P. v. King

Filed 4/27/20 P. v. King CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
SCOTT LEWIS KING,
Defendant and Appellant.
B288298
(Los Angeles County
Super. Ct. No. GA085329)
APPEAL from a judgment of the Superior Court of Los
Angeles County. Michael D. Carter, Judge. Affirmed and
remanded with directions.
Jin H. Kim, 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, Acting
Senior Assistant Attorney General, Steven D. Matthews and
Heidi Salerno, Deputy Attorneys General, for Plaintiff and
Respondent.

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Scott Lewis King appeals the judgment entered following a
jury trial in which he was convicted of first degree murder. (Pen.
Code,1 § 187, subd. (a).) The jury also found true the gang
allegation pursuant to section 186.22, subdivision (b)(1)(C) and
three firearm allegations pursuant to section 12022.53,
subdivisions (b), (c) and (d). The trial court found appellant had
suffered a prior serious felony conviction for robbery, which
qualified as a strike under the Three Strikes law (§§ 667,
1170.12), but the court granted appellant’s Romero2 motion to
dismiss the strike.
The trial court sentenced appellant to 55 years to life in
state prison. The sentence consisted of 25 years to life for the
first degree murder conviction, plus a consecutive term of 25
years to life for the firearm enhancement under Penal Code
section 12022.53, subdivision (d),3 and an additional five-year
term pursuant to section 667, subdivision (a)(1) for the prior
serious felony conviction. The court imposed a $300 restitution
fine (Pen. Code, § 1202.4, subd. (b)), imposed and stayed a $300
parole revocation fine (Pen. Code, § 1202.45), and ordered a $30
criminal conviction assessment (Gov. Code, § 70373), and a $40
court security fee (Pen. Code, § 1465.8).
1 Undesignated statutory references are to the Penal Code.
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497
(Romero).
3 The court also imposed and stayed a 10-year term under
section 12022.53, subdivision (b) and a 20-year term under
section 12022.53, subdivision (c). In addition, the court imposed
and permanently stayed a 10-year term under section 186.22,
subdivision (b)(1)(C).

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Appellant contends: (1) The trial court violated appellant’s
federal and state due process rights by instructing the jury
pursuant to CALCRIM No. 315 that it should consider the
witness’s degree of certainty in evaluating the accuracy of an
identification; (2) The trial court prejudicially erred in denying
appellant’s request for a voluntary manslaughter instruction
based on imperfect self-defense; (3) The trial court abused its
discretion in refusing to strike the firearm enhancement; and
(4) Appellant is entitled to remand for a determination of his
ability to pay the restitution and parole revocation fines, the
court securities fee, and the criminal conviction assessment. We
reject these contentions and affirm the judgment of conviction.
However, remand is necessary to permit the trial court to
exercise its discretion pursuant to Senate Bill No. 13934 to
impose or strike the serious felony enhancement imposed under
section 667, subdivision (a)(1). In addition, the trial court is
directed to correct the minutes of the February 21, 2018
probation and sentencing hearing and the abstract of judgment to
accurately reflect the court’s oral pronouncements.
FACTUAL BACKGROUND
1. Marvin Laguan’s murder
On the evening of August 22, 2011, appellant was at his
cousin’s house on Mar Vista Avenue in Pasadena with Steven
Fleming, Maurice Scudder, and Ricky Vaughns. After leaving
the cousin’s house, the four men walked south on Mar Vista
together, but when they reached Villa Street, Fleming told
Scudder, “ ‘Just go to Brandy’s [sic] house. We going to come over
4 Statutes 2018, chapter 1013, section 2.

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there. I’ll meet you over there. We’re about to go do something.’ ”
Appellant and Fleming continued walking down Mar Vista
toward Maple, but feeling something was “fishy” and “weird,”
Scudder waited at the corner of Villa and Mar Vista and watched
to see where they were going and if they were going to return.
In the meantime, around 9:00 p.m. Cynthia Carrier drove
to Mar Vista to pick up her boyfriend, Marvin Laguan, at his
friend’s apartment located on the east side of the street between
Villa and Maple. With her three-year-old son in the backseat,
Carrier parked on the west side of the street and remained in the
car as she waited for Laguan. Laguan came outside and leaned
into the driver’s side window to speak with her. As they chatted,
Carrier saw Laguan look over his shoulder and look at appellant,
who was slowly walking down the east side of Mar Vista toward
Maple. Appellant was wearing a dark shirt and a dark unzipped
hoodie sweatshirt with the hood pulled up over his head.
Appellant stopped and stood in the driveway of the apartment
from which Laguan had just come. As the two men eyed each
other, Laguan said, “ ‘What’s up?’ ” to appellant. Carrier could
not hear appellant’s response. Appellant continued to stare at
Laguan, making him uncomfortable and irritated, which
prompted Carrier to urge Laguan to hurry up and say goodbye to
his friends so they could leave.
Laguan turned and started to walk across the street toward
his friend’s apartment. His hands were at his sides and he was
wearing a short-sleeved T-shirt. He did not have any weapon,
and he made no threatening or aggressive gestures toward
appellant. As he drew closer to appellant, Laguan said, “ ‘Where
you from?’ ” in a nonthreatening manner. Suddenly appellant
pulled a revolver from the pocket of his sweatshirt and opened

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fire, shooting Laguan multiple times. Laguan turned around and
tried to walk back to Carrier’s car. He went to his knees as
appellant continued to shoot him. When he had stopped firing,
appellant ran down Mar Vista toward Maple. Carrier managed
to get Laguan into the backseat of her car and called 911.
Cynthia Dale and her boyfriend Oliver Debats were sitting
on their elevated porch facing Mar Vista at the corner of Maple
when they heard gunshots. Debats first saw appellant near
Carrier’s car. After the shooting Dale and Debats saw appellant
and another man run south on Mar Vista past their porch and
turn west on Maple. The hood of appellant’s sweatshirt had come
off his head, and he was running awkwardly with his hands in
his pockets. As appellant ran past, Dale made eye contact with
him, and saw him “dead on.”5 At trial, both Dale and Debats
identified appellant as the man wearing the hoodie. Dale
testified she was “very confident” in her identification.
When Scudder heard the gunshots he ran west on Villa to
Brandi’s apartment, which was on Wilson one block west of Mar
Vista between Villa and Maple. After the shooting, surveillance
footage from a residence on Wilson showed two figures run from
Villa into the rear of an apartment building on Wilson. Three to
five minutes after Scudder arrived at Brandi’s apartment,
appellant and Fleming rushed in, nervous and out of breath.
They ran to the back of the apartment, and dashed back and
5 At the preliminary hearing of King and his codefendant,
Steven Fleming, as well as at Fleming’s trial in September 2014,
Dale identified Fleming as the man with whom she made eye
contact.

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forth in and out of the bathroom. Scudder saw that appellant
and Fleming had taken a revolver apart and were putting the
parts in a towel. Appellant passed the cylinder to Fleming.
Laguan died due to multiple gunshot injuries. He suffered
10 gunshot wounds, two of which were fatal. Five projectiles,
consistent with the .22 long rifle caliber ammunition used in 10-
round revolvers, were recovered from Laguan’s body. No bullets
or casings were found at the scene, and police never recovered a
gun.
2. Gang evidence
Corporal Carlo Montiglio of the Pasadena Police
Department testified as the prosecution’s gang expert. The
expert explained that the “Pasadena Denver Lanes Bloods” is a
Bloods gang based in Pasadena known by its initials “PDL.” As a
Bloods gang, PDL associates with the color red, and its members
commonly call each other “Blood.” The chief rival of any Bloods
gang is a Crips gang, and Bloods gang members often change the
“C” in words to a “B” as a sign of disrespect to the Crips. Thus, in
written or oral speech, Bloods gang members commonly say
words like “bool” for “cool,” or “bristol meth” for “crystal meth.”
In Bloods gang graffiti and tattoos a “K” may be placed after a
“C” in a word to signify “Crip Killer.”
Among PDL’s rivals in Pasadena are the “Squiggly Lane
Gangster Bloods” and the “Villa Boys Pasadena Trece” gang
(Villa Boys). In 2011, PDL and the Villa Boys were engaged in a
violent conflict which involved several shootings and murders.
Montiglio testified that although the area around Mar Vista and
Villa was Villa Boys gang territory, PDL controlled a small
section of that area on Mar Vista just north of Villa.

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Montiglio identified several of appellant’s tattoos as
probable PDL gang tattoos. On November 6, 2008, appellant
admitted to writing PDL gang graffiti and his moniker “Do
Wrong” on a Pasadena bus. Appellant also admitted to a police
officer that he was a gang member.
Based on the gang graffiti, appellant’s gang tattoos, his
gang admission, his regular association with PDL gang members,
and his frequent use of gang vernacular in his recorded jail
conversations as well as his Facebook messages and postings,
Montiglio opined appellant was a member of the Pasadena
Denver Lanes Bloods. When presented with a hypothetical
scenario based on the facts of the Laguan murder, Montiglio
further opined that the murder was committed for the benefit of,
at the direction of, or in association with the PDL gang.
DISCUSSION
I. CALCRIM No. 315
Appellant contends the trial court denied his due process
rights by instructing pursuant to CALCRIM No. 315 that a
witness’s level of certainty is a factor to consider in evaluating
the accuracy of identification testimony. He argues that this
portion of the instruction is contrary to empirical studies that
show witness certainty has no correlation with accuracy and is
legally incorrect. This precise issue is currently pending before
the California Supreme Court in People v. Lemcke, review
granted October 10, 2018, S250108 (Lemcke).
CALCRIM No. 315 directs the jury in evaluating
eyewitness identification testimony to consider a number of
questions, including, “How certain was the witness when he or
she made an identification?” Respondent contends appellant
forfeited any challenge to the instruction by failing to object. The

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predecessor to CALCRIM No. 315 is CALJIC No. 2.92, which tells
the jury to consider any factor that “bear[s] upon the accuracy of
the witness’ identification of the defendant, including, . . . [¶] . . .
[¶] [t]he extent to which the witness is either certain or uncertain
of the identification.” At the time of trial in this case, the
California Supreme Court had upheld the inclusion of the
certainty factor in CALJIC No. 2.92 on at least two occasions.
(People v. Sánchez (2016) 63 Cal.4th 411, 461–463 (Sánchez);
People v. Johnson (1992) 3 Cal.4th 1183, 1231–1232; see also
People v. Wright (1988) 45 Cal.3d 1126, 1144 [upholding CALJIC
No. 2.92 in its entirety, including the certainty factor].) Given
this precedent we reject respondent’s forfeiture argument as any
objection to the certainty factor in CALCRIM No. 315 would have
been futile. (See People v. Penunuri (2018) 5 Cal.5th 126, 166;
People v. Anderson (2001) 25 Cal.4th 543, 587 [“Counsel is not
required to proffer futile objections”].)
However, the same precedent mandates that we reject
appellant’s claim on its merits. In approving the use of certainty
as a factor in evaluating eyewitness identifications, our Supreme
Court has explained: “Studies concluding there is, at best, a
weak correlation between witness certainty and accuracy are
nothing new. We cited some of them three decades ago to support
our holding that the trial court has discretion to admit expert
testimony regarding the reliability of eyewitness identification.
[Citation.] In People v. Wright (1988) 45 Cal.3d 1126, 1141, we
held ‘that a proper instruction on eyewitness identification
factors should focus the jury’s attention on facts relevant to its
determination of the existence of reasonable doubt regarding
identification, by listing, in a neutral manner, the relevant
factors supported by the evidence.’ We specifically approved

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CALJIC No. 2.92, including its certainty factor. (Wright, at pp.
1144, 1166.) We have since reiterated the propriety of including
this factor. (People v. Johnson (1992) 3 Cal.4th 1183, 1231–
1232.)” (Sánchez, supra, 63 Cal.4th at p. 462.)
Our Supreme Court is now considering whether the
certainty factor as articulated in CALCRIM No. 315 remains
valid. In its grant of review in Lemcke, the high court framed the
issue as follows: “Does instructing a jury with CALCRIM No. 315
that an eyewitness’s level of certainty can be considered when
evaluating the reliability of the identification violate a
defendant’s due process rights?”
(<https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScr
een.cfm?dist=0&doc_id=2257737&doc_no=S250108&request_toke
n=NiIwLSEmXkw8W1BBSCItUE5IMFw0UDxTJiJeQzpRMCAg
Cg%3D%3D> [as of Apr. 15, 2020], archived at
<https://perma.cc/S4TU-2U6R>.) Appellant urges us to
anticipate the Supreme Court’s invalidation of CALCRIM No. 315
to the extent it encourages the jury to consider a witness’s
certainty in making an identification. Sánchez, however,
remains good law. Unless and until the Supreme Court changes
that law, we are bound by its holding that including the certainty
factor in instructions on eyewitness identification is not error.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)
II. The Trial Court Properly Refused Appellant’s
Request for a Voluntary Manslaughter
Instruction Based on Imperfect Self-Defense
A. Proceedings below
During discussions about the jury instructions, appellant
requested CALCRIM No. 571, voluntary manslaughter based on

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imperfect self-defense. Appellant asserted the instruction was
warranted because Laguan had threatened appellant with
immediate harm by issuing the gang challenge, “Where you
from?” According to appellant, it was a question for the jury
whether Laguan initiated the shooting with this challenge and if
appellant had a reasonable belief the immediate use of force was
necessary to confront such a challenge in rival gang territory.
The court responded that the instruction required evidence that
“ ‘the defendant actually believed that the immediate use of force
was necessary to defend himself.’ ” “[T]here has to be evidence of
actual belief, not [that the defendant] could have believed it or he
should have believed it. . . . I don’t think you get that from the
gang expert saying this is what gang members believe, especially
with the fact that the defense is contesting the fact he was a gang
member at all.” Although it would allow counsel to revisit the
issue, the court warned it would require a showing of appellant’s
actual belief.
In renewing the request for the imperfect self-defense
instruction, the defense argued the evidence showed that a
reasonable person could conclude appellant was actually in fear
of attack. The court refused the instruction, stating that
evidence of a defendant’s actual belief in the need to defend
against an imminent danger was a prerequisite for the
instruction.
B. Legal principles
“ ‘Murder is the unlawful killing of a human being . . . with
malice aforethought.’ (§ 187, subd. (a).) ‘Manslaughter is the
unlawful killing of a human being without malice.’ (§ 192,
subd. (a).) Manslaughter is a lesser included offense of murder,
and a defendant who commits an intentional and unlawful killing

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but who lacks malice is guilty of voluntary manslaughter.”
(People v. Nelson (2016) 1 Cal.5th 513, 538 (Nelson); People v.
Breverman (1998) 19 Cal.4th 142, 154 (Breverman).)
Imperfect self-defense reduces murder to voluntary
manslaughter (People v. Soto (2018) 4 Cal.5th 968, 970) because
when a defendant kills under the actual but unreasonable belief
that he is “ ‘in imminent danger of death or great bodily injury,
the defendant is deemed to have acted without malice.’ ” (People
v. Nguyen (2015) 61 Cal.4th 1015, 1048 (Nguyen); People v.
Simon (2016) 1 Cal.5th 98, 132 (Simon).) As our Supreme Court
has explained, imperfect self-defense is a shorthand way of
describing one form of voluntary manslaughter; it is not an
affirmative defense. (Simon, at p. 132.) Thus, in light of the fact
that “imperfect self-defense reduces an intentional, unlawful
killing from murder to voluntary manslaughter by negating the
element of malice, this form of voluntary manslaughter is
considered a lesser and necessarily included offense of murder.”
(Ibid.; Breverman, supra, 19 Cal.4th at p. 154.)
It is settled that in a criminal case, even absent a request,
“a trial court is obligated to instruct the jury on all general
principles of law relevant to the issues raised by the evidence.
[Citation.] It is error for a trial court not to instruct on a lesser
included offense when the evidence raises a question whether all
of the elements of the charged offense were present, and the
question is substantial enough to merit consideration by the
jury.” (People v. Booker (2011) 51 Cal.4th 141, 181; Breverman,
supra, 19 Cal.4th at p. 154.)
However, “ ‘[a]n instruction on a lesser included offense
must be given only if there is substantial evidence from which a
jury could reasonably conclude that the defendant committed the

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lesser, uncharged offense, but not the greater, charged offense.’ ”
(Nelson, supra, 1 Cal.5th at p. 538.) “The ‘substantial evidence
requirement is not satisfied by “ ‘any evidence . . . no matter how
weak’ ” ’ ” (ibid.), and “[s]peculative, minimal, or insubstantial
evidence is insufficient to require an instruction on a lesser
included offense” (Simon, supra, 1 Cal.5th at p. 132). “We review
de novo a trial court’s decision not to give an imperfect self-
defense instruction.” (Id. at p. 133; People v. Souza (2012) 54
Cal.4th 90, 113.)
“ ‘[J]ust as with perfect self-defense or any defense, “[a]
trial court need give a requested instruction concerning
[imperfect self-defense] only if there is substantial evidence to
support the defense.” ’ ” (Nguyen, supra, 61 Cal.4th at p. 1049.)
Accordingly, there must be substantial evidence that, when the
defendant acted, he actually believed (1) that he was in imminent
danger of being killed or suffering great bodily injury, and
(2) that the immediate use of deadly force was necessary to
defend against that danger, but (3) at least one of those beliefs
was unreasonable. (CALCRIM No. 571; People v. Her (2009) 181
Cal.App.4th 349, 352.)
Our Supreme Court has cautioned that the doctrine of
imperfect self-defense “is a ‘ “narrow” ’ one and ‘will apply only
when the defendant has an actual belief in the need for self-
defense and only when the defendant fears immediate harm that
‘ “ ‘must be instantly dealt with.’ ” ’ ” (People v. Landry (2016) 2
Cal.5th 52, 98.) “To satisfy the imminence requirement, ‘[f]ear of
future harm—no matter how great the fear and no matter how
great the likelihood of the harm—will not suffice. The
defendant’s fear must be of imminent danger to life or great
bodily injury. “ ‘[T]he peril must appear to the defendant as

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immediate and present and not prospective or even in the near
future. An imminent peril is one that, from appearances, must be
instantly dealt with.’ . . . [¶] . . .” Put simply, the trier of fact
must find an actual fear of an imminent harm.’ (In re
Christian S. (1994) 7 Cal.4th 768, 783.)” (People v. Trujeque
(2015) 61 Cal.4th 227, 270–271 (Trujeque).)
C. The trial court was under no duty to instruct on
imperfect self-defense
The trial court properly refused to instruct the jury on
imperfect self-defense in this case because there was no evidence
that appellant actually believed he was in any danger of
immediate harm that had to be dealt with instantly.
Appellant himself did not testify, but relies on Carrier’s
testimony about the shooting and the prosecution gang expert’s
testimony about gang culture to argue that there was substantial
evidence of appellant’s belief that he was in imminent peril to
which he needed to respond with deadly force. Specifically,
appellant cites the prosecution gang expert’s testimony that the
question, “Where you from?” is a “form of intimidation” that gang
members and those who live in communities with gangs
understand as a challenge. Such a challenge could lead to
violence⎯anything from a fight to serious injury or death.
Appellant then points to Carrier’s testimony that Laguan
repeatedly turned his attention from his conversation with
Carrier to look over at appellant. As Laguan walked toward
appellant, he said, “What’s up,” and, escalating the situation, he
then asked appellant, “Where you from?” Appellant adds that
Laguan was very close to appellant⎯about six feet away⎯when
appellant responded to Laguan’s aggression by opening fire.

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Appellant also argues that the jury could have reasonably
inferred that appellant subjectively feared he was in imminent
danger of great bodily injury or death which called for the use of
deadly force based on Montiglio’s testimony that walking through
a rival gang’s territory is a sign of great disrespect, which can be
deadly for a member of another gang. According to Montiglio,
retaliation for disrespect can consist of “[a]nything as simple as
beatings all the way to murders.” Appellant thus asserts that
because he was walking through the rival gang Villa Boys
territory, he “reasonably would have had a heightened sense of
the possibility that danger might come his way.”
While appellant identifies what might have amounted to a
potentially dangerous situation, he fails to cite any evidence
showing appellant’s subjective state of mind, much less even a
suggestion that appellant was in “ ‘actual fear of an imminent
harm’ ” which called for the use of deadly force. (Trujeque, supra,
61 Cal.4th at p. 270.) It is true that “the ‘substantial evidence of
a defendant’s state of mind may be found in the testimony of
witnesses other than a defendant’ ” (People v. Oropeza (2007) 151
Cal.App.4th 73, 82), but such evidence is lacking here. No
witness testified that appellant fired on Laguan out of fear or
appeared fearful in any way. There was no evidence of any words
or statements by appellant in the moments before the shooting,
nor evidence of anything he said after the killing to indicate he
believed deadly force was necessary to defend himself against an
immediate threat posed by Laguan.
In the absence of such evidence to support this element of
the voluntary manslaughter instruction, the trial court was
under no duty to instruct on imperfect self-defense, and properly
declined to do so.

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III. The Trial Court Did Not Abuse Its Discretion in
Refusing to Strike the Firearm Allegation
A. Proceedings below
The jury found true all three firearm enhancement
allegations under section 12022.53, subdivisions (b), (c), and (d).
At sentencing, appellant requested dismissal of the firearm
enhancement under section 12022.53, subdivision (d), which
carried a consecutive term of 25 years to life. The trial court
declined the request, stating: “[T]he court recognizes that it does
have the discretion to strike either the allegation as a whole or
punishment for the allegation; and in this case, the court in its
discretion chooses to do neither.” The court specifically found
that appellant “fall[s] within the spirit of the gun allegation,” and
explained in detail how appellant’s use of the firearm in this
instance made it “so easy” to shoot and kill a stranger from a
distance with no provocation or even interaction between them.
The court noted that had another type of weapon been used,
Laguan might “have had a fighting chance to survive,” but
because appellant used a firearm, Laguan really had no
opportunity to defend himself and no chance of survival. On that
basis, the court imposed a consecutive term of 25 years to life
pursuant to section 12022.53, subdivision (d).
B. The Trial Court Properly Exercised Its Discretion
Appellant contends the trial court abused its discretion in
declining to strike the firearm enhancement because it failed to
consider the nature and circumstances of his current crimes and
prior convictions, and the particulars of his background,
character, and prospects. (See People v. Williams (1998) 17
Cal.4th 148, 161.) Instead, according to appellant, by relying on
irrelevant factors while ignoring relevant ones, the court did not

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exercise “informed discretion” and the matter must be remanded
for resentencing. (See People v. Gutierrez (2014) 58 Cal.4th 1354,
1391 [“ ‘Defendants are entitled to sentencing decisions made in
the exercise of the “informed discretion” of the sentencing
court’ ”].) We reject the claim.
In People v. Pearson (2019) 38 Cal.App.5th 112 (Pearson),
our colleagues in Division One of this district resolved this issue,
noting that when determining whether to strike a firearm
enhancement under section 12022.53, subdivision (h) the trial
court must weigh the same factors it must consider when
pronouncing sentence in the first instance. (Id. at p. 117.) “In
addition to the factors expressly listed for determining whether to
strike enhancements listed in California Rules of Court, rule
4.428(b), the trial court is also to consider the factors listed in
California Rules of Court, rule 4.410 (listing general objectives in
sentencing), as well as circumstances in aggravation and
mitigation under California Rules of Court, rules 4.421 and
4.423. ‘[U]nless the record affirmatively reflects otherwise,’ the
trial court is deemed to have considered the factors enumerated
in the California Rules of Court. (Cal. Rules of Court, rule 4.409.)
Among other factors the court may have considered were that
‘[t]he crime involved great violence . . . threat of great bodily
harm, or other acts disclosing a high degree of cruelty,
viciousness, or callousness,’ that the ‘defendant was armed with
or used a weapon at the time of the commission of the crime,’ and
that the ‘victim was particularly vulnerable.’ (Cal. Rules of
Court, rule 4.421(a)(1)–(3).)” (Ibid.)
Here, by highlighting the fact that appellant used a firearm
to shoot a perfect stranger from a distance without even
interacting with him and without provocation, the court expressly

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determined that “[t]he crime involved great violence, great bodily
harm, threat of great bodily harm, or other acts disclosing a high
degree of cruelty, viciousness, or callousness” and “[t]he
defendant has engaged in violent conduct that indicates a serious
danger to society.” (Cal. Rules of Court, rule 4.421(a)(1), (b)(1).)
The court further took into account the victim’s particular
vulnerability by noting that Laguan had had no opportunity to
defend himself and did not stand a “fighting chance to survive.”
(Cal. Rules of Court, rule 4.421(a)(3).) And in finding that the
murder was committed with a firearm, the court explicitly
determined “[t]he defendant was armed with or used a weapon at
the time of the commission of the crime.” (Cal. Rules of Court,
rule 4.421(a)(2).)
Moreover, there is nothing in the record to indicate, much
less affirmatively establish that the trial court did not consider
other relevant factors it was required to consider. (Cal. Rules of
Court, rule 4.409 [“Relevant factors enumerated in these rules
must be considered by the sentencing judge, and will be deemed
to have been considered unless the record affirmatively reflects
otherwise”]; see Pearson, supra, 38 Cal.App.5th at p. 117.)
It is readily apparent on this record that the trial court
carefully considered the factors it was required to consider when
pronouncing sentence in this case, and its denial of appellant’s
request to dismiss the firearm enhancement “was squarely within
the bounds of the trial court’s discretion.” (Pearson, supra, 38
Cal.App.5th at p. 118.)

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IV. Appellant Is Not Entitled to a Hearing to
Determine His Ability to Pay the Fines
Assessments
Appellant contends the trial court’s imposition of
restitution and parole revocation fines as well as the criminal
conviction assessment and the court security fee was
unconstitutional under People v. Dueñas (2019) 30 Cal.App.5th
1157 (Dueñas). He thus asserts he is entitled to remand with
instructions to stay enforcement of these financial obligations
until the People prove that he has the ability to pay them. We
reject the claim.
In People v. Hicks (2019) 40 Cal.App.5th 320, 322, 329,
review granted November 26, 2019, S2589466 (Hicks), we
concluded that Dueñas was wrongly decided, and we rejected its
holding that “due process precludes a court from ‘impos[ing]’
certain assessments and fines when sentencing a criminal
defendant absent a finding that the defendant has a ‘present
ability to pay’ them.” (Accord, People v. Petri (2020) 45
6 The California Supreme Court ordered briefing deferred
pending decision in People v. Kopp, S257844, which presents the
following issues:
“(1) Must a court consider a defendant’s ability to pay
before imposing or executing fines, fees, and assessments? (2) If
so, which party bears the burden of proof regarding the
defendant’s inability to pay?” (People v. Hicks, S258946,
<https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScr
een.cfm?dist=0&doc_id=2302457&doc_no=S258946&request_toke
n=NiIwLSEmXkw8W1BZSCNNTEtIUEQ0UDxTJiBeIz5SUCAg
Cg%3D%3D> [as of Apr. 15, 2020], archived at
<https://perma.cc/G7TN-VLGH>.)

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Cal.App.5th 82, 92 [quoting Hicks, at p. 329: “The ‘imposition of
these financial obligations has not denied defendant access to the
courts’ and ‘their imposition has [not] . . . result[ed] in
defendant’s incarceration’ ”]; People v. Aviles (2019) 39
Cal.App.5th 1055, 1067–1068 [“Dueñas was wrongly decided”];
People v. Caceres (2019) 39 Cal.App.5th 917, 923, 926–927
[Dueñas’s due process analysis does not justify extending its
“broad holding” beyond its “extreme facts”]; People v. Kingston
(2019) 41 Cal.App.5th 272, 279–282 (Kingston) [no due process
violation in imposition of assessments and restitution fine
without first ascertaining defendant’s ability to pay them]; People
v. Kopp (2019) 38 Cal.App.5th 47, 96–97 [“there is no due process
requirement that the court hold an ability to pay hearing before
imposing a punitive fine and only impose the fine if it determines
the defendant can afford to pay it”], review granted Nov. 13,
2019, S257844.)
In Kingston, our colleagues in Division One of this district
agreed with our opinion in Hicks that, contrary to Dueñas’s
analysis, “due process precludes a court from imposing fines and
assessments only if to do so would deny the defendant access to
the courts or result in the defendant’s incarceration.” (Kingston,
supra, 41 Cal.App.5th at p. 279, citing Hicks, supra, 40
Cal.App.5th at p. 329.) Here, as in Kingston and Hicks, the
“imposition of the [restitution fine], assessments and fees in no
way interfered with [appellant’s] right to present a defense at
trial or to challenge the trial court’s rulings on appeal . . . . And
their imposition did not result in [appellant’s] incarceration.”
(Kingston, at p. 281; Hicks, at p. 329.) Moreover, due process
does not deny appellant the opportunity to try to satisfy these
obligations. (See Hicks, at p. 327.)

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Further, we agree with the People that appellant’s failure
to object to the imposition of the restitution fine or assessments
and his failure to assert any inability to pay them (unlike the
defendant in Dueñas) forfeited the issue on appeal. Generally,
where a defendant has failed to object to a restitution fine or
court fees based on an inability to pay, the issue is forfeited on
appeal. (People v. Aguilar (2015) 60 Cal.4th 862, 864
[“defendant’s failure to challenge the fees in the trial court
precludes him from doing so on appeal”]; People v. Avila (2009) 46
Cal.4th 680, 729.) We agree with our colleagues in Division Eight
of this district that this general rule applies here to the
restitution fine and the assessments imposed under the Penal
and Government Codes. (People v. Bipialaka (2019) 34
Cal.App.5th 455, 464; People v. Frandsen (2019) 33 Cal.App.5th
1126, 1153–1155; but see People v. Petri, supra, 45 Cal.App.5th at
pp. 88–89; People v. Castellano (2019) 33 Cal.App.5th 485, 488.)
Finally, even if appellant did not forfeit his argument, we
decline to extend Dueñas’s broad holding beyond the extreme
facts in that case, which are not present here. Dueñas was a
disabled, unemployed, and often homeless mother of two young
children. Over the course of several years she served jail time
because she could not pay the fines imposed in connection with
various misdemeanor vehicle offenses. (Dueñas, supra, 30
Cal.App.5th at pp. 1160–1162.) Applying a due process analysis
to the particular facts before it, the appellate court concluded
that “[b]ecause the only reason Dueñas cannot pay the fine and
fees is her poverty, using the criminal process to collect a fine she
cannot pay is unconstitutional.” (Dueñas, at p. 1160.) By
contrast, the situation in which appellant finds himself—subject
to a state prison sentence of 55 years to life on a first-degree

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murder conviction with a firearm enhancement—simply does not
implicate the same due process concerns at issue in the factually
unique Dueñas case. Appellant, unlike Dueñas, does not face
incarceration because of an inability to pay court-imposed fines,
fees and assessments. Instead, appellant is in prison because he
committed a deliberate and premeditated murder. Even if
appellant does not pay the fines and assessments, he will suffer
none of the cascading and potentially devastating consequences
that Dueñas faced. (See Dueñas, at p. 1163.)
V. Remand Is Necessary to Permit the Trial Court
to Exercise Its Discretion to Determine
Whether to Strike the Five-year Enhancement
for the Prior Serious Felony Conviction
Appellant’s sentence includes a five-year enhancement
imposed under section 667, subdivision (a)(1) for a prior serious
felony conviction.
Senate Bill No. 1393, which amended sections 1385 and
667 to give trial courts the discretion to strike the five-year
enhancement under section 667, subdivision (a)(1), became
effective on January 1, 2019, after appellant was sentenced in
this case. The legislation applies retroactively to cases in which
judgment is not yet final on appeal. (People v. Garcia (2018) 28
Cal.App.5th 961, 973 [holding Sen. Bill No. 1393 would apply
retroactively upon effective date]; see People v. Brown (2012) 54
Cal.4th 314, 323 [“[w]hen the Legislature has amended a statute
to reduce the punishment for a particular criminal offense, we
will assume, absent evidence to the contrary, that the Legislature
intended the amended statute to apply to all defendants whose
judgments are not yet final on the statute’s operative date”], fn.
omitted.)

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Prior to Senate Bill No. 1393, section 1385, subdivision (b),
expressly prohibited a trial court from striking “ ‘any prior
conviction of a serious felony for purposes of enhancement of a
sentence under Section 667.’ ” (People v. Valencia (1989) 207
Cal.App.3d 1042, 1045, fn. 2; Valencia, at p. 1045 [under § 1385,
subd. (b), trial court has no discretion to strike § 667, subd. (a)
enhancement].) Senate Bill No. 1393 eliminated this restriction.
In the context of Senate Bill No. 620, courts have held that
remand is required absent a clear indication that the trial court
would not have reduced the sentence if it had been aware of its
discretion to do so. (People v. Almanza (2018) 24 Cal.App.5th
1104, 1110.) The trial court gave no such indication here. To the
contrary, given that the court granted appellant’s request to
strike the prior conviction pursuant to Romero and thus not
double appellant’s sentence under the Three Strikes law, the
record suggests the court may choose to exercise its discretion in
favor of leniency on this matter as well. Accordingly, on remand
the trial court may consider whether to exercise its discretion to
impose or strike the five-year prior serious felony enhancement
under section 667, subdivision (a)(1).
VI. The Trial Court Is Directed to Correct the
Minutes and Abstract of Judgment to Conform
to the Trial Court’s Oral Pronouncements
At the sentencing hearing in this case, the trial court
sentenced appellant to an aggregate term of 55 years to life and
imposed a $300 restitution fine (§ 1202.4, subd. (b)) and a $300
parole revocation fine, which was stayed (§ 1202.45). The trial
court further ordered that appellant and Fleming be held jointly
and severally liable for victim restitution in the amount
determined for the burial expenses.

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However, the minute order from the hearing incorrectly
reflects imposition of a probation revocation restitution fine,
effective upon the revocation of probation pursuant to section
1202.44. The abstract of judgment contains several errors and
omissions as well: It does not reflect the indeterminate sentence
of 50 years to life plus five years imposed by the court, but
instead shows only 25 years to life for the firearm enhancement
under section 12022.53, subdivision (d) plus five years for the
prior serious felony conviction enhancement under section 667,
subdivision (a)(1), and it omits the 25 years to life sentence for
murder altogether; the abstract fails to reflect that the court
ordered joint and several liability between appellant and Fleming
for victim restitution; and, like the minutes, the abstract fails to
reflect that the court imposed and stayed a $300 parole
revocation fine under section 1202.45, but incorrectly shows a
$300 probation revocation fine “now due” under section 1202.44.
“Where there is a discrepancy between the oral
pronouncement of judgment and the minute order or the abstract
of judgment, the oral pronouncement controls.” (People v.
Zackery (2007) 147 Cal.App.4th 380, 385; People v. Walz (2008)
160 Cal.App.4th 1364, 1367, fn. 3; see also People v. Jones (2012)
54 Cal.4th 1, 89 [“ ‘[a]n abstract of judgment is not the judgment
of conviction; it does not control if different from the trial court’s
oral judgment and may not add to or modify the judgment it
purports to digest or summarize’ ”].) Discrepancies between the
judgment as orally pronounced and as entered in the minutes or
abstract of judgment are presumed to be the result of clerical
error (People v. Mesa (1975) 14 Cal.3d 466, 471), and an appellate
court that has properly assumed jurisdiction of a case has the
inherent authority to correct clerical errors in the record to

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conform to the oral judgment of the sentencing court (People v.
Mitchell (2001) 26 Cal.4th 181, 185). Accordingly, the minutes of
the February 21, 2018 probation and sentencing hearing and the
abstract of judgment must be corrected to conform to the trial
court’s oral pronouncement of judgment.
DISPOSITION
The matter is remanded to the trial court for the limited
purpose of allowing it to exercise its discretion under Penal Code
sections 667, subdivision (a) and 1385, as amended by Senate Bill
No. 1393, to strike or impose the five-year prior serious felony
enhancement. The trial court is further directed to correct the
minutes and abstract of judgment to reflect the court’s oral
pronouncements and to forward a certified copy of the abstract of
judgment to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.

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