Filed 10/2/20 P. v. Torres CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE NUNEZ TORRES,

Defendant and Appellant.

 D075060

 (Super. Ct. No. SCE364159)

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

Evan P. Kirvin, Judge. Affirmed.

Rebecca P. Jones, 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, and A. 

Natasha Cortina, Deputy Attorney General, for Plaintiff and Respondent.
2

I

INTRODUCTION

Jose Nunez Torres appeals a judgment of conviction after a jury found 

him guilty of the first degree murder of Leticia Arroyo (Pen. Code,1 § 187, 

subd. (a); count 8); three counts of evasion of a peace officer with reckless 

driving (Veh. Code, § 2800.2, subd. (a); counts 1, 15, and 16); one count of 

driving under the influence of a drug (former Veh. Code, § 23152, subd. (e); 

count 2); one count of possession of drug paraphernalia (Health and Saf. 

Code, § 11364; count 3); one count of willful failure to appear while on bail 

(Pen. Code, § 1320.5; count 4); two counts of vehicle theft (Veh. Code, § 10851, 

subd. (a); counts 5 and 10); three counts of first degree burglary (Pen. Code, 

§§ 459, 460, subd. (a); counts 6, 11, and 14); two counts of first degree robbery 

(Pen. Code, §§ 211, 212.5, subd. (a); counts 7 and 12); and two counts of 

possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1); counts 9 

and 13). The jury found true special circumstance allegations that defendant 

intentionally killed Arroyo by means of lying in wait (§ 190.2, subd. (a)(15)),

and committed the murder while engaged in the commission of a first degree 

burglary and a robbery (id., subd. (a)(17)(A), (G)). It found true firearm

enhancement allegations associated with counts 6, 7, 8, 11, and 12

(§§ 12022.5, subd. (a), 12022.53, subds. (b), (d)); allegations that defendant 

committed each burglary offense while another person was present on the 

premises (§ 667.5, subd. (c)(21)); and on-bail enhancement allegations.

The trial court sentenced Torres to prison for life without the possibility 

of parole, plus a consecutive term of 25 years to life, a consecutive term of 23 

years four months, and a concurrent term of 360 days. It sentenced him to 

1 All further statutory references are to the Penal Code unless otherwise 

noted.
3

two additional consecutive terms of eight months each for convictions in 

trailing cases (case Nos. SCD267202 and SCS271159). 

In this appeal, Torres raises the following arguments: (1) substantial 

evidence did not support the jury’s lying-in-wait special circumstance finding 

or the jury’s verdict for the burglary offense charged in count 14; (2) the 

prosecution relied exclusively on an extra-judicial admission to prove the 

corpus delicti for the possession of drug paraphernalia offense charged in 

count 3, in violation of the corpus delicti rule; (3) the trial court committed 

prejudicial evidentiary and instructional errors; and (4) the trial court 

violated his state and federal due process rights by imposing fines, fees, and

penalty assessments as part of the sentence without conducting an ability-topay hearing.

We reject these contentions. Therefore, we affirm the judgment.

II

BACKGROUND

1

The First High-Speed Chase (Counts 1–4)

Early one morning in September 2016, a California Highway Patrol 

sergeant observed a vehicle exceeding the speed limit on the freeway. The 

sergeant activated the emergency lights of his patrol vehicle and pursued the 

speeding vehicle. The driver exited the freeway and feigned as though he

were stopping, but then accelerated his vehicle and led the sergeant on a 

high-speed chase. During the pursuit, the driver swerved across lanes of 

traffic, failed to stop at a stop sign, and drove at speeds approaching 110 

miles per hour. 

The speeding vehicle crossed the international border into Mexico 

where authorities stopped it and detained its occupants. Torres was the 
4

driver of the vehicle. He claimed he fled the sergeant because he was 

“unlicensed” and had an upcoming court date. He also admitted to smoking 

crystal methamphetamine in the vehicle 30 minutes before the chase. A later 

blood test produced a positive test result for the presence of amphetamines

and methamphetamines. 

Torres was charged with evading a peace officer while driving 

recklessly, driving under the influence of a drug, and possession of drug

paraphernalia. He posted bail, was released from custody, and failed to 

appear at a court date shortly after his release. 

2

The Robbery and Murder of Leticia Arroyo (Counts 5–10)

A few weeks later, Torres contacted a narcotics dealer named Leticia 

Arroyo, posed as a middle man for a buyer, and arranged to buy crystal 

methamphetamine from Arroyo at her apartment in Santee. The drug deal 

was delayed several times, causing Arroyo to send Torres a text message

stating she felt “a little like [she was] being set up.” Torres replied that he 

did not play “like that,” and the drug deal was rescheduled. 

Torres stole a Honda Accord and enlisted an acquaintance named Jaen 

Avila Soto (Avila) to accompany him to Arroyo’s apartment. Torres picked up 

Avila, drove the stolen Honda Accord to Arroyo’s apartment, and sent Arroyo 

a text message stating, “I’m outside.” At trial, it was undisputed that either 

Torres or Avila shot and killed Arroyo at her apartment. The key disputed 

issue was which one of the two men killed her.

The People theorized that Torres was the killer. They elicited 

testimony from Avila that he accompanied Torres to Arroyo’s apartment 

because Torres asked him whether he wanted to get high, and he believed

Torres would get him methamphetamine. Avila testified Torres went into the 
5

apartment and Avila moved from the passenger seat of the parked vehicle to

the driver’s seat. According to Avila, Torres returned to the vehicle 10 or 15 

minutes later, loaded ammunition into a semiautomatic pistol, and then went 

back into the apartment. Avila testified a gunshot went off a “couple 

minutes” later and Torres ran out of the apartment with blood on his 

clothing. He testified Torres was “freaking out,” weeping, and carrying four 

bags of crystal methamphetamine. Avila testified he drove himself and 

Torres away from the crime scene.

The People elicited testimony from another acquaintance of Torres 

named Anthony Moreno. According to Moreno, Torres told him before 

Arroyo’s murder that he planned to commit a robbery, take the victim’s 

drugs, and kill the victim. He testified Torres tried to recruit him to be the 

getaway driver, but he declined Torres’s requests. He testified Torres came 

to him on the evening of Arroyo’s murder, confessed he went through with the 

robbery and murder, and gave Moreno a bag of methamphetamine to hold for 

him. Moreno testified he hid the bag of methamphetamine for Torres. 

Three key pieces of physical and forensic evidence linked Torres to 

Arroyo’s murder as well. First, a criminalist at the San Diego Police 

Department testified she compared a cartridge casing recovered from the 

murder scene to cartridge casings from known test-fires of Torres’s pistol. 

The cartridge casings shared the same unique markings and, therefore, the 

criminalist determined the cartridge casing from the murder scene came from 

Torres’s pistol. Second, a latent fingerprint recovered from a deadbolt lock 

inside Arroyo’s apartment matched Torres’s fingerprint. Third, police 

recovered a pair of Torres’s pants that were stained with Arroyo’s blood. 

The defense theorized that Avila killed Arroyo. It posited that Torres 

went to Arroyo’s apartment to buy drugs, entered the apartment, locked the 
6

door behind him, and got high with Arroyo while Avila remained outside in 

the parked vehicle. According to the defense, Torres then went back to the 

vehicle to get money for the drug deal, at which point Avila entered the 

apartment and shot Arroyo without provocation. 

The defense did not call witnesses, but it cross-examined Avila 

concerning his version of the events. Among other topics, the defense 

questioned Avila about what he knew at the time he got into the Honda 

Accord with Torres. In an apparent effort to demonstrate that Avila planned 

or, at minimum, was aware of the impending killing, the defense asked Avila 

whether he asked Torres questions such as where they were going, who they 

were going to see, how far they were driving, or how long they would be gone. 

Avila replied no to each of these questions. The defense also elicited 

testimony from Avila that he did not speak with detectives about the murder 

until nearly two years after it occurred. During closing arguments, the 

defense argued Avila did not come forward about the murder because “he, 

too, was going to get charged with murder” if he did. 

3

The La Jolla Break-In (Counts 11–13)

The day after the murder, Torres stole a second vehicle, a Honda Civic, 

which he and Moreno drove to the store to buy spray paint. Torres used the 

spray paint to disguise the Honda Accord he had previously stolen and driven 

to Arroyo’s apartment. He also replaced a license plate on the Honda Accord 

with a different license plate. 

About a week later, Torres and Moreno drove the newly painted Honda 

Accord to a car wash where drug deals were known to occur. A man named 

Gustavo Ceron approached Torres and Moreno in search of drugs. Ceron 

traded Torres and Moreno for methamphetamine and the men got high. 
7

Torres and Ceron parted ways with Moreno and spent the rest of the 

evening driving across the county and getting high. In the morning, they 

decided to commit a robbery and selected a home to target in La Jolla. Torres

donned a face covering, crawled through an open window in the home, and 

unlocked a door for Ceron to enter the home. Ceron joined Torres inside the 

home and Torres forced the homeowner to lie on the ground at gunpoint. 

Torres and Ceron took the homeowner’s billfold, which contained credit cards 

and $17 in cash, and fled. 

4

The San Diego Break-In (Count 14)

After committing the burglary in La Jolla, Torres and Ceron drove to a 

hotel in San Ysidro. Ceron testified he asked Torres about the 

methamphetamine they had smoked and Torres confessed he stole it from a 

woman he “took out” a week earlier. According to Ceron, Torres told him he 

shot the woman. Ceron testified he was “shocked” by Torres’s confession, 

stepped outside of the hotel room, and “didn’t want to be in there” with 

Torres. 

Torres and Ceron then drove to a nearby trailer park so Torres could 

run an errand. Torres left his pistol inside the vehicle and went into the 

trailer park. While Torres was in the trailer park, Ceron got into the driver 

seat of the Honda Accord and drove away. Ceron stole the vehicle and the 

pistol left in the vehicle because he wanted to sell them and, according to 

Ceron, he “didn’t care about [Torres] anymore.” 

Ceron parked the Honda Accord a few blocks from his own apartment, 

walked to his apartment, and contacted a family member to try to sell the 

pistol. In the meantime, Torres and his other acquaintance, Moreno, located 
8

the Honda Accord that Ceron had just taken from Torres. They recovered the 

vehicle and began searching for Ceron. 

Torres and Moreno pulled up to another apartment under the apparent 

belief that Ceron lived there. However, they were mistaken; Ceron did not 

live there. Torres climbed into the other apartment through a window while 

Moreno remained outside. Torres encountered a tenant inside the unit and 

told him he was looking for someone with a Hispanic name, presumably 

referring to Ceron—the man who had just taken his vehicle and pistol. 

Moreno also told a neighbor they were looking for a Hispanic person. Torres 

and Moreno learned Ceron did not live at the apartment and left without 

further incident. 

5

The Second and Third High-Speed Chases (Counts 15–16)

A few days later, a National City police officer observed the stolen 

Honda Accord, which did not have a front license plate, and activated the 

emergency lights on his patrol vehicle. The driver stopped the vehicle and 

the police officer exited his patrol vehicle. The driver then accelerated the

vehicle and drove off at a high speed. The officer tried to pursue the speeding 

vehicle, but lost sight of it and the driver evaded arrest.

The following day, another National City police officer observed Torres

parked in the Honda Accord in front of a shopping mall. The officer activated 

the emergency lights on his patrol vehicle and parked his patrol vehicle to try 

to block Torres’s possible paths of escape. Torres evaded the road block and 

led the officer on a high-speed chase. During the chase, Torres exceeded the 

speed limit, ran through stop lights, and weaved through traffic. Torres

ultimately crashed his vehicle and was taken into custody. 
9

III

DISCUSSION

1

Sufficiency of the Evidence

A

Legal Standard

In a sufficiency of the evidence challenge, “ ‘ “ ‘we review the entire 

record in the light most favorable to the judgment to determine whether it 

contains substantial evidence—that is, evidence that is reasonable, credible, 

and of solid value—from which a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt.’ [Citation.]” [Citation.] In 

conducting such a review, we “ ‘presume[] in support of the judgment the 

existence of every fact the trier could reasonably deduce from the evidence.’ 

[Citation.]” [Citations.] “Conflicts and even testimony which is subject to 

justifiable suspicion do not justify the reversal of a judgment, for it is the 

exclusive province of the trial judge or jury to determine the credibility of a 

witness and the truth or falsity of the facts upon which a determination 

depends. [Citation.] We resolve neither credibility issues nor evidentiary 

conflicts; we look for substantial evidence.” [Citation.] These same principles 

apply to review of the sufficiency of the evidence to support a special 

circumstance finding.’ ” (People v. Harris (2013) 57 Cal.4th 804, 849.)

B

Burglary Conviction (Count 14)

The jury found Torres guilty of first degree burglary based on his entry 

into an apartment during his pursuit of Ceron. Torres contends there was

insufficient evidence to establish that he had the mental state necessary to 

commit the burglary. 
10

“The elements of first degree burglary in California are (1) entry into a 

structure currently being used for dwelling purposes and (2) with the intent 

to commit a theft or a felony.” (People v. Sample (2011) 200 Cal.App.4th 

1253, 1261; §§ 459, 460, 490a.) Although a defendant commits burglary when 

he or she enters a designated structure with the intent to commit either a 

theft or a felony, the jury was instructed it could convict Torres only if it 

found he had the intent to commit a theft. Therefore, we focus our analysis

solely on whether substantial evidence supported a finding that Torres 

intended to commit a theft. For the following reasons, we conclude it did.

At trial, Moreno testified he and Torres went searching for Ceron not 

only to find Ceron himself, but also to find the Honda Accord and the pistol 

Ceron took from Torres. Witnesses testified Torres and Moreno asked them 

during the break-in whether a Hispanic person lived in the apartment. This

testimony gives rise to a reasonable inference that Torres believed—

incorrectly, as it turned out—that Ceron lived in the apartment and entered 

it with the intent to find Ceron and commit a theft of the pistol. Further, an

officer testified that the pistol in question was registered as a lost firearm in 

another state. From this evidence, a jury reasonably could find the pistol was 

not Torres’s property and Torres had no claim of right over the pistol.2

Torres contends he could not have intended to take the pistol when he 

entered the apartment because he recovered the pistol before he entered the 

apartment. The record shows otherwise. Moreno testified that Torres 

2 The fact that Ceron was not the true owner of the pistol is inapposite in 

determining whether Torres intended to commit a theft of the pistol. (People 

v. Covarrubias (2016) 1 Cal.5th 838, 876 [“ ‘It is no defense to a charge of 

robbery (or of theft) that the victim was not the true owner of the property 

taken.’ ”]; People v. Hamilton (1995) 40 Cal.App.4th 1137, 1143 [“[R]obbery 

may be committed against a person who is not the owner of property—indeed, 

it may be committed against a thief.”].)
11

recovered the Honda Accord before he entered the apartment. However, he

did not testify that Torres ever recovered the pistol. In fact, Ceron testified 

he took photographs of the pistol while he was in his bedroom, which he later 

used to advertise and sell the pistol to a buyer. This evidence tends to 

establish that Ceron removed the pistol from the Honda Accord before Torres 

regained possession of the Honda Accord and entered the apartment.

Torres also contends there was insufficient evidence to establish that 

he intended to commit a theft because he did not take the pistol or any other 

property from the apartment. However, as the People correctly note, “[o]ne 

may by liable for burglary upon entry with the requisite intent to commit a 

felony or a theft (whether felony or misdemeanor), regardless of ... whether 

any felony or theft actually is committed.” (People v. Montoya (1994) 7 

Cal.4th 1027, 1041–1042; see People v. Allen (1999) 21 Cal.4th 846, 863, fn. 

18 [recognizing the “settled rule that the gist of the [burglary] offense is entry

with the proscribed intent, and that such an entry constitutes the completed 

crime of burglary ‘regardless of whether ... any felony or theft actually is 

committed.’ ”].) Thus, the mere happenstance that Torres broke into the 

wrong apartment, and as a result was unable to seize the pistol, did not 

preclude the jury from finding that Torres intended to commit a theft at the 

time he entered the apartment.

C

Lying-In-Wait Special Circumstance Finding

The prosecution presented alternative theories of Torres’s first degree 

murder liability for the killing of Arroyo: (1) the killing was committed by 

means of lying in wait; and (2) the killing was committed during the 

perpetration of a robbery or burglary. The jury found Torres guilty of first 

degree murder. It also found true an associated special circumstance 
12

allegation that Torres killed Arroyo by means of lying in wait. (§ 190.2, subd. 

(a)(15).) Torres challenges the sufficiency of the evidence supporting the 

jury’s lying-in-wait special circumstance finding.3

The lying-in-wait special circumstance requires proof of the following: 

“ ‘ “ ‘ “an intentional murder, committed under circumstances which include 

(1) a concealment of purpose, (2) a substantial period of watching and waiting 

for an opportune time to act, and (3) ... a surprise attack on an unsuspecting 

victim from a position of advantage ....” ’ ” ’ ” (People v. Woodruff (2018) 5 

Cal.5th 697, 774.) 

“ ‘ “ ‘ “The element of concealment is satisfied by a showing ‘ “that a 

defendant’s true intent and purpose were concealed by his actions or conduct. 

It is not required that he be literally concealed from view before he attacks 

the victim.” ’ ” [Citation.]’ ” [Citation.] As for the watching and waiting 

element, the purpose of this requirement “is to distinguish those cases in 

which a defendant acts insidiously from those in which he acts out of rash 

impulse. [Citation.] This period need not continue for any particular length 

‘ “of time provided that its duration is such as to show a state of mind 

equivalent to premeditation or deliberation.” ’ [Citation.]” [Citation.] “The 

factors of concealing murderous intent, and striking from a position of 

advantage and surprise, ‘are the hallmark of a murder by lying in wait.’ ” ’ ” 

(People v. Cage (2015) 62 Cal.4th 256, 278 (Cage).)

Torres does not contest the sufficiency of the evidence establishing the 

intentionality of the murder, the element of concealment, or the element of 

3 Torres does not challenge the sufficiency of the evidence supporting his 

first degree murder conviction under a lying-in-wait theory. However, “[i]f 

we find that ‘the evidence supports the special circumstance, it necessarily 

supports the theory of first degree murder.’ ” (People v. Nelson (2016) 1 

Cal.5th 513, 550.)
13

watching and waiting. Rather, he confines his challenge to whether there 

was substantial evidence of a surprise attack from a position of advantage. 

Viewing the evidence in the light most favorable to the verdict, we 

conclude ample evidence supported a determination that Torres launched a 

surprise attack from a position of advantage. Torres sent text messages to 

Arroyo claiming he wanted to buy methamphetamine from her and denying 

he would set her up. On the day of the murder, he went into Arroyo’s

apartment for an initial visit of 10 to 15 minutes. Only then, according to 

Avila, did he exit the apartment and load ammunition into the pistol he used 

to shoot Arroyo a “couple minutes” later. From this evidence, a jury 

reasonably could infer Torres deliberately lured Arroyo into a false sense of 

security under the pretense of a drug deal, which he later exploited with a 

sudden and deadly attack. (Cage, supra, 62 Cal.4th at p. 280 [evidence 

supported lying-in-wait special circumstance where “defendant’s surprise

attack ... followed in a continuous flow of events upon defendant’s successful 

use of his ruse to persuade (the victim) to open her front door”].)

A surprise attack from a position of advantage can also be inferred from 

the physical evidence. The evidence indicates Arroyo was shot in the head 

with a single gunshot from behind. There was no indication she tried to fend 

off her attacker, even though she had several rifles and airsoft pistols in her 

apartment. Based on this evidence, a reasonable jury could conclude 

Torres—who gained entry into Arroyo’s apartment under the pretense of a 

drug deal—came up to Arroyo from behind, took her by surprise, and shot her

from a position of advantage. (See People v. Johnson (2016) 62 Cal.4th 600, 

637 [“Lamb and Rump approached [the victim] from behind and, from that 

position of advantage, Lamb carried out a surprise attack by shooting [him] 

in the back of the head.”]; People v. Cruz (2008) 44 Cal.4th 636, 680 
14

[“Defendant ... removed the weapon from its hidden location and 

intentionally shot Deputy Perrigo in the back of the head ‘by surprise with no 

opportunity [for the deputy] to resist or defend himself ....’ ”].)

Torres argues that to the extent the evidence was sufficient to support 

the special circumstance finding, section 190.2, subdivision (a)(15)—the lyingin-wait special circumstance statute—would be unconstitutionally vague as 

applied to him. He contends the allegedly vague statute deprived him of due 

process because it did not give him sufficient notice of whether his conduct 

was prohibited and did not provide guidelines to prevent its arbitrary and 

discriminatory enforcement. We disagree.

“Generally, there are two separate and distinct legal theories for 

challenging a statute on vagueness grounds, depending on the interests at 

stake. [Citation.] A person challenging aggravating circumstance statutes in 

death penalty cases brings such [a challenge] under the Eighth Amendment, 

asserting ‘the challenged provision fails adequately to inform juries what 

they must find to impose the death penalty and as a result leaves them and 

appellate courts with ... open-ended discretion ....’ ” (People v. Superior Court

(Bradway) (2003) 105 Cal.App.4th 297, 309 (Bradway).) In noncapital cases,

like the present one, “the challenge comes under the due process clause and 

‘rest[s] on the lack of notice, and hence may be overcome in any specific case 

where reasonable persons would know that their conduct is at risk.’ ” (Ibid.; 

see People v. Andreasen (2013) 214 Cal.App.4th 70, 79–80.)

Our decision in Bradway is instructive. In that case, the evidence 

showed a murder defendant “decided to kill his victim, established a ruse to 

take her by surprise, prepared a weapon he could conceal when he went to 

her home under the ruse, where he watched and waited for an opportune 

time to strike his unsuspecting victim from a position of advantage, and ... 
15

did so strike her according to his plan.” (Bradway, supra, 105 Cal.App.4th at 

p. 309.) The trial court granted the defendant’s motion to dismiss a lying-inwait special circumstance allegation on grounds that section 190.2, 

subdivision (a)(15) was unconstitutionally vague, but we issued a writ of 

mandate directing the court to reinstate the special circumstance allegation. 

(Id. at pp. 302–303, 311.)

As we explained in Bradway, section 190.2, subdivision (a)(15) 

“provides a clear definition of what is required to satisfy its elements.” 

(Bradway, supra, 105 Cal.App.4th at p. 310.) Applying that clear definition, 

“[a]ny reasonable person considering [the defendant]’s conduct, or planning 

similar acts, would know that those acts constituted murder by means of 

lying in wait and that the special circumstance could be alleged if the person 

in addition specifically intended to kill his victim by such means.” (Ibid.) 

Further, we concluded “the statute is clear as to what conduct would subject 

a person to possible punishment by death or [life without parole],” and thus 

had sufficient guidelines to prevent arbitrary and discriminatory 

enforcement, notwithstanding the fact that the statute permitted the 

prosecutor to exercise discretion whether to seek the death penalty. (Ibid.) 

These principles are equally applicable here. Like the Bradway court, 

we conclude section 190.2, subdivision (a)(15) gives clear notice of the conduct 

that it prohibits and does not pose a danger of arbitrary and discriminatory 

enforcement. (Bradway, supra, 105 Cal.App.4th at p. 310.) We further

conclude any reasonable person in Torres’s position would be on notice that 

the conduct in which he engaged—assuaging the victim’s safety concerns, 

meeting the victim under the pretense of a drug deal, luring the victim into a 

sense of security, excusing himself to covertly load his pistol with 

ammunition, and suddenly shooting the victim in the back of the head—
16

would constitute a surprise attack from a “position of advantage,” (id. at 

p. 309), and justify a lying-in-wait special circumstance finding under section 

190.2, subdivision (a)(15). The application of the lying-in-wait special 

circumstance statute in such a scenario does not offend the due process 

clause.

2

Corpus Delicti Rule

The jury found Torres guilty of possessing drug paraphernalia during 

the initial high-speed chase that ended with his arrest in Mexico. At the time 

of Torres’s arrest, he admitted to authorities that he took four hits off a 

methamphetamine pipe 30 minutes before the chase. Torres claims we 

should reverse his conviction for possession of drug paraphernalia on grounds 

that the prosecution relied exclusively on his extrajudicial admission to prove 

the corpus delicti for the charged offense. 

“In every criminal trial, the prosecution must prove the corpus delicti,

or the body of the crime itself—i.e., the fact of injury, loss, or harm, and the 

existence of a criminal agency as its cause.” (People v. Alvarez (2002) 27 

Cal.4th 1161, 1168, 1169 (Alvarez).) California has adopted a common law 

rule providing that “the prosecution cannot satisfy this burden by relying 

exclusively upon the extrajudicial statements, confessions, or admissions of 

the defendant.” (Id. at p. 1169.) There must be some independent proof, 

apart from the defendant’s extrajudicial admissions, of the corpus delicti. (Id.

at pp. 1170–1171.) The purpose of the corpus delicti rule is to “ensure that 

one will not be falsely convicted, by his or her untested words alone, of a 

crime that never happened.” (Id. at p. 1169; see Rayyis v. Superior Court 

(2005) 133 Cal.App.4th 138, 145.)
17

As the law currently stands, the corpus delicti rule generally applies in 

two scenarios. First, “[w]henever an accused’s extrajudicial statements form 

part of the prosecution’s evidence, the cases have additionally required the 

trial court to instruct sua sponte that a finding of guilt cannot be predicated 

on the statements alone.” (Alvarez, supra, 27 Cal.4th at p. 1170.) Second, 

appellate courts will entertain “claims that a conviction cannot stand because 

the trial record lacks independent evidence of the corpus delicti.”4 (Alvarez,

at p. 1170.) The present case presents an example of the second type of 

application.

“ ‘The amount of independent proof of a crime required [to satisfy the 

corpus delicti rule] is quite small.’ ” (People v. Krebs (2019) 8 Cal.5th 265, 

317; see Alvarez, supra, 27 Cal.4th at p. 1181 [“[T]he modicum of necessary 

independent evidence of the corpus delicti, and thus the jury’s duty to find 

such independent proof, is not great.”].) “The independent evidence may be 

circumstantial, and need only be ‘a slight or prima facie showing’ permitting 

an inference of injury, loss, or harm from a criminal agency, after which the 

defendant’s statements may be considered to strengthen the case on all 

issues.” (Alvarez, at p. 1181.) “ ‘The inference [that a crime has been 

committed] need not be “the only, or even the most compelling, one ... [but 

need only be] a reasonable one.” ’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 

722.)

4 Historically, courts applied the corpus delicti rule in a third scenario—

as a rule governing the admissibility of evidence. (Alvarez, supra, 27 Cal.4th 

at p. 1170.) However, our Supreme Court concluded that the “Right to Truthin-Evidence” provision of article I of the California Constitution abrogated 

the corpus delicti rule to the extent it precluded the admission of a 

defendant’s otherwise relevant and admissible extrajudicial statements. 

(Alvarez, at pp. 1172–1173, 1174–1177.) 
18

As Torres notes, no methamphetamine pipe or photographic evidence of 

a methamphetamine pipe was introduced into evidence. Nevertheless, we 

conclude the prosecution made the slight showing necessary to satisfy the 

corpus delicti rule. During its examination of the arresting sergeant, the 

prosecution questioned the sergeant whether “anything related to the 

consumption of crystal methamphetamine” was found in Torres’s vehicle 

during an inventory search and he replied, “Yes.” The sergeant continued, 

“[F]rom my experience, it appeared to be crystal meth for smoking meth.” 

The prosecution then asked, “How is crystal meth used in a glass pipe?” The 

sergeant replied, “It is used with a lighter and smoked. [¶] ... [¶] ... Holding 

it with one hand and lighting it with another object.”

The arresting sergeant’s testimony, particularly his reference to 

“crystal meth,” was not the model of clarity. As all parties agree, it appears

the sergeant misspoke when he referred to “crystal meth” or there was a 

mistranscription in the reporter’s transcript. Even so, the sergeant’s 

unequivocal testimony that something “related to the consumption of crystal 

methamphetamine” was found during the inventory of Torres’s vehicle, and 

the found item was used “for smoking meth,” was sufficient to establish a 

prima facie case of Torres’s possession of a “device, contrivance, instrument, 

or paraphernalia” used for smoking methamphetamine.5 (Health & Saf. 

Code, § 11364.) 

5 Like the parties, we believe it is clear that either the sergeant misspoke 

or there was a mistranscription in the reporter’s transcript. This is apparent 

from the context of the sergeant’s perplexing reference to “crystal meth for 

smoking meth.” The prosecutor did not seek to clarify the sergeant’s 

testimony and instead began to question the sergeant about how a drug user 

would use a glass pipe to smoke crystal meth. Further, the sergeant testified 

during the preliminary hearing that “a glass pipe used for smoking meth”

was recovered from Torres’s vehicle. 
19

Additionally, the prosecution introduced evidence that Torres was 

under the influence of methamphetamine when he was arrested. An officer 

testified he performed a drug recognition examination of Torres and 

concluded, based on his evaluation and Torres’s clinical signs, that Torres 

was under the influence of a central nervous stimulant like 

methamphetamine. A blood test performed on Torres indicated a positive 

test result for amphetamines and methamphetamines as well. Considered 

together with the sergeant’s testimony that a glass pipe can be used to smoke 

methamphetamine, the evidence establishing that Torres was under the 

influence of methamphetamine gave rise to a reasonable inference that he

came to be under the influence of methamphetamine by smoking 

methamphetamine with a glass pipe or other drug paraphernalia.

3

Evidentiary Error

The People elicited testimony from two of the three tenants who lived 

in the apartment that Torres entered during his unsuccessful pursuit of 

Ceron. Both witnesses were away from the apartment during the burglary. 

However, one of the witnesses testified that the third tenant, who did not 

testify, told him he was home when the burglary occurred. 

Torres challenges the admission of the third tenant’s out-of-court 

statement on hearsay grounds. He asserts the admission of the statement 

prejudiced him because it was the only evidence supporting the jury’s finding 

that a person, other than an accomplice, was present in the apartment during 

the commission of the burglary.

Torres’s trial counsel did not make a timely hearsay objection. Further, 

there is no indication in the record, or argument made on appeal, that a

hearsay objection would have been futile. Therefore, Torres’s hearsay 
20

argument is forfeited. (Evid. Code, § 353 [“A verdict or finding shall not be 

set aside, nor shall the judgment or decision based thereon be reversed, by 

reason of the erroneous admission of evidence unless: [¶] (a) There appears 

of record an objection to or a motion to exclude or to strike the evidence that 

was timely made and so stated as to make clear the specific ground of the 

objection or motion[.]”]; People v. Stevens (2015) 62 Cal.4th 325, 333 [“[T]he 

failure to object to the admission of expert testimony or hearsay at trial 

forfeits an appellate claim that such evidence was improperly admitted.”].)

Torres concedes his counsel did not make a hearsay objection, but 

contends his counsel was ineffective for not objecting. “Establishing a claim 

of ineffective assistance of counsel requires the defendant to demonstrate 

(1) counsel’s performance was deficient in that it fell below an objective 

standard of reasonableness under prevailing professional norms, and 

(2) counsel’s deficient representation prejudiced the defendant, i.e., there is a 

‘reasonable probability’ that, but for counsel’s failings, defendant would have 

obtained a more favorable result.” (People v. Dennis (1998) 17 Cal.4th 468, 

540.) 

In assessing whether Torres’s trial counsel was deficient, we must 

remain mindful that “[a]n attorney may choose not to object for many 

reasons, and the failure to object rarely establishes ineffectiveness of 

counsel.” (People v. Kelly (1992) 1 Cal.4th 495, 540.) Where, as here, the 

record “ ‘ “sheds no light on why counsel acted or failed to act in the manner 

challenged,” ’ we must reject the claim ‘ “unless counsel was asked for an 

explanation and failed to provide one, or unless there simply could be no 

satisfactory explanation.” ’ ” (People v. Caro (2019) 7 Cal.5th 463, 488

(Caro).)
21

Torres’s trial counsel was not asked for an explanation and we are 

persuaded there are satisfactory explanations for his conduct. Competent 

counsel could have determined that a meritorious hearsay objection would 

cause the People to call the third tenant to testify and he might provide 

damaging testimony against Torres, either by positively identifying Torres as 

the perpetrator or by describing the distress he suffered during the burglary. 

Alternatively, competent counsel could have determined a true finding on the 

burglary allegation was “virtually a foregone conclusion,” and Torres’s

prospects of obtaining an acquittal on the more serious murder charge “would 

be improved if the defense refrained from placing its ‘credibility’ at risk” by

making evidentiary objections that, even if sustained, were ultimately 

immaterial to the overall outcome. (People v. Carter (2005) 36 Cal.4th 1114, 

1190.) “Or the jury may have looked bored, and the stimulus of an objection 

may have awakened the jurors’ interest in a counterproductive way.” (People 

v. Ramirez (2019) 40 Cal.App.5th 305, 311.) Because any of these 

explanations is satisfactory, we conclude this is not “the rare case” in which a 

failure to object or request a jury admonition gives rise to a claim of 

ineffective assistance of counsel. (Caro, supra, 7 Cal.5th at p. 514.)

4

Instructional Error

Avila’s role in the murder of Arroyo was disputed in the proceedings 

below. He was not charged with murder, but he was charged with robbery 

(for the taking of methamphetamine from Arroyo) and for being an accessory 

to a felony. Avila pleaded guilty to being an accessory to a felony and 

thereafter provided inculpatory testimony against Torres as a witness for the 

prosecution. 
22

Throughout Torres’s trial, the defense theorized that Avila was the 

shooter and Torres was unaware of Avila’s plans to kill Arroyo. The 

prosecution, on the other hand, maintained that Torres was the shooter and 

Avila was unaware of Torres’s plans to kill Arroyo. In the alternative, it

urged the jury to convict Torres of murder as an aider and abettor even if it 

determined Avila was the shooter.6 Because Avila gave incriminating 

testimony as a prosecution witness and the parties disputed his role, if any, 

in Arroyo’s murder, the trial court gave a standard jury instruction

concerning accomplice testimony (CALCRIM No. 334).

The jury instruction given by the trial court, without objection or 

modification, read in pertinent part as follows: 

Before you may consider the statement or testimony of 

Jaen Soto AVILA as evidence against the defendant regarding 

the crimes charged in Counts 6, 7, 8, and 9, you must decide 

whether Jaen Soto AVILA was an accomplice to those crimes. A 

person is an accomplice if he is subject to prosecution for the 

identical crime charged against the defendant. Someone is 

subject to prosecution if: [¶] 1. He personally committed the 

crime; [¶] [OR] [¶] 2. He knew of the criminal purpose of the 

person who committed the crime; [¶] AND [¶] 3. He intended 

to, and did in fact, aid, facilitate, promote, encourage, or instigate 

the commission of the crime.

The burden is on the defendant to prove that it is more 

likely than not that Jaen Soto AVILA was an accomplice. 

[¶] ... [¶]

If you decide that a witness was not an accomplice, then 

supporting evidence is not required and you should evaluate his 

statement or testimony as you would that of any other witness.

6 During the jury instruction conference, the defense posited that the 

jury might reject all these theories and conclude that Torres “went in there 

for the drug deal and the drug deal went bad and that’s when he shot and 

killed her.”
23

If you decide that a witness was an accomplice, then you 

may not convict the defendant of the crimes charged in Counts 6, 

7, 8, and 9 based on his statement or testimony alone. You may 

use the statement or testimony of an accomplice to convict the 

defendant only if: [¶] 1. The accomplice’s statement or 

testimony is supported by other evidence that you believe; [¶] 

2. That supporting evidence is independent of the accomplice’s 

statement or testimony[]; [¶] AND [¶] 3. That supporting 

evidence tends to connect the defendant to the commission of the 

crimes....

Torres challenges the portion of the instruction placing on him the 

burden of proving that Avila was an accomplice. He contends the allocation 

of the burden of proof impermissibly shifted the prosecution’s burden of 

proving each element of the murder charge beyond a reasonable doubt. In 

assessing Torres’s claim of instructional error, we apply a de novo standard of 

review.7 (People v. Mitchell (2019) 7 Cal.5th 561, 579.)

The standard jury instruction given by the trial court is modeled after 

section 1111, which states in relevant part as follows: “A conviction can not 

be had upon the testimony of an accomplice unless it be corroborated by such 

other evidence as shall tend to connect the defendant with the commission of 

the offense ....” (§ 1111.) An accomplice is “one who is liable to prosecution 

for the identical offense charged against the defendant on trial in the cause in 

7 Torres’s trial counsel did not object to the accomplice testimony 

instruction. “ ‘Generally, a party may not complain on appeal that an 

instruction correct in law and responsive to the evidence was too general or 

incomplete unless the party has requested appropriate clarifying or 

amplifying language.’ ” (People v. Guiuan (1998) 18 Cal.4th 558, 570 

(Guiuan) [defendant failed to object and thus forfeited claim that court erred 

by giving standard accomplice testimony instruction].) However, we exercise 

our discretion to address the merits of Torres’s claim of instructional error, 

notwithstanding his failure to object, to forestall a claim of ineffective 

assistance of counsel. (People v. Riel (2000) 22 Cal.4th 1153, 1192; People v. 

Lua (2017) 10 Cal.App.5th 1004, 1014.)
24

which the testimony of the accomplice is given.” (Ibid.) Thus, an accomplice 

encompasses “ ‘[a]ll persons concerned in the commission of a crime, whether 

... they directly commit the act constituting the offense, or aid and abet in its 

commission ....’ ” (People v. Avila (2006) 38 Cal.4th 491, 564, quoting § 31.)

The requirement that inculpatory accomplice testimony be corroborated 

reflects a legislative determination that such testimony presents reliability 

concerns. (People v. Rodriguez (2018) 4 Cal.5th 1123, 1128.) “To the extent 

an accomplice testifies on behalf of the prosecution, the testimony is subject

to the taint of an improper motive, i.e., that of promoting his or her own self 

interest by inculpating the defendant.” (Guiuan, supra, 18 Cal.4th at p. 568.) 

By precluding a conviction based on accomplice testimony alone, the 

corroboration rule inures to the benefit of the defendant. (See People v. 

Belton (1979) 23 Cal.3d 516, 526; In re Christopher B. (2007) 156 Cal.App.4th 

1557, 1561.)

As noted, Torres contends the instruction erroneously shifted the 

prosecution’s burden of proving each element of the offense. We disagree. 

“ ‘[T]he Due Process Clause “protects the accused against conviction except 

upon proof beyond a reasonable doubt of every fact necessary to constitute 

the crime with which he is charged.” ’ ” (People v. Frye (1998) 18 Cal.4th 894, 

968 (Frye), disapproved on another point in People v. Doolin (2009) 45 Cal.4th 

390, 421, fn. 22.) However, the issue of whether a witness is an accomplice is 

generally a collateral issue that need not be established in the direct chain of 

proof of the crime. (Frye, at pp. 964–968; People v. Tewksbury (1976) 15 

Cal.3d 953, 968 [“The degree of proof by which an accused must establish 

that a witness is an accomplice is the same as in other instances wherein he 

has the burden of establishing a collateral fact ....”]; see People v. Martinez 

(2019) 34 Cal.App.5th 721, 730 (Martinez) [a witness’ status as an accomplice
25

bears on an element of a crime if the crime requires proof of an accomplice].)

Because the issue typically “has no bearing on the prosecution’s proof of any 

element of the charged crime, there is no constitutional impediment to 

placing on a defendant the burden of proving, by a preponderance of the 

evidence, a witnesses’ status as an accomplice.” (Frye, at p. 968; see 

Tewksbury, at p. 965.)

Notwithstanding this general rule, Torres claims the prosecution bore 

the burden of proving that Avila was an accomplice because Torres’s main 

defense was that Avila was the perpetrator of the crime. According to Torres, 

the allocation of the burden of proof, as set forth in the jury instruction,

impermissibly “told jurors that Mr. Torres had to prove by a preponderance of 

the evidence that Avila was the killer.” We are not persuaded. 

As an initial matter, Torres is incorrect that the instruction effectively

required him to prove Avila was the killer. The term “accomplice”

encompasses both direct perpetrators of offenses as well as aiders and 

abettors. (§§ 31, 1111; People v. Avila, supra, 38 Cal.4th at p. 564.) Thus, 

under the instruction given by the trial court, Torres could have established 

Avila’s status as an accomplice if he demonstrated, by a preponderance of the 

evidence, either that Avila was the direct perpetrator or that he aided and 

abetted in the commission of the offense. 

More importantly, the fact that Torres proffered a defense that Avila 

was the shooter had no bearing on whether the prosecution was required to 

prove Avila’s accomplice status in the direct chain of proof. Because acting 

with an accomplice is not an element of the crime of murder, due process did 

not require the prosecution to bear the burden of proving that factual issue 
26

beyond a reasonable doubt.8 (§ 187 [murder statute]; Martinez, supra, 34 

Cal.App.5th at p. 730.)

Even if the instruction was arguably erroneous, the error would be 

harmless under any standard of review. The trial court gave the jury 

numerous instructions conveying that the prosecution bore the burden of 

proof as to each element of the offense of murder, including CALCRIM Nos. 

220 (Reasonable Doubt), 224 (Circumstantial Evidence: Sufficiency of the 

Evidence), 355 (Defendant’s Right Not to Testify), 359 (Corpus Delicti: 

Independent Evidence of a Charged Crime), 520 (Murder), 521 (First Degree 

Murder), and 640 (Verdict Forms). 

The parties reiterated the prosecution’s burden of proof during closing 

arguments as well, further minimizing the possibility of prejudice. For 

example, the prosecution stated as follows: “It’s the People’s burden on all of

these charges to prove to you the truth of the charges on all the counts ....” 

Likewise, the defense informed the jury that “the burden lies entirely on the 

prosecution,” “[i]t’s all on the government,” and the burden was “on the 

government ... to overcome [the] presumption” of innocence. The defense 

further urged the jury to “demand that the government prove each and every 

element beyond a reasonable doubt.” 

Considering the record as a whole, we conclude the alleged 

instructional error was harmless. (Martinez, supra, 34 Cal.App.5th at 

pp. 730–731.)

8 Torres argues in passing that the allocation of the burden of proof 

interfered with his constitutional rights to a fair trial, to present a defense, 

and to argue his case in closing. To the extent these claims are preserved, 

they are without merit. Nothing in the instruction precluded Torres from 

presenting his defense that Avila was the killer. In fact, Torres questioned 

Avila on cross-examination as to whether he shot Arroyo and, during closing 

arguments, argued in detail that Avila was the killer. 
27

5

Fines, Fees, and Penalty Assessments

The trial court imposed the following fines, fees, and penalty 

assessments as part of Torres’s sentence: (1) a restitution fine of $10,000 

(Pen. Code, § 1202.4) and a stayed parole revocation restitution fine of 

$10,000 (id., § 1202.45); (2) a court operations assessment of $640 

(id., § 1465.8); (3) a criminal conviction assessment of $480 (Gov. Code, 

§ 70373); (4) a criminal justice administration fee of $154 (Pen. Code, 

§ 29550.1); (5) a crime prevention programs fine and penalty assessments 

totaling $39 (id., § 1202.5); (6) a drug program fine and penalty assessments 

totaling $615 (Health & Saf. Code, § 11372.7); and (7) a crime lab fine and 

penalty assessments totaling $205 (id., § 11372.5). The court did not hold a

hearing on Torres’s ability to pay.

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

Torres contends the court’s failure to conduct an ability-to-pay hearing before 

imposing these fines, fees, and penalty assessments violated his state and 

federal due process rights. We reject Torres’s argument for three reasons.

First, Torres did not object based on his alleged inability to pay, even 

though the court imposed the statutory maximum restitution fine of $10,000 

and Torres thus had every incentive to assert such an objection. Because 

Torres did not make an ability-to-pay objection, he has forfeited his due 

process argument. (See, e.g., People v. Smith (2020) 46 Cal.App.5th 375, 

395–396; People v. Keene (2019) 43 Cal.App.5th 861, 863–864; People v.

Gutierrez (2019) 35 Cal.App.5th 1027, 1033.)

Second, our court has declined to adopt the Dueñas court’s due process 

analysis. Instead, we have concluded that due process does not “ ‘bar[] the 

imposition of ... assessments and [a] ... restitution fine’ even as to a 
28

defendant who is unable to pay.” (People v. Cota (2020) 45 Cal.App.5th 786, 

795; see People v. Allen (2019) 41 Cal.App.5th 312, 326 [“[W]e would adopt 

the reasoning of the numerous courts that have rejected Dueñas’s due process 

analysis.”].)9 For the reasons set forth in our prior decisions, we reject 

Torres’s due process argument on the merits.10

Third, even if the trial court erred, any error was harmless because 

Torres “will have the ability to earn prison wages over a sustained period.” 

(People v. Johnson (2019) 35 Cal.App.5th 134, 139 (Johnson).) “Prison wages 

range from $12 to $56 per month, depending on the prisoner’s skill level.” 

(Aviles, supra, 39 Cal.App.5th at p. 1076, citing Cal. Code Regs., tit. 15, 

§ 3041.2 and Cal. Dept. of Corrections & Rehabilitation, Adult Institutions 

Operations Manual (2019), art. 12 (Inmate Pay), §§ 51120.1, 51120.6, 

pp. 354–356.) “The state may garnish between 20 and 50 percent of those 

wages to pay the section 1202.4, subdivision (b) restitution fine. (Ibid., citing 

§ 2085.5, subds. (a), (c).)

The fines, fees, and penalty assessments imposed in this case are not 

insubstantial. Nonetheless, Torres was just 23 years old at the time of 

9 See also People v. Petri (2020) 45 Cal.App.5th 82, 92 [rejecting 

“defendant’s reliance on Dueñas to support his contention that due process 

required an ability-to-pay finding”]; People v. Adams (2020) 44 Cal.App.5th 

828, 832 [“Dueñas was wrongly decided”]; People v. Hicks (2019) 40 

Cal.App.5th 320, 329, review granted Nov. 26, 2019, S258946 [the issue of 

whether to require defendants, “many of whom are people of little or no 

means, to pay assessments that help defray the costs of operating the court 

system and restitution fines” is “a question to which, in our view, the federal 

and California Constitutions do not speak and thus have left to our 

Legislature”]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1067, 1068–1069 

(Aviles) [“We find that Dueñas was wrongly decided ....”].)

10 Torres has disavowed any argument that the fines, fees, and penalty 

assessments violate the Eighth Amendment to the federal constitution. 
29

sentencing. As noted in the probation report and by the defense during the 

sentencing hearing, Torres is physically and mentally healthy, is employable, 

has an employment history, has close ties with his family, and denies having 

any debt. Further, as a practical matter, our affirmance of the judgment 

means Torres will remain incarcerated for the remainder of his natural life. 

“While it may take [Torres] considerable time to pay the amounts imposed 

against [him], it is clear [he] can make payments from either prison wages or 

monetary gifts from family and friends during [his] lengthy prison 

sentence[].” (People v. Lowery (2020) 43 Cal.App.5th 1046, 1060–1061; see 

Johnson, supra, 35 Cal.App.5th at p. 139.)

IV

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

I CONCUR:

O’ROURKE, J.
Dato, J., Concurring.

I concur in all aspects of the majority opinion save the discussion 

regarding the defendant’s inability to pay the imposed fines, fees and 

assessments. (See generally People v. Dueñas (2019) 30 Cal.App.5th 1157.) 

As to that issue, I agree with the majority that Torres’s argument is forfeited 

based on this court’s reasoning in People v. Gutierrez (2019) 35 Cal.App.5th 

1027, 1033. (Maj. opn. at p. 27.) But for the reasons expressed in my 

concurring and dissenting opinion in People v. Cota (2020) 45 Cal.App.5th 

786, I do not subscribe to the majority’s wholesale rejection of Dueñas in 

other contexts.1 (Cota, at pp. 800–801.)

DATO, J.

1 The relevance of a criminal defendant’s inability to pay assessed fines 

and fees is currently pending before the California Supreme Court in People 

v. Kopp (2019) 38 Cal.App.5th 47, 96, review granted November 13, 2019, 

S257844. Kopp, another inability-to-pay decision by a different panel of this 

court, agreed with portions of Dueñas and disagreed with others.