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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent

,

v.

DIEGO GUADA LUPE URRUTIA

Defendant and Appellant

. B 305371

(Los Angeles County Super. Ct. No. LA083810 )

APPEAL from the judgment of the Super ior Court of
Los Angeles County. Martin L. Herscovitz , Judge . Affirmed.

Alan Siraco , under appointment by the Cou rt 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 Attorney s 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 c ause of de ath ; (2) the omission of an intervening cause of death instruction permitt ed 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 righ ts.
We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In an Information filed February 1 5, 2019 , appellant Diego
G. Urrutia was charged with the murder of Daniel Hernandez

Pineda

, a violation of Penal Code 1 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, t he People moved to dismiss the

arson count

. The motion was granted. Trial by jury commenced.

A. Prosecution Evidence Appellant, his gran dmother, his sister Iliana, Iliana’s two children, and Iliana’s boyfriend Daniel reside d 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 Da niel 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 k icked appellant out of the ir apartment on a previous occasion because of issues between him
and Daniel. On June 30, 2016, Dan iel drove Iliana to work ; w hile she worked from 5:00 a.m. until about 2:00 p.m., Daniel slept in the

car

. After work, they drove h ome. 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 “ou tside 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 all ey. Iliana told
Daniel to come in to 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 Danie l “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, yellin g 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 i n the driver’s seat and started smoking a pipe of methamphetamine

. Ilia na 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 bi g crack

. Heraclio Montalvo, a resident of the same apartment building, saw Daniel and Iliana arguing as he arrived home from
work . He hear d Iliana tell Daniel “he had to leave.” He referred to Iliana and Daniel as a couple known to argue “regularly.”
Aro und 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 goi ng to call her brother.” Iliana then left and “head[ed] down the alley.”
Iliana went in to 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 “ge t 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 the5

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.” Ilia na 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 o f 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 [ap pellant’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 thre w “something”
into the car . She d id not know whether it was “a lighter or
matches.”
Iliana testifi ed 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 doi ng, whether he was looking for something.” 2 “Right away, everything got into a fire.” The whole car and
Daniel w ere engulfed in flames. Torres ran towards the burning car, reached in, grabbed Daniel by the shirt

, and pulled him out. Montalvo, who was cro ssing 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 app ellant 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. A rriaga asked appel lant whether she should call the police or the paramedics. A ppellant 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 th e car.”

2 Iliana had seen a green and black colored lighter in the car earlier that day.7 At 7:0 9 p.m., firefighter s Matthew Jackso n, Matthew Corral, and others a rrived 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 , l ying on his back.
Daniel had “severe burns t o 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 kin d of coming right off with [their] hands.” Daniel was taken by ambulance to Holy C ross 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 bur nt 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.”
A round 11:00 p.m. that evening

, Detective Luis Romero
interviewed an “emotional” Iliana , who cried several time s 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 t aken Daniel to her

wor k place 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 D aniel 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 bei ng 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 Bi c 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 th e cuts were “a marker of depression or some other9

problems about the adolescent.” Whitema n ruled out self

immolation as a cause of death.

B. Defense Evidence Toxicologist John Treuting found amphetamine in Daniel’s blood, which mean t Daniel’s liver had metabolized the methamphetamine he had ingested to amphetamine. Treuting explained methamph etamine is a “ c entral nervous system stimulant drug ” that causes the individual to “feel superman

like” 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 Ang e les 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 considere d it “a 50/50 chance” that it was either homicide or suicide

. He considered “suicide as a possible manner of death” base d, in part, on the fact that Daniel had scars of previously inflicted incise
wounds on his wrist ; “these wounds are what you see in som eone trying to commit suicide.” Dr. Uk p o noted that individuals with a history of taking methamphetamine also have “a history of depression.”

C. Verdict and Sentencing

A t trial, the People argued the evidence showed appellant lit the fire after threatening D aniel and dousing him and the car with gasoline. Alternatively, the People argued appellant was10

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 you ng 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, a ppellant 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 7037 3, a $ 3 00 restitution fine per section 1202. 4, subd ivision (b) , and a $300 parole restitution fine per section 1202.45

, w hich 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 im pose 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 gasolin e 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 t rial 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 d id 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 tria l 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:
C ALCRIM 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 o f another person; and two, when the defendant acted, he had a state of mind called malice aforethought. [¶] There are two kinds of malice aforethought,

express ed malice and implied malice. Proof of either is sufficient
to establish the state of mind re quired 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; thre e, 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 th e 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 l iable 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 and13

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 i mplied 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 ac t 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 (20 16 ) 1 Cal.5 th 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 116 6 , 1219; People v. Breverman (1998)
19 Cal.4th 142, 154.) In other words, there must be substantial

ev idence to support giving a particular instruction. ( People v.
Crew (2003) 31 Cal.4th 822, 8 3 5; People v. Nguyen (2015)
61 Cal.4th 1015, 10 4 9. ) Indeed, a trial court “may properly refuse an instruction offered by the defendant . . . if it is not supported14

by substantial evidence.” ( People v. Moon (2005) 37 Cal.4th 1, 30 ; see generally, People v. Marshall (1997) 1 5 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. 6 20 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

approv ing 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. T hough appellant did not object to CALCRIM No. 620

per se , appellant did object and raise the issue of instructi ng 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
confu sion 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.” W e15

conclude appellant did not forfeit his claim of instructional error and proceed to address the merit s 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 Appell ant 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 w e note

app ellant 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, a ppellant arg ues 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 instruction s w ere

ne cessary 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 spont e on the issue s of proximate

caus e or intervening cause as they relate to suicide, to wit, if Daniel lit the flame, appellant was not guilty of murder. O ur 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

s omething in appellant’s hand with “a light or a glow”, and then watched appell ant 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 holdin g a lighter

. Torres testi fied 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, t he only evidence circums tantially support ing 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.” H owever, th is testimony suggests only that Daniel may have been looking for something ; it suggests nothing more. Iliana als o testified that after appellant threatened Daniel and left the garage, Daniel had cried
and s aid 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. N either 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 t his17

circumstantial evidence is too ten uo us , stale, and speculative to impose upon the trial court a further obligation to inst ruct 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 n o t.

2. Appellant’s Failure to Object Dur ing Closing Argument Forfeited H is 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 omission s “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 evi dence of a suicidal act by Daniel, we reject this argument

. Moreover, a ppellant’s failure to object to the prosecutor’s argument forfeit s this c laim. ( 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 H e W as Entit led 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, subdivisi o n (a)(1), a $30 criminal conviction assessment per Government Code section 7037 3, and a18

$300 restitution fine per section 1202. 4, subd ivision (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. Due ñ as (2019) 30 Cal.App.5th 1157 ( Due ñ as ) 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 app eal where counsel’s performance falls below an o b jecti v e 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

amo unt 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 witho ut 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, a ppellant 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

reaso nableness.

DISPOSITION
The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

BIGELOW, P. J.

GRIMES , J.