant’s argument equates the use of prior misconduct evidence 

for credibility purposes to inadmissible propensity evidence. But while the 

latter purpose is clearly prohibited, prior misconduct evidence may be 

admissible when offered for the purpose of evaluating witness credibility.

3

(Evid. Code, § 1101, subd. (c) [“Nothing in this section affects the 

admissibility of evidence offered to support or attack the credibility of a 

witness.”]; see People v. Clark (2011) 52 Cal.4th 856, 931 [“A witness may be

impeached with any prior conduct involving moral turpitude whether or not

it resulted in a felony conviction, subject to the trial court’s exercise of

discretion under Evidence Code section 352.”].) Further, as noted, the court 

3 At the hearing on the motion in limine after the court ruled the 

Mallory H. incident would be admissible on the issue of intent, the 

prosecution also informed the court it was seeking to admit the evidence for 

impeachment purposes under Evidence Code section 1103. The trial court 

stated it had not understood that previously. Defense counsel acknowledged 

the prosecution was seeking to admit the incident “for both impeachment and 

as far as [Evidence Code section] 1101[, subdivision] (b),” confirmed the 

evidence would be “coming in their case in chief” whether defendant testified 

or not, and then remarked, “So I think we have, then, enough information 

about what we need to talk to the jury about, then.” Though neither party 

discusses this colloquy, we note the ambiguity in the record about whether 

the Mallory H. evidence could be used for impeachment purposes. 
18

expressly instructed the jury not to use evidence of the Mallory H. incident to 

conclude defendant has a bad character or was disposed to commit the crime. 

We presume the jury followed these instructions, and no evidence in the 

record suggests otherwise. (People v. Harris (2013) 57 Cal.4th 804, 842.) 

Defendant complains that the evidence regarding the Mallory H. 

incident portrayed him as a “dangerous, violent, unpredictable, and perhaps 

even mentally ill individual who engaged in random acts of violence.” He 

contends he was also prejudiced because the prosecution’s closing argument 

focused on his “ ‘scary’ ” behavior toward Mallory H. rather than his intent to 

steal from her. But the prosecutor twice explained to the jury in closing 

argument that the evidence regarding Mallory H. was relevant to whether 

defendant had an intent to steal from D.S. and Kaitlyn H.4 Further, a large 

number of trial witnesses testified to a wide range of defendant’s behaviors

and their own feelings during their interactions with him. With regard to the 

murder charge, three witnesses testified they saw defendant hit Raymond 

Best over the head with a gin bottle. Among them, they testified he appeared 

“intense,” “really, really angry,” “super angry,” “crazy,” “intimidating,” 

“scary,” “unpredictable,” and was “behaving erratically.” Hadley H. testified 

defendant appeared “angry,” “scary,” was “acting erratically,” and his 

behavior was “not normal.” D.S. and Kaitlyn H. testified that defendant 

made strange comments, raised his voice, was agitated and aggressive, 

kicked in their door, and tried to grab their phones. They testified it was a 

4 The prosecutor told the jury: “You can consider Mallory’s incident to 

the extent it sheds light on [defendant]’s intent during the [D.S.] incident.” 

Later in her argument she reiterated: “So in this case, obviously the burglary 

charge applies to [D.S. and Kaitlyn H.’s] home. Did he enter that home with 

an intent to commit theft? You get to think about Mallory’s incident when 

making that decision.” 
19

“scary situation,” and that they were “really scared.” Melvin A. testified 

defendant claimed his aunt lived in the commercial property, helped himself 

to food from a neighboring business, moved and opened a package, refused to 

leave the premises when asked, and raised a cane over his head waving it 

back and forth. The prosecution presented video evidence that a month 

before the crimes at issue, defendant punched the owner of a pizza parlor 

when he told defendant to “get the fuck out” of his restaurant. Defendant 

does not challenge any of this evidence on appeal. Moreover, defendant 

testified at length to his own detailed version of the events over the course of 

several days during trial, giving the jury ample opportunity to evaluate his 

credibility based on his own testimony and demeanor. Though defendant 

argues his credibility was the key issue at trial, in light of the overwhelming 

amount of evidence bearing on that issue, we conclude the admission of the 

Mallory H. evidence was not so prejudicial as to make it more probable he 

would have achieved a different result in its absence. 

Finally, the evidence against defendant was strong. Three 

eyewitnesses testified they saw defendant hit Raymond Best over the head 

with a gin bottle and that Best did not appear to provoke the attack or hit 

defendant. Though defendant argues there was conflicting medical and 

forensic evidence regarding the murder charge, the multiple percipient 

witnesses were shown to have no reason to lie and their accounts were 

consistent with one another and contradicted defendant’s. As to the 

residential burglary, D.S. and Kaitlyn H. both testified defendant broke down 

their kitchen door and demanded their cell phones. Defendant claimed he 

opened their door by turning a doorknob, but the physical evidence showed 

their door was broken. Given the strength of the other evidence against 
20

defendant, it is unlikely the result would have been different had evidence of 

the Mallory H. incident been excluded. 

For the same reasons, we reject defendant’s argument that admission 

of the incident with Mallory H. was a violation of his due process rights. The 

“routine application of state evidentiary law does not implicate defendant’s 

constitutional rights.” (People v. Brown (2003) 31 Cal.4th 518, 545.) “ ‘The 

admission of evidence results in a due process violation only if it makes the 

trial fundamentally unfair. [Citation.] “Only if there are no permissible 

inferences the jury may draw from the evidence can its admission violate due 

process. Even then, the evidence must ‘be of such quality as necessarily 

prevents a fair trial.’ [Citation.] Only under such circumstances can it be 

inferred that the jury must have used the evidence for an improper 

purpose.” ’ ” (People v. Coneal (2019) 41 Cal.App.5th 951, 972.) As discussed 

above, the evidence that defendant attempted to forcibly enter Mallory H.’s 

door supported an inference he intended to commit theft. But even if such an 

inference was not reasonable, the evidence was not of such character as to 

render defendant’s trial fundamentally unfair. 

B. Impeachment with Evidence of Masturbation

Defendant next contends the trial court erred in admitting the evidence 

he stripped naked in his jail cell and masturbated, arguing the evidence was 

more prejudicial than probative under Evidence Code section 352. 

1. Additional Background

At trial, defense counsel moved to exclude evidence that defendant was 

masturbating in jail on August 14, 2017. The prosecution argued evidence of 

hypersexuality and combative behavior are signs of methamphetamine 

abuse. The trial court expressed concern the evidence might be prejudicial, 

but ultimately ruled it was potentially probative of the amount of 
21

methamphetamine defendant ingested, “which bears not only potentially on 

his conduct, but potentially also on his ability to perceive and remember what 

happened and testify reliably to those events.” The court allowed the 

prosecution to cross-examine defendant on the incident but cautioned not to 

disclose any lurid details. 

On cross-examination, defendant testified he had ingested close to a 

gram of methamphetamine before arriving at the jail. He stated once he was 

placed in the cell, “I got a little hot and sexually aroused, and I started 

masturbating back there. And officers were alerted to what I was doing. 

How they knew, I don’t know. And they rushed in there and handcuffed me 

and placed me in a safety cell.” The prosecutor asked: “You were not 

combative with sheriff’s personnel?” Defendant responded he was not. The 

prosecutor then asked: “But you stripped your clothes off. And you were 

masturbating?” Defendant confirmed he was. 

2. Analysis

We agree that the evidence has minimal probative value. Though 

arguably it would be probative of the amount of methamphetamine defendant 

consumed on August 14, he consumed the methamphetamine six days before 

the crimes at issue and it likely would have had little bearing on his behavior 

on August 20. Nonetheless, we conclude defendant has not shown a 

reasonable probability of a more favorable result had the evidence been 

excluded. As discussed above, the jury heard substantial evidence regarding 

strange behavior by defendant both on the day of the crime and in a pizza 

parlor a month before. Defendant also explained that the masturbation 

occurred when he took the largest amount of the drug he had ever taken. A

toxicology expert opined that defendant taking off his clothes and 

masturbating was consistent with someone who had ingested a larger 
22

quantity of methamphetamine than he is used to and does not have a 

tolerance for it. Moreover, the testimony regarding masturbation was 

extremely brief, was offered by defendant, and the prosecutor asked only one

question to confirm that defendant had been masturbating in his cell. In 

light of these facts, we conclude any error in admitting the testimony was 

harmless. 

C. Cumulative Error

Defendant argues the two evidentiary errors in admitting the 

uncharged acts taken together constituted cumulative error that rendered his 

trial fundamentally unfair. As we have discussed above, however, admission 

of the uncharged incident with Mallory H. was not error, and the fleeting 

reference to masturbating in his cell was not unduly prejudicial in the context 

of the entire trial. On this record, there was no cumulative error. 

D. Dueñas

In addition to his prison term, the court imposed a $200 court 

operations assessment fee (§ 1465.8), a $150 conviction assessment fee (Gov. 

Code, § 70373), a $40 theft fee (§ 1202.5), a $1,500 restitution fine (§ 1202.4),

and a suspended $1,500 parole revocation restitution fine (§ 1202.45). 

Defendant asks this court to vacate the fees and stay imposition of the 

restitution fine unless and until the prosecution can show he has the present 

ability to pay under People v. Dueñas, supra, 30 Cal.App.5th 1157 (Dueñas). 

Alternatively, he asks this court to remand for an ability to pay hearing. We 

disagree because on the merits, defendant is not entitled to relief under 

Dueñas. 

1. The Dueñas Case

In Dueñas, the defendant, a homeless probationer who suffered from 

cerebral palsy and was unable to work, was convicted of her fourth offense of 
23

driving with a suspended license. Because she was unable to work, Dueñas 

lost her driver’s license when she could not pay assessments for juvenile 

citations she received as a teenager. Over the ensuing years, Dueñas was 

convicted of several misdemeanors because she continued to drive without a 

license and spent weeks in jail in lieu of paying additional fees and fines, but 

she remained unable to pay off her debt. In the most recent case, she was 

placed on summary probation and ordered to pay a criminal conviction 

assessment, a court operations assessment, and a restitution fine within 

three years. (Dueñas, supra, 30 Cal.App.5th at pp. 1160–1163.) Dueñas 

objected and asked for an ability to pay hearing. At the hearing, she

produced undisputed evidence establishing her inability to pay. (Id. at 

pp. 1162–1163.) Although the court assured Dueñas she would not be 

“ ‘punished’ ” if she was unable to pay, it also stated, “ ‘Those [sums] will go 

to collections without any further order from this court.’ ” (Id. at p. 1163.) 

The trial court rejected the defendant’s argument that the imposition of the 

assessments and the fine without consideration of her ability to pay them 

violated her constitutional rights to due process and equal protection. (Ibid.) 

The Court of Appeal reversed, holding that “the assessment provisions 

of Government Code section 70373 and Penal Code section 1465.8, if imposed 

without a determination that the defendant is able to pay, are . . . 

fundamentally unfair [and] imposing these assessments upon indigent 

defendants without a determination that they have the present ability to pay 

violates due process under both the United States Constitution and the 

California Constitution.” (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The 

appellate court reversed the order imposing the assessments and directed 

the trial court to stay the execution of the restitution fine “unless and until 
24

the People prove that [the defendant] has the present ability to pay it.”5 (Id. 

at pp. 1172–1173.)

2. Dueñas Does Not Warrant a Remand 

Division Two of the Second District Court of Appeal, in People v. Hicks 

(2019) 40 Cal.App.5th 320 (Hicks), review granted November 26, 2019, 

S258946 recently explained: “To reach its holding, Dueñas wove together two 

distinct strands of due process precedent. [¶] The first strand secures a due 

process-based right of access to the courts. . . . requir[ing] courts to waive 

court costs and fees that would otherwise preclude criminal and civil litigants 

from prosecuting or defending lawsuits or from having an appellate court 

review the propriety of any judgment. [Citations.] [¶] The second strand 

erects a due process-based bar to incarceration based on the failure to pay 

criminal penalties when that failure is due to a criminal defendant’s 

indigence rather than contumaciousness.” (Id. at p. 325.) 

We agree with Hicks that the first strand “does not dictate Dueñas’s

bar on imposing fees because the imposition of assessments, fines and fees 

does not deny a criminal defendant access to the courts.” (Hicks, supra, 

40 Cal.App.5th at p. 326.) Here, the imposition of the fees and fines disputed 

by defendant “in no way interfered with defendant’s right to present a 

defense at trial or to challenge the trial court’s rulings on appeal.” (Ibid.) 

Indeed, they were not imposed until after the trial was over, and except for 

the fact of their imposition, are not otherwise challenged. 

5 The California Supreme Court is currently considering whether trial 

courts must determine a criminal defendant’s ability to pay fines, fees, and 

assessments before imposing them. (People v. Kopp (2019) 38 Cal.App.5th 47, 

review granted on specified issues Nov. 13, 2019, S257844.)
25

Likewise, the second strand does not dictate Dueñas’s bar on imposing 

fees because their imposition, without more, does not result in incarceration 

for nonpayment due to indigence. The cases prohibiting incarceration for 

indigence alone rest on the notion that “ ‘[f]reedom from imprisonment . . . lies 

at the heart of the liberty that [the due process] [c]lause protects.’ ” (Hicks, 

supra, 40 Cal.App.5th at p. 326, italics added by Hicks; accord, People v. 

Kingston (2019) 41 Cal.App.5th 272, 280.) Thus, at the time of sentencing, 

imposing a fee or fine upon a criminal defendant does not require immediate 

incarceration and as a result, does not infringe on defendant’s liberty 

interest. (Hicks, at p. 326; Kingston, at p. 280.) Although Dueñas 

determined that by imposing the court assessments, indigent defendants 

were subject to “ ‘additional punishment’ ” because their failure to pay could 

give rise to civil judgments with significant negative consequences, it “cites 

no authority for the proposition that those consequences constitute 

‘punishment’ rising to the level of a due process violation.” (People v. Caceres 

(2019) 39 Cal.App.5th 917, 927, review denied Jan. 2, 2020.) 

Because it is wholly speculative that “additional punishment” discussed 

in Dueñas will come to pass, we find it unnecessary to decide whether there 

was any infringement here on defendant’s due process or other constitutional 

rights. In Dueñas, the defendant had already suffered “cascading 

consequences” because of “a series of criminal proceedings driven by, and 

contributing to, [her] poverty,” and she had already been ordered to pay the 

charges at issue by the end of her probation period. (Dueñas, supra, 

30 Cal.App.5th at pp. 1163–1164.) In contrast, nothing about the 

circumstances here suggests defendant’s criminal proceedings had 

contributed to his homelessness. (See People v. Caceres, supra, 

39 Cal.App.5th at p. 928 [likelihood of committing criminal threats not 
26

affected by one’s financial circumstances].) Thus, even assuming Dueñas was 

correctly decided on its facts, the hardship in the instant matter is not akin to 

the one imposed in that case. 

Moreover, the situation in which defendant has put himself—a lengthy 

sentence in state prison—does not implicate the same due process concerns at 

issue in the factually unique Dueñas case. Defendant, unlike Dueñas, does 

not face incarceration because of an inability to pay assessments and fines. 

Defendant is in prison because he was found guilty of murder, burglary, and 

attempted robbery. 

Also unlike Dueñas, the trial court in this case imposed a restitution 

fine above the statutory minimum. Section 1202.4, subdivision (c) expressly 

allows the court to consider a defendant’s ability to pay in such 

circumstances, and subdivision (d) provides the court “shall consider any 

relevant factors, including, but not limited to, the defendant’s ability to pay” 

in setting the amount of the fine in excess of the statutory minimum. Thus, 

at least as to the restitution fine, defendant “had every incentive to object” 

and forfeited his ability to pay argument by failing to do so in the trial court. 

(People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033, review den. Sept. 18, 

2019, S256881; People v. Aviles (2019) 39 Cal.App.5th 1055, 1073, review den. 

Dec. 11, 2019, S258563.) 

Lastly, Dueñas does not support a remand to the trial court to consider 

whether the restitution fine imposed on defendant should be stayed. Because 

of section 1202.4’s “prohibition on considering the defendant’s ability to pay 

the minimum fine,” Dueñas concluded “the criminal justice system punishes 

indigent defendants in a way that it does not punish wealthy defendants.” 

(Dueñas, supra, 30 Cal.App.5th at p. 1170.) As the court explained, “In most 

cases, a defendant who has successfully fulfilled the conditions of probation 
27

for the entire period of probation has an absolute statutory right to have the 

charges against him or her dismissed” and be relieved of their resulting 

penalties and disabilities. (Ibid.) If, however, “a probationer cannot afford 

the mandatory restitution fine, through no fault of his or her own he or she is 

categorically barred from earning the right to have his or her charges 

dropped and to relief from the penalties and disabilities of the offense for 

which he or she has been on probation, no matter how completely he or she 

complies with every other condition of his or her probation,” and must instead 

“appeal to the discretion of the trial court and . . . persuade [it] that dismissal 

of the charges and relief from the penalties of the offense is in the interest of 

justice.” (Id. at pp. 1170–1171.) Unlike Dueñas, defendant has not been 

placed on probation, and no issue of his entitlement to expungement exists. 

Nor, assuming he is presently unable to pay the restitution fine, does he 

explain how its imposition has or may result in his being treated differently 

than wealthy defendants “solely and exclusively [because of his] poverty.” 

(Id. at p. 1171.) We therefore conclude defendant is not entitled to a remand 

under Dueñas. 

III. DISPOSITION

The judgment is affirmed. 
28

MARGULIES, ACTING P. J.

WE CONCUR:

BANKE, J.

SANCHEZ, J.

A156255

People v. Marshall