Filed 10/22/26 P. v. Dolan CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H053433
(Monterey County
Plaintiff and Respondent, Super. Ct. No. 21CR009360)
v.
MARSHALL DOLAN,
Defendant and Appellant.
In April 2025, a jury convicted defendant Marshall Dolan of custodial
possession of a weapon, and the trial court subsequently sentenced him to a term
of six years in prison. On appeal, Dolan argues the trial court erred by denying his
pretrial Pitchess1 motion seeking discovery of confidential personnel records of
certain correctional officers. Dolan also argues that the trial court committed
sentencing error by imposing certain ancillary fees without first conducting a
hearing on his ability to pay. In the alternative, if this court concludes Dolan has
forfeited his claim of sentencing error due to trial counsel’s failure to object,
Dolan asserts that he received ineffective assistance of counsel.
On July 10, 2026, after briefing was completed, we vacated submission of
the matter and requested supplemental briefing on the following issues: “(1) in
evaluating [Dolan]’s pretrial Pitchess[] motion, was the trial court required to
1
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
separately consider the materiality of each of the requested correctional officers’
personnel records to determine whether they may contain information relevant to
the pending charges (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1021
(Warrick)) and, if so, is Officer Avila similarly situated to the other officers for the
purposes of this motion; (2) assuming the trial court abused its discretion in
denying the Pitchess motion with respect to Officer Avila’s personnel records,
should the trial court reconsider whether good cause exists to conduct an in
camera review of other officers’ records, if any, that the trial court found material
under Warrick; and (3) assuming the court conditionally reverses for further
proceedings, would [Dolan] be permitted to challenge the fines and fees imposed
at his June 27, 2025 sentencing?”
In response to the supplemental briefing request, the Attorney General
concedes that the trial court should have granted the Pitchess motion and
conducted an in camera review of the officers’ personnel records. We agree. We
will therefore conditionally reverse the judgment and remand the matter for the
trial court to conduct that in camera review.
As to the fines and fees imposed at Dolan’s June 27, 2025 sentencing, we
conclude that Dolan has forfeited that claim of error and further find that Dolan
has not demonstrated that his trial counsel was ineffective for not requesting an
ability to pay hearing. Following our conditional reversal, the trial court may only
conduct an in camera review of the personnel records as directed in our
disposition. In the event that those proceedings culminate in Dolan demonstrating
that he is entitled to a new trial, if convicted, he may address any fines and fees
that may be imposed under current law.
2
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedure
On April 21, 2025, the Monterey County District Attorney filed an
amended information charging Dolan with two felony counts of custodial
possession of a weapon (Pen. Code,2 § 4502, subd. (a); counts 1, 2). The amended
information further alleged that Dolan had four prior strike convictions
(§ 1170.12, subd. (c)(2)) and had served a prior prison term (Cal. Rules of Court,
rule 4.421(b)(3)).
On April 29, 2025, a jury convicted Dolan on one count of custodial
possession of a weapon (count 1). After the jury stated it could not reach a verdict
on count 2, the court declared a mistrial on that charge and the district attorney
dismissed it. In a bifurcated proceeding, the jury found true the prior strike and
prior prison term allegations.
On June 27, 2025, the trial court sentenced Dolan to a total term of six
years in prison, consisting of the middle term of three years doubled due to the
strike priors, consecutive to any other sentence. The court imposed a $300
restitution fine (§ 1202.4, subd. (b)), a parole revocation fine of $300 (§ 1202.45),3
a court operations assessment of $40 (§ 1465.8), and a criminal conviction
assessment of $30 (Gov. Code, § 70373).
Dolan timely appealed on June 30, 2025.
2
Unspecified statutory references are to the Penal Code.
3
The parole revocation fine was suspended pending successful completion
of parole. (§ 1202.45, subd. (c).)
3
B. Facts4
According to correctional officer Andy Avila’s report, on the morning of
February 10, 2020: (1) he observed Dolan standing in a restricted area and talking
to inmates in a separate yard; (2) Dolan ignored Avila’s order to return to his unit;
(3) Avila saw Dolan “receive an item [which Avila suspected was contraband]
through the chain link fence from one of the inmates”; (4) after Dolan began to
return to his unit, Avila ordered him to submit to a clothed body search; (5) during
that search, Avila felt a hard object in Dolan’s left sock, which Dolan said was a
glove; (6) Dolan began to resist correctional officers when asked to remove the
glove from his sock; (7) Avila found the glove on the ground underneath Dolan
after he was taken to the ground and handcuffed; and (8) Avila discovered the
inmate-manufactured weapon and 12 kites inside that glove.
Sergeant Elbert Howard reported that “Avila rolled Dolan onto his right
side and discovered an inmate manufactured [sic] grey glove. Officer Avila took
possession of the glove and discovered an inmate manufactured [sic] weapon [and
approximately 12 kites] inside the glove.”
Correctional officer Jaime Marquez describes in his report how he assisted
Avila and Garcia in restraining Dolan, but he does not mention seeing a glove or
any contraband.
In correctional officer J. Garcia’s5 report, he states that, during the pat
search, Avila asked Dolan what was in his sock and Dolan replied, “ ‘It’s just my
glove.’ ” When Dolan subsequently tried to run, Garcia, “fearing for my safety
and my partner’s safety and not knowing what was inside the glove,” helped take
4
Our recitation of the facts is limited to the correctional officers’ reports
submitted in connection with Dolan’s Pitchess motion.
5
Garcia’s first name does not appear in his report.
4
Dolan to the ground and handcuffed him. Garcia does not state anything further
about the glove or anything found within it in his report.
The fifth officer, J. Defranco,6 reported that he was acting as the
observation officer and saw Dolan “standing at the fence line … talking to the
inmates.” Defranco twice ordered Dolan to return to his housing unit, but Dolan
did not comply. Defranco then informed Avila and Garcia that Dolan was not
following his instructions and asked them to escort Dolan to his unit. Defranco
saw the two officers speak with Dolan who put his hands on the wall “for what
appeared to be a clothed body search.” Defranco turned his attention elsewhere
and, when he looked back, he saw Avila and Garcia on top of Dolan trying to
restrain him. Due to the distance, Defranco stated he could not see who
handcuffed Dolan or who performed the body search. Defranco’s report does not
mention a glove or its contents.
II. DISCUSSION
A. Pitchess motion
Dolan argues that the trial court erred when it denied his Pitchess motion
“relying on a rationale that was not raised in the motion and the accompanying
declaration by defense counsel.” In his initial briefing, the Attorney General
asserted that Dolan did not meet his burden of showing good cause that would
have required the trial court to conduct an in camera review of the records.
However, in response to our request for supplemental briefing, the Attorney
General concedes that the trial court should have conducted an in camera review
of each of the five officers’ personnel files for instances where they included false
information in a police report, and further concedes that two of the officers’
6
Defranco’s first name does not appear in his report.
5
personnel files, i.e., Avila’s and Howard’s, should also be reviewed for instances
in which they fabricated or tampered with evidence.7
1. Additional background
Before trial, Dolan filed a Pitchess motion seeking review and disclosure of
the confidential personnel records of five correctional officers8 who authored
reports regarding the February 10, 2020 incident.
In his motion, Dolan alleged he had a plausible alternative factual scenario
for what took place on that day. Specifically, Dolan claims that he cooperated
when ordered by the officers to comply with a search. When Avila felt the glove
in Dolan’s sock, Avila told him to take it out. As Dolan did so, Avila and Garcia
threw Dolan to the ground and handcuffed him. The officers took the glove from
Dolan’s grasp, inspected it in Dolan’s presence, but did not find anything within it.
According to Dolan, correctional officers would have been required by policy to
show him the kites and the weapon they claimed to have found in the glove, but
the officers did not show him any such items. Dolan also claimed that the
weapon, as described, would not fit in a glove.
Dolan’s trial counsel filed a declaration in which he stated, on information
and belief, that the “glove was inspected while [] Dolan was present” and “[n]o
objects were found in the glove.” Counsel also declared, on information and
belief, that the correctional officers would have shown the kites and weapon to
7
Having considered this concession and our review of the record, we need
not address the second question raised in our request for supplemental briefing,
which asked whether, if the trial court erred in declining to examine Avila’s
personnel records, should the trial court reconsider conducting an in camera
review of the personnel records of the other four officers.
8
Dolan attached to his motion the reports prepared and signed by these five
officers.
6
Dolan if they had found them in the glove and that “a six inch by one-inch weapon
and twelve kites would not fit in a glove.”
The district attorney filed an opposition to the motion, arguing that Dolan
had failed to establish good cause for discovery of the officers’ personnel records
because he did not present a plausible scenario that the officers engaged in
misconduct.
At the January 17, 2025 hearing on Dolan’s Pitchess motion, the parties
submitted the matter without further argument. The trial court denied the motion,
noting that “there were five officers, and defendant is alleging that, apparently, all
of these officers conspired, though they responded from different locations, to set
him up, or to frame him, and the Court does not find that that is plausible, given all
of the other information reports that have been presented.”
2. Applicable legal principles
A movant under the Pitchess statutes must show, among other things,
“good cause for the discovery or disclosure sought.” (Evid. Code, § 1043, subd.
(b)(3).) “A showing of good cause is measured by ‘relatively relaxed standards’
that serve to ‘insure the production’ for trial court review of all potentially relevant
documents.’ ” (People v. Gaines (2009) 46 Cal.4th 172, 179 (Gaines).)
“This ‘good cause’ requirement has two components. First, the movant
must set forth ‘the materiality’ of the information sought ‘to the subject matter
involved in the pending litigation.’ (Evid. Code, § 1043, subd. (b)(3).) The
function of this requirement is to ‘exclude[ ] requests for officer information that
are irrelevant to the pending charges.’ ” (Association for Los Angeles Deputy
Sheriffs v. Superior Court (2019) 8 Cal.5th 28, 41 (Deputy Sheriffs).)
Accordingly, “a defendant seeking Pitchess discovery [must] establish not only a
logical link between the defense proposed and the pending charge, but also []
articulate how the discovery being sought would support such a defense or how it
7
would impeach the officer’s version of events.” (Warrick, supra, 35 Cal.4th at p.
1021.) “If the movant shows that the request is ‘relevant to the pending charges,
and explains how, the materiality requirement will be met.’ [Citations.] If
information is ‘material’ within the meaning of Brady, it is necessarily material ‘to
the subject matter involved in’ a criminal prosecution.” (Deputy Sheriffs, supra, at
pp. 41–42.)
“Second, the ‘good cause’ requirement obliges the movant to articulate ‘a
“reasonable belief” that the agency has the type of information sought.’
[Citations.] This belief ‘may be based on a rational inference’ ... .” (Deputy
Sheriffs, supra, 8 Cal.5th at p. 42.) “What the defendant must present is a specific
factual scenario of officer misconduct that is plausible when read in light of the
pertinent documents.” (Warrick, supra, 35 Cal.4th at p. 1025.) “[T]he
information sought must be described with some specificity to ensure that the
defendant’s request is not so broad as to garner ‘ “all information which has been
obtained by the People in their investigation of the crime” ’ but is limited to
instances of officer misconduct related to the misconduct asserted by the
defendant.” (Id. at p. 1021.) “This specificity requirement excludes requests for
officer information that are irrelevant to the pending charges.” (Ibid.)
If the trial court finds good cause for the motion, the court must examine
the requested materials in camera to determine whether they should be disclosed to
the defendant and whether certain specified categories of information must be
withheld. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83.)
We review a trial court’s denial of a Pitchess motion for an abuse of
discretion. (People v. Breaux (1991) 1 Cal.4th 281, 311.)
3. Analysis
Dolan argues that the trial court erred in denying his Pitchess motion “on
the basis that there was no evidence of a conspiracy among the officers” when he
8
did not claim any such conspiracy in his motion or in the supporting declarations.
Instead, Dolan’s motion was based on the officers’ reports being “factually
inconsistent and false.”
Dolan’s motion pointed out the discrepancies in the correctional staff
reports, including that three of the five reports made no mention of finding a
weapon during the encounter. In addition, Dolan’s attorney stated, on information
and belief, that no weapons were found in the glove, Dolan was not shown either
the weapon or any kites, and a six-inch by one-inch weapon and twelve kites
would not fit inside the glove as the officers claimed. These inconsistencies
suggest that the officers were untruthful.
Dolan argues that in denying his motion, the trial court erred by
disregarding the proper legal standard for adjudicating a Pitchess motion. For this
proposition, he relies on Warrick, supra, 35 Cal.4th 1011, wherein the California
Supreme Court held, “[T]o obtain in-chambers [sic] review a defendant need only
demonstrate that the scenario of alleged officer misconduct could or might have
occurred.” (Id. at p. 1016.) “To require a criminal defendant to present a credible
or believable factual account of, or a motive for, police misconduct suggests that
the trial court’s task in assessing a Pitchess motion is to weigh or assess the
evidence. It is not. A trial court hearing a Pitchess motion normally has before it
only those documents submitted by the parties, plus whatever factual
representations counsel may make in arguing the motion. The trial court does not
determine whether a defendant’s version of events, with or without corroborating
collateral evidence, is persuasive—a task that in many cases would be tantamount
to determining whether the defendant is probably innocent or probably guilty.”
(Id. at p. 1026.)
We agree with Dolan that the documents he sought, if they had included
evidence of dishonesty by the correctional officers, would satisfy the materiality
9
element required for a Pitchess motion. Avila’s report stated that the glove was
underneath Dolan and that he discovered an inmate-manufactured weapon and
kites inside. However, because Avila’s report does not specifically indicate when
and where this contraband was first identified as such, Avila’s testimony at trial to
this effect would potentially become the only direct evidence by which the
prosecution could show Dolan had possessed the contraband.9 If Dolan could
have impeached Avila at trial with personnel records that demonstrated prior
instances of dishonesty, the jury might have discredited his testimony on that
point, and the prosecution would have had little or no evidence connecting Dolan
to the weapon and the kites. Therefore, Dolan’s request for records related to, for
example, instances of dishonesty or fabrication of evidence would potentially be
relevant and therefore material to the charges.
As to the second good cause requirement, the trial court abused its
discretion in concluding, implicit in its limited statement related to an alleged
conspiracy, that Dolan’s Pitchess motion failed to establish: “a specific factual
scenario of officer misconduct that is plausible when read in light of the pertinent
documents.” (Warrick, supra, 35 Cal.4th at p. 1025.) The trial court, analogizing
the facts in this case to those set forth in People v. Thompson (2006) 141
Cal.App.4th 1312 stated, “[I]n this case, there were five officers, and defendant is
alleging that, apparently, all of these officers conspired, though they responded
from different locations, to set him up, or to frame him, and the Court does not
9
Sergeant Howard was the only other correctional officer who mentioned
the contraband in his report, but he did not describe when and where Avila
discovered it.
10
find that that is plausible, given all of the other information reports[10] that have
been presented.”
However, Dolan did not expressly allege that the officers conspired, but
only that the officers’ accounts lack credibility because: (1) only one other officer
(Howard) mentioned the contraband in a report; (2) Avila did not follow protocol
by showing Dolan the contraband he supposedly found;11 and (3) the weapon was
too large to fit inside the glove in question. The trial court must not “weigh or
assess the evidence” when evaluating a Pitchess motion and “does not determine
whether a defendant’s version of events, with or without corroborating collateral
evidence, is persuasive.” (Warrick, supra, 35 Cal.4th at p. 1026.) By parsing
Dolan’s claims as alleging a conspiracy among the five correctional officers,
rather than focusing on the individual involvement of each officer and whether
Dolan presented a plausible factual scenario in which, for example, Avila planted
the contraband and/or falsified his report, the trial court abused its discretion as
“its ruling ‘falls outside the bounds of reason.’ ” (People v. Memro (1995) 11
Cal.4th 786, 850.)
We find that Dolan’s Pitchess motion presented “a ‘specific factual
scenario’ establishing a ‘plausible factual foundation’ for this allegation.” (City of
San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, 1147.) Specifically,
Dolan claims that he cooperated with the officers and that, as he took the glove
from his sock as directed, Avila and Garcia threw Dolan to the ground and
handcuffed him. He further asserts that the officers took the glove from his grasp,
10
It is not entirely clear what the trial court was referencing here. The only
reports that appear in the record are the correctional officers’ reports submitted
with Dolan’s motion.
11
Had Avila done so, the other officers at the scene might have noted
personally seeing the contraband as well.
11
inspected it in his presence, but found nothing within it. According to Dolan, if
the officers had found any contraband in his glove, prison regulations required that
they show him that contraband, but Avila and Garcia did not do so. Dolan also
claimed that the weapon, as described, would have been too large to fit in a glove.
According to Gaines, supra, 46 Cal.4th at p. 179, “[a] showing of good
cause is measured by ‘relatively relaxed standards’ that serve to ‘insure the
production’ for trial court review of all potentially relevant documents.’ ” Further,
“the defendant need not point to any corroboration for the defendant’s account,
and is also not required to ‘present a credible or believable factual account of, or a
motive for, police misconduct.’ [Citation.] Rather, all that is required is the
presentation of a scenario ‘that might or could have occurred. Such a scenario is
plausible because it presents an assertion of specific police misconduct that is both
internally consistent and supports the defense proposed to the charges.’ [Citation.]
‘[D]epending on the circumstances of the case,’ a sufficient factual allegation in
a Pitchess motion ‘may consist of a denial of the facts asserted in the police
report.’ ” (Uybungco v. Superior Court (2008) 163 Cal.App.4th 1043, 1049.)
Considering the relatively relaxed standards which should be applied by the trial
court to assess whether such a factual scenario was plausible, Dolan clearly made
such a showing here.
We now address the appropriate remedy for this error.
It is well settled that where the trial court “has erroneously rejected a
showing of good cause for Pitchess discovery and has not reviewed the requested
records in camera[, the proper remedy] is not outright reversal, but a conditional
reversal with directions to review the requested documents in chambers on
remand.” (Gaines, supra, 46 Cal.4th at p. 180.) Following remand, “[a]fter
reviewing the confidential materials in chambers, the trial court may determine
that the requested personnel records contain no relevant information” and
12
“reinstate the judgment.” (Id. at p. 181.) “It is also possible for the trial court to
determine on remand that relevant information exists and should be disclosed. …
[I]n that event, that the trial court ‘must order disclosure, allow [defendant] an
opportunity to demonstrate prejudice, and order a new trial if there is a reasonable
probability the outcome would have been different had the information been
disclosed.’ ” (Ibid.)
Each of the officers’ reports described their observations and actions
relating to the encounter with Dolan. Based on the claimed discrepancies and
omissions in those reports, the trial court should have reviewed all five officers’
personnel records for “instances of errors or falsifications in reports.” As required
by Evidence Code section 1043, subdivision (b)(3), Dolan has shown that the
records sought are “material[] to the subject matter involved in the pending
litigation.” Furthermore, as to Avila and Howard, each of whom reported that
Dolan was in possession of an inmate-manufactured weapon and kites, the trial
court must also review those officers’ personnel records for “instances of
fabrication of evidence or evidence tampering.”
B. Fines and fees
Dolan argues that he is entitled to a remand so that the trial court can
conduct an ability to pay hearing on the ancillary fees,12 specifically the $40 court
12
Dolan initially claimed that the trial court should have inquired into his
ability to pay the $300 restitution fund fine (§ 1202.4) as well as the ancillary fees
and that this error resulted in an unauthorized sentence. Following the California
Supreme Court’s decision in People v. Kopp (2025) 19 Cal.5th 1 (Kopp), Dolan
filed a supplemental opening brief withdrawing his argument regarding the $300
restitution fund fine and limiting his claims to the ancillary fees. It appears that
Dolan has also withdrawn his argument that the imposition of fines and fees
amounted to an unauthorized sentence, focusing instead on the question of
forfeiture and his claim that trial counsel was ineffective for failing to request an
ability to pay hearing.
13
operations assessment (§ 1465.8) and the $30 conviction assessment (formerly
court facility assessment) (Gov. Code, § 70373), imposed at sentencing. In the
alternative, Dolan argues that if the court finds this claim is forfeited, his trial
counsel was constitutionally ineffective for failing to request an ability to pay
hearing at sentencing. In his supplemental briefing, Dolan contends that the court
should, as part of its conditional reversal, direct the trial court to also consider his
ability to pay the assessments.
The Attorney General argues that Dolan has forfeited his objections to the
fines and fees imposed at sentencing by failing to request a hearing on his ability
to pay. Alternatively, the Attorney General contends that Dolan has failed to
demonstrate either that his trial counsel was ineffective for failing to request such
a hearing or that Dolan cannot show he was prejudiced by that failure. In his
supplemental briefing, the Attorney General argues that a conditional reversal
based on the erroneous denial of Dolan’s Pitchess motion would not entitle Dolan
to also request an ability to pay hearing.
As explained below, we agree with the Attorney General and conclude that
Dolan has forfeited his challenge to the assessments imposed at sentencing and has
also failed to show that his trial counsel was ineffective for failing to request an
ability to pay hearing. Consequently, following the conditional reversal, the trial
court may only conduct its in camera review of the personnel records as detailed
herein. We recognize however, there is a possibility Dolan demonstrates he is
entitled to a new trial based on the outcome of those proceedings below. In that
event, and assuming he is again convicted following that new trial, Dolan may
address any applicable fines and fees that may be imposed at sentencing.
1. Forfeiture
“In general, a defendant who fails to object to the imposition of fines, fees,
and assessments at sentencing forfeits the right to challenge those fines, fees, and
14
assessments on appeal.” (People v. Greeley (2021) 70 Cal.App.5th 609, 624,
citing People v. Aguilar (2015) 60 Cal.4th 862 and People v. Trujillo (2015) 60
Cal.4th 850 (Trujillo).) This general rule applies when the relevant statute
includes an ability to pay component, including when the defendant makes a
constitutional argument. (See e.g., Trujillo, at pp. 856–858; People v. Avila
(2009) 46 Cal.4th 680, 729.) “Given that the defendant is in the best position to
know whether he has the ability to pay, it is incumbent on him to object to the fine
and demonstrate why it should not be imposed.” (People v. Frandsen (2019) 33
Cal.App.5th 1126, 1154.) Ability to pay is a factual determination that is properly
raised and determined first in the trial court. (People v. McCullough (2013) 56
Cal.4th 589, 597.)
Nothing in the Supreme Court’s recent decision in Kopp changed its prior
decisions regarding forfeiture. In Kopp, unlike here, the defendant asserted his
inability to pay various fines at the time of sentencing, but the trial court declined
to consider the issue. (Kopp, supra, 19 Cal.5th at pp. 10–11.) The Supreme Court
reversed and remanded for the lower court to consider the defendant’s ability to
pay the section 1202.4 restitution fine, a fee imposed pursuant to Health and
Safety Code section 11372.7, subdivision (a), the court operations assessment
under section 1465.8, and the court facilities (now conviction) assessment under
Government Code section 7073. (Kopp, at pp. 23, 30, 31.) While due process
does not require the trial court to hold a hearing prior to imposing fines and fees,
the Supreme Court determined a defendant may challenge fines and fees based on
the excessive fines clause of the Eighth Amendment. (Id. at pp. 22–23.) Although
the defendant in Kopp had not specifically argued in the trial court that he was
unable to pay due to the excessiveness of the fines, the Supreme Court noted he
would be permitted to pursue that claim below. (Id. at p. 23.) Here, Dolan did not
raise ability to pay on any basis in the trial court, and, as such, has forfeited this
15
argument altogether. Having concluded that Dolan’s claim of error is forfeited,
we turn to his alternate claim of ineffective assistance of counsel.
2. Ineffective assistance of counsel
Dolan asserts that, to the extent this claim of error is deemed forfeited, he
received ineffective assistance of counsel because there was no explanation for his
trial counsel’s failure to request an ability to pay hearing given the number of
published cases pre-dating Kopp which counseled doing so.
The standard for evaluating claims that counsel provided constitutionally
ineffective assistance is set forth in Strickland v. Washington (1984) 466 U.S. 668,
687–694 (Strickland). This standard provides that: “[t]o secure reversal … upon
the ground of ineffective assistance of counsel under either the state or federal
Constitution, [an appellant] must establish (1) that … counsel’s performance fell
below an objective standard of reasonableness, i.e., that counsel’s performance did
not meet the standard to be expected of a reasonably competent attorney, and (2)
that there is a reasonable probability that [appellant] would have obtained a more
favorable result absent counsel’s shortcomings.” (People v. Cunningham (2001)
25 Cal.4th 926, 1003, citing Strickland, supra, at pp. 687–694.) “A reviewing
court can begin an ineffective assistance of counsel inquiry with either element
and need not address both elements if one is not satisfied.” (In re Tellez (2024) 17
Cal.5th 77, 88.)
“On direct appeal, a conviction will be reversed for ineffective assistance
only if (1) the record affirmatively discloses counsel had no rational tactical
purpose for the challenged act or omission, (2) counsel was asked for a reason and
failed to provide one, or (3) there simply could be no satisfactory explanation. All
other claims of ineffective assistance are more appropriately resolved in a habeas
corpus proceeding.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)
16
Here, the record does not disclose why defense counsel did not request a
hearing on Dolan’s ability to pay, and we cannot say there could be no satisfactory
explanation for defense counsel’s failure to do so. Dolan was 38 years old at the
time of his sentencing13 and counsel could have reasonably considered Dolan’s
ability to earn wages in prison as a reason for not objecting or requesting an
ability-to-pay hearing. (See People v. Aviles (2019) 39 Cal.App.5th 1055, 1062,
1076–1077 [concluding that a defendant sentenced to a prison term of 82 years to
life had the ability to pay $160 in court operations assessments, and $120 in court
facilities assessments from either prison wages or monetary gifts from family and
friends during his lengthy prison sentence]; see also People v. Jones (2019) 36
Cal.App.5th 1028, 1035; but see Kopp, supra, 19 Cal.5th at p. 35 (conc. opn. of
Liu, J.) [“Courts should not indulge speculative or unrealistic notions of future
[prison] wage-earning opportunities when assessing a defendant’s ability to pay
fines or fees.”].) Given Dolan’s relatively young age and without any indication
that he is physically incapable of working, counsel could have reasonably
concluded that the trial court would find no barrier to Dolan paying the $70 in
fines and fees imposed.
III. DISPOSITION
The judgment is conditionally reversed. On remand, the trial court shall
review: (1) all five officers’ personnel records for instances of falsifications in
other reports; and (2) the personnel records of Avila and Howard for instances of
either fabrication of evidence or tampering with evidence. If the trial court’s
inspection of those records on remand reveals no relevant information, the trial
court must reinstate the judgment of conviction. If the inspection reveals relevant
13
At the time of the instant offenses, Dolan was already serving a 24-year
sentence imposed in 2014.
17
information, the trial court must order disclosure and allow Dolan an opportunity
to demonstrate prejudice. If such prejudice is shown, the trial court shall vacate
the judgment and order a new trial.
18
____________________________
WILSON, J.
WE CONCUR:
____________________________
LIE, Acting P. J.
_____________________________
BROMBERG, J.
The People v. Dolan
H053433