People v. Foalima

Filed 8/31/15

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE, C071581

Plaintiff and Respondent, (Super. Ct. No. 10F08038)

v.

DANIEL FIAMATAI FOALIMA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Sacramento County, Ernest W.

Sawtelle, Judge. Affirmed.

Madeline McDowell, under appointment by the Court of Appeal, for Defendant

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Caely

E. Fallini, Deputy Attorneys General, for Plaintiff and Respondent.

* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified

for publication with the exception of parts II, III, V, & VI.

1

Defendant Daniel Fiamatai Foalima appeals from his conviction of first degree

murder. He contends the trial court erred by: (1) refusing to strike a possible

accomplice’s testimony after the accomplice testified he did not know the answer to

most of the questions asked him; (2) instructing the jury on accomplice testimony;

(3) admitting evidence of media coverage of the murder to impeach a witness’s testimony

that was recorded in an earlier trial but admitted here; (4) ordering direct victim

restitution allegedly for a crime of which defendant was acquitted and that was not the

proximate cause of the victim’s damage; (5) imposing jail booking and classification

fines without determining defendant’s ability to pay; and (6) imposing restitution fines

without determining the defendant’s ability to pay.

We affirm the judgment in its entirety.

FACTS

The prosecution charged defendant with murder (Pen. Code, § 187, subd. (a)),1

second degree robbery (§ 211), and arson (§ 451, subd. (b)). The information alleged

defendant used a dangerous weapon (a knife) to commit the murder and the robbery (§

12022, subd. (b)(1)), and he committed the murder while committing the robbery (§

190.2, subd. (a)(17)).

The parties presented the following evidence at trial:

People’s case-in-chief

The events of August 6-7, 2010

Shalini Singh, the victim’s daughter, lived at the North Avenue Apartments in

Sacramento with her daughter, a roommate, and the roommate’s children. The victim,

Arun Singh (Singh), was 50 years old. He often visited Shalini and frequently stayed the

night at her apartment. Singh had been involved with drugs for the last 20 years.

1 Undesignated references to sections are to the Penal Code.

2

At approximately 10:00 p.m. on Friday, August 6, 2010, Shalini was in the

apartment complex’s hot tub with friends. While Shalini and her friends were in the hot

tub, defendant walked into the pool area and asked for a cigarette. Shalini and defendant

conversed, and she pointed out the location of her apartment.

Singh came to the pool area, and Shalini and he returned to her apartment. Singh

asked if he could stay the night. Shalini said yes, but she and her roommate would be

gone for the night. Singh left between 11:00 and 11:30 p.m. to get some food. Shalini

would not see him again alive.

Meanwhile, at approximately 10:15 p.m. on August 6, 2010, after he had spoken

with Shalini, defendant met Cindy Pau at the North Avenue Apartments. Pau had earlier

contacted defendant to buy ecstasy pills, and they negotiated the sale in her car at the

apartment complex. Defendant told Pau he would return with the drugs. Pau waited and

sent at least one text message to defendant. At 10:26 p.m., defendant sent a text message

to her saying he could not get the drugs. The apartment complex’s surveillance video

filmed Pau leave the complex at approximately 10:28 p.m.

The surveillance video filmed defendant and two others leaving the complex on

foot at 11:01 p.m. August 6, 2010, and returning at about 11:52 p.m. Defendant was

wearing a long white t-shirt. The video also filmed defendant and two others from 1:23

a.m. until 1:25 a.m. hanging out in the complex’s parking lot. In this later segment,

defendant was wearing a dark hooded sweatshirt and white tennis shoes.

Sometime after 2:00 a.m. on August 7, 2010, Shalini received a telephone call

from her upstairs neighbor. She learned her apartment was on fire and her father was

dead. Her father’s wallet and car keys were never found.

Shalini’s upstairs neighbor, Dion Brent, testified the complex’s fire alarm sounded

sometime after 2:00 a.m. Brent and his son entered Shalini’s apartment and saw a fire in

the living room. They attempted to put it out with a fire extinguisher. Others arrived and

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doused the fire with a water hose. Brent saw a body in the apartment’s living room. To

him, the body appeared not to have legs or arms. The fire department arrived at 2:50 a.m.

Quentin Watts and Lazarus Bolton shared an apartment at the North Avenue

Apartments. In the early morning hours of August 7, 2010, Watts returned home with his

friend Leonard Gray and some female friends. He noticed emergency vehicles in the

area. After he and his group went inside his apartment, a few others came in. In a later

interview with police, Watts told the detective one of the persons who had come in had

something on his hands that Watts believed was blood, and he didn’t want that person

reaching into the chips. In the same interview, Watts viewed a photo lineup and

identified defendant as the person who had blood on him. He also identified Laki Lee

Lopa and Fine Tupuo as two others that were with defendant. At trial, Watts could not

remember making these identifications.

Bolton, in a later interview with detectives, also identified defendant, Lopa, and

Tupuo as people who were inside his apartment or right outside his door the night of the

murder. Police investigators later determined defendant, Tupuo, and Lopa knew each

other. Tupuo lived at the North Avenue Apartments, and Lopa lived one block away.

Watts left his apartment about 45 minutes after he had arrived. As he left, he saw

a fire on a stairwell or landing area near his apartment that was smoldering. He walked

past the fire and left.

Investigations

Fire investigators viewed the apartment. The apartment’s front door had no

obvious signs of damage. The victim’s body was discovered in the living room.

Investigators observed water from the overhead sprinkler system on the floor, the victim,

and the furniture. They saw charring on the carpet, the victim, and some cushions. The

apartment appeared ransacked. Fires had also been started in two bedrooms. Two smoke

detectors were missing. The investigator determined the fires were deliberately set with

an open flame device and were incendiary in nature.

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Investigators also determined another fire had been deliberately set with an open

flame device on the landing of an exterior stairwell of another apartment building at the

North Avenue Apartments during the early morning hours of August 7, 2010.

Investigators collected charred, fabric remains of what appeared to have been a black

jacket.

Investigators found a broken knife blade underneath the victim’s body. The knife

contained the victim’s DNA, but no unknown profiles were found in the recovered DNA.

Fingerprints found in the apartment belonged to the victim or the apartment’s residents.

Heat, smoke, and fire can affect the recovery of fingerprints and DNA.

On August 9, 2010, fire investigators found two smoke detectors in a field

adjacent to the apartment complex. The victim’s DNA was recovered from one of the

smoke detectors.

The forensic pathologist determined the victim died from blunt force head injuries,

multiple stab wounds, and asphyxia by neck compression. The victim’s upper teeth,

nose, face bones, skull and larynx were fractured. His face “was basically caved in.” He

had numerous bruises and lacerations on his face, head, and neck. Some of the bruises

were “pattern” bruises, or a bruise caused by an object’s impact, with the object’s

impression marking the skin. There were three distinctive patterns on the victim’s head.

Some marks looked like the tread of a shoe. Elongated parallel marks went across the

right eyebrow. A patterned mark consisting of “concentricular” marks like a target in

three pairs existed on the scalp.

The victim was stabbed approximately 20 times in the back, neck, head, shoulder,

arm, jaw, and torso. Blunt force injuries and the stab wounds were inflicted

contemporaneously. The victim’s left hand had been cut off after he had died. His right

hand had cuts and hacks in what looked like an attempt to cut it off after he had died.

The fingernails were clipped short and did not extend to the fingertips. The victim’s

body had also been set on fire after he had died.

5

Natalie Jackson’s tip

In August of 2010, defendant and Natalie Jackson were “friends with benefits,”

and had contact with each other once a week.2 On the morning of August 16, 2010,

Jackson e-mailed law enforcement about the North Avenue Apartments murder. In her e-

mail, Jackson stated she had overheard “a guy that I know very well” talking about the

murder. She said there should be a bag with a hand and a knife in it by the freeway and

the apartment complex’s surrounding area, and she asked the police to search for it. She

also asked the police to check the victim’s fingernails for DNA, because he had scratched

the suspect a few times. She wanted the police to find this evidence before she gave them

the suspect’s name. If they took him in for questioning before then, he would know she

had something to do with it and her life would be in danger.

The police asked Jackson for more details. She wrote that she knew there was a

hand and a knife in a bag “near the [I]-80 freeway behind the apartments some where

around the field.” (Sic.) She also stated she believed the victim still had a hand attached

to him, and asked police to check his fingernails for DNA from the suspect. She again

would not release the suspect’s name.

Later that day, a detective spoke with Jackson by phone. Jackson repeated the

information she had given the police earlier. She also informed the detective that

defendant was the perpetrator. She had been at a party and overhead defendant and

others talking about the crime. She stated the victim had a history of selling drugs, and

defendant intended to rob him for ecstasy pills and maybe some marijuana. Jackson

spoke about the fire in the stairwell landing, and said defendant had taken off what he

was wearing and had burned it. She also said defendant had cut off the victim’s hand

2 Defendant underwent an earlier trial, but the court declared a mistrial because the

jury was deadlocked. Jackson testified at defendant’s first trial, but she was unavailable

to testify at the second trial. Her testimony from the first trial was read into the record.

6

because there had been an altercation and the victim had scratched him. Defendant had

not been sure which hand the victim used to scratch him.

On August 22, 2010, police found a human left hand in some bushes on the south

side of Interstate 80 and just northeast of the North Avenue Apartments. The parties

stipulated the hand belonged to the victim. Police also found two knives and a pair of

rolled up gloves in the same vicinity. The victim’s DNA was recovered from both

knives.

Defendant was arrested on August 25, 2010, for violating parole.

On August 30, 2010, Jackson attempted to recant her earlier information. She e-

mailed the police stating she had given them wrong information on the suspect: “I

thought I had the person but really was all rumors and I just over heard it. I hope I don’t

get in trouble for this, I was only trying to do the right thing and I’m sorry.”

At trial, Jackson testified she originally e-mailed police because she wanted a

reward. She did not know at the time if there was a reward and did not ask for one in the

e-mails. She stated she had lied in her earlier e-mails. She had not overheard anything

and had knowingly falsely accused defendant. She also was not afraid of defendant. She

nonetheless expected to get a reward if the police found the perpetrator. She claimed she

had called about a reward, but she did not remember with whom she spoke.

Jackson claimed the information she received about the murder came from rumors.

She said rumors about the murder were “everywhere” on MySpace, the news, and the

Internet. She could not name any person from whom she heard the rumors.

Jackson also testified she sent the e-mails to police because she did not like

defendant at the time. She was upset that he had “cheated” on her and impregnated a

woman named Laura Tautala. Defendant had also impregnated Jackson during the

summer of 2010 and had urged her to abort the baby, but did not make the same request

of Tautala. That upset Jackson. She accused defendant of committing the murder so she

7

could “get him back” from Tautala. She also believed defendant would think it funny she

had named him as a suspect in the murder.

Jackson denied she and defendant had a romance after he was placed in custody.

She thought they had talked between five and 10 times from August through September

2010. In fact, defendant called her 71 times from August 28 through September 22,

2010.

Additional investigation

After defendant’s arrest, law enforcement officers located a pair of shoes in the

trunk of a car belonging to defendant’s girlfriend Laura Tautala. The shoes were the

white and blue shoes defendant wore the night of the murder. One shoe tested positive

for blood on the side of its sole. Tiny blood stains were in the crevices of the left shoe’s

sole, which matched defendant’s DNA. Other stains on the shoe tested negative for

blood, but the results could have been affected if defendant washed the shoes.

A criminalist testified the pattern on the soles of the shoes defendant wore the

night of the murder was similar to a patterned bruise on the victim’s head. He concluded

the shoes could have made the pattern bruise and could not be eliminated as the bruise’s

source.

Defendant’s cell phone records placed him at the North Avenue Apartments on the

night of August 6, 2010, and the early morning of August 7, 2010. The records also

placed him at his parent’s house on the afternoon of August 8, 2010.

An analysis of a laptop computer taken from defendant’s parents’ house revealed

that during the afternoon of August 8, 2010, someone used the laptop to search the

Internet for “homicide on North Avenue, Del Paso Heights,” and “homicide on North

Avenue Apartments.”

8

Interviews with defendant

A detective interviewed defendant after he was arrested on August 25, 2010, for a

parole violation to ask him questions about the murder. The detective observed

defendant had scratches on his upper torso near his left shoulder and on his stomach. The

scratches were healing and did not appear to be fresh. Defendant initially claimed the

scratches were from riding a scooter, but he later said he did not know how he got them.

Defendant also mentioned he had been in a fistfight within the last month. Defendant

said he was alone in his apartment at the time of the murder and was asleep from 11:00

p.m., August 6, 2010, until about 8:00 or 9:00 a.m. the next morning. He had lost his cell

phone and could not account for the phone calls and text messages on his phone the night

of August 6, 2010. Defendant said he did not know where the North Avenue Apartments

were and had never been there. He said he did not learn anything about the murder from

the news and did not know anything specific about it. He also denied ever researching

the murder on a computer.

The same detective interviewed defendant again on October 29, 2010. The

detective informed defendant he had additional evidence that defendant had been at the

North Avenue Apartments the night of the murder and that he regularly visited the

complex. Defendant said he did not know anything, had nothing to say or explain, and

had nothing to do with the matter.

Media coverage

Prior to the second trial in 2012, an analyst from the District Attorney’s office

researched what information was publically available on the Internet between August 7,

2010, and August 16, 2010, that discussed the murder. He viewed Web sites such as

MySpace, Facebook, the Sacramento Bee, YouTube, and Google. The media coverage

reported the victim had been mutilated, dismembered, had his legs and arms cut off, or

had his hands and feet cut off. Police later reported the dismemberment had not been as

extensive as witnesses had reported, but they did not say what dismemberment had

9

occurred. The analyst found no public “personal chatter” about the murder between

individuals on social media sites. He could not search private conversations or posts.

Defense

Defendant testified at trial. He served a prison term for shooting into an inhabited

dwelling. He was released on parole on July 6, 2010, 31 days prior to Singh’s murder.

He started selling drugs within a couple of days after his release. He also drank alcohol

often and openly in violation of his parole conditions.

Defendant was friends with Laki Lee Lopa and Fine Tupuo.3 Tupuo lived at the

North Avenue Apartments. On the evening of August 6, 2010, defendant was hanging

out and drinking malt liquor at the North Avenue Apartments with Tupuo and others. He

spoke with Shalini Singh at the hot tub and asked her for a cigarette. She gave him one.

That same night, he agreed to sell Cindy Pau some ecstasy. She met him at the

apartment complex, and they negotiated the drug sale in her car. After he got out of

Pau’s car, he met with “AB” and another person about a block away from the apartments

to purchase the drugs. He got into a “scuffle” with AB’s companion, and ended up with a

bloody nose. He cleaned himself back at Tupuo’s apartment, including his shoes, which

had blood on them.

He then ran into Quentin Watts and “some girls.” He and Tupuo went to Watts’s

apartment and hung out with the girls. He did not have blood on his hands while he was

there. When he left the apartment, he saw a fire on a landing and walked around it. He

also saw police officers and firemen at the other side of the complex. He went to Lopa’s

house and spent the night there by himself.

3 Lopa was deceased by the time of trial.

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Defendant denied killing or injuring the victim. He denied saying there were

knives and a hand in the field. He denied telling Jackson he took part in a murder. He

admitted looking on the Internet for information about the murder.

Defendant admitted lying to law enforcement about never having been to the

North Avenue Apartments, his whereabouts on the night of the murder, his residence,

whether he researched the murder, and where his cell phone was.

He agreed he and Jackson were “friends with benefits.” While he was in custody

in and around 2009 and 2010, they corresponded and she put money in his prison

account. After he was released from custody in 2010, he impregnated Tautala and

Jackson. He encouraged Jackson to get an abortion, but she did not take that well. After

returning to custody in August 2010, he contacted Jackson more than 70 times through

September. He wanted her to “be there” while he was incarcerated, and he wanted her to

believe they had a future together.

Rebuttal

The prosecution called Fine Tupuo as a witness on rebuttal and granted him use

immunity.4 Tupuo said he did not know the answers to many of the questions asked him.

He did state he did not know defendant and had never met him. Tupuo had lived at the

North Avenue Apartments in August 2010. He did not know that while he lived at the

North Avenue Apartments that a person had been murdered there.

Judgment

The jury convicted defendant of first degree murder, but acquitted him of second

degree robbery and arson. The jury also found not true the enhancement allegations

alleged against the murder count.

4 Use immunity prevents law enforcement officers from using the witness’s

testimony, or its fruit, in a subsequent prosecution of the witness. (People v. Defreitas

(1983) 140 Cal.App.3d 835, 837; § 1324.)

11

The trial court sentenced defendant to a prison term of 25 years to life. It imposed

direct victim restitution in the amount of $13,700, which included $4,500 for Shalini’s

damaged clothing and household goods. The court also imposed a $10,000 restitution

fine under section 1202.4, subdivision (b), and stayed a parole revocation restitution fine

of $10,000 under section 1202.45.

DISCUSSION

I

Fine Tupuo’s Testimony

Defendant contends the trial court violated his Sixth Amendment right to

confrontation when it refused to strike Fine Tupuo’s testimony and permitted the

prosecution to make inferences from the testimony during closing argument. We

disagree, as defendant was given an opportunity to cross-examine Tupuo, which is what

the Constitution requires when a witness incurs a loss of memory. That counsel chose

not to take advantage of the opportunity is not court error.

A. Background information

Witnesses, including defendant, testified Tupuo was with defendant during the

night of the murder. The prosecution called Tupuo to testify in rebuttal. The prosecution

gave him use immunity for his testimony. On direct examination, Tupuo answered, “I

don’t know” or “I don’t remember” to most of the prosecutor’s questions. For example,

when asked if he was currently serving prison time for a first degree burglary conviction,

Tupuo said he did not know about it.

Tupuo stated he did not know if he knew defendant and did not know him by his

name. He had never met defendant. He acknowledged he had lived in the North Avenue

Apartments in August 2010, but when asked if defendant had ever visited him there, he

said, “I don’t know.” The prosecutor informed Tupuo that defendant had said he visited

him at least twice a week, and he asked Tupuo if that refreshed his recollection of

12

whether defendant had visited him. Tupuo said, “Probably did. Probably not. I don’t

know.”

Tupuo said he did not know if there had been a fire in one of the apartments or if

someone had been murdered there. When asked if he recalled fire engines coming to the

apartment complex on Saturday, August 7, 2010, he answered, “I don’t know.”

When asked if the prosecutor’s investigator and the defendant’s investigator had

interviewed him within the last week or so, Tupuo said, “Probably.” However, he did not

remember telling the investigators he had been at Lopa’s house, heard the sirens, or saw

the fire engines go by on the way to the apartment complex.

When asked if defendant obtained a dark sweater or jacket with a hood from

Tupuo’s apartment, Tupuo answered, “Probably did. Probably. No, I don’t know.” He

did not remember owning a dark sweat jacket with a hood. He did not know if he walked

with defendant to AM/PM to buy more beer. He did not want his statement to the

defense investigator read back to him to refresh his memory.

Tupuo did not remember telling the defense investigator he was not with

defendant the night of August 6 and morning of August 7, 2010. He did not remember

telling the defense investigator that he was at Lopa’s place sleeping by himself through

the early morning hours of August 7.

Tupuo could not remember telling the prosecution’s investigator that he left the

North Avenue Apartments in the early morning hours of August 7 and left defendant

behind. He also could not remember telling the defense investigator that he was at the

hot tub area drinking beers earlier on the evening of August 6, 2010.

Tupuo could not remember moving out of the North Avenue Apartments, but he

said he moved into a “house with [] wood” on a street named Ethan by the Arden area.

Asked if he was with defendant the night of the murder, Tupuo said he did not remember.

He also did not know if defendant had been in his apartment the night of August 6 at

different times.

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Defense counsel’s entire cross-examination of Tupuo went as follows:

“Q If I ask you any questions are you going to know anything?

“A No.

“[Defense counsel]: No further questions.”

Defendant moved to strike Tupuo’s testimony. He claimed he was denied his right

to cross-examine Tupuo because Tupuo said he would not know anything if he was asked

a question and was therefore unavailable to be cross-examined. Defendant asked the

court to admonish the jury not to consider Tupuo’s testimony. He also asked the court to

prohibit the prosecutor from arguing any inferences from Tupuo’s testimony in his

closing argument.

The trial court denied the motion. The court acknowledged Tupuo was not a

cooperative witness. However, Tupuo answered some of the questions put to him.

Moreover, defense counsel did not “actually make any attempt” to ask Tupuo questions.

The court could not find Tupuo would have refused to answer any of defense counsel’s

questions because counsel did not in fact ask him any other than the one question which

all but required a simple, predictable answer.

The trial court also refused to prohibit the prosecution from arguing inferences

from Tupuo’s testimony. Based on the evidence that defendant and Tupuo were together

the night of the murder at the apartment complex, the prosecution could infer Tupuo was

an accomplice and that he refused to give helpful answers in order to protect his friend or

not to incriminate himself, even though he had immunity. Those were reasonable

arguments the prosecution could make to the jury regarding Tupuo’s motivation for

testifying as he did.

During closing argument, the prosecutor asserted defendant believed he was

“untouchable,” in part because residents of the apartment complex, including Tupuo,

would not testify against him. Even when given immunity, Tupuo would not confirm

defendant’s story that the two of them were together the night of the murder drinking

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beer, and that defendant had a fight and cleaned himself up at Tupuo’s apartment.

Instead, Tupuo denied even knowing defendant.

The prosecutor continued: “[Y]ou might think well, that was kind of worthless. I

didn’t get much out of him. [¶] But actually, you got a lot out of Mr. Tupuo because it

makes you think what’s going on? Because Mr. Tupuo, what’s up with a guy that is

given a free pass, immunity, and asked questions about that night that says he can’t

remember anything and won’t even acknowledge that [defendant], who visits him twice a

week and was staying at his place, is his friend? [¶] Because he doesn’t want to be a

snitch. Doesn’t want to be involved. The three of them are together all night. We’ve got

one of ‘em right here. [¶] We’ve brought the other one in front of you. He doesn’t even

want to be with him. That should let you know everything you need to know about

[defendant].”

B. Analysis

Defendant contends the trial court erred by refusing to strike Tupuo’s testimony

and by allowing the prosecution to argue inferences from his testimony. He asserts

questioning an obdurate person who does not remember anything substantive is

equivalent to questioning a witness who refuses to testify at all and thus violates his right

to confrontation. We disagree.

We review the trial court’s denial of defendant’s motion to strike for an abuse of

discretion. (People v. Price (1991) 1 Cal.4th 324, 422.)

The Sixth Amendment right of confrontation secures a defendant’s right of cross-

examination. (Douglas v. Alabama (1965) 380 U.S. 415, 418 [13 L.Ed.2d 934, 937].)

The right of confrontation “has long been read as securing an adequate opportunity to

cross-examine adverse witnesses.” (United States v. Owens (1988) 484 U.S. 554, 557 [98

L.Ed.2d 951, 958] (Owens).) “ ‘[T]he Confrontation Clause guarantees only “an

opportunity for effective cross-examination, not cross-examination that is effective in

15

whatever way, and to whatever extent, the defense might wish.” ’ [Citations.]” (Owens,

supra, 484 U.S. at p. 559, original italics.)

That opportunity may be denied if a witness refuses to answer questions, but it is

not denied if a witness cannot remember. A witness who “refuses to answer any question

on direct or cross-examination denies a defendant the right to confrontation which

contemplates a meaningful opportunity to cross-examine the witness. [Citations.]”

(People v. Rios (1985) 163 Cal.App.3d 852, 864, fn. omitted; People v. Murillo (2014)

231 Cal.App.4th 448, 455-456 (Murillo) [witness’s refusal on cross-examination to

answer over 100 leading questions while the prosecutor read the witness’s prior statement

to police denied defendant his right of confrontation].)

By contrast, a witness who suffers from memory loss – real or feigned – is

considered “subject to cross-examination” because his presence and responses provide

the “jury with the opportunity to see [his] demeanor and assess [his] credibility.” (People

v. Gunder (2007) 151 Cal.App.4th 412, 420, (Gunder ) [“The circumstance of feigned

memory loss is not parallel to an entire refusal to testify”]; Owens, supra, 484 U.S. at p.

559 [opportunity to cross-examine not denied where witness suffers from memory loss].)

Owens addressed the scope of the right of cross-examination granted to

defendants. In that case, the assault victim, who suffered memory loss from the assault,

testified he remembered identifying defendant as his assailant in an interview with an FBI

agent. On cross-examination, the victim stated he could not remember seeing his

assailant at the time of the assault and could not remember a number of persons who

visited him in the hospital, although there was evidence he had received numerous

visitors. Defense counsel was unable to refresh the victim’s recollection. (Owens, supra,

484 U.S. at p. 556.) Defendant claimed on appeal he was denied the right to an effective

cross-examination.

The United States Supreme Court found no constitutional violation, ruling

memory testing was not essential to an opportunity for effective cross-examination. The

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high court wrote the constitutionally guaranteed opportunity to cross-examine witnesses

“is not denied when a witness testifies as to his current belief but is unable to recollect the

reason for that belief. It is sufficient that the defendant has the opportunity to bring out

such matters as the witness’ bias, his lack of care and attentiveness, his poor eyesight, and

even (what is often a prime objective of cross-examination, [citation]) the very fact that

he has a bad memory. [The] ability to inquire into these matters suffices to establish the

constitutionally requisite opportunity for cross-examination when a . . . witness’ past

belief is introduced and he is unable to recollect the reason for that past belief. . . . The

weapons available to impugn the witness’ statement when memory loss is asserted will of

course not always achieve success, but successful cross-examination is not the

constitutional guarantee.” (Owens, supra, 484 U.S. at pp. 559-560.)

This court followed Owens in Gunder. There, a prosecution witness, a long-time

friend of the murder defendant, testified he could not remember events on the night

before the murders. The prosecution then played for the jury a video of the witness’s

earlier statement to police describing the events he claimed to have forgotten. On appeal,

the defendant argued his trial counsel rendered ineffective assistance when he did not

assert a violation of defendant’s confrontation right. (Gunder, supra, 151 Cal.App.4th at

pp. 417-418.)

We concluded defendant was not denied his confrontation right. We rejected the

defendant’s reliance on cases in which a witness’s refusal to testify violated a defendant’s

right of confrontation. (Gunder, supra, 151 Cal.App.4th at p. 419.) Relying on Owen,

we stated: “The circumstance of feigned memory loss is not parallel to an entire refusal

to testify. The witness feigning memory loss is in fact subject to cross-examination,

providing a jury with the opportunity to see the demeanor and assess the credibility of the

witness, which in turn gives it a basis for judging the prior hearsay statement’s

credibility.” (Id. at p. 420.)

17

Owens’s and Gunder’s reasoning applies here. Tupuo’s asserted inability to recall

or remember most of the events about which he was questioned did not by itself deny

defendant an opportunity to cross-examine him. The jury had the opportunity to see

Tupuo’s demeanor and assess his credibility. Tupuo’s “ ‘presence at trial as a testifying

witness gave the jury the opportunity to assess [his] demeanor and whether any

credibility should be given to [his] testimony or [his] prior statements. This was all the

constitutional right to confrontation required.’ [Citation.]” (People v. Homick (2012) 55

Cal.4th 816, 861, quoting People v. Perez (2000) 82 Cal.App.4th 760, 766.)

We also note that defendant declined to exercise his opportunity to cross-examine

Tupuo. The trial court reasonably held it could not determine if defendant had been

denied his right to cross-examine Tupuo because defense counsel did not cross-examine

him. Counsel asked only whether Tupuo would know anything if he was asked a

question. Simply asking Tupuo if he would know anything did not establish Tupuo was

effectively unavailable as a witness. Defendant had the opportunity the Sixth

Amendment gave to him as declared by Owens, and he did not take advantage of it. That

tactical choice does not constitute constitutional error.

In correspondence after briefing was completed, defendant asserted Murillo,

supra, 231 Cal.App.4th 448, was relevant to his case. Murillo is distinguishable because

it concerned a refusal to answer, not a loss of memory. In that case, a witness, who

identified the defendant before trial in a photographic lineup, refused to answer questions

at trial. His identification to police was the only eyewitness identification of the

defendant. The trial court allowed the prosecution to ask the witness 110 leading

questions concerning the details of his out-of-court statement and identification. In

response to each of the prosecutor’s questions, the witness said he had “ ‘nothing to

say’ ” or did not respond. (Id. at pp. 450-451.) The trial court allowed the prosecutor to

display the photographic lineup on which the witness had circled defendant’s photo,

along with other photos of the witness himself. The witness refused to answer any

18

questions about these exhibits. The court instructed the jury that the prosecutor’s

questions were not evidence, and the only facts from the testimony the jury could

consider were the witness’s physical appearance and his refusals to answer. (Id. at pp.

451-452.)

Division Six of the Second District Court of Appeal ruled the prosecutor’s detailed

questions to the witness, and the witness’s refusal to answer the leading questions while

the prosecutor read to the jury from his police interviews, denied the defendant the

opportunity to cross-examine on what was “tantamount to devastating adverse

testimony.” (Murillo, supra, 231 Cal.App.4th at p. 456.) Quoting from Douglas v.

Alabama, supra, 380 U.S. at page 420, the court stated effective confrontation of the

witness was possible “ ‘only if [he] affirmed the statement as his.’ [Citation.]” (Murillo,

supra, at p. 456.) Because the witness did not, inferences from his refusal “ ‘ “added

critical weight to the prosecution’s case in a form not subject to cross-examination, and

thus unfairly prejudiced the defendant.” ’ [Citation.]” (Ibid.)

The Murillo court stated: “[T]here is a point at which the prosecutor’s leading

questions are tantamount to evidence and overpower the proceedings so that the resulting

prejudice is incurable by admonition or instruction. [Citation.]” (Murillo, supra, 231

Cal.App.4th at p. 457.) The case before us, however, did not reach that point. Tupuo did

not refuse to answer. He claimed loss of memory, and that did not deny defendant an

opportunity to cross-examine him or to observe his demeanor and weigh his credibility.

In addition, the prosecutor’s questions here did not become tantamount to

evidence. None of the prosecutor’s questions became significant testimony adverse to

defendant. If they would have been answered in the affirmative, the questions would

have established, at best, that Tupuo was at the apartment complex in the early evening

hours of August 6, 2010, but not later. Such evidence would have added very little to the

case against defendant.

19

Defendant also spends much of his opening brief arguing against People v. Lopez

(1999) 71 Cal.App.4th 1550, 1553-1554 (Lopez), in which the Court of Appeal for the

Fourth District held that a person who refused to testify under the Fifth Amendment when

he actually had no Fifth Amendment right could be called to testify, and, if the witness

still refused to testify, the jury could draw inferences from his refusal to testify. Lopez

does not apply here, as Tupuo did not refuse to testify. He testified he did not remember

or know about some of the matters raised in the prosecutor’s questions, but he did not

refuse to testify or claim he had a right to refuse to testify. He answered the questions,

and defendant was free to cross-examine him on those answers and impeach his

credibility. That was defendant’s right under the Sixth Amendment, and nothing the trial

court did denied him of that right. The court did not abuse its discretion denying

defendant’s motion to strike and allowing the prosecutor to argue inferences from

Tupuo’s testimony.

II

Instruction on Accomplice Testimony

Defendant contends the trial court erred when it instructed the jury using a

modified version of CALCRIM No. 334, an instruction on accomplice testimony. He

asserts giving the instruction violated his due process rights because (1) insufficient

evidence supported giving the instruction based on the prosecution’s theory that Tupuo

was an accomplice; (2) the instruction lightened the prosecution’s burden of proof; and

(3) the instruction unduly favored the prosecution. We disagree. Sufficient evidence

obligated the court to give the instruction.

A. Background information

The trial court proposed instructing the jury with a modified version of CALCRIM

No. 334. It proposed to modify the instruction by removing the statement that the

defendant had the burden of proving the witness was an accomplice. The prosecutor

supported giving the modified instruction. He contended Tupuo was in fact an

20

accomplice, and he intended to argue from Tupuo’s testimony that Tupuo was covering

up for defendant, his friend.

Defendant opposed giving the instruction. He acknowledged the instruction was

to protect him, but he asserted Tupuo gave no testimony on which he could be found to

be an accomplice. He believed giving the instruction would make it appear to the jury

the court agreed with the prosecutor’s theory that Tupuo was an accomplice, and such a

tacit agreement would lessen the prosecution’s burden of proof.

The trial court disagreed with defendant. It stated the instruction was neutral, or,

in other words, did not convey a particular position. The court also stated the instruction

was to protect defendant by requiring corroboration of accomplice testimony before the

jury could use it against him. The court stated it would further instruct the jury that not

all instructions apply depending upon the jury’s findings. Finally, the court believed it

could be error if it did not give the instruction. Out of an abundance of caution, it

decided to give the instruction.

Removing any reference to the defendant having the burden to prove Tupuo was

an accomplice, the trial court instructed the jury in pertinent part as follows:

“Before you may consider the testimony of Fine Tupuo as evidence against the

defendant, you must decide whether Fine Tupuo was an accomplice to the crimes

charged. [¶] . . . [¶]

“If you decide that a witness was not an accomplice, then supporting evidence is

not required and you should evaluate his testimony as you would that of any other

witness.

“If you decide that a witness was an accomplice, then you may not convict the

defendant [of] any of the crimes or allegations charged or any lessers based on his

testimony alone. [¶] . . . [¶]

“Any testimony of an accomplice that tends to incriminate the defendant should be

viewed with caution. [¶] You may not however arbitrarily disregard it. [¶] You should

21

give that testimony the weight you think it deserves after examining it with care and

caution and in the light of all the other evidence.”

B. Analysis

Defendant contends the trial court gave the accomplice instruction not based on

sufficient evidence, but simply on the prosecutor’s unsupported theory that Tupuo was an

accomplice. We disagree with this argument, as substantial evidence supported the

prosecutor’s theory that Tupuo was an accomplice.

“ ‘[W]hen there is sufficient evidence that a witness is an accomplice, the trial

court is required on its own motion to instruct the jury on the principles governing the

law of accomplices,’ including the need for corroboration. [Citations.]” (People v.

Tobias (2001) 25 Cal.4th 327, 331.) When the prosecution alone calls an accomplice or a

person whom the jury might determine to be an accomplice to testify, the court must give

the instruction on its own motion. (People v. Guiuan (1998) 18 Cal.4th 558, 566-567.)

An accomplice is a person “who is liable to prosecution for the identical offense

charged against the defendant on trial in the cause in which the testimony of the

accomplice is given.” (§ 1111.) To be chargeable as an accomplice the witness must be

a principal under section 31. (People v. Whalen (2013) 56 Cal.4th 1, 58-59 (Whalen),

cert. denied sub nom. Whalen v. California (2013) 134 S.Ct. 183 [187 L.Ed.2d 125].)

Section 31 defines principals as “[a]ll persons concerned in the commission of a

crime, . . . whether they directly commit the act constituting the offense, or aid and abet

in its commission . . . .” (§ 31.) “ ‘Unless there can be no dispute concerning the

evidence or the inferences to be drawn from the evidence, whether a witness is an

accomplice is a question for the jury.’ ” (Whalen, supra, 56 Cal.4th at p. 59, quoting

People v. Williams (2008) 43 Cal.4th 584, 636.)

Here, sufficient evidence indicated Tupuo could be liable for the murder as a

principal and justified the trial court giving the accomplice instruction. Tupuo lived in

the North Avenue Apartments and was friends with defendant and Laki Lee Lopa.

22

Quentin Watts and Lazarus Bolton told police officers that defendant, Tupuo, and Lopa

came into their apartment sometime after midnight the morning of the murder.

Surveillance video from cameras at the North Avenue Apartments depicted defendant

with two other individuals at the complex around 11:52 p.m. and 1:23 a.m. Law

enforcement recovered two different knifes that carried the victim’s DNA. The victim

was stabbed 20 times and suffered numerous blunt force injuries contemporaneously.

The force injuries formed three distinctive patterns. This evidence suggests more than

one person may have committed the murder. Even defendant testified he and Tupuo

were friends and were together that night. By showing more than one person likely

committed the murder, that Tupuo and defendant were friends, and they were together at

the apartment complex around the time of the murder, the evidence suggested Tupuo was

a principal and required the trial court to give the accomplice instruction.

Defendant, however, claims the court, by giving the instruction, lessened the

prosecution’s burden of proof. He asserts the instruction required the jury, in order for it

to decide if Tupuo was an accomplice, to determine first that defendant was guilty of

committing the murder. As a result, any protection the instruction might provide

defendant was lost.

We disagree. The instruction does not require the jury to determine the defendant

is guilty before determining whether the witness is an accomplice. The instruction

requires the jury to review all of the facts to determine first whether the witness was

liable as a principal. This could occur if the witness committed the crime without

defendant’s assistance, or if the witness aided and abetted defendant or someone else in

committing the crime. The jury’s initial focus under the instruction is on the witness, not

the defendant.

Once the jury determines the witness is an accomplice, the instruction does not

lessen the prosecution’s burden or otherwise favor the prosecution. Rather, it imposes a

higher burden of production on the prosecution. The accomplice’s testimony cannot be

23

used against the defendant unless other evidence that tends to connect the defendant to

committing the offense corroborates it. (§ 1111.) The instruction thus protects a

defendant, and in this case, the trial court provided that protection without requiring the

defendant to prove the witness was an accomplice. Under these circumstances, the

instruction did not direct the jury to presume defendant was guilty and it restricted the

prosecution’s use of Tupuo’s testimony. Consequently, the instruction did not lessen the

prosecution’s burden or favor the prosecution above defendant.

III

Admission of Evidence of the Media’s Coverage of the Murder

Defendant contends the trial court erred when it admitted evidence of news media

about the murder. The prosecution sought to admit the evidence to impeach Natalie

Jackson’s earlier testimony. Defendant asserts the evidence was not relevant, and its

admission violated his constitutional rights of due process and confrontation. We

disagree. The evidence was relevant, it was not prejudicial, and its admission for

impeachment and not for the truth of the matter did not violate defendant’s confrontation

rights.

A. Background information

In defendant’s first trial, Jackson testified she learned of the bag with a hand and

knife in it and the need to check the victim’s fingernails for DNA from rumors that were

“everywhere.” “It was on MySpace. It was on the news. It was on the Internet.” She

did not know the individual names of persons who posted the information on MySpace or

the names of people from whom she heard the rumors.

In 2012 before the second trial, the prosecution obtained copies of news articles

and television reports about the murder that had been published, posted on the Internet, or

broadcast in August 2010. None of these reports contained the detailed information

Jackson claimed she had learned from various media that only one hand had been cut off.

Some reported witnesses as saying the victim’s hands and feet, or arms and legs had been

24

cut off. Others confirmed there had been mutilation, but they reported that police sources

stated the victim had not been dismembered to the extent reported by witnesses. The

police sources gave no additional information.

The prosecution sought to admit this evidence to impeach Jackson’s testimony that

she obtained her detailed information from the news and the Internet. The evidence

would show Jackson did not obtain her information from some of the sources she

claimed. The prosecution was not offering the evidence for its truth, but rather to show

that what Jackson said about the murder was not in the public domain as she claimed it

was. The evidence bolstered the prosecution’s argument that she heard the information

directly from defendant.

Defendant objected to admitting the evidence. He argued the evidence was not

relevant and would not impeach Jackson, as she did not name a particular news source

from which she heard the information. He also contended the evidence was unduly

prejudicial under Evidence Code section 352, and it violated his confrontation rights.

The trial court ruled the evidence was admissible. The court found the evidence

was relevant because it would eliminate at least two possible sources from which she

claimed she had received her information. The evidence was not unduly prejudicial, as

neither of the parties contested parts of the stories that were correct or that parts that were

incorrect were in fact incorrect. Admitting the evidence also did not violate defendant’s

confrontation rights, as the evidence was not being admitted for the truth of the matter.

After the evidence was admitted, the court instructed the jury the evidence was not

admitted for its truth, but rather only to evaluate Jackson’s testimony where she stated

she heard information about the case in part from the news. The jury was directed not to

consider the evidence for any other purpose.

B. Analysis

Defendant contends the court erred by admitting the evidence. As he did at trial,

he asserts the evidence was not relevant and would not impeach Jackson, was unduly

25

prejudicial, and that its admission violated his constitutional right to confrontation. We

disagree. A trial court’s admission of evidence is reviewed for an abuse of discretion.

(People v. Tuggles (2009) 179 Cal.App.4th 339, 361.) The court did not abuse its

discretion in this instance.

First, the evidence was relevant. “[R]elevant evidence is evidence ‘having any

tendency in reason to prove or disprove any disputed fact that is of consequence to the

determination of the action.’ [Citation.]” (People v. Jablonski (2006) 37 Cal.4th 774,

821, quoting Evid. Code, § 210.) The evidence tended to disprove Jackson’s assertion

that she learned the detailed information about the murder from news and media sources,

as some of the local media Jackson relied upon that reported the crime did not divulge the

information Jackson possessed. That the evidence did not show whether Jackson

obtained the information from MySpace or other Internet messaging sites, and that it was

obtained two years after the crime, did not render the evidence irrelevant. Those issues

went to the evidence’s weight, which the jury could decide.

Second, the evidence was not unduly prejudicial. Defendant contends the

evidence, by eliminating only public media sources and not private ones, had minimal

probative value. He claims its admission unduly prejudiced him, as Jackson’s testimony

was the only evidence linking him to the murder, and it was crucial for his case that the

jury did not believe her.

Defendant misunderstands the prejudice Evidence Code section 352 is designed to

prevent. “The prejudice that [Evidence Code] section 352 ‘ “is designed to avoid is not

the prejudice or damage to a defense that naturally flows from relevant, highly probative

evidence.” [Citations]. “Rather, the statute uses the word in its etymological sense of

‘prejudging’ a person or cause on the basis of extraneous factors. [Citation.]”

[Citation.]’ [Citation.] In other words, evidence should be excluded as unduly

prejudicial when it is of such nature as to inflame the emotions of the jury, motivating

them to use the information, not to logically evaluate the point upon which it is relevant,

26

but to reward or punish one side because of the jurors’ emotional reaction. In such a

circumstance, the evidence is unduly prejudicial because of the substantial likelihood the

jury will use it for an illegitimate purpose.” (Vorse v. Sarasy (1997) 53 Cal.App.4th 998,

1009.)

The trial court was well within its discretion to hold the evidence was not

prejudicial under Evidence Code section 352. The media reports admitted into evidence

likely did not inflame the jurors’ emotions and motivate the jurors to punish defendant

based on their emotional reaction. The reports showed no graphic images and were

written and presented in a professional manner. They noted a witness’s earlier comments

that the victim’s arms and legs were amputated were corrected by the police spokesman,

who stated the mutilation was not so extreme. The evidence was limited in scope and

took only a few minutes of trial to present. There was little likelihood the jury would

have misused this evidence.

Third, defendant asserts admitting the evidence violated his right of confrontation

because Jackson was not confronted with this evidence in the first trial, and he did not

have an opportunity to confront Jackson with the evidence in the second trial, where she

was an unavailable witness. We disagree with this contention, as the right of

confrontation does not extend to nonhearsay testimony admitted to impeach an

unavailable witness’s earlier testimony.

Pursuant to Evidence Code section 1202, “[e]vidence of a statement or other

conduct by a declarant that is inconsistent with a statement by such declarant received in

evidence as hearsay evidence is not inadmissible for the purpose of attacking the

credibility of the declarant though he is not given and has not had an opportunity to

explain or to deny such inconsistent statement or other conduct. Any other evidence

offered to attack or support the credibility of the declarant is admissible if it would have

been admissible had the declarant been a witness at the hearing. . . .” (Italics added.)

27

Here, there is no doubt the media evidence would have been admissible to

impeach Jackson’s testimony had she testified at the second trial, and thus it was

admissible in her absence under Evidence Code section 1202. The admission of the

evidence for impeachment, and not for the truth of the matter, does not violate a

defendant’s confrontation rights. (See People v. Blacksher (2011) 52 Cal.4th 769, 808

[“the confrontation clause does not prohibit the prosecution from impeaching the former

testimony of its own unavailable witnesses with [her] inconsistent statements, provided

those statements are admitted only for impeachment purposes”].)

The media evidence was relevant, was not unduly prejudicial, and did not violate

any confrontation right. The trial court did not abuse its discretion admitting it.

IV

Victim Restitution

Defendant contends the trial court erred in requiring him to make victim restitution

under section 1202.4. He asserts the order is erroneous because (1) the jury acquitted

him of committing arson, the crime that directly caused the economic damage; (2) related

to the first point, his conduct of murdering the victim was not the proximate cause of the

damage; and (3) the court violated his Sixth and Fourteenth Amendment rights under

Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) to have a jury

determine victim restitution. We disagree. Defendant’s conduct was a proximate cause

of the economic loss, and Apprendi does not apply to direct restitution orders.

A. Background information

At sentencing, the trial court ordered defendant to pay direct restitution to the

victim’s daughter, Shalini, in the amount of $13,700. $4,500 of that amount was to

reimburse Shalini for the clothing and household items destroyed in the fire.

At a restitution hearing, defendant challenged the direct restitution order to the

extent it required him to pay the $4,500. He contended he was not obligated to pay for

items destroyed in the fire because the jury had acquitted him of committing arson.

28

The trial court disagreed with defendant. The court ruled that although the jury

acquitted defendant of arson, the entire circumstances surrounding the murder made

restitution appropriate because the fire was set to destroy evidence of the murder. The

court imposed the $4,500 as part of the direct restitution order.

B. Analysis

We review the trial court’s restitution order for abuse of discretion. (Luis M. v.

Superior Court (2014) 59 Cal.4th 300, 305.)

The California Constitution expresses “the unequivocal intention of the People of

the State of California that all persons who suffer losses as a result of criminal activity

shall have the right to seek and secure restitution from the persons convicted of the

crimes causing the losses they suffer.” (Cal. Const., art. I, § 28, subd. (b)(13)(A).)

“Restitution shall be ordered from the convicted wrongdoer in every case, regardless of

the sentence or disposition imposed, in which a crime victim suffers a loss.” (Cal. Const.,

art. I, § 28, subd. (b)(13)(B).)

Section 1202.4 implements this constitutional mandate. That statute expresses the

Legislature’s intent “that a victim of crime who incurs an economic loss as a result of the

commission of a crime shall receive restitution directly from a defendant convicted of

that crime.” (§ 1202.4, subd. (a)(1).) Except in circumstances not relevant here, “in

every case in which a victim has suffered economic loss as a result of the defendant’s

conduct, the court shall require that the defendant make restitution to the victim or

victims in an amount established by court order, based on the amount of loss claimed by

the victim or victims or any other showing to the court. . . .” (§ 1202.4, subd. (f).) To the

extent possible, the restitution order “shall be of a dollar amount that is sufficient to fully

reimburse the victim or victims for every determined economic loss incurred as the result

of the defendant’s criminal conduct . . . .” (§ 1202.4, subd. (f)(3).)

“When judgment is imposed and the defendant sentenced to a period of

incarceration (in prison or jail), the court may order restitution only for losses arising out

29

of the ‘criminal conduct for which the defendant has been convicted.’ (People v. Lai

(2006) 138 Cal.App.4th 1227, 1247 []; see People v. Woods (2008) 161 Cal.App.4th

1045, 1049 [] [limiting restitution in this context ‘to those losses arising out of the

criminal activity that formed the basis of the conviction’]; People v. Percelle (2005) 126

Cal.App.4th 164, 179-180 (Percelle) [same].)” (People v. Walker (2014) 231

Cal.App.4th 1270, 1274.)

This, however, does not mean the court could not require defendant to make

restitution simply because he was acquitted of one of the many counts charged against

him. “The introductory paragraph of section 1202.4 states the legislative intent, i.e., that

the victim of a crime should receive restitution directly from any defendant convicted of

that crime. This language is clear and unambiguous. Indeed, our Supreme Court has

recognized that ordinarily, an acquittal would preclude the court from including the loss

related to that crime in a restitution order. (See [People v. Lent (1975)] 15 Cal.3d [481,]

487.) That is not to say that an acquittal on one count will preclude the imposition of a

restitution order under all circumstances. We merely hold that in the nonprobation

context, a restitution order is not authorized where the defendant’s only relationship to the

victim’s loss is by way of a crime of which the defendant was acquitted.” (Percelle,

supra, 126 Cal.App.4th at p. 180, first italics in original, others added.)

Here, of course, defendant’s relationship to Shalini’s loss arises not only from an

arson for which defendant was acquitted, but also from a murder for which he was

convicted. Accordingly, the trial court’s task was to determine whether the criminal

conduct for which defendant was convicted was the proximate cause of the damage to

Shalini’s clothing and household items. (See People v. Holmberg (2011) 195

Cal.App.4th 1310, 1320-1322; People v. Jones (2010) 187 Cal.App.4th 418, 425

(Jones).)

California courts have adopted the “substantial factor” test for analyzing

proximate cause. “California has definitively adopted the substantial factor test of the

30

Restatement Second of Torts for cause-in-fact determinations. (Mitchell v. Gonzales

(1991) 54 Cal.3d 1041, 1044, fn. 2, 1052, fn. 7.) Under that standard, a cause in fact is

something that is a substantial factor in bringing about the injury. (Id. at pp. 1052-1053;

Rest.2d Torts, § 431, subd. (a), p. 428; [CACI No. 430 (2014)].) The substantial factor

standard generally produces the same results as does the ‘but for’ rule of causation which

states that a defendant’s conduct is a cause of the injury if the injury would not have

occurred ‘but for’ that conduct. (Mitchell v. Gonzales, supra, 54 Cal.3d at p. 1053;

Prosser & Keeton on Torts (5th ed. 1984) § 41, p. 266.) The substantial factor standard,

however, has been embraced as a clearer rule of causation – one which subsumes the ‘but

for’ test while reaching beyond it to satisfactorily address other situations, such as those

involving independent or concurrent causes in fact. (Mitchell v. Gonzales, supra, 54

Cal.3d at pp. 1052-1053; Thomsen v. Rexall Drug & Chemical Co. (1965) 235

Cal.App.2d 775, 783; Prosser & Keeton on Torts, supra, § 41, pp. 266-268.)

Defendant contends his actions in committing the murder were not a substantial

factor in damaging Shalini’s clothes and household items lost in the fire. The evidence

showed the fire was started after the victim died. There was no evidence regarding who

started the fire or when it was started. And the jury was not instructed to consider

whether defendant aided and abetted the commission of arson or whether the arson was a

natural and probable consequence of the murder. These points, defendant claims,

indicate his actions were not the proximate cause of Shalini’s damages.

Defendant applies the substantial factor test too narrowly. The test, put simply, is

whether Shalini would have incurred damages had there been no murder. The answer is

clearly no. Thus, the criminal conduct by defendant and his accomplices was a

substantial factor and the proximate cause of Shalini’s damages, and she is entitled to

compensation.

Defendant asserts the acts of setting the body and the apartment on fire were

independent intervening causes and could not subject him to liability for restitution. We

31

disagree. “ ‘ “In general, an ‘independent’ intervening cause will absolve a defendant of

criminal liability. [Citation.] However, in order to be ‘independent’ the intervening

cause must be ‘unforeseeable . . . an extraordinary and abnormal occurrence, which rises

to the level of an exonerating, superseding cause.’ [Citation.] On the other hand, a

‘dependent’ intervening cause will not relieve the defendant of criminal liability. ‘A

defendant may be criminally liable for a result directly caused by his act even if there is

another contributing cause. If an intervening cause is a normal and reasonably

foreseeable result of defendant’s original act, the intervening act is “dependent” and not a

superseding cause, and will not relieve defendant of liability. [Citation.] “[ ] The

consequence need not have been a strong probability; a possible consequence which

might reasonably have been contemplated is enough. [ ] The precise consequence need

not have been foreseen; it is enough that the defendant should have foreseen the

possibility of some harm of the kind which might result from his act.” ’ ” ’ [Citation.]”

(Jones, supra, 187 Cal.App.4th at p. 427, quoting People v. Cervantes (2001) 26 Cal.4th

860, 871.)

Here it was reasonably foreseeable that defendant or his accomplices would act to

destroy evidence where the victim, while still alive, obtained defendant’s DNA under his

fingernails, and that such actions to destroy evidence could cause harm or damage,

including the damage Shalini suffered. Under these circumstances, we cannot say the

trial court abused its discretion in determining defendant’s actions were the proximate

cause of Shalini’s economic losses and that there was no independent intervening cause.

Additionally, defendant contends the decision to grant direct victim restitution

must, under Apprendi and Southern Union Co. v United States (2012) __ U.S. __ [132

S.Ct. 2344; 183 L.Ed.2d 318] (Southern Union), be subject to a jury determination and be

established beyond a reasonable doubt. He asserts that since section 1202.4 does not

authorize imposing a financial order for a crime of which defendant was acquitted, the

$4,500 is essentially an additional penalty to the statutory maximum of $10,000

32

proscribed for a restitution fine. (See § 1202.4, subd. (b)(1).) He thus claims the order is

a penalty that exceeds the statutory maximum and is subject to jury approval. We

disagree.5

First, we have already determined the trial court did not abuse its discretion by

requiring defendant to pay Shalini the $4,500 as direct restitution under section 1202.4.

Thus, the order does not impose an additional restitution fine.

Second, because the grant of a direct restitution order is not a monetary penalty, it

is not subject to Apprendi and Southern Union. Prior to Southern Union, the Apprendi

court held that, “[o]ther than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be submitted to a

jury, and proved beyond a reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490, italics

added.)

Thereafter, in Southern Union., the United States Supreme Court held that Sixth

Amendment right to a jury applies to “sentences of criminal fines.” (Southern Union,

supra, __ U.S. at p. ___ [183 L.Ed.2d at p. 325].) In reaching its decision, the Supreme

Court held that “[c]riminal fines, like . . . other forms of punishment, are penalties

inflicted by the sovereign for the commission of offenses.” (Id. at p. ___ [183 L.Ed.2d at

p. 327].)

However, neither Apprendi nor Southern Union applies to direct victim restitution

because direct victim restitution is not a criminal penalty. (People v. Pangan (2013) 213

5 The Attorney General asserts defendant forfeited this argument by not raising it

below. However, at the time of sentencing, courts had not yet held, as the Supreme Court

held in Southern Union, that a right to a jury determination applied to sentences of

criminal fines. Thus, defendant’s claim was not forfeited. (See People v. Black (2007)

41 Cal.4th 799, 810 [“although challenges to procedures or to the admission of evidence

normally are forfeited unless timely raised in the trial court, ‘this is not so when pertinent

law later changed so unforeseeably that it is unreasonable to expect trial counsel to have

anticipated the change’ ”].)

33

Cal.App.4th 574, 585-586.) “[D]irect victim restitution is a substitute for a civil remedy

so that victims of crime do not need to file separate civil suits. It is not increased

‘punishment.’ ” (Id. at p. 585.) Section 1202.4 imposes no statutory limits on the

amount of direct restitution a court may order.

For the same reasons, the court’s determination may be established by a

preponderance of the evidence. The higher standard of proof applies to facts that

increase a crime’s penalty beyond what a judge could impose based on the applicable

statute and the facts in the record. (Blakely v. Washington (2004) 542 U.S. 296, 301 [159

L.Ed.2d 403, 412] (Blakely).) Since direct restitution is not a criminal penalty and is not

subject to a statutory maximum amount, it is not subject to a jury trial and may be

imposed based on the preponderance of the evidence.

V

Imposition of Jail Booking and Classification Fees

Defendant contends insufficient evidence supports the trial court’s finding he had

the ability to pay jail booking and classification fees imposed pursuant to Government

Code section 29550.2. Defendant did not object to the fees at trial. After the parties

completed their original briefing in this matter, the Supreme Court determined a failure to

object to the imposition of booking fees at sentencing forfeits the contention on appeal.

(People v. McCullough (2013) 56 Cal.4th 589, 591, 598.) Defendant’s failure to object at

trial forfeits the contention here.

VI

Imposition of Restitution Fines

Defendant contends the trial court erred by imposing two $10,000 restitution fines

under sections 1202.4, subdivision (b), and 1202.45 respectively. He asserts the court, by

not considering his ability to pay, violated his right to due process by imposing a fine

greater than the statutorily mandated minimum amount without a jury determination

made beyond a reasonable doubt. We disagree. We infer from the record that the court

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considered his ability to pay, and the imposition of his restitution fines were not required

to be made by a jury.6

Defendant asserts the statutory maximum fine the court could impose solely on the

basis of facts in the record was $200. Any greater amount, defendant argues, would

require under Apprendi a jury determination that the defendant has the ability to pay the

higher fine, a fact not reflected in the record. Defendant misreads the statutes.

When defendant was sentenced in 2010, section 1202.4, subdivision (b), provided:

“In every case where a person is convicted of a crime, the court shall impose a separate

and additional restitution fine, unless it finds compelling and extraordinary reasons for

not doing so and states those reasons on the record.” The statute provided a range from a

minimum amount of $200 to a maximum of $10,000 for felony convictions. (§ 1202.4,

former subd. (b)(1); Stats. 2009, ch. 454, § 1.) The statute provided that a defendant’s

inability to pay “shall not be considered a compelling and extraordinary reason not to

impose a restitution fine. Inability to pay may be considered only in increasing the

amount of the restitution fine in excess of the two hundred-dollar ($200) . . . minimum.”

(§ 1202.4, former subd. (c); Stats. 2009, ch. 454, § 1.)

The statute provided that in setting the restitution fine in excess of the minimum,

“the court shall consider any relevant factors including, but not limited to, the defendant’s

inability to pay, the seriousness and gravity of the offense and the circumstances of its

commission, any economic gain derived by the defendant as a result of the crime, the

extent to which any other person suffered any losses as a result of the crime, and the

number of victims involved in the crime. . . . Express findings by the court as to the

6 The Attorney General argues defendant forfeited this claim by failing to raise it at

trial. Again, because Southern Union had not been decided by the time of sentencing, we

hold defendant did not forfeit his claim.

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factors bearing on the amount of the fine shall not be required. . . .” (§ 1202.4, former

subd. (d), italics added; Stats. 2009, ch. 454, § 1.)

Also, when defendant was sentenced in 2010, section 1202.45 required the court

to impose a parole revocation restitution fine in the same amount as that imposed under

section 1202.4, subdivision (b). (Former § 1202.45; Stats. 2007, ch. 305, § 15 (SB 425).)

We presume the trial court complied with its obligations under section 1202.4 and

considered defendant’s ability to pay. (Evid. Code, § 664; People v. Mosley (1997) 53

Cal.App.4th 489, 496 (Mosley).) Because the court sought to impose a higher fine, it was

required to consider defendant’s ability to pay. However, it was not required to make any

express findings that defendant had the ability to pay, and the absence of those findings

does not demonstrate the court failed to consider this factor. (People v. Nelson (2011) 51

Cal.4th 198, 227.) We indulge all intendments to support the court’s order on matters as

to which the record is silent. Error must be affirmatively shown (Mosley, supra, 53

Cal.App.4th at p. 496), and it has not been shown here.

In addition, the imposition of a fine greater than the $200 minimum did not grant

defendant a jury trial right on the issue. Southern Union, Blakely, and Apprendi do not

apply where, as here, the trial court exercises its discretion within a statutory range and

does not make any factual findings that increase the potential fine beyond what the jury's

verdict allows. (People v. Kramis (2012) 209 Cal.App.4th 346, 351-352.) The statutory

range under sections 1202.4 and 1202.45 in this case is between $200 and $10,000.

Because the court did not impose a fine greater than that range, defendant was not

entitled to a jury trial on the issue of the fine. (Ibid.)

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DISPOSITION

The judgment is affirmed.

NICHOLSON , Acting P. J.

We concur:

HULL , J.

MURRAY , J.

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