Filed 9/23/20 P. v. Galvan CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN GALVAN,

Defendant and Appellant.

 D075262

 (Super. Ct. No. SCD275534)

APPEAL from a judgment of the Superior Court of San Diego County, 

Michael S. Groch, Judge. Affirmed in part, modified in part with directions.

Susan K. Shaler, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha 

Cortina and Christine Levingston Bergman, Deputy Attorneys General, for 

Plaintiff and Respondent.
2

I

INTRODUCTION

Juan Galvan, while under the influence of methamphetamine and 

marijuana, drove over a curb, struck a wall, and drove 50 feet down a 

sidewalk before hitting two pedestrians. One pedestrian died at the scene. 

The other suffered severe head injuries and sustained a brain injury.

A jury found Galvan guilty of: gross vehicular manslaughter of victim 

S.A. while intoxicated (Pen. Code, § 191.5, subd. (a); count 1); driving under 

the influence of drugs causing injury to victim C.S. (Veh. Code, § 23153, 

subd. (f); count 2); and hit and run with death or permanent serious injury 

(Veh. Code, § 20001, subd. (b)(2), count 3). For count 1, the jury found true 

allegations that Galvan: (1) personally inflicted great bodily injury on S.A. 

and C.S. (Pen. Code, § 1192.7, subd. (c)(8) [serious felony]); (2) fled the scene 

after committing the crime (Veh. Code, § 20001, subd. (c)); and 

(3) proximately caused bodily injury or death to more than one victim (Veh. 

Code, § 23558). For count 2, the jury found true allegations that Galvan: 

(1) personally inflicted great bodily injury on S.A. (Pen. Code, § 12022.7, 

subd. (a)); (2) personally inflicted great bodily injury causing C.S. to become 

comatose due to brain injury (Pen. Code, § 12022.7, subd. (b); and 

(3) proximately caused bodily injury or death to more than one victim (Veh. 

Code, § 23558). Galvan admitted he had a prison prior (Pen. Code, § 667.5, 

subd. (b)), a serious felony prior (Pen. Code, § 667, subd. (a)), and a strike 

prior (Pen. Code, §§ 667, subd. (b), 1170.12). The court sentenced Galvan to a 

total term of 25 years in state prison. 

Galvan contends his convictions for counts 1 and 2 should be reversed 

because his constitutional rights were violated by late discovery produced by 

the prosecutor during trial and because the court declined to give the jury 
3

instructions regarding the defense of accident and proximate cause. He 

contends his conviction for count 2 should be vacated because the double 

jeopardy clause and Penal Code sections 654 and 1023 preclude multiple 

convictions and punishments for the same act. Galvan also contends the true 

finding of great bodily injury to S.A. in connection with count 2 must be 

stricken pursuant to Penal Code section 12022.7, subdivision (g). Finally, 

Galvan contends his constitutional rights were violated by the imposition of 

fines, fees, and assessments without finding Galvan had an ability to pay.

With respect to his double jeopardy argument as to count 2, Galvan 

acknowledges we are bound by People v. McFarland (1989) 47 Cal.3d 798, 

803–804, which held a defendant driving under the influence may be 

convicted and punished separately for killing one victim and injuring another 

in the same incident. We conclude Galvan forfeited his claim regarding the 

fines and fees and we further conclude there were no prejudicial errors with 

respect to Galvan’s other contentions. However, on our own motion, we strike 

the stayed one-year sentence enhancement for Galvan’s prior prison 

commitment because his prior conviction no longer qualifies for enhancement 

under amended Penal Code section 667.5, subdivision (b). In all other 

respects, we affirm the judgment.

II

BACKGROUND

A

On the evening of February 3, 2018, victims S.A. and C.S. left their 

home for an evening walk around 5 p.m. A little later, their roommate heard 

a bang near the side of the house. When the roommate went outside, he saw 

S.A. pinned under a truck on the sidewalk just a few feet from their home. 

C.S. was bleeding and shaking on the ground. 
4

S.A. died at the scene. Among other injuries, C.S. suffered a traumatic 

brain injury and was in a coma for a period of time. C.S. was hospitalized for 

nearly two months. She showed some improvement after discharge, but was 

still non-verbal at the time of trial.

B

Witness B.G. drove along a public road behind a black truck on the 

evening of February 3, 2018. B.G. did not notice anything unusual about how 

the truck was driving. 

Suddenly, the truck made an unindicated left turn onto another street. 

However, a couple of feet into the turn, the truck suddenly turned back 

toward the main road. The truck hit the curb, jumped onto the sidewalk, 

slammed into a wall, and eventually slammed into a pole on the block wall. 

B.G. stopped his vehicle and got out to see if the person in the black 

truck was okay. B.G. asked Galvan, who was alone in the truck, if he was 

okay. 

After Galvan said he was okay, B.G. looked down and saw a man 

pinned underneath the truck. As B.G. walked around the front of the truck 

to try to push it back, he saw a female lying face down close to the wall. She 

was breathing heavily. When B.G. told Galvan to move his truck, Galvan 

panicked. He jumped twice in the air and said he could not believe it. 

Another man who arrived on the scene helped B.G. try to push the truck as 

Galvan got into the truck and tried to put it in gear. Galvan also tried 

pushing from the driver’s side. They could not move the truck because the 

front tire was broken. 

Witnesses saw Galvan pacing around the truck cursing and talking to 

himself. He got into the truck, got out again, and walked to and from the bed 

of the truck several times, moving items back and forth between the bed and 
5

the cab of the truck. His movements were erratic. He appeared panicked 

and upset. Several witnesses called 911. 

C

The first responding officer observed a male walking eastbound on the 

roadway toward the police vehicle. As the officer exited his vehicle, the man 

said there was a crash and a couple of people were pinned underneath the 

truck. The person did not say he was the driver nor did the person provide a 

name or license number. The person appeared nervous. 

Within a few minutes of the arrival of police and paramedics, one of the 

witnesses noticed the driver was gone. The witness saw Galvan walking up 

the street. The witness told the responding officer the driver was leaving. 

The officer radioed another patrol unit and told them to detain Galvan

because the officer suspected he might be involved in the collision and was 

attempting to leave the scene. The witness followed Galvan and saw him 

turn up another street where Galvan started jogging. The witness pointed 

out Galvan to another group of officers who detained Galvan. Witnesses 

identified Galvan as the driver of the truck. 

D

When officers contacted Galvan, he appeared animated. He could not 

control his hand movements and his speech was rambling. He was not able 

to answer simple questions. It appeared he was under the influence of a 

controlled substance. 

Galvan initially denied being the driver and named another individual 

as the driver. He also denied using drugs within the past 48 hours. He said 

he last used marijuana a week prior and he had not used methamphetamine 

in three weeks. 
6

During a field sobriety test, he had some difficulty following 

instructions and there were signs of impairment. Galvan appeared wideeyed. His eyes were bloodshot and glazed and his pupils were dilated. He 

also swayed. The officer believed there was enough evidence of impairment 

to place Galvan under arrest. He suspected Galvan was under the influence 

of methamphetamine. The officer did not believe Galvan was safe to drive a 

vehicle. 

After conducting a further drug recognition evaluation at the police 

station, the officer formed the opinion that Galvan was under the influence of 

both a central nervous system stimulant and a central nervous system 

depressant. A rapid oral test was positive for methamphetamine. 

During the evaluation at the station, Galvan eventually admitted he 

drove the truck and that he was alone when he was driving. He then said he 

did not remember anything but a flash. He thought he was hit from behind. 

He also claimed someone was trying to kill him the day before. 

Galvan admitted he left the scene. He said he was going to see if he 

could warn the family of the victims. When the officer advised Galvan that 

someone died in the collision, Galvan became distraught. He said he would 

not have let the police catch him if he had known someone had died. 

E

Blood drawn from Galvan more than four hours after the collision 

tested positive for methamphetamine at 141 nanograms per millimeter and 

amphetamine at 15 nanograms per millimeter. He also tested positive for 

cannabinoids. 

The toxicologist testified methamphetamine is a central nervous 

system stimulant. It can speed up thought processes, alter perceptions of 

time, and cause an individual to be easily distracted. Physically, it can cause 
7

a person to appear hyperactive or fidgety and to have wide eyes, rigid muscle 

tone, sweating, and elevated pulse rate. It can cause pupils to be more 

dilated. The half-life for methamphetamine, meaning the period of time it 

takes a drug to reduce to half in the blood, is 12 hours on average. 

Methamphetamine can affect the ability to safely operate a motor 

vehicle. It can impair the ability to multitask and divide attention. It can 

alter perceptions of time and speed and can affect physical coordination. It 

can interfere with the ability to make a decision and act on that decision in 

an appropriate amount of time. Common driving patterns with 

methamphetamine can include inattentive driving, speeding, erratic driving, 

and inability to maintain a lane of travel.

Marijuana can have both depressant and stimulant effects. Many of 

the effects of marijuana on mental abilities are like the effects of 

methamphetamine, such as divided attention skills, perception of time, 

coordination, and response and reaction time. It can also affect short-term 

memory and depth perception. Driving patterns of individuals under the 

influence of marijuana are often described as serpentine because the 

individual can weave and drift out of the lane of travel. When an individual 

has multiple drugs in his or her system, he or she may show a combination of 

responses or more effect of one drug over the other. 

Based on the results of Galvan’s blood work and a hypothetical 

mirroring Galvan’s driving pattern and his field sobriety test results, the 

toxicologist believed Galvan was driving under the influence of both 

methamphetamine and marijuana. 

F

Investigating officers observed no tire marks in the roadway to indicate 

braking. The officer investigating and documenting the scene observed a tire 
8

mark on the curb, a mark where a tire rolled through the grass, a tire mark 

on the sidewalk, and the impact of the vehicle with the wall. Pieces of rubber 

were on the ground near where the vehicle impacted the wall. The officer 

testified the tire exploded from contact with the wall. A wider and uneven 

tire mark was left on the sidewalk from where the tire deflated to the point of 

rest of the vehicle. No evidence was found in the roadway. 

Officers determined the cause of the accident was unsafe movement to 

the left in violation of Vehicle Code section 22107 because Galvan did not 

maintain the curvature of the roadway. The vehicle traveled 60 to 70 feet 

from the point of impact on the curb to the point of rest. It traveled about 50 

feet from the time it hit the curb until it hit the pedestrians. 

B.G.’s vehicle did not hit Galvan’s truck. B.G.’s vehicle did not have 

any damage suggesting he had been in a collision. Galvan’s vehicle had rearend damage from an earlier collision. 

A mechanical inspection of Galvan’s vehicle showed damage on the left 

side of the vehicle. The left front tire was deflated and the wheel rim was 

fractured so the tire became completely dislodged from the rim. This 

indicated the tire hit the curb with enough energy to fracture the alloy rim. 

The inspection revealed no mechanical failures that could have caused 

or contributed to the collision. A brake component was installed upside 

down, but the brakes still worked properly. It could decrease braking ability 

by less than 10 percent. It would not prevent the driver from coming to a 

complete stop and might only reduce stopping time by fractions of a second. 

There were five inches of free play in the steering wheel, which is beyond the 

federal limit. However, this free play would not result in a catastrophic 

steering failure or affect the driver’s ability to steer the vehicle. 
9

G

Galvan testified in his own defense. He started using marijuana before 

kindergarten and started using methamphetamine at age 12. He injected 

methamphetamine and heroin between the ages of 15 and 21. He stopped 

using drugs for two years, got a job as a construction laborer, got married, 

and had a child. However, he relapsed in December 2017. After he relapsed, 

drug use made him happy and relieved his depression and anxiety. 

The day before the incident, Galvan’s truck ran out of gas on a freeway 

and he was rear-ended by another vehicle. After getting gas, Galvan drove to 

visit his wife, but she did not want anything to do with him. He went to a 

motel with his brother and the brother’s girlfriend where they smoked 

methamphetamine and marijuana. 

Galvan denied using drugs on the day of the incident. After emptying a 

storage unit, he was going to a family member’s house for a child’s birthday 

celebration. He decided to stop and walk around the neighborhood because 

he wanted to delay his arrival at the party. 

As he drove up the main road, he felt fine and the truck was working 

properly without any steering or tire issues. He made a left turn, but before 

completing the turn, he heard a loud pop. He said he was scared and decided 

to turn back onto the main road. He said he lost control of the vehicle and 

slammed into a wall. 

Galvan said he was shaken awake by a man who said he had been in 

an accident. He heard someone say they needed to push the truck back 

because someone was hurt. Another person said they heard shots.

Galvan saw a man trying to push the truck backward. The man told 

him to put the truck in reverse. Galvan tried to turn the truck on, but could 

not do so. Galvan said he put the truck in neutral as others came to the hood 
10

of the truck to push it. When he got out, he saw two bodies on the ground 

and a pool of blood. 

The truck did not move at all and Galvan saw that the tire was 

deflated. He got a wrecking bar from the back of the truck and used it to try 

to lift the truck. 

When the paramedics arrived, Galvan and the other witnesses backed 

up. Galvan walked away from the scene. He told a police officer there were 

two people injured underneath the truck, but he did not say he was involved 

in the incident. 

Galvan said he heard the couple lived nearby. Galvan said he thought 

he should warn the people’s family. Galvan said he was scared and confused. 

When police officers contacted him and placed him in handcuffs, he told 

them another individual had been driving. Galvan lied about driving because 

he was scared. He said he told the officers a variety of things, including that 

someone was trying to kill him, he was shot at, and that he was rear ended. 

However, he said all he could remember was a white flash. 

Galvan did not hit the brakes before the car went up on the curb. He 

never saw the pedestrians and did not remember hitting them. 

Galvan denied methamphetamine use affected his brain, saying it only 

affected his mood. He said he feels happy when he takes methamphetamine 

and marijuana together. Galvan knew he had drugs in his system, which is 

why he declined a presumptive test in the field. 

The defense called a witness who heard a loud crash and two big loud 

pops. The witness called 911 and reported she thought she heard gunshots. 

The witness later saw that a concrete gate around the house had crashed to 

the ground. 
11

III

DISCUSSION

A

Discovery

Galvan contends his state and federal constitutional rights to a fair 

trial, confrontation, and effective assistance of counsel were violated when 

the prosecutor provided late discovery regarding two issues: (1) the opinion 

of the officer who gathered and documented evidence at the scene of the 

collision regarding his interpretation of the evidence; and (2) the opinion of 

the prosecution toxicologist regarding the significance of the levels of 

methamphetamine and marijuana in determining how recently Galvan used 

the drugs. Galvan contends the late discovery prevented defense counsel 

from investigating the case, thoroughly advising Galvan, effectively crossexamining witnesses, and presenting a defense. Before we analyze the 

contentions, we begin with an overview of the general legal principles 

regarding discovery followed by the pertinent procedural background.

1

General Legal Principles

Due process under the United States Constitution requires disclosure 

of exculpatory or impeaching evidence to a criminal defendant. (Brady v. 

Maryland (1963) 373 U.S. 83, 87 [373 U.S. 83, 87, 83 S.Ct. 1194, 1197, 10 

L.Ed.2d 215]; People v. Salazar (2005) 35 Cal.4th 1031, 1042–1043 (Salazar).) 

Penal Code sections 1054 through 1054.10 govern discovery in California 

criminal cases. These provisions are “the only means by which the defendant 

may compel the disclosure or production of information from prosecuting 

attorneys ....” (Pen. Code, § 1054.5, subd. (a); People v. Tillis (1998) 18 

Cal.4th 284, 294.)
12

In relevant part, Penal Code section 1054.1 requires a prosecutor to 

disclose the “names and addresses of persons the prosecutor intends to call as 

witnesses at trial” and “[r]elevant written or recorded statements of 

witnesses or reports of the statements of witnesses whom the prosecutor 

intends to call at the trial, including any reports or statements of experts 

made in conjunction with the case, including the results of physical or mental 

examinations, scientific tests, experiments, or comparisons which the 

prosecutor intends to offer in evidence at the trial.” (Pen. Code, § 1054.1, 

subds. (a), (f).) Penal Code section 1054.7 provides that disclosures should be 

made at least 30 days prior to trial or, if the material or information becomes 

known within 30 days of trial, “disclosure shall be made immediately.” 

Before seeking enforcement of the statutory discovery provisions, a 

defendant must first make an informal request for the desired information 

and materials. If the information is not produced within 15 days thereafter, 

a court may make necessary orders to enforce the statutes, “including, but 

not limited to, immediate disclosure, contempt proceedings, delaying or 

prohibiting the testimony of a witness or the presentation of real evidence, 

continuance of the matter, or any other lawful order.” (Pen. Code, § 1054.5, 

subd. (b).) “[C]ourts have broad discretion in determining the appropriate 

sanction for discovery abuse, and recognize that sanctions ranging from 

dismissal to the giving of special jury instructions may be required in order to 

ensure that the defendant receives a fair trial ....” (People v. Jenkins (2000) 

22 Cal.4th 900, 951.) Courts should consider other remedies before imposing 

a preclusion sanction. (People v. Edwards (1993) 17 Cal.App.4th 1248, 1264–

1265.)

We generally review the court’s ruling regarding discovery matters for 

abuse of discretion. (People v. Ayala (2000) 23 Cal.4th 225, 299.) “The proper 
13

exercise of a trial court’s discretion under section 1054.7 does not violate a 

criminal defendant’s confrontation or due process rights.” (People v. 

Thompson (2016) 1 Cal.5th 1043, 1105.) “Conclusions of law or of mixed 

questions of law and fact ... are subject to independent review.” (Salazar, 

supra, 35 Cal.4th at p. 1042.) 

2

Procedural Background

a

To consider the context of Galvan’s claims of discovery violations, it is 

necessary for us to review how the evidence developed from the beginning of 

the case.

Before the preliminary hearing, defense counsel sought and obtained a 

continuance for two months to get additional information. As of April 2018, 

counsel had obtained the mechanical report and was doing a follow-up 

investigation. Counsel also wanted additional information about the 

surviving victim’s medical condition. The court denied a further continuance 

stating counsel had sufficient information for the preliminary hearing. 

On the day set for the preliminary hearing in April 2018, defense 

counsel again sought a continuance to further investigate and subpoena the 

toxicologist regarding the drug levels and the drug interactions. Defense 

counsel stated the levels in the toxicology report were not particularly high 

and there was a possible interaction between two drugs. She wanted to 

explore the issue with an expert. The court denied the request to continue 

the preliminary hearing. 

The prosecutor presented evidence at the preliminary hearing of the 

toxicology results including the fact that the toxicologist believed marijuana 

and methamphetamine were used “recently.” The prosecutor presented 
14

evidence of the toxicology report and the toxicologist’s opinion through a law 

enforcement officer pursuant to Proposition 115. The toxicologist believed 

Galvan was driving under the influence of methamphetamine and marijuana 

based on the toxicology results and the results of the field sobriety tests. The 

officer who relayed the toxicologist’s opinions stated they were based on her 

training, her reading of literature on the effects of methamphetamine and 

marijuana on the body, as well as workshops, presentations and personal 

observations. 

In June 2018, defense counsel sought and obtained a trial continuance 

to retain and consult with experts. The prosecutor had provided a list of 

questions and answers recorded by the officer who spoke with the toxicologist 

to admit her statements at the preliminary hearing. Defense counsel 

retained a toxicologist to review the toxicology report and intended to 

challenge the prosecution’s conclusions. Defense counsel also knew the law 

enforcement officer who investigated the scene held the opinion that the tire 

exploded as a result of the collision. Defense counsel contested this opinion 

and retained an accident reconstructionist and master mechanic to examine 

the photos, reports, and evidence to analyze the officer’s conclusion. Defense 

counsel had two mechanical experts explore the possibility mechanical failure 

caused the accident as opposed to grossly negligent driving. 

b

When trial proceeded in late November 2018, defense counsel moved in 

limine to exclude statements not previously disclosed under Penal Code 

section 1054.1. Defense counsel requested a hearing under Evidence Code 

section 402 (402 hearing) regarding the foundation for testimony from the 

officer who took measurements and documented the scene of the collision and 

the toxicologist. Defense counsel also sought to exclude the testimony of the 
15

officer and the toxicologist as lacking foundation for admissible expert 

testimony. 

Defense counsel challenged a diagram prepared by the officer based on 

his measurements and documentation of the evidence of the crash scene. 

Defense counsel also stated it appeared he was merely an officer 

investigating the scene and she did not have a statement of what he would 

offer as an expert. The prosecutor said she would call the officer to testify 

about the evidence he documented at the scene, including where the debris 

was found “and the significance of its placement.” He would not be asked to 

reconstruct the accident. The court sustained the defense objection to the 

officer’s diagram regarding the path of travel of Galvan’s vehicle. 

In response to a request for curriculum vitaes (CVs) for prosecution 

experts, the prosecutor included a CV for the officer. The prosecutor stated 

she would ask the officer his opinion based on the measurements and 

observations he made in the field, such as where the tire blew up based on 

the location of a piece of tire on the sidewalk next to where the truck hit the 

wall. 

The court stated it would allow a 402 hearing to establish foundation 

for the toxicologist’s opinion regarding “recency” of use of methamphetamine 

and marijuana because the toxicologist’s opinions were offered at the 

preliminary hearing by a police officer pursuant to Proposition 115. Defense 

counsel said she also wanted to question the toxicologist regarding the 

interaction of the drugs. The prosecutor explained she had provided defense 

counsel a statement before the preliminary hearing stating the toxicologist 

was not excluding one drug or the other as both were present and active at 

the time of the incident. The prosecutor also said defense counsel could call 

the toxicologist if she wanted to clarify the testimony. The court confirmed it 
16

would allow a 402 hearing regarding recency of use. The court was familiar 

with the toxicologist’s qualifications, but stated it would allow defense 

counsel to voir dire her on that issue during trial to make a record. 

The next morning, the prosecutor stated she spoke to the toxicologist 

the night before to ask for clarification of the toxicologist’s opinion regarding 

recent use. The prosecutor provided the toxicologist’s explanation to defense 

counsel. 

That same morning, defense counsel further argued the officer’s 

testimony about his observations did not require expertise. She requested a 

witness statement if he intended to testify about inferences to be drawn from 

the measurements and observations. The court noted the officer had 

provided a statement by way of his diagram and report. The court also stated 

there was still time for defense counsel to interview him if she wanted 

additional details. The court stated it would also allow defense counsel to 

voir dire the officer on his expertise if she wished. The court also commented 

that if the prosecutor asked for an expert opinion, she must lay a proper

foundation and the court would listen for an objection. 

In further discussions that day regarding a statement by the defendant 

that he had last used methamphetamine three weeks before the incident, 

defense counsel said she did not understand what the toxicologist was going 

to testify to regarding the methamphetamine found in Galvan’s system and 

the timeframe for use. The prosecutor explained she had clarified with the 

toxicologist and verbally advised defense counsel the toxicologist said, “ ‘in 

the most extreme scenario, assuming that the overdose level of 

methamphetamine was taken, the latest back that would go would be 48 

hours, which is not three weeks.’ ”
17

The following morning, defense counsel complained that the prosecutor 

had sent an email at 7:30 the prior evening with witness statements. She 

complained these were after the 30-day disclosure deadline. The prosecutor 

said the officer would offer an opinion that the tire blew out after the car hit 

the curb based on the location of the debris. The prosecutor also provided a 

statement from the toxicologist regarding recent use.1 

Defense counsel argued she was at a disadvantage to being able to 

effectively cross-examine the officer and the toxicologist. Defense counsel 

asked for a trial continuance to consult with experts.

The prosecutor stated the email merely summarized the discussion 

they had with the court the previous day. The statement regarding the 

toxicologist was in response to defense counsel’s request to clarify recent use 

and was provided to save time with a 402 hearing. 

As to the officer’s statement, the email said, “the tire fragments 

location suggest that it impacted when it hit the wall because there wasn’t 

1 Defense counsel also complained the email contained a statement that 

the officer believed the damage to the back of Galvan’s truck could not have 

been caused by a rear-end collision by witness B.G. based on the profile of the 

vehicles. The prosecutor stated she did ask the officer about the back bumper 

to respond to Galvan’s comment that he thought a truck hit him. The 

prosecutor had other evidence that Galvan was rear-ended the day before by 

a different vehicle. The prosecutor pointed out that the issue of how the 

collision occurred was always an issue and the investigating officer should be 

allowed to testify as to his observations based on his experience. The court 

agreed the issue of how damage was caused to the back of Galvan’s vehicle 

had been apparent since the beginning of the case, noting police officers 

photographed Galvan’s back bumper days after the incident. Ultimately, the 

officer did not offer such an opinion at trial. Other evidence was presented 

regarding Galvan’s prior collision and the fact B.G.’s vehicle had no front-end 

damage. 
18

any tire in the road.” The prosecutor said this was the officer’s impression 

based on his observations rather than new expert testimony. 

After a break in the discussion, defense counsel asked for a mistrial or 

to continue the trial based on the email statements. The court denied the 

motion for mistrial concluding there was no misconduct and no prejudicial 

action by the prosecution. The court did not find there were any discovery 

violations, with the exception of the prosecution’s failure to provide a witness 

list 30 days before trial. However, the court found no prejudice from that 

delay. The court stated the nature of trials is that both sides continue to 

speak to their witnesses until they testify and the prosecution was not 

precluded from exploring the case or continuing to investigate. The statutory 

obligation requires the prosecution to provide new information to the defense 

immediately, which was done. The court noted the issue with the toxicologist 

was evident since the preliminary hearing and anyone could have contacted 

her earlier for clarification. The court denied a request for trial continuance 

noting a three-day weekend was approaching.

Before the toxicologist testified, the court conducted a 402 hearing 

regarding the foundation for her opinion about recent use. The toxicologist 

said recent use is typically defined as within 48 hours. Based on the amount 

of methamphetamine and amphetamine in Galvan’s blood sample, the 

toxicologist estimated the use would have been within 48 hours, at most. The 

level of active compounds for marijuana also strongly indicated use within 

hours of the blood draw (as opposed to days or weeks). 

After the hearing, defense counsel asked for an opportunity to review 

the literature the toxicologist relied upon to develop cross-examination. The 

court again stated the issue of recent use had been apparent since the 

preliminary hearing. The court noted counsel had a long weekend to do 
19

additional research. The court said it would allow defense counsel to recall 

the toxicologist if the research suggested an area for cross-examination that 

was not yet apparent. 

3

Analysis

Based on our review of the entire record, we conclude the court did not 

abuse its discretion in denying the motion for mistrial or in admitting the 

testimony of the toxicologist and the investigating officer. Neither the 

witnesses nor the statements provided by the prosecutor were a surprise to 

the defense.

As the trial court determined, the toxicologist’s opinion about recent 

use based on the levels of methamphetamine and marijuana found in 

Galvan’s blood hours after the incident was an issue before the preliminary 

hearing. Defense counsel had the toxicology report with the toxicologist’s 

contact information. “ ‘Although the prosecution may not withhold favorable 

and material evidence from the defense, neither does it have the duty to 

conduct the defendant’s investigation for him. [Citation.] If the material 

evidence is in a defendant’s possession or is available to a defendant through 

the exercise of due diligence, then ... the defendant has all that is necessary to 

ensure a fair trial ....’ ” (People v. Zambrano (2007) 41 Cal.4th 1082, 1134.) 

Indeed, defense counsel consulted with a toxicology expert. 

Defense counsel extensively cross-examined the toxicologist during 

trial. She inquired about the toxicologist’s training and qualifications 

pointing out the toxicologist was not a pharmacologist, a medical doctor, or a 

neurologist. Defense counsel cross-examined the toxicologist based on 

literature describing the use of amphetamines by pilots in World War II and 

some literature describing medicinal use for methamphetamine. She 
20

questioned the toxicologist regarding the medicinal use of a synthetic form of 

cannabis and suggested users could build a tolerance that would not impair 

driving. She pointed out the testing did not establish when Galvan used 

marijuana and methamphetamine, how much he used, his tolerance, or his 

level of impairment. Defense counsel pointed out there is not an established 

half-life for marijuana and questioned the toxicologist’s conclusions regarding 

the window of use within 48 hours based on the half-life for 

methamphetamine. 

Similarly, the issue of the investigating officer’s testimony about when 

or how the tire blew was not new. As early as June 2018, defense counsel 

knew the law enforcement officer who investigated the scene held the opinion 

that the tire popped as a result of the collision and defense counsel had 

retained two experts to analyze this opinion. At that time, defense counsel 

had witness statements, photos and the collision report, which included a 

diagram of where evidence was found and showed no evidence collected in the 

street. Defense counsel retained experts prior to trial to evaluate this 

evidence as well as a possible defense based on mechanical failure. Although 

these experts did not testify, defense counsel cross-examined the 

investigating officer regarding his investigation and opinion. Defense counsel 

pointed out the officer did not document some items of debris in the roadway, 

which he did not believe were connected to the incident, and he did not 

thoroughly examine the tires. 

Galvan has established no prejudicial misconduct on the part of the 

prosecutor in providing an email summary during trial clarifying the 

anticipated testimony of these two witnesses. There was no prejudicial 

discovery violation and no violation of his rights to due process, confrontation, 

or effective assistance of counsel.
21

B

Jury Instructions

Galvan contends his constitutional rights were violated and counts 1 

and 2 should be reversed because the court declined to instruct the jury 

regarding accident as a defense and declined to provide an instruction 

regarding proximate cause. We consider each instruction after setting forth 

general legal principles and a summary of the instructions given.

1

General Principles

Generally, “a trial court must give a requested jury instruction if there 

is substantial evidence in the record supporting such an instruction. 

[Citation.] ‘In determining whether the evidence is sufficient to warrant a

jury instruction, the trial court does not determine the credibility of the 

defense evidence, but only whether ‘there was evidence which, if believed by 

the jury, was sufficient to raise a reasonable doubt.” ’ [Citation.] ‘On appeal, 

we likewise ask only whether the requested instruction was supported by 

substantial evidence—evidence that, if believed by a rational jury, would 

have raised a reasonable doubt as to’ an element of the crime in question.” 

(People v. Mitchell (2019) 7 Cal.5th 561, 583 (Mitchell).)

We independently review claims of instructional error, including the 

legal adequacy of jury instructions. (Mitchell, supra, 7 Cal.5th at p. 579, 

citing People v. Cole (2004) 33 Cal.4th 1158, 1210.) “The proper test for 

judging the adequacy of instructions is to decide whether the trial court ‘fully 

and fairly instructed on the applicable law ....’ [Citation.] ‘ “In determining 

whether error has been committed in giving or not giving jury instructions, 

we must consider the instructions as a whole ... [and] assume that the jurors 

are intelligent persons and capable of understanding and correlating all jury 
22

instructions which are given. [Citation.]” ’ [Citation.] ‘Instructions should be 

interpreted, if possible, so as to support the judgment rather than defeat it if

they are reasonably susceptible to such interpretation.’ ” (People v. Martin

(2000) 78 Cal.App.4th 1107, 1111–1112.)

2

Instructions Given

a

For count 1, gross vehicular manslaughter while intoxicated, the court 

instructed the jury with CALCRIM No. 590, which advised the jury the 

People were required to prove: “1. The defendant drove under the influence 

of a drug; [¶] 2. While driving that vehicle under the influence of a drug, the 

defendant also committed an infraction; [¶] 3. The defendant committed the 

infraction with gross negligence; [¶] AND [¶] 4. The defendant’s grossly 

negligent conduct caused the death of another person.” The instruction 

defined gross negligence as “more than ordinary carelessness, inattention or 

mistake in judgment” and advised the jury a person “acts with gross 

negligence when he or she acts in a reckless way that creates a high risk of 

death or great bodily injury; and a reasonable person would have known that 

acting in that way would create such a risk.” It advised the jury that gross 

negligence “is so different from the way an ordinarily careful person would 

act in the same situation that his or her act amounts to disregard for human 

life or indifference to the consequences of that act.” It further stated that the 

combination of driving a vehicle under the influence of a drug and violating a 

traffic law was not enough to establish gross negligence. 

At the request of the defense, the court gave the bracketed portion of 

CALCRIM No. 590 for a person facing imminent peril, which stated, “A 

person facing a sudden and unexpected emergency situation not caused by 
23

that person’s own negligence is required only to use the same care and 

judgment that an ordinarily careful person would use in the same situation, 

even if it appears later that a different course of action would have been 

safer.” The court stated it did not believe this was a proximate cause case. 

Defense counsel agreed the bracketed portions of CALCRIM No. 590 

regarding natural and probable consequences and multiple causes were not 

applicable. 

b

For count 2, causing injury to another person while driving under the 

influence of a drug, the court instructed the jury with CALCRIM No. 2100, 

which required the prosecution to prove: “1. The defendant drove a vehicle; 

[¶] 2. When he drove a vehicle, the defendant was under the influence of a 

drug; [¶] 3. While driving a vehicle under the influence, the defendant also 

committed an illegal act or neglected to perform a legal duty; [¶] AND [¶] 

4. The defendant’s illegal act or failure to perform a legal duty caused bodily 

injury to another person.” This instruction further explained a person is 

under the influence “if, as a result of taking a drug his or her mental or 

physical abilities are so impaired that he or she is no longer able to drive a 

vehicle with the caution of a sober person, using ordinary care, under similar 

circumstances.” It defined ordinary care as “using reasonable care to prevent 

reasonably foreseeable harm to someone else. A person fails to exercise 

ordinary care if he or she does something that a reasonably careful person 

would not do in the same situation or fails to do something that a reasonably 

careful person would do in the same situation.”

c

After the court instructed the jury and excused the jury for a break 

before closing arguments, defense counsel asked the court to instruct with 
24

CALCRIM No. 3404 regarding the accident defense. The court and counsel 

reviewed the use notes for CALCRIM No. 3404 along with secondary 

authority cited therein and the case of People v. Boulware (1940) 41

Cal.App.2d 268, 269–270 (Boulware), which involved a drunk driver who 

swerved to avoid an oncoming truck. 

Defense counsel argued Galvan heard a loud noise and reacted to it, 

like a driver who swerves to avoid a car. Counsel also asked the court to give 

the bracketed portion of CALCRIM No. 590 regarding natural and probable 

consequence based on the Boulware case. Defense counsel argued they did 

not know the cause of the sound and there was evidence of free play in the 

wheel going to the issue of causation. 

The court declined to give the accident instruction stating the jury had 

been “well instructed on the mental state that has to be found and the 

different degrees of negligence.” The court also declined to give a proximate 

cause instruction noting it was a factor already given. The court again said it 

did not see a proximate cause issue. The court did not believe a reasonable 

jury following the law could conclude the loud noise was the proximate cause 

of the victims’ injuries.

3

Accident

Penal Code section 26 states the statutory defense of accident: “All 

persons are capable of committing crimes except those belonging to the 

following classes: [¶] ... [¶] Five—Persons who committed the act or made 

the omission charged through misfortune or by accident, when it appears that 

there was no evil design, intention, or culpable negligence.”

The Supreme Court has stated “statutory provisions codifying ‘a 

defense for an actor who commits the act or omission constituting an offense 
25

“through misfortune or by accident, when it appears that there was no evil 

design, intention, or culpable negligence.” ... [¶] ... have historical 

significance, [but] are now unnecessary restatements, in a defense format, of 

the requirements of the definitional elements of an offense. To say that it is a 

defense that the criminal conduct or omission was committed by a nonnegligent accident, is simply to say that all result element offenses [i.e., 

offenses that require an intent to produce a particular result] require at least 

proof of negligence as to causing the prohibited result. This is already made 

clear by the culpability requirements of specific offense definitions ....’

[Citation.] A trial court’s responsibility to instruct on accident therefore 

generally extends no further than the obligation to provide, upon request, a 

pinpoint instruction relating the evidence to the mental element required for 

the charged crime.” (People v. Anderson (2011) 51 Cal.4th 989, 997.)

CALCRIM No. 3404 describes the defense of accident for crimes 

involving criminal negligence as follows: “The defendant is not guilty of [the 

charged crime] if (he/she) acted or failed to act accidentally without criminal 

negligence. You may not find the defendant guilty of [the charged crime] 

unless you are convinced beyond a reasonable doubt that (he/she) acted with 

criminal negligence.”

The use notes for CALCRIM No. 3404 refer to 1 Witkin & Epstein, 

California Criminal Law (4th ed. 2020), Defenses section 273, which explains 

the principal application of the accident defense is in the law of homicide. 

However, in citing examples of a few other situations where accident defense 

applied, the use note includes the Boulware case relied upon by Galvan. The 

court in Boulware held an instruction regarding imminent peril should have 

been given when a drunk driver testified he swerved to avoid an approaching 
26

car and collided with another vehicle. (Boulware, supra, 41 Cal.App.2d at 

pp. 269–270.)

The use notes for the vehicular manslaughter instructions, CALCRIM 

Nos. 590 through 592, also cite the Boulware case and advise, “If there is 

sufficient evidence and the defendant requests it, the court should instruct on 

the imminent peril/sudden emergency doctrine.” The use notes direct the 

court to give the following bracketed language: “A person facing a sudden 

and unexpected emergency situation not caused by that person’s own 

negligence is required only to use the same care and judgment that an 

ordinarily careful person would use in the same situation, even if it appears 

later that a different course of action would have been safer.” (Use Notes to 

CALCRIM Nos. 590–592.) This language tracks the language approved by 

the court in Boulware, supra, 41 Cal.App.2d at pages 269–270.2

Thus, although the court declined to give CALCRIM No. 3404 as a 

pinpoint instruction for the accident defense, it instructed the jury with the 

language approved in Boulware for accident in the face of imminent danger 

2 In Boulware, the defendant requested the following instruction: “ ‘A 

person who, without negligence on his part, is suddenly confronted with 

unexpected and imminent danger, either to himself or to others, is not 

expected, nor required, to use the same judgment and prudence that is 

required of him in the exercise of ordinary care, in calmer and more 

deliberate moments. His duty is to exercise only the care that an ordinarily 

prudent person would exercise if confronted with the same 

unexpected danger, under the same circumstances. If at that moment he 

does what appears to him to be the best thing to do, and if his choice and 

manner of action are the same as might have been followed by any ordinarily

prudent person under the same conditions, he does all the law requires of 

him, although, in the light of after-events, it should appear that a different 

course would have been better and safer.’ ” (Boulware, supra, 41 Cal.App.2d 

at pp. 269–270, italics omitted.) The Boulware court stated the proposed 

instruction “correctly stated the law apropos to defendant’s theory of the 

reason for the accident.” (Id. at p. 270.)
27

in the instruction for gross vehicular manslaughter while intoxicated 

(CALCRIM No. 590) and in each of the lesser included offenses to count 1, 

which included vehicular manslaughter while intoxicated with ordinary 

negligence (CALCRIM No. 591), gross vehicular manslaughter (CALCRIM 

No. 592), and misdemeanor vehicular manslaughter (CALCRIM No. 593). 

Additionally, the jury was fully instructed regarding the applicable 

degrees of criminal negligence (from gross negligence to ordinary negligence) 

required for Galvan to be convicted of the charged crimes or the lesser 

included offenses. Defense counsel argued Galvan did not have the criminal 

intent for the charged crimes. Counsel argued he was scared by a loud noise 

and responded by turning the wheel, which had five inches of free play. In 

finding Galvan guilty of gross vehicular manslaughter while intoxicated the 

jury necessarily rejected the defense theory that Galvan acted without 

criminal negligence. 

Therefore, even assuming the court erred in not giving the accident 

instruction on request, the error was not structural and was harmless under 

any standard. (Chapman v. Cal. (1967) 386 U.S. 18, 24; People v. Watson 

(1956) 46 Cal.2d 818, 836.) 

3

Proximate Cause

For count 1, the jury was instructed they must find Galvan’s “grossly 

negligent conduct caused the death of another person.” For count 2, causing 

injury to another person while driving under the influence of a drug, the jury 

was instructed they must find Galvan’s illegal conduct in driving a vehicle 

under the influence “caused bodily injury to another person.” 

The use notes for the vehicular manslaughter instructions state, “[i]f 

causation is at issue, the court has a sua sponte duty to instruct on proximate 
28

cause.” (Use Note to CALCRIM Nos. 590–593, citing People v. Bernhardt

(1963) 222 Cal.App.2d 567, 590–591.) In Bernhardt, two doctors of 

chiropractic medicine were charged with manslaughter when a patient under 

their care died shortly after giving birth to a child. (Id. at pp. 570–571.) 

There was conflicting evidence regarding whether the patient’s death was 

caused by postpartum hemorrhage due to the criminally negligent conduct of 

the defendants or by an embolism for which no act of any defendant was 

responsible. The court concluded it was error to fail to instruct on proximate 

causation in such a situation. (Id. at pp. 590–591.)

Here, in contrast, there was undisputed medical evidence that the 

death of S.A. and the significant injuries to C.S. were caused by the trauma of 

Galvan’s vehicle running over them after he drove over a curb and down the 

sidewalk. There was no evidence either S.A. or C.S. had an unrelated 

medical condition that contributed to their injuries or, in the case of S.A., his 

death. 

There was also no evidence of an unforeseeable intervening or 

contributing cause for their injuries. This was not a situation, for example, 

where Galvan’s conduct set off a chain reaction that ultimately resulted in 

the injuries and death. Although there was some evidence of free play in the 

steering wheel, there was absolutely no evidence this was an unforeseeable 

intervening cause. Galvan testified he had no problems with braking or 

steering the truck. The officer who inspected Galvan’s vehicle testified there 

were no mechanical issues that could have caused a catastrophic failure.

Thus, the issue for the jury was not causation, but whether Galvan 

acted with gross negligence in driving the vehicle while impaired which 

ultimately caused the victims’ injury and death. The evidence established 

that Galvan drove while under the influence of both methamphetamine and 
29

marijuana and, after making an unindicated left turn, he abruptly turned 

back toward the main roadway in such a reckless manner that his vehicle 

jumped a curb, hit a wall, and he drove on the sidewalk for more than 50 feet 

without hitting the brakes before running over S.A. and C.S. and crashing 

into a concrete pillar.

Having rejected the defense arguments that Galvan did not act with 

gross negligence, no reasonable jury could have found that Galvan’s actions

were not a substantial factor in causing S.A.’s death and C.S.’s injuries. 

(People v. Burnett (2003) 110 Cal.App.4th 868, 879, citing People v. Bland 

(2002) 28 Cal.4th 313, 338.) Therefore, even if we were to assume it was 

error not to instruct the jury with language regarding natural and probable 

consequences, such error was harmless under any standard.

C

Convictions for Vehicular Manslaughter and DUI Causing Injury

To preserve the issue for further review, Galvan contends the judgment 

of guilt for count 2 should be vacated based upon the double jeopardy clause 

and Penal Code sections 654 and 1023 because he committed only one 

criminal act by driving while under the influence of drugs, but was convicted 

of two criminal offenses. 

The Supreme Court held in McFarland, supra, 47 Cal.3d 798 that a 

defendant driving under the influence in one incident may be convicted and 

punished separately for vehicular manslaughter with gross negligence as to 

one victim, which is a crime of violence under the Penal Code, and for drunk 

driving causing injury to another victim, which is a violation of the Vehicle 

Code. (Id. at pp. 803–804.) Galvan acknowledges we are bound by this 

precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 

455.) We also conclude count 2 as to victim C.S. is not a lesser included 
30

offense of count 1 because separate victims are involved. (See People v. Reed

(2006) 38 Cal.4th 1224, 1231; McFarland, at p. 804.)

D

Count 2 Great Bodily Injury Enhancement Under Penal Code Section 12022.7

The jury found true an allegation that Galvan personally inflicted great 

bodily injury on S.A. within the meaning of Penal Code section 12022.7, 

subdivision (a) in connection with Galvan’s count 2 conviction for driving 

under the influence of drugs causing injury to C.S. (Veh. Code, § 23153, 

subd. (f)). Although the trial court stayed punishment for this enhancement 

under Penal Code section 654, Galvan contends the true finding of great 

bodily injury as to S.A. should be stricken pursuant to Penal Code 

section 12022.7, subdivision (g) because he was separately convicted of gross 

vehicular manslaughter in count 1 for the death of S.A. We disagree.

Penal Code section 12022.7, subdivision (a) provides, “Any person who 

personally inflicts great bodily injury on any person other than an accomplice 

in the commission of a felony or attempted felony shall be punished by an 

additional and consecutive term of imprisonment in the state prison for three 

years.”

However, Penal Code section 12022.7, subdivision (g) limits the 

application of this enhancement for certain offenses: “This section shall not 

apply to murder or manslaughter or a violation of Section 451 [arson] or 452 

[unlawfully causing a fire]. Subdivisions (a), (b), (c), and (d) shall not apply if 

infliction of great bodily injury is an element of the offense.”

In People v. Cook (2015) 60 Cal.4th 922, the Supreme Court addressed 

the question of whether a defendant convicted of multiple counts of gross 

vehicular manslaughter may be subjected to sentencing enhancements for 

great bodily injury inflicted on deceased victims in other manslaughter 
31

counts or for injuries inflicted on a surviving victim. (Id. at p. 925.) The 

Supreme Court concluded “subdivision (g) of [Penal Code] section 12022.7 

means what it says: Great bodily injury enhancements do not apply to a 

conviction for murder or manslaughter. A defendant convicted of murder or 

manslaughter who also commits crimes against other victims may be 

convicted of those additional crimes and, to the extent the sentencing laws 

permit, punished separately for them. But the sentence for manslaughter 

may not be enhanced for the infliction of great bodily injury as to anyone.”

(Id. at p. 924.) Because the issue was not presented in the case before it, the 

Supreme Court did not reach the question of “whether and, if so, how great 

bodily injury enhancements may attach to other crimes for a defendant who 

is convicted of murder or manslaughter as well as those other crimes.” (Id. at 

p. 938, fn. 3.)

The case of People v. Lamb (2017) 8 Cal.App.5th 137, 139 involved a 

defendant convicted of both involuntary manslaughter and assault by means 

of force likely to produce great bodily injury as to a single victim. The Lamb 

court concluded Penal Code section 12022.7, subdivision (g) prohibits the 

enhancement for charged offenses involving “murder, manslaughter, arson, 

unlawfully causing a fire, or an offense whose elements include the infliction 

of great bodily injury,” but the statute is “silent as to whether it applies to 

other offenses brought within the same criminal proceeding.” (Id. at p. 144.) 

The court concluded the trial court did not err in imposing the great bodily 

injury enhancement for a nonprohibited crime, such as assault, and staying 

punishment for that enhancement pursuant to Penal Code section 654. (Id. 

at pp. 139, 145.)

Likewise, Galvan’s conviction for driving under the influence of drugs 

causing injury to C.S. (Veh. Code, § 23153, subd. (f)) is not an offense for 
32

which Penal Code section 12022.7, subdivision (g) prohibits application of the 

great bodily injury enhancement of Penal Code section 12022.7, 

subdivision (a). The fact S.A. died because of the great bodily injury and 

Galvan was separately convicted for his manslaughter does not change the 

analysis as to the application of the great bodily injury enhancement to count 

2. Therefore, the court did not err in imposing, but staying, the punishment 

for the great bodily injury enhancement for S.A. in connection with Galvan’s 

conviction for count 2. 

E

Fines and Fees

Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, Galvan 

contends the court violated his constitutional rights of due process and 

protection against excessive fines by imposing fines and fees without 

determining he has the ability to pay them. Galvan asks us to vacate the 

fines and fees unless and until the trial court holds an ability to pay hearing. 

The People contend the restitution fine was constitutional and any due 

process violation in imposing the non-punitive fees without a determination 

of Galvan’s ability to pay was harmless beyond a reasonable doubt. We 

conclude Galvan forfeited this claim.

“At the core of the Dueñas opinion is its holding that imposition of 

fines, fees or assessments without a hearing on ability to pay denies due 

process. It was that court’s view it was the trial court’s duty to hold a 

hearing and thus failure to seek a hearing did not result in forfeiture. 

Further, the court found that the burden to prove ‘present’ ability to pay was 

on the prosecution. Other courts, including this court, have disagreed with 

Dueñas on these key principles.” (People v. Keene (2019) 43 Cal.App.5th 861, 

863; see, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, 327, review granted 
33

Nov. 26, 2019, S258946 [rejecting the Dueñas due process analysis for fines 

and fees]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1061 [applying 

excessive fine analysis for restitution fines]; and People v. Kopp (2019)

38 Cal.App.5th 47, 95–96 (Kopp), review granted Nov. 13, 2019, S257844 

[concluding a defendant who requested ability to pay hearing bears burden of 

proof and applying due process analysis to court assessments and excessive 

fines analysis to restitution fines].)

We conclude it is not necessary for us to reach these broader issues in 

this case and it is not prudent for us to do so given that the Supreme Court is 

currently considering the viability of Dueñas as it pertains to a criminal 

defendant’s ability to pay assessed fines and fees.

The jury here returned guilty verdicts in December 2018, and 

sentencing was set for January 11, 2019. Galvan’s probation report 

recommended a maximum restitution fine of $10,000 (Pen. Code, § 1202.4) 

and various assessed fees totaling an additional $364.3 

After the judge indicated he planned to “impose fines and fees outlined 

by Probation”, defense counsel asked the court to “consider reducing the 

restitution fine based on an inability to pay.” Counsel did not suggest an 

amount, nor did she otherwise comment on what Galvan could conceivably 

pay. When the court responded that it would reduce the restitution fine to 

$2,000, counsel said nothing further. 

Penal Code section 1202.4 authorizes a restitution fine of up to $10,000 

in felony cases, and requires a sentencing court to impose a minimum fine of 

$300 notwithstanding a defendant’s inability to pay that amount. Dueñas

3 The fees and assessments included $120 in court security fees (Pen. 

Code, § 1465.8); a $90 conviction assessment (Gov. Code, § 70373); and a $154 

criminal justice administration fee (Gov. Code, § 29550.1). 
34

considered whether a minimum fine imposed under the statute was 

constitutional. But even before the Dueñas decision, which was issued only 

three days before Galvan’s sentencing hearing, it was clear that a defendant’s 

ability to pay was a relevant consideration in determining whether to impose 

a restitution fine greater than the statutory minimum. (§ 1202.4, subds. (c)

and (d).) This likely explains why Galvan’s counsel asked the court to reduce 

the amount of the restitution fine without mentioning Dueñas.

It was defendant’s burden to explain to the court why it should impose 

a lesser amount than was proposed. (§ 1202.4, subd. (d); People v. Avila

(2009) 46 Cal.4th 680, 729 (Avila).) Notwithstanding some broad language in 

Dueñas, cases since then—including decisions from the same court that 

decided Dueñas—have concluded that even when challenging a minimum 

fine, defendants bear the initial burden of (1) advising the court that they are 

unable to pay the fines and/or fees that the court proposes to assess, and 

(2) introducing minimal evidence to support that assertion. (E.g., People v. 

Castellano (2019) 33 Cal.App.5th 485, 490 [“a defendant must in the first 

instance contest in the trial court his or her ability to pay the fines, fees and 

assessments to be imposed”]; Kopp, supra, 38 Cal.App.5th at p. 96 [“it is 

Appellants’ burden to make a record below as to their ability to pay these 

assessments”].) The failure to do so means an appellate challenge based on 

ability to pay is forfeited. (Avila, at p. 729.)

This is not a case in which defense counsel totally failed to mention the 

defendant’s inability to pay. But counsel never quantified what she believed 

Galvan was reasonably able to pay. When the sentencing judge proposed an 

80 percent reduction of the amount suggested by the probation department, 

counsel raised no objection. Her silence may be deemed acquiescence.
35

Galvan was obligated to tell the court not merely that the maximum 

fine of $10,000 was excessive, but also that the $2,000 proposed by the trial 

judge was too much if he was unable to pay that amount. Having failed to do 

so, the argument regarding his inability to pay the assessed restitution fine is 

forfeited. (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.) Moreover, 

because he did not object to the $2,000 restitution fine, Galvan has similarly 

forfeited any challenge to the fees and assessments totaling $364. (Ibid.)

F

Cumulative Error

Because we find no prejudicial error as to each of Galvan’s asserted 

claims, it follows that any cumulative effect of the claimed errors “ ‘does not 

warrant reversal of the judgment.’ ” (People v. Jablonski (2006) 37 Cal.4th 

774, 825.)

G

Prior Prison-Term Enhancements

Galvan admitted, and the court found true, an allegation he had a prior 

prison term for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)).

The court imposed a one-year term pursuant to former Penal Code 

section 667.5, subdivision (b), but stayed the punishment. 

While this appeal was pending, the Governor signed Senate Bill 

No. 136 (Stats. 2019, ch. 590, § 1), which amended Penal Code section 667.5, 

subdivision (b) to eliminate one-year sentence enhancements for all prior 

prison terms except those served for a sexually violent offense within the 

meaning of Welfare and Institutions Code section 6600, subdivision (b). The 

amendment became effective January 1, 2020. Although Galvan did not raise 

this issue on appeal or request supplemental briefing on this point, we may 
36

consider and correct an unauthorized sentence at any time. (In re Sheena 

K. (2007) 40 Cal.4th 875, 887.) 

Galvan is entitled to the ameliorative change in the law under the 

amended statute because the judgment against him is not yet final. (In re 

Estrada (1965) 63 Cal.2d 740; People v. Jennings (2019) 42 Cal.App.5th 664, 

682.) Since his prison prior does not qualify for enhancement under amended 

Penal Code section 667.5, subdivision (b), the one-year prior prison term 

enhancement can no longer be imposed. (People v. Gastelum (2020) 45 

Cal.App.5th 757, 772.) Because the trial court stayed the imposed term, we 

conclude it is unnecessary to remand the matter for the court to exercise its 

sentencing discretion anew. (People v. Buycks (2018) 5 Cal.5th 857, 896, 

fn. 15.) Accordingly, we strike the one-year prior prison enhancement and 

affirm the judgment as modified.
37

IV

DISPOSITION

The judgment is modified to strike the stayed one-year prior prison 

term enhancement imposed under former Penal Code, section 667.5, 

subdivision (b). As so modified, the judgment is affirmed. The trial court is 

directed to amend the abstract of judgment accordingly and to forward it to 

the Department of Corrections and Rehabilitation. In all other respects, the

judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

AARON, J.

DATO, J.