Opinion
F078278
07-15-2020
THE PEOPLE, Plaintiff and Respondent, v. GREGORIO RODRIGUEZ MARTINEZ, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally Espinoza, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F18900067)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Brian F. Alvarez, Judge. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.
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Gregorio Rodriguez Martinez was convicted by a jury of inflicting corporal injury on his girlfriend and making criminal threats. In a bifurcated bench trial, the court found true two strike allegations premised on prior convictions Martinez had suffered in 1998 and 2006 respectively. Martinez contends the evidence underlying the 1998 strike allegation is insufficient as a matter of law. The People concede the point. We agree with the parties. Accordingly, the true finding on the 1998 strike allegation is reversed and the matter remanded to give the People an opportunity to retry this allegation, or, alternatively, for a resentencing hearing.
Next, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Martinez contends the trial court was required to conduct an ability to pay hearing before imposing certain fines and fees at sentencing. Since Martinez may raise this issue in the trial court on remand, we do not address it at this juncture.
FACTS AND PROCEDURAL HISTORY
We will summarize the facts only briefly since the issues raised on appeal do not turn on the facts of the case.
Martinez and G.V., longtime friends, began dating in 2015 and eventually lived together for two and a half years. On November 18, 2017, they had an argument, during which Martinez pulled G.V. to the ground and kicked her leg, which got bruised. Approximately a week later, G.V. told Reedley Police Officer Cesar Cardenas, who knew both G.V. and Martinez, about the incident. G.V. told Cardenas that Martinez had threatened her with a knife and told her was going to "fuck [her] up." G.V. and Martinez eventually reconciled. G.V. explained that, at Martinez's preliminary hearing, she falsely testified that she did not remember certain details regarding the incident in question.
The prosecution presented evidence showing that Martinez had assaulted a prior girlfriend in 2006. In addition, the parties stipulated (in writing) that Martinez was convicted, in 2006, of a domestic violence offense under Penal Code section 273.5, subdivision (a), with a great bodily injury enhancement pursuant to section 12022.7, subdivision (e). The prosecution also presented expert witness testimony about the dynamics of domestic violence.
Subsequent statutory references are to the Penal Code unless specified otherwise.
Martinez's daughter testified for the defense. She said she had never seen Martinez act abusively with G.V. In addition, the defense called as a witness the police officer who had responded to a call regarding the 2006 domestic violence incident involving Martinez's prior girlfriend. This officer testified that the victim in that incident was significantly injured.
Martinez was charged by information with inflicting corporal injury resulting in a traumatic condition on a cohabitant, assault with a deadly weapon, and making criminal threats. (§§ 273.5; 245, subd. (a)(1); 422.) He was found guilty of inflicting corporal injury resulting in a traumatic condition and making criminal threats. He was acquitted of the charge of assault with a deadly weapon.
The information also alleged that Martinez had suffered two prior strike convictions. One of the prior convictions occurred in 1998 and constituted a violation of section 246.3 (negligent discharge of a firearm). The other prior conviction occurred in 2006; it constituted a violation of section 273.5 (corporal injury/domestic violence) and carried a great bodily injury enhancement pursuant to section 12022.7, subdivision (e). Martinez waived jury trial on the prior convictions and the court found they had occurred as alleged. The court also found that these prior convictions counted as serious felony and strike convictions. Accordingly, the court found both the prior strike allegations to be true. The trial court subsequently struck the 1998 strike for sentencing purposes.
With regard to the infliction of corporal injury conviction, the court sentenced Martinez to the upper term of four years, doubled on account of the 2006 strike, for a total term of eight years. The sentence for the criminal threat conviction was stayed pursuant to section 654.
DISCUSSION
I. Sufficiency of the Evidence Underlying the Court's True Finding on the 1998 Prior Conviction Enhancement Allegation
Martinez argues the trial court's true finding on the prior strike enhancement allegation based on his 1998 conviction for negligent discharge of a firearm under section 246.3, is not supported by substantial evidence. The People agree with Martinez, as do we. Accordingly, we reverse the true finding on this strike allegation and remand the matter for a new trial as to this allegation and/or a new sentencing hearing.
Section 246.3, subdivision (a), provides: "Except as otherwise authorized by law, any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170."
To qualify as a strike under the Three Strikes Law, the prior conviction must be a "'violent felony'" as defined in section 667.5, subdivision (c) or a "'serious felony'" as defined in section 1192.7, subdivision (c). (§§ 667, subd. (d), 1170.12, subd. (b).) "Section 246.3 is not a felony specifically listed in section 667.5 or section 1192.7." (People v. Golde (2008) 163 Cal.App.4th 101, 111, fn. omitted (Golde).) Therefore, as explained in Golde, negligent discharge of a firearm can constitute a strike only under certain circumstances, specifically, where it is established that the defendant personally used a firearm in committing the offense. (See § 1192.7, subd. (c)(8) ["any felony in which the defendant personally uses a firearm" is a serious felony] and (c)(23) ["any felony in which the defendant personally used a dangerous or deadly weapon" is a serious felony]; Golde, supra, 163 Cal.App.4th at pp. 111-112.) Moreover, as further explained in Golde, "[i]t is possible to be convicted of grossly negligent discharge of a firearm under section 246.3 without personally using a firearm, e.g., as an aider and abettor." (Id. at p. 112.) Thus, a conviction for negligent discharge of a firearm does not constitute a serious felony unless the requisite showing of personal use of a firearm, within the meaning of section 1192.7, subdivision (c)(8) or (c)(23), is made. (Golde, supra, at pp. 111-112.)
At the bifurcated bench trial on the prior conviction allegations, the prosecution sought to prove the existence of the 1998 (§ 246.3) and 2006 (§ 273.5) prior convictions and to show that both constituted serious felonies and strikes for sentencing purposes. With regard to the 2006 conviction, the prosecution presented evidence consisting of (1) the parties' written stipulation, during the jury trial on the substantive charges, that in 2006, Martinez was convicted of violating section 273.5, subdivision (a), with a great bodily injury enhancement pursuant to section 12022.7, subdivision (e); and (2) a section 969, subdivision (b) packet from the California Department of Corrections and Rehabilitation (CDCR) containing a relevant incarceration history, FBI printout, abstract of judgment, fingerprint card, and photograph of Martinez. With regard to the 1998 conviction, the prosecution similarly introduced a section 969, subdivision (b) packet from CDCR containing a relevant incarceration history, FBI printout, abstract of judgment, fingerprint card, and photograph of Martinez. Based on these documents, the trial court determined that Martinez had suffered both of the prior convictions alleged in the information, i.e., a conviction for negligent discharge of a firearm in 1998 and a conviction for inflicting corporal injury/domestic violence, with a great bodily injury enhancement, in 2006. The court further found that both prior convictions constituted serious felonies and strikes and, in turn, that both strike allegations set forth in the information were true.
In addressing these convictions, the court mistakenly stated that both prior convictions occurred under section 273.5, with a great bodily injury enhancement under section 12022.7, subdivision (e), but the context makes clear the court simply misspoke.
The question on appeal pertains to the 1998 prior conviction and concerns the sufficiency of the evidence underlying the trial court's determination that this conviction was a serious felony and, in turn, a strike, as defined in the relevant statutes. During the bench trial on the strike allegations, defense counsel argued, citing Golde, supra, 163 Cal.App.4th 101, that negligent discharge of a firearm, standing alone, is not a strike; rather it is a strike only if the defendant personally used a firearm in committing the crime. The prosecutor countered that a change of plea form in the court file of the 2006 case showed that, when Martinez changed his plea in that case, he also admitted he had suffered a prior strike (at the prosecutor's request, the trial court took judicial notice of the change of plea form in the court file of the 2006 case). Defense counsel then correctly pointed out there was no evidence the prior strike noted on the change of plea form in the 2006 case pertained to the 1998 negligent discharge of a firearm conviction at issue in the current proceeding. As stated above, the trial court nonetheless concluded the 1998 negligent discharge of a firearm conviction was a serious felony and strike.
The parties here agree the trial court's determination was erroneous, as the evidence was insufficient to support a finding, beyond a reasonable doubt, that Martinez's 1998 conviction for negligent discharge of a firearm constituted a serious felony and strike. (See People v. Strike (2020) 45 Cal.App.5th 143, 150 [an alleged sentence enhancement must be proved beyond a reasonable doubt].) None of the documents adduced at the bench trial on the enhancement allegations showed Martinez personally used a firearm in committing the 1998 negligent discharge of a firearm offense. (See Golde, supra, 163 Cal.App.4th at pp. 111-112.) Nor was this deficiency cured by introduction of the change of plea form from the 2006 case, as this form did not specify the conviction on which Martinez's admission of a prior strike was based. We therefore agree with the parties that the evidence was insufficient to support a true finding on the strike allegation premised on Martinez's 1998 prior conviction for negligent discharge of a firearm.
The matter is remanded for a retrial on the strike allegation pertaining to the 1998 prior conviction for negligent discharge of a firearm. (See Golde, supra, 163 Cal.App.4th at p. 113; People v. Barragan (2004) 32 Cal.4th 236, 239, 241-242 [permitting retrial of strike allegation after appellate finding of evidentiary insufficiency]; Monge v. California (1998) 524 U.S. 721, 728-729 [double jeopardy clause does not bar retrial of prior conviction allegation after appellate finding of evidentiary insufficiency].) We are bound by applicable precedents of the California Supreme Court and the United States Supreme Court and, therefore, reject Martinez's suggestion that post-Apprendi developments in the law preclude retrial of sentence enhancement allegations following an appellate finding of evidentiary insufficiency. (Apprendi v. New Jersey (2000) 530 U.S. 466.) Nevertheless, post-Apprendi developments in the law, as crystallized in the holdings of United States v. Descamps (2013) 570 U.S. 254 and People v. Gallardo (2017) 4 Cal.5th 120, will apply to any retrial of the recidivist enhancement allegation at issue here. United States v. Descamps and People v. Gallardo limit the scope of the trial court's inquiry in this context to ascertaining the elements of the prior conviction at issue, and, in turn, limit the type of evidence the court may consider in determining whether a prior conviction meets the requirements of the applicable recidivist enhancement statute (here, the serious felony statute and the Three Strikes Law).
Finally, in the event the People forgo the opportunity for a retrial regarding the strike allegation based on the 1998 prior conviction for negligent discharge of a firearm, Martinez will be entitled to a new sentencing hearing. While the trial court found the strike allegation based on the 1998 prior conviction to be true, it subsequently struck the putative 1998 strike for sentencing purposes. Martinez is entitled to a new sentencing hearing given our reversal of the true finding on the 1998 strike allegation, as the record does not indicate how the court would have sentenced Martinez had it found Martinez had only one prior strike (i.e., the 2006 conviction) rather than two prior strikes (i.e., the 2006 and 1998 convictions). (See People v. Almanza (2018) 24 Cal.App.5th 1104, 1110.)
II. Fines and Fees
Martinez's sentence included a court operations assessment of $40 under section 1465.8, a court facilities assessment of $30 under Government Code section 70373, and a restitution fine of $2400 under section 1202.4, subdivision (b), among other fines.
Citing Dueñas, supra, 30 Cal.App.5th 1157, Martinez argues the imposition of these assessments and fines without a prior hearing to determine his ability to pay was unconstitutional. Dueñas held 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." (Id. at p. 1164.) As for restitution fines, Dueñas 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.; accord, People v. Belloso (2019) 42 Cal.App.5th 647; accord, People v. Castellano (2019) 33 Cal.App.5th 485, 489-490 (Castellano) [following Dueñas but clarifying that "a defendant must in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court"]; contra, People v. Allen (2019) 41 Cal.App.5th 312, 326-330 [rejecting the defendant's Dueñas-based due process and equal protection claims]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1061 [disagreeing with Dueñas's due process analysis and concluding constitutional challenge to fines, fees, and assessments should be made under the Eighth Amendment's Excessive Fines Clause]); see also People v. Kopp (2019) 38 Cal.App.5th 47, 94-98 [endorsing applicability of Dueñas to non-punitive assessments, including court facilities assessment, court operations assessment, and criminal justice administration fee, but not to punitive fines], review granted Nov. 13, 2019, S257844; People v. Son (2020) 49 Cal.App.5th 565; People v. Cowan (2020) 47 Cal.App.5th 32.)
The parties suggest we need not reach Martinez's Dueñas claim in the event of remand for retrial of the 1998 strike allegation and/or resentencing. We agree it is unnecessary to reach the Dueñas claim given our remand of this matter for a potential retrial of the 1998 strike allegation and/or resentencing. On remand, Martinez may raise his Dueñas claim in the trial court in the first instance. (Castellano, supra, 33 Cal.App.5th at pp. 489-490.)
DISPOSITION
The true finding on the strike enhancement allegation based on Martinez's 1998 conviction for negligent discharge of a firearm under section 246.3 is reversed. The matter is remanded for retrial on this enhancement allegation and/or resentencing.
SMITH, J. WE CONCUR: FRANSON, Acting P.J. SNAUFFER, J.