Opinion
B295111
06-02-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ANGEL GALAVIZ, Defendant and Appellant.
Patrick J. Hoynoski, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Zee Rodriguez and Nathan Guttman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Los Angeles County Super. Ct. No. MA074215 APPEAL from a judgment of the Superior Court of Los Angeles County, David Hizami, Judge. Affirmed as modified. Patrick J. Hoynoski, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Zee Rodriguez and Nathan Guttman, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant and appellant Robert Angel Galaviz of corporal injury to a cohabitant, Martina H., as well as false imprisonment of Martina by violence, both felonies, and of misdemeanor battery on a cohabitant, Wanda D. The jury found true as to the felony counts that Galaviz personally inflicted great bodily injury on the victim under circumstances involving domestic violence. On appeal, Galaviz contends (1) we should remand his case for the trial court to decide whether to strike his five-year serious felony prior, and (2) the trial court violated his constitutional rights by imposing a restitution fine and court fees without determining his ability to pay. We reject both arguments. However—although not raised by either Galaviz or the Attorney General—we see the trial court imposed a domestic violence fund fee under Penal Code section 1203.097, subdivision (a)(5)(A). That fee may be imposed only when the defendant is granted probation. (See § 1203.097, subd. (a).) Accordingly, we order the domestic violence fund fee stricken and otherwise affirm Galaviz's conviction and sentence.
References to statutes are to the Penal Code.
FACTS AND PROCEDURAL BACKGROUND
As Galaviz does not challenge the evidence supporting his conviction, we summarize it only briefly.
Martina H. was Galaviz's girlfriend. They began living together in October of 2017. In November 2017, Martina told her mother, Alicia L., that Galaviz had hit her in the head. A few days later, Galaviz called Alicia and told her Martina was in the hospital. Alicia saw that Martina had bruises on her eye, her lips, and "her entire body." Martina didn't want to tell her mother how she got the bruises.
Sometime in early 2018, Martina told her family she no longer had a cell phone; if they wanted to reach her, they had to call Galaviz's phone.
In early April 2018, Martina called Alicia. Martina asked her mother "to please help her because [Galaviz] had her locked up." Martina said Galaviz had hit her, "cut all of [her] hair," and "put a grip around her neck." Martina said Galaviz "would hit her every day." Martina told Alicia not to call the police, "that all she needed was help."
Alicia called the authorities anyway. She and the officers went into the apartment. Martina said Galaviz had left and "she was fine." Alicia took her to the hospital nevertheless. Martina's entire body was bruised and Galaviz's name was written all over her body and on the soles of her feet with a black marker. Her formerly shoulder-length hair was one inch long on one side and "a little longer" on the other.
Around the same time, Martina told her son she would not be able to attend his college graduation because she'd been beaten and Galaviz had cut her hair. Martina said she "was isolated"; Galaviz had gone to pay a bill and had locked her in the apartment. Martina also told her sister that Galaviz had cut all her hair off because he "got mad," he was "very jealous," and "he wanted me to stay here [in the apartment] and for no one to look at me."
After Alicia took Martina to the hospital in early April, she remained hospitalized for two weeks.
In the summer of 2018, Galaviz started dating Wanda D. On July 11, 2018, Galaviz was at Wanda's home with her. It was Galaviz's birthday and he started drinking whiskey as soon as he woke up, around 8:00 a.m. Galaviz wanted Wanda to drink with him but she wanted to clean her house first. Galaviz "got a little upset" and started punching Wanda's wall. Wanda "thought he was going to punch a hole through it."
Galaviz was "talking loud" so Wanda began to talk loud too, telling him not to "tear up [her] house." Galaviz knocked Wanda's fan over, then "said he knew karate and kicked [her] lamp." Galaviz tried to grab Wanda by the arms, saying, "Why don't you listen to me?", but Wanda jerked away from him. Wanda's neighbors heard the commotion and called the police. When Galaviz "found out the police was coming, he calmed down real fast."
The People charged Galaviz with injuring a cohabitant, Martina, in violation of section 273.5, subdivision (a) (count 1), false imprisonment of Martina by violence in violation of section 236 (count 2), and misdemeanor battery on a cohabitant, Wanda, in violation of section 243, subdivision (e)(1) (count 3). The People alleged Galaviz, in the commission of counts 1 and 2, personally inflicted great bodily injury on Martina under circumstances involving domestic violence within the meaning of section 12022.7, subdivision (e).
The People also charged Galaviz with vandalism for destroying Wanda's light bulb (presumably in the lamp Galaviz kicked) (count 4). The court dismissed that count on a section 995 motion at the start of trial.
The case proceeded to trial in October 2018. The jury found Galaviz guilty on all three counts. It also found true the great bodily injury allegations on the felony counts. Outside the jury's presence, Galaviz admitted a prior strike conviction for assault with a deadly weapon.
On January 11, 2019, the trial court denied Galaviz's Romero motion and sentenced him to 15 years in the state prison plus 364 days. The court chose the midterm of three years on count 1, doubled because of the strike prior, plus the low term of four years for the personal infliction of great bodily injury in a domestic violence case, plus five years for Galaviz's serious felony prior under section 667, subdivision (a)(1). The court sentenced Galaviz to 13 years on count 2, stayed under section 654. On count 3—the misdemeanor—the court sentenced Galaviz to 364 days, consecutive to count 1, in the county jail or in any penal institution.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The court ordered Galaviz to pay a domestic violence fund fee of $500 under section 1203.097, subdivision (a)(5)(A), a restitution fine of $1,000 under section 1202.4, subdivision (b), a court operations assessment of $40 under section 1465.8, and a criminal conviction assessment of $30 under Government Code section 70373. The court stayed a parole revocation restitution fine of $1,000 under section 1202.45. Defense counsel did not object to any of these fines or fees, nor did counsel assert Galaviz lacked the ability to pay any of them.
According to the reporter's transcript, the trial court imposed the $40 and $30 fees only on count 1. The minute order and abstract of judgment, however, reflect the assessment of those fees on both counts 1 and 2, for totals of $80 for the court operations assessments and $60 for the criminal conviction assessments. The minute order and abstract are correct under the law: the court operations assessment applies to every conviction (not every case), including stayed counts. (People v. Crittle (2007) 154 Cal.App.4th 368, 370-371; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) The rule for the criminal conviction assessment is the same. (People v. Castillo (2010) 182 Cal.App.4th 1410, 1415, fn. 3.) The minute order also states, "The court orders fines and fees as to count 3 waived."
DISCUSSION
1. Because sections 667 and 1385 had been amended by the time the trial court sentenced Galaviz , his failure to ask that his serious felony prior be stricken forfeited that contention
On September 30, 2018, the Governor signed Senate Bill No. 1393 (SB 1393). Effective January 1, 2019, it amended sections 667, subdivision (a)(1), and 1385, subdivision (b), to give trial courts the discretion to dismiss five-year serious felony sentence enhancements under section 667, subdivision (a). (See generally People v. Wilson (2019) 42 Cal.App.5th 408, 411, review granted, Mar. 11, 2020, S259903.) SB 1393 applies retroactively to cases not yet final as of January 1, 2019. (People v. Zamora (2019) 35 Cal.App.5th 200, 208; People v. Garcia (2018) 28 Cal.App.5th 961, 971-973.)
When the trial court sentenced Galaviz on January 11, 2019, SB 1393 had taken effect and the trial court had discretion to strike his five-year serious felony prior. But Galaviz did not ask the trial court to do so. Accordingly, he has forfeited the issue on appeal. (People v. Carmony (2004) 33 Cal.4th 367, 375-376 (Carmony) ["any failure on the part of a defendant to invite the court to dismiss under section 1385 . . . waives or forfeits his or her right to raise the issue on appeal"].)
In his reply brief, Galaviz argues for the first time that the trial court's "failure to make the discretionary ruling" to impose or strike the five-year prior "is a jurisdictional error [that] may be corrected for the first time on appeal." First, we generally do not consider arguments raised for the first time in a reply brief. Failing to raise a contention in the opening brief deprives the responding party of any opportunity to address it. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453; People v. Taylor (2020) 43 Cal.App.5th 1102 [arguments raised for first time in reply brief are tardy and forfeited].)
Second, in any event, Galaviz is mistaken. He cites three cases. He misreads each of them. People v. Garcia (2008) 167 Cal.App.4th 1550 was a third strike case. The jury found the defendant had served five prior prison terms under section 667.5, subdivision (b). The trial court neglected, however, either to orally impose or to strike a number of these enhancements. Our colleagues in Division 5 concluded the trial court was required either to impose the prison priors or to strike them under section 1385, because "[t]he enhancement language in section 667.5 is mandatory unless the additional term is stricken." (Garcia, at p. 1561.) The court noted the failure either to impose or strike a prison prior was "a jurisdictional error which may be corrected for the first time on appeal." (Id. at p. 1562.)
People v. Dotson (1997) 16 Cal.4th 547 also was a third strike case. The defendant—convicted of residential burglary—had four prior serious felony convictions under section 667, subdivision (a). The trial court had used the four 5-year enhancements in calculating the minimum indeterminate life term. (Dotson, at pp. 551, 553.) Our Supreme Court held this was error. Because the five-year priors were mandatory, the trial court was required to impose a separate determinate term of 20 years for those priors, to be served before the defendant's indeterminate sentence. (Id. at pp. 557, 560.) In a footnote the high court noted a claim that a sentence is unauthorized may be raised for the first time on appeal, so the Attorney General could challenge the defendant's sentence even though the district attorney had agreed to it in the trial court. (Id. at p. 554, fn. 6.)
In People v. Purata (1996) 42 Cal.App.4th 489, a jury convicted the defendant Purata of four counts of rape as well as other crimes. Purata had a prior strike conviction from another state. The trial court erroneously failed to impose the mandatory serious felony prior enhancement. (The court apparently believed—incorrectly—that the same conviction could not be used as both a strike and for the five-year prior.) The appellate court ordered Purata's sentence modified to impose a consecutive five-year term under section 667, subdivision (a)(1), because the trial court "has no discretion and the sentence is mandatory." (Purata, at p. 498.) The court noted "sentences beyond the jurisdiction of the trial court, like that imposed here, can be corrected at any time when brought to the court's attention . . . ." (Ibid.)
None of these cases assists Galaviz. Unlike Garcia—in which the court neither imposed nor struck the prison priors—the court here did impose the five-year prior. Galaviz never asked that it be stricken. In Dotson and Purata, the trial courts failed to impose then-mandatory serious felony priors. Their failures to do so resulted in unauthorized sentences. Galaviz's sentence here was neither unauthorized nor somehow in excess of the trial court's jurisdiction.
Galaviz's contention that the trial court was required to state it was exercising its "discretion" to impose his mandatory five-year prior—in the absence of any request by the defense that it not do so—is meritless. Once a serious felony prior has been found true by a jury or a court, the statute requires a five-year enhancement be imposed unless the defendant asks the court to strike it under section 1385. Were Galaviz correct, a defendant could fail to make any motion to strike an enhancement in the trial court and then raise it for the first time on appeal. For obvious reasons, that is not the law.
Section 667, subdivision (a)(1) provides a person convicted of a serious felony who previously was convicted of a serious felony "shall receive" a five-year enhancement. Subdivision (g) authorizes a prosecutor to move to dismiss or strike a prior serious or violent felony and, as amended, notes the court retains its general authority under section 1385.
Finally, nothing in the record supports Galaviz's assertion that the trial court was unaware of its newfound discretion. We review a trial court's failure or refusal to dismiss an allegation under section 1385 for abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 375.) A defendant challenging that action or inaction must affirmatively demonstrate the court misunderstood its sentencing discretion. (People v. Lee (2017) 16 Cal.App.5th 861, 866; People v. Davis (1996) 50 Cal.App.4th 168, 172.) If the record is silent—that is, nothing evidences an incorrect belief by the trial court that it lacked discretion—we presume the court was aware of the applicable law, including statutory discretion at sentencing. (People v. Gutierrez (2009) 174 Cal.App.4th 515, 527 ["we cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of [its] discretion"]; People v. Mosley (1997) 53 Cal.App.4th 489, 499 [sentencing court's awareness of authority to strike prior strikes presumed where Romero decision had been filed 53 days earlier].) This is not a case in which a law that ameliorates punishment was enacted after the defendant was sentenced.
2. Galaviz is not entitled to an ability to pay hearing
Galaviz contends the trial court's imposition of a $1,000 restitution fine as well as a total of $140 in court assessments "violated [his] rights to due process and equal protection under the federal and state constitutions." Galaviz relies on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
As we noted, Galaviz does not challenge the $500 domestic violence fund fee. As we discuss below, that fee must be stricken.
First, unlike the defendant in Dueñas, Galaviz neither objected to the fine or assessments in the trial court nor made any showing of indigence. Accordingly, he has forfeited his claim. (People v. Rodriguez (2019) 40 Cal.App.5th 194, 206; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154 (Frandsen); but see People v. Castellano (2019) 33 Cal.App.5th 485 .)
Galaviz attempts to distinguish Frandsen, arguing the trial court here "imposed only the minimum fine." Galaviz is incorrect. The minimum restitution fine under section 1202.4, subdivision (b) is $300. Here, the court imposed a restitution fine of $1,000. Section 1202.4, subdivision (d) allows the court to consider a defendant's inability to pay if the restitution fine is more than the minimum fine of $300. (People v. Avila (2009) 46 Cal.4th 680, 729; § 1202.4, subds. (b)(1) & (d).) Galaviz did not avail himself of this statutory remedy to challenge the imposition of the $1,000 restitution fine. Although his sentencing took place before Dueñas was decided, an objection to the $1,000 would not have been futile under governing law at the time of his sentencing hearing. (§ 1202.4, subds. (c) & (d); see also Avila, at p. 729.) By failing to object that he lacked the ability to pay the $1,000 restitution fine, Galaviz forfeited his challenge to that fine and the much lower court operations and conviction assessments. (See also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.)
Nor does Galaviz's Dueñas claim present a "pure question of law" on undisputed facts as he contends. An ability-to-pay determination is inherently factual. (See Frandsen, supra, 33 Cal.App.5th at p. 1153; People v. Lowery (2020) 43 Cal.App.5th 1046; People v. Aviles (2019) 39 Cal.App.5th 1055, 1074 (Aviles).) For example, at the time of his April 2018 crimes, Galaviz had his own apartment, a cell phone, and enough money to buy whiskey. During his 15 years in prison, Galaviz will have the opportunity to earn prison wages. (Aviles, at pp. 1076-1077; see People v. Evans (2019) 39 Cal.App.5th 771, 776, fn. 2; § 2085.5 [restitution balance collected from prison wages].)
Second, even if Galaviz hadn't forfeited his argument, we join with other courts that have concluded Dueñas was wrongly decided. (People v. Hicks (2019) 40 Cal.App.5th 320, 327-329, review granted Nov. 26, 2019, S258946; People v. Adams (2020) 44 Cal.App.5th 828; People v. Kingston (2019) 41 Cal.App.5th 272; Aviles, supra, 39 Cal.App.5th at 1060, 1067-1069).) Our Supreme Court currently is considering whether a court must evaluate a defendant's ability to pay before imposing or executing fines, fees, and assessments. (People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.) Pending further guidance from our high court, however, we agree with Hicks.
Third, in any event, the facts in Dueñas were very different; that case does not apply here. Dueñas was the disabled, unemployed, often homeless mother of two young children. She was convicted of traffic offenses. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) The situation in which Galaviz has put himself does not implicate the due process concerns at issue in the factually unique Dueñas case. Galaviz, unlike Dueñas, does not face incarceration because of an inability to pay a restitution fine and assessments. He is in prison because he beat his girlfriend and locked her in his apartment. Even if he does not pay the fine and assessments, there is no indication he will suffer the cascading and potentially devastating consequences Dueñas faced.
3. The domestic violence fund fee must be stricken
As noted, the trial court ordered Galaviz to pay $500 to the domestic violence fund under section 1203.097, subdivision (a)(5)(A). The statute expressly states the fee shall be required if the defendant "is granted probation." (§ 1203.097, subd. (a). See also People v. Kirvin (2014) 231 Cal.App.4th 1507, 1520.) As Galaviz was denied probation and sentenced to prison, we order the fee stricken.
DISPOSITION
We order the domestic violence fund fee of $500 imposed under section 1203.097, subdivision (a)(5)(A), stricken. The trial court shall prepare an amended abstract of judgment and send it to the California Department of Corrections and Rehabilitation. We otherwise affirm Galaviz's conviction as modified.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J. We concur:
EDMON, P. J.
Retired Presiding Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------