Filed 2/23/21 P. v. Alonso CA2/4

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

OMAR RODRIGUEZ ALONSO,

Defendant and Appellant.

 B300797

 (Los Angeles County

 Super. Ct. No.BA471389)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Enrique Monguia, Judge. Affirmed as 

modified. 

Daniel Milchiker, under appointment by the Court of 

Appeal, for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Zee Rodriguez and Douglas L. Wilson, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

Police officers recovered numerous bindles of cocaine base 

and several hundred dollars in cash during a search of appellant 

Omar Rodriguez Alonso, who was on postrelease community 

supervision (PRCS) at the time. Appellant moved to suppress the 

items as the fruits of a warrantless search. The magistrate

denied the motion, and the trial court later denied appellant’s 

renewed motion to suppress. At trial, the court instructed the 

jury that the reasons for the search had been settled and 

resolved, and were not to be considered for any purpose. The jury 

found appellant guilty of possessing cocaine base with intent to 

sell. 

Appellant now contends the trial court erred in denying his 

motions to suppress. argues that the prosecution failed to 

provide the court with sufficient evidence of the search conditions 

to which he was subject and the arresting officer’s awareness of 

them. Respondent Attorney General responds that appellant 

forfeited these arguments by failing to raise them in connection 

with his first motion to suppress. We agree. We further agree 

with respondent that the trial court properly would have denied 

the motions even if these arguments had been timely made.

Appellant also challenges the jury instruction regarding the 

search, which he argues impermissibly directed a guilty verdict 

and deprived him of the ability to present a defense. We reject 

these contentions. Appellant helped craft the instruction and did 

not object to it below. His arguments concerning the instruction 

accordingly are barred by the doctrine of invited error. 

Appellant requests that we review the sealed record of the 

Pitchess1 hearing to determine whether police personnel records 

were improperly withheld from discovery. Respondent does not 

1Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). 
3

oppose this request, which we grant. We find no abuse of the 

trial court’s discretion. We likewise find no error in the trial 

court’s failure to hold an ability to pay hearing before imposing 

fines and fees. Appellant failed to raise the issue or object to the 

fines and fees at sentencing and therefore forfeited the claim.

We agree with appellant and respondent that the one-year 

prison prior enhancements must be stricken from appellant’s 

sentence. Because the court imposed the maximum sentence, we 

need not and do not remand for resentencing. Instead, we strike 

the enhancements and affirm the judgment as modified. 

Respondent’s motion to augment the record is granted. 

PROCEDURAL HISTORY

An amended information charged appellant with one count 

of possessing cocaine base for sale (Health & Saf. Code, 

§ 11351.5). The amended information further alleged that 

appellant suffered a prior strike conviction (Pen. Code, §§ 667, 

subds. (b)-(j), 1170.12)2 and served two previous prison terms 

(§ 667.5, subd. (b)). 

A jury found appellant guilty as charged. Appellant 

subsequently admitted the priors. The trial court denied 

appellant’s Romero3 motion to strike his strike prior. It 

sentenced appellant to the maximum sentence possible, a total of 

10 years: the high term of four years, doubled to eight years due 

to the strike, plus two one-year terms for the prison priors. The 

court also imposed a $400 restitution fine (§ 1202.4, subd. (b)), a 

$30 criminal conviction assessment (Gov. Code, § 70373), a $40 

2All further statutory references are to the Penal Code 

unless otherwise indicated. 

3People v. Superior Court (Romero) (1996) 13 Cal.4th 497 

(Romero). 
4

court operations assessment (§ 1465.8, subd. (a)(1)), and a 

criminal laboratory analysis fee and associated penalty 

assessments totaling $205. (Health & Saf. Code, § 11372.5, subd. 

(a); § 1464, subd. (a)(1).) Appellant timely appealed. 

FACTUAL BACKGROUND

Los Angeles Police Department (LAPD) Officer Adolfo 

Pacheco testified that he worked in the department’s narcotics 

unit. His job duties included looking for narcotics offenders, often 

on Skid Row, and monitoring individuals with previous narcotics 

convictions and those on probation. 

On September 11, 2018, Pacheco was remotely monitoring 

a portion of Skid Row using a high-definition surveillance 

camera. He observed heavy pedestrian traffic coming and going 

from a particular tent. His training and experience led him to 

suspect that drugs were being bought and sold in the tent. 

Pacheco dispatched other officers to go to the scene while he 

remained at the surveillance post. 

As Pacheco watched his fellow officers at the scene, he saw

a person enter a tent with money and exit it with a clenched 

hand. She was detained and found to have off-white solids 

resembling cocaine base in her possession. Pacheco saw 

appellant subsequently exit the same tent, which he had not seen 

appellant enter. No one exited the tent after appellant.

Appellant left the area and was not detained or searched. 

Two days later, on September 13, 2018, Pacheco was on 

undercover patrol with his partner, LAPD officer Michael Mann, 

when he saw appellant near a tent in the same vicinity of Skid 

Row. Mann parked the officers’ unmarked car and he and 

Pacheco approached the area on foot. Pacheco saw appellant 
5

exiting a tent. As he stepped out of the tent, appellant placed his 

clenched right fist into the right front pocket of his shorts. 

Pacheco detained appellant. Pacheco searched appellant’s 

right front pocket and found 12 individually wrapped bindles 

containing off-white solids resembling cocaine base. Pacheco 

opined that each bindle would be worth $20 if it were cocaine. 

Pacheco recovered a similar bindle and a fifty dollar bill from 

appellant’s left front pocket, and $300 in cash from appellant’s 

right cargo pocket. In the black bag appellant was carrying, 

Pacheco found 21 individually wrapped off-white solids 

resembling cocaine base concealed inside a flashlight and $400 in 

cash. Other officers recovered approximately 144 uniform offwhite rocks and a digital scale from the tent appellant was seen 

exiting. The rocks recovered from the tent were the same as 

those found in appellant’s pockets and in the bag. An LAPD 

criminalist who tested some of the recovered rocks testified that 

they contained cocaine base. 

No drug paraphernalia or empty baggies were found in 

appellant’s possession, and he did not appear to be under the 

influence. Pacheco further testified that appellant did not 

display any signs of heavy cocaine use, such as burned lips or 

fingers or poor hygiene.

Based on his background, training, and experience, Pacheco 

opined that a hypothetical individual in the circumstances 

presented here possessed narcotics for the purpose of sales. 

Pacheco’s opinion remained the same even when the hypothetical 

did not include bindles and a scale recovered from a tent. 

Pacheco’s partner, officer Mann, testified that he and 

Pacheco went to Skid Row in an unmarked vehicle on September 

13, 2018. Mann detained a woman while Pacheco detained 
6

appellant nearby. Mann and LAPD detective Jorge Trejo 

testified that they subsequently searched the tent that appellant 

exited. They recovered a black digital scale and also found four 

bindles of off-white solids concealed inside men’s shoes. Mann 

testified that he did not find any drug paraphernalia or other 

indicia of drug use in the tent, which along with its clean 

condition suggested that the tent was being used to sell drugs. 

The tent did not contain any identification, but Mann believed 

that appellant “was in charge” of the tent.

DISCUSSION 

I. Motions to Suppress 

A. Background

Prior to the preliminary hearing, appellant filed a motion to 

suppress the items recovered during the September 13, 2018 

search.4 In his written motion, appellant asserted only that the 

search was conducted without a warrant. The prosecution filed 

an opposition in which it argued, in relevant part, that the search 

was valid because appellant “was on formal probation with 

search conditions” at the time.5 The prosecution asserted that 

4Respondent has filed an unopposed motion to augment the 

record on appeal with this motion and the prosecution’s 

opposition thereto. We grant the motion. 

5As we noted above and further discuss below, appellant 

was on PRCS at the time of the search. A person placed on PRCS 

after his or her release from prison is “subject to community 

supervision provided by the probation department of the county 

to which the person is being released.” (§ 3451, subd. (a).) 

Additionally, “[t]he person, and his or her residence and 

possessions, shall be subject to search any time of the day or 

night, with or without a warrant, by an agent of the supervising 

county agency or by a peace officer.” (§ 3453, subd. (f).) 
7

Pacheco discovered appellant’s status by “[u]sing department 

resources” prior to the search. 

The magistrate heard the motion to suppress at the 

preliminary hearing, at which Pacheco was the sole witness. 

Pacheco testified that he was a narcotics officer with the LAPD 

whose duties including monitoring individuals who are “narcotic 

registrants”6 or on probation for narcotics. Pacheco testified that 

he recognized appellant on the surveillance camera on September 

11. He further stated that he “advised [his] partners of the - -

Mr. Alon[s]o and his probation conditions” before they went to 

Skid Row.” On September 13, Pacheco “advised my partners of 

my observations and advised him [sic] we were going to conduct a 

probation search.” On that date, Pacheco “contacted” appellant 

on the street, detained him, and “conducted a probation search” 

during which he “recovered off-white solids from his pocket and 

his bag that he had around his shoulder.” Pacheco also testified 

that he recovered “U.S. currency,” and that his partners 

recovered solids and currency from a tent he saw appellant exit. 

On cross-examination, Pacheco stated he had not “personally” 

arrested appellant in the past, and that he “probably” recovered 

“the business card of Mr. Alon[s]o’s probation officer from

[appellant’s] pocket” during the search.

6Former Health and Safety Code section 11590 required 

persons convicted of specified narcotics offenses to “register with 

the chief of police of the city in which he or she resides or the 

sheriff of the county if he or she resides in an unincorporated 

area.” (Health & Saf. Code, § 11590, subd. (a).) Failure to 

register was a misdemeanor offense under former Health and 

Safety Code section 11594. The registration requirement was 

repealed January 1, 2020. 
8

At the conclusion of the hearing, appellant’s counsel argued

in support of the motion to suppress. She stated: “[A]ll of this was 

based on a probation search and the officer testified that he 

recognized Mr. Alon[s]o on September 11th, even though he’d 

never arrested him before. So that just doesn’t make any sense. 

He testified today that it’s possible, and even likely, that he did 

recover Mr. Alon[s]o’s probation officer’s business card when he 

searched Mr. Alon[s]o. [¶] It doesn’t make any sense that he 

would recognize a person that he’d never seen before and 

somehow know their name and be able to run their information 

and find out that they’re on probation. Even if Mr. Alon[s]o is on 

probation, you know he’s - - has a right to be free from arbitrary 

searches and from harassment. And in this case it doesn’t seem 

credible that the officer knew that he was on probation before 

searching him.” 

The magistrate denied the motion immediately, without 

hearing oral argument from the prosecution. 

Appellant, represented by different counsel in superior 

court, subsequently filed a renewed motion to suppress the items 

recovered during the search. In that motion, he again asserted 

only that the search was not supported by a warrant. The 

prosecution did not file a written opposition to the renewed 

motion. 

At the hearing on the renewed motion, appellant’s counsel

argued the following: “[T]here is nothing in the preliminary 

hearing transcript that would, I guess, indicate that Mr. Alon[s]o 

is on probation with search conditions. [Pacheco] says that

[appellant’s] on probation, but there’s nothing in the preliminary 

hearing transcript that specifically points to the fact that

[appellant] actually has search conditions and what the limits or 
9

what the specifics are with regard to the search conditions. ... 

They had no contact with Mr. Alonso two days prior, so the 

question is how did they even link Mr. Alonso to probation. They 

didn’t know his name. They just saw an individual. They didn’t 

know a date of birth. There’s nothing in the preliminary 

transcript that . . . links the person that they saw to probation. 

So those two things are missing from the preliminary hearing 

transcripts, so I don’t see how we get to the officers knowing that 

Mr. Alonso was on probation with specific search conditions.” 

The court interjected, “Well, didn’t the officer testify that 

he recognized your client on the day of the arrest and he 

recognized him, because he had seen him two days previously, so 

he knew who he was.” The court also pointed out that Pacheco 

testified that he advised his partners about the probation 

conditions and that he performed a probation search. It asked, 

“Now, can I not infer from that that what he’s referring to is a 

search pursuant to a condition of probation that allows him to do 

so; otherwise, what would he mean?” Appellant’s counsel

reiterated that there was “nothing that would specifically 

indicate that the officer was aware of any of that at the time that 

the search was done.” She further asserted, “based on the case 

law, [the officer] needs to specifically know the search conditions 

and what those search conditions are prior to conducting a 

probation search; and there’s nothing in the preliminary hearing 

transcript that indicates, based on his testimony, that he was 

aware that there were search conditions and what the search 

conditions were.” 

The court responded, “So I guess his attorney at the 

preliminary hearing really didn’t make that argument, but 

basically made the argument that there was no way this officer 
10

knew about the condition.” The court then heard from the 

prosecution, which argued that the preliminary hearing

transcript “doesn’t include any evidence whatsoever that 

impeached the officer’s statements regarding why he conducted 

the search and his awareness of the defendant’s search 

conditions.” 

The court then asked appellant’s counsel about Pacheco’s 

testimony regarding his duties monitoring individuals on 

probation. Appellant contended that Pacheco was “just speaking 

in general” and “he doesn’t say that he knows that Mr. Alonso is 

on probation for narcotics or he’s a narcotics registrant.” Counsel

asserted that the prosecution “could have asked” further 

questions at the preliminary hearing, and, by neglecting to do so, 

failed to carry its burden of demonstrating that the search was 

valid. 

The court denied the motion based on “the totality” of the 

circumstances. It pointed to Pacheco’s testimony “where he 

basically states that he knew the conditions,” and said he was 

going to conduct a probation search. The court explained, “I 

would have to make the inference that there was a search 

condition. I mean, I don’t know how else to interpret the 

evidence that is before me. . . . I think the magistrate properly 

found that the search was supported by the fact that your client 

had search conditions as part of his probation.” 

B. Standard of Review

A criminal defendant whose motion to suppress is 

unsuccessful at the preliminary hearing “may raise the search 

and seizure matter before the superior court under the standard 

governing a section 995 motion.” (People v. McDonald (2006) 137 

Cal.App.4th 521, 528-529 (McDonald); see also §§ 859c, 1538.5, 
11

subd. (i).) Under that standard, “the superior court’s role is 

similar to that of an appellate court reviewing the sufficiency of 

the evidence to sustain the judgment.” (McDonald, supra, 137 

Cal.App.4th at p. 529.) That is, the superior court “merely 

reviews the evidence; it does not substitute its judgment on the 

weight of the evidence nor does it resolve factual conflicts.” 

(Ibid.)

On appeal from the denial of a renewed motion to suppress, 

we review the original determination made by the magistrate at

the preliminary hearing. (McDonald, supra, 137 Cal.App.4th at 

p. 529.) We draw all presumptions in favor of the factual 

determinations of the magistrate, uphold the magistrate’s 

express or implied findings if they are supported by substantial 

evidence, and measure the facts as found by the magistrate 

against the constitutional standard of reasonableness. (People v. 

Johnson (2020) 50 Cal.App.5th 620, 626.) Accordingly, we view 

the evidence and resolve any evidentiary conflicts in the light 

most favorable to the order denying the motion. (People v. Tully

(2012) 54 Cal.4th 952, 979.) We are also bound to accept the trial 

court’s credibility determinations. (Ibid.) 

“While we defer to the magistrate’s factual findings if they 

are supported by substantial evidence, we exercise our 

independent judgment in determining the legality of the search 

on the facts so found.” (People v. Johnson, supra, 50 Cal.App.5th 

at pp. 626-627.) “Thus, while we ultimately exercise our 

independent judgment to determine the constitutional propriety 

of a search or seizure, we do so within the context of historical 

facts determined by the trial court.” (People v. Tully, supra, 54 

Cal.4th at p. 979.) We affirm the ruling if it is correct on any 
12

theory of law applicable to the case, even if it was made for an 

incorrect reason. (McDonald, supra, 137 Cal.App.4th at p. 529.) 

C. Analysis

The Fourth Amendment guarantees the right to be free 

from unreasonable searches and seizures. (U.S. Const., 4th 

Amend.) Warrantless searches and seizures are per se 

unreasonable, “subject only to a few specifically and welldelineated exceptions.” (Katz v. United States (1967) 389 U.S. 

347, 357.) Among these exceptions are searches conducted 

pursuant to the terms of a subject’s probation, parole, or PRCS, 

so long as they are not conducted arbitrarily, capriciously, or for 

the purposes of harassment. (People v. Douglas (2015) 240 

Cal.App.4th 855, 860-861, 865 (Douglas).) Thus, “an individual 

who has been released from custody under PRCS is subject to 

search (and detention incident thereto) so long as the officer 

knows the individual is on PRCS.” (Id. at p. 865.)

The prosecution always bears the burden of proving, by a 

preponderance of the evidence, that a warrantless search falls 

within an exception. (People v. Williams (1999) 20 Cal.4th 119, 

136-137 (Williams); People v. Romeo (2015) 240 Cal.App.4th 931, 

940.) In the context of probation, that means the prosecution 

must prove that the officer had pre-search knowledge both of the 

defendant’s probationary status and the existence of a search 

condition to which he or she consented as part of his or her 

probation; search conditions are not mandated by statute for 

every probationer, and probation search clauses are not 

uniformly worded. (Douglas, supra, 240 Cal.App.4th at pp. 861, 

863; People v. Bravo (1987) 43 Cal.3d 600, 605-606.) However, 

when a defendant is on parole or PRCS, “[i]t is not necessary for 

the officer to recite or for the People to prove the precise terms of 
13

release, for the search condition is imposed by law, not by 

consent.” (Douglas, supra, 240 Cal.App.4th at p. 865; see §§ 

3067, subd. (b)(3) [parole], 3453, subd. (f) [PRCS].) “As in the 

case of a parole search, an officer’s knowledge that the individual 

is on PRCS is equivalent to knowledge that he or she is subject to 

a search condition.” (Douglas, supra, 240 Cal.App.4th at p. 865.) 

“An officer ‘knows’ a subject is on PRCS if the officer’s belief 

is objectively reasonable” under the totality of the circumstances. 

(Douglas, supra, 240 Cal.App.4th at p. 865.) The question is 

“whether, judged against an objective standard, the facts

available to [the officer] at the moment he [or she] detained [the 

defendant] would have warranted an officer of reasonable caution 

to believe [the defendant] was on PRCS.” (Id. at p. 868.) 

Ignoring that he was on PRCS and therefore subject to a 

statutory search condition at the time he was searched, appellant 

argues that even if “Pacheco’s uncorroborated testimony was 

sufficient to establish that appellant was on probation, this does 

not validate the search,” because “[n]othing in the record 

establishes that appellant was searched within the parameters of 

applicable search conditions.” Appellant relies on People v. 

Romeo, supra, 240 Cal.App.4th 931, in which the appellate court 

reversed the denial of a motion to suppress because the record 

lacked evidence of the scope of the appellant’s probation search 

conditions. He asserts that “no evidence was presented to 

establish that appellant had agreed to search conditions,” and “if 

such conditions existed, no evidence was presented to establish 

that Pacheco had specific knowledge of those conditions.” 

Respondent contends that appellant forfeited these 

arguments by failing to present them in connection with his 

initial motion to suppress. We agree. “[A] defendant who has 
14

sought the suppression of evidence at his or preliminary hearing, 

who then seeks to renew that motion in the superior court, is not 

entitled to advance theories at the second hearing that were not 

raised and litigated during the first.” (People v. Bennett (1998) 68 

Cal.App.4th 396, 407; see also People v. Arebalos-Cabrera (2018) 

27 Cal.App.5th 179, 191.) The Supreme Court has explained the 

process as follows: “[O]nce the prosecution has offered a 

justification for a warrantless search or seizure, defendants must 

present any arguments as to why that justification is inadequate. 

. . . [I]f defendants detect a critical gap in the prosecution’s proof 

or a flaw in its legal analysis, they must object on that basis to 

admission of the evidence or risk forfeiting the issue on appeal.”

(Williams, supra, 20 Cal.4th at p. 130.) “[W]hen defendants move 

to suppress evidence, they must set forth the factual and legal 

bases for the motion . . . . The prosecution then has the burden of 

proving some justification for the warrantless search or seizure, 

after which, defendants can respond by pointing out any 

inadequacies in that justification. [Citation.] Defendants who do 

not give the prosecution sufficient notice of these inadequacies 

cannot raise the issue on appeal. ‘[T]he scope of issues upon 

review must be limited to those raised during argument . . . . This 

is an elemental matter of fairness giving each of the parties an 

opportunity to adequately litigate the facts and inferences 

relating to the adverse party’s contentions.’ [Citation.]” (Id. at p. 

136.)

In the first motion to suppress, appellant asserted only that 

the search was unsupported by a warrant. In its opposition and 

through Pacheco’s testimony at the preliminary hearing, the 

prosecution sought to justify the search as a valid probation 

search. The sole inadequacy appellant pointed out in that 
15

justification was that “it doesn’t seem credible that the officer 

knew that he[appellant] was on probation before searching him.” 

The magistrate implicitly rejected appellant’s credibility 

argument by denying the motion. When he renewed the motion

in superior court, appellant did not mention credibility and 

instead asserted arguments similar to those he presents here. He 

now contends “[t]he crux of appellant’s argument is the same 

raised on appeal, that there was insufficient evidence of 

appellant’s probationary status and there was no evidence 

presented that the officer had the necessary factual predicates to 

justify such a search.” This is true of the arguments he raised in 

connection only with the renewed motion, but not the credibility 

argument he raised with the original. Appellant’s attack on 

Pacheco’s credibility was not sufficient to give the prosecution 

notice of a claim that the evidence was inadequate. The latter 

claim accordingly is forfeited.

Even if the arguments were preserved, we are not 

persuaded that the motion was erroneously denied. We are 

bound to accept the credibility findings of the magistrate. We 

also must uphold the magistrate’s implied findings, which include 

the inference that Pacheco, whose duties included monitoring 

individuals on probation and who testified credibly that he 

recognized appellant, was aware of appellant’s status prior to 

performing the search.

7 (See Douglas, supra, 240 Cal.App.4th at 

p. 871 [“Part of Detective Bailey’s job was to keep tabs on 

probationers and parolees, and he had access to computerized 

7Appellant did not object to the hearsay nature of this 

inference below, nor does he attempt to belatedly raise such an 

objection here. (See Douglas, supra, 240 Cal.App.4th at p. 871, 

fn. 10.)
16

information and updates from the probation department to keep 

him apprised of probationers’ and parolees’ status.”].) The 

testimony of a single, credible witness may constitute substantial 

evidence sufficient to support a conviction or other court finding. 

(Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.) 

Here, those findings were that appellant was subject to 

supervision and that Pacheco was aware of that fact prior to 

performing the search. The totality of the circumstances 

supports the conclusion that Pacheco’s belief that appellant was 

subject to warrantless search was objectively reasonable. 

Appellant notes in his reply brief that all of the references 

below were to probation, and not PRCS. He contends that this 

error demonstrates that Pacheco was unaware of the search

conditions to which he was subject. “In examining the totality of 

the circumstances, however, we cannot turn a blind eye to the 

undisputed fact that defendant was actually on [PRCS] and 

consented to a search condition.” (People v. Hill (2004) 118 

Cal.App.4th 1344, 1351 (Hill).) As in Hill, “we are mindful that 

erroneous parole status information will not validate an 

otherwise unlawful search.” (Id. at p. 1350.) But “the 

exclusionary rule . . . should not devolve into a game, the outcome 

of which depends on a terminological discrepancy.” (Id. at p. 

1351.) In Hill, a dispatcher erroneously told an officer that the 

defendant was on parole. Relying on that information, the officer 

performed a search and recovered stolen property. The officer 

later learned that the defendant in fact was on probation and had 

consented to search conditions. (Id. at p. 1348.) The facts here, 

while not identical, are sufficiently analogous. The magistrate 

inferred that Pacheco learned of appellant’s status while 

performing his duties of monitoring probationers and parolees. It 
17

is not clear whether the resources he consulted provided him with 

erroneous information, or whether he misspoke during the 

preliminary hearing. Either way, there is no indication that 

Pacheco acted unlawfully, and appellant was in fact subject to 

search because he was on PRCS. (See id. at p. 1351.) 

II. Jury Instruction

A. Background

Prior to trial, appellant’s counsel moved to exclude as 

irrelevant and prejudicial under Evidence Code section 402 “any 

mention of my client being on probation or having search 

conditions.” The prosecutor responded that without that context, 

“jurors are going to wonder why they were just randomly 

searching this person.” The court stated that its “inclination 

would be to sanitize it but not let [appellant] imply that there’s a 

reason to question” the validity of the stop and search. The court 

told the parties they could “think about” how they would prefer to 

sanitize the information; “otherwise, I’ll do it my way.” 

The court returned to the issue two days later, prior to 

opening statements. It stated, “We were discussing off the record 

a potential 402 issue. We discussed at some point prior [that the] 

attorneys wanted to have a resolution of this before we start the 

People’s case. It’s been resolved that we would - - or I would tell 

the jurors that the officers searched the defendant and that 

search is not at issue and that they are not to consider it as part 

of their deliberations, with the exact language - - I’m not going to 

quote it because it’s going to come out when I tell the jurors; but I 

do have that written here before me. And that will resolve any 

issues that may have arisen because some of the jurors, as I 

mentioned, brought it up in voir dire about racial profiling. . . .” 
18

The prosecutor asked if the court was “going to explain, 

like, because the jurors had those issues, that is the reason why 

the court is giving that admonishment.” The court said that it 

was: “I’ll read this exactly and then I just ad-lib.” The prosecutor 

responded, “Cause the jurors were talking about their experience 

in terms of racial profiling and being stopped and all that stuff.” 

The court replied, “That makes it more in context of it having 

already been litigated and settled.” The prosecutor said, “Yes.” 

Appellant’s counsel said, “I don’t necessarily agree with that; but 

if the court is ruling that that is what the court is going to do, I 

do not think we need any additional information other than what 

was already submitted to the court as far as direction for the 

jurors with regard to the search.” The court responded, “Well, if 

the search has been litigated and settled, astute jurors are going 

to think, ‘this guy’s on probation or parole. He has no legal 

expectation of privacy. Otherwise, why would they just go up on 

the guy?’” The prosecutor then reiterated, “I think it gives 

context to the stipulation.” Appellant’s counsel then turned the 

conversation to another pending evidentiary issue. The parties 

and court never returned to their discussion. 

Immediately following opening statements, the trial court 

told the jury: “Before we get to the testimony, . . . several 

potential jurors had raised the issue of racial profiling so we were 

working out a stipulation. And let me read this to you now, kind 

of like an instruction. Okay. The officers searched the 

defendant’s person, property, and tent on - - what they suspect to 

be his tent - - September 13th, 2018. The reasons for the search 

are not at issue here, and they have already been settled and 

resolved. You are not to consider the reasons for the search for 

any purpose and not to consider it as part of your deliberations.” 
19

After both sides rested, prior to closing arguments, the 

court and counsel had an off-the-record discussion “as to what 

we’re adding and what we’re deleting” from the proposed jury 

instructions. When they returned to the record, the court made 

the following statement with no objection from either side: “On 

page 4, I’m adding the stipulated language, second to the last 

paragraph that normally is part of [CALCRIM No.] 222, the 

evidence instruction. That’s not in this copy. I’ll be adding that.” 

The court subsequently instructed the jury, both orally and in 

writing, that “The reason for the search of Mr. Alon[s]o’s person, 

personal property and the tent is not at issue here. You are not 

to consider the reason for the search for any purpose and are not 

to discuss it in your deliberations.” 

B. Analysis

Appellant contends the instruction “was erroneous because 

it did nothing but foreclose appellant’s ability to argue that the 

police were lying and/or mistaken about his possessing the drugs. 

As worded, the instruction told the jury that the drugs belonged 

to appellant. By instructing the jury that there had been a valid 

search of his person, property and the tent, it foreclosed his 

ability to challenge the officers’ credibility as to . . . both the 

items found and the reason they were possessed. This violated 

appellant’s right to due process of law and a jury trial under the 

Fifth, Sixth, and Fourteenth Amendments.” Respondent 

contends this argument is barred by the doctrine of invited error. 

We agree with respondent. 

The doctrine of invited error bars an appellant from 

challenging a jury instruction if he or she requested the 

instruction as a conscious and deliberate tactical choice. (People 

v. DeHoyos (2013) 57 Cal.4th 79, 138.) It is designed to prevent 
20

an appellant from obtaining a reversal based on an error made at 

his or her behest. (People v. Coffman and Marlow (2004) 34 

Cal.4th 1, 49.) “In cases involving an action affirmatively taken 

by defense counsel, we have found a clearly implied tactical 

purpose to be sufficient to invoke the invited error rule.” (Ibid.) 

The record here makes clear that appellant’s counsel 

agreed to and participated in the drafting of the contested 

instruction for strategic reasons. The court told the parties that 

it was inclined to “sanitize” the nature of the search for the jury, 

which amounted to a partial grant of appellant’s motion to 

exclude. The court then invited the attorneys to discuss how they 

wished to handle the matter. Two days later, after discussion off 

the record, the court placed on the record that the matter had 

“been resolved” by a written document the parties had prepared

that was now “written here before me.” The document is not 

included in the appellate record, but there does not appear to be 

any dispute that the instruction proposed by the parties is the 

one orally delivered at the beginning and end of trial, and then 

provided to the jury in writing with the rest of the instructions. 

Appellant cannot now complain about an instruction his counsel 

helped draft.

Appellant asserts that, “[h]aving previously objected, 

defense counsel indicated she did not agree with the court’s 

position.” He does not indicate when counsel “previously 

objected,” and the record does not reflect any such objection. His 

further assertion that defense counsel “did not agree with the 

court’s position” does not appear accurate in the context of the 

court’s exchange with counsel. Counsel remarked that she did 

not “necessarily agree with that” after the court said it planned to 

“read this exactly and then I just ad-lib.” Indeed, she followed 
21

that assertion with, “I do not think we need any additional 

information other than what was already submitted to the court 

as far as direction for the jurors with regard to the search.” 

These comments indicate that counsel’s objection was to the 

court’s proposed “ad-lib,” not to the agreed instruction that “was 

already submitted to the court.” They also belie appellant’s claim 

that the court mischaracterized the instruction as a stipulation. 

The situation here is analogous to that in People v. Harris

(2008) 43 Cal.4th 1269, 1317 (Harris)). In Harris, the jury asked 

the court to define the phrase “Life without the possibility of 

parole/Death penalty.” (Harris, supra, 43 Cal.4th at p. 1317.) 

“Before replying, the court inquired whether counsel had 

discussed the matter to work out an answer acceptable to both 

sides. The prosecutor responded that they had, and the answer 

was that the meaning of the terms was ‘exactly what they sound 

like; that there is no other definition of them.’ Defense counsel 

affirmed, ‘that’s correct.’” (Ibid.) The court clarified that counsel 

wanted to provide no further definition, and both counsel stated, 

“yes.” (Ibid.) The court then told the jury to consult the 

instructions it had been given, as “‘there’s no need to further 

define them for you at this point.” (Ibid.) On appeal, the 

defendant argued that the court’s answer “amounted to ignoring 

the jury’s request for a definition.” (Ibid.) The court found that 

argument waived because counsel “specifically agree[d] below to 

the court’s handling of the jury’s question.” (Ibid.) 

Here, defense counsel similarly worked with the prosecutor 

to draft an instruction on the search that was “acceptable to both 

sides.” Collaboration on an instruction reflects conscious and 

deliberate tactical choice. Had counsel wished to preserve the 

issue for appeal, she could have allowed the court to prepare the 
22

instruction and lodged an appropriate objection. The court 

appears to have read the instruction as drafted by the parties 

twice, once at the beginning of trial and once at the end, after 

another off-the-record discussion with counsel to which no 

objection was recorded. Appellant cannot now challenge the 

propriety of the instruction. 

III. Pitchess Review

Appellant filed a Pitchess motion seeking information 

relating to complaints against officers Pacheco and Mann. The 

trial court granted the motion as to both officers. It limited the 

motion to allegations of “perjury, false reporting, and dishonesty” 

made during the preceding five years. The trial court held an in 

camera hearing on April 16, 2019, and concluded there were no 

discoverable records in either officer’s file. 

Appellant now requests, pursuant to People v. Mooc (2001) 

26 Cal.4th 1216, that we independently review the sealed 

transcript of the in camera hearing to determine whether the 

trial court complied with the procedural requirements of a 

Pitchess hearing and provided all discoverable material to him. 

Respondent does not object to appellant’s request. We review the 

trial court’s ruling for abuse of discretion. (People v. Cruz (2008) 

44 Cal.4th 636, 670.)

Our review reveals no error. The trial court complied with 

the procedural requirements of a Pitchess hearing, including 

placing the custodian of records under oath and adequately 

describing the documents reviewed. (See People v. Mooc, supra, 

26 Cal.4th at p. 1229 & fn. 4; People v. Myles (2012) 53 Cal.4th 

1181, 1209.) Its rulings on the discoverability of documents were 

not an abuse of its discretion.
23

IV. Fines and Fees 

Appellant contends that the trial court erred by imposing 

various fines and fees without first conducting a hearing on his 

ability to pay. Appellant contends such a hearing was required 

under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) 

despite his admitted failure to request such a hearing or 

otherwise object to any of the fines and fees imposed.8 We 

disagree. 

At sentencing, the trial court imposed a $400 restitution 

fine pursuant to section 1202.4, subdivision (b). This fine 

exceeded the $300 minimum restitution fine required by statute 

at that time. (See § 1202.4, subd. (b)(1).) Even prior to Dueñas, 

section 1202.4 permitted a defendant to present information 

regarding his or her ability to pay any fine amount above the 

minimum. (§ 1202.4, subd. (c).) Thus, by failing to object to the 

restitution fine and to present evidence he did not have the 

ability to pay it, appellant forfeited the argument that the trial 

court erred in imposing the fine without considering his ability to 

pay. (See People v. Avila (2009) 46 Cal.4th 680, 729; People v. 

Smith (2020) 46 Cal.App.5th 375, 395; People v. Gutierrez (2019) 

35 Cal.App.5th 1027, 1033; People v. Frandsen (2019) 33 

Cal.App.5th 1126, 1154.) Appellant’s challenge to the other fees, 

assessments, and penalties the court imposed is similarly 

8The Supreme Court has granted review in People v. Kopp

(2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844, 

of the following issues: “Must a court consider a defendant’s 

ability to pay before imposing or executing fines, fees, and 

assessments? If so, which party bears the burden of proof 

regarding defendant’s inability to pay?” 
24

precluded by his failure to object to them below. (People v. 

Frandsen, supra, 33 Cal.App.5th at p. 1154.) 

V. One-Year Priors 

The parties agree that the two one-year prison prior 

enhancements added to appellant’s sentence should be stricken

under section 667.5, subdivision (b), as amended by Senate Bill 

No. 136 (SB 136) (Stats. 2019, ch. 590, § 1). The parties are 

correct. Under section 667.5, subdivision (b) as amended, such 

enhancements may only be imposed for certain sexually violent 

offenses, and appellant’s prior prison sentences were not for such 

an offense. Furthermore, although SB 136 became effective on

January 1, 2020, after appellant’s sentencing, we agree with the 

parties that the change in law applies retroactively to cases not 

yet final. (See People v. Lopez (2019) 42 Cal.App.5th 337, 341; In 

re Estrada (1965) 63 Cal.2d 740, 742.)

Because the trial court imposed the maximum possible 

sentence on appellant, there is no need to remand for the trial 

court to again exercise its sentencing discretion. (People v. Lopez, 

supra, 42 Cal.App.5th at p. 342; see also People v. Buycks (2018) 

5 Cal.5th 857, 896, fn. 15.) Accordingly, we will strike the two 

one-year prison prior enhancements and direct the trial court to 

prepare an amended abstract of judgment reflecting the 

modification. 
25

DISPOSITION 

The two one-year sentence enhancements under Penal 

Code section 667.5 are stricken. The judgment is affirmed as 

modified by the striking of the enhancements. The trial court 

shall issue an amended abstract of judgment and forward it to 

the California Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J.

WILLHITE, J.