Filed 12/24/19 P. v. Toralva CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ELARIO TORALVA,

Defendant and Appellant. D073690

(Super. Ct. Nos. SCD273556,

SCD261776)

APPEAL from a judgment of the Superior Court of San Diego County, Albert T. Harutunian III, Judge. Affirmed in part; remanded in part with directions.

Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.

I.

INTRODUCTION

At the conclusion of the first phase of a bifurcated trial in case No. SCD273556, a jury found Elario Toralva guilty of one count of robbery (Pen. Code, § 211) (count 1) and one count of assault with a deadly weapon (§ 245, subd. (a)(1)) (count 2). With respect to both counts, the jury found that Toralva personally used a dangerous weapon within the meaning of section 1192.7, subdivision (c)(23). In addition, with respect to count 1, the jury found that Toralva personally used a dangerous weapon, i.e., a knife, within the meaning of section 12022, subdivision (b)(1).

Toralva subsequently admitted that he had previously suffered a conviction that qualified as both a strike prior (§§ 667, subds. (b)–(i), 668, 1170.12) and a serious felony prior (§ 667, subd. (a)) and also admitted that he was on felony probation in case No. SCD261776 (§ 1203, subd. (k)) at the time of the commission of the offenses in case No. SCD273556.

During the second phase of the bifurcated trial, the jury found not true allegations that Toralva committed the offenses in case No. SCD273556 for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)).

In case No. SCD273556, the trial court sentenced Toralva to 10 years in state prison. On count one (§ 211), the court imposed the low term of two years, doubled to four years in light of the prior strike (§§ 667, subds (a)(1) & (b)–(i), 668, 1170.12) plus one year for the personal knife use enhancement (§ 12022, subd. (b)(1)) and five years for the serious felony enhancement (§ 667, subd. (a)). On count 2, the court stayed execution of the sentence pursuant to section 654. The court also imposed a $6,000 restitution fine (§ 1202.4, subd. (b)), a $39 theft fine (§ 1202.5), an $80 court operations assessment (§ 1465.8), and a $60 conviction assessment (Gov. Code, § 70373).

With respect to case No. SCD261776, the court denied probation and sentenced Toralva to a three-year prison sentence to be served concurrently with the sentence in case No. SCD273556. The court also imposed a $300 restitution fine (§ 1202.4, subd. (b)).

On appeal, Toralva contends that the trial court abused its discretion in permitting a gang expert to testify concerning reasons why the victim of a gang-related crime might recant prior statements inculpating a gang member in criminal activity. Toralva also contends that the trial court committed reversible error in referring to inherently deadly weapons in CALCRIM Nos. 875 and 3145 because a knife is not, as a matter of law, an inherently deadly weapon. With respect to this contention, at our request, the parties have submitted supplemental briefs addressing the impact of People v. Aledamat (2019) 8 Cal.5th 1 (Aledamat), in which the Supreme Court addressed a nearly identical claim of error. Toralva also claims that the trial court’s imposition of various fines and fees, without a determination of his ability to pay, violated his right to due process. Finally, Toralva requests that we remand the matter to permit the trial court to exercise its discretion to consider whether to strike the five-year serious felony enhancement (§ 667, subd. (a)) in light of a change in the law.

We remand the matter to the trial court to permit the court to exercise its discretion to consider whether to strike the five-year serious felony enhancement (§ 667, subd. (a)). In all other respects, we affirm the judgment.

II.

FACTUAL BACKGROUND

At approximately 9:00 a.m. on August 8, 2017, victim A.T. was in a public restroom in Golden Hill Park waiting for a nearby drug rehabilitation clinic to open. As A.T. was leaving the restroom, Toralva and another male blocked A.T.’s exit from the restroom. Toralva pulled out a small fixed-blade knife and said to A.T., “Give me all your stuff, or I’m going to stab you.” A.T. refused to comply. Toralva then swung the knife at A.T., but did not hit him. A.T. gave Toralva $20 and his black Samsung Galaxy 5 cell phone.

Before fleeing, Toralva said to A.T., “This is Lomas,” and the other male said, “This is Southeast” or words to that effect. Toralva left the scene on a skateboard and the other male left on a bicycle.

Within approximately a half an hour of the incident, A.T. flagged down a police officer, who summoned a second officer to take a report from A.T. A.T. described the incident to the officer, provided a description of the suspects, told the officer that he recognized Toralva from high school, and stated that he believed Toralva’s name was “Hilario.”

Two days later, another police officer found Toralva sitting by a tree in Golden Hill Park. Toralva had a small bag slung over his shoulder and a backpack was on the ground within his reach. A skateboard was nearby. The officer arrested Toralva and searched the backpack. Among the items in the backpack were a small knife and A.T.’s black Samsung cell phone.

On August 20, City of San Diego Police Detective Jesse Zaldivar met with A.T. and showed him a photographic lineup that included Toralva’s photograph. A.T. identified Toralva as the man who had robbed him at knifepoint. In his statement to the detective, A.T. reaffirmed nearly all of the details of his prior statement concerning the incident.

A.T. met with Detective Zaldivar again a few weeks later. A.T. identified the black Samsung phone that police had recovered from the backpack next to Toralva as belonging to him. However, A.T. told Detective Zaldivar that he did not believe that the knife police found in Toralva’s backpack was the one used in the robbery.

Less than a week prior to the December 2017 trial, A.T told an investigator with the District Attorney’s office and the prosecutor that he wanted to “[d]rop [the] charges” against Toralva. A.T. claimed that the incident giving rise to the charged offenses had never happened, and he denied knowing Toralva.

At trial, A.T. denied that the August 8, 2017 incident had occurred. A.T. also denied that he had told the police on August 8 that he had been robbed, and he denied knowing Toralva from high school. A.T. also claimed that he did not own a black cell phone and he did not recognize the number of the cell phone that police found in Toralva’s backpack.

In addition to testifying concerning his investigative efforts related to this case, Detective Zaldivar testified as a gang expert. According to Detective Zaldivar, “Lomas” is a street gang and the statements “This is Lomas” and “This is Southeast” were consistent with an intent and effort to instill fear in the victim. In addition, as discussed in part III.A.1, post, Detective Zaldivar testified concerning why witnesses and victims to gang-related crimes might recant statements implicating gang members in criminal activity.

III.

DISCUSSION

A. The trial court did not abuse its discretion in permitting an expert to testify concerning reasons why the victim of a gang-related crime might recant statements implicating gang members in criminal activity

Toralva contends that the trial court abused its discretion in permitting the People to present a gang expert to testify concerning reasons why a victim of a gang-related crime might recant statements implicating gang members in criminal activity. Toralva maintains that there was an insufficient factual basis to support the introduction of the expert testimony, the expert testimony supplanted the jury’s role to assess credibility, and the trial court should have excluded the expert testimony pursuant to Evidence Code section 352 as being more prejudicial than probative.

1. Factual and procedural background

Prior to the trial, the defense filed a motion to bifurcate trial of the gang enhancements (§ 186, subd. (b)(1)) alleged with respect to counts 1 and 2 from the trial of the underlying offenses. In its motion, the defense argued that “[n]one of the information concerning Mr. Toralva’s past has anything to do with whether he robbed [A.T.].”

Also prior to the trial, the People filed a brief that contained a short description of the alleged offenses. According to the brief, Toralva and an unidentified suspect confronted A.T. as he walked out of a park restroom. Toralva pulled out a knife and demanded A.T.’s belongings. When A.T. refused, Toralva swung the knife at him, but missed. A.T. then gave Toralva his cell phone and $20. Before fleeing, Toralva allegedly said, “This is Lomas!” In addition, the People filed a motion in limine seeking permission to “broadly admit evidence related to gangs and [Toralva’s] participation in and knowledge of gangs.” The People’s motion outlined eight categories of gang-related evidence that the People sought to present at the trial.

After a hearing on the motions, the trial court granted the defense’s motion to bifurcate. In addition, the court restricted the People from presenting gang-related evidence during the trial of the underlying offenses, with the following exception:

“[T]he Court is not excluding evidence that the defendant allegedly said, “This is Lomas,” or that the other person there said something about utilizing a gang name, because I believe that that is relevant and admissible relating to the state of mind of the alleged victim who is going to be testifying in the case.”

On the day after the motion hearing, the People filed a motion asking the trial court to reconsider its bifurcation ruling, or, in the alternative, to permit the People to introduce gang-related evidence for the purpose of proving Toralva’s identity as the perpetrator of the charged offenses and to explain the victim’s fear. In their motion, the People stated that the prosecutor, together with an investigator, had met with A.T. the prior day. According to the People, during the meeting, A.T. “said that he wanted to drop everything because [the alleged offense] never happened . . . .”

At a hearing on the motion, the prosecutor stated that A.T. had done a “complete 180,” and that A.T. “does not want to go forward with this case,” and has stated that “nothing happened.” In response to the court’s questioning, the prosecutor stated that when A.T. was asked whether someone had “approached him while he was in custody about testifying against Toralva,” A.T. got a “somber expression on his face.” However, the prosecutor acknowledged that A.T. did not expressly indicate that he had been threatened.

Defense counsel argued that the People were attempting to “backdoor in all the gang stuff that was already excluded,” now that A.T. was admitting that he had “lied before” in his prior statements to police implicating Toralva. Defense counsel added, “I think, under [Evidence Code section] 352, [it] is certainly still prejudicial to get into all the gang stuff.”

The trial court denied the People’s request to reverse its prior ruling bifurcating the gang allegations. The court also denied the People’s request for permission to introduce gang-related evidence for the purpose of proving identity. However, the court ruled that the People could present expert testimony pertaining to why the victim of a gang-crime might recant. The trial court reasoned in part:

“I do believe that the People are entitled, in having a witness who is indicating an intention to recant, they are entitled to present some explanation to the jury as to what reason somebody may have for recanting that would be outside the normal life experience of jurors. . . .

“I believe it is fairly limited as to what the People would be entitled to put on . . . [to] explain why the victim would be giving a story very different than what he told police previously. That’s not tied to, you know, the detective talking about how many gang members there are.

“It’s — it has to do with the general experience that the gang detective would have in dealing with victims of gang crimes and their — his experience with, they’re often reluctant to testify because they’re worried about retaliation and — or they start out being cooperative, and then they, you know — they get messages . . . either directly or indirectly that you’d better not cooperate, you’d better not testify, or bad things will happen to you. They get those kind of indications, or —

“And so, you know, it’s not — if his opinion is based on his experience that it’s not unusual for victims in gang-related offenses to deny something that they previously told the police, I think that’s permissible to present to the jury. I don’t think it’s permissible to get into predicate offenses and, you know, ‘This gang has committed 12 murders,’ and that sort of thing.

“I think it’s a more generic — so the jury has a basis for considering whether this is just, you know, unbelievable that somebody would change their story . . . as opposed to it being not that surprising that somebody would change their story, because in gang cases, people change their stories frequently, because of the concerns about retaliation and that sort of thing.”

Pursuant to this ruling, at trial, Detective Zaldivar testified that witnesses and crime victims who talk to the police about gang-related crimes may suffer repercussions from gang members, including physical violence. Thus, according to Detective Zaldivar, witnesses and victims of gang crimes often express reluctance to cooperate with the police. Detective Zaldivar added that one of the “largest obstacles” that his police “gang unit” faces is “trying to keep the victims and witnesses still cooperating with the case.”

2. Governing law and standard of review

“Under Evidence Code section 801, subdivision (a), an expert may offer an opinion ‘[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’ ” (People v. Nguyen (2015) 61 Cal.4th 1015, 1035 (Nguyen).) ” ‘The subject matter of the culture and habits of criminal street gangs . . . meets this criterion.’ ” (People v. Vang (2011) 52 Cal.4th 1038, 1044. More specifically, in Nguyen, 61 Cal.4th at page 1035, the Supreme Court summarized the law governing the admissibility of expert testimony related to witness recantation in gang-related crimes:

“In People v. Gonzalez (2006) 38 Cal.4th 932, a police gang expert testified that witnesses to a gang-related crime are usually reluctant to testify because of fear of retaliation, and that is why ‘the witnesses might repudiate earlier truthful statements’ that the defendant was the shooter. (Id. at p. 946.) We held that this testimony ‘was quite typical of the kind of expert testimony regarding gang culture and psychology that a court has discretion to admit.’ (Id. at p. 945.) ‘Whether members of a street gang would intimidate persons who testify against a member of that or a rival gang is sufficiently beyond common experience that a court could reasonably believe expert opinion would assist the jury.’ (Ibid.; see People v. Ward (2005) 36 Cal.4th 186, 211 [police officer permitted to testify that ‘witnesses, even those from rival gangs, are often reluctant to identify or testify against gang members out of fear for their safety’].)”

A trial court has discretion to exclude evidence that is otherwise admissible “if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)

The “decision on whether evidence, including gang evidence, is relevant, not unduly prejudicial and thus admissible, rests within the discretion of the trial court,” and will not be disturbed on appeal absent an abuse of discretion. (People v. Albarran (2007) 149 Cal.App.4th 214, 224–225.)

3. Application

Toralva contends that the trial court abused its discretion in admitting Detective Zaldivar’s testimony, for several reasons. To begin with, Toralva contends that there was an insufficient factual basis for the detective’s testimony. Specifically, Toralva suggests that the People were required to present evidence, apart from A.T.’s statements to the police, that this was “a gang case.” Toralva argues, “In all cases where experts are allowed to testify, there must be some evidence, independent of the current accusations, which provide a foundation for the expert’s testimony.” (Citing People v. Brown (2004) 33 Cal.4th 892, 906 (Brown), italics added.) Thus, according to Toralva, by permitting expert testimony, without independent evidence that the crime was gang-related, “[Detective Zaldivar] supplanted the jury with his opinion that [A.T.] was initially telling the truth when he reported to police that [Toralva] said, ‘This is Lomas.’ ”

We are not persuaded. In fact, Brown supports rejection of Toralva’s contentions. In Brown, the defendant claimed that the trial court erred in admitting expert testimony pertaining to the behavior of the victims of domestic violence because there was no evidence, apart from evidence related to the incident giving rise to the charged offense, that the defendant had committed an act of domestic violence. (Brown, supra, 33 Cal.4th at pp. 908–909.) The Brown court rejected this argument, reasoning:

“[D]efendant contends that the argument for admitting expert testimony after a single incident of violence is circular, because the jury must first find the preliminary fact of abuse to be true before it may consider the expert evidence. We do not share that view. The argument that evidence relating to credibility cannot be admitted until the underlying charge has been found true was rejected by the Court of Appeal in People v. Morgan (1998) 58 Cal.App.4th 1210, 1215–1216, a domestic violence case, and in People v. Housley [(1992)] 6 Cal.App.4th 947, a child molestation case. To be sure, this kind of evidence cannot be admitted to prove the occurrence of the charged crimes. [Citations.] There must be independent evidence of domestic violence—otherwise the expert testimony about how victims of domestic violence behave would lack foundation.” (Id. at p. 908.)

The Brown court added that the victim’s out-of-court statement to a police officer inculpating the defendant constituted independent evidence of the commission of the charged offenses. (Ibid.)

Thus, contrary to Toralva’s contention in his brief, Brown does not support the proposition that the People had to present evidence, “independent of the current accusations,” that the charged offenses were gang-related in order to establish an adequate foundation for Detective Zaldivar’s testimony.

Further, we reject Toralva’s contention that there was an insufficient basis for the trial court to permit the introduction of Detective Zaldivar’s testimony because A.T. had not stated that he was “fearful or had been intimidated.” The trial court could have reasonably determined that A.T’s initial inculpatory statements to police, followed by his recantation, and the alleged gang-related nature of the crime, provided an adequate foundation for Detective Zaldivar’s testimony. (Nguyen, supra, 61 Cal.4th at p. 1035 [endorsing admissibility of expert testimony “that witnesses to a gang-related crime are usually reluctant to testify because of fear of retaliation, and that is why ‘the witnesses might repudiate earlier truthful statements’ “].) Moreover, the trial court could reasonably have found that Detective Zaldivar’s expert testimony would assist the jury in evaluating A.T.’s credibility, rather than supplant its evaluation.

Finally, with respect to Toralva’s claim that trial court erred in implicitly overruling his Evidence Code section 352 objection, the trial court carefully considered the probative value of the proffered expert testimony and sharply limited the scope of the testimony. Accordingly, we conclude that the trial court did not abuse its discretion in implicitly determining that the potential prejudice arising from the admission of the expert testimony did not substantially outweigh its probative value. (Evid. Code, § 352.)

B. Under Aledamat, the trial court’s error in referring to an “inherently deadly” weapon in CALCRIM No. 875 and an “inherently deadly or dangerous” weapon in CALCRIM No. 3145 was harmless beyond a reasonable doubt

Toralva claims that the trial court committed reversible error in instructing the jury concerning “inherently deadly” weapons in CALCRIM No. 875 and “inherently deadly or dangerous” weapons in CALCRIM No. 3145. The People concede that the trial court committed instructional error, but maintain that the error was harmless beyond a reasonable doubt under Aledamat.

1. The trial court’s instructions pursuant to modified versions of CALCIM Nos. 875, 3145

The trial court instructed the jury with respect to the offense of assault with a deadly weapon (§ 245, subd. (a)(1)) (count 2) pursuant to a modified version of CALCRIM No. 875 in relevant part as follows:

“A deadly weapon other than a firearm is any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.” (Italics added.)

The trial court instructed the jury with respect to the personal use of a deadly or dangerous weapon allegations (§ 1192.7, subd. (c)(23)) (counts 1 and 2) (§ 12022, subd. (b)) (count 1), pursuant to a modified version of CALCRIM No. 3145 in relevant part as follows:

“A deadly or dangerous weapon is any object, instrument, or weapon that is inherently deadly or dangerous, or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury. In deciding whether an object is a deadly weapon, consider all the surrounding circumstances, including when and where the object was possessed, and any other evidence that indicates whether the object would be used for a dangerous, rather than a harmless, purpose.” (Italics added.)

2. Aledamat

In Aledamat, the Supreme Court summarized the jury instructions at issue in that case as follows:

“The court defined ‘a deadly weapon’ as ‘any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or . . . great bodily injury.’ (See CALCRIM No. 875.) Regarding the weapon enhancement, the court instructed that ‘a deadly or dangerous weapon is any object, instrument, or weapon that is inherently dangerous, . . . or one that is used in such a way that it is capable of causing or likely to cause death or great bodily injury. In deciding whether an object is a deadly weapon, consider all of the surrounding circumstances including when and where the object was possessed and any other evidence that indicates whether the object would be used for a dangerous rather than a harmless purpose.’ (See CALCRIM No. 3145.)” (Aledamat, supra, 8 Cal.5th at pp. 4–5.)

Both instructions informed the jury that “a weapon could be either inherently deadly or deadly in the way defendant used it.” (Aledamat, supra, 8 Cal.5th at p. 6.) However, the weapon at issue in Aledamat, a box cutter, “is not an inherently deadly weapon as a matter of law” under California law. (Id. at p. 6.) That is because, as the Aledamat court explained, under California law, only objects that are designed to be weapons, such as dirks and blackjacks, are inherently deadly weapons. (Ibid.) Since a box cutter is not designed to be a weapon, is it is not an inherently deadly weapon. (Ibid.) Thus, the trial court in Aledamat erred in instructing the jury that it could find the box cutter to be an inherently deadly weapon. (Id. at p. 3.)

The Aledamat court further noted that instructional error of this type is a form of “alternative-theory error” (Aledamat, supra, 8 Cal.5th at p. 11), explaining:

“[T]he trial court erred in presenting the jury with two theories by which it could find the box cutter a deadly weapon: (1) inherently or (2) as used. The first theory (inherently) is incorrect, but the second theory (as used) is correct.” (Id. at p. 7.)

After explaining the type of instructional error at issue, the Aledamat court considered the proper standard of prejudice to be applied to such instructional error. The Aledamat court reviewed case law from the United States Supreme Court and the California Supreme Court concerning the appropriate standard of prejudice to be applied in a variety of contexts (Aledamat, supra, 8 Cal.5th at pp. 9–13). Based on this case law, the Aledamat court concluded:

“[A]lternative-theory error is subject to the . . . general Chapman harmless error test. The reviewing court must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, it determines the error was harmless beyond a reasonable doubt.” (Id. at p. 13.)

Finally, the Aledamat court applied the Chapman standard of prejudice to the circumstances of that case. The court concluded that “[a] number of circumstances [demonstrate] beyond a reasonable doubt that the error was harmless.” (Aledamat, supra, 8 Cal.5th at p. 13.) The Aledamat court began by explaining that the potential for prejudice from the instructional error arose from the fact that the wording of the instructions permitted the jury to believe that there were two distinct ways in which it could find that the box cutter was a deadly weapon—either by concluding that it was “inherently deadly” or by considering the ways in which the box cutter was used by the defendant. (Id. at p. 13.) However, the Aledamat court reasoned that the potential for prejudice was lessened by the fact that the modified version of CALCRIM No. 875 referred to an object that “is inherently deadly, or one that is used in such a way that it is capable of causing and likely to cause death or . . . great bodily injury.” (Aledamat, supra, at pp. 13–14.) According to the Aledamat court, this “juxtaposition” suggested to the jury “what the ‘inherently deadly’ language was driving at.” (Id. at p. 14.)

The Aledamat court also reasoned that the arguments of counsel in that case supported the conclusion that the jury was unlikely to have viewed the box cutter as being inherently deadly without considering the surrounding circumstances, including how the defendant used the box cutter. (Aledamat, supra, 8 Cal.5th at p. 14.) In this regard, the Aledamat court observed that neither the People nor the defense “suggested to the jury that there were two separate ways it could decide whether the box cutter was a deadly weapon,” (ibid.) and defense counsel “never argued that, if he did assault the victim with the box cutter, the box cutter was not a deadly weapon.” (Ibid.) The Aledamat court also stated that it would have been “futile” (ibid.) for defense counsel to have made such an argument, since, when used as a weapon, a box cutter “is potentially deadly” (ibid.), particularly when accompanied by a threat to kill the victim, as was the case in Aledamat.

Finally, the Aledamat court noted that the jury “must have considered the term ‘inherently deadly’ to mean something” (Aledamat, supra, 8 Cal.5th at p. 15, italics added) and that the jury had found all of the following, “(1) defendant did an act with a deadly weapon (either inherently or as used) that by its nature would directly and probably result in the application of force; (2) defendant was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and (3) defendant had the present ability to apply force with a deadly weapon to a person.” (Ibid.) According to the Aledamat court, no reasonable jury that had made all of these findings would fail to find that the “defendant used the box cutter in a way that is capable of causing or likely to cause death or great bodily injury.” (Ibid.)

Under these circumstances, the Aledamat court concluded that the instructional error was harmless beyond a reasonable doubt. (Aledamat, supra, 8 Cal.5th at p. 15.)

3. Application

a. The trial court committed instructional error

As the People concede, the trial court committed legal error under Aledamat in instructing the jury concerning “inherently deadly” weapons in CALCRIM No. 875 (italics added) and “inherently deadly and dangerous” weapons in CALCRIM No. 3145 (italics added), because a knife is not, as a matter of law, an inherently deadly and dangerous weapon under California law. (See Aledamat, supra, 8 Cal.5th at p. 6 [“Because a knife can be, and usually is, used for innocent purposes, it is not among the few objects that are inherently deadly weapons”].)

b. Applying Aledamat, the instructional error was harmless

Applying Aledamat, we conclude that the instructional error was harmless beyond a reasonable doubt, for the following reasons. To begin with, the court’s jury instructions in this case were not materially distinct from those at issue in Aledamat. In both cases, the trial court court instructed the jury pursuant to CALCRIM Nos. 875 and 3145. (See Aledamat, supra, 8 Cal.5th at pp. 4–5.) Thus, although there was the same potential for prejudice in that the instructions suggested the possibility that the jury could find that the weapon at issue was a deadly weapon without considering how the weapon was used (id. at p. 13), the Aledamat court concluded that, considering the jury instructions in their entirety, it was unlikely that the jury would apply the instructions in such a fashion. (Ibid.) Since the instructions in this case were nearly identical to those in Aledamat, “it seems unlikely the jury would simply view the [knife] as inherently deadly without considering the circumstances, including how defendant used it.” (Id. at p. 14.)

In addition, the arguments of counsel support the conclusion that the jury was unlikely to have viewed the knife as being inherently deadly, without considering how Toralva used the knife. In particular, as in Aledamat, defense counsel never argued that, assuming that the defendant committed the assault, he did not commit an assault with a deadly weapon. (See Aledamat, supra, 8 Cal.5th at p. 14.) Indeed, in this case, defense counsel affirmatively conceded during his closing argument that, if Toralva assaulted the victim with a knife, Toralva committed an assault with a deadly weapon. Defense counsel argued as follows:

“And then you have the assault with a deadly weapon. The assault, [is] a little bit different than the robbery because it’s independent of whether or not it was stolen. So the assault, based on the facts in this case, would be, you believe [A.T.] when he said the knife was slashed through the air. That’s assault with a deadly weapon. He used the knife; he did an act that could have resulted in force. So he slashed it in the air. Simply holding the knife is not an assault with a deadly weapon; you have to do the action. That, I believe [the prosecutor] described it as an attempted battery. So you have to believe, not only did he — that he held the knife, but that Mr. Toralva slashed it in the air. That’s the assault with a deadly weapon.” (Italics added.)

Further, as in Aledamat, we can safely conclude that it would have been “futile” (Aledamat, supra, 8 Cal.5th at p. 14) for defense counsel in this case to have argued that Toralva’s assault on A.T. with a knife was not an assault with a deadly weapon, particularly since Toralva prefaced his assault with a threat to stab A.T., and A.T. surrendered his belongings after Toralva swung the knife at him. (See ibid. [concluding that it would have been “futile” for defense counsel to have argued that assault with a box cutter was not an assault with a deadly weapon in part because a box cutter is a sharp object and defendant threatened victim during assault].)

Further, as in Aledamat, in finding Toralva guilty of an assault, the jury necessarily found, among other elements, that Toralva performed an act that “by its nature, would directly and probably result in the application of force,” to A.T. In addition, the jury found that Toralva robbed A.T., and thus, found that Toralva “used force or fear to take [A.T.’s] property or prevent [A.T.] from resisting.” Under these circumstances, Aledamat supports the conclusion that we may conclude, beyond a reasonable doubt, that no jury would make these findings and at the same time, not find that Toralva used a knife in a way that was capable of causing or likely to cause death or great bodily injury. (Aledamat, supra, 8 Cal.5th at p. 15.)

Toralva’s arguments to the contrary are not persuasive. Toralva notes that the trial court instructed the jury that “[w]ords and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings,” and argues that “[w]ithout the legal definition of what an inherently deadly or dangerous object is or is not, the jury would have assumed a small kitchen knife is inherently deadly or dangerous.” (Italics omitted.) Even assuming that this is so, the question that we must answer in assessing prejudice is whether, if the trial court had omitted references to inherently deadly and dangerous weapons in the instructions, the jury would have nevertheless found that the knife was a deadly weapon based on Toralva’s use of the weapon. For the reasons discussed above, we think it clear that the jury would have found that Toralva used the knife in a way that was capable of causing or likely to cause death or great bodily injury, notwithstanding the instructional error.

Toralva also discusses the prosecutor’s closing argument and contends that the prosecutor “conflated the two theories of inherently deadly and how [the knife] was used.” (Italics omitted.) While the prosecutor’s closing argument was not entirely clear with respect to this issue, the prosecutor repeatedly urged the jury to consider how Toralva used the knife, thereby bolstering the conclusion that the instructional error was harmless. For example, as Toralva notes in his supplemental brief, the prosecutor argued the following:

“[Y]ou can look at the knife. This is a knife that can cause a deadly weapon [sic]. You can cut somebody; you can hit them in the eye; you can hit them in the face; you can hit them in the stomach, anywhere that’s going to cause serious injury. It’s a blade. Is it going to cause the same injuries as a huge knife? No. But your hands could be deadly weapons. Your stick [sic] could be a deadly weapon, depending on how it’s used. Someone swinging a knife in your face, I submit to you that that is a knife that could cause a deadly weapon [sic].”

Finally, Toralva contends that People v. Stutelberg (2018) 29 Cal.App.5th 314 (Stutelberg), in which this court concluded that instructional error similar to the error in this case was prejudicial, demonstrates that the error in this case was not harmless. We are not persuaded. As an initial matter, Stutelberg was decided before Aledamat, and thus, this court did not have the benefit of the Supreme Court’s application of Chapman to the instructional error at issue. For the reasons discussed above, we conclude that application of Aledamat strongly supports the conclusion that the trial court’s instructional error in this case was harmless.

Moreover, the record in Stutelberg is distinguishable from the record in this case. In Stutelberg, the charged offenses arose after the intoxicated defendant became angered after being denied admission to a bar. (Stutelberg, supra, 29 Cal.App.5th at p. 316.) The defendant “swung a fist at [the victim] but missed.” (Ibid.) In addition, there was evidence that defendant “started ‘flicking’ a box cutter toward [the] faces,” of the victim and his associates. (Ibid.) In concluding that the instructional error was reversible, the Stutelberg court emphasized that it was “unclear” whether the defendant was holding a weapon in the hand that he swung at the victim. (See id. at p. 322 [“it is unclear which arm [defendant] swung and if he was holding the box cutter in that same hand”].) The Stutelberg court also concluded that the jury could have found that the defendant’s ” ‘flicking’ motion was more of a threat, as opposed to an act likely to cause death or great bodily injury.” (Ibid.)

In this case, in contrast, the charged offenses arose from a robbery, during which Toralva swung a knife at a resisting victim in order to obtain the victim’s property. Further, there was no evidence in this case from which the jury could have found that Toralva swung at A.T. with a hand that was not holding a knife. In addition, unlike “the flicking motion” of the box cutter in Stutelberg that this court concluded the jury could have reasonably found to constitute a mere “threat” (Stutelberg, supra, 29 Cal.App.5th at p. 322), in this case, the jury’s guilty verdicts establish that it found that Toralva “swung” a knife at A.T. in order to overcome A.T.’s resistance and complete the robbery. Indeed, as discussed above, defense counsel conceded that if the jury found that Toralva “slashed [the knife] in the air,” then “[t]hat’s the assault with a deadly weapon.” In sum, we conclude that this court’s decision in Stutelberg does not compel reversal in this case.

Accordingly, we conclude that the trial court’s error in instructing the jury pursuant to CALCRIM Nos. 875 and 3175 was harmless beyond a reasonable doubt.

C. Toralva has not established that the trial court erred in imposing various fines and fees

Toralva contends that the trial court erred in imposing a $60 court facilities assessment (Gov. Code, § 70373), a $80 court operations assessment (§ 1465.8), a $154 criminal justice administration fee (Gov. Code, § 29550.1), a $39 theft fine (§ 1202.5), and restitution fines (§ 1202.4, subd. (b)) in the amounts of $6,000 (case No. SCD273556) and $300 (case No. SCD261776) without first determining his ability to pay. (Citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas); see id. at p. 1160 [“Because the only reason Dueñas cannot pay the [restitution] fine and [court facilities and court operations] fees is her poverty, using the criminal process to collect a fine she cannot pay is unconstitutional”].) Toralva acknowledges that he did not object to the imposition of the fines and fees in the trial court.

Ordinarily, a defendant who fails to object to the imposition of a fee or fine in the trial court may not raise a claim pertaining to that charge on appeal. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864 [appellate forfeiture rule applies to probation fines and attorney fees imposed at sentencing]; People v. McCullough (2013) 56 Cal.4th 589, 596–598 [defendant forfeits appellate challenge to the sufficiency of evidence supporting a Gov. Code, § 29550.2, subd. (a) booking fee if objection not made in the trial court]; People v. Avila (2009) 46 Cal.4th 680, 729 [forfeiture rule applies to defendant’s claim that restitution fine amounted to an unauthorized sentence based on his inability to pay]; People v. Nelson (2011) 51 Cal.4th 198, 227 (Nelson) [claim that trial court erroneously failed to consider ability to pay a restitution fine forfeited by the failure to object].)

Toralva argues that he has not forfeited his claim of error, for two reasons. First, Toralva contends that his claim is one of legal error that may be raised for the first time on appeal. Second, Toralva contends that any objection based on inability to pay would have been futile because, prior to Dueñas, there were “scant grounds for objecting” to the imposition of the fines and fees.

With respect to the first contention for excusing his failure to object to the imposition of the fines and fees, Toralva argues that the fines and fees “could not legally be imposed on an indigent defendant without first determining his ability to pay.” Even assuming that this contention is not forfeited, it is without merit. The trial court was not required to consider sua sponte Toralva’s ability to pay prior to imposing the fees and fines. (See People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano).) The Castellano court explained:

“Castellano asserts the court facilities and operations assessments and the criminal laboratory analysis fee should be reversed, and execution of the restitution fine stayed, unless and until the People prove he has the present ability to pay the fine. Dueñas does not support that conclusion in the absence of evidence in the record of a defendant’s inability to pay. . . . [¶] Consistent with Dueñas, a defendant must in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court.” (Id. at pp. 489–490, italics added.)

We agree with the Castellano court. Accordingly, we conclude that the trial court was not required to consider the issue of Toralva’s ability to pay the challenged fees and fines sua sponte before imposing them.

With respect to Toralva’s claim of futility, we acknowledge the split of authority with respect to how unforeseen Dueñas may be said to have been, and whether, in any case, the novelty of that decision may serve as the basis for excusing a defendant’s failure to object. (Compare Castellano, supra, 33 Cal.App.5th a p. 489 [Dueñas was “a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial” and declining to apply the forfeiture doctrine to defendant’s challenge to assessments and restitution fine] with People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 [concluding that defendant forfeited challenge to assessments and restitution fine and stating “we disagree . . . [that] Dueñas as ‘a dramatic and unforeseen change in the law’ “].)

However, in this case, irrespective of the novelty of the principles announced in Dueñas, it cannot be said that the potential legal viability of an objection to the trial court’s imposition of at least one of the fines on the basis of ability to pay could not have been foreseen. On the contrary, at the time of sentencing, well established statutory law specifically authorized a trial court to consider a defendant’s “inability to pay” any restitution fine above the $300 statutory minimum. (See § 1202.4, subd. (d).) Section 1202.4, subdivision (d) provides in relevant part:

“In setting the amount of the fine pursuant to subdivision (b) in excess of the minimum fine pursuant to paragraph (1) of subdivision (b), the court shall consider any relevant factors, including, but not limited to, the defendant’s inability to pay . . . . Consideration of a defendant’s inability to pay may include his or her future earning capacity. A defendant shall bear the burden of demonstrating his or her inability to pay. Express findings by the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required.”

Thus, if Toralva believed that the trial court had failed to give adequate consideration to his ability to pay the $6,000 restitution fine in case No. SCD273556, it was incumbent on him to raise this objection at the sentencing hearing. By failing to raise an objection to the imposition of a restitution fine well in excess of the statutory minimum on the basis of inability to pay in the trial court, Toralva forfeited any appellate challenge to the imposition of this fine based on his ability to pay. (See Nelson, supra, 51 Cal.4th at p. 227.)

Further, since Toralva raised no objection to the imposition of a $6,000 restitution fine on the ground that he lacked an ability to pay such a fine, notwithstanding clearly established statutory authorization for raising such a challenge (§ 1202.4, subd. (d)), we see no basis for excusing his failure to object to the imposition of fines and fees of lesser amounts. (See People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 [employing similar reasoning].)

Accordingly, we conclude that Toralva forfeited his claim that the trial court erred in imposing a $60 court facilities assessment (Gov. Code, § 70373), a $80 court operations assessment (§ 1465.8), a $154 criminal justice administration fee (Gov. Code, § 29550.1), a $39 theft fine plus penalty assessments (§ 1202.5), and restitution fines (§ 1202.4, subd. (b)) in the amounts of $6,000 (case No. SCD273556) and $300 (case No. SCD261776) without first determining his ability to pay.

D. Toralva is entitled to have the trial court exercise its discretion as to whether to strike the five-year prior serious felony enhancement under a new provision of law

Toralva contends that the matter must be remanded to the trial court to permit that court to consider whether to exercise its discretion to strike the serious felony enhancement under Penal Code section 667, subdivision (a)(1), as amended by Senate Bill No. 1393, chapter 1013. The People concede that the amended law applies retroactively and that the matter should be remanded to permit the trial court to exercise its discretion as to whether to strike the serious felony enhancement pursuant to the amended law. We accept the People’s concession and agree that a remand for this purpose is appropriate.

IV.

DISPOSITION

The matter is remanded to permit the trial court to exercise its discretion to consider whether to strike the five-year serious felony enhancement (§ 667, subd. (a)) in light of the law as amended by Senate Bill No. 1393. In all other respects, the judgment is affirmed.

AARON, J.

WE CONCUR:

BENKE, Acting P. J.

HALLER, J.