People v. Perdomo CA6

Opinion

Filed 9/18/26 P. v. Perdomo CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, H052899 (Monterey County Plaintiff and Respondent, Super. Ct. No. 22CR010474)

v.

CARLOS PERDOMO,

Defendant and Appellant.

Carlos Perdomo was convicted of attempted murder of a peace officer, assault by a life prisoner, and other crimes. Perdomo challenges his convictions based on two rulings: the denial of a motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) for discovery from the personnel files of correctional officers, and the exclusion of testimony from a defense witness. Alternatively, he contends that the trial court improperly imposed fines and ancillary costs without considering his ability to pay as now required under People v. Kopp (2025) 19 Cal.5th 1 (Kopp). As explained below, we reject Perdomo’s challenges to his convictions and to the fines imposed on him. However, we agree with this challenge to the imposition of ancillary costs without considering his ability to pay. Accordingly, we reverse the judgment, remand for reconsideration of the ancillary costs, but otherwise affirm Perdomo’s convictions and sentence. I. BACKGROUND A. The Offenses At all relevant times, Perdomo was incarcerated in Salinas Valley State Prison, serving a term of life in prison.

1. The 2017 Incident In 2017, Perdomo was involved in an altercation in which he repeatedly stabbed another inmate with a metal, inmate-manufactured weapon. Perdomo admitted that the weapon used in the attack belonged to him.

2. The 2022 Incident In 2022, Perdomo was involved in another assault in prison. On June 25, 2022, correctional officers Noel Palacios and Mario Miranda initiated a random search of Perdomo’s prison cell. As part of the search, Miranda used a metal detector wand to search Perdomo. When the metal detector alerted near Perdomo’s waist, Palacios instructed Perdomo to face the wall for a clothed body search. Initially, Perdomo complied, but later he grabbed an approximately nine-inch metal, inmate- manufactured weapon from his pants and lunged toward Palacios with the weapon. Palacios fell to the ground. While Palacios was on the ground, Perdomo struck him several times with the weapon. Miranda, who had been pushed aside when Palacios fell, pulled Perdomo off his partner using a chokehold. Perdomo then struck Miranda with his weapon. Shortly thereafter, other correctional officers arrived and restrained Perdomo.

Palacios sustained multiple puncture wounds on his shoulder and forearms as well as a broken knee. As a result of these injuries, he medically retired shortly before trial. Officer Miranda sustained a puncture wound to his left forearm and injuries to his ear, which caused immediate hearing loss and persistent neck problems.

2 B. The Charges In connection with the 2022 incident, Perdomo was charged with seven crimes: (1) attempted murder of a peace officer (Miranda) (Pen. Code, §§ 187, subd. (a), 664) (2) attempted murder of a peace officer (Palacios) (ibid.); (3) assault by a life prisoner (Miranda) (id., § 4500); (4) assault by a life prisoner (Palacios) (ibid.); (5) assault with a deadly weapon on a peace officer (Miranda) (id., § 245, subd. (c)); (6) assault with a deadly weapon on a peace officer (Palacios) (ibid.); and (7) possession of a weapon by a prisoner (id., § 4502, subd. (a)). The information alleged enhancements for great bodily injury (id., § 12022.7, subd. (a)), two prior strike convictions (id., §§ 667, subd. (a)(1), 1170.12, subd. (c)(2)(A)), a serious felony prior (id., § 667, subd. (a)(1)), and use of a dangerous and deadly weapon (id., § 969f, subd. (a)). (Subsequent undesignated statutory references are to the Penal Code.) Perdomo also was charged with three crimes relating to the 2017 incident: attempted murder (§§ 187, subd. (a), 664; count 8), assault by a life prisoner (§ 4500; count 9), and possession of a weapon by a prisoner (§ 4502, subd. (a); count 10.) C. Defendant’s Pitchess Motion Before trial, Perdomo filed a Pitchess motion for discovery from the personnel records for 10 correctional officers involved in the June 2022 incident, including Palacios and Miranda. The motion sought records of complaints, investigations, discipline, and psychiatric care concerning use of excessive force, aggression, battery, and/or violence as well as “dishonesty and/or credibility issues.” Perdomo argued that the requested materials pertained to his proposed theory of self-defense as well as witness credibility. The motion was supported by a declaration from Perdomo’s counsel. According to the declaration, during the June 2022 cell search, Perdomo feared that Palacios “was targeting him for a beating and/or sexual assault” and that Perdomo “drew [his] weapon in self-defense.” The declaration attributed Perdomo’s fear to three facts: (1) correctional officers had beaten Perdomo three weeks earlier; (2) Palacios had been harassing and 3 searching Perdomo more often than normal as well as touching him in a “ ‘sexual’ manner”; and (3) Perdomo heard that Palacios had beaten and sexually assaulted other prisoners. The declaration also asserted that officer reports that Perdomo had resisted restraint were false. The trial court denied the motion without conducting an in camera review. The court found no good cause to examine the records of seven officers not present when the incident began. The court also found no good cause to examine the records of the remaining three officers—including Palacios’ and Miranda’s—because Perdomo failed to assert “a plausible factual scenario of officer misconduct that is relevant and tied to his self-defense theory.” “[A]lleging some kind of misconduct,” the court observed, “is not sufficient. It has to be tied to a defense.” The court acknowledged that counsel’s declaration addressed Perdomo’s state of mind and defense of self-defense, but noted that there was “no dispute that [Perdomo] had an inmate-manufactured weapon, which he used” to inflict significant injuries on Palacios and Miranda. D. The Trial 1. The Prosecution’s Case At trial, the prosecution introduced testimony from several correctional officers, including Palacios and Miranda. Palacios testified that in June 2022 he was a peace officer at Salinas Valley State Prison, and he was assigned to the section where Perdomo was living. On June 25, 2022, Palacios and Miranda were performing random cell searches for contraband. When they reached Perdomo’s cell, Miranda informed Perdomo that his cell had been selected for a search and directed Perdomo to exit the cell. Outside the cell, Miranda used a metal detector wand on Perdomo. The metal detector indicated the presence of metal around Perdomo’s waistline. Palacios then ordered Perdomo to turn around, face the wall, and put his hands on the wall for a clothed-body search.

4 At first, Perdomo complied, turning around and placing his hands against the wall. However, as Palacios approached, Perdomo reached down and grabbed an object—later identified as an inmate-manufactured weapon—from his waistline. Holding the object, Perdomo jumped toward Palacios and swung his arm down at Palacios in a “hammer motion.” When Miranda stepped in, Perdomo struck him in the face with the weapon. Palacios then grabbed Perdomo, falling to the ground with Perdomo on top of him. While Palacios was on the ground, Perdomo struck him multiple times on his face, body, and arms with the weapon until Miranda again intervened. Eventually, Palacios disarmed Perdomo, and other officers arrived and restrained Perdomo. Miranda also testified regarding the June 2022 incident. According to Miranda, on June 25, 2022, he and Palacios initiated a random search of Perdomo’s cell. Once Perdomo exited the cell, Miranda used a metal detector wand, which alerted near Perdomo’s groin. Miranda commented that maybe it was due to the button on Perdomo’s shorts, and Palacios ordered Perdomo to put his hands on the wall for a pat-down. Perdomo turned around, but, as Palacios approached, Perdomo retrieved a 5- to 6- inch metal object from his groin area and attacked Palacios. With the object in one hand, Perdomo began punching Palacios with both hands on his upper body, head, and face. Palacios pushed Miranda back and fell to the ground. Perdomo briefly approached Miranda but then turned back to Palacios—who was still on the ground—and began striking him with both hands in a stabbing motion. Using a chokehold, Miranda pulled Perdomo off Palacios. While Miranda was using the chokehold, Perdomo stabbed Miranda multiple times, including in his forearm and ear, causing Miranda temporarily to go deaf in one ear and permanent neck problems. 2. The Defense’s Case Perdomo testified in his own defense.

5 According to Perdomo, he had had “many incidents” with Palacios before June 2022, and he felt that Palacios was “targeting” him. For example, Palacios had been refusing Perdomo showers. In addition, about a year earlier, Perdomo had accused Palacios of sexual harassment. Another time, when officers were doing searches, Palacios required him to strip, bend over at the waist, and squat for a search. Afterwards, Perdomo complained to other officers that Palacios was a homosexual and should not be allowed to work in the prison. Perdomo also testified that, on June 25, 2022, Palacios and Miranda initiated a search of Perdomo’s cell. According to Perdomo, Miranda first used a metal detector wand to search Perdomo, and when it alerted, Miranda asked Perdomo if it was the button on his shorts. Perdomo said it was, and Miranda told him to go to the day room. Perdomo admitted that he had a home-made weapon, but testified that he did not hand the weapon over when the metal detector alerted “[b]ecause if I can get away with it, I will get away with it.” As Perdomo went towards the day room, Palacios told Perdomo to “ ‘[p]ut your fucking hands on the wall.’ ” Perdomo responded that “Miranda said to go to the day room. I’m going to the day room.” However, Palacios did put his hands on the wall. At that point, Perdomo testified, Palacios started “manhandling” him. According to Perdomo, Palacios got “real aggressive,” grabbed him from his neck, and pushed him against the wall. Perdomo testified “that’s when I pulled back and I pulled out on him.” Perdomo admitted that Palacios had not touched him “inappropriately,” explaining that “I wasn’t gonna let him.” Perdomo also testified that Palacios’ “manhandling” triggered a desire to defend himself. He explained that he had been assaulted by officers “[all] the time,” including most recently on June 1, 2022, though Perdomo did not identify the officers involved. Perdomo further testified that he felt like he was in danger when Palacios began 6 “manhandling” him, based on past experiences “when [he] got messed up.” However, Perdomo acknowledged that “[i]t’s been others” besides Palacios. Finally, Perdomo testified about the ensuing altercation. According to Perdomo, when Palacios grabbed Perdomo, Perdomo “pulled out on him,” grabbing an inmate- manufactured weapon, which he described as a “piece or a knife or shank.” Perdomo then pulled Palacios toward him by his vest and hit him in the shoulder with the weapon. Palacios fell, and Miranda “squared up on him.” However Perdomo did not want to hurt Miranda “because he had nothing to do with it,” so Perdomo tried to push him away. Miranda fell to the ground, and Perdomo turned back to Palacios, hitting Palacios in the face, knocking him down, and punching Palacios with his fists and the weapon. Miranda placed Palacios in a chokehold from behind, and while they were on the ground, Perdomo stabbed Miranda with the weapon. Perdomo continued to struggle until other officers responded. 3. The Excluded Testimony from Jayvion Ross On the final day of trial, the defense sought to introduce testimony from an inmate, Jayvion Ross. As defense counsel was unable to interview Ross until that morning, Ross was not revealed beforehand to the prosecution. The prosecution objected, and the trial court asked the defense for a proffer. The defense proffered that Ross would testify that in 2021 Palacios and another officer contacted him and that, based on prior contacts with Palacios, Ross asked to speak with a sergeant or lieutenant. However, as the lieutenant was coming up, Palacios and the other officer knocked Ross down to the ground and beat him. The trial court excluded this testimony under Evidence Code section 352. Although the prosecution objected that Perdomo had no knowledge of the incident with Ross, the court recognized that Ross’ testimony nonetheless was likely permitted under Evidence Code section 1103 as evidence of the victim’s character for violence. However, the court observed, a “significant” amount of time, seven months, had elapsed 7 between the incident alleged by Ross and the June 2022 incident involving Perdomo. The court also found that admitting Ross’ testimony would be unduly time-consuming. Because the prosecution had no prior notice of this testimony, it was entitled to investigate the alleged incident, to call Palacios and other officers to testify about it, and to impeach Ross based on his prior convictions for crimes of moral turpitude. In addition, testimony from Ross about Palacios’ propensity for violence would open the door to evidence of the propensity of both Ross and Perdomo for violence, including their respective convictions for violent crimes. As a consequence, introduction of Ross’ testimony would result in “a mini trial [about] an incident that occurred in 2021 with the proffered witness” as well as “a mini trial about the character and credibility of the witness, vis-a-vis Officer Palacios.” The court also observed that these mini trials would “create a substantial danger of undue prejudice or confusing issues.” Accordingly, the trial court concluded that Ross’ testimony should be excluded under Evidence Code section 352 because “its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time” and confusion. D. The Verdict and Sentence The jury acquitted Perdomo of attempting to murder Miranda but convicted him of all other charges. Following a bifurcated trial, the jury also found true the allegations of Perdomo’s prior convictions. After sentencing hearings on January 8, 2025 and January 17, 2025, Perdomo was sentenced to an aggregate term of 99 years to life, plus 21 years in enhancements. The trial court also imposed a restitution fine of $10,000 under section 1202.4, as well as a court operations assessment of $360 under section 1465.8 and a court facilities assessment of $270 under Government Code section 70373. Perdomo’s counsel did not object to these fines and ancillary costs. However, Perdomo himself interjected, “[a]s far as the restitution, since I got [life without parole], I don’t see why I should even pay 8 restitution. There’s no way I’m going to be able to pay for it since I’m never getting out.” Despite this interjection, the court concluded the sentencing hearing. Perdomo filed a timely notice of appeal. II. DISCUSSION Perdomo raises three issues on appeal. First, he argues that the trial court erred by denying his Pitchess motion for discovery of the confidential personnel records of Palacios and Miranda. Second, he contends that the trial court abused its discretion by excluding the testimony of Jayvion Ross. Third, he argues that under the Supreme Court’s recent decision in Kopp, supra, 19 Cal.5th 1, the trial court should not have imposed restitution fines and ancillary costs without considering his ability to pay. Below, we consider each of these issues. A. Defendant’s Pitchess Motion Perdomo challenges the denial of his Pitchess motion only with respect to Palacios and Miranda. He argues that the trial court abused its discretion by denying discovery concerning the two officers without in camera review because he sought evidence directly supporting his self-defense theory. We are not persuaded. Perdomo did not establish the good cause needed for in camera review because the declaration submitted in support of his motion failed to demonstrate either that, in light of the undisputed facts concerning the June 2022 incident, his self-defense theory was material or that the evidence sought would have supported that theory. 1. Applicable Law In Pitchess, supra, 11 Cal.3d 531, the California Supreme Court held that criminal defendants have a limited right to discovery of the confidential personnel records of peace officers containing information relevant to the defense. (Id., at pp. 536-538.) This right was codified in Evidence Code sections 1043 through 1045. (People v. Mooc (2001) 26 Cal.4th 1216, 1226 (Mooc); Warrick v. Superior Court (2005) 35 Cal.4th 1011, 9 1019 (Warrick).) Under Evidence Code section 1043, to obtain discovery of a peace officer’s personnel records, a defendant must submit an affidavit or declaration showing good cause for the records sought. (Evid. Code, § 1043, subd. (b)(3); see People v. Gaines (2009) 46 Cal.4th 172, 176; Warrick, at p. 1019.) If good cause is shown, the trial court examines the documents sought in camera to determine whether disclosure should be made and, if so, orders disclosure of “only that information falling within the statutorily defined standards of relevance.” (Warrick, at p. 1019; see also Mooc, at pp. 1226-1227.) The “good cause” threshold for in camera review is “ ‘relatively low.’ ” (People v. Thompson (2006) 141 Cal.App.4th 1312, 1316 (Thompson).) Good cause exists if the defendant shows “ ‘materiality’ to the subject matter of the pending litigation and a ‘reasonable belief’ that the agency has the type of information sought.” (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 84; see also Evid. Code, § 1043, subd. (b)(3) [affidavit must “show[] good cause for the discovery or disclosure sought, setting forth the materiality thereof”].) To establish materiality, a defendant must “propose a defense or defenses to the pending charges” and articulate how the discovery sought might be admissible or lead to relevant evidence. (Warrick, supra, 35 Cal.4th at p. 1024.) Accordingly, in evaluating materiality, courts consider whether there is a “logical connection between the charges and the proposed defense” and whether the information sought will “support the proposed defense.” (Id., at pp. 1026-1027; see id., at p. 1021.) To establish good cause, a defendant also must present “a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents.” (Id. at p. 1025.) Accordingly, to establish good cause and obtain in camera review of confidential law enforcement personnel records, a defendant must present “ ‘an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges.’ [Citation.]” (Thompson, at p. 1316, italics added.)

10 Trial court rulings on Pitchess motions are reviewed for abuse of discretion. (Mooc, supra, 26 Cal.4th at p. 1228.) 2. Analysis The trial court did not abuse its discretion in denying in camera review. The declaration supporting Perdomo’s Pitchess motion asserted a defense of self-defense. However, self-defense requires both that the defendant did not create the circumstances that created the need for self-defense and that the defendant reasonably feared imminent death or great bodily injury. The trial court reasonably concluded that the information sought by Perdomo was not material because undisputed facts showed that, whatever information was discovered concerning Palacios and Miranda, Perdomo had no basis for claiming self-defense. a. Self-Defense We begin by describing the principles underlying the defense of self-defense. “Self-defense is an affirmative defense, establishing justification for the defendant’s conduct such that the conduct is not unlawful.” (People v. Ibarra (2024) 106 Cal.App.5th 1070, 1080.) “ ‘For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend.’ ” (People v. Hill (2005) 131 Cal.App.4th 1089, 1101 (Hill), overruled on other grounds in People v. French (2008) 43 Cal.4th 36, 48, fn. 5.) “ ‘To constitute “perfect self-defense, i.e., to exonerate the person completely, the belief must also be objectively reasonable.” ’ ” (Ibid.) “ ‘If the belief subjectively exists but is objectively unreasonable, there is “imperfect self-defense,” ’ ” and the defendant can be convicted of manslaughter but not murder. (Ibid.) The same principles apply to attempted murder. (People v. Horn (2021) 63 Cal.App.5th 672, 682.) The defense of self-defense is “ ‘founded in the doctrine of necessity.’ ” (People v. Hardin (2000) 85 Cal.App.4th 625, 629 (Hardin).) The doctrine does not protect defendants who unnecessarily create situations in which they are compelled to defend themselves. Consequently, a defendant may not assert self-defense if, through his own 11 wrongful conduct, he “created circumstances under which his adversary’s attack or pursuit is legally justified.” (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1 (Christian S.); see also People v. Seaton (2001) 26 Cal.4th 598, 664 [holding burglar who punched victim could not assert self-defense against manslaughter charge because the burglar created the circumstances under which the victim attacked]); People v. Szadziewicz (2008) 161 Cal.App.4th 823, 834 [burglar not entitled to assert self-defense against attempted murder charge where burglary “created the circumstances under which [the victim’s] ‘attack’ was justified”].) The doctrine of necessity also restricts the right of self-defense “to the use of such force as is reasonable under the circumstances.” (People v. Pinholster (1992) 1 Cal.4th 865, 966.) “ ‘[O]nly that force which is necessary to repel an attack may be used in self- defense.’ ” (Hardin, supra, 85 Cal.App.4th at p. 629.) As a consequence, “ ‘deadly force or force likely to cause great bodily injury may be used only to repel an attack which is in itself deadly or likely to cause great bodily injury . . . . [Citations.]’ ” (Id. at pp. 629- 630.) Moreover, the defendant must be faced with “ ‘ “imminent danger to life or great bodily injury.” [Citation.]’ ” (Hill, supra, 131 Cal.App.4th at pp. 1101-1102.) b. Application In his Pitchess motion, Perdomo sought confidential personnel records for Palacios and Miranda to use in asserting that in the June 2022 incident he acted in self- defense. While a self-defense theory may support a Pitchess motion (see, e.g., People v. Moreno (2011) 192 Cal.App.4th 692, 701-702), the declaration that Perdomo submitted in support of his motion failed to demonstrate good cause for such discovery in this case. First, Perdomo failed to demonstrate viable grounds for asserting self-defense. Perdomo created the June 2022 incident through his own misconduct. As the trial court observed, “there is no dispute that he had an inmate-manufactured weapon” at the time of the search, and it was this weapon that caused the metal detector to alert and Palacios to initiate a pat-down search. However, possession of a weapon by a prisoner is illegal and, 12 indeed, a felony. (§ 4502, subd. (a).) Moreover, when the metal detector alerted to the weapon, Perdomo did not relinquish it because Miranda opined that the detector might have alerted to a button, and Perdomo thought that, “if I can get away with it, I will get away with it.” Thus, it was Perdomo’s own wrongful conduct—his illegal possession of a weapon and failure to turn it over when the metal detector signaled—that “created [the] circumstances” leading to the search that Perdomo claims justified his attack on Palacios and therefore he could not assert that he acted in self-defense. (Christian S., supra, 7 Cal.4th at p. 773, fn. 1.) Perdomo testified that he pulled out his weapon only after Palacios began “manhandling” him, by pushing him against the wall and grabbing his neck. However, Palacios used that force only because Perdomo created the circumstances calling for the pat-down search. Consequently, Perdomo had no viable self-defense theory under the undisputed facts of this case. For this reason alone, the trial court properly found that Perdomo failed to show good cause to discover information related to that theory. Perdomo also failed to establish good cause because he failed to show that the requested information was likely to support a self-defense theory. (Warrick, supra, 35 Cal.4th at pp. 1026-1027.) As explained above, use of deadly force in self-defense is justified when a defendant reasonably fears “ ‘ “imminent danger to life or great bodily injury.” ’ ” (Hill, supra, 131 Cal.App.4th at pp. 1101-1102; see People v. Lopez (2011) 199 Cal.App.4th 1297, 1306 [“the defendant must have believed ‘the immediate use of deadly force was necessary to defend against’ the danger”].) The declaration submitted in support of Perdomo’s motion did not assert such a fear. It stated that Perdomo “was afraid that Officer Palacios was targeting him for a beating and/or sexual assault,” not that he feared loss of life or great bodily injury. Nor did Perdomo’s testimony at trial suggest that he was in any imminent danger of death or great bodily injury. At trial, Perdomo testified that he felt like he was in danger once Palacios started manhandling him, but he did not suggest that Palacio did 13 anything creating a danger of death or great bodily injury. In addition, Perdomo testified that he pulled his weapon and attacked Palacios because he “wasn’t gonna let” Palacios touch him inappropriately, not that he did so in response to fear of an imminent danger to his life or great bodily injury. Thus, there is no reason to believe that the confidential records of Palacios and Miranda contained any evidence supporting his self-defense theory. Accordingly, we conclude that the trial court did not abuse its discretion in concluding that Perdomo failed to show good cause and denying his Pitchess motion without conducting in camera review. B. Exclusion of Jayvion Ross’ Testimony Perdomo also asserts that his attempted murder and assault convictions should be reversed because the trial court abused its discretion in excluding testimony from a proposed defense witness, Jayvion Ross. We review this evidentiary ruling for abuse of discretion. (See, e.g., People v. Gutierrez (2009) 45 Cal.4th 789, 809, 819, 827 (Gutierrez).) As explained below, we find no abuse because the trial court properly found the probative value of the testimony substantially outweighed by the danger of undue consumption of time and confusion. 1. Relevant Legal Principles As a general rule, evidence of a person’s character or propensity is inadmissible to prove the person’s conduct on a particular occasion. (Evid. Code, § 1101, subd. (a) [“Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”].)

14 Evidence Code section 1103 creates an exception to the general prohibition against character evidence for victims of violent crime. (See People v. DelRio (2020) 54 Cal.App.5th 47, 54 (DelRio).) Under this section, a criminal defendant may offer evidence of a victim’s character to show he or she acted in conformity with that character: “(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.” (Evid. Code, § 1103, subd. (a)(1).) In addition,, if a defendant offers such evidence of a victim’s violent character, the prosecution may offer evidence of the defendant’s violent character. (Evid. Code, § 1103, subd. (b); see People v. Myers (2007) 148 Cal.App.4th 546, 552.) Even when permitted under Evidence Code section 1103, evidence of a victim’s character may be excluded under Evidence Code section 352. (Gutierrez, supra, 45 Cal.4th at pp. 827-828.) Under the latter section, a court “may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) Moreover, “ ‘the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.]’ ” (People v. Lewis (2001) 26 Cal.4th 334, 374.) Accordingly, appellate courts will not disturb a trial court’s application of Evidence Code section 352 “except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

15 2. Analysis The trial court did not abuse its discretion in concluding that the probative value of Ross’ proposed testimony was substantially outweighed by the dangers of undue consumption of time and confusion. According to Perdomo’s proffer, Ross would have testified about a 2021 incident in which he was knocked to the ground and beaten by Palacios and an unnamed officer. On appeal, Perdomo does not offer any argument concerning the probative value of this testimony. Nevertheless, we presume that the testimony had some probative value because when a defendant asserts that he acted in self-defense, evidence of a victim’s prior violent conduct is relevant. (See, e.g., People v. Wright (1985) 39 Cal.3d 576, 587; People v. Shoemaker (1982) 135 Cal.App.3d 442, 446-447; DelRio, supra, 54 Cal.App.5th at pp. 55-56.) However, Ross’ testimony had little probative value. In the first place, there is no indication that on June 25, 2022, Perdomo had any knowledge of the 2021 incident between Palacios and Ross. Accordingly, that incident had little bearing on whether Perdomo had a reasonable fear of imminent death or great bodily injury when he attacked Palacios. (See People v. Cash (2002) 28 Cal.4th 703, 726.) Even more important, as explained above, undisputed evidence showed that Perdomo created the circumstances that led to the June 2022 incident. Consequently, Perdomo’s self-defense theory failed whether or not Palacios had a propensity for violence, and therefore Ross’ testimony concerning Palacios’ prior conduct was immaterial. Even if Ross’ proposed testimony had some probative value, the court acted within the scope of its discretion in finding that value substantially outweighed by the dangers of undue consumption of time and confusion. Although Perdomo argued that Ross’ testimony likely would take only “10 or 15 minutes,” the trial court reasonably concluded that admission of that testimony would result in mini trials on both the incident asserted by Ross as well as Ross’ credibility. In 16 the first place, because Ross was not produced as a witness until the last day of testimony, the prosecution would have been entitled to investigate both the incident he described and the credibility of Ross, who was convicted of “multiple crimes of moral turpitude.” Additionally, in response to Ross’ testimony, the prosecution likely would recall Palacios to testify about any alleged incident with Ross. Ross’ testimony also would have opened the door to testimony from rebuttal witnesses not only about Ross’ violent character, but also about Perdomo’s character. (Evid. Code, § 1103, subd. (b).) Moreover, the prosecution indicated that, if Ross testified regarding Palacios’ character for violence, it would seek to introduce evidence of Ross’ multiple crimes of moral turpitude dating back to 2012 and 2021. The prosecution also indicated that it would seek to introduce evidence of Perdomo’s character for violence, including his two prior murder convictions. Thus, the trial court had ample reason for concluding that admission of Ross’ testimony would create a danger of undue consumption of time and also that the ensuing admission of evidence concerning the crimes of Ross and Perdomo would create a danger of confusion. Accordingly, we conclude the trial court acted within the scope of its discretion in excluding Ross’ testimony because the at best limited probative value of Ross’ testimony was substantially outweighed by the dangers of undue consumption of time and confusion. C. The Court-Imposed Payments Perdomo argues that, if his convictions are upheld, the $10,000 restitution fine and $630 in assessments imposed in his sentence should be vacated because they were imposed without considering his ability to pay. In light of the Supreme Court decision in Kopp, supra, 19 Cal.5th 1, which issued while this appeal was pending, we requested supplemental briefing. Reviewing the fines and assessments for abuse of discretion (People v. Ramirez (2021) 10 Cal.5th 983, 1043), we uphold the fines but conclude that 17 the assessments should be vacated so that Perdomo’s ability to pay them may be considered. We start with the Attorney General’s contention that Perdomo forfeited any objection based on his inability to pay. At sentencing, Perdomo’s counsel did not object to the restitution fine or assessments imposed. The Attorney General asserts that therefore Perdomo has forfeited any objection to the fine and assessments. Perdomo responds that he personally objected that he was unable to pay these obligations, which preserved this objection for appeal or, alternatively, that his trial counsel rendered ineffective assistance by failing to object. In light of the ineffective assistance of counsel claim, we exercise our discretion to reach the merits of Perdomo’s challenge. (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) In Kopp, our Supreme Court granted review to resolve a conflict among the Courts of Appeal regarding challenges to court-ordered payments or obligations based on a defendant’s inability to pay. (Kopp, supra, 19 Cal.5th at p. 9.) Kopp divided such payments into three categories: fines, ancillary costs, and victim restitution. (Id., at p. 11.) Addressing the first two categories, Kopp held that fines (including restitution fines under section 1202.4) are punitive in nature, that fines should be analyzed under the excessive fines clauses in the United States and California Constitutions, and that courts need not hold a hearing on a defendant’s ability to pay before imposing all fines. (Id. at pp. 18-24; see also id. at p. 30 [treating section 1202.4 as imposing fines].) By contrast, Kopp continued, ancillary costs (including court facilities fees under Government Code section 70373 and court operations fees under section 1465.8) are not punitive in nature, and equal protection principles require a rational basis for treating ancillary fees for indigent criminal defendants differently than indigent civil litigants. (Id. at p. 25; see also id. at pp. 28, 30 [treating court operations and facilities assessments as ancillary costs].) Finding no such basis, Kopp concluded that, when requested, trial courts must consider a defendant’s ability to pay ancillary costs. (Id, at pp. 24-30, 31.)

18 The $10,000 restitution fine imposed on Perdomo is not excessive on its face. As the trial court observed, Perdomo was convicted of extremely serious crimes, including attempted murder. Under the Penal Code, a trial court “shall impose” a restitution fine at sentencing, which it has discretion to set, “commensurate with the seriousness of the offense,” from a minimum of $300 up to a maximum of $10,000 for each felony conviction. (§ 1202.4, subd. (b)(1).) In setting such a fine, a court may consider, among other things, “the seriousness and gravity of the offense” as well as the defendant’s ability to pay (§ 1202.4, subd. (d)), and the fine may be set “as the product of the minimum fine pursuant to paragraph [b](1) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.” (§ 1202.4, subd. (b)(2).) Based on this calculation, the trial court could have imposed a restitution fine on Perdomo in excess of $200,000—$300 multiplied by 99 years to life plus 21 years, multiplied by eight felony counts—were it not for the $10,000 statutory cap. Although Perdomo references the excessive fines clauses in the United States and California Constitutions in his opening and supplemental briefs, he offers no argument why, even if he lacked the ability to pay it, the fine imposed in this case was excessive. Such unsupported assertions of error are inadequate. (See People v. Williams (1997) 16 Cal.4th 153, 206 [“Points ‘perfunctorily asserted without argument in support’ are not properly raised.”].) As a consequence, we conclude that the trial court did not abuse its discretion in imposing a restitution fine on Perdomo without considering his ability to pay. However, Perdomo’s ability to pay the $630 in ancillary costs imposed on him should be considered. Kopp held that, “[i]f requested by defendant, the court must consider defendant’s inability to pay before imposing” either a court operations or court facilities assessment. (Kopp, supra, 19 Cal.5th at p. 31.) Citing pre-Kopp decisions suggesting that prisoners are able to pay fines from their prison wages (see, e.g., People v. Lowery (2020) 43 Cal.App.5th 1046, 1060-1061; People v. Aviles (2019) 39 Cal.App.5th 19 1055, 1076), the Attorney General asserts that Perdomo may have the ability pay the ancillary costs imposed in his sentence. We are not persuaded. As Justice Liu observed in his concurrence in Kopp, “paid jobs may not be available” to all prisoners, and even when they are, wages for incarcerated prisoners currently range from 16 to 74 cents per hour. (Kopp, at pp. 35 (conc. opn. of Liu, J.).) Consequently, the assertion that an indigent prisoner can earn wages does not demonstrate that a particular defendant is able to pay court-imposed ancillary costs. Consequently, we conclude that the ancillary costs imposed on Perdomo should be vacated, and on remand the trial court should consider Perdomo’s ability to pay such costs. III. DISPOSITION The judgment is reversed, the ancillary fees imposed on appellant are vacated, and this matter is remanded to the trial court with instructions to consider whether appellant has the ability to pay the court operations assessment and the court facilities assessment imposed in his sentence. In all other respects, the judgment is affirmed.

20 ____________________________ BROMBERG, J.

WE CONCUR:

____________________________________ GREENWOOD, P. J.

____________________________________ DANNER, J.

People v. Perdomo H052899