Filed 1/21/20 P. v. Mancio CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

ANA ROSENDA MANCIO,

Defendant and Appellant.

B291219

(Los Angeles County

Super. Ct. No. MA069145)

APPEAL from a judgment of the Superior Court of Los Angeles County, Charles A. Chung, Judge. Affirmed.

Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Amanda V. Lopez and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.

Ana Rosenda Mancio appeals the judgment of conviction entered after a jury found her guilty of first degree murder (Pen. Code, § 187, subd. (a)) for the April 28, 2015 shooting of Miguel Romero. The jury also found true the allegation Mancio was a principal armed with a firearm in the commission of the offense (§ 12022, subd. (a)(1)). On appeal, Mancio contends the People failed to present substantial evidence Mancio either personally killed Romero or aided and abetted in his killing. Mancio also argues her attorney’s failure to object to the admission of evidence she possessed firearms not used in the killing constituted ineffective assistance of counsel.

In supplemental briefing, Mancio contends the trial court violated her right to due process and equal protection by failing to consider her ability to pay before imposing court assessments and restitution fines, relying on this court’s opinion in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). She also argues imposition of the fines and assessments without an ability-to-pay hearing violated the excessive fines clause of the Eighth Amendment.

We affirm the judgment. We also reject Mancio’s constitutional challenges to imposition of the fines and assessments in light of Mancio’s failure to challenge the $10,000 restitution fines imposed at sentencing and evidence at trial of Mancio’s ability to pay $70 in court assessments.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Evidence at Trial
B.
1. The principals
2.
In 2015 Mancio lived in Littlerock, California with her husband of 20 years, Edwin Mancio, and their two daughters, Scarlett and Tamara. Mancio worked as a real estate agent and notary public. Edwin handled livestock, slaughtering cattle and selling the meat, and he also repaired fences. Scarlett worked at a restaurant in Palmdale; Tamara was a recent high school graduate. Tamara had a 2014 gray two-door Scion TC that Mancio and Edwin purchased for her as a high school graduation present.

The Mancios were friends with Romero and his family, and the two families had socialized together a few times. Romero lived in the Lake Los Angeles area of the Antelope Valley with his wife of 11 years, Karim Illescas, and their two daughters. Romero worked as an electrician and operated a side business delivering feed for livestock and horses. Unbeknownst to their spouses, Mancio and Romero had engaged in an extramarital affair for four years.

Ricardo Pech was a close friend of the Mancio family who sometimes spent weekends at the Mancio home. Pech worked odd jobs and assisted Edwin in slaughtering cattle and repairing fences.

3. Discovery of the affair
4.
In April 2015 Illescas suspected her husband was having an extramarital affair, and she concealed a voice-activated digital recorder in Romero’s car. The recordings confirmed her suspicions. On April 24 Illescas confronted Romero about the affair, and they discussed the possibility of his moving out of the family home. Illescas was incensed and texted Mancio, “Pray to God that you don’t come across me.” Mancio responded, “You must have the wrong number. Who is this?” Illescas replied, “You will soon find out.”

The following day Illescas received a voicemail message from Edwin saying he too had just learned about the affair and was very sorry. He referred to Mancio and Romero as “dogs.” Edwin attempted to call Illescas again later that day, but when Romero picked up Illescas’s phone, Edwin threatened to kill him. That night Edwin used cash at the airline counter in the Los Angeles International Airport to purchase a one-way ticket to Guatemala for a flight leaving a few hours later, at 1:30 a.m. on April 26. Edwin’s cell phone was inactive from that time forward.

Two days later (April 27) Romero visited his close friend, Jose Gonzalez. Romero used Gonzalez’s phone to call Mancio. Gonzalez overheard Romero tell Mancio their relationship was over and she should not call him again.

5. The murder
6.
Around midday on April 28 Romero was having lunch with Illescas when he received a text message from an unknown number asking him to deliver feed to 9420 East Avenue W-8, outside of Littlerock. Because Romero was unfamiliar with the address, Illescas looked up the address on her phone and computer. Romero called the number to discuss the delivery but there was no answer; instead, at 4:37 p.m., Romero received a text message asking him to confirm whether he was coming. Romero responded that he would leave his home at 5:00 p.m. to make the delivery. At around 5:00 p.m. Romero left his home in his pickup truck.

At around 5:45 or 6:00 p.m., Illescas called Romero to ask if she should put their horse in its stable, but Romero did not answer. Growing anxious, Illescas called and texted Romero several times over the next two hours, receiving no response. At around 7:40 p.m. Illescas left to look for Romero near the address of the feed delivery.

When Illescas arrived at the delivery location, she observed it was a desert area with just a few houses spread among empty lots. Romero’s truck was parked near an open lot with a “for sale” sign. Illescas parked behind Romero’s truck, and as she approached the truck on the driver’s side, she saw Romero’s body was slumped over onto the passenger side. She tugged on Romero’s arm and shirt, and his body fell back, unresponsive. Illescas called the police.

Deputies from the Los Angeles County Sheriff’s Department (LASD) arrived at the scene shortly after 8:00 p.m. They observed Romero’s driver’s side window was down and Romero’s seat belt was still fastened. The front windshield and rear window had bullet holes, and the passenger side window was shattered. LASD homicide detective, Karen Shonka, responded to the scene and found a single expended nine-millimeter shell casing in the dirt outside the truck and several expended projectiles inside the truck. Romero’s pockets were turned inside out, and his cell phone and wallet were missing.

Robert Fierro, an investigator with the Los Angeles County Coroner’s Office, also responded to the crime scene. Fierro opined Romero died from multiple gunshot wounds, including five shots to his head and one to his left arm, indicating Romero may have raised his arm defensively. Several of Romero’s head wounds showed stippling, skin damage indicating the shots were fired from within a few feet. Detective Shonka opined the shooter was likely to have fired the shots in rapid succession in a position parallel to or just behind Romero, while Romero was seated with his driver’s side window down, consistent with the killer firing the shots from a vehicle pulled alongside Romero’s truck. Detective Shonka also opined the shooter was likely to be a skilled shooter with experience in how to address recoil from the firearm in order to fire a series of shots with such consistent aim.

7. The gray Scion TC observed near the crime scene
8.
Between 4:45 and 5:00 p.m. on April 28, shortly before the murder, Tyler Duke and Emily Burke were driving home on 103rd Street outside of Littlerock. As they slowed down to turn onto a dirt road leading to their property, they saw a gray two-door Scion TC parked at 103rd Street and Avenue W-8. Burke described the driver as a small Hispanic man, possibly in his late 20’s, and the passenger as a medium-sized Hispanic woman. The woman appeared to be in her 30’s, older and larger than the man, and she had long, wavy, dark brown hair. Duke and Burke took note of the vehicle and its occupants because the vehicle was parked in a remote location and the man in the driver’s seat was wearing blue surgical gloves, which caused Duke and Burke to fear the occupants might be burglars. Duke and Burke hastened home, and as Burke looked back she noticed the Scion start to drive up Avenue W-8. They arrived at their home around 5:00 p.m., and about 15 or 20 minutes later they heard several gunshots in rapid succession.

9. The flight of the Mancio family from the country
10.
On the evening of the murder, Mancio called Carlos Orellana, her boss at the real estate agency, and told him she was quitting her job and leaving the country. Mancio told Orellana her husband had been diagnosed with stomach cancer and the Mancios were seeking a second opinion in Guatemala, where Edwin had family. Mancio asked Orellana to take over a pending real estate listing; a week later, she telephoned Orellana from a different number with a Guatemala area code to check on the listing. In a subsequent call from Guatemala, Mancio said she would be renting out her house in Littlerock once it had been cleaned.

The night of the murder Scarlett texted her supervisor at the restaurant, Alejandra Sanchez, to say her father had a stroke and she could not come in to work. Scarlett called Sanchez again a week later from a number with a Mexican area code to say there had been a family emergency, and she requested a relative be allowed to pick up her paycheck.

Scarlett and Tamara also called and sent text messages to their close friend Pedro Arellana between 9:00 and 11:00 p.m. on April 28 to tell him the Mancios had to leave town because of a family emergency. Scarlett asked Pedro to pick up Tamara’s Scion from a shopping mall parking lot near Ontario, which he and his mother Martha did the following morning. However, when Pedro tried calling Scarlett and Tamara back, his calls went straight to voicemail, and he did not hear from them again. A short time after they left, Mancio called Martha and told her Edwin was seeking treatment for liver cancer in Cuba. Several weeks after the Mancio family’s departure, Pedro visited the Mancio home and found it deserted, with the horses and farm animals appearing to be unfed. The family’s dog Perris, a small pug, was gone, but the family’s three larger dogs were abandoned at the home.

In May or June 2015 Mancio called her brother, Moises Delgado, to tell him the family was in Cuba seeking treatment for Edwin. Mancio asked Delgado to clean up the Mancio house. Prior to the Mancio family’s departure, Delgado had not been aware Edwin was sick. When Delgado visited the Mancio home, the family’s two horses and several of the farm animals were missing. Pedro and a neighbor had been feeding the remaining animals. Delgado found the inside of the house was “really messy,” with items out of place and clothes strewn on the beds.

11. The search of the Mancio family home and vehicle
12.
In July 2015 Detective Shonka, her partner, and a search team executed a warrant to search the Mancios’ home. They found blue surgical gloves in the master bedroom, on Mancio’s dresser and the floor, and in a sandwich bag in the garage. They also found mail addressed to Mancio that had handwriting on the envelope with directions to the crime scene. A senior criminalist at the LASD crime lab, Darrick Lertyaobarit, compared the writing on the envelope against exemplars of Mancio’s handwriting from her checkbook and her arrest paperwork. Lertyaobarit concluded: “It is my opinion that the questioned document may have been written by the writer of the exemplar documents.”

The search team also found a box for a nine-millimeter Beretta 92FS handgun, with a retail purchase receipt bearing Mancio’s name taped to the box. Although they did not find the Beretta handgun, they found a speed loader, an owner’s manual, and a cleaning kit for a Beretta. They also found five expended nine-millimeter shell casings, one in the master bedroom and four outside the house. April Whitehead, a firearms identification expert at the LASD crime lab, conducted a forensic analysis of the expended nine-millimeter shell casing found at the crime scene and those recovered from Mancio’s home. She concluded two of the 5 nine-millimeter casings recovered at Mancio’s home had been fired from the same weapon as the shell casing found at the crime scene.

In July 2015 Detective Shonka and an LASD senior criminalist examined Tamara’s Scion TC, which they retrieved from Pedro. The senior criminalist found gunshot residue on the vehicle’s headliner (ceiling covering) and the interior door panels. Pedro testified his family did not possess firearms, and he had not used a firearm in or near the car.

13. Cell phone records connecting Mancio to the murder
14.
Alex Mancia, a crime analyst assigned to the LASD homicide bureau, analyzed call records and cell tower data to track the location of the cell phones belonging to Romero, Mancio, Pech, Scarlett, Illescas, and the burner phone around the time of the murder. Mancio’s cell phone was used near her home at 4:10 p.m. on April 28, 2015, then six calls made or received between 4:15 and 5:37 p.m. showed her phone utilized the cell tower closest to the scene of the murder. Calls on Mancio’s phone at 5:41 and 5:47 p.m. connected to the tower closest to Mancio’s home. A call at 6:04 p.m. placed Mancio’s phone near the crime scene; at 6:14 p.m. to the northeast of Littlerock; then multiple calls showed the phone travelling east—at 6:30 p.m. near Phelan, at 6:46 p.m. in the San Bernardino area; and at 7:05 p.m. near the Victoria Gardens shopping center in Rancho Cucamonga. The phone was used for several calls from the same location in Rancho Cucamonga until 8:14 p.m.

Mancio’s phone was next located the following morning in Otay Mesa, near the Mexican border, for calls at 1:06, 1:16 and 1:20 a.m. There were no records of Mancio using the phone again in the United States. Mancia’s analysis of the numbers called on Mancio’s phone reflected that calls made around the time of the murder showed a similar pattern of calls made for the entire time period of Mancio’s phone records.

Pech’s cell phone data showed a call between his phone and Mancio’s at 1:20 in the early morning before the murder. At 12:06 p.m. Pech’s phone connected to the tower closest to the crime scene, then the call continued as the phone travelled toward Mancio’s home in Littlerock. At 3:23 p.m. Pech’s phone had returned to the crime scene, where it was at 5:47 p.m. when it received an incoming call from Mancio’s phone.

Pech’s phone was near Mancio’s home at 7:02 p.m., then it headed east—near Phelan at 7:22 p.m. and near the Victoria Gardens Shopping Center in Rancho Cucamonga area at 7:55 p.m. Starting at 9:25 p.m. Pech’s phone travelled south, showing calls near the Mexican border at Otay Mesa the next morning between 12:03 and 5:18 a.m. (overlapping with the time Mancio’s phone was near Otay Mesa—from 1:06 to 1:20 a.m.). Pech’s phone pinged off a tower along the Mexican border on the afternoon of April 29, after which there was no record of use in the United States.

Both Mancio’s and Pech’s phones received multiple calls from the same international number throughout the day of Romero’s murder.

The burner phone that sent the delivery location was activated on the morning of April 28, 2015 and was used only on that day. At 7:34 a.m. Pech’s phone made an unanswered call to the burner phone. At 7:47 a.m. the burner phone was in Palmdale and contacted Romero’s phone. At 3:27 p.m. the burner phone was in the vicinity of the crime scene when it received a call from Romero’s phone. Then, as noted, it sent a text message to Romero at 4:37 p.m. At 4:41 p.m. the burner phone was near the Palmdale airport moving toward Lancaster, where it was located at 5:14 p.m. At 7:15 p.m. the phone used the cell tower near the Victoria Gardens shopping area.

On the day of the murder, Scarlett’s phone was located near the Mancio home from 4:51 to 5:37 p.m., then it used the cell tower near the Victoria Gardens shopping mall in Rancho Cucamonga between 7:13 and 7:45 p.m., around the same time Mancio’s and Pech’s phones and the burner phone were nearby.

Analysis of Illescas’s phone showed it made calls to Romero’s phone from near the Romero-Illescas residence in Lake Los Angeles at 5:40, 6:53, 7:17, 7:29, and 7:41 p.m. At 7:47 p.m. Illescas’s phone called Romero’s phone from the tower closest to the crime scene. An 8:01 p.m. call connected again to the tower closest to the crime scene.

15. Mancio’s 2017 arrest in Florida
16.
Following Romero’s murder, LASD detectives searched for Mancio, but they were unable to locate her and learned the Mancio family had fled. More than two years later, on July 1, 2017, Detective Shonka was contacted by Detective Steve Smith with the Orlando Police Department, who reported that Mancio and Edwin were at a gun show in Orlando, Florida. Mancio had been detained after submitting an application to purchase a Beretta 92FS and an AR-15-type assault rifle—weapon models Mancio had owned in California—after the background check turned up Mancio’s outstanding California arrest warrant. Mancio was detained in Orlando, then was transported back to California. When she was first interviewed by Orlando police, Mancio denied ever having lived in California.

After Mancio’s arrest, Detective Shonka and Mancia made an unannounced visit to the Mancio residence in Orlando, where they met Edwin, Tamara, and Scarlett. The Mancio family’s pug Perris was also present at the residence. When Detective Shonka asked Edwin for his passport and medical documentation, Edwin pulled from a red satchel-type bag he was holding his stamped Guatemalan passport and an airline boarding pass showing he left the United States prior to Romero’s murder. Edwin also removed from the bag two doctors’ letters dated November 15, 2015 and August 2, 2017, stating Edwin suffered from obesity, high blood pressure, and diabetes. There was no indication he suffered from or had been treated for cancer or a stroke.

17. Mancio’s jailhouse phone calls with Edwin
18.
In July 2017, while in jail in Orlando, Mancio made a series of telephone calls to Edwin and their daughters, the recordings of which were played for the jury. During her first call, Mancio told Edwin about her interview with Orlando police: “They say my husband sent someone to cook the chicken. [¶] . . . [¶] And I sent someone to cook whoever cooked the chicken.” Edwin told Mancio to “deny everything” and said he would be “on the same channel.” Mancio relayed how she had told police, “I had a romance there and when he found out, out of embarrassment, my husband got sick and we left . . . .” Edwin confirmed, “Okay, so I’ll say that[.] [¶] . . . [¶] I got sick and I have the documents—where are the documents, honey?” Mancio answered, “They’re right there, . . . [a]t the bottom of my closet . . . a red purse.” Later Mancio said, “Shut up because this is being recorded, baby. You’re going to hurt me.” Edwin responded, “I know baby, but I can’t take it anymore. [¶] . . . [¶] A mistake, a mistake, I made that mistake. Me.” When Edwin on their next call said “it backfired on us,” Mancio responded, “[n]othing has backfired,” and she added she “didn’t do anything.”

On several of the calls, Mancio and Edwin discussed their hen, rooster, and chickens. On one call, Mancio thought the police would want to “look for the rooster,” prompting Edwin to ask, “Should I get out of the corral?” Mancio told him he needed to “take care of my little animals” but to remain “alert to keep the coyotes from eating him.” When Edwin stated, “The papers, and everything—so, Rooster—Rooster is ready to—to come out of the corral,” Mancio told him to wait because “[w]hen they ask me about Rooster, about my little animals . . . [¶] . . . [¶] . . . what I’m going to say is that Rooster stayed here in Florida.” In a subsequent call, when Mancio asked Edwin why he had not visited her in jail, Edwin responded, “Didn’t you tell me to keep away from the hen house?” Mancio responded, “Oh, that’s why.”

In another call, Mancio stated, “[R]emember when you got sick 2 years ago. Like—no, it was 3 years ago, right? That you got sick . . . after what happened. [¶] . . . [¶] That while you were there, you got seriously ill, and I went after you and everything and after all that . . . because of the shame and everything that was going on here, we didn’t go back.” Edwin responded, “It was like that.” Mancio continued, “And you got even worse. Then finally when they gave you the release so you could travel, that’s when we ended up coming back here.” Edwin responded, “Correct. That’s how it’s gonna be.”

As Mancio’s transfer to California approached, Edwin advised Mancio “to keep pedaling your bike . . . [¶] . . . [¶] [i]n the same gear you started with. [¶] . . . [¶] Don’t you steer it up, down, ahead, whatever you do don’t back up and don’t go sideways. . . . [¶] . . . [¶] . . . When you reach California, you’ll do exactly as you’ve done here.” Later, Mancio appeared to reconsider her account, saying to Edwin, “[L]et me tell you something, the one who threatened me was the other woman. She’s the dangerous one. [¶] . . . [¶] And I’m gonna tell them that. She sent . . . this text to me, threatening me. [¶] . . . [¶] And I’m gonna say that . . . .” Edwin interrupted: “But listen, honey, honey, remember that if you’re already riding a bike, stay on that same bike, keep it going.” He added, “And yeah, whatever you said here, say the same thing there, the exact same thing . . . .”

C. Verdict and Sentencing
D.
After a three-week trial, on June 5, 2018 the jury found Mancio guilty of first degree murder and found the firearm allegation to be true. On June 6, the trial court sentenced Mancio to 25 years to life for the homicide, plus one year for the firearm enhancement pursuant to section 12022, subdivision (a)(1).

The court imposed a $30 court facilities assessment (Gov. Code, § 70373) and a $40 court operations assessment (Pen. Code, § 1465.8, subd. (a)(1)). The court also imposed a restitution fine of $10,000 (§ 1202.4, subd. (b)) and imposed and suspended a parole revocation restitution fine in the same amount (§ 1202.45). The trial court did not state its reasons for imposing the restitution and parole revocation restitution fines or why it imposed an amount above the $300 statutory minimum. (§§ 1202.4, subd. (b)(1), 1202.45.) At sentencing, Mancio did not object to imposition of the assessments and fines or raise her inability to pay.

Mancio timely appealed.

DISCUSSION

A. Substantial Evidence Supports Mancio’s Conviction of First Degree Murder
B.
Mancio contends the circumstantial evidence presented at trial was insufficient to prove beyond a reasonable doubt Mancio was guilty of murder, either as the direct perpetrator or an aider and abettor. We conclude substantial evidence supported the jury’s verdict.

1. Standard of review
2.
“In evaluating a claim regarding the sufficiency of the evidence, we review the record ‘in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Westerfield (2019) 6 Cal.5th 632, 713 (Westerfield); accord, People v. Penunuri (2018) 5 Cal.5th 126, 142 (Penunuri) [“‘To assess the evidence’s sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt.’”]; People v. Nguyen (2015) 61 Cal.4th 1015, 1056 (Nguyen) [“‘[I]t is the jury, not the appellate court which must be convinced of the defendant’s guilt . . . .’”].) “‘We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.’” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 162.)

“Mental state and intent are rarely susceptible of direct proof and must therefore be proven circumstantially.” (People v. Thomas (2011) 52 Cal.4th 336, 355; accord, Tanguilig v. Valdez (2019) 36 Cal.App.5th 514, 527.) The identity of the perpetrator may also be proved by circumstantial evidence. (People v. Zaragoza (2016) 1 Cal.5th 21, 45 [“The evidence that defendant was the shooter was entirely circumstantial—but it was sufficiently substantial to uphold his convictions.”]; see People v. Mohamed (2011) 201 Cal.App.4th 515, 521-522 [substantial evidence established identity, including that defendant was wearing same clothing as robber].)

“‘The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence.’ [Citations.] ‘We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.’” (Westerfield, supra, 6 Cal.5th at p. 713; accord, Penunuri, supra, 5 Cal.5th at p. 142 [“‘A reversal for insufficient evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support’” the jury’s verdict.’”].)

3. Governing law
4.
Murder is the unlawful killing of a human being “with malice aforethought.” (§ 187, subd. (a).) A “willful, deliberate, and premeditated killing” is murder in the first degree. (§ 189) “‘“Deliberation” refers to careful weighing of considerations in forming a course of action; “premeditation” means thought over in advance.’” (People v. Brooks (2017) 3 Cal.5th 1, 58.) “‘A “person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.”’” (Nguyen, supra, 61 Cal.4th at p. 1054.) A defendant may be convicted of first degree premeditated murder based on direct aiding and abetting principles, under which “the prosecution must show that the defendant aided or encouraged the commission of the murder with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating its commission.” (People v. Chiu (2014) 59 Cal.4th 155, 167; accord, People v. Vasquez (2016) 246 Cal.App.4th 1019, 1024.)

“‘Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.’” (Nguyen, supra, 61 Cal.4th at p. 1054; accord, People v. Sedillo (2015) 235 Cal.App.4th 1037, 1066 [substantial evidence showed intent to aid and abet murder where shooter ran to waiting car driven by defendant after shooting; shooter carried “conspicuous” rifle wrapped in towel or sheet; defendant and shooter sped away after shooting; and defendant admitted involvement in shooting in later recorded call].)

5. Substantial evidence supports the jury’s finding Mancio was the perpetrator or aider and abettor
6.
There is substantial evidence of Mancio’s motive to kill Romero; Mancio’s presence at the crime scene; her relationship with Pech (the likely shooter or accomplice); and incriminating conduct before and after the murder. (See Nguyen, supra, 61 Cal.4th at p. 1054; People v. Smith (2005) 37 Cal.4th 733, 741 [“evidence of motive is often probative of intent to kill”].)

Mancio had a strong motive to kill: her lover of four years abruptly spurned her and returned to his wife, while at the same time Edwin learned of the affair. Further, significant evidence implicates Mancio in the planning and commission of the crime. Tamara’s car, which tested positive for gunshot residue, matched the description of the gray Scion TC parked near the crime scene shortly before the murder; Burke and Duke saw a woman of Mancio’s approximate age, build, and hair color in the Scion along with a man matching Pech’s description; Mancio used her phone near the crime scene around the time of the murder (between 4:15 and 5:37 p.m.); Pech likewise made or received calls near the crime scene at 3:23 and 5:47 p.m.; Mancio and Pech called each other, and Pech called the burner phone on the day of the murder; and Mancio and Pech received multiple calls from the same international number the day of the murder.

In addition, the LASD search team recovered 5 nine-millimeter shell casings at Mancio’s home, two of which were fired from the same gun as the shell casing found at the crime scene. The search team also recovered from Mancio’s home a box for a nine-millimeter Beretta, a receipt for the Beretta in Mancio’s name, and accessories for the Beretta. Further, the search revealed an envelope addressed to Mancio with the handwritten address of the murder scene; a handwriting analysis concluded the address “may have been written” by Mancio. Blue surgical gloves matching Duke’s description of the gloves worn by the Scion driver were found on Mancio’s dresser and elsewhere in her home.

Mancio’s conduct after the murder also provides significant evidence of her involvement. Mancio quit her job the day of the murder, and she and her daughters fled just hours after the murder, leaving the house in disarray. Mancio abandoned the family horses, livestock and large pets with no provision for their care, taking only the small pug dog. Mancio and her daughters told multiple people, including Mancio’s brother, Mancio’s boss, Scarlett’s boss, and close friends Martha and Pedro that Edwin had cancer or a stroke requiring emergency treatment in Guatemala or Cuba, yet no one was aware of Edwin’s condition before the day of the murder. Edwin’s medical records showed no evidence of treatment for cancer or a stroke.

Further, according to the cell phone records, on the evening of the murder Mancio and her daughters drove south on Interstate 15 to the vicinity of the Victoria Gardens Shopping Center in Rancho Cucamonga, where they remained for an hour (from 7:05 to 8:14 p.m.); at 7:15 p.m. the burner phone was in the same location; and Pech was in the same location when he used his phone at 7:55 p.m. The Mancio family abandoned Tamara’s Scion in a shopping mall parking lot in the neighboring city of Ontario. Later in the evening Mancio and her daughters travelled to the border in Otay Mesa, at the same time as Pech, before vanishing altogether. When Mancio resurfaced two years later in Orlando, she was trying to buy a nine-millimeter Beretta 92FS matching the model she owned in California. When she was detained, Mancio lied to Orlando police, telling them she had never lived in California.

Finally, Mancio’s jailhouse calls show she and Edwin were trying to coordinate their account of the family’s departure (and Edwin’s illness) and to strategize regarding Edwin’s alibi, including Mancio advising Edwin where to find her red purse with relevant documents. When Mancio proposed she change her story to focus blame on Illescas by pointing to Illescas’s threats to Mancio, Edwin encouraged Mancio to stick to her earlier version of what happened, to “stay on that same bike, keep it going.” Although the jailhouse calls, which the Mancios knew were recorded, included Mancio’s repeated declarations of innocence, the jury could reasonably have concluded the conversations were consistent with Mancio’s involvement in Romero’s murder.

Mancio contends this evidence is based on speculation, pointing to alternative culprits, including Edwin, Pech, and even Tamara, whose car was observed near the crime scene. But even if the evidence could reasonably be reconciled with an alternative theory of culpability, this does not warrant reversal of the judgment because substantial evidence supports the jury’s verdict. (Westerfield, supra, 6 Cal.5th at p. 713; Penunuri, supra, 5 Cal.5th at p. 142.) Moreover, no alternative theory is reasonably plausible in the face of the totality of the evidence. Although Edwin had a strong motive to murder Romero, he fled the country three days before the murder. Even if Edwin had some culpability, as argued by Mancio, substantial evidence points to Mancio’s guilt as the actual shooter or an accomplice in light of the cell phone data placing Mancio and Pech together near the crime scene, their multiple calls to each other, Mancio matching the general description of the woman in the Scion near the crime scene, Mancio and Pech’s coordinated flight from Rancho Cucamonga to Otay Mesa, Mancio’s ownership of a nine-millimeter Beretta, the handwritten directions to the crime scene on the envelope in Mancio’s home possibly in her handwriting, abandonment of the Scion near the Rancho Cucamonga meeting place, and the surgical gloves found on Mancio’s dresser.

C. Mancio Has Not Shown Her Attorney’s Failure To Object to Admission of Evidence of Her Possession of Additional Firearms Constituted Ineffective Assistance of Counsel
D.
Mancio contends her attorney’s failure to object to admission of evidence of Mancio’s ownership and purchase of an assault rifle and shotgun not used in the murder constituted ineffective assistance of counsel. The People respond that defense counsel could have had a tactical reason for not objecting to admission of the evidence because the evidence supported the defense theory Edwin was the experienced shooter and Mancio only purchased the guns for Edwin because she could pass the background checks. Because defense counsel may have had a tactical reason for not objecting to admission of the evidence, Mancio cannot meet her burden to show ineffective assistance of counsel.

1. Proceedings below
2.
During the trial, the People elicited testimony from Detective Shonka, without objection by Mancio’s attorney, Lawrence Strauss, that the LASD search team recovered a live shotgun cartridge from the Mancios’ residence. In addition, Detective Smith testified, without objection, that Mancio was attempting to buy an AR-15-style assault rifle at the Orlando gun show Mancio attended with Edwin. Detective Shonka testified Mancio was the registered owner of the same model firearm in California. There was no evidence connecting a shotgun or an assault rifle to Romero’s murder.

During his closing argument, the prosecutor noted the Mancio family used or had many firearms in their home: “She’s got shotgun shells. Are we suggesting that a shotgun was used to kill [Romero]? No, we are not. We are simply suggesting that there is great frequency of usage or at least a lot of firearms in this house.”

In his closing argument, Strauss focused extensively on the firearm evidence to point to Edwin or Pech as the shooter: “I’m not saying, you know, Edwin Mancio sent a rooster to kill the chicken, Romero. But, again, stranger things have happened but that’s not on me and it’s not my client, Ana Mancio. Now, somebody had a real interest in guns over at the Mancios. There was an assault rifle round that was left there, a shotgun shell, and a nine-millimeter magazine speed loader . . . . [S]omebody testified that they saw Edwin with a 9-millimeter . . .killing an animal . . . . There is no evidence of record that Edwin Mancio ever bought any guns himself so I think it’s reasonable to assume he was having his wife go for the background checks, buying the weapons here in California, and then later in Florida to try to get some more weapons.” Strauss also highlighted Detective Shonka’s testimony that the shooter had experience firing weapons.

3. Governing law
4.
“‘“To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant.”’” (People v. Rices (2017) 4 Cal.5th 49, 80; accord, People v. Mickel (2016) 2 Cal.5th 181, 198 (Mickel); see Strickland v. Washington (1984) 466 U.S. 668, 687-692.)

“On direct appeal, if the record ‘“sheds no light on why counsel acted or failed to act in the manner challenged,”’ we must reject the claim ‘“unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.”’” (People v. Caro (2019) 7 Cal.5th 463, 488 (Caro); accord, Mickel, supra, 2 Cal.5th at p. 198 [“[A] reviewing court will reverse a conviction based on ineffective assistance of counsel on direct appeal only if there is affirmative evidence that counsel had ‘“‘no rational tactical purpose’”’ for an action or omission.”]; see People v. Lopez (2008) 42 Cal.4th 960, 972 [“[E]xcept in those rare instances where there is no conceivable tactical purpose for counsel’s actions, claims of ineffective assistance of counsel should be raised on habeas corpus, not on direct appeal.”].)

We presume “that counsel’s actions fall within the broad range of reasonableness, and afford ‘great deference to counsel’s tactical decisions.’” (Mickel, supra, 2 Cal.5th at p. 198; accord, People v. Bell (2019) 7 Cal.5th 70, 125 [“‘Unless a defendant establishes the contrary, we shall presume that “counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.”’”].)

“[T]he decision to object or not object to the admission of evidence is inherently tactical, and a failure to object will seldom establish ineffective assistance.” (People v. Beasley (2003) 105 Cal.App.4th 1078, 1092; accord, Caro, supra, 7 Cal.5th at p. 514 [“The failure to object only rarely constitutes ineffective representation.”]; People v. Lopez, supra, 42 Cal.4th at p. 972 [“‘[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.’”].)

5. Defense counsel had a tactical reason for not objecting to admission of the evidence Mancio had additional firearms
6.
Strauss did not state his rationale for not objecting to admission of evidence of the additional firearms in the Mancio home or purchased by Mancio at the gun show. However, a central aspect of the defense strategy was to marshal the People’s evidence to support an inference Edwin or Pech (or both) committed the murder. In his closing argument, Strauss highlighted that Edwin was the one with shooting experience (having used his nine-millimeter gun to kill a bull), and it was Mancio’s role to purchase the guns to clear the background checks. To make this argument, Strauss relied on the evidence that Mancio purchased weapons at the gun show while Edwin was present. This also helped explain why the receipt for the Beretta in the Mancio’s home was in Mancio’s name.

Strauss laid the groundwork for his focus on Edwin as the shooter throughout the trial. In his cross-examination of Detective Shonka, he pushed her to admit the shooting of Romero was “not the kind of marksmanship you would expect to find with somebody that only occasionally fired a pistol . . . .” She answered affirmatively. In his closing, Strauss returned to the shooter’s marksmanship: “Detective Shonka indicated in honesty that the shooter was experienced and that this was a pretty good pattern. Good shooting for rapid fire. So I submit whoever opened up on Mr. Romero knew what they were doing and had experience firing weapons.”

On this record, it is reasonable to conclude Strauss’s failure to object to the testimony regarding Mancio’s purchase and possession of additional firearms was not an oversight or evidentiary error, but part of a strategic thread woven throughout the defense. Affording great deference to defense counsel, we cannot say Strauss had “‘“‘no rational tactical purpose’”’” for his failure to object to the evidence. (Mickel, supra, 2 Cal.5th at p. 198; accord, Caro, supra, 7 Cal.5th at p. 514.)

E. Remand Is Not Warranted for an Ability-to-pay Hearing on the Fines and Assessments Imposed by the Trial Court
F.
Mancio requests in her supplemental opening brief we remand the case for the trial court to conduct a hearing on Mancio’s ability to pay the $10,000 restitution fine, the parole revocation restitution fine in the same amount, the $40 court operations assessment, and $30 criminal conviction assessment. The People respond that Mancio has forfeited her constitutional challenges and she has not shown her inability to pay the fines and fees. The People also contend imposition of the fines and fees did not violate the excessive fines clause of the Eighth Amendment. We conclude Mancio forfeited any challenge to the restitution fines, and any error in not providing Mancio an ability-to-pay hearing as to the assessments was harmless because the record shows Mancio had the ability to pay $70 in assessments.

1. Dueñas and its progeny
2.
In Dueñas this court concluded “the assessment provisions of Government Code section 70373 and Penal Code section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair; imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution.” (Dueñas, supra, 30 Cal.App.5th at p. 1168; accord, People v. Belloso (2019) 42 Cal.App.5th 647, 654-655 (Belloso).) In contrast to court assessments, a restitution fine under section 1202.4, subdivision (b), “is intended to be, and is recognized as, additional punishment for a crime.” (Dueñas, at p. 1169; accord, Belloso, at p. 655.) Section 1202.4, subdivision (c), expressly provides a defendant’s inability to pay a restitution fine may not be considered as a “compelling and extraordinary reason” not to impose the statutory minimum fine. However, as this court held in Dueñas, to avoid the serious constitutional questions raised by imposition of such a fine on an indigent defendant, “although the trial court is required by . . . section 1202.4 to impose a restitution fine, the court must stay the execution of the fine until and unless the People demonstrate that the defendant has the ability to pay the fine.” (Dueñas, at p. 1172; accord, Belloso, at p. 655.)

As to Mancio’s Eighth Amendment challenge, in Belloso we rejected the argument “a constitutional challenge to imposition of fines and fees on an indigent defendant should be analyzed under an excessive fines analysis instead of a due process framework.” (Belloso, supra, 42 Cal.App.5th at p. 660.) We observed, “As the California Supreme Court explained in [People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728], in its analysis of the constitutionality of civil penalties imposed by the trial court, ‘It makes no difference whether we examine the issue as an excessive fine or a violation of due process.’” (Ibid.)

3. Mancio forfeited her challenge to imposition of the restitution fines, but not the assessments
4.
The People contend Mancio forfeited her challenge to imposition of the fines and fees because she did not assert her inability to pay at sentencing. However, at the time Mancio was sentenced, Dueñas had not yet been decided, and we have generally declined to find forfeiture based on a defendant’s failure to object to fines and fees prior to our opinion in Dueñas. As we explained in People v. Castellano (2019) 33 Cal.App.5th 485, 489 (Castellano), “[N]o California court prior to Dueñas had held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant’s ability to pay. . . . When, as here, the defendant’s challenge on direct appeal is based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial, reviewing courts have declined to find forfeiture.” (Accord, Belloso, supra, 42 Cal.App.5th at pp. 662; People v. Santos (2019) 38 Cal.App.5th 923, 931-932; People v. Johnson (2019) 35 Cal.App.5th 134, 137-138 (Johnson); contra, People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 [defendant forfeited challenge by not objecting to the assessments and restitution fine at sentencing]; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154 [same].)

Although Mancio had no basis prior to Dueñas to object to imposition of the assessments, she had a right to raise her inability to pay the restitution fines to the extent they exceeded the statutory minimum. (§ 1202.4, subd. (c) [“Inability to pay may be considered . . . in increasing the amount of the restitution fine in excess of the minimum fine . . . .”].) By failing to object to imposition of restitution fines exceeding the $300 statutory minimum, Mancio forfeited her right to challenge the restitution fines on appeal. (People v. Nelson (2011) 51 Cal.4th 198, 227 [defendant forfeited challenge to $10,000 restitution fine imposed under § 1202.4 by failing to object at his sentencing hearing]; People v. Taylor (2019) 43 Cal.App.5th 390, 400-401 [defendant forfeited objection to $10,000 restitution fine]; see People v. Aguilar (2015) 60 Cal.4th 862, 867-868 [defendant forfeited challenge to probation-related costs and reimbursement of attorneys’ fees by failing to object at sentencing].)

5. Any error in imposing $70 in court assessments without a determination of Mancio’s ability to pay was harmless
6.
Although Mancio did not forfeit her challenge to the trial court’s imposition of a $40 court operations assessment and a $30 criminal conviction assessment, any error in denying Mancio a hearing on her ability to pay was harmless beyond a reasonable doubt. (See Johnson, supra, 35 Cal.App.5th at pp. 139-140 [even if defendant was denied due process by trial court’s failure to consider his ability to pay $370 in fines and fees, any error was harmless beyond a reasonable doubt]; Chapman v. California (1967) 386 U.S. 18, 24.)

Mancio bears the burden of proof to show she was unable to pay the assessments. (People v. Santos, supra, 38 Cal.App.5th at p. 934; Castellano, supra, 33 Cal.App.5th at p. 490.) Even if Mancio had been afforded an ability-to-pay hearing, the record shows she had the ability to pay $70 in assessments. At the time of the offense, Mancio was employed as a licensed real estate agent, with at least one active listing, and a notary public; Edwin was employed in the livestock business and repaired fences; the Mancio family owned three cars, including the 2014 Scion TC Mancio and Edwin purchased for Tamara as a high school graduation present; the family owned multiple farm animals, including two horses and livestock; the Mancio family owned a single family home with space for their livestock; and all four family members had cell phones.

As the Court of Appeal in Johnson observed in concluding the defendant had the ability to pay $370 in fines and assessments based on evidence he was employed as a painter and a municipal cleaner, owned a cell phone, and paid for a hotel room on the night of the offense, “These are hardly indications of wealth, but there is enough evidence in the trial record to conclude that the total amount involved here did not saddle Johnson with a financial burden anything like the inescapable, government-imposed debt trap . . . Dueñas faced.” (Johnson, supra, 35 Cal.App.5th at p. 139.) In addition, Mancio was only 43 at the time of sentencing and had the ability to earn prison wages during her 25-year prison sentence. (See id. at p. 139; Castellano, supra, 33 Cal.App.5th at p. 490 [court may consider potential prison pay in determining ability to pay].) On this record, denial of an ability-to-pay hearing as to $70 in assessments is harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24; Johnson, at p. 140.)

DISPOSITION

The judgment is affirmed.

FEUER, J.

We concur:

ZELON, Acting P. J.

SEGAL, J