Opinion
D057929
10-11-2011
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ARANDA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCE299289)
APPEAL from a judgment of the Superior Court of San Diego County, Peter C. Deddeh, Judge. Affirmed.
INTRODUCTION
Robert Aranda pleaded guilty to committing battery with serious bodily injury (Pen. Code, § 243, subd. (d)). The trial court sentenced him to the upper term of four years in state prison and imposed various fines and fees, including a $154 booking fee.
Aranda appeals, contending the trial court unfairly considered the circumstances of his plea bargain and what his maximum sentence might otherwise have been in deciding to impose an upper term sentence. He also contends the court impermissibly imposed the booking fee without first considering whether he had the ability to pay it. We conclude these contentions lack merit and affirm the judgment.
BACKGROUND
We derive our summary of the facts underlying Aranda's offense from the evidence produced at the preliminary hearing, which the parties agreed provided the factual basis for Aranda's guilty plea.
David Neal went to a party at a friend's house with his wife Shannon and their young son. David brought three large cans of beer with him, which he drank at the party. He also drank another small can of beer, some tequila, and some margaritas. Aranda also attended the party and was drinking.
For clarity, we refer to David and Shannon by their first names.
Within 30 to 45 minutes after David and Shannon arrived, Aranda spoke with David. Aranda indicated he was upset with Shannon for discussing something with Aranda's "ex" that Aranda did not want Shannon to discuss. Aranda grabbed David, kissed him on the cheek a couple of times, and implored him to "Please tell [Shannon] to watch her mouth." Aranda's conduct made David nervous. David thought Aranda was being paranoid and told him he did not think Shannon had said anything.
Not long afterwards, Aranda talked with Shannon for about 10 or 15 minutes and acted ornery. At the end of their conversation, Shannon walked away feeling Aranda was upset with her, but she had no idea why.
As the party continued, Aranda became "more rambunctious." He tried to pick up David and Shannon's son in what David thought was a violent manner. He also played around roughly with one of Shannon's friends, causing the friend to cry.
At some point, David and Shannon's son ran outside and Shannon chased after him. David, Aranda, and Aranda's daughter were outside with others around a fire pit. Both David and Aranda were intoxicated.
According to Aranda's daughter, Aranda did not seem intoxicated.
As Shannon went by the group, Aranda grabbed a handful of her hair, yanked her head back, and said, "Where are you going, b----?" David grabbed Aranda's wrist and loudly said, "Hey, that's my wife. What are you doing, dude?" Aranda said, "What?" David repeated his second question and Aranda swung at David.
According to the party host and Aranda's daughter, David slapped Aranda. Aranda returned the slap. David tripped back, fell over the fire pit, and hit the ground. He did not lose consciousness.
David fell backwards and hit the ground. He lost consciousness for about four or five seconds. When he regained consciousness, he stood up, but was dizzy and disoriented. He, Shannon and their son got into their car and drove away. He lost consciousness again in the car. He had a very large bump on the back of his head and blood was coming down his face. He has ongoing headaches and dizzy spells.
David and Shannon reported the incident to the San Diego County Sheriff's Department. Deputies went to the home where the incident occurred. When they arrived, Aranda went into a bedroom and hid under a bed.
Guilty Plea
The San Diego County District Attorney filed a complaint charging Aranda with one count of battery with serious bodily injury (Pen. Code, § 243 subd. (d)). Following a preliminary hearing, the trial court held Aranda to answer the charge, finding there was adequate factual support for each element of the offense, including the serious bodily injury element. The court recognized it had discretion to reduce the offense to a misdemeanor and indicated it might have been willing to do so but for Aranda's prior criminal history, his parole status at the time of the offense, and his attempt to hide from sheriff's deputies, which the court thought demonstrated some consciousness of guilt.
The district attorney subsequently filed an information also charging Aranda with one count of battery with serious bodily injury. At his arraignment on the information, Aranda pleaded not guilty and at the same time indicated a desire to change his plea. Before Aranda could do so, the prosecutor moved for permission to amend the information by interlineation to include a prior strike conviction allegation and a prior serious felony conviction allegation. Finding the prosecution had no justification for the delay in asserting these allegations, the trial court denied the motion. Aranda then pleaded guilty to the offense without a plea bargain to take advantage of the absence of the prior conviction allegations.
Sentencing
The probation report prepared for the sentencing hearing recommended the trial court sentence Aranda to the upper term of four years in prison for the offense. The report noted no mitigating circumstances and identified three possible aggravating circumstances: Aranda had numerous prior sustained juvenile delinquency petitions and adult convictions, including prior battery, petty theft, and robbery convictions; he had served a prior prison term; and he was on parole at the time he committed the offense in this case.
The prosecutor filed a sentencing memorandum also seeking an upper term sentence. The prosecutor argued an upper term sentence was appropriate for essentially the same reasons specified in the probation report. Elaborating on those reasons, the prosecutor asserted Aranda had been out on parole less than four months when he committed the offense in this case, the offense caused great bodily injury, Aranda has a history of making poor decisions with dangerous consequences after using alcohol, and past efforts to rehabilitate him have not been successful.
At the sentencing hearing, defense counsel sought a low or midterm sentence, arguing the circumstances of the offense were not sufficiently aggravated to warrant an upper term sentence. Moreover, while defense counsel acknowledged Aranda's lengthy criminal history, he argued most of Aranda's criminal history was alcohol related and involved misdemeanor conduct. Consequently, he argued Aranda's criminal history justified the denial of probation and perhaps the denial of a lower term sentence, but it did not justify the imposition of an upper term sentence. Defense counsel further argued that, while Aranda pleaded guilty for strategic reasons, the evidence was in dispute and the case was potentially defensible. He also pointed out that the trial judge who conducted the preliminary hearing might have favorably considered reducing the offense to a misdemeanor, but for Aranda's criminal history and his attempt to hide from police after the offense.
During his arguments, defense counsel referenced a statement in mitigation he submitted to the court for the sentencing hearing. The statement was not included in the record on appeal.
Responding to defense counsel's arguments, the trial court agreed that the crime itself was not aggravated. The trial court noted, however, that Aranda apparently inflicted great bodily injury by knocking the victim out, but did not admit to doing so because the prosecutor did not include a great bodily injury enhancement allegation in the charge against Aranda. The trial court further noted, "You did a good job on your client's behalf by getting him to plead guilty before they added a five-year prior, a strike, and a G.B.I. [great bodily injury] allegation, which would have made his exposure a lot, lot worse. And then he would have been exposed to at least 80 percent or maybe 85 percent. So even if they don't put the G.B.I on, he's still got a strike and a prior, so his minimum is nine years."
Defense counsel acknowledged it was impossible for the trial court to look at the case "without seeing what could have been." Defense counsel also acknowledged the trial court could properly consider Aranda's criminal history in sentencing Aranda. Nonetheless, defense counsel urged the trial court to base its sentence solely on the facts of this case and the charges actually alleged against and pleaded guilty to by Aranda.
When it was his turn to speak, the prosecutor also remarked that defense counsel had done a "very good job" for Aranda by positioning him to get a sentence of no more than four years. He then argued for the imposition of the maximum sentence because the offense, like Aranda's past crimes, involved a combination of alcohol use and violence. The prosecutor further argued the offense occurred a few months after Aranda had been paroled and while Aranda was in the company of his friends, demonstrating he was a danger to the community because there were no limits to his willingness to use violence when he is intoxicated.
Defense counsel responded that Aranda's offense was less egregious than his past offenses. In addition, Aranda now had two prior strike convictions, which would adequately deter his future criminality without the need for sentencing him more harshly than the circumstances of the offense warranted.
The trial court then announced and explained its sentencing choice: "[H]e pled to battery with serious injury, and so that's a felony and a strike. So, I mean, it's not like he pled to a battery, like a battery with a prior and so, therefore, it's a felony. It's a felony because he caused serious bodily injury. Now in the spectrum of serious bodily injury that we see here, this is not the most serious, and I completely agree with that. And in terms of was there some provocation, it sounds like there was. It sounds like, from looking at the reports, that the victim was not behaving very well, and so your client punched him. And apparently your client punched him with enough force to knock him out. And so I understand that looking at the crime itself, it's not the most egregious of batteries with serious bodily injury. But in this job that I'm in, I have to look at his past and I have to factor that into the equation. And so that's what I'm doing."
The court continued, "And [the prosecutor] is right, that you did a fantastic job for your client to get him to this point where we are today, because generally speaking — I just want to say to all the people that are here, that generally speaking, he would be looking at nine years at 80 percent. That's what would be the starting point for him for this crime with his record. But [defense counsel] engineered a situation where [Aranda] pled to the battery with serious bodily injury and didn't have to plead to a strike, didn't have to admit a five-year prior. Otherwise, he would be looking at nine years at 80 percent and we wouldn't even be having this conversation right now. And so, I mean, to me, given his prior record, I'm not going to ignore that. And I think his prior record does aggravate this offense and does make it a four-year case, because alcohol is involved in this, alcohol has been involved in his past, alcohol has been a problem, and he's got to address that problem or he's going to keep going back to prison. And secondly, he has some violence, not extensive violence, but a very violent incident in '07, and then he had some violence back in his past as well. So I think that looking at the cumulative effect of his record, yes, this is not the most serious battery with serious bodily injury, but looking at the totality of his record, I think that — I think that aggravant outweighs any mitigants or takes it from a mid-term case to an upper-term case. [¶] So, I'm going to find the upper term of four years is the appropriate term . . . ."
DISCUSSION
I
Propriety of Upper Term Sentence
Aranda contends we must reverse his sentence because the trial court unfairly considered the circumstances of his plea bargain and what his maximum sentence might otherwise had been in deciding to impose the upper term. We review a trial court's sentencing decision for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval).) We discern no abuse of discretion in this case.
"[A] trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions. (See, e.g., Cal. Rules of Court, rule 4.420(c) [fact underlying an enhancement may not be used to impose the upper term unless the court strikes the enhancement]; id., rule 4.420(d) [fact that is an element of the crime may not be used to impose the upper term].) The court's discretion to identify aggravating circumstances is otherwise limited only by the requirement that they be 'reasonably related to the decision being made.' (Cal. Rules of Court, rule 4.408(a).)" (Sandoval, supra, 41 Cal.4th at p. 848, fn. omitted.)
Here, the trial court decided to impose the upper term because of Aranda's lengthy criminal history, which included common elements of alcohol abuse and violence. These were appropriate factors for the court to consider. (Cal. Rules of Court, rules 4.408(a), 4.420(b), 4.421(b).) Although the court did reference defense counsel's fine representation of Aranda and his skillful avoidance of a harsher maximum penalty, we do not believe the court's remarks, considered in context, can be fairly interpreted as an attempt to interject improper considerations into its sentencing decision.
As we understand the flow of arguments from our review of the record of the sentencing hearing, defense counsel sought a midterm sentence using two carefully crafted and related arguments. Defense counsel first asserted the facts of the offense were not sufficiently egregious to warrant an upper term sentence. Defense counsel then asserted Aranda's criminal history, while sufficiently egregious to warrant the denial of probation and perhaps the denial of a lower term sentence, was not sufficiently egregious to warrant an upper term sentence.
Although the trial court agreed with the first assertion, it disagreed with the second and believed Aranda's criminal history was a significant aggravating factor in this case. Moreover, the trial court's remarks on defense counsel's skillful handling of this case predominantly reflect the trial court's observation Aranda's criminal history had not been accounted for in another way that would have precluded the court from properly considering it in sentencing him. Neither party disputes the validity of this observation. (See, e.g., Pen. Code, § 1170, subd. (b); Cal. Rules of Court, rule 4.420(c) [trial court may not base an upper term sentence on the fact of an enhancement for which a sentence was imposed].)
Considering the trial court's remarks in their proper context, we can find nothing within them to suggest, as Aranda asserts, that the court desired to penalize Aranda because of his defense counsel's prowess. In fact, we do not believe we can even reasonably infer such a desire since it was the trial court's ruling denying the prosecution's motion to amend, made with full awareness of defense counsel's strategy, which enabled Aranda's favorable plea. Accordingly, we conclude Aranda has not established the trial court abused its discretion by imposing an upper term sentence.
II
Propriety of Booking Fee
The probation report recommended Aranda pay a criminal justice administration fee of $154 under "GC2955001." At the sentencing hearing, the trial court imposed a $154 "booking fee." Aranda contends we must reverse the booking fee, or alternatively strike it, because the trial court did not affirmatively determine he had the ability to pay the fee before imposing it. Because Aranda did not object to the imposition of the fee in the trial court, the People argue he has forfeited this contention on appeal. We agree.
This appears to be a typographical error as there is no Government Code section 2955001. (Further statutory references are also to the Government Code unless otherwise stated.) However, section 29550 et seq. provides for the imposition of a criminal justice administrative fee to reimburse arresting agencies for the cost of booking and processing arrested persons. Section 29550, subdivision (c), as implemented by subdivision (d), provides for the imposition of the fee on convicted persons arrested by county officers. Section 29550.1 provides for the imposition of the fee on convicted persons arrested by officers of a city, special district, school district, community college district, college, university, or other local arresting agency. Section 29550.2, subdivision (a), provides for the imposition of the fee on convicted persons arrested by officers of any governmental entity not specified in sections 29550 and 29550.1.
The trial court did not specify the statutory basis for the booking fee. As the parties point out, the probable basis is section 29550, subdivision (c), as sheriff's deputies arrested Aranda.
It is not clear from the statutory scheme whether the trial court had an affirmative duty to determine Aranda's ability to pay before it imposed the fee. Section 29550, subdivision (d)(1), which implements subdivision (c) and gives the trial court the discretion to impose the fee on convicted persons not granted probation, does not contain an express requirement for an ability to pay determination. On the other hand, section 29550, subdivision (d)(2), which mandates the trial court impose the fee on a convicted person granted probation does contain this requirement. Section 29550.1 does not contain this requirement in either circumstance, while Section 29550.2 appears to contain this requirement in both circumstances. The parties did not brief this point well and we need not decide it as we resolve Aranda's contention on another ground.
There is a split of authority on this issue. (People v. Hodges (1999) 70 Cal.App.4th 1348, 1357 [a defendant who fails to object to the imposition of a booking fee in the trial court forfeits a challenge to the fee on appeal]; People v. Pacheco (2010) 187 Cal.App.4th 1392, 1397 (Pacheco) [a defendant who fails to object to the imposition of a booking fee in the trial court does not forfeit a challenge to the fee on appeal if the challenge is to the sufficiency of the evidence to support a determination the defendant had the ability to pay the fee]. The California Supreme Court is currently reviewing the matter. (People v. McCullough, review granted June 29, 2011, S192413.) Absent further guidance from the Supreme Court, we conclude the former view is more persuasive than the latter.
As the Supreme Court has previously explained, generally "only 'claims properly raised and preserved by the parties are reviewable on appeal.' [Citation.] We adopted this waiver rule 'to reduce the number of errors committed in the first instance' [citation], and 'the number of costly appeals brought on that basis' [citation]. In the sentencing context, we have applied the rule to claims of error asserted by both the People and the defendant. [Citation.] Thus, all 'claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' raised for the first time on appeal are not subject to review." (People v. Smith (2001) 24 Cal.4th 849, 852 (Smith).)
The Supreme Court has "created a narrow exception to the waiver rule for ' "unauthorized sentences" or sentences entered in "excess of jurisdiction." ' [Citation.] Because these sentences 'could not lawfully be imposed under any circumstance in the particular case' [citation], they are reviewable 'regardless of whether an objection or argument was raised in the trial and/or reviewing court.' [Citation.] [The Court] deemed appellate intervention appropriate in these cases because the errors presented 'pure questions of law' [citation], and were ' "clear and correctable" independent of any factual issues presented by the record at sentencing.' [Citation.] In other words, obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not waivable." (Smith, supra, 24 Cal.4th at p. 852.) As the error Aranda asserts can only be corrected by remanding the matter for further factual findings on Aranda's ability to pay, the narrow exception to the general forfeiture rule plainly does not apply here.
Aranda did not address the general forfeiture rule or its narrow exception in his briefing. Instead, he relies solely on the Pacheco decision. Pacheco is inapposite because, unlike the defendant in Pacheco, Aranda has not specifically framed his challenge to the booking fee as a sufficiency of the evidence challenge. In fact, it is not clear Aranda could reasonably frame his challenge in this manner as there are indications in the probation report he had some financial means at the time of the sentencing hearing.
Moreover, the Pacheco court did not discuss, much less distinguish, the California Supreme Court authority on the general forfeiture rule. Rather, the Pacheco court relied on two of its own prior decisions, People v. Viray (2005) 134 Cal.App.4th 1186 (Viray) and People v. Lopez (2005) 129 Cal.App.4th 1508 (Lopez). (Pacheco, supra, 187 Cal.App.4th at p. 1397.) Viray involved various challenges to a fee imposed under section 987.8 to reimburse the public defender's office for defense costs. The court reached a sufficiency of the evidence challenge notwithstanding the defendant's failure to object to the fee in the trial count primarily because it found defense counsel had an inherent conflict of interest and the defendant was effectively unrepresented in the trial court as to the fee. (Viray, at pp. 1213-1217.)
The lack of discussion may be due to the briefing the appellate court received. (Pacheco, supra, 187 Cal.App.4th at p. 1397 ["Respondent offers nothing to convince us [a challenge to a booking fee based on the sufficiency of the evidence is not forfeited by failure to object to the fee in the trial court]."].)
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Lopez also involved a sufficiency of the evidence challenge to a fee imposed under section 987.8. Although the defendant did not object to the fee at the trial court, the appellate court allowed the challenge; however, it ultimately decided the matter on legal rather than sufficiency of the evidence grounds. More particularly, the appellate court concluded that, since the defendant had been sentenced to prison, the fee presumptively did not apply to the defendant absent an express finding of unusual circumstances, which the trial court did not make. The court further noted that, because it was reversing defendant's convictions, the trial court would have an opportunity to reconsider the fee. (Lopez, supra, 129 Cal.App.4th at pp. 1536-537.)
We believe Viray and Lopez are too legally and factually narrow to support a broad exception to the general forfeiture rule for substantial evidence challenges. We are also concerned such an exception has the potential to eviscerate the general forfeiture rule and its purpose because virtually any challenge to a fee imposed without an objection at a sentencing hearing can be framed as a sufficiency of the evidence issue on appeal.
Moreover, we are doubtful the Supreme Court would condone the widespread use of substantial evidence challenges to overcome forfeitures of issues addressed most easily, effectively, and economically in the trial court. We have identified only one instance in which the court permitted the use of a substantial evidence challenge in this manner. In People v. Butler (2003) 31 Cal.4th 1119 (Butler), the court allowed a sufficiency of the evidence challenge to a sentencing order for HIV testing. The order had not been objected to below, but its validity was statutorily predicated on the existence of probable cause. Consistent with the narrow exception to the general forfeiture rule, the court reasoned the challenge was appropriately resolved on appeal because the existence of probable cause is a legal question that an appellate court can determine simply from examining the appellate record. (Id. at pp. 1126-1127.) There are no analogous circumstances in this case.
Furthermore, the court expressly stated its analysis in Butler should not be construed to undermine the general forfeiture rule that "absent timely objection sentencing determinations are not reviewable on appeal, subject to the narrow exception articulated in [Smith]." (Butler, supra, 31 Cal.4th at p. 1128, fn. 5 (maj. opn. of Brown, J.); see also id. at p. 1130 (conc. opn. of Baxter, J.) ["[D]espite our ruling today, it remains the case that other sentencing determinations may not be challenged for the first time on appeal, even if the defendant claims the resulting sentence is unsupported by the evidence. This includes claims that the record fails to demonstrate the defendant's ability to pay a fine"].) Following this guidance, we conclude by failing to object to the imposition of the booking fee below, Aranda has forfeited his challenge to it on appeal.
DISPOSITION
The judgment is affirmed.
MCCONNELL, P. J. WE CONCUR:
BENKE, J.
HUFFMAN, J.