Filed 4/16/21 P. v. Carranza CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Following a joint trial before separate juries, defendant and appellant Armando Carranza (Appellant) and codefendant Abraham Arroyo (Arroyo) were found guilty of the August 2015 murder of Felix Garduno Vega (Garduno Vega). While the present appeal was pending, Appellant’s murder conviction was redesignated a conviction for assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4))[1] and Appellant was resentenced. As Appellant acknowledges, the redesignation and resentencing rendered moot a number of the claims in his opening brief. Appellant’s remaining claims are that insufficient admissible evidence supported imposition of a gang enhancement under section 186.22, subdivision (b)(1) (in part, because the prosecution’s gang expert improperly related case-specific hearsay); trial counsel was ineffective in failing to object to misconduct during the prosecutor’s closing arguments; and Appellant is entitled to a hearing on his ability to pay a restitution fine and assessments imposed by the trial court. We reject Appellant’s claims and affirm.

PROCEDURAL BACKGROUND

In July 2016, the District Attorney of San Mateo County filed an information charging Appellant and Arroyo with the murder of Garduno Vega (§ 187, subd. (a)), with gang (§ 186.22, subd. (b)(1)(C)) and firearm (§ 12022.53, subds. (d) & (e)) enhancements.[2]

Appellant and Arroyo were tried jointly before separate juries. In February 2017, Appellant’s jury found him guilty of second-degree murder and found true the gang and firearm enhancements.

In April 2017, the trial court sentenced Appellant to an indeterminate term of 40 years-to-life in prison, including 15 years-to-life for murder, plus a consecutive sentence of 25 years for the firearm enhancement. The court stayed imposition of punishment on the gang enhancement. Appellant was also ordered to pay a $300 restitution fine (§ 1202.4, subd. (b)) with a ten percent collection fee; a $40 court operations assessment (§ 1465.8); a $30 court facilities assessment (Gov. Code, § 70373); and $5,000 in victim restitution.

This appeal followed. On May 30, 2019, this court granted Appellant’s request for a stay to allow him an opportunity to file a petition for resentencing in the trial court pursuant to section 1170.95. (See People v. Martinez (2019) 31 Cal.App.5th 719, 729.) In September 2019, the trial court granted Appellant’s resentencing petition, vacated his murder conviction, and redesignated the offense assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)). The court sentenced Appellant to a total prison term of eight years for that offense and the gang enhancement and ordered Appellant released with credit for time served.

FACTUAL BACKGROUND[3]

On August 29, 2015, Arroyo shot Garduno Vega in an alley behind a house where a barbeque was underway. Garduno Vega died of wounds to his chest and back. Garduno Vega was a Sureño gang member associated with the Coastside Locos. The gang’s territory included the block in Half Moon Bay where he died. Appellant’s girlfriend, Laura Sanabria (Sanabria), was also associated with the Coastside Locos. At the time of the murder, 19-year-old Arroyo and 35-year-old Appellant were coworkers at a restaurant and members of another Sureño gang, the Carnales Locos Sureños Trece (CXLS), whose territory was in Redwood City.

A Coastside Locos member invited Appellant and Arroyo to the barbeque. They arrived and greeted other attendees, including Garduno Vega, in a friendly manner, but did not stay long. Appellant and Arroyo went to Sanabria’s mother’s home, where Sanabria and Appellant argued about an ex-boyfriend of Sanabria being in town. The People presented evidence Appellant was jealous of other men in Sanabria’s life, including Garduno Vega, who was a childhood friend of Sanabria. Just before Appellant and Arroyo returned to the barbeque in Half Moon Bay, Appellant appeared drunk and angry. In reference to Sanabria, he said, “Fuck this bitch,” and in reference to an unspecified person, “I’m going to fuck up this asshole.” Arroyo responded, “Let’s go.”

Appellant and Arroyo returned to the barbeque in Half Moon Bay with a “different vibe.” Appellant asked to speak to Garduno Vega. The three walked to a nearby alley, out of sight from the barbeque. Witnesses described hearing an argument between Appellant and Garduno Vega immediately before the shooting. Sanabria received a phone call from Garduno Vega, and she could hear him and Appellant arguing. The argument related to a message Garduno Vega had sent Sanabria years earlier telling her the ex-boyfriend wanted to talk to her. Witnesses heard shots and then saw Appellant and Arroyo leave in a white Acura. Garduno Vega stumbled towards the house and said, “They got me.”

Arroyo and Appellant separated. Arroyo took the car, which belonged to Sanabria, and Appellant was picked up by Sanabria and her brother. In the early morning hours of the following day, a San Mateo County deputy sheriff attempted to pull the Acura over for a Vehicle Code violation. Arroyo crashed the car, and then escaped on foot. The deputy found a semiautomatic handgun in the abandoned Acura that was later determined to be the gun used to kill Garduno Vega. Arroyo was arrested about a week after the murder.

Cesar Reyes, another coworker of Appellant and Arroyo, testified Arroyo said, at a different gathering prior to the shooting, that he had a gun for protection. Reyes asked Appellant if he knew about the gun, and Appellant said he had just learned about it while driving over with Arroyo after work.

Police officer Jamie Draper (Draper) testified as an expert on criminal street gangs. According to Draper, CXLS is a Sureño criminal street gang composed of approximately 10 people, who use common signs and symbols (the color blue, the numbers 3 and 13, the acronym RWC for Redwood City, the letter and number combination X3), and for whom assault with a deadly weapon is their primary activity. Draper identified evidence of several predicate offenses committed by other CXLS members, including convictions for illegal firearm possession, assault with a deadly weapon, and attempted murder. Draper explained that violent offenses instill fear in the community and assist the gang because, in gang culture, fear and intimidation are synonymous with respect and control.

Draper opined Arroyo and Appellant were active CXLS members, given their tattoos and clothing, association with other gang members, gang graffiti found in Appellant’s home and Arroyo’s holding cell, Sanabria’s identification of Appellant as a CXLS member, and the content of certain communications (including Facebook postings and messages by Appellant). Draper also testified different Sureño gangs do not always get along and may battle over turf. Sureño gang members in a different gang’s territory would need to ensure they were welcome or come with backup.

According to Draper, the fact that a gang member’s girlfriend was spending time with another man would be considered a personal matter and not necessarily violate gang rules. But, if the situation made the gang appear weak, the affected member would be expected to regain respect. If an older gang member had been disrespected and needed backup, a younger gang member would be expected to assist. Gang members also commit crimes together to increase their chances of success, such as by providing better opportunities for escape and disposal of evidence.

In late August 2015, CXLS gang members were concerned with strengthening the gang’s image. Just a few days before the murder, Arroyo sent a message to another gang member about putting the gang “on the map” and “controlling the streets,” which he recognized “might cost him his life.”

Appellant testified Arroyo shot Garduno Vega without prompting and disclaimed any knowledge Arroyo was armed. Although Appellant admitted speaking to Garduno Vega immediately before the shooting, Appellant denied feeling jealousy toward him. Appellant was shaking Garduno Vega’s hand when he heard shots fired and saw Garduno Vega fall to the ground. This was when he first realized Arroyo had a gun. Panicking, Appellant ran to the Acura, and Arroyo followed.

Appellant testified he was not an active gang member at the time of the shooting. He explained, “Basically I consider a person being active if somebody’s out in the street putting in work, and the only type of work that I was putting in was for my kids.”

Appellant’s gang expert opined Appellant was not an active gang member at the time of the murder. In rebuttal, Sanabria’s brother testified that, when Appellant was picked up after the shooting, he said “it was going to be Half Moon Bay against Redwood City.”

DISCUSSION

I. Substantial Evidence Supported the Gang Enhancement

Appellant argues the evidence at trial was insufficient to sustain the jury’s true finding that he participated in Garduno Vega’s murder (subsequently reduced to assault with force likely to produce great bodily injury) for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1).) We reject the claim.

“In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] ‘A reviewing court neither reweighs evidence nor reevaluates a witness’s credibility.’ ” (People v. Albillar (2010) 51 Cal.4th 47, 59–60 (Albillar).)

The section 186.22, subdivision (b)(1) gang enhancement applies to “ ‘any person’ ” convicted of an enumerated felony that was (1) “ ‘committed for the benefit of, at the direction of, or in association with any criminal street gang,’ ” and (2) “ ‘with the specific intent to promote, further, or assist in any criminal conduct by gang members.’ ” (People v. Rivera (2019) 7 Cal.5th 306, 331.) “ ‘Not every crime committed by gang members is related to a gang’ for purposes of the enhancement, but the enhancement applies ‘when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang.’ ” (Ibid.)

Appellant devotes a substantial portion of his briefing to arguing the evidence showed Appellant’s motivation for confronting Garduno Vega was personal and, thus, he did not aid in the assault “for the benefit of” the CXLS gang. However, we need not consider whether the evidence was sufficient to support a true finding under that theory because, as explained below, the evidence supported a finding Appellant committed the offense “in association with” the CXLS gang.[4]

A. No Prejudicial Error Resulted from Admitting the Expert’s

Testimony Showing Appellant Was an Active Member of the

CXLS Gang

As Appellant acknowledges, the section 186.22, subdivision (b)(1) gang enhancement does not require a showing the defendant was a member of a criminal street gang. (People v. Sanchez (2016) 63 Cal.4th 665, 698 (Sanchez).) In the present case, however, the trial court recognized the prosecution was primarily proceeding on the theory that Appellant’s participation in the shooting was “in association with” the CXLS gang, and the court instructed the jury that, “[t]o prove that the offense was committed . . . ‘in association’ . . . with a criminal street gang the People must prove that the defendants were both members of the criminal street gang at the time of the crime, and that they relied on their common gang membership when they committed the crime.” That instruction was consistent with the California Supreme Court’s discussion of the “in association” theory in Albillar, supra, 51 Cal.4th at page 62, which emphasized the importance of the defendants’ “common gang membership.” (See also Part II.B., post.) Thus, evidence that Appellant and Arroyo were both CXLS members at the time of the shooting was necessary to a finding that Appellant committed the offense “in association with” the CXLS gang.[5]

Appellant asserts, “Officer Draper’s opinion that Carranza was an active gang member was based on conversations he had with other police officers, or reading police reports, and not based on his own personal knowledge.” He argues the expert related information relevant to Appellant’s gang membership in violation of the California Supreme Court’s decision in Sanchez, supra, 63 Cal.4th 665, which held that “an expert may not relate inadmissible ‘case-specific facts about which the expert has no independent knowledge.’ [Citation.] ‘Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried.’ [Citation.] Testimony relating such facts, unlike testimony about non-case-specific background information, is subject to exclusion on hearsay grounds.” (People v. Veamatahau (2020) 9 Cal.5th 16, 26 [quoting and citing Sanchez].) Among other things, Appellant argues the expert related inadmissible case-specific hearsay in testifying that Appellant was a founding member of the CXLS, in identifying certain other persons Appellant associated with as other founders of the gang, and in describing Appellant’s history of law enforcement contacts (the most recent of which was in 2009).[6]

At the outset, we note that, although Appellant subsequently claimed he was inactive, following the shooting he told the police he was “a Sureño gang member from the Redwood City set,” which at trial he admitted was the CXLS gang.

Turning to the prosecution’s gang expert’s testimony, although Draper related to the jury the matters highlighted by Appellant on appeal, Draper emphasized other considerations when explaining the basis for his opinion that Appellant was an active CXLS member at the time of the August 2015 shooting. Draper relied on graffiti on stairs in Appellant’s home that spelled out “CXLS” and referenced Appellant’s gang moniker. Draper testified the graffiti was particularly significant because Appellant and Sanabria had not moved into the home until March 2014. Draper also testified regarding photographs of Appellant’s tattoos that reflected association with the Sureños and the CXLS. And Draper said he relied on Sanabria’s trial testimony about Appellant’s gang membership. To wit, the prosecutor asked her “what gang is [Appellant] in?” and she responded “CXLS.”[7]

Officer Draper also testified regarding a number of Facebook posts by Appellant that reflected his continuing gang affiliation. Most significantly, on September 24, 2014, Appellant posted a photo of his knuckles, showing a tattoo with CXLS lettering. Appellant captioned the photo, “Kept it real since tha day tha carnal stranger gave me my three dots while sittin on a milk crate at tha pay phones at Chevron on Whipple Ave. And I kept my word 18 ever since. It’s been 24 years now and I still kept my word . . . for life.” The expert testified that the post reflected the lifelong devotion gang members can have for their gang, and that the post described Appellant’s initiation into the CXLS gang.

Finally, elsewhere in his testimony the gang expert described Facebook messages that showed Appellant’s “active status” at the time of the August 29, 2015 shooting. For example, in July 2015 Arroyo and Appellant discussed the status of the CXLS gang and Appellant said he was “[t]rying to get everybody together.” Arroyo talked about his connections and his plans; Draper testified a gang member “wouldn’t trust [an inactive member] with this level of information.” Further, in August 2015 Appellant communicated on Facebook with Rigoberto Molina, an imprisoned CXLS gang member. On August 2, Molina sent Appellant a message telling Appellant to hold a meeting of the gang, and Appellant replied “Working on it.” On August 7, Appellant asked Molina to represent the CXLS gang in prison. On August 11, Molina again asked Appellant to get the gang together for a meeting and he told Appellant that those who didn’t show up should “get checked.”

Appellant challenges the admissibility of some of the matters emphasized by Draper in opining Appellant was an active member of the CXLS gang at the time of the shooting. First, he argues the expert could not rely on the photographs of Appellant’s tattoos because Draper did not have personal knowledge to authenticate the photographs as being “accurate depictions of [Appellant’s] gang tattoos.” But the photographs were not particularly probative in establishing Appellant’s gang membership at the time of the incident because there was no evidence regarding when Appellant obtained them (Appellant testified he got his last gang tattoo about 15 years before trial). Further, Appellant himself shared one of the tattoos on his Facebook page less than a year before the murder. That rendered harmless any error as to admission of the photographs. Indeed, the Facebook post was far more probative than the photographs because it reflected Appellant declaring his life-long allegiance to the CXLS gang close to the time of the murder.

Next, Appellant argues the Facebook posts were inadmissible hearsay. However, the Facebook posts were relevant to show appellant continued to express allegiance to the CXLS gang close to the time of the murder, not for the truth of the matters asserted in the posts. (Evid. Code § 1200.) Further, the Facebook posts were admissible as statements by Appellant, a party opponent. (Evid. Code § 1220; People v. Rodriguez (2014) 58 Cal.4th 587, 637 [“Evidence Code section 1220 makes a ‘statement’ of a party an exception to the general rule forbidding hearsay evidence when the statement is offered against that party.”].) Appellant also argues the prosecution did not establish sufficient foundation for admission of the Facebook posts because the printouts themselves were hearsay, but Appellant fails to cite to anywhere in the record where he objected to admission of the posts on that basis. The record reflects that the prosecution provided a letter from Facebook certifying the authenticity of the posts from Appellant’s account, and Appellant’s attorney stated he had no objection to admission of the pages relied on by the prosecution, along with the certification. Indeed, Appellant himself introduced into evidence numerous printouts of Facebook posts to show that most of his posts related to his family life.

The overall thrust of Appellant’s argument is that Draper “testified that many factors went into forming his opinion,” and some of those additional matters were inadmissible. Although the expert referenced the matters described above in explaining the basis for his opinion, it is true Draper said he considered the “totality of things,” which could include some of the information that Appellant argues was inadmissible under Sanchez. However, we need not determine whether some other matters the expert related were inadmissible, because he properly related matters that overwhelmingly demonstrated Appellant was a member of the CXLS gang at the time of the incident. That is, the evidence described above—the graffiti in Appellant’s house, Appellant’s Facebook posts and messages, and Laura’s testimony—showed with little room for doubt that Appellant was an active CXLS gang member proximate to the time of the Garduno Vega shooting. The additional matters Draper referenced—such as Appellant’s tattoos, affiliations, and previous police contacts—were far less probative because they reflected only Appellant’s undisputed historical membership in the gang. Thus, because the most probative facts were admissible (as explained above), it is clear any error in allowing the gang expert to relate additional information was harmless under any test of prejudice.[8]

B. There Was Sufficient Evidence Appellant Participated in the

Offense in Association With the CXLS Gang and With

The Requisite Specific Intent

Turning to the findings required by the section 186.22, subdivision (b)(1) gang enhancement, was there substantial evidence Appellant aided the assault “in association with” the CXLS gang and with the required specific intent? Considering the evidence of Appellant and Arroyo’s common gang membership and the other circumstances of the shooting, we conclude there was.

From the evidence at trial, the jury could reasonably infer the following: Appellant and Arroyo were both active and committed CXLS gang members; Appellant and Arroyo were not friends but, rather, were connected through their common membership in the gang;[9] Arroyo and Appellant, with others and with each other, had discussed trying to re-build the gang in the period before the shooting; Appellant had a motive to assault Garduno Vega, while Arroyo lacked any motive unrelated to the gang; Appellant exercised authority over Arroyo as an older member of the gang; it was consistent with gang culture for a younger gang member to assist an older gang member who had been disrespected; Arroyo’s response “Let’s go” to Appellant’s comment “I’m going to fuck up this asshole” reflected Arroyo’s agreement to help Appellant and was a typical response from a younger gang member in that situation; Appellant benefited from Arroyo’s armed back-up in confronting Garduno Vega in Coastside Locos territory; and Appellant’s post-shooting comment “it was going to be Half Moon Bay against Redwood City” reflected his understanding that he and Arroyo had acted in concert as gang members.

These inferences together clearly constitute substantial evidence Appellant and Arroyo “relied on their common gang membership and the apparatus of the gang in” shooting Garduno Vega. (Albillar, supra, 51 Cal.4th at p. 60.) On appeal, Appellant repeatedly emphasizes the personal nature of the dispute and the lack of retribution from the Coastside Locos gang, but that does not mean Appellant and Arroyo did not come “together as gang members” to commit the assault. (Id. at p. 62.) Further, the lack of any strong connection between Appellant and Arroyo diminished the possibility they were “ ‘on a frolic and detour unrelated to the gang.’ ” (Ibid.)[10]

The evidence also supported a finding Appellant specifically intended to promote, further, or assist in the assault. “[T]he scienter requirement in section 186.22[, subdivision (b)(1)] . . . applies to any criminal conduct, without a further requirement that the conduct be ‘apart from’ the criminal conduct underlying the offense of conviction sought to be enhanced.” (Albillar, supra, 51 Cal.4th at p. 66.) “f substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members.” ([i]Id. at p. 68.)

Appellant does not appear to dispute there was sufficient evidence he intended to aid and abet an assault with force likely to cause great bodily injury.[11] Instead, Appellant argues the jury’s verdict reflects the jury did not find Appellant intended to aid Arroyo in murdering Garduno Vega, because the jury convicted him of second degree murder under the natural and probable consequences theory. But Appellant fails to explain why it is insufficient for purposes of the gang enhancement that there was substantial evidence he specifically intended to assist Arroyo’s assault; he cites no authority that the gang enhancement does not apply because Arroyo may have committed more serious criminal conduct than Appellant intended to assist.

We observe this result is consistent with the legislative intent. “[T]he Legislature found criminals acting in association—however loose—to pose a more serious threat to public safety than other criminals.” (People v. Prunty (2015) 62 Cal.4th 59, 74.) In the present case, Appellant’s decision to confront the victim with the assistance of his armed gang affiliate Arroyo greatly increased the likelihood and/or severity of violence.

II. Appellant Has Not Demonstrated Ineffective Assistance of Counsel

Appellant contends he was denied his right to effective assistance of counsel because his attorney failed to object to certain alleged misconduct during the prosecutor’s closing arguments. (See Strickland v. Washington (1984) 466 U.S. 668.) Appellant has not shown ineffective assistance of counsel (IAC).

“The law governing prosecutorial misconduct is well established. ‘Conduct by a prosecutor that does not violate a court ruling is misconduct only if it amounts to “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury” [citations] or “is so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process” [citation].’ ” (People v. Kennedy (2005) 36 Cal.4th 595, 617–618 (Kennedy), disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459.) “ ‘ “ ‘ “[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. . . .” [Citation.] “A prosecutor may ‘vigorously argue his case and is not limited to “Chesterfieldian politeness” ’ [citation], and he may ‘use appropriate epithets. . . .’ ” ’ [Citation.]” ’ [Citation.] ‘To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.’ ” (People v. Gamache (2010) 48 Cal.4th 347, 371.)

“To preserve a claim of prosecutorial misconduct for appeal, a defendant must object and seek an admonition if an objection and admonition would have cured the harm.” (Kennedy, supra, 36 Cal.4th at p. 618.) In the present case, Appellant claims his counsel below provided IAC by failing to object to the arguments he contends constituted prosecutorial misconduct.

“In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it ‘fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms.’ . . . If the record ‘sheds no light on why counsel acted or failed to act in the manner challenged,’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ [Citations.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 745–746.)

Appellant contends the prosecutor committed misconduct in his closing arguments by repeatedly accusing Appellant of lying or committing perjury.[12] He cites over 20 places where the prosecutor accused Appellant of lying or making up a story and three places where the prosecutor accused Appellant of perjury. A passage regarding Appellant’s claim that Arroyo sent him a text message taking responsibility for the shooting is a good example of the prosecutor’s approach. The prosecutor argued, “[Carranza] looked at you in the eyes and he said that that was true. And that was absolutely false. That was absolutely a lie. That was him not only perjuring himself in front of you, but trying to create the idea that there was some other evidence out there that made him look less guilty and put all the blame on Mr. Arroyo. And I think we demonstrated quite clearly that it’s absolutely impossible for that message to exist because if you look at the call detail records, there are only two text messages between them ever. No mysterious text message that he wants you to believe exists. That was the last question to him. This is his opportunity for him to get up in front of you and either tell you the truth or try to concoct and continue to concoct this story so he can walk out that door. [¶] If you decide that a witness deliberately lied about something significant in this case you should consider not believing anything that witness says. Why would you believe anything Mr. Carranza says? He has demonstrated he is a liar to the police. He has demonstrated he’s a liar to you. And the interesting thing about each of those lies is . . . every lie is designed specifically to make him look less guilty and push all blame on Mr. Arroyo.”

Appellant relies on the California Supreme Court’s decision in People v. Ellis (1966) 65 Cal.2d 529, which cautioned that prosecutors who call defendants perjurers and liars may commit misconduct. The court explained, “Prosecutors tread on dangerous ground . . . when they resort to epithets to drive home the falsity of defense evidence. [Citation.] The term liar, for instance, implies more than offering untrue testimony; it implies a willful falsehood. [Citation.] The term perjurer has, as its only formal semantic distinction vis-a-vis liar, the additional element of the oath. A charge of perjury, however, produces more than moral opprobrium. Perjury is a felony, and the connotation conveyed to the jury is therefore apt to be far more derogatory than that conveyed by the term liar. Particularly when applied to the defendant, it is apt adversely and unnecessarily to affect the ability of the jury dispassionately to weigh the credibility of the accused and the issue of guilt or innocence. Unless the prosecutor is careful to state that his conclusion that perjury was committed is predicated solely on the evidence before the jury, the spectre of jury reliance on prosecutorial access to information outside the record is raised.” (Id. at pp. 539–541, fn. omitted.) In Ellis, the prosecutor connected the perjury accusation to the issue of guilt in arguing, “ ‘[Y]ou can do nothing else but find a perjurer guilty of the charge.’ ” (Id., at p. 541, fn. 17.)

In addition to Ellis, we must also consider other Supreme Court cases that permit prosecutors to “ ‘ “ ‘ “ ‘use appropriate epithets.’ ” ’ ” ’ ” (People v. Gamache, supra, 48 Cal.4th at p. 371.) For example, in People v. Edelbacher (1989) 47 Cal.3d 983, the prosecutor called the defendant, among other things, a “ ‘pathological liar’ ” and “ ‘one of the greatest liars in the history of Fresno County.’ ” (Id. at p. 1030.) The Supreme Court stated, “Referring to the testimony and out-of-court statements of a defendant as ‘lies’ is an acceptable practice so long as the prosecutor argues inferences based on evidence rather than the prosecutor’s personal belief resulting from personal experience or from evidence outside the record.” (Ibid.; see also, e.g., People v. Williams (2016) 1 Cal.5th 1166, 1189 [argument claiming “that defendant lied and knowingly put on contradictory evidence” not misconduct where “[t]he gist of the prosecutor’s comments in context . . . referred to the reasonable conclusion, based on the evidence, that defendant was the murderer.”]; People v. Friend (2009) 47 Cal.4th 1, 32 [“ ‘[w]hen a defendant’s testimony contradicts the strong evidence of his guilt, it is not improper to call him a liar.’ ”]; People v. Boyette (2002) 29 Cal.4th 381, 433 [“Defendant contends the prosecutor repeatedly called him a liar. This was a permissible argument.”]; People v. Coddington (2000) 23 Cal.4th 529, 613, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [“The prosecutor’s reference to appellant as a ‘liar’ was not improper. It was a reasonable inference based on the evidence.”].)

Also instructive is the California Supreme Court’s decision in People v. Earp (1999) 20 Cal.4th 826 (Earp), which distinguishes Ellis. In Earp, the court stated, “We also reject defendant’s assertion that by arguing that defendant’s testimony was not to be believed, the prosecutor was urging the jury to return a guilty verdict for special-circumstance murder because defendant had committed perjury. Here, the prosecutor did not argue that defendant’s lies warranted conviction, but rather that defendant had not told the truth. In this respect, this case differs from [Ellis], in which we described as misconduct a prosecutor’s statement to the jury that it could ‘do nothing else but find a perjurer guilty’ of the charged offense.” (Earp, at p. 864.)

As was the case in Earp, the prosecutor in the present case did not argue the jury should find Appellant guilty because he was a liar and perjurer. Instead, the prosecutor’s argument was clearly that material aspects of Appellant’s testimony were not believable, that his testimony was contradicted by more credible evidence, and that Appellant lied strategically to address evidence that was adverse to him. The prosecutor implicitly referred to the trial court’s jury instruction that, “If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says.” In context, it is clear the prosecution’s emphasis on Appellant’s alleged lies was in order to encourage the jury to disregard the entirety of his testimony, as the instruction permitted them to do. Appellant does not contend the instruction was in error.

The prosecutor’s argument also did not imply to the jury that he had personal knowledge of Appellant’s guilt. (Ellis, supra, 65 Cal.2d at p. 541.) Instead, the prosecutor argued the falsity of Appellant’s and Sanabria’s testimony was shown by the contradictions with other evidence in the case, illogical aspects of their narrative, and their strong motivation to lie. (Cf. People v. Johnson (1981) 121 Cal.App.3d 94, 102 [“Before he termed the testimony an outright lie the prosecutor reminded the jury that he had personally investigated the matter, . . .”].)

We do, however, acknowledge that the argument in the present case was closer to the line of impropriety due to the large number of times the prosecutor accused Appellant of being a liar, and the three times the prosecutor accused Appellant of perjuring himself on the stand. The several perjury accusations are particularly significant under Ellis. (Ellis, supra, 65 Cal.2d at pp. 539–541.) Nevertheless, even assuming the prosecutor’s argument, viewed as a whole, was misconduct, Appellant has not shown there is a reasonable probability the outcome would have been more favorable to him had defense counsel obtained a ruling that the prosecutor could not accuse Appellant of perjury or repeatedly accuse him of lying.

In particular, because Appellant has not appealed from the judgment resentencing him to assault instead of murder, he restricts his argument on appeal to a claim that defense counsel’s failure to object prejudiced the jury’s finding on the gang enhancement. He argues, “the evidence of the gang enhancement was insufficient, or if this Court finds the evidence legally sufficient, it was certainly not overwhelming and appellant presented a strong defense that he was not an active gang member.” We disagree. As explained previously (Part I, ante), there was overwhelming evidence that Appellant was an active CXLS gang member at the time of the shooting and numerous inferences supported a finding that he participated in the shooting in association with the gang. Moreover, the prosecutor’s arguments in the present case did not claim that Appellant should be found guilty because he was a liar or that the prosecutor had personal knowledge of Appellant’s guilt. Instead, even assuming the prosecutor committed misconduct by his repeated and derogatory epithets, the general thrust remained focused on the evidence of Appellant’s guilt and the lack of credibility of his version of events. There is no reasonable likelihood the jury would have rendered a different verdict on the gang enhancement had defense counsel objected to the statements at issue.

Appellant has not shown IAC.

III. Appellant Has Not Shown Dueñas Error

Appellant was ordered to pay a $300 restitution fine (§ 1202.4), a $40 court operations assessment (§ 1465.8), and a $30 court facilities assessment (Gov. Code, § 70373). Appellant contends the matter should be remanded for a hearing on his ability to pay the fine and assessments under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).[13] We reject the claim.

A. Background

Section 1204.2, subdivision (b)(1) provides for a restitution fine in the minimum amount of $300, and up to a maximum amount of $10,000, when a defendant is convicted of a felony. Section 1202.4, subdivision (c) specifies, “The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states its reasons on the record. A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of restitution in excess of the minimum fine . . . .” Thus, the statute requires the trial court to impose the statutory minimum regardless of the defendant’s ability to pay, but the court may consider ability to pay in setting a fine in excess of the statutory minimum. (People v. Kramis (2012) 209 Cal.App.4th 346, 350.) The court facilities and operations assessments are mandatory. (People v. Woods (2010) 191 Cal.App.4th 269, 272.)

In Dueñas, supra, 30 Cal.App.5th 1157, the defendant was indigent, homeless, a mother of two young children, afflicted with cerebral palsy, and barely surviving on public assistance. (Id. at pp. 1160–1161.) Her driver’s license had been suspended because she was unable to pay three juvenile citations, and she subsequently suffered a series of misdemeanor convictions for driving with a suspended license. (Id. at p. 1161.) In each case, she “was offered the ostensible choice of paying a fine or serving jail time in lieu of payment,” but each time she was unable to pay and served time in jail. (Ibid.) When she suffered another misdemeanor conviction for driving with a suspended license, she asked the trial court to set a hearing to determine her ability to pay court fees. (Id. at p. 1162.) The trial court denied a hearing and imposed a restitution fine and court facilities and operations assessments, concluding they were mandatory. (Id. at p. 1163.)

On appeal, the Dueñas court held section 1202.4 requires a trial court to impose a minimum restitution fine regardless of ability to pay, but the constitutional right of due process requires that execution of the fine be stayed until the defendant’s ability to pay is determined. (Dueñas, supra, 30 Cal.App.5th at p. 1172.) The court also found it was a violation of due process to impose the assessments without finding that the defendant had the ability to pay them. (Dueñas, at p. 1168.)

B. Analysis

At the outset, we reject respondent’s contention that Appellant forfeited any challenge under Dueñas because he failed to object on the ground of ability to pay below. “ ‘Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence.’ ” (People v. Brooks (2017) 3 Cal.5th 1, 92; see also People v. Edwards (2013) 57 Cal.4th 658, 705.) At the time of sentencing, Dueñas had not yet been decided and the trial court was obligated by statute to impose the minimum restitution fine and the statutory fee and assessments. An objection on the ground now asserted would have been futile. (See People v. Castellano (2019) 33 Cal.App.5th 485, 489.)[14]

On the merits, we agree with those courts that have concluded that Dueñas, although possibly correct on its facts, was incorrect to the extent it stated a broader rule that, as a matter of constitutional due process, an ability-to-pay hearing is required before imposition of fines. (See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055; People v. Caceres (2019) 39 Cal.App.5th 917.) As these cases explain, in contrast to the two strands of authority on which Dueñas relied, the failure to determine ability to pay a minimum restitution fine and assessments does not, absent unusual circumstances, impair defendants’ access to the courts or subject them to imprisonment as a consequence. Imposition of the fine and assessments in the present case did not violate Appellant’s right to due process.

DISPOSITION

The trial court’s judgment is affirmed.

SIMONS, Acting P.J.

We concur.

BURNS, J.

RODRIGUEZ J.*

(A151112)

[1] All undesignated statutory references are to the Penal Code.

[2] Arroyo was also charged with a vehicular flight offense (Veh. Code, § 2800.2).

[3] This factual summary is largely taken from this court’s prior decision in Arroyo’s appeal, based on substantially the same record at trial. (People v. Arroyo (July 3, 2019, A152084) [nonpub opn.].) Any differences in the testimony heard by the two juries are not material to the issues on appeal.

[4] We reject any suggestion the prosecution was required to prove Appellant acted “for the benefit of” the CXLS gang even if there was sufficient evidence Appellant acted “in association with” the gang. “Because the first prong is worded in the disjunctive, a gang enhancement may be imposed without evidence of any benefit to the gang so long as the crime was committed in association with or at the direction of another gang member.” (People v. Weddington (2016) 246 Cal.App.4th 468, 484; see also People v. Garcia (2017) 9 Cal.App.5th 364, 379.)

[5] Officer Draper, the prosecution’s gang expert, testified an “active gang member” was “[s]omebody that’s still involved in the gang. It doesn’t necessarily mean that they’re out there committing crimes, but [they], could be acting in kind of [a] behind the scenes leadership [role].” (See People v. Rodriguez (2012) 55 Cal.4th 1125, 1131 [in reference to section 186.22, subd. (a), observing that “ ‘ “[m]ember” and “membership” are terms of ordinary meaning, and require no further definition.’ ”].) As we explain, the evidence that Appellant continued to identify and associate with the CXLS gang at the time of the shooting was sufficient to establish active gang membership. Appellant cites no authority any greater showing of gang involvement was required for the purposes of the “in association with” determination.

[6] Appellant also references Draper’s testimony that older gang members, such as Appellant, are viewed as leaders and can exercise authority over younger members like Arroyo. However, that is “background information” about gang culture and not “case-specific” facts within the meaning of Sanchez. (Sanchez, supra, 63 Cal.4th at pp. 676–677.)

[7] Appellant’s friend and co-worker Cesar Reyes also testified Appellant was “from” the CXLS gang.

[8] Appellant argues that certain information related by the gang expert was also “testimonial” hearsay inadmissible under the Sixth Amendment’s Confrontation Clause. (See Sanchez, supra, 63 Cal.4th at pp. 679–686.) However, he does not argue that any of the most probative matters—the graffiti in Appellant’s house, Appellant’s Facebook posts and messages, and Sanabria’s testimony—were testimonial hearsay.

[9] Appellant’s testimony made it clear he and Arroyo were not close friends, such that Arroyo could have been expected to help Appellant confront Garduno Vega in the absence of their gang connection. Appellant testified, “I haven’t known [Arroyo] for that long. He doesn’t know me. The only time I hang out with him, literally, was” the day of the shooting.

[10] Several of the cases Appellant relies upon to support his sufficiency of the evidence argument are easily distinguished because they involve defendants who acted alone. (See People v. Perez (2017) 18 Cal.App.5th 598, 613–614; People v. Ochoa (2009) 179 Cal.App.4th 650, 665; In re Frank S. (2006) 141 Cal.App.4th 1192, 1199.) None of Appellant’s cases analyze the “in association with” aspect of section 186.22, subdivision (b)(1) in a manner helpful to Appellant’s argument on appeal. Indeed, the Daniel C. decision adopted a broad interpretation of the “in association” theory, finding substantial evidence to support that prong simply because the defendant was accompanied by a known gang member and an affiliate, and all wore clothing with the Norteño color. (In re Daniel C. (2011) 195 Cal.App.4th 1350, 1358–1359.)

[11] Any such argument would fail. There was evidence Appellant was angry and intoxicated, knew Arroyo had a gun, talked about “kicking someone’s ass,” was upset about a text message Garduno Vega sent Sanabria, brought Garduno Vega away from the barbeque into an alley, argued with Garduno Vega prior to the shooting, and fled with Arroyo afterwards.

[12] Appellant also contends the prosecutor committed misconduct by attacking the integrity of defense counsel. He emphasizes the prosecutor’s arguments such as, “[Defense counsel] is really sort of boxed in with the fact that he has to make his argument relying on his client’s testimony and his client’s statement. He has to. That’s his job. He’s stuck with it because that’s what his client said.” He also highlights the prosecutor’s argument, “that’s something that [defense counsel] has to deal with because his client got on the stand and said that. That’s his client getting on the stand, perjuring himself to you, trying to tell you that Mr. Arroyo sent this text message taking all the responsibility.” Appellant has not shown misconduct. There is no reasonable likelihood the jury understood the cited argument as a “claim that defense counsel does not believe in his or her client’s innocence” or a claim that “counsel has fabricated a defense,” rather than an assertion that defense counsel “ ‘was aware of the weakness’ in the proffered defense.” (People v. Seumanu (2015) 61 Cal.4th 1293, 1337–1338.)

[13] In People v. Kopp, review granted November 13, 2019, S257844, the California Supreme Court will address the questions, “Must a court consider a defendant’s ability to pay before imposing or executing fines, fees, and assessments? If so, which party bears the burden of proof regarding defendant’s inability to pay?”

[14] Respondent argues Appellant forfeited his Dueñas claim because he has not shown he objected at the time of resentencing. Because we reject the claim on the merits, we need not address this aspect of respondent’s forfeiture argument.

* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.