Opinion
E071222
02-25-2020
THE PEOPLE, Plaintiff and Respondent, v. FORREST CHRISTOPHER FARMER, Defendant and Appellant.
Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Meredith S. White and Robin Urbanski, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF1707526) OPINION APPEAL from the Superior Court of Riverside County. Stephen J. Gallon, Judge. Affirmed in part with directions, reversed in part. Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Meredith S. White and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant and appellant, Forrest Christopher Farmer, was convicted of, among other things, resisting an executive officer by force or violence (Pen. Code, § 69; count 2) and resisting a peace officer (§ 148, subd. (a)(1)) (hereafter section 148(a)(1)); count 4). The trial court sentenced defendant to four years eight months and ordered him to pay a $600 restitution fine (§ 1202.4, subd. (b)), a $240 court operations assessment (§ 1465.8, subd. (a)(1)), and a $180 criminal conviction assessment (Gov. Code, § 70373).
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant claims three errors on appeal. First, defendant contends his conviction under section 148(a)(1) (count 4) must be reversed because violation of section 148(a)(1) is a lesser included offense of violation of section 69 (count 2). Second, defendant asserts the trial court impermissibly imposed the fine and assessments without a determination of his ability to pay in violation of his due process rights under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Third, defendant contends he is entitled to one day of presentence custody credit because the trial court erroneously awarded him 356 days of custody credit instead of 357.
We agree with defendant's first and third contentions, and partially agree with his second contention. We therefore reverse his conviction under section 148(a)(1) (count 4). We also modify the sentencing minute order and abstract of judgment to reflect 357 days of custody credit. We conclude defendant forfeited his challenge to the $600 restitution fine, but we reverse the orders imposing the assessments, and remand the matter for the trial court to hold a hearing on whether defendant has the ability to pay the assessments. We affirm the judgment in all other respects.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant carjacked a car by threatening the driver with a knife and demanding that he give defendant the car. Defendant then crashed the car. A witness asked whether defendant was okay, but he did not respond, so the witness called 911.
Corona Police Officer Carlos Gutierrez responded to the call. A dispatch officer informed Officer Gutierrez that the car had been carjacked, so Officer Gutierrez ordered defendant to raise his hands and put them out the window. Defendant shook his head from side-to-side, held a large knife, and made a slicing motion across his neck. Defendant then jumped out of the car and ran. Officer Gutierrez ordered defendant to stop and get on the ground, but defendant continued to walk away.
After another officer arrived, defendant sat down on the ground. Officer Gutierrez ordered defendant to lie on his stomach, but defendant would not comply, so the officers approached him. After Officer Gutierrez pushed defendant with his left foot, defendant stood up and twice tried to punch Officer Gutierrez, but missed both times. Defendant then ran. Officer Gutierrez apprehended defendant and took him into custody.
Defendant was charged with, among other things, one count of resisting an executive officer by force or violence in violation of section 69 (count 2) and resisting a peace officer in violation of section 148(a)(1) (count 4). The jury convicted defendant as charged. Defendant timely appealed.
Defendant's other charges are not relevant to the issues on appeal.
III.
DISCUSSION
A. Defendant's Section 148(a)(1) Offense Was a Lesser Included Offense of His Section 69 Offense
Defendant contends his conviction under section 148(a)(1) must be reversed because violation of section 148(a)(1) is a lesser included offense of violation of section 69. We agree.
Defendant further asserts the trial court erred by not instructing the jury with CALCRIM No. 3519, which states that "[a] defendant may not be convicted of both a greater and lesser crime for the same conduct." We need not address this issue because we conclude defendant was improperly convicted of violating section 148(a)(1).
A defendant may be convicted of more than one offense based on the same act or a single course of conduct. (§ 954; People v. Reed (2006) 38 Cal.4th 1224, 1227.) A defendant, however, may not be convicted of two such offenses when based on the same conduct if one is a necessarily included lesser offense of the other. (People v. Reed, supra, at p. 1227.) "'When the jury expressly finds defendant guilty of both the greater and lesser offense . . . the conviction of [the greater] offense is controlling, and the conviction of the lesser offense must be reversed.' [Citation.]" (People v. Milward (2011) 52 Cal.4th 580, 589.)
To determine whether a defendant may be convicted of multiple charged offenses, courts use the statutory elements test to determine whether one offense is necessarily included in the other. (People v. Reed, supra, 38 Cal.4th at p. 1230.) Under that test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, such that the greater offense cannot be committed without also committing the lesser offense, the latter is necessarily included in the former. (Ibid; People v. Smith (2013) 57 Cal.4th 232, 240 (Smith).)
In Smith, the California Supreme Court, applying the statutory elements test, held that a violation of section 148(a)(1) is not always a lesser included offense of violation of section 69. (Smith, supra, 57 Cal.4th at pp. 240, 243.) The court explained that section 69 can be violated in two ways: "'The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty.' [Citation.]" (Id. at p. 240, italics added.) The court further explained that, while the first way does not inherently require the actual use of force or violence or that the officer be performing his or her official duties, "[t]he second way of violating section 69 expressly requires that the defendant resist the officer 'by the use of force or violence.'" (Id. at pp. 240-241.)
The Smith Court then observed that "[s]ection 148(a)(1) is similar to the second way of violating section 69 but is clearly different from the first way of violating section 69." (Smith, supra, 57 Cal.4th at p. 241.) The court reasoned that it is possible to violate section 69 in the first way—by attempting to prevent an officer from performing a duty—without also violating section 148(a)(1), because a person could threaten an officer from performing a duty in the future. (Ibid.) The court therefore held that violation of section 148(a)(1) in the first way is not necessarily a lesser included offense of violating section 69 under the statutory elements test. (Ibid.) The court, however, went on to hold that anyone who violates section 69 in the second way—resisting an officer in the performance of his or her duties by force or violence—necessarily violates section 148(a)(1). (Id., citing People v. Lacefield (2007) 157 Cal.App.4th 249, 257 ["'[I]t appears to be impossible to violate the second type of offense in section 69 without also violating section 148(a)(1) . . . .'"], disapproved on another point by Smith, supra, 57 Cal.4th at p. 242.)
Relying on Smith's conclusion that section 148(a)(1) is not always a lesser included offense of section 69 under the statutory elements test, the People argue defendant's section 148(a)(1) conviction was not a lesser included offense of his section 69 conviction. In Smith, the defendant physically resisted arrest, walked away from the arresting officer, and then twice punched him. (Smith, supra, 57 Cal.4th at pp. 236-237.) The defendant was charged with two counts of violating section 69—in the second way, by resisting arrest by force or violence—and argued the trial court should have instructed on section 148(a)(1), a lesser included offense. (Id. at pp. 236-238.) The court held that "section 148(a)(1) was a necessarily included lesser offense of section 69 as alleged in the amended information," but upheld his conviction for violating section 69 because there was no evidence that he violated section 148(a)(1), but not section 69. (Id. at p. 245, italics added.)
Here, unlike the defendant in Smith, defendant was charged with violating section 69 in both ways and also was charged with violating section 148(a)(1). The information alleged that "defendant did willfully and unlawfully attempt by means of threats and violence to deter and prevent [Officer Gutierrez] . . . from performing a duty imposed . . . by law, and did knowingly resist by the use of force and violence [Officer Gutierrez] in the performance of his duty." Yet, the trial court instructed the jury on only the second way of violating section 69. The instruction provided that, to prove defendant violated section 69, the jury had to find that he "unlawfully used force or violence to resist an executive officer," who "was performing his lawful duty." The verdict form likewise allowed the jury to find that the defendant violated section 69 only in the second way—by resisting Officer Gutierrez by force or violence.
In other words, defendant was convicted of violating section 69 only in the second way by resisting Officer Gutierrez by force. His section 148(a)(1) conviction therefore was a lesser included offense of his section 69 conviction. (See Smith, supra, 57 Cal.4th at p. 242 ["[S]ection 148(a)(1) is necessarily included within this second way of violating section 69."]; see also People v. Carrasco (2008) 163 Cal.App.4th 978, 985 ["Because an accused cannot have resisted arrest forcefully without also having resisted arrest . . . section 148, subdivision (a) is a lesser included offense to section 69's second prong."].)
Defendant's section 148(a)(1) conviction (count 4) is therefore improper. (People v. Delacerda (2015) 236 Cal.App.4th 282, 291 ["[C]onvictions for both a greater and lesser included offense based upon the same conduct are always prohibited."].) Accordingly, we reverse defendant's section 148(a)(1) conviction (count 4). (People v. Kilborn (1970) 7 Cal.App.3d 998, 1003 ["The proper appellate procedure, under the circumstances, is to reverse the conviction of the lesser offense (possession) and to permit the conviction of the greater offense (possession for sale) to stand."].) In turn, we vacate defendant's sentence imposed for that conviction—180 days in county jail, a $40 court operation assessment, and a $30 criminal conviction assessment.
B. Fine and Assessments
Relying on Dueñas, supra, 30 Cal.App.5th 1157, defendant contends the trial court violated his due process rights by imposing a $600 restitution fine (§ 1202.4, subd. (b)), a $240 court operations assessment (§ 1465.8, subd. (a)(1)), and a $180 criminal conviction assessment (Gov. Code, § 70373), without holding a hearing to determine whether he had the ability to pay the fine and assessments. He thus contends the fine and assessments should be reversed or, alternatively, they should be stayed pending a determination of his ability to pay them.
The People argue defendant forfeited the argument by failing to make it below and, regardless, the trial court's imposing the fine and assessments did not violate his due process rights.
As for the $600 restitution fine, we agree with the People that defendant forfeited his argument that the trial court impermissibly imposed it. "Even before Dueñas, section 1202.4 permitted the court to consider [a defendant's] inability to pay. [Citation.] The statute mandates that the court impose a restitution fine 'unless it finds compelling and extraordinary reasons for not doing so,' and '[a] defendant's inability to pay shall not be considered a compelling and extraordinary reason.' (§ 1202.4, subd. (c), italics added.) However, the court may consider the defendant's inability to pay "in increasing the amount of the restitution fine in excess of the minimum fine" of $300. (People v. Taylor (2019) 43 Cal.App.5th 390, 399 (Taylor).)
Here, defendant did not object or request an ability to pay hearing, even though the court could have considered the issue under the restitution statute. "Consequently, [defendant] forfeited the objection that the court failed to consider his ability to pay the restitution fine." (Taylor, supra, 43 Cal.App.5th at pp. 390-400.)
As to the $420 in assessments, because the trial court did not determine whether defendant could pay them, "[u]nder Dueñas, this was error, and we must remand for an ability to pay hearing unless the error was harmless/" (Taylor, 43 Cal.App.5th at p. 401.) The People bear the burden of showing "the record demonstrates, beyond a reasonable doubt, that . . . defendant cannot establish his . . . inability to pay." (Id. at p. 403.)
We cannot conclude on this record that the Dueñas error was harmless beyond a reasonable doubt. Defendant had been homeless for about eight months before his arrest for his current offenses due to his significant substance abuse issues. He had been receiving food stamps for about three years. He had not been employed for several months before his arrest, and was only intermittently employed before then. Although defendant is young and was in good physical health at the time of his arrest, he suffers from various mental health issues for which he has been prescribed psychotropic medication.
" "[E]very able-bodied" prisoner is required to work. (§ 2700; Cal. Code Regs., tit. 15, § 3040, subd. (a).) A prisoner's assignment to a paid position "is a privilege" that depends on "available funding, job performance, seniority and conduct." (Cal. Code Regs., tit. 15, § 3040, subd. (k); accord People v. Rodriguez (2019) 34 Cal.App.5th 641, 649.) Wages in prison range from $12 to $56 per month, depending on the job and skill level involved. (Cal. Code Regs., tit. 15, § 3041.2, subd. (a)(1).) Fifty percent of [defendant's] wages and trust account deposits will be deducted to pay any outstanding restitution fine, plus another 5 percent for the administrative costs of this deduction. (§ 2085.5, subds. (a), (e); Cal. Code Regs., tit. 15, § 3097, subd. (f).)." (Taylor, supra, 43 Cal.App.5th at p. 402.)
We assume defendant will secure a prison job paying $12 per month. Assuming the $600 restitution fine is outstanding, defendant will have $5.40 per month to pay the $420 in assessments. (Taylor, supra, 43 Cal.App.5th at p. 402.) At that rate, defendant will pay off the assessments in about six years, five months—a period that is almost two years longer than his sentence of four years, eight months.
The People suggest the imposition of the assessments was harmless because defendant has not identified any resulting "adverse consequence" from his inability to pay them. But defendant " 'need not present evidence of potential adverse consequences beyond the fee or assessment itself, as the imposition of a fine on a defendant unable to pay it is sufficient detriment to trigger due process protections.' [Citation.]" (Taylor, supra, 43 Cal.App.5th at p. 403.)
In short, the trial court may not impose the $420 in assessments before determining that defendant can pay them. Because the Dueñas error was not harmless beyond a reasonable doubt on this record, we must remand for an ability to pay hearing. (Taylor, supra, 43 Cal.App.5th at p. 403.)
C. Defendant Is Entitled to An Additional Day of Custody Credit
The trial court awarded defendant 356 days of custody credit, but the parties agree he is entitled to 357 days' credit. We conclude the parties are correct and will modify the judgment to correct the presentence custody credit award. (People v. Guillen (1994) 25 Cal.App.4th 756, 764 [appellate court may correct erroneous calculation of presentence custody credit on appeal].)
Section 2900.5, subdivision (a), provides in pertinent part, "In all felony . . . convictions . . . when the defendant has been in custody, including, but not limited to, any time spent in a jail, . . . hospital [or] prison, . . . all days of custody of the defendant . . . shall be credited upon his or her term of imprisonment." Section 2900.5, subdivision (d), provides in pertinent part, "It is the duty of the court imposing the sentence to determine . . . the total number of days to be credited pursuant to this section. The total number of days to be credited shall be contained in the abstract of judgment."
Here, defendant was arrested on July 22, 2017, and sentenced 357 days later, on July 13, 2018. The trial court, however, erroneously awarded defendant only 356 days of presentence custody credit. Defendant is therefore entitled to an additional day of presentence custody credit. Accordingly, we will modify the sentencing minute order and abstract of judgment to show defendant's entitlement to 357 days of presentence custody credit.
IV.
DISPOSITION
We reverse defendant's conviction on count 4 for violating section 148(a)(1), a lesser included offense of his conviction on count 2 for violating section 69. We vacate defendant's sentence of 180 days in county jail, the $40 court operations assessment, and the $30 criminal conviction assessment imposed for defendant's conviction on count 4. The judgment is modified to reflect a total of 357 days of presentence custody credit. We reverse the orders imposing the $240 court operations assessment (§ 1465.8, subd. (a)(1)), and a $180 criminal conviction assessment (Gov. Code, § 70373) for defendant's remaining counts. The matter is remanded for the trial court to hold a hearing on whether defendant has the ability to pay the assessments. If defendant demonstrates an inability to pay them, the court shall not impose the assessments. If he fails to demonstrate his inability to pay them, the court may impose them. After the trial court decides whether to impose the assessments, the clerk of the superior court is directed to prepare an amended abstract of judgment to reflect the correct sentence, presentence custody credits, and assessments, if any. The clerk of the superior court is also directed to issue an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: RAPHAEL
J. MENETREZ
J.