Filed 3/30/21 P. v. Urrutia CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

DIEGO GUADALUPE URRUTIA

Defendant and Appellant.

B305371

(Los Angeles County

Super. Ct. No. LA083810)

APPEAL from the judgment of the Superior Court of 

Los Angeles County. Martin L. Herscovitz, Judge. Affirmed.

Alan Siraco, under appointment by the Court of Appeal, for 

Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Paul M. Roadarmel, Jr. and David A. 

Wildman, Deputy Attorneys General, for Plaintiff and 

Respondent.

_________________________
2

INTRODUCTION

Appellant challenges his conviction of second degree 

murder. On appeal, he argues: (1) the trial court failed to 

instruct the jury sua sponte that a victim’s suicide can be an 

intervening cause of death; (2) the omission of an intervening 

cause of death instruction permitted the prosecutor to argue an 

incorrect legal theory; and (3) the trial court’s imposition of fines 

and fees without an ability-to-pay hearing violated his due 

process rights.

We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In an Information filed February 15, 2019, appellant Diego 

G. Urrutia was charged with the murder of Daniel HernandezPineda, a violation of Penal Code1 section 187, subdivision (a), 

and arson, a violation of section 451, subdivision (c). Appellant 

entered pleas of not guilty to both counts.

On December 3, 2019, the People moved to dismiss the 

arson count. The motion was granted. Trial by jury commenced.

A. Prosecution Evidence

Appellant, his grandmother, his sister Iliana, Iliana’s two 

children, and Iliana’s boyfriend Daniel resided in an apartment

located on Woodman Avenue. The apartment building had a 

carport accessible by tenants from an alley on the side of the 

building.

Appellant and Daniel met each other in high school and 

had a “good” friendship. According to Iliana, appellant and 

Daniel “started having problems” when she began dating Daniel. 

1 All further undesignated references are to the Penal Code.
3

By June 2016, Iliana and Daniel had been dating for about four 

years. Iliana had actually kicked appellant out of their 

apartment on a previous occasion because of issues between him

and Daniel.

On June 30, 2016, Daniel drove Iliana to work; while she

worked from 5:00 a.m. until about 2:00 p.m., Daniel slept in the 

car. After work, they drove home. Appellant asked Iliana and

Daniel if either of them could “take him to buy some shoes” and 

Daniel agreed. The two men left around 3:00 p.m.

Appellant returned to the apartment alone, sometime 

between 5:00 and 6:00 p.m. He told Iliana Daniel was “outside in 

the garage.” Iliana found Daniel “outside the car, just walking 

around”; he appeared “drunk” and “smelled like beer.” Iliana saw 

a few open beer cans in the car. The car was backed into the 

parking spot, with the front of the car facing the alley. Iliana told 

Daniel to come into the apartment, but he refused.

Rafael Torres, another resident of the apartment building, 

heard the couple arguing while he was walking in the alley next 

to the carport. He asked Iliana to “stop yelling” and told Daniel 

“to calm down and go into his car.” According to Torres, Iliana 

and Daniel “were always outside yelling at each other or he was 

getting yelled out. And he would spend hours and hours at a 

time in his car.” Iliana was “always . . . berating him, yelling at 

him.” Iliana “would call [Daniel a] homosexual. She would call 

him a piece of shit. She would say horrible things.” Daniel 

thanked Torres and went to his vehicle.

Daniel sat in the driver’s seat and started smoking a pipe of 

methamphetamine. Iliana testified Daniel’s behavior would 

change when he smoked methamphetamine. He became 

“nervous” and would say he was depressed and wanted to die. 
4

Iliana got angry and threw out the pipe. Daniel then threw 

something at the front windshield, creating a big crack.

Heraclio Montalvo, a resident of the same apartment 

building, saw Daniel and Iliana arguing as he arrived home from 

work. He heard Iliana tell Daniel “he had to leave.” He referred 

to Iliana and Daniel as a couple known to argue “regularly.”

Around 7:00 p.m., Maria Arriaga, the resident manager of 

the apartment building, arrived home to drop off her brother and 

son. When driving down the alley next to the carport, Arriaga 

noticed “a couple were arguing.” Arriaga’s car window was down, 

enabling her to hear what was being said. She heard Iliana 

argue with Daniel, “using harsh words” and “cussing at him,” 

telling him: “ ‘You motherfucker, get out of the car; otherwise, 

you’ll pay for this.’ ”

After dropping off her brother and son, Arriaga parked her 

car and walked toward the alley. She told Iliana “to stop fighting 

with her boyfriend,” to which Iliana responded, “ ‘This son of a 

bitch is going to pay for this.’ ” Iliana became “furious” and said 

if Daniel “didn’t get out of the car, she was going to call her 

brother.” Iliana then left and “head[ed] down the alley.”

Iliana went into the apartment and informed appellant 

“what had happened, that Danny didn’t want to come in and that

he had broken the windshield.” She accused appellant of starting

fights between her and Daniel; appellant replied with, “I don’t 

give a fuck.”

According to Iliana, she returned to the carport, 

accompanied by appellant. Appellant appeared “furious” and 

“angry.” He yelled at Daniel (sitting in the driver’s seat) to “get 

the fuck out of the car” but Daniel refused. Appellant told Daniel 

“if he didn’t get out of the car, he was going to go get the 
5

gasoline.” He told Daniel three times, “Get the fuck out of the car 

before I burn you inside alive.” Daniel remained in the car and 

said he was not going to leave. Appellant said, “Oh, yeah, fool?” 

and went inside.

After appellant left, Daniel started crying. He told Iliana 

“about how he wanted to die; that no one cared about him” and 

that “he didn’t want to be here.” Iliana tried to open the car 

doors, but Danny had locked them.

About two minutes later, appellant returned with a plastic 

container carrying a “liquid that was greenish/yellowish.” 

Appellant “grabbed” Daniel from his neck and chest area, pulled 

him out of the car, and “slammed him” against the wall of the 

carport. Daniel was “wobbling” and had blood all over his face.

Appellant next grabbed the plastic container and “doused” 

Daniel with its liquid content. He then put Daniel in the car and 

“poured the rest of what was left of the gasoline” on the car. 

Iliana yelled, “Stop, Diego, stop, don’t burn him” and “don’t kill 

him.”

Torres heard Daniel screaming “no, no.” He saw appellant 

“throwing liquid on [Daniel] in the car.” He then saw “a spark 

coming from [appellant’s] right hand” and ignite the fire. 

Similarly, Arriaga saw something in appellant’s hand with “a 

light or a glow”, and she watched as appellant threw “something” 

into the car. She did not know whether it was “a lighter or 

matches.”

Iliana testified she saw appellant “pulled out something 

white,” but did not know what. She “only saw that [her] brother 

had something in his hand.” Iliana also saw Daniel “opening the 

glove compartment” just before the fire started, “but [didn’t] 
6

know what he was doing, whether he was looking for 

something.”2

“Right away, everything got into a fire.” The whole car and 

Daniel were engulfed in flames. Torres ran towards the burning 

car, reached in, grabbed Daniel by the shirt, and pulled him out.

Montalvo, who was crossing the alley, came face to face 

with Iliana, who “came out crying” and asked for his help. He 

went toward the commotion and saw the car on fire inside the 

carport. He saw Daniel “rolling near the wall” and “trying to put 

himself out.” He also saw appellant trying to put out flames on 

his own forearms and clothes. He ran to his apartment to bring 

water.

A moment later, Montalvo returned with a five-gallon 

container filled with water. Daniel’s clothes had burned off and 

his hair was on fire. Montalvo “doused” Daniel’s hair with water. 

Montalvo believed appellant appeared “indifferent” and “not 

interested.” Iliana said to appellant, “What have you done?”

Appellant’s shirt was burned. He walked away from 

Arriaga toward the alley. Arriaga asked appellant whether she 

should call the police or the paramedics. Appellant told her, 

“Don’t get involved. It’s not your problem.”

Arriaga called 911, requesting paramedics. She said that 

“a couple guys” were “fighting”, a car is burning, and “somebody’s 

in the car.”

2 Iliana had seen a green and black colored lighter in the car 

earlier that day.
7

At 7:09 p.m., firefighters Matthew Jackson, Matthew 

Corral, and others arrived at the apartment. Appellant ran out 

to the firefighters, and told firefighter Corral: “Hey, I need your 

help. Why aren’t you helping me out? I’m burnt.” Firefighter

Jackson noticed appellant had burns on his arms. Firefighter

Corral then noticed Daniel down the alley, lying on his back. 

Daniel had “severe burns to the majority of his body” and was 

suffering “agonal respirations”—meaning, a “very hard time 

breathing.”

At 7:12 p.m., the paramedics arrived. Paramedic Andrew 

Guzzard described Daniel as “critically burned” and it “appeared 

as though his entire body had been burnt from head to toe.” 

Daniel had “partial thickness and full thickness burns”, “skin 

sluffing and char everywhere.”3 The paramedics tried to pick up 

the patient, but “it was very hard to do so, because as [they] 

grabbed his arms, legs, [etc.], the skin was just kind of coming 

right off with [their] hands.” Daniel was taken by ambulance to 

Holy Cross Hospital.

According to Robert McLoud, an arson investigator with 

the Los Angeles Fire Department, even if a lighter in the car had 

been plastic, the metal components of the top portion would 

survive a fire. McLoud did not find anything in the vehicle

resembling a lighter or parts of a lighter. Based on his 

3 “[A] superficial burn would be first degree. Partial 

thickness would be . . . second degree. You’d see blisters, 

reddening. And then third degree, or full thickness burns, would 

be burns that burnt past the first two layers—or first layer of 

skin, the dermis, down into the subcutaneous tissue and into the 

muscle, deadening nerve cells, nerves, [etc.].”
8

background, training, and experience, McLoud opined the fire 

was “intentionally set.”

Around 11:00 p.m. that evening, Detective Luis Romero 

interviewed an “emotional” Iliana, who cried several times during 

the interview, “constantly asking about how the victim was 

doing.” Iliana told the detective appellant and Daniel “were 

constantly arguing and fighting over the relationship between 

her and [Daniel].” She had specifically taken Daniel to her 

workplace that day “because she didn’t want him being alone 

with” appellant. She also told the detective that right before the 

fire started, she saw appellant “extend his right arm as he was 

holding a lighter.” She, however, did not tell the detective about

Daniel smoking methamphetamine in the car. Nor did she tell 

him Daniel had cried and said he wanted to die.

Detective Daryn Dupree traveled to Holy Cross Hospital 

where Daniel and appellant, who had substantial burns on his 

right and left hands, were being treated. The detective examined 

Daniel’s clothing (only portions of his pants had survived the fire) 

and did not find any lighter or matches. The detective’s partner 

examined appellant’s clothing and found a Bic lighter.

Appellant was arrested.

Daniel died the next day, on July 1, 2016.

On July 5, 2016, forensic pathologist David Whiteman 

autopsied Daniel. Based on his background, training, experience, 

and examination of the body, he opined Daniel’s cause of death to 

be “from both smoke inhalation and thermal injuries” and 

manner of death “to be homicide.” He also observed a series of 

scars across Daniel’s left forearm—“older cuts that were healed.” 

He opined the cuts were “a marker of depression or some other 
9

problems about the adolescent.” Whiteman ruled out selfimmolation as a cause of death.

B. Defense Evidence 

Toxicologist John Treuting found amphetamine in Daniel’s 

blood, which meant Daniel’s liver had metabolized the 

methamphetamine he had ingested to amphetamine. Treuting 

explained methamphetamine is a “central nervous system 

stimulant drug” that causes the individual to “feel supermanlike” and “hyperalert”; their inhibitions get lower and there is 

“increased risk-taking phenomena.” The individual could become 

“very anxious” or “paranoid.” Trueting testified the amount of 

methamphetamine and amphetamine in Daniel’s body indicated 

he would have experienced a “significant disruption in normal 

brain function.” He could not rule out suicide.

Dr. Odey Ukpo, a deputy medical examiner with the Los 

Angeles County Coroner’s Officer, reviewed the toxicology report, 

autopsy report, and coroner’s file. Based on his review, Dr. Ukpo 

opined Daniel’s cause of death was thermal injuries. He also 

opined the manner of death is “undetermined”—he considered it 

“a 50/50 chance” that it was either homicide or suicide. He 

considered “suicide as a possible manner of death” based, in part, 

on the fact that Daniel had scars of previously inflicted incise 

wounds on his wrist; “these wounds are what you see in someone 

trying to commit suicide.” Dr. Ukpo noted that individuals with a 

history of taking methamphetamine also have “a history of 

depression.”

C. Verdict and Sentencing

At trial, the People argued the evidence showed appellant 

lit the fire after threatening Daniel and dousing him and the car 

with gasoline. Alternatively, the People argued appellant was 
10

guilty because Daniel’s death was the natural and probable 

consequence of dousing him with gasoline and then lighting an 

open flame. In contrast, the defense argued that while appellant 

poured the gasoline, it was Daniel who lit the fire causing his 

own death. The defense argued appellant committed battery by 

pouring gasoline on Daniel with criminal negligence, but that 

Daniel’s death was the suicide of “a young man [who] was 

traumatized and depressed.”

On December 12, 2019, a jury found appellant not guilty of 

first degree murder and guilty of second degree murder. 

On February 26, 2020, appellant was sentenced to a term of 

15 years to life. The court imposed a $40 court security fee per 

section 1465.8, subdivision (a)(1), a $30 criminal conviction 

assessment per Government Code section 70373, a $300 

restitution fine per section 1202.4, subdivision (b), and a $300 

parole restitution fine per section 1202.45, which was stayed.

Appellant timely appealed.

DISCUSSION

Appellant contends the trial court’s instructions to the jury 

were correct but inadequate in two respects. First, he argues the 

instructions failed to address “the causal relationship necessary 

to impose murder liability on a defendant when the victim 

commits suicide.” While “there was no meaningful conflict in the 

evidence” as to whether appellant poured gasoline on Daniel, “the 

evidence was in dispute [as to] whether [appellant] ignited the 

gasoline or whether [Daniel] did.” He argues the dispute as to 

whether appellant or Daniel lit the fire “raised the question 

whether [appellant]’s act of dousing [Daniel] with gasoline was 

itself a sufficient legal cause of death.”
11

Second, appellant argues the trial court erred by failing to 

instruct the jurors on the principle of independent intervening 

cause, as Daniel’s alleged suicide could constitute an independent 

intervening cause absolving appellant of criminal liability.

A. Relevant Proceedings

On December 10, 2019, the trial court indicated to 

appellant and counsel it would instruct with CALCRIM No. 620 

as edited, and stated: “I’m going to give 620 the way I have it 

written. There’s no question that the defendant had to have 

killed the victim in order to be guilty.” The court also noted it did

not “think we’re bound by the coroners distinguishing between 

manner of death and cause of death.” Appellant did not state an 

objection to CALCRIM No. 620 on that date. The next day, on 

December 11, 2019, the trial court specifically asked both counsel 

if there are “any objections to the instructions that are given this 

morning in their final state”, to which both counsel (including 

appellant’s) replied, “No.”

The trial court gave the following jury instructions:

CALCRIM No. 620: “There may be more than one cause of 

death. An act causes death only if it is a substantial factor in 

causing the death. A substantial factor is more than a trivial or 

remote factor. However, it does not need to be the only factor 

that causes the death. [¶] If the defendant’s act was a 

substantial factor causing the death, then the defendant is legally 

responsible for the death. This is true even if Daniel . . . would 

have died in a short time as a result of other causes. [¶] If you

have a reasonable doubt whether the defendant’s act caused the 

death, you must find him not guilty.”
12

CALCRIM No. 520: “To prove that the defendant is guilty 

of [murder], the People must prove that: One, the defendant 

committed an act that caused death of another person; and two, 

when the defendant acted, he had a state of mind called malice 

aforethought. [¶] There are two kinds of malice aforethought, 

expressed malice and implied malice. Proof of either is sufficient 

to establish the state of mind required for murder. The 

defendant has express malice if he unlawfully intended to kill. 

The defendant had implied malice if: One, he intentionally 

committed the act; two, the natural and probable consequences of 

the act were dangerous to human life; three, at the time he acted, 

he knew his act was dangerous to human life; and four, he 

deliberately acted with a conscious disregard for human life. 

[¶] . . . [¶] An act causes death if the death is a direct, natural, 

and probable consequence of the act and the death would not 

have happened without the act. A natural and probable 

consequence is one that a reasonable person would know is likely 

to happen if nothing unusual intervenes. In deciding whether a 

consequence is natural and probable, consider all the 

circumstances established by the evidence. [¶] If you decide that 

the defendant committed murder, it is murder of the second 

degree unless the people have proved beyond a reasonable doubt 

that it is murder of the first degree . . . .” (Italics added.)

During closing argument, the prosecutor argued if a juror 

“think[s] . . . at that very . . . same time the defendant comes back 

after making the threats, comes back with the gasoline and at 

that, very time, the victim lit himself, the defendant is still liable 

for murder. [¶] And you’re going to have jury instruction 620 

because in dousing the victim with gasoline, basically, the 

defendant is creating a situation for the victim to kill himself and 
13

he’s not allowed to do that. It reads, ‘If the defendant’s act of 

dousing the victim with gasoline is a substantial factor for 

causing death, then the defendant is legally responsible.’ ” 

(Italics added.)

Near the end of closing, the prosecutor maintained 

appellant had both express and implied malice. As to implied 

malice, he posited to the jury: “[I]f for some reason you don’t 

think [appellant] knew that dousing someone with gasoline and 

then using an open flame that he didn’t intend to kill, well, of 

course the natural and probable consequences of such an act is 

dangerous to human life. So implied malice is there as well. 

That’s second degree murder.”

B. Standard of Review

De novo review applies to whether the trial court has a sua 

sponte duty to give a particular instruction. (People v. Simon

(2016) 1 Cal.5th 98, 133; People v. Guiuan (1998) 18 Cal.4th 

558, 569.)

C. Applicable Law

In criminal cases, a trial court has a duty to instruct on 

general principles of law relevant to the issues raised by the 

evidence, that are closely and openly connected to the facts, and 

that are necessary for the jury’s understanding of the case. 

(People v. Anderson (2011) 51 Cal.4th 989, 996; People v. Carter

(2003) 30 Cal.4th 1166, 1219; People v. Breverman (1998) 

19 Cal.4th 142, 154.) In other words, there must be substantial 

evidence to support giving a particular instruction. (People v. 

Crew (2003) 31 Cal.4th 822, 835; People v. Nguyen (2015) 

61 Cal.4th 1015, 1049.) Indeed, a trial court “may properly refuse

an instruction offered by the defendant . . . if it is not supported
14

by substantial evidence.” (People v. Moon (2005) 37 Cal.4th 1, 30; 

see generally, People v. Marshall (1997) 15 Cal.4th 1, 39–40.)

D. Waiver

First, the People assert appellant waived any claim of 

instructional error because he did not object to CALCRIM 

No. 620 or request modification to address what appellant alleges 

are issues affecting proximate and intervening cause. (Cf. People 

v. San Nicolas (2004) 34 Cal.4th 614, 669 [defendant forfeited 

any instructional error by not objecting below and instead 

approving modified instruction]; (People v. Lee (2011) 51 Cal.4th 

620, 638 [failure to request clarification of an otherwise correct 

instruction forfeits claim of error].) Appellant does not deny this, 

but argues “the claim is statutorily preserved” via section 1259.

We need not address section 1259 because our review of the 

record reveals the following exchange between the trial court and 

appellant. Though appellant did not object to CALCRIM No. 620

per se, appellant did object and raise the issue of instructing on 

the effect of “who lit the flame” in response to the court’s second 

degree murder instructions. When the trial court asked 

appellant why it should not give the second degree murder 

instruction, defense counsel replied: “I think there can be a 

confusion on the part of the jury if they find that pouring gasoline 

on someone in [and] of itself, even if [appellant] isn’t the one who 

lit the fire, is enough to substantiate the second degree murder 

charge.” The court explained that the jury “can find that’s 

implied malice. If I pour gasoline all over somebody and they 

happen to be sitting next to a hot water heater or something, it 

sounds like implied malice to me.” Following this, appellant 

stated it was “just to note [his] objection for the record.” We 
15

conclude appellant did not forfeit his claim of instructional error 

and proceed to address the merits of his arguments.

1. The Evidence Did Not Impose an Obligation on the 

Trial Court to Instruct the Jury Sua Sponte on 

Intervening and Proximate Cause

Appellant argues the trial court erred in failing to instruct

the jury, sua sponte, that if Daniel ignited the fire, appellant was 

not the proximate cause of Daniel’s death and the suicide attempt 

was an intervening cause of his death. Preliminarily we note 

appellant acknowledges, and we agree, the instructions as given 

by the trial court correctly stated the law. He also acknowledges 

he never proposed specific modified or additional instructions for 

the trial court’s consideration. Nevertheless, appellant argues 

the trial court, sua sponte, should have given more specific 

instructions explaining the concepts of proximate causation and 

intervening cause of death as those concepts relate to a victim’s 

suicide. Appellant argues more detailed instructions were

necessary because some jurors might have decided that 

appellant’s dousing gasoline on Daniel, without more, was

sufficient to impose murder liability on appellant.

We reject defendant’s argument that the trial court was 

required to further instruct sua sponte on the issues of proximate 

cause or intervening cause as they relate to suicide, to wit, if 

Daniel lit the flame, appellant was not guilty of murder. Our 

review of the record shows the evidence of suicide is insufficient 

to trigger such an obligation. (See People v. Maury (2003) 

30 Cal.4th 342, 424.)
16

Arriaga testified she heard Iliana yell, “Stop, Diego, stop, 

don’t burn him” and “don’t kill him.” She testified she had seen

something in appellant’s hand with “a light or a glow”, and then 

watched appellant throw “something” into the car—but did not 

know whether it was “a lighter or matches.” Torres testified he 

saw appellant “throwing liquid on [Daniel] in the car.” He then 

saw “a spark coming from [appellant’s] right hand” and ignite the 

fire. Iliana saw appellant “pulled out something white,” but did 

not know what. She “only saw that [her] brother had something 

in his hand.” Iliana had told Detective Romero that right before 

the fire started, she saw appellant “extend his right arm as he 

was holding a lighter. Torres testified he heard Daniel scream, 

“no, no” when appellant was dousing him and the car with 

gasoline. The arson investigator found no evidence of a lighter in 

the burnt car or in Daniel’s clothes.

In contrast, the only evidence circumstantially supporting

the possibility that Daniel caused the fire himself is Iliana’s 

testimony that she saw Daniel “opening the glove compartment” 

just before the fire started, “but [didn’t] know what he was doing, 

whether he was looking for something.” However, this testimony

suggests only that Daniel may have been looking for something; 

it suggests nothing more. Iliana also testified that after 

appellant threatened Daniel and left the garage, Daniel had cried 

and said he wanted to die, statements he had often made in the 

past when he smoked methamphetamine. Iliana did not, 

however, testify that Daniel had previously attempted suicide, a 

significant evidentiary gap given the couple had been dating for 

four years at the time of Daniel’s death. Neither do the old 

cutting scars on Daniel’s wrist support an inference that he was 

actually suicidal on the day of the fire. We conclude this 
17

circumstantial evidence is too tenuous, stale, and speculative to 

impose upon the trial court a further obligation to instruct the 

jury sua sponte on suicide as an intervening or proximate cause 

of Daniel’s death. As a result, we see no need to discuss the case 

authorities appellant cites to distinguish between suicides that 

break the chain of causation and suicides that do not.

2. Appellant’s Failure to Object During Closing 

Argument Forfeited His Claim that the People 

Misstated the Law.

Notwithstanding his concession that the instructions as 

given were “correct in themselves,” appellant contends the trial 

court’s instructional omissions “set the stage for the prosecutor to 

present a legally invalid theory of proximate causation to the 

jury”, to wit, that appellant was guilty of murder if he created a 

situation that facilitated Daniel’s suicide.

Given the lack of substantial evidence of a suicidal act by 

Daniel, we reject this argument. Moreover, appellant’s failure to 

object to the prosecutor’s argument forfeits this claim. (People v. 

Centeno (2014) 60 Cal.4th 659, 674 [generally, a “ ‘ “defendant 

may not complain on appeal of prosecutorial misconduct unless in 

a timely fashion, and on the same ground, the defendant objected 

to the action and also requested that the jury be admonished to 

disregard the perceived impropriety” ’ ”].)

3. Appellant Forfeited His Claim that He Was Entitled 

to an Ability-to-Pay Hearing as to the Imposition of 

Fees, Fines, and Assessments.

Appellant argues the trial court violated his federal and 

state right to due process of law by imposing a $40 court security 

fee per section 1465.8, subdivision (a)(1), a $30 criminal 

conviction assessment per Government Code section 70373, and a 
18

$300 restitution fine per section 1202.4, subdivision (b), without 

determining whether he had the present ability to pay.4 

Appellant requests we vacate the assessments and stay the 

imposition of the restitution fine under People v. Dueñas (2019) 

30 Cal.App.5th 1157 (Dueñas) and People v. Aviles (2019) 

39 Cal.App.5th 1055 (Aviles).

The trial court sentenced appellant on February 26, 2020, 

more than 13 months after the decision in Duenas and more than 

five months after the decision in Aviles. Despite this, appellant 

did not object to the fees, assessments, or the restitution fine 

imposed. We find his challenge forfeited and we decline to 

exercise our discretion to adjudicate this forfeited issue. (People 

v. Yeoman (2003) 31 Cal.4th 93, 117–118.)

Appellant argues if his claim was forfeited, his trial counsel 

rendered ineffective assistance by not objecting. We disagree. 

Ineffective assistance of counsel may be shown on direct appeal 

where counsel’s performance falls below an objective standard of 

reasonableness. (People v. Sepulveda (2020) 47 Cal.App.5th 

291, 301.) The fines and fees total $370. Appellant bore the 

burden of establishing that he would not be able to pay that 

amount over the following 15 years in custody. His sole 

argument in support of ineffective assistance is that he “gained 

no benefit from counsel’s omission” and that there was “no 

conceivable tactical basis for omitting objection to imposition to 

fines without a hearing on [his] ability to pay.” Appellant fails to 

explain his argument beyond the conclusory statement quoted 

above. Appellant has not shown that his counsel’s failure to ask 

4 On appeal, appellant does not challenge the $300 parole 

restitution fine per section 1202.45, which was stayed.
19

for an ability-to-pay hearing fell below an objective standard of 

reasonableness.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

BIGELOW, P. J.

GRIMES, J.