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Filed 11/22/21 P. v. Kuykendal CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

RONALD KUYKENDAL,

Defendant and Appellant.

C092843

(Super. Ct. No. 19FE010333)

A jury found defendant Ronald Kuykendal guilty of assault with a semi-automatic 

firearm and being a felon in possession of a weapon. The jury also found true the 

allegation that defendant used a semi-automatic firearm during the assault. The trial 

court sentenced defendant to an aggregate term of 12 years eight months and imposed 

fines and fees. Defendant now claims his conviction for assault should be reversed 

because the trial court failed to instruct the jury it must reach a unanimous verdict as to 

the conduct underlying the assault. Defendant also claims he is entitled to a hearing on

his ability to pay the imposed fines and fees. We conclude a unanimity instruction was 
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not required and defendant forfeited his claim that he is entitled to an ability-to-pay

hearing. We have, however, discovered mandatory fees that must be imposed, fees that 

may no longer be imposed, and an error in the abstract of judgment regarding the nature 

of the felony. As modified, we affirm the judgment.

I. BACKGROUND

Defendant was charged with attempted carjacking (§§ 664, 215, subd. (a)—count 

one)

1 with the allegation that he personally used and discharged a firearm (§§ 12022.5, 

subd. (a), 12022.53, subds.(b) & (c)); assault with a semi-automatic firearm (§ 245, subd. 

(b)—count two) with the allegation he personally used the semi-automatic firearm 

(§ 12022.5, subds. (a) & (d)); and being a felon in possession of a weapon (§ 29800, 

subd. (a)(1)—count three). 

The charges were based on a nighttime altercation near a homeless encampment. 

M.L. lived in a tent near a fence. The fence had a hole, through which people traversed. 

One night, as M.L. sat in his car parked by the fence, defendant approached. M.L. was 

acquainted with defendant; defendant owed him money. M.L. said he got out of his car 

and defendant immediately pointed a gun in his face, then hit him in the head with the 

gun. Defendant then asked M.L. about his car keys and M.L. told him they should be in 

the car. Defendant told M.L. he had five seconds to leave, and as M.L. walked away, he

heard a gunshot. Defendant rummaged through M.L.’s car, and M.L. heard “a couple 

more shots.” Five to 10 minutes after M.L. initially encountered defendant, the police 

arrived. 

Defendant testified he used his firearm in self-defense. Defendantsaid he climbed 

through the hole in the fence, using it as a short-cut to his destination. As defendant 

made his way to the other side of the fence, M.L. yelled, “Who is that moving up on me 

1 Undesignated statutory references are to the Penal Code.
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like that?” Defendant knew M.L. and said M.L. was recently aggressive in seeking 

repayment of a debt for a previous drug deal. When M.L. identified defendant as the 

person coming through the fence, M.L. became angry and tried to punch defendant. 

Defendant then took his gun and hit M.L. across the head. M.L. looked for something in 

his car. Defendant, who knew M.L. to be armed on a previous occasion, thought he was 

looking for a gun. Defendant fired two shots into the ground, then left the area. A 

disassembled BB gun and another weapon were found in or near M.L.’s car. 

The jury found defendant guilty of assault with a semi-automatic firearm and 

found that he used the semi-automatic firearm during the offense. The jury also found 

defendant guilty of being a felon in possession of a weapon. 

At sentencing, the prosecution argued the trial court should impose the upper term 

for the assault conviction, arguing that defendant’s conduct went beyond a “bare-bones” 

commission of the offense. The prosecutor noted defendant hit M.L. over the head and 

fired two shots, constituting multiple actions that could each support a conviction under 

section 245, subdivision (b). The trial court found the offense was serious and, with 

defendant’s “significant background,” the upper term was warranted. The court 

sentenced defendant to consecutive terms: nine years for the assault conviction; three 

years for personally using a firearm during the assault; and eight months for being a felon 

in possession of a weapon. The court also orally imposed a $2,000 restitution fine 

(§ 1202.4), a suspended parole revocation fine in the same amount (§ 1202.45), a $453.62 

jail booking fee, and a $90.65 jail classification fee. 

II. DISCUSSION

A. Unanimity Instruction 

Although not requested by either party at trial, defendant now argues the trial court 

erred in failing to instruct the jury sua sponte that they must reach a unanimous verdict 

(CALCRIM No. 3500) as to whether defendant committed the assault with a semiautomatic weapon. He contends that, because there were two discrete acts upon which a 
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conviction may be based and the prosecution did not elect a theory upon which to 

prosecute, an instruction was required. The People contend that defendant’s actions 

constituted a continuous course of conduct and the unanimity instruction was not 

required. We conclude the trial court did not err in failing to instruct the jury on 

unanimity, as the instruction was not required.

We may consider defendant’s appellate claim even though he did not request a 

unanimity instruction because a trial court should give the instruction even absent a 

request “ ‘ “where the circumstances of the case so dictate.” ’ ” (People v. Covarrubias

(2016) 1 Cal.5th 838, 877.) We review defendant’s claim of instructional error de novo. 

(People v. Hernandez (2013) 217 Cal.App.4th 559, 568.)

“[T]he jury must agree unanimously the defendant is guilty of a specific crime. 

[Citation.] Therefore, cases have long held that when the evidence suggests more than 

one discrete crime, either the prosecution must elect among the crimes or the court must 

require the jury to agree on the same criminal act.” (People v. Russo (2001) 25 Cal.4th 

1124, 1132.) A trial court should give the unanimity instruction when “ ‘there is a risk 

the jury may divide on two discrete crimes and not agree on any particular crime.’ ” 

(People v. Covarrubias, supra, 1 Cal.5th at p. 878.) “There are, however, several 

exceptions to this rule. For example, no unanimity instruction is required if the case falls 

within the continuous-course-of-conduct exception, which arises ‘when the acts are so 

closely connected in time as to form part of one transaction.’ ” (People v. Jennings

(2010) 50 Cal.4th 616, 679.) There also is no need for a unanimity instruction if “ ‘the 

defendant offered the same defense to both acts constituting the charged crime, so no 

juror could have believed defendant committed one act but disbelieved that he committed 

the other, or because “there was no evidence from which the jury could have found 

defendant was guilty of” the crime based on one act but not the other.’ ” (People v. 

Covarrubias, supra, at p. 879, citing People v. Davis (2005) 36 Cal.4th 510, 562.)
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It is uncontested that defendant hit M.L. in the head with the firearm then, within 

minutes, fired his gun at least twice. The People assert that these acts justified use of the 

continuous-course-of-conduct exception to the rule requiring a unanimity instruction. 

We agree and conclude the events happened quickly and sequentially with no intervening 

events such that they were so closely connected in time and location to form a single 

transaction. (See People v. Jennings, supra, 50 Cal.4th at p. 679; see also People v. 

Jefferson (1954) 123 Cal.App.2d 219, 221 [where defendant attacked a police officer 

outside the house with a butcher knife, went inside where she cut the officer with a 

pocketknife, the People were not required to elect between the two knife attacks in 

proving the assault charge as they were a part of the same incident].)

Yet, despite the fact the parties have not raised this point, there is another reason 

to reject defendant’s claim that the instruction was required: Defendant offered the same 

defense to each act that could constitute an assault with a firearm.2 Defendant testified 

that M.L. was the aggressor when he swung at defendant and defendant blocked M.L.’s 

effort to attack by hitting him in the head with the gun. In response, defendant thought, 

M.L. looked for a gun. This prompted defendant to fire two rounds into the ground.3 As 

2 As our Supreme Court has explained, Government Code section 68081 “does not 

require that a party actually have briefed an issue; it requires only that the party had the 

opportunity to do so. By requiring the parties to file opening and responding briefs, the 

California Rules of Court automatically give the parties the opportunity to brief every 

issue that is raised in the appeal. [Citation.] Further, we hold that this also gives the 

parties the opportunity to brief any issues that are fairly included within the issues 

actually raised.” (People v. Alice (2007) 41 Cal.4th 668, 677.) As the People argued that 

the facts fell into an exception to the unanimity rule, the applicability of a different 

exception to the rule is fairly included in the issue raised and the parties had an 

opportunity to address the issue. 

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In the context of discussing prejudice, defendant attempts to distinguish these two acts 

on the basis that he intended to harm M.L. when he hit M.L., but he fired into the ground 

with no such intent to harm M.L. This distinction fails because an assault does not 

require a specific intent to injure another or even a subjective awareness of the risk of 
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the prosecutor argued, the case depended on credibility and who the jury believed was the 

aggressor: defendant or M.L. Whoever the jury believed was the initial aggressor, there 

were no facts presented that would support the possibility that roles were reversed for 

defendant’s subsequent act of firing the gun. In other words, there was no other evidence 

or rational basis for the jury to parse the events and believe defendant’s claim as to one 

event, but not the other. The jury’s verdict of guilty indicates that they did not believe 

the only defense proffered to the assault on M.L.

Defendant relies on this court’s decision in People v. Norman (2007) 

157 Cal.App.4th 460. This court held in Norman that a unanimity instruction was 

required in a prosecution for theft and receiving stolen property after determining there 

were multiple discrete acts, any of which could have constituted the charged offense. (Id. 

at pp. 464-465.) However, the court in Norman did not, and did not need to, address 

exceptions to the unanimity instruction. Unlike Norman, which involved discrete acts 

separated by time and location, the two acts here were part of a continuous course of 

conduct. They were “ ‘so closely connected in time as to form part of one transaction.’ ” 

(People v. Jennings, supra, 50 Cal.4th at p. 679.) Also, the Norman court did not address 

whether there was a common defense to the two acts. Again, this contrasts with the 

situation here, where defendant had the same defense to both assaultive acts.

We find no instructional error.

B. Fines and Fees

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

defendant contends that he is entitled to a hearing on his ability to pay the court imposed 

fines and fees. We conclude defendant forfeited his claim on appeal by failing to raise 

the issue in the trial court.

injury. (See People v. Williams (2001) 26 Cal. 4th 779, 790.) The jury was instructed on 

the elements of assault (see ibid.; CALCRIM No. 875) and found defendant guilty.
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It is a longstanding and well-recognized rule that a defendant must first object and 

demonstrate his inability to pay amounts imposed at sentencing. (See, e.g., People v. 

Nelson (2011) 51 Cal.4th 198, 227 [defendant’s claim that the court erroneously failed to 

consider ability to pay a $10,000 restitution fine is forfeited by the failure to object]; 

People v. Gamache (2010) 48 Cal.4th 347, 409 [same].) This is true regardless of 

whether a defendant’s ability to pay claims are constitutional in nature. (See People v. 

Trujillo (2015) 60 Cal.4th 850, 859 [constitutional exception to forfeiture rule did not 

apply to claim concerning failure to obtain express waiver of an ability to pay hearing].)

Here, defendant was sentenced on September 25, 2020, well over a year after 

issuance of the Dueñas decision. (Dueñas, supra, 30 Cal.App.5th 1157 [decided Jan. 8, 

2019].) Therefore, his failure to raise Dueñas at sentencing forfeits his Dueñas 

arguments by operation of normal rules of appellate review. (People v. Scott (1994) 

9 Cal.4th 331, 351-354 [to preserve a sentencing issue for appellate review, the defendant 

must raise it in the trial court].)

C. Judgment and Abstract 

Although not raised by either party, we note additional sentencing errors which 

require correction. The trial court failed to orally impose a mandatory court operations 

assessment of $80 (§ 1465.8) and a mandatory criminal conviction assessment of $60

(Gov. Code, § 70373). While the abstract of judgment lists these assessments, “[a]n 

abstract of judgment is not the judgment of conviction; it does not control if different 

from the trial court’s oral judgment and may not add to or modify the judgment it 

purports to digest or summarize.” (People v. Mitchell (2001) 26 Cal.4th 181, 185.) 

Because the failure to impose mandatory assessment amounts constitutes an unlawful 

sentence, it may be modified at any time. (See People v. Smith (2001) 24 Cal.4th 849, 

853.) Accordingly, we order these assessments imposed as part of the judgment.

Additionally, a jail booking and classification fee were both orally imposed by the 

trial court but must now be vacated. Assembly Bill No. 1869 was signed into law in 
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September 2020 and became effective on July 1, 2021. The bill is intended to “eliminate 

the range of administrative fees that agencies and courts are authorized to impose to fund 

elements of the criminal legal system.” (Assem. Bill No. 1869 (2019-2020 Reg. Sess.) 

§ 2, eff. Sept. 18, 2020, operative July 1, 2021.) Among other provisions, Assembly Bill 

No. 1869 added Government Code section 6111, also effective July 1, 2021. (Id. at 

§ 11.) It provides that “the unpaid balance of any court-imposed costs pursuant to 

Section 27712, subdivision (c) or (f) of Section 29550, and Sections 29550.1, 29550.2, 

and 29550.3, as those sections read on June 30, 2021, is unenforceable and uncollectible 

and any portion of a judgment imposing those costs shall be vacated.” (Gov. Code, 

§ 6111, subd. (a).)

Under the rule announced in In re Estrada (1965) 63 Cal.2d 740, absent contrary 

evidence (e.g., express savings clause providing only prospective relief), we presume that 

ameliorative changes to the criminal law apply retroactively to all nonfinal judgments of 

conviction.4(Id. at pp. 745, 747-748; People v. Stamps (2020) 9 Cal.5th 685, 699.) 

Given that defendant's judgment was not final before the effective date of Assembly Bill 

No. 1869, the ameliorative changes in the law apply to this case. Accordingly, we 

modify the judgment to strike the fees at issue; specifically, the booking fee and main jail 

classification fee. (Former Gov. Code, § 29550.2, subd. (a).)

Finally, the “serious felony” box in item number one as to count two on the 

abstract is checked in error. Defendant’s presentence conduct credits were properly 

limited at sentencing under section 2933.1, as his conviction of assault with a semiautomatic weapon, combined with his personal use of a firearm is a violent felony under 

section 667.5, subdivision (c)(8). Although the abstract indicates the limitation of 

4 We express no opinion as to whether Assembly Bill No. 1869 retroactively applies to 

all cases, including cases where the judgment of conviction has become final. This issue 

is not before us.
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presentence conduct credits, the associated “violent felony” was incorrectly left blank. 

This represents a clerical error in recording the judgment rendered and may be corrected 

by amendment. (In re Candelario (1970) 3 Cal.3d 702, 705.) We therefore order the 

correction of the abstract of judgment to reflect the offense is a “violent felony,” instead 

of a “serious felony.”

III. DISPOSITION

The judgment is modified to impose a mandatory $80 court operations assessment 

(§ 1465.8) and a mandatory $60 criminal conviction assessment (Gov. Code, § 70373). 

The jail booking and classification fees imposed under Government Code section 

29550.2 are vacated. The trial court is directed to prepare an amended abstract of 

judgment consistent with the above, with the removal of the check in the “serious felony” 

box and the addition of a check in the “violent felony” box in item number one as to 

count two, and to deliver a certified copy of the amended abstract to the Department of 

Corrections and Rehabilitation. As modified, the judgment is affirmed.

/S/

 

RENNER, J.

We concur:

/S/

 

HULL, Acting P. J.

/S/

 

KRAUSE, J.