Opinion
E071831
02-07-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL CASSERLY, Defendant and Appellant.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Michelle Ryle, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BAF1800326) OPINION APPEAL from the Superior Court of Riverside County. Jorge C. Hernandez, Judge. Affirmed. Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Michelle Ryle, Deputy Attorneys General for Plaintiff and Respondent.
Michael Casserly threatened to stab a shopping center security guard. A jury convicted him of a single count of making criminal threats. (Pen. Code, § 422.) The court sentenced him to 16 months in prison and awarded him 545 days of custody credits. Casserly argues that the court erroneously admitted evidence that he possessed a concealed knife and failed to instruct the jury correctly on voluntary intoxication. He also argues that, under section 2900.5, the court should have used his excess custody credits to reduce the restitution fine and fees imposed at sentencing. Lastly, he argues that, under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the court erred by imposing the restitution fine and fees without determining his ability to pay them. We affirm.
Further undesignated statutory references are to the Penal Code.
BACKGROUND
Michael Wright was a security guard at a shopping center in Hemet, California. Wright had regular contact with Casserly in the course of Wright's job duties. At the time of the relevant events, Wright had encountered Casserly 40 to 50 times. Casserly was under the influence of alcohol on most of those occasions. Wright believed Casserly had a drinking problem. Wright and two coworkers had previously told Casserly that he was not allowed at the shopping center.
One afternoon in March 2018, Casserly was at the shopping center, and Wright told him to leave or Wright would place him under citizen's arrest. Casserly tried to push past Wright, and Wright grabbed his left arm and tried to handcuff him. Casserly began to reach for his right coat pocket. He said that he was going to "f'ing cut" or stab Wright and repeated the threat five to seven times. A bystander heard Casserly say that he had a knife on him and that he was going to stab Wright. Casserly struggled, and both men fell to the ground. With the help of a second bystander, Wright secured Casserly in handcuffs. Wright searched Casserly and found a pocketknife in his right coat pocket. During the incident, Wright feared that Casserly would actually carry out his threat. Casserly had never before threatened to stab Wright. But he had threatened to punch Wright, and he was always argumentative and resisted efforts to remove him from the center.
Casserly testified in his own defense. He was 58 years old, unemployed, and had a drinking problem for the past 35 years. He could not remember the last time he held a job. He drank 12 to 24 beers every day and bought them with money he got from his mother.
Casserly said that he frequented the shopping center and went there to drink. He did not recall being at the shopping center or interacting with Wright on the day in question because he was "probably intoxicated." The police officer who responded to the scene said that Casserly displayed signs and symptoms of being under the influence of alcohol. Casserly had slurred speech and watery eyes, and he displayed a "slowness of thought."
DISCUSSION
I. The Concealed Knife Evidence
Casserly moved during trial to exclude evidence of the knife found in his coat pocket. He argued that the evidence was irrelevant, and even if it were relevant, it was more prejudicial than probative. The court denied his motion. Casserly argues on appeal that the court erred, but we disagree.
We review the court's ruling for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 724.) Evidence is relevant if it bears on the credibility of a witness or has "any tendency in reason to prove or disprove" a material disputed fact. (Evid. Code, § 210.) The court "may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice." (Evid. Code, § 352.)
Section 422 defines the criminal threat offense. The section prohibits "'willfully threaten[ing] to commit a crime which will result in death or great bodily injury to another person' under specified circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 224.) The offense requires the "specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out." (§ 422, subd. (a).)
In its entirety, section 422, subdivision (a), states: "Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison."
The court did not abuse its discretion by admitting evidence of the concealed knife. The evidence was relevant to the specific intent element—that is, whether Casserly intended that Wright take his statement as a threat. The circumstances surrounding a threat may "give meaning to the words and imply that [the defendant] meant serious business" when he or she made the threat. (People v. Martinez (1997) 53 Cal.App.4th 1212, 1221.) The evidence showed that Casserly reached for his pocket when he threatened to stab Wright, and the bystander heard him tell Wright that he had a knife. Casserly's possession of the knife showed that he was serious about his threat and thus intended Wright to take his threat seriously.
Casserly contends that the specific intent element focuses on the victim's reasonable perception of what the defendant intended by the threat, and the knife was irrelevant to Wright's perception, because he did not know that Casserly had the knife until after the threat. The argument lacks merit. The specific intent element focuses on the defendant's state of mind, not the victim's. Other elements focus on the victim's perception—namely, that the threat actually caused the victim "'to be in sustained fear'" and that the fear "was 'reasonabl[e]' under the circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 228.) Casserly's argument confuses elements of the offense.
Casserly also argues that the court should have excluded the knife evidence as inflammatory and prejudicial character evidence, because it permitted the inference that he was a violent and dangerous person and that he actually intended to injure or kill Wright. First, the evidence was not inadmissible character evidence. "[E]vidence of a person's character . . . is inadmissible when offered to prove his or her conduct on a specific occasion." (Evid. Code, § 1101, subd. (a).) "[C]haracter evidence comprises something other than evidence of conduct at the time in question." (People v. Myers (2007) 148 Cal.App.4th 546, 552.) The knife was merely evidence of Casserly's conduct at the time in question, and as discussed, it was relevant to prove his specific intent at that time.
Second, to the extent that the jury might have inferred from the knife that Casserly actually intended to injure or kill Wright, the evidence was not unduly prejudicial within the meaning of Evidence Code section 352. A criminal threat may occur "even if there is no intent of actually carrying it out." (§ 422, subd. (a).) But it does not follow that evidence of intent to carry out the threat is irrelevant. As in this case, such evidence may bear on the required specific intent. In other words, the knife evidence was "prejudicial" only in the sense that it tended to prove Casserly's guilt. This is not the kind of prejudice that Evidence Code section 352 is designed to prevent. "'[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case.'" (People v. Karis (1988) 46 Cal.3d 612, 638.) But the "'"prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging."'" (Ibid.)
Casserly lastly argues that the court should have excluded the knife evidence as cumulative because other evidence tended to prove his state of mind. The court may exclude cumulative evidence under Evidence Code section 352 on the ground that it "will necessitate undue consumption of time." (People v. Burgener (1986) 41 Cal.3d 505, 525, disapproved on another ground by People v. Reyes (1998) 19 Cal.4th 743, 756.) But the knife evidence required very little time. Wright's testimony about searching Casserly and finding the knife consumed less than a page in the reporter's transcript. There was no danger that the evidence would unduly consume trial time, especially in light of its probative value.
For all of these reasons, the court did not abuse its discretion by admitting evidence that Casserly had a knife in his pocket.
II. Jury Instruction on Voluntary Intoxication
Casserly argues that the court erroneously instructed the jury on voluntary intoxication. We conclude that the court's voluntary intoxication instruction was incorrect, but the error was not prejudicial.
The court instructed the jurors on the elements of making a criminal threat with CALCRIM No. 1300. At Casserly's request, it also instructed them on voluntary intoxication. The court modified CALCRIM No. 3426 so that it stated: "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with specific intent to cause sustained fear of [Wright]. [¶] A person is voluntarily intoxicated if he [or she] becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect or willingly assuming the risk of that effect. [¶] In connection with the charge of criminal threats, the People have the burden of proving beyond a reasonable doubt that the defendant acted with the intent to cause fear in [Wright]. If the People have not met this burden, you must find the defendant not guilty of criminal threats. [¶] You may not consider evidence of voluntary intoxication for any other purpose."
While the record does not disclose any objection by Casserly to the court's instruction, we reject the People's argument that Casserly forfeited the issue. "[W]e may review any instruction which affects the defendant's 'substantial rights,' with or without a trial objection. [Citation.] '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. Ramos (2008) 163 Cal.App.4th 1082, 1087.)
The People concede that the court's instruction misstated the law, and we agree. We review Casserly's claim of instructional error de novo. (People v. Mitchell (2019) 7 Cal.5th 561, 579.) Evidence of voluntary intoxication was admissible solely to show whether Casserly formed the required specific intent. (§ 29.4, subd. (b).) He was required to intend that Wright take his statement as a threat. (§ 422.) But the voluntary intoxication instruction stated that the specific intent "to cause sustained fear" was required. This was error.
Nevertheless, the error did not prejudice Casserly. Even if the jurors were instructed properly, it is not reasonably probable that Casserly would have achieved a better result. (People v. Pearson (2012) 53 Cal.4th 306, 325 [applying the "'reasonable probability' test of prejudice" to the court's instructional error].) The court's instruction essentially added an element to the offense, the specific intent to cause sustained fear. The court instructed the jurors that (1) they could consider voluntary intoxication solely to decide whether Casserly intended to cause sustained fear in Wright, (2) the People had the burden of proving such intent beyond a reasonable doubt, and (3) if the People did not carry that burden, the jurors had to find Casserly not guilty. When the jurors found Casserly guilty, they necessarily rejected the defense that he lacked intent to cause sustained fear because of his intoxication, and they implicitly found that Casserly intended to cause sustained fear in Wright. There is no evidence to support the notion that Casserly intended to cause sustained fear in Wright yet, due to his intoxication, he did not intend that Wright take his statements as a threat. The two intents are sufficiently similar that the rejection of a voluntary intoxication defense as to one but not the other is improbable. We therefore see no reasonable probability that the jurors, even if properly instructed, would have been persuaded by Casserly's voluntary intoxication defense. (Id. at pp. 325-326.)
The cases on which Casserly relies are inapposite. In those cases, the courts instructed the jurors that voluntary intoxication did not make an act less criminal, and the courts never instructed the jurors that they could consider voluntary intoxication as to intent. (People v. Baker (1954) 42 Cal.2d 550, 571-572 & fn. 2; People v. Coyne (1949) 92 Cal.App.2d 413, 415.) The instructions thus eviscerated the defendants' voluntary intoxication defense and resulted in prejudicial error. (People v. Baker, supra, at pp. 573, 575-576; People v. Coyne, at p. 417.) But here, the court's instruction did not altogether preclude the jurors from considering Casserly's voluntary intoxication—the instruction merely directed them to consider it as to the wrong intent. And as discussed, that error was harmless on this record.
III. Excess Custody Credits
At Casserly's sentencing hearing, the court imposed a $300 restitution fine (§ 1202.4, subd. (b)), a $40 court operations fee (§ 1465.8, subd. (a)(1)), and a $30 court facilities fee (Gov. Code, § 70373, subd. (a)(1)). Casserly's custody credits of 545 days exceeded the number of days in his 16-month prison term. He argues that, under section 2900.5, subdivision (a), those excess custody credits should be used to satisfy the restitution fine and fees imposed at sentencing. We disagree.
Section 2900.5 permits excess custody credits to be "credited to any base fine that may be imposed, at the rate of not less than one hundred twenty-five dollars ($125) per day." (§ 2900.5, subd. (a), italics added.) Fines are punitive in nature. (People v. Robinson (2012) 209 Cal.App.4th 401, 406.) The court operations and facilities fees are nonpunitive assessments. (Id. at p. 407.) They may not be satisfied by excess custody credits under section 2900.5. (Ibid.)
In addition, although section 2900.5 refers to "base fine[s]," excess custody credits may not satisfy restitution fines. (§ 2900.5, subd. (a).) A former version of section 2900.5 permitted excess custody credits to be "credited to any fine on a proportional basis, including, but not limited to, base fines and restitution fines." (Former § 2900.5, subd. (a), italics added; accord People v. Morris (2015) 242 Cal.App.4th 94, 102.) Effective January 1, 2014, the Legislature deleted restitution fines from the statute. (Stats. 2013, ch. 59, § 7.) According to the uncodified preamble of the bill that amended section 2900.5, the deletion of restitution fines "prohibit[s] a defendant from applying any credit earned for spending specified days in custody, jail, or prison toward restitution fines." (Stats. 2013, ch. 59, § 7; accord Assem. Com. on Public Safety, Analysis of Sen. Bill No. 514 (2013-2014 Reg. Sess.) June 18, 2013 [the bill "[c]larifies that a term of imprisonment cannot satisfy a restitution fine"].)
Accordingly, Casserly may not apply his excess custody credits against the restitution fine and court operations and facilities fees. Both the fine and the fees are categorically ineligible for such credit. Casserly argues that the fees are punitive and therefore urges us to apply his excess credits against them. He relies on Dueñas to show that the fees are punitive. The argument is unpersuasive. Dueñas acknowledged that the court operations and facilities fees were not "intended to be punitive in nature" and that the fees were intended to fund the courts. (Dueñas, supra, 30 Cal.App.5th at p. 1165.) The Dueñas court nevertheless noted that, to the extent a defendant is unable to pay those fees, they "[i]nflict [a]dditional [p]unishment." (Id. at p. 1166, italics omitted.) But the remedy under Dueñas is not to apply excess custody credits against the fees. Rather, the court should not impose the fees at all if the defendant is unable to pay them. (Id. at pp. 1160, 1164.) We address Casserly's ability to pay argument in the next part.
For all of these reasons, Casserly's excess custody credits do not satisfy the restitution fine and fees imposed at sentencing.
IV. Ability to Pay Restitution Fine and Fees
Relying again on Dueñas, Casserly argues that, because of his inability to pay, we must strike the court operations and facilities fees and stay the restitution fine. We decline to do so or remand for an ability to pay hearing. Any Dueñas error was harmless.
Dueñas held that defendants have a due process right under the federal and state Constitutions to a hearing on their ability to pay court operations and facilities fees. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) In addition, "to avoid serious constitutional questions" raised by the statutory restitution scheme, the court must stay execution of the mandatory restitution fine unless the court determines that the defendant has the ability to pay it. (Id. at p. 1172.) The same court that decided Dueñas has since clarified that, at the ability to pay hearing, defendants bear the burden of showing their inability to pay, and the court "must consider all relevant factors," including "potential prison pay during the period of incarceration to be served by the defendant[s]." (People v. Castellano (2019) 33 Cal.App.5th 485, 490-491.)
The California Supreme Court has granted review of the issues presented by Dueñas in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844. The Court will decide whether a court must "consider a defendant's ability to pay before imposing or executing fines, fees, and assessments," and if so, "which party bears the burden of proof regarding defendant's inability to pay." (People v. Kopp, review granted, Nov. 13, 2019, S257844 .)
As a threshold matter, the People argue that Casserly forfeited his Dueñas challenge. The argument lacks merit. Casserly's sentencing hearing took place in November 2018—before Dueñas was decided in January 2019. The due process objection raised in Dueñas "would have been 'futile or wholly unsupported by substantive law then in existence.'" (People v. Jones (2019) 36 Cal.App.5th 1028, 1033 (Jones).) And because "Dueñas was unforeseeable," we decline to find forfeiture. (Ibid.)
Nevertheless, Casserly's Dueñas challenge fails. Assuming that the court erred by imposing the fine and fees without an ability to pay hearing, the error was harmless beyond a reasonable doubt. (Jones, supra, 36 Cal.App.5th at p. 1035.) Casserly was 58 years old at the time of his sentencing. According to the probation report, he was in average physical health, good mental health, and had a 10th grade education. His income consisted of $95 per month in government benefits, and he had no monthly expenses. He lived at his mother's home. According to his testimony, his mother gave him money (which he used to buy 12 to 24 beers per day). Casserly should be able to work, given his age and health. But even if we assume that he cannot find a job, his modest income and his lack of monthly expenses show that he would be able to satisfy the $300 restitution fine and $70 in fees in a matter of months. This record therefore "forecloses a meritorious inability to pay argument." (Ibid.)
The People raise several challenges to Dueñas's due process analysis of the restitution fine. We need not address those arguments, given our conclusion that any error in imposing the restitution fine was harmless.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MENETREZ
J. We concur: SLOUGH
Acting P. J. FIELDS
J.