Filed 8/24/20 P. v. Gamboa CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE GAMBOA,

Defendant and Appellant.

E072259

(Super.Ct.No. FSB17000629)

OPINION

APPEAL from the Superior Court of San Bernardino County. David J. Mazurek, 

Judge. Affirmed with directions.

Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

General, Julie L. Garland, Assistant Attorney General, Paige B. Hazard and Steve 

Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
2

INTRODUCTION

On February 5, 2017, Alberto Casillas was gunned down near his home. 

Defendant, Jose Enrique Gamboa, was charged and convicted by a jury of first degree

murder (Pen. Code, § 187)1 of Alberto Casillas and of personally using a firearm (§ 

12022.53, subd. (b)), personally using and intentionally discharging a firearm (§ 

12022.53, subd. (c)), and personally using and intentionally discharging a firearm causing 

death (§ 12022.53, subd. (d)) during the commission of a felony. The court also found 

that defendant had suffered four prior convictions for which he had served prison terms 

(prison priors) pursuant to section 667.5, subdivision (b). Defendant was sentenced to an 

aggregate term consisting of an indeterminate term of 50 years to life plus a determinate 

term of four years for the prison priors.

2 Additionally, defendant was ordered to pay a 

$3,000 restitution fine (§ 1202.4, subd. (b)), a matching parole revocation fine that was 

suspended (§ 1202.45), a $30 criminal convictions assessment (Gov. Code, § 70373, 

subd. (a)(1)), and a $40 court operations assessment (§ 1465.8, subd. (a)(1)). Defendant 

appealed.

On appeal, defendant contends: (1) the trial court erred in denying defendant’s 

motion for a new trial; (2) the trial court violated his Sixth Amendment right to confront 

witnesses against him by limiting cross-examination of a prosecution witness; (3) the trial 

court erred in instructing the jury on CALCRIM No. 372, regarding flight after crime; (4)

1 All references, unless otherwise noted, are to the Penal Code. 

2 The court stayed the sentences for sections 12022.53 subdivisions (b) and (c) 

pursuant to section 12022.53, subdivision (f).
3

the combined effect of these errors denied defendant a fair trial; (5) there was insufficient 

evidence defendant served four prior prison terms within the meaning of section 667.5, 

subdivision (b); (6) there is no evidence that defendant has the ability to pay the 

restitution fine in the amount of $3000. In a supplemental brief, defendant asserts and

respondent concedes, that his sentence must be modified under Senate Bill No. 136 

(Senate Bill 136) to strike the one-year enhancements for prior convictions.3

BACKGROUND

Near 4:00 a.m. on February 5, 2017, Alberto Casillas (Casillas) and his girlfriend, 

Jennifer Richardson (Richardson), were walking to their home in San Bernardino. On 

their walk home, Casillas’s longtime friend V.C.4 called out to Richardson from his 

vehicle. Richardson and Casillas stopped to speak to V.C., who in turn parked and exited 

his white vehicle. A short time later, an individual known to Casillas, Richardson, and 

V.C. only as “Kiki” (Kiki) pulled up in a black Honda vehicle and parked near them.

Kiki was later identified as defendant Gamboa. 

After exiting his vehicle, defendant approached Richardson, Casillas, and V.C.

Casillas owed defendant money for drugs. Defendant immediately requested Casillas pay 

him. According to Richardson, before Casillas could answer, defendant swung at 

3

In light of the legislative changes enacted by way of Senate Bill 136, 

defendant’s argument that there was insufficient evidence to support the true finding on 

the four prison prior enhancement allegations under section 667.5, subdivision (b), is now 

moot. 

4 This witness had acted as a confidential informant for law enforcement in the 

past, so we will refer to him by his initials, V.C.
4

Casillas and missed. In turn, Casillas ran down the street while Richardson tried to work 

out a deal with defendant and V.C. to pay Casillas’s debt. Richardson and defendant

agreed that Richardson would pay defendant what was owed the next day. 

After making the agreement, Richardson left V.C. and defendant to catch up to 

Casillas and continue home. V.C. then saw defendant with a gun and heard defendant

say something along the lines of wanting to shoot. Then, V.C. reversed his car into the 

driveway of a nearby apartment complex. 

Meanwhile, defendant drove down the street to where Casillas and Richardson 

were at. Defendant exited his car and pointed a gun at Casillas and Richardson. Casillas 

ran, and defendant fired nine shots. V.C. saw defendant fire the shots. Richardson heard 

Casillas yell, “I’m hit,” and saw his body on the ground. Defendant got back into his car 

after the shooting, while V.C. jumped into his own car and left in the opposite direction 

of the crime scene. Casillas was transported to the hospital but died. The autopsy 

determined the cause of death to be a gunshot wound to the back. 

Richardson identified the shooter as defendant throughout the investigation.

Initially, detectives showed her two six pack photo lineups to identify Kiki, but neither

lineup included a photo of defendant, so Richardson did not identify anyone. However, 

the third six pack photo lineup included a photograph of defendant and Richardson 

identified defendant as Kiki, the shooter. 

As part of the investigation, detectives also spoke to V.C. Initially, V.C. was 

hesitant to speak to detectives regarding the shooting and asked to speak to a detective
5

with whom he was familiar. Although that detective did not appear at the interview, V.C.

cooperated with the detectives investigating Casillas’s murder without the attendance of 

the requested detective. That detective did appear at the end of V.C.’s interview, but did 

not speak to V.C. regarding the case, nor did that detective offer or promise V.C.

anything in exchange for his cooperation in this case. V.C. told detectives that he 

recalled the shooting and saw Kiki shoot Casillas. V.C. then identified Kiki as defendant 

and helped police locate him. 

When interviewed by detectives, defendant admitted to being at the crime scene in 

a black vehicle. Defendant also admitted to having a confrontation with Casillas.

Additionally, defendant corroborated Richardson’s attempt to settle Casillas’s debt with 

him. Defendant also confirmed he was known as Kiki. 

By way of an amended information, defendant was charged with the murder (§ 

187) of Casillas. It was further alleged that in the commission of the crime, defendant 

personally and intentionally discharged a firearm causing great bodily injury and death 

(§12022.53, subd. (d); personally using and intentionally discharging a firearm (§ 

12022.53, subd. (c)), and personally using a firearm (§ 12022.53, subd. (b)). It was 

further alleged that defendant had suffered four prior convictions for which he had served 

separate prison terms (prison priors) (§ 667.5, subd. (b)).

A jury found defendant guilty of all charges on November 16, 2018. On February 

1, 2019, defendant filed a motion for a new trial or modification of verdict arguing 

insufficient credible evidence to sustain the verdict. The prosecution opposed the motion 
6

which was denied on March 1, 2019. The court noted that it found Richardson was 

particularly credible, the evidence supported her testimony, and that all the witnesses,

including defendant himself, placed defendant at the crime scene. Therefore, the only 

logical conclusion was that defendant was the shooter. 

After ruling on the motion, the court sentenced defendant to a total indeterminate 

term of 50 years to life plus a determinate term of four years. The indeterminate term 

consisted of 25 years to life for the murder charge (§ 187) plus a 25-years to life 

consecutive term for personally using and intentionally discharging a firearm causing 

death (§ 12022.53, subdivision (d)). The determinate sentence consisted of one year for 

each prior prison conviction pursuant to section 667.5, subdivision (b). All other 

sentences were stayed. Additionally, defendant was ordered to pay a $3,000 restitution 

fine (§ 1202.4, subd. (b)), a matching parole revocation fine that was suspended (§ 

1202.45), a $30 criminal convictions assessment (Gov. Code § 70373, subd. (a)(1)), and a 

$40 court operations assessment (§ 1465.8, subd. (a)(1)). 

Defendant timely appealed. 

DISCUSSION

1. Trial Court Properly Denied Defendant’s Motion for a New Trial 

Defendant contends that the trial court erred in denying defendant’s motion for a 

new trial because there is insufficient evidence to support the jury’s verdict. Specifically, 

defendant argues that there is a lack of witness credibility and points to inconsistencies 

between Richardson’s and V.C.’s testimony. We disagree. 
7

A criminal defendant may move for a new trial on specified grounds. (§ 1181.) 

Among these are trial or instructional error, or prosecutorial misconduct (§ 1181, subd. 

5), a verdict contrary to the law or facts (§ 1181, subds. 6, 7), newly discovered evidence 

(§ 1181, subd. 8), and juror misconduct (§ 1181, subds. 3, 4), including the jury’s receipt

any evidence out of court. (§ 1181, subd. 2). (People v. Ault (2004) 33 Cal.4th 1250,

1260.) 

In reviewing the evidence upon the filing of a new trial motion challenging the 

reliability of witness’s testimony, “a trial court must review the evidence independently, 

considering the proper weight to be afforded to the evidence and then deciding whether 

there is sufficient credible evidence to support the verdict. [Citation.]” (People v. Lewis

(2001) 26 Cal.4th 334, 364.) “A trial court’s ruling on a motion for new trial is so 

completely within that court’s discretion that a reviewing court will not disturb the ruling 

absent a manifest and unmistakable abuse of that discretion. [Citation.]” (People v. 

Hayes (1999) 21 Cal.4th 1211, 1260-1261.) 

Thus, the appellate court reviews the evidence in the light most favorable to the 

trial court’s ruling, drawing all factual inferences that favor the trial court’s decision. 

(People v. Johnston (2003) 113 Cal.App.4th 1299, 1303–1304.) “The trial court’s factual 

findings, express or implied, . . . will be upheld if supported by [any] substantial 

evidence.” (People v. Drake (1992) 6 Cal.App.4th 92, 97.) After all, “‘[it] is the 

exclusive province of the trial court to judge the credibility of the witnesses, determine 

the probative force of testimony, and weigh the evidence [citations].’” (People v. Sheran
8

(1957) 49 Cal.2d 101, 109.) Therefore, the order will be reversed only if it can be said as 

a matter of law there is no substantial evidence to support a judgment contrary to the 

verdict. (Ibid.)

Here, the trial court ruled there was sufficient evidence of defendant’s guilt to 

support the jury’s verdict and denied the motion for a new trial. After considering 

defendant’s credibility contentions, the trial court noted that it presided over the trial,

recalled the evidence, and that in weighing the evidence independently would have come 

to the same verdict as the jury. Despite defendant’s contentions, the trial court “found 

Ms. Richardson’s testimony particularly credible. And especially in conjunction with the 

video interview with the detective within hours after the incident. . . . [¶] . . . Ms. 

Richardson’s testimony was also consistent with the physical evidence that was found in 

the case, the shell casings, the position of the vehicle.” 

The court went on to state that all witnesses, including defendant himself, placed 

defendant at the crime scene and agreed that there was a confrontation regarding the 

money the victim owed defendant. The court also noted that all witnesses, including the 

defendant, stated defendant went to and ended up at the same intersection at which the 

victim was shot to death. The trial court also stated it would not make sense for a third 

party to have shown up at the same time to commit the killing. 

Given that it is the exclusive province of the trial court to weigh the evidence, 

judge witness credibility and determine the probative force of testimony and that the trial 

court’s ruling is supported by substantial evidence, we find there is sufficient evidence to 
9

support the jury’s verdict. (See People v. Sheran, supra, 49 Cal.2d at p. 109; People v. 

Drake, supra, 6 Cal.App.4th at p. 97.) Therefore, the trial court did not err in denying 

defendant’s motion for a new trial. 

2. The Limited Cross Examination of the Confidential Informant Was 

Harmless Beyond a Reasonable Doubt

Defendant argues the trial court violated his Sixth Amendment right to confront 

witnesses against him by limiting his cross-examination of the prosecution’s confidential 

informant. We disagree. 

a. Background 

Defendant made a motion in limine requesting an Evidence Code section 402 

hearing regarding the interactions of two detectives with V.C., because they had not 

submitted reports about their interactions and conversations with V.C. Prior to the in 

limine hearing, the trial court ruled in chambers that details of prior contact between 

Detective Luna and V.C. concerning instances when V.C. had been a confidential 

informant were irrelevant, although for purposes of the Evidence Code section 402 

hearing, counsel was permitted to lay a foundation that some prior contact had occurred.

At the Evidence Code section 402 hearing, Detective Luna testified he had roughly 10 to 

15 contacts with V.C. between 2010 and 2017. However, no promises of assistance were 

made. 

During defendant’s cross-examination of V.C. at trial, V.C. testified that he knew 

Detective Luna, so defense counsel requested a sidebar, in which he asked to be allowed 
10

to question V.C. about his activities as a confidential informant. Defense counsel argued

it was relevant for the jury to know that V.C. is somebody who works with law 

enforcement, and that he was a snitch. The court found the evidence was irrelevant 

where Detective Luna was not involved in this case, and V.C. was not made any promises 

or offers in exchange for his cooperation. 

However, V.C. testified that when he was interviewed by Detective Cunningham, 

he asked for Detective Luna because he was not comfortable speaking on the record, but 

that the detective he asked for did not show up until the end of the interview. V.C. also 

testified he was initially hesitant to testify at trial because he had already been beaten up 

over his testimony. V.C. revealed that he was in custody, under protective custody, for 

failure to appear to testify previously in the case. 

b. Discussion

Trial courts have considerable discretion in “restricting cross-examination that is 

repetitive, prejudicial, confusing of the issues, or of marginal relevance.” (People v. 

Chatman (2006) 38 Cal.4th 344, 372.) However, “‘[n]ot every restriction on a 

defendant’s desired method of cross-examination is a constitutional violation.’” (People 

v. Elliott (2012) 53 Cal.4th 535, 579, citing Chatman, supra, at p. 372.)

Thus, unless the defendant can show that the prohibited cross-examination would 

have produced “‘a significantly different impression of [a witness’s] credibility’ 

[citation], the trial court’s exercise of its discretion in this regard does not violate the 

Sixth Amendment.” (People v. Frye (1998) 18 Cal.4th 894, 946.) Therefore, when 
11

reviewing a trial court’s decision regarding the scope of cross-examination we review for 

abuse of discretion. (United States v. Bonanno (9th Cir. 1988) 852 F.2d 434, 439, cert. 

denied, (1989) 488 U.S. 1016.) It is the defendant’s burden to show that the prohibited 

cross-examination would have produced a significantly different impression of the 

witness’s credibility. (People v. Chatman, supra, 38 Cal.4th at p. 372.) 

“Confrontation clause violations are subject to federal harmless-error analysis 

under Chapman v. California (1967) 386 U.S. 18, 24.” (People v. Geier (2007) 41 

Cal.4th 555, 608.) Under this analysis, “‘an otherwise valid conviction should not be set 

aside if the reviewing court may confidently say, on the whole record, that the 

constitutional error was harmless beyond a reasonable doubt.’” (Ibid., quoting Delaware 

v. Van Arsdall (1986) 475 U.S. 673, 681).) “The harmless error inquiry asks: ‘Is it clear 

beyond a reasonable doubt that a rational jury would have found the defendant guilty 

absent the error?’ [Citation.]” (People v. Geier, supra, 41 Cal.4th at p. 608.) 

In the present case, the issue of V.C.’s possible motivation or bias was an issue 

that the trial court took into consideration as early as the beginning of the trial. Yet, 

because the detective for whom V.C. had worked was not assigned to the investigation of 

the current offense and did not make any offers or promises to V.C. in return for his 

cooperation, testimony about V.C.’s work as a confidential informant would not have 

revealed a motive or bias. Further, the prohibited cross-examination would not have 

produced “a significantly different impression of [a witness’s] credibility.” (Delaware v. 

Van Arsdall, supra, 475 U.S. at p. 680.) 
12

There was no error. However, even if the court had erred, any error would have 

been harmless beyond a reasonable doubt, given Richardson’s testimony about the 

shooting and the identification of defendant as the shooter. Given the evidence, even

setting aside V.C.’s testimony and any possible error from it, it is clear the jury would 

have found defendant guilty. (See People v. Geier, supra, 41 Cal.4th at p. 608.) 

3. Trial Court Did Not Err in Giving the Flight Instruction, CALCRIM No. 

372.

Defendant argues it was error to instruct the jury it could consider defendant’s 

flight as consciousness of guilt (CALCRIM No. 372 ) because the main issue in the case 

was identification, and the instruction created an unsupported inference of defendant’s 

guilt.

5 We disagree. 

The flight instruction reads: “If the defendant fled [or tried to flee] (immediately 

after the crime was committed/[or] after (he/she) was accused of committing the crime), 

that conduct may show that (he/she) was aware of (his/her) guilt. If you conclude that the 

defendant fled [or tried to flee], it is up to you to decide the meaning and importance of 

that conduct. However, evidence that the defendant fled [or tried to flee] cannot prove 

guilt by itself.” (CALCRIM No. 372 (2019).)

5 The People contend that defendant has forfeited the issue by failing to object to 

CALCRIM No. 372 in the trial court. However, an appellate court “may also review any 

instruction given, refused or modified, even though no objection was made thereto in the 

lower court, if the substantial rights of the defendant were affected thereby.” (§ 1259.)

Additionally, the California Supreme Court has found that challenges to the flight 

instruction on appeal are cognizable even in the absence of a contemporaneous objection 

in the lower court. (People v. Rogers (2013) 57 Cal.4th 296, 332, fn. 5.)
13

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

defendant departed the crime scene under circumstances suggesting that his movement 

was motivated by a consciousness of guilt.” [Citations.] “‘[F]light requires neither the 

physical act of running nor the reaching of a far-away haven. [Citation.] Flight 

manifestly does require, however, a purpose to avoid being observed or arrested.’” 

[Citation.]’ [Citation.]” (People v. Leon (2015) 61 Cal.4th 569, 607.)

“If there is evidence identifying the person who fled as the defendant, and if such 

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

(§ 1127c.) ‘The jury must know that it is entitled to infer consciousness of guilt from 

flight and that flight, alone, is not sufficient to establish guilt. (§ 1127c.) The jury’s need 

to know these things does not change just because identity is also an issue. Instead, such 

a case [only] requires the jury to proceed logically by deciding first whether the [person 

who fled] was the defendant and then, if the answer is affirmative, how much weight to 

accord to flight in resolving the other issues bearing on guilt. The jury needs the 

instruction for the second step.’ [Citation.]” (People v. Mason (1991) 52 Cal.3d 909, 

943.) “The instruction also does not lessen the prosecution’s burden of proof even if the 

identity of the perpetrator is at issue.” (People v. Johnson (2015) 61 Cal.4th 734, 774, 

citing People v. Avila (2009) 46 Cal.4th 680, 710.)

At one time, it was deemed improper to give an instruction on flight where 

identity was a contested issue. (People v. Anjell (1979) 100 Cal.App.3d 189, 199.) The 

reasoning was that flight “is a factor tending to connect an accused with the commission 
14

of an offense.” (People v. Moore (1963) 211 Cal.App.2d 585, 600.) However, a flight 

instruction which assumes “‘neither the guilt nor the flight of the defendant’” is not 

erroneous. (People v. Anjell, supra, 100 Cal.App.3d at p. 200, citing People v. Cannady

(1972) 8 Cal.3d 379, 392, quoting People v. Daener (1950) 96 Cal.App.2d 827, 832-

833.) In other words, an instruction on flight is only improper if it does appear to assume 

such “guilt.” (Anjell, supra.)

The statement from Anjell, supra, has largely been rejected in more recent years. 

(People v. Mason (1991) 52 Cal.3d 909, 943.) Under the more modern approach if there 

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

relied upon as tending to show guilt,” then it is proper to instruct on flight. (§ 1127c; 

People v. Mason, supra, 52 Cal.3d at p. 943.)

Here, although defendant proffered a third party culpability defense, this was not a 

mistaken identity case. There was evidence from two eye witnesses identifying

defendant as the person who shot the victim and then fled, which shows guilt.

Specifically, Richardson and V.C. both identified defendant as the shooter. V.C. 

observed defendant get back into his car and leave the scene. Other witnesses observed a 

car fleeing the scene. This evidence showed defendant departed the crime scene under 

circumstances suggesting that his movement was motivated by a consciousness of guilt. 

Thus, there was evidence of guilt aside from defendant’s flight, and defendant’s 

identity as the person fleeing was established. The court properly instructed the jury that 
15

“If you conclude that the defendant fled, it is up to you to decide the meaning and 

importance of that conduct.” The jury was properly instructed.

4. Defendant Was Not Denied a Fair Trial 

Defendant asserts his trial was infected by the errors committed, depriving him of 

a fair trial. We disagree. 

It is true that a series of trial errors, though independently harmless, may in some 

circumstances rise by accretion to the level of reversible and prejudicial error. (People v. 

Cunningham (2001) 25 Cal.4th 926, 1009; People v. Hill (1998) 17 Cal.4th 800, 844.) 

However, we have found no errors, so there are no collective errors to evaluate for

prejudice. (See People v Lua (2017) 10 Cal.App.5th 1004, 1019 [“we find any arguable 

errors also to be harmless when considered collectively, for the same reasons we have 

found no prejudice from them individually”].)

Defendant was entitled to a fair trial, but not a perfect one. (People v. 

Cunningham, supra, 25 Cal.4th at pp. 926, 1009, and cases cited; see also, People v. 

Jasso (2012) 211 Cal.App.4th 1354, 1378.) There was no series of trial errors resulting 

in prejudice to defendant, and he was not deprived of a fair trial. 

5. Defendant’s Prior Prison Enhancements Must Be Stricken 

In defendant’s original opening brief, he argued there was insufficient evidence 

that defendant had suffered four separate prior prison terms, and sought to have one of 

the prior prison enhancements be stricken. However, in a supplemental brief, defendant 

seeks retroactive application of the recent amendment to section 667.5, as part of Senate 
16

Bill 136 which requires that all four enhancements be stricken, rendering the original 

issue moot. The People concede that defendant is entitled to relief. We agree. 

Prior to the enactment of Senate Bill 136, section 667.5 provided for the

imposition of a one-year term for each prior separate prison term served by a defendant. 

However, Senate Bill 136 (2019–2020 Reg. Sess.), amended former section 667.5, 

subdivision (b), and went into effect on January 1, 2020. Under this amendment, a oneyear prior prison term enhancement will only apply if a defendant served a prior prison 

term for a sexually violent offense as defined in Welfare and Institutions Code section 

6600, subdivision (b). (See Stats. 2019, ch. 590, § 1; People v. Lopez (2019) 42 

Cal.App.5th 337, 340-341; see also, People v. Gastelum (2020) 45 Cal.App.5th 757, 

772.) 

The statute is plainly ameliorative in nature because it reduces punishment. An 

amendatory statute lessening punishment is presumed to apply in all cases not yet 

reduced to final judgment as of the amendatory statute’s effective date, unless the 

enacting body indicates a contrary intent, by the inclusion of either an express saving 

clause or its equivalent. (People v. Lara (2019) 6 Cal.5th 1128, 1134; People v. DeHoyos

(2018) 4 Cal.5th 594, 600.) The parties agree that Senate Bill 136 is retroactive and the 

amendment to section 667.5, subdivision (b), applies in this case.

We therefore agree with other courts before us that have applied the amendment 

retroactively to all cases not final on appeal. (People v. Lopez, supra, 42 Cal.App.5th at 

p. 341, citing In re Estrada (1965) 63 Cal.2d 740, 742; see also, People v. Cruz (2020) 46 
17

Cal.App.5th 715, 738-739.) Because none of defendant’s prison prior convictions were 

for sexually violent offenses, we remand the case with directions to strike the one-year 

enhancements. (People v. Keene (2019) 43 Cal.App.5th 861, 865.)

6. Defendant Forfeited Any Challenge to the Restitution Fine and Failed to 

Show Inability to Pay the Nominal Assessments.

Defendant argues that the trial court improperly imposed a $3,000 restitution fee 

(§ 1202.4, subd. (b)), a $40 court operations assessment (§ 1465.8), and a $30 criminal 

conviction assessment (Gov. Code, § 70373) fee without first considering his ability to 

pay. However, defendant forfeited any challenge to the $3,000 restitution fine by failing 

to object. As for the imposition of court fees and assessments, even if defendant was 

entitled to a hearing on his ability to pay, any error was harmless beyond a reasonable 

doubt.

a. The Restitution Fine

It has long been recognized that pursuant to section 1202.4, subdivision (c), trial 

courts may consider defendant’s inability to pay when the imposed restitution is above 

the statutory minimum as defined in subdivision (b)(1). (§ 1202.4, subd. (c).) Therefore, 

if a defendant does not timely object to the restitution fine in the trial court, appellate 

challenge to that restitution fine is forfeited. (People v. Taylor (2019) 43 Cal.App.5th 

390, 399-401; People v. Jones (2019) 36 Cal.App.5th 1028, 1033; People v. Frandsen

(2019) 33 Cal.App.5th 1126, 1154.)
18

Here, probation recommended a restitution fine of $10,000. Defense counsel 

asked the restitution be reduced to the statutory minimum arguing that “the mandatory 

minimum be imposed so that if the [c]ourt does impose an actual restitution amount for 

[defendant] to pay, his funds can go towards the actual restitution so that the family gets 

reimbursed rather than the money needing to go to the fund.” The trial court imposed a 

reduced restitution fine in the amount of $3,000 in response to defendant’s objection.

Thereafter, defendant made no further objection. Any challenge to the reduced restitution 

fine has been forfeited. (See People v. Taylor, supra, 43 Cal.App.5th at pp. 399-401; 

People v. Jones, supra, 36 Cal.App.5th at p. 1033; People v. Frandsen, supra, 33 

Cal.App.5th at p. 1154.)

b. Court Fees and Assessments

Defendant also challenges the imposition of the court operations assessment and 

the criminal conviction assessment. With regards to the other imposed fees, a trial court 

must “conduct an ability to pay hearing and ascertain a defendant’s present ability to pay” 

before requiring a defendant to pay a restitution fine under section 1202.4 or assessments 

under section 1465.8 and Government Code section 70373. (People v. Dueñas (2019) 30 

Cal.App.5th 1157, 1164.) Dueñas was decided in January of 2019, and defendant was 

sentenced in March 2019. While the decision had only been filed two months before 

defendant’s sentence, we must assume defendant’s counsel was aware of it.

For cases involving fees or assessments imposed prior to the decision in Dueñas, 

we have held that a defendant was entitled to a hearing on his ability to pay unless the 
19

error was harmless. (Jones, supra, 36 Cal.App.5th at pp. 1034-1035.) The rationale for 

considering such an issue despite the lack of objection was the policy under which 

“‘[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 substantive law then 

in existence.’ [Citations.]” (People v. Brooks (2017) 3 Cal.5th 1, 92.) 

Here, we cannot say that an objection would have been futile because the decision 

in Dueñas had already been published, and, significantly, because the trial court did 

adjust the restitution fine at defense counsel’s request. Nevertheless, even if we were to 

reach the issue, defendant has failed to demonstrate prejudice. We will find Dueñas error 

harmless if the record demonstrates he cannot make a showing that he is eligible for 

relief. (People v. Jones, supra, 36 Cal.App.5th 1028, 1035.)

A defendant’s ability to pay includes “‘[his] ability to obtain prison wages and to 

earn money after his release from custody.’ [Citations.]” (People v. Cervantes (2020) 46 

Cal.App.5th 213, 229.) When determining whether the trial court’s failure to conduct an 

ability to pay hearing was harmless beyond a reasonable doubt, courts may consider the 

defendant’s potential prison wages. (People v. Taylor, supra, 43 Cal.App.5th at p. 402.) 

“Every able-bodied person . . . is obligated to work.” (Cal. Code Regs., tit. 15, § 3040, 

subd. (a); § 2700.) A prisoner’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); accord, People v. Rodriguez (2019) 34 Cal.App.5th 641, 649.) Prison 

wages range from $12 to $56 per month, depending on the job and skill level involved.
20

(Cal. Code Regs., tit. 15, § 3041.2, subd. (a)(1); People v. Cervantes (2020) 46 

Cal.App.5th 213, 229.) Fifty percent of a prisoner’s wages and trust account deposits 

will be deducted to pay any outstanding restitution fine, plus another 10 percent for the 

administrative costs of this deduction. (§ 2085.5, subds. (a), (e); Cal. Code Regs., tit. 15, 

§ 3097, subd. (f); People v. Rodriguez, supra, 34 Cal.App.5th at p. 649; see also, People 

v. Jones, supra, 36 Cal.App.5th at p. 1035.)

Here, defendant was sentenced to 50 years to life (not counting the four prison 

priors that will be stricken), and the record contains no indication he is either unhealthy 

or unable to work. (See People v. Cervantes, supra, 46 Cal.App.5th at p. 229.) Also, he 

has not demonstrated that he will be unable to pay off the fees and assessments during his 

term time. At the rate of $5.46 a month, the lowest monthly income he would earn after 

other deductions, defendant would be able to pay off the $40 court assessment fee and the 

$30 criminal conviction fee within one year and one month. (See People v. Taylor, 

supra, 43 Cal.App.5th at p. 402.) Thus, the error is harmless beyond a reasonable doubt. 

DISPOSITION

The convictions are affirmed. We remand to the trial court with orders to strike 

defendant’s four prison prior enhancements pursuant to the amended provision of section 

667.5, subdivision (b), as well as to modify the sentencing minutes and the abstract of 
21

judgment to reflect this change. In all other respects the sentence is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

CODRINGTON

J.

RAPHAEL

J.