Filed 5/16/22 P. v. Campos CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL VALDEZ CAMPOS, JR.,

Defendant and Appellant.

 D079874

 (Super. Ct. No. 18CMS-6416)

APPEAL from a judgment of the Superior Court of Kings County, 

Michael J. Reinhart, Judge. Affirmed.

Jennifer A. Mannix, under appointment by the Court of Appeal, for 

Defendant and Appellant.

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

Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine 

Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and 

Respondent. 
2

A jury convicted Daniel Valdez Campos, Jr. of attempted premeditated 

murder (Pen. Code, §§ 664, 187, subd. (a),1 count 1), assault with a firearm 

(§ 245, subd. (a)(2), count 2), possession of a firearm after a felony conviction 

(§ 29800, subd. (a)(1), count 4), and possession of a dirk or dagger (§ 21310, 

count 5), and found true a firearm enhancement allegation (§ 12022.53). 

Campos stipulated that he was convicted of a felony and admitted a serious 

felony and strike prior conviction. The trial court sentenced Campos to 

prison for 44 years to life on count 1 and imposed a consecutive term of 4 

years for count 5. The court stayed sentences for counts 2 and 4 under 

section 654 and awarded Campos presentence custody credits. The court also 

imposed several fines and fees. 

Campos raises several challenges to the judgment on appeal. First, he 

asserts the court abused its discretion and violated his constitutional rights 

to a fair trial by instructing the jury that his flight from the scene of the 

shooting, which formed the basis for the charges against him, showed a 

consciousness of guilt. Specifically, Campos argues that insufficient evidence 

supported the instruction. In the alternative, Campos argues his attorney’s 

failure to object to the instruction constituted ineffective assistance of 

counsel. Campos also asserts (1) the court abused its discretion by failing to 

strike his prior felony conviction; (2) the court imposed an unauthorized 

sentence with respect to count 1; and (3) his counsel was ineffective for failing 

to object to the court’s imposition of fines and fees without first considering 

whether Campos had an ability to pay them. As we shall explain, we reject 

Campos’s arguments and affirm the judgment of conviction.

1 Subsequent undesignated statutory references are to the Penal Code.
3

FACTUAL AND PROCEDURAL BACKGROUND

On the day of the shooting, the victim lived next to a construction yard 

in Corcoran, California. Around 1:45 p.m. that day, the victim was riding his 

bike past the fenced construction yard when he saw Billy Buck, the owner of 

the yard and the victim’s friend. The victim rode inside the yard and stopped 

to chat with Buck, while remaining seated on his bike. As the victim was 

talking, he saw Campos riding a bike toward them from the back of the yard. 

Campos got off of his bike and approached the men. Campos then got 

in the victim’s face and told the victim to stop cutting holes in the 

construction yard fence. The victim responded by pushing Campos with his 

arm and telling Campos he had not cut any holes in the fence. Campos then 

walked back to his bike and pulled something from a bag tied to the 

handlebars. Campos told Buck to get out of the way, then pointed a gun at 

the victim, and pulled the trigger. The weapon made an explosive sound, but 

no bullet was fired, so the victim thought it was a fake gun. Buck moved 

away to the other side of the road. The victim then saw Campos fiddling with 

the gun, then point it at him a second time. Campos pulled the trigger and 

the gun made an explosive noise, but again no actual shot fired. 

Campos then pointed the gun at the victim’s face. The victim got off his 

bike and saw Campos again fiddle with the gun. The victim estimated 

Campos was about 20 feet from him. The victim then saw Campos point the 

gun at him and fire for the third time. The victim felt a bullet hit his upper 

thigh, and heard Campos yell “You think it is fake now? You think it is fake 

now?” The victim grabbed his bike and walked out of the fenced construction 

yard. As he walked away, the victim saw Campos riding away from the yard 

on his bike on Oregon Street, the block next to the yard. 
4

The victim then realized his leg was bleeding heavily. He sat on a 

bench just outside the construction yard. Buck saw the victim bleeding and 

called an ambulance. Paramedics soon arrived and the victim was taken to 

the hospital, where he was treated for the gunshot wound. The bullet passed 

through the victim’s upper thigh and exited his body, missing the femoral 

artery. 

The police arrived on the scene just before the victim was taken to the 

hospital. The victim told the police that Campos, who was known by the 

police to live in the area, was the shooter. The police immediately searched 

the construction yard and the surrounding area but did not locate Campos or 

the gun. Several hours later, an officer patrolling the area where the 

shooting occurred saw Campos walking with his bike, about a mile from the 

construction yard. The officer called for backup and Campos was arrested. 

The arresting officers searched Campos and found a knife with a five-inch 

blade, a glass smoking pipe, marijuana, and a white substance Campos said 

was methamphetamine. The gun used in the shooting was never recovered. 

The Kings County District Attorney subsequently charged Campos 

with attempted premeditated murder (§§ 664, 187, subd. (a), count 1), assault 

with a firearm (§ 245, subd. (a)(2), count 2), possession of methamphetamine 

and a firearm (Health & Saf. Code, § 11370.1, subd. (a), count 3), possession 

of a firearm after a felony conviction (§ 29800, subd. (a)(1), count 4), and 

possession of a dirk or dagger (§ 21310, count 5). The information also 

alleged Campos suffered both serious felony and strike prior convictions 

(§§ 667 and 1170.12) and that Campos fired a gun, causing great bodily 

injury (§ 12022.53). 

Campos pleaded not guilty to the charged offenses and denied the 

enhancement allegations, and the case proceeded to trial. At trial, Campos’s 
5

defense was that he only fired the gun into the ground, not at the victim. In 

support of this theory, Campos’s defense counsel emphasized the variations

in the victim’s statements to police. Specifically, the victim did not tell the 

first officer at the scene or the officer who interviewed him at the hospital 

that Campos pointed the gun at his face, only that Campos fired twice (and 

not three times) at his legs. 

After the conclusion of evidence, the court granted the defense’s motion 

to dismiss count 3 concluding there was insufficient evidence to support the 

charge. Before the jury rendered its verdict, Campos admitted the prior

strike and serious felony allegations under sections 667 and 1170.12. 

Thereafter, the jury returned a guilty verdict on the four remaining counts, 

and also a true finding on the firearm enhancement. Before sentencing, 

Campos moved to dismiss his prior strike conviction under section 1385. The 

court denied the motion. 

The court sentenced Campos to prison for 44 years to life on count 1, 

consisting of 7 years to life, doubled to 14 years for the prior strike conviction, 

plus 25 years to life for the firearm enhancement, plus 5 years for the prior 

serious felony conviction. The court also imposed a consecutive term of 4 

years for count 5. The court stayed sentences for counts 2 and 4 under 

section 654. Finally, the court awarded Campos presentence custody credits 

and imposed various fines and fees, consisting of a court security fee of $160 

under section 1465.8, a criminal conviction assessment of $120 under 

Government Code section 70373, and a restitution fine of $300 under 

section 1202.4. The court also imposed and stayed a parole revocation 

restitution fine of $300 under section 1202.45. Campos timely appealed the 

judgment of conviction. 
6

DISCUSSION

I

Instructional Error

Campos first asserts that reversal is required because the court 

improperly instructed the jury with a portion of CALCRIM No. 372, the

standard flight instruction.2 The trial court instructed the jury that, “If you 

conclude the defendant fled or tried to flee, it is up to you to decide the 

meaning and importance of that conduct. However, evidence that the 

defendant fled or tried to flee cannot prove guilt by itself.” 

Campos maintains that this instruction was not appropriate because 

there was no evidence showing that he fled after the shooting. At the time 

the trial court discussed the proposed jury instructions with the attorneys, 

however, Campos’s defense counsel did not object and stipulated that the 

instruction was appropriate. As an initial matter, therefore, Campos’s claim 

of error is forfeited. (See People v. Bolin (1998) 18 Cal.4th 297, 326.) 

Even if we assume the argument was not forfeited, the claim also fails 

on its merits. The trial court must give a flight instruction whenever the 

prosecution relies on evidence of flight to show a consciousness of guilt. 

(§ 1127c.) “[A] flight instruction is correctly given ‘where there is substantial 

evidence of flight by the defendant apart from his identification as the 

perpetrator, from which the jury could reasonably infer a consciousness of 

guilt.’ ” (People v. Pensinger (1991) 52 Cal.3d 1210, 1245.) “If there is 

2 The full version of the instruction states: “If the defendant fled or tried 

to flee immediately after the crime was committed or after he was accused of 

committing the crime, that conduct may show that he was aware of his guilt. 

If you conclude that the defendant fled or tried to flee, it is up to you to decide 

the meaning and importance of that conduct. However, evidence that the 

defendant fled or tried to flee cannot prove guilt by itself.” 
7

evidence identifying the person who fled as the defendant, and if such 

evidence ‘is relied upon as tending to show guilt,’ then it is proper to instruct 

on flight.” (People v. Mason (1991) 52 Cal.3d 909, 943.) We review the 

propriety of the giving of a jury instruction de novo. (People v. Posey (2004) 

32 Cal.4th 193, 218.) Further, we apply the harmless error standard 

provided in People v. Watson (1956) 46 Cal.2d 818, 836 in reviewing an error 

in giving the flight instruction. (People v. Silva (1988) 45 Cal.3d 604, 628.)

“In general, a flight instruction ‘is proper where the evidence shows 

that the defendant departed the crime scene under circumstances suggesting 

that his movement was motivated by a consciousness of guilt.’ [Citations.] 

‘ “[F]light requires neither the physical act of running nor the reaching of a 

far-away haven. [Citation.] Flight manifestly does require, however, a 

purpose to avoid being observed or arrested.” ’ ” (People v. Bradford (1997) 14 

Cal.4th 1005, 1055.) Here, contrary to Campos’s assertion, there was

sufficient evidence from which the jury could reasonably infer that he fled 

from the scene and that such action reflected a consciousness of guilt. 

After the shooting, the victim witnessed Campos leave the scene on his 

bicycle and ride away from the construction yard where the crime occurred. 

Campos then evaded police for several hours and was found almost a mile 

from the yard. Further, after fleeing the scene, Campos had the opportunity 

to dispose of the gun, which was never recovered. Campos’s actions “logically 

permit[] an inference that his movement was motivated by guilty knowledge.” 

(People v. Turner (1990) 50 Cal.3d 668, 694.) Accordingly, the court did not 

err by giving the flight instruction.

Further, even if there was an insufficient evidentiary basis to support 

the instruction, such error was harmless. The challenged instruction itself 

merely told the jury that it should “decide the meaning and importance of 
8

[Campos’s] conduct” and that “evidence that [Campos] fled or tried to flee 

cannot prove guilt by itself.”3 Thus, even if erroneous, the instruction was

harmless because it did “not assume that flight was established, leaving that

factual determination and its significance to the jury.” (People v. Visciotti

(1992) 2 Cal.4th 1, 61.) The instruction informed the jury that it first had to 

decide whether it believed that the defendant actually fled. Only if the jury 

were to make that preliminary finding would it proceed to decide the 

significance of that conduct. Further, the instruction benefited Campos to 

the extent it cautioned that flight, alone, cannot prove guilt. 

“ ‘The cautionary nature of the instructions benefits the defense, 

admonishing the jury to circumspection regarding evidence that might 

otherwise be considered decisively inculpatory.’ ” (People v. Boyette (2002) 29 

Cal.4th 381, 438.) Given the permissiveness of the instruction and its 

cautionary nature, which benefits a defendant, Campos could not 

demonstrate that it is reasonably probable that he would have obtained a 

more favorable verdict if the trial court had not given the instruction.

Because we conclude there was no error, and that even if the 

instruction were erroneously given, such error was harmless, we also reject 

Campos’s assertion that his counsel was ineffective for not objecting to the 

instruction. (See People v. Price (1991) 1 Cal.4th 324, 387 [“Counsel does not 

render ineffective assistance by failing to make motions or objections that 

counsel reasonably determines would be futile.”].)

3 The court also instructed the jury that some instructions might not 

apply, and that it should only follow the instructions that did apply. 
9

II

Romero Motion

Campos next argues the court abused its discretion by denying his 

request to strike the prior strike felony he admitted before sentencing. As 

noted, before sentencing, Campos asked the trial court to strike his prior 

strike, a 1991 conviction for assault with a firearm. Campos argued 

dismissal of the strike was appropriate because the conviction occurred so 

long ago and because his overall record in the intervening years was 

nonviolent. 

At the hearing on the motion, the prosecutor opposed striking the prior 

conviction because Campos had repeatedly reoffended and had been in and 

out of prison from the time of the prior strike conviction until 2012. The 

prosecutor asserted Campos had only a five year period from 2013 to 2018 

without reoffending, but this did not show Campos was rehabilitated. 

Further, Campos had not held any job in that time. The court denied the 

request, first stating it had read and considered Campos’s brief and was 

aware of its discretion under section 1385. The court found Campos had lived 

a life of crime, noting his criminal conduct had continued from before his 

1991 conviction through 2012 and that Campos had a remarkable record of 

parole violations and return to custody in that timeframe. 

Section 1385, subdivision (a), permits a trial court to “strike factual 

allegations relevant to sentencing, such as the allegation that a defendant 

has prior felony convictions.” (People v. Superior Court (Romero) (1996) 13 

Cal.4th 497, 504.) However, “ ‘the Three Strikes law does not offer a 

discretionary sentencing choice, as do other sentencing laws, but establishes 

a sentencing requirement to be applied in every case where the defendant 

has at least one qualifying strike, unless the sentencing court “conclud[es] 
10

that an exception to the scheme should be made because, for articulable 

reasons which can withstand scrutiny for abuse, this defendant should be 

treated as though he actually fell outside the Three Strikes scheme.” ’ ” 

(People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) “[T]he [T]hree 

[S]trikes law not only establishes a sentencing norm, it carefully 

circumscribes the trial court’s power to depart from this norm and requires 

the court to explicitly justify its decision to do so.” (Id. at p. 378.) 

In exercising its discretion, the court “must consider whether, in light 

of the nature and circumstances of his present felonies and prior serious 

and/or violent felony convictions, and the particulars of his background, 

character, and prospects, the defendant may be deemed outside the scheme’s 

spirit, in whole or in part, and hence should be treated as though he had not 

previously been convicted of one or more serious and/or violent felonies.” 

(People v. Williams (1998) 17 Cal.4th 148, 161.) “[A] trial court does not

abuse its discretion unless its decision is so irrational or arbitrary that no 

reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at 

p. 377.)

Under this standard, we cannot conclude the trial court abused its 

discretion by not striking Campos’s prior strike conviction. The record shows 

the court balanced the relevant facts and considered Campos’s background in 

addition to his criminal record. The trial court’s conclusion that Campos had 

lived a life of crime, including two additional violent offenses, one before and

one after the 1991 conviction, as well as repeated parole violations from 1994 

to 2012, supported the court’s determination that Campos did not fall outside 

the spirit of the Three Strikes law. (See Carmony, supra, 33 Cal.4th at p. 378 

[“Because the circumstances must be ‘extraordinary ... by which a career 

criminal can be deemed to fall outside the spirit of the very scheme within 
11

which he squarely falls once he commits a strike as part of a long and 

continuous criminal record, the continuation of which the law was meant to 

attack’ [citation], the circumstances where no reasonable people could 

disagree that the criminal falls outside the spirit of the three strikes scheme 

must be even more extraordinary.”].)

III

Unauthorized Sentence

Campos next argues that the sentence imposed by the court on count 1 

was unauthorized. He asserts “section 664, subdivision (a) states that a 

defendant who is convicted of attempted premeditated murder, ‘shall be 

punished by imprisonment in the state prison for life with the possibility of 

parole,’ ” and that “[a] person sentenced under this statute becomes eligible 

for parole only after serving a sentence of 7 calendar years” under 

section 3046, subdivision (a). According to Campos, the sentence of “14 years 

to life” is unauthorized and instead should be a life sentence with eligibility 

for parole after 14 years of imprisonment (consisting of parole eligibility after 

7 years, doubled by the prior strike). 

In response, the People assert that the sentence was authorized 

because “[w]hen the punishment of a three strikes defendant is an 

indeterminate term, ‘the Three Strikes law requires a doubling of the 

‘minimum term’ the defendant must serve” and the minimum term for 

attempted premeditated murder is 7 years imprisonment. Further, the 

People assert that, because appellant did not object to the term imposed by 

the trial court, the argument is forfeited. 

As pointed out by the Second District Court of Appeal in People v. Wong

(2018) 27 Cal.App.5th 972 (Wong), the base term of a sentence imposed for a 

violation of section 664, subdivision (a) is commonly referred to “as ‘7 years to 
12

life.’ ” (Id. at p. 977, fn. 4.) “This is common shorthand to refer to a life 

sentence with minimum parole eligibility.” (Ibid.) “For example, the Penal 

Code specifies ‘every person guilty of murder in the second degree shall be 

punished by imprisonment in the state prison for a term of 15 years to life.’

(§ 190, subd. (a).) Thus, a sentence for second degree murder specifies a 

minimum term of 15 years and is part of the sentence that is pronounced.” 

(Ibid.)

Section 664, subdivision (a), uses slightly different terminology, and 

provides a person found guilty of an attempt to commit a willful, deliberate, 

and premeditated murder “shall be punished by imprisonment in the state 

prison for life with the possibility of parole ....” (Wong, supra, 27 Cal.App.5th 

at p. 977, fn. 4.) The statute does not specify the minimum term. Instead the 

minimum parole eligibility for the offense is contained in section 3046, 

subdivision (a), under which a life prisoner must serve “at least 7 calendar 

years,” or any minimum term specified by any other provision of law, 

whichever is greater. (Ibid.)

The footnote cited by Campos in Wong states, “the shorthand 

pronouncement [of 7 years to life] is incorrect because it indicates a minimum 

term exists, rather than a minimum parole eligibility.” (Wong, supra, 27 

Cal.App.5th at p. 977, fn. 4.) This is a distinction, however, without a 

difference. The sentence pronounced here for count 1, as set forth in the form 

abstract of judgment (prepared by the Judicial Council of California for 

indeterminate sentencing), is “life with the possibility of parole,” with “14 

years to life on count 1.” The trial court’s pronouncement at sentencing 

stated the same. 

Thus, the sentence imposed by the trial court indicates Campos is 

eligible for parole after 14 years. This is the sentence authorized under 
13

sections 664, subdivision (a) and 3046, subdivision (a), doubled in accordance 

with the Three Strikes law. (See People v. Jefferson (1999) 21 Cal.4th 86, 89–

90 [“If the current felony is punished by an indeterminate term of 

imprisonment, the Three Strikes law requires a doubling of the ‘minimum 

term’ the defendant must serve. (§ 667, subd. (e)(1) ....) For example, a 

defendant who has a prior strike and who is convicted of a felony punishable 

by a term of 15 years to life in prison will receive a sentence of 30 years (2 

times 15 years) to life.”].) Accordingly, we reject Campos’s assertion that 

remand is necessary to correct his sentence.

IV

Ability to Pay Fines & Fees

Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, 1164 

(Dueñas), in which the court held that imposition of a restitution fine without 

consideration of a defendant’s ability to pay violates the constitutional 

guarantees of due process and to be free of excessive fines, Campos contends 

that his trial counsel was ineffective for failing to object to the court’s

imposition of a $300 restitution fine under section 1202.4, a $120 conviction 

assessment under Government Code section 70373, and a $160 court security 

fee under section 1465.8.4 Campos maintains the record supports an 

inference he has no future ability to pay the fines, fees and assessments

because he was indigent and addicted to drugs before the prosecution of this 

case.

4 Campos’s briefing mentions, but does not challenge, the $300 probation 

revocation restitution fine that is required under section 1202.44 in his list of 

fines. This fine was imposed and stayed by the court, and under the statute 

takes effect only “upon the revocation of probation or of a conditional 

sentence.” (§ 1202.44.)
14

Ineffective assistance of counsel requires a defendant to show that his 

trial attorney’s performance (1) fell below an objective standard of 

reasonableness under prevailing professional norms, and (2) “resulting 

prejudice, i.e., a reasonable probability that, but for counsel’s deficient 

performance, the outcome of the proceeding would have been different.” 

(People v. Mai (2013) 57 Cal.4th 986, 1009.) We agree with the People that 

any assumed error was harmless beyond a reasonable doubt given future 

wages Campos may earn in prison, and in light of the relatively small 

amount of fines, fees, and assessments imposed in this case. (People v. Jones

(2019) 36 Cal.App.5th 1028, 1035 (Jones) [Dueñas error subject to harmless 

error analysis under Chapman v. California (1967) 386 U.S. 18]; People v. 

Johnson (2019) 35 Cal.App.5th 134, 139–140 [same]; see People v. Jenkins

(2019) 40 Cal.App.5th 30, 41, review granted Nov. 26, 2019, S258729, review 

dismissed and cause remanded July 29, 2020 [court may consider wages 

defendant may earn in prison on his ability to pay fines and assessments]; 

People v. Aviles (2019) 39 Cal.App.5th 1055, 1076 [“ ‘ “Ability to pay does not 

necessarily require existing employment or cash on hand.” [Citation.] “[I]n 

determining whether a defendant has the ability to pay a restitution fine, the 

court is not limited to considering a defendant’s present ability but may 

consider a defendant’s ability to pay in the future.” [Citation.] This 

include[s] the defendant’s ability to obtain prison wages and to earn money 

after his release from custody.’ ”] (Aviles); People v. Hennessey (1995) 37 

Cal.App.4th 1830, 1837; § 2085.5 [outlining how a restitution fine balance 

may be collected from prison wages].) 

Campos argues the record shows he cannot pay the $580 imposed 

because at the time of the offense he was indigent and homeless, he never 

attended high school, and he grew up on the streets. He also asserts he will 
15

be unable to pay because he has never been employed and suffers from drug 

addiction. However, Campos obtained a GED in 2019 and the probation 

officer reported that Campos, who was 50 years old at the time, was in “good 

physical health with no mental health issues.” The probation officer also 

specifically found that Campos would be able to obtain employment in state 

prison. 

“[E]very able-bodied” prisoner must work while imprisoned. (§ 2700.) 

“Wages in California prisons currently range from $12 to $56 a month.” 

(Jones, supra, 36 Cal.App.5th at p. 1035, citing in part Cal. Code Regs., 

tit. 15, § 3041.2, subd. (a)(1).) “ ‘The state may garnish between 20 and 50 

percent of those wages to pay the section 1202.4, subdivision (b) restitution 

fine.’ ” (People v. Lowery (2020) 43 Cal.App.5th 1046, 1060; see also Jones, at 

p. 1035, citing § 2085.5, subd. (a) & Cal. Code Regs., tit. 15,

§ 3097, subd. (f).) While it may take some time for Campos to pay the fines, 

fees and assessments, that circumstance does not show he will be unable to 

make payments on these amounts from prison wages. (Aviles, supra, 39 

Cal.App.5th at p. 1077; accord, Lowery, at pp. 1060‒1061 [“While it may take 

[defendants] considerable time to pay the amounts imposed against them, it 

is clear they can make payments from either prison wages or monetary gifts 

from family and friends during their lengthy prison sentences.”].) 

Contrary to Campos’s assertion, the record does not show he is unable 

to work a prison job in order to earn $580 over the time of his lengthy 

sentence. “In our view, this forecloses a meritorious inability to pay 

argument.” (Jones, supra, 36 Cal.App.5th at p. 1035.) Accordingly, his 

counsel’s failure to object, even if below a reasonable standard of 

performance, was harmless and reversal on this basis is not warranted. 
16

DISPOSITION

The judgment is affirmed. 

McCONNELL, P. J.

WE CONCUR:

DATO, J.

DO, J.