Filed 6/17/26 P. v. Ferncase CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D084914
Plaintiff and Respondent,
v. (Super. Ct. No. SCN447507)
PATRICK JAMES FERNCASE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego, Daniel
Link, Judge. Affirmed.
Jill M. Klein, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene A. Sevidal, Senior Assistant Attorney General, Eric
A. Swenson, Supervising Deputy Attorney General and Heather B.
Arambarri, Deputy Attorney General for Plaintiff and Respondent.
A jury convicted Patrick James Ferncase of the December 2021 first
degree murder of Aureo Duque Rayo (Pen. Code,1 § 187, subd. (a); count 1)
and the March 2022 first degree murder of Derek Baker (count 2). It found
true special circumstance allegations that Ferncase was convicted of more
than one first or second degree murder offense in the present proceeding
(§ 190.2, subd. (a)(3)).2 Ferncase admitted he had suffered a 2015 conviction
for violating sections 245, subdivision (a)(4) and 12022.7, subdivision (b) that
constituted both a prior serious felony conviction (§ 667, subd (a)) and a prior
strike (§§ 667, subds. (b)-(i), 1170.12). He also admitted factors in
aggravation under California Rules of Court, rules 4.421(a)(1) [offense
involved great violence or bodily harm], 4.421(a)(3) [the victim was
particularly vulnerable], 4.421(b)(2) [numerous prior convictions of increasing
seriousness], 4.421(b)(3) [prior state and local prison term] and 4.421(b)(5)
[prior unsatisfactory performance on probation]. The court sentenced
Ferncase to a 10-year determinate term plus two consecutive terms of life
without the possibility of parole. It imposed a $300 parole revocation
restitution fine under section 1202.45.
Ferncase contends the trial court prejudicially erred by failing to sever
his murder charges for trial, as the offenses took place on different dates, at
different places, and under different circumstances. He also contends that by
permitting the prosecution to admit into evidence under Evidence Code
sections 1101 and 1103 prior assaults he had committed, the court violated
his rights to due process and a fair trial. Ferncase asks this court to strike
his section 1202.45 parole revocation restitution fine, claiming the fine is
1 Undesignated statutory references are to the Penal Code.
2 The trial court dismissed the special allegation as to count 2.
2
inapplicable to his life-without-the-possibility-of-parole sentence. We affirm
the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
December 2021 Murder of Aureo Duque Rayo
On the morning of December 22, 2021, Ferncase approached Rayo, who
was working his maintenance job at a shopping center in Carlsbad. Ferncase
knocked Rayo to the ground, then kicked and punched him in the head and
upper torso. Surveillance video showed Ferncase stomped on Rayo 32 times
over the course of a minute; witnesses described him as kicking “viciously.”
The video did not show any prior interactions between Ferncase and Rayo or
that they had exchanged any words before Ferncase knocked Rayo to the
ground. A witness saw Ferncase “stomping” on Rayo’s lifeless body,
screamed at him to stop, and called 911. She followed Ferncase in her vehicle
until police arrived and arrested him.
Police interviewed Ferncase after his arrest. Ferncase told a detective
that Rayo, who he estimated to be 50 to 60 years old, “was talking shit,” and
calling him a “white boy” so he “hit [Rayo] in the mouth, stomped him out,
[and] killed him.” Ferncase told the officer, “He’s not going to live. Put
twenty dollars on that. He ain’t going to make it.” Ferncase referred to Rayo
as “Mexican” but explained he hit Rayo because he was “talking shit.”
Rayo suffered fractures to his skull and eyes, as well as brain injury.
He never regained consciousness, and died four months later from the blunt
force injuries to his head.
March 2022 Murder of Derek Baker
On March 12, 2022, Ferncase was in the San Diego Central Jail
sharing a cell with Derek Baker, a 56-year-old man with diabetes. Two
inmates were housed in an adjacent cell. That day, the neighboring inmates
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heard the distinct sound of the intercom button in the next door cell being
pressed, followed by banging, grunting and the sounds of flesh impacting
other flesh like a punch or physical fight. The inmates heard the intercom
again and then heard a person say, “Man down.” One of the inmates
identified the voice as Ferncase’s. Neither inmate heard Ferncase and Baker
argue or exchange words before hearing the sounds of assault.
Eventually, deputies responded to the scene. They found Baker
unconscious, lying on the floor in a pool of blood. Baker was bleeding from
his head and his face was so swollen he was unrecognizable.
While being escorted out of the cell, Ferncase related that he “stomped
[Baker] out, out of anger” saying “I was white and . . . he was Hispanic and I
had to do what I had to do, or you know how it goes.” During a later
interview with detectives,3 Ferncase claimed Baker started the altercation by
calling him names such as “bitch,” which were “fighting words.” Ferncase
admitted to throwing the first punch, however, knocking Baker out on the
second hit. According to Ferncase, Baker woke up and the men ended up on
the floor where Baker tried to bite Ferncase’s genitals, but Ferncase choked
him unconscious then “stomped him out.” Ferncase estimated he stomped
Baker’s head about 25 times, and believed he either killed or paralyzed him.
Ferncase agreed he acted in the way he did essentially because Baker was
Mexican, and things in jail were race-oriented, so he had to “finish that out.”
Baker suffered facial fractures and severe traumatic brain injury. He
died later in March 2022 as a result of the blunt force injuries to his head.
His death was ruled a homicide. Ferncase’s only injuries were a very swollen
right hand/ knuckles and a scratch on his left forearm. An investigating
3 The People played Ferncase’s interview at trial and gave transcripts to
jurors.
4
detective did not find, and Ferncase did not complain about, injuries to his
genitals.
Defense Evidence
In his defense, Ferncase presented evidence that in December 2020
while at a correctional facility, a cellmate assaulted him, rendering him
unconscious and leaving him with facial fractures and bleeding from his
scalp. Ferncase also presented evidence about Baker, his prior arrests and
aggressive behavior, as well as his medical and mental health diagnoses. The
parties stipulated that Baker had pleaded guilty to sex crimes against women
committed in 1984 and 1986.
DISCUSSION
I. Severance of Murder Charges
Pointing out the charged crimes took place on different dates, at
different places, and under different circumstances with different witnesses,
Ferncase contends the trial court abused its discretion in denying his motion
to sever the two murder counts. He maintains the facts of each case were too
dissimilar to be cross-admissible, and the jury was unduly prejudiced by the
inflammatory nature of Rayo’s murder, which was a stronger case. Ferncase
argues the error rendered his trial fundamentally unfair in violation of his
right to due process of law.
A. Background
Before trial, Ferncase moved to sever the two murder charges, arguing
joining them would deny him due process and a fair trial. He argued that
while the incidents were the same class of offense, there was no cross-
admissibility between them in that they had no common witnesses and had
different locations and circumstances. He argued the evidence of the
incidents did not demonstrate a similar motive or intent and the incidents
5
did not involve a common scheme for purposes of Evidence Code section 1101,
subdivision (b). Ferncase also argued the incident involving Rayo was likely
to unusually inflame the jury against him, as Rayo was elderly, working as a
custodian, the assault was unprovoked, and photos showed Rayo’s brain
matter splattered in the parking lot. According to Ferncase, the incident
with Baker in the jail cell raised legitimate issues of self-defense or imperfect
self-defense, because “due to prison racial issues, [he] was forced to kill
[Baker]” or else be subject to retaliation by other Hispanic inmates. Ferncase
characterized both cases as weak, and argued the jury would use evidence
from the first incident to find him culpable in both cases. He pointed out both
charges and the special circumstance allegation made him eligible for the
death penalty, even though the prosecution elected not to pursue it.
The People argued the charges were properly joined because they were
offenses of the same class of crime, and connected together in their
commission because the offenses shared common characteristics, that is, they
had nearly identical modus operandi (punching and then stomping the
victims’ heads); they involved older, physically weaker victims who Ferncase
described as “Mexican”; the reason Ferncase attacked each victim was his
claim they called him names; Ferncase had similar intent: to “stomp [the
victim] out” and kill them; and both victims sustained similar injuries in the
incidents, with Ferncase merely injuring his hand. The People argued
Ferncase could not establish a substantial danger of prejudice, since “(1)
evidence of each incident is cross-admissible in proving the other to establish
motive, intent and a common plan per Evidence Code section 1101[,
subdivision] (b) . . . . Further, evidence of the crime charged in count one is
cross-admissible to establish [Ferncase’s] character for violence per Evidence
Code section 1103[, subdivision] (b) in proving the crime charged in count two
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assuming [Ferncase] introduces evidence of . . . Baker’s character for violence
. . . . (2) each charge is just as serious, violent, and graphic as the other.
Both involve motionless bodies being stomped to death at least twenty-five
times. The scene and injury photos from each incident are equally
disturbing, neither being more inflammatory than the other. . . . (3) the
strength of each case is strong and fairly equal based on the facts and
[Ferncase’s] admissions. The total evidence will not unfairly alter the
outcome on any charges. And . . . (4) while joinder of the charges converts the
matter into a potential capital case per . . . section 190.2[, subdivision] (a)(3),
this is of no consequence because trying one murder charge separately after
the other would still render the matter a potential capital case per . . . section
190.2[, subdivision] (a)(2).” The People pointed out they were not seeking
capital punishment in any event, so that was a factor against severance.
The trial court tentatively denied Ferncase’s motion, finding “a high
likelihood of cross-admissibility” as both charges were “extremely serious”
and the murders took place without weapons, with the victims “ultimately
stomped into a coma and then into death.” The court did not find one case
more inflammatory than the other given the seriousness and similarities of
the crimes and the way they were committed. Based on Ferncase’s
statements and physical autopsy evidence, the court could not say one case
was necessarily weaker or stronger than the other. After considering the
parties’ arguments, the court confirmed its tentative, ruling the charges, both
of which were “serious, violent, and graphic,” were properly joined and there
was cross-admissibility under Evidence Code section 1101, subdivision (b).
The court ruled one case would not unfairly alter the other or prejudice
Ferncase, given “the initial punching, knocking out, the stomping,” the fact
the murders happened three months apart in the county of San Diego, and
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the fact each case was fairly strong based on the facts and Ferncase’s
admissions.
B. Legal Principles
“ ‘The law favors the joinder of counts because such a course of action
promotes efficiency.’ ” (People v. Scott (2015) 61 Cal.4th 363, 395.) Section
954, which governs the joinder of criminal counts, “allows for the joint trial of
‘two or more different offenses connected together in their commission, . . . or
two or more different offenses of the same class of crimes or offenses.’ ”
(People v. Hin (2025) 17 Cal.5th 401, 438; People v. Lamb (2024) 16 Cal.5th
400, 416.) “Where joinder is proper under section 954, ‘[t]he burden is on the
party seeking severance to clearly establish that there is a substantial danger
of prejudice requiring that the charges be separately tried.’ [Citation.] In
determining whether a court abused its discretion in declining to sever
properly joined charges, we first ‘consider the cross-admissibility of the
evidence in hypothetical separate trials.’ [Citation.] If the evidence is cross-
admissible, then this ‘is normally sufficient to dispel any suggestion of
prejudice and to justify a trial court’s refusal to sever properly joined
charges.’ [Citation.] If not, then we also consider ‘(1) whether some of the
charges are particularly likely to inflame the jury against the defendant; (2)
whether a weak case has been joined with a strong case or another weak case
so that the totality of the evidence may alter the outcome as to some or all of
the charges; or (3) whether one of the charges (but not another) is a capital
offense, or the joinder of the charges converts the matter into a capital case.’
[Citation.] ‘Even if a defendant fails to demonstrate the trial court’s joinder
ruling was an abuse of discretion when it was made, reversal may
nonetheless be required if the defendant can demonstrate that “the joint trial
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resulted in such gross unfairness as to amount to a due process violation.” ’ ”
(Hin, at pp. 438-439, see also id. at p. 440.)
We review for abuse of discretion the court’s order denying severance.
(People v. Westerfield (2019) 6 Cal.5th 632, 689; see also People v. Hin, supra,
17 Cal.5th at p. 439; [applying abuse of discretion standard to court’s “joinder
ruling”]); People v. Scott, supra, 61 Cal.4th at pp. 395-396 [explaining when
an abuse of discretion may occur in declining to sever charges].) Under that
standard, Ferncase must demonstrate the denial of his motion to sever the
murder charges exceeded the bounds of reason. (Westerfield, at p. 689.)
“Where . . . the statutory requirements for joinder are met, a defendant must
make a ‘clear showing of prejudice’ to establish that the trial court abused its
discretion in denying the motion. [Citation.] A defendant seeking severance
of properly joined charged offenses must make a stronger showing of
potential prejudice than would be necessary to exclude evidence of other
crimes in a severed trial.” (People v. Simon (2016) 1 Cal.5th 98, 122-123, fn.
omitted; Westerfield, at p. 689.) We evaluate Ferncase’s claims of prejudice
“ ‘in light of the showings made and the facts known by the trial court at the
time of the court’s ruling.’ ” (Westerfield, at p. 689.)
C. Analysis
We first hold the People properly joined the murder charges because
they were both offenses of the same class: murder. (§ 954; People v. Hin,
supra, 17 Cal.5th at p. 438; People v. Soper (2009) 45 Cal.4th 759, 771
[holding “identical” charges of murder are “ ‘of the same class’ ”].) Because
section 954 uses the disjunctive “or,” that circumstance alone permits joinder.
(Soper, at p. 771 [“accusatory pleading may charge two or more different
offenses so long as at least one of two conditions is met: The offenses are (1)
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‘connected together in their commission,’ or (2) ‘of the same class’ ”], italics
added.)
We further conclude Ferncase has not met his burden to “ ‘clearly
establish that there is a substantial danger of prejudice requiring that the
charges be separately tried.’ ” (People v. Hin, supra, 17 Cal.5th at p. 438.)
We start with cross-admissibility of evidence on the joined charges. (People v.
Vargas (2020) 9 Cal.5th 793, 817.) We emphasize that as to cross-
admissibility, “it is sufficient that evidence supporting [one crime or set of]
crimes would be admissible in a separate . . . trial [on another crime or set of
crimes]. . . . ‘ “[T]wo-way” cross-admissibility is not required.’ ” (People v.
Merriman (2014) 60 Cal.4th 1, 38.) “[T]here exists a continuum concerning
the degree of similarity required for cross-admissibility, depending upon the
purpose for which introduction of the evidence is sought: ‘The least degree of
similarity . . . is required in order to prove intent. [Citation.] . . . In order to
be admissible [for that purpose], the uncharged misconduct must be
sufficiently similar to support the inference that the defendant “ ‘probably
harbor[ed] the same intent in each instance.’ [Citations.]” [Citation.]’
[Citation.] By contrast, a higher degree of similarity is required to prove
common design or plan . . . .” (People v. Soper, supra, 45 Cal.4th at p. 776;
see People v. Guerrero (1976) 16 Cal.3d 719, 726 [“the standard framework for
admission of evidence of other crimes is if there is no doubt that defendant
has committed an act, but some question as to his intent in doing so”].)
Though Ferncase acknowledges the least degree of similarity is
generally required when admitting evidence of other crimes on the issue of
intent, he maintains the evidence of his offenses against Rayo and Baker is
not cross-admissible because the offense against Rayo was unprovoked,
whereas there was evidence Baker had provoked him. He argues the crimes
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are therefore not sufficiently similar to support an inference he harbored the
same intent. We reject the argument. In both instances, Ferncase admitted
to hitting and “stomp[ing] . . . out” the individuals’ in the head area once
down because he perceived they were “talking shit,” calling him a “white boy”
or calling him names like “bitch.” The offenses both had a race component, as
Ferncase characterized both men as “Mexican.” Ferncase agreed to the
officers’ statement that he had to “finish” Baker because of his race, and
referred to the impact of racial differences in prison. The initiation, manner,
and reasons for Ferncase’s actions in both assaults are virtually identical. As
stated, cross-admissibility of joined charges is normally sufficient by itself to
dispel any suggestion of prejudice and to justify a court’s refusal to sever
properly joined charges. (People v. Hin, at p. 439; People v. Scott (2011) 52
Cal.4th 452, 470.)
Even if the crimes against Rayo and Baker were not sufficiently similar
as to be cross-admissible, the remaining considerations do not demonstrate
the court abused its discretion in denying severance. The absence of cross-
admissibility is not dispositive. (§ 954.1 [“evidence concerning one offense or
offenses need not be admissible as to the other offense or offenses before the
jointly charged offenses may be tried together before the same trier of fact”];
see Alcala v. Superior Court (2006) 43 Cal.4th 1205, 1221-1222 [“[E]ven the
complete absence of cross-admissibility does not, by itself, demonstrate
prejudice from a failure to order a requested severance”].)
We cannot say one case is more inflammatory than the other; both
involved horrific attacks and severe injuries to the victims’ heads and faces,
eventually resulting in their deaths. Given Ferncase’s admissions to police,
both cases are equally strong; we disagree Baker’s murder case was weaker
than Rayo’s as the neighboring cellmates heard no words or argument before
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Ferncase assaulted Baker. There is no evidence, other than Ferncase’s own
self-serving statements, that Baker initiated or provoked the incident. In any
event, Ferncase admitted to initiating the physical altercation; Baker was
only “egging [him] on . . . indirectly” by “calling him names,” and then
Ferncase said to Baker, “Let’s box.” Once Baker had fallen to the ground and
was rendered unconscious, Ferncase continued the assault, admitting that he
stomped Baker about 25 times, knowing during the last 10 stomps he was
going to kill him.
Nor can we say Ferncase has shown that “ ‘events after the court’s
ruling demonstrate that joinder actually resulted in “gross unfairness”
amounting to a denial of [his] constitutional right to fair trial or due process
of law.’ ” (People v. Hin, supra, 17 Cal.5th at p. 440.) Whether joinder
worked a gross unfairness turns upon assessing whether it was reasonably
probable that the jury was influenced by the joinder in its verdict of guilt.
(People v. Vargas, supra, 9 Cal.5th at p. 819.) This is a “ ‘high burden.’ ”
(People v. Soper, supra, 45 Cal.5th at p. 783.) In Hin, the defendant conceded
that the denial of severance of his murder and attempted murder convictions
was not prejudicial in light of his admissions during an interrogation. (Hin,
at p. 440.) In our view, Ferncase’s confessions to officers immediately after
the incidents eliminate the possibility that the jury could be influenced by the
joinder of the two charges. And, together with Ferncase’s admissions, there
is “strong evidence warranting conviction . . . .” (People v. Simon, supra, 1
Cal.5th at p. 130.)
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II. Introduction of Prior Misconduct
A. Background
Before trial, the court considered motions by both Ferncase and the
People pertaining to prior acts involving Ferncase on the issue of motive,
intent (Evid. Code, § 1101, subd. (b)) or character for violence (Evid. Code,
§ 1103, subd. (a)).4 In part, the People recounted Baker’s lengthy history of
violent behavior and argued that in anticipation of Ferncase presenting such
evidence pertaining to Baker, Ferncase’s character for violence should be
admitted under Evidence Code section 1103. They also argued Ferncase’s
prior acts were relevant to the questions of intent and motive as to the
charged murders: “his act of throwing the first punch, knocking his victim to
the ground, and throwing the first kick while his victim was on the ground,
as [Ferncase] did in his 2014 case” showed he “derives pleasure from, and
intends to, inflict pain and injure others as opposed to reserving such acts for
self-defense.”
4 “Evidence Code section 1101, subdivision (a), generally prohibits
‘evidence of a person’s character or a trait of his or her character’ when it is
‘offered to prove his or her conduct on a specified occasion.’ Subdivision (b) of
section 1101, however, provides: ‘Nothing in this section prohibits the
admission of evidence that a person committed a crime, civil wrong, or other
act when relevant to prove some fact (such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident . . . )
other than his or her disposition to commit such an act.’ ” (People v. Kelly
(2007) 42 Cal.4th 763, 782-783.) Evidence Code section 1103, subdivision (a)
provides an exception to Evidence Code section 1101, subdivision (a) when a
defendant offers evidence of the victim’s character or trait “ ‘to prove conduct
of the victim in conformity with the character or trait of character.’ ” (People
v. Gutierrez (2009) 45 Cal.4th 789, 827.) The exception has been referred to
as the “violent victim rule.” (People v. DelRio (2020) 54 Cal.App.5th 47, citing
Evid. Code, § 1103, subd. (a)(1).)
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Eventually the court permitted the People to introduce evidence of four
prior incidents under section 1101, subdivision (b):
• Ferncase’s 2021 attempted robbery at a supermarket where
Ferncase, who was taking items from the store, punched an approaching
store manager in the face, then yelled, “Let’s box it out,” before running
away.
• Ferncase’s 2017 assault of his cellmate at Corcoran State Prison,
in which correctional officers found the cellmate with blood on his face and
Ferncase admitted that he had “got my anxiety levels up, so I beat him up.”
• A 2019 assault at Mule Creek State Prison, in which Ferncase
was acting erratically, then suddenly began punching an older inmate in the
face and upper torso.
• Ferncase’s 2022 incident with another inmate at the Vista
Detention Facility, where a corrections officer found both inmates with their
shirts off in a fighting stance.
The court further allowed the People under Evidence Code section
1103, subdivision (b) to introduce those four incidents on Ferncase’s character
for violence in addition to two other incidents:
• A 2011 assault described by a witness as occurring after a yelling
and screaming match among three individuals at a park, during which
Ferncase, who was one of the individuals, “just whaled off and punched [a
girl] straight in the face, like closed fist,” causing her to fall back on the
ground.
• A 2014 assault that Ferncase committed by means of force likely
to produce great bodily injury and personally inflicted great bodily injury
causing the victim to become comatose.
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B. Contentions
Ferncase contends the court prejudicially erred by admitting the above-
mentioned prior acts into evidence; that evidence of the 2017, 2019, 2021 and
2022 incidents should have been excluded in whole or part under Evidence
Code section 1101, subdivision (b) because they were too dissimilar to the
charged offenses, and lacked sufficient probative value to justify their
admission. He further contends the court erred by allowing into evidence all
six past incidents under Evidence Code section 1103, subdivision (b), because
the prior acts “did not necessarily speak to a character trait for violence.”5
Ferncase maintains the court should have excluded in whole or part the
evidence under Evidence Code section 3526 on grounds the evidence’s
“minimally probative value” was outweighed by its prejudicial impact.
C. Admission of the Prior Acts, Even if Error, Was Harmless
We need not decide whether the trial court erred by permitting the
People to introduce evidence of Ferncase’s past assaults and other
misconduct, because even if we were to assume error, it is harmless under the
appropriate prejudice standard. Error, if any, in admitting evidence of
Ferncase’s prior acts under Evidence Code sections 1101 and 1103 is subject
to the standard of prejudice set forth in People v. Watson (1956) 46 Cal.2d 818
5 Though the court initially ruled the 2022 Vista prison assault was
inadmissible on the issue of Ferncase’s character for violence, it ultimately
allowed the jury to consider it on that issue as well as under Evidence Code
section 1101, subdivision (b).
6 Evidence Code section 352 gives the trial court discretion to exclude
evidence if its probative value is substantially outweighed by the probability
its admission will necessitate undue consumption of time or create
substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.
15
(Watson). (See People v. Johnson (2022) 12 Cal.5th 544, 611 [admission of
prior crimes under Evidence Code section 1101]; People v. Gutierrez, supra,
45 Cal.4th at p. 827 [exclusion of Evidence Code section 1103 evidence];
People v. Marks (2003) 31 Cal.4th 197, 227 [“application of ordinary rules of
evidence . . . does not implicate the federal Constitution”]; People v. Megown
(2018) 28 Cal.App.5th 157, 167 [prior acts of domestic violence admitted
under Evidence Code section 1101].) Under the Watson test, we examine
whether Ferncase has shown it is “ ‘reasonably probable that a result more
favorable to [him] would have been reached in the absence of the error.’ ”
(Johnson, at p. 611; see Megown, at p. 167; Watson, at p. 836.)
Here, Ferncase admitted to repeatedly stomping on the victims’ heads,
acknowledging that he had killed Rayo, and had either killed or paralyzed
Baker. He admits Rayo’s killing was essentially unprovoked, a reaction only
to Rayo assertedly calling Ferncase a “white boy.” Given Ferncase’s
admissions, there is little uncertainty about what happened at the respective
scenes. (Compare, People v. DelRio, supra, 54 Cal.App.5th at p. 54 [finding
prejudice in a case where the “factual context [was] one of uncertainty”
including about what happened at the scene of a gunfight and whether the
defendant or victim first raised a gun, making the violent victim evidence
highly probative].) As for the crimes against Baker, even assuming the jury
found credible Ferncase’s assertion that Baker “started” the fight, his own
admissions show Baker was not “violently aggressive [so as to] force[ ]
[Ferncase] to resort to deadly self-defense.” (Ibid.) That is, Baker used only
words, calling Ferncase names, and Ferncase admitted to initiating the
physical altercation by throwing the first punch. Indeed, the responding
detective on the scene confirmed that Ferncase told him he (Ferncase) “threw
the only punches.” Further, Baker was unconscious by the time Ferncase
16
began stomping his head and did not pose any threat so as to support any
claim Ferncase acted in self-defense, reasonable or otherwise. There were no
independent witnesses to support a conclusion that Ferncase acted in self-
defense. Nor did the physical evidence independently establish as much.
(Compare, DelRio, at p. 57 [exclusion of evidence of victim’s violent character
in a murder case was not harmless where the case was “close,” an eyewitness
“testified to classic self-defense,” the defendant’s version of events was
compatible with all physical evidence, and no evidence suggested the
defendant had a motive to shoot the victim, his cousin].) Indeed, the witness
and physical evidence contradicted Ferncase’s version, as neither neighboring
cellmate heard words exchanged between Baker and Ferncase, and Ferncase
sustained few injuries. Regardless of evidence that Baker was “ill-tempered”
or had a history of violence against other inmates, the trial evidence of
Baker’s murder overwhelmingly suggests Baker was not the initial aggressor,
but the victim.
Ferncase maintains the prior bad act evidence (Evid. Code, § 1101,
subd. (b)) was “precisely the type of evidence likely to evoke an emotional bias
against appellant and inflame the passions of the jury.” But the prior crimes
evidence (as well as the two additional incidents admitted under Evidence
Code section 1103) did not come close to being as inflammatory and horrific
as the facts and circumstances of Rayo’s and Baker’s murders. And contrary
to Ferncase’s argument that the evidence was unduly time consuming, it did
not take up a significant part of the People’s case. (Accord, People v. Johnson,
supra, 12 Cal.5th at p. 611 [court assumed without deciding error occurred
and found no prejudice in part because prior crimes evidence was not a
significant part of the prosecution’s case].) The trial was lengthy; the record
reflects approximately 10 days of trial witness testimony and stipulations.
17
Though the prosecutor at trial played video of two of the prior act incidents,
one (the Vista Detention Facility assault) was three minutes and 57 seconds
long; the other (supermarket incident) was 11 seconds. The prosecutor’s
summary of the incidents in opening statements took about one of eight
pages in the transcript, and approximately five and a half pages of a 52-page
closing argument. And the court instructed the jury with CALCRIM No. 375
to “not consider the evidence for any other purpose except for the limited
purpose of determining the defendant’s character trait for violence . . . .”
(Accord, Johnson, at p. 612.) It instructed the jury as to the acts admitted
under Evidence Code section 1103 that it may “consider that evidence for the
limited purpose of deciding whether the defendant is a violent person and
acted in conformity with that character trait.” “ ‘We must assume, contrary
to defendant’s theory of prejudice, that the jury obeyed the express language
of the instruction not to use the other-crimes evidence to establish
defendant’s character or his disposition to commit crimes.’ ” (Ibid.) The
foregoing reasons compel us to hold that any assumed error in admitting the
evidence under Evidence Code section 352 was likewise harmless.
Based on the foregoing, we hold there is no reasonable probability
Ferncase would have achieved a more favorable outcome at trial if the
Evidence Code section 1101 and 1103 evidence had been excluded. (Watson,
supra, 46 Cal.2d at p. 837.)
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III. Parole Revocation Restitution Fine
The trial court imposed on Ferncase a $300 parole revocation fine
under section 1202.45.7 Citing People v. Montes (2021) 70 Cal.App.5th 35,
Ferncase contends the parole revocation fine should be stricken because he
was sentenced to life without the possibility of parole for both murders. The
People respond that Ferncase received a determinate sentence in addition to
life without the possibility of parole, triggering imposition of the parole
revocation fine. In reply, Ferncase says his two consecutive life-without-the-
possibility-of-parole sentences “compel a finding that ‘there can be no parole’
in this matter.”
The People are correct that the fine is mandated because Ferncase’s
sentence also includes a determinate term. The California Supreme Court
has repeatedly held that such a term “includes a parole period ‘by law and
carrie[s] with it, also by law, a suspended parole revocation restitution fine.’ ”
(People v. Alvarez (2025) 18 Cal.5th 387, 484, quoting People v. Brasure
(2008) 42 Cal.4th 1037, 1075; see also People v. Baker (2021) 10 Cal.5th 1044,
1108-1109.) The matter is unlike that of the defendant in People v. Montes,
supra, 70 Cal.App.5th 35, who was sentenced to life without the possibility of
parole. (Montes, at p. 38.) In Brasure, the “defendant . . . , in addition to his
death sentence, was sentenced to a determinate prison term . . . .” (Brasure,
at p. 1075.) On a challenge to imposition of the parole revocation fine in that
case, the California Supreme Court explained: “[Former] Section 3000,
7 Section 1202.45 provides: “In every case where a person is convicted of
a crime and his or her sentence includes a period of parole, the court shall, at
the time of imposing the restitution fine pursuant to subdivision (b) of
Section 1202.4, assess an additional parole revocation restitution fine in the
same amount as that imposed pursuant to subdivision (b) of Section 1202.4.”
(§ 1202.45, subd. (a), emphasis added.)
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subdivision (a)(1) provides that [a determinate term imposed under section
1170] ‘shall include a period of parole.’ Section 1202.45, in turn, requires
assessment of a parole revocation restitution fine ‘[i]n every case where a
person is convicted of a crime and whose sentence includes a period of parole.’
The fine was therefore required . . . . [¶] . . . [D]efendant here is unlikely
ever to serve any part of the parole period on his determinate sentence.
Nonetheless, such a period was included in his determinate sentence by law
and carried with it, also by law, a suspended parole revocation restitution
fine. Defendant is in no way prejudiced by assessment of the fine, which will
become payable only if he actually does begin serving a period of parole and
his parole is revoked.” (Ibid.; see also People v. Alvarez, at p. 484
[emphasizing distinction between indeterminate and determinate terms, and
quoting Brasure].) Because Ferncase was also sentenced to a determinate
prison term for the murders, the parole revocation fine was properly
assessed.
DISPOSITION
The judgment is affirmed.
O’ROURKE, Acting P. J.
WE CONCUR:
BUCHANAN, J.
KELETY, J.
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