Opinion
A153590
03-24-2020
THE PEOPLE, Plaintiff and Respondent, v. JOEVAN LOPEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 610873)
On the afternoon of October 3, 2015, defendant Joevan Lopez and Marty Lopez approached Jasvir Singh's ice cream truck and appeared to obtain some items from him. They each then drew weapons and fired at the truck, killing Singh. Defendant was charged with murder, with possession of a firearm by a felon, and with various firearm enhancements. At trial, the prosecution argued that the murder was first degree, either because defendant premeditated and deliberated before killing Singh, or because the murder took place during the course of an attempted robbery. The jury found defendant guilty of first degree murder and of possession of a firearm by a felon, but not true the enhancement allegation that he personally discharged a firearm causing great bodily injury or death. Defendant raises various challenges to his conviction and to the fines and fees imposed at sentencing, including that the first degree aspect of his murder conviction is not supported by substantial evidence. We conclude that these arguments lack merit, and we affirm.
FACTUAL BACKGROUND
We provide the following summary of some of the evidence at trial only as background and as relevant to the issues on appeal.
Around 4:30 p.m. on October 3, 2015, Jasvir Singh was driving his ice cream truck down the 9300 block of Peach Street in Oakland. Paula Freehoffer was sitting on her steps smoking a cigarette and waiting for the ice cream truck to reach her house. Freehoffer saw her neighbor Marty Lopez and his friend, defendant (whom Freehoffer knew as "J") by Marty Lopez's mother's house. The ice cream truck stopped and defendant and Marty Lopez approached it and "got something from the ice cream man. They got either pops or potato chips." According to Freehoffer, defendant and Marty Lopez then "start[ed] shooting." Defendant had what appeared to Freehoffer to be a .9-millimeter handgun. The ice cream truck crashed into another vehicle, and Freehoffer ran to the driver's side door. There was "blood all over" and Singh appeared to be dead.
Several other witnesses heard the gunshots. Guadalupe Vilchis heard gunfire from her living room and looked out her window to see defendant shooting towards the ice cream truck. Vilchis then saw defendant place the gun underneath his t-shirt and walk toward the entrance of her house. Vilchis's husband, Manuel Castaneda, was in the bathroom at the rear of the house and saw defendant carrying something that he appeared to be eating, and then saw him place his hands on the fence at the rear of the house.
Another neighbor, Hector De La Cruz, was inside his home when he heard "around six" gunshots followed by the sound of a vehicle crashing. He then saw defendant walking away from the ice cream truck. Eric Emerson, another neighbor, heard approximately four to five gunshots and saw defendant wipe off a gun before handing it to Marty Lopez.
Police arrived at the scene to find Singh dead, lying on the street with his feet up on the ice cream truck. The truck had crashed into a parked vehicle and had four bullet holes on the passenger's side, with the rear and passenger side window both shattered. In the rear yard of a nearby home on 94th Avenue, police found an open and empty bag of chips and an unmelted, unopened ice cream bar. They also recovered numerous bullet casings and fragments from the scene—including one from Singh's head—later determined to have been fired from two different firearms, one of which was a .9 millimeter caliber. Singh's cause of death was a single gunshot to the center of his forehead.
PROCEDURAL BACKGROUND
On September 28, 2016, the Alameda County District Attorney filed an information charging defendant with the murder of Singh (Pen. Code, § 187, subd. (a)) (count 1) and possession of a firearm by a felon (§ 29800, subd. (a)(1)) (count 2). The information further alleged certain firearm enhancements with respect to count 1, including that defendant personally and intentionally discharged a firearm, and that he personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.7, subd. (a); § 12022.53, subds. (c) & (d)). The information also alleged two prior felony convictions.
Further undesignated statutory references are to the Penal Code.
Defendant later stipulated to the two prior convictions.
Trial took place over six days in November of 2017. The prosecution presented two theories of first degree murder to the jury—that defendant had premeditated and deliberated the murder, and felony murder because the murder was committed during the course of a robbery or attempted robbery.
The jury found defendant guilty of murder in the first degree and of being a felon in possession of a firearm. The jury found true the allegation that defendant had personally and intentionally discharged a firearm, but not true the allegation that he had done so causing great bodily injury or death.
The trial court sentenced defendant to 25 years to life on count 1, 20 years to life on the firearm enhancement, and a further two-year term on count 2 to run concurrently, for a total sentence of 45 years to life.
Defendant timely appeals.
DISCUSSION
Defendant argues that: (1) there is insufficient evidence of attempted robbery so as to support the felony-murder theory; (2) there is insufficient evidence of premeditation and deliberation; (3) the failure to give jury instructions on aiding and abetting was reversible error; (4) he is entitled to reversal under newly passed legislation limiting the application of the felony-murder rule; (5) he did not receive adequate notice of the prosecution's intent to pursue a theory of first degree murder; (6) certain cellphone images were hearsay and should not have been admitted into evidence; (7) the trial court erred in imposing certain fees without first ascertaining his ability to pay; (8) the trial court erred in requiring him to pay the costs of the probation report; and (9) the abstract of judgment should be modified to reflect a concurrent sentence on count 2.
I. Substantial Evidence Supports the Jury's First Degree Murder Verdict Under a Theory of Felony-Murder
Defendant argues that there was insufficient evidence to convict him of first degree murder under a theory of felony murder because there was insufficient evidence of a robbery or attempted robbery.
The felony-murder instructions told the jury that the prosecution was required to show: "1. The defendant committed robbery or attempted robbery; 2. The defendant intended to commit robbery or attempted robbery; 3. If the defendant did not personally commit robbery or attempted robbery, then a perpetrator, committed robbery or attempted robbery; AND 4. While committing robbery or attempted robbery, the defendant or perpetrator caused the death of another person."
"Robbery is 'the taking of personal property of some value, however slight, from a person or the person's immediate presence by means of force or fear, with the intent to permanently deprive the person of the property.' [Citation.]" (People v. Jackson (2016) 1 Cal.5th 269, 343; see § 211.) "An attempted robbery requires a specific intent to commit robbery and a direct, ineffectual act (beyond mere preparation) toward its commission. [Citations.]" (People v. Medina (2007) 41 Cal.4th 685, 694.) The direct but ineffectual act must go beyond mere preparation, but need not be an actual element of the crime. (Ibid.) Thus, neither force nor fear is an element of attempted robbery. (People v. Vizcarra (1980) 110 Cal.App.3d 858, 863.)
"On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Koontz (2002) 27 Cal.4th 1041, 1078.) We "must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.]" (People v. Mincey (1992) 2 Cal.4th 408, 432.)
Defendant argues that the evidence does not support a finding that he had the specific intent to rob Singh, that he took an immediate step toward committing a robbery, or that he killed Singh during an attempt to perpetrate a robbery. We disagree.
As noted, Paula Freehoffer was the only witness who testified regarding the events that took place just before the shooting. In particular, her testimony on direct examination was as follows:
"MR. WILSON [prosecutor]: Q. You know that the ice cream man stopped. And does someone approach him?
"A. Yes.
"Q. Who was that?
"A. Marty and 'J.'
"Q. And what happens next?
"A. They got something from the ice cream man. They got either pops or potato chips.
"Q. Where are you at this point?
"A. I'm on the step.
"Q. And where's the little boy, do you remember?
"A. He's still pedaling. He's about at the stop sign, almost to the stop sign, because I'm one—the second house in, so he might be at the—at the stop sign probably by that time. And that's when the shots go off.
"Q. So do they get something from the ice cream man?
"A. Yes, they already got it.
"Q. And do they pay the ice cream man?
"A. Well, I didn't see them pay for anything.
"Q. What do you see?
"A. I just see them get the soda pops and the chips.
"Q. And what happens next?
"A. And then they start shooting."
Defendant points out certain inconsistencies in Freehoffer's testimony and observes that the prosecutor characterized her as "all over the place" and "angry." However, it was for the jury to evaluate Freehoffer's credibility and to weigh her testimony accordingly. (See People v. White (2014) 230 Cal.App.4th 305, 319, fn. 14.)
Viewed as a whole, then, the evidence establishes the following. When the ice cream truck stopped, defendant and Marty Lopez approached it together, each with a concealed and loaded weapon. They received items from Singh—soda pop, chips, and/or an ice cream bar—then drew their weapons. Singh began to drive away, and defendant and Marty Lopez both fired at the passenger side of the ice cream truck, killing Singh and causing him to crash into a nearby parked car. Defendant then fled, evidently dropping an ice cream bar and bag of chips as he did so. While certainly not overwhelming, viewing all this circumstantial evidence in the light most favorable to the judgment, we conclude that it permits the jury to draw the inference that defendant approached the ice cream truck with the specific intent to rob Singh. (See People v. Johnson (1972) 28 Cal.App.3d 653, 657 ["The intent to commit a particular crime is generally manifested by the circumstances connected with the offense [citation] and the specific intent to rob may be inferred from the circumstances connected with the robbery"].)
And the jury could clearly further conclude that the defendant committed an act beyond mere preparation—either drawing his firearm or shooting at the truck as Singh attempted to get away—toward the commission of the robbery. (See People v. Vizcarra, supra, 110 Cal.App.3d at p. 862 [approaching liquor store with a rifle and attempting to hide when observed by a customer is sufficient direct act toward the accomplishment of robbery].)
Defendant makes much of Freehoffer's testimony that she did not see him or Marty Lopez pay for the items they received from Singh, arguing that this testimony does not support any inference that they did not do so. But whether they paid for the items—or even whether they received any property at all—is not determinative, because attempted robbery does not require any of the elements of robbery. (See People v. Vizcarra, supra, 110 Cal.App.3d at p. 863.) Instead, as discussed, the evidence as a whole permits the inference that the defendant had the specific intent to rob Singh and committed an act beyond preparation toward the commission of a robbery. Substantial evidence supports the jury's first degree murder verdict on a theory of felony murder.
II. Substantial Evidence of Premeditation and Deliberation Is Not Required
Defendant argues at length that there was insufficient evidence of the prosecution's other theory of first degree murder—that he premeditated and deliberated before killing Singh.
However, because we have concluded that substantial evidence supports the felony-murder theory of first degree murder, we need not address whether the evidence is sufficient to support a finding of premeditation unless there is an "affirmative indication" in the record that the jury based its verdict on a finding of premeditation: "A first degree murder verdict will be upheld if there is sufficient evidence as to at least one of the theories on which the jury is instructed, 'absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground.' (People v. Guiton (1993) 4 Cal.4th 1116, 1129.)" (People v. Nelson (2016) 1 Cal.5th 513, 552.) At oral argument, counsel for defendant argued that the jury's questions during deliberations provided such an affirmative indication.
In particular, during the afternoon of the second day of its deliberations, the jury submitted three questions, each on a separate form. The first asked "Can we have someone explain in more detail the difference between, first degree murder, second degree murder and felony murder-first degree?" The second asked "Can someone explain in further detail 'Premeditation'?" And the third asked "What does it take to agree on First Degree Murder—what conditions are necessary?"
The trial court brought the jury back into the courtroom and answered all three questions at the same time. To do so, the trial court reread the jury the first two paragraphs of Instruction No. 521 ("First Degree Murder"); all of Instruction No. 540A ("Felony Murder—Defendant Allegedly Committed Fatal Act") and Instruction No. 540B ("Felony Murder—Coparticipant Allegedly Committed Fatal Act"). The trial court then continued:
"That being said, ladies and gentlemen, all other—if you decide murder—if they do not fit within section 521—or first degree murder, then all murder is second-degree murder as a matter of law. And thirdly, as relates to your question, under section 548, the Defendant has been prosecuted for murder under two theories. It's malice aforethought, which is 521, that I explained to you as first degree murder, and felony murder, which is 540(a) and 540(b).
"Each of the theories of murder has different requirements. And you've seen that in those instructions. However, you may not find the Defendant guilty of murder unless all of you degree [sic] that the People have proved the Defendant committed murder under at least one of these theories. You do not all have to agree on the same theory, whether or not it's premeditated or felony murder. If you all agree that there's murder, and half of you agree it's felony murder in the first degree having to do with malice aforethought murder, but you all agree it's murder, then it's murder in the first degree, ok?
"That's what I can give you, ladies and gentlemen. And otherwise, the instructions speak for themselves. If you have other questions, let me know. But I'll now excuse you to go to the jury room, and you can continue your deliberations.
"THE FOREPERSON: Can you explain premeditation?
"THE COURT: Premeditation, ladies and gentlemen, is set forth in the instructions, as I indicated to you, in 521. It tells you—Paragraph 1: The Defendant acted with premeditation if he decided to kill before completing the act that caused death. And the subsequent paragraph, in 521, it tells you about the time, okay?
"THE FOREPERSON: Okay.
"THE COURT: All right."
The jury then resumed deliberating, and later that afternoon, reached its verdict.
At oral argument, counsel for defendant argued that the jury's questions indicate reversal is required under People v. Wear (2020) 44 Cal.App.5th 1007 (Wear). In Wear, the defendant was charged with first degree murder under both a theory of premeditated murder and felony murder committed during a robbery, and with a robbery special circumstance. (Id. at p. 1018.) During deliberations, the jury sent a note to the trial court that stated: " 'The jurors are split over (1) malice aforethought [and] (2) felony murder. Some agree that (1) has been proven but not (2). [¶] Some believe (2) has been proven but not (1). [¶] Our understanding is that if all jurors agree to one or the other, this is sufficient to find the defendant guilty [of] the crime of murder in [the] first degree.' " (Id. at p. 1021.) The court sent a response confirming that the jurors " '[did] not all need to agree on the same theory' " to convict Wear of first degree murder. (Ibid.)
The following day, the jury informed the trial court that it was split on the robbery special circumstance, by a vote of ten to two. The court ultimately declared a mistrial on the special circumstance based on this impasse, which "further confirmed that not all the jurors were convinced the shootings happened in the course of a robbery." (Wear, at p. 1021.) The jury ultimately convicted the defendant of first degree murder. (Id. at p. 1018.)
Because the Wear court concluded that insufficient evidence supported the prosecution's theory of premeditation, and because the jury's question, vote information, and impasse on the special circumstance provided an "affirmative indication" in the record that "some of the jurors believed Wear was guilty under the felony-murder theory, while others believed he was guilty under the premeditated-murder theory," the court reversed. (Wear, at p. 1018.)
We find Wear distinguishable, and do not believe the record in this case contains an "affirmative indication" that the jury based its verdict on the prosecution's theory of premeditated murder. As noted, in Wear, the jury directly stated that some jurors thought felony murder had been proven but not premeditation, and vice versa, and their ten to two vote on the robbery special circumstance "further confirmed that not all the jurors were convinced the shootings happened in the course of a robbery." (Wear, at p. 1021.) Here, by contrast, the jury's questions concerned the general definitions of first degree, second degree, and felony murder, and the jury never indicated that some jurors accepted one theory of first degree murder but not the other. And there was no robbery special circumstance alleged. Although the jury's third question might be read to suggest they were having trouble agreeing on a theory of first degree murder, this question in and of itself does not rise to the level of an "affirmative indication" that some jurors ultimately based their first degree murder verdicts on a theory of premeditation to the exclusion of the felony-murder theory. (People v. Guiton, supra, 4 Cal.4th at p. 1129.) Accordingly, we need not reach defendant's arguments regarding the sufficiency of the evidence of premeditation and deliberation.
III. Failure To Instruct on Aiding and Abetting Was Not Reversible Error
Defendant argues that because the jury found not true the allegation that he personally and intentionally discharged a firearm causing great bodily injury or death—and thus, he argues, must have concluded that he did not personally fire the fatal shot—any liability for first degree murder under a theory of premeditation and deliberation must have been based on aiding and abetting. However, defendant did not request, and the trial court did not provide, jury instructions on aiding and abetting. Therefore, he argues that his conviction is based on a legally invalid theory, and must be reversed: "Without any instructions on aiding and abetting, jurors found [defendant] guilty of first degree premeditated murder without finding he harbored the necessary mens rea."
Defendant acknowledges that where one of several theories of guilt presented to the jury is factually insufficient, the verdict will be upheld if there is sufficient evidence as to at least one of the theories on which the jury is instructed, "absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground." (People v. Guiton, supra, 4 Cal.4th at p. 1129.) But where one of several theories is legally insufficient, reversal is required unless the record affirmatively demonstrates that the jury relied on a legally sufficient theory. (People v. Guiton, supra, 4 Cal.4th at pp. 1121-1122; People v. Morgan (2007) 42 Cal.4th 593, 609-612.)
First, defendant's argument fails because the fact that the jury made a factual finding inconsistent with the prosecution's theory of premeditated murder does not make that theory legally invalid. (See People v. Guiton, supra, 4 Cal.4th at pp. 1122, 1125 [legally invalid means "infected by prejudicial error such as inadmissible evidence or incorrect instructions," i.e., a " 'mistake about the law, as opposed to a mistake concerning the weight or the factual import of the evidence' "].) The theory of premeditated murder as presented to the jury, including the jury instructions, was legally valid—and defendant does not argue otherwise. Accordingly, the rule that reversal is required unless the record affirmatively demonstrates that the jury relied on a legally sufficient theory does not apply.
Second, defendant's argument fails because we do not consider the jury's finding on the enhancement in evaluating whether their verdict on the murder count must be reversed. In part, section 954 provides: "An acquittal of one or more counts shall not be deemed an acquittal of any other count." And as we have just discussed, substantial evidence supports the first degree murder verdict under a felony-murder theory. Thus, reversal is not required, notwithstanding the jury's not true finding on the gun use enhancement. (See People v. Miranda (2011) 192 Cal.App.4th 398, 407 ["Under section 954, the jury's 'not true' finding on the personal firearm use enhancements may be logically inconsistent with a finding that defendant was the direct perpetrator of the charged offenses, but, by statute, the inconsistency is not grounds for reversal because substantial evidence supported the verdict"]; People v. Thompson (2010) 49 Cal.4th 79, 120 [rejecting argument that first degree murder verdict must be reversed where aiding and abetting evidence was allegedly insufficient and jury found not true a personal gun use allegation because "[t]he jury's finding on the gun use allegation does not necessarily demonstrate it based its murder verdict on an aider and abettor theory"].) IV. Defendant Must Petition The Trial Court for Relief Under Senate Bill No. 1437
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 4) (SB 1437), which took effect on January 1, 2019, limits first degree felony-murder liability to three categories: (a) "the actual killer"; (b) a defendant who "was not the actual killer, but, with the intent to kill," aided or abetted the actual killer; or (3) an aider-abettor who "was a major participant in the underlying felony and acted with reckless indifference to human life." (§ 1170.95, subd. (a)(3).) Defendant argues that this legislation applies retroactively and requires reversal of his murder conviction.
The Attorney General concedes that SB 1437 applies retroactively, but contends that "it is only retroactive within the context of a petition filed under section 1170.95, not on direct appeal." (See § 1170.95, subd. (a) [providing that a defendant convicted of felony murder may "may file a petition with the court that sentenced the petitioner" to have the conviction vacated and be resentenced under certain conditions].) Shortly after defendant's opening brief was filed, we issued our opinion in People v. Anthony (2019) 32 Cal.App.5th 1102 (Anthony), in which we extensively considered—in a portion of the opinion spanning some 12 pages—the question of whether relief under SB 1437 is available on direct appeal or instead only through the petition procedure outlined in section 1170.95, concluding that defendants must first raise their claims for retroactive relief using the petition procedure. (Anthony, at pp. 1147-1158; see People v. Martinez (2019) 31 Cal.App.5th 719, 722-729 [same].)
In a single sentence on reply, defendant "respectfully disagree[s]" with Anthony, but does not offer any reason why we should reconsider it. For all the reasons given in Anthony, we will not consider defendant's claims for relief under SB 1437 on direct appeal.
V. The Prosecution Provided Adequate Notice of Its Intent to Pursue First Degree Murder Charges
Defendant next argues that the prosecution failed to provide adequate notice to him that it intended to prosecute him under any theory of first degree murder, in violation of his right to due process and the Sixth Amendment.
Because defendant failed to raise this issue below, this argument is waived on appeal. (See People v. Abilez (2007) 41 Cal.4th 472, 521, fn. 12 [failure to object at trial forfeits due process claim based on lack of notice].) However, because defendant argues in the alternative that his counsel was ineffective in failing to raise this objection below, we will consider the merits.
"Whether defendant received constitutionally adequate notice that the prosecution was relying on a particular theory of guilt entails a resolution of a mixed question of law and fact that we believe is predominantly legal. As such, we undertake an independent review." (People v. Cole (2004) 33 Cal.4th 1158, 1205; People v. Adair (2003) 29 Cal.4th 895, 906-907.)
Defendant argues that he did not receive sufficient notice of the prosecution's intent to pursue first degree murder charges because the evidence at the preliminary hearing was insufficient to support that theory. In particular, Guadalupe Vilchis was the only witness at the preliminary hearing, and she testified—consistent with her trial testimony—that she heard gunshots from her living room and looked out her window to see defendant shooting towards the ice cream truck.
We find that defendant had adequate notice that the prosecution would argue a theory of first degree felony murder. Although Freehoffer did not testify at the preliminary hearing, the prosecution expressly characterized the incident as a robbery beginning with the statement of facts in its motions in limine filed before trial, in which it described Freehoffer's testimony that "[a]cting in concert, both men raised their guns and attempted to rob the victim" and that she "saw defendant and Marty try to rob and then shoot the ice cream [truck]." The prosecutor discussed this theory of murder repeatedly in his opening statement, telling the jury that defendant "made a conscious decision with his friend, Marty Lopez, to rob Mr. Singh," that "[t]his was an attempted robbery," and that "instead of paying Mr. Singh, they tried to rob him. And when Mr. Singh panicked and tried to get away, they shot at his van and eventually killed him." As already discussed, Freehoffer's testimony at trial supported a theory of felony-murder based on an attempted robbery.
Moreover, at the jury instruction conference, the trial court indicated that it intended to give CALCRIM No. 521—First Degree Murder, among other instructions, and defense counsel expressly stated that he had no objection. Counsel then discussed the prosecution's request for instructions on robbery (CALCRIM No. 1600) and attempt (CALCRIM No. 460). Defense counsel objected on the basis that there was insufficient evidence of robbery or attempted robbery, but not on the basis that there had been insufficient notice of the prosecution's intent to argue a theory of first degree murder. At the end of the argument, the trial court indicated it would give the requested instructions, and "that being said, then, I will give all the felony murder instructions as requested under 540A, 540B." Again, defense counsel did not object on the basis of inadequate notice, or any other basis. And defendant has not identified any prejudice stemming from the alleged lack of notice, nor any way that it altered the preparation of his defense. Notwithstanding the fact that Freehoffer did not testify at the preliminary hearing, defendant was on notice of the prosecution's theory of felony-murder. (See People v. Lucas (1997) 55 Cal.App.4th 721, 738 [a defendant receives sufficient notice "where felony-murder instructions are mentioned for the first time at an initial instructions conference, so long as trial evidence supports the theory and the defense has a day or more to prepare oral argument"].)
This case is therefore unlike Sheppard v. Rees (9th Cir. 1990) 909 F.2d 1234, on which defendant relies, in which the prosecution "ambushed" the defense by submitting an instruction on a felony-murder theory after the jury instruction conference and during closing argument, and in which "the concept of felony-murder [was not] raised, directly or indirectly," at any time "during pretrial proceedings, opening statements, or the taking of testimony." (Id. at p. 1235; see also People v. Gallego (1990) 52 Cal.3d 115, 189.)
In addition, "California and Ninth Circuit decisions have uniformly viewed Sheppard narrowly and limited it to its facts." (Lucas, supra, 55 Cal.App.4th at p. 738.)
Defendant also relies on Givens v. Housewright (9th Cir. 1986) 786 F.2d 1378 (Givens)—in which the Ninth Circuit granted habeas relief to a defendant convicted of first degree murder in Nevada, because the information did not specifically provide that the prosecution would rely on the theory that the murder was committed by torture, id. at p. 1381—arguing that the charging documents and evidence at the preliminary hearing in this case likewise failed to give him adequate notice of the prosecution's theory of felony-murder. However, our Supreme Court has distinguished Givens as inconsistent with California law regarding the notice required in charging documents: "However, it has long been the law in this state that an accusatory pleading charging murder need not specify degree or the manner in which the murder was committed. [Citations.] Thus, even where the People intend to rely on a felony-murder theory, the underlying felony need not be pleaded in the information. [Citation]. Neither is it necessary to specifically plead the charged murder was willful, deliberate, and premeditated. [Citation.] So long as the information adequately alleges murder, the evidence adduced at the preliminary hearing will adequately inform the defendant of the prosecution's theory regarding the manner and degree of killing. [Citation.] Inasmuch as Givens, supra, 786 F.2d 1378, fails to discuss this point, it fails to persuade." (People v. Thomas (1987) 43 Cal.3d 818, 829, fn. 5.) And we have already rejected the argument that defendant received inadequate notice because Freehoffer did not testify at the preliminary hearing. In short, defendant's argument that he did not receive notice of the prosecution's theories of guilt fails.
VI. The Trial Court Did Not Err In Admitting Certain Cellphone Photos
As part of the prosecution's case, Oakland police Detective Phong Tran testified that Antoinette Wilson, who testified at trial that she was present at the scene around the time of the incident, consented to search of her cell phone. Detective Tran connected a cord to Wilson's phone and used a program called "Cellebrite" to extract various data from the phone, including some 28 photographic images, which were subsequently entered into evidence as the People's Exhibit 4 without objection from defense counsel. One such photograph depicted defendant in a hooded sweatshirt at the scene approximately eight minutes before the incident. The photographs also included information, obtained from Wilson's cell phone, about the time and location at which they were taken. Detective Tran testified that this time stamp information would be based on the time setting on Wilson's phone, and that he had checked the time on Wilson's phone and found it to be correct.
Again, defense counsel's failure to object has waived this issue on appeal. However, because defendant argues in the alternative this his counsel was ineffective in failing to make such an objection, we will reach the merits.
Defendant argues that these images and their associated information were hearsay and therefore inadmissible. In People v. Goldsmith (2014) 59 Cal.4th 258, 269 (Goldsmith), our Supreme Court considered and rejected this argument with respect to images captured by traffic cameras at red lights and automatically imprinted with date, time, and location information, concluding that "[b]ecause the computer controlling the ATES digital camera automatically generates and imprints data information on the photographic image, there is similarly no statement being made by a person regarding the data information so recorded. Simply put, '[t]he Evidence Code does not contemplate that a machine can make a statement.' [Citations.]" (Id. at p. 274.)
Defendant acknowledges Goldsmith, but argues that it does not control this case because the information from Wilson's cellphone "can be manipulated and altered" and "[t]here is human interaction and an opportunity for human error during the Cellebrite extraction process." The record does not support this argument.
Detective Tran testified that when a photo is taken, the phone stamps that photo with the data, including "the file name, device, and the storage, the Apple phone file it was kept under, the size, and the time when this thing was downloaded." Other than changing the time setting on the phone, Detective Tran did not testify that there was any way to alter or manipulate this information, which was apparently automatically generated. And Detective Tran testified similarly that the photos were extracted from Wilson's phone after he "physically connect[ed] the cord to the phone," with no other input or involvement from him or any other person. Defendant's argument that the photos were hearsay because their accompanying data was somehow altered or manipulated is not supported by the record. Accordingly, the photos were not hearsay and there was no error in admitting them. (See Goldsmith, supra, 59 Cal.4th at pp. 273-275.)
VII. Defendant Has Waived His Challenge to the Fines and Fees Imposed Based on Inability to Pay
At sentencing, the trial court imposed a general restitution fine of $10,000 pursuant to section 1202.4, subdivision (b), imposed and stayed a parole revocation fine of $10,000 pursuant to section 1202.45, imposed a $80 criminal court assessment fee under section 1465.8, and imposed a $60 conviction assessment fee pursuant to Government Code section 70373. Defendant did not object to these fines and fees on the basis that he is unable to pay them or on any other ground, and the trial court did not make any findings regarding his financial circumstances. On appeal, he argues that the fees should be vacated and the restitution fine stayed until the trial court determines whether he has the present ability to pay them under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
Section 1202.4 requires the trial court to impose a restitution fine of not less than $300 in the case of a felony conviction, unless it finds "compelling and extraordinary reasons for not doing so." (§ 1202.4, subds. (b), (b)(1), (c).) "A defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine." (§ 1202.4, subd. (c).) However, inability to pay "may be considered only in increasing the amount of the restitution fine in excess of the minimum fine . . . ." (Ibid.)
In Dueñas, the defendant was homeless, suffered from cerebral palsy, and was unable to work. (Dueñas, at pp. 1160-1161.) She received three juvenile citations as a teenager, and when she was unable to pay some $1,088 she was assessed for those citations, her driver's license was suspended. (Id. at p. 1161.) She was then convicted three times of driving with a suspended license and once for failing to appear on a driving without a license charge. (Ibid.) Each time, she "was offered the ostensible choice of paying a fine or serving jail time in lieu of payment. Each time, she could not afford the fees, so she served time in jail . . . ." (Ibid.) However, even after choosing jail, she remained liable for various fees associated with her convictions. (Ibid.)
After Dueñas pled guilty to a fourth misdemeanor charge for driving with a suspended license, she was placed on probation and ordered to pay various fees and fines, in particular, a $30 court facilities assessment under Government Code section 70373, a $40 court operations assessment under section 1465.8, and a $150 restitution fine under section 1202.4. The trial court also imposed and stayed a probation revocation restitution fine under section 1202.44. (Dueñas, supra, 30 Cal.App.5th at p. 1162.) Dueñas requested a hearing on her ability to pay these fines, and the trial court held one, ultimately concluding that she lacked the ability to pay certain previously court-ordered attorney fees. (Id. at p. 1163.) However, the court held that the $30 court facilities assessment under Government Code section 70373 and $40 court operations assessment under section 1465.8 were both mandatory regardless of Dueñas's ability to pay them, and that Dueñas had not shown the "compelling and extraordinary reasons" required by statute (§ 1202.4, subd. (c)) to justify waiving the $150 restitution fine. (Dueñas, at p. 1163.)
On appeal, the Dueñas court concluded that due process "requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The court also held that "although Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Ibid.)
Dueñas has been criticized in several recent opinions from other districts of the Court of Appeal. (See People v. Allen (2019) 41 Cal.App.5th 312, 318 [collecting cases].) Our Supreme Court recently granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844, to decide whether a court must consider a defendant's ability to pay before imposing or executing fines, fees, and assessments.
Because the defendant in Dueñas objected to the assessments and a hearing on her ability to pay was held, that case did not consider the issue of forfeiture. However, in People v. Castellano (2019) 33 Cal.App.5th 485, 488 (Castellano), the same court that decided Dueñas considered a similar argument raised by a defendant on whom various fees were imposed, including a $40 court operations assessment (§ 1465.8) and the statutory minimum $300 restitution fine (§ 1202.4, subd. (b)), and who had failed to object to those fines based on inability to pay before Dueñas was decided. (Castellano, at p. 488.) Castellano declined to find the defendant's argument forfeited for lack of objection before the trial court, noting that "none of the statutes authorizing the imposition of the fines, fees or assessments at issue authorized the court's consideration of a defendant's ability to pay. Indeed, as discussed, in the case of the restitution fine, Penal Code section 1202.4, subdivision (c), expressly precluded consideration of the defendant's inability to pay." (Id. at p. 489.) The court concluded that a limited remand was appropriate to provide the defendant an opportunity to request a hearing on his ability to pay. (Id. at pp. 490-491.)
However, where the court imposes a restitution fine in excess of the statutory minimum under section 1202.4, that statute expressly permits the court to consider the defendant's ability to pay. Section 1202.4, subdivision (b)(1) provides that in the case of a felony conviction, the trial court shall impose a restitution fine of not less $300 and not more than $10,000. (§ 1202.4, subd. (b)(1).) Subdivision (c) provides that a defendant's inability to pay is not a compelling and extraordinary reason to refuse to impose the fine, but inability to pay "may be considered only in increasing the amount of the restitution fine in excess of the minimum fine." And subdivision (d) provides that "[i]n setting the amount of the fine pursuant to subdivision (b) in excess of the minimum fine pursuant to paragraph (1) of subdivision (b), the court shall consider any relevant factors, including, but not limited to, the defendant's inability to pay . . . ," which inability the defendant bears the burden of demonstrating. (§ 1202.4, subd. (d).) On this basis, numerous post-Dueñas cases have held that a defendant forfeits a challenge under Dueñas to a restitution fine under section 1202.4 in excess of the statutory minimum by failing to object below. (See People v. Hicks (2019) 40 Cal.App.5th 320, 328, fn. 3, review granted November 26, 2019, S258946; People v. Jenkins (2019) 40 Cal.App.5th 30, 38, review granted November 26, 2019, S258729; People v. Aviles (2019) 39 Cal.App.5th 1055, 1073-1074; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1030-1033; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154.) Division Four of this court has adopted this reasoning in dictum. (See People v. Johnson (2019) 35 Cal.App.5th 134, 138, fn. 5 ["Had the court imposed a restitution fine on Johnson above the statutory minimum, we would have come to the opposite conclusion on the issue of forfeiture, at least for purposes of that fine, since, there, it could be said that he passed on the opportunity to object for lack of ability to pay"].)
We agree with these authorities, and conclude that defendant has forfeited his argument that he is unable to pay the fees and fines at issue. Here, the trial court imposed the maximum $10,000 restitution fine. Under the statutory scheme and authorities just discussed, defendant was obligated to object to the amount of the fine and demonstrate his inability to pay to avoid forfeiture, and such objection would not have been futile under governing law at the time of his sentencing hearing. (See People v. Avila (2009) 46 Cal.4th 680, 729 ["Had defendant brought his argument to the court's attention, it could have exercised its discretion and considered defendant's ability to pay, along with other relevant factors, in ascertaining the fine amount"].) Accordingly, he has forfeited his challenge to the $10,000 restitution fine.
This leaves the $80 criminal court assessment fee under section 1465.8 and the $60 conviction assessment fee pursuant to Government Code section 70373. We will likewise reject defendant's contention that any objections to these assessments would have been futile. Nothing in the record of the sentencing hearing indicates that defendant was foreclosed from making the same request that the defendant in Dueñas made in the face of those same mandatory assessments, and as just discussed, defendant was obligated under then-existing law to create a record showing his inability to pay the $10,000 restitution fine, which would have served to also address his ability to pay the assessments. Given his failure to object to a $10,000 restitution fine based on inability to pay, defendant has not shown a basis to vacate assessments totaling a further $140 for inability to pay. (See People v. Frandsen, supra, 33 Cal.App.5th at p. 1154 [ability to pay argument forfeited with respect to smaller assessments where defendant failed to object to maximum restitution fine]; People v. Aviles, supra, 39 Cal.App.5th at p. 1074 [same]; People v. Gutierrez, supra, 35 Cal.App.5th at p. 1033 [same].)
VIII. Defendant Has Waived His Challenge to the Order to Pay Costs of Probation Report
At sentencing the trial court imposed a $250 probation investigation fee under section 1203.1b, subdivision (a), which provides that "the probation officer, or his or her authorized representative, taking into account any amount that the defendant is ordered to pay in fines, assessments, and restitution, shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost" of certain probation serices, and "shall determine the amount of payment and the manner in which the payments shall be made to the county, based upon the defendant's ability to pay." Further, "[t]he probation officer shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make the determination of the defendant's ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver."
Defendant's probation report stated: "The probation officer is recommending the defendant pay a Probation Investigation Fee of $250. The defendant has been advised of the amount(s) and of the right to have a Court hearing with counsel concerning his ability to pay, pursuant to Section 1203.1b of the Penal Code." When the trial court imposed the fee, defense counsel made no objection.
Defendant now argues that we should strike the fee because there is no evidence of his ability to pay it. Defendant has waived this challenge by failing to raise it below. (See People v. Trujillo (2015) 60 Cal.4th 850, 858 ["Notwithstanding the statute's procedural requirements, we believe to place the burden on the defendant to assert noncompliance with section 1203.1b in the trial court as a prerequisite to challenging the imposition of probation costs on appeal is appropriate"].)
This distinguishes our decision in People v. Neal (2018) 29 Cal.App.5th 820, on which defendant relies. There, the defendant was not informed by the probation officer or the trial court of his rights under section 1203.1b, and he objected through counsel in the trial court to the imposition of the probation costs at issue. (Neal, at pp. 824-825.)
IX. The Abstract of Judgment Will Be Amended to Reflect a Concurrent Sentence on Count 2
At sentencing, the trial court ordered that defendant's two-year sentence on count 2 run concurrently to his sentence on count 1. The abstract of judgment, however, does not indicate that this two-year sentence is to run concurrently to the sentence on count 1. Defendant requests that the abstract of judgment be amended, and the Attorney General concedes this point. Accordingly, we will direct the trial court to amend the abstract of judgment to reflect a concurrent sentence on count 2.
X. Defendant Is Not Entitled to a Remand for Resentencing Under Senate Bill 620
Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats 2017, ch. 682, §§ 1 & 2) (SB 620), which took effect January 1, 2018, amended sections 12022.5 and 12022.53 to provide trial courts with the discretion to strike a firearm enhancement. In particular, SB 620 added the following language to section 12022.53, subdivision (h): "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section." (Stats 2017, ch. 682, § 2; § 12022.53, subd. (h).)
In People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison), decided after defendant's opening brief in this case was filed, the defendant was convicted of first degree murder with an enhancement under section 12022.53, subdivision (d) for personally and intentionally discharging a firearm and proximately causing great bodily injury or death. (Morrison, at p. 220.) He had initially been charged with lesser firearm enhancements under section 12022.53, subdivisions (b) and (c), but they were dismissed at trial, leaving only the more serious enhancement under subdivision (d). (Morrison, at p. 221.) After the passage of SB 620, the trial court recalled the defendant's sentence, but ultimately denied his request to strike the enhancement. (Morrison, at p. 220.)
On appeal, the defendant acknowledged that the trial court acted properly in declining to strike the enhancement completely, but argued that the trial court had discretion to modify the enhancement to the "lesser included" enhancements of 10 or 20 years respectively under section 12022.53, subdivisions (b) or (c). (Morrison, supra, 34 Cal.App.5th at p. 221.) The Morrison court agreed, reasoning by analogy to cases holding that a court may impose a "lesser included" enhancement that was not charged in the information when a greater enhancement found true by the trier of fact is either legally inapplicable or unsupported by sufficient evidence, and concluding that courts may do the same in the interest of justice under section 1385. (Morrison, at pp. 222-223.) Because the record did not reflect whether the trial court understood it could impose a lesser enhancement, a remand was appropriate. (Morrison, at pp. 223-224.)
In People v. Tirado (2019) 38 Cal.App.5th 637 (Tirado), the Fifth District disagreed with Morrison, holding that a trial court is limited to either imposing or striking an enhancement under section 12022.53, subdivision (h). (Tirado, at pp. 643-644; see People v. Yanez (2020) 44 Cal.App.5th 452, 457-460 [disagreeing with Morrison].) Our Supreme Court granted review in Tirado on the following question: "Can the trial court impose an enhancement under Penal Code section 12022.53, subdivision (b), for personal use of a firearm, or under section 12022.53, subdivision (c), for personal and intentional discharge of a firearm, as part of its authority under section 1385 and subdivision (h) of section 12022.53 to strike an enhancement under subdivision (d) for personal and intentional discharge of a firearm resulting in death or great bodily injury, even if the lesser enhancements were not charged in the information or indictment and were not submitted to the jury?"
In a supplemental brief, defendant argues that the trial court had discretion not only to strike or dismiss the 20-year firearm enhancement that it actually imposed, but also to impose "lesser-included" three, four or ten year terms for personally using a firearm in the commission of a felony under Morrison and section 12022.53, subdivisions (a) and (b), and that because the trial court did not understand that it had such discretion, we should remand for resentencing. We disagree.
As noted, the information alleged that defendant personally and intentionally discharged a firearm causing great bodily injury or death to Singh pursuant to section 12022.7, subdivision (a) and section 12022.53, subdivision (d). It also alleged that defendant personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c), and that defendant personally used a firearm within the meaning of section 12022.5, subdivision (a), and section 12022.53, subdivisions (b) and (g). The jury found not true the allegation that defendant personally discharged a firearm causing great bodily injury or death, but true the allegation that defendant personally and intentionally discharged a firearm.
At sentencing, the trial court made the following comments:
"This has been such a devastating thing to this gentleman's family and to the community, and there was no rhyme or reason for this conduct. And as I look at the probation report, there doesn't appear any circumstances of mitigation. However, there are circumstances and aggravation as set forth by [California Rules of Court,] rule 4.421 involving the great violence and callousness of this crime as set forth, the fact that the victim was vulnerable and he was unarmed, and he was in the truck just doing what he did. There's no evidence he ever had a weapon. There's no evidence he ever did anything wrong, said anything bad. He was just doing his job.
"It had to be some planning and sophistication in the way this was done because it was not—as the record reflects in the trial, there were two people involved, and I think there's another defendant who has now been charged, and everybody says there's two people. The question becomes whether or not there's two shooters, and all what I hear is maybe he is now saying you're the shooter and he had nothing to do with it.
"But that being said, the way it went about, people had bought stuff. You had bought stuff. You had been out there and the guns came out, and then they just started blasting and shooting at this poor innocent man in his truck.
"The amount of violence that was involved here, the fact that [Singh] was chased down as he was going down the street and he had to crash and what people saw. So there would be no reason for me to deviate, no reason for me to consider to striking a weapons clause based upon the callousness and the aggravating factors as set forth in this probation report; therefore probation is denied."
The trial court then sentenced defendant to a "20-year-to-life term" on the firearm enhancement pursuant to section 12022.53, subdivision (c).
The Attorney General notes that section 12022.53, subdivision (c) provides for a determinate term of 20 years, not 20 years-to-life as the trial court stated and as was indicated on the abstract of judgment, and accordingly asks that we direct the trial court to amend the abstract of judgment. We will do so.
Even assuming that the trial court had discretion to impose "lesser-included" firearm enhancements under Morrison, given the foregoing, the record clearly demonstrates that it would not have done so. The trial court found several aggravating circumstances, including the violent nature of the crime and the defenselessness of the victim, and no mitigating circumstances. And it expressly found "no reason to deviate" from or strike the firearm enhancement it imposed. Under these circumstances, it is clear that the trial court would not exercise discretion to impose "lesser-included" firearm enhancements, and a remand is unnecessary. (See People v. McDaniels (2018) 22 Cal.App.5th 420, 427 [remand for resentencing to exercise discretion not required where it "would be an idle act because the record contains a clear indication that the court will not exercise its discretion in the defendant's favor"].)
DISPOSITION
The trial court is directed to modify the abstract of judgment to reflect a concurrent sentence on count 2, to reflect a 20 year determinate term on the firearm enhancement on count 1 pursuant to section 12022.53, subdivision (c), and to forward a copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
Richman, Acting P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.