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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

B304291

(Los Angeles County

Super. Ct. No. KA116117)

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, Deputy 

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 sexual 

intercourse with him. One night, he 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) 

through (i), 1170.12).

The trial court sentenced appellant to a term 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 which relate to 

the conduct of the trial itself. Half of the claims arise from the 

hearing on appellant’s Marsden2 motion for substitute appointed 

counsel, made on July 31, 2019, the day originally set for jury 

selection to begin. He contends the trial court 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 Undesignated 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 motion 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 Faretta3 hearing to 

determine if appellant could represent himself, based on 

statements appellant made during the hearing on the Marsden

motion. After appellant’s Marsden motion was denied, appellant 

refused to leave the lockup 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 dissuasion convictions. Respondent 

agrees the kidnapping sentence should 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) enhancements to the witness 

dissuasion conviction must be stricken if the underlying 

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 

pay.

3 Faretta v. California (1975) 422 U.S. 806, 819.
4

We agree the 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 – Pretrial Issues

On appeal, appellant relies on a brief paragraph in a prepreliminary 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 is 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 introduced 

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.” Section 1368.1 specifies the procedures to be followed 

when a doubt arises as to a defendant’s competency before an 

information has been filed in the matter. Following the hearing, 

appellant was bound over for trial.
5

Santamaria continued to represent appellant 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 

represent appellant, we 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 elected 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, 

appellant 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 following 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 argues that Donde referred appellant to 

the expert before she even met him. We understand Donde’s

statement at the Marsden hearing differently. That is, we 

understand her phrase, “Prior to my meeting him” to refer back 

to the two competency hearings mentioned 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 asked 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 Marsden [motion] at 

this 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 anything 

else?” Appellant replied:“No.”

The trial court then gave defense counsel an opportunity to 

respond. Counsel stated: “Mr. Morgan had previously gone to 

Department 95, I believe, twice.” The trial court said, “Yes, I see 

that.” Counsel clarified:“Prior 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 up.” 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 jurors.”

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 court and appellant’s 

counsel met with appellant in the lockup to discuss his decision 

not to be present during trial.

II. Discussion of Pretrial Issues

A. Appellant Has Not Provided an Adequate Record to 

Permit Us to Analyze Whether a Renewed Competency 

Hearing 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 provide 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 

Constitution (Godinez v. Moran (1993) 509 U.S. 389, 396 
8

[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 defendant.’ (§ 1368, 

subd. (a).) [¶] Whether on motion of the defendant or sua sponte,

the trial court is required to suspend 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 ‘substantial’

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 defendant 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 

250, 269.)
9

Where, 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 casting 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 circumstances. 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, eliminate[s] the need to start the process anew.” 

(Huggins, supra, 38 Cal.4th at p. 220.) For example, when the 

record showed that a defendant’s noncooperation with counsel 

and psychiatrists began before the initial finding of his 

competence, further noncooperation 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 the second determination. 

We are completely lacking in a baseline which would enable us to 

evaluate whether there was a showing of a change of 
10

circumstances 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 again, 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. It 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 failure 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 hearings and so could not have determined whether 

appellant’s statements and behavior at the Marsden hearing 

showed a change of circumstances without an inquiry at the 

hearing. As 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, the 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 error in 

this decision, appellant would have to show evidence of the prior 

competency hearing(s). This evidence exists whether or not the 
11

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 the Marsden Motion

Appellant makes two sets of claims of error related to the 

Marsden 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 trial 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 proceedings, 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 commonly 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 appointed 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 discretion. 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 Adequate.

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 participate in and comply with 

Marsden requirements. As we have explained in section II.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 fullblown 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 complaints 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 explain 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 during 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 potential 
14

to “damage the attorney-client relationship in those cases in 

which the trial court ultimately concludes that the motion should 

be denied.” (Ibid.)

Assuming for the sake of argument that some statements 

by a defendant or counsel might require further inquiry from the 

court to clarify, that was not the case with the inquiries described 

by appellant. Those inquiries are attempts to expand appellant’s 

and his 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 an inadequate investigation of his case. Looking at 

someone “wrong” is a common expression and does not imply that 

the look, as appellant suggests on appeal, reflects or expresses 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 upset 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 that 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 for 

Substituting Counsel.

Appellant contends the Marsden hearing established 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 medication 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 expert 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 

not 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

elected 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

expressed a belief about defendant’s competence. The 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 incompetency.
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 seven 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. Absent 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 do 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

assertions 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 

expert 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 opinion. 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 appellant makes a number of complaints 

about Donde’s use of and reliance on an expert. He suggests that 

the expert did not properly examine 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 appeal, and he has not provided any 

evidence related to the expert or the examination.

C. Any Request for Self-Representation Was Equivocal.

Appellant contends he unequivocally asserted his right to 

self-representation during the Marsden hearing, and the trial 

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 exclusive. 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 the 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 Constitution 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 protection 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 (1999) 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-representation is to determine whether the 

defendant truly desires to represent himself 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 defendant’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 defendant’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 598, 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’ ” was made out of frustration 

and was 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, we 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. Appellant’s Statements at the Marsden

Hearing

As set forth in the background section above, after 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; correct?” 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. I 
20

know I do it myself. I know how to do it myself.” The court 

reminded appellant: “This is a Marsden [motion] at this 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’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-representation at his next opportunity to do so, 

which was the next day when the trial judge came to his cell, 

which further indicates 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 self-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 selfrepresentation, the request can no longer be deemed equivocal. 

Not so.

As the 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 self-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 

Appeal found that Scott’s subsequent comments suggest he made 

the Faretta motion only 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 when a 

defendant makes an unequivocal request and to make a record of 

its findings 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 was otherwise properly 

denied, the Court would uphold the denial. The Court did not 

reach the issue of whether the defendant’s request was equivocal 

“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. Thus, 

even assuming defendant’s request was equivocal, the trial 
22

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 request 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 Adequately Advised of And Knowingly 

and Voluntarily Waived His Right to be Present at 

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 him 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.]” (People 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 and
23

leaves the court free to proceed with the trial in like manner and 

with like effect as if he were present.’ (Diaz v. United States

(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 defendant 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 his absence and thereby effectively 

foreclose his right to testify and to confront personally the 

witnesses against him.” (Id. at p. 19.) The Supreme Court 

responded: “It is wholly incredible to suggest that petitioner, who 

was at liberty on bail, had attended 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 presence—if other evidence 
24

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 part, 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 of and Expressly and 

Impliedly Waived His Right to be Present at 

Trial, and 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 that 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 wanted 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 replied: “No.” The judge clarified: “No? Do 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 as 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 court, 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 trial. Although appellant discussed the trial 
26

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. Appellant 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 the court’s advisement 

was inadequate because the trial court 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 waiver 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 who 
27

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.)

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 courthouse 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.

Appellant contends, in effect, that part and parcel of 

determining whether his absence 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 furthering his right of selfrepresentation. 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 court 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 for Sentencing

On August 25, 2017, Mackenzie left 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 needed 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 afraid 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 of Sentencing Claims

A. Section 654

Appellant contends the sentences on count 2 (lewd act), 

count 6 (kidnapping), and count 9 (witness dissuasion) must be 

stayed pursuant to section 654.

Section 654, subdivision (a), provides:“An act or omission 

that is punishable in different ways by different provisions of law 
29

shall be punished under the provision that provides for the 

longest potential term of imprisonment, but in no case shall the 

act or omission be punished under more than one provision.”

“Whether a defendant may be subjected to multiple 

punishment under section 654 requires a two-step inquiry, 

because the statutory reference to an ‘act or omission’ may 

include not only a discrete physical act but also a course of 

conduct encompassing several acts pursued with a single 

objective. [Citations.] We first consider 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, 311 (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 conviction 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.

Appellant contends his concurrent sentence on count 6 

(kidnapping) must be stayed pursuant to section 654. He 
30

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 traffick 

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. 

These findings are supported by substantial evidence. Further, 

the only apparent purpose of the kidnapping was to get 

Mackenzie to a location where appellant could coerce her into 

working as a prostitute. Staying the kidnapping conviction is 

also consistent with the general rule that when a defendant 

undertakes a kidnapping for the purpose 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 on 

Both 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 dissuasion

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 

trafficking, 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 returned 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 Mackenzie 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 record 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 threat 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 that section 654 must be 

applied is 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 earlier threat to cut off her 

head. Such a reminder, in context, would be a separate act.
32

support the 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 two acts and two primary objectives. Section 

654 does not apply.

3. The Section 667 Enhancements to 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 taken on the enhancements.

4. The Sentence on Count 2 (Lewd Act) Must Be 

Stayed.

Appellant contends the sentence on count 2 (lewd act) must 

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 based 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 differentiate 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 those 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 stated: “Well, this is the problem. There 

were different distinct acts that were alleged. They weren’t 

distinct, distinct, but there were 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 it 
34

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 revocation fine, stayed (§ 1202.45),

a $300 sexual offender fine, a $870 penalty assessment, a $60 

criminal surcharge, $280 in court security fees (§ 1465.8), and 

$210 in criminal conviction assessments (Gov. Code, § 70373)

without determining whether he had the present ability to pay. 

Appellant requests we 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. Nevertheless, appellant did not object to 

the fees, 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 imposing 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 and 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 instructed 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.