Opinion
E066876
02-20-2018
THE PEOPLE, Plaintiff and Respondent, v. RICK ALEXANDER PEREZ, Defendant and Appellant.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier, and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. 16CR015646) OPINION APPEAL from the Superior Court of San Bernardino County. Charles J. Umeda, Judge. Affirmed with directions. Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier, and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Rick Alexander Perez of failure to register as a sex offender (Pen. Code, § 290; count 1) and failure to advise of a change of address (Pen. Code, § 290.013; count 2), and also found true he suffered a prison prior for his underlying sex offense. The trial court sentenced him to a total of three years in state prison.
Perez raises three challenges on appeal. First, he argues his attorney rendered ineffective assistance by failing to request a limiting instruction regarding his prior sex offense conviction. Next, he argues and the People agree the imposition of a sentence for count 2 violates the ban against multiple punishments for single criminal acts. (Pen. Code, § 654; unlabeled statutory citations refer to this code.) Finally, he argues the trial court's order he reimburse his appointed attorney $750 in fees is not supported by substantial evidence. As we explain, we agree with his last two contentions. We therefore modify the judgment to stay the sentence for count 2 and remand for an evidentiary hearing on Perez's ability to pay attorney fees. We affirm the judgment in all other respects.
I
FACTUAL BACKGROUND
In 2010, Perez pled guilty to sexual battery by restraint (§ 243.4, subd. (a)) and received two years in state prison. As a result of this conviction, the Sex Offender Registration Act (§§ 290-290.024) requires him to register as a sex offender for the rest of his life while residing or working in California and to inform law enforcement any time he changes residences. (See §§ 290, 290.013.) In January 2016, Perez registered a house on St. Timothy Road in Apple Valley as his residence. The home is owned by B., who is the maternal great-grandmother of Perez's three children.
When a sergeant from the sheriff's department arrived at B.'s home in February 2016 for a registration compliance check, B. said Perez had not lived there since 2014 and she did not know where he currently lived. On March 3, 2016, the sergeant saw the van Perez was known to drive parked outside B.'s house. B. again told the sergeant Perez was not living at her home. She said she had let Perez park his van at her place because the van had broken down. The sheriff's department arrested Perez on April 16, 2016. During his interview he either could not or refused to provide his current home address. The prosecution charged Perez with one count of failure to register and one count of failure to advise of a change of address, and also alleged a prison prior.
At trial, the court instructed the jury counts 1 and 2 required the People to prove Perez had been convicted of a sex crime that triggered application of the Sex Offender Registration Act—here, sexual battery by restraint, a violation of section 243.4, subdivision (a). The court also instructed the jury that to prove the truth of the prison prior allegation, the People had to prove Perez had committed a new felony within five years from his release from prison on the sexual battery conviction. To prove these elements, the prosecution introduced a copy of the abstract of judgment reflecting Perez's 2010 conviction for sexual battery by restraint, along with prison and parole records reflecting his incarceration and release dates.
During closing argument, the prosecutor referred to Perez's prior conviction and prison term only to argue the People had met their burden of proving the Sex Offender Registration Act applied to Perez and the truth of the prison prior allegation. The prosecutor told the jury they could not base their verdict on matters like passion or bias. During his closing statement, defense counsel argued the only disputed issue in the case was whether or not Perez still resided at B.'s Apple Valley home, which turned on whether the jury found B.'s testimony credible. Counsel conceded Perez had been convicted of sexual battery by restraint and the Sex Offender Registration Act applied to him. Counsel repeatedly asked the jury not to allow Perez's status as a sex offender to affect their determination of guilt.
Before and after presentation of evidence, the trial court instructed the jury it must decide Perez's guilt on the trial evidence and must not let bias, sympathy, prejudice, or public opinion influence its decision.
II
DISCUSSION
A. Ineffective Assistance of Counsel
Perez argues his trial counsel rendered ineffective assistance by failing to request a limiting instruction along the lines of CALCRIM No. 303, which states, "During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other." He argues counsel's failure prejudiced him because "the jury had no reason to believe that it could not also use [the] evidence to assess [Perez's] character and by extension his guilt." We find no deficiency in not requesting such an instruction.
Perez correctly acknowledges a trial court is under no duty to provide such an instruction in this instance, and therefore his claim of error necessarily takes the form of ineffective assistance of counsel. (See, e.g., People v. Collie (1981) 30 Cal.3d 43, 64 ["the trial court is under no duty to instruct sua sponte on the limited admissibility of evidence of past criminal conduct"].)
To succeed on an ineffective assistance of counsel claim, a defendant must demonstrate (1) counsel's performance was deficient, that is, it fell below an objective standard of reasonableness, and (2) the deficiency prejudiced defendant, that is, but for the deficiency it is reasonably probable the defendant would have obtained a more favorable result. (Strickland v. Washington (1984) 466 U.S. 668, 687-695; People v. Bolin (1998) 18 Cal. 4th 297, 333.) We review trial counsel's performance with deference and employ a "strong presumption" the defendant received reasonably professional assistance. (Strickland, at pp. 689-690; People v. Leonard (2014) 228 Cal.App.4th 465, 484.)
Where, as here, the claim is based on counsel's failure to take a particular action and the record does not demonstrate counsel's reasons, we must reject the claim unless there could be "no satisfactory explanation" for the conduct. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266 [reversing a holding of ineffective assistance for counsel's failure to seek suppression of cocaine found during a warrantless search because it was conceivable counsel was aware of a justification for the search].) In other words, if we can hypothesize a reasonable explanation for counsel's decision, the claim of ineffective assistance fails.
Because an appellate record usually does not disclose the reasons behind counsel's conduct, claims of ineffective assistance "are more appropriately litigated on habeas corpus, which allows for an evidentiary hearing where the reasons for defense counsel's actions or omissions can be explored." (People v. Lopez (2008) 42 Cal.4th 960, 966.)
Our courts have repeatedly held that counsel's failure to request a limiting instruction regarding evidence of a prior conviction is not ineffective assistance because counsel could have reasonably believed the instruction would do more harm than good by drawing more attention to the earlier crime. (E.g., People v. Hinton (2006) 37 Cal.4th 839, 878 [failure to request limiting instruction not ineffective assistance because "the instructions given were adequate to guide the jury's use of the prior conviction" and "counsel may have deemed it unwise to call further attention to it"]; People v. Ferraez (2003) 112 Cal.App.4th 925, 934 [no ineffective assistance because "a limiting instruction would have added little to the jury's understanding of the case [and] the decision not to request one was a reasonable tactical choice by defense counsel to avoid directing the jury to focus on the evidence"]; People v. Freeman (1994) 8 Cal.4th 450, 495 [no ineffective assistance because "[c]ounsel may well not have desired the court to emphasize the evidence, especially since it was obvious for what purpose it was being admitted"].) We agree with this reasoning and conclude Perez's counsel was not deficient for failing to request a limiting instruction. And, even if counsel had been deficient, we would conclude the deficiency did not prejudice Perez. The parties did not spend any more time on the prior conviction than necessary to prove the elements of the charged offenses and prison prior allegation. Indeed, defense counsel conceded the prior conviction during closing argument, so the attorneys referenced it only briefly after the close of evidence. In addition, the court repeatedly instructed the jury not to let bias or prejudice influence its verdict, and both attorneys also urged the jury to ignore any prejudice or bias.
B. Section 654 and Count 2
For count 2, failure to advise of change of address, the trial court imposed a 16-month sentence to run concurrently with the two-year sentence for failure to register. As Perez argues and the People concede, imposing a sentence for count 2 violated the prohibition against multiple punishments for a single criminal act.
"An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) Section 654 bars separate punishment for multiple offenses arising out of a single criminal objective or indivisible course of action. (People v. Deegan (2016) 247 Cal.App.4th 532, 541.) A concurrent sentence (even one that does not practically increase a defendant's time in prison, like the one here) is still considered punishment for purposes of section 654. (People v. Alford (2010) 180 Cal.App.4th 1463, 1468 ["Imposition of concurrent sentences is not the correct method of implementing section 654, because a concurrent sentence is still punishment"].) And where, as here, a defendant is charged with multiple Sex Offender Registration Act violations for the same unreported move (as opposed to multiple unreported moves), our Supreme Court has held the defendant harbored the single objective of preventing any law enforcement agency from knowing his current address. (People v. Britt (2004) 32 Cal.4th 944, 952-954.) Because the People charged Perez with two Sex Offender Registration Act violations occurring on the same date, we conclude section 654 applies to counts 1 and 2 and will modify the judgment accordingly.
C. Attorney Fee Reimbursement Award
The probation report indicated Perez had no assets but had been working for the past three years at a company called Arizona Pipeline and, at the time of his interview, was making $500 a week. At the sentencing hearing, the trial court ordered Perez to reimburse his appointed counsel $750 in attorney fees. Perez argues the order was not supported by substantial evidence. The People do not address whether substantial evidence supports the order; instead, they argue Perez forfeited his challenge by failing to object in the trial court. We agree with Perez.
"[S]ection 987.8 establishes the means for a county to recover some or all of the costs of defense expended on behalf of an indigent criminal defendant." (People v. Verduzco (2012) 210 Cal.App.4th 1406, 1420 (Verduzco).) Under that statute, "the court may, after giving the defendant notice and a hearing, make a determination of his present ability to pay all or a portion of the cost of the legal assistance provided him." (People v. Flores (2003) 30 Cal.4th 1059, 1061 (Flores), italics added.)
Section 987.8, subdivision (b) states: "In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court, or upon the withdrawal of the public defender or appointed private counsel, the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof. The court may, in its discretion, hold one such additional hearing within six months of the conclusion of the criminal proceedings. The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided." --------
"'"Ability to pay'" means 'the overall capability' of the defendant to reimburse all or a portion of the defense costs." (§ 987.8, subd. (g)(2).) In making this finding, the court must consider the defendant's financial position at the time of the hearing, his or her "reasonably discernible" financial position over the next six months, including the likelihood of employment during that time, and "[a]ny other factor or factors which may bear upon the defendant's financial capability to reimburse the county." (§ 987.8, subd. (g)(2)(A)-(D); see also Verduzco, supra, 210 Cal.App.4th at p. 1421.) "In calculating ability to pay, 'the court [must] consider what resources the defendant has available and which of those resources can support the required payment,' including both the defendant's likely income and his or her assets." (Verduzco, at p. 1421, citing People v. Smith (2000) 81 Cal.App.4th 630, 642; see also Conservatorship of Rand (1996) 49 Cal.App.4th 835, 842 [considering funds in savings account].)
"While the statutory language does not mandate an express finding of an ability to pay, the statute contains a presumption that those sentenced to prison do not have the ability to pay." (Verduzco, supra, 210 Cal.App.4th at p. 1421; Flores, supra, 30 Cal.4th at p. 1068 ["there is a presumption under the statute that a defendant sentenced to prison does not have the ability to reimburse defense costs"]; § 987.8, subd. (g)(2)(B) ["Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense"].) "Thus, the court must make an express finding of unusual circumstances before ordering a state prisoner to reimburse his or her attorney." (Verduzco, at p. 1421, italics added; People v. Lopez (2005) 129 Cal.App.4th 1508, 1537 ["We construe [section 987.8] to require an express finding of unusual circumstances before ordering a state prisoner to reimburse his or her attorney"].) If a trial court does not make an express finding of unusual circumstances before imposing attorney fees on a state prisoner, reviewing courts should remand to allow the trial court to hold an evidentiary hearing on that issue. (See, e.g., Flores, at pp. 1068-1069 ["Because it held no hearing into the matter, the trial court made no finding as to whether defendant's circumstances were unusual . . . we affirm the Court of Appeal's remand order so that the trial court may, after having conducted a hearing into the question, make an informed decision"].)
Verduzco is instructive. There, the probation report indicated the defendant earned $600 per month, paid $250 in rent, and made money doing odd jobs and recycling. At sentencing, the court imposed a prison sentence and ordered defendant to pay $2,668.94 in attorney fees under section 987.8. The defendant did not object to the order in the trial court, but on appeal he argued it was not supported by substantial evidence, and the People conceded his challenge was not forfeited because it went to the sufficiency of the evidence. (Verduzco, supra, 210 Cal.App.4th at p. 1420.) The appellate court concluded the order was not supported by substantial evidence because the defendant had been sentenced to prison and the trial court had not held an evidentiary hearing and made an express finding of unusual circumstances and ability to reimburse. (Id. at p. 1421.) The appellate court remanded the matter to the trial court to hold a hearing to determine the defendant's ability to pay. (Id. at pp. 1421-1422, citing Flores, supra, 30 Cal.4th at pp. 1068-1069.)
Our case suffers from the same error. The trial court, having sentenced Perez to prison, failed to hold an evidentiary hearing and expressly determine whether unusual circumstances exist demonstrating Perez would be able to reimburse his counsel any portion of the defense costs.
The People argue People v. Aguilar (2015) 60 Cal.4th 862 mandates we treat Perez's challenge as forfeited. We do not read Aguilar so broadly. There, the trial court placed the defendant on probation and ordered him to pay $500 in attorney fees. (Id. at p. 865.) Without previous objection, the defendant argued on appeal that the trial court erred in failing to provide him notice and an evidentiary hearing, and our Supreme Court held he had forfeited those "procedural" challenges. (Id. at pp. 865-867, 869.) We understand this holding to apply the forfeiture rule to alleged procedural deficiencies in a section 987.8 order. We do not read it to abrogate the longstanding rule that challenges to the sufficiency of the evidence supporting an order cannot be forfeited. (See, e.g., People v. Viray (2005) 134 Cal.App.4th 1186, 1217 [concluding a challenge to the sufficiency of the evidence supporting a section 987.8 order requires no predicate objection in the trial court].) We also find Aguilar distinguishable on the ground it did not involve the express finding requirement in section 987.8, subdivision (g)(2)(B) because the defendant had not been sentenced to prison. We therefore conclude "the record does not contain substantial evidence [Perez] had the ability to pay because the court conducted no evidentiary hearing in the matter . . . [and] remand the matter for a determination under Penal Code section 987.8 of [Perez's] ability to pay attorney fees." (Verduzco, supra, 210 Cal.App.4th at p. 1421.)
III
DISPOSITION
We modify the judgment to stay the sentence imposed for count 2 and direct the trial court to prepare an amended abstract of judgment in accordance with this opinion and forward a certified copy to the Department of Corrections and Rehabilitation and correct the sentencing minute order. We reverse the order for attorney fee reimbursement and remand for a hearing on ability to pay under section 987.8. (See Flores, supra, 30 Cal.4th 1059; Verduzco, supra, 210 Cal.App.4th at p. 1422.) In all other respects, we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: McKINSTER
Acting P. J. MILLER
J.