Filed 11/17/14 P. v. Duran CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

GILBERT R. DURAN,

Defendant and Appellant.

 B249683

 (Los Angeles County

 Super. Ct. No. BA401478)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

George G. Lomeli, Judge. Affirmed.

Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Stephen D. Matthews, and 

Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.

___________________
2

Gilbert R. Duran appeals from the judgment entered after a jury convicted him of 

kidnapping, forcible oral copulation, corporal injury to a former cohabitant, making a 

criminal threat and assault by means likely to produce great bodily injury. Duran 

contends the court committed prejudicial error in failing to instruct the jury sua sponte 

with a mistake-of-fact defense and several lesser included offenses, the prosecutor 

committed misconduct during closing argument and the court imposed an unauthorized 

restitution fine. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Amended Information 

An amended information filed February 1, 2013 charged Duran with kidnapping 

(Pen. Code, § 207, subd. (a))1(count 1) forcible oral copulation (§ 288a, subd. (c)(2)(A)) 

(count 2), corporal injury to a cohabitant (§ 273.5, subd. (a)) (count 3), attempt to make 

criminal threats (§§ 644; 422, subd. (a)) (count 4)2and assault by means likely to produce 

great bodily injury (§ 245, subd. (a)(4)) (count 5). It was specially alleged as to counts 1, 

2, 4 and 5 that Duran had suffered three prior convictions for felonies and had served 

three prior separate prison terms within the meaning of section 667.5, subdivision (b). In 

addition, it was specially alleged as to those counts that Duran had suffered one prior 

serious or violent felony conviction within the meaning of both the three strikes law 

(§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and section 667, subdivision (a). Duran 

pleaded not guilty and denied the special allegations.

2. The Trial 

The evidence at trial was directed to incidents on two dates: December 2, 2011 

(counts 1, 2) and August 15, 2012 (counts 3-5). On December 2, 2011 Ramona T. was 

parking her car after returning home late at night from work when Duran, her then live-in 

boyfriend, forced his way into her car, screaming and accusing her of seeing other men. 

He told her to drive to a dark alleyway near their home. Initially she refused. He ordered 

 

1 Statutory references are to the Penal Code. 

2 As discussed below, count 4 was later amended during trial to charge Duran with 

the completed crime of making a criminal threat. 
3

her to “turn on the fucking car right now.” Scared of Duran’s aggressive demeanor and 

wanting to protect her 15-year-old son who was in the home from Duran’s erratic 

behavior, she complied. When they got to the alleyway and Ramona stopped the car, 

Duran forced her to perform oral sex on him, telling her, “Bitch, you need to suck my 

dick like you do—all these motherfuckers that you’re with.” Ramona said no and tried to 

resist but he forced his penis into her mouth and pulled her hair to make her comply. 

After several minutes, Ramona managed to pull away from him. He insisted she drive on 

the freeway and took the steering wheel in an attempt to make her comply with his order, 

but she turned the steering wheel the other direction. At her first opportunity she ran 

from the car to a nearby gas station and asked for help. He followed her inside the 

station’s convenience store. A recorded call from one of the gas station patrons to the 

emergency operator was played for the jury in which Ramona is heard telling the 

emergency operator Duran had just sexually assaulted her. 

On August 15, 2012 Duran, who had since moved out of the home, had come to 

Ramona’s house to retrieve some of his clothes and possessions. Duran had just been 

fired from his job that morning and wanted to speak with Ramona. Ramona thought 

Duran was behaving aggressively and told him she did not want to talk to him. Just as 

Ramona walked with Duran to the front door so he could leave, Duran grabbed her from 

behind and began choking her and dragging her to the living room couch. He told her, 

“I’m going to fucking hurt you, you fucking bitch.” When she reported the attack to law 

enforcement, Ramona said Duran had also threatened to kill her. On direct examination 

at trial, however, Ramona initially denied Duran had threatened her life during the attack. 

Later, on redirect, she admitted Duran had threatened to kill her as he was choking her. 

She explained her inconsistent testimony on this point by stating she was reluctant to 

accuse him. She was afraid of Duran—he was associated with a criminal street gang—

and she once loved him and felt sorry for him. 

Ramona’s son, Julian, also testified. On the night of the August 15, 2012 attack, 

he heard his mother struggling with Duran and ran out of his bedroom to protect her. He 

heard Duran tell his mother, “I’m going to kill you, bitch.” Julian jumped on Duran’s 
4

back, shouting at him to stop hurting his mother. Duran pushed Julian off of him. Duran 

initially started to advance toward Julian, taunting him; then he stopped and walked 

outside alone. A neighbor, Isabel Avilá, testified she ran outside and heard Duran scream 

at Ramona, “I’ll fucking kill you bitch” when both Duran and Ramona were outside. 

Avilá called the police. Ramona suffered bruising to her neck from the attack. 

Immediately after Julian and Ramona testified, the prosecutor requested count 4 of 

the information (attempt to make a criminal threat) be amended to charge the completed 

crime of making a criminal threat. The court granted the request and ordered the 

information amended according to proof. 

Duran testified in his own defense. He denied sexually assaulting Ramona. 

According to Duran, on December 2, 2011 he and Ramona had mutually decided to go to 

the store to get supplies for home. They drove together to a nearby gas station and 

convenience store. They argued in the car; and after Duran went inside the station’s store 

to get the supplies, she followed him and continued shouting at him. Duran emphatically 

denied engaging in any sexual activity with Ramona on December 2, 2011 or even 

touching Ramona while they were in the car together. He did not know Ramona had 

accused him of sexual assault until several months later when formal charges were 

brought against him. 

Duran admitted he and Ramona had an altercation on August 15, 2012, but it had 

been misinterpreted by Ramona, Julian and Avilá. He explained, when he arrived at the 

house that day, Ramona had been “in one of her moods.” They started arguing and at one 

point, he grabbed her shoulder to turn her around so she could face him. Julian saw him 

grab Ramona and, misunderstanding Duran’s intent, jumped on Duran’s back. Duran 

gently nudged Julian off of him and then went outside. Duran denied taunting Julian or 

choking or threatening Ramona. He acknowledged writing letters of apology to Julian 

and Ramona after the August 2012 altercation.
5

3. The Verdict and Sentence

The jury convicted Duran on all counts. In a bifurcated court trial the court found 

each of the prior conviction allegations true. The court sentenced Duran to an aggregate 

state prison term of 19 years.3 

DISCUSSION

1. The Trial Court Did Not Have a Duty To Give Sua Sponte Any of the 

Instructions Duran Identifies in his Appellate Brief

A trial court in a criminal case has a duty to instruct on general principles of law 

applicable to the case (People v. Moon (2005) 37 Cal.4th 1, 37), that is, “‘“‘those 

principles closely and openly connected with the facts before the court, and which are 

necessary for the jury’s understanding of the case.’”’” (People v. Valdez (2004) 

32 Cal.4th 73, 115.) This obligation includes the duty to instruct sua sponte on any lesser 

included offenses if the evidence raises a question as to whether the elements of the lesser 

included offense, but not the greater offense, are present. (Ibid.; People v. Breverman

(1998) 19 Cal.4th 142, 154.) The existence of “‘“any evidence, no matter how weak”’”

will not justify instructions on a lesser included offense; such instructions are required 

only when the evidence is sufficiently substantial that a reasonable jury could conclude 

the lesser offense, but not the greater, was committed. (People v. Banks (2014) 

59 Cal.4th 1113; 1161; People v. Avila (2009) 46 Cal.4th 680, 705; see People v. 

Gutierrez (2009) 45 Cal.4th 789, 826 [a trial court need not instruct the jury on a lesser 

 

3 Duran’s sentence was calculated as follows: 10 years for count 1 (the middle term 

of five years, doubled under the three strikes law), plus five years pursuant to section 667, 

subdivision (a), plus a consecutive four year term for count 2 (one-third the middle term 

of six years, doubled under the three strikes law). The court imposed a term of six years 

for count 3 (the middle term of three years doubled under the three strikes law), 

eight years for count 4 (the middle term of 4 years, doubled under the three strikes law) 

and six years for count 5 (the middle term of 3 years, doubled under the three strikes 

law), with the sentences imposed on counts 3 and 4, to run concurrently with each other 

and with the sentence imposed on counts 1 and 2. The sentence on count 5 was stayed 

pursuant to section 654. 
6

included offense when “no evidence supports a finding that the offense was anything less 

than the crime charged”].)4

A defendant’s reasonable and good faith mistake of fact regarding the victim’s 

consent to sexual activity is a defense to sexual assault. (See People v. Mayberry (1975)

15 Cal.3d 143, 154-155 [a reasonable mistake of fact regarding consent is incompatible 

with the existence of wrongful intent].) In any sexual assault case in which there is 

substantial evidence of the victim’s equivocal conduct that could have led a defendant to 

reasonably and in good faith believe the victim consented to the sexual act, the court must 

instruct the jury, even absent a request, with a mistake-of-fact instruction akin to the one 

found in CALCRIM No. 1015 or CALJIC No. 10.65, commonly known as a Mayberry 

instruction.5 (People v. Maury (2003) 30 Cal.4th 342, 424; People v. Williams (1992) 

4 Cal.4th 354, 362; see Mayberry, at pp. 154-155; Use Note to CALJIC No. 10.65 

(2014 rev.) [Mayberry instruction must be given sua sponte when justified by evidence].) 

The issue whether the evidence warranted a particular instruction is reviewed de 

novo. (People v. Cole (2004) 33 Cal.4th 1158, 1218; People v. Waidla (2000) 22 Cal.4th 

690, 733 [same].)

 

4 The Attorney General’s repeated assertions that Duran has forfeited his arguments 

because he failed to request each of the lesser-included-offense instructions at trial is 

simply wrong. The forfeiture doctrine does not apply to Duran’s argument the court had 

a duty to give the instructions sua sponte based on the evidence presented. (See People v. 

McCurdy (2014) 59 Cal.4th 1063, 1075, fn. 3 [argument that court failed to instruct sua 

sponte on general principle of law relevant to issues raised by evidence does not require 

action on part of defendant at trial in order to preserve argument for appeal]; People v. 

Alvarez (1996) 14 Cal.4th 155, 220 [same]; see generally People v. Breverman, supra, 

19 Cal.4th at p. 154 [instruction on lesser included offense required, even absent a 

request, when there is sufficient evidence to support it].) 

5 CALCRIM No. 1015 provides in part, “The defendant is not guilty of forcible oral 

copulation if he or she actually and reasonably believed that the other person consented to 

the act.”

CALJIC No. 10.65 provides in part, “There is no criminal intent if the defendant 

had a reasonable and good faith belief that the other person voluntarily consented to 

engage in [sexual intercourse] [oral copulation] [sodomy] [or] [penetration of the 

[genital][anal] opening by a foreign object, substance, instrument or device].”
7

a. There was no substantial evidence to support a Mayberry instruction on 

mistake of fact as to the victim’s consent

Here, Duran did not rely on a mistake-of-fact defense; in fact, he denied oral sex 

had occurred. Ramona, on the other hand, testified Duran forcibly overcame her 

resistance and thrust his penis into her mouth against her will. Their “wholly divergent 

accounts create[d] no middle ground from which [Duran] could argue he reasonably 

misinterpreted [Ramona’s] conduct.” (People v. Williams, supra, 4 Cal.4th at p. 362.) 

Nothing in this record justified a sua sponte Mayberry instruction. (See People v. Maury,

supra, 30 Cal.4th at p. 424 [no sua sponte obligation to give Mayberry instruction when 

defendant did not rely on mistake-of-fact defense regarding victim’s consent and there 

was no evidence of the victim’s equivocal conduct to support it]; see also People v. 

Martinez (2010) 47 Cal.4th 911, 954 [when defendant claimed he had no contact with 

victim at all other than observing her being chased by someone else, there was no 

substantial evidence of equivocal conduct or mistaken belief in her consent to warrant 

Mayberry instruction]; Williams, at p. 362 [when victim testified defendant physically 

assaulted her, forced her on the bed and ordered her to remove her clothes or he would 

hurt her and defendant testified victim had initiated the sexual act, no Mayberry 

instruction was required; jury either believed victim initiated and consented to sexual 

intercourse, or defendant forcibly overcame victim’s will—there was no evidence of any 

“middle ground”]; see also Com. to CALJIC No. 10.65 (2014 rev.) [court is not required 

to give Mayberry instruction sua sponte where “defendant does not claim good faith 

belief victim consented and there is no evidence to support such a defense”].) 

b. There was no substantial evidence to support an assault and/or battery

instruction

Duran contends the court had a duty to instruct sua sponte on assault and/or

battery as lesser included offenses of forcible oral copulation. Assuming assault and 

battery are, in fact, lesser included offenses of any forcible sexual assault crime (see 

People v. Hughes (2002) 27 Cal.4th 287, 336 [battery lesser included offense of forcible 

sodomy]; In re Jose M. (1994) 21 Cal.App.4th 1470, 1477 [“[e]very act of rape, of 

course, necessarily includes an assault”]), there was no evidence to warrant either 
8

instruction in this case. The issue at trial regarding count 2 was whether Duran had 

sexually assaulted Ramona, as she claimed, or whether Ramona had fabricated the whole 

story, as Duran maintained, and the two did not have any physical contact in the car. In 

other words, if Ramona’s testimony was credited, Duran was guilty of forcible oral 

copulation; if his was credited, there was no assault, sexual or otherwise. There was no 

substantial evidence upon which the jury could have reasonably absolved Duran of the 

greater crime of forcible oral copulation but not the lesser crimes of assault or battery. 

(See People v. Medina (2007) 41 Cal.4th 685, 700 [“trial court is not required to instruct 

the jury as to all lesser included offenses, only those that ‘find substantial support in the 

evidence’”].) 

c. There was no basis for a nonforcible-oral-copulation instruction

Duran also contends the jury could have believed, regardless of his and Ramona’s 

wholly divergent testimony, that they engaged in oral sex and Ramona consented. He 

argues, “[I]f the jury disregarded her testimony and believed it was a consensual act 

given they were boyfriend and girlfriend for seven years, Ramona’s act [of performing 

oral sex on Duran] would still support the lesser included offense[] of . . . non-forcible 

oral copulation.” 

Duran’s argument is nonsensical. He was charged with oral copulation by force or 

fear (§ 288a, subd. (c)(2)(A)).6 Apart from the complete absence of any evidence from 

which a jury could reasonably infer consent—Ramona insisted the oral copulation was 

forced while Duran claimed it never occurred—there simply is no criminal offense of 

“consensual” or “nonforcible” oral copulation when the “victim” is at least 18 years old 

and thus legally capable of consenting. (Cf. § 288a, subd. (b)(1) [“[e]xcept as provided 

in [s]ection 288, any person who participates in an act of oral copulation with another 

 

6 Section 288a, subdivision (c)(2)(A), provides: “Any person who commits an act of 

oral copulation when the act is accomplished against the victim’s will by means of force, 

violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim 

or another person shall be punished by imprisonment in the state prison for three, six, or 

eight years.”
9

person who is under 18 years of age shall be punished by imprisonment in the state 

prison, or in a county jail for a period of not more than one year”]; (b)(2) [“[e]xcept as 

provided in [s]ection 288, any person over 21 years of age who participates in an act of 

oral copulation with another person who is under 16 years of age is guilty of a felony”].) 

Ramona was 46 years old, and Duran 31 years old, at the time of the attack. Instructions 

on either or both of the offenses in section 288a, subdivision (b)—rooted in the victim’s 

inability to legally consent—were completely unwarranted here.

d. There was no substantial evidence to warrant instructions on felony or 

misdemeanor false imprisonment as lesser included offenses of 

kidnapping

Duran was charged with simple kidnapping. (See § 207, subd. (a) [“[e]very 

person who forcibly, or by any other means of instilling fear, steals or takes, or holds, 

detains, or arrests any person in this state and carries the person into another country, 

state, or county, or into another part of the same county, is guilty of kidnapping”].) 

Simple kidnapping essentially has three elements: “‘(1) a person was unlawfully moved 

by the use of physical force or fear; (2) the movement was without the person’s consent; 

and (3) the movement of the person was for a substantial distance.’” (People v. Byrd 

(2011) 194 Cal.App.4th 88, 101; People v. Jones (2003) 108 Cal.App.4th 455, 462.) 

False imprisonment is the unlawful violation of the personal liberty of another. 

(§ 236; People v. Fosselman (1983) 33 Cal.3d 572, 579.) It occurs when the victim is 

“‘“compelled to remain where he does not wish to remain, or to go where he does not 

wish to go.”’” (People v. Reed (2000) 78 Cal.App.4th 274, 280; accord, People v. 

Von Villas (1992) 10 Cal.App.4th 201, 255.) The offense is a felony when it is effected 

by violence, menace, fraud or deceit. (§ 237; Reed, at p. 280.) Violence, in this context, 

means the exercise of physical force used to restrain “over and above the force 

reasonably necessary to effect” the restraint. (People v. Matian (1995) 35 Cal.App.4th 

480, 484; accord, Reed, at p. 280.) Menace is a threat of harm express or implied by 

word or act. (Matian, at p. 484.) Both misdemeanor and felony false imprisonment by 

violence or menace are lesser included offenses of kidnapping. (People v. Magana
10

(1991) 230 Cal.App.3d 1117, 1120-1121; Reed, at p. 284.) The difference is that the 

greater offense of kidnapping has the additional asportation requirement. (Reed, at 

p. 284.) 

Duran contends the court had a duty to instruct sua sponte on both misdemeanor 

and felony false imprisonment as lesser included offenses to kidnapping in count 1. He 

argues the jury could have believed that Ramona, detained in the car against her will,

subsequently agreed to go willingly with Duran to avoid arguing with him at home in 

front of her son. Accordingly, he urges, there was evidence from which the jury could 

have absolved him of the greater offense of kidnapping—no asportation against her 

will—and convicted him of the lesser included offense of either felony or misdemeanor 

false imprisonment.7 

Contrary to Duran’s contention, there was no evidence from which the jury could 

have found the detention unlawful but the movement consensual. According to Duran’s 

testimony, he and Ramona were in the house together when Ramona said, “Let’s go to 

the store.” They left together and drove to the gas station to pick up supplies. Under 

Duran’s version of events, therefore, there was neither unlawful detention nor unlawful 

asportation and thus no kidnapping or false imprisonment. Ramona, in contrast, testified 

Duran had accosted her in her car, detained her against her will and immediately ordered 

her to drive away. Scared of him and his threatening behavior and wanting to protect 

herself and her teenage son from Duran’s aggression, she complied. On that evidentiary 

record there was no basis for the jury to find Duran guilty of false imprisonment but not 

the greater crime of kidnapping. (See People v. Kelly (1990) 51 Cal.3d 931, 959 [lesserincluded-offense instruction on false imprisonment is not required when the evidence 

 

7 The Attorney General’s contention there was substantial evidence to support the 

kidnapping conviction is not responsive to Duran’s argument. The question raised is not 

whether there was substantial evidence to support the verdict, but whether there was 

substantial evidence from which a reasonable fact finder could have found the defendant 

guilty of the lesser but not the greater offense. The two inquiries are quite different, with 

the latter subject to independent review by this court. (See People v. Cole, supra, 

33 Cal.4th at p. 1218.)
11

establishes the defendant was either guilty of the greater kidnapping offense or not guilty 

at all].) 

Duran also argues false imprisonment instructions were warranted because there 

was “no way Duran could have kidnapped Ramona without also falsely imprisoning her, 

either by violence or menace or without violence or menace.” Indeed, that is the very 

definition of a lesser included offense—the greater offense cannot be committed without 

also committing the lesser. (§ 1159; People v. Hughes, supra, 27 Cal.4th at pp. 365-366 

[a defense is lesser included “when the greater crime ‘cannot be committed’ without also 

committing another offense’”].) Nonetheless, instructions on the lesser included offense 

are appropriate only when there is evidence to support a finding of defendant’s guilt on

the lesser, but not the greater, offense. As explained, that was not possible in this case.

e. There was no substantial evidence to support an instruction on attempt

to make a criminal threat 

In order to prove the completed crime of making a criminal threat as defined in 

section 422, the prosecution must establish: “(1) that the defendant ‘willfully threatened 

to commit a crime which will result in death or great bodily injury to another person,’

(2) that the defendant made the threat ‘with the specific intent that the statement . . . is to 

be taken as a threat, even if there is no intent of actually carrying it out,’ (3) that the 

threat—which may be ‘made verbally, in writing, or by means of an electronic 

communication device’—was ‘on its face and under the circumstances in which it [was]

made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the 

person threatened, a gravity of purpose and an immediate prospect of execution of the 

threat,’ (4) that the threat actually caused the person threatened ‘to be in sustained fear for 

his or her own safety or for his or her immediate family’s safety,’ and (5) that the 

threatened person’s fear was ‘reasonable’ under the circumstances.” (People v. Toledo 

(2001) 26 Cal.4th 221, 228.) Recently, in People v. Chandler (2014) 60 Cal.4th 508, 

525, the Court clarified the threat itself must be objectively threatening, that is, sufficient 

to cause a reasonable person to be in sustained fear.
12

The crime of attempted criminal threat is a lesser included offense of making a 

criminal threat. (People v. Chandler, supra, 60 Cal.4th at p. 515; People v. Toledo, 

supra, 26 Cal.4th at p. 230.) A defendant properly may be found guilty of attempted 

criminal threat whenever he or she intends to make a criminal threat “‘but is thwarted 

from completing the crime by some fortuity or unanticipated event.’ [Citation.] ‘For 

example, if a defendant takes all steps necessary to perpetrate the completed criminal 

threat by means of a written threat, but the crime is not completed only because the 

written threat is intercepted before delivery to the threatened person, the defendant 

properly may be found guilty of attempted criminal threat. Similarly, if a defendant, with 

the requisite intent, orally makes a sufficient threat directly to the threatened person, but 

for some reason the threatened person does not understand the threat, an attempted 

criminal threat also would occur. Further, if a defendant, again acting with the requisite 

intent, makes a sufficient threat that is received and understood by the threatened person, 

but, for whatever reason, the threat does not actually cause the threatened person to be in 

sustained fear for his or her safety even though, under the circumstances, that person 

reasonably could have been placed in such fear, the defendant properly may be found to 

have committed the offense of attempted criminal threat.’” (Chandler, at p. 515.)

Duran contends there was “a serious factual question” whether Ramona had heard 

Duran’s threats, thus requiring the court to instruct sua sponte on the lesser included 

offense of attempted criminal threat. Contrary to Duran’s characterization of the record, 

the factual question presented to the jury was not whether Ramona had heard the threat, 

but whether the threat was made at all. Ramona initially testified, consistently with her 

preliminary hearing testimony but inconsistently with her initial reports to police, that 

Duran did not threaten to kill her. She changed her testimony later on redirect

examination—explaining the reason for her inconsistency—and insisted Duran did 

threaten her life while he was strangling her. Julian testified similarly. Duran, on the 

other hand, testified he never made the threat at all. The jury was left to decide whether 
13

the threat was made, not whether Ramona had heard it if it had been. There was no 

evidence to support giving the attempted criminal threat instruction.8

2. The Prosecutor Did Not Commit Misconduct

Defense counsel told the jury during closing argument “Now it’s incumbent upon 

you, as jurors, that you deliberate and consider each and every charge. Now, each charge 

is different. There are five different counts. You decide each count separately. Although 

you deliberate as a jury, as a whole jury, eventually each and every one of you will make 

your individual vote. After a thorough and full deliberation, the question will come to 

juror number 1: Has count 1 been proven to you beyond a reasonable doubt? Yes or no. 

And after a full and thorough deliberation, if juror number 1 agrees with juror number 2, 

great; if juror number 1 does not agree with juror number 2, then we have to accept that 

too. This is not a compromise vote. It’s not, well 10 of us think so-and-so, the 10 wins. 

It’s not, well, I’ll give you count 2 if you give me count 3. No, it’s not a compromise 

 

8 Although not identified by Duran in his appellate brief as the basis for his 

argument, there was testimony by Avilá that Duran had threatened to kill Ramona while 

the two were outside in front of the house. This was the focus of the court’s concern at 

the preliminary hearing, when Ramona denied Duran had threatened her inside the house 

and did not claim to have heard the outside threat. At the preliminary hearing the court

held Duran to answer to the reduced attempt crime on the theory there was insufficient 

evidence Ramona had heard the outside threat and no evidence any other threat had been 

made. After Ramona testified at trial Duran had threatened her life during the attack 

inside the home, the information was amended to charge the completed crime of making 

a criminal threat.

Mindful of the confusion that could be caused by evidence of two separate threats, 

the prosecutor made clear during closing argument that the charge of making a criminal 

threat in count 4 was directed exclusively to the threat made to Ramona inside the home: 

“[J]ust so it’s clear with everyone here, on the criminal threat charge, [Duran] should be 

convicted for [the] threat that occurs inside, during or immediately after the strangulation, 

the one that is heard by Julian and the one which Ramona finally admitted. Th[e] [other] 

one, there is no evidence that Ramona actually heard this threat, the one that occurs 

outside. . . . [T]he theory that I’m asking you to convict him on, so there is no ambiguity 

about this, is that he threatened her inside the residence, during or immediately after the 

strangulation, as heard by Ramona and her son, Julian.” The prosecutor’s clarification 

negated any reason for giving an attempted criminal threat instruction. 
14

vote. Each juror decides each count for yourself. Has this case been proven to me 

beyond a reasonable doubt?” 

During his closing argument in rebuttal, the prosecutor stated, “[Defense counsel] 

suggested he’s not really up here looking for compromise, the defendant is not looking 

for compromise in this case. But, in a subtle way, they are. They’re saying, ‘Look, I’m 

admitting perhaps the least serious aspect of this case, that I put hands on her and 

scratched her. . . . There is a certain amount of appeal to that argument because, by 

nature, we’re all compromising people, and so it’s tempting to say, well, look, everybody 

in this case, even the defendant, agrees that a cohabitant beating happened. Well, okay. 

So go back in there, and on that verdict form, you fill out guilty. And then there are four 

other verdict forms for four other charges for four other crimes that ha[ve] [a] serious 

impact on Ramona T., and I believe the evidence has shown they happened. I’m asking 

you to do the work on the rest of them. Discuss those charges. Return the verdicts that 

you believe the evidence supports.” 

Duran, whose objection to the argument was overruled, contends the prosecutor’s 

statements improperly and prejudicially maligned the credibility and integrity of defense 

counsel. (See People v. Redd (2010) 48 Cal.4th 691, 734 [“‘[a] prosecutor commits 

misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on 

defense counsel’”]; People v. Hill (1998) 17 Cal.4th 800, 832 [same].) However, nothing 

in the prosecutor’s comments can be reasonably understood as an attack on counsel’s 

character. The comments properly focused the jury on the evidence and the individual 

charges and urged it to reach a verdict on all the charges presented. (Redd, at p. 735.) 

There was nothing deceptive, improper or denigrating about the prosecutor’s remarks; 

they fell well within the wide latitude allowed in commenting on the deficiencies in 

defense counsel’s arguments. (See People v. Bemore (2000) 22 Cal.4th 809, 846 [“the 

prosecutor has wide latitude in describing the deficiencies in opposing counsel’s tactics 

and factual account”].) Accordingly, there was no misconduct under either the state or 

federal Constitutions. (See People v. Samayoa (1997) 15 Cal.4th 795, 841 [“‘“A 

prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises 
15

a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make 

the conviction a denial of due process.’”’ [Citations.] Conduct by a prosecutor that does 

not render a criminal trial fundamentally unfair is prosecutorial misconduct under state 

law only if it involves ‘“‘the use of deceptive or reprehensible methods to attempt to 

persuade either the court or the jury.’”’”].)

3. Duran Has Forfeited His Challenge to the Amount of the Restitution and 

Parole Revocation Fines

At sentencing the court ordered Duran to pay a $280 restitution fine under section 

1202.4, subdivision (b), and a $280 parole revocation fine under section 1202.45. Duran 

contends the amount of the fine was error because, at the time he committed the offenses 

charged in counts 1 and 2 (December 2011) the minimum restitution fine was $200; and 

at the time he committed the offenses charged in counts 3-5 (August 2012), the minimum 

fine was $240.9 (See People v. Souza (2012) 54 Cal.4th 90, 143 [statutory minimum for 

restitution and parole revocation fines are determined by law in effect at time defendant 

committed offense; “imposition of fines constitutes punishment, and is therefore subject 

to proscriptions of the ex post fact clause and other constitutional provisions”].) 

Although he acknowledges the amount of the fine ordered is not unauthorized—at the 

time of the offenses the court had the discretion to impose fines up to $10,000—Duran 

speculates the court must have intended to impose the minimum restitution fine, but 

erroneously believed that minimum was $280. Duran, who did not object at sentencing, 

 

9 Section 1202.4, subdivision (b), requires the court to impose a restitution fine in 

every case in which a person is convicted of a crime “unless it finds compelling and 

extraordinary reasons for not doing so and states those reasons on the record.” At the 

time of the offense, subdivision (b)(1) of section 1202.4 vested the court with the 

discretion to determine the amount of the fine, so long as the amount was not less than 

$200 or more than $10,000. (See Stats. 2011, ch. 45, § 1.) It has since been amended to 

increase the statutory minimum amount from $200 to $240 starting January 1, 2012; to 

$280, starting January 1, 2013; and to $300, starting January 1, 2014. (See Stats. 2012, 

ch. 873, § 1.5.) Section 1202.45 requires the court in every case in which a person is 

convicted of a crime and subject to the possibility of parole to also impose a parole 

revocation fine “in the same amount” as the restitution fine imposed under 

section 1202.4, subdivision (b). 
16

requests we modify the sentence to reduce the fine to the statutory minimum authorized 

for crimes committed before January 1, 2012 ($200) or to the minimum amount for those 

offenses committed before January 1, 2013 ($240). 

As Duran acknowledges, the amount of the restitution and parole revocation fines, 

so long as they are within the statutorily authorized boundaries, is a discretionary matter 

for the trial court. Unless unauthorized (see People v. Scott (1994) 9 Cal.4th 331, 354 [a 

sentence is unauthorized when “it could not lawfully be imposed under any 

circumstances in the particular case”]), a sentence must be objected to in the trial court to 

preserve the objection for appeal. (Ibid.) Here, the record is silent as to the court’s intent 

in imposing the $280 restitution and parole revocation fines; and Duran, perhaps 

recognizing the court’s discretion to impose the fines in far greater amounts, did not 

object to either fine. Duran’s failure to object to the amount of the fine forfeits his 

challenge on appeal. (See People v. Smith (2001) 24 Cal.4th 849, 853 [when record 

shows parole revocation fine was different from restitution fine and neither amount was 

objected to below, defendant forfeited objection to amount of restitution fine; however, 

court could correct the amount of the parole revocation fine, which, imposed in an 

amount different than the restitution fine, was statutorily unauthorized under § 1202.45].) 

DISPOSITION

The judgment is affirmed.

PERLUSS, P. J. 

We concur:

WOODS, J. SEGAL, J.*

 

*

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.