Filed 11/1/21 P. v. Morgan CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOHN WILLIE MORGAN, JR.,

Defendant and Appellant. B30 4291

(Los Angeles County Super. Ct. No. K

A 116117 )

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

. Affirmed in part and
remanded with directions.

Waldemar D. Halka , under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Rene Judkiewicz , D eputy Attorneys General, for Plaintiff and Respondent.

_________________________2 Thirty

- seven

- year

- old John Willie Morgan (appellant) met
15

- year

- old Mackenzie J

. at a mall

, and began grooming her to become a prostitute for him. He convinced her she was his girlfriend and she orally copulated him and had sex ual
intercourse with him. One night, h e kidnapped her and forced her to work as a prostitute for him. He dissuaded her from reporting his criminal acts to authorities. Morgan was arrested in August 2017, tried in August 2019 and convicted of engaging
in four sex acts with Mackenzie (Pen

. Code

, 1 §§ 288, subd. (c)(1)

, 288a, subd. (b)(2); 261.5, subd ( d) ) , kidnapping her (§ 207,
subd. (a)), trafficking her by force, fear, fraud or threat (§236.1,
subd (c )(2))

, and dissuading her from reporting a crime (§ 136.1, subd. (b)(1))

. The jury found true the allegations that appellant had suffered two prior serious felony convictions (§ 667,
subd. (a)(1) which were also strike convictions (§§ 667, subds. (b)
thro ugh (i), 1170.12).
The trial court senten ced appellant to a t erm of 10 years eight months in prison plus a consecutive term of 90 years to life. The court also imposed various fines, fees

, and assessments. Appellant raises 10 claims of error, none of wh ich relate to
the conduct of the trial itself. Half of the claims arise from the hearing on appellant ’ s Marsden 2 motion for substitute appointed counsel, made on July 31, 2019, the day originally set for jury selection to begin

. He contends the trial cou rt erred in failing to declare a doubt as to his competency during that hearing, based

on his statements and behavior, together with his history of
mental health issues . He contends the trial court failed to

1 U ndesignated statutory references are to the Penal Code.

2 People v. Marsden (1970) 2 Cal.3d 118.3

provide him a fair hearing on his Marsden motio n and also erred in failing to grant the motion on the basis of an irreconcilable
conflict between him and his counsel. Appellant further contends the trial court erred in failing to conduct a Faretta 3 hearing to determine if appellant could represent him self, based on statements appellant made during the hearing on the Marsden motion. After appellant ’ s Marsden motion was denied, appe llant
refused to leave the lock up at the courthouse to attend trial . He contends the trial court failed to obtain a proper waiver of his right to be present at trial. Appellant ’ s remaining five claims of error relate to his sentence. He contends section 654 bars punishment for both the kidnapping and trafficking convictions, and for both the trafficking and witness dissuasi on convictions . Respondent agrees the kidnapping sentence sh ould have been stayed, but not the trafficking and witness dissuasion sentences

. Appellant further contends section 654 bars punishment for the lewd act
conviction because it was based on either the act of oral copulation or sexual intercourse which supported his convictions for those specific acts

. Appellant relatedly contends that the section 667, subdivision (a)(1) enhancement s to the witness
dissuasion conviction must be stricken if the unde rlying punishment is stayed pursuant to section 654. Finally, appellant
contends the trial court violated his state and federal constitutional rights to due process by imposing fines, fees and assessments without making a determination of his ability to

p ay.

3 Faretta v. California (1975) 422 U.S. 806, 819.4 We agree th e concurrent sentence for the kidnapping
conviction and the one year eight month sentence for the lewd act conviction must be stayed pursuant to section 654. We affirm the judgment of conviction in all other respects.

I. Background

– Pre trial Issues On appeal, appellant relies on a brief paragraph in a pre

preliminary hearing report prepared in April 2018 to show his history of mental issues. This paragraph states in its entirety:

“ According to Justice Data Interface Controller (JDIC), the
defendant i s labelled ‘ mentally disturbed, ’ however, per trial court information system (TCIS), the defendant was referred to mental health competency on October 4, 2017. On February 4, 2018, the court found the defendant competent. [¶] The defendant was also admitted to Patton State Hospital 09/17/2002, as

‘ criminally insane. ’ ” Other entries in the appellate record are inconsistent with the probation report statement that appellant was found “criminally insane” on September 17, 2002. Evidence intr oduced at the trial on appellant ’ s prior convictions shows that appellant was sent to Patton on that date pursuant to section “ 1370 PC

– mentally incompetent.” He was discharged on November 26, 2002. Criminal proceedings were then reinstated. The report does not reflect a second competency hearing, which almost certainly occurred in connection with the November 2018 preliminary hearing. At that preliminary hearing, his first counsel, Roxana Santamaria, stated that “we will be proceeding

1368.1

. ” Sectio n 1 368.1 specifies the procedures to be followed
when a doubt arises as to a defendant ’ s competency before an
information has been filed in th e matter. Following the hearing,

a ppellant was bound over for trial

.5 Santamaria continued to represent appellan t through at least December 26, 2018. Mitra Rose Donde appeared for appellant on January 22, 2019 and continued to represent him through trial. Based on Donde ’ s later statement that there had been two competency proceedings before she was appointed to

re present appellant , w e infer that the second competency hearing involved the competency issue referenced at the preliminary hearing , that it was resolved in late 2018 before Donde ’ s representation began, and that appellant was found competent.
Donde electe d to refer appellant to an expert for evaluation
rather than ask the court to declare a doubt again; the expert found appellant competent

. 4 On July 31, 2019, the day set for trial

, appellant made a
Marsden motion for substitute appointed counsel

. In open court,

a ppellant stated that he did not want to “fucking deal with her” and did not want her “to fucking help me out at all.” He added: “I told that bitch I was hearing fucking voices.” After the trial court cleared the courtroom, appellant made
the fol lowing statements spontaneously : “I will fucking get my own fucking lawyer, be my own lawyer. I don ’ t want her.” ; “I fucking hear voices all the time.” ; “I ’ ve been awake for seven fucking days.” ; and “I haven ’ t slept in seven days.”
The trial court then asked appellant if there was anything he wanted to tell the court that related to his request for a new

4 Appellate counsel ar gues that Donde referred appellant to the expert before she even met him. We understand Donde ’ s statement at the Marsden hearing differently . Th at is

, we understand her phrase, “Prior to my meeting him” to refer back to the two competency hearings mentio ned in her previous
sentence. We see no significance to the order, however.6

attorney. Appellant responded: “Because I fucking hear voices. I
don ’ t want her. She called me the N word. I don ’ t fucking want
her.” The court as ked if there was anything else, and appellant stated: “I ’ m not doing a damn self.” The court attempted to clarify: “So [ your ] request is that you want a new attorney; correct?” Appellant replied: “Yeah.” Then as the court began to speak, appellant said “I will do it myself.” The court asked again: “Why is it that you want a new attorney?” Appellant replied:
“Because I don ’ t like her. She called me the N word. She looked at me wrong.” The court asked if there was anything else. Appellant replied, “ I need my medication.” The court again asked if there was anything else. Appellant replied: “ Yeah, she threatens me. I
don ’ t like her. I know I do it myself. I know how to do it myself.” The court reminded appellant: “This is a Mar s den [ motion ] at th is point in time. So let ’ s deal with one thing at a time. [¶] Is there anything else you want to tell me about the representation of your counsel? ” Appellant replied : “Yeah. She called me
names. I don ’ t like her.” The court asked : “ Is there a nything else?” Appellant replied : “ No.” The trial court then gave defense counsel an opportunity to respond. Counsel stated: “Mr. Morgan had previously gone to Departme n t 95, I believe, twice.” The trial court said, “ Yes, I see that.” Counsel clarified: “Pri or to my meeting him.” The court added: “I, instead of sending him to Department 95, I did have a 730 done and the doctor did find him to be competent.” Appellant interjected: “I didn ’ t even talk to him. He got mad and walked away. He told me to shut u p.” Defense counsel continued: “ I ’ ve never called Mr. Morgan any names of any kind. I think Morgan

— Mr. Morgan is upset about this trial.”7 The trial court asked appellant if he had anything else to add, and appellant replied: “No.” The trial court then denied the
Marsden motion, stating: “ I find counsel has been representing Mr. Morgan properly and will continue to do so at this point in time.” Appellant then stated : “I haven ’ t had my medication in seven days.” The court responded : “All right. If you need a medical order, give me a medical order, [counsel]. If one needs to be done, we ’ ll take care of that

. [¶] Anything else, [counsel]? ” Defense counsel replied: “No, thank you.” After the prosecutor returned to the courtroom, the trial
court stated that it would set the trial for “tomorrow morning”
and would order “ a panel of juror s .” The next day appellant refused to leave his cell at the county jail, was extracted and brought to the courthouse, and refused to leave the court lockup. The trial cou rt and appellant ’ s counsel met with appellant in the lockup to discuss his decision not to be present during trial

.

II. Discussion o f Pretrial Issues
A

. Appellant Has Not Provided a n Adequate Record t o Permit Us to Analyze Whether a Renewed Competency
He aring Was Warranted. Appellant contends the trial court committed prejudicial error in failing to declare a doubt as to his competency and to order a competency hearing based on evidence introduced during
the Marsden hearing. Appellant has failed to prov ide an adequate record to permit us to review this claim. Put differently, appellant has not affirmatively demonstrated error.

“ Trial of an incompetent defendant violates the due process
clause of the Fourteenth Amendment to the United States
Constitutio n ( Godinez v. Moran (1993) 509 U.S. 389, 3968

[113 S.Ct. 2680, 2685, 125 L.Ed.2d 321]) and article I, section 15
of the California Constitution. Those protections are implemented by statute in California. A criminal defendant is incompetent and may not be ‘ tried or adjudged to punishment ’ if

‘ as a result of mental disorder or developmental disability, the
defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a
rational manner. ’ (§ 1367 , subd. (a).) Section 1368 mandates a competency hearing if a doubt as to a criminal defendant ’ s competence arises during trial. That may occur if counsel
informs the court that he or she believes the defendant is incompetent (§ 1368, subd. (b)), or ‘ [i] f during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defend ant.’ (§ 1368, subd. (a).) [¶] W hether on motion of the defendant or sua sponte

, the trial court is required to sus pend criminal proceedings and hold a hearing to determine competency whenever substantial evidence of incompetence is introduced.” ( People v. Hayes (1999) 21 Cal.4th 1211, 1281 .)

“ ‘ “ [A]bsent a showing of ‘ incompetence ’ that is ‘ s ubstantial ’

as a matter of law, the trial judge ’ s decision not to order a competency hearing is entitled to great deference, because the trial court is in the best position to observe the defendan t during
trial. ” ’ [Citation.] ‘ Whether to order a present sanity hearing is
for the discretion of the trial judge, and only where a doubt as to sanity may be said to appear as a matter of law or where there is an abuse of discretion may the trial judge ’ s determination be disturbed on appeal. ’ ” ( People v. Ghobrial (2018) 5 Cal.5th
25 0, 269.)9 W here

, as here, a competency hearing has already been held and the defendant found competent to stand trial, the trial court need not conduct another competency hearing absent a showing of “a substantial change of circumstances or new
evidence cas ting a serious doubt on the validity of the prior finding.” ( People v. Huggins (2006) 38 Cal.4th 175, 220 ( Huggins ) .) Appellant points to his statements and behavior during the
Marsden hearing and his history of competency issues as evidence of changed ci rcumstances. He contends these circumstances would lead a reasonable judge to make a change of circumstances inquiry. A prior “verdict of competency must be viewed as a baseline that, absent a preliminary showing of substantially changed circumstances, el iminate[s] the need to start the process anew.” ( Huggins

, supra , 38 Cal.4th at p. 220.) Fo r example, when the
record showed that a defendant ’ s noncooperation with counsel and psychiatrists began before the initial finding of his
competence, further nonco operation after the competency finding did not constitute substantial evidence of a change in circumstances, even when the noncooperation took different forms. ( People v. Medina (1995) 11 Cal.4th 694, 734 [ defendant initially exhibited an unwillingness to cooperate by affirmative efforts to appear psychotic ; after competency hearing, he exhibited noncooperation by mutism and withdrawal ].) The record on appeal contains no information at all about the prior determination of competency; contrary to appellant ’ s claim it does not even show the date of th e second determination

. We are completely lacking in a baseline which would enable us to evaluate whether there was a showing of a change of10

circumstance s which would have necessitated a new competency hearing

, or even just further inquiry into appellant ’ s circumstances

. For example, appellant asserts, correctly, that some defendants may be restored to competency with medication, and withdrawal of or change in that medication may render a person incompetent agai n, and that withdrawal of medication may constitute a change of circumstances warranting a new inquiry into a defendant ’ s competency. The record on appeal does not show that appellant was taking medication which had restored him to competency, however. I t contains no information
about what , if any, medication appellant was taking. In his reply brief, appellant asserts that his claim is based

on the trial court ’ s fail ure to inquire into his statements that he was not receiving his medication, not sleeping

, and hearing
voices , for the purpose of determining whether there had been a change in circumstances

. This is, in effect, a claim that the trial court was unaware of the circumstances of appellant ’ s prior competency hearing s and so could not have determin ed whether appellant ’ s statements and behavior at the Marsden hearing showed a change of circumstances without an inquiry at the hearing

. A s appellant acknowledges, the trial court had appellant ’ s case file in front of him at the Marsden hearing, and
the court itself stated that it saw that appellant had had two competency hearings. Thus, t he trial court ’ s decision not to declare a doubt sua sponte as to appellant ’ s competency amounts

to a decision that appellant ’ s behavior was not substantial
evidence of a change in circumstances. In order to show erro r in this decision, appellant would have to show evidence of the prior competency hearing (s) . Th is evidence exists whether or not the11

trial court conducted any inquiry at the Marsden hearing , but appellant has not included it in the record on appeal

. Providing the record on appeal is “ a procedural and substantive requirement on the part of any party prosecuting an appeal or asserting a position on appeal. Judgments and orders are presumed correct, and the party attacking a judgment or
order has the burden of affirmatively demonstrating error. [Citation.] The appellant has the burden of furnishing an appellate court with a record sufficient to consider the issues on appeal. ” (

People v. Neilson (2007) 154 Cal.App.4th 1529, 1534 .) Appellant has not met his burden of providing a record which affirmatively demonstrates error, and consequently he has not overcome the presumption of correctness with respect to the
trial court ’ s decision not to conduct a renewed inquiry

. A court found appellant competent before the Marsden hearing, and the lack of a showing of changed circumstances means that we will treat him as such for purposes of this appeal. 5

B

. The Trial Court Properly Denied t he Marsden M otion Appellant makes two sets of claims of error related to the
Mar s den motion, under two different headings. Under the first heading, he contends that the trial court did not conduct a full, fair and adequate hearing. Under the second heading, he
contends that the tri al court erred substantively in not finding an

5 “ ‘ An appellate court is in no position to appraise a defendant ’ s conduct in the trial court as indicating insanity, a calculated attempt to feign insanity and delay the procee dings, or sheer temper. ’ ” (

People v. Danielson (1992) 3 Cal.4th 691, 727 overruled on another ground by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069

, fn

. 13.)12

irreconcilable conflict between him and his attorney. We see no

error.

“ When a defendant seeks new counsel on the basis that his appointed counsel is providing inadequate representation

— i.e.,
makes what is co mmonly called a Marsden motion [Citation]

— the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly
shows that the a ppointed counsel is not providing adequate representation or that defendant and counsel have become
embroiled in such an irreconcilable conflict that ineffective representation is likely to result. Substitution of counsel lies
within the court ’ s discretio n. The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the
defendant ’ s right to assistance of counsel. ” ( People v. Smith (2003) 30 Cal.4th 581, 604 .)

1. The Hearing on the Motion was Adequa te. Appellant contends the trial court erred in forcing him to comply with the requirements of a Marsden hearing rather than suspending the Marsden proceedings and inquiring into his competency and ability to participat e in and comply with
Marsden requirements. As we have explained in section I I.A above, appellant had been found competent to stand trial prior to
the Marsden hearing, and appellant has not demonstrated error
in the trial court ’ s lack of a renewed inquiry into his competence at that hearing. Appellant ’ s claim that the Marsden hearing was procedurally flawed due to the lack of a renewed inquiry necessarily fails as well.13 Appellant also contends the trial court erred in failing to inquire about (1) the need for an attorney to assist appellant in articulating his reasons; (2) the number of meetings Donde had with appellant and her investigation of the case; (3) how Donde felt about appellant claiming she called him the N word; and (4) what appellant meant when he said Donde looked at him

“ wrong. ”
It is well settled that “ ‘ a Marsden hearing is not a full

blown adversarial proceeding, but an informal hearing in which
the court ascertains the nature of the defendant ’ s allegations regarding the defects in counsel ’ s representation and decides whether the allegations have sufficient substance to warrant
counsel ’ s replacement. ’ ” ( People v. Alfaro (2007) 41 Cal.4th 1277, 1320.) A trial court should afford a defendant “ ample opportunity to set forth [his or] her comp laints regarding
counsel ’ s representation, and after hearing defendant ’ s complaints [ allow ] counsel to respond.” ( Ibid .) A trial court is not required to do more. ( Ibid .) Here, the record shows that the trial court gave appellant ample opportunity to ex plain why he was unhappy with his
counsel ’ s representation. The trial court repeatedly asked appellant if he had anything he wished to add to earlier statements. The trial court then allowed Donde to respond. Nothing more was required. At no point durin g the proceedings did appellant request appointment of a separate attorney to assist him with his motion. A trial court is not required to appoint separate counsel “to press

a Marsden claim for a defendant.” ( People v. Clark (2011)
52 Cal.4th 856, 917.) Doing so without a request from the defendant would be particularly problematic due to the potential14

to “ damage the attorney

- client relationship in those cases in which the trial court ultimately concludes that the motion should
be denied.” (

Ibid .)
A ssum ing for the sake of argument that some statements by a defendant or counsel might require further inquiry from the
court to cla rify

, that w as not the case with the inquiries described by appellant

. Tho se inquiries are attempts to expand appellant ’ s and hi s counsel ’ s answers, not clarify them. Nothing in appellant ’ s statements suggested that he was unhappy with
Donde because she failed to visit or communicate with him or
conducted a n inadequate investigation of his case. Looking at someone “wrong” is a co mmon expression and does not imply that
the look , as appellant suggests on appeal, reflect s or express es a racist attitude. Donde ’ s feelings about appellant ’ s claim that she
called him the N word were demonstrated by her statement that “I think [he] is up set about this trial” and which strongly
indicated she did not take the accusation personally or harbor any negative feelings toward appellant. 6 The trial court provided appellant with a full, fair and adequate hearing.

6 The trial court appears to have found Donde ’ s denial credible. Appellant argues tha t even if he made up or imagined her use of the N word, it shows the depth of the irreconcilable conflict he had with Donde. “[A] defendant may not force the substitution of counsel by his own conduct that manufactures a conflict.” (

People v. Smith (1993 ) 6 Cal.4th 684, 696 .)15 2

. Appellant Did Not Show Grounds fo r Substituting Counsel. Appellant contends the Marsden hearing e stablished an
irreconcilable conflict because Donde announced ready for trial when appellant “believed” he was not ready for trial because he was hearing voices and had not slept or had his me dication in seven days. He claims it “appears [ Donde ] apparently believed” that appellant was competent to stand trial based on an expert ’ s opinion while appellant “ did not believe ” that he was competent to stand trial because he did not believe the exper t made a proper
evaluation of him. He asserts Donde “would have been well with her discretion to declare that [he] was currently incompetent to stand trial and request a competency hearing.”
A defendant is entitled to relief if “ the appointed counsel is

n ot providing adequate representation or . . . defendant and
counsel have become embroiled in such an irreconcilable conflict
that ineffective representation is likely to result.” ( People v. Smith

, supra , 30 Cal.4th at p. 604.) Although appellant has
ele cted to characterize his Marsden claim as one involving
irreconcilable conflict, it is more accurate and more helpful to view appellant ’ s claim in the trial court as involving inadequate representation

, particularly given that Donde never actually

expresse d a belief about defendant ’ s competence

. T he trial

court ’ s ruling was so focused. The court denied the motion because it found “counsel has been representing [appellant] properly and will continue to do so.” We agree this was the substance of appellant ’ s claim: he believed he was not competent
and Donde was not taking appropriate steps to assist him with
his incompeten cy.16 Donde responded to appellant ’ s implied claim that she had not responded to his competency

- related concerns ( he needed medication, had not slept in sev en days and was hearing voices)

, by describing the steps she had taken to address the issue of appellant ’ s competency

. She explained appellant had twice been found competent by Department 95 before she represented him,
and she had chosen to have appellant further evaluated by an expert, who had found him competent. 7 This is, in effect, a statement that she did not have substantial evidence of a change in circumstances from the prior court determination that appellant was competent. Absen t such evidence, she could do little to obtain a competency hearing. To the extent appellant claims Donde should have exercised her discretion to “declare” he was incompetent even in the absence of substantial evidence, Donde was not ineffective in failing to d o so. “ ‘ Counsel ’ s assertion of a belief in a client ’ s incompetence is entitled to some weight. But unless the court
itself has declared a doubt as to the defendant ’ s competence, and
has asked for counsel ’ s opinion on the subject, counsel ’ s assertio ns that his or her client is or may be incompetent does not, in the absence of substantial evidence to that effect, require the court to hold a competency hearing. ’ ” ( People v. Sattiewhite (2014) 59 Cal.4th 446, 465.) Defense counsel “must present

exper t opinion from a qualified and informed mental health expert, stating under oath and with particularity that the defendant is incompetent, or counsel must make some other substantial showing of incompetence that supplements and

7 If anything, Donde ’ s decision to have an expert evaluate appellant suggests that she was concerned appellant might not be competent.17

supports counsel ’ s own opini on. Only then does the trial court have a nondiscretionary obligation to suspend proceedings and hold a competency trial.” ( Ibid .) Thus, “[c] ounsel is not ineffective for failing to raise the issue of competence where there may be some evidence raising a doubt, but that evidence is not
substantial.” (See People v. Mickel (2016) 2 Cal.5th 181,

199

-- 200 .)
We recognize a ppellant makes a number of complaints
about Donde ’ s use of and reliance on an expert. He suggests that the expert did not properly examin e him and potentially was not qualified to do so. He faults Donde for not providing more details of the expert ’ s examination and for failing to offer a copy of the expert ’ s report (assuming one was prepared). It is appellant ’ s burden to show error on app eal, and he has not provided any
evidence related to the expert or the examination.

C

. Any Request f

or Self

- R epresentation Was Equivocal. Appellant contends he unequivocally asserted his right to
self

- representation during the Marsden hearing, and the tria l court erred in failing to conduct a Faretta hearing and rule on his request for self

- representation. We do not agree.

1. Relevant Law “A defendant in a criminal case possesses two constitutional rights with respect to representation that are mutually ex clusive. A defendant has the right to be represented by counsel at all critical stages of a criminal prosecution. [Citations.] At the same time, the United States Supreme Court has held that because the Sixth Amendment grants to the accused personally t he right to present a defense, a defendant possesses the right to represent himself or herself. ( Faretta v.18

California

, supra , 422 U.S. 806, 819 [95 S.Ct. 2525, 2533] ( Faretta ).)” (

People v. Marshall (1997) 15 Cal.4th 1, 20 ( Marshall

) .) The “federal Cons titution requires assiduous protection of the right to counsel.

. . . Courts must indulge every reasonable inference against waiver of the right to counsel. ” ( Marshall

, supra , 15 Cal.4th at p. 20.) The high court has not extended the same kind of protect ion to the right of self

- representation. ( Ibid .) Generally, a trial court must grant a defendant ’ s request for self

- representation if three conditions are met. The defendant must be mentally competent ; he must make his request unequivocally ; and he must make his request within a reasonable time before trial. ( People v. Welch (199 9 ) 20 Cal.4th 701, 729.) “[I]n order to protect the fundamental constitutional right to counsel, one of the trial court ’ s tasks when confronted with a
motion for self

- representat ion is to determine whether the defendant truly desires to represent him self or herself. [Citations.] The court faced with a motion for self

- representation should evaluate not only whether the defendant has stated the motion clearly, but also the defenda nt ’ s conduct and other words. Because the court should draw every reasonable inference against waiver of the right to counsel, the defendant ’ s conduct or words reflecting ambivalence about self

- representation may support the court ’ s decision to deny the d efendant ’ s motion. A
motion for self

- representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied.” (

Marshall

, supra , 15 Cal.4th at p. 23.) Requests made during or immediately after the denial of a
Marsden motion are particularly likely to be deemed “equivocal,19

insincere, or the transitory product of emotion.” ( People v. Tena (2007) 156 Cal.App.4th 59 8, 607 ( Tena ) ; see People v. Scott ( 2001)

91 Cal.App.4th 1197 , 1205

– 1206 & fn. 3 ( Scott ) [defendant ’ s statement following denial of Marsden motion that “ ‘ I hereby move the court to let me go pro se ’ ” w as made out of frustration
and w as equivocal]; see also People v. Danks (2004) 32 Cal.4th 269, 295

– 297 [defendant ’ s request to go pro per at the end of his
Marsden hearing, viewed in context, was not a sincere Faretta request] .)
Because the trial court made no findings of fact concerning appellant ’ s statements about acting as his own lawyer, w e review the record de novo to determine whether the request was unequivocal. (See Marshall

, supra , 15 Cal.4th at p. 24 [noting that de novo review is common, but not deciding if it is appropriate when the trial court has made factual findings].)

2

. Appe llant ’ s S tatements at the Marsden
H earing As set forth in the background section above, a fter the trial
court cleared the courtroom for the Marsden motion, appellant spontaneously stated: “I will fucking get my own fucking lawyer, be my own lawyer. I don ’ t want her.” The court stated : “Sir,

you ’ ve requested you wanted a new attorney. Is there anything you want to tell me? ” Appellant replied that he was hearing voices, counsel called him the N word and he did not want her.
The court asked if there was anything else and appellant replied:
“I ’ m not doing a damn self.” The court clarified: “So your request is that you want a new attorney; corre ct?” Appellant replied:
“Yeah.” As the court began to speak, appellant added: “I will do it myself.” The court again asked if there was anything else. Appellant replied: “ Yeah, she threatens me. I don ’ t like her. I20

know I do it myself. I know how to do it myself.” The court reminded appellant: “This is a Mar s den [ motion ] at this point in
time. So let ’ s deal wit h one thing at a time. [¶] Is there anything else you want to tell me about the representation of your
counsel?” Appellant ’ s statements concerning self

- representation were ambiguous, inconsistent and emotional. He both stated that he wanted to “ be my own lawyer ” and that he was “not doing a damn self.” He also stated he would get his own lawyer. Thus, appellant ’ s statements about representing himself were equivocal. Further, the statements, like all of appellant ’ s during the hearing, were strongly emotional. In context, the statements are obviously aimed at demonstrating to the court how unhappy appellant was with appointed counsel. Appellant did not renew
his motion for self

- represen ta tion at his next opportunity to do so, which was the next day when the trial judge came to his cell,
which further indicat es that his request was equivocal. (See
Tena

, supra , 156 Cal.App.4th at p. 608 [in deciding whether request was equivocal, it is relevant to consider “whether appellant reasserted a request for s elf

- representation when presented with the opportunity to do so.”].) Appellant appears to believe that once a trial court recognizes that a defendant is making a request for self

representation, the request can no longer be deemed equivocal.
Not so.
As t he California Supreme Court has made clear: The court “should evaluate not only whether the defendant has stated the motion clearly, but also the defendant ’ s conduct and other
words.” The defendant ’ s conduct or other words may reflect
ambivalence about s elf

- representation. (

Marshall

, supra ,21

15 Cal.4th at p. 23 .) For example, in Scott , the defendant made a
motion for self

- representation immediately after his Marsden motion, and the trial court gave Scott a waiver of rights form in response to his Faretta request. “ [ T ] he court said: ‘ For the record, let me repeat it. Mr. Scott, are you sure you want to represent yourself? ’ Scott replied, ‘ Yes. I do, judge. I don ’ t want [appointed defense counsel] to represent me. ’ Scott also said: ‘ [I]f
I can ’ t get a [new] state appointed attorney, then I represent myself, ’ and, ‘ For the record, I don ’ t want this attorney representing me. You the court is coercing me. ’ ” The Court of Appe a l found that Scott ’ s subsequent comments suggest he made
the Faretta motion onl y because he wanted to rid himself of appointed counsel and so his request was “ not unequivocal.” ( Scott

, supra , 91 Cal.App.4th at p. 1205.) Relying on People v. Dent (2003) 30 Cal.4th 213 , appellant contends a trial court has a duty to inquire further wh en a defendant makes an unequivocal request and to make a record of
it s finding s or ruling. Appellant ’ s reliance on Dent is misplaced.
The trial court in Dent denied appellant ’ s “arguably” equivocal request for self

- representation on the erroneous ground that the case involved the death penalty. Our Supreme Court noted that if the record showed that the request w as otherwise properly denied, the Court would uphold the denial. The Court did not
reach the issue of whether the defendant ’ s request was equiv ocal

“ because whether or not defendant ’ s request was equivocal, the
trial court ’ s response was not only legally erroneous but also unequivocal, and foreclosed any realistic possibility defendant would perceive self

- representation as an available option. T hus, even assuming defendant ’ s request was equivocal, the trial22

court ’ s response effectively prevented defendant from making his invocation unequivocal. ” ( Id . at p. 219

. ) Here, the trial court ’ s response suggested that it would be willing to consider a re quest for self

- representation at another time. The court explained that it was currently deciding
defendant ’ s motion for substitute counsel and “ So let ’ s deal with one thing at a time.” Thus, the reasoning of Dent is not helpful.

D. Appellant Was Adequat ely Advised o f And Knowingly and Voluntarily Waived His Right to be Present a t Trial. Appellant contends his federal constitutional and state statutory rights to be personally present at trial were violated when the trial court failed to expressly advise h im of that right and its attendant rights and to obtain the appropriate oral and
written waivers from him.

1. Relevant Law “A criminal defendant ’ s right to be present at trial is protected under both the federal and state Constitutions. [Citations.] ” (

P eople v. Gutierrez (2003) 29 Cal.4th 1196, 1202 ( Gutierrez ) .) “[T]he right is not an absolute one. [Citation.] It may be expressly or impliedly waived. ( People v. Concepcion (2008)

45 Cal.4th 77, 82 [ 84 Cal.Rptr.3d 418, 193 P.3d 1172 ] ( Concepcion ).) As relevant here, the high court has stated that

‘ where the offense is not capital and the accused is not in custody,
the prevailing rule has been, that if, after the trial has begun in
his presence, he voluntarily absents himself, this does not nullify
what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and23

leaves the court free to proceed with the trial in like manner and with like effect as if he were present

. ’ ( Diaz v. United St ates (1912) 223 U.S. 442, 455 [ 56 L.Ed. 500, 32 S.Ct. 250 ] , italics added.) Section 1043 [, subdivision] (b)(2) has adopted this majority rule as state law. [Citation.] Section 1043 [, subdivision] (b)(2) is similar to its federal counterpart, rule 43 of the Federal
Rules of Criminal Procedure (18 U.S.C.), which, we note, the high
court has found to be constitutional. [Citations.]” ( People v. Espinoza (2016) 1 Cal.5th 61, 72.)
In Taylor v. U.S. (1973) 414 U.S. 17 [94 S.Ct. 194,

38 L.Ed.2d 174]

, the defen dant contended his voluntary absence
from trial could not be an effective waiver unless it was “demonstrated that he knew or had been expressly warned by the trial court not only that he had a right to be present but also that
the trial would continue in h is absence and thereby effectively foreclose his right to testify and to confront personally the witnesses against him.” ( Id

. at p. 19. ) The Su preme Court responded: “It is wholly incredible to suggest that petitioner, who was at liberty on bail, had att ended the opening session of his
trial

, . . . entertained any doubts about his right to be present at every stage of his trial. It seems equally incredible to us

. . . ‘ that
a defendant who flees from a courtroom in the midst of a trial

— where judge, jury , witnesses and lawyers are present and ready
to continue

— would not know that as a consequence the trial
could continue in his absence. ’ ” ( Id . at p. 20.) California law is to the same effect. “[U]nder section 1043, subdivision (b)(2), a trial court may continue a trial in a custodial
defendant ’ s absence after the trial has commenced in the
defendant ’ s presence

— without first obtaining the defendant ’ s written or oral waiver of the right to presen ce

— if other evidence24

indicates the defendant has chosen to be absent voluntarily.
While a defendant ’ s express waiver in front of the judge might be the surest way of ascertaining the defendant ’ s choice, it is not the only way. A defendant ’ s ‘ consent need not be explicit. It may be implicit and turn, at least in p art, on the actions of the
defendant. ’ [Citations.] In determining whether a custodial defendant who refuses to leave the lockup is ‘ voluntarily absent ’ (§ 1043, subd. (b)(2)), a trial court should take reasonable steps to ensure that being absent from trial is the defendant ’ s choice. ” ( Gutierrez

, supra , 29 Cal.4th at p. 1206.) To be clear, a refusal to leave lockup supports a finding that the defendant voluntarily
absented himself from trial. ( Ibid .)

2. Appellant Was Advised o f a nd Expressly a nd
Im pliedly Waived His Right t o b e Present a t Trial, a nd Related Rights. On August 1, 2019, the day set for jury selection to begin, the court stated: “The defendant was informed and advised we would be starting trial today at 10:00 in the morning. I ordered him back. This morning defendant refused to come out. He was a refusal. The court had to issue an extraction order to get him here this afternoon.” Once in the courthouse lockup, defendant
refused to dress and come out. The court asked the bailiff if
defendant had said anything, and the bailiff replied: “He said I ’ m not starting this trial today.” The trial judge then went to the lockup with defense
counsel Donde and a court reporter and spoke with appellant. The judge stated: “My understanding is tha t you don ’ t wish to come out and participate in your trial?” Appellant replied: “No, I just want my medication.” The judge stated: “Sir, I need to advise you it ’ s really important that you participate in your trial.25

I think it would be to your benefit. It ’ s a disadvantage if you do not participate and help your defense in this trial. [¶] I strongly urge you that you should reconsider and come out and start this
trial. We ’ re going to start picking jurors today.” Appellant responded: “I didn ’ t say I wa nted to go to trial.” The judge explained: “Well, we ’ re set for trial today, whether you said you
didn ’ t want to or not, but we ’ re here today. . . . [¶] So I ’ m going to ask you again. Are you not going to participate in the trial?” The defendant replie d: “No.” The judge clarified: “No? D o you wish to stay here?” Appellant replied: “Yeah.”
Defense counsel Donde then said to appellant: “ [I]f you ’ re there, you can help me with the witnesses. You know, and help me to defend you. If you ’ re here, you won ’ t be able to help me.
You won ’ t be able to see what ’ s going on. [¶] Do you think you would be willing to get dressed and come to court, and kind of,
like see what ’ s going on so you can help yourself?” Appellant replied: “No.” These proceedings, taken a s whole, were more than sufficient to advise appellant that he had the right to be present at trial and to confront the witnesses against him, and that the trial would proceed in his absence. Appellant was necessarily
aware that if he did not come to cour t, he would not be able to testify on his own behalf. Appellant stated repeatedly that he did

not want to come to court. This is a sufficient waiver of his rights. Although not determinative of our decision, we note that the trial court ordered appellant to be brought to the courthouse every day during trial in case he changed his mind about being present and Donde was in communication with appellant in the lockup throughout tria l. Although appellant discussed the trial26

proceedings with Donde, he did not change his mind about being present. Near the end of trial, appellant came to the courtroom during a recess so that the court could advise him of his right to have a jury trial on the prior conviction allegations and to be present during that trial. App ellant requested a jury trial on the priors but stated that he did not want to be present for that trial. Appellant did return to court for post

- trial proceedings. Appellant nevertheless contends th e court ’ s advisement was inadequate because the trial cou rt did not advise him in the words of the sample waiver form set forth in section 977, subdivision (b)(2) that he had the right “ to be confronted by and

cross

- examine all witnesses” and to ask appellant, in the words of the sample waiver form if he “agree [d] that his or her interest is represented at all times by the presence of his or her attorney the same as if the defendant were personally present in court.” Subdivision (b) (2) provides only that the waiver shall be “substantially” in the form provided. Donde explained to appellant that he would be able to assist her with the witnesses if he came to court, which adequately conveyed his rights related to the witnesses against him. Appellant clearly understood that Donde would represent his interests in his absence from the

courtroom

. This was sufficient. Appellant also complains that the court did not obtain a written wavier from him, as specified in section 1043, subdivision (b)(2). As the California Supreme Court has made clear, an express written wa iver under section 1043, subdivision (b)(2) is not required when a custodial defendant is voluntarily absent.

“ A defendant ’ s ‘ consent need not be explicit. It may be implicit and turn, at least in part, on the actions of the defendant. ’ [Citations.] In determining whether a custodial defendant who27

refuses to leave the lockup is “voluntarily absent” (§ 1043,
subd. (b)(2)), a trial court should take reasonable steps to ensure that being absent from trial is the defendant ’ s choice. ” ( Gutierrez

, supra , 29 C al.4th at p. 1206 .) As set forth above, the trial court took reasonable steps to
ensure that absence from trial was appellant ’ s choice. The judge went to lockup to speak with appellant at the beginning of trial, and then ordered him brought to the courtho use lockup every day during trial in case he changed his mind. The court personally met with appellant near the end of trial to discuss how he wanted the priors adjudicated.
A ppellant contends, in effect

, that part and parcel of determining whether his ab sence from trial was voluntary was inquiring if appellant understood that being present for trial would not affect his appeal of the denial of his Marsden motion

. Appellant contends he also should have been asked if he was absenting himself as a way of fu rthering his right of self

representation. There is nothing in the record to suggest that
either concern was appellant ’ s motivation. (See Concepcion

, supra , 45 Cal.4th at p. 84 [we review a claim that defendant ’ s absence was not voluntary for substantial evidence].) The record shows that appellant was angry that his Marsden motion was denied, but there is no reason to believe that he immediately began to think that absenting himself from trial was necessary to preserve his appellate rights. The trial co urt is not required to
divine a defendant ’ s motivation for absenting himself from trial after advising a defendant of the perils of doing so and getting only intransigence in response.28

III. Factual Background f or Sentencing On August 25, 2017, Mackenzie l eft home with appellant, in the belief that they were going to a party in Apple Valley. At one point, Mackenzie noticed that appellant was not driving toward Apple Valley; he was driving toward Pomona. She began texting on her phone. Appellant took the phone from her and told her “If I was snitching on him, he ’ d cut my head off and send it to my mom.” At some point during the drive, appellant mentioned that he had a gun. Mackenzie felt “scared.” During the drive, appellant also told Mackenzie she need ed to make him money.
Mackenzie understood this statement to mean that she would sell her body. In Pomona, Mackenzie walked the street and engaged in prostitution because she was afraid appellant would hurt her. At some later point, while Mackenzie was in the car with appellant, police cars pulled up behind them. Appellant instructed Mackenzie to tell police she was his cousin. She complied
because she was afraid of him. She was afraid to “snitch” on him. When the prosecutor asked why Mackenzie was a fraid if the police were there, Mackenzie replied: “He said his people can come after me.” The prosecutor asked: “So when [appellant] told you his people will come after you if you snitched on him, did you believe him?” Mackenzie replied she did, and she was scared.

IV

. Discussion o f Sentencing Claims
A. Section 654 Appellant contends the sentence s on count 2 ( lewd act ),

count 6 ( kidnapping ), and count 9 ( witness dissuasion ) must be stayed pursuant to section 654. Section 654, subdivision (a), provide s: “An act or omission that is punishable in different ways by different provisions of law29

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 t han one provision.”
“W hether 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
conduc t encompassing several acts pursued with a single objective. [Citation s .] We first consider if the different crimes were completed by a ‘ single physical act

. ’ [Citation.] If so, the defendant may not be punished more than once for that act. 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. ” ( People v. Corpening (2016)

2 Cal.5th 307, 3 11 ( Corpening ) .) If a defendant has a separate objective for each crime he committed, section 654 does not apply,
even if there was an indivisible course of conduct. ( People v.
Harrison (1989) 48 Cal.3d 321, 335.) Whether section 654 applies to a convict ion is a question of fact for the trial court, and the court ’ s findings will be upheld if supported by substantial evidence. ( People v. Atencio (2012)

208 Cal.App.4th 1239, 1242

– 1243.) If

, however, the facts are undisputed, the application of section 654 raises a question of law that is reviewed de novo. ( Corpening

, supra , 2 Cal.5th at

pp

. 311

– 312.)

1. The Sentence on Count 6 (Kidnapping) Must Be Stayed

. App ellant contends his concurrent sentence on count 6 ( kidnapping ) must be stayed pursuant to section 65 4. He30

contends the kidnapping arose out of the same set of facts and was committed on the same occasion as the child trafficking charged in count 7 , and the purpose of the kidnapping was to get Mackenzie to an area where prostitutes worked so as to traffi ck her. Respondent agrees. We agree as well.
The trial court expressly found that the crimes arose out of
the same set of facts and were committed on the same occasion.
Th ese findings are supported by substantial evidence. Further, the only apparent p urpose of the kidnapping was to get Mackenzie to a location where appellant could co erce her into working as a pros t i tute. Staying the kidnapping conviction is also consistent with the general rule that when a defendant undertakes a kidnapping for the pur pose of committing sexual offenses and is punished for the sexual offenses, section 654 bars execution of the sentence on the kidnapping conviction. ( People v.
Latimer (1993) 5 Cal.4th 1203, 1216

– 1217.)

2

. The Trial Court Properly Imposed Sentence o n B oth Counts 7 and 9

. Appellant contends section 654 bars punishment for both count 7 ( child trafficking ) and count 9 ( witness dissuasion )
because the convictions were based on the same act, appellant ’ s threat to cut off Mackenzie ’ s head, and the witness dis sua sion
was undertaken for the sole purpose of human trafficking. We do not agree. The records shows appellant made two threats and had two different objectives. Section 654 does not apply. In closing argument, during her discussion of child
traffickin g, the prosecutor said she would “skip through intimidating a witness because you already heard what the defendant told her he was gonna do to her if she snitched on him.” She then continued her discussion of child trafficking.31

Later

, the prosecutor ret urned to the charge of dissuading a
witness

, stating that appellant “reminded” Mackenzie of his threat when police were behind them, and instructed her to say
she was his cousin.
Mackenzie ’ s testimony showed more than a “reminder” of a previous threat; it showed appellant made two different threats. The first occurred during the drive to Pomona, when appellant
told her he would cut off her head if she snitched. The second occurred after police cars pulled up behind appellant ’ s car. Appellant told Mackenz ie to say he was her cousin. Mackenzie complied because she was scared even though the police were there (and would presumably stop appellant was from hurting her) because appellant told Mackenzie “his people can come after”
her if she snitched.
The reco rd shows two different primary objectives for the two threats. The first threat was made during the child trafficking, to deter Mackenzie from texting friends or relatives for assistance and to prevent an interruption to the trafficking.
The second threa t was made after police had pulled up behind and were suspicious enough of appellant ’ s and Mackenzie ’ s activities to investigate. The trafficking had been interrupted by that point and was unlikely to resume. Appellant was concerned
about being arrested, as indicated by his reference to his “ people ” coming after Mackenzie. 8 Appellant ’ s reliance on People v. Mendoza (1997)
59 Cal.App.4th 1333 (

Mendoza ) to show th at section 654 must be applied i s misplaced. In that case there was only one act to

8 We would reach the same conclusion even if appellant had simply reminded Mackenzie of his earl ier threat to cut off her head. Such a reminder, in context, would be a separate act.32

support t he convictions for making a terrorist threat and dissuading a witness, and the Court of Appeal found the defendant had only one primary objective, to help his brother by preventing further testimony from the witness. 9 ( Id . at p. 1346.) Here, there were t wo acts and two primary objectives. Section 654 does not apply.

3

. The Section 667 E nhancements t o Count 9
Remain. Appellant claims that the section 667, subdivision (a)(1)
enhancement terms for count 9 (witness dissuasion) must be
stricken when count 9 is stayed pursuant to section 654. As we have just explained, section 654 does not require a stay. No
action need be take n on the enhancements.

4. The Sentence o n Count 2 ( Lewd Act ) Must B e Stayed. Appellant contends the sentence on count 2 ( lewd act ) mu st be stayed because the jury was not instructed that the conviction
should not be based on a sex act which was also used to support the count 3, 4 or 5 convictions. Appellant contends it is not

9 The court found the defendant ’ s “ primary objective was to help his brother by preventing further damaging testimony from [the witness]. His objective and intent for scaring her was to dissuade her from testifying in the future. The method he employed to reach his objective was his implied threat of death or great bodily injury. Thus, his terrorist threat can only be considered incidental to his primary objective of dissuading [the witness] from testifying at his brother ’ s upcoming trial.” ( Mendoza

, supra , 59 Cal.App.4th at p. 1346.)33

possible to know if the jury base d the count 2 conviction on a separate sex act. We agree. The only two sex acts described by Mackenzie were oral copulation and sexual intercourse. She testified to multiple acts of each occurring over a span of time. The prosecutor made no attempt in closing argument to differen tiate the lewd act charge from the oral copulation charge or the sexual intercourse charge.
She stated: “So I ’ m not gonna spend a lot of time talking about
the sexual offenses

— lewd act on a child age 15, oral copulation with a child under the age of 18, two counts of sexual intercourse

, unlawful sexual intercourse with a child under the age of 16. We
know that th o se things occurred. . . . We know that multiple acts of sexual intercourse, oral copulation between those two.” During deliberations, the jury sent a note to the judge asking

, “ [ w ] hy are counts 4 + 5 identical ? ” The court replied:

“ Because it is alleged the defendant at least had 2 separate
incidents of sexual intercourse

— up to jury to decide guilty or not guilty as to each separate act alleged .” Because the jury was only presented with one count of oral copulation, the jury might reasonably have believed that only one incident/act of oral copulation had been alleged. This would leave the jury with no “extra” sex acts to use for the lewd acts count. The prosecutor apparently recognized this problem, as she stated in her sentencing memorandum that count 2 merged with count 4. 10

10 At the sentencing hearing, when defense counsel mentioned the prosecutor ’ s suggestion that counts 2 and 4 merged, the trial court st ated: “Well, this is the problem. There

w ere different distinct acts that were alleged. They weren ’ t distinct, distinct, but there w ere different allegations at different times that I think the People can make the argument that they were different acts. ” The prosecutor agreed with the court, but it34

Accordingly, we order the sentence of one year four months on count 2 stayed pursuant to section 654.

B

. Appellant Has Forfeited His Claim Concerning His Ability to Pay

. Appellant argues the trial court violated his federal and state right to due process of law by imposing a $300 restitution fee (§1202. 4)

, a $300 parole revoc ation fine, stayed (§ 1202.45)

,

a $300 sexual o ffender fine , a $870 penalty assessment, a $60 criminal surcharge, $ 280 in court security fee s ( § 1465.8 )

, and $210 in criminal conviction assessment s ( Gov

. Code , § 70373 ) without determining whether he had the present ability to pay. Appellant requests w e vacate the assessments and stay the imposition of the restitution fine under People v. Dueñas (2019) 30 Cal.App.5th 1157 ( Dueñas )

. 11 Appellant was sentenced in January 2020, a year after
Dueñas was decided. Neverthel e s s, appellant did not object to
the f ees, assessments, or the restitution fine imposed. We find his challenge forfeited and we decline to exercise our discretion to

was too late for her to make that point to the jury. The times alleged covered long periods which largely overlapped. The prosecutor made no distinction among acts based on the date the acts occurred , or any other basis such as location

.

11 The California Supreme Court has granted review in People v. Kopp (2019) 38 Cal.App.5th 47 (review granted Nov. 13, 2019, S257844) on the issue of whether a trial court must consider a defendant ’ s ability to pay before imp osing or executing fines, fees and assessments, and if so, which party bears the burden of proof on the issue.35

adjudicate this forfeited issue. ( People v. Yeoman (2003)
31 Cal.4th 93, 117

– 118.)

DISPOSITION
The sentences on counts 2 an d 6 are ordered stayed pursuant to section 654. Appellant ’ s determinate term is thereby reduced from 10 years eight months to nine years four months. His indeterminate term of 90 years to life remains unchanged. The clerk of the superior court is instru cted to prepare an amended abstract of judgment reflecting these changes and to deliver a copy to the Department of Corrections and
Rehabilitation

. The judgement of conviction is affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

GRIMES, Acting , P. J.

WILEY, J.