Filed 2/22/22 P. v. Dixon CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

I. INTRODUCTION

Defendant William Daniel Dixon appeals after a jury found him guilty of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)),[1] possession of ammunition by a by a felon (§ 30305, subd. (a)(1)), possession of a silencer (§ 33410), possession of an assault weapon (§ 30605, subd. (a)), and possession of a machine gun (§ 32625, subd. (a)). The trial court sentenced defendant to two years in prison.

Defendant contends that the trial court abused its discretion under Evidence Code section 1101, subdivision (b) when it admitted evidence of defendant’s prior firearm possession as proof of knowledge and identity and that the court’s imposition of fines and assessments without determining defendant’s ability to pay was unconstitutional.

For reasons that we will explain, we affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

1. Prosecution Case

1. Current Incident

On September 20, 2017, California Highway Patrol officers executed a search warrant at a residence on Melanie Road in Marina. Two women were at the house when the officers arrived. Defendant arrived at the residence sometime during the search.

In the middle bedroom, an officer found a disassembled rifle with a silencer and two loaded magazines inside a computer bag in an open drawer underneath the bed. A dresser inside the bedroom contained mail addressed to William Daniel Dixon, two boxes for gun accessories, and a scope cover. There was male clothing and deodorant in the room, which was messy. Officers did not locate any male items in the other bedrooms of the house.

A backpack in the garage contained several high-capacity magazines, live ammunition, gun-building parts, and plastic magazines that were the same style and type as the magazines found in the computer bag. Also in the garage were firearm-cleaning patches, an empty Glock firearm box, part of an AR platformed rifle, and mail addressed to William Daniel Dixon. The AR rifle part and the mail were on the same shelf.

An officer subsequently assembled the disassembled rifle found in the computer bag. An armorer described the rifle as an AR-15 platform with a 10-inch barrel, a telescoping stock, a flash suppressor, and pistol grips at the front and rear. The armorer tested the rifle, determining that it fired in both fully automatic and semiautomatic modes. The armorer stated that in almost 14 years of experience, he had never seen a fully automatic weapon that was not government owned.

The parties stipulated that defendant was previously convicted of a felony.

2. Prior Act

On September 27, 2011, officers executed a search warrant at the same residence on Melanie Road in Marina. In a drawer under the bed in the middle bedroom, an officer located five high-capacity rifle magazines and a high-capacity handgun magazine. Two of the magazines were loaded. Inside another drawer under the bed, the officer found a disassembled AR-15 style assault rifle underneath some clothing. The rifle was in two pieces. Mail addressed to William Dixon was also found in the room. Defendant’s 2011 possession of the firearm was lawful and did not result in a conviction.

2. Defense Case

Defendant’s mother testified. Mother lived at the Marina residence with her mother. Defendant sometimes stayed there. Defendant spent most of his time in the garage and was sometimes in the middle bedroom. The middle bedroom used to be defendant’s room but now when he comes to the house he just stays in the garage.

Mother stated that the middle bedroom was where guests stayed and that lots of people had access to it. Some of defendant’s things may have been kept in the middle bedroom, but lots of other people also had items there. In September 2017, defendant stayed in the middle bedroom approximately once a week. Mother did not recall whether defendant was living at the house in 2011. In both 2011 and 2017, defendant stayed at the house infrequently, and spent his time in the garage or the middle bedroom.

Mother testified that she only goes into the garage to do laundry. Most of the tools and parts in the garage belong to defendant. Defendant gets mail at the house, which mother typically leaves on a table by the front door. Mother was not aware of any firearms or firearm parts inside the house in 2017.

Defendant testified that he lived with his daughter’s mother in 2017. Defendant visited the residence on Melanie Road, and had stopped by the residence the day before the 2017 search, but he did not stay there. The middle bedroom was primarily his daughter’s bedroom and he seldomly stayed there. He did not have an assault rifle in the middle bedroom in 2017, nor did he take apart a weapon and put it in that room. An old friend of his, N.S., had stayed in the middle bedroom a few times. The backpack found in the garage in 2017 was not his. Defendant did not recall putting a letter with his name on it in the middle bedroom, but he could have had some mail in the garage. He did not have any gun-cleaning products in the garage, but he did have an AR-15 style steel receiver there.

Defendant stated that he lawfully owned the items, which he purchased through a gun dealer, found by the police in 2011. Defendant was never charged with or convicted of any offenses pertaining to those items. Defendant was not staying in the middle bedroom at the time of the 2011 search, but he did keep the assault rifle there. Defendant also owned a Glock handgun, which he kept in the trunk of his vehicle and was also recovered by the police in 2011. The Glock handgun was lawfully owned and stored. Defendant told a detective that he built the firearm in 2011.

Defendant testified that he was currently staying on a couch in the garage at the Melanie Road residence and his girlfriend was staying in the middle bedroom.

3. Rebuttal Case

California Highway Patrol Officer Charles Rodriguez testified that he spoke to defendant’s mother when he searched the residence in 2017. Mother stated that “if there was any firearms they would be her son’s.” Officer Rodriguez testified that defendant denied knowledge of the firearm in the bedroom, but stated that he “maybe [had] some gun-building parts still in the garage and that he had previously built firearms.”

4. Charges, Verdicts, and Sentence

Defendant was charged with possession of a firearm by a felon (§ 29800, subd. (a)(1); count 1); possession of ammunition by a felon (§ 30305, subd. (a)(1); count 2); possession of a silencer (§ 33410; count 3); possession of an assault weapon (§30605, subd. (a); count 4); and possession of a machine gun (§ 32625, subd. (a); count 5).

A jury found defendant guilty as charged.

The trial court sentenced defendant to the low term of 16 months on count 1; a

consecutive term of eight months on count 2; and a concurrent term of two years on count 3. The court stayed punishment on counts 4 and 5 pursuant to section 654. The court ordered defendant to pay several fines and assessments.

III. DISCUSSION

1. Evidence of Defendant’s 2011 Firearm Possession to Prove Knowledge and Identity

Defendant contends that the trial court abused its discretion under Evidence Code section 1101, subdivision (b) (section 1101(b)) when it admitted evidence of defendant’s 2011 firearm possession as evidence of knowledge and identity. Defendant argues that the evidence was unduly prejudicial because it was cumulative and had little relevance. The Attorney General contends that the evidence was properly admitted and that any error was harmless.

1. Trial Court Proceedings

The prosecution moved in limine to present evidence of defendant’s 2011 firearm possession. The prosecution asserted that the evidence was admissible under section 1101(b) as evidence of identity, intent, common plan or scheme, and knowledge as “the 2011 conduct [was] highly similar to the charged offense[s].”

Defendant moved in limine to exclude evidence of “any prior bad acts.”

At the hearing on the in limine motions, the prosecution argued that defendant’s 2011 firearm possession was admissible to prove identity, intent, common plan or scheme, and knowledge because the 2011 circumstances were “eerily similar” to the current facts as they both involved an AR-15 style weapon found in the same location within the same bedroom. The prosecution noted that defendant admitted the 2011 firearm possession.

Defendant argued that his 2011 firearm possession was inadmissible “as a prior bad act” because it was not illegal and did not result in a conviction.

The trial court granted the prosecution’s motion, allowing evidence of defendant’s 2011 firearm possession for proof of knowledge and identity. Stating that it was engaging in “essentially” an Evidence Code section 352 analysis, the court found that the 2011 incident involved “very similar conduct,” namely, “firearm parts, very similar style weapon, located in what sounds like the exact same location.” The court found the evidence admissible for proof of knowledge, which was an element of each of the charged offenses, because it showed defendant was aware of the presence of the firearm and firearm parts and had knowledge of their nature. The court determined that the evidence was admissible to prove identity because there was “a sufficiently similar and unique fact pattern to show . . . defendant’s identity as the possessor of those items. What we have is a fact pattern that is almost indistinguishable from one to the other and it’s unique to the defendant in that it’s his home, his bedroom, his bed, his storage area.” The court acknowledged that the prior case did not result in a conviction, but found that was a conviction was unnecessary for admissibility under section 1101(b).

As we stated above, at trial an officer testified that in 2011, he located a disassembled AR-15 style assault rifle in two pieces under some clothing in a drawer underneath the bed in the middle bedroom of the Marina residence. In another drawer under the bed, he found five high-capacity rifle magazines and a high-capacity handgun magazine. Two of the magazines were loaded.

The prosecution argued to the jury that defendant’s 2011 firearm possession demonstrated that defendant had “[a] hiding spot for his guns,” namely, under his bed in the middle bedroom, and that he knew how put together disassembled guns. The prosecution asserted that the 2011 firearm possession showed that the firearm found in 2017 belonged to defendant, he knew it was there, and he knew its characteristics and nature.

Defendant argued to the jury that the issues in the case were knowledge and intent and asserted that there was no evidence that he knew anything about the 2017 firearm or silencer. Defendant also stated that there was no evidence that he touched or used the 2017 firearm and that there was no DNA or fingerprints connecting him to the weapon.

The trial court gave the jury a limiting instruction on the evidence of defendant’s 2011 firearm possession using CALCRIM No. 375. The court instructed that if the jury found that the prosecution proved the uncharged act by a preponderance of the evidence, the evidence could only be considered for the limited purpose of deciding whether “defendant was the person who committed the offenses alleged in this case or, [¶] . . . defendant knew he was in possession of an AR-15 style rifle, ammunition and silencer and knew or reasonably should have known the character of those items when he allegedly acted in this case.” The court told the jury that it could not consider the uncharged act evidence “for any other purpose”; could “not conclude from this evidence that . . . defendant has a bad character or is disposed to commit crime”; and that this evidence alone was not sufficient to prove defendant’s guilt.

2. Legal Principles

“ ‘Subdivision (a) of [Evidence Code] section 1101 prohibits admission of evidence of a person’s character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) of section 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct [or other acts] when such evidence is relevant to establish some fact other than the person’s character or disposition.’ [Citation.] ‘Evidence that a defendant committed [acts] other than those for which he is on trial is admissible when it is logically, naturally, and by reasonable inference relevant to prove some fact at issue,’ ” such as knowledge or identity. (People v. Fuiava (2012) 53 Cal.4th 622, 667 (Fuiava); accord, People v. Hendrix (2013) 214 Cal.App.4th 216, 238 (Hendrix).)

“To be admissible, there must be some degree of similarity between the charged crime and the other [act], but the degree of similarity depends on the purpose for which the evidence was presented.” (People v. Jones (2011) 51 Cal.4th 346, 371 (Jones).) For uncharged conduct to be admissible on the issue of knowledge, “the degree of similarity required depends on the specific knowledge at issue and whether the prior experience tends to prove the knowledge defendant is said to have had in mind at the time of the crime.” (Hendrix, supra, 214 Cal.App.4th at p. 241.) To prove identity, “[t]he greatest degree of similarity is required.” (People v. Ewoldt (1994) 7 Cal.4th 380, 403 (Ewoldt).) “[T]he uncharged [act] and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] ‘The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’ [Citation.]” (Ibid.)

“ ‘ “There is an additional requirement for the admissibility of evidence of uncharged [conduct]: The probative value of the uncharged [act] evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citation.]” ’ ” (People v. Thomas (2011) 52 Cal.4th 336, 354; see Evid. Code, § 352.) “ ‘Because this type of evidence can be so damaging, “f the connection between the uncharged [act] and the ultimate fact in dispute is not clear, the evidence should be excluded.” [Citation.]’ [Citation.]” ([i]Fuiava, supra, 53 Cal.4th at p. 667.)

“ ‘ “We review for abuse of discretion a trial court’s rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352.” [Citation.]’ [Citation.]” (Fuiava, supra, 53 Cal.4th at pp. 667-668, fn. omitted.)

3. Analysis

The circumstances of defendant’s uncharged 2011 firearm possession were exceedingly similar to the circumstances of the charged 2017 firearm possession and, thus, were highly probative of defendant’s knowledge and identity, both of which were at issue in the case.

As the trial court observed when ruling that the uncharged act evidence was admissible, the prosecution was required to prove knowledge for each of the five charged offenses. Regarding possession of a firearm by a felon and possession of ammunition by a felon, the prosecution had to prove defendant knew that he possessed the items. (See People v. Rubalcava (2000) 23 Cal.4th 322, 331-332; People v. Snyder (1982) 32 Cal.3d 590, 592.) Regarding possession of a silencer, possession of an assault weapon, and possession of a machine gun, the prosecution had to prove that defendant knew that he possessed the items and knew the items’ characteristics. (See In re Jorge M. (2000) 23 Cal.4th 866, 887; People v. Westlund (2001) 87 Cal.App.4th 652, 657-658.) Defendant contested that he knew anything about the items.

People v. Clark (2021) 62 Cal.App.5th 939 (Clark) is instructive regarding uncharged act evidence’s probative value for proof of knowledge. There, the prosecution presented evidence of an uncharged 2016 vehicle search where officers found a loaded Glock 27 handgun underneath the driver’s seat. (Id. at p. 955.) Three individuals occupied the car; the defendant was in the front passenger seat. (Ibid.) Among other things, the 2016 evidence was admitted as proof of the defendant’s knowledge that he possessed a firearm during the charged robbery at a construction site in 2018, where one of the robbers pulled out a handgun and demanded the construction workers’ money, wallet, and phones. (Id. at pp. 945, 958.)

In holding that the trial court erred in admitting the 2016 uncharged act evidence under section 1101(b) as proof of the defendant’s knowledge of his firearm possession during the 2018 charged robbery, the Court of Appeal determined that “the circumstances underlying [the defendant’s] prior uncharged act were dissimilar to the [present] circumstances . . . and therefore the evidence had little tendency to prove the knowledge required for the charged offense and enhancements.” (Clark, supra, 62 Cal.App.5th at p. 963.) “First, [the defendant’s] prior firearm possession was based on constructive, not actual possession. Indeed, there was no evidence he actually had that gun in his hand at any time. Thus, his possession in that case bore no similarity to his possession in this case. Second, the gun in that case appears to have been very different from the gun used in this case.” (Ibid.)

Here, on the other hand, both the uncharged act evidence of defendant’s 2011 firearm possession and the evidence of the 2017 charged firearm possession involved defendant’s constructive possession of an AR-15 style rifle in the same location. In both instances, officers found an AR-15 style rifle in a drawer under the bed in the middle bedroom of the Marina residence. Both in 2011 and in 2017, the rifles were disassembled. In 2011, defendant possessed several magazines, two of which were loaded, in another drawer under the bed. In 2017, two loaded magazines were found in the same drawer with the disassembled rifle. The only notable differences between the two instances are that in 2011, the disassembled rifle was underneath clothing in the drawer and was in two pieces, whereas in 2017, the disassembled rifle was in a computer bag in the drawer along with a silencer. It is unclear from the record how many component parts the 2017 rifle was in when it was found.[2]

The uncharged act evidence that in 2011, defendant possessed a disassembled AR-15 style rifle in a drawer under the bed in the middle bedroom and several magazines, two of which were loaded, in another drawer under the bed tended to show that in 2017, defendant knew that he possessed the disassembled AR-15 style rifle, silencer, and loaded magazines in a drawer under the bed in the middle bedroom. The 2011 uncharged act evidence also tended to prove that defendant knew the 2017 firearm’s characteristics because it demonstrated his familiarity with AR-15 style rifles. Unlike the evidence in Clark, defendant’s uncharged firearm possession was exceedingly similar to defendant’s charged firearm possession, both in the type of possession (constructive), the location of the possession (in a drawer under the bed in the middle bedroom), and the type of firearm possessed (disassembled AR-15 style rifles).

The 2011 uncharged act evidence was also probative of identity. Given the uniqueness of the firearms possessed, in both the uncharged and charged instances a disassembled AR-15 style rifle, and the particular nature of the location where they were kept, in both instances in a drawer underneath the bed in the residence’s middle bedroom and near loaded magazines, “the uncharged [act] and the charged offense . . . share[d] common features that [were] sufficiently distinctive so as to support the inference that the same person committed both acts.” (Ewoldt, supra, 7 Cal.4th at p. 403.) Indeed, defendant admits that the incidents were “strikingly similar.”

Nor do we conclude that the probative value of the uncharged act evidence was “substantially outweighed” by its prejudicial effect. (Evid. Code, § 352.) The 2011 uncharged act was not inflammatory compared to the charged incident because defendant’s firearm possession in 2011 was lawful; the jury presumably followed the trial court’s limiting instruction on the proper purpose for which the uncharged act evidence could be considered; and the fact that defendant’s 2011 firearm possession was lawful eliminated any temptation by the jury to convict defendant of the charged offenses to punish him for prior wrongdoing. (See Jones, supra, 51 Cal.4th at pp. 371-372.)

Defendant argues that the trial court abused its discretion in admitting the uncharged act evidence “because its limited probative value was far outweighed by its prejudice.” Defendant asserts that “in light of other evidence, the prior act evidence was merely cumulative.” Defendant cites the evidence regarding the charged incident that when he stayed at the residence he occupied the middle bedroom or the garage, which was where the firearm and gun-related items were located; the evidence showing that there was mail addressed to defendant in the middle bedroom and the garage; an officer’s testimony that defendant admitted that he had previously built firearms and that he may still have gun-building parts inside the house; and an officer’s testimony that defendant’s mother stated that if any firearms were in the house, they belonged to her son.

However, there was also evidence that “[l]ots of people” had access to the middle bedroom, where the firearm, silencer, and loaded magazines were found, as that was the room where guests stayed. In addition, there was evidence that there were “lot[s] of people’s items in [the middle bedroom], including [defendant’s] dad and . . . several people that have stayed there.” And there was evidence that defendant’s friend had stayed in the middle bedroom a few times. Moreover, defendant contested knowledge and identity, arguing to the jury that there was no evidence that he knew anything about the firearm or silencer and no evidence establishing that he touched or used the weapon.

Given the evidence that lots of people had access to the middle bedroom and several people had stayed there, coupled with the fact that the prosecution’s case against defendant was circumstantial and defendant explicitly contested knowledge and identity, the uncharged act evidence of defendant’s 2011 possession of an AR-15 style rifle and loaded magazines in drawers under the bed in the middle bedroom was not “merely cumulative regarding an issue that was not reasonably subject to dispute.” (Ewodlt, supra, 7 Cal.4th at p. 406.) Rather, the uncharged act evidence was highly probative of defendant’s knowledge of the AR-15 style rifle, silencer, and loaded magazines in a drawer under the bed in the middle bedroom in 2017 and his identity as the possessor of those items.

For these reasons, we conclude that the trial court did not abuse its discretion under section 1101(b) when it admitted the uncharged act evidence of defendant’s 2011 firearm possession as proof of knowledge and identity.

2. Imposition of Fines and Assessments

Relying primarily on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which was decided before defendant was sentenced, defendant contends that the trial court’s imposition of a $600 restitution fine (§ 1202.4, subd. (b)), a $200 court operations assessment (§ 1465.8), and a $150 court facilities assessment (Gov. Code, § 70373) and its suspended imposition of a $600 parole revocation restitution fine (§ 1202.45) violated the federal and state due process and equal protection clauses and the prohibitions against excessive fines. Defendant further contends that if his failure to object to the fines and assessments below forfeited his claims on appeal, trial counsel rendered ineffective assistance of counsel. The Attorney General asserts that the claims have been forfeited, the fines and assessments were properly imposed, and defendant cannot demonstrate ineffective assistance of counsel.

1. Dueñas

In Dueñas, the court held that imposition of a court operations assessment and a court facilities assessment without a determination of the defendant’s ability to pay was “fundamentally unfair” and violated due process under the federal and state Constitutions. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The court also concluded that the execution of a restitution fine under section 1202.4 “must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine.” (Dueñas, supra, at p. 1164.)

2. Forfeiture

We conclude that defendant has forfeited his claims of error. In general, a defendant who fails to object to the imposition of fines, fees, and assessments at sentencing forfeits the right to challenge those fines, fees, and assessments on appeal. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864; People v. Trujillo (2015) 60 Cal.4th 850, 853-854.)

Moreover, regarding defendant’s due process claim under Dueñas, defendant’s sentencing hearing took place on January 15, 2020, a year after Dueñas was decided. As Dueñas had already been decided at the time of sentencing, there is no reason why defendant could not have requested an ability-to-pay hearing based on Dueñas.

Defendant’s due process claim regarding the restitution fine is also forfeited because defendant did not request an ability-to-pay determination despite his statutory right to do so. The trial court imposed a $600 restitution fine under section 1202.4, subdivision (b), which was twice the statutory minimum. Nonetheless, defendant did not request an ability-to-pay hearing pursuant to section 1202.4, subdivision (d), which provides that a court shall consider relevant factors including a defendant’s inability to pay when setting the restitution fine in excess of the minimum. “Because defendant did not object to the [restitution] fine at his sentencing hearing, he has forfeited his challenge.” (People v. Miracle (2018) 6 Cal.5th 318, 356; see also People v. Avila (2009) 46 Cal.4th 680, 729 [“in not adducing evidence of his inability to pay” a $10,000 restitution fine, the defendant “forfeited the argument”]; People v. Smith (2020) 46 Cal.App.5th 375, 395 [“a defendant forfeits a challenge to the trial court’s imposition of a restitution fine above the statutory minimum for failing to consider his or her ability to pay if the defendant did not object in the trial court”].)

Nor did defendant preserve his equal protection and excessive fines claims by objecting on those grounds below. Thus, defendant’s equal protection and excessive fines claims have also been forfeited. (See People v. McCullough (2013) 56 Cal.4th 589, 591-593 [constitutional challenge to booking fee forfeited]; People v. Torres (2019) 39 Cal.App.5th 849, 860 & fn. 4 [excessive fines claim forfeited in absence of timely objection].)

3. Ineffective Assistance of Counsel

Defendant contends that his counsel was ineffective for failing to object to the fines and assessments as Dueñas was decided a year before the sentencing hearing and there could have been no tactical reason for counsel’s omission. Defendant further asserts that “the record clearly shows [he] did not have the present ability to pay.” Defendant raises that he was represented by court-appointed counsel below and that the probation report stated that he was having difficulty meeting his financial obligations, namely, his child support payments.

“[A] defendant claiming the ineffective assistance of counsel is required to show both that counsel’s performance was deficient and that counsel’s errors prejudiced the defense.” (People v. Hernandez (2012) 53 Cal.4th 1095, 1105.) “When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.]” (People v. Anderson (2001) 25 Cal.4th 543, 569 (Anderson).) Regarding prejudice, a “defendant must show that there is a reasonable probability”—meaning “a probability sufficient to undermine confidence in the outcome”—“that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S. 668, 694.)

Here, the record is silent regarding why counsel did not object to the fines and assessments and thus “affords no basis for concluding that counsel’s omission was not based on an informed tactical choice.” (Anderson, supra, 25 Cal.4th at p. 569.) Perhaps counsel determined that she could not demonstrate defendant’s inability to pay the $600 unstayed restitution fine and the $350 in court assessments based on the information in the probation report that defendant was self-employed as an on-call mechanic and had “daily contact with mechanics at the business where he works on call.” The probation officer reported that defendant appeared to be in good health and that defendant stated that he had no medical or mental health issues. The probation officer recommended that a $1,500 restitution fine be imposed, concluding that defendant was “healthy, employable, and not disabled” and that “[w]ith employment he should be able to pay the fines and fees associated with the instant matter.” (See People v. Aviles (2019) 39 Cal.App.5th 1055, 1076 [“ ‘ “n determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant’s present ability but may consider a defendant’s ability to pay in the future.” ’ ” (italics omitted)].)

In sum, because the record does not show the reason for counsel’s nonobjection to the fines and assessments and there could have been a satisfactory explanation for counsel’s omission, we must reject defendant’s ineffective assistance claim. (See[i] Anderson, supra, 25 Cal.4th at p. 569.)

For these reasons, we reject defendant’s claims regarding the trial court’s imposition of the restitution fine and court assessments and its stayed imposition of the parole revocation restitution fine.

IV. DISPOSITION

The judgment is affirmed.

BAMATTRE-MANOUKIAN, J.

WE CONCUR:

ELIA, ACTING P.J.

WILSON, J.

People v. Dixon

H047810

[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] Defendant asserts in his reply brief that the firearm in 2017 was not found in a drawer under the bed but rather in an area under the bed “where a drawer used to be.” Although the record is not a model of clarity, we conclude that the record establishes that the disassembled rifle was in a drawer under the bed. When the officer who located the firearm was asked whether the bedframe had drawers under it, the officer responded, “Yes.” The officer identified a photograph of “one of those drawers under the bedframe” and stated that the photograph depicted how he “found this particular drawer” in 2017. In addition, the prosecution’s trial brief and motions in limine stated that the charged firearm was “located in a drawer under the bed.”