Filed 10/27/21 P. v. Yanez CA6

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JESSE VICTOR YANEZ,

Defendant and Appellant.

 H044528

 (Santa Clara County

 Super. Ct. No. C1518651)

Following a trial, defendant Jesse Victor Yanez was convicted of four counts of 

second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c))1and one count of assault 

with a firearm (§ 245, subd. (a)(2)). The jury found the firearm enhancement allegations

attached to each of those robbery counts to be true. The court found true a Three Strikes 

allegation (§§ 667, subds. (b)-(i); 1170.12), a prior serious felony enhancement allegation

(§ 667, subd. (a) (667(a)), and two prior prison term enhancement allegations (§ 667.5, 

subd. (b)). Defendant was found not guilty of committing a robbery of a female victim 

on or about June 9, 2015, as charged in count 3. The trial court sentenced defendant to a 

total of 36 years in prison and imposed on him certain financial obligations, including a 

mandatory minimum restitution fine of $300, a mandatory court operations assessment of 

1 All further statutory references are to the Penal Code unless otherwise specified.
2

$200 (§ 1465.8 [$40 per criminal conviction]), and a mandatory court facilities 

assessment of $150 (Gov. Code, § 70373 [$30 per felony conviction]).2

On appeal, defendant contends that the prosecutor engaged in prejudicial 

misconduct during closing argument by offering his personal knowledge as to the usual 

behavior of robbers after they have made “a successful score” or “heist.” Defendant 

asserts that defense counsel provided ineffective assistance by failing to object to that

prosecutorial misconduct. He also asserts that the trial court (1) violated his due process 

rights under the Fourteenth Amendment to the United States Constitution by instructing 

the jury pursuant to CALCRIM No. 315 that it could consider the witness’s level of 

certainty in evaluating a witness’s identification testimony and (2) erred by not staying

punishment on the assault conviction under section 654. Defendant argues that this court 

must remand the case to allow the superior court to (1) exercise its new discretion to 

strike the 10-year firearm enhancement (§ 12022.53, subd. (b) (12022.53(b)); (2) exercise 

its new discretion to strike the five-year enhancement for a prior serious felony 

conviction pursuant to section 1385, as amended; and (3) hold a hearing on his ability to 

pay the court facilities assessment (Gov. Code, § 70373), the court operations assessment 

(§ 1465.8), and the restitution fine (§ 1202.4. subds. (b), (c)) pursuant to People v. 

Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Lastly, defendant maintains that the 

abstract of judgment must be amended to accurately reflect the firearm enhancements 

attached to counts 1, 2, 4, and 5. We reverse the judgment and remand for resentencing.

I. PROCEDURAL BACKGROUND

An information charged defendant with four counts of second degree robbery 

(counts 1-4) and one count of assault with a firearm (count 5).

3

 The offenses were 

2 At sentencing, the trial court referred to the court operations assessment as a 

court security fee and to the court facilities assessment as a criminal conviction 

assessment.

3 Steven Frank Jaramillo was charged as a codefendant in counts 1-2 and 4-5 of 

the original information.
3

alleged to have occurred in June or July of 2015. As to counts 1 through 4, defendant 

was alleged to have been armed with a firearm within the meaning of section 12022, 

subdivision (a)(1)). The information alleged that defendant had a prior conviction within 

the meaning of the Three Strikes law (§§ 667, subd. (b)-(i); 1170.12) and a prior serious 

felony conviction (§ 667(a)) based on the same prior robbery conviction. It also alleged 

that he had two prior prison terms within the meaning of section 667.5, subdivision (b).

On August 23, 2016, the court stated for the record that the People had submitted a 

first amended information and asked the prosecutor to state the changes for the record. 

The prosecutor indicated that the first amended information charged defendant with a 

second degree robbery committed on June 18, 2015 in a new count 4, which had 

inadvertently been omitted from the original information, to conform to the complaint 

and proof presented at the preliminary examination. The prosecutor indicated that as to 

count 3 and the new count 4, the first amended information alleged a firearm 

enhancement under section 12022.53(b). The prosecutor indicated that the former 

counts 4 and 5 were renumbered as counts 5 and 6 in the first amended information,

similar to the complaint. At that time, the court ordered the first amended information 

filed.4 Defense counsel on behalf of defendant waived arraignment, the advisement of 

rights, and the reading of the first amended information. The court stated for the record 

that the parties would proceed to trial based on the first amended information.

Following a jury trial, defendant was found guilty of all counts except count 3. 

The jury found true the firearm enhancement allegations attached to counts 1, 2, and 5 

4 A Clerk’s Certificate indicates that the clerk was unable to locate the first 

amended information. The parties do not dispute that a first amended information was 

filed and that it renumbered counts 4 and 5 as counts 5 and 6; charged defendant with a 

new count 4, a second degree robbery committed on or about June 18, 2015; and alleged 

that defendant personally used a firearm in the commission of that offense within the 

meaning of section 12022.53(b).
4

(§ 12022, subd. (a)(1)) and the firearm enhancement allegation attached to count 4 

(§ 12022.53(b)). After a court trial, the court found the remaining allegations true.

At the time of sentencing, the trial court considered the many factors in 

aggravation, including the facts that defendant was on postrelease community supervision 

at the time of the offenses and that he had previously absconded from supervision. The 

trial court sentenced defendant to a total term of 36 years.

Specifically, as to count 4, which it selected as the principal term, the court 

imposed a 10-year sentence under the Three Strikes law (5-year upper term doubled; see 

§ 213, subd. (a)(2)) plus a consecutive 10-year firearm enhancement (§ 12022.53(b)). As 

to each of counts 1, 2, and 5, the court imposed a consecutive two-year term plus a 

consecutive four-month firearm enhancement. As to count 6, the court imposed a 

consecutive two-year term. It imposed a consecutive five-year term for the prior serious 

felony conviction enhancement and two one-year prior prison term enhancements.

II. EVIDENCE PRESENTED AT TRIAL

A. Robbery on June 2, 2015 (Count 1)

On June 2, 2015, G.S. was working at his uncle’s laundromat in San Jose. He 

opened the laundromat at 5:55 a.m.

The laundromat had three surveillance cameras outside the business and six or 

seven surveillance cameras inside the business. Surveillance videos were played at trial 

and admitted into evidence.

In the laundromat’s surveillance videos, a gold vehicle could be seen pulling into 

and parking in the lot at 6:00 a.m. Two men wearing black clothing could be seen exiting 

the vehicle and walking toward and entering the laundromat. One man was wearing a 

black hooded sweatshirt with the hood covering his head; he was carrying a red bag. The 

other man was wearing a black hooded sweatshirt and a black beanie; he was carrying a

black bag with light-colored, contrasting straps and trim.
5

When the two men entered the laundromat, G.S. was in the back, attending to the 

machines. The surveillance videos showed the two men walking into the laundromat

through the front door and proceeding through the interior toward G.S. The man with the 

red bag, who was in the lead, dropped the bag and jeans fell out of it; he was holding a 

handgun. The second man followed close behind. He had glasses and a mustache and 

was wearing black gloves.

The armed man pointed his gun at G.S. and said, “Take me to the money and we’ll 

leave.” G.S. was afraid and put up his hands. In the surveillance videos, the man with 

the black duffle bag could be seen walking toward the laundromat’s office near the front 

of the laundromat. G.S was walking behind him with his hands up, followed by the 

armed man.

G.S. went into the office with the two men, and G.S. took roughly a thousand 

dollars out of a desk drawer and handed over the money. In the surveillance videos, G.S. 

could be seen standing with his hands up inside the office while the two men moved 

around the office. The man with the dark duffle bag unsuccessfully attempted to open a 

safe in the office using a cordless saw, which he had apparently brought with him. The 

men asked G.S. for his wallet, which contained credit cards and his ID. The men left the 

laundromat through the front door. The red bag and jeans were left behind.

A surveillance video showed the two men running out of the laundromat toward 

the gold vehicle. The man without a bag got into the vehicle’s driver’s seat, and the

second man with the black duffle bag got into the front passenger seat. The vehicle 

backed up and was driven away.

At trial, G.S. estimated that the older of the two robbers was in his 50’s or 60’s 

and the younger robber was in his 20’s or 30’s. G.S. described the older man as Hispanic 

and said he wore glasses. G.S. said that the younger man had a tattoo under an eye.
6

After the incident, R.C., G.S.’s uncle, received a call from G.S., who said that he

had just been robbed. R.C. drove to the laundromat and found that his nephew was 

“pretty well shook up.” R.C. estimated that $600 to $700 was missing.

Officers with the San Jose Police Department responded to the laundromat. They 

uploaded surveillance video recordings of the robbery.

B. Robbery on June 5, 2015 (Count 2)

R.C.’s nephew did not want to return to work at R.C.’s laundromat. On 

June 5, 2015, R.C. opened the laundromat at approximately 5:45 a.m. On an outside 

surveillance camera monitor, R.C. saw a vehicle driving around. On the surveillance 

videos admitted into evidence, a dark sedan, which appeared to be missing its front right

hubcap and have paint damage to its roof to the rear of a sunroof, could be seen entering 

the laundromat’s back lot and then going in one direction and then the other direction on 

the driveway along the side of the laundromat’s building. A young man then walked

down the driveway from the back lot toward the front of the laundromat. He was 

wearing a black, zippered, hooded sweatshirt with a light-colored logo. As he moved out 

of view of the camera, he was pulling up his hood.

The young man entered the laundromat through the front door and asked R.C. for 

change for a $10 bill. The laundry machines operated with coins. The young man then 

checked his pockets and indicated that he had left his money in the car. Although the

young man had a hood covering his head, R.C. saw his whole face. His sweatshirt had a 

distinctive Nike Air Jordan logo on it. The young man then walked out of the 

laundromat’s back door. At trial R.C. described the young man as “Spanish” and said he 

had a mustache, a tattoo near an eye, and appeared to be in his 20’s.

On a surveillance video, the young man and a second man, also dressed in black 

clothing, could be seen speaking to each other. The young man, now wearing white 

gloves, appeared to cover his nose and lower face with something black. The young man
7

walked back toward the laundromat’s back lot. The second man, who was carrying a 

bag, walked down the driveway toward the front of the laundromat.

On a surveillance camera monitor, R.C. saw the young man with a black bandana 

across his face reenter the laundromat through the back door. The young man was 

carrying a gun. R.C. figured it was “the same guy that robbed” the laundromat three days 

earlier, and R.C. took the money out of the drawer and put it in the back room.

The second man passed by the laundromat’s front doors, and then he walked into 

the laundromat and moved in behind the young robber. The second man was wearing 

black gloves and carrying a bag and a Taser. The young robber slid back the rack of a 

silver pistol, which made a clicking noise, put the gun to R.C.’s face, and asked for “all 

the money.” R.C. was standing in the office behind a Dutch door, the lower half of 

which was closed. R.C. opened the lower half-door and said to the young man, “[Y]ou 

know where it is[;] you can go get it.” The young man walked to the drawer from which 

the money had been taken on June 2, 2015, opened the drawer, and took the remaining 

money, approximately $40 to $50.

The second man, who appeared to R.C. to be in his 50’s or 60’s, walked into the 

office with a Taser and was “Tasering” in R.C.’s direction. The second man was also 

concealing his lower face, but his “mask” fell down. He tried to cover his face with his 

arm, but his arm dropped once in a while. He had wrinkly skin and a Fu Manchu 

mustache with some gray in it, and he was wearing glasses with gold rims. He asked in 

English for R.C.’s wallet. R.C. said, “I already gave you enough money . . . .” R.C. was 

scared. The second man allowed R.C. to keep his wallet. The young man asked for the 

keys to the change machine, and R.C. said that he did not keep the keys at the 

laundromat. They took R.C.’s business laptop.

R.C. was told to stay where he was and that he would be shot if he did not comply. 

The young man closed both halves of the Dutch door. Both robbers left quickly by the 

back door. R.C. watched them leave on a surveillance camera monitor, and he then 
8

called the police. On a surveillance video, the sedan seen on the earlier videos could be 

seen driving away moments after the two robbers exited from the laundromat.

The San Jose Police Department responded to the robbery. R.C. spoke to San Jose 

Police Officer Vargas and gave him a copy of the surveillance videos.

At trial, R.C. identified defendant as one of the men who had robbed him on 

June 5, 2015. Defendant was the older man who had been trying to cover his face with 

his arm and had asked in English for his wallet.

C. Robbery on June 18, 2015 (Count 4, as amended)

On June 18, 2015, R.A. was working at a store that sold liquor and groceries. The 

store generally opened at 6:00 a.m. Approximately 15 to 20 minutes after she had 

opened the store, R.A. went to use the restroom. She heard a chime and went out. A man 

wearing a mask had entered the store, and he showed “a very big gun” and was moving it 

around. R.A. was very scared; she ran into the bathroom and bolted the door from the 

inside. When she heard a chime several minutes later, she thought another customer 

might have come into the store. She went to the office and looked at the monitor; she 

saw that a regular customer had come into the store.

When R.A. sold the customer a newspaper and took his money, she realized that

the drawer that held money was gone. R.A. called the store’s owner, B.S.

The police responded to the store. B.S. arrived after the police. R.A. seemed very 

nervous to B.S. The register’s drawer where money was kept had been taken. About 

$100 to $150 had been kept in it.

The store had two surveillance cameras outside, and it had cameras inside as well. 

Surveillance videos were played for the jury. A man dressed in black with a bag slung 

cross-body over a shoulder walked toward the store’s entrance. He pulled a shotgun out 

of the bag just before walking into the store. He was wearing a black beanie, black 

gloves, glasses, and something black over his nose and lower face. He went to the 

counter and pointed the gun at someone, presumably R.A., and moved the gun around. 
9

R.A. fled. The armed man went behind the counter, he momentarily moved with the 

pointed shotgun in the direction in which R.A. had fled, and he then went to the cash 

register. He left the way he had come in, carrying the drawer under his arm.

D. Robbery and Assault on July 7, 2015 (Counts 5 and 6, as renumbered)

On the morning of July 7, 2015, P.K., the owner of another laundromat in San 

Jose, received a phone call from a homeless man who had been helping him out in the 

laundromat. P.K. had allowed the man to come into the laundromat and take bottles for 

recycling. After P.K. had opened the laundromat, P.K. had given a key to the interior 

office to the homeless man and left.

Later, the homeless man reported to P.K. that he had been “hit and robbed.” 911 

was called. P.K. went to the laundromat, where he found the homeless man bleeding 

from the head. Money was kept in a desk drawer in the laundromat’s office. P.K. 

indicated that $50 or $60 had been taken.

The laundromat had surveillance cameras inside. Surveillance videos of the 

July 7, 2015 robbery were played at trial. At about 5:41 a.m., a man walked into the 

laundromat. He was dressed in black and wearing a hooded sweatshirt, a beanie, and 

gloves; he was carrying a duffle bag over a shoulder. An armed man then walked into the 

laundromat. He was wearing a white, long-sleeved shirt under a shorter-sleeved black 

shirt, black pants, a baseball cap, black gloves, and something black over his nose and 

lower face. The armed man had a bag slung cross-body over a shoulder and was carrying 

a gun with a long barrel. The man pointed it at the homeless man and then repeatedly 

struck him with the barrel. The armed man appeared to be pulling something, apparently 

a key, away from the homeless man. During the attack, the other man restrained the 

homeless man, placed his hands over the homeless man’s mouth and face, and then 

shoved him to the floor. The surveillance videos captured this other man’s face and the 

shape of his head; he was wearing glasses and had a mustache.
10

A surveillance video taken inside the laundromat’s office showed the armed man

entering, grabbing wads of bills from the top desk drawer, riffling through the other 

drawers, and walking out. At 5:43 a.m., both robbers can be seen leaving the laundromat.

E. Police Investigation

Shortly after 6:00 a.m. on June 2, 2015, Matthew Kurrle, a San Jose police officer, 

and a police recruit he was supervising were dispatched to a laundromat. Once at the 

scene, they were asked to photograph evidence. Photographs were taken of a red bag and 

jeans, which were found on the laundromat’s floor and were believed to have been left 

behind by the robbery suspects. The red bag contained, among other things, a 49ers shirt, 

a receipt from L & D Service Station, and a Home Depot receipt.

During the summer of 2015, Officer Rafael Varela was working in the robbery 

unit of the San Jose Police Department. On June 3, 2015, Officer Varela was assigned to 

investigate the June 2, 2015 laundromat robbery. He reviewed video recordings of the 

incident, which showed a suspect dropping the red bag in the laundromat. The officer 

began investigating the bag’s contents, including a service station receipt and a Home 

Depot receipt, both dated June 1, 2015.

The department’s video technician was sent to the L & D Service Station to try to 

obtain video corresponding to the specific date and time reflected on the service station 

receipt collected as evidence. The technician was unable to download any video at that 

time, but he brought back some photographic images. Officer Varela also reviewed a

June 1, 2015 surveillance video of a Home Depot store.

On June 4, 2015, Officer Varela watched June 1, 2015 surveillance videos from 

the L & D Service Station. The videos and still images taken from the videos were 

shown at trial and admitted into evidence. They showed a dark green sedan, which had 

faded paint on the top behind a sunroof and a sticker on the lower right of its rear 

window. Its front right tire was missing a hubcap. The vehicle pulled up to a pump and a 

young man with a mustache entered the station’s store to pay the cashier. He was 
11

wearing a black, hooded, zippered sweatshirt with a Jordan logo. In the videos, Officer 

Varela saw the man return to his vehicle and take off his sweatshirt; he was wearing a 

San Francisco 49ers jersey underneath the sweatshirt. By reviewing the videos and the 

images, Officer Varela was able to connect the service station receipt left behind at the 

scene of the June 2, 2015 robbery to this young man, make a connection between him and 

a Honda sedan, and figure out part of the vehicle’s license plate.

After the June 5, 2015 laundromat robbery, Officer Varela learned that this second 

robbery of the same laundromat was perpetrated by two males who appeared to be similar 

in ages to the perpetrators of the June 2, 2015 robbery. He reviewed the surveillance 

video of the June 5, 2015 robbery and saw the same green Honda with the faded paint 

behind the sunroof, the sticker on the rear window, and the missing hubcap. He saw part 

of the vehicle’s license plate. The officer saw that one of the perpetrators appeared to be 

wearing a sweatshirt like the one that the young man in the service station videos had 

been wearing. The perpetrator’s face appeared to be the same as, or similar to, the face of 

the young man at the service station as well. In the videos of the June 5, 2015 robbery, 

unlike the videos from the service station, Officer Varela could see the left side of the

young man’s face and a tattoo next to an eye.

Officer Varela was able to learn the Honda’s full license plate by running the 

partial license plate information through a police database. From that information, the 

officer was able to determine the name and address of the Honda’s registered female 

owner, M.L. In running the partial plate through police databases, the officer also learned 

that the vehicle was associated with a Virginia Place address. A male who had been 

arrested at the Virginia Place address had listed M.L. as his emergency contact. At trial, 

the officer explained that the license plate information used to associate the vehicle with 

the Virginia Place address was captured by a license plate reader on a police vehicle that 

drove through the City of San Jose.
12

A June 19, 2015 “CAD event” concerning a dispatch was entered into a police 

database. The “Events Details Report” indicated that the reporting party needed to pick 

up a vehicle with a specified license plate from a Virginia Place address and get the key 

from Jaramillo, who was refusing to return it. Using this and other information, Officer 

Varela was able to associate the Honda with Jaramillo. The officer looked at the DMV

(Department of Motor Vehicles) photo database and saw that Jaramillo’s DMV photo 

showed the distinctive tattoo on his face and that it listed the Virginia Place address as his 

address.

On June 23 and 24, 2015, Officer Joshua Cote conducted surveillance of the 

Virginia Place address. He was looking for the two vehicles of interest in the armed 

laundromat robberies. One was a gold SUV, and the other was a Honda with a certain 

license plate. On June 24, 2015, Officer Cote saw a four-door, gold Oldsmobile SUV 

with a certain license plate in the driveway of the residence. The vehicle appeared 

similar to the vehicle involved in the June 2, 2015 robbery.

Using the SUV’s license plate number obtained from Officer Cote, Officer Varela 

learned the name and Almaden Expressway address of the SUV’s female registered 

owner, D.C. Officer Varela ran a records check on the Almaden Expressway address, 

which was .7 miles from the laundromat involved in counts one and two. The officer 

discovered that the name Jesse Diaz was associated with the Almaden Expressway 

address. Officer Varela then ran a records check on Diaz and pulled a criminal mugshot 

photo. At that point, he believed that Diaz’s photo and information matched the general 

description of the older suspect in the two laundromat robberies (counts 1 & 2). Diaz 

was 48 years old during the summer of 2015.

Officer Varela prepared a photographic lineup. Photograph No. 2 was a 

photograph of Diaz. A photograph of defendant was not in the lineup; he was not a 

suspect at that point. Officer Varela asked Detective Isidro Bagon to present the lineup.
13

Prior to administration of the photographic lineup, Detective Bagon was not 

involved in the investigation. He was trained to conduct “double-blind,” photographic 

lineups, which meant that he was not involved in the case and did not know which of the 

photographs was a suspect’s photograph.

On August 7, 2015, R.C. went to the San Jose Police Department to view a 

photographic lineup. Officer Varela was not in the room when R.C. looked through the 

photographs. Detective Bagon gave an admonition concerning the process to R.C. and 

presented the lineup. R.C. viewed six photographs, one at a time, and went through them 

again. When R.C. first saw photograph No. 2, he lingered on it. While looking at 

photograph No. 2 a second time, R.C. said, “[L]ooks darn close, the mustache.” R.C. 

thought that the person in the photograph looked a little younger but resembled the 

perpetrator and that the perpetrator had more wrinkles. On the second go-around, R.C. 

indicated that photograph No. 6 also looked like the person. Detective Bagon understood 

from R.C.’s comments that R.C. thought that the people in photograph Nos. 2 and 6 

looked similar to the perpetrator.

Also on August 7, 2015, P.K. brought a video of the July 7, 2015 robbery of his 

laundromat to the San Jose Police Department, and Officer Varela reviewed it.

In August of 2015, Bertrand Milliken, a San Jose police officer, watched a 

surveillance video of the elevator located in an apartment building at the Almaden 

Expressway address, which the parties stipulated was taken during the first week of July 

of 2015 and which was subsequently obtained by the police department’s video 

technician. Officer Milliken recognized defendant, with whom he had spoken for an hour 

or more on July 16, 2015, in the video and in the courtroom at trial.

At approximately 7:50 a.m. on September 10, 2015, Officer Cote returned to the 

Virginia Place address as part of a “covert response unit,” and remained there until 

approximately 2:00 p.m. The gold SUV was parked on the driveway during that entire 

time. At approximately 2:00 p.m., Jaramillo and a female left the residence and entered 
14

the SUV. Jaramillo got into the driver’s seat, and the woman got into the passenger seat. 

The officers followed the vehicle.

Jaramillo dropped the female passenger off and then drove to a business, where he 

parked, got out of the vehicle, and went inside. When Jaramillo left the business 

approximately 30 minutes later, he was arrested. Suspected methamphetamine and 

syringes were found on Jaramillo during the search incident to his arrest. At that point, 

the officer went into the business, located Diaz, and arrested him as well.

Also on September 10, 2015, Detective Bagon and Officer Cote were involved in 

the execution of a search warrant for an apartment at the Almaden Expressway address. 

Between a mattress and a box spring in one of the two bedrooms, Detective Bagon 

located a duffle bag. It contained a 28-inch-long, 12-gauge shotgun with a 16-inch 

barrel, seven live rounds of 12-gauge ammunition, and a pair of black and gray gloves. 

A pair of black shoes was found under the bed. Letters and bills found in the bedroom 

had the name “Jesse Diaz” on them. In a robbery surveillance video, a person wearing 

black gloves was holding a shotgun that was very similar to the one found in the bag.

On September 10, 2015, Diaz was interviewed by Detective Zanoto and Officer 

Varela. They eventually confronted Diaz with photographs that were still images taken 

from the video of the July 7, 2015 robbery at a laundromat. They accused Diaz of being 

in the photographs. Officers used the ruse of telling Diaz that his DNA had been found at

the laundromat involved in counts 1 and 2. At some point, Diaz remarked that defendant 

and he looked alike. At the conclusion of the interview, Officer Varela collected Diaz’s 

glasses because Diaz had indicated that defendant had worn the glasses. Clips from the 

recorded interview were played for the jury at trial.

During the investigation, Officer Varela submitted some items of evidence to the 

Santa Clara County Crime Lab for DNA testing. Those items included the 49ers shirt 

that had been left behind at the laundromat during the June 2, 2015 robbery; the duffle 
15

bag that had been seized at the Almaden Expressway address; the shotgun that was found 

inside that bag; and the glasses collected from Diaz at the end of the police interview.

A criminalist with the Santa Clara County Crime Laboratory testified as an expert 

in “PCR DNA testing.” She compared the DNA profile generated from the glasses to 

reference DNA samples from Diaz, defendant, and Jaramillo. Both defendant and 

Jaramillo were eliminated as DNA contributors, while Diaz and an unknown individual 

were possible contributors to the DNA mixture. The parties stipulated that she found that 

it was “10 million times more likely to obtain the DNA mixture taken from the glasses if 

Jesse Diaz, and an unknown individual, [were] contributors than if two unknown 

individuals [were] contributors.”

The criminalist compared the DNA profile generated from the 49ers T-shirt to 

reference DNA samples from Diaz, defendant, and Jaramillo. She found that both 

defendant and Diaz were eliminated as DNA contributors, while Jaramillo and an 

unknown individual were possible contributors to the major DNA mixture. She found 

that it was “96 million times more likely to see this DNA mixture” if Jaramillo and an 

unknown individual were contributors than if “two random people” were contributors. 

The swabs of the firearm’s trigger area and textured areas did not provide enough DNA 

information to allow the criminalist to make comparisons and draw conclusions.

F. Diaz’s Testimony

Diaz, who was called to testify by the People, met Jaramillo in approximately 

March of 2015. Diaz had known defendant for about three years and described him as a 

friend.

At the end of May of 2015, Diaz was living in the two-bedroom apartment at the 

Almaden Expressway address. This was where Diaz’s mother and his sister lived. In 

May of 2015, Diaz’s girlfriend, Diaz’s nephew and niece, and defendant were also living 

there.
16

Diaz testified that on approximately May 25, 2015, a family Memorial Day

barbeque was held at the apartment. Diaz said that Jaramillo and defendant were also 

there and that they approached him about robbing laundromats with them. Diaz admitted 

that he initially agreed to join them, but testified that he later decided not to participate.

Diaz testified that shortly after Memorial Day, he fought with his mother and 

decided to move out of the Almaden Expressway apartment. According to Diaz, 

defendant continued to live there. Even after he moved out, Diaz still frequented the 

apartment.

Approximately a week after the barbeque, Diaz began working as an assembler for 

an HVAC manufacturing company. He was hired to work the swing shift, which was 

3:30 p.m. to midnight, but he initially trained on the day shift. He was required to punch 

in and out of work with a timecard. Diaz was working for the company between 

June 1, 2015 and September 10, 2015.

According to Diaz, defendant told Diaz that Jaramillo and he had robbed a 

laundromat on June 2, 2015 and that they had been “masked-up.” Diaz’s timecard report 

showed that he clocked into work at 6:52 a.m. on June 2, 2015.

Diaz testified that a few days later, on June 5, 2015, defendant told Diaz that he 

had robbed the same laundromat again. Diaz’s timecard report showed that he clocked 

into work at 6:53 a.m. on June 5, 2015. Diaz admitted at trial that he accepted stolen 

money from Jaramillo so that he could pay his rent.

On June 9, 2015, Diaz went home after working the swing shift and met up with 

defendant there at 1:00 or 2:00 a.m. Diaz testified that defendant told him that Jaramillo 

and he had just committed a robbery involving a woman. Evidence at trial showed that 

just after a female laundromat employee had locked up for the night, she was forced to 

reopen the laundromat by a masked man with a gun, which was “like a rifle,” and she let 

the man into the laundromat’s office. The employee thought that he had taken $600 to 
17

$700 in cash; the laundromat’s owner estimated that a little over $500 was taken. The 

robbery, of which defendant was found not guilty, occurred at approximately 10:45 p.m.

The evidence did not show that Diaz was at work during the robbery on the 

morning of June 18, 2015. An employee timecard report showed that on June 18, 2015, 

Diaz punched into work at 3:25 p.m. and punched out of work at approximately 

midnight.

At trial, Diaz stated that during the summer of 2015, he kept some of his clothes 

and belongings at his mother’s Almaden Expressway apartment. According to Diaz, he 

had moved back into the apartment a few months before his trial testimony on 

September 8, 2016. That address was on his driver’s license.

Diaz acknowledged that in August of 2015 he asked Jaramillo to get him a gun 

and explained that the reason for his request was that he was having “some problems” 

and “some guys were going to get [him] with a bat.” According to Diaz, Jaramillo 

brought him a duffle bag and told him that a gun was in there, but Diaz claimed to have 

never opened the bag or touched the gun. He admitted that he knew there was a gun 

inside the bag because he had felt it through the bag.

On September 10, 2015, Diaz was at work when the police arrived. He had some 

methamphetamine on him when he was arrested. Diaz had used methamphetamine for a 

long time.

During the interview after his arrest, the officers confronted Diaz with 

photographs, which were “still frames” taken from the surveillance video of the 

July 7, 2015 laundromat robbery, and the officers said that he was in the photographs. 

Diaz told them that the person was not him and that the person was defendant. Diaz 

signed the photographs and wrote defendant’s name next to the person who he said was 

defendant. At trial, Diaz testified that defendant was the man in the photographs.

Diaz was charged with the two robberies that were committed on June 2, 2015 and 

June 5, 2015 at the laundromat. In May of 2016, Diaz pleaded guilty or no contest to 
18

being an accessory after the fact to those robberies based on his taking of stolen money 

from Jaramillo. Diaz was subpoenaed to testify as a witness in this case, and the District 

Attorney’s Office offered him immunity for that testimony.

At trial, after viewing surveillance videos of the June 2, 2015 laundromat robbery, 

Diaz testified that he recognized both men in the videos and identified them as defendant 

and Jaramillo. In a surveillance video of the June 5, 2015 robbery, Diaz identified 

Jaramillo as the person in the black hooded sweatshirt with a logo. In yet another video

of that robbery, Diaz identified defendant as the man who was wearing a beanie. But 

when asked what made him think it was defendant, Diaz could not say. After viewing 

surveillance videos of the June 9, 2015 robbery, Diaz conceded that he could not 

recognize the masked man.

At trial, after watching a surveillance video of the June 18, 2015 robbery, Diaz 

testified that he recognized defendant as the man in the video. After watching a 

surveillance video of the July 7, 2015 robbery, Diaz testified that he recognized 

defendant in the video. He confirmed that defendant was the man who held the victim 

while the other man was hitting the victim with the gun.

At trial, Diaz confirmed that under the immunity agreement with the District 

Attorney’s Office, his testimony in this case could not be used to prosecute him for the 

robberies but that he could be charged with perjury if he lied under oath or committed 

perjury. Diaz affirmed that that he had told the truth when he testified.

On cross-examination, Diaz acknowledged that he was convicted of felony 

possession of stolen property in 2008, that he concealed evidence in 2013 by swallowing 

“dope” and “methamphetamine” when he was pulled over, that he lied when he denied 

having anything in his pocket when he was detained by police at a Motel 6 on 

September 6, 2013, and that he lied in response to a question when he was detained by 

police on January 1, 2014. Diaz admitted that he did not tell police the truth when he was 

accused of committing crimes in 2013 and in 2014.
19

Diaz testified that he spent a lot of time with defendant in June of 2015. He 

denied telling the police during the interview on September 10, 2015 that he never “hung 

out” with defendant. After watching a video clip of that interview at trial, Diaz 

acknowledged that he had told police that Jaramillo and defendant did not “hang out.” 

Diaz admitted that he might have said to police that he did not hang out with Jaramillo. 

Diaz acknowledged that Jaramillo and defendant committed some crimes together and 

that they were with him at the barbeque, which he conceded qualified as “hanging out.” 

Diaz agreed that he saw Jaramillo all the time because they had worked together.

Diaz admitted that he had testified at a hearing the week before trial that defendant 

had hung out during the day at the Almaden Expressway address and had spent a few 

nights there. Diaz conceded that he had testified at trial earlier that day that defendant 

had lived there.

At trial, Diaz explained that his girlfriend was Denise and that Jaramillo had dated 

his girlfriend’s daughter, D.C. On cross-examination, Diaz denied that D.C. had lived at 

the Almaden Expressway address or had been his girlfriend. He said that his girlfriend 

Denise lived with him and that it was D.C., not Denise, who drove the gold Oldsmobile 

SUV. He testified that he had let D.C. use the address to register her SUV even though 

she did not live there. Diaz admitted that he had driven the SUV a couple of times. Diaz 

testified that Jaramillo’s grandmother lived at the Virginia Place address and that 

Jaramillo had lived there. Diaz had driven in the gold SUV with Jaramillo to that 

address.

At trial, Diaz acknowledged that when the police had asked him if he owned a 

gold SUV, he had said no. Diaz admitted that he might have initially told police that he 

did not know defendant and did not hang out with him. Diaz could not remember telling 

the police that his first conversation with Jaramillo and defendant about the robberies 

occurred at work in the middle of June. But Diaz then agreed that he had told police that 

they had “hook[ed] up” in the beginning or middle of June.
20

On cross-examination, Diaz acknowledged that he had lied during the previous 

week’s testimony when he indicated that defendant had not told him about a robbery of a 

woman during the summer of 2015. Diaz maintained that he had talked to both Jaramillo 

and defendant about that particular robbery.

Diaz acknowledged that he wore glasses, which he claimed were just for reading. 

At the time of his arrest, Diaz was wearing glasses. During the police interview that 

followed, the officers indicated that the glasses worn by a person in a surveillance 

photograph appeared to be the same glasses that Diaz was wearing. Diaz told police that 

the glasses that he was wearing belonged to defendant. When police told Diaz that his 

DNA had been found at the scene of a laundromat robbery, Diaz first said that he went to 

that laundromat to wash his clothes. Diaz also told police that defendant and he shared 

clothing and that he had lent defendant the sweatshirt that defendant was wearing in the

photograph.

By the time of trial, however, Diaz knew that in fact his DNA had not been found 

at the scene and the police had been using a ruse. He did not actually know whether the

glasses in the surveillance photograph were actually the same glasses that he had been 

wearing during the police interview. He testified that defendant wore glasses all the time.

At trial, Diaz confirmed that he had a sleeve of tattoos covering his neck, and he 

was asked to stand up and tilt his head so the jury could see them.

G. Defense Case

Raul Flores, an investigator with the Santa Clara County Public Defender’s Office, 

took photographs of defendant and Jaramillo in August of 2015, which were admitted 

into evidence. Investigator Flores also obtained Jaramillo’s license photograph from the 

DMV, which was admitted into evidence. The same neck tattoos were visible in both

photographs of Jaramillo. The parties stipulated that defendant had the tattoo depicted in 

defense exhibit G prior to June 2, 2015.
21

Using Google maps, investigator Flores determined that the distance between the 

laundromat involved in the robberies on June 2, 2015 and June 5, 2015 and the HVAC 

manufacturing facility was approximately 1.2 or 1.3 miles, or approximately a 

five-minute drive.

Upon investigator Flores’s request to the DMV for the names of all persons having 

California driver’s licenses or IDs associated with the Almaden Expressway or Road 

apartment, he obtained a certified list of eight people, which included Diaz but not 

defendant. Upon his requests to the DMV, he received two certified documents, one 

showing that a 1999 Oldsmobile with a certain license plate was registered to that 

Almaden Expressway apartment and another showing the address on Diaz’s driver’s 

license issued on January 14, 2016. But the investigator had not found any DMV records 

showing that Diaz had, through applying for a driver’s license, associated himself with 

the Almaden Expressway address during the summer of 2015. Neither had the 

investigator found that Diaz was associated with the Oldsmobile in the DMV’s records. 

Diaz’s driver records reflected that Diaz was required to wear corrective lenses when 

driving.

A case manager and forensic assistant for the National Center for Audio and 

Video Forensics testified as an expert in the area of visual video forensics. He viewed 

the surveillance video from the July 7, 2015 robbery. In the video, the expert saw many 

examples of digital artifacts, which are visual alterations resulting from software that 

does not accurately reflect what was recorded. He stated that a digital artifact on a 

person’s skin might be mistaken for a tattoo.

The expert also looked at photographs of defendant and Jaramillo that showed 

their neck tattoos. The surveillance video files from the July 7, 2015 robbery were 

enhanced to focus on the neck areas of the individuals in the video. The enhanced videos 

were played for the jury. The expert pointed out black spots, marks, or dots in the videos 

that were digital artifacts.
22

Dr. Kathy Pezdek, a psychology professor and cognitive scientist, testified as an 

expert in the area of eyewitness identification and memory. She testified at length 

regarding the three-stage process of memory, which included (1) perception or encoding, 

(2) storage, and (3) identification. She explained the factors that affected the accuracy of 

a person’s perception or encoding of a memory: (1) the exposure time; (2) the presence 

of distractions; (3) the presence of a weapon; (4) the eyewitness’s stress; (5) the 

perpetrator’s use of disguise; and (6) the cross-race effect. The passage of time was the 

main factor affecting the second stage. The factor affecting the third stage was whether 

the identification procedure was “fair and unbiased.” In her opinion, the factors she had 

discussed cast doubt on R.C.’s in-court identification of defendant. She explained in 

detail all the factors affecting that identification, including R.C.’s very short exposure 

time to the perpetrator (approximately a minute and a half).

III. DISCUSSION

A. Alleged Prosecutorial Misconduct

Defendant now claims that the prosecutor engaged in prejudicial misconduct when 

he suggested in closing argument that a robber would go celebrate after “a successful 

heist” and that he would not go to work. The prosecutor asserted that Diaz had an alibi 

for the June 2, 2015 and June 5, 2015 robberies because he clocked into work a short

time after those crimes were committed. The prosecutor remarked in part, “Who goes to 

work after robbing laundromats? Who goes to work after robbing anything? What are 

you going to do after you rob some place, you are going to party. You are going to take 

the money and you’re going to do something with it. You’re certainly not about to go to 

work.”

Defendant asserts that the prosecutor’s remarks were “not proper argument based 

upon legitimate inferences that could be made from the evidence” and that the remarks 

were an improper reference to facts not in evidence and in effect prosecutorial testimony 

based upon personal knowledge. Defendant argues that the prosecutor’s misconduct 
23

violated federal due process because it undercut his defense that Diaz, rather than he, was 

the older perpetrator of the robberies committed on June 2, 2015 and June 5, 2015. He 

also contends that even if the misconduct did not constitute a due process violation, it 

resulted in a miscarriage of justice under state law.

“[I]t is misconduct for the prosecutor to state facts not in evidence or to imply the 

existence of evidence known to the prosecutor but not to the jury. [Citation.]” (People v. 

Smith (2003) 30 Cal.4th 581, 617.) However, “[c]ounsel may argue facts not in evidence 

that are common knowledge or drawn from common experiences. [Citation.]” (People v. 

Young (2005) 34 Cal.4th 1149, 1197.) “ ‘ “It is settled that a prosecutor is given wide 

latitude during argument. The argument may be vigorous as long as it amounts to fair 

comment on the evidence, which can include reasonable inferences, or deductions to be 

drawn therefrom. [Citations.]” ’ [Citation.]” (People v. Sandoval (2015) 62 Cal.4th 394, 

439 (Sandoval).)

Defendant forfeited his claim of prosecutorial misconduct. “ ‘To preserve a claim 

of prosecutorial misconduct for appeal, a defendant must object and seek an admonition 

if an objection and admonition would have cured the harm.’ [Citation.] The objection 

must be made on the same ground upon which the defendant now assigns error. 

[Citation.]” (People v. Redd (2010) 48 Cal.4th 691, 734.) “The lack of a timely 

objection and request for admonition will be excused only if either would have been 

futile or if an admonition would not have cured the harm. [Citations.]” (People v. Powell

(2018) 6 Cal.5th 136, 171.) “ ‘ “[T]he absence of a request for a curative admonition” ’ 

may likewise be excused if ‘ “ ‘the court immediately overrules an objection to alleged 

prosecutorial misconduct [and as a consequence] the defendant has no opportunity to 

make such a request.’ ” ’ [Citation.] ‘A defendant claiming that one of these exceptions 

applies must find support for his or her claim in the record. [Citation.] The ritual 

incantation that an exception applies is not enough.’ [Citation.]” (People v. Daveggio 
24

and Michaud (2018) 4 Cal.5th 790, 853.) Defendant does not argue that a timely and 

specific objection was excused.

B. Alleged Ineffective Assistance of Counsel

Defendant claims that defense counsel rendered ineffective assistance of counsel 

by failing to object to the prosecutor’s remarks now challenged.

1. Governing Law

The standard for evaluating a claim of ineffective assistance of counsel is well 

established. It requires a two-prong showing of deficient performance and resulting 

prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) “Failure to

make the required showing of either deficient performance or sufficient prejudice defeats 

the ineffectiveness claim.” (Id. at p. 700.)

As to deficient performance, a defendant “must show that counsel’s representation 

fell below an objective standard of reasonableness” measured against “prevailing 

professional norms.” (Strickland, supra, 466 U.S. at p. 688.) “Judicial scrutiny of 

counsel’s performance must be highly deferential.” (Id. at p. 689.) “[E]very effort” must 

“be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances 

of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective 

at the time.” (Ibid.) “[A] court must indulge a strong presumption that counsel’s conduct 

falls within the wide range of reasonable professional assistance.” (Ibid.)

The prejudice prong requires a defendant to show that “there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” (Strickland, supra, 466 U.S. at p. 694.) “A reasonable 

probability is a probability sufficient to undermine confidence in the outcome.” (Ibid.)

2. Analysis

“On direct appeal, a conviction will be reversed for ineffective assistance only if 

(1) the record affirmatively discloses counsel had no rational tactical purpose for the 

challenged act or omission, (2) counsel was asked for a reason and failed to provide one, 
25

or (3) there simply could be no satisfactory explanation. All other claims of ineffective 

assistance are more appropriately resolved in a habeas corpus proceeding. [Citations.]” 

(People v. Mai (2013) 57 Cal.4th 986, 1009.) “ ‘[T]he decision facing counsel in the 

midst of trial over whether to object to comments made by the prosecutor in closing 

argument is a highly tactical one’ . . . [citation], and ‘a mere failure to object to . . . 

argument seldom establishes counsel’s incompetence’ [citation].” (People v. Centeno

(2014) 60 Cal.4th 659, 675.)

Here, defense counsel could have reasonably concluded that the challenged 

remarks, considered in context, were essentially an appeal to the jurors’ common sense 

and a fair comment on the evidence of the relatively short interval between when the 

robberies charged in counts 1 and 2 took place and the time that Diaz clocked in at work

on each of those dates. (See People v. Mendoza (2016) 62 Cal.4th 856, 908.) The facts 

of that timing were in evidence, and such evidence related to the identity of a perpetrator. 

(See Sandoval, supra, 62 Cal.4th at p. 439 [prosecutor did not commit misconduct by 

arguing that the defendant had grown out his hair to deceive the jury].) Furthermore, in 

light of the instructions the trial court had just given them, there was no reasonable 

likelihood the jurors construed the prosecutor’s remarks as asking them to rely on his 

personal knowledge outside of the evidence. “Counsel may not be deemed incompetent 

for failure to make meritless objections.” (People v. Coddington (2000) 23 Cal.4th 529, 

625, overruled on another ground by Price v. Superior Court (2001) 25 Cal.4th 1046, 

1069, fn. 13.) In addition, defense counsel could have made the reasonable tactical

decision that it would be more effective to attack Diaz’s credibility in his closing 

argument, which he vigorously did, and not to draw the jury’s attention to the limited 

time between the burglaries and Diaz’s arrival at work by objecting to the prosecutor’s 

remarks. (See People v. Huggins (2006) 38 Cal.4th 175, 206.)

In any case, defendant has not established the prejudice prong of an ineffectiveassistance-of-counsel claim. Just before the closing arguments, the trial court instructed 
26

the jury: “Nothing that the attorneys say is evidence. In their opening statements and 

closing arguments, the attorneys discuss the case, but their remarks are not evidence.” 

The court told the jury that “[e]vidence is the sworn testimony of witnesses, the exhibits 

admitted into evidence, and anything else I told you to consider as evidence.” The trial 

court also instructed: “You must decide what the facts are. It is up to all of you and you 

alone to decide what happened based only on the evidence that has been presented to you 

in this trial.”

Moreover, the jury saw both defendant and Diaz, who testified as a witness, in the 

courtroom and could compare their appearances to the robbers in the surveillance videos 

and still images taken from those videos. They were able to assess Diaz’s credibility 

based upon his extensive testimony, the evidence that he had lied at times, and his own 

criminal history.

“In assessing prejudice under Strickland, the question is not whether a court can be 

certain counsel’s performance had no effect on the outcome or whether it is possible a 

reasonable doubt might have been established if counsel [had] acted differently. 

[Citations.] Instead, Strickland asks whether it is ‘reasonably likely’ the result would 

have been different. [Citation.] This does not require a showing that counsel’s actions 

‘more likely than not altered the outcome,’ but the difference between Strickland’s 

prejudice standard and a more-probable-than-not standard is slight and matters ‘only in 

the rarest case.’ [Citation.] The likelihood of a different result must be substantial, not 

just conceivable. [Citation.]” (Harrington v. Richter (2011) 562 U.S. 86, 111-112.) 

Defendant has failed to establish his claim of ineffective assistance of counsel.

C. CALCRIM No. 315

Defendant contends that the trial court violated his due process rights by 

instructing the jury that it should consider an eyewitness’s “certainty” in evaluating the 

witness’s identification testimony.
27

The trial court instructed the jury pursuant to CALCRIM No. 315 on eyewitness 

identification testimony. This instruction told the jury: “In evaluating identification 

testimony, consider the following questions: . . . How certain was the witness when he 

made an identification.”

Defendant asserts that this portion of the instruction violated his due process rights

because “it ratified the common misperception that a witness’s certainty correlates with 

his or her accuracy” (italics omitted) and “abundant scientific research . . . has 

documented the unreliability of eyewitness identification . . . .” He contends that this 

alleged error requires reversal because it was not harmless beyond a reasonable doubt.

1. Background

At the “blackboard” preliminary examination, R.C. testified that he recognized 

defendant as the older man who had robbed him.5

Defendant made an in limine motion asking the court to exclude “any testimony 

by any eyewitness as to level of certainty of an identification,” and he asked the court to 

modify CALCRIM No. 315 to remove the reference to witness certainty. The prosecutor 

opposed the defense request and argued that R.C.’s lack of certainty regarding a prior

photo lineup (which did not include defendant’s photo) was important for the jury to 

consider. The defense responded that the target of its request was “questioning by the 

People as to how certain are you about your in-court identification . . . .” The defense 

noted that it would be calling an expert on eyewitness identification. Defendant’s trial 

counsel argued that “it really undercuts that witness’ credibility when the Court then 

gives an instruction that tells the jury [that] they should consider something, which an 

expert witness has just told them is meaningless.” The trial court declined to modify the 

5 A “blackboard prelim” was described at the preliminary examination as a 

procedure employed where a witness has not previously identified the defendants. The 

defendants are seated behind “blackboards” until the witness has testified and then 

“unveil[ed]” individually to the witness so that the witness can testify as to whether he or 

she recognizes any of the defendants.
28

instruction. It concluded that an eyewitness’s “statement of confidence” in his or her 

identification “goes to the weight of the testimony.” “[T]he jury can give whatever 

weight they believe the testimony deserves.”

R.C. made a courtroom identification of defendant at trial. He did not express any 

particular level of certainty when he did so. The prosecutor asked him: “[D]o you see 

either of the people who robbed you on June 5th?” R.C. responded: “Yes, he’s sitting 

over there,” and he specified that “He’s wearing a green shirt.” R.C. also answered 

“Yes” when the prosecutor asked if “Mr. Yanez, the defendant, is the person who robbed 

you on June 5th.” R.C. testified at trial that he had described the older robber to the 

police as a Spanish man in his 50s, about 5 foot 7 inches tall, with “wrinkly” skin and a 

Fu Manchu mustache, who was wearing glasses with gold rims.

R.C. also testified that he had viewed a photo lineup (which did not contain any 

photos of defendant) and had told the police that two of the photos, one of which was of 

Diaz and the other of which was a “filler” photo, “looked like” the older robber. R.C. 

told the officer administering the lineup that those two photos “look close,” but he 

“couldn’t be positive . . . .” The officer who showed R.C. the photo lineup testified that 

he does not ask witnesses “how certain they are” when he shows them a lineup.

R.C. testified that the older robber was wearing a mask, but the mask slipped 

down at one point. On cross-examination, R.C. testified that he had told the police 

shortly after the robbery that he could identify the younger robber but was less sure that 

he could identify the older robber. Surveillance video of the robbery was played for the 

jury.

The defense presented an expert witness on “eyewitness identification and 

memory.” She did not directly address eyewitness certainty, but she did testify that, 

“[u]nder certain circumstances people are overconfident about their ability to remember 

someone even when they’re wrong . . . .” The defense expert testified that in-court 

identifications are unreliable in general and that R.C.’s in-court identification was 
29

unreliable for a host of reasons, including his prior lack of certainty that he could identify 

the older robber, his responses to the photo lineup, the year-long time lapse between the 

robbery and his identification of defendant, and the cross-racial nature of the 

identification. The trial court instructed the jury that it “must consider” opinions given 

by expert witnesses.

2. Analysis

Defendant’s claim that the witness certainty reference in CALCRIM No. 315

violated his due process rights was recently addressed by the California Supreme Court in 

People v. Lemcke (2021) 11 Cal.5th 644 (Lemcke). The California Supreme Court held 

that the witness certainty reference in the instruction, “in the context of the trial record as 

a whole, . . . did not render [the defendant’s] trial fundamentally unfair.” (Id. at p. 646.) 

It noted that the instruction did not tell the jury that “ ‘certainty equals accuracy,’ ” the 

defendant had been permitted to call an eyewitness identification expert, and the trial 

court had instructed the jury that it was required to consider that expert’s testimony. 

(Id. at p. 647.)

In Lemcke, the victim had identified the defendant in a photo lineup shortly after 

the crime, but she was “ ‘under anesthesia’ ” at the time of the identification. (Lemcke, 

supra, 11 Cal.5th at p. 648.) During subsequent identification procedures, the victim told 

the police “ ‘for sure it was [the defendant].’ ” (Id. at p. 649.) The victim also made an 

in-court identification of the defendant at trial. (Id. at pp. 649-650.) She testified that “it 

was ‘impossible for [her] not to recognize his face.’ ” (Id. at p. 650.) The defense expert 

testified that witness certainty was relevant only when the identification occurred shortly 

after the event. (Id. at p. 651.)

On appeal, the defendant argued that the trial court’s witness certainty instruction 

violated his state and federal due process rights. (Lemcke, supra, 11 Cal.5th at p. 653.) 

The court rejected his claim. It held that, when viewed in context with the other standard 

jury instructions, the witness certainty instruction did not “ ‘lower the prosecution’s 
30

burden of proof’ ” or interfere with the jury’s evaluation of the credibility and reliability 

of the eyewitness’s identification testimony. (Id. at pp. 657-659.) Nor did the instruction 

obstruct the defendant’s right to present a defense, as he did by cross-examining the 

victim and presenting his eyewitness identification expert. (Id. at p. 660.)

Although defendant was given the opportunity to submit supplemental briefing 

after the California Supreme Court’s decision in Lemcke, he did not do so, so he does not 

argue that this case is distinguishable from Lemcke. Nor could he. Indeed, in this case 

the witness certainty instruction could not have had any significance at trial as R.C. never 

expressed any certainty about his identification of defendant. He told the police shortly 

after the event that he was “not sure” he could identify the older robber. R.C. pointed to 

two photos of other men in the photo lineup as “close” to the older robber. He identified 

defendant only during in-court identification procedures, and defendant was permitted to 

present expert testimony that such procedures are unreliable. The same standard 

instructions that were given in Lemcke were given here, and defendant had a full 

opportunity to challenge R.C.’s identification of him.

Defendant points out that R.C. was the only “percipient witness” who identified 

defendant as the older robber, though he acknowledges that Diaz also incriminated 

defendant in this robbery. He discounts Diaz’s testimony due to Diaz’s motivation to 

persuade the jury that Diaz was not the older robber. But these circumstances do not 

have anything to do with the witness certainty instruction. We find no due process 

violation and reject defendant’s contention.

D. Multiple Punishment in Violation of Section 654

Section 654, subdivision (a), provides in pertinent part: “An act or omission that 

is punishable in different ways by different provisions of law shall be punished under the 

provision that provides for the longest potential term of imprisonment, but in no case 

shall the act or omission be punished under more than one provision.” (Italics added.)
31

“Whether a defendant may be subjected to multiple punishment under section 654 

requires a two-step inquiry, because the statutory reference to an ‘act or omission’ may 

include not only a discrete physical act but also a course of conduct encompassing several 

acts pursued with a single objective. [Citations.] We first consider [whether] the 

different crimes were completed by a ‘single physical act.’ ([People v.] Jones [(2012)]

54 Cal.4th [350,] 358.) If so, the defendant may not be punished more than once for that 

act.” (People v. Corpening (2016) 2 Cal.5th 307, 311 (Corpening); see id. at p. 312.)

“Only if we conclude that the case involves more than a single act—i.e., a course 

of conduct—do we then consider whether that course of conduct reflects a single ‘intent 

and objective’ or multiple intents and objectives. [Citations.]” (Corpening, supra, 2

Cal.5th at pp. 311-312.) “A trial court’s express or implied determination that two crimes 

were separate, involving separate objectives, must be upheld on appeal if supported by 

substantial evidence. [Citation.]” (People v. Brents (2012) 53 Cal.4th 599, 618.)

But as the People concede, substantial evidence does not support the court’s 

determination that there was a separate objective for the assault with a firearm (count 6) 

that took place during the robbery in count 5. The evidence in the record before us shows 

only that the robbery and the assault were committed pursuant to a single intent and 

objective, i.e., to rob the victim. Therefore, the punishment for either count 5 or count 6

must be stayed. (§ 654, subd. (a).)

E. New Discretion to Strike Firearm Enhancement

As indicated, the jury found true the enhancement allegation for personal use of a 

firearm, which was attached to count 4, and the trial court accordingly imposed a 10-year 

enhancement pursuant to section 12022.53(b). Relying on the retroactivity principles of 

In re Estrada (1965) 63 Cal.2d 740 (Estrada), defendant argues that this court must 

remand the case to allow the trial court to determine whether to exercise its new 

discretion to strike the firearm enhancement imposed under section 12022.53(b), as now 

permitted under section 12022.53, subdivision (h) (12022.53(h)), which was amended by 
32

the passage of Senate Bill No. 620 (2017-2018 Reg. Sess.). The People concede that 

defendant is entitled to a remand for that purpose.

Effective January 1, 2018, section 12022.53(h), was amended to provide, and still

does provide: “The court may, in the interest of justice pursuant to [s]ection 1385 and at 

the time of sentencing, strike or dismiss an enhancement otherwise required to be 

imposed by this section. The authority provided by this subdivision applies to any 

resentencing that may occur pursuant to any other law.” (Stats. 2017, ch. 682, § 2; 

Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a).) At time of the robbery 

to which the 10-year firearm enhancement attached, and at the time of sentencing, the 

subsection read: “Notwithstanding [s]ection 1385 or any other provision of law, the court 

shall not strike an allegation under this section or a finding bringing a person within the 

provisions of this section.” (Stats. 2010, ch. 711, § 5.)

Under the Estrada rule, “we presume that newly enacted legislation mitigating 

criminal punishment reflects a determination that the ‘former penalty was too severe’ and 

that the ameliorative changes are intended to ‘apply to every case to which it 

constitutionally could apply,’ which would include those ‘acts committed before its 

passage[,] provided the judgment convicting the defendant of the act is not final.’ 

(Estrada, supra, 63 Cal.2d at p. 745.) The Estrada rule rests on the presumption that, in 

the absence of a savings clause providing only prospective relief or other clear intention 

concerning any retroactive effect, ‘a legislative body ordinarily intends for ameliorative 

changes to the criminal law to extend as broadly as possible, distinguishing only as 

necessary between sentences that are final and sentences that are not.’ [Citation.] ‘The 

rule in Estrada has been applied to statutes governing penalty enhancements, as well as 

to statutes governing substantive offenses.’ [Citations.]” (People v. Buycks (2018) 5 

Cal.5th 857, 881-882.)

Nothing in the appellate record clearly indicates that the trial court would have 

necessarily declined to strike or dismiss the 10-year firearm enhancement imposed under 
33

section 12022.53 if it had had the discretion to do so. Consequently, we will remand to 

allow the trial court to consider whether to exercise its discretion to strike or dismiss the 

enhancement.

F. New Discretion to Strike Prior Serious Felony Conviction Enhancement

As indicated, the trial court found true the enhancement allegation for a prior 

serious felony conviction and accordingly imposed a five-year enhancement pursuant to 

section 667(a). Defendant argues that under the retroactivity principles of Estrada, this 

court must remand this case to allow the trial court to consider exercising its new 

discretion to dismiss or strike the prior serious felony enhancement, as now permitted 

under sections 667(a) and 1385, as amended by the passage of Senate Bill No. 1393 

(2017-2018 Reg. Sess.). Defendant raised this argument in a brief filed shortly before the 

amendments went into effect, and the People conceded in their brief that if the

amendments took effect before his judgment is final, the law applies retroactively.

Effective January 1, 2019 (see Stats. 2018, ch. 1013, § 2; Cal. Const., art. IV, § 8, 

subd. (c); Gov. Code, § 9600, subd. (a)), section 1385 was amended to delete the 

provision prohibiting a judge from striking a prior serious felony conviction 

enhancement. Also, section 667(a) was amended to omit its reference to section 1385, 

subdivision (b). (See Stats. 2018, ch. 1013, § 1.) Section 1385 now permits a court “in 

furtherance of justice” to exercise its discretion to strike or dismiss a five-year 

enhancement for a prior serious felony conviction.

We agree that the trial court must be afforded an opportunity to exercise its 

discretion under current section 1385 to strike the five-year enhancement imposed under 

section 667(a). (See e.g. People v. Bipialaka (2019) 34 Cal.App.5th 455, 464; People v. 

Dearborne (2019) 34 Cal.App.5th 250, 268; People v. Jimenez (2019) 32 Cal.App.5th 

409, 426.)
34

G. Request for a Remand for an Ability-to-Pay Hearing in Light of Dueñas

Citing Dueñas, defendant argues that the trial court violated his federal due 

process, equal protection, and Eighth Amendment rights by imposing the minimum

restitution fine (§ 1202.4. subds. (b), (c)), the court facilities assessment (Gov. Code, 

§ 70373), and the court operations assessment (§ 1465.8) without first holding a hearing 

and finding that he had the ability to pay.

1. Probation Report

The probation report filed on March 6, 2017 indicated that defendant was not 

interviewed at the request of defense counsel and that he provided no statement to the 

probation officer who prepared the report for sentencing. The report disclosed very 

limited information concerning defendant.

The report indicated that defendant was 46 years old when he committed the 

current crimes and that he was 47 years old at the time the probation report was prepared. 

According to the report, defendant had a lengthy history of criminal conduct, including 

five prior felony convictions, one of which was for armed robbery. The report stated that

defendant was on PRCS (postrelease community supervision) when he committed the 

current offenses.

According to the report, defendant’s probation officer while he was on PRCS had 

said that defendant was released on PRCS on November 17, 2014 and reported to 

probation on January 6, 2015. After defendant tested positive for methamphetamine, he 

was referred to cognitive-based therapy and an outpatient substance abuse program. 

Defendant stopped reporting to probation in March of 2015 and absconded from 

supervision.

2. The Dueñas Decision

In Dueñas, an appellate court agreed that imposition of a restitution fine and court 

facilities and court operations assessments without considering defendant Dueñas’s 

ability to pay violated state and federal constitutional guarantees because their imposition
35

“punishe[d] her for being poor.” (Dueñas, supra, 30 Cal.App.5th at p. 1160.) The 

defendant had “cerebral palsy, and because of her illness she [had] dropped out of high 

school and [did] not have a job.” (Ibid.) She was “an indigent and homeless mother of 

young children.” (Ibid.)

The trial court had placed defendant Dueñas on probation for a misdemeanor 

violation and “imposed a $30 court facilities assessment under Government Code 

section 70373, a $40 court operations assessment under . . . section 1465.8, and a $150 

restitution fine under . . . section 1202.4.” (Dueñas, supra, 30 Cal.App.5th at 1162.) The 

defendant asked for a hearing to determine her ability to pay her appointed counsel fees 

and court fees, and the court later held an ability-to-pay hearing. (Id. at pp. 1162-1163) 

“The [trial] court concluded that the $30 court facilities assessment under Government 

Code section 70373 and $40 court operations assessment under . . . section 1465.8 were 

both mandatory regardless of Dueñas’s inability to pay them. With respect to the $150 

restitution fine, the court found that Dueñas had not shown the ‘compelling and 

extraordinary reasons’ required by statute ([§] 1202.4, subd. (c)) to justify waiving this 

fine.” (Id. at p. 1163.) “The court rejected Dueñas’s constitutional arguments that due 

process and equal protection required the court to consider her ability to pay” those 

assessments and restitution fine. (Ibid.)

On appeal, Dueñas argued that “imposing fines and fees on people too poor to pay 

punish[es] the poor for their poverty.” (Dueñas, supra, 30 Cal.App.5th at p. 1164.) As to 

the court facilities and court operations assessments, the appellate court believed that 

their “potentially devastating consequences [for] indigent persons in effect transform a 

funding mechanism for the courts into additional punishment for a criminal conviction 

for those unable to pay.” (Dueñas, supra, at p. 1168.) The court identified some of the 

potential consequences: damage to a defendant’s credit; interference with a defendant’s 

other financial commitments, such as child support obligations; disruption of a 
36

defendant’s employment; and restriction of defendant’s employment opportunities. 

(Ibid.)

As to the restitution fine, the appellate court in Dueñas stated: “Unlike the 

assessments discussed above, the restitution fine is intended to be, and is recognized as, 

additional punishment for a crime. (People v. Hanson (2000) 23 Cal.4th 355, 363.)”

(Dueñas, supra, 30 Cal.App.5th at p. 1169.) It observed: “As a result of . . .

section 1202.4, subdivision (c)’s prohibition on considering the defendant’s ability to pay 

the minimum fine, the criminal justice system punishes indigent defendants in a way that 

it does not punish wealthy defendants. In most cases, a defendant who has successfully 

fulfilled the conditions of probation for the entire period of probation has an absolute 

statutory right to have the charges against him or her dismissed. ([§] 1203.4, 

subd. (a)(1).) The defendant must be ‘released from all penalties and disabilities 

resulting from the offense with which he or she has been convicted,’ with the exception 

of driver’s license revocation proceedings. (Ibid.; Veh. Code, § 13555.) But if a 

probationer cannot afford the mandatory restitution fine, through no fault of his or her 

own he or she is categorically barred from earning the right to have his or her charges 

dropped and to relief from the penalties and disabilities of the offense for which he or she 

has been on probation, no matter how completely he or she complies with every other 

condition of his or her probation. Instead, the indigent probationer must appeal to the 

discretion of the trial court and must persuade the court that dismissal of the charges and 

relief from the penalties of the offense is in the interest of justice. ([§] 1203.4, 

subd. (a)(1).)” (Id. at pp. 1170-1171.) The appellate court impliedly found these 

differences violated an indigent person’s right to due process. (See id. at pp. 1171-1172.)

The appellate court concluded in Dueñas that “due process of law requires the trial 

court to conduct an ability to pay hearing and ascertain a defendant’s present ability to 

pay before it imposes court facilities and court operations assessments under . . .

section 1465.8 and Government Code section 70373.” (Dueñas, supra, 30 Cal.App.5th at 
37

p. 1164.) It also concluded that although “section 1202.4 bars consideration of a 

defendant’s ability to pay unless the judge is considering increasing the fee over the 

statutory minimum, the execution of any restitution fine imposed under this statute must 

be stayed unless and until the trial court holds an ability to pay hearing and concludes that 

the defendant has the present ability to pay the restitution fine.” (Ibid.)

3. Forfeiture Rule

The People argue that defendant forfeited his Dueñas claim because he did not 

raise it below and because there was no existing case law foreclosing the due process 

challenge that he now raises.

Here, the trial court imposed the minimum restitution fine of $300. 

Section 1202.4, subdivision (c), prohibited the court from considering ability to pay in 

imposing the minimum. That provision stated in pertinent part at the time of defendant’s 

offenses in 2015 and at the time of sentencing in May of 2017, and still does state in 

pertinent part: “The court shall impose the restitution fine unless it finds compelling and 

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

defendant’s inability to pay shall not be considered a compelling and extraordinary 

reason not to impose a restitution fine. Inability to pay may be considered only in 

increasing the amount of the restitution fine in excess of the minimum fine . . . .” 

(Stats. 2012, ch. 873, § 1.5; Stats. 2016, ch. 37, § 3.)

We are well aware that as a general rule, a criminal defendant’s failure to object to 

financial obligations imposed upon a grant of probation or sentencing constitutes 

forfeiture of any appellate challenges to them. (See People v. Aguilar (2015) 60 Cal.4th 

862, 864 [forfeiture rule applies to challenges to probation-related costs and appointed 

counsel fees]; People v. Trujillo (2015) 60 Cal.4th 850, 853-854, 858 [forfeiture rule 

applies to challenges to probation supervision and presentence investigation fees].) 

Nevertheless, “[r]eviewing courts have traditionally excused parties for failing to raise an 

issue at trial where an objection would have been futile or wholly unsupported by 
38

substantive law then in existence. [Citations.]” (People v. Welch (1993) 5 Cal.4th 228, 

237-238.)

“In determining whether the significance of a change in the law excuses counsel’s 

failure to object at trial, we consider the ‘state of the law as it would have appeared to 

competent and knowledgeable counsel at the time of the trial.’ [Citation.]” (People v. 

Black (2007) 41 Cal.4th 799, 811.) The forfeiture rule does not apply “ ‘when the 

pertinent law later changed so unforeseeably that it is unreasonable to expect trial counsel 

to have anticipated the change.’ [Citations.]” (Id. at p. 810.) In applying the rule, we 

focus on “practical considerations as to what competent and knowledgeable members of 

the legal profession should reasonably have concluded the law to be.” (People v. De 

Santiago (1969) 71 Cal.2d 18, 23.)

In People v. Long (1985) 164 Cal.App.3d 820, an appellate court rejected the 

defendant’s argument that “[n]otwithstanding the apparently mandatory language of 

[former] section 1202.4, subdivision (a), . . . imposition of the $1,000 restitution fine at 

the time of his sentencing without consideration of his ability to pay constituted a denial 

of due process.” (Id. at p. 824.) The court concluded that the imposition of a $1,000 

restitution fine involved “no constitutional infirmity” since there was no suggestion that 

payment of the fine would be a condition of the defendant’s release on parole or that his 

inability to pay the fine might result in further incarceration. (Id. at p. 828.) This has 

been the legal understanding for decades.

At the time of sentencing on March 6, 2017, the trial court was statutorily 

compelled to impose the mandatory assessments (§ 1465.8; Gov. Code, § 70373) and the 

minimum restitution fine (§ 1202.4, subds. (b), (c)). Dueñas was not decided until 2019.

In a footnote, the appellate court in Dueñas disagreed with the due process 

analysis in Long. (Dueñas, supra, 30 Cal.App.5th at p. 1172, fn. 10.) In Dueñas, the 

court took the unprecedented position that merely imposing an assessment or restitution 

fine without first considering a criminal defendant’s ability to pay violated the state and 
39

federal Constitutions “because it simply punish[ed] [the defendant] for being poor.” 

(Id. at p. 1160.) “[N]o California court prior to Dueñas had held it was unconstitutional 

to impose fines, fees or assessments without a determination of the defendant’s ability to 

pay. . . . When, as here, the defendant’s challenge on direct appeal is based on a newly 

announced constitutional principle that could not reasonably have been anticipated at the 

time of trial, reviewing courts have declined to find forfeiture. [Citations.]” (People v. 

Castellano (2019) 33 Cal.App.5th 485, 489.)

We conclude that the forfeiture rule does not apply because defense counsel could 

not have been expected to reasonably anticipate the change in the law represented by 

Dueñas. (See People v. Jones (2019) 36 Cal.App.5th 1028, 1030-1034 (Jones).)

4. Remand Not Required under Dueñas

The People maintain that it can be presumed that defendant, who has been 

sentenced to 36 years in prison, has “the ability to satisfy the imposed assessments and 

[restitution] fine though his prison wages.” They assert that defendant’s due process 

claim fails because the record does not disclose that he will be unable to satisfy the 

challenged assessments and restitution fine. Defendant contends that paid work may not 

be available to him in prison and that, even if it is, the record does not demonstrate that 

he could earn enough to pay those amounts while in prison.

As indicated, the defendant in Dueñas was “an indigent and homeless mother of 

young children.” (Dueñas, supra, 30 Cal.App.5th at p. 1160) “She ha[d] cerebral palsy, 

and because of her illness she [had] dropped out of high school and [did] not have a job.” 

(Ibid.) Unlike defendant Dueñas whose inability to pay going forward was evident, 

defendant has not cited any evidence in the appellate record that supports his asserted 

inability to pay, “beyond the bare fact of his impending incarceration.” (People v. 

Gamache (2010) 48 Cal.4th 347, 409.) He chose not to give a statement to the probation 

officer preparing the presentence probation report. There are no facts in the record before 
40

us to suggest that defendant, who is now only 50 years old, will be unable to work in 

prison.

Defendant has been sentenced to a lengthy prison term. Section 2700 states in 

part: “The Department of Corrections shall require of every able-bodied prisoner 

imprisoned in any state prison as many hours of faithful labor in each day and every day 

during his or her term of imprisonment as shall be prescribed by the rules and regulations 

of the Director of Corrections.” (See Cal. Code of Regs., tit. 15, § 3040.) The pay rate 

for an inmate’s paid assignment is “based upon the technical skill and productivity 

required for the assignment.” (CDCR 2019 Department Operations Manual § 51120.5.2, 

p. 355; see Cal. Code Regs., tit. 15, § 3041.2, subd. (a).) The general pay schedule for 

inmates establishes the hourly and monthly pay rates, and the very lowest pay rate for the 

very lowest skill level is set at $0.08 per hour or $12 per month, for full time 

employment. (Cal. Code Regs., tit. 15, § 3041.2, subd. (a); CDCR 2019 Department

Operations Manual § 51120.6, p. 355.) The highest monthly rate of pay is presently set at 

$56. (CDCR 2019, supra § 51120.6, p. 355.) While the wages are not much, they would 

add up over time, assuming that defendant, who has not shown or claimed otherwise on 

appeal, is physically capable of working.

While “[a]n inmate’s assignment to a paid position is a privilege dependent on 

available funding, job performance, seniority and conduct” (Cal. Code Regs., tit. 15, 

§ 3040, subd. (k)), we do not accept that defendant necessarily will be unable to pay the 

challenged assessments and restitution fine due to indigency. (See, e.g., § 1202.4, 

subd. (d) [“Consideration of a defendant’s inability to pay may include his or her future 

earning capacity.”]) In addition, it is not apparent on this record that defendant will have 

no other future sources of money, such as gifts, while in prison (cf. People v. Potts (2019) 

6 Cal.5th 1012, 1055 [capital defendant had represented that “his only source of income 

was the small gifts he occasionally received”], 1057, fn. 13), some of which could be 
41

applied toward the restitution fine. (See, e.g., § 2085.5, subds. (a), (c), (e), (j), (m); 

Cal. Code Regs., tit. 15, § 3097, subds. (d)-(j).)

Courts have generally accepted that a defendant’s ability to pay includes the 

prospect of earning wages in prison. (See People v. Hennessey (1995) 37 Cal.App.4th 

1830, 1837; People v. Frye (1994) 21 Cal.App.4th 1483, 1487; see also Jones, supra, 36 

Cal.App.5th at p. 1035; People v. Johnson (2019) 35 Cal.App.5th 134, 139-140.) 

Consequently, we conclude that a remand to determine defendant’s ability to pay as was 

done in Dueñas is unnecessary to comport with due process.

6

Aside from invoking Dueñas, defendant has not presented any legal analysis or

cited legal authorities to support his assertion that the court violated his federal 

constitutional rights under the Eighth Amendment’s excessive fines clause and his federal 

due process and equal protection rights by imposing the court facilities assessment, the 

court operations assessment, and a restitution fine without first finding that he had the 

ability to pay. We deem constitutional arguments beyond Dueñas’s holding to be 

forfeited. (See People v. Stanley (1995) 10 Cal.4th 764, 793; Cal. Rules of Court, 

rule 8.204(a)(1)(B); see also People v. Nunez and Satele (2013) 57 Cal.4th 1, 51.)

H. Amendment of the Abstract of Judgment

Defendant argues that the abstract of judgment must be amended to accurately 

reflect the firearm enhancements attached to counts 1, 2, 4, and 5. The People concede 

the point. As to counts 1, 2, and 5, the jury found true the firearm enhancement 

allegations under section 12022, subdivision (a)(1). As to count 4, the jury found true the 

firearm allegation under section 12022.53(b). The original abstract of judgment does not 

correctly reflect those enhancements. After resentencing upon remand, the trial court 

must ensure that an amended abstract of judgment correctly reflecting the sentence, 

including the firearm enhancements ultimately imposed, is prepared.

6

In light of our conclusion, we do not decide in this appeal whether due process 

requires an ability-to-pay hearing before the court imposes an assessment or fine.
42

IV. DISPOSITION

The judgment is reversed. We remand for a new sentencing hearing at which the 

trial court shall (1) determine whether to exercise its discretion pursuant to section 1385 

to strike the 10-year firearm enhancement (§ 12022.53(b)), (2) determine whether to 

exercise its discretion pursuant to section 1385 to strike the five-year enhancement for a 

prior serious felony conviction (§ 667(a)), (3) stay the punishment imposed for either the 

robbery (count 5) or the assault with a firearm (count 6) pursuant to section 654, and

(4) resentence defendant accordingly and ensure that an amended abstract of judgment is 

correctly prepared.
_________________________________

ELIA, J.

WE CONCUR:

_______________________________

GREENWOOD, P.J.

_______________________________

GROVER, J.

People v. Yanez

H044528