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Filed 11/30/22 P. v. Laguna CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ARTHUR DANIEL LAGUNA,

Defendant and Appellant. E077324

(Super.Ct.No. RIF1803494)

OPINION

APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni,

Judge. Affirmed as modified

.

Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant

and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assis tant Attorney

General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina and Alan

L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Arthur Daniel Laguna appeals from a conviction for

murder under Penal Code section 187, subdivision (a)

. O n appeal, defendant contends2

that ( 1 ) the trial court erred in instructing the jury with CALCRIM No. 361 ; and (2) the

unpaid portion of defendant’s booking fee must be vacated under Government Code

section 6 111

. For the reasons set forth post , we will vacate defendant’s unpaid portion of

the criminal justice administration fee

. In all other respects, we affirm

.

FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

On April 8, 2021, a jury convicted defen dant of murder under Penal Code section

187, subdivision (a), and found true that defendant personally discharged a firearm

causing great bodily injury or death under Penal Code section 12022.53, subdivision (d)

.

On June 14, 2021, the trial court senten ced defendant to prison for two

consecutive indeterminate terms of 25 years to life, totaling 50 years to life

.

On June 22, 2021, defendant filed a timely notice of appeal

.

B. FACTUAL HISTORY

In the early evening of July 31, 2018, in and around the parking lot of a market in

Perris, a surveillance videotape recorded defendant driving a dark Mitsubishi Galant

aggressively following a white Infiniti sedan

. After pulling alongside and engaging in a

brief conversation with the driver of the Infiniti sedan, Jacinto Placencia (the victim),

defendant parked his car in front of the store

. Defendant then retrieved a .45

- caliber

handgun from the trunk of his car , and watched as the victim drove around t he market

corner where the victim parked his sedan

.

Defendant walked around and confronted the victim

. At the time, the victim was

standing outside his car and texting with his fiancée

. When defendant went toward the3

victim, the victim retreated around the back of his car

. After the victim did not engage

with defendant, defendant stormed back to his vehicle, making gestures at and watching

the victim

.

Defendant then abruptly drove his car around and pulled into a park ing spot next

to the victim ; the vi ctim was now seated inside his sedan

. Defendant, who already made

motions to exit his vehicle before he was fully parked, got out of his vehicle, ran up to the

victim’s passenger

- side window, and s hot the victim with multiple gunshots

. The victim

died from the gunshot wounds

. Defendant then fled the scene

.

When police officers responded to the scene, they found two .45

- caliber shell

casings and an expended bullet inside the victim’s car

. They also found two more .45

-

caliber casings, a bullet fra gment, and an expended bullet on the ground in the vicinity of

the shooting

. The officers did not find any guns inside the victim’s car

.

Later that evening, officers went to defendant’s residence and arrested him

. After

conducting a search for a few hou rs, officers found a blood

- stained black Colt “Series

80,” “1911 style” .45

- caliber semiautomatic handgun, cocked and ready to fire, with a

magazine inserted in it

. Defendant’s fingerprints were on the gun and the magazine, and

forensic testing showed tha t the shell casings at the scene of the murder had been fired

from this gun

.

In defendant’s bedroom, the officers found live .30

- 06

- caliber rifle ammunition,

.45

- caliber handgun ammunition and casings, defendant’s social security card, and

defendant’s dri ver license

. Moreover, a 30

- 06 rifle and a “bipod assembly” were found

in the master bedroom, which was close to defendant’s bedroom

.4

Furthermore, a .45

- caliber ammunition magazine, a box of .45

- caliber

ammunition, and a stand

- alone .45

- caliber ammunitio n round were found inside

defendant’s vehicle

. The driver’s seat of defendant’s vehicle also had blood spattering on

it, and the driver’s side door had an inside

- to

- outside bullet hole in it

.

At trial, defendant testified

. He stated that he aggressively tailed, confronted, and

shot the victim because the victim had threatened defendant , while wielding an AK

- 47

gun, three or four years before

. Moreover, the victim had “mad

- dogged” defendant a few

times when defendant had seen the victim since the gun

- wie lding incident

. Therefore,

defendant said he feared for his life

. Defendant testified that he saw the victim in the

market parking lot on the day of the murder

. Defendant felt the need to confront the

victim to clarify that defendant “didn’t want no pro blems ” with him. When that proved

to be fruitless, defendant, in a fit of fear, shot the victim dead

. Defendant then returned to

his house and placed the gun where the officers found it

. Defendant admitted that the

victim did not appear to have a gun or any other weapon with him on the day of the

murder

.

DISCUSSION

A

. CALCRIM NO. 361

Defendant contends that the trial court erred instructing the jury with CALCRIM

No. 361

. We find any error to be harmless.

We review c laims of instructional error de novo. ( People v. Grandberry (2019) 35

Cal.App.5th 599, 604.) In examining whether CALCRIM No. 361 was erroneously

given, our task is to ascertain if the defendant failed to explain or deny any fact or5

evidence that was within the scope of relevant cross

- examination, and was within the

defendant’s knowledge, which he did not explain or deny. ( Id. at p. 606.) We do not

focus on what was adduced during cross

- examination, but on what could have been asked

of defendant in light of the evidence presented in the prosecution’s case

- in

- chief and the

defendant’s own testimony. ( Id. at p. 608.)

In this case, after defendant testified, the trial court was going to instruct the jury

with CALCRIM No. 361

. Defense counsel objected and the court denied the objection

.

The court then instructed the jury in the language of CALCRIM No. 361 as follows:

“ If the defendant failed in his testimony to explain or deny any evidence against

him, and if he can reasonably be expected to have done so based upon what he knew, you

may consider his failure to explain or deny in evaluating that evidence. Any such failure

is not enough by itself to prove guilt. The People still must prove the defendant guilty

beyond a reasonable doubt. [¶] If the defendant failed to explain or deny, it is up to you

to decide the meaning and importance of that failure.”

In People v. Haynes (1983) 148 Cal.App.3rd 1117, the second appellate district

court of appeal addressed CALCRIM No. 361 ’s predecessor, CALJIC No

. 2.62: “We

hearti ly agree that in light of the hostile reception this instruction has received of late

from legal logicians and semanticists [citations], it will always be unwise of a trial court

to include it among its general instructions without prior inquiry of the par ties concerning

it. In fact, today it should not even be requested by either side unless there is some

specific and significant defense omission that the prosecution wishes to stress or the

defense wishes to mitigate. In the typical case it will add noth ing of substance to the6

store of knowledge possessed by a juror of average intelligence. Furthermore, if its terms

are adhered to, as presumably they will be, its message will be essentially irrelevant in

the absence of some designated glaring hiatus in t he defendant’s testimony. In such an

instance, of course, this lacuna will presumably be the subject of debate and emphasis

during the parties’ arguments to the jury, with or without the neutral guidelines contained

in this recently disfavored instruction .” ( Id

. at pp

. 1119

- 1120.)

However

, the erroneous use of CALJIC No

. 2.62, the predecessor instruction

, was

often found to be harmless

. (See People v. Lamer (2003) 110 Cal.App.4th 1463, 1472.)

The instruction did not direct the jury to draw an adverse inference; it expressly applie d

only if the jury f

ound a failure to explain or deny evidence. It further caution ed that

failure to explain or deny d id not create a presumption of guilt or otherwise relieve the

prosecution of its burden. ( Ibid. )

In this case, we need not determine whether the trial court erroneously instructed

the jury with CALCRIM No. 361 because

, even if the trial court erred in giving the

instruction

, any alleged error was harmless

. Courts have uniformly applied the harmless

error standard adopted in People v. Watson (1956) 46 Cal.2d 818, when reviewing the

erroneous use of CALJIC No

. 2.62, the predecessor instruction to CALCRIM No. 361

.

( People v. Roehler (1985) 167 Cal.App.3rd 353, 393.) In applying that standard, we must

determine whether it is reasonably probable the result would have been more favorable to

defendant had the error not occurred

. ( Watson

, at p

. 836 .) We disagree with defendant’s

contention that we must apply the harmless beyond a reasonable doubt standard under

People v. Chapman (1967) 386 U.S

. 18

. The error, if any, did not violate defendant’s7

federal due process rights

. (See People v. Grandberry

, supra

, 35 Cal.App.5th at pp

. 610

-

611 [rejecting argument that CALCRIM 361 violated federal due process right to a fair

trial]; People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1066

- 1067 [rejecting claim that

CALCRIM No. 361 violated defendant’s due process rights].) 1 Nonetheless, even if we

applied the standard under Chapman , we find that any error was harmless beyond a

reasonable doubt.

In this c ase, there was no dispute that defendant shot the victim to death

. The

evidence clearly showed that defendant aggressively tailed the victim then confronted the

victim

. Defendant then proceeded to shoot the victim, who was unarmed and sitting in

his car, multiple times

. Even defendant admitted this

. Nonetheless, defendant attempted

to argue that he was justified in killing the victim because he was afraid of the victim

.

During his testimony, defendant agreed “that the sum total of times [he] saw [the v ictim]

in, approximately

, three to four years was once on Brown Street and a couple of times on

Hun t er Street

. ” Moreover, during this time, the victim never threatened defendant

.

However, defendant was afraid of the victim because he “would mad

- dog” defe ndant

.

When asked what “mad

- dog” meant, defendant stated that the victim “would look at me

as if I was a rival gang member

. That is what I felt

. [¶]

. . . [¶] [The victim] wouldn’t

take his eyes off me until I looked away

. He was just

— I seen he was trying to be

intimidating to me.” Then defendant again admitted that he “saw [the victim] a total of

three times in three to four years, and he quote ‘mad

- dogged [him]’ ” Defendant

1 Defendant has failed to address the harmless error analysis under Watson in either

his opening or reply brief s

.8

confirmed that the victim never directly threatened defendan t but he was afraid because

of the victim’s reputation

.

Moreover, t here is no evidence in the record that the victim did anything to engage

defendant on the evening of the murder

. In fact, defendant testified that the victim

essentially ignored defendant that night

. Defendant, after seeing the victim, was free to

leave

. However, defendant did not want to leave because he wanted to go try the food at

the new market

. Instead of leaving the store after seeing the victim, whom defendant

stated he feared, d efendant decided to engage with the victim

. It was defendant who first

saw the victim, who wanted to talk to the victim, who proceeded to engage with the

victim, who left

— then went back to the parking lot after retrieving his gun to find the

victim, and t hen got out of the car and shot the victim

. The victim did nothing to make

defendant fear for his life on the night of the murder

. There was no evidence that

supported defendant’s contention that he feared the victim on the evening of the murder.

In add ition to the testimonies at trial, defendant’s conduct that led up to the murder

was captured on video

. The jury evaluated the video in addition to the testimonies and

other evidence presented at trial

.

Based on the above, we find that any error in instructing the jury with CALCRIM

No. 361 was harmless under any standard of review

. The instruction simply permitted an

adverse inference if the jury found the necessary prerequisite of a failure to explain o r

deny

. The jury disbelieved defendant

, not because of the perhaps erroneous inclusion of

a facially inapplicable instruction, but because his testimony was inherently not worthy of9

belief

. Here, there is no doubt that defendant did not fear for his life on the night he

killed the victim.

B

. GOVERNMENT CODE SECTION 6111

At sentencing, the trial court imposed a booking fee of $514.58 under Government

Code section 29550

. Defendant argues and the People concede that the fee must be

vacated.

In 2020, the Legislature passed Assembly Bill No

. 1869 (2019

- 2020 Reg

. Sess.)

(AB 1869) to “eliminate the range of administrative fees that agencies and courts are

authorized to impose to fund elements of the criminal legal system.” (Stats. 2020, ch.

920, § 2. ) R elevant here, AB 1869 added Government Code section 6111

. Both

provisions became effective on July 1, 2021

. ( Pen. Code, § 1465.9, subd. (b); Go v. Code,

§ 6111, subd. (b).)

Government Code section 6111 now provides that criminal justice administration

fees imposed pursuant to Government Code section 29550 are “unenforceable and

uncollectible and any portion of a judgment imposing those costs shall be vacated.”

(Go v. Code, § 6111, subd. (a).)

The plain language of the newly enacted statute dictates that any remaining unpaid

balance of the criminal justice administration fee is now unenforceable and uncollectible

and the portion of the judgment imposing such costs must be vac ated

. (Go v. Code,

§ 6111, subd. (a); People v. Pacheco (2022) 75 Cal.App.5th 207, 214

- 215; People v.

Greeley (2021) 70 Cal.App.5th 609, 626; People v. Lopez

- Vinck (2021) 68 Cal.App.5th

945, 952

- 954; cf

. People v. Clark (2021) 67 Cal.App.5th 248, 259] [an y balance on the10

defendant’s account “for probation supervision fees

— that is, any amounts imposed but

not paid

— is ‘unenforceable and uncollectible’ ” and must be vacated].)

Therefore, we agree with both defendant and the People that the $514.58 booking

fee awarded under Government Code section 29550 be vacated.

DISPOSITION

The portion of the $514.58 booking fee imposed by the trial court pursuant to

Government Code section 29550 that remains unpaid as of July 1, 2021, is vacated

. In all

other respects, the judgment is affirmed

. The clerk of the court is directed to modify the

abstract of judgment to reflect the modification and to forward a certified copy of the

amended abstract to the appropriate authorities. ( People v. Quinonez (2020) 46

Cal.App.5th 457, 467.)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

CODRINGTON

J.

FIELDS

J.