Filed 4/20/22 P. v. Thao CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant Nue Daniel Thao appeals from his conviction for first degree murder after he shot and killed Jonathan Lee. Defendant contends the trial court instructed the jury with legally incorrect definitions of self-defense and involuntary manslaughter and violated his constitutional rights to due process and to be free from excessive fines by imposing various fees, fines, and assessments without first determining his ability to pay (see People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas)). Finding no error, we affirm.

FACTS AND PROCEEDINGS

The underlying facts are not relevant to the issues on appeal, and therefore we summarize them only briefly. After exchanging threatening messages on Facebook, defendant and Jonathan Lee drove in separate cars to the same street. Both men got out of their cars and approached each other with objects in their hands; defendant testified that Lee held a machete, and he held a stick. Defendant returned to his car and made a U-turn. Lee was standing in the middle of the street, but defendant drove to the left of Lee and passed him. Lee hit defendant’s car with the machete as defendant drove past him.

Defendant testified that he was scared and believed Lee was trying to kill him. Despite being “just a bit” past Lee, defendant stopped his car and opened his door. Defendant testified that his friend handed him a gun as he got out of the car. He fired 14 shots as Lee approached; one bullet struck Lee in the head, killing him.

A jury found defendant guilty of first degree murder (Pen. Code, § 187, subd. (a))[1] and found true the allegation that he personally and intentionally discharged a firearm proximately causing great bodily injury or death (§ 12022.53, subd. (d)). The trial court sentenced him to prison for 25 years to life for the murder plus 25 years to life for the firearm enhancement, as well as fines, fees, and assessments that we discuss post. He timely filed a notice of appeal; the case was fully briefed in December 2021, and assigned to this panel on January 3, 2022. The parties waived argument and the case was submitted on March 29, 2022.

DISCUSSION

I

Self-Defense Instruction

Defendant contends the trial court prejudicially erred by instructing the jury on self-defense using a modified version of CALCRIM No. 505,[2] which instructed in part: “Lawful self-defense requires that a person who kills another act out of fear of being killed or suffering great bodily injury alone. A person who kills another is not precluded from feeling anger or other emotions but those emotions cannot be causal factors in his decision to use deadly force.” Defendant argues that the applicable statutes, sections 197 and 198, require that a person act solely out of fear where the person “believes that . . . a crime is about to occur.” But he asserts that where, as he claims was the situation here, a party used self-defense where they were “resisting an actual attempt to kill or inflict great bodily injury,” section 198 does not require that the party act out of fear alone. He claims that under these circumstances, the law required that a different instruction, based on the language of the statute, be given that required the jury to find “whether the decedent was in fact attempting to kill or inflict great bodily injury on another, and . . . whether the defendant killed while resisting that attempt.”

As we will explain, the trial court’s instruction was a correct statement of the applicable law and was appropriate for the evidence presented in this case, where defendant testified he was so afraid he would be killed by the decedent--who at that moment was on foot wielding a machete while defendant was driving a car--that he stopped the car, got out with a gun, and fired 14 shots at the decedent.

A. Procedural Background

The jury was instructed on self-defense with pattern instruction CALCRIM No. 505, modified to insert additional language, set forth as follows with the added portions italicized for ease of reference: “The defendant is not guilty of murder if he was justified in killing someone in self-defense. The defendant acted in lawful self-defense if:

“1. The defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily injury. [¶] 2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger. [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger.

“Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of death or great bodily injury to himself. The danger must seem immediate and present, so that it must be instantly dealt with. It may not be merely prospective or in the near future. Defendant’s belief must have been reasonable and he must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the killing was not justified.

“When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed.

“The defendant’s belief that he was threatened may be reasonable even if he relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true.

“If you find that Jonathan Lee threatened or harmed the defendant or others in the past, you may consider that information in deciding whether the defendant’s conduct and beliefs were reasonable.

“If you find that the defendant knew that Jonathan Lee had threatened or harmed others in the past, you may consider that information in deciding whether the defendant’s conduct and beliefs were reasonable.

“Someone who has been threatened or harmed by a person in the past is justified in acting more quickly or taking greater self-defense measures against that person.

“A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of death or great bodily injury has passed. This is so even if safety could have been achieved by retreating.

“Lawful self-defense requires that a person who kills another act out of fear of being killed or suffering great bodily injury alone. A person who kills another is not precluded from feeling anger or other emotions, but those emotions cannot be causal factors in his decision to use deadly force.

“Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

“The People have the burden of proving beyond a reasonable doubt that the killing was not justified. If the People have not met this burden, you must find the defendant not guilty of murder.” (First and second italics added, all others omitted.)

B. Legal Background

The Attorney General contends that defendant forfeited his argument by failing to object to the instruction at trial. Defendant acknowledges he did not object to the instruction, but he contends that his argument is cognizable because it affected his substantial rights, and because trial counsel was constitutionally ineffective for failing to object. “The rule of forfeiture does not apply . . . if the [jury] instruction was an incorrect statement of the law [citation], or if the instructional error affected the defendant’s substantial rights.” (People v. Franco (2009) 180 Cal.App.4th 713, 719.) “Substantial rights” are equated with errors resulting in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818. (People v. Arredondo (1975) 52 Cal.App.3d 973, 978.) “Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim-at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was.” (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) Because defendant contends that the italicized portion of the instruction was an incorrect statement of law and affected his substantial rights, his claim is cognizable on appeal, and we review his claim of legal error de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569.) In so doing, we ascertain the relevant law, determine the meaning of the instructions, and determine whether the instructions correctly conveyed the law to the jury. (People v. Kelly (1992) 1 Cal.4th 495, 525.)

Section 197 provides that homicide is justifiable when committed by a person in the following circumstances: “(1) When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person. [¶] (2) When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous, or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein. [¶] (3) When committed in the lawful defense of such person, or of a spouse, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he or she was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed. [¶] (4) When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace.”

Section 198 provides: “A bare fear of the commission of any of the offenses mentioned in subdivisions 2 and 3 of [s]ection 197, to prevent which homicide may be lawfully committed, is not sufficient to justify it. But the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone.”

C. Analysis

Defendant argues that section 198’s limitation on justifiable homicide to those instances in which the perpetrator acted solely on the basis of fear applies only to situations related to subdivisions (2) and (3) of section 197, that is, where an individual is resisting someone who has not yet committed a crime. He claims his case falls within section 197, subdivision (1), because he resisted an actual attempt to kill or inflict great bodily injury, and therefore there was no requirement that he kill due to fear alone. Accordingly, he contends the trial court should have instructed the jury with CALJIC No. 5.10, which provides: “Homicide is justifiable and not unlawful when committed by any person who is resisting an attempt to commit a forcible and atrocious crime.” He argues CALJIC No. 5.10 would have properly instructed the jury to determine (1) whether the decedent was in fact attempting to kill or inflict great bodily injury on another, and (2) whether defendant killed while resisting that attempt. As we will explain, we disagree.

At the outset, CALJIC No. 5.10 is not the only instruction from this group that is relevant to this discussion. (See People v. Mills (2012) 55 Cal.4th 663, 677 [single jury instruction may not be viewed in artificial isolation].) Notably, CALJIC No. 5.12, commonly given in conjunction with CALJIC No. 5.10, provides: “The killing of another person in self-defense is justifiable and not unlawful when the person who does the killing actually and reasonably believes:

“1. That there is imminent danger that the other person will either kill [him] [her] or cause [him] [her] great bodily injury; and

“2. That it is necessary under the circumstances for [him] [her] to use in self-defense force or means that might cause the death of the other person for the purpose of avoiding death or great bodily injury to [himself] [herself].

“A bare fear of death or great bodily injury is not sufficient to justify a homicide. To justify taking the life of another in self-defense, the circumstances must be such as would excite the fears of a reasonable person placed in a similar position, and the party killing must act under the influence of those fears alone. The danger must be apparent, present, immediate and instantly dealt with, or must so appear at the time to the slayer as a reasonable person, and the killing must be done under a well-founded belief that it is necessary to save one’s self from death or great bodily harm.” (Italics added.) Thus, were CALJIC No. 5.10 given here in lieu of modified CALCRIM No. 505, the trial court likely would have had a duty to instruct sua sponte with CALJIC No. 5.12, which conveys the same information defendant challenges as erroneous in the instruction given here. Further, as we next explain, this information is not erroneous.

Citing to the earliest versions of section 197, defendant contends that “[f]or more than 140 years, California defendants have been entitled to rely on self-defense while resisting an actual attempt to kill or cause great bodily injury regardless of whether there may have been other motives for defendant’s actions as well.” Section 197 is a codification of a common law defense. (People v. Ceballos (1974) 12 Cal.3d 470, 477-478; People v. Jones (1961) 191 Cal.App.2d 478, 481.) Where statutes are merely codifications of the common law, they are assumed to be limited by the corresponding traditional common law rules. (Parsley v. Superior Court (1973) 9 Cal.3d 934, 938-939.) Contrary to defendant’s argument, even the earliest cases involving section 197 recognized that to establish perfect self-defense, “the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone.” (People v. Herbert (1882) 61 Cal. 544, 546.)

More recently, in People v. Trevino (1988) 200 Cal.App.3d 874 (Trevino), the appellate court concluded that CALJIC No. 5.12--the predecessor instruction to CALCRIM No. 505--was a correct statement of law on self-defense. (Trevino, at p. 879.) Raising the same argument defendant raises here, the defendant in Trevino argued the trial court erred by giving CALJIC No. 5.12 because section 198 only applies to subdivisions (2) and (3) of section 197, and therefore the rule in CALJIC No. 5.12 should only be applied in cases where the danger was apparent or inchoate, rather than those instances in which the danger was real and imminent. (Trevino, at pp. 877, 878.) Disagreeing, the appellate court found “the law to be settled that ‘[t]o be exculpated on a theory of self-defense one must have an honest and reasonable belief in the need to defend. [Citations.] A bare fear is not enough; “the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone.” [Citation.]’ [Citations.] Hence, an instruction that states that the party killing must act under the influence of such fears alone, is a correct statement of the law.” (Id. at pp. 878-879.)[3] The Trevino court further recognized that the law does not require “an absence of any feeling other than fear,” only that “the law requires that the party killing act out of fear alone.” (Id. at p. 879.) If anger or other emotions are “causal factors in his decision to use deadly force,” “the homicide cannot be justified on a theory of self-defense.” (Ibid.) Thus, the court concluded, because the form instruction does not “eliminate a feeling of anger or any other emotion so long as that emotion was not part of the cause of the use of deadly force,” the instruction is a correct statement of the law on self-defense. (Id. at p. 880.) Finally, the court observed that the defendant neither requested additional instructions regarding a situation where anger and fear were both causal factors nor argued the presence of such dual motivation to the jury. (Ibid.)

Our Supreme Court endorsed Trevino’s holding in People v. Nguyen (2015) 61 Cal.4th 1015. There, the defendant shot and killed a rival gang member who, carrying a gun, approached the car the defendant was driving. (Id. at p. 1043.) The defendant contended that the evidence established self-defense as a matter of law. (Id. at p. 1042.) The trial court instructed the jury with CALJIC No. 5.12. (Nguyen, at p. 1043.) Our Supreme Court quoted section 197, subdivisions (1) and (2), and section 198, and it cited Trevino’s holding that “ ‘an instruction which states that the party killing must act under the influence of such fears alone, is a correct statement of the law.’ ” (Nguyen, at p. 1045, quoting Trevino, supra, 200 Cal.App.3d at p. 879.) The court recognized: “Trevino clarified that this rule does not ‘imply that a person who feels anger or even hatred toward the person killed, may never justifiably use deadly force in self-defense,’ ” only that the party killing act out of fear alone. (Nguyen, at p. 1045.) The court concluded that “it was for the jury to decide whether [the] defendant acted out of fear alone when he shot and killed [the victim].” (Id. at p. 1045.)

Defendant contends that the court in Nguyen left open the question of whether an instruction including language requiring a party who kills in self-defense to have acted under the influence of fear alone is a correct statement of law. But the Nguyen court merely noted in dicta that the defendant “did not argue in the trial court, nor has he argued on appeal, that the jury should have been instructed that acting based on mixed motives is permissible so long as reasonable fear was the but-for cause of his decision to kill. We therefore have no occasion to consider whether such a rule would be consistent with section 198 as interpreted in Trevino or other cases.” (People v. Nguyen, supra, 61 Cal.4th at p. 1046, italics added.) That passage relates to the propriety of a clarifying instruction in cases where the evidence permits inferences of mixed motives, such as killing out of anger as well as fear, a claim defendant does not raise here.

Defendant’s reliance on People v. Young (1963) 214 Cal.App.2d 641, also fails to persuade. In Young, the victim grabbed the defendant’s money, and the two armed men engaged in a fight; the victim died of multiple stab wounds. (Id. at pp. 646-647.) The court found that if the jury believed the defendant’s evidence, he “had established the basis for a justifiable homicide provided he did not indulge in more force than necessary to recapture his money.” (Id. at p. 649.) Thus, the court concluded that the defendant was denied an “essentially fair trial” as conflicting evidence concerning who inflicted the victim’s fatal wound, and how, necessitated a finding by the jury regarding whether the defendant used excessive force, and the trial court refused to instruct the jury on the defense theory that he was resisting a felony. (Id. at p. 650.)

Here, in contrast, there is no doubt but that defendant killed Lee, and defendant was not precluded from presenting his defense theory to the jury through the absence of jury instructions or otherwise. Indeed, defendant’s theory at trial was entirely consistent with the instructions as given, which perhaps explains why he did not object to any aspect of the instruction he now challenges. Moreover, even if defendant’s argument had merit, we would conclude that he suffered no prejudice because there is no evidence that defendant was resisting an attempt to commit a “forcible and atrocious crime.” Defendant was in his car and, by his own admission, was already past Lee at the time Lee hit his car with a machete. While defendant testified that he was scared and believed Lee was trying to kill him, defendant’s belief does not constitute evidence that Lee was actually attempting to commit any act defendant could have reasonably believed threatened life or great bodily injury. Indeed, Lee’s act of hitting the car with the machete threatened no bodily injury, and that act had already been completed by the time defendant stopped his car, got out, and fired 14 shots. At best, the evidence showed defendant acted out of a fear of future harm, which supported instructing the jury with CALCRIM No. 505 as modified in this case.

Defendant also contends that the trial court’s instruction on self-defense was an ex post facto violation as it withdrew a defense that had previously been available. The ex post facto clause forbids the enactment of “ ‘any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed.’ ” (Collins v. Youngblood (1990) 497 U.S. 37, 42.) But as we have discussed ante, California law has long recognized that establishing perfect self-defense for homicide requires showing that “the circumstances must not only be sufficient to excite the fears of a reasonable person, but ‘the killing must have acted under the influence of such fears alone.’ ” (People v. Ye Park (1882) 62 Cal. 204, 207-208.) Additionally, as the court recognized in Trevino, the instruction as given here did not inform the jury that it had to reject self-defense if defendant harbored feelings other than fear. Rather, the instruction required that defendant’s fear for his life be reasonable and the “but for” cause of the murder. The instructions did not withdraw any defense.

Because we conclude that the challenged instruction was a correct statement of law, we reject defendant’s arguments that giving the instruction affected his substantial rights, and that trial counsel was constitutionally ineffective for failing to object to the instruction.

II

Involuntary Manslaughter Instruction

Defendant contends the trial court gave conflicting instructions on involuntary manslaughter. He argues the court’s instruction provided a correct definition of involuntary manslaughter before providing an improper definition of the crime that impermissibly narrowed its elements. As we will explain, defendant’s claim lacks merit.

A. Procedural Background

The trial court instructed the jury with CALCRIM No. 580 as follows: “When a person commits an unlawful killing but does not intend to kill and does not act with conscious disregard for human life, then the crime is involuntary manslaughter.

“The difference between other homicide offenses and involuntary manslaughter depends on whether the person was aware of the risk to life that his or her actions created and consciously disregarded that risk.

“An unlawful killing, caused by a willful act, done with full knowledge and awareness that a person is endangering the life of another and done in conscious disregard of that risk is voluntary manslaughter or murder.

“An unlawful killing resulting from a willful act committed without intent to kill and without conscious disregard of the risk of human life is involuntary manslaughter.

“The Defendant committed involuntary manslaughter if:

“l. The Defendant committed a crime or a lawful act in an unlawful manner;

“2. The Defendant committed the crime or act with criminal negligence; and

“3. The Defendant’s acts caused the death of another person.

“The People allege that the Defendant committed the following crime: Brandishing a firearm.

“Instruction 983, set forth immediately below, tells you what the People must prove in order to prove the Defendant committed the offense of brandishing a firearm.

“Criminal negligence involves more than ordinary carelessness, inattention or mistake in judgment. A person acts with criminal negligence when:

“1. He or she acts in a reckless way, that creates a high risk of death or great bodily injury; and

“2. A reasonable person would have known that acting in that way would create such a risk.

“In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinary, careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.

“An act causes death if the death is the direct, natural and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.

“ ‘Great bodily injury’ means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

“In order to prove murder or . . . voluntary manslaughter, the People have the burden of proving beyond a reasonable doubt that the Defendant acted with the intent to kill or with conscious disregard for human life. If the People have not met either of these burdens, you must find the Defendant not guilty of murder and not guilty of voluntary manslaughter.”

B. Legal Background

Murder is the unlawful killing of a human being or fetus “with malice aforethought.” (§ 187, subd. (a).) Malice may be either express or implied. Malice is express “when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.” (§ 188.) Implied malice involves “ ‘ “an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.” ’ ” (People v. Knoller (2007) 41 Cal.4th 139, 143.)

“Involuntary manslaughter is a lesser included offense of murder, distinguished by its mens rea.” (People v. Butler (2010) 187 Cal.App.4th 998, 1006.) Section 192, subdivision (b) defines involuntary manslaughter as “the unlawful killing of a human being without malice” during “the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” In addition to the statutory definition, our Supreme Court has interpreted involuntary manslaughter to include “an unintentional homicide committed in the course of a noninherently dangerous felony . . . committed without due caution and circumspection” (People v. Burroughs (1984) 35 Cal.3d 824, 835, overruled on another ground in People v. Blakeley (2000) 23 Cal.4th 82, 88-91; People v. Bryant (2013) 56 Cal.4th 959, 966 [same]), and the Court of Appeal, Second District, Division Two has concluded that an unlawful killing committed without malice in the course of an inherently dangerous assaultive felony must be involuntary manslaughter based on our Supreme Court’s decision in Bryant (People v. Brothers (2015) 236 Cal.App.4th 24, 33-34). For any form of involuntary manslaughter, the mental state required is criminal negligence. (Butler, at p. 1006; see People v. Penny (1955) 44 Cal.2d 861, 869 [mens rea for involuntary manslaughter based on commission of lawful act is criminal negligence]; People v. Wells (1996) 12 Cal.4th 979, 984-989 [involuntary manslaughter based on commission of a nonfelonious unlawful act requires finding of criminal negligence]; Burroughs, at p. 835 & fn. 9 [noninherently dangerous felony may support conviction of involuntary manslaughter if felony was committed with criminal negligence]; Bryant, at p. 970 [killing without malice in commission of inherently dangerous assaultive felony cannot be voluntary manslaughter]; Brothers, at pp. 33-34 [necessary implication of Bryant is that unlawful killing in the course of an inherently dangerous assaultive felony without malice must be involuntary manslaughter]; People v. Evers (1992) 10 Cal.App.4th 588, 596 [“If a defendant commits an act endangering human life, without realizing the risk involved, the defendant has acted with criminal negligence. By contrast where the defendant realizes and then acts in total disregard of the danger, the defendant is guilty of murder based on implied malice” unless the malice is otherwise negated by heat of passion or imperfect self-defense].)

C. Analysis

Defendant contends that CALCRIM No. 580 as given to the jury correctly instructed the jury on the law of involuntary manslaughter, but then provided another, incorrect definition of the crime. Although he agrees that the court correctly instructed that the jury could find defendant guilty of involuntary manslaughter if it found he “commit[ed] an unlawful killing but d[id] not intend to kill and d[id] not act with conscious disregard for human life[,]” he challenges the part of the instruction informing the jury that it could find him guilty of involuntary manslaughter only if it found (1) he “committed a crime or a lawful act in an unlawful manner,” (2) he “committed the crime or the act with criminal negligence,” and (3) “the defendant’s acts caused the death of another person.” He characterizes that definition as a “much narrower definition of involuntary manslaughter,” asserting that California law only requires that the jury find that the killing was unlawful and that he harbored neither the intent to kill nor a conscious disregard for human life.

The Attorney General again contends that defendant has forfeited his claim; we again conclude that because defendant contends that the involuntary manslaughter instruction was an incorrect statement of law, his claim is cognizable on appeal. (See People v. Franco, supra, 180 Cal.App.4th at p. 719.) We have explained the standard of review under these circumstances ante.

We conclude, however, that this claim also lacks merit. Defendant does not explain how the definition of involuntary manslaughter he challenges is “much narrower” than the definition of which he approves or is an incorrect statement of law. He asserts that “criminal negligence” is “not a part of California law and should not have been required,” but our Supreme Court has recognized that “criminal negligence” is equivalent to “without due caution and circumspection,” the standard set forth in section 192. (People v. Burroughs, supra, 35 Cal.3d at p. 835, fn. 9.) Additionally and as we have discussed, multiple authorities have confirmed that criminal negligence is the applicable mens rea for involuntary manslaughter.

Defendant also argues that that inquiry into whether he “ ‘committed a crime or lawful act in an unlawful manner’ ” was improper, although he does not describe how a person could be found guilty of involuntary manslaughter without having committed a crime or a lawful act in an unlawful manner. Indeed, he approves of the definition of involuntary manslaughter requiring that he “commit an unlawful killing,” which necessarily requires that he commit either a crime or a lawful act in an unlawful manner. He asserts that involuntary manslaughter is a “ ‘ “catch-all” concept’ ” and that the enumeration of acts in section 192 is not considered exclusive. Although, as we have discussed, we do not disagree that courts have expanded the crimes for which a person may be convicted of involuntary manslaughter beyond those specified in section 192, we fail to see how that expansion affects the requirement that a person must act with criminal negligence to be convicted of involuntary manslaughter.

Based on the foregoing, we reject defendant’s argument.

III

Fines and Fees

Relying primarily on Dueñas, supra, 30 Cal.App.5th 1157, defendant argues the imposition of fees, fines, and assessments without an ability to pay hearing violated his due process right and the Eighth Amendment prohibition against excessive fines. Defendant did not request a hearing on his ability to pay or otherwise object to the imposed fines, fees, and assessments; accordingly, the Attorney General contends defendant forfeited his Dueñas challenge.

It is a longstanding and well-recognized rule that a defendant must first object and demonstrate his inability to pay amounts imposed at sentencing. (See, e.g., People v. Nelson (2011) 51 Cal.4th 198, 227 [defendant’s claim that the court erroneously failed to consider ability to pay a $10,000 restitution fine is forfeited by the failure to object]; People v. Gamache (2010) 48 Cal.4th 347, 409 [same].) This is true regardless of whether a defendant’s ability to pay claims are constitutional in nature. (See People v. Trujillo (2015) 60 Cal.4th 850, 859 [the constitutional nature of the defendant’s claim regarding her ability to pay did not justify a deviation from the forfeiture rule].) Thus, defendant had the burden not only to raise the issue of inability to pay a fine, but also to “present evidence of his . . . inability to pay the amounts.” (People v. Castellano (2019) 33 Cal.App.5th 485, 490; accord, Pen. Code, § 1202.4, subd. (d) [“A defendant shall bear the burden of demonstrating his or her inability to pay”]; People v. Santos (2019) 38 Cal.App.5th 923, 934.) Here, defendant was sentenced on September 18, 2020, well after Dueñas was filed on January 8, 2019. (Dueñas, supra, 30 Cal.App.5th 1157.) Therefore, his failure to raise Dueñas at sentencing forfeited his arguments by operation of normal rules of appellate review. (People v. Scott (1994) 9 Cal.4th 331, 351-354 [to preserve a sentencing issue for appellate review, the defendant must raise it in the trial court].)

Defendant’s claim is also forfeited because the trial court imposed a $1,000 restitution fine, well above the statutory minimum of $300. (§ 1202.4, subd. (b)(1).) Defendant had an opportunity to object to the restitution fine based on an inability to pay because the statute authorizing the fine expressly permitted such a challenge. (See § 1202.4, subds. (b)(1), (c) [defendant’s inability to pay may be considered in increasing the restitution fine above the $300 statutory minimum], id., subd. (d) [defendant bears the burden of demonstrating his or her inability to pay a restitution fine in excess of the statutory minimum].) Defendant’s failure to preserve his claim as to the restitution fines also forfeited appellate review of assessments imposed under sections 1465.8, subdivision (a)(1) and Government Code section 70373. (See People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 [given the defendant’s failure to object to $10,000 restitution fine based on inability to pay, the defendant failed to show a basis to vacate substantially smaller assessments]; People v. Montelongo (2020) 55 Cal.App.5th 1016, 1034 [accord].)

DISPOSITION

The judgment is affirmed.

/s/

Duarte, J.

We concur:

/s/

Hull, Acting P. J.

/s/

Mauro, J.

[1] Further undesignated statutory references are to the Penal Code.

[2] The parties refer to the pattern instruction at length without seeming to recognize the amendments thereto, one of which is the sole subject of defendant’s contention of error on this particular topic. Defendant does not challenge any portion of the actual pattern instruction. Nor do the parties discuss the circumstances surrounding the pattern instruction’s modification before it was provided to the jury.

[3] It appears that the paragraph at issue here, which was added to modify CALCRIM No. 505, was taken from Trevino. The added portion of the instruction provided: “Lawful self-defense requires that a person who kills another act out of fear of being killed or suffering great bodily injury alone. A person who kills another is not precluded from feeling anger or other emotions, but those emotions cannot be causal factors in his decision to use deadly force.” In addition to the language quoted here, the Trevino court observed: “The party killing is not precluded from feeling anger or other emotions save and except fear; however, those other emotions cannot be causal factors in his decision to use deadly force.” (Trevino, supra, 200 Cal.App.3d at p. 879.)